State Bank (Privatisation) Act 1994

This Act may be cited as the State Bank (Privatisation) Act 1994.

This Act commences on the date of assent.

In this Act:

appointed day means the day appointed for the purposes of section 9.

approved person has the meaning given by section 7.

assets means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description (including money), and includes securities, choses in action and documents.

Bank means State Bank of New South Wales Limited.

business day means a day on which banks are open for business generally in New South Wales.

completion date has the meaning given by clause 1 of the Share Sale Agreement.

demand deposit means any liability of the Bank to make a payment in respect of a deposit that is withdrawable on demand, at call or on a period of notice not exceeding 2 business days, but does not include any bond entered into on terms whereby the person holding the benefit of the bond may require the Bank to repay the amount of the bond before its final maturity.

deposit has the meaning given by section 4.

instrument means an instrument (other than this Act) which creates, modifies or extinguishes rights or liabilities (or would do so if lodged, filed, registered or stamped in accordance with any law), and includes any judgment, order or process of a court.

liabilities means liabilities, debts and obligations (whether present or future and whether vested or contingent).

Memorandum means the memorandum dated 11 October 1994 between the Premier and the Treasurer for and on behalf of the State, Emerald Holding Company Limited and The Colonial Mutual Life Assurance Society Limited.

modify means modify, amend, add to or otherwise vary.

retail deposit means a deposit denominated in Australian dollars, including, without limitation:

money standing to the credit of a cheque account, whether or not it is interest bearing, and

money standing to the credit of accounts entitled State Saver, State One, State Super Rate, State Maximiser, State Money Wise, State Money Market and State All In One, and

retail State Bank bonds, money market deposits and certificates of deposit, and

any money or thing of a class specified by proclamation,

but excluding a deposit that is owing to a body corporate authorised to carry on banking business in Australia under the Banking Act 1959 of the Commonwealth.

rights means all rights, powers, privileges and immunities (whether present or future and whether vested or contingent).

SBSBS means the State Bank Superannuation Benefit Scheme, referred to in the definition of Superannuation Funds in clause 1 of the Share Sale Agreement.

Share Sale Agreement means the agreement dated 29 September 1994 between the Premier and the Treasurer for and on behalf of the State, Emerald Holding Company Limited and The Colonial Mutual Life Assurance Society Limited (as amended by the Memorandum), as in force from time to time.

specified liability means any liability of the Bank to make a payment in relation to:

any financial accommodation provided to the Bank that is required by any applicable accounting standards or principles to be recorded as a liability on the balance sheet of the Bank, or

retail deposits, or

any financial commitments of the Bank that are not required by any applicable accounting standards or principles to be recorded as a liability on the balance sheet of the Bank, including guarantees, assets sold with recourse, standby letters of credit, bill endorsements and written put options, documentary letters of credit and performance related contingencies, sale and repurchase agreements, outright forward purchases and forward deposits, underwriting facilities and any other financial commitments of a class specified by proclamation, or

any forward exchange contracts, hedge contracts, currency swap agreements, currency futures agreements, currency options, forward rate agreements, interest rate swap agreements, interest rate futures agreements, interest rate options agreements, gold contracts, gold futures contracts, gold options, stock price futures agreements, stock price options, spot foreign exchange transactions, basis swap transactions, interest rate caps, collar or floor transactions, cross-currency rate swap transactions or any other transactions of a class specified by proclamation.

the State includes the Crown in right of New South Wales and the Government of New South Wales.

Transaction Documents means the documents (as modified from time to time) identified as such in clause 1 of the Share Sale Agreement, but does not include the Share Sale Agreement.

transitional period means the period commencing on the day appointed by proclamation under section 12 (1) of the State Bank (Corporatisation) Act 1989 and ending on and including the day preceding the third anniversary of that day.

voting shareholders means voting shareholders (as defined in the State Owned Corporations Act 1989) in relation to the Bank.

In this Act, deposit means a sum of money paid to the Bank on terms:

under which the Bank is obliged to repay the money, with or without interest or a premium, and either on demand or at a time or in circumstances agreed by or on behalf of the person making the payment and the Bank, and

which are not referable to the provision of property or services or the giving of security.

For the purposes of paragraph (b) of the definition of deposit, money is paid on terms that are referable to the provision of property or services if, and only if:

it is paid by way of advance or part payment under a contract for the sale, hire or other provision of property or services, and is repayable only in the event that the property or services is not or are not in fact sold, hired or otherwise provided, or

it is paid by way of security for the performance of a contract or by way of security in respect of loss that may result from the non-performance of a contract, or

without limiting paragraph (b) of this subsection, it is paid by way of security for the delivery up or return of any property, whether in a particular state of repair or otherwise.

For the purposes of this section, security does not include any right of set-off or counterclaim.

This Act applies both within and outside New South Wales.

This Act applies outside New South Wales to the full extent of the extra-territorial legislative power of Parliament.

Without affecting the generality of subsections (1) and (2), it is intended that this Act applies in relation to the following:

land situated outside New South Wales, whether within or outside Australia,

things situated outside New South Wales, whether within or outside Australia,

acts, transactions and matters done, entered into or occurring outside New South Wales, whether within or outside Australia,

things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Act, be governed or otherwise affected by the law of a place outside New South Wales, whether within or outside Australia.

The Bank may be sold to an approved person in accordance with this Act.

For the purposes of this Act, an approved person is The Colonial Mutual Life Assurance Society Limited (ACN 004 021 809) or a wholly-owned subsidiary of that company.

The Premier and the Treasurer (or either of them) are authorised to negotiate, enter into and carry out on behalf of the State:

the Share Sale Agreement, and

each of the Transaction Documents.

The Ministers who are shareholders in the Bank are authorised to transfer their shares to an approved person in accordance with the terms of the Share Sale Agreement and to enter into and carry out agreements for the transfer of their shares to an approved person.

Any such negotiations conducted before the date of assent to this Act are validated to the extent of any invalidity.

The Share Sale Agreement and any of the Transaction Documents may be entered into before, on or after the date of assent to this Act, and if entered into before that date are validated to the extent of any invalidity.

However, any such transfer of shares does not take effect before the appointed day.

Any modification made or purporting to be made to the Share Sale Agreement after 11 October 1994, being a modification that materially alters the substance of that agreement, is of no force or effect.

Subsection (6) does not apply to:

any of the exhibits to the Share Sale Agreement, or

a modification that is approved by resolutions of both Houses of Parliament, passed before or after the modification is made.

On a day to be appointed by proclamation for the purposes of this section, the State Owned Corporations Act 1989 is amended by omitting from Schedule 1 the words “State Bank of New South Wales Limited”.

The State Owned Corporations Act 1989 does not apply to the Bank or any subsidiary of the Bank on and after the appointed day. This section has effect subject to any express provisions of this Act.

The Ministers who are the voting shareholders of the Bank are authorised to take steps before the appointed day to make alterations and additions to the memorandum and articles of association of the Bank or a subsidiary of the Bank, being alterations and additions contemplated by the Share Sale Agreement, whether or not some or all of them are or may be inconsistent with the requirements of the State Owned Corporations Act 1989 or the State Bank (Corporatisation) Act 1989 or both.

However, any such inconsistent alterations or additions do not take effect before the appointed day.

Despite section 172 of the Corporations Law, subsection (6) of that section does not apply in relation to any alteration or addition referred to in subsection (1) of this section.

During the transitional period, and subject to subsection (5), the payment of all money due by the Bank in respect of specified liabilities incurred by the Bank during the transitional period is guaranteed by the Government of New South Wales.

On and from the day immediately following the expiry of the transitional period, the guarantee created by subsection (1) ceases, except in relation to specified liabilities (other than demand deposits) incurred by the Bank during the transitional period.

The guarantee of any liability that continues after the expiry of the transitional period pursuant to subsection (2) ceases immediately if:

the terms or conditions of the arrangements giving rise to the relevant specified liability are amended or varied, or

any right to extend the relevant specified liability is exercised by the Bank,

unless the Treasurer agrees in writing that the guarantee is to continue despite any such amendment, variation or extension. Any agreement may be given in respect of particular amendments, variations or extensions or in respect of any class of amendments, variations or extensions.

The payment of any money due by a subsidiary of the Bank is not guaranteed under this section.

The payment of money due by the Bank in respect of a specified liability incurred by the Bank during the transitional period is not guaranteed under this section if:

the document or instrument containing the terms and conditions of the specified liability contains a statement to the effect that the obligations of the Bank in respect of the specified liability are not guaranteed by the Government of New South Wales, or

the person who would otherwise have had the benefit of the guarantee has by written agreement with the Bank acknowledged that the specified liability, or a class of specified liabilities of which it is one, is not guaranteed by the Government of New South Wales.