Electricity Industry (Loy Yang B) Act 1997 (Vic)
Electricity Industry (Loy Yang B) Act 1997
Act No. 14/1997
TABLE OF PROVISIONS
Section Page PART 1—PRELIMINARY 1
1. Purpose 1 2. Commencement 1 3. Principal Act 2
PART 2—AMENDMENT OF PRINCIPAL ACT 3
4. Definitions 3 5. Loy Yang mine 3 6. Rates on Loy Yang land 4 7. New section 62A inserted 4 62A. Further allocation of property rights and liabilities 4 8. Amendment of Part 5 6 9. New section 66A inserted 6 66A. Property transferred to other persons 6 10. Further amendment of Part 5 7 11. Treasurer may be party to agreement 8 12. New section 153UA inserted 8 153UA. Loy Yang B transaction 8 13. Freedom of Information 9 14. Amendment of tariff order 9 15. New section 158BA inserted 9 158BA. Power to regulate certain changes 9 16. New Part 11AB inserted 10 PART 11AB—TRANSFER OF CERTAIN PROPERTY AND STAFF OF LOY YANG POWER LTD 11 Division 1—Definitions and application 11 153TA. Definitions and application 11 Division 2—Allocation of property 13 153TB. LYP to prepare allocation statement 13 153TC. Certificate of Administrator 14
i
Section Page
Division 3—Transfer of property 15 153TD. Property transferred 15 153TE. Allocation of property etc. subject to encumbrances 15 153TF. Substitution of party to agreement 16 153TG. LYP instruments 16 153TH. Proceedings 16 153TI. Interests in land 17 153TJ. Amendment of Register 17 153TK. Evidence 18 153TL. Validity of things done under this Part 18 Division 4—Staff 19 153TM. List of LYP staff 19 153TN. Transfer of LYP staff 20 153TO. Future terms and conditions of transferred employees 21 153TP. Superannuation 21
PART 3—AMENDMENT OF OTHER ACTS 23
17. Loy Yang B Act 1992 23 18. State Electricity Commission Act 1958 23
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NOTES 24
ii
Victoria
No. 14 of 1997
Electricity Industry (Loy Yang B) Act
1997†
[Assented to 6 May 1997]
The Parliament of Victoria enacts as follows:
PART 1—PRELIMINARY
1. Purpose
The purpose of this Act is to facilitate the sale of the Loy Yang B power station.
2. Commencement
(1) This Part comes into operation on the day on
which this Act receives the Royal Assent.
Electricity Industry (Loy Yang B) Act 1997
Act No. 14/1997 s. 3 (2) Section 11 is deemed to have come into operation
on 18 April 1997.
(3) The remaining provisions of this Act come into
operation on a day or days to be proclaimed.
3. Principal Act
In this Act, the Electricity Industry Act 1993 is
No. 130/1993. Reprint No. 2
called the Principal Act.
as at 24 April 1996. Further amended by Nos 4/1996, 8/1996 and 48/1996.
_______________
Electricity Industry (Loy Yang B) Act 1997
| s. 4 | Act No. 14/1997 |
PART 2—AMENDMENT OF PRINCIPAL ACT
4. Definitions
(1) In section 3(1) of the Principal Act insert—
' "allocation day" means the day specified in a statement under section 62A(1);
"Loy Yang B land" means the land shown
hatched on the plan in Schedule 2 to the Loy
Yang B Act 1992;
"LYB Transaction Implementation
Agreement" means the transaction
implementation agreement dated 29 March
1997 entered into between SEC, Edison
Mission Energy Australia Limited, Loy
Yang B Power Station Pty Ltd, Loy Yang
Power Ltd, the Treasurer, Leanne Power PtyLtd and Edison Mission Energy;'.
(2) In section 3(1) of the Principal Act—
(a) in the definition of "transferred property", after "SEC company" insert ", a person or persons nominated by the Minister under section 62A";
(b)
in the definition of "transferee" after "or SEC company" insert "or a person or persons nominated by the Minister under section 62A".
5. Loy Yang mine
(1) In the Principal Act—
(a) in section 11, sub-section (3) is repealed;
(b) in section 12A, sub-section (3) is repealed;
(c) in section 12A(4), paragraph (b) is repealed;
Electricity Industry (Loy Yang B) Act 1997
Act No. 14/1997 s. 6
(d)
in section 47A, sub-sections (15), (16), (17) and (18) are repealed.
(2) In section 12A(4) of the Principal Act, after
"generation company" (where twice occurring)
insert "or SEC".
(3) In section 47A(3) of the Principal Act, after
"generation company" insert "or SEC".
6. Rates on Loy Yang land
(1) After section 46(1A) of the Principal Act insert—
"(1B) The Loy Yang B land is rateable land and anagreement under section 27 of the Loy Yang
B Act 1992 in force immediately before the
commencement of section 6 of the
Electricity Industry (Loy Yang B) Act
1997 has effect as if it had been entered intounder section 46(3)(a) of this Act.".
(2) In section 46 of the Principal Act, for sub-section
(4) substitute—
"(4) In determining an amount under sub-section(3), an arbitrator must have regard to the methodology by which amounts payable under an agreement in force under section
27(2)(a) of the Loy Yang B Act 1992
immediately before the commencement of
section 6 of the Electricity Industry Act1993 were determined.".
7. New section 62A inserted
After section 62 of the Principal Act insert—
'62A. Further allocation of property rights and
liabilities
(1) SEC must give to the Treasurer and the
Minister, within 3 months after the commencement of section 7 of the Electricity Industry (Loy Yang B) Act
Electricity Industry (Loy Yang B) Act 1997
| s. 7 | Act No. 14/1997 |
1997, a statement approved by the Minister and signed by the Administrator relating to property, rights and liabilities of SEC as at a
date specified by the Minister and allocating
that property, those rights and those
liabilities on a specified day to a person orpersons nominated by the Minister.
(2) A statement under sub-section (1) must not
allocate—
(a)
any excluded property, other than the property, or rights and liabilities under the property, referred to in Part B of Schedule 3;
(b) financial obligations;
(c) rights in respect of financial obligations; (d) any property, rights or liabilities declared by the Minister in writing given to SEC to be exempt property, rights and liabilities for the purposes of this section. (3) If a statement under this section is approved by the Treasurer and the Minister—
(a)
the Treasurer and the Minister must sign the statement; and
(b)
the statement is an allocation statement for the purposes of this Act.
(4) The Treasurer and the Minister may at any
time direct SEC to amend a statement given to them under this section as specified in the direction.
(5) An allocation statement under this section
may be amended in writing by the Treasurer
and the Minister.
Electricity Industry (Loy Yang B) Act 1997
Act No. 14/1997 s. 8 (6) A direction under sub-section (4) or an
amendment under sub-section (5) that would given or made unless that person or those persons are, or are wholly owned by, the State or a statutory authority.
affect a person or persons nominated by the
(7) In this section, "statement" and "allocation statement" include a statement or allocation statement amended in accordance with this
section.'.
8. Amendment of Part 5
In section 63 of the Principal Act—
(a)
in sub-section (1), after "so specified" insert "or person or persons";
(b)
in sub-section (1)(b), after "appointed day" (where twice occurring) insert "or allocation day, as the case requires";
(c)
in sub-section (1)(b), after "company" insert "or person or persons";
(d)
in sub-section (3)(b), after "SEC company" insert ", person or persons specified in an allocation statement".
9. New section 66A inserted
After section 66 of the Principal Act insert—
"66A. Property transferred to other persons
On the allocation day—
(a)
all property and rights of SEC, wherever located, that are allocated under the statement to a person or persons nominated by the Minister under section 62A vest in that person or those persons;
Electricity Industry (Loy Yang B) Act 1997
| s. 10 | Act No. 14/1997 |
(b)
all liabilities of SEC, wherever located, that are allocated under the statement to a person or persons nominated by the
Minister under section 62A become
liabilities of that person or those
persons.".
10. Further amendment of Part 5
(1) In the Principal Act—
(a)
in section 67, after "SEC company" (where first occurring) insert ", other person or persons";
(b)
in section 67(d), after "SEC company" insert ", person or persons";
(c)
in section 68, for "of transferred property as at the appointed day" substitute "or person or persons nominated by the Minister under section 62A of transferred property as at the appointed day or allocation day, as the case requires,";
(d)
in section 69, after "SEC company" insert 'or other person or persons ("the new party")';
(e) in section 69(a) and (b)—
(i) for "corporation or company"
substitute "new party";(ii) after "appointed day" insert "or allocation day, as the case requires";
(f)
in section 70, after "appointed day" insert "or allocation day, as the case requires";
(g)
in section 71, after "appointed day" (where twice occurring) insert "or allocation day, as the case requires";
Electricity Industry (Loy Yang B) Act 1997
Act No. 14/1997 s. 11
(h) in section 72, after "appointed day" (where twice occurring) insert "or allocation day, as the case requires"; (i) in section 73(3) after "SEC company concerned" insert ", or other person or persons";
(j)
in section 74(a) and (b), after "SEC company" insert "or person or persons nominated by the Minister under section 62A";
(k) in section 76(1)—
(i) after "or SEC company" insert "or person or persons nominated by the Minister under section 62A";
(ii) in paragraph (a), after "or company" insert "or person or persons nominated by the Minister under section 62A".
11. Treasurer may be party to agreement
In section 153U of the Principal Act, after "shares in" insert "or other property of".
12. New section 153UA inserted
After section 153U of the Principal Act insert—
"153UA. Loy Yang B transaction
The Treasurer, on behalf of the Government of Victoria, is deemed to have been authorised to enter into, and may give effect to, the LYB Transaction Implementation Agreement and may enter into and give effect to all transactions referred to or contemplated in the LYB Transaction Implementation Agreement, including the
Electricity Industry (Loy Yang B) Act 1997
| s. 13 | Act No. 14/1997 |
sale of the interest in the Loy Yang B Power
Station held by Loy Yang B Power StationPty Ltd.".
13. Freedom of Information
After section 153X(b) of the Principal Act insert—
"or
(c) the terms of the LYB Transaction Implementation Agreement or the transactions referred to or contemplated in that Agreement.".
14. Amendment of tariff order
(1) In section 158C of the Principal Act—
(a) before "On or after" insert "(1)";
(b)
in paragraph (a), after "(a)" insert "except as provided in sub-section (2)".
(2) At the end of section 158C insert—
"(2) The Governor in Council, by Order
published in the Government Gazette, may
amend or vary an Order in force under
section 158A in accordance with the
recommendation in writing of the Treasurer
that it is necessary or desirable to make the
Order as a consequence of SEC ceasing to
purchase electricity under the Power Supply
Agreement within the meaning of the State
Agreement set out in Schedule 1 to the LoyYang B Act 1992.".
15. New section 158BA inserted
After section 158B of the Principal Act insert—
"158BA. Power to regulate certain changes
Electricity Industry (Loy Yang B) Act 1997
Act No. 14/1997 s. 16 (1) The Governor in Council, by Order
published in the Government Gazette, may regulate, in such manner as the Governor in Council sees fit, the price payable for
electricity purchased from time to time underthe pool rules for the purpose of—
(a) reducing the price payable by SEC for electricity purchased by SEC to satisfy its obligations under the agreements, contracts and deeds referred to in Part
A of Schedule 3; and(b) other than SEC for electricity
increasing the price payable by persons period so that the total amount payable for the volume of electricity purchased by those persons during that period is increased by an amount that is approximately the same as the amount of the reduction under paragraph (a) as applied to the volume of electricity purchased by SEC during that period.
(2) An Order under sub-section (1)—
(a) different methods of determining
prices, to be payable or applicable tomay specify different prices, or under the pool rules; and
(b)
may provide that the pool rules apply as modified by the Order from the date specified in the Order.".
16. New Part 11AB inserted
After Part 11A of the Principal Act insert—
Electricity Industry (Loy Yang B) Act 1997
| s. 16 | Act No. 14/1997 |
'PART 11AB—TRANSFER OF CERTAIN PROPERTY AND
STAFF OF LOY YANG POWER LTD
Division 1—Definitions and application
153TA. Definitions and application
(1) In this Part—
"chief executive officer" means chief
executive officer of LYP;
"former LYP property" means property, rights or liabilities of LYP that, under this Part, have vested in, or become
liabilities of another person;
"LYP" means Loy Yang Power Limited; "LYP instrument" means an instrument
(including a legislative instrument other
than this Act) subsisting immediatelybefore the relevant date—
(a) to which LYP was a party; or
(b)
that was given to or in favour of LYP; or
(c) that refers to LYP; or
(d) under which—(i) money is, or may become, payable to or by LYP; or
(ii) other property is to be, or may become liable to be, transferred to or by LYP;
"LYP transferee", in relation to former LYP property, means the person to which the property has been transferred
under this Part;
Electricity Industry (Loy Yang B) Act 1997
Act No. 14/1997 s. 16 "new employer", in relation to a transferred LYP employee, means the person by which, by virtue of section 153TN, the transferred LYP employee is regarded as being employed with effect from the relevant date;
"relevant date"—
(a) statement or property, rights or
liabilities allocated under an
allocation statement, means thein relation to an allocation sub-section (2) for the purposes of that statement;
(b) in relation to a document referred to in section 153TM(1), means a date fixed by the Minister under sub-section (2) for the purposes of that document;
"transferred LYP employee" means a
person who, by virtue of section
153TN, is regarded as being employed
by a new employer with effect from the
relevant date.
(2) The Minister may, by notice published in the Government Gazette—
(a)
fix the relevant date for the purposes of an allocation statement under section 153TB;
(b)
fix the relevant date for the purposes of a document referred to in section 153TM(1).
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| s. 16 | Act No. 14/1997 |
(3) This Part does not apply unless LYP is a
company all the shares in which are held by,
or on behalf of, the State or a statutory
authority.
Division 2—Allocation of property
153TB. LYP to prepare allocation statement
(1) LYP must give to the Treasurer and the
Minister, within the period of 3 months after the date on which the Electricity Industry (Loy Yang B) Act 1997 receives the Royal Assent or such longer period as the Treasurer and the Minister approve, a statement or statements approved by the Minister relating to the property, rights and liabilities of LYP as at a date specified by the Minister for the purposes of the relevant statement.
(2) A statement under this section—
(a) must allocate the property, rights and liabilities of LYP shown in the statement to, or between, the person or persons nominated in writing by the Minister; (b) must be signed by the chief executive officer. (3) If a statement under this section is approved by the Treasurer and the Minister—
(a)
the Treasurer and the Minister must sign the statement; and
(b)
the statement is an allocation statement for the purposes of this Part.
Electricity Industry (Loy Yang B) Act 1997
Act No. 14/1997 s. 16 (4) The Treasurer and the Minister may at any
time direct LYP to amend a statement given to them under this section as specified in the direction.
(5) An allocation statement under this section may be amended by writing signed by the Treasurer and the Minister.
(6) A direction under sub-section (4) or an
amendment under sub-section (5) that would given or made unless that person or those persons are, or are wholly owned by, the State or a statutory authority or have consented in writing to the direction or amendment.
affect a person or persons nominated by the
(7) In this section, "statement" and "allocation statement" include a statement or allocation statement amended in accordance with this
section.
153TC. Certificate of Administrator
(1) A certificate signed by the Administrator
certifying that property, rights or liabilities
of LYP specified in the certificate have been
allocated under the allocation statement to a
person so specified is, unless revoked under
sub-section (2), conclusive evidence—
(a) that the property, rights or liabilities have been so allocated; and (b) that the property, rights or liabilities vested in or became the property, rights or liabilities of the person on the relevant date. (2) If the Treasurer and the Minister so direct the Administrator in writing, the
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| s. 16 | Act No. 14/1997 |
Administrator must revoke a certificate given under sub-section (1) by issuing another certificate or certificates in place of
the first certificate.
(3) The Administrator—
(a) must keep a register of certificates issued under this section; and (b) must make the register reasonably person.
Division 3—Transfer of property
153TD. Property transferred
On the relevant date—
(a)
all property and rights of LYP, wherever located, that are allocated under an allocation statement to a person, or any 2 or more persons, vest in that person or persons; and
(b)
all liabilities of LYP, wherever located, that are allocated under an allocation statement to a person, or to any 2 or more persons, become liabilities of that person or persons.
153TE. Allocation of property etc. subject to
encumbrances
Unless an allocation statement under this
Part otherwise provides, where, under thisPart—
(a) property and rights vest in; or
(b) liabilities become liabilities of—
a person or 2 or more persons—
Electricity Industry (Loy Yang B) Act 1997
Act No. 14/1997 s. 16
(c) the property and rights so vested are subject to the encumbrances (if any) to which they were subject immediately before so vesting; and (d) the rights to which LYP was entitled in respect of those liabilities immediately before they ceased to be liabilities of LYP vest in the person or persons.
153TF. Substitution of party to agreement
If, under an allocation statement, the rights and liabilities of LYP under an agreement are allocated to a person—
(a)
the person becomes, on the relevant date, a party to the agreement in place of LYP; and
(b)
on and after the relevant date, the agreement has effect as if the person had always been a party to the agreement.
153TG. LYP instruments
Each LYP instrument relating to former LYP property continues to have effect according to its tenor on and after the relevant date as if a reference in the instrument to LYP were a reference to the LYP transferee.
153TH. Proceedings
If, immediately before the relevant date, proceedings relating to former LYP property (including arbitration proceedings) to which LYP was a party were pending or existing in any court or tribunal, then, on and after that date, the LYP transferee is substituted for
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| s. 16 | Act No. 14/1997 |
LYP as a party to the proceedings and has the same rights in the proceedings as LYP had.
153TI. Interests in land
Without prejudice to the generality of this Part and despite anything to the contrary in any other Act or law, if, immediately before the relevant date, LYP is, in relation to former LYP property, the registered proprietor of an interest in land under the Transfer of Land Act 1958, then on and after that date—
(a)
the LYP transferee is to be taken to be the registered proprietor of that interest in land; and
(b)
the LYP transferee has the same rights and remedies in respect of that interest as LYP has.
153TJ. Amendment of Register
(1) The Registrar of Titles, on being requested to
do so and on delivery of any relevant
certificate of title or instrument and
certificate of the Administrator, must make
any amendments in the Register that are
necessary because of the operation of this
Part.
(2) The Registrar-General must make all entries
on the records of enrolment of any Crown grant and on any memorial relating to land that are necessary because of the operation of this Part.
(3) If any land allocated under an allocation
statement under this Part is not Crown land
and is not under the operation of the
Transfer of Land Act 1958, the LYP
Electricity Industry (Loy Yang B) Act 1997
s. 16
s. 16
Act No. 14/1997
transferee concerned must, as soon as the Property Law Act 1958) to be delivered to the office of the Registrar-General and, for the purposes of that Part, that certificate must be taken to be an instrument affecting land.
practicable after the land vests in accordance
with the allocation statement, cause a
memorial of the certificate of the153TK. Evidence
(1) Documentary or other evidence that would
have been admissible for or against the
interests of LYP in relation to former LYP
property if this Part had not been enacted, is
admissible for or against the interests of the
LYP transferee.
(2) Division 3A of Part III of the Evidence Act 1958 continues to apply with respect to the books of account of LYP and to entries made
in those books of account before the relevant
date, whether or not they relate to former
LYP property.(3) In sub-section (2), "books of account" has the same meaning as in Division 3A of Part III of the Evidence Act 1958.
153TL. Validity of things done under this Part
(1) Nothing effected by this Part or done or
suffered under this Part or the cessation of
carrying on business by LYP—
(a) is to be regarded as placing LYP, the State, a Minister or another person in breach of contract or confidence or as otherwise making any of them guilty of a civil wrong; or
Electricity Industry (Loy Yang B) Act 1997
| s. 16 | Act No. 14/1997 |
(b) is to be regarded as placing any of them in breach of or as constituting a default under any Act or other law or any provision in any agreement,
arrangement or understanding
including, without limiting the
generality of the foregoing, any
provision prohibiting, restricting or
regulating the assignment or transfer of
any property or the disclosure of any
information; or(c) is to be regarded as fulfilling any condition which allows a person to exercise a right or remedy in respect of or to terminate any agreement or obligation; or (d) releases any surety or other obligee wholly or in part from any obligation. (2) The validity of any act or transaction of LYP
must not be called in question in any
proceedings on the ground that any provision
of this Act had not been complied with.
Division 4—Staff
153TM. List of LYP staff
(1) Before the relevant date, LYP must prepare and submit to the Minister and Treasurer a document signed by the chief executive
officer listing officers and employees of LYP
and specifying, in respect of each such
officer or employee, the person by which he
or she is to be regarded as having been
employed by virtue of section 153TN witheffect from the relevant date.
(2) The document may be amended by
instrument signed by the chief executive
Electricity Industry (Loy Yang B) Act 1997
Act No. 14/1997 s. 16 officer and given to the Minister and Treasurer and the amendment is to be regarded as having effect, or having had
effect, from the relevant date.
(3) Nothing in this section prevents a person
listed in the document as an officer or
employee of LYP from resigning or being
dismissed at any time before the relevant
date in accordance with the terms and
conditions of his or her appointment or
employment.
153TN. Transfer of LYP staff
(1) A person listed as an officer or employee of LYP in a document under section 153TM who was such an officer or employee immediately before the relevant date is to be regarded as—
(a) having been employed by the new employer with effect from the relevant date; and (b) having been so employed on the same terms and conditions as those that applied to the person, immediately before the relevant date, as an officer or employee of LYP; and (c) having accrued an entitlement to benefits, in connection with that employment by the new employer, that is equivalent to the entitlement that the
person had accrued, as an officer or
employee of LYP, immediately before
the relevant date.(2) The service of a transferred LYP employee
as an employee of the new employer is to be
regarded for all purposes as having been
Electricity Industry (Loy Yang B) Act 1997
| s. 16 | Act No. 14/1997 |
continuous with the service of the employee,
immediately before the relevant date, as an
officer or employee of LYP.(3) A transferred LYP employee is not entitled to receive any payment or other benefit by reason only of having ceased to be an officer
or employee of LYP because of this Act.
(4) A certificate purporting to be signed by the
Administrator certifying that a person named in the certificate was with effect from the relevant date employed, by virtue of this section, by a person named in the certificate is admissible in evidence in any proceedings and is conclusive proof of the matters stated in it.
153TO. Future terms and conditions of transferred
employees
Nothing in section 153TN prevents—
(a) any of the terms and conditions of employment of a transferred LYP employee from being altered by or under any law, award or agreement with effect from any time after the relevant date; or (b) a transferred LYP employee from time after the relevant date in accordance with the then existing terms and conditions of his or her employment by the new employer.
153TP. Superannuation
Without limiting section 84(5), SEC may, at any time before or after the relevant date, amend the rules referred to in section 84(1)
Electricity Industry (Loy Yang B) Act 1997
Act No. 14/1997 s. 16
to recognise for the purposes of membership service that must be taken to exist by virtue of section 153TN(2).'.
of the Victorian Electricity Industry
_______________
Electricity Industry (Loy Yang B) Act 1997
| s. 17 | Act No. 14/1997 |
PART 3—AMENDMENT OF OTHER ACTS
17. Loy Yang B Act 1992
In the Loy Yang B Act 1992—
(a) in section 21, sub-section (1) is repealed.
(b) section 27 is repealed.
18. State Electricity Commission Act 1958
Section 108A of the State Electricity
Commission Act 1958 is repealed.
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Electricity Industry (Loy Yang B) Act 1997
Act No. 14/1997 Notes
NOTES
†
Minister's second reading speech—
Legislative Assembly: 10 April 1997
Legislative Council: 29 April 1997
The long title for the Bill for this Act was "to facilitate the sale of the Loy
Yang B power station, to amend the Electricity Industry Act 1993, the
State Electricity Commission Act 1958 and the Loy Yang B Act 1992
and for other purposes."
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