The Act authorises and streamlines sale, vesting and corporate conversion of State electricity generation assets, concentrating broad implementation and certification powers in the Treasurer and directing sale proceeds into the Restart NSW Fund (subject to Treasurer‑approved deductions).
It affects public agencies, buyers and employees: it preserves certain employment entitlements and temporary job guarantees, limits State liability and remedies for the transactions, and shifts commercial and legal risk onto purchasers while reducing transactional and regulatory frictions.
Mechanically, the Electricity Generator Assets (Authorised Transactions) Act 2012 authorises the transfer, by a variety of legal mechanisms, of assets, rights and liabilities that constitute electricity generator assets belonging to NSW statutory generators. The Act authorises transfers to the private sector (s 4) and transfers between public sector agencies (s 5). It authorises multiple facilitating instruments and corporate forms: transaction State owned corporations (transaction SOCs) (s 8 and Sch 2), transaction companies (s 9 and Sch 3), and the Electricity Assets Ministerial Holding Corporation (s 12). It also establishes a statutory vesting mechanism (Schedule 4) by which assets, rights and liabilities are vested in transferees by order of the Treasurer without the need for conventional conveyancing formalities (Sch 4 cl 2-3).
The Act prescribes what happens to sale proceeds: transaction proceeds belong to the State and must be paid into the Restart NSW Fund (s 6(1)-(2)), subject to deductions authorised by the Treasurer to repay debt, reimburse tax or satisfy liabilities and expenses arising from a transaction (s 6(3)-(5)). The Treasurer is given broad, express functions to exercise all powers necessary or convenient for authorised transactions (s 7). Those powers include the ability to create transaction SOCs by Governor’s order (s 8), to establish transaction companies or convert electricity generators into companies (s 9; Sch 3), and to give directions to public sector agencies to grant or modify licences and authorisations required for a new operator (s 18).
Employment and staffing are addressed in detail. The Treasurer may transfer employees between public sector agencies (s 14). Transfer payments to employees who leave the public sector as a consequence of a sale are permitted but capped at the equivalent of 30 weeks of base salary (s 15). Eligible employees transferred to private employers benefit from an employment guarantee for a specified period (normally two years for permanent employees) with limited exceptions (s 16). The Treasurer must take steps to ensure at least 150 apprenticeships are maintained under the employment guarantee terms (s 16(4)).
Current sections
Direct links to the current provisions in Electricity Generator Assets (Authorised Transactions) Act 2012.
(1) This Act commences on the date of assent, except as provided by subsection (2).
(2) Schedule 5 (Ownership restrictions in floated transaction companies) commences on a day to be appointed by proclamation.
3
Interpretation—key definitions
3 Interpretation—key definitions
3 Interpretation—key definitions
In this Act—
authorised transaction means a transfer of electricity generator assets authorised by Part 2.
electricity generator means a statutory State owned corporation constituted by the Energy Services Corporations Act 1995 as an electricity generator under that Act.
electricity generator assets means assets, rights and liabilities of an electricity generator.
Note—
Schedule 1 contains other interpretative provisions.
Part 2
Authorised transfers of electricity generator assets
Part 2 Authorised transfers of electricity generator assets
Part 2 Authorised transfers of electricity generator assets
4
Transfer of electricity generator assets to private sector
4 Transfer of electricity generator assets to private sector
4 Transfer of electricity generator assets to private sector
This Act authorises the transfer of electricity generator assets to the private sector.
5
Transfer of electricity generator assets between public sector agencies
5 Transfer of electricity generator assets between public sector agencies
5 Transfer of electricity generator assets between public sector agencies
This Act authorises the transfer of electricity generator assets between public sector agencies.
6
Proceeds of transaction
6 Proceeds of transaction
6 Proceeds of transaction
(1) The proceeds of the transfer of electricity generator assets pursuant to an authorised transaction (the transaction proceeds) belong to and are payable directly to the State.
(2) The transaction proceeds paid to the State are to be paid into the Restart NSW Fund (the Fund) established under the Restart NSW Fund Act 2011.
(3) The following deductions are authorised to be made from the transaction proceeds—
(a) deduction of such amounts as the Treasurer approves to repay debt and satisfy other liabilities of a public sector agency in respect of electricity generator assets transferred for the purposes of an authorised transaction,
(b) deduction of such amounts as the Treasurer approves to reimburse public sector agencies for payments made by them in respect of any tax, duty, fee or charge imposed by any Act or law of the State or any other jurisdiction in connection with a transaction arrangement,
(c) deduction of such amounts as the Treasurer approves to satisfy any liability of a public sector agency arising under or in connection with a transaction arrangement,
(d) deduction of such amounts as the Treasurer approves to meet expenses reasonably incurred by public sector agencies for the purposes of an authorised transaction.
(4) The transaction proceeds do not include any amount certified by the Treasurer to have been paid to a public sector agency as a tax, duty, fee or charge imposed by any Act or law of the State in connection with a transaction arrangement.
(5) The deductions authorised to be made from the transaction proceeds may be made before payment of the transaction proceeds into the Fund or may be made by payment from the Fund.
(6) The requirements of this section do not affect the validity of a transaction arrangement.
Part 3
Facilitating authorised transactions
Part 3 Facilitating authorised transactions
Part 3 Facilitating authorised transactions
7
Treasurer’s functions for the purposes of an authorised transaction
7 Treasurer’s functions for the purposes of an authorised transaction
7 Treasurer’s functions for the purposes of an authorised transaction
The Treasurer has and may exercise all such functions as are necessary or convenient for the purposes of an authorised transaction. The functions conferred on the Treasurer by any other provision of this Act do not limit the Treasurer’s functions under this section.
8
Transaction SOCs
8 Transaction SOCs
8 Transaction SOCs
(1) A statutory State owned corporation may be established under this Act as a transaction SOC for the purposes of an authorised transaction.
(2) The Governor may by order published in the Gazette—
(a) create a corporation under a corporate name specified in the order, and
(b) specify the functions of the corporation, and
(c) direct that the corporation is established as a statutory State owned corporation and as a transaction SOC.
(3) On the day on which the order takes effect—
(a) a corporation is constituted with the corporate name and functions specified in the order, and
(b) the State Owned Corporations Act 1989 is amended by inserting in Schedule 5 the corporate name specified in the order (to establish the corporation as a statutory State owned corporation under that Act), and
(c) the State owned corporation thereby established is a transaction SOC for the purposes of this Act.
(4) The portfolio Minister of a SOC established under this section is the Minister administering section 13 (Creation of additional energy services corporations) of the Energy Services Corporations Act 1995.
(5) Schedule 2 has effect with respect to a transaction SOC. The provisions of that Schedule are in addition to and (except to the extent to which that Schedule otherwise provides) do not derogate from the provisions of the State Owned Corporations Act 1989.
9
Transaction companies
9 Transaction companies
9 Transaction companies
(1) The Treasurer may for the purposes of an authorised transaction establish, or direct the establishment of, companies as transaction companies in any of the following ways—
(a) the formation or acquisition by or on behalf of the State or a SOC of a company limited by shares, so that all the issued shares in the company are held by or on behalf of the State or a SOC (or both),
(b) the formation or acquisition of a company as a wholly owned subsidiary company of a transaction company,
(c) the conversion of an electricity generator or transaction SOC into a company limited by shares as provided by Schedule 3.
(2) A transaction company that is a public sector agency may be converted from one kind of company to any other kind of company.
(3) Except by express agreement with the Treasurer—
(a) a transaction company is not and does not represent the State, and
(b) the debts, liabilities and obligations of a transaction company are not guaranteed by the State.
(4) The Treasurer may act for or on behalf of the State, a SOC or a transaction company that is a public sector agency in connection with the rights, privileges and benefits, and the duties, liabilities and obligations of the State, a SOC or transaction company as the holder of shares or other securities in a transaction company.
(5) Shares and other securities in a transaction company that is a public sector agency may be issued, sold or transferred in accordance with the directions of the Treasurer. The Treasurer may on behalf of the State, a SOC or a transaction company that is a public sector agency enter into and carry out transaction arrangements for the issue, sale or transfer of shares and other securities in a transaction company.
(6) An electricity generator that becomes a transaction company remains an electricity generator for the purposes of this Act (despite ceasing to be a statutory State owned corporation constituted by the Energy Services Corporations Act 1995).
10
Functions of electricity generators and transaction entities
10 Functions of electricity generators and transaction entities
10 Functions of electricity generators and transaction entities
(1) Each electricity generator and transaction entity has and may exercise all such functions as are necessary or convenient for the purposes of an authorised transaction.
(2) The functions conferred by this section are in addition to any other functions that an electricity generator or transaction entity has apart from this section and those other functions do not prevent or otherwise limit the exercise of the additional functions conferred by this section.
(3) The Treasurer may act for or on behalf of an electricity generator or transaction entity in the exercise of any of its functions for the purposes of an authorised transaction while it is a public sector agency.
11
Direction and control of electricity generators and transaction entities
11 Direction and control of electricity generators and transaction entities
11 Direction and control of electricity generators and transaction entities
(1) Each electricity generator and transaction entity is subject to the direction and control of the Treasurer in the exercise of any of its functions for the purposes of an authorised transaction while it is a public sector agency.
(2) The Treasurer may give directions for the purposes of an authorised transaction to an electricity generator or transaction entity, and to the directors and other officers of an electricity generator or transaction entity. Any such directions must be complied with by the electricity generator, the transaction entity or the directors or other officers concerned.
(3) Directions to a transaction entity (or its directors and other officers) can only be given and are only required to be complied with while the transaction entity is a public sector agency.
(4) The power to give directions under this section extends to directions with respect to the way in which an electricity generator or transaction entity is to conduct its business and other affairs.
(5) Action taken by an electricity generator or transaction SOC to comply with a direction of the Treasurer under this Act does not require the approval of the voting shareholders or portfolio Minister of the corporation.
(6) Anything done or omitted to be done by a director or other officer of an electricity generator or transaction entity in complying with a direction given by the Treasurer under this Act does not subject the director or officer personally to any action, liability, claim or demand.
(7) The provisions of this section are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act in relation to the provisions of the Corporations legislation generally.
12
Establishment of Electricity Assets Ministerial Holding Corporation
12 Establishment of Electricity Assets Ministerial Holding Corporation
12 Establishment of Electricity Assets Ministerial Holding Corporation
(1) There is constituted by this Act a corporation with the corporate name of the Electricity Assets Ministerial Holding Corporation.
(2) The affairs of the Corporation are to be managed by the Treasurer who may authorise another Minister to exercise functions in relation to particular assets, rights and liabilities.
(3) Any act, matter or thing done in the name of, or on behalf of, the Corporation by the Treasurer or a Minister authorised by the Treasurer, or with the authority of the Treasurer or any such Minister, is taken to have been done by the Corporation.
(4) The Corporation has the functions conferred or imposed on it by or under this or any other Act.
(5) The functions of the Corporation are—
(a) to hold, on behalf of the Crown, electricity generator assets acquired by it or transferred to it by or under this or any other Act, and
(b) to carry on any activities or business that relate to any electricity generator assets held by it, including demanding, collecting and receiving charges, levies, rates and fees, and
(c) such other functions for the purposes of an authorised transaction as may be prescribed by the regulations.
Part 4
Arrangements for transfer of assets, staff and functions
Part 4 Arrangements for transfer of assets, staff and functions
Part 4 Arrangements for transfer of assets, staff and functions
13
Vesting orders
13 Vesting orders
13 Vesting orders
The Treasurer may make vesting orders under Schedule 4 for the purposes of an authorised transaction.
14
Staff transfers
14 Staff transfers
14 Staff transfers
(1) The Treasurer may, for the purposes of an authorised transaction, by order in writing, transfer the employment of an employee of an electricity generator (a transferred employee) to the employment of another public sector agency.
(2) A transferred employee is (until other provision is duly made under any Act or law) to be employed in accordance with any relevant statutory provisions, awards, agreements and determinations that would have applied to the employee had the employee remained an employee of the electricity generator concerned.
(3) On the transfer by order under this section of an employee’s employment from one employer (the current employer) to another employer (the new employer) the following provisions have effect—
(a) the employee is entitled to continue as a contributor, member or employee for the purposes of any superannuation scheme in respect of which he or she was a contributor, member or employee (as an employee of the current employer) immediately before the transfer of employment and remains so entitled subject to any variation to that entitlement made either by agreement or otherwise in accordance with law,
(b) the new employer is taken to be an employer for the purposes of any superannuation scheme in respect of which the employee continues as a contributor, member or employee pursuant to an entitlement under this section,
(c) the continuity of the employee’s contract of employment is taken not to have been broken by the transfer of employment, and service of the employee with the current employer (including service deemed to be service with the current employer) that is continuous service up to the time of transfer is taken for all purposes to be service with the new employer,
(d) the employee retains any rights to sick leave, annual leave or long service leave accrued or accruing immediately before the transfer (except accrued leave for which the employee has, on ceasing to be an employee of the current employer, been paid the monetary value in pursuance of any other entitlement of the employee).
(4) The Treasurer may negotiate and enter into agreements or industrial instruments concerning workplace relations for or on behalf of a public sector agency in connection with the operation of this section.
15
Payments to employees leaving public sector employment
15 Payments to employees leaving public sector employment
15 Payments to employees leaving public sector employment
(1) The Treasurer or another public sector agency may enter into agreements or other arrangements with respect to the making of transfer payments to employees of an electricity generator in connection with the transfer of employment of those employees to employment in the private sector as a result of a transaction arrangement.
(2) A transfer payment is not to exceed an amount equivalent to 30 weeks of pay at the rate of an employee’s base salary (that is, salary less any allowances).
(3) Without affecting any entitlement to a transfer payment under this section, an employee of an electricity generator is not entitled to receive any payment or other benefit (including in the nature of severance pay or redundancy compensation) merely because the employee ceased to be an employee of a public sector agency as a result of a transaction arrangement.
16
Employment guarantee for employees transferred to private sector and maintenance of apprenticeships
16 Employment guarantee for employees transferred to private sector and maintenance of apprenticeships
16 Employment guarantee for employees transferred to private sector and maintenance of apprenticeships
(1) If the employment of an eligible employee of an electricity generator is transferred to employment in the private sector as a result of a transaction arrangement, the employment of the employee cannot be terminated by the private sector employer during the employee’s employment guarantee period, except—
(a) for serious misconduct, or
(b) pursuant to the proper application of reasonable disciplinary procedures, or
(c) by agreement with the employee.
(2) An employee’s employment guarantee period is—
(a) for eligible employees who are permanent employees—the period of 2 years (the standard period) after the transfer date, or
(b) for eligible employees who are temporary employees—the remainder of the employee’s current term of employment (as specified in the arrangements under which the employee was engaged as a temporary employee) immediately before the transfer date, or the period of 2 years (the standard period) after the transfer date, whichever period ends first.
(3) The object of this subsection is to provide an additional job maintenance guarantee because the transfer of electricity generator assets under this Act is by way of sale. The standard period of 2 years is extended by an additional period of 2 years for eligible employees.
(4) The Treasurer is to take all reasonable steps to ensure that, under the transaction arrangements with all private sector employers, a total of at least 150 apprenticeships is maintained in the electricity generation businesses of those employers in NSW during any employment guarantee period under this section.
(5) In this section—
casual employee means an employee whose employment is in a category of employment that is described in or classified under a relevant award as casual employment or who is otherwise engaged as a casual employee.
contract employee means an employee whose terms and conditions of employment are provided by an individual contract and not by a relevant award.
eligible employee means a permanent employee or temporary employee and does not include a contract employee or casual employee.
permanent employee means an employee whose employment is of indefinite duration and who is not a casual employee, temporary employee or contract employee.
private sector employer means the employer in the private sector to whose employment the employment of an eligible employee is transferred as a result of a transaction arrangement.
relevant award means any award, agreement or other industrial instrument (under a law of the State or the Commonwealth) that provides for the terms and conditions of employment of employees.
temporary employee means an employee (other than a casual employee or contract employee) whose employment is in a category of employment that is described in or classified under a relevant award as temporary employment or whose employment is, under the terms of his or her employment, for a limited period.
transfer date means the date on which an eligible employee is transferred to employment in the private sector as a result of a transaction arrangement.
17
Effect of transfer of electricity generator assets between public sector agencies
17 Effect of transfer of electricity generator assets between public sector agencies
17 Effect of transfer of electricity generator assets between public sector agencies
(1) When the business of an electricity generator is transferred to another public sector agency for the purposes of an authorised transaction—
(a) the public sector agency becomes the new operator of the business and that business is to be conducted as the electricity business of the new operator, and
(b) the new operator is deemed to be an electricity generator for the purposes of this Act in respect of the business that comprises its electricity business as conducted by the new operator from time to time, but only while the new operator is a public sector agency and not in respect of any other business of the new operator, and
(c) the new operator has and may exercise all such functions as may be necessary or convenient for the purpose of the carrying on of its electricity business, and
(d) the new operator has the benefit of any relevant operating licence for the purpose of the carrying on of its electricity business, and
(e) a public sector agency responsible for the issue of any such relevant operating licence must, at the request of the new operator, re-issue the licence in the name of the new operator and subject to terms, conditions and endorsements that are the same (or to substantially the same effect) as those to which it was subject before its re-issue.
(2) If the business comprising the electricity business of the new operator is transferred to another public sector agency, this section also operates in respect of that transfer (and any further transfer for the purposes of an authorised transaction).
(3) This section applies to the transfer of part of, or an interest in, a business in the same way as it applies to a transfer of the whole business.
(4) In this section—
relevant operating licence, in relation to a transferred business of an electricity generator, means any licence, permit, entitlement, accreditation or other authority that was held by the electricity generator before the transfer and that is necessary or convenient for the carrying on of any aspect of the electricity business of the new operator.
18
Grant of relevant authorisations
18 Grant of relevant authorisations
18 Grant of relevant authorisations
(1) The Treasurer may give directions to a public sector agency for or with respect to the grant of any relevant authorisation to a person who becomes or who it is proposed will become the new operator of any electricity generator assets pursuant to an authorised transaction, including directions for or with respect to any of the following—
(a) requiring the grant of any such relevant authorisation without the necessity for the making or determination of any application,
(b) the displacement or modification of any provision of a relevant law in its application to the grant of any such relevant authorisation,
(c) the conditions or endorsements subject to which any such relevant authorisation is to be granted or that are to be attached to any such relevant authorisation.
(2) A direction may only be given under this section for the grant of a relevant authorisation that—
(a) operates to transfer or replace an existing relevant authorisation that is currently in force, and
(b) is subject to terms, conditions or endorsements that are the same (or to substantially the same effect) as those to which that existing relevant authorisation is subject.
(3) The Treasurer must consult with a public sector agency before giving a direction to the public sector agency under this section.
(4) A public sector agency exercising functions under a relevant law must comply with a direction of the Treasurer under this section.
(5) Anything done by an electricity generator in compliance with a condition or endorsement of a relevant authorisation in relation to electricity generator assets of which a person is the new operator is taken to have been done by the new operator for the purposes of any corresponding condition or endorsement of a relevant authorisation granted to the new operator pursuant to a direction under this section.
(6) A relevant authorisation granted to an electricity generator or to the new operator of electricity generator assets may not be suspended or cancelled on the ground of the conversion of the electricity generator or new operator to a company or on the ground of any change that has occurred in the officers or shareholders of the company as a result of that conversion or pursuant to a transaction arrangement.
(7) In this section—
grant includes issue and transfer.
new operator of electricity generator assets means—
(a) a public sector agency to which any electricity generator assets are transferred for the purposes of an authorised transaction, or
(b) a person (or the nominee of a person) in whom electricity generator assets are vested, or to whom electricity generator assets are transferred, pursuant to an authorised transaction.
relevant authorisation means a licence, permit, consent, entitlement, accreditation or other authorisation under a relevant law.
relevant law means any of the following Acts and any regulations or instruments under those Acts—
Acquisition of land by Electricity Assets Ministerial Holding Corporation
19 Acquisition of land by Electricity Assets Ministerial Holding Corporation
19 Acquisition of land by Electricity Assets Ministerial Holding Corporation
(1) The Electricity Assets Ministerial Holding Corporation may, for the purposes of an authorised transaction, acquire land (including an interest in land) by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991 that the Corporation determines to be—
(a) land on which electricity generator assets of an electricity generator were situated on the date of assent to this Act and continue to be situated, or
(b) land that on the date of assent to this Act was used or occupied by an electricity generator for or in connection with the exercise of any function of the electricity generator and that continues to be so used or occupied.
(2) In the case of land used (but not occupied) by an electricity generator for or in connection with the exercise of any function of the electricity generator, such as land used for the purposes of access, the power conferred by this section to acquire the land is limited to a power to acquire an interest in the land sufficient to allow that use of the land to continue.
(4) Land acquired by the Corporation pursuant to this section is deemed to be an asset of an electricity generator for the purposes of this Act and the Corporation is deemed to be an electricity generator for the purposes of this Act while it holds the land.
Note—
Land acquired pursuant to this section is an electricity generator asset for the purposes of an authorised transaction (whether or not it was an electricity generator asset before it was acquired).
Part 5
Operation of other laws
Part 5 Operation of other laws
Part 5 Operation of other laws
20
State taxes
20 State taxes
20 State taxes
(1) In this section—
relevant matter means any of the following—
(a) the transfer of electricity generator assets for the purposes of an authorised transaction,
(b) a vesting of assets, rights or liabilities by operation of Schedule 4 (Vesting of assets, rights and liabilities) and anything certified by the Treasurer as having been done in consequence of such a vesting (for example, the transfer or registration of an interest in land),
(c) the issue, disposal or purchase of shares or other securities in a company for the purposes of an authorised transaction,
(d) any matter connected with the corporate conversion of an electricity generator or transaction SOC for the purposes of an authorised transaction,
(e) such other matters for the purposes of an authorised transaction as may be prescribed by the regulations.
State tax means application or registration fees, duty under the Duties Act 1997 or any other tax, duty, fee or charge imposed by any Act or law of the State.
(2) State tax is not payable by a public sector agency in relation to a relevant matter.
(3) State tax is not payable by a person or body (other than a public sector agency) in relation to a relevant matter to such extent (if any) as the Treasurer may direct by order in writing, either generally or in a particular case.
(4) An order may be made by the Treasurer under this section before or after the liability to pay the State tax concerned accrues.
(5) The Treasurer must give a copy of an order under this section to the Chief Commissioner of State Revenue.
21
Management of electricity trading risks—competition exemption
21 Management of electricity trading risks—competition exemption
21 Management of electricity trading risks—competition exemption
(1) The following are specifically authorised by this Act for the purposes of the Competition and Consumer Act 2010 of the Commonwealth and the Competition Code of New South Wales—
(a) any agreement (including any electricity derivative agreement) entered into by an electricity generator or transaction entity in connection with the management of electricity trading risks and certified by the Treasurer for the purposes of this section to be an agreement entered into with the approval of or at the direction of the Treasurer,
(b) the conduct of the parties in negotiating and entering into any such agreement,
(c) the conduct of the parties (and of the successors, substitutes or assigns of the parties) in performing any such agreement.
(2) Anything authorised to be done by this section is authorised only to the extent (if any) that it would otherwise contravene Part IV of the Competition and Consumer Act 2010 of the Commonwealth or the Competition Code of New South Wales.
22
General relationship of Act with other State legislation
22 General relationship of Act with other State legislation
22 General relationship of Act with other State legislation
(1) None of the following provisions operate to prevent, restrict or otherwise limit the carrying out of a transaction arrangement or the exercise of a function for the purposes of an authorised transaction—
(2) In the event of any inconsistency between the provisions of this Act or the regulations and a provision of any other State legislation that is prescribed by the regulations as an inconsistent provision for the purposes of this section, the provisions of this Act or the regulations (as the case may be) prevail to the extent of the inconsistency.
(3) The requirements of any other Act (whether enacted before or after this Act) for the approval by resolution of either or both Houses of Parliament (or by Act) of any act that constitutes the transfer of electricity generator assets for the purposes of an authorised transaction is satisfied by the enactment of this Act.
23
Release of information by Auditor-General
23 Release of information by Auditor-General
23 Release of information by Auditor-General
Section 38 (Secrecy) of the Government Sector Audit Act 1983 does not apply to or in respect of a report or communication that the Treasurer authorises the Auditor-General to make to a person for the purposes of an authorised transaction.
s 23: Am 2018 No 70, Sch 4.28.
24
Contracts for sale of land
24 Contracts for sale of land
24 Contracts for sale of land
Section 52A (Contracts for sale of land) of the Conveyancing Act 1919 does not apply to a contract for the sale of land that is entered into for the purposes of an authorised transaction.
25
Protection of contractual and other obligations
25 Protection of contractual and other obligations
25 Protection of contractual and other obligations
(1) This section applies to the following—
(a) the operation of this Act (including any order under this Act and anything done or omitted to be done under or for the purposes of this Act),
(b) the transfer of electricity generator assets for the purposes of an authorised transaction,
(c) the entering into or performance of obligations under a transaction arrangement by a public sector agency,
(d) a disclosure of information by, on behalf of or with the consent of a public sector agency for the purposes of an authorised transaction.
(2) None of the matters or things to which this section applies are 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, rights or liabilities) or as requiring any act to be done under an instrument, or
(c) giving rise to any right or 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, or
(d) an event of default under any contract or other instrument, or
(e) giving rise to a breach of or an offence against a provision of an Act that prohibits or restricts the disclosure of information, or
(f) releasing a surety or other obligee wholly or in part from an obligation.
(3) Subsection (2) does not affect the rights and obligations of the parties to a transaction arrangement in respect of the performance of obligations under the transaction arrangement.
(4) In this section—
instrument means an instrument (other than 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.
26
Compensation not payable
26 Compensation not payable
26 Compensation not payable
(1) Compensation is not payable by or on behalf of the State—
(a) because of the enactment or operation of this Act, or for any consequence of that enactment or operation, or
(b) because of any statement or conduct relating to the enactment of this Act.
(2) This section does not extend to compensation payable under a transaction arrangement to a party to the transaction arrangement in connection with the performance of obligations under the transaction arrangement.
(3) In this section—
compensation includes damages or any other form of monetary compensation.
conduct includes any act or omission, whether unconscionable, misleading, deceptive or otherwise.
operation of this Act includes the operation of any notice or order under this Act and any agreement entered into under or for the purposes of this Act.
statement includes a representation of any kind—
(a) whether made verbally or in writing, and
(b) whether negligent, false, misleading or otherwise.
the State means the Crown within the meaning of the Crown Proceedings Act 1988, and includes a public sector agency and an officer, employee or agent of the Crown or a public sector agency.
Part 6
Miscellaneous
Part 6 Miscellaneous
Part 6 Miscellaneous
27
Delegation
27 Delegation
27 Delegation
The Treasurer may delegate to the Secretary of the Treasury, or to any other Public Service employee prescribed by the regulations, any function of the Treasurer under this Act except this power of delegation.
s 27: Am 2015 No 15, Sch 3.22 [1].
28
Act to bind State and other jurisdictions
28 Act to bind State and other jurisdictions
28 Act to bind State and other jurisdictions
(1) This Act binds the State and, in so far as the legislative power of the Parliament of New South Wales permits, the other States, the Territories and the Commonwealth.
(2) Without limiting subsection (1), this Act has effect despite any privilege or immunity of the Crown in any of its capacities.
(3) This Act does not make any State or Territory, the Commonwealth, or the Crown in any of its capacities, liable to be prosecuted for an offence.
(4) A reference in this section to a State, Territory or the Commonwealth includes a reference to the Government of the State, Territory or Commonwealth.
29
Extraterritorial operation of Act
29 Extraterritorial operation of Act
29 Extraterritorial operation of Act
(1) It is the intention of the Parliament of New South Wales that the operation of this Act should, as far as possible, include operation in relation to the following—
(a) things situated in or outside the territorial limits of the State,
(b) acts, transactions and matters done, entered into or occurring in or outside the territorial limits of the State,
(c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Act, be governed or otherwise affected by the law of another State, a Territory, the Commonwealth or a foreign country.
(2) Without limiting subsection (1), it is the intention of the Parliament of New South Wales that the provisions of this Act have an operation in relation to the things, acts, transactions and matters referred to in that subsection even if the rules of private international law (whether at general law or as provided by legislation) would require the application of a law other than this Act instead of the provisions of this Act.
30
Construction of Act and instruments so as not to exceed legislative power
30 Construction of Act and instruments so as not to exceed legislative power
30 Construction of Act and instruments so as not to exceed legislative power
(1) Unless a contrary intention appears, if a provision of this Act or an instrument made under this Act—
(a) would, apart from this section, have an invalid application, but
(b) also has at least one valid application,
it is the intention of the Parliament of New South Wales that the provision is not to have the invalid application, but is to have every valid application.
(2) Despite subsection (1), the provision is not to have a particular valid application if—
(a) apart from this section, it is clear, taking into account the provision’s context and the purposes or objects underlying this Act, that the provision was intended to have that valid application only if every invalid application, or a particular invalid application, of the provision had also been within the legislative power of the Parliament of New South Wales, or
(b) the provision’s operation in relation to that valid application would be different in a substantial respect from what would have been its operation in relation to that valid application if every invalid application, or a particular invalid application, of the provision had been within the legislative power of the Parliament of New South Wales.
(3) Subsection (2) does not limit the cases in which a contrary intention may be taken to appear for the purposes of subsection (1).
(4) This section is in addition to, and not in derogation of, section 31 of the Interpretation Act 1987.
(5) In this section—
application means an application in relation to—
(a) one or more particular persons, things, matters, places, circumstances or cases, or
(b) one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases.
invalid application, in relation to a provision, means an application because of which the provision exceeds the legislative power of the Parliament of New South Wales.
valid application, in relation to a provision, means an application which, if it were the provision’s only application, would be within the legislative power of the Parliament of New South Wales.
31
Certificate evidence
31 Certificate evidence
31 Certificate evidence
A certificate purporting to be signed by the Treasurer or an officer prescribed by the regulations certifying that an order specified or referred to in the certificate is an order made by the Treasurer under a specified provision of this Act is admissible in evidence in any legal proceedings and is evidence of the matters certified.
32
Service or giving of documents
32 Service or giving of documents
32 Service or giving of documents
(1) A document that is authorised or required by this Act or the regulations to be served on or given to any person may be served or given—
(a) in the case of a natural person—
(i) by delivering it to the person personally, or
(ii) by sending it by post to the address specified by the person for the giving or service of documents or, if no such address is specified, the residential or business address of the person last known to the person giving or serving the document, or
(iii) by sending it by facsimile transmission to the facsimile number of the person, or
(b) in the case of a body corporate—
(i) by leaving it with a person apparently of or above the age of 16 years at, or by sending it by post to, the head office, a registered office or a principal office of the body corporate or to an address specified by the body corporate for the giving or service of documents, or
(ii) by sending it by facsimile transmission to the facsimile number of the body corporate.
(2) Nothing in this section affects the operation of any provision of a law or of the rules of a court authorising a document to be served on a person in any other manner.
33
Regulations
33 Regulations
33 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.
Schedule 1
Interpretative provisions
Schedule 1 Interpretative provisions
Schedule 1 Interpretative provisions
(Section 3)
Schedule 2
Provisions concerning transaction SOCs
Schedule 2 Provisions concerning transaction SOCs
Schedule 2 Provisions concerning transaction SOCs
(Section 8)
sch 2: Am 2015 No 15, Sch 3.22 [2].
Schedule 3
Corporate conversion of electricity generators and transaction SOCs
Schedule 3 Corporate conversion of electricity generators and transaction SOCs
Schedule 3 Corporate conversion of electricity generators and transaction SOCs
(Section 9)
Schedule 4
Vesting of assets, rights and liabilities
Schedule 4 Vesting of assets, rights and liabilities
Schedule 4 Vesting of assets, rights and liabilities
(Section 13)
Schedule 5
Ownership restrictions in floated transaction companies
Schedule 5 Ownership restrictions in floated transaction companies
Schedule 5 Ownership restrictions in floated transaction companies
Schedule 6
Savings, transitional and other provisions
Schedule 6 Savings, transitional and other provisions
Schedule 6 Savings, transitional and other provisions
sch 6: Am 2017 No 17, Sch 4.25.
Schedule 7
Schedule 7
Schedule 7 (Repealed)
sch 7: Rep 1987 No 15, sec 30C.
Source text: opening excerpt
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
Part 1 Preliminary
1 Name of Act
1 Name of Act
1 Name of Act
This Act is the Electricity Generator Assets (Authorised Transactions) Act 2012.
2 Commencement
2 Commencement
2 Commencement
(1) This Act commences on the date of assent, except as provided by subsection (2).
(2) Schedule 5 (Ownership restrictions in floated transaction companies) commences on a day to be appointed by proclamation.
3 Interpretation—key definitions
3 Interpretation—key definitions
3 Interpretation—key definitions
In this Act—
authorised transaction means a transfer of electricity generator assets authorised by Part 2.
electricity generator means a statutory State owned corporation constituted by the Energy Services Corporations Act 1995 as an electricity generator under that Act.
electricity generator assets means assets, rights and liabilities of an electricity generator.
Note—
Schedule 1 contains other interpretative provisions.
Part 2 Authorised transfers of electricity generator assets
Part 2 Authorised transfers of electricity generator assets
Part 2 Authorised transfers of electricity generator assets
4 Transfer of electricity generator assets to private sector
4 Transfer of electricity generator assets to private sector
4 Transfer of electricity generator assets to private sector
This Act authorises the transfer of electricity generator assets to the private sector.
5 Transfer of electricity generator assets between public sector agencies
5 Transfer of electricity generator assets between public sector agencies
5 Transfer of electricity generator assets between public sector agencies
This Act authorises the transfer of electricity generator assets between public sector agencies.
6 Proceeds of transaction
6 Proceeds of transaction
6 Proceeds of transaction
The Act provides exemptions and modifications to other laws to facilitate transactions. It exempts State taxes for public sector agencies in relation to relevant matters and permits the Treasurer to direct tax relief for non-public sector persons (s 20). It disapplies certain audit secrecy provisions (s 23) and disapplies a Conveyancing Act provision dealing with contracts for sale of land in relation to contracts entered into for authorised transactions (s 24). It also protects public sector parties against civil claims that would otherwise follow disclosure, transfers or contract performance for the purposes of authorised transactions (s 25), and it excludes general compensation claims against the State for the enactment or operation of the Act (s 26).
For privatisations effected by an initial public offering of shares, Schedule 5 imposes temporary ownership restrictions and related compliance obligations: a maximum ownership level is prescribed by regulation (Sch 5 cl 1), companies must keep member registers in New South Wales unless the Treasurer approves otherwise (Sch 5 cl 6), and companies must keep and provide records and information under regulations (Sch 5 cl 7). Schedule 5 creates offences for acquisitions that create or increase a prohibited ownership situation (Sch 5 cl 3), places obligations on floated transaction companies to take reasonable steps to prevent contraventions (Sch 5 cl 4), and provides remedial powers and court orders to cure prohibited ownership situations (Sch 5 Part 4).
Enforcement and evidentiary mechanisms are also spelled out. The Act makes Treasurer certificates admissible as evidence (s 31) and, in some places, treats Treasurer or Treasurer-authorised determinations as conclusive (Sch 3 cl 2(3); Sch 4 cl 9). The Act also displaces or overrides some provisions of other State statutes to the extent necessary for authorised transactions (s 22).
Commencement mechanics: the Act started on assent except that Schedule 5 (ownership restrictions in floated transaction companies) comes into force by proclamation (s 2(1)-(2)). The Act is structured with Schedules containing interpretative rules, corporate conversion rules, vesting rules and ownership restrictions.
Main concepts
The Act builds around a small set of defined concepts that determine the Act’s scope and operational mechanics.
Authorised transaction: defined in s 3 as “a transfer of electricity generator assets authorised by Part 2.” That is the trigger for the Act’s special powers and exceptions. Schedule 1 further explains that for the purposes of the Act something is done for the purposes of an authorised transaction if it is done to effect or facilitate a sale or is ancillary to it (Sch 1 cl 2).
Electricity generator and electricity generator assets: an electricity generator is a statutory State owned corporation constituted by the Energy Services Corporations Act 1995 as an electricity generator (s 3). Electricity generator assets is a broad phrase covering assets, rights and liabilities of an electricity generator (s 3); Schedule 1 expands asset and rights definitions to include present or future legal or equitable estates, choses in action, documents and rights (Sch 1 cl 1).
Transaction SOC and transaction company: the Act allows a statutory SOC to be constituted as a transaction SOC by Governor’s order (s 8). The Treasurer may establish transaction companies in a variety of ways including forming companies limited by shares held by the State, forming subsidiaries, or converting an electricity generator into a company under Sch 3 (s 9). The Act distinguishes transaction entities (transaction SOCs and transaction companies) and grants them functions for the purposes of authorised transactions (s 10).
Transaction arrangement: defined in Sch 1 cl 1 as “a transaction, agreement or other arrangement entered into by or on behalf of a public sector agency for the purposes of an authorised transaction.” Transaction arrangements are the vehicles through which sale contracts, financing arrangements and management contracts are made.
Vesting order: a statutory mechanism in Schedule 4 by which the Treasurer may vest assets, rights and liabilities of a public sector agency in a transferee by order (Sch 4 cl 2-3). Vesting operates by operation of the Schedule so that assets vest without conveyance, rights and liabilities become those of the transferee, and pending proceedings are taken to be pending for or against the transferee (Sch 4 cl 3).
Corporate conversion: Schedule 3 allows corporate conversion of electricity generators into companies limited by shares by direction of the Treasurer (Sch 3 cl 1-3). The Treasurer must issue a certificate before registration under the Corporations Act and that certificate is stated to be conclusive and not challengeable (Sch 3 cl 2).
Proceeds and Restart Fund: transaction proceeds belong to and are payable directly to the State, and must be paid into the Restart NSW Fund (s 6(1)-(2)). The Treasurer may deduct amounts approved to repay debt or reimburse agencies, among other authorised deductions (s 6(3)-(5)).
Employment protections and payments: the Act establishes staff transfer rules preserving accrued leave and continuity (s 14), permits transfer payments up to 30 weeks of pay (s 15), and creates employment guarantees for eligible employees transferred into private employment with a standard two-year guarantee for permanent employees and specified protections for temporary employees (s 16).
Ownership restrictions for floated transaction companies: Schedule 5 imposes a temporary regime on companies whose assets are transferred by initial public offering. It sets a maximum ownership level (to be prescribed by regulation), creates a “prohibited ownership situation” if a person holds a stake above that level (Sch 5 cl 1-2), criminalises deliberate acquisitions that create or increase such situations (Sch 5 cl 3), requires companies to take reasonable steps to prevent contraventions (Sch 5 cl 4), and empowers courts to make remedial orders (Sch 5 cl 8).
Interaction and displacement concepts: the Act expressly states that provisions of other State legislation do not operate to prevent transactions (s 22(1)) and provides for its provisions to prevail to the extent of any inconsistency (s 22(2)). Several parts are also declared to be Corporations legislation displacement provisions for the purposes of the Corporations Act (s 11(7); Sch 5 cl 21).
These concepts set out a transaction architecture where the Treasurer centrally designs and controls conversion, vesting and disposal processes, while providing specified protections for employees and mechanisms to channel proceeds to the Restart NSW Fund.
Who it affects
Primary public actors and the State:
The Treasurer: the Act vests the Treasurer with wide functions to act for the purposes of authorised transactions (s 7). The Treasurer makes vesting orders (Sch 4 cl 2), issues certificates for corporate conversion (Sch 3 cl 2), gives directions for grant or modification of relevant authorisations (s 18), and may delegate functions subject to s 27. The Treasurer also approves permitted deductions from transaction proceeds (s 6(3)) and may direct tax relief orders (s 20(3)).
Public sector agencies and electricity generators: electricity generators (statutory SOCs under the Energy Services Corporations Act 1995) are the source of the assets to be transferred (s 3). Public sector agencies more generally are affected because certain taxes do not apply to them in relation to relevant matters (s 20(2)), and they must comply with Treasurer directions in relation to granting authorisations (s 18(4)) and with vesting orders (Sch 4). The Electricity Assets Ministerial Holding Corporation is created to hold assets on behalf of the Crown and to carry on activities relating to those assets (s 12).
Private sector actors:
Purchasers and new operators: private sector persons who acquire electricity generator assets are the recipients of vested assets and the new operators to whom relevant authorisations may be granted by direction (s 18). The Act permits transactions by sale, sale of a transaction entity, or share offers post-corporate conversion (Sch 1 cl 3).
Transaction companies and directors: companies established as transaction companies may start as public sector agencies and later be sold or floated; directors and persons concerned with management can be criminally liable under Schedule 5 where company contraventions occur and they knowingly authorised or permitted the contravention (Sch 5 cl 22). Transaction companies are not the State and their debts are not guaranteed by the State except by express agreement with the Treasurer (s 9(3)).
Employees and labour market participants:
Transferred employees: staff of electricity generators may be moved between public sector agencies by Treasurer order (s 14). Employees transferred into private sector employment are eligible for capped transfer payments (s 15) and for an employment guarantee for eligible employees (s 16). Casual and contract employees are explicitly excluded from the definition of eligible employee (s 16).
Regulatory and registration authorities:
Licensing and registration bodies: the Act enables directions that displace or modify relevant law application to the grant of authorisations (s 18(1)(b)), and requires registration authorities to accept certificates lodged in relation to vesting (Sch 4 cl 10). The Chief Commissioner of State Revenue is required to be given a copy of Treasurer orders under s 20(5).
Affected third parties and practitioners:
Creditors, counterparties and counterpart regulators: vesting orders transfer rights and liabilities and deem pending proceedings to be pending for or against transferees (Sch 4 cl 3), potentially changing who litigates and is liable. Protection clauses limit remedies against the State for enactment or operation of the Act (s 26), and s 25 exempts certain acts from being treated as breaches of contract or confidence when done for authorised transactions.
Market participants in floated offerings: under Schedule 5, investors and underwriters are affected by ownership restrictions, time-limited disregards for underwriting interests (Sch 5 cl 16(3)), obligations on member register location (Sch 5 cl 6), and record-keeping and disclosure regulations (Sch 5 cl 7). Failure to comply may attract criminal penalties (Sch 5 cl 3, 4, 6) and remedial court orders (Sch 5 cl 8).
Who pays and who decides:
The State receives transaction proceeds, paid into Restart NSW Fund (s 6(1)-(2)). The Treasurer decides major procedural and substantive elements of transactions, including vesting orders, corporate conversions, deductions from proceeds, tax relief orders, and directions to public sector agencies (s 7, s 6(3), s 20(3), s 18). Private sector buyers pay consideration under transaction arrangements but the Act states that the validity of transaction arrangements is not affected by the allocation of proceeds or deductions (s 6(6)).
Collectively, the Act centralises transactional authority in the Treasurer and reconfigures the legal identity of assets and liabilities through statutory vesting and conversion mechanisms, thereby affecting a wide range of public and private actors across commercial, regulatory and employment domains.
Key duties and rights
The Act imposes a set of duties on public sector agencies, transaction entities and floated companies and confers rights on transferees, employees and the Treasurer. Below are the principal duties and rights with section references.
Treasurer’s duties and powers:
Duty to exercise functions necessary for authorised transactions and power to make related directions (s 7). The Treasurer decides on vesting orders (Sch 4 cl 2), issues certificates authorising corporate conversion (Sch 3 cl 2), directs public sector agencies about authorisations (s 18), and may delegate most functions (s 27).
Public sector agency duties and compliance obligations:
Duty to comply with Treasurer directions on grant of relevant authorisations (s 18(3)-(4)). A public sector agency exercising functions under a relevant law must comply with Treasurer directions for grant or modification of a licence or other authorisation required by a new operator (s 18(4)). Section 22(1) states that provisions of State Owned Corporations Act, constitutions, and certain privatisation prohibitions do not prevent transaction arrangements.
Transaction entities and companies:
Transaction SOCs and transaction companies have functions necessary or convenient for authorised transactions (s 10). Transaction SOCs must have a board of directors and a chief executive officer arranged as specified in Sch 2 (Sch 2 cl 1-3). Transaction companies that are public sector agencies may be converted between company types (s 9(2)).
Directors’ and officers’ duties and liabilities:
Directors and officers must comply with Treasurer directions given under the Act when acting for purposes of authorised transactions (s 11(2)). Directors and other officers are protected from personal liability for actions taken to comply with Treasurer directions (s 11(6)). For offences under Schedule 5, directors or persons concerned in management are treated as having contravened if they knowingly authorised or permitted the contravention (Sch 5 cl 22).
Employees’ rights and employer obligations:
Staff transfers: the Treasurer may transfer employees between public sector agencies; transferred employees retain continuity of service, superannuation rights and accrued leave as specified (s 14(1)-(3)).
Transfer payments: the Treasurer or a public sector agency may enter into transfer payments to employees who leave for private sector employment, capped at the equivalent of 30 weeks’ pay (s 15(1)-(2)).
Employment guarantees: eligible employees (permanent or temporary, not contract or casual) who are transferred to the private sector have an employment guarantee for the standard period (two years for permanent employees) except for termination for serious misconduct, reasonable disciplinary procedures or by agreement (s 16(1)-(3)). The Treasurer must take reasonable steps to ensure at least 150 apprenticeships are maintained in electricity generation businesses during employment guarantee periods (s 16(4)).
Rights and entitlements of transferees:
Vesting: a vesting order vests assets in the transferee by operation of Sch 4 cl 3, without conveyance, and makes the transferee the holder of rights and liabilities (Sch 4 cl 3(a)-(d)). Pending proceedings relating to vested matters are taken to be proceedings by or against the transferee (Sch 4 cl 3(c)).
Relevant authorisations: the Treasurer may direct public sector agencies to grant relevant authorisations without the need for applications or determinations, or to displace or modify law in their application, but only to transfer or replace existing authorisations and subject to substantially the same terms (s 18(1)-(2)).
Financial rules:
Proceeds belong to the State and must be paid to the Restart NSW Fund (s 6(1)-(2)). The Treasurer may approve deductions from transaction proceeds to repay debt, reimburse tax or other liabilities, satisfy liabilities arising under transaction arrangements and meet expenses incurred by public sector agencies (s 6(3)). Amounts certified by the Treasurer to have been paid to a public sector agency as tax do not form part of transaction proceeds (s 6(4)).
Obligations on floated transaction companies:
Duty to prevent prohibited ownership situations: floated transaction companies must take all reasonable steps to ensure a prohibited ownership situation does not exist (Sch 5 cl 4(1)). A company that contravenes this duty commits an offence (Sch 5 cl 4(2)).
Register location: floated transaction companies must not locate any Member Register outside NSW without Treasurer approval (Sch 5 cl 6).
Record-keeping and information: regulations may require persons to keep records and provide information relevant to ownership matters; failure attracts a penalty (Sch 5 cl 7).
Protections, evidentiary and conclusive certificates:
The Treasurer’s certificates and determinations are given evidentiary and, where stated, conclusive effect. A certificate for corporate conversion is specified to be unchallengeable in proceedings (Sch 3 cl 2(3)), Treasurer determinations for vesting are conclusive (Sch 4 cl 9), and certificates purportedly signed by the Treasurer are admissible in evidence (s 31).
Limitations and exclusions:
The Act excludes compensation claims against the State for enactment or operation of the Act, except for compensation payable under a transaction arrangement (s 26). It also declares that certain Acts and provisions do not prevent transactions (s 22(1)) and that provisions of this Act prevail over prescribed inconsistent State legislation (s 22(2)).
These duties and rights create a framework where the Treasurer centrally structures transactions, transferees acquire assets by statutory operation, employees receive specified protections and transfers, and floated companies face temporary ownership and administrative constraints.
Penalties and enforcement
The Act establishes criminal penalties, civil remedies through court orders, injunctive relief, and administrative enforcement measures. Enforcement provisions and penalty levels are concentrated in Schedule 5 for floated transaction companies, supported by evidential and conclusive presumptions elsewhere in the Act.
Penalties in Schedule 5:
Acquisition offences: a person who acquires shares that cause a prohibited ownership situation, or increases an existing prohibited ownership situation, is guilty of an offence if they knew or were reckless as to the result (Sch 5 cl 3). The maximum penalty is 400 penalty units.
Corporate duty offence: a floated transaction company that fails to take all reasonable steps to prevent a prohibited ownership situation commits an offence with a maximum penalty of 500 penalty units (Sch 5 cl 4(2)). Clause 4(3) states that this is a strict liability offence.
Member register location: keeping a Member Register outside NSW or changing its location outside NSW without Treasurer approval is an offence carrying a maximum penalty of 500 penalty units (Sch 5 cl 6).
Record-keeping omissions: failure to keep records or provide information under regulations (if made) attracts a penalty of 50 penalty units (Sch 5 cl 7(5)).
Directors and management liability:
If a corporation contravenes a provision of the Schedule, each person who is a director or concerned in management is taken to have contravened if they knowingly authorised or permitted the contravention (Sch 5 cl 22(1)). Such persons may be prosecuted and convicted whether or not the corporation has been (Sch 5 cl 22(2)).
Court enforcement and remedial powers:
Supreme Court remedial orders: where a prohibited ownership situation exists, the company or the Treasurer may apply to the Supreme Court for orders the Court considers appropriate to ensure the situation ceases (Sch 5 cl 8(1)). The Court may order disposal of shares, restrain exercise of rights, prohibit or defer payments, or disregard exercises of rights attached to shares (Sch 5 cl 8(2)).
Injunctions: the Supreme Court may grant injunctive relief on application by a floated transaction company or the Treasurer for conduct that contravenes the Schedule (Sch 5 cl 9).
Proceedings and jurisdiction:
Summary proceedings: offences under the Schedule may be dealt with summarily in the Local Court or in the Supreme Court in its summary jurisdiction (Sch 5 cl 23(1)). The Local Court’s maximum penalty is capped at $50,000 or the statutory maximum, whichever is less (Sch 5 cl 23(2)).
Evidentiary and administrative supports:
Treasurer certificates and determinations are admitted in evidence and, in certain specified parts, treated as conclusive. A certificate for corporate conversion cannot be challenged in court proceedings (Sch 3 cl 2(3)). A document purporting to be a vesting order or related certificate is, unless the contrary is established, taken to be properly made (Sch 4 cl 11). A certificate signed by the Treasurer is admissible and is evidence of the matters certified (s 31).
Protective provisions:
Directors and officers who act to comply with Treasurer directions are protected from personal liability for actions or omissions taken under those directions (s 11(6)). That is an indemnity from personal actions, claims or demands relating to acts done in compliance.
Limits and strict liability:
The Act creates some strict liability offences (Sch 5 cl 4(3)) and authorises courts to make orders affecting share rights and distributions (Sch 5 cl 8). The strict liability provisions lower the prosecution burden for corporate duty offences and place emphasis on preventative measures by companies and their officers.
Administration and coordination:
The Treasurer must provide copies of tax-relief orders to the Chief Commissioner of State Revenue (s 20(5)), indicating administrative communication requirements. Registration authorities are required to accept certificates from transferees for the purpose of registering vested assets (Sch 4 cl 10(2)-(3)), and they are precluded from charging fees for functions performed in connection with vesting (Sch 4 cl 10(4)).
Together, these provisions create a mixed enforcement model: criminal penalties and director liability for ownership contraventions in floated companies; powerful civil remedies for remedial orders and injunctions; and administrative enforcement facilitated by conclusive Treasurer certificates and statutory evidentiary presumptions.
How it interacts with other laws
The Act contains numerous express interactions, exclusions and presumptions about how it operates alongside, or in preference to, other State and Commonwealth legislation. The interplay is structured to enable rapid transactions and to insulate certain actions from procedural or substantive impediments arising under other laws.
Precedence and displacement within State law:
Section 22(1) expressly provides that specified provisions do not operate to prevent, restrict or otherwise limit carrying out a transaction arrangement or functions for authorised transactions. Those include provisions of the State Owned Corporations Act 1989, constitutions of statutory SOCs or subsidiaries, and s 11 of the Energy Services Corporations Act 1995 concerning prohibition on privatisation. Section 22(2) further provides that, where inconsistent provisions are prescribed by regulation, this Act prevails to the extent of the inconsistency.
The Act also declares that the requirements for parliamentary approval of an act constituting transfer of electricity generator assets are satisfied by the enactment of this Act (s 22(3)).
Corporations legislation displacement:
Section 11(7) and Schedule 5 cl 21 declare particular provisions to be “Corporations legislation displacement provisions” for the purposes of s 5G of the Corporations Act. Schedule 3 also contains provisions that produce corporate conversion consequences that depart from the State Owned Corporations Act and other State legislation (Sch 3 cl 3).
Commonwealth competition law and NSW Competition Code:
Section 21 authorises, for the purposes of the Competition and Consumer Act 2010 and the Competition Code of New South Wales, agreements entered into by an electricity generator or transaction entity for management of electricity trading risks that are certified by the Treasurer as entered with Treasurer approval or at the direction of the Treasurer. That authorisation is limited to the extent the agreements would otherwise contravene Part IV of the Competition and Consumer Act (s 21(2)).
State taxes and revenue law:
Section 20 defines “relevant matters” and provides that State tax is not payable by a public sector agency in relation to a relevant matter (s 20(2)). The Treasurer may also direct that State tax is not payable by non-public sector persons to such extent as the Treasurer directs (s 20(3)), and must give a copy of any such order to the Chief Commissioner of State Revenue (s 20(5)). Section 6 allows approved deductions from transaction proceeds to reimburse public sector agencies for payments made by them in respect of any tax, duty, fee or charge imposed by any Act or law of the State or any other jurisdiction (s 6(3)(b)).
Registration, conveyancing and land acquisition:
The Act modifies interface with conveyancing and land law: s 24 disapplies s 52A of the Conveyancing Act 1919 in relation to contracts for sale of land made for authorised transactions. Schedule 4 vests interests in land by order and requires registration authorities to accept certificates (Sch 4 cl 10). Sch 4 cl 10(4) prohibits the registration authority charging a fee for functions in connection with vesting.
Section 19 authorises the Electricity Assets Ministerial Holding Corporation to acquire land, including by compulsory acquisition under the Land Acquisition (Just Terms Compensation) Act 1991, and specifies that public sector agencies are not entitled to compensation as owners where land is acquired under s 19(3).
Audit secrecy and information disclosure:
Section 23 removes application of s 38 (Secrecy) of the Government Sector Audit Act 1983 to reports or communications authorised by the Treasurer for authorised transactions, enabling the Auditor-General to provide information if authorised by the Treasurer.
Protection of contracts and information disclosure:
Section 25 provides that actions taken for authorised transactions, including vestings and disclosure of information by public sector agencies for authorised transactions, are not to be regarded as breaches of contract or confidence, or as giving rise to remedies or events of default, or as causing termination rights, among other effects (s 25(1)-(2)). This provision explicitly treats particular transactional acts as not generating typical contractual consequences.
Interpretation and constitutional limits:
Section 30 contains a saving construction for provisions that might otherwise have invalid applications beyond legislative power: unless a contrary intention appears, provisions with at least one valid application are to be read so as not to have invalid applications. That section is a legislative aid to construction where extraterritorial or federal issues might otherwise raise power questions.
Evidentiary and conclusive effects:
Several statutory provisions confer conclusive or final evidentiary character to Treasurer certificates and determinations (Sch 3 cl 2(3), Sch 4 cl 9, s 31), which affects the relationship between administrative acts under the Act and judicial review or other statutory processes.
Overall, the Act architects a framework that takes precedence over certain State statutory constraints, creates narrow carve-outs from Commonwealth competition law for specific risk-management agreements (subject to limits), and alters ordinary registration, taxation and contract law consequences for a transaction’s duration and purpose. The effect is to streamline transactions by reducing legal frictions that would otherwise apply, while centralising discretionary decision-making in the Treasurer.
Amendment history
The statutory text provided contains internal amendment annotations limited to a few provisions. The Act’s commencement provisions are set out at s 2: the Act commences on assent except that Schedule 5 commences on a day to be appointed by proclamation (s 2(1)-(2)).
Amendments and annotation entries included in the source:
Section 23 has an amendment note: “s 23: Am 2018 No 70, Sch 4.28.” That indicates section 23 was amended in 2018 by Schedule 4.28 of Act No 70 of 2018. The text in s 23 now provides that s 38 of the Government Sector Audit Act 1983 does not apply to or in respect of a report or communication that the Treasurer authorises the Auditor-General to make to a person for the purposes of an authorised transaction.
Section 27 includes an amendment note: “s 27: Am 2015 No 15, Sch 3.22 [1].” The current s 27 permits the Treasurer to delegate functions to the Secretary of the Treasury or to any other Public Service employee prescribed by the regulations, except the power of delegation itself.
Schedule 2 begins with a note: “sch 2: Am 2015 No 15, Sch 3.22 [2].” Schedule 2 provisions concerning transaction SOCs therefore contain amendments effected by the 2015 Act indicated.
Schedule 6 contains a note: “sch 6: Am 2017 No 17, Sch 4.25.” That signals amendments to Schedule 6 made in 2017.
Schedule 7 is recorded as repealed: “Schedule 7 (Repealed) Rep 1987 No 15, sec 30C.”
The source does not provide a consolidated list of all historical amendments or the contents of amending Acts beyond those inline annotations. The Act itself contemplates regulations and delegated instruments that will fill in operational matters, notably the maximum ownership level under Schedule 5 cl 1(2), matters prescribed for “relevant matters” under s 20(1)(e), rules for vesting and accounting policy directions (Sch 4 cl 12), and the classes of persons or interests to be disregarded under Sch 5 cl 16(1)(b)-(e). Many implementation details are therefore left for regulation.
Article-level amendment metadata in the source is confined to the specific amendment notes above. The Act reserves commencement of Schedule 5 to proclamation (s 2(2)), indicating a staged commencement intended to be synchronised with other implementation steps or regulations.
For precise historical legislative changes, the source text alone contains the amendment notes cited above. Any further amendment chronology, including repeal, replacement of sections, or differing text at other times, is not contained in the provided text and is therefore not asserted here.
Litigation history
The provided statutory text does not list judicial decisions or litigation history. The Act contains express statutory treatments that affect litigation risk and reviewability of certain administrative acts, which are material to litigation strategy.
Key statutory constraints on judicial challenges and evidentiary presumptions:
Conclusive Treasurer certificates for corporate conversion: Schedule 3 cl 2(3)(a) states that a certificate issued by the Treasurer certifying that requirements of the Act have been complied with concerning transfer of incorporation “cannot be challenged, reviewed or called into question in proceedings before any court or tribunal,” and (b) that such a certificate is conclusive evidence that requirements have been complied with. That statutory bar narrows the scope for litigating the adequacy of pre-conversion compliance in judicial proceedings where the Treasurer has certified compliance.
Conclusive determinations on vesting: Schedule 4 cl 9 provides that, for the purposes of making a vesting order, the Treasurer may determine whether particular assets, rights or liabilities comprise assets, rights or liabilities of an electricity generator or transaction entity at a particular time, and that such a determination is conclusive as to the matters determined. Conclusive administrative determinations limit factual disputes in subsequent court proceedings about whether the identified assets were generator assets at the relevant time.
Evidentiary weight of Treasurer certificates: s 31 makes a certificate purporting to be signed by the Treasurer admissible in evidence and evidence of the matters certified. Schedule 4 cl 11 treats a document purporting to be a vesting order or related certificate as such unless the contrary is established.
Protection for officers complying with Treasurer directions: s 11(6) provides that actions done by directors or other officers in compliance with Treasurer directions do not subject them personally to any action, liability, claim or demand. That is a statutory indemnity that may be asserted in civil litigation against officers alleging personal liability for acts done under direction.
Protection of contractual rights and remedies: s 25 states that matters to which that section applies (including transfers and disclosures for authorised transactions) are not to be regarded as breaches of contract or confidence or giving rise to remedies or enabling termination. That provision may foreclose certain contractual claims that would otherwise arise from transactional acts.
Implications for litigation strategy:
The Act deliberately insulates certain core administrative acts (conversion certificates, Treasurer determinations for vesting) from challenge, making pre-transaction administrative decisions more final. Remedies against such decisions are likely to be limited to the narrow statutory avenues retained (for example, statutory writs where jurisdictional error remains available, though the Act’s conclusive language will narrow that space).
Schedule 5 provides procedural and criminal enforcement mechanisms in relation to ownership restrictions and preserves judicial relief through remedial orders and injunctions in Sch 5 cl 8-9. These provisions create active litigation channels for third parties and the Treasurer to enforce ownership limits.
Section 31 and Schedule 4 cl 11 create evidentiary presumptions favouring the State and transferees in proceedings where Treasurer certificates or purported vesting orders are tendered as evidence. The presumption is rebuttable only if the contrary is established.
Because the statute itself contains no reported cases and the text supplied does not include any judicial citations, no specific litigation outcomes can be cited here. Practitioners should note the Act’s express provisions that reduce litigation avenues on certain administrative actions, increase evidentiary weight of Treasurer certifications, and maintain active court powers to correct ownership configurations and to enjoin contraventions under Schedule 5.
Gotchas
The Act creates a number of legal and practical pitfalls that parties should flag when planning, advising on, or executing an authorised transaction. These items are tied to explicit statutory mechanics.
Concentration of discretion in the Treasurer:
The Treasurer is vested with broad functions “necessary or convenient for the purposes of an authorised transaction” (s 7). That includes issuing conclusive conversion certificates (Sch 3 cl 2(3)), making vesting determinations conclusive (Sch 4 cl 9), directing grant or modification of regulatory authorisations (s 18), and approving deductions from proceeds (s 6(3)). Parties must expect transactional certainty to depend heavily on Treasurer decisions and documentation.
Certificates and determinations that curtail review:
A Treasurer certificate certifying compliance for conversion “cannot be challenged, reviewed or called into question” (Sch 3 cl 2(3)(a)). Determinations about whether particular assets, rights or liabilities are generator assets are “conclusive” for vesting purposes (Sch 4 cl 9). These provisions can restrict pre-transaction judicial review of key factual or compliance matters.
Vesting without conveyance and registration anomalies:
Vesting orders effect transfer of property and liabilities without conveyance, transfer or assignment (Sch 4 cl 3(a)). Registration authorities must accept Treasurer or transferee certificates and are prohibited from requiring information in particular forms (Sch 4 cl 10(2)-(3)) and cannot charge fees for registration connected to vesting (Sch 4 cl 10(4)). Practitioners must ensure registration authorities are coordinated early because the statutory regime alters typical title transfer steps and fee structures.
Limits on employee entitlements and caps on payments:
Transfer payments for employees are capped at the equivalent of 30 weeks’ pay (s 15(2)). The Act also disclaims entitlement to severance or redundancy pay merely because an employee ceased to be a public sector employee due to a transaction arrangement (s 15(3)). Eligible employee protections exclude casual and contract employees (s 16 definitions). Advisors must audit employment categories to determine who is eligible for guarantees and what corporate obligations to provide.
Ownership restriction timing and uncertainty:
Schedule 5 applies where assets are transferred by means of an initial public offer; the maximum ownership level is to be prescribed by regulation (Sch 5 cl 1(1)-(2)). The Schedule ceases to apply after two years or a longer regulatory period after first listing (Sch 5 cl 1(3)). Until regulations specify the maximum level, there is uncertainty on what constitutes a prohibited ownership situation. Transactions dependent on IPO timing must consider that Schedule 5 only commences by proclamation (s 2(2)).
Strict liability and director exposure:
The corporate duty offence in Sch 5 is a strict liability offence (Sch 5 cl 4(3)). Directors or management who knowingly authorised a contravention may be prosecuted under Sch 5 cl 22(1). Directors must therefore ensure compliance systems are robust to prevent inadvertent breaches.
Member Register location and operational constraints:
Member Registers must not be kept outside the State without written Treasurer approval (Sch 5 cl 6). This can complicate global custody arrangements for share registers and may require localised record-keeping infrastructure.
Tax and deduction uncertainty:
State tax relief for non-public sector persons is at the Treasurer’s discretion by written order and may be applied before or after liability accrues (s 20(3)-(4)). Deductions from transaction proceeds to reimburse public sector agencies for tax payments are authorised (s 6(3)(b)). Parties should secure clear Treasurer directions on tax treatment and timing to avoid downstream disputes.
Limits on compensation and indemnities:
The Act precludes compensation claims “because of the enactment or operation of this Act” or for statements or conduct relating to its enactment (s 26(1)), except for compensation payable under a transaction arrangement (s 26(2)). Parties who rely on statutory protections or indemnities should ensure contractual protections are negotiated into transaction documents because statutory compensation claims against the State are limited.
Regulations will supply operational detail:
The Act delegates many details to regulations: maximum ownership level (Sch 5 cl 1(2)), classes of interests to be disregarded (Sch 5 cl 16(1)(b)), requirements for records and information (Sch 5 cl 7), and other matters prescribed by regulation (s 33). Until regulations are finalised, some obligations and thresholds will remain uncertain.
Potential friction with third parties:
The protection in s 25 that certain transaction-related matters are not breaches of contract may create disputes with counterparties who rely on contractual rights. The statutory bar in s 25(2) must be weighed against other contractual remedies not expressly covered and advice obtained on likely legal consequences.
Evidential presumptions and administrative finality:
Documents purporting to be vesting orders or certificates are taken to be such unless the contrary is established (Sch 4 cl 11). Practitioners should anticipate the evidentiary onus this places in litigation to rebut purported statutory documents.
In short, the Act’s mechanics centralise decision-making, provide administrative shortcuts to transfer and registration, limit judicial review in specific respects, and create regulatory details to be supplied. These features reduce procedural friction but shift legal and operational risk into the Treasurer’s processes and to transaction documentation.
How to comply
Compliance under the Act requires planning around the Treasurer’s powers, properly structured transaction arrangements, attention to employment provisions, and operational readiness for vesting and post-transaction corporate governance. Below are concrete steps and checkpoints tied to the statutory text.
Pre-transaction coordination and approvals:
Engage with the Treasurer early: the Treasurer has extensive functions and directional powers (s 7, s 18). Secure written directions where necessary, and obtain any required certificates or confirmations from the Treasurer in time to support corporate conversion, vesting orders and tax relief orders (Sch 3 cl 2; Sch 4 cl 2; s 20(3)).
Regulatory checklist: identify “relevant authorisations” (s 18(7)) that must transfer to the new operator, and obtain Treasurer directions regarding grant or transfer to avoid standard application or determination processes (s 18(1)(a)-(b)). Ensure relevant public sector agencies are consulted and notified, as s 18(3) obliges the Treasurer to consult with public sector agencies before giving directions.
Corporate conversion and company formation:
If corporate conversion is intended, obtain the Treasurer’s certificate certifying compliance with the Act prior to registration under the Corporations Act (Sch 3 cl 2(1)-(2)). Note the certificate’s conclusive statutory effect (Sch 3 cl 2(3)).
For transaction SOCs establish governance in line with Schedule 2: board composition, appointment and removal processes, chief executive appointment, and the exceptions to State Owned Corporations Act provisions as set out in Sch 2 (Sch 2 cl 1-3).
Vesting and registration:
Prepare for vesting orders: gather asset registers, title documents and lists of rights and liabilities that the Treasurer may vest by order (Sch 4 cl 2-3). Coordinate with registration authorities ahead of vesting because Schedule 4 allows transferees or transferors to lodge certificates and requires registration authorities to accept them (Sch 4 cl 10(2)-(3)). Ensure certificates provide the information the registration authority reasonably requires (Sch 4 cl 10(2)).
Administrative evidence: retain originals of any vesting orders and Treasurer certificates; s 31 provides that Treasurer-signed certificates are admissible and Sch 4 cl 11 treats documents purporting to be vesting orders as valid unless the contrary is established.
Employment and industrial relations compliance:
Staff transfer obligations: if transferring employees between public sector agencies, ensure awards, agreements and determinations that would have applied continue to apply to transferred employees as specified (s 14(2)). Preserve superannuation entitlements and continuity of service (s 14(3)(a)-(c)).
Private sector transfers: for employees transferred into the private sector, ensure that transfer payments do not exceed 30 weeks’ base salary (s 15(2)). Confirm eligibility categories for employment guarantees under s 16, exclude casual and contract employees from eligible employee status, and document employment guarantee periods and exceptions in transaction agreements.
Apprenticeship obligations: the Treasurer must take reasonable steps to ensure at least 150 apprenticeships are maintained during employment guarantee periods (s 16(4)). Transaction parties should include apprenticeship maintenance obligations in sale and transition agreements.
Tax and proceeds handling:
Plan for proceeds: transaction proceeds belong to the State and are payable directly into the Restart NSW Fund (s 6(1)-(2)). If the transaction requires deductions to repay debt or reimburse taxes, obtain Treasurer approval and include authorised deductions in transaction documentation (s 6(3)). Ensure payment mechanisms align with the Fund’s requirements.
State tax relief: where State tax exposure may arise for non-public sector transferees, obtain a Treasurer order under s 20(3) specifying the extent of tax relief and ensure the Chief Commissioner of State Revenue is supplied with a copy (s 20(5)).
Ownership restrictions and floated companies:
If proceeding with an IPO, check whether Schedule 5 will apply and the timing of its commencement by proclamation (s 2(2); Sch 5 cl 1(1)). Identify the maximum ownership level once prescribed in regulations and plan allocations to avoid prohibited ownership situations (Sch 5 cl 1(2)).
Member Register location: ensure Member Registers remain in NSW or obtain written Treasurer approval before moving them offshore (Sch 5 cl 6). Update registrar contracts and custody arrangements accordingly.
Record-keeping and disclosure: comply with regulations that may require keeping ownership-related records and providing verified information to the Treasurer or floated companies (Sch 5 cl 7). Be ready to verify information by statutory declaration if required (Sch 5 cl 7(2)).
Transaction documentation and contractual protections:
Include express protections and indemnities in transaction arrangements to cover limited scope of statutory compensation (s 26) and the Act’s protection of certain actions from being breaches of contract (s 25(2)). Ensure the transaction agreement addresses allocation of liabilities, employee transfer payments, and mechanisms for dealing with contested vestings or authorisation grants.
Regulatory and courtroom contingency planning:
Anticipate remedial orders: devise contingency plans for possible Supreme Court remedial orders under Sch 5 cl 8, including mechanisms to dispose of shares, restrain exercise of rights or defer payments if a prohibited ownership situation arises.
Governance and compliance systems: for companies subject to Schedule 5, implement processes to monitor stakeholders and associates as defined in Sch 5 cl 12, cl 18-20, and to detect creeping increases in stakes that could trigger criminal liability (Sch 5 cl 3). Directors must ensure they do not knowingly authorise contraventions (Sch 5 cl 22).
Administrative coordination:
Liaise with registration authorities early and provide the certificates and information they require for registration as per Sch 4 cl 10(2). Confirm whether any prescribed forms or additional documentary requirements are necessary despite Sch 4 cl 10(3).
Track regulations: many operational details will be prescribed by regulation (s 33; Sch 5 cl 1(2), cl 7). Maintain an active watch for regulatory instruments that fix maximum ownership levels, classes of disregarded interests, and record-keeping requirements.
By structuring transaction documents to reflect the statutory mechanics, obtaining Treasurer directions and certificates where required, and putting governance, compliance and employee transfer systems in place, parties can align their behaviour with the Act’s requirements and reduce exposure to enforcement and administrative risk.
Section 4Transfer of electricity generator assets to private sector
(1) The proceeds of the transfer of electricity generator assets pursuant to an authorised transaction (the transaction proceeds) belong to and are payable directly to the State.
(2) The transaction proceeds paid to the State are to be paid into the Restart NSW Fund (the Fund) established under the Restart NSW Fund Act 2011.
(3) The following deductions are authorised to be made from the transaction proceeds—
(a) deduction of such amounts as the Treasurer approves to repay debt and satisfy other liabilities of a public sector agency in respect of electricity generator assets transferred for the purposes of an authorised transaction,
(b) deduction of such amounts as the Treasurer approves to reimburse public sector agencies for payments made by them in respect of any tax, duty, fee or charge imposed by any Act or law of the State or any other jurisdiction in connection with a transaction arrangement,
(c) deduction of such amounts as the Treasurer approves to satisfy any liability of a public sector agency arising under or in connection with a transaction arrangement,
(d) deduction of such amounts as the Treasurer approves to meet expenses reasonably incurred by public sector agencies for the purposes of an authorised transaction.
(4) The transaction proceeds do not include any amount certified by the Treasurer to have been paid to a public sector agency as a tax, duty, fee or charge imposed by any Act or law of the State in connection with a transaction arrangement.
(5) The deductions authorised to be made from the transaction proceeds may be made before payment of the transaction proceeds into the Fund or may be made by payment from the Fund.
(6) The requirements of this section do not affect the validity of a transaction arrangement.
Part 3 Facilitating authorised transactions
Part 3 Facilitating authorised transactions
Part 3 Facilitating authorised transactions
7 Treasurer’s functions for the purposes of an authorised transaction
7 Treasurer’s functions for the purposes of an authorised transaction
7 Treasurer’s functions for the purposes of an authorised transaction
The Treasurer has and may exercise all such functions as are necessary or convenient for the purposes of an authorised transaction. The functions conferred on the Treasurer by any other provision of this Act do not limit the Treasurer’s functions under this section.
8 Transaction SOCs
8 Transaction SOCs
8 Transaction SOCs
(1) A statutory State owned corporation may be established under this Act as a transaction SOC for the purposes of an authorised transaction.
(2) The Governor may by order published in the Gazette—
(a) create a corporation under a corporate name specified in the order, and
(b) specify the functions of the corporation, and
(c) direct that the corporation is established as a statutory State owned corporation and as a transaction SOC.
(3) On the day on which the order takes effect—
(a) a corporation is constituted with the corporate name and functions specified in the order, and
(b) the State Owned Corporations Act 1989 is amended by inserting in Schedule 5 the corporate name specified in the order (to establish the corporation as a statutory State owned corporation under that Act), and
(c) the State owned corporation thereby established is a transaction SOC for the purposes of this Act.
(4) The portfolio Minister of a SOC established under this section is the Minister administering section 13 (Creation of additional energy services corporations) of the Energy Services Corporations Act 1995.
(5) Schedule 2 has effect with respect to a transaction SOC. The provisions of that Schedule are in addition to and (except to the extent to which that Schedule otherwise provides) do not derogate from the provisions of the State Owned Corporations Act 1989.
9 Transaction companies
9 Transaction companies
9 Transaction companies
(1) The Treasurer may for the purposes of an authorised transaction establish, or direct the establishment of, companies as transaction companies in any of the following ways—
(a) the formation or acquisition by or on behalf of the State or a SOC of a company limited by shares, so that all the issued shares in the company are held by or on behalf of the State or a SOC (or both),
(b) the formation or acquisition of a company as a wholly owned subsidiary company of a transaction company,
(c) the conversion of an electricity generator or transaction SOC into a company limited by shares as provided by Schedule 3.
(2) A transaction company that is a public sector agency may be converted from one kind of company to any other kind of company.
(3) Except by express agreement with the Treasurer—
(a) a transaction company is not and does not represent the State, and
(b) the debts, liabilities and obligations of a transaction company are not guaranteed by the State.
(4) The Treasurer may act for or on behalf of the State, a SOC or a transaction company that is a public sector agency in connection with the rights, privileges and benefits, and the duties, liabilities and obligations of the State, a SOC or transaction company as the holder of shares or other securities in a transaction company.
(5) Shares and other securities in a transaction company that is a public sector agency may be issued, sold or transferred in accordance with the directions of the Treasurer. The Treasurer may on behalf of the State, a SOC or a transaction company that is a public sector agency enter into and carry out transaction arrangements for the issue, sale or transfer of shares and other securities in a transaction company.
(6) An electricity generator that becomes a transaction company remains an electricity generator for the purposes of this Act (despite ceasing to be a statutory State owned corporation constituted by the Energy Services Corporations Act 1995).
10 Functions of electricity generators and transaction entities
10 Functions of electricity generators and transaction entities
10 Functions of electricity generators and transaction entities
(1) Each electricity generator and transaction entity has and may exercise all such functions as are necessary or convenient for the purposes of an authorised transaction.
(2) The functions conferred by this section are in addition to any other functions that an electricity generator or transaction entity has apart from this section and those other functions do not prevent or otherwise limit the exercise of the additional functions conferred by this section.
(3) The Treasurer may act for or on behalf of an electricity generator or transaction entity in the exercise of any of its functions for the purposes of an authorised transaction while it is a public sector agency.
11 Direction and control of electricity generators and transaction entities
11 Direction and control of electricity generators and transaction entities
11 Direction and control of electricity generators and transaction entities
(1) Each electricity generator and transaction entity is subject to the direction and control of the Treasurer in the exercise of any of its functions for the purposes of an authorised transaction while it is a public sector agency.
(2) The Treasurer may give directions for the purposes of an authorised transaction to an electricity generator or transaction entity, and to the directors and other officers of an electricity generator or transaction entity. Any such directions must be complied with by the electricity generator, the transaction entity or the directors or other officers concerned.
(3) Directions to a transaction entity (or its directors and other officers) can only be given and are only required to be complied with while the transaction entity is a public sector agency.
(4) The power to give directions under this section extends to directions with respect to the way in which an electricity generator or transaction entity is to conduct its business and other affairs.
(5) Action taken by an electricity generator or transaction SOC to comply with a direction of the Treasurer under this Act does not require the approval of the voting shareholders or portfolio Minister of the corporation.
(6) Anything done or omitted to be done by a director or other officer of an electricity generator or transaction entity in complying with a direction given by the Treasurer under this Act does not subject the director or officer personally to any action, liability, claim or demand.
(7) The provisions of this section are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act in relation to the provisions of the Corporations legislation generally.
12 Establishment of Electricity Assets Ministerial Holding Corporation
12 Establishment of Electricity Assets Ministerial Holding Corporation
12 Establishment of Electricity Assets Ministerial Holding Corporation
(1) There is constituted by this Act a corporation with the corporate name of the Electricity Assets Ministerial Holding Corporation.
(2) The affairs of the Corporation are to be managed by the Treasurer who may authorise another Minister to exercise functions in relation to particular assets, rights and liabilities.
(3) Any act, matter or thing done in the name of, or on behalf of, the Corporation by the Treasurer or a Minister authorised by the Treasurer, or with the authority of the Treasurer or any such Minister, is taken to have been done by the Corporation.
(4) The Corporation has the functions conferred or imposed on it by or under this or any other Act.
(5) The functions of the Corporation are—
(a) to hold, on behalf of the Crown, electricity generator assets acquired by it or transferred to it by or under this or any other Act, and
(b) to carry on any activities or business that relate to any electricity generator assets held by it, including demanding, collecting and receiving charges, levies, rates and fees, and
(c) such other functions for the purposes of an authorised transaction as may be prescribed by the regulations.
Part 4 Arrangements for transfer of assets, staff and functions
Part 4 Arrangements for transfer of assets, staff and functions
Part 4 Arrangements for transfer of assets, staff and functions
13 Vesting orders
13 Vesting orders
13 Vesting orders
The Treasurer may make vesting orders under Schedule 4 for the purposes of an authorised transaction.
14 Staff transfers
14 Staff transfers
14 Staff transfers
(1) The Treasurer may, for the purposes of an authorised transaction, by order in writing, transfer the employment of an employee of an electricity generator (a transferred employee) to the employment of another public sector agency.
(2) A transferred employee is (until other provision is duly made under any Act or law) to be employed in accordance with any relevant statutory provisions, awards, agreements and determinations that would have applied to the employee had the employee remained an employee of the electricity generator concerned.
(3) On the transfer by order under this section of an employee’s employment from one employer (the current employer) to another employer (the new employer) the following provisions have effect—
(a) the employee is entitled to continue as a contributor, member or employee for the purposes of any superannuation scheme in respect of which he or she was a contributor, member or employee (as an employee of the current employer) immediately before the transfer of employment and remains so entitled subject to any variation to that entitlement made either by agreement or otherwise in accordance with law,
(b) the new employer is taken to be an employer for the purposes of any superannuation scheme in respect of which the employee continues as a contributor, member or employee pursuant to an entitlement under this section,
(c) the continuity of the employee’s contract of employment is taken not to have been broken by the transfer of employment, and service of the employee with the current employer (including service deemed to be service with the current employer) that is continuous service up to the time of transfer is taken for all purposes to be service with the new employer,
(d) the employee retains any rights to sick leave, annual leave or long service leave accrued or accruing immediately before the transfer (except accrued leave for which the employee has, on ceasing to be an employee of the current employer, been paid the monetary value in pursuance of any other entitlement of the employee).
(4) The Treasurer may negotiate and enter into agreements or industrial instruments concerning workplace relations for or on behalf of a public sector agency in connection with the operation of this section.
15 Payments to employees leaving public sector employment
15 Payments to employees leaving public sector employment
15 Payments to employees leaving public sector employment
(1) The Treasurer or another public sector agency may enter into agreements or other arrangements with respect to the making of transfer payments to employees of an electricity generator in connection with the transfer of employment of those employees to employment in the private sec
This is an opening excerpt, not the complete document.