The Act creates a legal framework to transfer state port assets (sales, leases or other transfers) to private parties or other public agencies, centralising decision‑making and implementation powers in the Treasurer. Proceeds flow to the Restart NSW Fund (subject to Treasurer‑approved deductions); vesting orders, transaction vehicles and statutory protections streamline transfers and limit legal challenges. Employee movement is regulated with continuity guarantees and capped payments. The mechanics prioritise transactional certainty and speed while concentrating executive power and shifting implementation costs to public agencies.
This Act creates a statutory framework authorising the transfer of designated ports assets held by specified State owned corporations and related public sector agencies into private or other public hands, and sets out the legal mechanisms to effect those transfers. Mechanically, the Act does the following (selective list, grounded in the text):
Authorises transfers (sale, lease or other arrangements) of ports assets to the private sector or to any public sector agency, subject to limits (s 4). Freehold in Port Botany, Port Kembla, Port of Newcastle and associated port land must remain vested in a public sector agency (s 4(1)(a)). Leases of those lands cannot exceed 99 years when option periods are aggregated (s 4(1)(b)). The Act expressly does not authorise transfer of retained assets to the private sector (s 4(1)(c); definition of retained assets in s 3).
Directs that proceeds of any transfer to the private sector (including periodic lease payments) belong to the State and are payable into the Restart NSW Fund (s 5(1)-(3)). The Treasurer may approve deductions from those proceeds to repay public sector debt, reimburse taxes/fees paid by agencies, satisfy liabilities or meet reasonable expenses (s 5(4)-(6)).
Vesting and transfer powers are concentrated in the Treasurer, who "has and may exercise all such functions as are necessary or convenient for the purposes of an authorised transaction" (s 6). The Treasurer may direct the manner in which an authorised transaction is effected, including the form and legal structures used (s 7).
The Act provides a set of corporate vehicles and conversion mechanisms to implement transactions: creation of transaction State owned corporations (transaction SOCs) by Governor’s order (s 8 and Sch 2), establishment or acquisition of transaction companies (s 9) and conversion of port SOCs into companies under specified processes (Sch 3). Transaction entities may exercise additional functions for authorised transactions (s 10).
Current sections
Direct links to the current provisions in Ports Assets (Authorised Transactions) Act 2012.
This Act commences on the date of assent to this Act.
3
Interpretation—key definitions
3 Interpretation—key definitions
3 Interpretation—key definitions
Note—
Schedule 1 contains other interpretative provisions.
In this Act—
associated port land means land (including an interest in land) at Botany Bay, Port of Newcastle or Port Kembla that is vested in any of the following public sector agencies and designated by the Treasurer by order in writing as associated port land for the purposes of this Act—
(a) Transport for NSW,
(b) Property and Development NSW,
(c) any other public sector agency prescribed by the regulations for the purposes of this definition.
authorised transaction means a transfer of ports assets authorised by Part 2.
Port Botany land means land at Botany Bay that is ports assets.
Port Kembla land means land at Port Kembla that is ports assets.
Port of Newcastle land means land at Port of Newcastle that is ports assets.
port SOC means the Port Kembla Port Corporation, the Newcastle Port Corporation or the Sydney Ports Corporation.
ports assets means—
(a) the assets, rights and liabilities of a port SOC, and
(b) associated port land.
retained assets means ports assets that relate only to port operations in Sydney Harbour, the port of Yamba or the port of Eden (and not to port operations in any other port).
Note—
For example, ports assets that relate to port operations in both Sydney Harbour and Botany Bay are not retained assets.
s 3: Am 2013 No 52, Sch 1 [1]–[3]; 2017 No 22, Sch 2.34; 2020 No 30, Sch 4.76; 2024 No 27, Sch 2.10.
Part 2
Authorised transactions
Part 2 Authorised transactions
Part 2 Authorised transactions
4
Authorised transfer of ports assets
4 Authorised transfer of ports assets
4 Authorised transfer of ports assets
(1) This Act authorises the transfer of ports assets to the private sector or to any public sector agency, subject to the following limitations—
(a) Port Botany land, Port Kembla land, Port of Newcastle land and associated port land can be leased to the private sector but the ownership of the freehold title to that land must remain with a public sector agency,
(b) any lease of Port Botany land, Port Kembla land, Port of Newcastle land or associated port land must not have a term that, together with the term of any further lease that may be granted under an option in respect of it, exceeds 99 years,
(c) this Act does not authorise the transfer of retained assets to the private sector.
(2) No compensation is payable in connection with the transfer under this Act of ports assets to a public sector agency (but this does not prevent such a transfer being for consideration).
s 4: Am 2013 No 52, Sch 1 [4].
5
Proceeds of transaction
5 Proceeds of transaction
5 Proceeds of transaction
(1) The proceeds of the transfer of ports assets to the private sector pursuant to an authorised transaction (the transaction proceeds) belong to and are payable directly to the State.
(2) The transaction proceeds include any payment to a public sector agency that is a periodic lease payment under a lease of ports assets to the private sector pursuant to an authorised transaction.
(3) The transaction proceeds paid to the State are to be paid into the Restart NSW Fund (the Fund) established under the Restart NSW Fund Act 2011.
(4) The following deductions are authorised to be made from the transaction proceeds—
(a) deduction of such amounts as the Treasurer approves to repay debt and satisfy other liabilities of a public sector agency in respect of ports assets transferred for the purposes of an authorised transaction,
(b) deduction of such amounts as the Treasurer approves to reimburse public sector agencies for payments made by them in respect of any tax, duty, fee or charge imposed by any Act or law of the State or any other jurisdiction in connection with a transaction arrangement,
(c) deduction of such amounts as the Treasurer approves to satisfy any liability of a public sector agency arising under or in connection with a transaction arrangement,
(d) deduction of such amounts as the Treasurer approves to meet expenses reasonably incurred by public sector agencies for the purposes of an authorised transaction.
(5) The transaction proceeds do not include any amount certified by the Treasurer to have been paid to a public sector agency as a tax, duty, fee or charge imposed by any Act or law of the State in connection with a transaction arrangement.
(6) The deductions authorised to be made from the transaction proceeds may be made before payment of the transaction proceeds into the Fund or may be made by payment from the Fund.
(7) The requirements of this section do not affect the validity of a transaction arrangement.
Part 3
Facilitating authorised transactions
Part 3 Facilitating authorised transactions
Part 3 Facilitating authorised transactions
6
Treasurer’s functions
6 Treasurer’s functions
6 Treasurer’s functions
The Treasurer has and may exercise all such functions as are necessary or convenient for the purposes of an authorised transaction. The functions conferred on the Treasurer by any other provision of this Act do not limit the Treasurer’s functions under this section.
7
Manner of effecting authorised transaction
7 Manner of effecting authorised transaction
7 Manner of effecting authorised transaction
(1) An authorised transaction is to be effected as directed by the Treasurer and can be effected in any manner considered appropriate by the Treasurer.
(2) There are no limitations as to the nature of the transactions or arrangements that can be entered into or used for the purposes of an authorised transaction.
Note—
For example, an ownership structure involving a unit trust could be used for the purposes of an authorised transaction.
(3) The provisions of this Act for the establishment of various kinds of transaction entity do not limit the nature of the legal entities or arrangements that can be used for the purposes of an authorised transaction.
8
Transaction SOCs
8 Transaction SOCs
8 Transaction SOCs
(1) A statutory State owned corporation may be established under this Act as a transaction SOC for the purposes of an authorised transaction.
(2) The Governor may by order published in the Gazette—
(a) create a corporation under a corporate name specified in the order, and
(b) specify the functions of the corporation, and
(c) direct that the corporation is established as a statutory State owned corporation and as a transaction SOC.
(3) On the day on which the order takes effect—
(a) a corporation is constituted with the corporate name and functions specified in the order, and
(b) the State Owned Corporations Act 1989 is amended by inserting in Schedule 5 the corporate name specified in the order (to establish the corporation as a statutory State owned corporation under that Act), and
(c) the State owned corporation thereby established is a transaction SOC for the purposes of this Act.
(5) Schedule 2 has effect with respect to a transaction SOC. The provisions of that Schedule are in addition to and (except to the extent to which that Schedule otherwise provides) do not derogate from the provisions of the State Owned Corporations Act 1989.
9
Transaction companies
9 Transaction companies
9 Transaction companies
(1) The Treasurer may for the purposes of an authorised transaction establish, or direct the establishment of, companies as transaction companies in any of the following ways—
(a) the formation or acquisition by or on behalf of the State or a SOC of a company limited by shares, so that all the issued shares in the company are held by or on behalf of the State or a SOC (or both),
(b) the formation or acquisition of a company as a wholly owned subsidiary company of a transaction company,
(c) the conversion of a port SOC or transaction SOC into a company limited by shares as provided by Schedule 3.
(2) A transaction company that is a public sector agency may be converted from one kind of company to any other kind of company.
(3) Except by express agreement with the Treasurer—
(a) a transaction company is not and does not represent the State, and
(b) the debts, liabilities and obligations of a transaction company are not guaranteed by the State.
(4) The Treasurer may act for or on behalf of the State, a SOC or a transaction company that is a public sector agency in connection with the rights, privileges and benefits, and the duties, liabilities and obligations, of the State, a SOC or a transaction company as the holder of shares or other securities in or issued by a transaction company.
(5) Shares and other securities in or issued by a transaction company that is a public sector agency may be issued, sold or transferred in accordance with the directions of the Treasurer. The Treasurer may on behalf of the State, a SOC or a transaction company that is a public sector agency, enter into and carry out transaction arrangements for the issue, sale or transfer of shares and other securities in or issued by a transaction company.
(6) If a port SOC becomes a transaction company by being converted into a company under this section, a reference in this Act to the port SOC includes a reference to that transaction company.
10
Additional functions of port SOCs and transaction entities
10 Additional functions of port SOCs and transaction entities
10 Additional functions of port SOCs and transaction entities
(1) Each port SOC and transaction entity has and may exercise all such functions as are necessary or convenient for the purposes of an authorised transaction.
(2) The functions conferred by this section are in addition to any other functions that a port SOC or a transaction entity has apart from this section and those other functions do not prevent or otherwise limit the exercise of the additional functions conferred by this section.
(3) The Treasurer may act for or on behalf of a port SOC or a transaction entity in the exercise of any of its functions for the purposes of an authorised transaction while it is a public sector agency.
11
Direction and control of port SOCs and transaction entities
11 Direction and control of port SOCs and transaction entities
11 Direction and control of port SOCs and transaction entities
(1) Each port SOC and transaction entity is subject to the direction and control of the Treasurer in the exercise of any of its functions for the purposes of an authorised transaction while it is a public sector agency.
(2) The Treasurer may give directions for the purposes of an authorised transaction to a port SOC or transaction entity, and to the directors and other officers of a port SOC or transaction entity. Any such directions must be complied with by the port SOC, the transaction entity or the directors or other officers concerned.
(3) Directions to a transaction entity (or its directors and other officers) can only be given and are only required to be complied with while the transaction entity is a public sector agency.
(4) The power to give directions under this section extends to directions with respect to the way in which a port SOC or transaction entity is to conduct its business and other affairs.
(5) Action taken by a port SOC or transaction SOC to comply with a direction of the Treasurer under this Act does not require the approval of the voting shareholders or portfolio Minister of the corporation.
(6) Anything done or omitted to be done by a director or other officer of a port SOC or transaction entity in complying with a direction given by the Treasurer under this Act does not subject the director or officer personally to any action, liability, claim or demand.
(7) The provisions of this section are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act in relation to the provisions of the Corporations legislation generally.
12
Exercise of port SOC functions through subsidiaries
12 Exercise of port SOC functions through subsidiaries
12 Exercise of port SOC functions through subsidiaries
(1) If ports assets are transferred to a subsidiary of a port SOC for the purposes of an authorised transaction, the functions of the port SOC in respect of those ports assets become either retained functions or shared functions, as follows—
(a) retained functions are all functions of the port SOC except those that are shared functions,
(b) shared functions are the functions of the port SOC under Part 5 (Port charges) of the Ports and Maritime Administration Act 1995 but only in respect of charges of a kind that can be fixed under that Part by the port operator of a private port.
(2) In the case of retained functions—
(a) the port SOC continues to have and may exercise retained functions as if the ports assets had remained vested in the port SOC, and
(b) the subsidiary is authorised to exercise retained functions on behalf of the port SOC (with the exception of any function or class of functions that is reserved to the port SOC by a direction of the port SOC to the subsidiary), and
(c) the subsidiary is subject to the direction and control of the port SOC in the exercise of retained functions on behalf of the port SOC, and
(d) any retained functions exercised by the subsidiary under this section are deemed to have been exercised by the port SOC.
(3) In the case of shared functions—
(a) both the port SOC and the subsidiary have and may exercise shared functions, and
(b) the subsidiary has and may exercise shared functions as if the subsidiary were the port SOC, and
(c) Part 6 (Price monitoring scheme) of the Ports and Maritime Administration Act 1995 applies to the subsidiary in respect of port charges charged by the subsidiary in the exercise of shared functions as if it were the port operator, and
(d) the subsidiary exercises shared functions on its own account, and
(e) any charges collected by the subsidiary in the exercise of shared functions are for its own use and benefit.
(4) The regulations may prescribe additional functions of a port SOC as shared functions for the purposes of this section.
(5) This section operates only while the subsidiary in which ports assets are vested is a public sector agency.
13
Establishment of Ports Assets Ministerial Holding Corporation
13 Establishment of Ports Assets Ministerial Holding Corporation
13 Establishment of Ports Assets Ministerial Holding Corporation
(1) There is constituted by this Act a corporation with the corporate name of the Ports Assets Ministerial Holding Corporation.
(2) The Corporation is a statutory body representing the Crown.
(3) The affairs of the Corporation are to be managed by the Treasurer who may authorise another Minister to exercise functions in relation to particular assets, rights and liabilities.
(4) Any act, matter or thing done in the name of, or on behalf of, the Corporation by the Treasurer or a Minister authorised by the Treasurer, or with the authority of the Treasurer or any such Minister, is taken to have been done by the Corporation.
(5) The Corporation has the functions conferred or imposed on it by or under this or any other Act.
(6) The functions of the Corporation are—
(a) to hold, on behalf of the Crown, ports assets acquired by it or transferred to it, and
(b) to carry on any activities or business that relate to any ports assets held by it, including demanding, collecting and receiving charges, levies, rates and fees, and
(c) such other functions for the purposes of an authorised transaction as may be prescribed by the regulations.
Part 4
Arrangements for transfer of staff
Part 4 Arrangements for transfer of staff
Part 4 Arrangements for transfer of staff
14
Transfers within public sector
14 Transfers within public sector
14 Transfers within public sector
(1) The Treasurer may, for the purposes of an authorised transaction, by order in writing transfer the employment of an employee of a port SOC (a transferred employee) to the employment of another public sector agency.
(2) A transferred employee is (until other provision is duly made under any Act or law) to be employed in accordance with any relevant statutory provisions, awards, agreements and determinations that would have applied to the employee had the employee remained an employee of the port SOC concerned.
(3) The Treasurer may negotiate and enter into agreements or industrial instruments concerning workplace relations for or on behalf of a public sector agency in connection with the operation of this section.
15
Temporary transfers (secondments)
15 Temporary transfers (secondments)
15 Temporary transfers (secondments)
(1) The Treasurer may, for the purposes of an authorised transaction, by order in writing temporarily transfer an employee of a port SOC to the service of another public sector agency or to the service of an employer in the private sector.
(2) A person may be temporarily transferred under this section at the person’s existing level of remuneration or at a higher level of remuneration.
(3) A person who is temporarily transferred under this section remains an employee of the port SOC concerned (unless and until the person’s employment is transferred under another provision of this Part).
16
Transfers to private sector employment
16 Transfers to private sector employment
16 Transfers to private sector employment
(1) The Treasurer may, for the purposes of an authorised transaction, by order in writing transfer the employment of an employee of a port SOC or transaction entity (a transferred employee) to the employment of an employer in the private sector (the new employer).
(2) The transfer of the employment of an employee under this section requires the consent of the employee unless the employee is a contract employee (in which case the employee’s employment can be transferred with or without the employee’s consent).
(3) The employment of a transferred employee with the new employer is to be on the same terms and conditions as applied to the employee as an employee of the relevant port SOC or transaction entity immediately before the transfer date.
(4) Those terms and conditions cannot be varied during any employment guarantee period for the transferred employee except by agreement entered into by or on behalf of the transferred employee.
(5) The employment of a transferred employee with the new employer cannot be terminated by the new employer during any employment guarantee period for the transferred employee, except—
(a) for serious misconduct, or
(b) pursuant to the proper application of reasonable disciplinary procedures, or
(c) by agreement with the employee.
(6) There is an employment guarantee period for transferred employees who are permanent or temporary employees, as follows—
(a) for permanent employees the employment guarantee period is 2 years after the transfer date,
(b) for temporary employees the employment guarantee period is the remainder of the employee’s current term of employment (as specified in the arrangements under which the employee was engaged as a temporary employee) immediately before the transfer date or the period of 2 years after the transfer date, whichever period ends first.
Note—
There is no employment guarantee period for contract employees or casual employees. The employment of a transferred employee who is a contract employee remains governed by the contract of employment.
(7) In this section—
casual employee means an employee whose employment is in a category of employment that is described in or classified under a relevant award as casual employment or who is otherwise engaged as a casual employee.
contract employee means an employee whose terms and conditions of employment are provided by an individual contract and not by a relevant award.
permanent employee means an employee whose employment is of indefinite duration and who is not a casual employee, temporary employee or contract employee.
relevant award means any award, agreement or other industrial instrument (under a law of the State or the Commonwealth) that provides for the terms and conditions of employment of employees.
temporary employee means an employee (other than a casual employee or contract employee) whose employment is in a category of employment that is described in or classified under a relevant award as temporary employment or whose employment is, under the terms of his or her employment, for a limited period.
transfer date means the date on which the employment of a transferred employee is transferred under this section to the new employer.
17
Continuity of entitlements of transferred employees
17 Continuity of entitlements of transferred employees
17 Continuity of entitlements of transferred employees
(1) On the transfer by order under this Part of an employee’s employment from one employer (the current employer) to another employer (the new employer) the following provisions have effect—
(a) the employee is entitled to continue as a contributor, member or employee for the purposes of any superannuation scheme in respect of which he or she was a contributor, member or employee (as an employee of the current employer) immediately before the transfer of employment and remains so entitled subject to any variation to that entitlement made either by agreement or otherwise in accordance with law,
(b) the new employer is taken to be an employer for the purposes of any superannuation scheme in respect of which the employee continues as a contributor, member or employee pursuant to an entitlement under this section,
(c) the continuity of the employee’s contract of employment is taken not to have been broken by the transfer of employment, and service of the employee with the current employer (including service deemed to be service with the current employer) that is continuous service up to the time of transfer is taken for all purposes to be service with the new employer,
(d) the employee retains any rights to sick leave, annual leave or long service leave accrued or accruing immediately before the transfer (except accrued leave for which the employee has, on ceasing to be an employee of the current employer, been paid the monetary value in pursuance of any other entitlement of the employee).
(2) Nothing in the Long Service Leave Act 1955 prevents payment in connection with the transfer under this Part of the employment of an employee of a port SOC to the employment of an employer in the private sector of the monetary value of long service leave in lieu of an entitlement to that leave accrued as an employee of a port SOC before the transfer of the employee’s employment.
18
Payments to employees leaving public sector employment
18 Payments to employees leaving public sector employment
18 Payments to employees leaving public sector employment
(1) The Treasurer or another public sector agency may enter into agreements or other arrangements with respect to the making of transfer payments to employees of a port SOC in connection with the transfer of employment of those employees to employment in the private sector as a result of a transaction arrangement or as a result of an order under this Part.
(2) A transfer payment is not to exceed an amount equivalent to 30 weeks of pay at the rate of an employee’s base salary (that is, salary less any allowances).
(3) Without affecting any entitlement to a transfer payment under this section, an employee of a port SOC is not entitled to receive any payment or other benefit (including in the nature of severance pay or redundancy compensation) merely because the employee ceased to be an employee of a public sector agency as a result of a transaction arrangement or as a result of an order under this Part.
Part 5
Arrangements for transfer of assets and functions
Part 5 Arrangements for transfer of assets and functions
Part 5 Arrangements for transfer of assets and functions
19
Vesting orders
19 Vesting orders
19 Vesting orders
The Treasurer may make vesting orders under Schedule 4 for the purposes of an authorised transaction.
20
Severance of fixtures
20 Severance of fixtures
20 Severance of fixtures
(1) The Treasurer may by order in writing for the purposes of an authorised transaction direct that specified fixtures to which this section applies are severed from the land on which they are situated.
(2) The effect of such an order is that the fixtures concerned are deemed to be severed from the land on which they are situated and may be dealt with as personal property separate from the land for the purposes of an authorised transaction.
(3) This section applies to the following fixtures—
(a) rail infrastructure facilities owned by a port SOC and situated on land owned by a port SOC or another public sector agency,
(b) other fixtures designated by the Treasurer by order in writing to be fixtures to which this section applies that are owned by a port SOC and situated on land owned by a port SOC or another public sector agency.
(4) The severance of a fixture from land under this section does not affect the right of the fixture to be situated on that land and does not affect any right to drain water or sewage from the fixture across and through the land or to use any means of drainage of water or sewage from the fixture across and through the land.
(5) In this section, rail infrastructure facilities includes railway track, associated track structures, over track structures, cuttings, drainage works, track support earthworks and fences, tunnels, bridges, level crossings, service roads, signalling systems, train control systems, communication systems, overhead power supply systems, power and communication cables, and associated works, buildings, plant, machinery and equipment.
21
Grant of relevant authorisations
21 Grant of relevant authorisations
21 Grant of relevant authorisations
(1) The Treasurer may give directions to a public sector agency for or with respect to the grant of any relevant authorisation to a person who becomes or who it is proposed will become the new operator of any ports assets pursuant to an authorised transaction, including directions for or with respect to any of the following—
(a) requiring the grant of any such relevant authorisation without the necessity for the making or determination of any application,
(b) the displacement or modification of any provision of a relevant law in its application to the grant of any such relevant authorisation,
(c) the conditions or endorsements subject to which any such relevant authorisation is to be granted or that are to be attached to any such relevant authorisation.
(2) A direction may only be given under this section for the grant of a relevant authorisation that—
(a) operates to transfer or replace an existing relevant authorisation that is currently in force, and
(b) is subject to terms, conditions or endorsements that are the same (or to substantially the same effect) as those to which that existing relevant authorisation is subject.
(3) The Treasurer must consult with a public sector agency before giving a direction to the public sector agency under this section.
(4) A public sector agency exercising functions under a relevant law must comply with a direction of the Treasurer under this section.
(5) Anything done by a port SOC in compliance with a condition or endorsement of a relevant authorisation in relation to ports assets of which a person is the new operator is taken to have been done by the new operator for the purposes of any corresponding condition or endorsement of a relevant authorisation granted to the new operator pursuant to a direction under this section.
(6) A relevant authorisation granted to a port SOC or to the new operator of ports assets may not be suspended or cancelled on the ground of the conversion of the port SOC or new operator to a company or on the ground of any change that has occurred in the officers or shareholders of the company as a result of that conversion or pursuant to a transaction arrangement.
(7) In this section—
grant includes issue and transfer.
new operator of ports assets means—
(a) a public sector agency to which any ports assets are transferred for the purposes of an authorised transaction, or
(b) a person (or the nominee of a person) in whom ports assets are vested, or to whom ports assets are transferred, pursuant to an authorised transaction.
relevant authorisation means a licence, permit, consent, entitlement, accreditation, exemption or other authorisation under a relevant law.
relevant law means any of the following Acts and any regulations or instruments under those Acts—
Acquisition of land by Ports Assets Ministerial Holding Corporation
22 Acquisition of land by Ports Assets Ministerial Holding Corporation
22 Acquisition of land by Ports Assets Ministerial Holding Corporation
(1) The Ports Assets Ministerial Holding Corporation may, for the purposes of an authorised transaction, acquire land (including an interest in land) by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991 that the Corporation determines to be—
(a) land on which ports assets of a port SOC were situated on the date of assent to this Act and continue to be situated, or
(b) land that on the date of assent to this Act was used or occupied by a port SOC for or in connection with the exercise of any function of the port SOC and that continues to be so used or occupied.
(2) In the case of land used (but not occupied) by a port SOC for or in connection with the exercise of any function of the port SOC, such as land used for the purposes of access, the power conferred by this section to acquire the land is limited to a power to acquire an interest in the land sufficient to allow that use of the land to continue.
(4) Land acquired by the Corporation pursuant to this section is deemed to be an asset of a port SOC for the purposes of this Act and the Corporation is deemed to be a port SOC for the purposes of this Act while it holds the land.
Note—
Land acquired pursuant to this section is a ports asset for the purposes of an authorised transaction (whether or not it was a ports asset before it was acquired).
23
Adjustment of port SOC objectives and functions
23 Adjustment of port SOC objectives and functions
23 Adjustment of port SOC objectives and functions
(1) The Treasurer may by direction in writing to a port SOC adjust the objectives and functions of the port SOC in such manner as the Treasurer considers appropriate to ensure that the objectives and functions of the port SOC remain appropriate, having regard to—
(a) the capacity of the port SOC to give effect to or exercise its existing objectives and functions following the transfer of any of its ports assets for the purposes of an authorised transaction, and
(b) the objectives and functions that would be appropriate for any remaining ports assets of the port SOC.
(2) The objectives and functions of a port SOC may be adjusted under this section by being limited or dispensed with but not by being broadened.
Part 6
Operation of other laws
Part 6 Operation of other laws
Part 6 Operation of other laws
24
State taxes
24 State taxes
24 State taxes
(1) In this section—
relevant matter means any of the following—
(a) any transaction arrangement,
(b) a vesting of assets, rights or liabilities by operation of Schedule 4 (Vesting of assets, rights and liabilities) and anything certified by the Treasurer as having been done in consequence of such a vesting (for example, the transfer or registration of an interest in land),
(c) the issue, disposal or purchase of shares or other securities in or issued by a company for the purposes of an authorised transaction,
(d) any matter connected with the corporate conversion of a port SOC or transaction SOC for the purposes of an authorised transaction,
(e) such other matters for the purposes of an authorised transaction as may be prescribed by the regulations,
(f) any transaction occurring within 6 months after completion of an authorised transaction and certified by the Treasurer to be a transaction entered into in connection with the transfer of ports assets to the private sector pursuant to the authorised transaction.
State tax means application or registration fees, duty under the Duties Act 1997 or any other tax, duty, fee or charge imposed by any Act or law of the State.
(2) State tax is not payable by a public sector agency in relation to a relevant matter.
(3) State tax is not payable by a person or body (other than a public sector agency) in relation to a relevant matter to such extent (if any) as the Treasurer may direct by order in writing, either generally or in a particular case.
(4) An order may be made by the Treasurer under this section before or after the liability to pay the State tax concerned accrues.
(5) The Treasurer must give a copy of an order under this section to the Chief Commissioner of State Revenue.
25
General relationship of Act with other State legislation
25 General relationship of Act with other State legislation
25 General relationship of Act with other State legislation
(1) None of the following provisions operate to prevent, restrict or otherwise limit the carrying out of a transaction arrangement or the exercise of a function for the purposes of an authorised transaction—
(b) any provision of the constitution of a statutory SOC or a subsidiary of a statutory SOC.
(2) In the event of any inconsistency between the provisions of this Act or the regulations and a provision of any other State legislation that is prescribed by the regulations as an inconsistent provision for the purposes of this section, the provisions of this Act or the regulations (as the case may be) prevail to the extent of the inconsistency.
(3) The requirements of any other Act (whether enacted before or after this Act) for the approval by resolution of either or both Houses of Parliament (or by Act) of any act that constitutes the transfer of ports assets for the purposes of an authorised transaction is satisfied by the enactment of this Act.
Section 38 (Secrecy) of the Government Sector Audit Act 1983 does not apply to or in respect of a report or communication that the Treasurer authorises the Auditor-General to make to a person for the purposes of an authorised transaction or for the purposes of the audit (before or after the completion of an authorised transaction) of records relating to ports assets transferred pursuant to an authorised transaction.
s 27: Am 2018 No 70, Sch 4.84.
28
Contracts for sale of land
28 Contracts for sale of land
28 Contracts for sale of land
Section 52A (Contracts for sale of land) of the Conveyancing Act 1919 does not apply to a contract for the sale of land that is entered into for the purposes of an authorised transaction.
29
Protection of contractual and other obligations
29 Protection of contractual and other obligations
29 Protection of contractual and other obligations
(1) This section applies to the following—
(a) the operation of this Act (including any order under this Act and anything done or omitted to be done under or for the purposes of this Act),
(b) the transfer of ports assets for the purposes of an authorised transaction,
(c) the entering into or performance of obligations under a transaction arrangement by a public sector agency,
(d) a disclosure of information by, on behalf of or with the consent of a public sector agency for the purposes of an authorised transaction.
(2) None of the matters or things to which this section applies are to be regarded as—
(a) a breach of contract or confidence or otherwise as a civil wrong, or
(b) a breach of any instrument (including, without limitation, any provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities) or as requiring any act to be done under an instrument, or
(c) giving rise to any right or remedy by a party to a contract or other instrument, or as causing or permitting the termination of, or exercise of rights under, any contract or other instrument, or
(d) an event of default under any contract or other instrument, or
(e) giving rise to a breach of or an offence against a provision of an Act that prohibits or restricts the disclosure of information, or
(f) releasing a surety or other obligee wholly or in part from an obligation.
(3) This section does not affect the rights and obligations of the parties to a transaction arrangement in respect of the performance of obligations under the transaction arrangement.
(4) In this section—
instrument means an instrument (other than an instrument made under this Act) or any other document that creates, modifies or extinguishes rights or liabilities (or would do so if lodged, filed or registered in accordance with any law), and includes any judgment, order, process or other instrument issued by a court or tribunal.
30
Compensation not payable
30 Compensation not payable
30 Compensation not payable
(1) Compensation is not payable by or on behalf of the State—
(a) because of the enactment or operation of this Act, or for any consequence of that enactment or operation, or
(b) because of any statement or conduct relating to the enactment of this Act.
(2) This section does not extend to compensation payable under a transaction arrangement to a party to the transaction arrangement in connection with the performance of obligations under the transaction arrangement.
(3) In this section—
compensation includes damages or any other form of monetary compensation.
conduct includes any act or omission, whether unconscionable, misleading, deceptive or otherwise.
operation of this Act includes the operation of any notice or order under this Act and any agreement entered into under or for the purposes of this Act.
statement includes a representation of any kind—
(a) whether made verbally or in writing, and
(b) whether negligent, false, misleading or otherwise.
the State means the Crown within the meaning of the Crown Proceedings Act 1988, and includes a public sector agency and an officer, employee or agent of the Crown or a public sector agency.
31
Leases of ports assets
31 Leases of ports assets
31 Leases of ports assets
(1) The provisions of a ports assets lease (or of any agreement or arrangement entered into in connection with such a lease) dealing with the following matters have effect according to their terms despite any law or rule to the contrary—
(a) the payment of any amount by way of premium under the lease and the retention of any such amount by the lessor or the State,
(b) the circumstances or conditions under which the lease may be terminated by the lessor or lessee,
(c) the application or operation of section 122, 130 or 133B of the Conveyancing Act 1919 to or in respect of the lease (or any lease under the lease),
(d) the application of a security provided in relation to the lease,
(e) the payment of a sum that is in the nature of a penalty,
(f) the ownership of, or the vesting or forfeiture of ownership of, any real or personal property on termination of the lease or on the occurrence of some other specified event or other thing,
(g) the pre-payment of amounts payable by way of rent under the lease and the retention of any such amounts by the lessor or the State,
(h) the continuance of the lease despite the occurrence of unintended or unforeseen circumstances,
(i) the continuance of the obligation to pay rent despite the occurrence of unintended or unforeseen circumstances,
(j) the amount payable in consequence of a breach or early termination of the lease,
(k) the liability of the lessor or lessee in relation to the leased assets,
(l) the non-refundability of any payment made on account of rent, premium, option fee, outgoings, security deposit or otherwise,
(m) the operation of any set-off.
(2) A ports assets lease may include provision for the removal by the lessee of any fixture severable from the land leased.
(3) A scheme of arrangement, receivership, winding up or other external administration of a company is to be carried out in a manner that gives effect to the provisions of a lease or agreement referred to in subsection (1).
(4) A variation of lease that operates to vary the land to which a lease relates can be registered under the Real Property Act 1900 (despite section 55A (4) of that Act) if the Treasurer certifies that—
(a) the lease is a ports assets lease, and
(b) the variation is for the purpose of including, as land to which that lease relates, land that is the subject of a lease of ports assets entered into after completion of an authorised transaction pursuant to an agreement for lease entered into before completion of the authorised transaction.
(5) In this section—
ports assets includes assets that were ports assets before their transfer to the private sector for the purposes of an authorised transaction.
ports assets lease means—
(a) a lease of ports assets entered into for the purposes of an authorised transaction, or
(b) a lease of ports assets that the Treasurer designates by order in writing as a ports assets lease for the purposes of this section.
32
No cargo throughput limits for Port Botany
32 No cargo throughput limits for Port Botany
32 No cargo throughput limits for Port Botany
(1) A planning control is of no effect to the extent that it would operate to impose a cargo throughput limit for Port Botany.
(2) A cargo throughput limit for Port Botany is any direct or indirect limit or other restriction on the amount of cargo that can be received or handled at or transported from Port Botany and includes (without limitation) the following—
(a) a limit or other restriction on the number of cargo containers that can be received or handled at or transported from Port Botany,
(b) a limit or other restriction on the nature, number or frequency of transport movements to or from Port Botany,
(c) a limit of the kind imposed by condition A1.4 (Port Throughput Capacity Limits) of the planning approval for the construction and operation of a new container terminal and associated infrastructure at Port Botany as granted on 13 October 2005.
(3) The following provisions apply to the operation of this section—
(a) this section does not apply to a planning control until the planning control has been imposed, so that it limits the effect of the planning control once imposed but does not prevent the planning control from being imposed,
(b) this section does not invalidate a planning control or any planning approval that imposes a planning control,
(c) this section does not prevent planning approval being granted merely because a planning control to be imposed by the planning approval will be rendered wholly or partially ineffective by this section.
planning approval means a consent, approval, permission or other authority under the Planning Act and includes any condition of or the terms of any such consent, approval, permission or other authority.
planning control means any requirement or other control imposed (before or after the commencement of this section) by or under—
(a) the Planning Act, or
(b) an environmental planning instrument under the Planning Act, or
(c) a planning approval.
Port Botany means land in the local government areas of the City of Botany Bay and the City of Randwick (including land covered by water) leased to the private sector for the purposes of an authorised transaction.
Part 7
Miscellaneous
Part 7 Miscellaneous
Part 7 Miscellaneous
33
Delegation
33 Delegation
33 Delegation
The Treasurer may delegate to the Secretary of the Treasury, or to any other Public Service employee prescribed by the regulations, any function of the Treasurer under this Act except this power of delegation.
s 33: Am 2015 No 15, Sch 3.47 [1].
34
Act to bind State and other jurisdictions
34 Act to bind State and other jurisdictions
34 Act to bind State and other jurisdictions
(1) This Act binds the State and, in so far as the legislative power of the Parliament of New South Wales permits, the other States, the Territories and the Commonwealth.
(2) Without limiting subsection (1), this Act has effect despite any privilege or immunity of the Crown in any of its capacities.
(3) This Act does not make any State or Territory, the Commonwealth, or the Crown in any of its capacities, liable to be prosecuted for an offence.
(4) A reference in this section to a State, Territory or the Commonwealth includes a reference to the Government of the State, Territory or Commonwealth.
35
Extraterritorial operation of Act
35 Extraterritorial operation of Act
35 Extraterritorial operation of Act
(1) It is the intention of the Parliament of New South Wales that the operation of this Act should, as far as possible, include operation in relation to the following—
(a) things situated in or outside the territorial limits of the State,
(b) acts, transactions and matters done, entered into or occurring in or outside the territorial limits of the State,
(c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Act, be governed or otherwise affected by the law of another State, a Territory, the Commonwealth or a foreign country.
(2) Without limiting subsection (1), it is the intention of the Parliament of New South Wales that the provisions of this Act have an operation in relation to the things, acts, transactions and matters referred to in that subsection even if the rules of private international law (whether at general law or as provided by legislation) would require the application of a law other than this Act instead of the provisions of this Act.
36
Construction of Act and instruments so as not to exceed legislative power
36 Construction of Act and instruments so as not to exceed legislative power
36 Construction of Act and instruments so as not to exceed legislative power
(1) Unless a contrary intention appears, if a provision of this Act or an instrument made under this Act—
(a) would, apart from this section, have an invalid application, but
(b) also has at least one valid application,
it is the intention of the Parliament of New South Wales that the provision is not to have the invalid application, but is to have every valid application.
(2) Despite subsection (1), the provision is not to have a particular valid application if—
(a) apart from this section, it is clear, taking into account the provision’s context and the purposes or objects underlying this Act, that the provision was intended to have that valid application only if every invalid application, or a particular invalid application, of the provision had also been within the legislative power of the Parliament of New South Wales, or
(b) the provision’s operation in relation to that valid application would be different in a substantial respect from what would have been its operation in relation to that valid application if every invalid application, or a particular invalid application, of the provision had been within the legislative power of the Parliament of New South Wales.
(3) Subsection (2) does not limit the cases in which a contrary intention may be taken to appear for the purposes of subsection (1).
(4) This section is in addition to, and not in derogation of, section 31 of the Interpretation Act 1987.
(5) In this section—
application means an application in relation to—
(a) one or more particular persons, things, matters, places, circumstances or cases, or
(b) one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases.
invalid application, in relation to a provision, means an application because of which the provision exceeds the legislative power of the Parliament of New South Wales.
valid application, in relation to a provision, means an application which, if it were the provision’s only application, would be within the legislative power of the Parliament of New South Wales.
37
Orders
37 Orders
37 Orders
(1) An order made under a provision of this Act takes effect at the beginning of the day on which it is made, unless the order otherwise provides.
(2) An order cannot provide for the order to take effect earlier than the beginning of the day on which it is made (but can provide for the order to take effect at a time on the day on which it is made that is earlier than the time at which it is made).
(3) A document purporting to be an order made under a provision of this Act is, unless the contrary is established, taken to be such an order and to have been properly made.
(4) A certificate purporting to be signed by the Treasurer or an officer prescribed by the regulations certifying that an order specified or referred to in the certificate is an order made under a specified provision of this Act is admissible in evidence in any legal proceedings and is evidence of the matters certified.
(5) A provision of another Act that results from an amendment made by this Act and that provides for the making of an order is deemed for the purposes of this section to be a provision of this Act (and the order is deemed to be an order made under a provision of this Act).
38
Service or giving of documents
38 Service or giving of documents
38 Service or giving of documents
(1) A document that is authorised or required by this Act or the regulations to be served on or given to any person may be served or given—
(a) in the case of a natural person—
(i) by delivering it to the person personally, or
(ii) by sending it by post to the address specified by the person for the giving or service of documents or, if no such address is specified, the residential or business address of the person last known to the person giving or serving the document, or
(iii) by sending it by facsimile transmission to the facsimile number of the person, or
(b) in the case of a body corporate—
(i) by leaving it with a person apparently of or above the age of 16 years at, or by sending it by post to, the head office, a registered office or a principal office of the body corporate or to an address specified by the body corporate for the giving or service of documents, or
(ii) by sending it by facsimile transmission to the facsimile number of the body corporate.
(2) Nothing in this section affects the operation of any provision of a law or of the rules of a court authorising a document to be served on a person in any other manner.
39
Regulations
39 Regulations
39 Regulations
The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
Schedule 1
Interpretative provisions
Schedule 1 Interpretative provisions
Schedule 1 Interpretative provisions
sch 1: Am 2013 No 52, Sch 1 [5].
Schedule 2
Provisions concerning transaction SOCs
Schedule 2 Provisions concerning transaction SOCs
Schedule 2 Provisions concerning transaction SOCs
(Section 8)
sch 2: Am 2015 No 15, Sch 3.47 [2].
Schedule 3
Corporate conversion of port SOCs and transaction SOCs
Schedule 3 Corporate conversion of port SOCs and transaction SOCs
Schedule 3 Corporate conversion of port SOCs and transaction SOCs
(Section 9)
Schedule 4
Vesting of assets, rights and liabilities
Schedule 4 Vesting of assets, rights and liabilities
Schedule 4 Vesting of assets, rights and liabilities
(Section 19)
Schedule 5
Savings, transitional and other provisions
Schedule 5 Savings, transitional and other provisions
Schedule 5 Savings, transitional and other provisions
sch 5: Am 2013 No 52, Sch 1 [6] [7].
Schedule 6
Schedule 6
Schedule 6 (Repealed)
sch 6: Rep 1987 No 15, sec 30C.
Source text: opening excerpt
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
Part 1 Preliminary
1 Name of Act
1 Name of Act
1 Name of Act
This Act is the Ports Assets (Authorised Transactions) Act 2012.
2 Commencement
2 Commencement
2 Commencement
This Act commences on the date of assent to this Act.
3 Interpretation—key definitions
3 Interpretation—key definitions
3 Interpretation—key definitions
Note—
Schedule 1 contains other interpretative provisions.
In this Act—
associated port land means land (including an interest in land) at Botany Bay, Port of Newcastle or Port Kembla that is vested in any of the following public sector agencies and designated by the Treasurer by order in writing as associated port land for the purposes of this Act—
(a) Transport for NSW,
(b) Property and Development NSW,
(c) any other public sector agency prescribed by the regulations for the purposes of this definition.
authorised transaction means a transfer of ports assets authorised by Part 2.
Port Botany land means land at Botany Bay that is ports assets.
Port Kembla land means land at Port Kembla that is ports assets.
Port of Newcastle land means land at Port of Newcastle that is ports assets.
port SOC means the Port Kembla Port Corporation, the Newcastle Port Corporation or the Sydney Ports Corporation.
ports assets means—
(a) the assets, rights and liabilities of a port SOC, and
(b) associated port land.
retained assets means ports assets that relate only to port operations in Sydney Harbour, the port of Yamba or the port of Eden (and not to port operations in any other port).
Note—
For example, ports assets that relate to port operations in both Sydney Harbour and Botany Bay are not retained assets.
s 3: Am 2013 No 52, Sch 1 [1]–[3]; 2017 No 22, Sch 2.34; 2020 No 30, Sch 4.76; 2024 No 27, Sch 2.10.
Part 2 Authorised transactions
Ports Assets (Authorised Transactions) Act 2012 (New South Wales) | Zoe
The Treasurer may direct and control port SOCs and transaction entities in relation to functions exercised for purposes of an authorised transaction; such directions are mandatory and are protected from personal liability for directors or officers who comply (s 11).
The Act contains staff-transfer rules to move employees within the public sector, secondments to other public or private employers, and transfers to private sector employers subject to employee consent and statutory protections (s 14-18). It sets employment guarantee periods and continuity of entitlements (s 16-17) and caps certain transfer payments (s 18).
It provides vesting orders (Schedule 4) that vest assets, rights and liabilities in transferees by order, without the need for conveyance or registration (Sch 4 cl 2-3). Treasurer determinations about what constitutes ports assets are conclusive for vesting purposes (Sch 4 cl 8).
The Act modifies the operation of other laws in several respects: exemption or direction on State taxes (s 24); displacement of some State Owned Corporations Act or constitutions to avoid limiting transactions (s 25); exclusion of Part 6 of the Government Sector Finance Act 2018 from applying to transaction arrangements (s 26); and an express non-application of secrecy protections to Auditor‑General reports authorised by the Treasurer in relation to transactions (s 27).
It protects transaction arrangements from being treated as breaches of contract, confidence or as giving rise to termination rights under other instruments, and disclaims State liability for compensation arising from enactment or operation of the Act except where a transaction arrangement itself provides for compensation (s 29-30).
The Act permits ports assets leases to contain terms that would otherwise conflict with other laws (s 31), and invalidates planning controls to the extent that they would impose cargo throughput limits for Port Botany (s 32).
In short, the Act centralises authority for structuring, implementing and protecting asset transfers in the Treasurer; channels sale/lease proceeds into a specified State fund; creates legal devices to vest assets and move staff; and contains express overrides and protections to smooth transactions (vesting without conveyance, non-application of secrecy and some State taxes, validation of lease terms, and contractual protections). The State retains freehold for the principal port lands listed, but gives long-term leaseability and transactional certainty to prospective private operators.
Main concepts
This Act repeatedly defines and operationalises a small set of core concepts. Understanding those concepts is crucial to reading the rest of the statute.
Authorised transaction (s 3): a defined term meaning "a transfer of ports assets authorised by Part 2". The Act’s entire machinery is triggered by acts done "for the purposes of an authorised transaction" (Sch 1 cl 3), so whether an act qualifies as being done for that purpose matters procedurally and substantively (see many provisions granting powers tied to that purpose).
Ports assets (s 3; Sch 1 cl 2): a broad concept that includes the assets, rights and liabilities of a port SOC and associated port land (s 3). The Schedule clarifies that ports assets continue to include assets that had been ports assets before transfer between public sector agencies, but they cease to be ports assets when transferred to the private sector pursuant to an authorised transaction (Sch 1 cl 2). The Treasurer may determine what comprises ports assets for vesting orders and the determination is conclusive (Sch 4 cl 8).
Port SOC (s 3): shorthand for the three named Port Corporations (Port Kembla Port Corporation, Newcastle Port Corporation, Sydney Ports Corporation). Port Botany land, Port Kembla land and Port of Newcastle land are each defined as ports assets (s 3).
Associated port land (s 3): land at Botany Bay, Port of Newcastle or Port Kembla that is vested in specified public sector agencies and designated by the Treasurer by order in writing. That designation mechanism allows the Treasurer to expand the pool of lands treated as ports assets.
Retained assets (s 3): assets relating only to Sydney Harbour, Yamba or Eden ports (and not to other ports). Retained assets cannot be transferred to the private sector under the Act (s 4(1)(c); note and definition in s 3).
Transaction entity (ss 8-9; Sch 2; Sch 3): covers transaction SOCs and transaction companies, bespoke corporate forms created or used for transactions. The Act gives these entities additional functions (s 10), specific governance arrangements (Sch 2), and conversion paths (Sch 3).
Vesting order and vesting (Sch 4): primary mechanism to transfer assets, rights and liabilities without routine conveyancing, by order of the Treasurer. Vesting orders vest assets in the transferee without need for conveyance or registration (Sch 4 cl 3). The Schedule provides for terms, consideration, partial interests in land and certification to registration authorities (Sch 4 cl 4-9).
Treasurer’s role (s 6-7; s 11): the Act centralises decision-making in the Treasurer. The Treasurer has broad, express powers to direct the manner of transacting, create entities, approve deductions from proceeds, give binding directions to agencies and issue conclusive certificates. Directions from the Treasurer are mandatory and protected (s 11(2), (6); Sch 4 cl 8; Sch 3 cl 2(3)).
Proceeds and Restart NSW Fund (s 5): sale or lease proceeds to the private sector belong to the State and are payable into the Restart NSW Fund (s 5(1)-(3)). Deductions are permitted with Treasurer approval (s 5(4)-(6)).
Employee transfer mechanics (ss 14-18): statutory authorisation for transferring employment within the public sector (s 14), secondments (s 15), transfers to private employers with employee consent except where contract employees (s 16), preservation of continuity and entitlements (s 17), and capped transfer payments (s 18).
Interaction and pre-emption of other laws (Pt 6): the Act contains targeted overrides and directions about State tax liability (s 24), relationship with other State legislation and potential inconsistency (s 25), exclusion of particular provisions of other State Acts (s 26, s 27, s 28, s 31), and construction clauses to preserve valid applications (s 36).
Conceptually the Act operates as a transaction-enabling statute. It defines what is a ports asset, creates streamlined transfer mechanisms (vesting orders, certificates, severance of fixtures), authorises bespoke corporate forms and conversion paths, centralises decision-making in the Treasurer and creates protective legal buffers for transaction counterparties (non-application of some existing law, protection from contract/confidentiality claims, validation of lease provisions). The Act therefore treats asset transfer as a policy objective to be implemented with legal certainty and administrative control.
Who it affects
The Act’s scope points to three groups of persons and entities it materially affects: the State/public sector, private sector counterparties, and individuals employed by port SOCs. The Act also affects local government planning instruments at Port Botany and registration/administrative authorities.
The State and its agencies: the State is both the grantor and recipient of many powers. Ports assets remain, in the first instance, public sector property (s 3). The Ports Assets Ministerial Holding Corporation is constituted as a statutory body to hold ports assets on behalf of the Crown and to carry on related activities (s 13). The Treasurer, or officials authorised by the Treasurer (s 33), makes the decisions, issues orders and directions (s 6-7, ss 11, 19). Public sector agencies that currently hold or are designated as holding ports assets, and which may become transferees under vesting orders, are directly in scope for transfers, authorisations and accounting directions (Sch 4 cl 10).
Port SOCs and transaction entities: the named Port Corporations are central actors (s 3). The Act permits the conversion of port SOCs into companies and the establishment of transaction SOCs and transaction companies for carrying out transactions (ss 8-9; Sch 3). If converted into transaction companies, port SOCs’ governance, shareholder relations and statutory rights change as set out in Sch 3 (Sch 3 cl 3).
Private sector prospective buyers/lessees/operators: the Act authorises transfer of ports assets to private sector entities subject to limits, notably that freehold remains public for principal port lands and leases cannot exceed aggregated 99 years (s 4). Private operators acquire leases or interests that the Act protects: proceeds paid to the State, lease terms effective despite other laws (s 31), and grant of relevant authorisations by direction (s 21). Private entities are also potential transferees receiving assets by vesting orders (Sch 4).
Employees of port SOCs: the Act enables intra-public transfers (s 14), secondments (s 15) and transfers to private employers (s 16). It protects continuity of service, superannuation membership and accrued leave entitlements on transfer (s 17), and establishes employment guarantee periods with limited termination grounds (s 16(5)-(6)). Contract and casual employees are treated differently; contract employees can be transferred without consent (s 16(2)), and casuals have no employment guarantee period (s 16(6) note).
Local planning regulators and communities around Port Botany: s 32 removes the legal force of planning controls that would impose cargo throughput limits for Port Botany. That changes the legal relationship between State planning instruments and port throughput management in the Botany Bay/Randwick/Botany local government areas.
Registration authorities and statutory regulators: the Act allows certificates (Sch 4 cl 9) to be lodged that registration authorities must accept, without requiring a specified form. It also permits the Treasurer to direct agencies to grant relevant authorisations or displace/modifiy regulatory provisions in relation to authorisations for new operators (s 21). The Treasurer must consult the relevant public sector agency before giving a direction (s 21(3)), but a public sector agency must comply when directed (s 21(4)).
Tax and revenue agencies: s 24 excludes public sector agencies from State tax liability for relevant matters and allows the Treasurer to direct tax exemptions or partial directions for non-public entities. The Treasurer must inform the Chief Commissioner of State Revenue of orders under this section (s 24(5)).
Who pays and who benefits in concrete terms: private buyers/lessees pay transaction proceeds, which belong to and are payable directly to the State and go into the Restart NSW Fund (s 5(1)-(3)). The Treasurer can approve deductions to reimburse public agencies and repaying public sector debt (s 5(4)). Private lessees benefit from legal certainties , protections for lease terms (s 31), authorisation grants (s 21), and validation mechanisms (Sch 4). Employees gain job continuity protections and limited protection against termination during employment guarantee periods (ss 16-17), while the State can manage workforce arrangements across agencies (ss 14-15). Local communities may be affected by the inability to impose throughput caps at Port Botany (s 32).
The Act therefore has immediate, practical effects on transactional counterparties, public sector employers and employees, regulatory authorities with responsibility for permits and planning, and fiscal agencies because of the channelling of proceeds to a designated fund.
Key duties and rights
The statute creates a number of mandatory obligations (duties to act or to comply) and confers rights or entitlements on specific parties. Key duties and rights are as follows, with statutory references.
Duties and powers vested in the Treasurer
Duty/Power to manage transactions: The Treasurer "has and may exercise all such functions as are necessary or convenient for the purposes of an authorised transaction" (s 6). The Act repeatedly authorises actions "for the purposes of an authorised transaction", tying many powers to that purpose (Sch 1 cl 3).
Direction-making power: The Treasurer may direct how an authorised transaction is effected and may deem any manner appropriate (s 7(1)-(2)). The Treasurer may give binding directions to port SOCs and transaction entities and their officers that must be complied with (s 11(2)). The Treasurer may also issue orders for vesting assets (Sch 4 cl 2).
Financial approvals: The Treasurer may approve deductions from transaction proceeds to repay debt, reimburse taxes or satisfy liabilities of public sector agencies involved (s 5(4)). The Treasurer can direct that State tax is not payable by non-public persons to such extent as the Treasurer directs (s 24(3)).
Rights and entitlements of the State
Ownership of proceeds: Transaction proceeds from private sector transfers belong to and are payable directly to the State and must be paid into the Restart NSW Fund (s 5(1)-(3)). The State is therefore the immediate beneficiary of monetisation.
Freehold retention and lease controls: The State retains ownership of freehold title to the principal port lands (s 4(1)(a)), while the State can grant long leases (but not exceeding aggregated 99 years) and determine their terms (s 4(1)(b)).
Duties and obligations of public sector agencies and registration authorities
Compliance with Treasurer directions: A public sector agency exercising functions under a relevant law must comply with a direction of the Treasurer given under s 21 (s 21(4)). More broadly, port SOCs and transaction entities must comply with Treasurer directions in relation to functions performed for authorised transactions (s 11(1)-(2)).
Registration authorities must accept certificates under Sch 4 cl 9: A registration authority is to accept and act on a certificate lodged by a public sector agency as transferee or transferor certifying information reasonably required to register vesting (Sch 4 cl 9(2)-(3)). No fee is payable for such registration action (Sch 4 cl 9(4)).
Rights and protections for private counterparties
Validation of lease provisions: Provisions of a ports assets lease take effect according to their terms despite any law or rule to the contrary for a range of matters (s 31(1)). That affords private lessors and lessees contractual certainty on premiums, termination, penalties, security and other key commercial terms.
Protection against suspension/cancellation of authorisations on conversion: A relevant authorisation granted to a port SOC or new operator may not be suspended or cancelled merely because of corporate conversion or change in officers or shareholders pursuant to a transaction arrangement (s 21(6)).
Non-application of certain laws to leases and contracts: Contracts for sale of land entered into for the purposes of an authorised transaction are not subject to s 52A of the Conveyancing Act 1919 (s 28). State tax exemption directions are available under s 24.
Employee rights and employer obligations
Continuity and entitlements: Transferred employees are taken to retain continuity of service, superannuation membership and accrued leave entitlements (s 17(1)(a)-(d)). The new employer is taken to be an employer for superannuation scheme purposes (s 17(1)(b)).
Employment guarantee period and protection from termination: For permanent employees the employment guarantee period is two years after the transfer (s 16(6)(a)). During that period the new employer cannot terminate employment except for specified reasons (serious misconduct, application of reasonable disciplinary procedures, or agreement) (s 16(5)). Contract employees may be transferred without consent and are not covered by the employment guarantee period (s 16(2), (6) note).
Transfer payments: The Treasurer may enter into transfer payment arrangements up to a capped limit equivalent to 30 weeks of base salary (s 18(1)-(2)). Employees are not entitled to additional payments merely because they ceased being public sector employees as a result of a transaction (s 18(3)).
Protections and exclusions
Contractual immunity for transaction-related acts: The Act declares that matters arising from operation of the Act, transfers, obligations under transaction arrangements and disclosures by public sector agencies are not to be treated as breaches of contract or confidence, do not give rise to remedies or default events and do not breach statutory secrecy provisions (s 29(1)-(2)). However, s 29(3) preserves rights and obligations under transaction arrangements themselves.
No compensation for enactment or operation: The Act states compensation is not payable by or on behalf of the State because of the enactment or operation of this Act (s 30(1)). This does not affect compensation payable under a transaction arrangement (s 30(2)).
Conclusive Treasurer certificates: Certificates issued by the Treasurer for purposes such as satisfying prerequisites to corporate conversion are conclusive and not subject to challenge in court proceedings (Sch 3 cl 2(3)). Likewise, Treasurer determinations about ports assets for vesting are conclusive (Sch 4 cl 8).
Other procedural rights and duties
Consultation duty: The Treasurer must consult with a public sector agency before giving a direction about grant of a relevant authorisation (s 21(3)). The Act also contemplates giving copy of State tax orders to the Chief Commissioner of State Revenue (s 24(5)).
Delegation: The Treasurer may delegate functions to the Secretary of the Treasury or other prescribed public service employees, except the power of delegation itself (s 33).
These statutory duties and rights evidence a tightly controlled set of powers on the State side and contractual, procedural and statutory protections for private counterparties and transferring employees. Many of the State’s actions are insulated by conclusive certificates and non-compensation clauses, while private parties obtain legal certainty (validated lease terms, protection of authorisations, registration certificate acceptance) in exchange for participation in the transaction.
Penalties and enforcement
The Act does not establish a traditional criminal or civil sanctions regime targeted at breaches of its core directions. Instead, enforcement and effects are primarily implemented by administrative powers, mandatory directions and statutory protections. The principal enforcement mechanisms and civil law effects are as follows.
Administrative enforcement and compulsion
Mandatory compliance with Treasurer directions: Where the Treasurer gives directions to port SOCs, transaction entities or their officers for the purposes of an authorised transaction, those directions "must be complied with" (s 11(2)). The language creates an administrative obligation enforceable by internal governance and potentially by judicial review (subject to the Act’s protection of Treasurer decisions).
Compliance by public sector agencies with directions on relevant authorisations: A public sector agency "must comply with a direction of the Treasurer under this section" concerning grant of relevant authorisations (s 21(4)). This statutory compulsion replaces ordinary regulatory processes where used.
Non-liability protections
Protection from personal liability for officers: Anything done or omitted by a director or officer in complying with a Treasurer direction does not subject that person personally to any action, liability, claim or demand (s 11(6)). This provision operates as an enforcement-safe harbour for officers who obey Treasurer directions.
Certificates and conclusive determinations: Certifications by the Treasurer (Sch 3 cl 2(3); Sch 4 cl 8; Sch 4 cl 9(5) regarding certificates to registration authorities) are admissible and conclusive evidence in proceedings and are, in some cases, taken as conclusive of compliance. That limits the range of judicial inquiry into certain preparatory acts and may reduce litigation risk for transactional counterparties.
Statutory non-application and validation clauses
Non-application of secrecy and other statutory provisions: s 27 excludes section 38 (Secrecy) of the Government Sector Audit Act 1983 from applying to Auditor-General reports authorised by the Treasurer in connection with an authorised transaction, enabling disclosure that would otherwise be secret. s 28 disapplies s 52A of the Conveyancing Act 1919 to contracts for sale of land entered into for authorised transactions. Such provisions remove statutory obstacles that would otherwise impede enforcement or registration of transactions.
Validation of lease and contractual terms: s 31(1) declares that specified lease provisions have effect according to their terms despite any law to the contrary, strengthening the enforceability of bespoke lease clauses.
Judicial review and civil remedies (indirect enforcement routes)
The Act contains provisions that are apt to attract judicial review challenges (for example, order-making, conclusive certificates and the exercise of discretionary powers). However, the Act also contains language that restricts challenges (Sch 3 cl 2(3) states a certificate cannot be challenged, reviewed or called into question in any court or tribunal). The Act’s protective provisions will be relevant to any application seeking to challenge the legal validity of an order or certificate.
The Act expressly states that matters to which s 29 applies are not to be regarded as breaches of contract or confidence, or giving rise to remedies or termination rights (s 29(2)). This displaces common law or contractual remedies in many circumstances connected to an authorised transaction.
Absence of express penalties
The Act does not create specific new offences, monetary fines or criminal penalties tied to non-compliance with its main provisions. Enforcement thus proceeds by administrative compulsion, statutory protection, and the transfer of property and rights by order rather than by criminal sanction.
Evidence and admissibility
A document purporting to be an order under the Act is, unless the contrary is established, taken to be such an order and to have been properly made (s 37(3)). A certificate purporting to be signed by the Treasurer or prescribed officer is admissible in evidence in any legal proceedings and is evidence of the matters certified (s 37(4)). These evidentiary rules facilitate enforcement by simplifying proof of executive acts.
In summary, enforcement is effected through mandatory administrative directions, statutory validation of transactional steps (vesting orders that take effect without conveyance), evidentiary conclusive certificates and protections from liability for officers who comply. The Act does not deploy criminal sanctions; instead it relies on administrative dominance and legal certainty mechanisms to ensure transactions are carried out and enforced.
How it interacts with other laws
The Act is crafted to operate alongside and, in many specified respects, to displace or modify the effect of other State laws and procedural regimes. The text expressly deals with interactions in multiple ways.
Express non-application or modification of other Acts
State taxes: Section 24 defines "relevant matter" broadly to include transaction arrangements, vestings under Schedule 4, share issuances and conversions and other related matters. It then provides that State tax is not payable by a public sector agency in relation to a relevant matter (s 24(2)), and that the Treasurer may direct that State tax is not payable by other persons to such extent as the Treasurer directs (s 24(3)). Orders may be made before or after the liability accrues and must be copied to the Chief Commissioner of State Revenue (s 24(4)-(5)). This materially affects the normal operation of the Duties Act 1997 and revenue laws in transactions covered by the Act.
State Owned Corporations Act and constitutions: Section 25(1) states that provisions of the State Owned Corporations Act 1989 or provisions of a corporation’s constitution do not operate to prevent or restrict carrying out a transaction arrangement. Section 25(2) allows regulations to prescribe inconsistent State legislation, in which case the provisions of this Act prevail to the extent of inconsistency.
Government Sector Finance Act 2018: Section 26 excludes Part 6 of that Act from applying to any transaction arrangement.
Government Sector Audit Act 1983 secrecy: Section 27 removes the operation of s 38 (Secrecy) of the Government Sector Audit Act insofar as the Treasurer authorises the Auditor-General to make reports or communications for purposes of an authorised transaction. This allows disclosure of audit information that would otherwise be secret.
Conveyancing and contracts: Section 28 disapplies s 52A of the Conveyancing Act 1919 to contracts for sale of land entered into for the purposes of an authorised transaction. Section 31 allows ports assets leases’ specified provisions to have effect despite any other law or rule to the contrary, including provisions of the Conveyancing Act (s 31(1)(c) specifically references certain sections of that Act).
Planning controls: Section 32 states that a planning control is of no effect to the extent it would impose a cargo throughput limit for Port Botany. It preserves the ability to impose controls but removes their legal force to limit throughput once imposed. That creates a statutory carve-out in the operation of the Environmental Planning and Assessment Act 1979 and associated instruments.
Vesting and registration mechanisms that bypass ordinary procedures
Vesting orders under Schedule 4 (Sch 4 cl 2-3) vest assets, rights and liabilities in transferees "by virtue of this clause and without the need for any conveyance, transfer, assignment or assurance". Schedule 4 also provides for certificates to registration authorities that such authorities must accept and act on (Sch 4 cl 9). These provisions alter the ordinary conveyancing and registration regime; registration authorities must accept statutory certificates notwithstanding other law.
The Treasurer may direct public sector accounting policies for transfers in place of normal public sector accounting requirements (Sch 4 cl 10), altering usual finance or accounting treatments.
Conclusive executive determinations and certificates
Certificates issued by the Treasurer in connection with corporate conversion are stated to be conclusive and cannot be challenged in court (Sch 3 cl 2(3)). Treasurer determinations that particular assets are ports assets are conclusive for vesting purposes (Sch 4 cl 8). Those clauses compress possible legal disputes about whether prerequisites for conversions and vestings have been satisfied.
Non-application of remedies and compensation
Section 29 precludes treating many transaction-related acts as breaches of contract, confidence, giving rise to remedies or causing termination or default events. Section 30 disclaims compensation payable by the State because of the enactment or operation of the Act (with limited exceptions). Those provisions interact with common law rights and statutory protections.
Construction doctrines and legislative power
Section 36 instructs courts to read provisions to avoid invalid applications where possible, preserving valid applications. It also restricts a provision from having a valid application if its valid operation depends on an invalid application being within the Parliament’s power. This operationalises an interpretative strategy to keep the Act effective within constitutional constraints.
Limits and caveats
While the Act contains many overrides and conclusive machinery, it is framed as subject to the legislative power of the NSW Parliament (s 34(1)), and s 36 contemplates readings to avoid exceeding legislative power. The Act binds the State and, to the extent possible, other jurisdictions (s 34), but does not create criminal liability for other States or Commonwealth bodies (s 34(3)). The extraterritorial intention (s 35) does not eliminate constitutional limits.
Taken together, these provisions mean that for transaction-related matters the Act alters the operation and applicability of a number of State statutes (taxation, conveyancing, public sector finance, planning, and confidentiality/ secrecy). It also creates administrative devices (vesting orders and conclusive certificates) intended to streamline transfers by reducing reliance on ordinary conveyancing, regulatory processes and court review. Practitioners should therefore read the Act as an overlay that both enables and insulates authorised transactions from many ordinary legal frictions, while leaving some matters (for example, retained assets) outside the transfer regime.
Amendment history
The Act as provided contains footnoted amendment references at specific provisions and schedules. The recorded amendments in the provided text are as follows; the text does not supply the content of amending Acts, only the amendment citations appended to particular clauses:
Section 3 (Interpretation,key definitions) bears amendment notes: "s 3: Am 2013 No 52, Sch 1 [1]-[3]; 2017 No 22, Sch 2.34; 2020 No 30, Sch 4.76; 2024 No 27, Sch 2.10." Those annotations indicate definitions and interpretative content of s 3 were amended in 2013, 2017, 2020 and 2024 by the Acts and Schedules cited, but the supplied text does not include the earlier or intervening versions, nor the policy reasons for change. Practitioners must consult the amending Acts for precise historical text changes.
Section 4 (Authorised transfer of ports assets) carries an amendment note: "s 4: Am 2013 No 52, Sch 1 [4]." This indicates s 4 was amended in 2013.
Section 26 (Part 6 of Government Sector Finance Act 2018) shows: "s 26: Am 2018 No 70, Sch 3.50." That signals a 2018 amendment, consistent with insertion or modification in 2018.
Section 27 (Release of information by Auditor-General) has: "s 27: Am 2018 No 70, Sch 4.84."
Section 33 (Delegation) includes: "s 33: Am 2015 No 15, Sch 3.47 [1]."
Schedule 2 (Provisions concerning transaction SOCs) header shows: "(Section 8) sch 2: Am 2015 No 15, Sch 3.47 [2]." This suggests Sch 2 was amended in 2015.
Schedule 5 (Savings, transitional and other provisions) bears: "sch 5: Am 2013 No 52, Sch 1 [6] [7]." That records amendments made in 2013 to transitional or savings matters.
Schedule 1 includes: "sch 1: Am 2013 No 52, Sch 1 [5]." That indicates the interpretative provisions were amended in 2013.
The Act as presented therefore shows multiple amendments across 2013-2024 concentrated in definitions (s 3), Part 6 interactions (s 26-27), delegation and transaction SOC rules (s 33; Sch 2), and various transitional or savings provisions (Sch 5). The text does not provide the amending instruments themselves or describe the policy rationale; it records only that amendments were made. For precise change-tracking, practitioners must consult the amending Acts listed in the footnotes and the consolidated version of the statute as maintained by NSW legislation services.
No repeals are recorded within the provided text except that Schedule 6 is labelled "(Repealed)" and a footnote references prior repeal. The Act includes saving and transitional regulation-making power (Sch 5 cl 1) enabling retrospective transitional provisions stated as necessary to give effect to enactment or amendments.
This amendment history indicates the Act has been modified periodically to adjust definitions, governance arrangements and interactions with other State financial and audit law. Users should cross-check the consolidated statutory text and historical versions to confirm operative wording at any relevant point in time.
Litigation history
The supplied statute text contains no case citations, reported decisions, or express references to litigation or judicial determinations concerning the Act. There are no named cases in the material provided. Accordingly the statutory text itself does not record litigation history.
That said, the Act includes several features that, in practice, are associated with litigation risk or challenges to administrative acts. The text illuminates areas where disputes could arise and also the statutory devices that restrict such litigation:
Conclusive executive certificates: Sch 3 cl 2(3) provides that a Treasurer’s certificate certifying compliance for a corporate conversion "cannot be challenged, reviewed or called into question in proceedings before any court or tribunal" and is conclusive evidence. Sch 4 cl 8 makes Treasurer determinations about what comprises ports assets conclusive for vesting purposes. Those clauses narrow judicial review opportunities for certain preparatory executive acts. Litigation records (not present in the provided text) would be necessary to know whether courts have read those provisions narrowly or allowed collateral challenges to related administrative decisions.
Non-application of remedies: Section 29 prevents many acts connected to the operation of the Act from being treated as breaches or defaults under contracts or instruments and precludes statutory secrecy offences from applying to authorised disclosures. Section 30 prevents compensation claims arising from enactment or operation of the Act (other than compensation under a transaction arrangement). Those protections reduce the universe of civil claims but are themselves potentially the subject of legal challenge if applied in ways claimed to exceed legislative power.
Delegation and direction powers: The Treasurer’s broad direction-making powers (s 6-7, s 11) and the requirement that port SOCs and transaction entities comply with directions could prompt litigation over scope and reasonableness of directions, or claims relating to procedural fairness. The Act’s explicit protections for officers who comply with Treasurer directions (s 11(6)) and statutory displacement (s 11(7)) indicate an intent to limit personal liability and reduce litigation exposure.
Planning and environmental law interactions: Section 32 renders planning controls of no effect insofar as they would operate to limit cargo throughput at Port Botany. That statutory carve-out could intersect with environmental law and local government challenges, although the Act itself provides that the control can be imposed but will be ineffective once imposed (s 32(3)(a)-(c)). Any litigation history would likely involve disputes about the interplay of Pt 6 planning decisions and administrative law.
Registration and vesting: Schedule 4 vests unambiguously and authorises registration authorities to accept certificates (Sch 4 cl 9). Litigation could arise over the scope of vestings, what constitutes ports assets, or compensation claims. The Act, however, limits certain compensatory claims (s 30).
Because the provided text contains no reported cases or litigation record, readers should treat the above as an identification of potential legal flashpoints rather than as evidence of precedent. To assess actual litigation outcomes, practitioners should search court databases, tribunal records and legal reporting services for decisions applying, interpreting or challenging the Ports Assets (Authorised Transactions) Act 2012 or its amendments.
Gotchas
Practitioners need to be alert to specific statutory mechanics and risk points embedded in the Act. The following is a list of concrete "gotchas", each tied to text and operational consequences.
Broad, largely unfettered Treasurer discretion (s 6-7; s 11). The Treasurer can choose the manner of each authorised transaction, create transaction entities (s 8), issue vesting orders (Sch 4 cl 2) and direct public sector agencies to grant relevant authorisations (s 21). Those powers are expressed tightly to the Treasurer’s control; practitioners should expect executive direction over transaction structure and timing. The Act provides limited procedural guardrails (for example, consultation obligations in s 21(3)).
Conclusive certificates and determinations restrict judicial review (Sch 3 cl 2(3); Sch 4 cl 8). Where the Treasurer issues a certificate that statutory prerequisites have been met for corporate conversion, the certificate is stated to be conclusive and unchallengeable in court. Similar conclusive effect applies to Treasurer determinations about what constitutes ports assets for vesting. This limits ordinary avenues of legal challenge to executive certification.
Non-application of rights and remedies (s 29 and s 30). Many acts connected to the operation of the Act are declared not to be breaches of contract, confidence or statutory secrecy, and the State disclaims compensation for enactment or operation of the Act. Parties relying on common law remedies, tort or statutory rights should check whether s 29 or s 30 expressly displaces those remedies for the transaction in question.
Employee transfer quirks , consent and categories (s 16). Transfers to private sector employment require employee consent unless the employee is a "contract employee". The Act defines contract employees broadly as those governed by an individual contract rather than an award, enabling transfer without consent in some cases. Temporary and casual employees have different guarantee entitlements (s 16(6) note). Practitioners must categorise employees precisely at transfer.
Employment guarantee periods and termination limits (s 16(4)-(6)). Permanent employees transferred to private employers receive a two-year employment guarantee period; during that period the new employer cannot terminate except for serious misconduct, proper disciplinary procedures or by agreement. However, contract employees and casual employees may not have such protections; transfer terms are therefore sensitive to employee classification.
Transfer payments capped (s 18). Transfer payments to employees leaving public sector employment are capped at 30 weeks’ base salary. That cap should be factored into settlement budgeting and employee negotiation strategies.
Lease terms validated despite conflicting law (s 31). Ports assets leases can include terms that would otherwise be ineffective under other provisions or general law. This includes clauses on premiums, retention, termination conditions, pre-payment and non-refundability. The Act also allows removal of fixtures by lessees (s 31(2)) and requires that external administrations give effect to lease provisions (s 31(3)). Private lessees and financiers benefit from this certainty, but buyers must ensure they understand which lease terms are being validated.
99-year aggregated lease cap and retained freehold (s 4(1)(a)-(b)). For the main port lands, freehold title must stay with a public sector agency and any lease cannot exceed 99 years when optioned out. Structuring around this cap requires careful drafting where long-term commercial control is sought.
Planning control carve-out for Port Botany (s 32). Section 32 renders planning controls of no effect where they would impose a cargo throughput limit for Port Botany. Practitioners dealing with environmental approvals, local government instruments and community consultative obligations must account for statutory inability to enforce throughput caps, even though planning controls can still be imposed (s 32(3)(a)-(c)).
Registration authority acceptance of certificates (Sch 4 cl 9). Registration authorities must accept certificates lodged by public sector transferees or transferors to enable registration arising from vesting orders. They cannot demand particular forms, and no fee is payable. Conveyancers and land registry agents should prepare to operate with statutory certificate mechanics rather than standard instruments.
Tax exemptions subject to Treasurer order (s 24). State tax is not payable by public sector agencies for "relevant matters"; for private persons, the Treasurer can direct tax exemption to such extent as the Treasurer determines. The Treasurer may issue orders before or after the liability accrues (s 24(4)). Tax positions therefore depend on whether a Treasury order has been made and on the order’s scope; revenue consequences should be confirmed with Treasury and the Chief Commissioner of State Revenue receives a copy of Treasury orders (s 24(5)).
Vesting without conveyance (Sch 4 cl 3). Vesting orders transfer property, rights and liabilities by operation of statute without traditional conveyancing. Parties should not rely on normal transfer mechanics; instead they must verify the content of the vesting order and any certificates lodged with registration authorities.
Limited compensation and liability for the State (s 30). Section 30 removes State liability for compensation for enactment or operation of the Act, subject to transaction arrangements. Parties negotiating with the State should ensure contractual protections and compensation terms are contained in transaction arrangements rather than rely on general statutory compensation claims.
Corporate conversion consequences (Sch 3 cl 3). A port SOC given a corporate conversion direction ceases to be a statutory SOC and various officeholders and members cease to hold office immediately before registration as a company. Persons who lose offices because of conversion are not entitled to compensation for loss of that membership or office (Sch 3 cl 3(1)(f)). Governance and remuneration consequences flow from conversion, and these are not backed by statutory compensation for former officeholders.
Limits on application of other Acts (s 25). Section 25(1) and (2) set out that the Act can override provisions of the State Owned Corporations Act and constitutions to the extent necessary, and that prescribed inconsistent State legislation will give way. Practitioners must identify whether enabling regulations have been made to invoke these override powers.
In practice, these "gotchas" mean that transactional counterparties, employees and regulators will experience legal environments calibrated by statute rather than purely by contract or common law. The Act provides certainty on many points but also concentrates risk and decision-making with the Treasurer and embeds statutory exceptions that must be navigated deliberately.
How to comply
Compliance with this Act falls into several operational streams: transactional compliance (structuring, approvals, vesting), employee transfer and industrial compliance, registration and tax compliance, and governance/compliance by public sector agencies and transaction entities. Below are practical compliance steps and checklists, tied to statutory provisions.
Transactional structuring and Treasurer engagement
Early Treasury engagement: Because the Treasurer has centralised powers (s 6-7), engage Treasury at the earliest stage of transaction design. Treasury directs the manner of authorised transactions (s 7(1)) and can approve deductions from proceeds (s 5(4)). Seek written directions and certificates needed for corporate conversion or vesting, and confirm who within Treasury will authorise orders.
Confirm ports assets and designation of associated port land: Use the Treasurer’s conclusive determination (Sch 4 cl 8) only after verifying what the Treasurer will regard as ports assets. If associated port land is to be included, ensure it is designated by Treasury order in writing under the definition in s 3.
If using transaction SOCs or transaction companies: Follow the creation and governance rules in s 8, s 9 and Sch 2. Draft constitutions and shareholder arrangements to reflect the modified corporate rules (for example Sch 2’s departures from the State Owned Corporations Act, including board composition, CEO appointment and dividend rules).
Prepare for vesting orders: For asset transfers by vesting order (Sch 4 cl 2-3), confirm the exact terms, any conditions, consideration specified (Sch 4 cl 4-5), and the transferee. Ensure that any partial interests in land are carefully specified (Sch 4 cl 6). Expect that the transfer will take effect without traditional conveyance and prepare registration materials consistent with certificate mechanics (Sch 4 cl 9).
Registration, certificates and authorities
Lodge statutory certificates properly: If a public sector agency is transferee or transferor, prepare the certificate that registration authorities will accept under Sch 4 cl 9(2)-(3). Note the authority of the registration authority to dispense with particular form requirements and that no fee is payable for registration under Sch 4 cl 9(4).
Anticipate acceptance by registration authorities: Registration authorities are to act on certification notwithstanding other law. However, confirm any requisite supporting documents the registration authority may reasonably require and ensure accurate content in certificates because they are evidentiary and can be conclusive.
Secure required authorisations: If activities require licences, permits or authorisations under specified "relevant laws" (s 21(7) lists several Acts), coordinate with the public sector agency and seek direction under s 21 if necessary. The Treasurer may direct grant, displacement or modification of relevant law provisions to enable a transfer (s 21(1)-(2)), but must consult with the agency first (s 21(3)).
Tax and accounting compliance
Confirm Treasury orders on State tax: For public sector agencies, State tax is not payable for relevant matters (s 24(2)). For private parties, obtain any Treasurer order that directs non-payment or partial non-payment of State tax (s 24(3)-(4)), and ensure the Chief Commissioner of State Revenue is provided with a copy as required (s 24(5)). Do not assume tax relief; obtain formal Treasury direction.
Follow Treasurer directions on public sector accounting policies if given: Use accounting policies directed by the Treasurer under Sch 4 cl 10 in place of normal public sector accounting rules if and when those directions are issued. Coordinate with agency finance teams and auditors for compliance.
Employee transfers and industrial relations
Identify employee categories: Before transfers, classify employees as permanent, temporary, casual, or contract employees as defined in s 16. Consent requirements differ: private sector transfers require employee consent except for contract employees (s 16(2)).
Draft transfer instruments reflecting continuity entitlements: Transfer instruments should record that continuity of service, superannuation membership and accrued leave survive (s 17(1)(a)-(d)). Ensure the new employer is recorded as an employer for superannuation scheme purposes (s 17(1)(b)). Where long service leave is involved, note that payment in lieu is permissible under s 17(2).
Observe employment guarantee periods and termination limits: For transferred permanent employees, the two-year guarantee cannot be varied except by agreement (s 16(6)(a)). New employers cannot terminate during the guarantee period except for specified grounds (s 16(5)). Include disciplinary processes and misconduct definitions in transfer agreements to align with s 16(5).
Structure transfer payments within statutory cap: Transfer payments cannot exceed 30 weeks’ base salary (s 18(2)). Draft any separation or exit payments accordingly and ensure budget approvals match that statutory cap.
Leases and financing
Draft lease terms cognisant of s 31: Ports assets leases may contain provisions that would otherwise conflict with law. However, ensure such clauses are clear, commercially consistent and documented. Lenders and financiers should request legal opinions on the effect of s 31 on security interests and insolvency outcomes, noting that schemes of arrangement or external administrations must give effect to lease provisions (s 31(3)).
Plan for fixture severance where necessary: The Treasurer may direct severance of fixtures such as rail infrastructure (s 20). If fixtures are to be treated as severable personal property for transaction purposes, document rights to use drainage, access and other ancillary rights (s 20(4)).
Planning and environmental compliance
Where Port Botany is involved, anticipate the planning carve-out: Section 32 removes legal effect from planning controls that operate to impose cargo throughput limits. However, that does not prevent such controls being imposed; it renders them ineffective to restrict throughput. Ensure environmental impact assessments and community engagement processes are managed with this statutory context in mind and check whether other environmental or maritime safety controls remain applicable.
Governance reporting and audit
Manage Auditor‑General communications: s 27 allows the Treasurer to authorise the Auditor‑General to make reports for purposes of an authorised transaction, notwithstanding secrecy provisions. Ensure audit and disclosure protocols are agreed and documented when Treasury authorises such releases.
Prepare for Treasurer directions to agencies: The Treasurer may direct agencies in relation to accounting policies (Sch 4 cl 10) and other matters. Create internal compliance processes to log and implement such directions immediately.
Legal risk management
Obtain contractual protections in transaction arrangements: Given s 29 and s 30 may limit pre-existing rights and compensation claims, ensure that any entitlements or protections desired by private counterparties are contained in the transaction arrangement itself rather than relying on general law remedies.
Consider judicial review risk where necessary: Although the Act contains conclusive certificates and other protections, some administrative acts remain reviewable. Where the legitimacy of executive acts may be contested, seek specialist advice about reviewability and the potential scope of challenges.
Regulatory checklist
Confirm whether planned transfer involves retained assets (cannot be transferred) (s 4(1)(c); s 3 definition).
Secure Treasurer orders required for designation of associated port land (s 3).
Obtain vesting order and certificate for registration authorities (Sch 4 cl 2-9).
Request and obtain any Treasurer-directed State tax relief orders to avoid unexpected duty liability (s 24).
Prepare employee transfer documents, obtain consents where required, and ensure transfer payments comply with s 18.
Draft leases consistent with s 31 and ensure external administration provisions preserve lease priorities.
In short, compliance requires early and continuous engagement with Treasury, detailed attention to statutory categories for assets and employees, careful drafting of transaction arrangements to capture rights/compensations that the statute denies outside those contracts, and readiness to operate under certificate-based vesting and registration procedures rather than traditional conveyancing and regulatory approvals.
(1) This Act authorises the transfer of ports assets to the private sector or to any public sector agency, subject to the following limitations—
(a) Port Botany land, Port Kembla land, Port of Newcastle land and associated port land can be leased to the private sector but the ownership of the freehold title to that land must remain with a public sector agency,
(b) any lease of Port Botany land, Port Kembla land, Port of Newcastle land or associated port land must not have a term that, together with the term of any further lease that may be granted under an option in respect of it, exceeds 99 years,
(c) this Act does not authorise the transfer of retained assets to the private sector.
(2) No compensation is payable in connection with the transfer under this Act of ports assets to a public sector agency (but this does not prevent such a transfer being for consideration).
s 4: Am 2013 No 52, Sch 1 [4].
5 Proceeds of transaction
5 Proceeds of transaction
5 Proceeds of transaction
(1) The proceeds of the transfer of ports assets to the private sector pursuant to an authorised transaction (the transaction proceeds) belong to and are payable directly to the State.
(2) The transaction proceeds include any payment to a public sector agency that is a periodic lease payment under a lease of ports assets to the private sector pursuant to an authorised transaction.
(3) The transaction proceeds paid to the State are to be paid into the Restart NSW Fund (the Fund) established under the Restart NSW Fund Act 2011.
(4) The following deductions are authorised to be made from the transaction proceeds—
(a) deduction of such amounts as the Treasurer approves to repay debt and satisfy other liabilities of a public sector agency in respect of ports assets transferred for the purposes of an authorised transaction,
(b) deduction of such amounts as the Treasurer approves to reimburse public sector agencies for payments made by them in respect of any tax, duty, fee or charge imposed by any Act or law of the State or any other jurisdiction in connection with a transaction arrangement,
(c) deduction of such amounts as the Treasurer approves to satisfy any liability of a public sector agency arising under or in connection with a transaction arrangement,
(d) deduction of such amounts as the Treasurer approves to meet expenses reasonably incurred by public sector agencies for the purposes of an authorised transaction.
(5) The transaction proceeds do not include any amount certified by the Treasurer to have been paid to a public sector agency as a tax, duty, fee or charge imposed by any Act or law of the State in connection with a transaction arrangement.
(6) The deductions authorised to be made from the transaction proceeds may be made before payment of the transaction proceeds into the Fund or may be made by payment from the Fund.
(7) The requirements of this section do not affect the validity of a transaction arrangement.
Part 3 Facilitating authorised transactions
Part 3 Facilitating authorised transactions
Part 3 Facilitating authorised transactions
6 Treasurer’s functions
6 Treasurer’s functions
6 Treasurer’s functions
The Treasurer has and may exercise all such functions as are necessary or convenient for the purposes of an authorised transaction. The functions conferred on the Treasurer by any other provision of this Act do not limit the Treasurer’s functions under this section.
7 Manner of effecting authorised transaction
7 Manner of effecting authorised transaction
7 Manner of effecting authorised transaction
(1) An authorised transaction is to be effected as directed by the Treasurer and can be effected in any manner considered appropriate by the Treasurer.
(2) There are no limitations as to the nature of the transactions or arrangements that can be entered into or used for the purposes of an authorised transaction.
Note—
For example, an ownership structure involving a unit trust could be used for the purposes of an authorised transaction.
(3) The provisions of this Act for the establishment of various kinds of transaction entity do not limit the nature of the legal entities or arrangements that can be used for the purposes of an authorised transaction.
8 Transaction SOCs
8 Transaction SOCs
8 Transaction SOCs
(1) A statutory State owned corporation may be established under this Act as a transaction SOC for the purposes of an authorised transaction.
(2) The Governor may by order published in the Gazette—
(a) create a corporation under a corporate name specified in the order, and
(b) specify the functions of the corporation, and
(c) direct that the corporation is established as a statutory State owned corporation and as a transaction SOC.
(3) On the day on which the order takes effect—
(a) a corporation is constituted with the corporate name and functions specified in the order, and
(b) the State Owned Corporations Act 1989 is amended by inserting in Schedule 5 the corporate name specified in the order (to establish the corporation as a statutory State owned corporation under that Act), and
(c) the State owned corporation thereby established is a transaction SOC for the purposes of this Act.
(4) The portfolio Minister of a SOC established under this section is the Minister administering the Ports and Maritime Administration Act 1995.
(5) Schedule 2 has effect with respect to a transaction SOC. The provisions of that Schedule are in addition to and (except to the extent to which that Schedule otherwise provides) do not derogate from the provisions of the State Owned Corporations Act 1989.
9 Transaction companies
9 Transaction companies
9 Transaction companies
(1) The Treasurer may for the purposes of an authorised transaction establish, or direct the establishment of, companies as transaction companies in any of the following ways—
(a) the formation or acquisition by or on behalf of the State or a SOC of a company limited by shares, so that all the issued shares in the company are held by or on behalf of the State or a SOC (or both),
(b) the formation or acquisition of a company as a wholly owned subsidiary company of a transaction company,
(c) the conversion of a port SOC or transaction SOC into a company limited by shares as provided by Schedule 3.
(2) A transaction company that is a public sector agency may be converted from one kind of company to any other kind of company.
(3) Except by express agreement with the Treasurer—
(a) a transaction company is not and does not represent the State, and
(b) the debts, liabilities and obligations of a transaction company are not guaranteed by the State.
(4) The Treasurer may act for or on behalf of the State, a SOC or a transaction company that is a public sector agency in connection with the rights, privileges and benefits, and the duties, liabilities and obligations, of the State, a SOC or a transaction company as the holder of shares or other securities in or issued by a transaction company.
(5) Shares and other securities in or issued by a transaction company that is a public sector agency may be issued, sold or transferred in accordance with the directions of the Treasurer. The Treasurer may on behalf of the State, a SOC or a transaction company that is a public sector agency, enter into and carry out transaction arrangements for the issue, sale or transfer of shares and other securities in or issued by a transaction company.
(6) If a port SOC becomes a transaction company by being converted into a company under this section, a reference in this Act to the port SOC includes a reference to that transaction company.
10 Additional functions of port SOCs and transaction entities
10 Additional functions of port SOCs and transaction entities
10 Additional functions of port SOCs and transaction entities
(1) Each port SOC and transaction entity has and may exercise all such functions as are necessary or convenient for the purposes of an authorised transaction.
(2) The functions conferred by this section are in addition to any other functions that a port SOC or a transaction entity has apart from this section and those other functions do not prevent or otherwise limit the exercise of the additional functions conferred by this section.
(3) The Treasurer may act for or on behalf of a port SOC or a transaction entity in the exercise of any of its functions for the purposes of an authorised transaction while it is a public sector agency.
11 Direction and control of port SOCs and transaction entities
11 Direction and control of port SOCs and transaction entities
11 Direction and control of port SOCs and transaction entities
(1) Each port SOC and transaction entity is subject to the direction and control of the Treasurer in the exercise of any of its functions for the purposes of an authorised transaction while it is a public sector agency.
(2) The Treasurer may give directions for the purposes of an authorised transaction to a port SOC or transaction entity, and to the directors and other officers of a port SOC or transaction entity. Any such directions must be complied with by the port SOC, the transaction entity or the directors or other officers concerned.
(3) Directions to a transaction entity (or its directors and other officers) can only be given and are only required to be complied with while the transaction entity is a public sector agency.
(4) The power to give directions under this section extends to directions with respect to the way in which a port SOC or transaction entity is to conduct its business and other affairs.
(5) Action taken by a port SOC or transaction SOC to comply with a direction of the Treasurer under this Act does not require the approval of the voting shareholders or portfolio Minister of the corporation.
(6) Anything done or omitted to be done by a director or other officer of a port SOC or transaction entity in complying with a direction given by the Treasurer under this Act does not subject the director or officer personally to any action, liability, claim or demand.
(7) The provisions of this section are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act in relation to the provisions of the Corporations legislation generally.
12 Exercise of port SOC functions through subsidiaries
12 Exercise of port SOC functions through subsidiaries
12 Exercise of port SOC functions through subsidiaries
(1) If ports assets are transferred to a subsidiary of a port SOC for the purposes of an authorised transaction, the functions of the port SOC in respect of those ports assets become either retained functions or shared functions, as follows—
(a) retained functions are all functions of the port SOC except those that are shared functions,
(b) shared functions are the functions of the port SOC under Part 5 (Port charges) of the Ports and Maritime Administration Act 1995 but only in respect of charges of a kind that can be fixed under that Part by the port operator of a private port.
(2) In the case of retained functions—
(a) the port SOC continues to have and may exercise retained functions as if the ports assets had remained vested in the port SOC, and
(b) the subsidiary is authorised to exercise retained functions on behalf of the port SOC (with the exception of any function or class of functions that is reserved to the port SOC by a direction of the port SOC to the subsidiary), and
(c) the subsidiary is subject to the direction and control of the port SOC in the exercise of retained functions on behalf of the port SOC, and
(d) any retained functions exercised by the subsidiary under this section are deemed to have been exercised by the port SOC.
(3) In the case of shared functions—
(a) both the port SOC and the subsidiary have and may exercise shared functions, and
(b) the subsidiary has and may exercise shared functions as if the subsidiary were the port SOC, and
(c) Part 6 (Price monitoring scheme) of the Ports and Maritime Administration Act 1995 applies to the subsidiary in respect of port charges charged by the subsidiary in the exercise of shared functions as if it were the port operator, and
(d) the subsidiary exercises shared functions on its own account, and
(e) any charges collected by the subsidiary in the exercise of shared functions are for its own use and benefit.
(4) The regulations may prescribe additional functions of a port SOC as shared functions for the purposes of this section.
(5) This section operates only while the subsidiary in which ports assets are vested is a public sector agency.
13 Establishment of Ports Assets Ministerial Holding Corporation
13 Establishment of Ports Assets Ministerial Holding Corporation
13 Establishment of Ports Assets Ministerial Holding Corporation
(1) There is constituted by this Act a corporation with the corporate name of the Ports A
This is an opening excerpt, not the complete document.