New South Wales act

AGL Corporate Conversion Act 2002

In ForceNSW

Jurisdiction

New South Wales

Act Number

16 of 2002

Collection

act

Plain English Summary

7/10 complexity

This Act converts The Australian Gas Light Company (AGL) from an unincorporated company of proprietors into a New South Wales body corporate and enables it to seek registration as a public company limited by shares under the Corporations Act. It transfers AGL’s assets, rights, liabilities, contracts, officers and members into the new corporate entity, preserves specified pre‑existing proprietary resolutions, and authorises several procedural and regulatory adjustments (for example, use of the existing ARBN and retention of the historic name). It matters to AGL’s proprietors, employees, creditors, counterparties and regulators because it changes legal form and the applicable corporate regime.

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What it does

Mechanically, the Act converts the unincorporated Australian Gas Light Company (AGL) into a corporate entity under New South Wales law and creates the pathway for that corporatised entity to be registered as a public company limited by shares under the Commonwealth Corporations Act 2001. The statutory process is two-step (conversion then registration): a conversion resolution of the proprietors, a ministerial conversion order fixing a conversion day (s 7(1)-(3); s 8; s 13), immediate vesting of assets, rights and liabilities in the corporatised entity (s 14; Sch 3 cl 2), and then, subject to a registration resolution and a ministerial compliance certificate, an application to ASIC to register corporatised AGL under Part 5B.1 of the Corporations Act (s 7(3); s 9; s 31; s 32).

The Act states its objectives expressly (s 3): to constitute AGL as a body corporate with a modern corporate structure, to authorise corporatised AGL to apply for registration as a public company limited by shares under the Corporations Act, and to amend the Gas Industry Restructuring Act 1986 insofar as necessary (s 3(a)-(c)). The statutory mechanics are the operative content; the objects are explicitly articulated but are not operative mechanics themselves.

Key operational effects under the Act include:

Continuity of legal personality: corporatised AGL is, to the fullest extent possible, the same legal entity as AGL (s 14(1)-(2)). That continuity extends to proceedings, liabilities, rights and property (s 14; Sch 3 cl 2(1)(d)-(f)).
Vesting of assets, rights and liabilities: by Schedule 3, assets and rights vest in corporatised AGL without further conveyance, free of proprietors’ estates, liabilities become those of corporatised AGL, pending special rules for assets, rights or liabilities outside New South Wales (Sch 3 cl 2-4).

Current sections

Direct links to the current provisions in AGL Corporate Conversion Act 2002.

Part 1

Preliminary

Part 1 Preliminary

Name of Act

1 Name of Act

This Act is the AGL Corporate Conversion Act 2002.

Commencement

2 Commencement

This Act commences on the date of assent to this Act.

Objects

3 Objects

The objects of this Act are as follows—

(a) to constitute AGL as a body corporate under the law of New South Wales with a modern corporate structure,

(b) to authorise AGL, once incorporated, to apply to be registered as a public company limited by shares under the Corporations Act 2001 of the Commonwealth,

(c) to amend the Gas Industry Restructuring Act 1986 to remove the 5% limit on shareholdings in AGL on its registration as a public company and, pending the removal of that limit, to strengthen the provisions relating to the enforcement of that limit.

Definitions

4 Definitions

(1) In this Act—

AGL means the company of proprietors known by the name “The Australian Gas Light Company” that was originally established by the Australian Gas Light Company Act 1837.

AGL legislation means the legislation referred to in section 15 (1).

ASIC means the Australian Securities and Investments Commission.

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

ASX Listing Rule means a Listing Rule of the Australian Stock Exchange Limited.

board or managerial office has the same meaning as it has in section 9 of the Corporations Act 2001 of the Commonwealth.

company limited by shares means a body corporate, whose principle, or one of whose principles, is that the liability of its member or members is limited to the amount (if any) unpaid on the shares respectively held by the member or members.

compliance certificate means a certificate issued by the Minister under section 32 certifying that the provisions of this Act have been complied with concerning the transfer of corporatised AGL’s incorporation to the Corporations Act 2001 of the Commonwealth.

constitution means—

(a) in relation to AGL, the following—

(i) the AGL legislation,

(ii) the provisions of the Gas Industry Restructuring Act 1986 relating to AGL as in force at the relevant time before the conversion day,

(iii) any by-laws or resolutions relating to AGL made under that legislation or Act, and

(b) in relation to corporatised AGL, the constitution of corporatised AGL as in force from time to time, and

(c) in relation to registered AGL, the constitution of registered AGL as in force from time to time.

conversion day means the day specified by the Minister in a conversion order as the day on which AGL is to be constituted as a body corporate under this Act.

conversion order means an order made by the Minister under section 13 specifying a conversion day.

conversion resolution—see section 8.

Corporations legislation means the Corporations legislation to which Part 1.1A of the Corporations Act 2001 of the Commonwealth applies.

corporatised AGL means AGL after it is constituted as a body corporate under this Act.

instrument means an instrument (other than this Act or an instrument made under this Act) or any other document that creates, modifies or extinguishes rights or liabilities (or would do so if lodged, filed or registered in accordance with any law), and includes any judgment, order, process or other instrument issued by a court or tribunal.

Note—

The Interpretation Act 1987 provides that a reference in an Act to document means any record of information, and includes—

(a) anything on which there is writing, or

(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or

(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or

(d) a map, plan, drawing or photograph.

invalidity order—see section 11 (1).

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

matter includes act, omission, body, person or thing.

preserved resolution—see section 5.

proprietors of AGL means persons who are proprietors of AGL under the constitution of AGL.

registered AGL means corporatised AGL after it is registered as a public company limited by shares under Part 5B.1 of the Corporations Act 2001 of the Commonwealth.

registration day means the day on which corporatised AGL is registered as a public company limited by shares under Part 5B.1 of the Corporations Act 2001 of the Commonwealth.

Editorial note—

Registration day: 11.10.2002. For further information see the Australian Securities and Investments Commission website at http://www.asic.gov.au.

registration resolution—see section 9.

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

Secretary of AGL means the person holding office as the Secretary of AGL from time to time under the constitution of AGL.

(2) If this Act provides for an event or other thing to occur on the conversion day or registration day, that event or thing is taken to occur at the beginning of the day that is the conversion day or registration day. However, if the conversion day is the same day as the registration day, any event or other thing to occur on the registration day is taken to have occurred immediately after any event or other thing to occur on the conversion day.

(3) A reference in this Act to the Australian Gas Light Company Act 1837 is a reference to the Act passed in 1837 entitled “An Act for lighting with Gas the Town of Sydney in the Colony of New South Wales and to enable certain persons associated under the name style and firm of ‘The Australian Gas-light Company’ to sue and be sued in the name of the Secretary for the time being of the said Company and for other purposes therein mentioned”, as amended by subsequent Acts.

(4) Words and expressions used in this Act have the same meanings as in section 9 of the Corporations Act 2001 of the Commonwealth, except in so far as they are defined differently in this Act or the context or subject-matter otherwise indicates or requires.

(5) This Act is intended to have extraterritorial application in so far as the legislative powers of the State permit.

(6) Notes included in this Act do not form part of this Act.

s 4: Am 2023 No 7, Sch 3.2.

Preserved resolutions

5 Preserved resolutions

(1) In this Act—

consolidated published constitution means the publication entitled The Australian Gas Light Company: Constituent documents, ISBN 0-9580690-0-X, published by AGL in March 2002.

preserved resolution means any of the following resolutions of the proprietors of AGL that was in force under the constitution of AGL immediately before the conversion day—

(a) the resolution referred to in the consolidated published constitution as R1/1985 relating to non-executive directors’ retiring allowances,

(b) the resolution referred to in the consolidated published constitution as R5A/1987 relating to the AGL Management Share Plan,

(c) the resolution referred to in the consolidated published constitution as R1/1988 relating to the AGL Employee Share Plan,

(d) the resolution referred to in the consolidated published constitution as R8/1992 relating to the AGL Share Investment Plan,

(e) the resolution referred to in the consolidated published constitution as R3/1997 relating to the AGL Share Reward Plan,

(f) the resolution referred to in the consolidated published constitution as R4/1997 relating to the AGL Share Purchase Plan,

(g) the resolution referred to in the consolidated published constitution as R5/1997 relating to the AGL Share Loan Plan,

(h) the resolution referred to in the consolidated published constitution as R1/1998 relating to The Australian Gas Light Company Dividend Re-investment Plan,

(i) the resolution referred to in the consolidated published constitution as R1/2000 relating to remuneration of non-executive directors,

(j) such other resolutions of the proprietors of AGL as may be prescribed by the regulations.

(2) A regulation referred to in subsection (1) (j) may be made before, on or after the conversion day.

6

6 (Repealed)

Part 2

Overview of the corporatisation and registration of AGL as a public company

Part 2 Overview of the corporatisation and registration of AGL as a public company

Summary of the steps involved in corporatisation and registration of AGL as a company

7 Summary of the steps involved in corporatisation and registration of AGL as a company

(1) The conversion of AGL into an incorporated public company limited by shares will involve the following two steps—

Conversion of AGL into a body corporate

The first step will be to convert AGL into a body corporate under State law. Currently, AGL is an unincorporated company of proprietors that was originally established by the Australian Gas Light Company Act 1837.

Registration of corporatised AGL as a company

The second step will be to enable corporatised AGL to seek registration as a public company limited by shares under Part 5B.1 of the Corporations Act 2001 of the Commonwealth.

(2) The following is a summary of the steps involved in the conversion of AGL into a body corporate under State law—

Conversion resolution

The proprietors of AGL must pass a conversion resolution at a general meeting of AGL in accordance with Division 1 of Part 3 that approves both the conversion of AGL into a body corporate and a new constitution for that body corporate.

Order specifying conversion day

The Minister makes a conversion order under section 13 specifying the day on which AGL is to be constituted as a body corporate under this Act.

AGL constituted as body corporate

AGL will be constituted as a body corporate with the name “The Australian Gas Light Company” on the conversion day as provided by Part 4. Existing legislation relating to the constitution of AGL and related gas companies will be repealed on that day.

(3) The following is a summary of the steps involved in enabling corporatised AGL to be registered as a public company limited by shares under Part 5B.1 of the Corporations Act 2001 of the Commonwealth—

Registration resolution

The proprietors of AGL or the members of corporatised AGL must pass a registration resolution at a general meeting of AGL or corporatised AGL (as the case may be) in accordance with Division 2 of Part 3 that resolves that corporatised AGL be registered as a public company limited by shares under the Corporations Act 2001 of the Commonwealth.

Compliance certificate

The Minister issues a compliance certificate under section 32 to the effect that the provisions of this Act concerning the transfer of corporatised AGL’s incorporation have been complied with.

Application for registration as public company

Corporatised AGL makes an application to ASIC under Part 5B.1 of the Corporations Act 2001 of the Commonwealth to be registered as a public company limited by shares.

Registration as public company limited by shares

Corporatised AGL is registered by ASIC under Part 5B.1 of the Corporations Act 2001 of the Commonwealth as a public company limited by shares.

(4) This section does not affect the meaning or interpretation of any provision of this Act that it summarises.

Part 3

Conversion and registration resolutions

Part 3 Conversion and registration resolutions

Division 1

Conversion resolutions

Division 1 Conversion resolutions

What is a conversion resolution?

8 What is a conversion resolution?

(1) For the purposes of this Act, a conversion resolution is a resolution passed in accordance with this section by the proprietors of AGL at a general meeting of AGL that—

(a) resolves that AGL be constituted as a body corporate under this Act, and

(b) approves a constitution for AGL on its conversion into a body corporate.

(2) A constitution approved by a conversion resolution may contain any matter that could be included in the constitution of a public company limited by shares under the Corporations Act 2001 of the Commonwealth.

(3) A resolution is passed in accordance with this section only if—

(a) the resolution is passed by at least 50% of the votes cast by the proprietors of AGL (whether present in person or by proxy) who are eligible to vote at the general meeting, and

(b) subject to paragraph (a)—the general meeting at which the resolution is put is called and held in accordance with the constitution of AGL.

(4) A conversion resolution may form part of a composite resolution that, among other things (if any), includes a registration resolution.

(5) A conversion resolution may be expressed to be subject to such conditions as may be specified in the resolution. If a conversion resolution is subject to any such conditions, it does not have effect as a conversion resolution for the purposes of any provision of this Act (other than this section) until the conditions are satisfied.

(6) A resolution passed by the proprietors of AGL before the date of assent to this Act that would have been a conversion resolution for the purposes of this section if it had been in force at the time the resolution was passed is taken to be a conversion resolution for the purposes of this section.

(7) Nothing in this Act prevents a further proposal for the conversion of AGL into a body corporate being put to the proprietors of AGL if a previously proposed conversion resolution was not passed or was declared to be invalid by order of the Supreme Court under section 11.

Division 2

Registration resolutions

Division 2 Registration resolutions

What is a registration resolution?

9 What is a registration resolution?

(1) For the purposes of this Act, a registration resolution is a resolution passed in accordance with this section by the proprietors of AGL at a general meeting of AGL or by the members of corporatised AGL at a general meeting of corporatised AGL (as the case may be) that resolves that corporatised AGL be registered as a public company limited by shares under the Corporations Act 2001 of the Commonwealth.

(2) A resolution is passed in accordance with this section only if—

(a) the resolution is passed by at least 50% of the votes cast by the proprietors of AGL or members of corporatised AGL (whether present in person or by proxy) who are eligible to vote at the general meeting, and

(b) subject to paragraph (a)—the general meeting at which the resolution is put is called and held in accordance with the constitution of AGL or corporatised AGL (as the case may be).

(3) A registration resolution may, but need not, be passed at the same general meeting at which a conversion resolution is passed.

(4) A registration resolution may form part of a composite resolution that, among other things (if any), includes a conversion resolution.

(5) A registration resolution may be expressed to be subject to such conditions as may be specified in the resolution. If a registration resolution is subject to any such conditions, it does not have effect as a registration resolution for the purposes of any provision of this Act (other than this section) until the conditions are satisfied.

(6) The members of corporatised AGL will be taken on and after the conversion date to have consented to the transfer of corporatised AGL’s incorporation in accordance with the terms of a registration resolution passed by the proprietors of AGL unless a further resolution passed in accordance with this section revoking the registration resolution is passed by those members before the registration day.

Note—

Section 14 provides that corporatised AGL is a continuation of, and the same legal entity as, AGL. Also, section 18 (1) (b) provides that a person who, immediately before the conversion date, was a proprietor of AGL is taken to be a member of corporatised AGL.

(7) If a further resolution revoking a registration resolution is passed by the members of corporatised AGL as referred to in subsection (6), the registration resolution ceases to have effect as a registration resolution for the purposes of this Act.

(8) A resolution passed by the proprietors of AGL before the date of assent to this Act that would have been a registration resolution for the purposes of this section if it had been in force at the time the resolution was passed is taken to be a registration resolution for the purposes of this section.

(9) Nothing in this Act prevents a further proposal for a registration resolution being put to the proprietors of AGL or members of corporatised AGL if—

(a) a previously proposed registration resolution was not passed or was declared to be invalid by order of the Supreme Court under section 11, or

(b) an application for registration under Part 5B.1 of the Corporations Act 2001 of the Commonwealth was not made by corporatised AGL within the prescribed period applicable to the resolution under section 31.

Division 3

Judicial review of conversion and registration resolutions

Division 3 Judicial review of conversion and registration resolutions

Application of this Division

10 Application of this Division

This Division applies to the following resolutions (applicable resolutions)—

(a) any conversion resolution or purported conversion resolution,

(b) any registration resolution or purported registration resolution.

Irregularities concerning conversion and registration resolutions

11 Irregularities concerning conversion and registration resolutions

(1) Procedural irregularity does not invalidate resolution without court order An applicable resolution is not invalidated because of any procedural irregularity unless, on an application made under this section, the Supreme Court by order declares the resolution to be invalid (an invalidity order).

(2) Who may apply for invalidity order An application to the Supreme Court for an invalidity order under this section may be made only if no fewer than 200 persons who were eligible to vote at the meeting at which the applicable resolution was passed make the application.

(3) Time for application for order Such an application can only be made to the Supreme Court within—

(a) if the resolution was passed before the date of assent to this Act—the period of 7 days commencing on the date of assent to this Act, or

(b) if the resolution was passed on or after the date of assent to this Act—the period of one month commencing on the date of the passing of the resolution.

(4) Parties to an application The parties to any such application are as follows—

(a) the applicants,

(b) AGL or corporatised AGL (as the case may be),

(c) the Minister.

(5) When Supreme Court may make invalidity order The Supreme Court must not make an invalidity order unless it is of the opinion that—

(a) the irregularity was not, or was not the result of, an accidental omission or non-receipt of a notice required under the constitution of AGL or corporatised AGL (as the case may be), and

(b) the irregularity has caused or may cause substantial injustice.

(6) Supreme Court may enjoin Minister from making conversion order or issuing compliance certificate The Supreme Court may, of its own motion or on the application of a party to an application for an invalidity order in relation to an applicable resolution, make an order that enjoins the Minister from making a conversion order or issuing a compliance certificate (as the case may be) in relation to the resolution until the application for the invalidity order is determined by the Court.

(7) Minister may make conversion order or issue compliance certificate if not enjoined The Minister may make a conversion order or issue a compliance certificate in relation to an applicable resolution even if it is the subject of an application for an invalidity order, unless the Minister is enjoined from doing so under subsection (6). Any such order or certificate is to be treated in the proceedings for the invalidity order as having the same effect as it would have had if no application for the invalidity order had been made.

Note—

Section 13 (5) provides that a conversion order is conclusive evidence in any proceedings before a court or tribunal that all the requirements of this Act have been complied with concerning the conversion of AGL into a body corporate. Similarly, section 32 (4) provides that a compliance certificate is conclusive evidence in any proceedings before a court or tribunal that all the requirements of this Act have been complied with concerning the transfer of the incorporation of corporatised AGL to the Corporations Act 2001 of the Commonwealth as a public company limited by shares.

(8) Effect of invalidity order on conversion orders or compliance certificates If the Supreme Court makes an invalidity order in relation to an applicable resolution—

(a) in the case of a conversion resolution or purported conversion resolution—the Minister cannot make a conversion order in relation to the resolution, and

(b) in the case of a registration resolution or purported registration resolution—the Minister cannot issue a compliance certificate in relation to the resolution.

(9) Rules of court may be made Rules of court (not inconsistent with this Act or the regulations) may be made under the Supreme Court Act 1970 for the purposes of this section. This subsection does not limit the rule-making powers conferred by the Supreme Court Act 1970.

(10) Meaning of procedural irregularity In this section, a reference to a procedural irregularity includes a reference to—

(a) any defect, irregularity or deficiency of notice or time, and

(b) any miscalculation of voting entitlements.

Part 4

Conversion of AGL into body corporate

Part 4 Conversion of AGL into body corporate

AGL constituted as body corporate on conversion day

12 AGL constituted as body corporate on conversion day

(1) On the conversion day, AGL is constituted as a body corporate by this Act with the corporate name of “The Australian Gas Light Company”.

(2) The body corporate constituted by this Act is a company limited by shares.

Note—

This Part makes provision in relation to the corporate structure of corporatised AGL and its assets, rights and liabilities. It also applies certain provisions of the Corporations legislation to corporatised AGL as if it were a public company limited by shares.

Order specifying conversion day

13 Order specifying conversion day

(1) The Minister may, by order published in the Gazette, specify a day on which AGL is to be constituted as a body corporate under this Act (the conversion day).

Editorial note—

Day AGL specified to be constituted as a body corporate: 11.10.2002. See order published in Gazette No 163 of 4.10.2002, p 8622.

(2) The Minister may make an order under this section on the application of AGL only if the Minister is satisfied that—

(a) a conversion resolution has been passed by the proprietors of AGL in accordance with the provisions of this Act, and

(b) the period specified in section 11 for the making of an application for an invalidity order in respect of the resolution has expired, and

(c) an invalidity order has not been made by the Supreme Court under section 11 in respect of the resolution.

(3) The day specified in an order under this section must be no earlier than the day on which the order is published in the Gazette.

(4) An order under this section cannot be challenged, reviewed or called into question in proceedings before any court or tribunal.

(5) An order under this section is conclusive evidence in any proceedings before a court or tribunal that all the requirements of this Act have been complied with concerning the conversion of AGL into a body corporate.

(6) The Minister cannot make an order under this section in relation to a conversion resolution if the Minister is enjoined from doing so by the Supreme Court under section 11 (6).

Note—

Section 11 (7) provides that the Minister may make a conversion order in relation to a conversion resolution even if it is the subject of an application for an invalidity order, unless the Minister is enjoined from doing so under section 11 (6).

pt.4-div.2-sdiv.1

General

pt.4-div.2-sdiv.1 General

Subdivision 1 General

Corporatised AGL is continuation of AGL

14 Corporatised AGL is continuation of AGL

(1) Subject to the provisions of this Part and to the fullest extent possible, corporatised AGL is taken for all purposes, including the rules of private international law, to be a continuation of the same company, and the same legal entity, as AGL.

(2) Without limiting subsection (1), the conversion of AGL into a body corporate by this Act does not constitute a dissolution or termination of AGL. Accordingly, AGL is not required to wind up its affairs or pay its liabilities and distribute its assets as a result of the operation of this Act.

15

15 (Repealed)

pt.4-div.2-sdiv.2

Specific transitional matters

pt.4-div.2-sdiv.2 Specific transitional matters

Subdivision 2 Specific transitional matters

Assets, rights and liabilities of AGL taken to be assets, rights and liabilities of corporatised AGL

16 Assets, rights and liabilities of AGL taken to be assets, rights and liabilities of corporatised AGL

(1) The provisions of Schedule 3 apply to AGL’s assets, rights and liabilities on and from the conversion day.

Note—

Schedule 3 makes provision for AGL’s assets, rights and liabilities to become the assets, rights and liabilities of corporatised AGL.

(2) In this section—

AGL’s assets, rights and liabilities means—

(a) the assets of AGL—

(i) vested in the Secretary of AGL on behalf of AGL (whether under the AGL legislation or otherwise), or

(ii) purportedly vested in the name of AGL instead of the Secretary of AGL,

immediately before the conversion day, and

(b) any right or liability of AGL, and

(c) any right or liability enforceable by or against the Secretary of AGL under the AGL legislation or otherwise in his or her capacity as Secretary of AGL.

Note—

The AGL legislation provides for the real and personal property of AGL to be vested in the Secretary of AGL.

Preserved resolutions of AGL to continue to have effect after conversion day

17 Preserved resolutions of AGL to continue to have effect after conversion day

(1) Any preserved resolution continues to have effect on and after the conversion day as if it were a resolution of the members of corporatised AGL passed on the conversion day in relation to corporatised AGL, with such modifications as are necessary or that are prescribed by the regulations.

(2) A regulation referred to in subsection (1) may be made before, on or after the conversion day.

(3) If a regulation referred to in paragraph (j) of the definition of preserved resolution in section 5 (1) is made after the conversion day but before the registration day in relation to a resolution of the proprietors of AGL, subsection (1) is taken to have applied to that resolution on and from the conversion day.

(4) If a regulation modifying a preserved resolution referred to in subsection (1) is made after the conversion day but before the registration day, subsection (1) is taken to have applied to that resolution in its modified form on and from the conversion day.

(5) A preserved resolution has no effect to the extent to which it is inconsistent with this Act or any provision of the constitution of corporatised AGL.

(6) A preserved resolution may be varied or revoked by resolution of the members of corporatised AGL, subject to any applicable provisions of any law or the constitution of corporatised AGL.

Share capital and shareholdings in corporatised AGL

18 Share capital and shareholdings in corporatised AGL

(1) On the conversion day—

(a) subject to Schedule 4, the amount of share capital of corporatised AGL is taken to be the same as the total issued share capital of AGL immediately before the conversion day and the share capital is taken to be comprised of the same number of shares as AGL had on issue immediately before the conversion day, and

(b) a person who, immediately before the conversion day, was a proprietor of AGL is taken to be a member of corporatised AGL, and

(c) each person who, immediately before the conversion day, held shares in AGL under the constitution of AGL is taken to hold the same number of ordinary shares in corporatised AGL as the person held in AGL and is taken to have acquired them at the same time as the person acquired the shares in AGL, and

(d) any amount on any of the shares of AGL that was unpaid immediately before the conversion day is taken to be an amount that is unpaid on the corresponding shares in corporatised AGL, and

(e) the provisions of Schedule 4 have effect in relation to shares in AGL that had a par value immediately before the conversion day.

(2) This section has effect subject to the provisions of the constitution of corporatised AGL and Division 3.

Officers and employees of AGL taken to be officers and employees of corporatised AGL

19 Officers and employees of AGL taken to be officers and employees of corporatised AGL

(1) Any person who, immediately before the conversion day, was an officer of AGL is taken on and after that day—

(a) to hold the same, or the corresponding, office in corporatised AGL, and

(b) to hold that office on the same terms and conditions as the office the person held in AGL immediately before that day.

(2) Any person who, immediately before the conversion day, was an employee of AGL is taken on or after that day to be an employee of corporatised AGL on the same terms and conditions as under the person’s contract of employment with AGL immediately before that day.

(3) The terms and conditions of employment of any employee referred to in subsection (2) may, after the conversion day, be changed in the same way as they could have been before the conversion day.

(4) The service with AGL of an employee referred to in subsection (2) is taken to be service with corporatised AGL for all purposes and the employee’s accrued entitlements with AGL are taken to be accrued entitlements with corporatised AGL.

(5) An employee referred to in subsection (2) is not entitled to payment (including, without limitation, any payment in lieu of leave or any damages or other compensation, whether under legislation, contract or otherwise) arising out of, or resulting from, the operation of this Act.

(6) Nothing in this section affects the continued application of any industrial instrument under the Industrial Relations Act 1996 to the employment of an employee referred to in subsection (2).

Contracts and arrangements with AGL

20 Contracts and arrangements with AGL

(1) On and after the conversion day, corporatised AGL is entitled to the benefit and subject to the burden of, and taken to be a party to, any contract or arrangement entered into by AGL (or by a person on behalf of AGL) with any person and having force immediately before the conversion day.

(2) Nothing in this section limits the operation of section 19.

Construction of references to AGL and AGL legislation

21 Construction of references to AGL and AGL legislation

(1) On and after the conversion day, a reference in any instrument (other than the Gas Industry Restructuring Act 1986) to—

(a) AGL, or

(b) the Secretary of AGL (but only when acting on behalf of AGL),

is to be read as including a reference to corporatised AGL.

(2) A reference in any instrument (other than an Act or an instrument made under an Act) to any AGL legislation is to be read on and after the conversion day as including a reference to this Act.

(3) Nothing in this section limits the operation of clause 2 (1) (f) of Schedule 3.

Accounts of corporatised AGL

22 Accounts of corporatised AGL

(1) Subject to section 18 (1) (e) and Schedule 4, the financial position of corporatised AGL on the conversion day is taken to be the same as the financial position of AGL immediately before the conversion day.

(2) In particular, the following provisions must be applied when preparing or auditing any financial report (including any financial statement) of corporatised AGL on or after the conversion day or any economic entity of which corporatised AGL is the parent entity—

(a) corporatised AGL is to be treated on and after the conversion day as being the same entity as AGL immediately before the conversion day,

(b) the opening balances in the financial reports of corporatised AGL on the conversion day (if any such reports are prepared) are to be treated as being the same as the closing balances in the financial reports of AGL immediately before the conversion day,

(c) corporatised AGL is to be treated as being the parent entity of each economic entity of which AGL is the parent entity immediately before the conversion day, and the existence of that economic entity is to be treated as being continuous from immediately before the conversion day,

(d) the opening balances in the financial reports of each economic entity of which corporatised AGL is the parent entity on the conversion day (if any such reports are prepared) are to be treated as being the same as the closing balances in the financial reports of that entity immediately before the conversion day.

(3) The provisions of subsections (1) and (2) are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act 2001 of the Commonwealth in relation to the provisions of Chapter 2M of that Act.

Note—

Section 5G of the Corporations Act 2001 of the Commonwealth provides that if a State law declares a provision of a State law to be a Corporations legislation displacement provision, any provision of the Corporations legislation with which the State provision would otherwise be inconsistent does not apply to the extent necessary to avoid the inconsistency.

(4) In this section, the expressions economic entity, entity and parent entity have the same meanings as they have in Accounting Standard AASB 1024: Consolidated Accounts made by the Australian Accounting Standards Board (as in force from time to time).

Auditor of AGL

23 Auditor of AGL

The auditor of AGL immediately before the conversion day is taken to be the auditor of corporatised AGL on the conversion day.

Effect on proceedings

24 Effect on proceedings

Nothing in this Part renders defective any legal proceedings by or against AGL or its proprietors (whether or not those proceedings are commenced using the name of the Secretary of AGL).

Subdivision does not limit section 14

25 Subdivision does not limit section 14

Nothing in this Subdivision limits the generality of section 14.

Application of Corporations legislation concerning companies to corporatised AGL

26 Application of Corporations legislation concerning companies to corporatised AGL

(1) Application of section This section applies certain provisions of the Corporations legislation relating to companies to corporatised AGL as a matter of State law. These provisions will not extend to corporatised AGL as a law of the Commonwealth until corporatised AGL is registered as a company under the Corporations Act 2001 of the Commonwealth.

(2) Application of non-applicable provisions of Corporations legislation Subject to this Act, corporatised AGL is declared to be an applied Corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to the non-applicable Commonwealth provisions, subject to the following modifications—

(a) the non-applicable Commonwealth provisions apply to corporatised AGL as if it were a public company limited by shares,

(b) the constitution of corporatised AGL on the conversion day is the constitution approved by the conversion resolution,

(c) the members, share capital and shareholders of corporatised AGL on the conversion day are as provided by section 18 and Schedule 4,

(d) the auditor of corporatised AGL referred to in section 23 is taken to have been duly appointed at a general meeting of the members of corporatised AGL as its auditor on the conversion day for the purposes of section 327 of the Corporations Act 2001 of the Commonwealth,

(e) the financial position and financial reports of corporatised AGL on the conversion day are taken to be as specified in section 22,

(f) a benefit given to a person holding a board or managerial office in corporatised AGL on or after the conversion day in accordance with the terms of a preserved resolution is taken to be a benefit that has been approved under section 200E of the Corporations Act 2001 of the Commonwealth for the purposes of Division 2 of Part 2D.2 of that Act,

(g) any remuneration that is paid to a director of corporatised AGL on or after the conversion day in accordance with the terms of a preserved resolution is taken to have been determined by resolution of corporatised AGL for the purposes of section 202A of the Corporations Act 2001 of the Commonwealth (or any provision of the constitution of corporatised AGL dealing with the remuneration of directors),

(h) any financial assistance to acquire shares in corporatised AGL that is given by corporatised AGL on or after the conversion day in accordance with the terms of a preserved resolution is taken to be assistance that has been approved under section 260B of the Corporations Act 2001 of the Commonwealth,

(i) without limiting paragraph (h)—an employee share scheme approved by a preserved resolution is taken to be a scheme that has been duly approved for the purposes of section 260C (4) of the Corporations Act 2001 of the Commonwealth,

(j) AGL is not required to use the word “Limited” in its name despite anything to the contrary in Part 2B.6 of the Corporations Act 2001 of the Commonwealth,

(k) the non-applicable Commonwealth provisions have effect subject to the provisions of the Gas Industry Restructuring Act 1986 relating to corporatised AGL,

(l) such other modifications (within the meaning of Part 3 of the Corporations (Ancillary Provisions) Act 2001) as may be prescribed by the regulations.

Note—

Part 3 of the Corporations (Ancillary Provisions) Act 2001 provides for the application of provisions of the Corporations Act 2001 and Part 3 of the Australian Securities and Investments Commission Act 2001 of the Commonwealth as laws of the State in respect of any matter declared by a law of the State (whether with or without modification) to be an applied Corporations legislation matter for the purposes of that Part in relation to those Commonwealth provisions.

Section 14 (2) of the Corporations (Ancillary Provisions) Act 2001 ensures that a declaration made for the purposes of Part 3 of that Act only operates to apply a provision of the Corporations legislation to a matter as a law of the State if that provision does not already apply to the matter as a law of the Commonwealth. If a provision referred to in a declaration already applies as a law of the Commonwealth, nothing in the declaration will affect its continued operation as a law of the Commonwealth.

(3) Conferral of functions on ASIC The regulations may provide for ASIC to exercise a function under any provision of the Corporations legislation that is the subject of the declaration under subsection (2), but only if—

(a) ASIC is to exercise that function pursuant to an agreement of the kind referred to in section 11 (8) or (9A) (b) of the Australian Securities and Investments Commission Act 2001 of the Commonwealth, and

(b) ASIC is authorised to exercise that function under section 11 of the Australian Securities and Investments Commission Act 2001 of the Commonwealth.

(4) Effect of regulation under subsection (3) Section 17 of the Corporations (Ancillary Provisions) Act 2001 has effect in relation to a regulation under subsection (3) as if subsection (2) had expressly made provision for ASIC to exercise the functions concerned.

(5) When section ceases to apply Subsections (1)–(4) cease to apply to corporatised AGL on the registration day. However, nothing in this subsection affects the previous operation of this section in relation to corporatised AGL.

(6) Definitions In this section—

benefit means a benefit for the purposes of Division 2 of Part 2D.2 of the Corporations Act 2001 of the Commonwealth.

financial assistance means financial assistance for the purposes of Part 2J.3 of the Corporations Act 2001 of the Commonwealth.

non-applicable Commonwealth provisions means provisions of the Corporations legislation that would apply to corporatised AGL or any other matter as a law of the Commonwealth if corporatised AGL were registered as a public company limited by shares under the Corporations Act 2001 of the Commonwealth.

Application of certain ASX Listing Rules to corporatised AGL

27 Application of certain ASX Listing Rules to corporatised AGL

(1) Corporatised AGL is authorised to (and may) issue or agree to issue shares in corporatised AGL despite anything to the contrary in ASX Listing Rule 7.1 if, assuming the following, the issue or agreement would not have contravened that Rule on the day it occurred—

(a) the members of corporatised AGL passed all of the preserved resolutions that were still in force by operation of section 17 at the time of the issue or agreement,

(b) the date on which each such preserved resolution was passed by the members of corporatised AGL was the date on which each resolution was originally passed by the proprietors of AGL,

(c) without limiting section 14, corporatised AGL was the same company of proprietors as AGL.

(2) Corporatised AGL is authorised to pay remuneration payable to non-executive directors of corporatised AGL and its wholly owned subsidiaries in accordance with any preserved resolution despite anything to the contrary in ASX Listing Rule 10.17 if, assuming the following, the payment would not have contravened that Rule on the day it occurred—

(a) the members of corporatised AGL passed the resolution on the date on which the resolution was originally passed by the proprietors of AGL,

(b) without limiting section 14, corporatised AGL was the same company of proprietors as AGL.

(3) The provisions of subsections (1) and (2) are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act 2001 of the Commonwealth in relation to the provisions of sections 793B and 793C of the Corporations Act 2001 of the Commonwealth.

Note—

Section 5G of the Corporations Act 2001 of the Commonwealth provides that if a State law declares a provision of a State law to be a Corporations legislation displacement provision, any provision of the Corporations legislation with which the State provision would otherwise be inconsistent does not apply to the extent necessary to avoid the inconsistency.

(4) Subsections (1)–(3) cease to apply to corporatised AGL on the registration day. However, nothing in this subsection affects the previous operation of this section in relation to corporatised AGL.

Corporatised AGL authorised to issue public documents and negotiable instruments with AGL’s existing ARBN

28 Corporatised AGL authorised to issue public documents and negotiable instruments with AGL’s existing ARBN

(1) Corporatised AGL is authorised to publish or sign in any place any public document or negotiable instrument even if the document or instrument does not comply with section 601DE (1) (b) of the Corporations Act 2001 of the Commonwealth if—

(a) the expression “Australian Registered Body Number” or “ARBN” followed by AGL’s existing ARBN is set out instead of the information specified by section 601DE (1) (b), and

(b) the other provisions of section 601DE are complied with.

(2) Subsection (1) is declared to be a Corporations legislation displacement provision for the purposes of section 5G of the Corporations Act 2001 of the Commonwealth in relation to the provisions of section 601DE of that Act.

Note—

Section 5G (4) of the Corporations Act 2001 of the Commonwealth provides that a provision of the Corporations legislation does not—

(a) prohibit the doing of an act, or

(b) impose a liability (whether civil or criminal) for doing an act,

if a provision of a law of a State or Territory specifically authorises or requires the doing of that act.

However, section 5G (3) of that Act provides that section 5G will only apply to a provision of a law of a State or Territory enacted after the commencement of that Act if a law of the State or Territory declares the provision to be a Corporations legislation displacement provision for the purposes of that section.

(3) Subsections (1) and (2) cease to apply to corporatised AGL on the registration day. However, nothing in this subsection affects the previous operation of this section in relation to corporatised AGL.

(4) In this section, AGL’s existing ARBN means the ARBN of AGL immediately before the conversion day.

29

29 (Repealed)

Changes to corporate structure of corporatised AGL permitted

30 Changes to corporate structure of corporatised AGL permitted

Nothing in this Part prevents corporatised AGL on or after the conversion day from—

(a) altering or replacing its constitution, or

(b) changing its corporate name, or

(c) appointing or removing an auditor, or

(d) altering its share capital, or

(e) removing or appointing officers, or

(f) dismissing or employing employees, or

(g) otherwise altering its corporate structure,

in accordance with the provisions of the Corporations legislation applicable to it by virtue of this Division or otherwise.

Part 5

Registration of corporatised AGL as a public company

Part 5 Registration of corporatised AGL as a public company

Corporatised AGL may apply to be registered as a public company under Corporations Act 2001

31 Corporatised AGL may apply to be registered as a public company under Corporations Act 2001

(1) Corporatised AGL may apply to ASIC for corporatised AGL to be registered under Part 5B.1 of the Corporations Act 2001 of the Commonwealth as a public company limited by shares, but only if a compliance certificate is issued by the Minister.

(2) AGL may make an application for the purposes of subsection (1) if the registration resolution in respect of which the compliance certificate is issued was passed by the proprietors of AGL rather than the members of corporatised AGL. In that event, corporatised AGL is taken to have made the application on the conversion date.

(3) An application under subsection (1) must be made—

(a) subject to subsection (4), in accordance with the provisions of section 601BC of the Corporations Act 2001 of the Commonwealth, and

(b) within the prescribed period applicable to the registration resolution.

(4) Corporatised AGL is authorised to make an application under subsection (1) without stating the information specified in section 601BC (2) (e), (l) or (m) of the Corporations Act 2001 of the Commonwealth.

(5) Subsection (4) is declared to be a Corporations legislation displacement provision for the purposes of section 5G of the Corporations Act 2001 of the Commonwealth in relation to the provisions of section 601BC of that Act.

Note—

Section 5G (4) of the Corporations Act 2001 of the Commonwealth provides that a provision of the Corporations legislation does not—

(a) prohibit the doing of an act, or

(b) impose a liability (whether civil or criminal) for doing an act,

if a provision of a law of a State or Territory specifically authorises or requires the doing of that act.

However, section 5G (3) of that Act provides that section 5G will only apply to a provision of a law of a State or Territory enacted after the commencement of that Act if a law of the State or Territory declares the provision to be a Corporations legislation displacement provision for the purposes of that section.

(6) For the purposes of section 601BC (8) (d) of the Corporations Act 2001 of the Commonwealth, corporatised AGL is authorised by this Act to transfer its incorporation in accordance with this Act.

(7) In this section—

prescribed period, in relation to a registration resolution, means—

(a) if the resolution was passed before the date of assent to this Act (and except as provided by paragraph (c))—the period of 12 months commencing on the date of assent to this Act (or such other period as may be prescribed by the regulations, whether before or after the 12 month period expires), or

(b) if the resolution is passed on or after the date of assent to this Act (and except as provided by paragraph (c))—the period of 12 months (or such other period as may be prescribed by the regulations, whether before or after the resolution is passed or before or after the 12 month period expires) commencing on the day on which the resolution is passed, or

(c) if an application for an invalidity order under section 11 is duly made but is refused or withdrawn after the end of the period referred to in paragraph (a) or (b) that is applicable to the resolution—the period of one month commencing on the date on which the application is finally determined or withdrawn (as the case may be).

Minister may issue compliance certificate

32 Minister may issue compliance certificate

(1) The Minister may issue a compliance certificate to AGL or corporatised AGL that certifies that the provisions of this Act have been complied with concerning the transfer of the incorporation of corporatised AGL to the Corporations Act 2001 of the Commonwealth if the Minister is satisfied that—

(a) a registration resolution has been passed, and

(b) the period specified in section 11 for the making of an application for an invalidity order in respect of the resolution has expired, and

(c) an invalidity order has not been made by the Supreme Court under section 11 in respect of the resolution.

(2) The Minister is to provide ASIC with a copy of the compliance certificate issued under this section as soon as practicable after it is issued to AGL or corporatised AGL. However, a failure to provide such a copy does not affect the validity of the certificate.

(3) A compliance certificate issued under this section cannot be challenged, reviewed or called into question in proceedings before any court or tribunal.

(4) A compliance certificate issued under this section is conclusive evidence in any proceedings before a court or tribunal that all the requirements of this Act have been complied with concerning the transfer of the incorporation of corporatised AGL to the Corporations Act 2001 of the Commonwealth as a public company limited by shares.

(5) The Minister cannot issue a certificate under this section in relation to a registration resolution if the Minister is enjoined from doing so by the Supreme Court under section 11 (6).

Note—

Section 11 (7) provides that the Minister may issue a compliance certificate in relation to a registration resolution even if it is the subject of an application for an invalidity order, unless the Minister is enjoined from doing so under section 11 (6).

Registered AGL is continuation of corporatised AGL

33 Registered AGL is continuation of corporatised AGL

(1) Section 601BM of the Corporations Act 2001 of the Commonwealth makes provision for the legal consequences of the registration of a body corporate as a company under Part 5B.1 of that Act.

Note—

Section 601BM of the Corporations Act 2001 of the Commonwealth provides that the registration of a body as a company under Part 5B.1 of that Act does not—

(a) create a new legal entity, or

(b) affect the body’s existing property, rights or obligations (except as against the members of the body in their capacity as members), or

(c) render defective any legal proceedings by or against the body or its members.

(2) A reference in any instrument to corporatised AGL (including a reference to corporatised AGL arising from the operation of section 21) is to be read on and after the registration day as including a reference to registered AGL.

Part 4 of Gas Industry Restructuring Act 1986 ceases to have effect on registration day

34 Part 4 of Gas Industry Restructuring Act 1986 ceases to have effect on registration day

(1) The provisions of Part 4 (other than section 56A) of the Gas Industry Restructuring Act 1986 cease to apply on the registration day in relation to matters arising on or after that day.

(2) Section 30 of the Interpretation Act 1987 is taken to apply to subsection (1) in the same way as it would have applied to subsection (1) if it had repealed the provisions of Part 4 of the Gas Industry Restructuring Act 1986.

Note—

Section 30 of the Interpretation Act 1987 provides that the repeal of an Act or statutory rule does not, among other things, affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule or affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule.

(3) Without limiting subsection (2), nothing in subsection (1) prevents the continued application to matters arising before the registration day of any provisions of Part 4 of the Gas Industry Restructuring Act 1986 relating to compliance or enforcement.

(4) The Governor may, by proclamation published on the NSW legislation website, repeal Part 4 of the Gas Industry Restructuring Act 1986 on or after the registration day.

s 34: Am 2009 No 56, Sch 4.3.

Registered AGL is authorised to use existing name

35 Registered AGL is authorised to use existing name

(1) Registered AGL is authorised to use the name “The Australian Gas Light Company” as its corporate name without the word “Limited” being included in that name.

(2) Nothing in subsection (1) prevents registered AGL from changing its name in accordance with the provisions of the Corporations Act 2001 of the Commonwealth to include the word “Limited” in its name.

(3) Subsection (1) has effect for only so long as registered AGL retains the name “The Australian Gas Light Company”.

(4) Subsection (1) is declared to be a Corporations legislation displacement provision for the purposes of section 5G of the Corporations Act 2001 of the Commonwealth in relation to the provisions of Part 2B.6 of that Act.

Note—

Section 5G (6) of the Corporations Act 2001 of the Commonwealth provides that the provisions of Part 2B.6 and Part 5B.3 of that Act (which relate to the use of names) do not—

(a) prohibit a company or other body from using a name if the use of the name is expressly provided for, or authorised by, a provision of a law of a State or Territory, or

(b) require a company or other body to use a word as part of its name if the company or body is expressly authorised not to use that word by a provision of a law of a State or Territory.

However, section 5G (3) of that Act provides that section 5G will only apply to a provision of a law of a State or Territory enacted after the commencement of that Act if a law of the State or Territory declares the provision to be a Corporations legislation displacement provision for the purposes of that section.

Registered AGL authorised to issue public documents and negotiable instruments with AGL’s existing ARBN

36 Registered AGL authorised to issue public documents and negotiable instruments with AGL’s existing ARBN

(1) Registered AGL is authorised to publish or sign in any place any public document or negotiable instrument even if the document or instrument does not comply with section 153 (2) of the Corporations Act 2001 of the Commonwealth if—

(a) the expression “Australian Registered Body Number” or “ARBN” followed by AGL’s existing ARBN is set out instead of the expression “Australian Company Number” followed by its ACN as specified by section 153 (2) of the Corporations Act 2001 of the Commonwealth and the other provisions of section 153 are complied with, or

(b) AGL’s existing ARBN is set out instead of its ACN as specified by section 153 (2) of the Corporations Act 2001 of the Commonwealth and the other provisions of section 153 are complied with.

(2) Without limiting subsection (1), registered AGL is authorised to set out AGL’s existing ARBN instead of its ACN in its annual returns under section 348 of the Corporations Act 2001 of the Commonwealth.

(3) Subsections (1) and (2) are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act 2001 of the Commonwealth in relation to—

(a) in the case of subsection (1)—the provisions of section 153 (2) of that Act, and

(b) in the case of subsection (2)—the provisions of section 348 of that Act.

Note—

Section 5G (4) of the Corporations Act 2001 of the Commonwealth provides that a provision of the Corporations legislation does not—

(a) prohibit the doing of an act, or

(b) impose a liability (whether civil or criminal) for doing an act,

if a provision of a law of a State or Territory specifically authorises or requires the doing of that act.

However, section 5G (3) of that Act provides that section 5G will only apply to a provision of a law of a State or Territory enacted after the commencement of that Act if a law of the State or Territory declares the provision to be a Corporations legislation displacement provision for the purposes of that section.

(4) Subsection (1) (a) and, to the extent that it relates to that paragraph, subsection (3) cease to have effect on the expiry of the period of 2 years commencing on the registration day. However, nothing in this subsection affects the previous operation of this section.

(5) In this section, AGL’s existing ARBN means the ARBN of AGL immediately before the conversion day.

Certain preserved resolutions continue in effect after registration day

37 Certain preserved resolutions continue in effect after registration day

(1) Any preserved resolution (other than a preserved resolution that is revoked by the members of corporatised AGL before the registration day) that continues in force under section 17 immediately before the registration day continues to have effect on and after the registration day as if it were a resolution of the members of registered AGL passed on the registration day in relation to registered AGL, with such modifications as are necessary or that are prescribed by the regulations.

(2) A regulation referred to in subsection (1) may be made before, on or after the registration day.

(3) If a regulation referred to in paragraph (j) of the definition of preserved resolution in section 5 (1) is made after the registration day in relation to a resolution of the proprietors of AGL, subsection (1) is taken to have applied to that resolution on and from the registration day.

(4) If a regulation modifying a preserved resolution referred to in subsection (1) is made after the registration day, subsection (1) is taken to have applied to that resolution in its modified form on and from the registration day.

(5) A preserved resolution to which subsection (1) applies may be varied or revoked by resolution of the members of registered AGL, subject to any applicable provisions of any law or the constitution of registered AGL.

(6) Subsection (1) ceases to apply to any preserved resolution that is revoked on or after the registration day.

Certain benefits and financial assistance given by registered AGL under a preserved resolution authorised

38 Certain benefits and financial assistance given by registered AGL under a preserved resolution authorised

(1) Registered AGL is authorised on and after the registration day to give a person holding a board or managerial office in relation to registered AGL a benefit in accordance with the terms of any preserved resolution to which section 37 (1) applies.

(2) Registered AGL is authorised to pay remuneration to a director of registered AGL on or after the registration day in accordance with the terms of any preserved resolution to which section 37 (1) applies.

(3) Registered AGL is authorised to give financial assistance to a person to acquire shares in registered AGL on or after the registration day in accordance with the terms of any preserved resolution to which section 37 (1) applies (including any assistance given in accordance with the terms of any employee share scheme approved by any such resolution).

(4) Subsections (1), (2) and (3) are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act 2001 of the Commonwealth in relation to—

(a) in the case of subsection (1)—the provisions of Part 2D.2 of that Act, and

(b) in the case of subsection (2)—the provisions of Part 2D.3 of that Act, and

(c) in the case of subsection (3)—the provisions of Part 2J.3 of that Act.

Note—

Section 5G (4) of the Corporations Act 2001 of the Commonwealth provides that a provision of the Corporations legislation does not—

(a) prohibit the doing of an act, or

(b) impose a liability (whether civil or criminal) for doing an act,

if a provision of a law of a State or Territory specifically authorises or requires the doing of that act.

However, section 5G (3) of that Act provides that section 5G will only apply to a provision of a law of a State or Territory enacted after the commencement of that Act if a law of the State or Territory declares the provision to be a Corporations legislation displacement provision for the purposes of that section.

(5) In this section—

benefit means a benefit for the purposes of Division 2 of Part 2D.2 of the Corporations Act 2001 of the Commonwealth.

financial assistance means financial assistance for the purposes of Part 2J.3 of the Corporations Act 2001 of the Commonwealth.

Application of certain ASX Listing Rules to registered AGL

39 Application of certain ASX Listing Rules to registered AGL

(1) Registered AGL is authorised to (and may) issue or agree to issue shares in registered AGL despite anything to the contrary in ASX Listing Rule 7.1 if, assuming the following, the issue or agreement would not have contravened that Rule on the day it occurred—

(a) the members of registered AGL passed all of the preserved resolutions to which section 37 (1) applies that were still in force at the time of the issue or agreement,

(b) the date on which each such preserved resolution was passed by the members of registered AGL was the date on which each resolution was originally passed by the proprietors of AGL,

(c) without limiting sections 14 and 33, registered AGL was the same company of proprietors as AGL.

(2) Registered AGL is authorised to pay remuneration payable to non-executive directors of registered AGL and its wholly owned subsidiaries in accordance with any preserved resolution to which section 37 (1) applies despite anything to the contrary in ASX Listing Rule 10.17 if, assuming the following, the payment would not have contravened that Rule on the day it occurred—

(a) the members of registered AGL passed the resolution on the date on which the resolution was originally passed by the proprietors of AGL,

(b) without limiting sections 14 and 33, registered AGL was the same company of proprietors as AGL.

(3) The provisions of subsections (1) and (2) are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act 2001 of the Commonwealth in relation to the provisions of sections 793B and 793C of the Corporations Act 2001 of the Commonwealth.

Note—

Section 5G of the Corporations Act 2001 of the Commonwealth provides that if a State law declares a provision of a State law to be a Corporations legislation displacement provision, any provision of the Corporations legislation with which the State provision would otherwise be inconsistent does not apply to the extent necessary to avoid the inconsistency.

Auditor and accounts of registered AGL

40 Auditor and accounts of registered AGL

(1) The auditor of corporatised AGL immediately before the registration day continues to be the auditor of registered AGL on the registration day.

(2) Registered AGL is authorised to hold the first annual general meeting that occurs after the registration day without at that meeting appointing a person or persons, firm or firms, or a person or persons and a firm or firms, as auditor or auditors of the company.

(3) The auditor of registered AGL referred to in subsection (1) is authorised to hold office until death or removal or resignation from office in accordance with section 329 of the Corporations Act 2001 of the Commonwealth or until ceasing to be capable of acting as auditor by reason of section 324 (1) or (2) of that Act.

(4) Subsections (2) and (3) are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act 2001 of the Commonwealth in relation to the provisions of section 327 of that Act.

Note—

Section 5G (4) of the Corporations Act 2001 of the Commonwealth provides that a provision of the Corporations legislation does not—

(a) prohibit the doing of an act, or

(b) impose a liability (whether civil or criminal) for doing an act,

if a provision of a law of a State or Territory specifically authorises or requires the doing of that act.

However, section 5G (3) of that Act provides that section 5G will only apply to a provision of a law of a State or Territory enacted after the commencement of that Act if a law of the State or Territory declares the provision to be a Corporations legislation displacement provision for the purposes of that section.

(5) Nothing in this Part affects the continued application of section 22 to the financial position and financial reports of corporatised AGL after it becomes registered AGL.

Use of amount standing to credit of share premium reserve

41 Use of amount standing to credit of share premium reserve

(1) Registered AGL is authorised on and after the registration day to use an amount of share capital equal to the amount standing to the credit of AGL’s share premium reserve immediately before the conversion day referred to in clause 6 of Schedule 4 in accordance with the provisions of that clause.

(2) Subsection (1) is declared to be a Corporations legislation displacement provision for the purposes of section 5G of the Corporations Act 2001 of the Commonwealth in relation to the provisions of sections 254K and 256D of the Corporations Act 2001 of the Commonwealth.

Note—

Section 5G (4) of the Corporations Act 2001 of the Commonwealth provides that a provision of the Corporations legislation does not—

(a) prohibit the doing of an act, or

(b) impose a liability (whether civil or criminal) for doing an act,

if a provision of a law of a State or Territory specifically authorises or requires the doing of that act.

However, section 5G (3) of that Act provides that section 5G will only apply to a provision of a law of a State or Territory enacted after the commencement of that Act if a law of the State or Territory declares the provision to be a Corporations legislation displacement provision for the purposes of that section.

Exclusion of Corporations legislation that applies to registered AGL as federal law

42 Exclusion of Corporations legislation that applies to registered AGL as federal law

(1) Application of section This section enables the regulations to exclude the operation of provisions of the Corporations legislation that would otherwise apply to registered AGL (or a matter relating to registered AGL) as a law of the Commonwealth.

(2) Declarations under section 5F of Corporations Act 2001 The regulations may declare any matter relating to registered AGL (other than a declared matter) to be an excluded matter for the purposes of section 5F of the Corporations Act 2001 of the Commonwealth in relation to—

(a) the whole of the Corporations legislation, or

(b) a specified provision of that legislation, or

(c) that legislation other than a specified provision, or

(d) that legislation otherwise than to a specified extent.

Note—

Section 5F of the Corporations Act 2001 of the Commonwealth provides that if a State law declares a matter to be an excluded matter for the purposes of that section in relation to all or part of the Corporations legislation of the Commonwealth, the provisions that are the subject of the declaration will not apply in relation to that matter in the State concerned.

(3) Declarations under section 5G of Corporations Act 2001 The regulations may declare any provision of this Act relating to registered AGL (other than a declared provision) to be a Corporations legislation displacement provision for the purposes of section 5G of the Corporations Act 2001 of the Commonwealth (either generally or specifically in relation to a provision of the Corporations legislation).

Note—

Section 5G of the Corporations Act 2001 of the Commonwealth provides that if a State law declares a provision of a State law to be a Corporations legislation displacement provision, any provision of the Corporations legislation with which the State provision would otherwise be inconsistent does not apply to the extent necessary to avoid the inconsistency.

(4) Definitions In this section—

declared matter means a matter that is declared to be an excluded matter for the purposes of section 5F of the Corporations Act 2001 of the Commonwealth by another provision of this Act.

declared provision means a provision of this Act that is declared to be a Corporations legislation displacement provision for the purposes of section 5G of the Corporations Act 2001 of the Commonwealth by another provision of this Act.

Part 6

Miscellaneous

Part 6 Miscellaneous

Regulations

43 Regulations

The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.

Effect of this Act on contracts, instruments and related matters

44 Effect of this Act on contracts, instruments and related matters

The operation of this Act (and, in particular, Schedule 3) is not to be regarded as—

(a) a breach of contract or confidence or otherwise as a civil wrong, or

(b) a breach of any instrument (including, without limitation, any provision prohibiting, restricting or regulating the assignment or transfer of assets or liabilities), or

(c) an event of default under any contract or other instrument, or

(d) giving rise to any remedy by a party to a contract or other instrument, or as causing or permitting the termination of, or exercise of rights under, any contract or other instrument.

Exemption from State tax

45 Exemption from State tax

(1) In this section—

exempt matter means any of the following—

(a) the conversion of AGL into a body corporate by operation of this Act,

(b) the vesting in corporatised AGL on the conversion day of any assets by operation of this Act, including, without limitation, any instrument executed only for a purpose ancillary to or consequential on the operation of Schedule 3,

(c) the conferring or imposition on corporatised AGL on the conversion day of any rights or liabilities by operation of this Act, including, without limitation, any instrument executed only for a purpose ancillary to or consequential on the operation of Schedule 3,

(d) the registration of corporatised AGL as a company under Part 5B.1 of the Corporations Act 2001 of the Commonwealth,

(e) such other matters in connection with this Act as may be prescribed by the regulations.

State tax means application or registration fees, stamp duty or any other tax, duty, fee or charge imposed by any Act or law of the State.

(2) State tax is not payable in relation to—

(a) an exempt matter, or

(b) anything done because of, or for a purpose connected with or arising out of, an exempt matter.

46

46 (Repealed)

Savings, transitional and other provisions

47 Savings, transitional and other provisions

Schedule 6 has effect.

Schedule 1

Schedules 1, 2 (Repealed)

sch 1: Rep 2003 No 82, Sch 3.

sch 2: Rep 2011 No 62, Sch 5.

Schedule 3

Existing assets, rights and liabilities to belong to corporatised AGL

Schedule 3 Existing assets, rights and liabilities to belong to corporatised AGL

(Section 16 (1))

Schedule 4

Provisions relating to par value shares on or after conversion day

Schedule 4 Provisions relating to par value shares on or after conversion day

(Sections 18 (1) (e), 26 (2) (c) and 41)

Schedule 5

Schedule 5 (Repealed)

sch 5: Rep 2003 No 82, Sch 3.

Schedule 6

Savings, transitional and other provisions

Schedule 6 Savings, transitional and other provisions

(Section 47)

Source text: opening excerpt

Sourced from legislation.nsw.gov.au, CC BY 4.0.

Part 1 Preliminary

1 Name of Act

This Act is the AGL Corporate Conversion Act 2002.

2 Commencement

This Act commences on the date of assent to this Act.

3 Objects

The objects of this Act are as follows—

(a) to constitute AGL as a body corporate under the law of New South Wales with a modern corporate structure,

(b) to authorise AGL, once incorporated, to apply to be registered as a public company limited by shares under the Corporations Act 2001 of the Commonwealth,

(c) to amend the Gas Industry Restructuring Act 1986 to remove the 5% limit on shareholdings in AGL on its registration as a public company and, pending the removal of that limit, to strengthen the provisions relating to the enforcement of that limit.

4 Definitions

(1) In this Act—

AGL means the company of proprietors known by the name “The Australian Gas Light Company” that was originally established by the Australian Gas Light Company Act 1837.

AGL legislation means the legislation referred to in section 15 (1).

ASIC means the Australian Securities and Investments Commission.

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

ASX Listing Rule means a Listing Rule of the Australian Stock Exchange Limited.

board or managerial office has the same meaning as it has in section 9 of the Corporations Act 2001 of the Commonwealth.

company limited by shares means a body corporate, whose principle, or one of whose principles, is that the liability of its member or members is limited to the amount (if any) unpaid on the shares respectively held by the member or members.

This section gives a practical step-by-step compliance checklist tied directly to the statutory provisions. It is procedure-led and designed for corporate counsel, company secretaries, and external advisers working on conversion and registration.

Plan the proprietors’ meetings and resolutions
- Draft the conversion resolution in the form required by s 8: it must resolve that AGL be constituted as a body corporate under the Act and approve the new constitution on conversion (s 8(1)(a)-(b)). The constitution passed may contain anything permitted for a public company (s 8(2)).
- Arrange meeting notice and conduct in strict conformity with the pre-conversion constitution because the Act makes holding meetings in accordance with the constitution a condition for the resolution’s validity (s 8(3)(b); s 9(2)(b)). Ensure proxies and voting entitlements are calculated correctly to avoid procedural irregularity (s 11(10)).
- For registration, prepare a registration resolution in accordance with s 9. Note that a conversion and registration resolution may be part of a composite resolution or passed at the same meeting (s 8(4); s 9(3)-(4)). Keep minutes and evidence of procedural compliance.
Manage the timing and potential invalidity applications
- Record the date of any passed resolution and ensure the statutory challenge windows are observed: for resolutions passed before assent, an invalidity application window is seven days from assent; for those after assent, one month from the passing of the resolution (s 11(3)). If litigation risk exists, coordinate with counsel early because the applicant pool requires 200 eligible voters (s 11(2)).
- If an invalidity application is anticipated, be ready to apply for or to respond to any ex parte or inter partes injunctions enjoining the Minister (s 11(6)).
Prepare constitutional and register materials
- Prepare the conversion constitution noting that it may include any matter allowable under the Corporations Act for a public company limited by shares (s 8(2)). Ensure transitional clauses align with Schedule 4 for par-value share conversions and Sch 3 for asset vesting (s 18; Sch 4).
- Document the share conversion register entries in accordance with s 18 and Sch 4 rules: parties are to be treated as holding the same number of ordinary shares and with the same acquisition dates; unpaid amounts carry across (s 18(1)(a)-(d); Sch 4 cl 3-4).
Coordinate with the Minister and obtain conversion order
- After a valid conversion resolution and the expiry of the s 11 challenge period with no invalidity order, apply to the Minister for a conversion order. The Minister may make the order if satisfied of s 13(2) preconditions (s 13(1)-(2)); the order must be published in the Gazette (s 13(1), (3)). Be aware that once made, the order is conclusive evidence of compliance (s 13(5)) and not subject to court challenge (s 13(4)), except for the s 11 enjoinment mechanism.
Implement the asset, contract and employee transitions
- Use the Schedule 3 vesting mechanics: no assignment steps are required for asset vesting (Sch 3 cl 2(1)(a)), but maintain records; prepare to confirm vesting by ministerial notice if advisable (Sch 3 cl 3). For assets outside NSW, coordinate with the former Secretary/registrars to effect transfers or to manage the statutory bare trust arrangement and trustee appointment mechanisms (Sch 3 cl 4).
- Communicate to employees that their contracts and service are continuous and accrued entitlements carry over (s 19(2)-(4)), while noting s 19(5) denies entitlement to payments arising solely from operation of the Act.
Prepare financial reporting and audit continuity
- Treat corporatised AGL as the same reporting entity for opening balances (s 22(1)-(2)); prepare opening consolidated balances accordingly and document continuity from the pre-conversion financial reports. Apply s 22’s requirements for auditors and accounts (s 22(2)-(3)). Ensure the existing auditor is engaged to continue (s 23; s 40(1)-(3)).
Obtain compliance certificate and apply to ASIC
- After passing a valid registration resolution and expiry of the s 11 challenge period (with no invalidity order), apply to the Minister for a compliance certificate under s 32(1). Once issued, the Minister will provide a copy to ASIC (s 32(2)). The compliance certificate is conclusive evidence (s 32(4)) and non-reviewable (s 32(3)).
- Submit the application to ASIC for registration under Part 5B.1 of the Corporations Act within the prescribed period applicable to the registration resolution (s 31(1), (3)). Note that the Act authorises omitting certain information ordinarily required by s 601BC(2)(e), (l) or (m) of the Corporations Act (s 31(4)). Confirm the exact ASIC filing requirements (s 31(3)-(4)).
Manage ASX/market and naming issues
- If corporatised/registered AGL intends to issue shares or pay directors in a manner that would otherwise conflict with ASX Listing Rules, document the preserved resolutions and the statutory assumptions required under s 27 and s 39 so the company relies on the State-law authorisations properly.
- Consider whether to retain the historical name without “Limited”: s 35 authorises registered AGL to use “The Australian Gas Light Company” without “Limited” while retaining that name; if a name change is desired the company may change it under the Corporations Act (s 35(1)-(2)).
Address share-premium and capital uses
- On conversion day the share premium reserve becomes share capital (Sch 4 cl 5). After registration, registered AGL is authorised to use amounts standing to the credit of the share premium reserve for the purposes in Sch 4 cl 6; s 41 confirms this authorisation and declares it a s 5G displacement provision. Ensure board approvals and accounting treatments reflect Sch 4 cl 6 authorised uses.
Use regulatory powers and record keeping

Anticipate regulations under s 43 and Schedule 6 that may modify preserved resolutions or provide transitional saving provisions. Keep contemporaneous records of meetings, minutes, voting entitlements, ministerial applications and all notices to ASIC to support the conclusive effect of ministerial instruments.

Taxation compliance

Take advantage of the State tax exemption in s 45 for registered or conversion-related instruments and filings; however verify whether any Commonwealth or external-jurisdiction taxes or fees apply.

Engage counsel early

Engage corporate counsel to review preserved resolutions, the draft constitution, ASX implications, and to advise on risk of procedural irregularity claims under s 11, especially because of the high bar to challenge and the potential finality of ministerial certificates.

This checklist is a direct procedural map from the Act’s provisions (ss 8-13; ss 18, 19, 20; ss 22-23; ss 26, 27, 28; ss 31-33; Schs 3-4). Practitioners should map each statutory step to documentary evidence, Board minutes and ministerial submissions to reduce operational and legal risk in the short transition window before registration occurs.