Snowy Mountains Engineering Corporation (Conversion into Public Company) Act 1989 (Cth)
PART I—PRELIMINARY
Section
1. Short title
2. Commencement
PART II—AMENDMENTS OF THE SNOWY MOUNTAINS ENGINEERING CORPORATION ACT 1970
3. Principal Act
4. Title
5. Insertion of new sections:
3. Interpretation
3a. Operating under a name
3b. Subsidiaries
3c. Operation of Act
3d. Extension to external Territories
6. Repeal of sections 4 and 5
7. Repeal of Part II
8. Heading to Part III
9. Additional functions
10. Repeal of section 18 and substitution of section:
18. Additional powers
11. Insertion of new Part:
PART IIIa—CREATION OF CAPITAL STRUCTURE AND OTHER STEPS PRIOR TO CONVERSION OF SMEC INTO A PUBLIC COMPANY
18a. Share capital of SMEC
18b. Issue of shares
TABLE OF PROVISIONS—continued
Section
18c. SMEC to apply to be registered as company etc.
18d. New name of SMEC
12. Repeal of Parts IV and V and insertion of new Part:
PART IV—CONVERSION OF SMEC INTO A PUBLIC COMPANY
19. Effect of Part—summary
20. SMEC taken to be registered under Companies Act
21. Memorandum and articles of SMEC
22. Membership of SMEC
23. Application of certain provisions of Companies Act
24. Accounting records
25. Accounts
26. Operation of section 25b of Acts Interpretation Act
13. Insertion of new Parts:
PART Va—USE OF CERTAIN NAMES
39a. Protected body may operate under protected company name
39b. Protected body may operate under protected business name
39c. Other persons not to use protected names
39d. Exceptions for pre-existing rights
39e. Use of other names by protected bodies
39f. Effect on State and Territory laws
PART Vb—STAFF MATTERS
39g. Employment of staff members continues after transition
39h. Act not to affect certain matters relating to staff members
39j. Effect of sections 39g and 39h
39k. Variation of terms and conditions of employment
39l. Application of Part IV of Public Service Act
PART Vc—TAXATION MATTERS
39m. Interpretation
39n. Exemptions relating to exempt matters
39p. Authorised person may certify in relation to exemptions
39q. SMEC taken to have had share capital for purposes of Income Tax Assessment Act
14. Repeal of Part VI
15. Repeal of sections 51 to 54 (inclusive) and substitution of sections:
51. SMEC not public authority etc.
52. Judicial notice of SMEC’s seal
53. Compensation for acquisition of property
54. Public Works Committee Act
54a. Lands Acquisition Act
54b. Additional powers and functions under State laws
PART III—CONSEQUENTIAL AMENDMENTS OF OTHER ACTS
16. Consequential amendments
SCHEDULE
CONSEQUENTIAL AMENDMENTS OF OTHER ACTS
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BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:
2. (1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.
3. In this Part, “Principal Act” means the
4. The title of the Principal Act is repealed and the following title is substituted:
“3. In this Act, unless the contrary intention appears:
‘articles’ means articles of association;
‘Australia’ includes the external Territories;
‘authorised person’ means:
(a) the Minister; or
(b) the holder of an authorising office;
‘authorising office’ means an office, in the Department, which is declared by writing signed by the Minister to be an authorising office for the purposes of this definition;
‘employment’, in relation to a staff member, means employment by, or service with, SMEC;
‘engineering work’ includes:
(a) an actual or proposed continuation, completion, repair, alteration, restriction or extension of an engineering work; or
(b) a proposed engineering work;
‘group company’ means:
(a) SMEC; or
(b) a wholly-owned subsidiary of SMEC;
‘member’, in relation to SMEC at any time before the transition, includes a Director;
‘memorandum’ means memorandum of association;
‘operate’, in relation to a name, has the meaning given by section 3a;
‘protected body’ means a group company that is a trading corporation or a financial corporation, within the meaning of paragraph 51 (20) of the Constitution;
‘protected business name’ means any of the following names:
(a) ‘SMEC’;
(b) ‘Snowy Mountains Engineering Corporation’;
(c) such other names as are prescribed for the purposes of this definition;
‘protected company name’ means any of the following names:
(a) ‘Snowy Mountains Engineering Corporation Limited’;
(b) such other names as are prescribed for the purposes of this definition;
‘protected name’ means a protected business name or a protected company name;
‘protection time’, in relation to a protected name, means the time immediately before:
(a) in the case of a name prescribed for the purposes of the definition of ‘protected business name’ or ‘protected company name’—the name first becoming prescribed; or
(b) in any other case—the commencement of section 13 of the
Snowy Mountains Engineering Corporation (Conversion into Public Company) Act 1989 ;‘registered’, in relation to a name, includes reserved;
‘SMEC’ means the body corporate that, at the commencement of this section, exists, because of this Act, under the name ‘Snowy Mountains Engineering Corporation’;
‘share’, in relation to SMEC, means a share in the share capital of SMEC;
‘staff member’ means a person who, immediately before the transition, is:
(a) the Managing Director of SMEC; or
(b) an officer or employee of SMEC;
‘subsidiary’ has the meaning given by section 3b;
‘transition’ means the commencement of Part IV, being the Part substituted by section 12 of the
Snowy Mountains Engineering Corporation (Conversion into Public Company) Act 1989 ;‘wholly-owned subsidiary’, in relation to SMEC, means a body corporate:
(a) that is a subsidiary of SMEC;
(b) none of whose members is a person other than:
(i) SMEC;
(ii) a body corporate that is, under any other application or applications of this definition, a wholly-owned subsidiary of SMEC; or
(iii) a nominee of SMEC or of a body of a kind referred to in subparagraph (ii); and
(c) no share in which is beneficially owned by a person other than:
(i) SMEC; or
(ii) a body of a kind referred to in subparagraph (b) (ii).
“3a. A reference in this Act to a protected body operating in a State or Territory under a particular name includes a reference to the body engaging in conduct that, for the purposes of a law in force in the State or Territory, constitutes:
(a) in any case—using the name in the State or Territory;
(b) if the name is the body’s name—establishing a place of business, or carrying on a business, within the State or Territory; or
(c) if paragraph (b) does not apply—carrying on business under the name in the State or Territory.
“3b. For the purposes of this Act, the question whether a body corporate is a subsidiary of another body corporate shall be determined in the same manner as the question whether a corporation is a subsidiary of another corporation is determined under the
“3c. This Act applies both within and outside Australia.
“3d. This Act extends to all external Territories.”.
7.
(a) by inserting “
ADDITIONAL ” before “FUNCTIONS ”;(b) by omitting “
THE CORPORATION ” and substituting “SMEC ”.
(a) by omitting subsections (1) and (1a) and substituting the following subsection:
“(1) The functions of SMEC include investigating, advising on, designing, supervising, and constructing, engineering works.”;
(b) by omitting from subsection (2) “the Corporation” and substituting “SMEC”;
(c) by omitting from subsection (2) “or (1a)”;
(d) by omitting subsections (3) and (6) and substituting the following subsections:
“(3) The Minister may, in writing, approve the exercise by SMEC of a function referred to in subsection (1).
“(4) This section has effect subject to the
Companies Act 1981 and to SMEC’s memorandum and articles.”.
“18. (1) SMEC has power to do all things necessary or convenient to be done for, or in connection with, the performance of a function referred to in subsection 17 (1).
“(2) Subsection (1) shall not be taken to limit by implication any power that SMEC has apart from that subsection.
“(3) This section has effect subject to the
“18a. (1) As from the commencement of this Part, SMEC shall have a share capital divided into shares of $1 each.
“(2) As soon as practicable after the commencement of this Part, the Minister shall determine, in writing, whether SMEC is to issue shares under section 18b at par or at a premium per share of a specified amount.
“(3) The amount of SMEC’s share capital shall be the number of whole dollars in the amount ascertained in accordance with the formula:
where:
(a) $1, being the nominal value of each of SMEC’s shares; and
(b) the amount of the premium per share (if any) determined under subsection (2).
“(4) As from the transition, this section has effect subject to the
“18b. (1) As soon as practicable after the determination under subsection 18a(2) is made, SMEC shall apply an amount equal to the amount of its share capital in paying up, in full, shares in SMEC.
“(2) As soon as practicable after complying with subsection (1), SMEC shall issue the shares paid up under that subsection:
(a) to the Commonwealth; or
(b) to nominees of the Commonwealth;
as the Minister directs in writing.
“(3) The issue of shares under subsection (2) discharges in full SMEC’s obligations to repay to the Commonwealth the capital that SMEC has by virtue of section 41.
“(4) The shares issued under subsection (2) shall be taken to have been issued for valuable consideration other than cash, being the discharge effected by subsection (3).
“(5) If, under the determination made under subsection 18a (2), SMEC is to issue shares under this section at a premium, SMEC shall be taken:
(a) to have issued at a premium the shares issued under subsection (2); and
(b) to have received for those shares premiums of a total value equal to the amount by which $5,207,807 exceeds the amount of SMEC’s share capital.
“(6) An amount equal to the total value of the premiums that SMEC is, under paragraph (5) (b), taken to have received shall be transferred by SMEC to an account maintained by it, to be called the ‘share premium account’.
“(7) A person is not a member of SMEC at any time before the transition merely because the person holds shares in SMEC.
“18c. (1) SMEC shall, before the transition:
(a) apply to the National Companies and Securities Commission under subsection 85 (1) of the
Companies Act 1981 to be registered as a company limited by shares within the meaning of that Act;(b) apply to the National Companies and Securities Commission under subsection 55 (1) of the
Companies Act 1981 for the reservation of the name ‘Snowy Mountains Engineering Corporation Limited’; and(c) lodge with the National Companies and Securities Commission a proposed memorandum, and proposed articles, for SMEC.
“(2) The application mentioned in paragraph (1) (a) shall, subject to the regulations, be accompanied by the documents required by subsection 85 (4) of the
“(3) The applications mentioned in paragraphs (1) (a) and (b) shall be made to the National Companies and Securities Commission by delivering them to the office of the Corporate Affairs Commission for the Australian Capital Territory, and the documents mentioned in paragraph (1) (c) and subsection (2) shall be lodged with the National Companies and Securities Commission by lodging them at that office.
“(4) SMEC shall be taken to be entitled to make the applications mentioned in paragraphs (1) (a) and (b), and to lodge the documents mentioned in paragraph (1) (c) and subsection (2).
“(5) The National Companies and Securities Commission shall be taken:
(a) to have been required to reserve the name ‘Snowy Mountains Engineering Corporation Limited’ under subsection 55 (2) of the
Companies Act 1981 ; and(b) to have so reserved that name immediately after the making of the application mentioned in paragraph (1) (b).
“18d. (1) On the day immediately before the transition, SMEC’s name is, by force of this subsection, changed to ‘Snowy Mountains Engineering Corporation Limited’.
“(2) Subsection 65 (5) of the
(a) SMEC were a company, within the meaning of that Act, when the change is made; and
(b) the change were made under that Act.
“(3) This section has effect in spite of anything in the
(a) SMEC from later changing its name under section 65 of that Act; or
(b) the cancellation, under Division 2 of Part III of that Act, of the registration of a name.”.
“19. After the commencement of this Part:
(a) SMEC is a company registered under the
Companies Act 1981 ;(b) SMEC’s name is ‘Snowy Mountains Engineering Corporation Limited’;
(c) SMEC is a public company, and a company limited by shares, within the meaning of the
Companies Act 1981 ; and(d) the
Companies Act 1981 applies, subject to this Act, in relation to SMEC.
“20. (1) The National Companies and Securities Commission shall be taken:
(a) to have been required to grant the application mentioned in paragraph 18c (1) (a) of this Act and to register SMEC as a company under subsection 86 (2) of the
Companies Act 1981 ;(b) to have granted the application at the commencement of this Part;
(c) to have so registered SMEC, at the commencement of this Part:
(i) by the name ‘Snowy Mountains Engineering Corporation Limited’; and
(ii) in accordance with subsections 86 (3) and (4) of the
Companies Act 1981 , as a public company, and as a company limited by shares, within the meaning of that Act; and(d) to have registered the name ‘Snowy Mountains Engineering Corporation Limited’ in relation to SMEC at the commencement of this Part, under subsection 55 (4) of the
Companies Act 1981.
“(2) The date of commencement of SMEC’s registration as a company under Division 4 of Part III of the
“(3) For the purposes of Division 4 of Part III of the
“21. (1) As from the commencement of this Part, the proposed memorandum, and the proposed articles, lodged under paragraph 18c (1) (c):
(a) are respectively the memorandum and articles of SMEC; and
(b) bind SMEC and its members accordingly.
“(2) As from the commencement of this Part, the
“22. (1) Each person who holds shares in SMEC at the commencement of this Part becomes, by force of this subsection, a member of SMEC at that commencement.
“(2) A person referred to in subsection (1) is, in relation to membership of SMEC, entitled to the same rights, privileges and benefits, and is subject to the same duties, liabilities and obligations, as if the person had become a member of SMEC under SMEC’s memorandum and articles.
“23. (1) Where all the shares in SMEC are beneficially owned by the Commonwealth, subsection 82 (1) and paragraph 364 (1) (d) of the
(a) the Commonwealth were a holding company, within the meaning of that subsection, of SMEC;
(b) the Commonwealth held the whole of the issued shares in SMEC; and
(c) the Minister were a representative of the Commonwealth authorised under subsection 244 (3) of that Act.
“(2) Paragraph 86 (6) (b) and subsections 87 (4) and 90 (5) of the
“(3) The
“(4) For the purposes of section 360 of the
“24. For the purposes of the
“25. (1) This section has effect for the purposes of:
(a) the
Companies Act 1981 ; and(b) the
Companies (Transitional Provisions) Act 1981 as it applies in relation to, and in relation to persons and matters associated with, SMEC because of subsection 90 (6) of theCompanies Act 1981.
“(2) A report and financial statements that were prepared under section 63h of the
(a) made out in relation to that period; and
(b) laid before SMEC at an annual general meeting of SMEC held on that day.
“26. Nothing in this Act or in the
“39a. A protected body whose name is a protected company name may operate under the name in a State or Territory even if the name is not
registered in relation to the body under a particular law, or any law, in force in the State or Territory.
“39b. (1) A protected body may operate under a protected business name in a State or Territory even if the name is not registered in relation to the body under a particular law, or any law, in force in the State or Territory.
“(2) Nothing in this section permits more than one body to operate under the same name at the same time in the same State or Territory.
“39c. (1) A person other than a protected body shall not:
(a) use in relation to a business, trade, profession or occupation;
(b) use as the name, or as part of the name, of any firm, body corporate, institution, premises, vehicle, ship or craft (including aircraft);
(c) apply, as a trade mark or otherwise, to goods imported, manufactured, produced, sold, offered for sale or let for hire; or
(d) use in relation to:
(i) goods or services; or
(ii) the promotion, by any means, of the supply or use of goods or services;
a protected name, or a name so closely resembling a protected name as to be likely to be mistaken for it.
Penalty: $1,000.
“(2) Nothing in subsection (1) limits anything else in that subsection.
“39d. (1) Nothing in section 39c, so far as it applies in relation to a particular protected name, affects rights conferred by law on a person in relation to:
(a) a trade mark that is registered under the
Trade Marks Act 1955 ; or(b) a design that is registered under the
Designs Act 1906 ; and was so registered at the protection time in relation to the name.
“(2) Nothing in section 39c, so far as it applies in relation to a particular protected name, affects the use, or rights conferred by law relating to the use, of a name (in this subsection called the ‘relevant name’) by a person in a particular manner if, at the protection time in relation to the protected name, the person:
(a) was using the relevant name in good faith in that manner; or
(b) would have been entitled to prevent another person from passing off, by means of the use of the relevant name or a similar name, goods or services as the goods or services of the first-mentioned person.
“39e. This Part does not prevent a protected body from operating in a State or Territory under a name other than a protected name.
“39f. This Part does not prevent a protected body from registering a name under a law of a State or Territory.
“39g. Subject to this Part, each staff member continues, at and after the transition, to be employed by SMEC on the terms and conditions on which he or she was employed by SMEC immediately before the transition.
“39h. (1) This section has effect for the purposes of the application, at any time at or after the transition, of a law, award, determination or agreement in relation to the employment of a staff member.
“(2) Neither his or her contract of employment, nor his or her period of employment, shall be taken to have been broken by the operation of this Act.
“(3) Without limiting section 39g or subsection (2) of this section, this Act does not affect any accrued rights that the staff member had immediately before the transition in relation to any kind of leave.
“(4) Where:
(a) if the staff member had, immediately before the transition, ceased to be employed by SMEC, it would have been necessary to take into account a period during which the staff member was employed by SMEC or any other person to determine:
(i) an amount payable to the staff member; or
(ii) a benefit to which the staff member would have been entitled; because of his or her so ceasing; and
(b) but for this subsection, some or all of that period would not have to be taken into account as a period during which the staff member was employed by SMEC;
SMEC shall treat the whole of the first-mentioned period as a period during which the staff member was employed by it.
“39j. Sections 39g and 39h are enacted only for the avoidance of doubt and, in particular, do not limit subsection 65 (5) or 87 (2) of the
“39k. (1) It is a term of each staff member’s employment after the transition that the terms and conditions of that employment may be varied to the extent to which, and in the manner in which, the terms and conditions of his or her employment could, immediately before the transition, be varied under this Act.
“(2) Nothing in this Part prevents the terms and conditions of a staff member’s employment after the transition from being varied:
(a) in accordance with those terms and conditions; or
(b) by or under a law, award, determination or agreement.
“(3) In this section:
‘terms and conditions’ includes a term or condition existing because of subsection (1);
‘vary’, in relation to terms and conditions, includes vary by way of:
(a) omitting any of those terms and conditions;
(b) adding to those terms and conditions; or
(c) substituting new terms or conditions for any of those terms and conditions.
“39l. For the purposes of the application of Part IV of the
“39m. In this Part:
‘exempt matter’ means:
(a) the issue of shares under subsection 18b (2);
(b) the reservation of name made by paragraph 18c (5) (b);
(c) the change of name made by subsection 18d (1);
(d) SMEC’s registration as a company by force of this Act;
(e) the operation of this Act; or
(f) giving effect to a matter referred to in another paragraph of this definition or otherwise giving effect to this Act;
‘tax’ includes:
(a) sales tax;
(b) tax imposed by the
Debits Tax Act 1982 ;(c) fees payable under the
Companies (Fees )Act 1981 ;(d) stamp duty; and
(e) any other tax, fee, duty, levy or charge;
but does not include income tax imposed as such by a law of the Commonwealth.
“39n. Tax under a law of the Commonwealth or a State or Territory is not payable in relation to:
(a) an exempt matter; or
(b) anything done (including a transaction entered into or an instrument or document made, executed, lodged or given) because of, or for a purpose connected with or arising out of, an exempt matter.
“39p. (1) An authorised person may, by signed writing, certify that:
(a) a specified matter or thing is an exempt matter; or
(b) a specified thing was done (including, for example, a transaction entered into or an instrument or document made, executed, lodged or given) because of, or for a purpose connected with or arising out of, a specified exempt matter.
“(2) For all purposes and in all proceedings, a certificate under subsection (1) is conclusive evidence of the matters certified, unless the contrary is established.
“39q. For the purposes of the
“51. SMEC, as it exists after the transition, shall be taken for the purposes of a law of the Commonwealth or a State or Territory:
(a) not to have been incorporated or established for a public purpose or for a purpose of the Commonwealth; and
(b) not to be a public authority or an instrumentality or agency of the Crown;
except so far as express provision is made by a law of the Commonwealth, State or Territory, as the case may be.
“52. (1) All courts, judges and persons acting judicially shall take judicial notice of the imprint of SMEC’s seal appearing on a document and shall presume that it was duly affixed.
“(2) Subection (1) applies only in relation to an imprint that was affixed, or appears to have been affixed, before the transition.
“53. (1) Where, but for this section, the operation of this Act would result in the acquisition of property from a person otherwise than on just terms, there is payable to the person by SMEC such reasonable amount of compensation as is agreed between the person and SMEC or, failing agreement, as is determined by a court of competent jurisdiction.
“(2) Any damages or compensation recovered or other remedy given in proceedings that are instituted otherwise than under this section shall be taken into account in assessing compensation payable in proceedings that are instituted under this section and that arise out of the same event or transaction.
“(3) In this section, ‘acquisition of property’ and ‘just terms’ have the same respective meanings as in paragraph 51 (31) of the Constitution.
“54. The
“54a. (1) The
“(2) In subsection (1):
‘interest’, in relation to land, means:
(a) a legal or equitable estate or interest in the land; or
(b) a right, power or privilege over, or in relation to, the land.
“54b. (1) It is the intention of the Parliament that SMEC should have any additional powers and functions that are conferred on it by or under a law of a State.
“(2) Subsection (1) has effect subject to the regulations.”.
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CONSEQUENTIAL AMENDMENTS OF OTHER ACTS
Omit “Snowy Mountains Engineering Corporation”, substitute “Snowy Mountains Engineering Corporation Limited”.
Omit “Snowy Mountains Engineering Corporation”.
Omit “Snowy Mountains Engineering Corporation”.
1. No. 39, 1970, as amended. For previous amendments, see No. 125, 1970; No. 22, 1971; Nos. 74 and 216, 1973; No. 36, 1978; No. 101, 1985; No. 76, 1986; and No. 123, 1988.
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House of Representatives on 5 April 1989
Senate on 4 May 1989
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