Government Insurance Office (Privatisation) Act 1991
In ForceNSW
Jurisdiction
New South Wales
Act Number
38 of 1991
Collection
act
Plain English Summary
7/10 complexity
This Act converts the State’s Government Insurance Office into a share‑capital public company, gives the Minister broad power to reorganise or exclude parts of the business before sale, and provides for a public float (with an initial cap on any one purchaser). While the State holds a majority the Minister controls the board; sale proceeds and any conversion‑debt repayment flow to the Consolidated Fund. The law preserves employee entitlements, enables statutory vesting of transferred assets/contracts, and relies on regulations and Ministerial directions for implementation.
The Government Insurance Office (Privatisation) Act 1991 establishes a statutory mechanism to convert the former statutory authority known as the Government Insurance Office of New South Wales into a Corporations-Law company and to sell it by public float. Part 2 first creates a share-capital structure: s 5 imposes a nominal share capital of $1,000,000,000 divided into $1 shares, while s 6 requires GIO to apply an amount of its capital (determined by Ministerial order after consulting the GIO Board) to pay up shares that are then issued to the State of New South Wales. That issuance discharges GIO’s pre-conversion capital-repayment obligation to the State (s 6(4)) but leaves intact the separate debt created by s 7, whose quantum is also fixed by Ministerial order and which is intended to be repaid from the float proceeds.
Part 3 effects the conversion. On the day appointed for commencement of Part 3, GIO is deemed registered under the Corporations Law as a public company limited by shares named “GIO Australia Holdings Limited” (s 10). The name change occurs by force of statute (s 11), the memorandum and articles lodged under s 9 become the company’s constitution (s 12), and the State automatically becomes a member (s 13). The former GIO Act 1927 and its amending Acts are repealed (s 17), the GIO Board is dissolved (Sch 1 cl 1), and various Corporations Law provisions are modified or disapplied by Schedule 1 to ensure continuity of accounts, audits and tax-equivalent payments.
Parts 4 and 5 empower the Minister, before or after conversion (while the State still holds all shares issued under Part 2), to direct transfers of parts of the business undertaking between GIO and its subsidiaries (ss 20–21) or to exclude assets, rights and liabilities entirely and vest them in the NSW Self Insurance Corporation or another person on behalf of the State (s 24). Part 8 supplies the machinery: on the making of such an order the identified assets vest automatically without conveyance (s 39(1)(a)), rights and liabilities become those of the transferee (s 39(1)(b)), pending proceedings are taken over (s 39(1)(c)), and references in other instruments are read as references to the transferee (s 39(1)(e)). The transfer is not treated as a breach of contract, does not trigger termination rights, and ancillary instruments are exempt from stamp duty (s 39(2)–(5)). Staff transfers preserve continuity of employment, accrued leave and awards (s 40).
Current sections
Direct links to the current provisions in Government Insurance Office (Privatisation) Act 1991.
(1) This Act commences on days to be appointed by proclamation.
(2) Part 3 is to commence on a day that is after the day appointed for the commencement of Part 2.
3
Object of Act
3 Object of Act
3 Object of Act
The object of this Act is to provide for the conversion of the Government Insurance Office into a public company and for its sale by a public float, and in particular:
(a) to convert GIO from a statutory authority into a public company limited by shares and with the name “GIO Australia Holdings Limited”, and
(b) to repeal the Government Insurance Act 1927 and to apply the Corporations Law to GIO after its conversion, and
(c) to replace the State’s existing equity in GIO by the issue of fully paid up shares to the State and the creation of a debt payable to the State by GIO after its conversion, and
(d) to authorise the Minister to exclude from the sale of GIO any part of the business undertakings of GIO and of its subsidiaries, and to reorganise those business undertakings before the sale, and
(e) to authorise the sale of GIO by a public float (comprising disposal of the shares issued to the State on the conversion and the initial issue of shares by GIO after its conversion to repay the specially created debt to the State) and to limit to 10% the maximum initial shareholding of any one purchaser.
4
Definitions
4 Definitions
4 Definitions
(1) In this Act:
assets means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description (including money), and includes securities, choses in action and documents.
business undertaking of GIO or of a GIO subsidiary means all the assets, rights and liabilities of GIO or the subsidiary.
conversion means the conversion of GIO into a public company on the commencement of Part 3.
excluded undertaking means any assets, rights or liabilities of GIO or a GIO subsidiary which the Minister has directed to be excluded under Part 5.
GIO means the body corporate that, immediately before the conversion, exists because of section 3 of the GIO Act under the name of the Government Insurance Office of New South Wales (that name being changed on conversion to GIO Australia Holdings Limited).
GIO Act means the Government Insurance Act 1927.
GIO Board means the Government Insurance Office of New South Wales Board established by section 3B of the GIO Act.
GIO subsidiary means a subsidiary of GIO within the meaning of the Corporations Law.
instrument means an instrument (other than this Act) which 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 and process of a court.
liabilities means all liabilities, debts and obligations (whether present or future and whether vested or contingent).
rights means all rights, powers, privileges and immunities (whether present or future and whether vested or contingent).
share means a share in the share capital of a body corporate.
the State of New South Wales includes the Crown in right of New South Wales and the Government of New South Wales.
(2) In this Act:
(a) a reference to a function includes a reference to a power, authority and duty, and
(b) a reference to the exercise of a function includes, in the case of a duty, a reference to the performance of that duty.
(3) In this Act, a reference to the business undertaking of GIO or of a GIO subsidiary at any particular time does not include a reference to any part of that undertaking that has been excluded or transferred by this Act before that time.
s 4: Am 2004 No 106, Sch 2.1 [1] [2].
Part 2
Creation of capital structure and other steps prior to conversion of GIO into public company
Part 2 Creation of capital structure and other steps prior to conversion of GIO into public company
Part 2 Creation of capital structure and other steps prior to conversion of GIO into public company
5
Share capital of GIO
5 Share capital of GIO
5 Share capital of GIO
(1) As from the commencement of this Part, GIO is to have a share capital.
(2) The nominal share capital is to be $1,000,000,000. The amount of the issued share capital is to be equal to the amount that section 6 requires to be applied in paying up shares in GIO.
(3) The share capital is to be divided into shares of $1 each.
(4) The share capital may be divided into classes of shares.
(5) Rights may be attached to shares included in a class of shares.
(6) Anything done under subsection (4) or (5) is to be done by the Minister by order in writing.
(7) This section has effect for the purposes of this Act despite anything to the contrary in section 7B (2) of the GIO Act.
(8) As from the conversion, this section has effect subject to the Corporations Law and to the memorandum and articles of association of GIO.
6
Issue of shares in GIO
6 Issue of shares in GIO
6 Issue of shares in GIO
(1) As soon as practicable after the commencement of this Part, GIO is required to apply the requisite amount of its capital in paying up, in full, shares in GIO.
(2) The requisite amount of capital is such amount as the Minister determines by order in writing. The Minister is required to consult with the GIO Board before making such an order.
(3) As soon as practicable after complying with subsection (1), GIO is required to issue the shares paid up under that subsection to the State of New South Wales.
(4) The issue of those shares discharges in full any obligation of GIO existing before the conversion to repay the capital of GIO to the State of New South Wales. The issue of those shares does not discharge the obligation of GIO to repay any debt created by section 7.
(5) The shares so issued are taken to have been issued for valuable consideration other than cash, being the discharge effected by subsection (4).
(6) The State of New South Wales is not a member of GIO at any time before the conversion merely because the State holds shares in GIO.
7
Creation of debt due to State by GIO
7 Creation of debt due to State by GIO
7 Creation of debt due to State by GIO
(1) The purpose of this section is to provide the means (apart from the sale of the shares in GIO issued to the State of New South Wales) by which the State is to receive the proceeds of the sale of GIO by a public float under this Act.
(2) On the conversion, GIO becomes liable to pay to the State of New South Wales such amount as the Minister may determine by order in writing before the conversion.
(3) Any such amount is payable at such time or times as the Minister determines by order in writing and may be recovered by the Minister on behalf of the State as a debt in any court of competent jurisdiction.
8
Retention by GIO of certain distributable reserves
8 Retention by GIO of certain distributable reserves
8 Retention by GIO of certain distributable reserves
(1) The Minister may, before the conversion, determine by order in writing the kinds and amounts of distributable reserves of GIO recorded at that time in its books of account which are to be retained and carried forward in those books of account after the conversion.
(2) The Minister is required to consult with the GIO Board before making such an order.
9
GIO to apply to be registered as a company etc
9 GIO to apply to be registered as a company etc
9 GIO to apply to be registered as a company etc
(1) GIO must, before the conversion:
(a) apply to the Australian Securities Commission under section 133 of the Corporations Law to be registered as a company limited by shares under Division 3 of Part 2.2 of the Corporations Law (Registering non-companies as companies), and
(b) apply to that Commission under section 374 of the Corporations Law for the reservation of the name “GIO Australia Holdings Limited”.
(2) GIO is required to lodge with the application for registration as a company:
(a) proposed memorandum and articles of association of GIO, and
(b) subject to any order in writing of the Minister, the other documents and information required by section 136 of the Corporations Law to accompany the application.
(3) The proposed memorandum of association:
(a) is to specify that the State of New South Wales is to be the sole subscriber to the memorandum and is to take up the number of shares in the capital of GIO issued under section 6, and
(b) is to be signed by the Minister on behalf of the State of New South Wales.
(4) The proposed articles of association:
(a) are to provide that the first directors of GIO after the conversion are to be appointed by the Minister, and
(b) are to be signed by the Minister on behalf of the State of New South Wales.
(5) GIO is entitled to make the applications, and to lodge the documents, referred to in this section.
(6) The name “GIO Australia Holdings Limited” is taken to have been reserved under section 374 of the Corporations Law immediately after the making of the application to reserve that name.
Part 3
Conversion of GIO into public company and repeal of Government Insurance Act 1927
Part 3 Conversion of GIO into public company and repeal of Government Insurance Act 1927
Part 3 Conversion of GIO into public company and repeal of Government Insurance Act 1927
10
GIO taken to be registered under Corporations Law as public company
10 GIO taken to be registered under Corporations Law as public company
10 GIO taken to be registered under Corporations Law as public company
(1) On the commencement of this Part:
(a) the application referred to in section 9 for registration as a company is taken to have been granted, and
(b) GIO is taken to have been registered under section 137 of the Corporations Law:
(i) by the name “GIO Australia Holdings Limited”, and
(ii) as a public company, and as a company limited by shares, within the meaning of the Corporations Law, and
(c) the name “GIO Australia Holdings Limited” is taken to have been registered in respect of GIO under section 374 (5) of the Corporations Law.
(2) The date of commencement of GIO’s registration as a company under Division 3 of Part 2.2 of the Corporations Law is taken to be the date of commencement of this Part.
(3) For the purposes of Division 3 of Part 2.2 of the Corporations Law, GIO is taken to have been, immediately before the commencement of this Part, and to be on that commencement, a corporation within the meaning of the Corporations Law.
11
New name of GIO
11 New name of GIO
11 New name of GIO
(1) On the conversion, GIO’s name is, by force of this subsection, changed to “GIO Australia Holdings Limited”.
(2) Section 382 (4) of the Corporations Law applies in relation to the change of name made by subsection (l) as if:
(a) GIO were a company, within the meaning of the Corporations Law, when the change was made, and
(3) This section has effect despite anything in the Corporations Law, but nothing in this section prevents:
(a) GIO from later changing its name under section 382 of the Corporations Law, or
(b) the cancellation, under Part 4.2 of the Corporations Law, of the registration of a name.
(4) GIO or a GIO subsidiary is not entitled to use in connection with its business the name “Government Insurance Office” or any other name (apart from “GIO”) which suggests that it is associated with the State of New South Wales. This subsection does not apply during any period to which Part 7 applies.
12
Memorandum and articles of GIO
12 Memorandum and articles of GIO
12 Memorandum and articles of GIO
(1) As from the conversion, the proposed memorandum and articles of association lodged under section 9:
(a) are respectively the memorandum and articles of association of GIO, and
(b) bind GIO and its members accordingly.
(2) As from the conversion, the Corporations Law applies in relation to GIO’s memorandum and articles of association as if they had been registered as such under the Corporations Law.
13
Membership of GIO
13 Membership of GIO
13 Membership of GIO
(1) The State of New South Wales, as the holder of shares in GIO at the conversion, becomes (by force of this subsection) a member of GIO at the conversion.
(2) The State of New South Wales is, in relation to membership of GIO, entitled to the same rights, privileges and benefits, and is subject to the same duties, liabilities and obligations, as if it had become a member of GIO under its memorandum and articles of association.
14
Minister may act for State as shareholder
14 Minister may act for State as shareholder
14 Minister may act for State as shareholder
The Minister may act for or on behalf of the State of New South Wales in connection with:
(a) the rights, privileges and benefits, and
(b) the duties, liabilities and obligations,
of the State as the holder of shares in GIO which were issued to the State under Part 2.
15
Continuity of GIO and construction of references to GIO
15 Continuity of GIO and construction of references to GIO
15 Continuity of GIO and construction of references to GIO
(1) Without limiting any other provision of this Act or the Corporations Law, GIO Australia Holdings Limited is a continuation of, and the same legal entity as, GIO (as it existed before the conversion).
(2) After the conversion, a reference in any other Act or in any instrument made under any Act or in any other document of any kind to the Government Insurance Office is to be read as (or as including) a reference to GIO Australia Holdings Limited, unless it is required by this Act to be read as a reference to some other person because it relates to an excluded undertaking or an undertaking transferred to a GIO subsidiary company. This subsection is subject to the regulations under section 46 (2).
16
Government guarantee continued for existing or pre-sale policies etc
16 Government guarantee continued for existing or pre-sale policies etc
16 Government guarantee continued for existing or pre-sale policies etc
(1) The payment of all money under a policy or contract which, immediately before the repeal of section 8 of the GIO Act, was guaranteed by the State under that section continues to be guaranteed by the State. The guarantee continues despite the repeal of that section and despite the fact that GIO’s liabilities under the policy or contract have been transferred, whether by the operation of this Act or otherwise.
(2) In addition, the payment of all money under a policy or contract of a class approved from time to time by the Treasurer for the purposes of this section is guaranteed by the State. The policies or contracts that may be so approved are those issued or made:
(a) by GIO or a GIO subsidiary at any time when the State of New South Wales holds shares in GIO (being shares issued under Part 2) or at any later time if before that time GIO or the GIO subsidiary offered to issue or make the policies or contracts, or
(b) by the Self Insurance Corporation or other person to whom the excluded undertaking to which the policies or contracts relate is transferred under this Act.
(3) Any liability arising from the guarantee under this section is to be met out of the Consolidated Fund, which is appropriated accordingly.
s 16: Am 2004 No 106, Sch 2.1 [3].
17
Repeal of GIO Act etc
17 Repeal of GIO Act etc
17 Repeal of GIO Act etc
On the conversion, the following Acts and the regulations under those Acts are repealed:
Savings and transitional provisions relating to conversion of GIO into public company
18 Savings and transitional provisions relating to conversion of GIO into public company
18 Savings and transitional provisions relating to conversion of GIO into public company
Schedule 1 has effect.
19
19
19 (Repealed)
Part 4
Reorganisation of GIO business undertaking in connection with conversion and sale of GIO
Part 4 Reorganisation of GIO business undertaking in connection with conversion and sale of GIO
Part 4 Reorganisation of GIO business undertaking in connection with conversion and sale of GIO
20
Minister may direct transfer of parts of GIO business undertaking to GIO subsidiary
20 Minister may direct transfer of parts of GIO business undertaking to GIO subsidiary
20 Minister may direct transfer of parts of GIO business undertaking to GIO subsidiary
(1) The Minister may, by order in writing, direct that any part or parts of GIO’s business undertaking be transferred to a GIO subsidiary or GIO subsidiaries specified in the order.
(2) Part 8 applies to an order under this section.
21
Minister may direct transfer of parts of business undertaking of GIO subsidiary to other subsidiaries or to GIO
21 Minister may direct transfer of parts of business undertaking of GIO subsidiary to other subsidiaries or to GIO
21 Minister may direct transfer of parts of business undertaking of GIO subsidiary to other subsidiaries or to GIO
(1) The Minister may, by order in writing, direct that any part or parts of the business undertaking of a GIO subsidiary (including anything transferred under this Part) be transferred to another GIO subsidiary specified in the order or to GIO.
(2) Part 8 applies to an order under this section.
22
Allocation of transferred assets to capital and reserves
22 Allocation of transferred assets to capital and reserves
22 Allocation of transferred assets to capital and reserves
(1) The Minister may, by order in writing, direct that any assets transferred to a GIO subsidiary or to GIO under this Part are to be allocated to capital and reserves in such amounts and in accordance with such requirements as are specified in the order.
(2) Any shares issued in accordance with a direction under this Part are taken to have been issued in consideration of the vesting in the GIO subsidiary or GIO under this Part of the assets allocated to capital.
23
Time when transfers may be effected
23 Time when transfers may be effected
23 Time when transfers may be effected
(1) An order under this Part may be made before, on or after the conversion of GIO into a public company.
(2) After the conversion, any such order may not be made unless all the shares in GIO are held by the State of New South Wales (being the shares issued under Part 2). However, the order may be expressed to take effect after the State has ceased to hold all or any of those shares.
Part 5
Exclusion of parts of business undertaking from GIO or GIO subsidiary
Part 5 Exclusion of parts of business undertaking from GIO or GIO subsidiary
Part 5 Exclusion of parts of business undertaking from GIO or GIO subsidiary
24
Excluded undertakings
24 Excluded undertakings
24 Excluded undertakings
(1) The Minister may direct, by order in writing, that any assets, rights or liabilities that are part of the business undertaking of GIO or a GIO subsidiary be excluded from that business undertaking and transferred to the Self Insurance Corporation or another person on behalf of the State of New South Wales.
(2) If an excluded undertaking includes money, the order may direct the payment of the money into the Consolidated Fund.
(3) An order under this section may define an excluded undertaking by reference to a business undertaking other than any part specified in the order.
(4) Part 8 applies to an order under this section.
s 24: Am 2004 No 106, Sch 2.1 [3].
25
Time when exclusion may be effected
25 Time when exclusion may be effected
25 Time when exclusion may be effected
(1) An order under this Part may be made before, on or after the conversion of GIO into a public company.
(2) After the conversion, any such order may not be made unless all the shares in GIO are held by the State of New South Wales (being the shares issued under Part 2). However, the order may be expressed to take effect after the State has ceased to hold all or any of those shares.
26
Self Insurance Corporation etc may sell excluded undertaking or retain it
26 Self Insurance Corporation etc may sell excluded undertaking or retain it
26 Self Insurance Corporation etc may sell excluded undertaking or retain it
(1) The Self Insurance Corporation or any other person to whom any excluded undertaking is transferred may:
(a) sell or otherwise dispose of the whole or any part of the excluded undertaking, or
(b) retain the whole or any part of the excluded undertaking and conduct any business to which it relates.
(2) The Minister may, for the purposes of any such sale or other disposal, direct by order in writing that the excluded undertaking concerned be transferred to the body or person to whom it is being sold or otherwise disposed of.
(3) Part 8 applies to an order under this section.
s 26: Am 2004 No 106, Sch 2.1 [4].
27
GIO or subsidiary may act as agent etc with respect to excluded undertaking
27 GIO or subsidiary may act as agent etc with respect to excluded undertaking
27 GIO or subsidiary may act as agent etc with respect to excluded undertaking
The Self Insurance Corporation or any other person to whom any excluded undertaking is transferred under this Part may enter into an agreement or arrangement with GIO or a GIO subsidiary for the exercise by GIO or the GIO subsidiary (as an agent or otherwise) of such functions relating to the excluded undertaking as are specified in the agreement or arrangement.
s 27: Am 2004 No 106, Sch 2.1 [3].
28
28
28 (Repealed)
Part 6
Sale of GIO by public float after conversion into public company
Part 6 Sale of GIO by public float after conversion into public company
Part 6 Sale of GIO by public float after conversion into public company
29
Sale of GIO by public float
29 Sale of GIO by public float
29 Sale of GIO by public float
(1) The Minister may make arrangements for the sale of GIO by a public float, comprising the disposal of the shares issued to the State under Part 2 and the initial issue of shares by GIO after its conversion to repay the debt to the State created under Part 2.
(2) The arrangements may include underwriting agreements and the issue of a prospectus.
(3) This section does not require all the money paid for the initial issue of shares to be applied to the repayment of the debt to the State.
30
State may dispose of its shares
30 State may dispose of its shares
30 State may dispose of its shares
(1) The State of New South Wales may, subject to this Part, dispose of all or any of its shares in GIO.
(2) The Minister is authorised to enter into agreements for the transfer to any person of those shares. Without limitation, any such person may be a body corporate.
31
Maximum shareholding of 10% of shares offered in public float
31 Maximum shareholding of 10% of shares offered in public float
31 Maximum shareholding of 10% of shares offered in public float
(1) This section applies to the issue of shares by GIO under its first registered prospectus and the disposal by the State of New South Wales of its shares in GIO.
(2) A person must not (whether as principal or agent):
(a) apply to GIO (or to an agent or underwriter) for the issue of shares in GIO, or
(b) offer or agree to acquire the shares in GIO of the State of New South Wales,
if the issue or acquisition would have the result that the relevant interest of a person in GIO would be more than 10%.
Maximum penalty: 500 penalty units.
(3) The relevant interest of a person in GIO at a particular time is equal to the percentage of the total paid-up share capital of GIO in which the person holds an interest.
(4) A person is taken to have an interest in shares for the purposes of this section if the person has such an interest within the meaning of the Banks (Shareholdings) Act 1972 of the Commonwealth.
(5) This section has effect subject to such exceptions or modifications (if any) as are prescribed by the regulations.
(6) It is a defence to a prosecution for an offence against this section if the defendant proves that the contravention was due to the defendant not being aware of a fact or occurrence the existence of which was necessary to constitute the offence.
(7) Proceedings for an offence against this section are to be dealt with by the Supreme Court in its summary jurisdiction.
(8) A contract, dealing or other transaction affecting shares in GIO is not unenforceable, voidable or void merely because the contract, dealing or other transaction was entered into in contravention of this section.
32
Proceeds of sale
32 Proceeds of sale
32 Proceeds of sale
(1) The proceeds of the sale of GIO must be paid into the Consolidated Fund.
(2) The proceeds of sale consist of any payment for the disposal of the shares of the State of New South Wales, any repayment of the debt to the State created under Part 2 and any proceeds of the sale of an excluded undertaking determined by the Minister.
(3) There may be deducted from the proceeds of sale before payment into the Consolidated Fund such amount as the Minister approves to meet the expenses reasonably incurred in connection with the sale (including expenses incurred in connection with the conversion of GIO into a public company).
33
Special trust account for proceeds of public float pending repayment of debt to State
33 Special trust account for proceeds of public float pending repayment of debt to State
33 Special trust account for proceeds of public float pending repayment of debt to State
(1) All money paid to GIO by an applicant for the issue of shares by GIO under its first registered prospectus must, until the repayment of the debt to the State created under Part 2, be held by GIO in a bank account kept by GIO solely for the purpose of depositing money paid by applicants for the issue of those shares.
(2) The terms of operation of the bank account are to be that GIO may not withdraw money from the account without the Minister’s consent and that the Minister may without restriction withdraw money from the account to repay the debt.
(3) A bank with which any such money has been deposited does not have any duty to inquire into or see to the proper application of the money so long as the bank acts in good faith.
(4) This section does not authorise the withdrawal of money from the bank account before the issue of the shares for which the money was paid.
Part 7
Special provisions applying to GIO during period after conversion into public company and prior to disposal of State’s majority shareholding
Part 7 Special provisions applying to GIO during period after conversion into public company and prior to disposal of State’s majority shareholding
Part 7 Special provisions applying to GIO during period after conversion into public company and prior to disposal of State’s majority shareholding
34
Application of Part during majority shareholding in GIO by State
34 Application of Part during majority shareholding in GIO by State
34 Application of Part during majority shareholding in GIO by State
This Part applies during any period after the conversion when a majority of the issued shares in GIO are held by the State of New South Wales—the shares held by the State being shares issued under Part 2.
35
Ministerial control
35 Ministerial control
35 Ministerial control
(1) The board of directors of GIO is, in the exercise of its functions, subject to the control and direction of the Minister.
(2) Neither the enactment of this section nor the exercise of the Minister’s powers under this section constitutes the Minister as a director of GIO or a person who participates in the management of GIO.
(3) A director of GIO is not personally liable in any civil or criminal proceedings (including proceedings for a breach of any duty under the Corporations Law) for anything done or omitted for the purpose only of complying with a direction of the Minister under this section.
36
Status of GIO etc
36 Status of GIO etc
36 Status of GIO etc
(1) GIO (and any GIO subsidiary to which any part of GIO’s business undertaking is transferred under this Act) are agencies through which the State of New South Wales engages in State insurance, and for that purpose are public authorities of the State.
(2) However, GIO or any GIO subsidiary:
(a) is not and does not represent the State of New South Wales except by express agreement with the Minister, and
(b) is not exempt from any rate, tax, duty or other impost imposed by or under any law of the State of New South Wales merely because it is a company in which the State holds shares, and
(c) cannot render the State of New South Wales liable for any debts, liabilities or obligations of GIO or any GIO subsidiary,
unless this Act or any other Act or law otherwise expressly provides.
(3) In this section, State insurance means State insurance as referred to in section 51 (xiv) of the Commonwealth Constitution.
37
Application of certain provisions of State Owned Corporations Act 1989 to GIO
37 Application of certain provisions of State Owned Corporations Act 1989 to GIO
The following provisions of the State Owned Corporations Act 1989 apply to GIO as if it were a State owned corporation (with or without any modification prescribed by the regulations):
(a) such of the provisions of Part 4 (Accountability) as are prescribed by the regulations,
(b) section 35 (Affirmative action),
(c) section 36 (Application of other Acts),
(d) any other provision prescribed by the regulations.
Part 8
Vesting of undertaking on transfer etc
Part 8 Vesting of undertaking on transfer etc
Part 8 Vesting of undertaking on transfer etc
38
Application and interpretation
38 Application and interpretation
38 Application and interpretation
(1) This Part applies to the following orders under this Act:
(a) an order under Part 4 transferring a part of the business undertaking of GIO to a GIO subsidiary or transferring a part of the business undertaking of a GIO subsidiary to another GIO subsidiary or to GIO,
(b) an order under Part 5 excluding a part of the business undertaking of GIO or a GIO subsidiary and transferring it to the Self Insurance Corporation or other person on behalf of the State,
(c) an order under Part 5 transferring any part of the excluded undertaking to a person acquiring it from the Self Insurance Corporation or other person on behalf of the State.
(2) In this Part, the body or person from whom a part of a business undertaking is so transferred is called the transferor and the body or person to whom it is being so transferred is called the transferee.
s 38: Am 2004 No 106, Sch 2.1 [3].
39
Vesting of undertaking etc in transferee
39 Vesting of undertaking etc in transferee
39 Vesting of undertaking etc in transferee
(1) When any part of a business undertaking is transferred by an order to which this Part applies, the following provisions have effect (subject to the order directing the transfer):
(a) the assets of the transferor comprised in that part of the undertaking vest in the transferee by force of this section and without the need for any conveyance, transfer, assignment or assurance,
(b) the rights and liabilities of the transferor comprised in that part of the undertaking become by force of this section the rights and liabilities of the transferee,
(c) all proceedings relating to that part of the undertaking commenced before the transfer by or against the transferor and pending immediately before the transfer are taken to be proceedings pending by or against the transferee,
(d) anything done or omitted to be done in relation to that part of the undertaking before the transfer by, to or in respect of the transferor is (to the extent that it has any force or effect) taken to have been done or omitted to be done by, to or in respect of the transferee,
(e) a reference in any other Act, in any instrument made under any Act or in any document of any kind to the transferor is (to the extent that it relates to that part of the undertaking but subject to the regulations under section 46 (2)) to be read as, or as including, a reference to the transferee.
(2) The operation of this section is not to be regarded:
(a) as a breach of contract or confidence or otherwise as a civil wrong, or
(b) as a breach of any contractual provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities, or
(c) as giving rise to any remedy by a party to an instrument, or as causing or permitting the termination of any instrument, because of a change in the beneficial or legal ownership of any asset, right or liability.
(3) The operation of this section is not to be regarded as an event of default under any contract or other instrument.
(4) No attornment to the transferee by a lessee from the transferor is required.
(5) Any instrument executed only for:
(a) a purpose ancillary to or consequential on the operation of this section, or
(b) the purpose of giving effect to this section,
is not chargeable with stamp duty.
40
Transfer of staff
40 Transfer of staff
40 Transfer of staff
(1) This section applies when an order to which this Part applies includes the transfer of the employment of staff from the transferor to the transferee.
(2) Each member of the staff concerned becomes after the transfer a member of the staff of the transferee and continues (until other provision is duly made) to be employed in accordance with the awards, agreements and determinations applying, immediately before the transfer, to members of the staff of the transferor.
(3) Neither the contract of employment nor the period of employment of each member of the staff concerned is taken to have been broken by the operation of this Act for the purposes of any law, award or agreement relating to the employment of that member of staff.
(4) Without limiting this section, this Act does not affect any accrued rights that the member of the staff concerned had immediately before the transfer in relation to any kind of leave.
(5) A member of the staff concerned is not entitled to receive any payment or other benefit merely because the member ceases to be an employee of the transferor.
41
Consideration etc for vestings
41 Consideration etc for vestings
41 Consideration etc for vestings
An order to which this Part applies may specify the consideration on which the order is made and the value or values at which the assets, rights or liabilities are transferred.
Part 9
Miscellaneous
Part 9 Miscellaneous
Part 9 Miscellaneous
42
Act binds Crown
42 Act binds Crown
42 Act binds Crown
This Act binds the Crown not only in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.
42A
42A
42A (Repealed)
43
Non-disclosure of confidential information relating to GIO’s customers
43 Non-disclosure of confidential information relating to GIO’s customers
43 Non-disclosure of confidential information relating to GIO’s customers
Information with respect to the affairs of an individual customer of GIO or of a GIO subsidiary is not to be disclosed to the Minister or any other person pursuant to any power conferred by this Act.
44
Exemption from tax for conversion documents etc
44 Exemption from tax for conversion documents etc
44 Exemption from tax for conversion documents etc
(1) In this section:
exempt matter means:
(a) the issue of shares in GIO under Part 2 and the disposal of those shares by the State, or
(b) the application by GIO under this Act for registration as a company or for the reservation of its name, or
(c) any other matter related to the conversion of GIO into a public company under this Act.
State tax means application or registration fees, stamp duty or any other tax, duty, fee or charge imposed by any Act or law of the State.
(2) State tax is not payable in relation to:
(a) an exempt matter, or
(b) anything done because of, or for a purpose connected with or arising out of, an exempt matter.
(3) This section does not limit the operation of section 39 (5).
45
Certificate evidence
45 Certificate evidence
45 Certificate evidence
A certificate purporting to be signed by the Minister or a prescribed officer that:
(a) an order specified or referred to in the certificate is an order made by the Minister under a specified provision of this Act, or
(b) a specified class of policies or contracts have been approved by the Treasurer under section 16,
is admissible in evidence in any legal proceedings and is evidence of the matters certified.
46
Regulations
46 Regulations
46 Regulations
(1) 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.
(2) In particular, the regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act (including the interpretation of references to GIO or the GIO Act).
(3) Any such savings or transitional provisions may, if the regulations so provide, take effect from the date of assent to this Act or a later date.
(4) To the extent to which any such savings or transitional provision takes effect on a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State, GIO, a GIO subsidiary or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State, GIO, a GIO subsidiary or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
Schedule 1
Savings and transitional provisions relating to conversion of GIO into a public company
Schedule 1 Savings and transitional provisions relating to conversion of GIO into a public company
Schedule 1 Savings and transitional provisions relating to conversion of GIO into a public company
(Section 18)
Schedule 2
Schedule 2
Schedule 2 (Repealed)
sch 2: Rep 1999 No 85, Sch 4.
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 may be cited as the Government Insurance Office (Privatisation) Act 1991.
2 Commencement
2 Commencement
2 Commencement
(1) This Act commences on days to be appointed by proclamation.
(2) Part 3 is to commence on a day that is after the day appointed for the commencement of Part 2.
3 Object of Act
3 Object of Act
3 Object of Act
The object of this Act is to provide for the conversion of the Government Insurance Office into a public company and for its sale by a public float, and in particular:
(a) to convert GIO from a statutory authority into a public company limited by shares and with the name “GIO Australia Holdings Limited”, and
(b) to repeal the Government Insurance Act 1927 and to apply the Corporations Law to GIO after its conversion, and
(c) to replace the State’s existing equity in GIO by the issue of fully paid up shares to the State and the creation of a debt payable to the State by GIO after its conversion, and
(d) to authorise the Minister to exclude from the sale of GIO any part of the business undertakings of GIO and of its subsidiaries, and to reorganise those business undertakings before the sale, and
(e) to authorise the sale of GIO by a public float (comprising disposal of the shares issued to the State on the conversion and the initial issue of shares by GIO after its conversion to repay the specially created debt to the State) and to limit to 10% the maximum initial shareholding of any one purchaser.
4 Definitions
4 Definitions
4 Definitions
(1) In this Act:
assets means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description (including money), and includes securities, choses in action and documents.
Government Insurance Office (Privatisation) Act 1991 (New South Wales) | Zoe
Part 6 authorises the public float (s 29). The State may dispose of its shares (s 30) but a statutory 10 % cap applies to both applications for new shares under the first prospectus and acquisitions of the State’s shares (s 31(2)). Breach attracts a 500-penalty-unit fine, though the contract itself remains enforceable (s 31(8)). Proceeds must be paid into the Consolidated Fund after deduction of sale expenses (s 32). A special trust account holds application moneys until the s 7 debt is repaid (s 33).
Part 7 imposes Ministerial direction over the board while the State retains a majority of the Part 2 shares (ss 34–35). Directors are protected from personal liability for complying with Ministerial directions (s 35(3)). GIO is deemed a public authority for the limited purpose of State insurance under s 51(xiv) of the Constitution but is otherwise not an emanation of the Crown (s 36). Selected provisions of the State Owned Corporations Act 1989 are applied with modifications (s 37).
Part 9 contains miscellaneous machinery: the Act binds the Crown (s 42), prohibits disclosure of customer information to the Minister (s 43), grants tax exemptions for conversion documents (s 44), provides for certificate evidence (s 45) and authorises regulations that may have retrospective effect subject to non-prejudiciality safeguards (s 46).
Schedule 1 contains detailed savings rules that, among other things, dissolve the GIO Board without compensation (cl 1), modify Corporations Law member and winding-up rules while the State remains sole shareholder (cl 2), terminate the Auditor-General’s role post-conversion (cl 3), preserve pre-conversion tax-equivalent liabilities (cl 4) and deem superannuation contributors to have elected to preserve benefits (cl 5).
Collectively the Act therefore effects a statutory transformation of legal personality, capital structure, ownership and (selectively) business scope while preserving policyholder guarantees (s 16), staff entitlements and contractual continuity.
Who it affects
The legislation directly affects five principal classes.
First, the State of New South Wales (including the Crown and the Government) is both transferor and initial shareholder. It receives the Part 2 shares (s 6(3)), becomes a member on conversion (s 13), may exercise rights through the Minister (s 14), directs all transfers and exclusions (Parts 4–5), controls the board while it holds a majority (s 35), receives the s 7 debt repayment and float proceeds (ss 7, 32), and remains guarantor of pre-repeal and approved policies (s 16).
Second, GIO itself (and its subsidiaries) undergoes the most radical change. Before conversion it is a statutory authority; after s 10 it is a Corporations-Law public company. Its business undertaking may be carved up by Ministerial order (ss 20–21, 24), its memorandum and articles are fixed by statute (s 12), its first directors are Ministerial appointees (s 9(4)), and it is subject to Ministerial direction during the majority-shareholding period (s 35). It must hold application moneys in a special trust account (s 33) and is prohibited from using the name “Government Insurance Office” after the transitional period (s 11(4)).
Third, employees of GIO or a GIO subsidiary whose employment is transferred under a Part 8 order have their contracts, awards, accrued leave and continuity of service preserved (s 40). Those who were contributors to State superannuation funds are deemed to have elected to preserve benefits (Sch 1 cl 5).
Fourth, policyholders and counterparties to contracts forming part of the business undertaking or excluded undertaking benefit from the continuity rules in s 39(1)(d) and the continued State guarantee under s 16 for policies guaranteed immediately before repeal of s 8 of the GIO Act or later approved by the Treasurer.
Fifth, investors and the capital markets are regulated by the 10 % shareholding cap in s 31, the prospectus and underwriting arrangements authorised by s 29, and the statutory protection that contracts entered in breach of the cap remain enforceable (s 31(8)).
The NSW Self Insurance Corporation, inserted by 2004 amendments, is the default transferee of excluded undertakings (s 24(1)) and may on-sell or retain them (s 26), appoint GIO as its agent (s 27), and benefit from the vesting and continuity rules in Part 8.
Key duties and rights
Key duties fall primarily on the Minister and on GIO.
The Minister must consult the GIO Board before determining the amount of capital to be applied in paying up shares (s 6(2)), before determining which distributable reserves are retained post-conversion (s 8(2)), and before fixing the quantum of the s 7 debt. The Minister’s rights include the power to issue orders under ss 5(6), 6(2), 7(2), 8(1), 20–26, 29 and 35, to act for the State as shareholder (s 14), and to approve expenses deductible from float proceeds (s 32(3)).
GIO’s duties include applying the requisite capital and issuing shares to the State (s 6), applying for registration and name reservation (s 9), lodging the Ministerial-signed memorandum and articles (s 9(2)–(4)), holding application moneys in a dedicated trust account until the s 7 debt is repaid (s 33(1)), and complying with Ministerial directions while the State holds a majority (s 35(1)). It is prohibited from disclosing customer information to the Minister (s 43).
Rights of the State as shareholder are equated to those of any member once conversion occurs (s 13(2)), but while it holds all shares issued under Part 2 certain Corporations Law provisions are disapplied (Sch 1 cl 2). Policyholders retain the benefit of the State guarantee (s 16). Transferees under Part 8 orders receive automatic vesting of assets, rights and liabilities without the need for further assurance (s 39(1)). Staff retain all accrued employment rights (s 40).
The 10 % cap in s 31 creates a statutory duty on applicants and purchasers not to acquire a relevant interest exceeding 10 %; the relevant-interest test cross-refers to the Banks (Shareholdings) Act 1972 (Cth) (s 31(4)). A due-diligence defence is available (s 31(6)).
Penalties and enforcement
The only offence-creating provision is s 31(2), which prohibits applications or acquisitions that would result in a relevant interest exceeding 10 % of the paid-up share capital. The maximum penalty is 500 penalty units. Proceedings are brought in the Supreme Court in its summary jurisdiction (s 31(7)). A defendant may avoid liability by proving lack of awareness of the facts constituting the offence (s 31(6)). Contracts entered in breach are not rendered void or unenforceable (s 31(8)).
No other penalties are created by the Act. Enforcement of Ministerial orders occurs through the automatic vesting rules in s 39 rather than through sanctions. Debt recovery under s 7(3) is by ordinary civil action in a court of competent jurisdiction. The guarantee obligations in s 16 are met from the Consolidated Fund (s 16(3)). Certificate evidence under s 45 facilitates proof of orders and approvals in any legal proceedings.
How it interacts with other laws
The Act is expressly structured to operate in tandem with the Corporations Law (now Corporations Act 2001 (Cth)). Sections 9–12 deem the registration application granted, the name reserved and registered, and the lodged memorandum and articles to take effect as if registered under the Law. Schedule 1 selectively disapplies or modifies ss 186, 461(d), 249(7), 139(2)–(3), 151(5), 409 and Division 2 of Part 5.6. After conversion, GIO is subject to the Law except to the extent overridden (s 5(8), s 11(3), s 12(2)).
The Act also interacts with the Public Finance and Audit Act 1983 by treating accounts kept under that Act as Corporations Law accounting records (Sch 1 cl 2(5)) and former financial reports as profit-and-loss accounts (Sch 1 cl 2(6)). Auditor-General functions cease after conversion except for prior years (Sch 1 cl 3).
The State Owned Corporations Act 1989 is applied selectively by s 37 during the majority-shareholding period. The NSW Self Insurance Corporation Act 2004 supplies the transferee entity for excluded undertakings (ss 4, 24, 26, 27, 38).
Commonwealth law is engaged through the cross-reference in s 31(4) to the Banks (Shareholdings) Act 1972 (Cth) and through the constitutional characterisation of “State insurance” in s 36(3) by reference to s 51(xiv) of the Constitution. The Act binds the Crown in all capacities so far as legislative power permits (s 42).
Stamp-duty exemption for instruments ancillary to the vesting rules is provided by s 39(5) and reinforced by the broader tax exemption in s 44 for “exempt matters” connected with conversion.
Recent changes and why
The text records amendments by the NSW Self Insurance Corporation Act 2004 No 106, Sch 2.1. Those amendments inserted the definition of “Self Insurance Corporation” (s 4), expanded the guarantee provision to policies issued by that Corporation (s 16(2)(b)), substituted the Corporation as the recipient of excluded undertakings (ss 24(1), 26, 27, 38), and repealed s 28. The changes were made to allow the State to retain, through a dedicated statutory corporation, insurance liabilities and assets that were judged unsuitable for full privatisation while still permitting the core GIO business to be floated. The 1999 amendments (noted at ss 19 and Sch 2) repealed spent provisions.
These amendments therefore extended the Act’s utility from a single privatisation event into an ongoing restructuring vehicle for public insurance liabilities.
Court challenges and controversies
The Act itself contains no recitals of specific court challenges. However, several structural features have inherent tension with general company law that could ground litigation. Section 35 subjects the board to Ministerial control yet expressly states that neither the section nor its exercise makes the Minister a director or manager (s 35(2)); directors are given a statutory immunity for complying with directions (s 35(3)). This attempts to reconcile public ownership with corporate form and could be tested against fiduciary duties under the Corporations Act.
The automatic vesting rule in s 39(1) declares that transfers do not breach contracts, do not constitute events of default and do not require attornment. A counterparty might argue that the statutory override interferes with vested contractual rights in a manner engaging constitutional acquisition of property on other than just terms, although s 39(2)–(4) seeks to foreclose such arguments.
The 10 % cap in s 31, while modelled on Commonwealth banking legislation, applies only to the initial float; its interaction with takeover thresholds under the Corporations Act and with the substantial holding notification provisions has not been tested on the face of the Act. The defence in s 31(6) places an evidentiary burden on the defendant once the prosecution proves the relevant interest exceeded 10 %.
The continued State guarantee under s 16, funded from the Consolidated Fund, raises questions of fiscal transparency and could be challenged if the quantum of contingent liability is alleged to have been understated to the Parliament.
No specific High Court or Supreme Court decisions are recited in the Act; the absence of a statutory note of challenges suggests that the carefully drafted continuity and immunity provisions have so far avoided reported litigation.
Gotchas
Most practitioners assume that once a company is registered under the Corporations Act all prior statutory constraints disappear; yet ss 35–37 continue Ministerial direction and selected State Owned Corporations Act accountability rules for so long as the State holds a majority of the Part 2 shares, even after the company has been listed. The immunity in s 35(3) for directors is narrower than it first appears: it protects only acts or omissions “for the purpose only of complying with a direction”; any collateral commercial decision could fall outside the shield.
The definition of “excluded undertaking” in s 4 and the power in s 24(3) to define it by reference to the whole business undertaking “other than any part specified” allow the Minister to carve out liabilities with surgical precision; however, once an order is made the vesting under s 39 is absolute and cannot be undone without fresh legislation or a further order while the State still holds all shares.
Section 31(8) preserves the validity of contracts made in breach of the 10 % cap, yet the 500-penalty-unit fine remains. A sophisticated investor could structure holdings through associates to test the outer limits of the “relevant interest” test imported from the Banks (Shareholdings) Act 1972 (Cth); the Act provides no safe-harbour clearance procedure.
The special trust account in s 33 must be used for all application moneys until the s 7 debt is repaid; any premature withdrawal without Ministerial consent would breach the statutory trust even if the company is otherwise solvent. Conversely, the bank holding the account is relieved of any duty to monitor application provided it acts in good faith (s 33(3)).
Finally, the prohibition on use of the name “Government Insurance Office” in s 11(4) survives the transitional period only for GIO and its subsidiaries; an excluded undertaking transferred to the Self Insurance Corporation may continue to use names suggesting State association.
How to comply
Compliance begins with a thorough mapping of the business undertaking against the definitions in s 4. Legal teams should identify every asset, right, liability and contract that may be the subject of a Ministerial order under Parts 4 or 5. Because vesting occurs by force of s 39 on the making of the order, due diligence must be completed before any order is signed; after the order, third parties are entitled to treat the transferee as the successor without further inquiry.
For the conversion phase, the company must lodge the exact documents required by s 9, ensuring the memorandum names the State as sole subscriber and that both memorandum and articles are signed by the Minister. Any deviation risks the deemed-registration mechanism in s 10 failing to operate cleanly.
During the majority-shareholding period, board minutes should record that decisions taken pursuant to Ministerial direction are taken solely to comply with that direction, thereby attracting the s 35(3) immunity. Directors must maintain a clear separation between Ministerial directions and independent commercial judgment.
The 10 % cap requires real-time monitoring of applications and secondary-market purchases during the float. Subscription forms should require applicants to warrant that the acquisition will not breach s 31(2), and underwriters must have contractual indemnity and information rights sufficient to allow the State to monitor aggregate relevant interests.
For excluded undertakings, the Self Insurance Corporation (or other transferee) should enter into agency agreements under s 27 if operational continuity is required; those agreements should be drafted to survive any later sale of the excluded undertaking under s 26(2).
All staff-transfer orders must expressly list the employees or classes of employees so that the preservation rules in s 40 apply without ambiguity. Human-resources records should be migrated on the same day as the vesting order to avoid gaps in award coverage.
Financial teams must ensure that the special trust account required by s 33 is opened before the prospectus is registered and that no commingling occurs. Application moneys may not be released to GIO except with Ministerial consent until the s 7 debt is fully discharged.
Tax compliance is simplified by the exemption in s 44, but stamp-duty advice should still be obtained for any ancillary instruments that fall outside the precise terms of s 39(5). Certificates under s 45 should be obtained contemporaneously with each Ministerial order to facilitate later proof.
Finally, because regulations under s 46(2) can contain savings or transitional provisions with limited retrospectivity, any compliance manual must be kept under review against the Gazette publication of any such regulation.
Part 2Creation of capital structure and other steps prior to conversion of GIO into public company
business undertaking of GIO or of a GIO subsidiary means all the assets, rights and liabilities of GIO or the subsidiary.
conversion means the conversion of GIO into a public company on the commencement of Part 3.
excluded undertaking means any assets, rights or liabilities of GIO or a GIO subsidiary which the Minister has directed to be excluded under Part 5.
GIO means the body corporate that, immediately before the conversion, exists because of section 3 of the GIO Act under the name of the Government Insurance Office of New South Wales (that name being changed on conversion to GIO Australia Holdings Limited).
GIO Act means the Government Insurance Act 1927.
GIO Board means the Government Insurance Office of New South Wales Board established by section 3B of the GIO Act.
GIO subsidiary means a subsidiary of GIO within the meaning of the Corporations Law.
instrument means an instrument (other than this Act) which 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 and process of a court.
liabilities means all liabilities, debts and obligations (whether present or future and whether vested or contingent).
rights means all rights, powers, privileges and immunities (whether present or future and whether vested or contingent).
Self Insurance Corporation means the NSW Self Insurance Corporation constituted by the NSW Self Insurance Corporation Act 2004.
share means a share in the share capital of a body corporate.
the State of New South Wales includes the Crown in right of New South Wales and the Government of New South Wales.
(2) In this Act:
(a) a reference to a function includes a reference to a power, authority and duty, and
(b) a reference to the exercise of a function includes, in the case of a duty, a reference to the performance of that duty.
(3) In this Act, a reference to the business undertaking of GIO or of a GIO subsidiary at any particular time does not include a reference to any part of that undertaking that has been excluded or transferred by this Act before that time.
s 4: Am 2004 No 106, Sch 2.1 [1] [2].
Part 2 Creation of capital structure and other steps prior to conversion of GIO into public company
Part 2 Creation of capital structure and other steps prior to conversion of GIO into public company
Part 2 Creation of capital structure and other steps prior to conversion of GIO into public company
5 Share capital of GIO
5 Share capital of GIO
5 Share capital of GIO
(1) As from the commencement of this Part, GIO is to have a share capital.
(2) The nominal share capital is to be $1,000,000,000. The amount of the issued share capital is to be equal to the amount that section 6 requires to be applied in paying up shares in GIO.
(3) The share capital is to be divided into shares of $1 each.
(4) The share capital may be divided into classes of shares.
(5) Rights may be attached to shares included in a class of shares.
(6) Anything done under subsection (4) or (5) is to be done by the Minister by order in writing.
(7) This section has effect for the purposes of this Act despite anything to the contrary in section 7B (2) of the GIO Act.
(8) As from the conversion, this section has effect subject to the Corporations Law and to the memorandum and articles of association of GIO.
6 Issue of shares in GIO
6 Issue of shares in GIO
6 Issue of shares in GIO
(1) As soon as practicable after the commencement of this Part, GIO is required to apply the requisite amount of its capital in paying up, in full, shares in GIO.
(2) The requisite amount of capital is such amount as the Minister determines by order in writing. The Minister is required to consult with the GIO Board before making such an order.
(3) As soon as practicable after complying with subsection (1), GIO is required to issue the shares paid up under that subsection to the State of New South Wales.
(4) The issue of those shares discharges in full any obligation of GIO existing before the conversion to repay the capital of GIO to the State of New South Wales. The issue of those shares does not discharge the obligation of GIO to repay any debt created by section 7.
(5) The shares so issued are taken to have been issued for valuable consideration other than cash, being the discharge effected by subsection (4).
(6) The State of New South Wales is not a member of GIO at any time before the conversion merely because the State holds shares in GIO.
7 Creation of debt due to State by GIO
7 Creation of debt due to State by GIO
7 Creation of debt due to State by GIO
(1) The purpose of this section is to provide the means (apart from the sale of the shares in GIO issued to the State of New South Wales) by which the State is to receive the proceeds of the sale of GIO by a public float under this Act.
(2) On the conversion, GIO becomes liable to pay to the State of New South Wales such amount as the Minister may determine by order in writing before the conversion.
(3) Any such amount is payable at such time or times as the Minister determines by order in writing and may be recovered by the Minister on behalf of the State as a debt in any court of competent jurisdiction.
8 Retention by GIO of certain distributable reserves
8 Retention by GIO of certain distributable reserves
8 Retention by GIO of certain distributable reserves
(1) The Minister may, before the conversion, determine by order in writing the kinds and amounts of distributable reserves of GIO recorded at that time in its books of account which are to be retained and carried forward in those books of account after the conversion.
(2) The Minister is required to consult with the GIO Board before making such an order.
9 GIO to apply to be registered as a company etc
9 GIO to apply to be registered as a company etc
9 GIO to apply to be registered as a company etc
(1) GIO must, before the conversion:
(a) apply to the Australian Securities Commission under section 133 of the Corporations Law to be registered as a company limited by shares under Division 3 of Part 2.2 of the Corporations Law (Registering non-companies as companies), and
(b) apply to that Commission under section 374 of the Corporations Law for the reservation of the name “GIO Australia Holdings Limited”.
(2) GIO is required to lodge with the application for registration as a company:
(a) proposed memorandum and articles of association of GIO, and
(b) subject to any order in writing of the Minister, the other documents and information required by section 136 of the Corporations Law to accompany the application.
(3) The proposed memorandum of association:
(a) is to specify that the State of New South Wales is to be the sole subscriber to the memorandum and is to take up the number of shares in the capital of GIO issued under section 6, and
(b) is to be signed by the Minister on behalf of the State of New South Wales.
(4) The proposed articles of association:
(a) are to provide that the first directors of GIO after the conversion are to be appointed by the Minister, and
(b) are to be signed by the Minister on behalf of the State of New South Wales.
(5) GIO is entitled to make the applications, and to lodge the documents, referred to in this section.
(6) The name “GIO Australia Holdings Limited” is taken to have been reserved under section 374 of the Corporations Law immediately after the making of the application to reserve that name.
Part 3 Conversion of GIO into public company and repeal of Government Insurance Act 1927
Part 3 Conversion of GIO into public company and repeal of Government Insurance Act 1927
Part 3 Conversion of GIO into public company and repeal of Government Insurance Act 1927
10 GIO taken to be registered under Corporations Law as public company
10 GIO taken to be registered under Corporations Law as public company
10 GIO taken to be registered under Corporations Law as public company
(1) On the commencement of this Part:
(a) the application referred to in section 9 for registration as a company is taken to have been granted, and
(b) GIO is taken to have been registered under section 137 of the Corporations Law:
(i) by the name “GIO Australia Holdings Limited”, and
(ii) as a public company, and as a company limited by shares, within the meaning of the Corporations Law, and
(c) the name “GIO Australia Holdings Limited” is taken to have been registered in respect of GIO under section 374 (5) of the Corporations Law.
(2) The date of commencement of GIO’s registration as a company under Division 3 of Part 2.2 of the Corporations Law is taken to be the date of commencement of this Part.
(3) For the purposes of Division 3 of Part 2.2 of the Corporations Law, GIO is taken to have been, immediately before the commencement of this Part, and to be on that commencement, a corporation within the meaning of the Corporations Law.
11 New name of GIO
11 New name of GIO
11 New name of GIO
(1) On the conversion, GIO’s name is, by force of this subsection, changed to “GIO Australia Holdings Limited”.
(2) Section 382 (4) of the Corporations Law applies in relation to the change of name made by subsection (l) as if:
(a) GIO were a company, within the meaning of the Corporations Law, when the change was made, and
(b) the change was made under the Corporations Law.
(3) This section has effect despite anything in the Corporations Law, but nothing in this section prevents:
(a) GIO from later changing its name under section 382 of the Corporations Law, or
(b) the cancellation, under Part 4.2 of the Corporations Law, of the registration of a name.
(4) GIO or a GIO subsidiary is not entitled to use in connection with its business the name “Government Insurance Office” or any other name (apart from “GIO”) which suggests that it is associated with the State of New South Wales. This subsection does not apply during any period to which Part 7 applies.
12 Memorandum and articles of GIO
12 Memorandum and articles of GIO
12 Memorandum and articles of GIO
(1) As from the conversion, the proposed memorandum and articles of association lodged under section 9:
(a) are respectively the memorandum and articles of association of GIO, and
(b) bind GIO and its members accordingly.
(2) As from the conversion, the Corporations Law applies in relation to GIO’s memorandum and articles of association as if they had been registered as such under the Corporations Law.
13 Membership of GIO
13 Membership of GIO
13 Membership of GIO
(1) The State of New South Wales, as the holder of shares in GIO at the conversion, becomes (by force of this subsection) a member of GIO at the conversion.
(2) The State of New South Wales is, in relation to membership of GIO, entitled to the same rights, privileges and benefits, and is subject to the same duties, liabilities and obligations, as if it had become a member of GIO under its memorandum and articles of association.
14 Minister may act for State as shareholder
14 Minister may act for State as shareholder
14 Minister may act for State as shareholder
The Minister may act for or on behalf of the State of New South Wales in connection with:
(a) the rights, privileges and benefits, and
(b) the duties, liabilities and obligations,
of the State as the holder of shares in GIO which were issued to the State under Part 2.
15 Continuity of GIO and construction of references to GIO
15 Continuity of GIO and construction of references to GIO
15 Continuity of GIO and construction of references to GIO
(1) Without limiting any other provision of this Act or the Corporations Law, GIO Australia Holdings Limited is a continuation of, and the same legal entity as, GIO (as it existed before the conversion).
(2) After the conversion, a reference in any other Act or in any instrument made under any Act or in any other document of any kind to the Government Insurance Office is to be read as (or as including) a reference to GIO Australia Holdings Limited, unless it is required by this Act to be read as a reference to some other person because it relates to an excluded undertaking or an undertaking transferred to a GIO subsidiary company.
This is an opening excerpt, not the complete document.