Rail Company Act 2009

Rail Company Act 2009

This Act may be cited as the Rail Company Act 2009.

This Act commences on the day on which this Act receives the Royal Assent.

The purposes of this Act are to –

provide for the establishment and registration under the Corporations Act of a State-owned company to acquire, own and operate a rail business in Tasmania; and provide for that company to act as the nominee of the Crown under the Business Sale Agreement; and provide for the transfer to that company from the Crown, or to the Crown from that company, of rail infrastructure and related assets, liabilities and contracts; and provide for the transfer to that company from the Crown of State Service employees and State Service officers; and provide for the sale of that company, or part of that company, by the sale of the shares in the company or the assets of the company.

In this Act, unless the contrary intention appears –

asset includes any, and any part of any, property, business, operation and right;

Board means the Board of Directors of the Company;

Business Sale Agreement means the agreement, for the sale and purchase of rail infrastructure and related assets and rail businesses, entered into on 4 September 2009 – by Pacific National Pty Ltd (ACN 098 060 550), Pacific National (Tasmania) Pty Limited (ACN 079 371 305), PN Tas (Operations) Pty Limited (ACN 078 295 468) and PN Tas (Services) Pty Limited (ACN 078 906 519), together as the seller; and by the Crown, as the buyer;

Company means a company formed under section 5;

constitution means the constitution of the Company;

contract means – an agreement, arrangement, undertaking, lease, licence, warranty or other contract; or part of an agreement, arrangement, undertaking, lease, licence, warranty or other contract;

director means a director of the Company;

document includes an instrument and part of a document;

legal or other proceeding includes arbitration proceedings and mediation proceedings;

liability includes any, or any part of any, liability, duty and obligation, whether actual, contingent or prospective;

member, in respect of the Company, means a member referred to in section 8;

principal objectives means the principal objectives of the Company specified in section 6;

property means – any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property; and money, documents and securities; and shares in a subsidiary of the Company; and any other rights and property;

rail business means the business of – rail haulage on a railway in Tasmania and associated services, including (without limitation) capital works, maintenance, storage, loading, train control and safety functions, carried on in Tasmania; or owning a railway in Tasmania; or administering, managing, controlling, controlling access to, controlling operations on, maintaining or developing a railway in Tasmania;

rail infrastructure and related assets means – rail infrastructure within the meaning of the Rail Infrastructure Act 2007; or rolling stock within the meaning of the Rail Safety National Law (Tasmania) Act 2012; or any other asset used, or that is intended for use or has been used, in connection with the operation of rail businesses in Tasmania; or any other asset purchased by the Crown or a nominee under the Business Sale Agreement;

railway includes the track of the railway, the land corridor along which the track of the railway is laid and all of the attendant rail infrastructure and related assets, but does not include the railways, or railways of a kind, specified in Part 2 of Schedule 1 to the Rail Infrastructure Act 2007;

regulations means regulations made under section 42;

right includes any right, power, privilege and immunity, whether actual, contingent or prospective;

State tax means any of the following if imposed by any Act or law of Tasmania:a fee, including an application fee and registration fee; a tax, including a duty; a charge;

subsidiary has the same meaning as in the Corporations Act;

subsidiary board, in relation to a subsidiary, means the board of directors for the subsidiary;

transfer day means the day on which a transfer notice, or the relevant part of a transfer notice, takes effect;

transfer notice means – a notice made under subsection (2) or (3) of section 27, or both of those subsections; or a part of such a notice;

transfer recipient, in relation to a transfer notice or transfer day, means – the Company if the relevant transfer notice transfers any rail infrastructure and related assets, liabilities or contract to the Company; or the Crown if the relevant transfer notice transfers any rail infrastructure and related assets, liabilities or contract to the Crown;

transferor, in relation to a transfer notice or transfer day, means – the Crown if the relevant transfer notice transfers any rail infrastructure and related assets, liabilities or contract to the Company; or the Company if the relevant transfer notice transfers any rail infrastructure and related assets, liabilities or contract to the Crown;

transferred employee means a person who becomes the employee of the Company on the transfer day by the operation of section 30(4);

Treasurer’s Instructions means instructions issued under section 114 of the Government Business Enterprises Act 1995 and applicable to the Company in accordance with section 38A of this Act;

wholly-owned subsidiary, in relation to the Company, means a subsidiary of the Company that falls within the definition of wholly-owned subsidiary, within the meaning of the Corporations Act, in respect of the Company.

The Minister may form, or participate in the formation of, a company limited by shares that is to be incorporated under the Corporations Act.

The purpose of the Company is to acquire, own and operate a rail business in Tasmania.

The principal objectives of the Company are –

to operate a rail business in Tasmania effectively and efficiently; and to operate its activities in accordance with sound commercial practice; and to maximise its sustainable return to its members.

The constitution of the Company is to include the principal objectives of the Company.

The provisions of the constitution of the Company are to be consistent with this Act.

As soon as practicable after the commencement of this subsection, the Company is to amend its constitution to include provisions to the effect of the provisions specified in Schedule 2.

The members of the Company are to be 2 persons of whom – one is the Minister; and one is the Treasurer.

If, at any one time, one person is both the Minister and Treasurer – the Treasurer must nominate another Minister, being a different person, to be a member of the Company; and a reference in this Act to the Minister is taken to be a reference to the other Minister so nominated; and a reference in this Act, or any other Act, to the members of the Company is taken to include a reference to the other Minister so nominated.

If the Treasurer nominates another Minister as a member of the Company, the Treasurer is to notify the Company in writing of that fact, as soon as practicable after the Treasurer makes the nomination.

in the Company issued to its members are held by the members in trust for the Crown.

A member of the Company who holds shares in trust for the Crown is not to acquire shares in the Company for his or her own benefit.

Any shares acquired in the Company in contravention of subsection (2) are taken to be held in trust for the Crown but the Crown is not liable to meet the cost of that acquisition.

The consideration for any further shares issued to the members of the Company after the commencement of this section is to be any one or more of the following as agreed between the Company and its members:

any money provided by Parliament for that purpose;

any rail infrastructure and related assets vested in the Company by the operation of section 27(7);

any other consideration as so agreed.

Unless this or any other Act expressly provides otherwise, the Company or a subsidiary of the Company – is not, and does not represent, the Crown; and is not exempt from any rates, tax, duty or other impost under any law merely because the Crown has beneficial ownership of shares in it.

The Crown is not liable for any liability or obligation of the Company or subsidiary of the Company unless – the Treasurer gives a guarantee or indemnity under section 14 in relation to that liability or obligation; or a guarantee is given under the Tasmanian Public Finance Corporation Act 1985 in respect of the Company or subsidiary.