Electricity Network Assets (Authorised Transactions) Act 2015 (NSW)
An Act to provide for the transfer of certain electricity network assets of the State.
This Act is the Electricity Network Assets (Authorised Transactions) Act 2015.
This Act commences on the date of assent to this Act, except as provided by subsection (2).
Schedule 6 (Ownership restrictions in floated transaction companies) commences on a day to be appointed by proclamation.
Schedule 1 contains other interpretative provisions.
In this Act—
(a) (Repealed)
(b) Property and Development NSW,
(c) Transport for NSW,
(d) RailCorp,
(d1) Sydney Trains,
(d2) Sydney Metro,
(e) a council under the Local Government Act 1993,
(f) any other public sector agency prescribed by the regulations for the purposes of this definition.
(a) the assets, rights and liabilities of an electricity network SOC, and
(b) associated electricity network land.
Essential Energy is not an electricity network SOC for the purposes of this Act.
In this Act,
(a) electricity power lines and their supporting or protective structures and conduits,
(b) associated equipment,
(c) street lighting structures,
(d) buildings,
(e) plant and machinery (excluding motor vehicles),
(f) any freehold or leasehold interest in land.
Freehold or leasehold interests in land that are wholly owned by an electricity network SOC and held for the purpose of their forming part of or being used in connection with the operation of the distribution system, transmission system or street lighting system of the electricity network SOC in the future are also network infrastructure assets for the purposes of this Act.
Assets that are not required for the purposes of the operation, in the ordinary course, of the distribution, transmission or street lighting system concerned are not network infrastructure assets for the purposes of this Act.
In this section—
(a) electricity substations,
(b) electricity switchyards,
(c) transformers,
(d) capacitors,
(e) reactive plant,
(f) protection equipment, including circuit breakers,
(g) monitoring equipment,
(h) network communications equipment,
(i) customer connection assets (excluding meters).
This Act authorises the transfer of electricity network assets to the private sector or to any public sector agency, subject to the following conditions—
(a) network infrastructure assets can only be transferred to the private sector by lease,
(b) the initial term of a lease of network infrastructure assets to the private sector must not exceed 99 years (without limiting any option to renew for any additional term or terms),
(c) the private sector interest in the State’s electricity network assets (calculated as provided by this Part) must not exceed 49%.
For the removal of doubt, this Act does not authorise the transfer of any assets, rights or liabilities of Essential Energy.
The private sector interest in the State’s electricity network assets is to be calculated for the purposes of this Part as follows—
(a) for each transacted electricity network SOC the asset value of the SOC is to be multiplied by the level of the interest of the private sector in the transacted business of the SOC on completion of the relevant authorised transaction, to arrive at an amount that is the private sector interest in the assets of the SOC,
(b) the amounts calculated under paragraph (a) for all transacted electricity network SOCs are to be summed to arrive at an amount that is the total private sector interest in the assets of transacted electricity network SOCs,
(c) the amount arrived at under paragraph (b), expressed as a percentage of the total of the asset values of the 3 electricity network SOCs and of Essential Energy, is the private sector interest in the State’s electricity network assets.
The level of the interest of the private sector in the transacted business of a SOC is—
(a) the share to which a person other than a public sector agency is entitled, as at the completion of the relevant authorised transaction, of the distributed profits from the operation of the transacted business of the SOC (unless the share referred to in paragraph (b) is greater), or
(b) the share of the assets of the transacted business of the SOC to which a person other than a public sector agency is entitled, as at the completion of the relevant authorised transaction, on a winding up of an entity that controls or operates the business.
In this section—
(a) for Ausgrid—$14,752.3 million, or
(b) for Endeavour Energy—$5,944.3 million, or
(c) for Essential Energy—$7,187.4 million, or
(d) for TransGrid—$6,241.5 million.
A public sector agency must not transfer any network retained interest held by the public sector agency.
This section does not prevent—
(a) the granting or enforcement of a security interest over any network retained interest, or
(b) the conferral or enforcement of a security interest over any interest in a network infrastructure assets lease, being a security interest that arises by operation of law, or
(c) a transfer by or at the direction or under the authority of a liquidator, receiver, receiver and manager, administrator or the like in the course of a winding-up, receivership or other external administration, or
(d) a transfer by way of lease (a
new lease ) created by a sublease under, or surrender and regrant of, an existing network infrastructure assets lease (theexisting lease ) where the transfer does not result in the level of the public sector’s interest in the entity that is the lessee under the new lease being less than it was for the existing lease, or(e) any transfer to a public sector agency, or
(f) a transfer authorised by the regulations.
In this section—
(a) a network infrastructure assets lease (other than as the lessor of a transacted distribution system or transacted transmission system), or
(b) a public sector agency that is a lessee of such a lease or that is a partner in a partnership that is a lessee of such a lease.
The Treasurer must ensure that an authorised network operator of a transacted distribution system or transacted transmission system provides a guarantee (its
(a) the authorised network operator’s total network charges for the financial year ending 30 June 2019 will be lower than the network operator’s total network charges for the financial year ending 30 June 2014, and
(b) the authorised network operator will promote efficient investment in, and efficient operation and use of, electricity services for the long term interests of consumers of electricity with respect to price, quality, safety, reliability and security of supply of electricity, and
(c) the authorised network operator will comply with any Efficiency Benefit Sharing Scheme developed by the AER for the sharing of efficiency gains and losses between network operators and their customers that is applicable to the network operator.
The Treasurer is to request the Price Commissioner to provide the following reports—
(a) a report, for each proposed authorised transaction, as to whether the amount of the private sector investment for the purpose of acquiring an interest in electricity network assets pursuant to the authorised transaction (including costs incurred for that purpose) is likely to result in an increase in network charges,
(b) an annual report, for each completed authorised transaction, on compliance by the authorised network operator with its obligations under its electricity price guarantee.
A public sector agency must comply with any reasonable request by the Price Commissioner that the agency provide information to the Price Commissioner for the purposes of reports under this section (with any dispute as to the reasonableness of a request to be decided by the Secretary of the Cabinet Office).
The Price Commissioner is not subject to control or direction by or on behalf of the Government in connection with any report of the Price Commissioner.
An authorised network operator must within 2 months after the end of each financial year provide to the Price Commissioner such information as the Price Commissioner may reasonably require to enable the Price Commissioner to report on compliance by the authorised network operator with its obligations under its electricity price guarantee.
In this section—
(a) a standard control service or prescribed transmission service,
(b) any other service prescribed by the regulations.
As soon as reasonably practicable after the commencement of this Act, the Treasurer must commission and publish an independent review of the Deloitte Access Economics report entitled “Economic Impact of State Infrastructure Strategy—Rebuilding NSW” published in November 2014.
Within 12 months after completion of the last authorised transaction under this Act, the Treasurer is to commission and publish an independent review that—
(a) reviews the powers of the Price Commissioner under this Act (with the review to include consultation with stakeholders), and
(b) determines whether network charges have increased as a result of the authorised transactions.
The proceeds of the transfer of electricity network assets to the private sector pursuant to an authorised transaction (
The transaction proceeds include any payment to a public sector agency that is a periodic lease payment under a lease of electricity network assets to the private sector pursuant to an authorised transaction.
The transaction proceeds paid to the State are to be paid in such proportions as the Treasurer directs into—
(a) the Restart NSW Fund (
the Restart Fund ) established under the Restart NSW Fund Act 2011, and(b) the Residual Liabilities Fund established under this Part.
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 electricity network assets transferred for the purposes of an authorised transaction,
(b) deduction of such amounts as the Treasurer approves to reimburse public sector agencies for payments made by them in respect of any tax, duty, fee or charge imposed by any Act or law of the State or any other jurisdiction in connection with a transaction arrangement,
(c) deduction of such amounts as the Treasurer approves to satisfy any liability of a public sector agency arising under or in connection with a transaction arrangement,
(d) deduction of such amounts as the Treasurer approves to meet expenses reasonably incurred by public sector agencies for the purposes of an authorised transaction.
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.
The deductions authorised to be made from the transaction proceeds may be made before payment of the transaction proceeds into the Restart Fund or Residual Liabilities Fund, or may be made by payment from either or both of those Funds.
The requirements of this section do not affect the validity of a transaction arrangement.
There is to be established in the Special Deposits Account a fund called the Electricity Network Residual Liabilities Fund (
There is payable into the Residual Liabilities Fund—
(a) such amount as the Treasurer directs to be paid out of the transaction proceeds under section 11, and
(b) interest and any other amounts accruing from time to time from the investments of the Residual Liabilities Fund.
There is payable from the Residual Liabilities Fund such amounts as the Treasurer directs from time to time—
(a) for payment in discharge of any liabilities of a public sector agency that arise in connection with an authorised transaction or electricity network assets (
residual transaction liabilities ), or(b) for payment to the Consolidated Fund or the Restart Fund, or
(c) for payment of expenses incurred in relation to the administration of the Residual Liabilities Fund.
For the purposes of this section, assets, rights and liabilities do not cease to be electricity network assets when they are transferred to the private sector for the purposes of an authorised transaction.
The Treasurer may invest money in the Residual Liabilities Fund in any way that the Treasurer considers appropriate.
The Treasurer has and may exercise all such functions as are necessary or convenient for the purposes of an authorised transaction. The functions conferred on the Treasurer by any other provision of this Act do not limit the Treasurer’s functions under this section.
An authorised transaction is to be effected as directed by the Treasurer and can be effected in any manner considered appropriate by the Treasurer.
There are no limitations as to the nature of the transactions or arrangements that can be entered into or used for the purposes of an authorised transaction.
Electricity network assets can be transferred pursuant to this Act whether or not the land in, on or over which they are situated is owned by the owner of the assets.
Section 51 of the ES Act provides that electricity works are owned separately from the land in, on or over which they are situated and ownership of land in, on or over which electricity works are situated does not constitute ownership of those works.
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 an authorised transaction.
A statutory State owned corporation may be established under this Act as a transaction SOC for the purposes of an authorised transaction.
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.
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.
The portfolio Minister of a SOC established under this section is the Minister administering the Energy Services Corporations Act 1995.
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.
The Treasurer may for the purposes of an authorised transaction establish, or direct the establishment of, companies as transaction companies in any of the following ways—
(a) the formation or acquisition by or on behalf of the State or a SOC of a company limited by shares, so that all the issued shares in the company are held by or on behalf of the State or a SOC (or both),
(b) the formation or acquisition of a company as a wholly owned subsidiary company of a transaction company,
(c) the conversion of an electricity network SOC or transaction SOC into a company limited by shares as provided by Schedule 3.
A transaction company that is a public sector agency may be converted from one kind of company to any other kind of company.
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.
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.
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.
If an electricity network SOC becomes a transaction company by being converted into a company under this section, a reference in this Act to the electricity network SOC includes a reference to that transaction company.
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.
Each electricity network SOC and transaction entity has and may exercise all such functions as are necessary or convenient for the purposes of an authorised transaction.
The functions conferred by this section are in addition to any other functions that an electricity network SOC or a transaction entity has apart from this section and those other functions do not prevent or otherwise limit the exercise of the additional functions conferred by this section.
The Treasurer may act for or on behalf of an electricity network SOC or a transaction entity in the exercise of any of its functions for the purposes of an authorised transaction while it is a public sector agency.
Each electricity network SOC and transaction entity is subject to the direction and control of the Treasurer in the exercise of any of its functions for the purposes of an authorised transaction while it is a public sector agency.
The Treasurer may give directions for the purposes of an authorised transaction to an electricity network SOC or transaction entity, and to the directors and other officers of an electricity network SOC or transaction entity. Any such directions must be complied with by the electricity network SOC, the transaction entity or the directors or other officers concerned.
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.
The power to give directions under this section extends to directions with respect to the way in which an electricity network SOC or transaction entity is to conduct its business and other affairs.
Action taken by an electricity network SOC or transaction SOC to comply with a direction of the Treasurer under this Act does not require the approval of the voting shareholders or portfolio Minister of the corporation.
Anything done or omitted to be done by a director or other officer of an electricity network SOC or 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.
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.
In this Part,
The Treasurer may, for the purposes of an authorised transaction, by order in writing transfer the employment of a networks employee to the employment of another public sector agency.
A transfer of employment under this section does not require the consent of the person transferred.
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 the electricity network SOC concerned.
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.
The Treasurer may, for the purposes of an authorised transaction, by order in writing transfer the employment of a networks employee (a
A transfer of employment under this section does not require the consent of the networks employee transferred.
The employment of a transferred employee with the new employer is to be on the same terms and conditions as applied to the employee as a networks employee immediately before the transfer of employment.
On the transfer by order under this Part of an employee’s employment from one employer (the
If the employee is an apprentice or trainee under the Apprenticeship and Traineeship Act 2001—
(a) the new employer must apply under section 20 of that Act for approval to the transfer of the apprenticeship or traineeship to the new employer, and
(b) consent to the transfer is not required to be given by the apprentice or trainee or the current employer (despite section 20 (4) of the Apprenticeship and Traineeship Act 2001).
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.
The Treasurer may in connection with the operation of Schedule 4 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 that Schedule, and such a certificate is evidence of the matters certified.
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 networks employee before the transfer of the employee’s employment.
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.
A provision of this Part (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.
The Treasurer may make vesting orders under Schedule 5 for the purposes of an authorised transaction.
The Treasurer may by order in writing for the purposes of an authorised transaction direct that specified assets to which this section applies are (if they are fixtures) severed from the land on, under or above which they are situated.
The effect of such an order is that the assets concerned are deemed to be severed from the land concerned and may be dealt with as personal property separate from the land for the purposes of an authorised transaction.
This section applies to assets designated by the Treasurer by order in writing to be assets to which this section applies. Assets may be designated as assets to which this section applies only if they are owned by an electricity network SOC (whether or not the land concerned is owned by an electricity network SOC or another public sector agency).
The severance of an asset from land under this section does not affect the right of the asset to be situated on, under or above that land and does not affect any right to drain water or sewage from the asset across and through the land or to use any means of drainage of water or sewage from the asset across and through the land.
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 operator of any electricity network assets pursuant to an authorised transaction.
Such a direction (a
(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.
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.
A grant direction may direct the grant of more than one relevant authorisation to transfer or replace an existing relevant authorisation.
The Treasurer is to consult with the relevant administering agency before giving a grant direction for a relevant authorisation.
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.
Anything done by an electricity network SOC or other public sector agency in compliance with a condition or endorsement of a relevant authorisation in relation to electricity network assets of which a person is the new operator is taken to have been done by the new operator for the purposes of any corresponding condition or endorsement of a relevant authorisation granted to the new operator pursuant to this section.
A relevant authorisation granted to an electricity network SOC or to the new operator of electricity network assets may not be suspended or cancelled on the ground of the conversion of the electricity network SOC or new operator to a company or on the ground of any change that has occurred in the officers or shareholders of the company as a result of that conversion or pursuant to a transaction arrangement.
In this section—
(a) a public sector agency to which any electricity network assets are transferred for the purposes of an authorised transaction, or
(b) a person (or the nominee of a person) who becomes the owner, controller or operator of a transacted distribution system or transacted transmission system pursuant to an authorised transaction.
Land (including an interest in land) may be acquired for the purposes of an authorised transaction by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991.
Land may be acquired under this section only by an electricity network SOC, a transaction entity or the Electricity Assets Ministerial Holding Corporation (each an
(a) land on which electricity network assets of an electricity network SOC were situated on the date of assent to this Act and continue to be situated, or
(b) land that on the date of assent to this Act was used or occupied by an electricity network SOC for or in connection with the exercise of any function of the electricity network SOC and continues to be so used or occupied, or
(c) land that adjoins land referred to in paragraph (a) or (b) and that is or may be required to be used or occupied in connection with the use of electricity network assets.
In the case of land used (but not occupied) by an electricity network SOC for or in connection with the exercise of any function of the electricity network SOC, such as land used for the purposes of access, the power conferred by this section to acquire the land is limited to a power to acquire an interest in the land sufficient to allow that use of the land to continue.
The Treasurer may direct a public sector agency as to how the public sector agency must exercise any function of the agency in connection with the acquisition of land from the agency under this section. If a public sector agency fails to exercise a function in compliance with a direction under this section within 1 month after it is given, the Treasurer may exercise the function for or on behalf of the agency to give effect to the direction.
A public sector agency is not entitled to compensation under the Land Acquisition (Just Terms Compensation) Act 1991 as the owner of land acquired pursuant to this section.
Land acquired under this section is deemed to be an asset of an electricity network SOC for the purposes of this Act and the acquiring authority is deemed to be an electricity network SOC for the purposes of this Act while it holds the land.
Land acquired pursuant to this section is an electricity network asset for the purposes of an authorised transaction whether or not it was an electricity network asset before it was acquired.
The Treasurer may by direction in writing to an electricity network SOC adjust the objectives and functions of the electricity network SOC in such manner as the Treasurer considers appropriate to ensure that the objectives and functions of the electricity network SOC remain appropriate, having regard to—
(a) the capacity of the electricity network SOC to give effect to or exercise its existing objectives and functions following the transfer of any of its electricity network assets for the purposes of an authorised transaction, and
(b) the objectives and functions that would be appropriate for any remaining electricity network assets of the electricity network SOC.
The objectives and functions of an electricity network SOC may be adjusted under this section by being limited or dispensed with but not by being broadened.
When electricity network assets comprising a distribution or transmission system are transferred to the private sector for the purposes of an authorised transaction, the distribution system or transmission system becomes, and may be referred to in this or any other Act as, a
For the purposes of this or any other Act—
(a) an entity that controls or operates a transacted distribution system or transacted transmission system may be referred to as an
authorised distributor (for a distribution system) or anauthorised transmission operator (for a transmission system), and(b) authorised distributors and authorised transmission operators may be referred to as
authorised network operators , and(c) the public sector agency that is the lessor of electricity network assets comprising a transacted distribution system or transacted transmission system may be referred to as
the lessor orthe owner of the transacted distribution system or transacted transmission system.
A reference (however expressed) in any Act or statutory rule to the distribution system, transmission system or electricity works of a network operator is (in the context of the controller or operator of a transacted distribution system or transacted transmission system) a reference to the distribution system, transmission system or electricity works controlled or operated by the network operator.
Ownership of electricity network assets by the lessor of a transacted distribution system or transacted transmission system is to be treated as ownership by the Crown for the purposes of any provision of an Act that confers a right, privilege or immunity on the Crown as an owner of land or other assets.
The lessor of a transacted distribution system or transacted transmission system is not a distributor, transmission operator or network operator for the purposes of the ES Act or the regulations under that Act except for the purposes of the following provisions (
(a) section 44 (Acquisition of land),
(b) section 45 (Erection and placement of electricity works),
(c) section 50 (Charges for placement of electricity works),
(d) section 51 (Ownership of electricity works),
(e) section 53 (Protection of certain electricity works),
(f) section 85 (Transfer of staff, assets, rights and liabilities),
(g) such other provisions as may be prescribed by the regulations under this Act.
For the purposes of the application of the relevant provisions to the lessor of a transacted distribution system or transacted transmission system, the lessor is considered to have the functions of an authorised distributor or authorised transmission operator.
A reference in any Act to the functions of a network operator includes—
(a) in the case of an authorised distributor—the functions of establishing, maintaining and operating facilities for the distribution of electricity, or
(b) in the case of an authorised transmission operator—the functions (its
electricity functions ) of establishing, maintaining and operating facilities for the transmission of electricity and the functions (itstelecommunications functions ) of utilising and developing its facilities for the transmission of electricity to carry out telecommunications services.
Divisions 2, 2A and 3 of Part 5 of the ES Act apply to and in respect of the exercise by an authorised transmission operator of its telecommunications functions as if the references in those Divisions to electricity works included references to telecommunications works.
An authorised transmission operator, may, for example, for the purposes of exercising its telecommunications function, exercise powers of entry under, and in accordance with, Division 3 of Part 5 of the ES Act.
Any power or right that an authorised transmission operator has under an affected easement with respect to the exercise of its electricity functions is taken to extend to the exercise of the authorised transmission operator’s telecommunications functions.
Section 44 of the ES Act authorises an authorised transmission operator to acquire land by agreement or compulsorily for the purposes of the exercise of its electricity functions (whether or not the land acquired may also be used for the purposes of its telecommunications functions) but that section does not authorise it to acquire land compulsorily solely for the purposes of the exercise of its telecommunications functions.
In this section—
(a) that was an affected easement under section 6C of the Energy Services Corporations Act 1995 immediately before the commencement of this section, or
(b) that is acquired compulsorily after that commencement.
If an authorised network operator of a transacted distribution system or transacted transmission system contravenes a provision of the ES Act or the regulations under that Act in the course of or in connection with the operation of the distribution or transmission system, each authorised network operator of the distribution or transmission system is taken to have contravened the same provision.
An authorised network operator may be proceeded against and convicted under a provision pursuant to this section whether or not any other authorised network operator of the distribution or transmission system has been proceeded against or convicted under that provision.
This section does not affect any liability imposed on an authorised network operator for an offence actually committed by the authorised network operator.
The regulations may provide that a reference in a specified provision of any other Act or an instrument made under any other Act to a public authority includes, or does not include, a reference to the owner, controller or operator of a transacted distribution system or transacted transmission system.
In this section,
The regulations may modify any provision of the ES Act that confers a function on a network operator for the purposes of adapting the application of the provision to or in respect of the functions of the owner, controller or operator of a transacted distribution system or transacted transmission system.
The land acquisition functions of the lessor of a transacted distribution system or transacted transmission system cannot be exercised by the lessor in the lessor’s own right but can be exercised by another network operator of the distribution or transmission system on behalf of the lessor, and the other network operator has full power and authority to exercise those functions on behalf of the lessor.
The following provisions apply to the exercise of land acquisition functions by a network operator of a transacted distribution system or transacted transmission system on behalf of the lessor—
(a) the exercise of any such function by a network operator on behalf of the lessor is subject to any agreement between the network operator and the lessor concerning the exercise of those functions and to any agreement between network operators as to which of them is to exercise the function on behalf of the lessor in a particular case,
(b) land (including an interest in land) that is acquired in the exercise of land acquisition functions by a network operator is acquired on behalf of and vests in the lessor,
(c) the lessor has no liability in connection with the exercise of any land acquisition function on its behalf by a network operator (other than a liability to the network operator arising under an agreement between the lessor and the network operator as to the exercise of those functions) and any such liability that the lessor would otherwise have becomes instead a liability of the network operator,
(d) the lessor cannot be made a party to any proceedings in connection with the exercise of any land acquisition function on its behalf by a network operator (other than proceedings in connection with an agreement between the lessor and the network operator as to the exercise of those functions).
A network operator of a transacted distribution system or transacted transmission system cannot exercise a land acquisition function in its own right (and can only exercise that function on behalf of the lessor as provided by this section) if the function relates to land of which the lessor of the transacted distribution system or transacted transmission system will become the owner.
The approval of the Minister under section 44 (3) of the ES Act in respect of the acquisition of land on behalf of the lessor of a transacted distribution system or transacted transmission system is not to be given unless the Minister is satisfied that all reasonable steps have been taken to enter into an agreement with the owner of the land to acquire the land and those steps have not resulted in any such agreement.
In this section,
(a) functions under section 44 (Acquisition of land) of the ES Act,
(b) any function that concerns the creation, assurance or extinguishment of an interest in land.
Section 53 of the ES Act applies in respect of electricity works that form part of a transacted distribution system or transacted transmission system as if—
(a) a reference in that section to the commencement of the Electricity Supply Amendment (Protection of Electricity Works) Act 2006 were a reference to the completion of the authorised transaction as a result of which the electricity works form part of that transacted distribution system or transacted transmission system, and
(b) a reference to the network operator included a reference to a network operator after the completion of that authorised transaction.
Section 53 of the ES Act does not apply to prevent an action lying by the owner of a transacted distribution system or transacted transmission system against a network operator that controls or operates the system.
The Treasurer may for the purposes of an authorised transaction request the Minister under the ES Act to grant a licence referred to in section 13 or 93A of that Act to an entity nominated by the Treasurer as the new operator of a transacted distribution system or transacted transmission system.
The Minister under the ES Act is to grant a licence in accordance with the Treasurer’s request. The licence is to be granted on terms and conditions approved by the Treasurer and as may be required by or under the ES Act.
Clauses 2, 3 and 4 of Schedule 2 to the ES Act do not apply in respect of the grant of a licence pursuant to a request under this section.
The boundaries of the distribution district for a transacted distribution system cannot be varied under section 84 of the ES Act except with the consent in writing of the authorised distributor.
If the boundaries of the distribution district for a transacted distribution system are varied under section 84 of the ES Act, the power of the Minister under section 85 (Transfer of staff, assets, rights and liabilities) of the ES Act to order the transfer of staff, assets, rights or liabilities of a distributor includes the power to order the transfer of staff, assets, rights or liabilities of the owner or controller of the distribution system concerned.
The exception provided for a sublessee in section 21C of the Land Tax Management Act 1956 does not apply to a sublessee under an authorised transaction sublease and the sublessee is liable for land tax accordingly.
An
For the purposes of any environmental planning instrument, the supply of electricity by an authorised network operator is a public utility undertaking carried on by the authorised network operator as an electricity supply authority.
For the purposes of any relevant planning law provision, the carrying out of development by or on behalf of an authorised network operator for the purpose of an electricity transmission or distribution network (within the meaning of State Environmental Planning Policy (Infrastructure) 2007) constitutes the carrying out of that development by the authorised network operator as an electricity supply authority and public authority.
After a distribution system or transmission system becomes a transacted distribution system or transacted transmission system, a reference in an environmental planning instrument to the former network operator is to be read as a reference to the authorised network operator that operates the transacted distribution system or transacted transmission system.
In this section—
(a) any provision of an environmental planning instrument that permits specified development to be carried out with or without development consent, or
(b) any provision of an environmental planning instrument that deals with the obligations of a public authority in connection with the carrying out of development by or on behalf of the public authority that may be carried out without development consent (including the carrying out of an activity to which Part 5 of the Planning Act applies).
Nothing done for the purposes of an authorised transaction requires the concurrence of the Minister under section 38 or 39 of the Coastal Protection Act 1979.
In this section—
(a) any transaction arrangement,
(b) a vesting of assets, rights or liabilities by operation of Schedule 5 (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 an authorised transaction,
(d) any matter connected with the corporate conversion of an electricity network SOC or transaction SOC for the purposes of an authorised transaction,
(e) any transaction, agreement or other arrangement (a
post-completion arrangement ) occurring within 2 years after completion of an authorised transaction and certified by the Treasurer to have been entered into in connection with the transfer of electricity network assets to the private sector pursuant to the authorised transaction,(f) such other matters for the purposes of an authorised transaction as may be prescribed by the regulations.
State tax is not payable by a public sector agency in relation to a relevant matter.
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.
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.
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.
An order may be made by the Treasurer under this section before or after the liability to pay the State tax concerned accrues.
The Treasurer must give a copy of an order under this section to the Chief Commissioner of State Revenue.
None of the following provisions operate to prevent, restrict or otherwise limit the carrying out of a transaction arrangement or the exercise of a function for the purposes of an authorised transaction—
(a) any provision of the State Owned Corporations Act 1989,
(b) any provision of the Energy Services Corporations Act 1995,
(c) any provision of the constitution of a statutory SOC or a subsidiary of a statutory SOC.
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.
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 electricity network assets for the purposes of an authorised transaction is satisfied by the enactment of this Act.
Part 6 of the Government Sector Finance Act 2018 does not apply to any transaction arrangement.
Section 38 (Secrecy) of the Government Sector Audit Act 1983 does not apply to or in respect of a report or communication that the Treasurer authorises the Auditor-General to make to a person for the purposes of an authorised transaction or for the purposes of the audit (before or after the completion of an authorised transaction) of records relating to electricity network assets transferred pursuant to an authorised transaction.
Section 52A of the Conveyancing Act 1919 does not apply to a contract entered into for the purposes of an authorised transaction.
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 electricity network assets for the purposes of an authorised transaction,
(c) the entering into or performance of obligations under a transaction, agreement or other arrangement for the purposes of an authorised transaction,
(d) a disclosure of information by, on behalf of or with the consent of a public sector agency for the purposes of an authorised transaction,
(e) anything else done or omitted to be done under or for the purposes of this Act or an authorised transaction.
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.
This section does not affect rights and obligations that arise under a transaction, agreement or other arrangement entered into for the purposes of an authorised transaction.
In this section—
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.
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.
In this section—
(a) whether made verbally or in writing, and
(b) whether negligent, false, misleading or otherwise.
The provisions of an electricity network assets lease (or of any agreement or arrangement entered into in connection with such a lease) dealing with the following matters have effect according to their terms despite any law or rule to the contrary—
(a) the term of the lease,
(b) the existence or exercise of an option under the lease,
(c) the payment of any amount by way of a premium for the lease and the retention of any such amount by the lessor or the State,
(d) the circumstances or conditions under which the lease may be terminated by the lessor or lessee,
(e) the application or operation of section 122, 130 or 133B of the Conveyancing Act 1919 to or in respect of the lease (or any lease under the lease),
(f) the application of a security provided in relation to the lease,
(g) the payment of a sum that is in the nature of a penalty,
(h) the ownership of, or the vesting or forfeiture of ownership of, any real or personal property on termination of the lease or on the occurrence of some other specified event or other thing,
(i) the pre-payment of amounts payable by way of rent under the lease and the retention of any such amounts by the lessor or the State,
(j) the continuance of the lease despite the occurrence of unintended or unforeseen circumstances,
(k) the continuance of the obligation to pay rent despite the occurrence of unintended or unforeseen circumstances,
(l) the amount payable in consequence of a breach or early termination of the lease, expiry of the lease or exercise of any option to extend the lease,
(m) the liability of the lessor or lessee in relation to the leased assets,
(n) the non-refundability of any payment made on account of rent, premium, option fee, outgoings, security deposit or otherwise,
(o) the operation of any set-off.
A provision of an electricity network assets lease (or of any agreement or arrangement entered into in connection with such a lease) that confers rights or obligations on the State is enforceable by or against the State even though the State is not a party to the lease, agreement or arrangement.
An electricity network assets lease may include provision for the removal by the lessee of any fixture severable from the land leased.
A scheme of arrangement, receivership, winding up or other external administration of a company is to be carried out in a manner that gives effect to this section.
A variation of an electricity network assets lease that varies the land to which the lease relates and that is made pursuant to a provision of the lease or another transaction arrangement—
(a) can be registered under the Real Property Act 1900 (despite section 55A (4) of that Act), and
(b) does not have the effect of surrendering or regranting the lease.
A certificate given by the Treasurer to the effect that a variation of lease is a variation to which subsection (5) applies is evidence of the matters certified.
In this section—
(a) a lease of electricity network assets entered into for the purposes of an authorised transaction, or
(b) a lease of electricity network assets that the Treasurer designates by order in writing as an electricity network assets lease for the purposes of this section, or
(c) a sublease under a lease referred to in paragraph (a) or (b).
The functions of the Electricity Assets Ministerial Holding Corporation include—
(a) to hold, on behalf of the Crown, electricity network assets acquired by it or transferred to it, and
(b) to carry on any activities or business that relate to any electricity network assets held by it, including demanding, collecting and receiving charges, levies, rates and fees, and
(c) such other functions for the purposes of an authorised transaction under this Act as may be prescribed by the regulations.
There is to be established in the Special Deposits Account a fund called the Electricity Assets Ministerial Holding Corporation Fund (
There is payable into the EAMHC Fund—
(a) all money received by the Corporation in the exercise of its functions under this or any other Act, and
(b) all money standing to the credit of any working account established for the Corporation under section 13A of the Public Finance and Audit Act 1983 on the commencement of this section.
There is payable from the EAMHC 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 under this or any other Act, or
(b) payment of expenses incurred in relation to the administration of the EAMHC Fund, or
(c) payment to the Consolidated Fund.
The Treasurer may invest money in the EAMHC Fund in any way that the Treasurer considers appropriate.
New South Wales Treasury Corporation (
The Treasurer may direct TCorp to do any one or more of the following for the purposes of an authorised transaction on terms and conditions determined by the Treasurer—
(a) provide borrowings (including by the lending of money) to or for the benefit of a private sector entity,
(b) effect a derivative arrangement for the benefit of or on behalf of a private sector entity,
(c) participate in any other arrangement or transaction approved by the Treasurer for the purposes of an authorised transaction.
TCorp is authorised and required to comply with a direction of the Treasurer under this section.
Words and expressions used in this section that are defined in the Government Sector Finance Act 2018 have the same meanings as in that Act.
The Treasurer may delegate to the Secretary of the Treasury, or to any other Government sector employee prescribed by the regulations, any function of the Treasurer under this Act except this power of delegation.
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.
Without limiting subsection (1), this Act has effect despite any privilege or immunity of the Crown in any of its capacities.
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.
A reference in this section to a State, Territory or the Commonwealth includes a reference to the Government of the State, Territory or Commonwealth.
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.
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.
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.
Despite subsection (1), the provision is not to have a particular valid application if—
(a) apart from this section, it is clear, taking into account the provision’s context and the purposes or objects underlying this Act, that the provision was intended to have that valid application only if every invalid application, or a particular invalid application, of the provision had also been within the legislative power of the Parliament of New South Wales, or
(b) the provision’s operation in relation to that valid application would be different in a substantial respect from what would have been its operation in relation to that valid application if every invalid application, or a particular invalid application, of the provision had been within the legislative power of the Parliament of New South Wales.
Subsection (2) does not limit the cases in which a contrary intention may be taken to appear for the purposes of subsection (1).
This section is in addition to, and not in derogation of, section 31 of the Interpretation Act 1987.
In this section—
(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.
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.
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).
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.
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.
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).
A document that is authorised or required by this Act or the regulations to be served on or given to any person may be served or given—
(a) in the case of a natural person—
(i) by delivering it to the person personally, or
(ii) by sending it by post to the address specified by the person for the giving or service of documents or, if no such address is specified, the residential or business address of the person last known to the person giving or serving the document, or
(iii) by sending it by facsimile transmission to the facsimile number of the person, or
(b) in the case of a body corporate—
(i) by leaving it with a person apparently of or above the age of 16 years at, or by sending it by post to, the head office, a registered office or a principal office of the body corporate or to an address specified by the body corporate for the giving or service of documents, or
(ii) by sending it by facsimile transmission to the facsimile number of the body corporate.
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.
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.
In this Act—
Designated date of completion of the authorised transaction of TransGrid’s electricity network assets: 16.12.2015. See Gazette No 114 of 16.12.2015, p 4085. Designated date of completion of the authorised transaction of Ausgrid’s electricity network assets: 1.12.2016. See Gazette No 103 of 1.12.2016, p 3367. Designated date of completion of the authorised transaction of Endeavour Energy’s electricity network assets: 14.6.2017. See Gazette No 62 of 14.6.2017, p 2502.
(a) licence, and
(b) agreement to lease or license, and
(c) concurrent lease or licence and any subletting or sublicensing (or concurrent subletting or sublicensing).
(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).
A person who is a public sector agency of another jurisdiction is a private sector person for the purposes of this Act.
(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 Electricity Assets Ministerial Holding Corporation,
(e) a Ministerial Holding Corporation established by or under this Act,
(f) a SOC,
(g) a public authority of the State (including a council under the Local Government Act 1993),
(h) any other person acting on behalf of the State (or the Crown in right of the State),
(i) 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,
(j) a wholly-owned subsidiary of a public sector agency.
Words and expressions used in this Act that are defined in the Electricity Supply Act 1995 have the same meanings as in that Act, except in so far as they are defined differently in this Act or the context or subject-matter otherwise indicates or requires.
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)—
An interest in or right in respect of electricity network assets that is created for the purposes of an authorised transaction is itself an electricity network asset.
Assets, rights and liabilities that are transferred to a public sector agency for the purposes of an authorised transaction and that were electricity network assets before their transfer remain electricity network assets after their transfer to the public sector agency.
Assets, rights and liabilities cease to be electricity network assets when they are transferred to the private sector for the purposes of an authorised transaction.
A lease does not cease to be a lease of electricity network assets merely because the assets leased cease to be electricity network assets after their transfer by lease to the private sector or because other assets become subject to the lease after it is entered into.
For the purposes of the application of this Act to a lease of electricity network assets—
(a) the assets leased remain electricity network assets despite their transfer by lease to the private sector, and
(b) any assets that become subject to such a lease pursuant to the terms of the lease or pursuant to a transaction arrangement after the lease is entered into are taken to be electricity network assets.
For the purposes of this Act, any act, matter or thing is done or has effect for the purposes of an authorised transaction if—
(a) it is done or has effect for the purpose of effecting or facilitating an authorised transaction, or
(b) it is done or has effect for any purpose connected with, ancillary or incidental to or consequential on an authorised transaction, or
(c) it is done or has effect for any purpose connected with the vesting of electricity network assets in, or the transfer of staff of an electricity network SOC to, a public sector agency at any time after completion of an authorised transaction, or
(d) it is done or has effect after the completion of an 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 any electricity network SOC or transaction entity.
The assets, rights and liabilities of a body corporate include the assets, rights and liabilities of a wholly-owned subsidiary of the body corporate and accordingly the following principles apply in the interpretation of this Act—
(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,(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.
This clause does not limit the ways in which assets, rights and liabilities can be transferred for the purposes of an authorised transaction and does not prevent the direct transfer of assets, rights and liabilities to a transferee.
If a transaction company is established by the conversion of an electricity network SOC into a company, a reference in a provision of this Act to an employee of an electricity network SOC includes a reference to an employee of the transaction company and a reference in the provision to the electricity network SOC is to be read as a reference to the transaction company.
No compensation is payable in connection with the transfer for the purposes of an authorised transaction of assets, rights or liabilities to a public sector agency (but this does not prevent such a transfer being for consideration).
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.
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.
A reference in this Schedule to
A reference in this Schedule 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.
A reference in this Schedule to an
For the purposes of this Schedule, the following persons are, subject to subclause (3),
(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,
(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).
If a person (
(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.
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).
A reference in this Schedule to a
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.
For the purposes of this Schedule, a person is
Subject to this clause, a person holds an
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.
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.
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.
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.
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,
(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.
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.
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.
A reference in this Schedule to the
(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.
A reference in this Schedule to
(a) whether or not having legal or equitable force, and
(b) whether or not based on legal or equitable rights.
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.
If a company—
(a) is limited both by shares and by guarantee, or
(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.
A particular type 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.
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).
A person holds a
A person also holds a
A person also holds a
A person also holds a
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—
where—
The regulations may make provision for or with respect to the application of this clause to interests in an entity other than a company.
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.
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.
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.
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.
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.
Nothing in this clause affects any liability imposed on a corporation for an offence committed by the corporation under this Schedule.
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.
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.
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.
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.
Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
Any such provision may, if the regulations so provide, have effect notwithstanding any other provision of this Schedule.
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.
The regulations may provide that a reference in a specified provision of an Act or an instrument under an Act to an electricity network SOC is to be read as a reference to a specified public sector agency or authorised network operator.
The Treasurer may by direction in writing to an electricity network SOC vary the information required to be included in a report of the operations of the SOC under section 23 of the State Owned Corporations Act 1989.
A distributor’s licence held (including deemed to be held) by an electricity network SOC under the Electricity Supply Act 1995 is cancelled on completion of an authorised transaction under this Act that results in the network infrastructure assets of the SOC being leased to a private sector entity.
The Governor may, by proclamation, amend Part 1A or 2 of Schedule 1 to the Energy Services Corporations Act 1995 by omitting the corporate name of an electricity network SOC, other than Essential Energy.
On the day on which a proclamation under this clause takes effect—
(a) the electricity network SOC whose corporate name is omitted by the proclamation is dissolved, and
(b) the State Owned Corporations Act 1989 is amended by omitting that name from Schedule 5, and
(c) the voting shareholders (within the meaning of the State Owned Corporations Act 1989) of the corporation cease to be members of the corporation, and
(d) 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, and
(e) any person who holds a statutory office of the corporation ceases to hold that office, and
(f) any person who ceases to be a member of the corporation or to hold an office because of the operation of this clause is not entitled to any compensation for the loss of that membership or office.
Section 15 (Transfer of staff, assets, rights and liabilities of dissolved energy services corporations) of the Energy Services Corporations Act 1995 applies in respect of the dissolution of an electricity network SOC by proclamation under this clause in the same way as it applies to the dissolution of an energy services corporation by that Act.
This clause does not operate to dissolve the joint board of energy distributors provided for by section 9A of the Energy Services Corporations Act 1995 or result in the members of that board ceasing to hold office.
The Treasurer may by order published in the Gazette convert an electricity network SOC into a corporation constituted as a Ministerial Holding Corporation for the purposes of this Act with the corporate name specified in the order.
For orders published under this subclause, see Gazettes No 114 of 16.12.2015, p 4085; No 103 of 1.12.2016, p 3367 and No 62 of 14.6.2017, p 2502. From April 2021, PCO is no longer updating notes in provisions of in force titles about related gazette notices. To search for related gazette notices, please use the Gazette Search functionality.
The Ministerial Holding Corporation so constituted is taken for all purposes, including the rules of private international law, to be a continuation of, and the same legal entity as, the electricity network SOC concerned and a reference in this Act to the electricity network SOC includes a reference to the Ministerial Holding Corporation.
Division 2 applies to a Ministerial Holding Corporation into which an electricity network SOC is converted under this clause in the same way as that Division applies to a Ministerial Holding Corporation established under that Division and so applies as if the functions of the Ministerial Holding Corporation included the function of holding, on behalf of the Crown, assets, rights and liabilities vested in it.
The following provisions are taken to have had effect immediately before an electricity network SOC is converted into a Ministerial Holding Corporation under this clause—
(a) the SOC 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 SOC ceases to be an energy services corporation under the Energy Services Corporations Act 1995 unless the regulations provide otherwise,
(c) the voting shareholders (within the meaning of the State Owned Corporations Act 1989) of the SOC cease to be members of the corporation,
(d) the board of directors of the SOC is dissolved and each member (including any acting member) of the board ceases to hold office as such,
(e) any person who holds a statutory office of the SOC ceases to hold that office,
(f) any person who ceases to be a member of the SOC or to hold an office because of the operation of this clause is not entitled to any compensation for the loss of that membership or office.
This clause does not operate to dissolve the joint board of energy distributors provided for by section 9A of the Energy Services Corporations Act 1995 or result in the members of that board ceasing to hold office.
When an electricity network SOC is converted into a Ministerial Holding Corporation under this clause, section 7.7 (Final annual GSF financial statements for former reporting GSF agencies) of the Government Sector Finance Act 2018 applies as if the SOC had been abolished.
The joint board of energy distributors provided for by section 9A of the Energy Services Corporations Act 1995 ceases to be a joint board for the purposes of that section on a day notified to the board by the Treasurer by order in writing and becomes instead the board of Essential Energy.
Sections 9A and 9B of the Energy Services Corporations Act 1995 cease to operate on and from the day notified under this clause.
In this Division—
• this Act
• Electricity Generator Assets (Authorised Transactions) Act 2012
• NSW Lotteries (Authorised Transaction) Act 2009
• Ports Assets (Authorised Transactions) Act 2012
• any other Act prescribed by the regulations.
• Electricity Assets Ministerial Holding Corporation established by the Electricity Generator Assets (Authorised Transactions) Act 2012
• Lotteries Assets Ministerial Holding Corporation established by the NSW Lotteries (Authorised Transaction) Act 2009
• Ports Assets Ministerial Holding Corporation established by the Ports Assets (Authorised Transactions) Act 2012.
The Treasurer may by order published in the Gazette constitute a corporation as a Ministerial Holding Corporation (an
More than one MHC may be established under this clause.
The affairs of an MHC are to be managed by the Treasurer who may authorise another Minister to exercise functions in relation to particular assets, rights and liabilities.
Any act, matter or thing done in the name of, or on behalf of, an MHC 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 MHC.
An MHC has the functions conferred or imposed on it by or under this or any other Act.
The functions of an MHC are—
(a) to hold, on behalf of the Crown, assets, rights and liabilities acquired by it or transferred to it by or under an authorised transaction Act, and
(b) to carry on any activities or business that relate to any assets, rights and liabilities held by it, including demanding, collecting and receiving charges, levies, rates and fees, and
(c) such other functions for the purposes of an authorised transaction under an authorised transaction Act as may be prescribed by the regulations.
A fund (an
Each MHC fund is to be administered by the Treasurer.
There is payable into an MHC fund all money received by the MHC in the exercise of its functions under this or any other Act.
There is payable from an MHC fund such amounts as the Treasurer directs from time to time for—
(a) payment of expenditure by the MHC 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.
The Treasurer may invest money in an MHC fund in any way that the Treasurer considers appropriate.
Assets, rights and liabilities held by an MHC or existing MHC may be transferred by the MHC or existing MHC to any other public sector agency whether or not the transfer is for the purposes of an authorised transaction under an authorised transaction Act.
Part 3 (Audit) of the Government Sector Audit Act 1983 and Division 7.2 (Financial reporting) of the Government Sector Finance Act 2018 do not apply to an MHC in respect of a financial year of the MHC in which the MHC holds no assets, rights or liabilities.
The Treasurer may by order published in the Gazette change the name of an MHC or existing MHC.
The regulations may dissolve an MHC or existing MHC.
This clause provides transitional arrangements for the exercise of environmental assessment functions commenced to be exercised before the appropriate regulations commenced to apply to those functions. It does not relate to environmental assessment functions commenced to be exercised after the appropriate regulations commenced to apply to those functions.
An authorised network operator must exercise its environmental assessment functions in respect of an activity that were commenced to be exercised before the appropriate regulations commenced to apply to the authorised network operator (including functions commenced to be exercised by the predecessor of the authorised network operator)—
(a) in a manner with which the Minister for Planning concurs, or
(b) in compliance with appropriate regulations for the activity.
For the purposes of this clause, environmental assessment functions exercised in respect of an activity by the predecessor of an authorised network operator are taken to have been exercised by the authorised network operator.
In this clause—
(a) regulations under section 111A of the Planning Act that apply to an activity of an authorised network operator as a prescribed determining authority (unless paragraph (b) applies), or
(b) if the regulations referred to in paragraph (a) provide for the approval of a code in respect of the activity—the code approved under those regulations.
(Repealed)
See also the Electricity Retained Interest Corporations Act 2015.
Electricity Network Assets (Authorised Transactions) Act 2015 No 5. Assented to 4.6.2015. Date of commencement, Sch 6 excepted, assent, sec 2 (1); date of commencement of Sch 6: not in force. This Act has been amended as follows—
No 58 | Statute Law (Miscellaneous Provisions) Act (No 2) 2015. Assented to 24.11.2015. Date of commencement of Sch 2, 8.1.2016, sec 2 (1). | |
No 27 | Statute Law (Miscellaneous Provisions) Act 2016. Assented to 7.6.2016. Date of commencement of Sch 2, 8.7.2016, sec 2 (1). | |
No 12 | Transport Administration Amendment (Transport Entities) Act 2017. Assented to 11.4.2017. Date of commencement of Sch 1, 1.7.2017, sec 2 and 2017 (330) LW 30.6.2017. | |
No 22 | Statute Law (Miscellaneous Provisions) Act 2017. Assented to 1.6.2017. Date of commencement of Sch 2, 7.7.2017, sec 2 (3). | |
No 18 | Transport Administration Amendment (Sydney Metro) Act 2018. Assented to 23.5.2018. Date of commencement, 1.7.2018, sec 2 and 2018 (275) LW 22.6.2018. | |
No 70 | Government Sector Finance Legislation (Repeal and Amendment) Act 2018. Assented to 22.11.2018. Date of commencement of Sch 3, 1.12.2018, sec 2 (1) and 2018 (673) LW 30.11.2018; date of commencement of Sch 4.29, 1.7.2021, sec 2(1) and 2021 (305) LW 25.6.2021. | |
No 30 | Statute Law (Miscellaneous Provisions) Act 2020. Assented to 27.10.2020. Date of commencement of amendments made by Sch 4, 22.1.2021, sec 2(4). | |
No 35 | Statute Law (Miscellaneous Provisions) Act (No 2) 2023. Assented to 30.10.2023. Date of commencement of Sch 4.9, assent, sec 2(c). | |
No 38 | Waste Recycling and Processing Corporation (Authorised Transaction) Amendment Act 2023. Assented to 30.10.2023. Date of commencement, assent, sec 2. | |
No 27 | Property NSW Amendment Act 2024. Assented to 31.5.2024. Date of commencement, assent, sec 2. |
This Act has been amended by sec 30C of the Interpretation Act 1987 No 15.
Sec 3 | Am 2017 No 12, Sch 1.3; 2017 No 22, Sch 2.9; 2018 No 18, Sch 2.6; 2020 No 30, Sch 4.15; 2024 No 27, Sch 2.4. |
Sec 8 | Am 2023 No 35, Sch 4.9. |
Sec 12 | Am 2018 No 70, Sch 3.17 [1]. |
Sec 38 | Am 2016 No 27, Sch 2.14. |
Sec 45 | Subst 2018 No 70, Sch 3.17 [2]. |
Sec 46 | Am 2018 No 70, Sch 4.29[1]. |
Sec 51 | Am 2018 No 70, Sch 3.17 [3]. |
Sec 52 | Am 2018 No 70, Sch 3.17 [4] [5]. |
Sch 3 | Am 2018 No 70, Sch 4.29[2]. |
Sch 7 | Am 2015 No 58, Sch 2.8; 2018 No 70, Schs 3.17 [6], 4.29[3] [4]; 2023 No 38, Sch 2.1[1] [2]. |
Sch 8 | Rep 1987 No 15, sec 30C. |
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