Freight Rail Corporation (Sale) Act 2001

The Act organises around a small set of recurring legal concepts: business undertaking, excluded undertaking and special lease; sale methods and sale company; transfer order and vesting mechanics; Treasurer control and direction; employee transfer and superannuation; certification and registration; and tax and duty exemptions. Each concept has precise statutory mechanics.

• Business undertaking of FreightCorp, assets, rights and liabilities: The Act defines assets widely to include legal and equitable estates and interests, securities, choses in action and documents; rights and liabilities are likewise broad (s 3(1)). The sale is of the business undertaking, which is to be interpreted by the Treasurer for the purposes of transfer orders (Schedule 1 cl 2). The Act therefore separates the undertakings being sold from items that may be declared excluded (s 9).

• Excluded undertaking and special lease: The Treasurer may exclude particular assets, rights or liabilities from sale (s 9(1)). A special lease is a lease or sublease of property forming part of FreightCorp’s business that the Treasurer declares by written order to be a special lease for the Act’s purposes (s 3 definition). Special leases are excluded from sale, may not be transferred under the Act, and remain vested in FreightCorp even after sale or conversion (ss 14(1), 35(1)). The Treasurer may, however, grant subleases or sub-subleases over the property subject to a special lease to the purchaser or related entities and may determine their terms (ss 14(2)-(3), 35(2)-(3)). Those subleases are expressly exempt from duties under the Duties Act 1997 (ss 14(4), 35(4)).

• Sale methods and sale company: The Act offers three sale methods (s 5(1)): direct transfer of the business undertaking to the purchaser (Part 3); conversion of FreightCorp to a company limited by shares and sale of that company by share transfer (Part 4); or transfer of the undertaking to a company and sale of that company by share transfer (Part 5). When a sale company is used, the company is taken to be the legal continuation of FreightCorp (s 19(1)). Until shares in the sale company are transferred they are held for and on behalf of the State and the Treasurer may act for shareholders (s 18).

• Transfer orders, vesting mechanics and registration: The Act authorises the Treasurer to make transfer orders by writing (s 12, s 22, s 34, Schedule 1 applies). Under Schedule 1 cl 3, assets vest in the transferee by operation of the Schedule and without any further conveyance; rights and liabilities become those of the transferee; proceedings pending by or against the transferor are taken to be proceedings by or against the transferee; and references to the transferor in other instruments are to be read as references to the transferee (Schedule 1 cl 3(1)(a)-(e)). The Treasurer’s determination about what constitutes the undertaking is conclusive for transfer-order purposes (Schedule 1 cl 2). Registration authorities must accept certificates lodged by transferees and are not entitled to insist on any particular form or manner (Schedule 1 cl 9(2)-(3)). No fee or charge is payable by the transferee to registration authorities for the exercise of their functions in connection with transfers (Schedule 1 cl 9(4)).

• Treasurer’s control, directions and contractual powers: The Treasurer can direct FreightCorp in connection with facilitating the sale and FreightCorp must comply with such directions (s 7(1)-(3)). The Treasurer is authorised to enter into sale agreements for and on behalf of FreightCorp (s 11(1)). The Treasurer may also direct a conversion of FreightCorp to a company and give directions as to registration (ss 16-17). While the sale company exists with State-held shares, its board is subject to the Treasurer’s control and direction, and directors are insulated from personal liability for acts done only to comply with Treasurer directions (s 24(1), (3)).

• Employee transfer and superannuation: The Act preserves employees’ terms and continuity. Under direct transfer or transfer to sale company, employees are transferred to the purchaser or to the sale company on the same terms and with continuity of service preserved (s 42). For sale by way of conversion and subsequent share sale, no transfer provision is needed because the entity continues as the same legal person (note following s 42). Schedule 2 sets the superannuation framework; the Treasurer may approve continued membership or transfer affected employees to the LGS Scheme, EIS Scheme or another designated scheme, and may make arrangements with trustees and regulations to give effect to transfers and preservation of benefits (Schedule 2 cls 3-5).

• Tax and duty exemptions: The Act exempts State taxes in connection with conversion, share transfers and specified matters (ss 31, 41). Schedule 1 cl 11 exempts duty under the Duties Act 1997 in respect of transfers effected by the Schedule and anything certified by the Minister as done in consequence of such transfers.

• Confidentiality and Auditor-General communications: The Treasurer may approve communication by the Auditor-General of FreightCorp information to authorised persons for sale purposes; such persons must not record or divulge that information except as required for their functions or with Treasurer approval, with a maximum penalty of 100 penalty units (s 10).

These concepts are the operational vocabulary of the Act. Each one is implemented by precise statutory verbs: “may by order in writing transfer” (s 12, 22, 34), “is authorised to enter into” (s 11, 27, 33), “is taken to be a continuation of” (s 19), “ceases to be a State owned corporation” (ss 21(1), 36(1)), and “employees are transferred” (s 42(1)-(2)). That language indicates the Act’s emphasis on legal continuity, administrative discretion in defining the undertaking, and statutory mechanisms to avoid standard conveyancing or registration frictions.

Primary legal actors that the Act directly affects are: FreightCorp, the Treasurer, FreightCorp’s purchaser (strictly limited by the statute), the sale company where that method is used, the Ministerial Holding Corporation and other public authorities, employees of FreightCorp, superannuation trustees and schemes, registration authorities, the Auditor-General and authorised persons, and the Consolidated Fund.

• FreightCorp: The corporation that is the subject of sale. The Act expands FreightCorp’s functions to include facilitating the sale and subjects FreightCorp to the Treasurer’s directions in the exercise of those functions (ss 6-7). Where conversion occurs, FreightCorp ceases to be a State owned corporation under the State Owned Corporations Act 1989 and may be dissolved or converted to a corporation sole (ss 15(1), 21(1), 36(1)).

• Treasurer: Central decision-maker. The Treasurer determines which sale method to use (s 5(1)), may direct conversion (s 16), authorise transfer orders (s 12, s 22, s 34), make orders excluding assets from sale (s 9), approve Auditor-General disclosures (s 10), direct FreightCorp’s conduct (s 7), and act on behalf of shareholders in the sale company while shares are held for the State (s 18). The Treasurer also certifies matters for duty exemption and may transfer assets to other public authorities (s 9(2), Schedule 1 cl 8).

• Purchaser and limitations: The statute restricts FreightCorp’s purchaser to a narrow class: National Rail Corporation Limited, a purchaser of the shares in National Rail, or a related body corporate of such purchaser (s 5(2)). That means third-party purchasers outside that description are excluded by the Act.

• Sale company and shareholders: Where conversion or formation is used, the sale company is the vehicle holding assets and shares. Until the State transfers shares, they are held on behalf of the State and the Treasurer may act for shareholders (s 18). The sale company, while shares remain State-held, is subject to Treasurer control and certain provisions of the State Owned Corporations Act may apply by regulation (ss 23-26).

• Employees and staff: All employees immediately before the sale date are affected. Under sale method 1 or 3 employees are transferred to the purchaser or to the sale company respectively and they retain continuity and accrued leave entitlements (s 42). For sales via conversion (Part 4), staff remain with the same legal entity and no transfer provision is necessary (note after s 42). Schedule 2 addresses superannuation entitlements and possible transfers between schemes for affected employees.

• Superannuation trustees and schemes: Trustees of the FTC and STC schemes, the LGS Scheme, the EIS Scheme, SAC and AFMC, and any trustee of a designated “new scheme” are affected because the Treasurer may direct transfers and enter arrangements to ensure equivalent benefits for transferred persons; trust deeds may be amended accordingly (Schedule 2 cl 3-4).

• Registration authorities: They are required to accept certificates lodged by transferees and to exercise their functions without insisting on particular procedural form, and they must not charge fees for the exercise of functions in connection with transfers effected by the Schedule (Schedule 1 cl 9(2)-(4)). That imposes administrative duties on land registries and similar bodies.

• Auditor-General and authorised persons: The Treasurer may allow the Auditor-General to disclose FreightCorp information to authorised persons for sale purposes, but authorised persons cannot record or divulge the information except for proper exercise of their functions or with Treasurer approval, under penalty (s 10).

• The Crown and the Consolidated Fund: Assets not sold may be transferred to the Crown or to public authorities (s 9(2)). Sale proceeds are to be paid into the Consolidated Fund, less amounts the Treasurer approves to meet sale expenses (s 45).

• The Ministerial Holding Corporation: The Treasurer may transfer excluded assets to the Ministerial Holding Corporation (s 9(2), s 22(1), s 34(1), s 36(3)).

Indirectly affected parties include counterparties to contracts and instruments involving FreightCorp because transfer orders change parties to proceedings and contractual relationships by operation of Schedule 1 cl 3. The Act also affects bodies that administer taxes and duties, since particular exemptions are provided (ss 31, 41; Schedule 1 cl 11). Finally, potential purchasers and their advisers are affected by the narrow statutory definition of permissible purchasers (s 5(2)) and by confidentiality rules applying to information received from the Auditor-General (s 10).

Who pays, who decides and who implements: the Treasurer makes the substantive decisions and orders (s 5(1), s 7, s 9, s 12, s 16); the purchaser pays the agreed consideration under contract terms, with proceeds to the Consolidated Fund (s 45); registration authorities and trustees must implement statutory certification, vesting and transfer arrangements (Schedule 1 cl 9; Schedule 2). Employees do not have to consent to transfer of employment under s 42; their continuity and accrued leave are preserved by statute (s 42(3)).

The Act creates duties and rights for the Treasurer, FreightCorp, purchasers, employees, registration authorities and other public bodies. These are statutory rules rather than contractual options.

Treasurer’s duties and powers

• Decision-making duties to determine sale method, to direct conversion and to make orders excluding assets or transferring assets to purchasers or the Crown: see s 5(1), s 16(1), s 9(1)-(2), s 12, s 22(1), s 34(1). The Treasurer must exercise these powers by written order where the Act requires an order in writing (s 12; s 9).
• Power to give directions to FreightCorp to facilitate sale and to control operations post-agreement: s 7(1)-(3). FreightCorp must comply with those directions (s 7(1)).
• Power to approve Auditor-General disclosures to authorised persons and to set terms and conditions on those disclosures (s 10(1)). The Treasurer can also act for shareholders while shares are held for the State (s 18(b)).
• Power to enter and carry out agreements for the sale of the undertaking and to act on behalf of FreightCorp in so doing (ss 11(1), 27, 33).

FreightCorp’s duties and functions

• FreightCorp must exercise functions necessary or convenient to facilitate the sale and must comply with Treasurer directions (ss 6(1)-(3), 7(1)). FreightCorp is authorised to take steps required by Treasurer directions to convert to a company (s 17(3)).

Purchaser and sale company rights and obligations

• Purchaser is limited by statute to particular entities (s 5(2)). Where shares are transferred, the Treasurer may alter the sale company’s constitution before sale to reflect the sale agreement (s 29).
• The sale company is taken to be a continuation of FreightCorp on conversion (s 19(1)) and is entitled to the benefit of existing contracts and arrangements, subject to Schedule 1 (s 20). The sale company’s obligations are not guaranteed by the State (s 30, s 40).

Employees’ rights and protections

• Employees transfer to the purchaser or to the sale company on the same terms and conditions as before the sale, continuity of employment is preserved and accrued leave entitlements are retained (s 42(3)(a)-(c)). The Act provides expressly that transfers do not create new entitlements to severance pay merely because the employer changed (s 42(3)(d)).
• For sale of the sale company, staff continue on the same terms despite change of ownership (s 43).

Superannuation rights and obligations

• The Treasurer may approve continued membership in the employee’s existing FTC or STC scheme or may order transfers to the LGS or EIS schemes or to another designated scheme that the Treasurer is satisfied offers equivalent benefits (Schedule 2 cl 3(1)). Trustees are required to take steps to facilitate coverage and to amend trust deeds as the Treasurer directs (Schedule 2 cl 3(4)-(5)). Regulations may be made to implement transfers, assets and liabilities and to address preservation and deferral of benefits (Schedule 2 cl 4).

Registration authorities’ duties

• Registration authorities must accept certificates lodged by transferees and are not entitled to require information in any particular form or manner to exercise their functions arising from a transfer order (Schedule 1 cl 9(2)-(3)). They must not charge fees for performing registration steps in connection with a transfer effected by the Schedule (Schedule 1 cl 9(4)).

Evidence and administrative duties

• A certificate by the Treasurer or prescribed officer certifying an order is admissible in evidence and is evidence of the matters it certifies (s 50). A document purporting to be a transfer order or a Schedule-derived order or certificate is taken to be such an order unless the contrary is established (Schedule 1 cl 10).

Tax and duty rules

• The Act creates specific exemptions from State taxes and duties in relation to registration, conversion and share disposals (ss 31, 41; Schedule 1 cl 11). These are statutory entitlements that relieve purchasers, FreightCorp and the sale company from charges that would otherwise apply.

Confidentiality and penalties

• Authorised persons acquiring Auditor-General information must not make a record or divulge the information except for proper exercise of functions or with Treasurer approval, with a maximum penalty of 100 penalty units for contravention (s 10(3)).

Protection from compensation

• The Act declares that compensation is not payable by or on behalf of the State because of enactment or operation of the Act or because of statements or conduct relating to the Act; “compensation” is defined broadly to include damages and any form of monetary compensation (s 48(1)-(2)).

Procedural duties and rights

• The Treasurer may include terms and conditions in transfer orders (Schedule 1 cl 4) and may specify the consideration and value for transfers (Schedule 1 cl 5). Transfer orders may take effect on the date made or another specified date (Schedule 1 cl 6).

These duties and rights shift many transactional and legal burdens from traditional private-law processes into administrative processes controlled by the Treasurer and implemented by public agencies and registration bodies. The statute therefore creates rights to vesting and to registration based on administrative acts rather than on conventional conveyance or assignment formalities.

The Act contains a limited set of express offences and enforcement mechanisms. Most enforcement will be administrative and contractual rather than through penal provisions, but a few express penalties and procedural points should be noted.

Express criminal or civil penalties

• Maximum penalty of 100 penalty units for an authorised person who acquires information from the Auditor-General under s 10 and records or divulges it other than as permitted (s 10(3)). The Act does not specify whether this penalty is criminal or regulatory; the maximum penalty unit amount indicates a statutory penalty enforceable under the Act’s enforcement regime.

Proceedings and jurisdiction

• Proceedings for an offence under the Act may be dealt with summarily before the Local Court (s 51). That makes the Local Court the primary forum for prosecutions under the Act where offences are framed as such. The Act was amended in 2007 to reflect changes to s 51 (s 51: Am 2007 No 94, Sch 4).

Administrative finality and conclusive determinations

• The Treasurer’s determinations as to whether particular assets, rights or liabilities comprise the business undertaking are conclusive for the purposes of transfer orders (Schedule 1 cl 2). That clause curtails the ability to challenge the Treasurer’s classification in later proceedings to the extent the clause lawfully operates as conclusive evidence. Conclusive statutory determinations reduce litigation risk but concentrate implementation stakes in administrative decision-making.

Evidentiary rules

• A certificate by the Treasurer or a prescribed officer certifying that an order is made under a specified provision of the Act is admissible in evidence and is evidence of the matters certified (s 50). Schedule 1 cl 10 provides that a document purporting to be a transfer order or related order or certificate is, unless the contrary is established, taken to be such an order. Those provisions ease the evidentiary burden for transferees and registration authorities but also raise the bar for contesting transfers.

Registration authority obligations and waiver of fees

• Registration authorities are required to accept certificates lodged by transferees and are not entitled to demand particular forms or manners (Schedule 1 cl 9(2)-(3)). No fee or charge is payable by the transferee to a registration authority for functions in connection with transfers effected by the Schedule (Schedule 1 cl 9(4)). Such provisions reduce costs for transferees and limit the practical regulatory leverage of registry bodies.

Duty and tax exemptions

• The Act makes a statutory rule that no State tax, duty or fee is payable in relation to conversion, share disposal and related matters specified in ss 31 and 41; Schedule 1 cl 11 exempts duty under the Duties Act 1997 for transfers effected by the Schedule or anything certified by the Minister as done in consequence of such a transfer. These provisions remove collection mechanisms for State revenue and therefore shape enforcement to exclude tax challenges in those specific areas.

No compensation and limited civil remedies against the State

• Section 48(1) declares that compensation is not payable by or on behalf of the State because of the enactment or operation of the Act or because of statements or conduct relating to the enactment. That provision restricts remedies against the State for harms arising from the operation of the Act, and defines compensation broadly (s 48(2)). It shields the Crown, FreightCorp and Crown officers from monetary claims arising directly from authorised steps to implement the sale.

Other enforcement mechanisms

• The Act does not create an extensive catalogue of offences; most compliance will be enforced through statutory effect (for example, vesting by transfer orders, s ch 1 cl 3) and through existing regulatory or contractual regimes. The Treasurer’s powers to enter agreements and to act for FreightCorp or shareholders are enabling rather than penal. Where disputes arise about the construction or application of transfer orders, ordinary civil remedies and judicial review remain available subject to the Act’s conclusive clauses. However, the Schedule’s conclusive language and the certificate evidence rules make post-transfer challenges more difficult procedurally (Schedule 1 cl 2, cl 10; s 50).

In practical terms, enforcement of these provisions will be a mix of summary prosecution for limited breaches (for example unauthorised disclosure under s 10), administrative refusal or correction where registration authorities or trustees do not comply with the Schedule’s rules, and civil litigation in commercial areas where statutory conclusive effects do not wholly oust judicial review or private rights. The Act provides evidentiary and procedural shortcuts for parties implementing transfers, but also places the initial and decisive enforcement capacity in the Treasurer’s hands.

The Act is a specialised instrument designed to operate alongside and to modify the operation of multiple existing statutes and regulatory regimes. It does so by direct reference, by relief or exemption and by providing consequential application and savings provisions.

Corporations law and State Owned Corporations Act

• The Act contemplates conversion to or use of a company for sale purposes and repeatedly references the Corporations Law (interpreted as the Corporations Act 2001 after its commencement) for registration and company matters (ss 16-19; s 46(1)). Section 46(1) directs that references to the Corporations Law be read as references to the Corporations Act 2001 once that Commonwealth Act commences. Section 46(2) declares the sale of FreightCorp an “excluded matter” for the purposes of section 5F of the Corporations Act 2001, meaning Commonwealth corporations legislation does not apply to matters declared by State law to be excluded, as provided in the Corporations Act.
• The Act terminates FreightCorp’s status as a State owned corporation on conversion and applies selected provisions of the State Owned Corporations Act 1989 to the sale company as if it were a State owned corporation, but only those specified or prescribed by regulation (ss 21(1), 26).

Conveyancing, land registration and duties

• The Act exempts the application of a specific Conveyancing Act provision to contracts entered into under ss 11 and 33: section 52A of the Conveyancing Act 1919 does not apply to contracts for the sale of land entered into for purposes of ss 11 or 33 (ss 11(3), 33(3)). The Schedule alters normal land-transfer mechanisms by vesting property in transferees without the need for conveyance and by authorising transferees to lodge certificates with registration authorities which must accept them and cannot charge fees (Schedule 1 cls 3 and 9). Duties normally payable under the Duties Act 1997 are disapplied for transfers effected by the Schedule and for subleases of special leases (ss 14(4), 35(4); Schedule 1 cl 11; ss 31, 41).

Public Finance and Audit Act and Auditor-General secrecy

• Section 10 expressly authorises the Treasurer to approve the Auditor-General’s communication of FreightCorp information to authorised persons, and makes clear that such communication is permitted notwithstanding section 38 (Secrecy) or other provisions of the Public Finance and Audit Act 1983. That creates a statutory exception to Auditor-General secrecy rules for sale-related disclosures, but imposes a statutory non-disclosure duty on the recipients with a penalty for breach (s 10(1)-(3)).

Industrial and employment laws

• Staff transfers are governed in part by the Industrial Relations Act 1996 and other industrial laws referenced in s 42(4). The Act specifically preserves staff continuity and leave entitlements under relevant industrial laws such as the Industrial Relations Act 1996, the Long Service Leave Act 1955 and the Annual Holidays Act 1944 (s 42(4)). The sale company’s sale does not affect employees’ rights as preserved by the Act (s 43).

Superannuation and related Acts

• Schedule 2 interacts with the Superannuation Administration Act 1996 and various public sector superannuation statutes. Schedule 2 explicitly uses terms from the Superannuation Administration Act 1996 and authorises the Treasurer to transfer members between schemes and to make arrangements with trustees and amendments to trust deeds to effect equivalent coverage (Schedule 2 cls 2-4). Regulations under Schedule 2 may have effect despite provisions in the Acts or trust deeds that constitute FTC or STC schemes (Schedule 2 cl 4(3)).

Other statutory interactions and savings

• The Act binds the Crown in right of New South Wales (s 49) and preserves contractual and instrument obligations by asserting that matters falling within s 47 (operation of the Act, disclosure of information, sale, agreements made under the Act) are not to be regarded as a breach of confidence, breach or termination of an instrument, an event of default, or as violating provisions that prohibit or restrict disclosure (s 47(1)-(2)). That clause therefore overrides certain obligations in other laws or instruments to the extent necessary to implement the sale.

Evidentiary and registration interaction

• The certificate-evidence provisions (s 50; Schedule 1 cl 10) interact with ordinary rules of evidence and registration practice by making Treasurer and prescribed officer certificates admissible and by deeming documents to be properly made unless the contrary is established. Registration authorities must accept certificates and perform registrable acts without charging fees (Schedule 1 cl 9).

Limits on guarantees and State liability

• The Act makes clear that the State does not guarantee the obligations of the sale company (ss 30, 40) and that compensation is not payable by or on behalf of the State because of the Act’s enactment or operation (s 48). These clauses interact with the Crown Proceedings Act 1988, which defines the State for the purpose of claims against the Crown and is referenced in s 48’s definition of the State.

Overall the Act is drafted to minimise friction with existing corporate, conveyancing, taxation and superannuation law by creating direct statutory exceptions and by making explicit which other Acts continue to apply, which are displaced and which are modified for the sale. Users must pay attention to the cross-references and to the Act’s express disapplying or overriding clauses because customary common-law or statutory protections may be modified by the Act’s operation, particularly with respect to vesting, registration, duty, and confidentiality.

The text contains embedded amendment notes and repeal references. The Act has been subject to several formal amendments and consequential repeals as recorded in the source.

Key commencement and amendment entries in the text

• Commencement: The Act (other than s 53 and Schedule 3) is taken to have commenced on 13 July 2001 (s 2(1)). Section 53 and Schedule 3 were to commence on days appointed by proclamation (s 2(2)). The source indicates substitution and amendment references: s 2: Subst 2001 No 112, Sch 2.20 [1].
• Repeal of s 53 and Schedule 3: The source records that s 53 was repealed by 2003 No 82, Sch 3 (s 53: Rep 2003 No 82, Sch 3). Similarly, Schedule 3 is marked as repealed (Schedule 3: Rep 2003 No 82, Sch 3).

Specific amendments called out in section notes

• Sections 14 and 15 and related material were amended in 2002: s 14 and s 15 have annotations “Am 2002 No 53, Sch 1.10 [1]” and “Am 2002 No 53, Sch 1.10 [2]” respectively. This indicates amendments in the 2002 legislation No 53 at Schedule 1.10.
• Schedule 1 was amended at its heading: “sch 1: Am 2001 No 112, Sch 2.20 [2]”.
• Section 51 was amended in 2007: s 51: Am 2007 No 94, Sch 4.

Editorial notes and Gazette entries

• Sale date editorial note: the sale date is recorded editorially as 21.2.2002 with Gazette No 47 of 20.2.2002, p 899 noted after s 42.

What the source does not show

• The text does not supply a consolidated list of all historical amendments beyond those inline notes. It does not state the full chronology of every amendment, nor does it publish extrinsic materials such as second reading speeches or explanatory memoranda in the supplied text. The amendment notes cited above are the only amendment history available within the text provided.

Practical implications of the amendment notes in the source

• The 2002 amendments to ss 14 and 15 indicate adjustments to the special lease and dissolution/conversion provisions after initial enactment, which may reflect practical changes to how special leases are treated and what happens to FreightCorp’s corporate form after sale. The 2007 amendment to s 51 reflects procedural changes concerning proceedings for offences. The repeal of s 53 and Schedule 3 in 2003 indicates that some intended or transitional material was removed post-enactment.

For a complete statutory amendment timeline and for the precise text as it stood on particular historical dates, users should consult the official consolidated (revised) Act as published and the Gazette notices referenced. The source gives the key amendment citations needed to pull those materials from legislative databases: 2001 No 112, 2002 No 53 Sch 1.10, 2003 No 82 Sch 3, and 2007 No 94 Sch 4.

The Act text supplied does not record any judicial decisions, reported cases, or litigation history. The statutory text names no cases, and no excerpts of judgments or references to litigation are included in the source material provided.

Absent express case law references in the Act, several provisions are nonetheless likely to be focal points for disputes if litigation occurs. These are jurisdictional observations grounded in the Act’s structure rather than reports of litigation.

Potential litigation focal points, based on statutory mechanics

• Conclusive Treasurer determinations (Schedule 1 cl 2): Since the Schedule makes the Treasurer’s determination about what comprises the business undertaking conclusive for transfer-order purposes, disputes may arise as to the permissible scope or limit of that statutory conclusiveness, particularly where third parties claim an interest in assets classified as transferred. Although the Schedule seeks to reduce litigation by making such determinations conclusive, parties may still litigate whether the determination was validly made, whether the transfer order complied with statutory preconditions, or whether any procedural fairness obligations apply in particular circumstances.

• Vesting and third-party interests (Schedule 1 cl 3): Because assets vest by operation of the Schedule without a need for conveyance, a common area of conflict would be competing claims to property that is transferred. Affected leaseholders, mortgagees or other secured parties might challenge whether a particular interest was properly included or excluded, or might seek remedies against the transferor or transferee for any alleged breach of duty or unconscionable conduct. The Schedule’s deeming that proceedings pending by or against the transferor are taken to be pending by or against the transferee narrows procedural uncertainty, but factual disputes about what proceedings or rights were in place at vesting date may nonetheless arise.

• Special leases and subleases (ss 14 and 35): The Act preserves special leases in FreightCorp and allows the Treasurer to grant subleases or sub-subleases on terms that may override other laws (ss 14(5), 35(5)). Litigation could focus on whether particular terms are enforceable against third parties, especially as the Act states those terms have effect despite any law or rule to the contrary (ss 14(5), 35(5)). Questions may arise over whether such statutory override goes beyond the State’s legislative competence in particular circumstances, or interacts with proprietary rights under other statutes.

• Employee entitlements and superannuation transfers (ss 42-44; Schedule 2): Although the Act preserves employee continuity and accrued leave, disputes might occur about interpretation of “same terms and conditions” post-transfer, or about the implementation of superannuation transfers and the adequacy of “equivalent” benefits where the Treasurer designates a new scheme. Schedule 2 permits the Treasurer and trustees to amend trust deeds and to make regulations to facilitate transfers, which may generate trust-law disputes about trustee duties or beneficiary rights if parties disagree about whether equivalence has been achieved.

• Auditor-General disclosures and confidentiality (s 10): The Act permits Auditor-General disclosures to authorised persons subject to a non-disclosure obligation and a penalty. Litigation could arise where authorised persons are accused of unauthorised recording or diversion of information, or where recipients allege that the Treasurer’s approval for disclosure was invalid.

• Certificate and registration disputes (Schedule 1 cl 9 and cl 10; s 50): Because registration authorities must accept certificates and registrants are deprived of usual fees and possibly usual evidentiary checks, conflicts might arise about the validity of certificates purporting to effect transfer orders. Schedule 1 cl 10 states such documents are deemed to be proper unless the contrary is established, which shapes evidentiary burdens in litigation.

These are areas where courts are likely to be asked to resolve disputes if contested transfers occur. The Act’s textual design, however, seeks to limit litigation by making certain administrative acts conclusive and by providing streamlined certification and registration processes. Any litigation that arises would therefore likely focus on the legality, validity or limits of the Treasurer’s exercise of statutory powers, the application of conclusive clauses, or the adequacy of procedural safeguards in specific factual contexts.

Because the supplied Act does not contain decisions, practitioners seeking judicial interpretation should search case law databases and official law reports for decisions that post-date the enactment and amendatory timeline indicated in the Act’s amendment notes.

The Act contains numerous features that can produce unexpected legal or practical consequences if not anticipated. The following list focuses on operational risks, statutory traps and implementation issues grounded in the Act’s provisions.

1. Narrow definition of permitted purchaser (s 5(2))

• The Act restricts FreightCorp’s purchaser to National Rail Corporation Limited, purchasers of its shares, or related body corporates (s 5(2)). Parties who assume an open market sale are mistaken. Transaction structuring must align with that statutory limitation; otherwise the transfer mechanism provided by the Act cannot be used.

2. Treasurer’s conclusive determinations (Schedule 1 cl 2)

• The Treasurer’s power to determine what assets, rights and liabilities comprise the undertaking and the Schedule’s labelling of those determinations as “conclusive” can foreclose challenges about whether a given asset was included. Practitioners must consider the limited avenues to contest such determinations and ensure administrative processes and documentation are robust before the transfer order is made.

3. Vesting without conveyance and impact on third-party interests (Schedule 1 cl 3)

• Assets transfer by operation of law without conveyance, assignment or registration. This can surprise secured creditors, lessees or other third parties who expect traditional notice via instruments. Although the Schedule provides that proceedings pending by or against the transferor continue as proceedings by or against the transferee, practical steps should be taken to identify encumbrances and to provide notice as appropriate.

4. Registration authorities cannot demand particular form and cannot charge fees (Schedule 1 cl 9(3)-(4))

• Registration authorities must accept the transferee’s certificate and must not impose fees. This rearranges normal registration workstreams. Practitioners should prepare to support registration authorities and to anticipate systems-level delays where registries need to process certificates without customary fee mechanisms or standard forms.

5. Special leases cannot be transferred but may be sub-leased on terms that override other laws (ss 14(1), 14(5); 35(1), 35(5))

• Special leases remain with FreightCorp and cannot be transferred. The Treasurer may grant subleases on terms that have effect “despite any law or rule to the contrary” with respect to matters such as termination and rent retention (ss 14(5), 35(5)). That statutory override can materially alter lessees’ expectations and existing legal protections. Confirm whether particular leases have been designated special leases and, if so, the terms of any subleases Treasury may grant.

6. Directors’ loss of office and lack of compensation (ss 15(4), 21(2), 36(4))

• Directors of FreightCorp cease to hold office on conversion or dissolution and are not entitled to remuneration or compensation due to loss of office (ss 15(4), 21(2), 36(4)). Individuals expecting contractual protections or compensation should check their appointment instruments and any express contractual entitlements, because the Act displaces statutory protection for directors in these circumstances.

7. No government guarantees and public liability disclaimers (ss 30, 40, 48)

• The sale company’s obligations are not guaranteed by the State (ss 30, 40). In addition, s 48 bars compensation claims against the State because of the enactment or operation of the Act or because of statements or conduct relating to it. Parties who rely on State guarantees or expect recourse to State compensation may be surprised.

8. Auditing information can be released and is subject to stringent non-disclosure (s 10)

• The Treasurer may permit the Auditor-General to disclose FreightCorp information to authorised persons, including potential purchasers, but those persons may not record or divulge that information except under narrow exceptions and are at risk of penalty (s 10(1)-(3)). Make sure confidentiality arrangements with potential purchasers conform to Treasurer approvals.

9. Alteration of sale company constitution before share transfer (s 29)

• The Treasurer may authorise or undertake changes to the sale company’s constitution before share transfer, even where those alterations would be inconsistent with the Act or the State Owned Corporations Act, but only to take effect on or after transfer of shares (s 29). Purchasers must scrutinise such changes to ensure they align with the sale agreement and that any post-transfer governance changes are anticipated.

10. Superannuation equivalence and regulatory complexity (Schedule 2)

• Schedule 2 permits transfers of employees’ superannuation coverage and amends trust deeds as the Treasurer directs to achieve “equivalent” benefits (Schedule 2 cl 3). Determining whether a new scheme offers equivalent benefits is complex, and trustees may need regulatory and actuarial work. Disputes about preservation, deferral and calculation of benefits are foreseeable unless the Treasurer’s arrangements are clear and documented.

11. Evidence and challenge thresholds (s 50; Schedule 1 cl 10)

• Certificates from the Treasurer or prescribed officers are admissible and taken as evidence; documents purporting to be transfer orders are presumed valid unless the contrary is established (s 50; Schedule 1 cl 10). Challenging a certified transfer order requires meeting an evidentiary burden to show the certificate or order was not properly made, which can be difficult after vesting has occurred.

12. Interaction with Commonwealth law via excluded matter (s 46(2))

• Section 46(2) makes the sale an “excluded matter” under the Corporations Act 2001 s 5F. That affects interplay with Commonwealth corporate regulation and may have implications for takeovers or other Commonwealth-regulated processes. Practitioners should check the scope and limits of the Commonwealth excluded-matter doctrine as it applies.

In short, the “gotchas” are concentrated around the concentration of Treasurer discretion, statutory finality for transfer orders, altered registration mechanics, special lease arrangements that override ordinary rules, tax and duty exemptions that change transactional costs, and trustee and employee protections that depend heavily on Treasurer directions and regulatory detail. Those designing transactions under the Act should document all Treasury directions, transfer orders, certificates and approvals carefully to minimise post-transfer disputes.

Compliance under the Act requires attention to procedural formalities, the Treasurer’s written directions and orders, evidentiary steps for registration, and coordination with trustees and registration authorities. The following checklist is grounded in the Act’s provisions and is intended for practitioners advising the Treasurer, FreightCorp, purchasers, registration authorities, trustees or employees.

1. Confirm sale method and purchaser eligibility (s 5)

• Ensure the Treasurer has formally determined which of the three sale methods under s 5(1) will be used.
• Confirm the selected purchaser falls within the narrow statutory definition in s 5(2): National Rail Corporation Limited, a purchaser of National Rail’s shares, or a related body corporate.

2. Obtain and record Treasurer’s written directions and orders (ss 7, 9, 12, 16, 22, 34)

• All directions to FreightCorp must be in writing where the Act requires orders in writing; ensure each direction and order is dated and signed by the Treasurer or the authorised official (ss 7; s 9(1); s 12).
• If assets, rights or liabilities are to be excluded from sale, the Treasurer must make a written order (s 9(1)) and may transfer excluded items to the Crown, Ministerial Holding Corporation or other public authority (s 9(2)).
• When transferring assets, the Treasurer must issue a transfer order in writing in the terms contemplated by Schedule 1 (s 12; Schedule 1 cl 4-6).

3. Corporation conversion and company formation steps (Parts 4-5, ss 16-19, 32-34)

• If conversion to a company is required, the Treasurer must direct conversion and FreightCorp must apply for registration as a company and for reservation of name, as directed (ss 16-17). Record and file all Corporations Act registration steps in accordance with the Treasurer’s instructions.
• If a sale company is formed or acquired by the State, ensure all issued shares are held for and on behalf of the State until transfer (s 18) and that the sale company’s constitution is available for proposed pre-sale amendments, which must be timed to take effect on or after share transfer if they are inconsistent with the Act (s 29).

4. Prepare transfer order documentation and Schedule 1 compliance

• Draft transfer orders that include the terms and conditions of vesting, consideration and effective date as permitted by Schedule 1 cl 4-6.
• For interests in land, if a transfer creates a new or partial interest, specify the terms to be created as permitted by Schedule 1 cl 7.
• Ensure transfer orders are properly certified and that copies are prepared for registration authorities and affected third parties.

5. Registration authority interaction and certification (Schedule 1 cl 9)

• Lodge transferee certificates with relevant registration authorities as required by Schedule 1 cl 9(2).
• Anticipate that registration authorities must accept certificates and cannot demand particular forms; provide the information the registry reasonably requires and keep supporting evidence to meet any future challenge (Schedule 1 cl 9(2)-(3)).
• Note that no fees are payable to registration authorities for functions in connection with these transfers (Schedule 1 cl 9(4)).

6. Employee transfer compliance (ss 42-43)

• Publish the sale date in the Gazette as the Treasurer does and notify employees accordingly (s 42(5) notes Gazette publication of sale date).
• Preserve continuity of employment and replicate terms and conditions for employees transferring under sale methods 1 or 3 (s 42(3)(a)-(c)). Document any payments in lieu of accrued leave carefully and ensure such payments are consistent with industrial laws noted in s 42(4).
• For sale by conversion (Part 4), ensure staff records and contracts are updated to reflect the continuing legal entity; no transfer is required because legal identity continues (note after s 42).

7. Superannuation transfers and trustee engagement (Schedule 2)

• Determine which employees are members or contributors to FTC or STC schemes before the staff transfer date (Schedule 2 cl 1).
• If the Treasurer approves remaining membership or orders transfer to a new scheme, obtain written approvals and enter formal arrangements with trustees to ensure equivalent benefits and to amend trust deeds as necessary (Schedule 2 cl 3(1)-(5)).
• Use regulations under Schedule 2