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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Superannuation Administration Corporation
(Pillar) (Authorised Transaction) Bill 2016
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Interpretation--key definitions 2
Part 2 The authorised transaction
4 Authorisation for transfer of Pillar assets 3
5 Payment and application of proceeds of transaction 3
6 Regional commitment 3
Part 3 Facilitating the authorised transaction
7 Treasurer's functions 5
8 Manner of effecting authorised transaction 5
9 Transaction SOCs 5
10 Transaction companies 5
11 Functions of Pillar and transaction entities 6
12 Direction and control of Pillar and transaction entities 6
13 Establishment of Superannuation Administration Assets Ministerial
Holding Corporation 7
14 Special Deposit Account funds for Ministerial Holding Corporation 7
Superannuation Administration Corporation (Pillar) (Authorised Transaction) Bill 2016 [NSW]
Contents
Page
Part 4 Arrangements for transfer of staff
15 Interpretation 9
16 Transfers of staff within public sector 9
17 Transfers of staff to private sector employment 9
18 Continuity of entitlements of transferred employees 10
19 Operation of other laws and entitlements 11
20 Operation of Commonwealth law 11
Part 5 Arrangements for transfer of assets and functions
21 Vesting orders 12
22 Grant of relevant authorisations 12
23 Adjustment of Pillar objectives and functions 13
Part 6 Operation of other laws
24 State taxes 14
25 General relationship of Act with other State legislation 14
26 Public Authorities (Financial Arrangements) Act 15
27 Release of information by Auditor-General 15
28 Conveyancing Act 15
29 Protection against breach of contractual and other obligations 15
30 Compensation not payable 16
Part 7 Miscellaneous
31 Delegation 17
32 Act to bind State and other jurisdictions 17
33 Extraterritorial operation of Act 17
34 Construction of Act and instruments so as not to exceed legislative
power 17
35 Orders 18
36 Service or giving of documents 18
37 Regulations 19
Schedule 1 Interpretative provisions 20
Schedule 2 Provisions concerning transaction SOCs 23
Schedule 3 Corporate conversion of Pillar and transaction SOCs 25
Schedule 4 Vesting of assets, rights and liabilities 27
Schedule 5 Ownership restrictions in floated transaction companies 30
Schedule 6 Savings, transitional and other provisions 40
Schedule 7 Amendment of Subordinate Legislation Act 1989 No 146 41
Page 2
I certify that this public bill, which originated in the Legislative Assembly, has finally passed
the Legislative Council and the Legislative Assembly of New South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2016
New South Wales
Superannuation Administration Corporation
(Pillar) (Authorised Transaction) Bill 2016
Act No , 2016
An Act to provide for the transfer of the business of the Superannuation Administration
Corporation; and for other purposes.
I have examined this bill and find it to correspond in all respects with the bill as finally
passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Superannuation Administration Corporation (Pillar) (Authorised Transaction) Bill 2016 [NSW]
Part 1 Preliminary
The Legislature of New South Wales enacts:
Part 1 Preliminary
1 Name of Act
This Act is the Superannuation Administration Corporation (Pillar) (Authorised
Transaction) Act 2016.
2 Commencement
(1) This Act commences on the date of assent to this Act, except as provided by
subsection (2).
(2) Schedule 5 (Ownership restrictions in floated transaction companies) commences on
a day to be appointed by proclamation.
3 Interpretation--key definitions
Note. Schedule 1 contains other interpretative provisions.
In this Act:
authorised transaction means a transfer of Pillar assets authorised by Part 2.
Pillar means the Superannuation Administration Corporation constituted by the
Superannuation Administration Authority Corporatisation Act 1999.
Note. The Superannuation Administration Corporation operates under the trading name of
Pillar Administration.
Pillar assets means the assets, rights and liabilities of Pillar.
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Superannuation Administration Corporation (Pillar) (Authorised Transaction) Bill 2016 [NSW]
Part 2 The authorised transaction
Part 2 The authorised transaction
4 Authorisation for transfer of Pillar assets
This Act authorises the transfer of Pillar assets to the private sector or to any public
sector agency.
5 Payment and application of proceeds of transaction
(1) The proceeds of the transfer of Pillar assets to the private sector pursuant to the
authorised transaction (the transaction proceeds) belong to and are payable directly
to the State.
(2) The transaction proceeds paid to the State are to be paid into the Restart NSW Fund
(the Restart Fund) established under the Restart NSW Fund Act 2011.
(3) The following deductions are authorised to be made from the transaction proceeds:
(a) deduction of such amounts as the Treasurer approves to repay debt and satisfy
other liabilities of a public sector agency in respect of Pillar assets transferred
for the purposes of the 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 the
authorised transaction.
(4) The transaction proceeds do not include any amount certified by the Treasurer as paid
or payable to a public sector agency as a tax, duty, fee or charge imposed by any Act
or law of the State in connection with a transaction arrangement.
(5) The deductions authorised to be made from the transaction proceeds may be made
before payment of the transaction proceeds into the Restart Fund, or may be made by
payment from the Restart Fund.
(6) The requirements of this section do not affect the validity of a transaction
arrangement.
6 Regional commitment
(1) The Treasurer must ensure that the private sector entity that becomes the owner of
Pillar assets pursuant to the authorised transaction provides a guarantee to the effect
that Pillar's existing Illawarra operations immediately before completion of the
authorised transaction will continue to be conducted in the Illawarra for at least
10 years after completion of the authorised transaction.
(2) In this section:
existing clients means the superannuation schemes in respect of which Pillar
provides services immediately before completion of the authorised transaction.
existing Illawarra operations means the business activities undertaken by Pillar in
the Illawarra in the exercise of functions that are associated with the delivery of
member services and that are designated within Pillar's business as "Operations", but
limited to business activities that relate to Pillar's existing clients.
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Superannuation Administration Corporation (Pillar) (Authorised Transaction) Bill 2016 [NSW]
Part 2 The authorised transaction
the Illawarra means the area designated by the Australian Bureau of Statistics as the
Illawarra Statistical Division.
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Part 3 Facilitating the authorised transaction
Part 3 Facilitating the authorised transaction
7 Treasurer's functions
The Treasurer has and may exercise all such functions as are necessary or convenient
for the purposes of the authorised transaction. The functions conferred on the
Treasurer by any other provision of this Act do not limit the Treasurer's functions
under this section.
8 Manner of effecting authorised transaction
(1) The 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 the authorised transaction.
(3) The provisions of this Act for the establishment of various kinds of transaction entity
do not limit the nature of the entities or arrangements that can be used for the
purposes of the authorised transaction.
9 Transaction SOCs
(1) A statutory State owned corporation may be established under this Act as a
transaction SOC for the purposes of the 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 Superannuation Administration Authority Corporatisation Act
1999.
(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.
10 Transaction companies
(1) The Treasurer may for the purposes of the 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),
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(b) the formation or acquisition of a company as a wholly owned subsidiary
company of a transaction company,
(c) the conversion of Pillar or a 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 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 or transfer of shares and other securities in or issued by a transaction
company.
(6) If Pillar becomes a transaction company by being converted into a company under
this section, a reference in this Act to Pillar includes a reference to that transaction
company.
(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.
11 Functions of Pillar and transaction entities
(1) Pillar and each transaction entity has and may exercise all such functions as are
necessary or convenient for the purposes of the authorised transaction.
(2) The functions conferred by this section are in addition to any other functions that
Pillar 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 Pillar or a transaction entity in the exercise
of any of its functions for the purposes of the authorised transaction while it is a
public sector agency.
12 Direction and control of Pillar and transaction entities
(1) Pillar and each transaction entity is subject to the direction and control of the
Treasurer in the exercise of any of its functions for the purposes of the authorised
transaction while it is a public sector agency.
(2) The Treasurer may give directions for the purposes of the authorised transaction to
Pillar or a transaction entity, and to the directors and other officers of Pillar or a
transaction entity. Any such directions must be complied with by Pillar, the
transaction entity or the directors or other officers concerned.
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Part 3 Facilitating the authorised transaction
(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 Pillar or a transaction entity is to conduct its business and other
affairs.
(5) Action taken by Pillar or a 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 Pillar or a
transaction entity in compliance or purported compliance 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.
13 Establishment of Superannuation Administration Assets Ministerial Holding
Corporation
(1) There is constituted by this Act a corporation with the corporate name of the
Superannuation Administration 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, Pillar assets acquired by it or transferred to it,
and
(b) to carry on any activities or business that relate to any Pillar assets held by it,
including demanding, collecting and receiving charges, levies, rates and fees,
and
(c) such other functions for the purposes of the authorised transaction as may be
prescribed by the regulations.
(7) Assets, rights and liabilities held by the Corporation may be transferred by the
Corporation to any other public sector agency whether or not the transfer is for the
purposes of the authorised transaction.
(8) The regulations may dissolve the Corporation.
14 Special Deposit Account funds for Ministerial Holding Corporation
(1) A fund is to be established in the Special Deposits Account for the Superannuation
Administration Assets Ministerial Holding Corporation.
(2) The fund is to be administered by the Treasurer.
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Part 3 Facilitating the authorised transaction
(3) There is payable into the fund all money received by the Corporation in the exercise
of its functions under this or any other Act.
(4) There is payable from the fund such amounts as the Treasurer directs from time to
time for:
(a) payment of expenditure by the Corporation in the exercise of its functions, or
(b) payment of administrative expenses incurred in relation to the fund, or
(c) payment to the Consolidated Fund.
(5) The Treasurer may invest money in the fund in such manner as may be authorised by
the Public Authorities (Financial Arrangements) Act 1987.
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Superannuation Administration Corporation (Pillar) (Authorised Transaction) Bill 2016 [NSW]
Part 4 Arrangements for transfer of staff
Part 4 Arrangements for transfer of staff
15 Interpretation
In this Part, Pillar employee means an employee of Pillar or a wholly-owned
subsidiary of Pillar, and includes a person who was an employee of Pillar or a
wholly-owned subsidiary of Pillar immediately before the person's employment was
transferred under this Part to the employment of another public sector agency.
16 Transfers of staff within public sector
(1) The Treasurer may, for the purposes of the authorised transaction, by order in writing
transfer the employment of a Pillar employee to the employment of another public
sector agency.
(2) A transfer of employment under this section does not require the consent of the
person transferred.
(3) An employee whose employment is transferred under this section 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 Pillar.
(4) The Treasurer may negotiate and enter into agreements or industrial instruments
concerning workplace relations for or on behalf of a public sector agency in
connection with the operation of this section.
17 Transfers of staff to private sector employment
(1) The Treasurer may, for the purposes of the authorised transaction, by order in writing
transfer the employment of a Pillar employee (a transferred employee) to the
employment of a private sector entity (the new employer).
(2) A transfer of employment under this section does not require the consent of the Pillar
employee transferred.
(3) The employment of a transferred employee with the new employer is to be on the
same terms and conditions as applied under a relevant award to the employee as a
Pillar employee immediately before the transfer of employment.
(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 or in accordance with the Fair Work Act 2009 of the
Commonwealth.
(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)
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Part 4 Arrangements for transfer of staff
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.
18 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 extended 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) The Treasurer may in connection with the operation of this Part give a certificate in
writing as to the extent of the accrued rights to annual leave, extended or long service
leave or sick leave that are retained by the employee under this Part, and such a
certificate is evidence of the matters certified.
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Part 4 Arrangements for transfer of staff
(3) Nothing in the Long Service Leave Act 1955 prevents payment in connection with the
transfer under this Act of the employment of an employee to the employment of a
private sector entity of the monetary value of long service leave in lieu of an
entitlement to that leave accrued as a Pillar employee before the transfer of the
employee's employment.
(4) An employee is not entitled in respect of the same period of service to claim a benefit
under this Act and another law or instrument.
19 Operation of other laws and entitlements
The following provisions apply in relation to the transfer of a person's employment
under this Part:
(a) the transfer has effect despite any other law, contract or instrument under a
law,
(b) the transfer does not constitute a retrenchment, redundancy or termination of
employment at the initiative of the Crown or any other public sector agency,
(c) the person transferred is not entitled to any payment or other benefit by reason
only of having ceased to be an employee of a public sector agency as a result
of the transfer,
(d) a public sector agency is not required to make any payment to the transferred
person in relation to the transferred person's accrued rights in respect of
annual leave, sick leave or extended or long service leave.
20 Operation of Commonwealth law
A provision of this Act (including a provision to the extent that it imposes or
continues a term or condition of employment) has no effect to the extent of any
inconsistency with any provision of the Fair Work Act 2009 of the Commonwealth
or of any instrument under that Act.
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Part 5 Arrangements for transfer of assets and functions
Part 5 Arrangements for transfer of assets and functions
21 Vesting orders
The Treasurer may make vesting orders under Schedule 4 for the purposes of the
authorised transaction.
22 Grant of relevant authorisations
(1) The Treasurer may by order in writing given to the relevant administering agency
direct the grant of a specified relevant authorisation to a person who becomes or who
it is proposed will become the new owner of any Pillar assets pursuant to the
authorised transaction.
(2) Such a direction (a grant direction) operates to grant the specified relevant
authorisation on such terms and conditions and subject to such endorsements as may
be specified in the direction, and so operates:
(a) without the need for any action by the relevant administering agency, and
(b) without the need for the making or determination of any application for the
relevant authorisation, and
(c) despite any requirement of or restriction imposed by a relevant law in relation
to the grant of a relevant authorisation.
(3) A grant direction may only direct the grant of a relevant authorisation that:
(a) operates to transfer or replace a 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 relevant authorisation is
subject.
(4) A grant direction may direct the grant of more than one relevant authorisation to
transfer or replace an existing relevant authorisation.
(5) The Treasurer is to consult with the relevant administering agency before giving a
grant direction for a relevant authorisation.
(6) The Treasurer may direct the relevant administering agency to give effect to a grant
direction by formally granting, and issuing the appropriate documentation for, the
relevant authorisation concerned. The relevant administering agency must comply
with the Treasurer's direction within the period specified in the direction.
(7) Anything done by Pillar or another public sector agency in compliance with a
condition or endorsement of a relevant authorisation in relation to Pillar assets of
which a person is the new owner is taken to have been done by the new owner for the
purposes of any corresponding condition or endorsement of a relevant authorisation
granted to the new owner pursuant to this section.
(8) A relevant authorisation granted to Pillar or to the new owner of Pillar assets may not
be suspended or cancelled on the ground of the conversion of Pillar or new owner 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.
(9) In this section:
grant includes issue and transfer.
new owner of Pillar assets means:
(a) a public sector agency to which any Pillar assets are transferred for the
purposes of the authorised transaction, or
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Part 5 Arrangements for transfer of assets and functions
(b) a person (or the nominee of a person) who becomes the owner of Pillar assets
pursuant to the authorised transaction.
relevant administering agency, in relation to a relevant authorisation, means the
public sector agency or public official having the function of granting the relevant
authorisation.
relevant authorisation means a licence, permit, consent, entitlement, accreditation,
exemption or other authorisation held by Pillar or a subsidiary of Pillar, or held by
another public sector agency as a result of being granted pursuant to this section.
23 Adjustment of Pillar objectives and functions
(1) The Treasurer may by direction in writing to Pillar adjust the objectives and
functions of Pillar in such manner as the Treasurer considers appropriate to ensure
that the objectives and functions of Pillar remain appropriate, having regard to:
(a) the capacity of Pillar to give effect to or exercise its existing objectives and
functions following the transfer of any of its assets, rights and liabilities for the
purposes of the authorised transaction, and
(b) the objectives and functions that would be appropriate for any remaining
assets, rights and liabilities of Pillar.
(2) The objectives and functions of Pillar may be adjusted under this section by being
limited or dispensed with but not by being broadened.
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Part 6 Operation of other laws
Part 6 Operation of other laws
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 or interest in or
issued by an entity for the purposes of the authorised transaction,
(d) any matter connected with the corporate conversion of Pillar or a transaction
SOC for the purposes of the authorised transaction,
(e) any transaction, agreement or other arrangement (a post-completion
arrangement) occurring within 2 years after completion of the authorised
transaction and certified by the Treasurer to have been entered into in
connection with the transfer of Pillar assets to the private sector pursuant to the
authorised transaction,
(f) such other matters for the purposes of the authorised transaction as may be
prescribed by the regulations.
State tax means application, transfer 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) The Treasurer may by order in writing direct that subsection (2) does not apply to a
public sector agency either generally or in respect of a particular relevant matter or
class of relevant matters.
(4) 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.
(5) The Treasurer may by order in writing limit the application of this section in respect
of a particular post-completion arrangement by imposing conditions on the
application of this section to the arrangement.
(6) An order may be made by the Treasurer under this section before or after the liability
to pay the State tax concerned accrues.
(7) 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
(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 the authorised transaction:
(a) any provision of the State Owned Corporations Act 1989,
(b) any provision of the Superannuation Administration Authority
Corporatisation Act 1999,
(c) any provision of the constitution of a statutory SOC or a subsidiary of a
statutory SOC.
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(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 Pillar assets for the purposes of the authorised
transaction is satisfied by the enactment of this Act.
26 Public Authorities (Financial Arrangements) Act
The Public Authorities (Financial Arrangements) Act 1987 does not apply to any
transaction arrangement.
27 Release of information by Auditor-General
Section 38 (Secrecy) of the Public Finance and 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 the authorised transaction or
for the purposes of the audit (before or after the completion of the authorised
transaction) of records relating to Pillar assets transferred pursuant to the authorised
transaction.
28 Conveyancing Act
Section 52A of the Conveyancing Act 1919 does not apply to a contract entered into
for the purposes of the authorised transaction.
29 Protection against breach of contractual and other obligations
(1) The following matters and things are protected by this section:
(a) the operation of this Act (including any regulation or order under this Act),
(b) the transfer of Pillar assets for the purposes of the authorised transaction,
(c) the entering into or performance of obligations under a transaction, agreement
or other arrangement for the purposes of the authorised transaction,
(d) a disclosure of information by, on behalf of or with the consent of a public
sector agency for the purposes of the authorised transaction,
(e) anything else done or omitted to be done under or for the purposes of this Act
or the authorised transaction.
(2) None of the matters or things protected by this section 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.
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Superannuation Administration Corporation (Pillar) (Authorised Transaction) Bill 2016 [NSW]
Part 6 Operation of other laws
(3) This section does not affect rights and obligations that arise under a transaction,
agreement or other arrangement entered into for the purposes of the authorised
transaction.
(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
(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.
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Superannuation Administration Corporation (Pillar) (Authorised Transaction) Bill 2016 [NSW]
Part 7 Miscellaneous
Part 7 Miscellaneous
31 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.
32 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.
33 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.
34 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
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Superannuation Administration Corporation (Pillar) (Authorised Transaction) Bill 2016 [NSW]
Part 7 Miscellaneous
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.
35 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).
36 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
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Superannuation Administration Corporation (Pillar) (Authorised Transaction) Bill 2016 [NSW]
Part 7 Miscellaneous
(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.
37 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.
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Superannuation Administration Corporation (Pillar) (Authorised Transaction) Bill 2016 [NSW]
Schedule 1 Interpretative provisions
Schedule 1 Interpretative provisions
1 Definitions
In this Act:
assets means any legal or equitable estate or interest (whether present or future,
whether vested or contingent and whether personal or assignable) in real or personal
property of any description (including money), and includes securities, choses in
action and documents.
authorised transaction--see section 3.
completion of the authorised transaction occurs on the date designated by the
Treasurer by order in writing as the date of completion of the authorised transaction.
corporate conversion, in relation to Pillar or a transaction SOC, means the
registration of the corporation as a company under the Corporations Act.
Corporations Act means the Corporations Act 2001 of the Commonwealth.
Corporations legislation means the Corporations legislation to which Part 1.1A of
the Corporations Act applies.
entity means a body corporate, a partnership, an unincorporated body, an individual
or a trust (including the trustee of a trust).
function includes a power, authority or duty, and exercise a function includes
perform a duty.
general law means the common law and equity (as modified from time to time by
legislation).
legislation includes:
(a) any statute of a legislature (whether enacted or made in Australia or
elsewhere), and
(b) any proclamation, regulation, rule, by-law, order or any other kind of
subordinate legislation (however described) made under the authority of a
statute (whether enacted or made in Australia or elsewhere).
liabilities means any liabilities, debts or obligations (whether present or future,
whether vested or contingent and whether personal or assignable).
Pillar--see section 3.
Pillar assets--see section 3 (and clause 4 of this Schedule).
private sector means any person other than a public sector agency and includes a
private sector entity.
Note. A person who is a public sector agency of another jurisdiction is a private sector person
for the purposes of this Act.
private sector entity means an entity in which the private sector has an interest.
public sector agency means any of the following:
(a) the State (including the Crown in right of the State),
(b) a Minister,
(c) the Ministerial Holding Corporation constituted by the State Owned
Corporations Act 1989,
(d) the Superannuation Administration Assets Ministerial Holding Corporation,
(e) a SOC,
(f) a public authority of the State (including a council under the Local
Government Act 1993),
(g) any other person acting on behalf of the State (or the Crown in right of the
State),
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Superannuation Administration Corporation (Pillar) (Authorised Transaction) Bill 2016 [NSW]
Schedule 1 Interpretative provisions
(h) a transaction company, but only while all the shares in the transaction
company are held by or on behalf of the State or a SOC or the transaction
company is the subsidiary of another transaction company all the shares in
which are held by or on behalf of the State or a SOC,
(i) a wholly-owned subsidiary of a public sector agency.
rights means any rights, powers, privileges or immunities (whether present or future,
whether vested or contingent and whether personal or assignable).
SOC means a State owned corporation within the meaning of the State Owned
Corporations Act 1989.
State legislation means any legislation of the State.
Superannuation Administration Assets Ministerial Holding Corporation or the
Corporation means the Superannuation Administration Assets Ministerial Holding
Corporation constituted by this Act.
the State means the State of New South Wales.
transaction arrangement means a transaction, agreement or other arrangement
entered into by or on behalf of a public sector agency for the purposes of the
authorised transaction.
transaction company means a company established as a transaction company
pursuant to this Act.
transaction entity means a transaction SOC, transaction company or any other entity
established for the purposes of the authorised transaction.
transaction SOC means a SOC established as a transaction SOC pursuant to this Act.
transfer, in relation to assets, rights and liabilities, includes any action that results in
the vesting of assets, rights and liabilities in another person or the creation or transfer
of any interest in or right in respect of assets.
2 Words and expressions defined in Corporations Act
In this Act, the following expressions have the meaning that they have in the
Corporations Act (except where a definition of the expression in this Act otherwise
requires):
company
company limited by shares
corporation
subsidiary
wholly-owned subsidiary
3 Functions for the purposes of authorised transaction
For the purposes of this Act, any act, matter or thing is done or has effect for the
purposes of the authorised transaction if:
(a) it is done or has effect for the purpose of effecting or facilitating the authorised
transaction, or
(b) it is done or has effect for any purpose connected with, ancillary or incidental
to or consequential on the authorised transaction, or
(c) it is done or has effect for any purpose connected with the vesting of Pillar
assets in, or the transfer of staff of Pillar to, a public sector agency at any time
after completion of the authorised transaction, or
(d) it is done or has effect after the completion of the authorised transaction for
any purpose that is necessary or convenient in connection with the ongoing
operation of or the winding up of the affairs of Pillar or any transaction entity.
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Superannuation Administration Corporation (Pillar) (Authorised Transaction) Bill 2016 [NSW]
Schedule 1 Interpretative provisions
4 Transfer and acquisition of assets, rights and liabilities
(1) The assets, rights and liabilities of a body corporate include the assets, rights and
liabilities of a wholly-owned subsidiary of the body corporate.
Note. Pillar assets include the assets, rights and liabilities of a wholly-owned subsidiary of
Pillar.
(2) Without limiting the ways in which assets, rights and liabilities can be transferred for
the purposes of the authorised transaction (and without preventing the direct transfer
of assets, rights and liabilities to a transferee):
(a) assets, rights and liabilities of a body corporate can be transferred to another
person (the transferee) by a transfer of shares or any other transaction that
results in the body corporate becoming a wholly-owned subsidiary of the
transferee, and
(b) assets, rights and liabilities of a body corporate are acquired by (and become
assets, rights and liabilities of) a transferee when the body corporate becomes
a wholly-owned subsidiary of the transferee.
5 Employees of Pillar
If a transaction company is established by the conversion of Pillar into a company, a
reference in a provision of this Act to an employee of Pillar includes a reference to
an employee of the transaction company and a reference in the provision to Pillar is
to be read as a reference to the transaction company.
6 Transfers to public sector agencies
No compensation is payable in connection with the transfer for the purposes of the
authorised transaction of assets, rights or liabilities to a public sector agency (but this
does not prevent such a transfer being for consideration).
7 When events occur
If this Act provides for an event or other thing to occur on a particular day, that event
or thing is taken to occur at the beginning of that day.
8 Notes
Notes included in this Act do not form part of this Act.
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Superannuation Administration Corporation (Pillar) (Authorised Transaction) Bill 2016 [NSW]
Schedule 2 Provisions concerning transaction SOCs
Schedule 2 Provisions concerning transaction SOCs
(Section 9)
1 Board of directors
(1) Each transaction SOC is to have a board of directors.
(2) The board is to consist of:
(a) the chief executive officer, and
(b) at least 3 and not more than 5 other directors appointed by the voting
shareholders.
(3) Of the directors appointed under subclause (2) (b), one is (in and by the director's
instrument of appointment as director or in and by another instrument executed by
the voting shareholders) to be appointed as Chairperson of the Board.
(4) The board is accountable to the voting shareholders in the manner set out in Part 4 of
the State Owned Corporations Act 1989 and in the constitution of the transaction
SOC.
(5) The voting shareholders may remove a director, or the chairperson, from office at any
time for any or no reason and without notice and, in that event, the office of the
director or chairperson is taken to have become vacant for the purposes of Schedule 8
to the State Owned Corporations Act 1989.
(6) Except as provided by this clause, Schedule 8 to the State Owned Corporations Act
1989 has effect with respect to the constitution and procedure of the board.
(7) The provisions of section 20J of the State Owned Corporations Act 1989, and of
clauses 2 (1) and (2) and 7 (1) (d) and (2) of Schedule 8 to that Act, do not apply to
a transaction SOC or to the chairperson.
(8) The provisions of clause 6 of Schedule 8 to the State Owned Corporations Act 1989
do not apply to the chief executive officer, and the chief executive officer is not
entitled to remuneration under that clause, in his or her capacity as a director.
2 Chief executive officer
(1) The chief executive officer of a transaction SOC is to be appointed by the board after
consultation with the voting shareholders.
(2) The board may remove a person from office as chief executive officer, at any time,
for any or no reason and without notice, but only after consultation with the voting
shareholders.
(3) The chief executive officer is entitled to be paid such remuneration (including
travelling and subsistence allowances) as the board may determine.
(4) The board may, after consultation with the voting shareholders, fix the conditions of
employment of the chief executive officer in so far as they are not fixed by or under
any other Act or law.
(5) The Government Sector Employment Act 2013 (Part 6 included) does not apply to the
chief executive officer.
(6) Subject to subclause (7), Schedule 9 to the State Owned Corporations Act 1989 has
effect with respect to the chief executive officer.
(7) The provisions of section 20K of the State Owned Corporations Act 1989, and of
clauses 2, 3 and 6 of Schedule 9 to that Act, do not apply to the chief executive
officer.
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Superannuation Administration Corporation (Pillar) (Authorised Transaction) Bill 2016 [NSW]
Schedule 2 Provisions concerning transaction SOCs
3 Acting chief executive officer
(1) The board may, from time to time, appoint a person to act in the office of chief
executive officer during the illness or absence of the chief executive officer.
(2) The board may remove a person from office as acting chief executive officer, at any
time, for any or no reason and without notice.
(3) A person, while acting in the office of chief executive officer:
(a) has all the functions of the chief executive officer and is taken to be the chief
executive officer, and
(b) is entitled to be paid such remuneration (including travelling and subsistence
allowances) as the board may determine.
(4) For the purposes of this clause, a vacancy in the office of chief executive officer is
regarded as an absence from office.
(5) Clause 5 of Schedule 9 to the State Owned Corporations Act 1989 does not apply to
an acting chief executive officer of a transaction SOC.
4 Dividends
(1) The voting shareholders of a transaction SOC, in consultation with the board, are to
determine the corporation's share dividends scheme.
(2) The dividends to be paid by a transaction SOC are to be declared by the board in
accordance with the share dividends scheme so determined.
(3) The provisions of section 20S (1) of the State Owned Corporations Act 1989 do not
apply to a transaction SOC.
5 Supply of information to portfolio Minister
The provisions of section 29 (2) of the State Owned Corporations Act 1989 do not
apply to a transaction SOC.
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Superannuation Administration Corporation (Pillar) (Authorised Transaction) Bill 2016 [NSW]
Schedule 3 Corporate conversion of Pillar and transaction SOCs
Schedule 3 Corporate conversion of Pillar and transaction
SOCs
(Section 10)
1 Direction for corporate conversion of Pillar and transaction SOCs
The Treasurer may direct by order in writing (a corporate conversion direction) that
Pillar or a transaction SOC be converted into a company limited by shares of a
specified type.
2 Application for conversion to company
(1) A SOC to which a corporate conversion direction has been given is authorised to
apply to be registered under Part 5B.1 of the Corporations Act as a company limited
by shares of the type specified in the direction.
(2) That application can only be made if the Treasurer has issued a certificate to the
corporation that certifies that the Treasurer is satisfied that the provisions of this Act
have been complied with concerning the transfer of its incorporation to the
Corporations Act.
(3) A certificate issued by the Treasurer for the purposes of this clause:
(a) cannot be challenged, reviewed or called into question in proceedings before
any court or tribunal, and
(b) is conclusive evidence in any proceedings before a court or tribunal that all the
requirements of this Act have been complied with concerning the transfer of
the incorporation of the corporation to the Corporations Act.
3 Effect of conversion
(1) The following provisions are taken to have had effect immediately before a SOC to
which a corporate conversion direction has been given is registered as a company
under the Corporations Act:
(a) the corporation ceases to be a statutory State owned corporation for the
purposes of the State Owned Corporations Act 1989 or any other State
legislation,
(b) the voting shareholders (within the meaning of the State Owned Corporations
Act 1989) of the corporation cease to be members of the corporation,
(c) the board of directors of the corporation is dissolved and each member
(including any acting member) of the board ceases to hold office as such,
(d) any person who holds a statutory office of the corporation ceases to hold that
office,
(e) any person who ceases to be a member of the corporation or to hold an office
because of the operation of this subclause is not entitled to any compensation
for the loss of that membership or office.
(2) Nothing in this clause prevents any person from becoming an officer of the company
into which the corporation is being converted in accordance with its constitution and
the provisions of the Corporations Act.
(3) A SOC to which a corporate conversion direction has been given becomes a
transaction company for the purposes of this Act only when it is registered as a
company under the Corporations Act.
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Superannuation Administration Corporation (Pillar) (Authorised Transaction) Bill 2016 [NSW]
Schedule 3 Corporate conversion of Pillar and transaction SOCs
(4) When a SOC is registered as a company under the Corporations Act pursuant to a
corporate conversion direction, section 43A (General audit of former statutory
bodies) of the Public Finance and Audit Act 1983 applies as if the SOC had been
abolished.
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Superannuation Administration Corporation (Pillar) (Authorised Transaction) Bill 2016 [NSW]
Schedule 4 Vesting of assets, rights and liabilities
Schedule 4 Vesting of assets, rights and liabilities
(Section 21)
1 Definitions
In this Schedule:
transferee means the person or body in whom any assets, rights or liabilities are
vested by a vesting order.
transferor means the person or body from whom any assets, rights or liabilities are
divested by a vesting order.
vesting order means an order made by the Treasurer in writing for the purposes of
this Schedule.
2 Making of vesting order
(1) A vesting order may vest assets, rights and liabilities comprising Pillar assets in a
person specified in the order as the transferee.
(2) A vesting order may vary the terms and conditions of any instrument or contract that
relates to assets, rights or liabilities to the extent that is necessary or convenient for
the purposes of the authorised transaction.
3 Effect of vesting order
(1) When any assets, rights or liabilities are vested by a vesting order, the following
provisions have effect except as otherwise provided by the vesting order:
(a) the assets vest in the transferee by virtue of this clause and without the need
for any conveyance, transfer, assignment or assurance,
(b) the rights and liabilities become, by virtue of this clause, the rights and
liabilities of the transferee,
(c) all proceedings relating to the assets, rights or liabilities pending by or against
the transferor are taken to be proceedings pending by or against the transferee,
(d) the transferee has all the entitlements and obligations of the transferor in
relation to the assets, rights and liabilities that the transferor would have had
but for the order, whether or not those entitlements and obligations were actual
or potential at the time the order took effect,
(e) any act, matter or thing done or omitted to be done in relation to the assets,
rights or liabilities by, to or in respect of the transferor is (to the extent that the
act, matter or thing has any force or effect) taken to have been done or omitted
by, to or in respect of the transferee,
(f) a reference in any Act, in any instrument made under any Act or in any
document of any kind to the transferor or a predecessor of the transferor is (to
the extent that it relates to those assets or liabilities and except as otherwise
provided by the regulations) to be read as, or as including, a reference to the
transferee.
(2) A vesting order that varies the terms and conditions of any instrument or contract has
effect according to its tenor.
(3) No attornment to the transferee by a lessee from the transferor is required.
4 Terms and conditions of vesting
A vesting order may be made on such terms and conditions as are specified in the
order.
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Superannuation Administration Corporation (Pillar) (Authorised Transaction) Bill 2016 [NSW]
Schedule 4 Vesting of assets, rights and liabilities
5 Consideration for vesting
A vesting order may specify the consideration for which a vesting to which it applies
is made and the value or values at which assets, rights or liabilities are vested.
6 Vesting of interests in land
(1) A vesting order may vest an interest in respect of land vested in the transferor without
vesting the whole of the interests of the transferor in that land.
(2) If the interest vested is not a separate interest, the order operates to create the interest
vested in such terms as are specified in the order.
(3) This clause does not limit any other provision of this Schedule.
7 Confirmation of vesting
(1) The Treasurer may by order in writing confirm a vesting of assets, rights or liabilities,
or a variation of the terms and conditions of an instrument or contract, by operation
of this Schedule.
(2) Such an order is evidence of that vesting or variation.
8 Determinations by Treasurer
For the purposes of the making of a vesting order, the Treasurer may determine
whether or not particular assets, rights or liabilities comprise Pillar assets, and such
a determination is conclusive as to the matters determined.
9 Certification to registration authorities
(1) A party to a vesting order may lodge with a registration authority a certificate
certifying as to such information as the party considers the registration authority
reasonably requires to enable the registration authority to exercise any function of the
registration authority arising in connection with the vesting of any asset, right or
liability, or the variation of any terms and conditions of an instrument or contract, by
operation of this Schedule.
(2) Such a certificate is to be accepted and acted upon by the registration authority and,
despite any other law, the registration authority is not entitled to require that the
information concerned be provided to it in any particular form or in any particular
manner.
(3) A certificate under this clause is a dealing for the purposes of the Real Property Act
1900 to the extent that any recording in the Register under that Act is permitted to be
made on the basis of the certificate because of the operation of this clause.
(4) No fee or charge is payable by the transferee to a registration authority for or in
respect of the exercise of any function by the registration authority in connection
with the vesting of an asset, right or liability, or the variation of any terms and
conditions of an instrument or contract, by operation of this Schedule.
(5) A document purporting to be a certificate given under this clause is, unless the
contrary is established, taken to be such a certificate and to have been properly given.
(6) Each of the Treasurer and a public sector agency that is the transferee or transferor
under a vesting order is a party to the vesting order for the purposes of this clause.
(7) In this clause:
registration authority means a person or body that has functions under any law in
connection with the keeping of a register in respect of assets, rights or liabilities or
transactions affecting assets, rights or liabilities.
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Superannuation Administration Corporation (Pillar) (Authorised Transaction) Bill 2016 [NSW]
Schedule 4 Vesting of assets, rights and liabilities
10 Public sector accounting policies
The Treasurer may give directions to public sector agencies for or with respect to
accounting policies to be applied by public sector agencies in connection with the
transfer between public sector agencies of assets, rights and liabilities comprising
Pillar assets for the purposes of the authorised transaction (in place of public sector
accounting policies that would otherwise be applicable in respect of any such
transfer).
Page 29
Superannuation Administration Corporation (Pillar) (Authorised Transaction) Bill 2016 [NSW]
Schedule 5 Ownership restrictions in floated transaction companies
Schedule 5 Ownership restrictions in floated transaction
companies
Part 1 Ownership restrictions
Note. Some of the terms and expressions used in this Part are defined in Part 5 (Interpretative provisions)
of this Schedule.
1 Maximum ownership level
(1) If Pillar assets are transferred pursuant to the authorised transaction by means of an
initial public offer of shares in a transaction company, this Schedule applies to
impose ownership restrictions in relation to the company.
(2) The maximum ownership level for the purposes of this Schedule is set at the
percentage prescribed by the regulations.
(3) This Schedule ceases to apply in relation to a transaction company at the end of the
period of 2 years (or such longer period as may be prescribed by the regulations as
the period for which this Schedule is to apply to the company) beginning on the day
on which the company is first listed on a stock exchange that is a prescribed financial
market under the Corporations Act.
(4) A regulation may not be made under this clause in respect of a company after the
commencement of the period during which an offer of shares in the company (for the
purposes of the initial public offer concerned) can be accepted.
(5) If Pillar assets are transferred pursuant to the authorised transaction by means of an
initial public offer of securities of or interests in a transaction entity that is not a
transaction company, this Schedule applies to impose ownership restrictions in
relation to the transaction entity and so applies:
(a) as if a reference to a company included a reference to the entity and a reference
to shares in a company included a reference to securities of or interests in the
entity, and
(b) with such modifications as may be prescribed by the regulations.
2 Meaning of "prohibited ownership situation"
For the purposes of this Schedule, a prohibited ownership situation exists in relation
to a floated transaction company and in relation to a particular person if the person
holds a particular type of stake in the company of more than the maximum ownership
level set by clause 1.
Note. A person's stake includes the interests of the person's associates--see Part 5 of this
Schedule.
3 Acquisition of shares that result in prohibited ownership situation
A person, or 2 or more persons under an arrangement, who acquire shares in a floated
transaction company are each guilty of an offence if:
(a) the acquisition has any of the following results:
(i) a prohibited ownership situation comes into existence in relation to the
company and in relation to a person,
(ii) if a prohibited ownership situation already exists in relation to the
company and in relation to a person--there is an increase in any type of
stake held by the person in the company, and
(b) the person or persons under the arrangement knew, or were reckless as to
whether, the acquisition would have that result.
Maximum penalty: 400 penalty units.
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4 Floated transaction company to take reasonable steps to prevent contraventions of
ownership restrictions
(1) A floated transaction company must take all reasonable steps to ensure that a
prohibited ownership situation does not exist in relation to the company.
(2) A floated transaction company is guilty of an offence if it engages in conduct that
contravenes a requirement of subclause (1).
Maximum penalty: 500 penalty units.
Note. If a floated transaction company contravenes this subclause, clause 22 operates to
make each person who is a director of the company or who is concerned in the management
of the company liable for the offence if the person knowingly authorised or permitted the
contravention.
(3) An offence under subclause (2) is a strict liability offence.
5 Contravention of Part does not affect validity of acts
An act is not invalidated only because it constitutes an offence under this Part.
Part 2 Location of Member Registers of floated transaction
companies
6 Member Register to be within the State
A floated transaction company must not, without the written approval of the
Treasurer:
(a) change the location where any Member Register of the company is kept to a
location that is outside of the territorial limits of the State, or
(b) keep any Member Register of the company at a location that is outside of the
territorial limits of the State.
Maximum penalty: 500 penalty units.
Note. If a floated transaction company contravenes this clause, clause 22 operates to make
each person who is a director of the company or who is concerned in the management of the
company liable for the offence if the person knowingly authorised or permitted the
contravention.
Part 3 Records and information
7 Record-keeping and information giving
(1) The regulations may make provision for or with respect to requiring a person:
(a) to keep and retain records, where the records are relevant to an ownership
matter, and
(b) to give information to the Treasurer or a floated transaction company that is
relevant to:
(i) an ownership matter, or
(ii) ascertaining whether Part 1 of this Schedule has been or is being
complied with.
(2) The regulations may provide that information given in accordance with a
requirement of regulations made for the purposes of subclause (1) (b) must be
verified by statutory declaration.
(3) A person is not excused from giving information in accordance with a requirement
of regulations made for the purposes of subclause (1) (b) on the ground that the
information may tend to incriminate the person or expose the person to a penalty.
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(4) However, any information obtained from a natural person in compliance with a
requirement of regulations made for the purposes of subclause (1) (b) is not
admissible against the person in criminal proceedings other than proceedings for an
offence under this clause.
(5) A person must keep records, and provide information, in compliance with any
requirements of regulations made for the purposes of subclause (1) (b).
Maximum penalty: 50 penalty units.
(6) In this clause:
control includes control as a result of, or by means of, trusts, agreements,
arrangements, understandings and practices, whether or not having legal or equitable
force and whether or not based on legal or equitable rights.
ownership matter means any of the following matters:
(a) whether a person holds a particular type of stake in a floated transaction
company and, if so, the level of that stake,
(b) whether the directors of a floated transaction company are accustomed or
under an obligation, whether formal or informal, to act in accordance with the
directions, instructions or wishes of a person (either alone or together with
associates),
(c) whether a person (either alone or together with associates) is in a position to
exercise control over a floated transaction company.
Part 4 Remedial orders
8 Applications to Supreme Court for remedial orders
(1) If a prohibited ownership situation exists in relation to a floated transaction company,
the company or the Treasurer (or both) may apply to the Supreme Court to make such
orders as the Court considers appropriate for the purpose of ensuring that the
situation ceases to exist.
(2) Without limiting subclause (1), the Court may make any of the following orders on
any such application:
(a) an order directing the disposal of shares,
(b) an order restraining the exercise of any rights attached to shares,
(c) an order prohibiting or deferring the payment of any sums due to a person in
respect of shares held by the person,
(d) an order that any exercise of rights attached to shares be disregarded.
(3) The Supreme Court may, before making an order under this clause, direct that notice
of the application be given to such persons as it thinks fit or be published in such
manner as it thinks fit, or both.
(4) A floated transaction company and its directors and secretary are specifically
authorised and required to ensure that any rights attached to shares are not exercised
in contravention of an order made under this clause (including ensuring that meetings
of the company are conducted in accordance with requirements of any such order).
9 Injunctions
If a person has engaged, is engaging or is proposing to engage in any conduct in
contravention of this Schedule, the Supreme Court may, on the application of a
floated transaction company or the Treasurer (or both), grant an injunction:
(a) restraining the person from engaging in the conduct, or
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(b) requiring the person to do something.
Part 5 Interpretative provisions
10 Definitions
In this Schedule:
acquisition includes an agreement to acquire, but does not include:
(a) an acquisition by will or by devolution by operation of law, or
(b) an acquisition by way of enforcement of a loan security.
aggregate substantial interest, in relation to a trust estate, has the meaning given by
clause 20.
arrangement--see clause 11.
associate--see clause 12.
company means a body corporate.
constituent document, in relation to a company, means:
(a) the constitution of the company, or
(b) any rules or other documents constituting the company or governing its
activities.
contravene includes fail to comply with.
direct control interest--see clause 19.
director includes any person occupying the position of director of a company, by
whatever name called.
discretionary trust means a trust where:
(a) a person (who may include the trustee) is empowered (either unconditionally
or on the fulfilment of a condition) to exercise any power of appointment or
other discretion, and
(b) the exercise of the power or discretion, or the failure to exercise the power or
discretion, has the effect of determining, to any extent, either or both of the
following:
(i) the identities of those who may benefit under the trust,
(ii) how beneficiaries are to benefit, as between themselves, under the trust.
engage in conduct means do an act or omit to do an act.
floated transaction company means a transaction company in relation to which the
ownership restrictions set out in this Schedule apply.
increase, in relation to a stake in a company, includes an increase from a starting
point of nil.
interest in a share--see clause 15.
lender, in relation to a loan security, means the person who is entitled to enforce the
security.
lending money includes providing non equity finance where the provision of the
finance may reasonably be regarded as equivalent to lending money.
loan security means a security held solely for the purposes of a moneylending
agreement.
Member Register of a company means a register of members of the company kept
under Chapter 2C of the Corporations Act.
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moneylending agreement means an agreement entered into in good faith in the
ordinary course of carrying on a business of lending money, but does not include an
agreement dealing with any matter unrelated to the carrying on of that business.
officer, in relation to a company, includes:
(a) a director, secretary or employee of the company, or
(b) a receiver and manager of any part of the undertaking of the company
appointed under a power contained in any instrument, or
(c) a liquidator of the company appointed in a voluntary winding up.
power to appoint a director--see clause 13.
relative, in relation to a person, means:
(a) the person's spouse or the person's de facto partner (being the other party to a
de facto relationship, within the meaning of the Property (Relationships) Act
1984, with the person), or
(b) a parent or remoter lineal ancestor of the person, or
(c) a child or remoter issue of the person, or
(d) a sibling of the person.
share, in relation to a company, means a share in the share capital of the company,
and includes an interest in such a share.
stake--see clause 18.
substantial interest--see clause 20.
voting power--see clause 17.
11 Entering into an agreement or arrangement
(1) For the purposes of this Schedule, a person is taken to have proposed to enter into an
agreement or arrangement if the person takes part in, or proposes to take part in,
negotiations with a view to entering into the agreement or arrangement.
(2) A reference in this Schedule to entering into an agreement or arrangement includes
a reference to altering or varying an agreement or arrangement.
(3) A reference in this Schedule to entering into an arrangement is a reference to
entering into any formal or informal scheme, arrangement or understanding, whether
expressly or by implication and, without limiting the generality of the foregoing,
includes a reference to:
(a) entering into an agreement, or
(b) creating a trust, whether express or implied, or
(c) entering into a transaction,
and a reference in this Schedule to an arrangement is to be construed accordingly.
(4) A reference in this Schedule to an arrangement does not include a reference to a
moneylending agreement.
12 Associates
(1) For the purposes of this Schedule, the following persons are, subject to subclause (3),
associates of a person:
(a) a relative of the person,
(b) a partner of the person,
(c) a company of which the person is an officer,
(d) if the person is a company--an officer of the company,
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(e) an employee or employer of the person,
(f) an officer of a company of which the person is an officer,
(g) an employee of an individual of whom the person is an employee,
(h) the trustee of a discretionary trust where the person or another person who is
an associate of the person by virtue of another paragraph of this subclause
benefits, or is capable (whether by the exercise of a power of appointment or
otherwise) of benefiting, under the trust, either directly or through any
interposed companies, partnerships or trusts,
(i) a company whose directors are accustomed or under an obligation, whether
formal or informal, to act in accordance with the directions, instructions or
wishes of the person,
(j) a company where the person is accustomed or under an obligation, whether
formal or informal, to act in accordance with the directions, instructions or
wishes of the company,
(k) a company in which the person has, apart from this paragraph, a particular type
of stake of not less than 15 percent,
(l) if the person is a company--a person who holds, apart from this paragraph, a
particular type of stake in the company of not less than 15 percent,
(m) a person who is, because of this subclause, an associate of any other person
who is an associate of the person (including a person who is an associate of the
person by any other application or applications of this paragraph).
(2) If a person (the first person) enters, or proposes to enter, into an arrangement with
another person (the second person) that relates to any of the following matters:
(a) the first person and the second person being in a position, by acting together,
to control any of the voting power in a company,
(b) the power of the first person and the second person, by acting together, to
appoint or remove a director of a company,
(c) the situation where one or more of the directors of a company are accustomed
or under an obligation, whether formal or informal, to act in accordance with
the directions, instructions or wishes of the first person and the second person
acting together,
the second person is taken to be an associate of the first person for the purposes of
the application of a provision of this Schedule in relation to the matter concerned.
(3) The regulations may provide that, for the purposes of this Schedule, a specified
person (or class of persons) is not an associate of another specified person (or class
of persons).
13 Power to appoint director
(1) A reference in this Schedule to a power to appoint a director includes a reference to
such a power whether exercisable with or without the consent or concurrence of any
other person.
(2) For the purposes of this Schedule, a person is taken to have the power to appoint a
director if:
(a) the person has the power (whether exercisable with or without the consent or
concurrence of any other person) to veto such an appointment, or
(b) a person's appointment as a director of the company follows necessarily from
that person being a director or other officer of the first mentioned person.
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14 Meaning of "entitled to acquire"
For the purposes of this Schedule, a person is entitled to acquire anything if the
person is absolutely or contingently entitled to acquire it, whether because of any
constituent document of a company, the exercise of any right or option or for any
other reason.
15 Meaning of "interest in a share"
(1) Subject to this clause, a person holds an interest in a share if the person has any legal
or equitable interest in the share.
(2) Without limiting subclause (1), a person is taken to hold an interest in a share if:
(a) the person has entered into a contract to purchase the share, or
(b) the person has a right (otherwise than because of having an interest under a
trust) to have the share transferred to the person or to the person's order
(whether the right is exercisable presently or in the future and whether or not
on the fulfilment of a condition), or
(c) the person has a right to acquire the share, or an interest in the share, under an
option (whether the right is exercisable presently or in the future and whether
or not on the fulfilment of a condition), or
(d) the person is otherwise entitled to acquire the share or an interest in the share,
or
(e) the person is entitled (otherwise than because of having been appointed as a
proxy or representative to vote at a meeting of members of the company or of
a class of its members) to exercise or control the exercise of a right attached to
the share.
(3) A person is taken to hold an interest in a share even if the person holds the interest in
the share jointly with another person.
(4) For the purpose of determining whether a person holds an interest in a share, it is
immaterial that the interest cannot be related to a particular share.
(5) An interest in a share is not to be disregarded only because of:
(a) its remoteness, or
(b) the manner in which it arose, or
(c) the fact that the exercise of a right conferred by the interest is, or is capable of
being made, subject to restraint or restriction.
16 Certain interests and stakes to be disregarded
(1) For the purposes of this Schedule, the following interests and stakes must be
disregarded:
(a) an interest in a share held by a person whose ordinary business includes the
lending of money if the person holds the interest as a loan security,
(b) an interest in a share held by a person, being an interest held by the person
because the person holds an office (or an office belonging to a class of offices)
prescribed by the regulations,
(c) an interest of a prescribed kind in a share, being an interest held by such
persons (or persons belonging to a class of persons) as are prescribed by the
regulations,
(d) an interest in a share held by a public sector agency,
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(e) a stake of a kind prescribed by the regulations in a company, being a stake held
by a person (or person belonging to a class of persons) prescribed by the
regulations.
(2) For the purposes of this Schedule, if:
(a) a person holds an interest in a share as a loan security, and
(b) the ordinary business of the person includes the lending of money, and
(c) the loan security is enforced, and
(d) as a result of the enforcement of the loan security, the person becomes the
holder of the share, and
(e) the person holds the share for a continuous period (the holding period)
beginning at the time when the security was enforced,
the person's interest in the share must be disregarded at all times during so much of
the holding period as occurs during whichever of the following periods is applicable:
(f) the period of 90 days beginning when the security was enforced,
(g) if the Treasurer, by written notice given to the person, allows a longer period--
the end of that longer period.
(3) For the purposes of this Schedule, if:
(a) a person acquires an interest in a share in a floated transaction company, and
(b) the interest was acquired in the person's capacity as an underwriter or a
sub-underwriter in connection with the transfer or issue of shares in the
company by or on behalf of a public sector agency or the company (whether
under an initial public offer of the company or otherwise),
the person's interest in the share must be disregarded at all times during whichever
of the following periods is applicable:
(c) the period of 90 days beginning when the person acquired the interest,
(d) if the Treasurer, by written notice given to the person, allows a longer period--
that longer period.
17 Voting power
(1) A reference in this Schedule to the voting power in a company is a reference to the
total rights of shareholders to vote, or participate in any decision making, concerning
any of the following:
(a) the making of distributions of capital or profits of the company to its
shareholders,
(b) the constituent document of the company,
(c) any variation of the share capital of the company.
(2) A reference in this Schedule to control of the voting power in a company is a
reference to control that is direct or indirect, including control that is exercisable as
a result of or by means of arrangements or practices:
(a) whether or not having legal or equitable force, and
(b) whether or not based on legal or equitable rights.
(3) If the percentage of total rights to vote or participate in decision making differs as
between different types of voting or decision making, the highest of those
percentages applies for the purposes of this clause.
(4) If a company:
(a) is limited both by shares and by guarantee, or
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Schedule 5 Ownership restrictions in floated transaction companies
(b) does not have a share capital,
this clause has effect as if the members or policy holders of the company were
shareholders in the company.
18 Stake in a company
(1) A particular type of stake that a person holds in a company at a particular time is the
aggregate of:
(a) the direct control interests in the company of that type that the person holds at
that time, and
(b) the direct control interests in the company of that type held at that time by
associates of the person.
(2) In calculating the stake that a person holds in a company, a direct control interest held
because of clause 19 (5) is not to be counted under subclause (1) (a) to the extent to
which it is calculated by reference to a direct control interest in the company that is
taken into account under subclause (1) (b).
19 Direct control interests in a company
(1) A person holds a direct control interest in a company at a particular time equal to the
percentage of the total paid-up share capital of the company in which the person
holds an interest at that time.
(2) A person also holds a direct control interest in a company at a particular time equal
to the percentage of the voting power in the company that the person is in a position
to control at that time.
(3) A person also holds a direct control interest in a company at a particular time equal
to the percentage that the person holds, or is entitled to acquire, at that time of the
total rights to distributions of capital or profits of the company to its shareholders on
winding up.
(4) A person also holds a direct control interest in a company at a particular time equal
to the percentage that the person holds, or is entitled to acquire, at that time of the
total rights to distributions of capital or profits of the company to its shareholders,
otherwise than on winding up.
(5) If:
(a) a person holds a particular type of direct control interest (including a direct
control interest that is taken to be held because of one or more previous
applications of this subclause) in a company (the first level company), and
(b) the first level company holds the same type of direct control interest in another
company (the second level company),
the person is taken to hold that type of direct control interest in the second level
company equal to the percentage worked out using the formula:
first level percentage second level percentage
where:
first level percentage means the percentage of the direct control interest held by the
person in the first level company.
second level percentage means the percentage of the direct control interest held by
the first level company in the second level company.
(6) The regulations may make provision for or with respect to the application of this
clause to interests in an entity other than a company.
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20 Substantial interests in trust estates
(1) For the purposes of this Schedule:
(a) a person is taken to hold a substantial interest in a trust estate if the person,
alone or together with an associate or associates, holds a beneficial interest in
not less than 15 percent of the corpus or income of the trust estate, and
(b) 2 or more persons are taken to hold an aggregate substantial interest in a trust
estate if the persons, together with an associate or associates, hold, in the
aggregate, beneficial interests in not less than 40 percent of the corpus or
income of the trust estate.
(2) For the purposes of subclause (1), if, under the terms of a trust, a trustee has a power
or discretion as to the distribution of the income or corpus of the trust estate to
beneficiaries, each beneficiary is taken to hold a beneficial interest in the maximum
percentage of income or corpus of the trust estate that the trustee is empowered to
distribute to that beneficiary.
Part 6 Miscellaneous
21 Displacement of Corporations legislation
The provisions of this Schedule 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.
22 Offences by corporations
(1) If a corporation contravenes, whether by act or omission, any provision of this
Schedule, each person who is a director of the corporation or who is concerned in the
management of the corporation is taken to have contravened the same provision if
the person knowingly authorised or permitted the contravention.
(2) A person may be proceeded against and convicted under a provision pursuant to
subclause (1) whether or not the corporation has been proceeded against or has been
convicted under the provision.
(3) Nothing in this clause affects any liability imposed on a corporation for an offence
committed by the corporation under this Schedule.
23 Proceedings for offences
(1) Proceedings for an offence under this Schedule may be dealt with summarily before
the Local Court or before the Supreme Court in its summary jurisdiction.
(2) If proceedings for an offence to which this clause applies are brought in the Local
Court, the maximum penalty that the Court may impose in respect of the offence is,
despite any other provision of this Schedule, $50,000 or the maximum penalty
provided by this Schedule, whichever is the lesser.
(3) If proceedings for an offence to which this clause applies are brought in the Supreme
Court in its summary jurisdiction, the Supreme Court may impose a penalty not
exceeding the maximum penalty provided by this Schedule in respect of the offence.
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Schedule 6 Savings, transitional and other provisions
Schedule 6 Savings, transitional and other provisions
Part 1 General
1 Regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent
on the enactment of this Act or any Act that amends this Act.
(2) Any such provision may, if the regulations so provide, take effect from the date of
assent to the Act concerned or a later date.
(3) Any such provision may, if the regulations so provide, have effect notwithstanding
any other provision of this Schedule.
(4) To the extent to which any such provision takes effect from a date that is earlier than
the date of its publication on the NSW legislation website, the provision does not
operate so as:
(a) to affect, in a manner prejudicial to any person (other than a public sector
agency), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than a public sector agency) in
respect of anything done or omitted to be done before the date of its
publication.
Part 2 Provisions consequent on enactment of this Act
2 Half-yearly reports
The Treasurer may by direction in writing to Pillar vary the information required to
be included in a report of the operations of Pillar under section 23 of the State Owned
Corporations Act 1989.
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Schedule 7 Amendment of Subordinate Legislation Act 1989 No 146
Schedule 7 Amendment of Subordinate Legislation Act 1989
No 146
Schedule 4 Excluded instruments
Insert at the end of the Schedule with appropriate item number:
Regulations under the Superannuation Administration Corporation (Pillar)
(Authorised Transaction) Act 2016.
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