An Act to approve and give effect to an agreement between the Commonwealth and some of the States about the establishment of National Rail Corporation Limited, and for other purposes
Part 1—Preliminary
1 Short title [see Note 1]
This Act may be cited as the National Rail Corporation Agreement Act 1992.
2 Commencement [see Note 1]
This Act commences on a day to be fixed by Proclamation.
3 Interpretation
In this Act, unless the contrary intention appears:
Agreement means:
(a) the agreement made on 30 July 1991 between the Commonwealth and the States of New South Wales, Victoria, Queensland and Western Australia, a copy of which is set out in the Schedule; or
(b) if that agreement is or has been amended or affected by another agreement—that agreement as so amended or affected.
assets means any legal or equitable interest (whether present or future and whether vested or contingent) in real or personal property of any description (including, for example, securities, other things in action, and documents).
Commonwealth rail freight agreement means an agreement where the Company is required or authorised by or under the Agreement to be substituted for the Commonwealth, or any authority of the Commonwealth, as a party to the agreement.
Commonwealth rail freight assets means assets of the Commonwealth, of the Australian National Railways Commission, or of any other authority of the Commonwealth, that are required or authorised to be transferred to, or acquired by, the Company by or under the Agreement.
Company means National Rail Corporation Limited (Australian Company Number 052 134 362).
eligible party, in relation to a Commonwealth rail freight agreement, means any of the following for which the Company is required or authorised by or under the Agreement to be substituted as a party to the agreement:
(a) the Commonwealth;
(c) any authority of the Commonwealth.
liabilities means liabilities, debts and obligations (whether present or future and whether vested or contingent).
rights means rights, powers, privileges and immunities (whether present or future and whether vested or contingent).
4 Act binds the Crown
This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.
Part 2—The Agreement
5 Approval of Agreement
The agreement made on 30 July 1991 between the Commonwealth and the States of New South Wales, Victoria, Queensland and Western Australia, a copy of which is set out in the Schedule, is approved.
6 Parties to give effect to Agreement
(1) Each party to the Agreement, and each authority of such a party:
(a) may do anything the Agreement authorises it to do; and
(b) must observe the provisions of the Agreement, in so far as they are applicable to it.
(2) Subsection (1) has effect in relation to a party or authority only in so far as it is within the power of the Parliament to provide in relation to that party or authority as mentioned in that subsection.
Part 3—The Company
7 Commonwealth may hold shares in the Company
The Commonwealth may acquire, hold, dispose of, or deal with, shares in the Company in accordance with the Agreement.
8 Company is not the Crown
Neither the Company, nor any of its subsidiaries:
(a) is, or represents, the Crown; or
(b) is an instrumentality or agency of the Crown; or
(c) is entitled to any immunity or privilege of the Crown; or
(d) is a public authority for any purpose (for example, the purposes of the Corporations Act 2001 or section 50‑25 of the Income Tax Assessment Act 1997).
9 Minister may vest Commonwealth rail freight assets in Company
(1) The Minister may direct in writing that specified Commonwealth rail freight assets are vested in the Company.
(2) A direction may only be made with the Company’s written approval.
(3) The consideration for a vesting is:
(a) the issue to the Commonwealth of shares in the Company in accordance with the Agreement; or
(b) such consideration as the direction specifies (which may include consideration of the kind referred to in paragraph (a)).
(4) Where a direction comes into operation, the following provisions apply, except as provided in the direction:
(a) the specified Commonwealth rail freight assets vest in the Company because of this section and without the need for a conveyance, transfer, assignment or other assurance;
(b) the Commonwealth’s rights and liabilities relating to the assets become rights and liabilities of the Company because of this section;
(c) all proceedings by or against the Commonwealth that relate to the assets and are pending immediately before the vesting are taken to be proceedings pending by or against the Company;
(d) anything done, or not done, in relation to the assets, before the vesting, by, to or in relation to the Commonwealth is (so far as it has any effect) taken to have been done, or not done, by, to or in relation to the Company, as the case may be.
(5) A reference in subsection (4) to the Commonwealth is, in so far as assets of or any authority of the Commonwealth, vest in the Company, a reference to that authority.
(6) This section does not limit the use of any other method to transfer Commonwealth rail freight assets to the Company.
10 Registration etc. of change in title to assets vested under section 9
Where:
(a) an asset vests in the Company because of section 9; and
(b) a person or authority has power, under a law of the Commonwealth or of a State or Territory, to register, record or otherwise give effect to:
(i) transactions affecting that kind of asset; or
(ii) documents relating to such transactions;
the person or authority may do whatever is necessary or desirable to give effect to, or reflect, the vesting (for example, making entries in a register).
11 Stamp duty etc. in relation to instruments under section 9
Nothing in this Act prevents a law of a State or Territory (whenever enacted or made) from imposing a liability to pay an amount of stamp duty, or of any other fee or charge, because of the making of an instrument under section 9, if:
(a) it is reasonable to expect that a corresponding amount of stamp duty, or of that other fee or charge, would have been payable under a law of that State or Territory if the assets vested in the Company because of the instrument had instead been transferred to the Company by an instrument in writing executed by the parties to the transfer; and
(b) the first‑mentioned amount does not exceed what it is reasonable to expect that the corresponding amount would have been.
12 Minister may substitute Company as party to Commonwealth rail freight agreements
(1) The Minister may direct in writing that the Company is substituted for a specified eligible party as a party to specified Commonwealth rail freight agreements.
(2) A direction may only be made with the Company’s written approval.
(3) Where a direction comes into operation, the following provisions apply, except as provided in the direction:
(a) because of this section, the Company is substituted for the specified eligible party as a party to the specified agreements;
(b) the eligible party’s rights and liabilities under, and in relation to, the agreements become rights and liabilities of the Company because of this section;
(c) all proceedings by or against the eligible party that relate to the agreements and are pending immediately before the direction comes into operation are taken to be proceedings pending by or against the Company;
(d) anything done, or not done, under or in relation to the agreements, before the direction comes into operation, by, to or in relation to the eligible party is (so far as it has any effect) taken to have been done, or not done, by, to or in relation to the Company, as the case may be.
(4) This section does not limit the use of any other method to substitute the Company for another person as a party to an agreement.
(5) Nothing in this section limits, or is limited by, anything in section 9.
13 Auditor‑General to be Company’s auditor
(1) The Auditor‑General is taken to have been appointed under subsection 327(3) of the Corporations Law of the Australian Capital Territory as auditor of the Company, with effect from the commencement of this section.
(2) Sections 328 and 329 of the Corporations Act 2001 do not apply in relation to the Company so long as no person owns beneficially (whether as sole owner or as co‑owner) more voting shares (within the meaning of that Act) in the Company than the Commonwealth so owns.
(3) Nothing done, or omitted to be done, by the Auditor‑General as auditor of the Company makes the Auditor‑General liable to be prosecuted for an offence.
(4) Because of this subsection, the auditor or auditors of the Company in office immediately before the commencement of this section ceases or cease at that commencement to hold office.
(5) No amount is payable to a person because of, or in connection with, an auditor of the Company ceasing to hold office because of subsection (4).
(6) Subsection (5) does not affect:
(a) an entitlement in so far as it relates to a period before the commencement of this section; or
(b) an entitlement under section 331 of the Corporations Act 2001 or under section 14 of this Act.
(7) Subject to subsection (6), this section has effect despite any provision of the Corporations Act 2001.
14 Compensation for acquisition of property
(1) Where, but for this section, the operation of this Act (in particular, section 9 or 12) would result in the acquisition of property from a person otherwise than on just terms, the Commonwealth must pay to the person such reasonable amount of compensation as the Commonwealth and the person agree on or, failing agreement, as is determined by a court of competent jurisdiction.
(2) Any damages or compensation recovered, or other remedy given, in proceedings begun otherwise than under this section must be taken into account in assessing compensation payable in proceedings begun under this section that arise out of the same event or transaction.
(3) In this section:
acquisition of property and just terms have the same respective meanings as in paragraph 51(31) of the Constitution.
person does not include any authority of the Commonwealth.
Part 4—Miscellaneous
15 Act does not appropriate money
(1) Money payable by the Commonwealth under the Agreement must be paid out of money lawfully available for the purpose.
(2) Nothing in this Act (in particular, sections 6 and 14) appropriates money.
16 Company’s financial statements and reports to be laid before Parliament
(1) This section applies where, under the Corporations Act 2001, the Company sends to:
(a) the Commonwealth as the holder of shares in the Company; or
(b) a person who holds shares in the Company as nominee for the Commonwealth;
copies of the documents required by that Act to be laid before a particular annual general meeting of the Company.
(2) The Minister must cause to be laid before each House of the Parliament, during the period beginning on the first sitting day, and ending on the 15th sitting day, of that House after that annual general meeting, copies of the documents referred to in subsection (1) (whether made from the copies first referred to in subsection (1) or otherwise).
17 Regulations
The Governor‑General may make regulations, not inconsistent with this Act, prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act or the Agreement.