National Rail Corporation Agreement Act 1992 (Cth)
This compilation was prepared on 3 October 2006
taking into account amendments up to Act No. 101 of 2006
The text of any of those amendments not in force
on that date is appended in the Notes section
The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section
Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra
Contents
This Act may be cited as the
National Rail Corporation Agreement Act 1992 .
This Act commences on a day to be fixed by Proclamation.
In this Act, unless the contrary intention appears:
Agreement means:
(a) the agreement made on 30 July 1991 between the Commonwealth and the States of New South Wales, Victoria, Queensland and Western Australia, a copy of which is set out in the Schedule; or
(b) if that agreement is or has been amended or affected by another agreement—that agreement as so amended or affected.
assets means any legal or equitable interest (whether present or future and whether vested or contingent) in real or personal property of any description (including, for example, securities, other things in action, and documents).
Commonwealth rail freight agreement means an agreement where the Company is required or authorised by or under the Agreement to be substituted for the Commonwealth, or any authority of the Commonwealth, as a party to the agreement.
Commonwealth rail freight assets means assets of the Commonwealth, of the Australian National Railways Commission, or of any other authority of the Commonwealth, that are required or authorised to be transferred to, or acquired by, the Company by or under the Agreement.
Company means National Rail Corporation Limited (Australian Company Number 052 134 362).
eligible party , in relation to a Commonwealth rail freight agreement, means any of the following for which the Company is required or authorised by or under the Agreement to be substituted as a party to the agreement:
(a) the Commonwealth;
(c) any authority of the Commonwealth.
liabilities means liabilities, debts and obligations (whether present or future and whether vested or contingent).
rights means rights, powers, privileges and immunities (whether present or future and whether vested or contingent).
This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory .
The agreement made on 30 July 1991 between the Commonwealth and the States of New South Wales, Victoria, Queensland and Western Australia, a copy of which is set out in the Schedule, is approved.
(1) Each party to the Agreement, and each authority of such a party:
(a) may do anything the Agreement authorises it to do; and
(b) must observe the provisions of the Agreement, in so far as they are applicable to it.
(2) Subsection (1) has effect in relation to a party or authority only in so far as it is within the power of the Parliament to provide in relation to that party or authority as mentioned in that subsection.
The Commonwealth may acquire, hold, dispose of, or deal with, shares in the Company in accordance with the Agreement.
Neither the Company, nor any of its subsidiaries:
(a) is, or represents, the Crown; or
(b) is an instrumentality or agency of the Crown; or
(c) is entitled to any immunity or privilege of the Crown; or
(d) is a public authority for any purpose (for example, the purposes of the
Corporations Act 2001 or section 50‑25 of theIncome Tax Assessment Act 1997 ).
(1) The Minister may direct in writing that specified Commonwealth rail freight assets are vested in the Company.
(2) A direction may only be made with the Company’s written approval.
(3) The consideration for a vesting is:
(a) the issue to the Commonwealth of shares in the Company in accordance with the Agreement; or
(b) such consideration as the direction specifies (which may include consideration of the kind referred to in paragraph (a)).
(4) Where a direction comes into operation, the following provisions apply, except as provided in the direction:
(a) the specified Commonwealth rail freight assets vest in the Company because of this section and without the need for a conveyance, transfer, assignment or other assurance;
(b) the Commonwealth’s rights and liabilities relating to the assets become rights and liabilities of the Company because of this section;
(c) all proceedings by or against the Commonwealth that relate to the assets and are pending immediately before the vesting are taken to be proceedings pending by or against the Company;
(d) anything done, or not done, in relation to the assets, before the vesting, by, to or in relation to the Commonwealth is (so far as it has any effect) taken to have been done, or not done, by, to or in relation to the Company, as the case may be.
(5) A reference in subsection (4) to the Commonwealth is, in so far as assets of or any authority of the Commonwealth, vest in the Company, a reference to that authority.
(6) This section does not limit the use of any other method to transfer Commonwealth rail freight assets to the Company.
Where:
(a) an asset vests in the Company because of section 9; and
(b) a person or authority has power, under a law of the Commonwealth or of a State or Territory, to register, record or otherwise give effect to:
(i) transactions affecting that kind of asset; or
(ii) documents relating to such transactions;
the person or authority may do whatever is necessary or desirable to give effect to, or reflect, the vesting (for example, making entries in a register).
Nothing in this Act prevents a law of a State or Territory (whenever enacted or made) from imposing a liability to pay an amount of stamp duty, or of any other fee or charge, because of the making of an instrument under section 9, if:
(a) it is reasonable to expect that a corresponding amount of stamp duty, or of that other fee or charge, would have been payable under a law of that State or Territory if the assets vested in the Company because of the instrument had instead been transferred to the Company by an instrument in writing executed by the parties to the transfer; and
(b) the first‑mentioned amount does not exceed what it is reasonable to expect that the corresponding amount would have been.
(1) The Minister may direct in writing that the Company is substituted for a specified eligible party as a party to specified Commonwealth rail freight agreements.
(2) A direction may only be made with the Company’s written approval.
(3) Where a direction comes into operation, the following provisions apply, except as provided in the direction:
(a) because of this section, the Company is substituted for the specified eligible party as a party to the specified agreements;
(b) the eligible party’s rights and liabilities under, and in relation to, the agreements become rights and liabilities of the Company because of this section;
(c) all proceedings by or against the eligible party that relate to the agreements and are pending immediately before the direction comes into operation are taken to be proceedings pending by or against the Company;
(d) anything done, or not done, under or in relation to the agreements, before the direction comes into operation, by, to or in relation to the eligible party is (so far as it has any effect) taken to have been done, or not done, by, to or in relation to the Company, as the case may be.
(4) This section does not limit the use of any other method to substitute the Company for another person as a party to an agreement.
(5) Nothing in this section limits, or is limited by, anything in section 9.
(1) The Auditor‑General is taken to have been appointed under subsection 327(3) of the Corporations Law of the Australian Capital Territory as auditor of the Company, with effect from the commencement of this section.
(2) Sections 328 and 329 of the
Corporations Act 2001 do not apply in relation to the Company so long as no person owns beneficially (whether as sole owner or as co‑owner) more voting shares (within the meaning of that Act) in the Company than the Commonwealth so owns.(3) Nothing done, or omitted to be done, by the Auditor‑General as auditor of the Company makes the Auditor‑General liable to be prosecuted for an offence.
(4) Because of this subsection, the auditor or auditors of the Company in office immediately before the commencement of this section ceases or cease at that commencement to hold office.
(5) No amount is payable to a person because of, or in connection with, an auditor of the Company ceasing to hold office because of subsection (4).
(6) Subsection (5) does not affect:
(a) an entitlement in so far as it relates to a period before the commencement of this section; or
(b) an entitlement under section 331 of the
Corporations Act 2001 or under section 14 of this Act.(7) Subject to subsection (6), this section has effect despite any provision of the
Corporations Act 2001 .
(1) Where, but for this section, the operation of this Act (in particular, section 9 or 12) would result in the acquisition of property from a person otherwise than on just terms, the Commonwealth must pay to the person such reasonable amount of compensation as the Commonwealth and the person agree on or, failing agreement, as is determined by a court of competent jurisdiction.
(2) Any damages or compensation recovered, or other remedy given, in proceedings begun otherwise than under this section must be taken into account in assessing compensation payable in proceedings begun under this section that arise out of the same event or transaction.
(3) In this section:
acquisition of property andjust terms have the same respective meanings as in paragraph 51(31) of the Constitution.
person does not include any authority of the Commonwealth.
(1) Money payable by the Commonwealth under the Agreement must be paid out of money lawfully available for the purpose.
(2) Nothing in this Act (in particular, sections 6 and 14) appropriates money.
(1) This section applies where, under the
Corporations Act 2001 , the Company sends to:
(a) the Commonwealth as the holder of shares in the Company; or
(b) a person who holds shares in the Company as nominee for the Commonwealth;
copies of the documents required by that Act to be laid before a particular annual general meeting of the Company.
(2) The Minister must cause to be laid before each House of the Parliament, during the period beginning on the first sitting day, and ending on the 15th sitting day, of that House after that annual general meeting, copies of the documents referred to in subsection (1) (whether made from the copies first referred to in subsection (1) or otherwise).
The Governor‑General may make regulations, not inconsistent with this Act, prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act or the Agreement.
Sections 3 and 5
THIS AGREEMENT is made on 30th day of July 1991.
BETWEEN:
THE COMMONWEALTH OF AUSTRALIA of the first part
THE STATE OF NEW SOUTH WALES of the second part
THE STATE OF VICTORIA of the third part
THE STATE OF QUEENSLAND of the fourth part and
THE STATE OF WESTERN AUSTRALIA of the fifth part
WHEREAS:
A. To achieve micro‑economic reform in the Australian rail industry, the Commonwealth, State and Territory Governments have agreed that a company should be established for the purpose of conducting, among other things, rail freight operations in Australia on a commercial basis in accordance with principles compatible with those set out in the Heads of Government Agreement on the National Rail Freight Corporation dated 31 October 1990.
B. These principles are:
(a) that the Company will:
(i) operate on a strictly commercial basis, with a financially viable corporate plan, and be subject to the Trade Practices Act 1974 (Commonwealth);
(ii) have access (by ownership or other appropriate arrangements) to the assets, including track infrastructure, necessary to achieve commercial viability;
(iii) operate under labour arrangements incorporated in an enterprise award, which reflects best practice in productivity standards through efficient work and manning practices, determined by the technical capacity of its equipment and commercial considerations, with cost efficiencies being, as a minimum, in line with those identified by the National Rail Freight Initiative Task Force in Attachment I to its Report of 21 March 1991;
(iv) have the capacity to contract out activities where that is the most efficient approach;
(v) provide access on a commercial basis to the NRC network and to terminal facilities for private and public sector operators;
(vi) have the capacity to provide services to Governments, with the charging for such services being on a strictly commercial basis; and
(vii) not be responsible, financially or in any other way, for redundancies that may arise in rail authorities resulting from its formation and transfer of functions and assets to it; and
(b) that during the Establishment Period the current financial position of the Commonwealth and State rail authorities’ interstate rail freight operations will not deteriorate as a result of the Commonwealth and the States participating in the formation and operation of the Company.
C. The Company will be established and operated in accordance with the terms and conditions set out in this Agreement and its Memorandum and Articles of Association to give effect to the principles referred to in Recital B(a).
IT IS AGREED as follows:
1. In this Agreement, except where a contrary intention appears or the context otherwise requires:
“asset” means any real or personal property of any description.
“Best Practice Industrial Agreements” means labour arrangements negotiated by the Company which reflect the most efficient work and manning practices, determined by the technical capacity of equipment and commercial considerations.
“Commonwealth” means the Commonwealth of Australia as a party to this Agreement.
“Company” means the National Rail Corporation Limited, a company to be incorporated in the Australian Capital Territory under the Corporations Law.
“Corporate Plan” means the corporate plan prepared in accordance with the Articles of Association of the Company.
“date of commencement of operations” means 31 January 1992, or such later date as is mutually agreed between the Relevant Ministers, other than the Ministers of the other States, being the common date from which all rail authorities of the Commonwealth and the States carry interstate rail freight on behalf of the Company.
“Establishment Period” means a five year period commencing on the date of commencement of operations.
“finally valued” means, in relation to the value of an asset or assets transferred (by way of ownership or long term lease) by the Commonwealth, the States, or their rail authorities to the Company, that the value of the asset or assets has been agreed or fixed by arbitration.
“interstate rail freight” means interstate rail freight carried on the NRC network.
“long term lease” means a lease which has a term of or in excess of 20 years.
“NRC network” means the rail network connecting the mainland State capital cities and Alice Springs as specified in the Corporate Plan.
“NRC Standard Costs” means those costs that the Company projects, with the objective of achieving as a minimum, the potential cost efficiencies identified by the National Rail Freight Initiative Task Force in Attachment I of its Report of 21 March 1991, that the Company would achieve by the end of the Transition Period, if the Company were from the date of commencement of operations to:
(a) assume the management and operations of all the interstate rail freight functions set out in Schedule 2 from all rail authorities;
(b) have in place Best Practice Industrial Agreements; and
(c) undertake a capital works program in accordance with the Corporate Plan.
“other State and other States” means the State of Queensland .
“predominant use”:
(a) where used in relation to an asset which is a terminal, means the greatest use of the terminal under consideration taken for the period of 12 months prior to the date on which the matter is to be determined, having regard to the volume of freight handled at the terminal (measured in appropriate units of originating and terminating throughput).
(b) where used in relation to track, means the greatest use of the section of track under consideration (as identified in the Corporate Plan) taken for the period of 12 months prior to the date on which the matter is to be determined, having regard to the volume of freight carried and the frequency of freight and passenger services.
“rail authorities” means the railway authorities of the Commonwealth, the States and, where used in connection with the other States, the railway authorities of those other States.
“Railways of Australia Agreement” means the interstate rail freight revenue sharing arrangements determined by the rules contained in Railways of Australia Commissioners Conference Minute 7248, as they stand at the date of commencement of operations.
“Relevant Ministers” means Ministers of the Commonwealth, the States and the other States having responsibility for administration of this Agreement.
“State” means the State of New South Wales, the State of Victoria, the State of Western Australia and the State of Queensland if it becomes a shareholder of the Company.
“States” means the State of New South Wales, the State of Victoria, the State of Western Australia and the State of Queensland if it becomes a shareholder of the Company.
“Transition Period” means the first three year period of the Establishment Period.
2(1) Clause 3 and subclauses 4(1), (2), (3), (4) and (5) will come into operation when this Agreement has been executed by the Commonwealth, the States and the other States.
2(2) The remainder of this Agreement will come into operation on the date on which the last of the legislation referred to in clause 3 (except the legislation referred to in subparagraph 3(1)(a)(i)) comes into force.
3(1) The Commonwealth, the States and the other States will, in relation to the legislation referred to in paragraphs (a) (ii) and (iii), as soon as possible after the execution of this Agreement by all of them, and in relation to the legislation referred to in paragraph (a) (i), if the relevant State or other State proposes to give its approval in writing to the Company engaging in intra‑State rail transport services in that State or other State, prior to giving that approval, take all practicable steps to seek the enactment of the following legislation:
(a) legislation by the respective Parliaments of the Commonwealth, the States and the other States to approve this Agreement and to make such provision as shall be necessary or appropriate on the part of those Parliaments respectively for the implementation of this Agreement, including:
(i) legislation by the States and the other States referring to the Commonwealth, under s.51(xxxvii) of the Constitution, the matter of the Commonwealth holding shares in the Company when the Company engages in intra‑State rail transport services in the States and in the other States;
(ii) legislation by the Commonwealth, the States and the other States to provide for an additional means for the transfer or vesting in the Company of assets owned or leased by the Commonwealth, the States or the other States and their rail authorities, and for substituting the Company for the Commonwealth, the States, the other States and their rail authorities in contracts, in cases where the legislative transfer or vesting of assets, or contract substitution, has been agreed in accordance with this Agreement between the Commonwealth, the States, the other States and their rail authorities, respectively and the Company; and
(iii) legislation by the Commonwealth, the States and the other States authorising the making of regulations or by‑laws that are necessary or convenient for carrying out or giving effect to this Agreement and to the legislation for the implementation of this Agreement;
4(1) (a) The Commonwealth, the States and the other States agree that the Company shall be incorporated as a public company limited by shares which shall be operated on a strictly commercial basis with a financially viable corporate plan, and have as a principal objective the carriage of interstate rail freight on a national network.
4(1) (b) The Commonwealth will, as soon as practicable after this Agreement has been executed, arrange for the Company to be incorporated under the Corporations Law, with the name of “National Rail Corporation Limited” and with a Memorandum and Articles of Association substantially in the form set out in Schedule 1. Nothing in this Agreement shall be construed as limiting or restricting the amendment of the Memorandum and Articles of Association of the Company in accordance with their provisions and the Corporations Law.
4(2) The Commonwealth will, itself and though trustees, subscribe to 500 ordinary and 500 B convertible shares in the Company and will, within 30 days of the date referred to in subclause 2(2), transfer to the States, at par value, out of these shares, the following number of shares:
New South Wales —140 ordinary shares and 125 B convertible shares
Victoria —65 ordinary shares and 125 B convertible shares
Western Australia —25 ordinary shares and 125 B convertible shares
4(3) The funds required for the establishment and functioning of the Company, until the date of commencement of operations, shall be provided out of the equity payment to be made by the Commonwealth pursuant to clause 6.
4(4) The Commonwealth and the States agree that subject to subclause 4 (6), until the end of the Establishment Period, there will be nine (9) Directors of the Company and the Commonwealth, as subscriber and member of the Company, and the States, as members of the Company, will exercise their appointment and voting rights in respect of the appointment of the first and subsequent Directors in such a way as to have during the Establishment Period:
(a) three Directors nominated by the Commonwealth, one being the Chairperson of the Board of Directors and one, as a matter of Commonwealth policy, being a nominee of the Australian Council of Trade Unions, not being a member of a union directly associated with operations of the Company;
(b) two Directors nominated by the State of New South Wales ;
(c) two Directors nominated by the State of Victoria; and
(d) one Director nominated by the State of Western Australia ,
holding office during the Establishment Period. The remaining Director, who will be the Managing Director, will be appointed by the Board of Directors in accordance with the Articles.
4(5) The Commonwealth and the States agree that, until the end of the Establishment Period, they will as members of the Company, exercise their voting rights in respect of the removal of Directors so that a Director nominated by any of them will, at the request of the Commonwealth, in the case of a Director nominated by it, or of a State, in respect of a Director nominated by it, be removed.
4(6) If any other State becomes a shareholder of the Company pursuant to subclauses 6(8) and 6(9), that State shall have a right from the date it becomes a shareholder to nominate and have appointed one Director of the Company, in addition to the Directors referred to in subclause 4(4), to hold office during the Establishment Period in accordance with the provisions of subclauses 4(4) and 4(5).
4(7) The Commonwealth and the States agree that, after the Establishment Period, during such time as the Commonwealth and any of the States are the only shareholders of the Company, the Commonwealth and those States (as members of the Company) shall exercise their voting rights relating to the appointment and removal of Directors in such a way as to ensure that the Commonwealth and those States each will have the right to nominate at least one (1) Director, to have that Director appointed and to have that Director removed. The remainder of the Directors will be appointed in accordance with the Articles of Association of the Company.
5(1) The Commonwealth and the States will, to the extent each in its capacity as a shareholder in the Company is able, procure the Company to:
(a) negotiate Best Practice Industrial Agreements with the relevant unions leading to an enterprise award as envisaged by Recital B(a)(iii);
(b) before the commitment of any capital upgrading have in place Best Practice Industrial Agreements which the Company advises provide a basis for commercial operations;
(c) commence and conduct national interstate rail freight operations;
(d) conduct all marketing and determine pricing for interstate rail freight carried on by the Company;
(e) collect and retain all revenue generated by the carriage of interstate rail freight from the date of commencement of operations;
(f) take over progressively from the rail authorities of the Commonwealth and the States, in whole or in part, functions of the type listed in Schedule 2 and the management of the associated assets pursuant to the provisions of this Agreement and the agreements entered into pursuant to subclauses 5(3), 5(4) and 5(5); and
(g) give effect to this Agreement and to those obligations which by this Agreement are expressed to be obligations of the Company.
5(2) The Commonwealth, the States and the other States will, and will cause their respective rail authorities to assist the Company, when requested by the Company, to undertake the matters set out in subclause 5(1), except, in the case of the other States, in relation to the matters set out in paragraph 5(1)(f).
Contracts for Services
5(3) Prior to and during the Transition Period, at the request of the Company, the Commonwealth and the States shall, and shall cause their respective rail authorities to, enter into contracts with the Company for the provision of rail services to the Company, relating to interstate rail freight. Those contracts will make provision for the following during the Transition Period:
(a) The price for services performed under the contracts shall be agreed on the basis that:
(i) the initial contract price, to apply for no longer than for the period of 12 months after the date of commencement of operations, will be set having regard to:
(A) the Company being able to meet its costs incurred in performing the functions assumed by it in whole or in part, during the period for which the initial contract price applies (being reasonable costs); and
(B) the revenue that the rail authority would have received under the Railways of Australia Agreement, had that agreement still applied.
and,
(ii) thereafter the contract price will, on the basis that the Company has achieved Best Practice Industrial Agreements and is implementing its approved capital investment program, reduce progressively to NRC Standard Costs.
(b) liquidated damages, in an amount or by a formula to be agreed between the parties to the contract, to be paid to the Company by the respective rail authorities, or by the Company to the respective rail authorities, in respect of a failure by a party to meet such performance standards as are specified in the contract;
(c) the Company and the relevant rail authority are to maintain and make available to each other externally audited accounts of the costs of carrying out their respective obligations under any contract. The accounts shall be in the form specified from time to time by the auditors of the Company in accordance with generally accepted accounting practices. Such accounts shall be retained by the parties to a contract for at least a period of 12 months after the expiration of the contract. These accounts will only be used for the purpose of determining payments pursuant to clause 5.
Transfer of Functions
5(4) (a) Subject to this Agreement, the Commonwealth and the States shall and shall cause their respective rail authorities to permit the Company to assume performance of the functions relating to interstate rail freight of the type listed in Schedule 2, in whole or in part, in accordance with a detailed list of specific functions and the timetable set out in the Corporate Plan and being no later than the end of the Transition Period.
(b) When a function is assumed pursuant to subclause 5(4)(a) by the Company, an assessment will be made at that time by the Company of the initial full cost to the Company of performing that function determined having regard to any accounts kept pursuant to subclause 5(3)(c) or in the absence of such accounts, such other accounts as may be relevant. Where that assessed cost exceeds NRC Standard Costs for that function:
(i) the transferring rail authority and the Company will agree as to the rate and the time, which is not to exceed three years from the date of transfer, or the end of the Establishment Period, whichever shall first occur, at which, and within which the Company will be able to reduce costs in relation to that function to NRC Standard Costs, while meeting the Company’s performance standards;
(ii) the Company and the Commonwealth, or the State concerned, will agree a schedule of payments, to be made by the Commonwealth or the State to the Company, during the period agreed to in subclause (i) above while the Company is in the process of achieving NRC Standard Costs in respect of the function in the time agreed. The schedule will be based on the difference between NRC Standard Costs to carry out the function and the actual costs measured on a comparable basis determined having regard to any accounts kept pursuant to subclause 5(3)(c) (or in the absence of such accounts, such other accounts as may be relevant), to the Commonwealth, the States or their rail authorities, as the case may be, of carrying out the function in the twelve month period prior to the transfer.
(c) In the case of the State of Western Australia, if it is established by an independent expert to be appointed by the Company and approved by the State of Western Australia, as soon as practicable after the date of commencement of operations, that transfer of its interstate rail freight business to the Company would have a detrimental effect on the financial position of the rail authority of Western Australia, because of a reduction in revenues not matched by a commensurate reduction in costs, including fixed costs and overheads, then assessments shall be made by that expert of the extent in dollar terms, of that effect for each year of the Establishment Period, and of the maximum practicable rate at which the Western Australian rail authority could reduce fixed costs and overheads as a consequence of the transfer of the functions and assets to the Company. The Company, the Commonwealth and the States must agree a schedule of annual payments to be made to the State of Western Australia by the Company within the Establishment Period, which provides compensation to the State of Western Australia based on these assessments.
(d) Payments to be made by the rail authority of the State of Western Australia pursuant to subclause 5(4)(b), as well as payments received by the rail authority of the State of Western Australia pursuant to subclause 5(3), shall be taken into account in assessing the payments to be made to the State of Western Australia pursuant to subclause 5(4)(c), as well as any reductions in costs occasioned by the transfer of functions by the rail authority of the State of Western Australia, giving rise to payments by the State of Western Australia pursuant to subclause 5(4)(b).
(e) Prior to any application of Part VII in relation to payments to be made to the State of Western Australia pursuant to subclause 5(4)(c), agreement as to payments to the State of Western Australia pursuant to that subclause shall, if necessary, be negotiated at Heads of Government level.
Access to and Transfer of Assets
5(5) The Commonwealth and the States shall, or shall cause their rail authorities to transfer ownership of, or for as long as the Company continues to conduct national interstate rail freight operations, give leases of, or grant access to the Company, in relation to any asset, owned or controlled by the Commonwealth or the State or their rail authorities, and used by their rail authorities in connection with interstate rail freight. The Company, in its Corporate Plan, shall identify that a particular asset or class of assets is required by it. The Commonwealth and the States shall have a discretion whether to transfer ownership, give a lease or grant access to the Company in relation to any asset required by it. Transfer of ownership, lease or grant of access shall be given within a reasonable time following the request by the Company to make the asset available. The objective is that all transfers of ownership, leases or grants of access shall be completed before the end of the Transition Period. The following provisions shall apply:
(a) In the case where the Company requires access to an asset the predominant use of which has not been for interstate rail freight, or of which the Company is not, and will not in the future, be the predominant user (eg metropolitan track) as projected in the Corporate Plan, the Company will be granted access to that asset pursuant to a contract, the terms and conditions of which will be agreed between the Company and the Commonwealth or a State or its respective rail authority, as the case may be. Such contract will provide for the Company to pay to the rail authority in respect of such access, an amount that reflects the cost to the rail authority of providing access in the most efficient manner and that allows the Company to meet its service standards specified in the contract;
(b) In the case where the Commonwealth or a State, or its rail authority, does not agree to transfer ownership, or enter into a long term lease of an asset, the predominant use of which has been for interstate rail freight, or of which the Company is or is to be, the predominant user as projected in the Corporate Plan, the Company will be granted access to that asset pursuant to a contract, the terms and conditions of which will be agreed between the Company and the Commonwealth or a State, or its respective rail authority, as the case may be. Such contract will provide that the rail authority maintain the asset to NRC specified standards and for the Company to pay to the rail authority, in respect of such access, an amount no greater than the costs (based on NRC Standard Costs) that would be avoided by the rail authority if the Company were not to utilise the asset on the basis that the rail authority would for its own purposes maintain the asset to the standards specified in the contract.
(c) In the case where the Company acquires ownership of, or a long term lease of, an asset to which a rail authority still requires access (eg for intrastate rail freight or passenger services), the rail authority will be granted access to that asset pursuant to a contract, the terms and conditions of which will be agreed between the Company and the Commonwealth or a State, or its rail authority, as the case may be. Such contract will provide for the rail authority to pay to the Company, in respect of such access, an amount that reflects the cost to the Company of providing access in the most efficient manner and that allows the rail authority to meet its service standards specified in the contract.
(d) In the case where the Company does not nominate as an asset which it requires to be transferred to it, an asset the predominant use of which has been for interstate rail freight, but to which it requires access, access will be granted to the Company pursuant to a contract, the terms and conditions of which will be agreed between the Company and the Commonwealth or a State, or its rail authority, as the case may be. Such contract will provide for the Company to pay to the rail authority, in respect of such access, an amount that reflects the cost to the rail authority of providing access in the most efficient manner and that allows the Company to meet its service standards specified in the contract.
Other States—Access to and Transfer of Assets and Contracts of Service
5(6) (a) The other States shall, or shall cause their rail authorities to transfer ownership of, or for as long as the Company continues to conduct national interstate rail freight operations, give leases of, or grant access to the Company, in relation to any asset, owned or controlled by the other States or their rail authorities, and used by their rail authorities in connection with interstate rail freight. The Company, in its Corporate Plan, shall identify that a particular asset or class of assets is required by it. The other State in question shall have a discretion whether to transfer ownership, give a lease or grant access to the Company in relation to any asset required by it. Transfer of ownership, lease or grant of access shall be given within a reasonable time following the request by the Company to make the asset available. The objective is that all transfers of ownership, leases or grants of access shall be completed before the end of the Transition Period. The transfers of ownership, leases and the grants of access shall be on such commercial terms and conditions as are agreed between the Company and the other State in question.
(b) Until all the transfers of ownership, leases or grants of access pursuant to subclause 5(6)(a) are completed, the other States shall, and shall cause their respective rail authorities to, enter into contracts with the Company for the provision of rail services to the Company, relating to interstate rail freight. Those contracts will make provision for the following:
The price for services performed under the contracts shall be agreed on the basis that:
(i) the initial contract price, to apply for no longer than for the period of 12 months after the date of commencement of operations, will be set having regard to:
(A) the Company being able to meet its costs incurred in performing the functions, identified in Schedule 2, assumed by it in whole or in part during the period for which the initial contract price applies (being reasonable costs); and
(B) the revenue that the rail authority would have received under the Railways of Australia Agreement, had that agreement still applied.
and,
(ii) thereafter the contract price will be at commercial rates agreed between the Company and the other State in question or its rail authority.
6(1) (a) The Commonwealth and the States will contribute the following equity funds to the establishment, capital and operation of the Company:
(i) the Commonwealth—$295.8 million.
(ii) the State of New South Wales —$75.6 million.
(iii) the State of Victoria —$35.1 million.
(iv) the State of Western Australia —$8.0 million.
(b) The Commonwealth and the States shall, prior to the date of commencement of operations, make an application to the Company for the issue of A convertible shares equal to the amounts set out in subclause 6(1)(a).
(c) the Company shall issue to the Commonwealth and the states respectively, the A convertible shares referred to in subclause 6(1)(b).
(d) Payments by the Commonwealth and the States respectively of funds to be contributed pursuant to subclause 6(1)(a), and any calls on the A convertible shares, shall be made from time to time in accordance with Schedule 4.
6(2) (a) During the Establishment Period, the Commonwealth and the States will contribute any additional equity funding requirements of the Company provided for, both as to amounts and times of payment, in the Corporate Plan according to the following percentages:
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(b) The Commonwealth and the States shall, during the Establishment Period, make application to the Company for the issue of A convertible shares calculated in accordance with subclause 6(2)(a).
(c) The Company shall issue to the Commonwealth and the States respectively, the A convertible shares referred to in subclause 6(2)(b).
6(3) For the purposes only of determining the numbers of A convertible shares to be issued pursuant to subclause 6(7), the value of an interest in the assets transferred (by way of ownership or long term lease) will be agreed bilaterally by the Company and the Commonwealth or by the Company and the relevant State, on the following basis:
(a) for an interest in track or terminal, and major associated assets, the valuation will be agreed prior to the end of the Establishment Period and will take into account the condition of the asset at the time of transfer and the net amount expected to be recovered from its continued use, assessed as at the end of the Establishment Period. The cost, adjusted in accordance with subclause 6 (5), of any improvements to such assets funded by the Company prior to the valuation of such assets, whether by capital upgrade or maintenance, will be deducted from the value of the asset.
(b) for an interest in any other asset:
(i) valuation at market value, assessed at the time of transfer, if an established market exists for that type of asset; or
(ii) if no such established market exists, then on an asset valuation methodology appropriate to the type of asset involved, assessed at the time of transfer.
6(4) In valuing interests in assets transferred (by way of ownership of long term lease), the valuation methodology adopted will be applied uniformly to value the interests in assets of the same type transferred by the Commonwealth, the States and their rail authorities to the Company.
6(5) For the purpose of determining the number of A convertible shares for issue to the Commonwealth and the States, or the number of ordinary shares to issue as bonus shares, the monetary value of assets transferred assessed in accordance with subclauses 6(3) and 6(4), and moneys contributed in accordance with subclause 6(1), will be adjusted immediately prior to the end of the Establishment Period (or, in the case of assets finally valued after the Establishment Period, as soon as practicable after the assets are finally valued) to constant prices by indexing those monetary values by the All Groups Consumer Price Index Number published by the Australian Statistician. The period of indexation will commence from the latest published index number before the date of the transfer of assets or payment of moneys to the latest published index number before the end of the Establishment Period.
6(6) The Commonwealth and the States shall, prior to the end of the Establishment Period, make an application to the Company for the issue of:
(a) A convertible shares equal to the value, as assessed in accordance with subclauses 6(3), 6(4) and 6(5), of the assets transferred (by way of ownership or long term lease) respectively by the Commonwealth and the States and their rail authorities; and
(b) A convertible or ordinary shares, in accordance with subclause 6(7), equal to the value of the difference between the moneys contributed by the Commonwealth and the States in accordance with subclause 6(1) and the adjusted value thereof assessed in accordance with subclause 6(5).
6(7) The Company shall issue to the Commonwealth and the States respectively the A convertible or ordinary shares referred to in subclause 6(6), provided that the shares referred to in subclause 6(6)(b) shall only be issued as bonus shares when there are sufficient profits or reserves out of which the shares can be so issued and shall be issued as ordinary shares if, at the time of issue, all the A convertible shares have been converted into ordinary shares or A convertible cumulative preference shares. The Commonwealth and the States shall, before the end of the Establishment Period, pass the necessary special resolution for the A convertible or ordinary shares, referred to in subclause 6(6)(b), to be issued as bonus shares in priority to the rights of any other shareholder.
6(8) If, during, the first three years of the Establishment Period, any of the other States notifies the Commonwealth, the States and the Company that it wishes to contribute a minimum of $5 million in cash for shares in the Company, the Commonwealth and the States shall, as members, pass a unanimous resolution for the issue of the shares to the other State and for the issue of additional shares to the Commonwealth and the States in accordance with the relevant provisions of the Table in Schedule 3 under the following conditions:
(a) the Commonwealth, the States and the other State, upon making an application for shares, shall be each issued with the number of ordinary and B convertible shares at par value set out in Schedule 3. In addition to the B convertible shares, the other State shall, upon payment in full of the moneys contributed by it, be issued with A convertible shares at par value for the remainder of the moneys contributed by it; and
(b) the other State shall be obliged to contribute such proportion of the additional equity funding requirements of the Company pursuant to subclause 6(2)(a), as is determined by the Company and agreed between the Commonwealth, the States and the other State prior to the date of the passing of the unanimous resolution to issue shares pursuant to this subclause. The percentages as then agreed shall, from the date the other State becomes a shareholder, be the percentages at which the Commonwealth, the States and the other State have to contribute to additional equity funding requirements and will replace the percentages set out in subclause 6(2)(a).
6(9) If, during the last two years of the Establishment Period, any of the other States notifies the Commonwealth, the States and the Company that it wishes to purchase shares in the Company, the Commonwealth and the States, as members, may pass a unanimous resolution for the issue of such shares (if any) to the other State, subject to such terms and conditions, as they determine, and are agreed to by the other State.
6(10) After the Establishment Period, if any of the other States notifies the Company and all the shareholders of the Company that it wishes to purchase shares in the Company, the other State shall have the right to purchase shares in the Company on the same terms and conditions as shares are offered for sale to third parties.
6(11) The Commonwealth and the States shall, at the end of the Establishment Period, pass a special resolution to convert all the A convertible shares to ordinary or A convertible cumulative preference shares, or if at the time all the assets transferred (by way of ownership or long term lease) by the Commonwealth and the States and their rail authorities to the Company have not been finally valued, as soon as practicable after the final valuation is completed.
7. Except for a dispute or difference as to any obligation imposed under Part III, any dispute or difference whatsoever arising in connection with this Agreement shall first be the subject of conciliation by a conciliator agreed between the parties to the dispute or difference, unless one of the parties to the dispute or difference objects to conciliation. In the event that the dispute or difference has not been resolved within twenty‑eight (28) days (or such other period as is agreed to in writing between the parties to the dispute or difference) after the appointment of a conciliator by the parties to the dispute or difference, or the parties to the dispute or difference cannot agree to referring the dispute or difference for conciliation, the dispute or difference shall be submitted to arbitration in accordance with and subject to the Arbitration Rules of the United Nations Commission on International Trade Law in force at the date of first notification of the dispute or difference. A dispute or difference will include, without limiting the generality thereof, a dispute or difference as to:
(a) the identification of any asset within any class of assets identified in the Corporate Plan;
(b) the value of the interest in any asset to be transferred or leased or otherwise made available to the Company;
(c) the terms and conditions of a service contract to be entered into pursuant to subclauses 5(3) and 5(6);
(d) the schedule of payments to be made by the Commonwealth or a State pursuant to subclause 5(4)(b);
(e) the schedule of payments which may be made by the Company pursuant to subclause 5(4)(c); or
(f) the charges and terms and conditions for access to assets pursuant to subclauses 5(5)(a), (b), (c) and (d) and subclause 5(6)(a).
8(1) The provisions of this Agreement, which do not relate to or affect any of the other States may be varied, as between the Commonwealth and the States, by an agreement in writing between the Relevant Ministers of the Commonwealth and States.
8(2) Any provisions of this Agreement, which affect any of the other States, may be varied as between the Commonwealth, the States and the other State or other States affected, by an agreement between the Relevant Ministers of the Commonwealth, the States and the other State or States affected.
8(3) A copy of an agreement, or copies of documents which constitute an agreement under subclause 8(1), shall be tabled in the Commonwealth and State Parliaments within 15 sitting days from the date on which the agreement is made and shall, if not disallowed by any Parliament within 15 sitting days of being so tabled, take effect at the expiration of 15 sitting days of the Parliament in which the agreement or documents are last tabled.
8(4) A copy of an agreement, or copies of documents which constitute an agreement under subclause 8(2), shall be tabled in the Commonwealth and the State Parliaments and the Parliament of the other State or States within 15 days from the date on which the agreement is made and shall, if not disallowed by any Parliament within 15 sitting days of being so tabled, take effect at the expiration of 15 sitting days of the Parliament in which the agreement or documents are last tabled.
9(1) The Relevant Ministers may, from time to time, do all things, or enter into agreements or arrangements for giving effect to the provisions of this Agreement.
9(2) During the Establishment Period, the Commonwealth and the States, as members of the Company, shall not mortgage or otherwise encumber their shares.
9(3) The obligations of a party hereunder, or in any agreement contemplated by this Agreement shall not be subject to that party holding or continuing to hold shares in the Company.
10. If the Company is wound up within eight years of the date of commencement of operations, the Commonwealth, the States and the other States will, to the extent permitted by law, have the first option to acquire by distribution or purchase, assets of the Company which they or their rail authorities have respectively transferred to the Company.
IN WITNESS WHEREOF this Agreement has been executed on behalf of the parties respectively as at the day and year above written.
SCHEDULE 1
Australia
Corporations Law
A Company Limited by Shares
MEMORANDUM OF ASSOCIATION
OF
NATIONAL RAIL CORPORATION LIMITED
1. The name of the Company is National Rail Corporation Limited.
2. Subject to the Corporations Law, the Company may exercise the legal capacity of a natural person and, without limiting the generality of the foregoing, has power:
(1) to issue and allot fully or partly paid shares in the Company.
(2) to issue debentures of the Company.
(3) to distribute any of the property of the Company among the members, in kind or otherwise;
(4) to give security by charging uncalled capital;
(5) to grant a floating charge on property of the Company;
(6) to procure the Company to be registered or recognised as a body corporate in any place outside Australia; and
(7) to do any other act that it is authorised to do by any other law (including a law of a foreign country).
3. Notwithstanding the provisions of clause 2, the Company shall not carry on any intra‑State rail services in any State unless:
(a) there is in relation to that State, a referral of power, referring to the Commonwealth, under s.51(xxxvii) of the Constitution, the matter of the Commonwealth holding shares in the Company when the Company engages in intra‑State rail services in the State; and
(b) that State has given its prior approval in writing to the Company to carry on the intra‑State rail services in that State.
4. This clause and clause 3 may not be amended or deleted without the unanimous resolution of all of the members of the Company and if, at the relevant time any of the States of New South Wales, Victoria, Queensland, Western Australia or South Australia, is not a member of the Company, the prior approval in writing of such a State will be required to any amendment.
5. The liability of the members is limited.
6. The capital of the Company is five billion dollars ($5,000,000,000) divided into five billion (5,000,000,000) shares of One dollar ($1.00).
7. WE, the several persons whose names and addresses are subscribed hereto, are desirous of being formed into a Company in pursuance of this Memorandum of Association and respectively agree to take the number of shares in the capital of the Company set out opposite our respective names:
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DATED this 1991
Australia
Corporations Law
A Company Limited by Shares
ARTICLES OF ASSOCIATION
OF
NATIONAL RAIL CORPORATION LIMITED
PRELIMINARY
1.
The Regulations contained in Table “A” in Schedule 1 to the Law do not apply to the Company.
2.
2(1) In these Articles, unless the contrary intention appears:
“Articles” means the Articles of Association of the Company in force from time to time, and a reference to a particular article has a corresponding meaning.
“Auditor” means any person appointed to perform the duties of an auditor of the Company.
“Board” means the whole or any number of the Directors for the time being assembled at a meeting of Directors and not being less than a quorum.
“Branch Register” means any Register of members authorised and established in accordance with these Articles outside the State or Territory in which the principal register is kept whether within or outside Australia.
“Business Days” means the days, other than a Saturday, Sunday or days gazetted as public holidays or bank holidays in the Australian Capital Territory .
“Capital” means the capital for the time being of the Company.
“Chairperson” means Chairperson of the Board of Directors.
“Company” means the National Rail Corporation Limited.
“Corporate Plan” means the plan prepared in accordance with Article 118(3) from time to time.
“Directors” means the Directors for the time being of the Company or the Directors assembled as a Board and includes all Alternate Directors.
“Dividend” includes a bonus issue of shares.
“Establishment Period” means a five year period commencing on 31 January 1992, or such later date as is agreed by the members in writing, being the common date from which all rail authorities of the Commonwealth and the States carry interstate rail freight on behalf of the Company.
“Executive Director” means a Director in the full time employment of the Company who is concerned, or takes part in the management of the Company.
“Law” means the Corporations Law of the Australian Capital Territory within the meaning of the Corporations Act 1989 (Commonwealth) and includes any amendment or re‑enactment of the same or any legislation passed in substitution.
“Managing Director” means any person appointed to perform the duties of managing director of the Company and includes an acting Managing Director.
“member”, “shareholder”, or “holder” means any person entered in the Register as a member for the time being of the Company.
“member present” means a member present at any general meeting of the Company in person or by proxy or attorney or, in the case of a corporation, by a duly appointed representative.
“meeting” means a meeting of members duly called and constituted in accordance with the Articles and any adjourned holding thereof.
“Office” means the registered office for the time being of the Company.
“Register” means the Register of members to be kept pursuant to the Law and shall also include any Branch Register.
“Resolution” means a resolution other than a special resolution.
“Seal” means the Common Seal of the Company and includes any official seal of the Company.
“Secretary” means any person appointed to perform the duties of Secretary or Acting Secretary of the Company or as a temporary substitute for the Secretary.
“Shares” means the shares into which the Capital is from time to time divided and, when shares are fully paid up, includes stock, except where a distinction between stock and shares is expressed or implied.
“special resolution” means a special resolution within the meaning of Section 253 of the Law.
“State” means the State of New South Wales, Victoria, Queensland, or Western Australia .
“Statement of Corporate Intent” means the statement of corporate intent referred to in Article 118 (4).
2(2) The term “Chairman” or “Chairwoman” shall be able to be substituted for the term “Chairperson” where the holder of the office of Chairperson or deputy Chairperson elects to do so at meetings of the Company, Directors’ meetings or in Company documents.
2(3) Headings are for convenience only and shall not be used in the interpretation of these Articles or of any part thereof to which they relate.
2(4) Words importing any gender include the other genders, words importing persons shall include partnerships, associations, corporations, bodies politic or other legal entities, companies unincorporated and incorporated whether by Act of Parliament or otherwise, as well as individuals and words importing the singular include the plural and vice versa.
2(5) In every case where in these Article general expressions are used in conjunction with powers, discretions or things, such general expressions shall not be limited to or controlled by the particular powers, discretions or things with which the same are concerned.
2(6) Any words and expressions denoting authority or permission shall be construed as words or expressions of authority merely and shall not be construed as words or expressions denoting directions or compulsory trusts.
2(7) Section 46 of the Acts Interpretation Act 1901 (Commonwealth) applies in relation to these Articles as if they were an instrument made under the Law as in force on the date of incorporation of the Company.
2(8) Subject to the aforesaid, an expression used in a particular Part or Division of the Law that is given by that Part or Division a special meaning for the purposes of that Part or Division has, in any of these Articles that deals with a matter dealt with by that Part or Division, unless the contrary intention appears, the same meaning as in that Part or Division.
2(9) A reference to any statute, regulation, proclamation, ordinance or by‑law includes all statutes, regulations, proclamations, ordinances or by‑laws varying, consolidating or replacing them, and a reference to a statute includes all regulations, proclamations, ordinances and by‑laws issues under that statute.
3.
In so far as and for so long as the Law applies to the Company, the Company shall comply with the provisions thereof and these Articles, to the extent that they may be inconsistent therewith, shall be subject to the provisions of the Law.
CAPITAL AND VARIATION OF RIGHTS
4.
4(1) The capital of the Company shall be divided into nine hundred (900) ordinary shares of $1 each, nine hundred (900) B convertible shares and 4,999,998,200 A convertible shares of $1 each (which may be converted in accordance with these Articles into A convertible cumulative preference shares).
4(2) The A convertible shares shall confer on the holders the following rights, privileges and conditions:
(a) a right to receive notices of and to attend General Meetings, but no right to vote;
(b) a right on winding up and on a reduction of capital to have the capital paid up on A convertible shares repaid pari passu with the ordinary shares and the B convertible shares; and
(c) no further right to participate in the assets or profits of the Company.
4(3) The A convertible cumulative preference shares shall confer on the holders the following rights, privileges and conditions:
(a) a right to receive notice of and to attend General Meetings, but no right to vote;
(b) a right to receive a fixed cumulative preferential dividend of 10% per annum, or such other dividend as is determined by the Directors from time to time, in preference to all other issued shares in the capital of the Company;
(c) a right on winding up and on a reduction of capital to have the capital paid up on the A convertible cumulative preference shares repaid in priority to all other issued shares in the Company; and
(d) no further right to participate in the surplus assets or profits of the Company.
4(4) The B convertible shares shall confer on the holders the following rights privileges and conditions:
(a) a right to receive notices of, attend and vote at General Meetings.
(b) no right to receive any dividends or profits of the Company.
(c) a right on winding‑up and on a reduction of capital to have the capital paid up on the B convertible shares repaid pari passu with the A convertible shares and the ordinary shares; and
(d) no further right to participate in the surplus assets or profits of the Company.
4(5) After the Establishment Period, any issue of shares shall be in accordance with the following conditions:
(a) the shares will first be offered to the existing members in proportion to the shares held by them who may take up the shares to which they are entitled in whole or in part. If, within twenty‑one (21) days of such offer being made, the shares, or some of them, are not taken up, those not taken up will be again offered to all the existing members, but without regard to their respective shareholdings.
(b) the shares not taken up by any member within twenty‑one (21) days of such offer, may be offered to third parties. If an offer to purchase the shares is made by a third party which is acceptable to the Company, the shares will be offered again to the existing members, but at the value and on the terms at which the third party made the offer. If any member does not take up the offer within twenty‑one (21) days of such offer being made, the shares not taken up can be issued to the third party on the basis of that offer.
(c) if any issue of shares to a member pursuant to this Article would result in that member holding, including shares marked in the Register as being held in trust for the member, more than 49% of the issued ordinary shares in the Capital of the Company, the shares in excess of the 49% holding shall automatically convert into A convertible cumulative preference shares and shall be dealt with as provided in Article 28 (6).
(d) any offer of shares pursuant to this Article to a body politic will permit the body politic such period to settle the purchase as is necessary to allow it a reasonable time to obtain any necessary Parliamentary approval, including appropriation of funds.
4(6) In the event a member is entitled to apply during the Establishment Period for A convertible shares and such entitlement is not exercised prior to the end of the Establishment Period, that member is entitled to apply for and be issued with, after the end of the Establishment Period, the number of ordinary shares equal to the number of A convertible shares to which the member would have been so entitled.
5.
5(1) Subject to the provisions of the Articles and the Law and without prejudice to any special rights previously conferred on the holders of any existing shares, the unissued shares in the Company (including new shares created upon an increase of capital), shall be under the control of the Directors who may allot, grant options over or otherwise dispose of the same to such persons on such terms and conditions and either at a premium or at par or subject to the provisions of the Law at a discount and at such times as the Directors think fit.
5(2) Without prejudice to any special rights previously conferred on the holders of any existing shares, any share may be issued with such preferred, deferred or other special rights or such restrictions whether in regard to dividend, voting, return of share capital or otherwise as the Company may from time to time by resolution determine and any preference share may with the sanction of a special resolution be issued on the terms that it is or at the option of the Company is liable to be redeemed.
5(3) During the Establishment Period, no shares in the capital of the Company, other than five hundred (500) ordinary shares, five hundred (500) B convertible shares and such of the A convertible shares as may be alloted to the Commonwealth or any State in return for cash or in satisfaction of the transfer of interests in assets, may be alloted without the unanimous resolution of the Company in general meeting.
5(4) If at any time the Capital is divided into different classes of shares, the rights and privileges attached to any class (unless otherwise provided by the terms of issue of the shares of that class) may only, whether or not the Company is being wound up, be varied with the sanction of a special resolution passed at a separate general meeting of the holders of the shares of that class.
5(5) The provisions of the Articles relating to general meetings shall, mutatis mutandis, apply to every such meeting, except that in voting on modification of rights:
(a) the necessary quorum shall be members present holding or representing seventy five percentum (75%) of the nominal amount of the issued shares of the class; and
(b) any member present holding shares of the class may demand a poll.
6.
If a quorum is not present at any separate general meeting of holders of shares of a class, or if such resolution is not passed by the necessary majority, all or any of such rights and privileges may be varied with the consent in writing of the holders of at least seventy five percentum (75%) in nominal value of the issued shares of the class within two (2) calendar months from the date of such meeting.
7.
7(1) The Company may exercise the power to make payments by way of brokerage or commission conferred by the Law in the manner provided by the Law.
7(2) Payments by way of brokerage or commission may be satisfied by the payment of cash and, after the Establishment Period, by the allotment of fully or partly paid shares, or partly by the payment of cash and partly by the allotment of fully or partly paid shares.
8.
8(1) Except as required by law or as herein provided, no person shall be recognised by the Company as holding any share upon any trust.
8(2) The Company shall not be bound by or be compelled in any way to recognise (even when having notice thereof) any equitable contingent, future or partial interest in any share or unit of a share or (except only as otherwise provided by these Articles or by law) any other right in respect of any share except an absolute right to the entirety thereof in the registered holder.
8(3) Shares held by a trustee may, with the consent of the Directors, be marked in the Register in such a way as to identify them as being held subject to the relevant trust, but nothing in this paragraph derogates from paragraph (1) of this Article.
SHARE CERTIFICATES
9.
The certificate of title to shares shall be issued under the Seal of the Company in accordance with the provisions of these Articles.
10.
10(1) Every person whose name is entered as a member in the Register of members shall be entitled free of charge to one certificate specifying the share or the shares registered in his or her name and the amount paid up thereon, or if he or she so desires, to several certificates in reasonable denominations.
10(2) In respect of a share or shares held jointly by several persons, the Company shall not be bound to issue more than one certificate and delivery of a certificate for a share to one of several joint holders shall be sufficient delivery to all such holders.
10(3) Share certificates shall be dispatched by the Company within ten (10) business days of the date of allotment or the date of lodgement of a registerable transfer of the shares, as the case may be.
11.
11(1) If any certificate, letter of allotment, transfer, receipt or other document of title to shares is worn out or defaced then, upon production thereof to the Directors, they may order the same to be cancelled and shall issue a new certificate in lieu thereof upon the conditions prescribed by the Law.
11(2) If any certificate, letter of allotment, transfer, receipt or other documents of title to shares is lost, then the Directors may issue a duplicate thereof upon the conditions prescribed by the Law.
11(3) A fee of such amount, not exceeding the amount prescribed under the Law as the Directors determine, may be charged for a new certificate or duplicate certificate issued under this Article.
LIEN ON SHARES
12.
12(1) The Company shall have a first and paramount lien for calls and instalments which are due and unpaid and interest thereon and expenses incurred in relation thereto upon the specific shares registered in the name of each member (whether solely or jointly with others) and such lien shall extend to all dividends from time to time declared in respect of such shares.
12(2) The Directors may at any time declare any share to be wholly or in part exempt from the provisions of Article 12 (1).
12(3) Unless otherwise agreed or the Company first gives notice of the claim to the transferee, the registration of a transfer of shares shall operate as a waiver of the Company’s lien (if any) on such shares.
13.
13(1) Whenever any law for the time being of the Commonwealth or any State or Territory of Australia imposes any liability, or possible liability, upon the Company to make any payment or empowers the Commonwealth or any State or Territory government or taxing authority or government official to require the Company to make any payment in respect of any shares registered in the Register or any Branch Register, as held either jointly or solely by any member, or in respect of any dividends or other moneys due or payable or accruing due or which may become due or payable to such member by the Company on or in respect of any shares registered as aforesaid or for or on account or in respect of any member and whether in consequence of:
(a) the death of such member;
(b) the liability for income tax or other tax by such member;
(c) the liability for any estate, probate, succession, death, stamp or other duty by the executor or administrator of such member or by or out of the member’s estate; or
(d) any other act or thing;
the Company in every such case:
(i) shall be fully indemnified by such member or his or her executor or administrator from all liability;
(ii) shall have a first and paramount lien upon all shares registered in the Register or any Branch Register as held either jointly or solely by such member and upon all dividends and other moneys payable in respect thereof for any liability arising under or in consequence of any such law and for any amount paid in complete or partial satisfaction of such liability and for interest on any amount so paid at the rate percentum per annum set by the Directors from the date of payment to the date of repayment and the Company may deduct from or set off against any such dividend or other money payable as aforesaid any moneys paid or payable by the Company as aforesaid together with interest as aforesaid;
(iii) may recover as a debt due from such member or the member’s executor or administrator wherever constituted any moneys paid by the Company under or in consequence of any such law and interest thereon at the rate and for the period aforesaid in excess of any dividend or other money as aforesaid then due or payable by the Company to such member;
(iv) may, if any such money is paid or payable by the Company under any such law as aforesaid, refuse to register a transfer of any such shares by any such member or the member’s executor or administrator until such money with interest as aforesaid is set off or deducted as aforesaid, or in case the same exceeds the amount of any such dividend or other money as aforesaid then due or payable by the Company to such member, until such excess is paid to the Company.
13(2) Nothing herein contained shall prejudice or affect any right or remedy which any such law may confer or purport to confer on the Company and, as between the Company and every such member as aforesaid, the member’s executors, administrators and estate wheresoever constituted or situate, any right or remedy which such law shall confer or purport to confer on the Company shall be enforceable by the Company.
14.
14(1) After the Establishment Period, subject to Article 14(2), the Company may sell in such manner as the Directors think fit, any shares on which the Company has a lien.
14(2) A share on which the Company has a lien shall not be sold unless:
(a) a sum in respect of which the lien exists is presently payable; and
(b) the Company has not less than fourteen (14) days before the date of the sale given to the registered holder for the time being of the share, or the person entitled thereto by reason of the holder’s death or bankruptcy, a notice in writing stating and demanding payment of such part of the amount in respect of which the lien exists as is presently payable.
15.
Any share on which the Company has a lien may be disposed of in the same manner as a forfeited share.
16.
The proceeds of the sale shall be received by the Company and applied in payment of such part of the amount in respect of which the lien exists as is presently payable and in payment of any other moneys due and payable to the Company and the residue if any shall (subject to a like lien for sums not presently payable as existed upon the shares before the sale) be paid to the person registered or entitled to be registered as the holder of the shares immediately prior to the sale.
17.
17(1) For the purpose of these Articles, any member whose shares shall have been forfeited shall, notwithstanding such forfeiture, be liable to pay and shall forthwith pay to the Company all calls, instalments, interest and expenses owing upon or in respect of such shares at the time of the forfeiture, together with interest thereon from the time of forfeiture until payment at the 90 day bank bill rate as charged by the Company’s principal bankers at the time of forfeiture plus 5 percentage points and the Directors may enforce the payment of such moneys or any part thereof if they think fit, but they shall not be under any obligation so to do.
17(2) The liability, if any, of a person whose shares have been forfeited shall cease if the Company receives payment in full of all the money (including calls, instalments, interest and expenses) so payable in respect of the shares.
CALLS ON SHARES
18.
18(1) Subject to Article 21, the Directors may from time to time make such calls as they think fit upon the members in respect of all or any moneys unpaid on the shares (whether on account of the nominal value of the shares or by way of premium) held by them respectively and which are not by the conditions of allotment thereof made payable at fixed times.
18(2) A call may be made payable by instalments.
18(3) A call may be revoked, postponed or extended as the Directors may determine.
19.
A call shall be deemed to have been made at the time when the resolution of the Directors authorising such call was passed.
20.
20(1) Each member shall pay the amount of every call so made on the member according to the terms of the notice thereof.
20(2) Twenty‑one (21) days’ notice of any call shall be given to the members specifying the following:
(a) the name of the member;
(b) the number of shares held by the member;
(c) the amount of the call;
(d) the due date for payment;
(e) the place of payment; and
(f) the consequences of non‑payment.
20(3) The non‑receipt of a notice of a call by or the accidental omission to give notice of a call to any of the members shall not invalidate the call.
21.
21(1) If by the terms of issue of any share or otherwise any amount is made payable at any fixed time or by instalments at fixed times (whether on account of the nominal value of the share or by way of premium), every such amount or instalment shall be payable as if it were a call duly made by the Directors and of which due notice had been given.
21(2) In case of non‑payment the provisions of these Articles as to payment of interest and expenses forfeiture or otherwise shall apply as if such sum had become payable by virtue of a call duly made and notified.
22.
If a sum called is not paid on or before the date for payment thereof, the person from whom the sum is due shall pay interest on the sum (or on so much as remains unpaid from time to time) at the 90 day bank bill rate as charged by the Company’s principal bankers on the date the sum becomes due plus 5 percentage points, calculated from the day appointed for the payment thereof until the time of actual payment. The Directors may waive such interest in whole or in part.
23.
The joint holders of shares shall be severally as well as jointly liable for the payment of all amounts of instalments and calls in respect of such shares.
24.
Subject to Article 21 (1), during the Establishment Period the Directors shall not, but thereafter, the Directors may on the issue of shares differentiate between the holders as to the amount of calls to be paid and the times of payment.
25.
In the event of non‑payment of any call, the Company may proceed to recover the same with interest and expenses (if any) as hereinafter provided by action, suit or otherwise, but such right of action, suit or otherwise shall be without prejudice to the right, after the end of the Establishment Period, to forfeit the share of any member so in arrears and either or both of such rights may be exercised by the Directors in their discretion.
26.
On the trial or hearing of any action for the recovery of any call or of any interest or expenses upon or in respect of any call it shall be sufficient to prove that:
150.
The Directors may, from time to time, grant to members or any class of members, or to the holders of any convertible notes, debentures or unsecured notes of the Company, the right, upon such terms and conditions as the Directors may determine, to elect to reinvest all or part of the dividends, interest or any other moneys (as the case may be) paid by the Company in respect of any such holdings in subscribing for shares of the same or, at the Directors’ discretion, a different class in the capital of the Company or in subscribing for convertible notes, debentures, unsecured notes or any other securities issued or to be issued by the Company and, for any such purposes, may implement and maintain, on such terms and conditions as they may determine from time to time, any scheme or plan for such reinvestment and may, at their absolute discretion, modify or terminate any such scheme or plan by not less than one (1) month’s notice in writing to all members and holders of any convertible notes, debentures or unsecured notes issued by the Company, as the case may be eligible to participate in such scheme or plan.
CAPITALISATION OF PROFITS
151.
The Directors may resolve that it is desirable to capitalise any sum, being the whole or a part of the amount for the time being standing to the credit of any reserve account, or the profit and loss account or otherwise available for distribution to members, and that that sum be applied, in any of the ways mentioned in Article 152, for the benefit of members in the proportions to which those members would have been entitled in a distribution of that sum by way of dividend and such distribution or payment shall be accepted by such members in full satisfaction of their interests in the said capitalised sum.
152.
152(1) The ways in which a sum may be applied for the benefit of members under Article 150 are:
(a) in paying up any amounts unpaid on shares held by members;
(b) in paying up in full, either at par or at such premium as the Directors may resolve, unissued shares or debentures to be issued to members as fully paid; or
(c) partly as mentioned in paragraph (a) and partly as mentioned in paragraph (b).
152(2) Where the holders of any redeemable preference shares or issued shares of the company are by virtue only of the special terms of issue thereof, entitled to participate in any distribution pursuant to Article 151 whether at the time such distribution is made or at some future time such holders shall participate in any such distribution to the extent and in the manner authorised by the said terms of issue and all the provisions of Article 151 shall be subject to the said terms of issue and shall be deemed to be modified in order to give effect thereto.
153.
The Directors shall do all things necessary to give effect to the resolution made pursuant to Article 151 and, in particular, to the extent necessary to adjust the rights of the members among themselves, may:
(a) issue fractional certificates or make cash payments in cases where shares or debentures become issuable in fractions;
(b) fix the value for distribution of any specific assets or any part thereof;
(c) determine that cash payments shall be made to any members upon the footing of the value so fixed or that fractions of less value than fifty cents ($0.50) may be disregarded in order to adjust rights of all parties;
(d) vest any such cash or specific assets in trustees, upon trusts for the persons entitled to the dividend or capitalised fund; and
(e) authorise any person to make, on behalf of the members entitled to any further shares or debentures upon the capitalisation, an agreement with the Company providing for the issue to them, credited as fully paid up, of any such further shares or debentures or for the payment up by the Company on their behalf of the amounts remaining unpaid on their existing shares by the application of their respective proportions of the sum resolved to be capitalised,
and any agreement made under an authority referred to in paragraph (e) is effective and binding on all the members concerned.
154.
If the Company has redeemed any redeemable preference shares, or has issued any shares at a premium, the Directors may resolve that all or any part of any capital redemption fund arising from the redemption of such shares or shares premium account arising from such issue, may be applied in paying up in full any unissued shares to be issued to such members as would be entitled to receive the same if distributed by way of dividend equal to the nominal amount of the shares so issued or otherwise in such manner as may be authorised by the Law. Where requisite, a proper contract shall be filed in accordance with the Law and the Directors may appoint any person to sign such contract on behalf of the persons entitled to be dividend or capitalised fund and such appointment shall be effective.
NOTICES
155.
Subject to these Articles, a notice may be served by the Company upon any member either personally or by sending it by post addressed to such member at his or her address entered in the Registry or the address supplied by him or her for the giving of notices to him or her or where the facsimile number of the member is known to the Company, by facsimile transmission.
156.
It shall not be necessary to give notice of meetings to any person entitled to a share by transmission, unless such person shall have been duly registered as a member of the Company.
157.
A notice may be given by the Company to the joint holders of a share by giving the notice to the joint holder first named in the register of members in respect of the share.
158.
Where a notice is sent by post, service of the notice shall be deemed to be effected by properly addressing, prepaying and posting a letter containing the notice and to have been effected on the business day after the date of its posting. Notices and other documents for overseas shareholders shall be forwarded by air mail. Where notice is sent by facsimile transmission, notice shall be deemed to be effected forthwith upon such transmission, unless the member subsequently establishes that the notice was not in fact received by its facsimile machine.
159.
Every person, who by operation of law, transfer or other means whatsoever, becomes entitled to any share, shall be bound by every notice in respect of such share which, previously to his or her name and address being entered on the Register, has been duly given to the person from whom he or she derives his or her title and to every previous holder thereof.
160.
Subject to the Law, where a specified number of days notice or notice extending over any period is required to be given, the day of service shall not be, but the day upon which such notice will expire shall be included in such number of days or other period. The accidental omission to give any notice of a meeting to any member or the non‑receipt by any member of any notice shall not invalidate the proceedings at any meeting.
161.
Subject to law, all summonses, notices, processes, orders and judgments in relation to any legal proceedings by the Company or its liquidators against any member may be served by registered post and the foregoing provisions as to notices shall apply, mutatis mutandis, and such service shall be considered for all purposes to be personal service.
162.
Every summons notice order or other document required to be served upon the Company, or upon any officer of the Company, may be served by leaving the same at the Office.
163.
The signature to any notice to be given by the Company may be written or printed or stamped.
INDEMNITY
164.
164(1) Every person, who is or has held office as a Director, Auditor, Secretary or other officer of the Company and their respective executors or administrators, shall be indemnified out of the assets of the Company against any liability incurred by him or her in defending any proceedings, whether civil or criminal in which judgment is given in his or her favour, or in which he or she is acquitted or in connection with any application under the Law in which relief is granted to him or her by the Court in respect of any negligence, default, breach of duty or breach of trust.
164(2) Every person, who is or has held office as a Director, Secretary and other officer or employee of the Company and their respective executors or administrators, shall be indemnified by the Company from and against all costs losses and expenses which any such Director, Secretary or other officer or employee may properly incur or become liable to pay by reason of any contract entered into, or other act or thing done by any of them as such officer or employee, or in any way in the discharge of his or her duties and it shall be the duty of the Directors to pay the same out of the funds of the Company.
WINDING UP
165.
If the Company is wound up, the liquidator may, with the sanction of a special resolution of the Company, divide amongst the members in kind the whole or any part of the assets of the Company (whether they consist of property of the same kind or not) and may for that purpose set such value as he or she deems fair upon any property to be divided as aforesaid and may determine how the division shall be carried out as between the members or different classes of members. The liquidator may, with the like sanction, vest the whole or any part of any such assets in trustees upon such trusts for the benefit of the contributories as the liquidator with the like sanction thinks fit, but so that no member shall be compelled to accept any shares or other securities whereon there is any liability.
166.
The Company in general meeting shall not fix the remuneration to be paid to a liquidator pursuant to the Law, unless at least fourteen (14) days’ notice of the meeting has been given to the members and such notice has specified the amount of the proposed remuneration of the liquidator.
WE the several subscribers to the Memorandum of Association agree to the foregoing Articles of Association.
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DATED this day of 1991.
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The total number of shares held by the Commonwealth, the States and the other States and the number of shares to be issued to them pursuant to subclause 6 (8) (a) are set out in the Table below:
TABLE | |||||||||
Initial Shareholding | 5th State Joins | 6th State Joins | |||||||
Ordinary B Shares | Convertible | Ordinary B Shares | Convertible Shares | Ordinary B Shares | Convertible Shares | ||||
COMMONWEALTH | |||||||||
· new shares issued…. | 135 | 25 | 84 | — | |||||
· total shares held after issue | 270 | 125 | 405 | 150 | 489 | 150 | |||
NEW SOUTH WALES | |||||||||
· new shares issued… | 68 | 25 | 41 | — | |||||
· total shares held after issue | 140 | 125 | 208 | 150 | 249 | 150 | |||
VICTORIA | |||||||||
· new shares issued…. | 35 | 25 | 18 | — | |||||
· total shares held after issue | 65 | 125 | 100 | 50 | 118 | 150 | |||
WESTERN AUSTRALIA | |||||||||
· new shares issued…. | 12 | 25 | 7 | — | |||||
· total shares held after issue | 25 | 125 | 37 | 150 | 44 | 150 | |||
5TH STATE | |||||||||
· new shares issued…. | — | — | — | 150 | — | — | |||
· total shares held after issue | — | — | — | 150 | — | — | |||
6TH STATE | |||||||||
· new shares issued…. | — | — | — | — | — | 150 | |||
· total shares held after issue | — | — | — | — | — | 150 | |||
1991‑1992 $M | 1992‑1993 $M | 1993‑1994 $M | 1994‑1995 $M | 1995‑1996 $M | 1996‑1997 $M | TOTAL $M | |
CWLTH | 40.0 | 131.6 | 58.7 | 37.1 | 22.3 | 6.1 | 295.8 |
NSW | — | — | 9.5 | 14.0 | 23.6 | 28.5 | 75.6 |
VIC | — | — | 2.2 | 11.7 | 11.7 | 9.5 | 35.1 |
WA | — | — | 1.0 | 2.0 | 2.5 | 2.5 | 8.0 |
TOTAL | 40.0 | 131.6 | 71.4 | 64.8 | 60.1 | 46.6 | 414.5 |
The
For application, saving or transitional provisions made by the
For all relevant information pertaining to application, saving or transitional provisions
Act | Number and year | Date of Assent | Date of commencement | Application, saving or transitional provisions |
26, 1992 | 12 May 1992 | 1 Aug 1992 ( | ||
96, 1997 | 30 June 1997 | Schedule 4 (items 10–15): 1 Nov 2000 ( | — | |
121, 1997 | 8 July 1997 | Schedule 3 (item 72): | — | |
55, 2001 | 28 June 2001 | Ss. 4‑14 and Schedule 3 (items 390–396): 15 July 2001 ( | Ss. 4–14 [ | |
101, 2006 | 14 Sept 2006 | Schedule 2 (item 898) and Schedule 6 (items 1, 6–11): Royal Assent | Sch. 6 (items 1, 6–11) |
(a) TheNational Rail Corporation Agreement Act 1992 was amended by Schedule 4 (items10–15) only of the
Australian National Railways Commission Sale Act 1997 , subsection 2(5) of which provides as follows:
(5) The remaining items of Schedule 3 and Schedule 4 commence on a day to be fixed by Proclamation. The day must not be earlier than the later of the day proclaimed for the purposes of subsection (2) and the day proclaimed for the purposes of subsection (3).
(b) TheNational Rail Corporation Agreement Act 1992 was amended by Schedule 3 (item 72) only of theTax Law Improvement Act 1997 , subsections 2(2) and (3) of which provide as follows:
(2) Schedule 1 commences on 1 July 1997 immediately after the commencement of the
Income Tax Assessment Act 1997 .(3) Each of the other Schedules (except Schedule 12) commences immediately after the commencement of the immediately preceding Schedule.
(c) TheNational Rail Corporation Agreement Act 1992 was amended by Schedule 3 (items390–396) only of the
Corporations (Repeals, Consequentials and Transitionals) Act 2001 , subsection 2(3) of which provides as follows:
(3) Subject to subsections (4) to (10), Schedule 3 commences, or is taken to have commenced, at the same time as the
Corporations Act 2001 .
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Provision affected | How affected |
S. 3......................................... | am. No. 96, 1997 |
S. 8......................................... | am. No. 121, 1997; No. 55, 2001; No. 101, 2006 |
S. 9......................................... | am. No. 96, 1997 |
S. 13....................................... | am. No. 55, 2001 |
S. 14....................................... | am. No. 96, 1997 |
S. 16....................................... | am. No. 55, 2001 |
Tax Laws Amendment (Repeal of Inoperative Provisions) Act 2006 (No. 101, 2006)
Except as mentioned in items 2 and 3, the repeals and amendments made by Schedules 1 and 2 apply:
(a) so far as they affect assessments—to assessments for the 2006‑07 income year and all later income years; and
(b) otherwise—to acts done or omitted to be done, or states of affairs existing, after the commencement of the repeals and amendments.
The object of this Part is to ensure that, despite the repeals and amendments made by this Act, the full legal and administrative consequences of:
(a) any act done or omitted to be done; or
(b) any state of affairs existing; or
(c) any period ending;
before such a repeal or amendment applies, can continue to arise and be carried out, directly or indirectly through an indefinite number of steps, even if some or all of those steps are taken after the repeal or amendment applies.
7
Making and amending assessments, and doing other things, in relation to past matters Even though an Act is repealed or amended by this Act, the repeal or amendment is disregarded for the purpose of doing any of the following under any Act or legislative instrument (within the meaning of the
Legislative Instruments Act 2003 ):
(a) making or amending an assessment (including under a provision that is itself repealed or amended);
(b) exercising any right or power, performing any obligation or duty or doing any other thing (including under a provision that is itself repealed or amended);
in relation to any act done or omitted to be done, any state of affairs existing, or any period ending, before the repeal or amendment applies.
Example 1: On 31 July 1999, Greg Ltd lodged its annual return under former section 160ARE of the
Income Tax Assessment Act 1936 . The return stated that the company had a credit on its franking account and that no franking deficit tax was payable for the 1998‑99 franking year. Under former section 160ARH of that Act, the Commissioner was taken to have made an assessment consistent with the return.Following an audit undertaken after the repeal of Part IIIAA of that Act, the Commissioner concludes that Greg Ltd fraudulently overfranked dividends it paid during the 1998‑99 franking year, and had a franking account deficit for that franking year. As a result, the Commissioner considers that franking deficit tax and a penalty by way of additional tax are payable.
The Commissioner can amend the assessment under former section 160ARN of that Act, because item 7 of this Schedule disregards the repeal of that section for the purposes of making an assessment in relation to the 1998‑99 franking year. Item 7 will also disregard the repeal of Division 11 of former Part IIIAA to the extent necessary for the Commissioner to assess Greg Ltd’s liability to a penalty by way of additional tax.
Despite the repeal of sections 160ARU and 160ARV, item 9 will ensure that the general interest charge will accrue on the unpaid franking deficit tax and penalty until they are paid.
Item 7 will also preserve Greg Ltd’s right, under former section 160ART of that Act, to object against the Commissioner’s amended assessment (including the penalty), since the objection is the exercise of a right in relation to a franking year that ended before the repeal of Part IIIAA.
Example 2: During the 1997‑98 income year, Duffy Property Ltd withheld amounts from its employees’ wages as required by former Divisions 1AAA and 2 of Part VI of the
Income Tax Assessment Act 1936 . The company failed to notify the Commissioner of those amounts, and failed to remit them to the Commissioner.Following an audit undertaken after the repeal of those Divisions, the Commissioner discovers that the withheld amounts have not been remitted. The company’s records are incomplete and the Commissioner is unable to completely ascertain the extent of its liability for the withheld amounts. Under section 222AGA of that Act, the Commissioner makes an estimate of the liability.
Item 7 will disregard the repeal of section 220AAZA of that Act (which empowered the Commissioner to recover the amount of the estimate). Even though the estimate is made after the repeal, it relates to amounts withheld before the repeal.
8
Saving of provisions about effect of assessments If a provision or part of a provision that is repealed or amended by this Act deals with the effect of an assessment, the repeal or amendment is disregarded in relation to assessments made, before or after the repeal or amendment applies, in relation to any act done or omitted to be done, any state of affairs existing, or any period ending, before the repeal or amendment applies.
9
Saving of provisions about general interest charge, failure to notify penalty or late reconciliation statement penalty If:
(a) a provision or part of a provision that is repealed or amended by this Act provides for the payment of:
(i) general interest charge, failure to notify penalty or late reconciliation statement penalty (all within the meaning of the
Income Tax Assessment Act 1936 ); or(ii) interest under the
Taxation (Interest on Overpayments and Early Payments) Act 1983 ; and(b) in a particular case, the period in respect of which the charge, penalty or interest is payable (whether under the provision or under the
Taxation Administration Act 1953 ) has not begun, or has begun but not ended, when the provision is repealed or amended;then, despite the repeal or amendment, the provision or part continues to apply in the particular case until the end of the period.
10
Repeals disregarded for the purposes of dependent provisions If the operation of a provision (the
subject provision ) of any Act or legislative instrument (within the meaning of theLegislative Instruments Act 2003 ) made under any Act depends to any extent on an Act, or a provision of an Act, that is repealed by this Act, the repeal is disregarded so far as it affects the operation of the subject provision.
11
Schedule does not limit operation of section 8 of the Acts Interpretation Act 1901 This Schedule does not limit the operation of section 8 of the
Acts Interpretation Act 1901 .
0
0
0