An Act relating to the constitution of CSL as a public company, and for other purposes
Part 1—Preliminary
1 Short title
This Act may be cited as the Commonwealth Serum Laboratories Act 1961.
2 Commencement
This Act shall come into operation on a date to be fixed by Proclamation.
3 Interpretation
In this Act, unless the contrary intention appears:
articles means articles of association.
CSL means the body corporate that, at the commencement of this section, exists, because of this Act, under the name “Commonwealth Serum Laboratories Commission”.
employment, in relation to a staff member, means employment by, or service with, CSL.
member, in relation to CSL at any time before the transition, includes a Commissioner and the Managing Director.
memorandum means memorandum of association.
share, in relation to CSL, means a share in the share capital of CSL.
staff member means a person who, immediately before the transition is:
(a) the Managing Director of CSL; or
(b) an officer or employee of CSL.
subsidiary has the meaning given by section 5.
transferring asset means an asset to which a determination under paragraph 31A(1)(a) applies.
transferring liability means a liability to which a determination under paragraph 31A(1)(b) applies.
transition means the commencement of Part 3, being the Part inserted by section 13 of the Commonwealth Serum Laboratories (Conversion into Public Company) Act 1990.
wholly‑owned subsidiary, in relation to CSL, means a body corporate:
(a) that is a subsidiary of CSL; and
(b) none of whose members is a person other than:
(i) CSL; or
(ii) a body corporate that is, under any other application or applications of this definition, a wholly‑owned subsidiary of CSL; or
(iii) a nominee of CSL 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) CSL; or
(ii) a body of a kind referred to in subparagraph (b)(ii).
5 Subsidiaries
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 way as the question whether a corporation is a subsidiary of another corporation is determined under the Corporations Act 2001.
6 Operation of Act
This Act applies both within and outside Australia.
7 Extension to external Territories
This Act extends to all external Territories.
Part 2—Creation of capital structure and other steps prior to conversion of CSL into a public company
8 Share capital of CSL
(1) As from the commencement of this Part, CSL is to have an authorised and issued share capital.
(2) The amount of the issued share capital must be equal to the amount that subsection 9(1) requires to be applied as mentioned in that subsection.
(3) The share capital must be divided into shares of $1 each.
(4) The share capital may be divided into classes of shares.
(5) As from the transition, this section has effect subject to the Corporations Act 2001.
9 Issue of shares in CSL
(1) As soon as practicable after the commencement of this Part, CSL must apply the capital that it has at that commencement in paying up, in full, shares in CSL.
(2) If the amount of the capital is not a multiple of $1, subsection (1) applies as if the amount were reduced to the nearest multiple of $1.
(3) As soon as practicable after complying with subsection (1), CSL 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.
(4) Rights may be attached to shares included in a class of shares.
(5) The issue of shares under subsection (3) discharges in full CSL’s obligations to repay the capital to the Commonwealth.
(6) The shares issued under subsection (3) are to be taken to have been issued for valuable consideration other than cash, being the discharge effected by subsection (5).
(7) A person is not a member of CSL at any time before the transition merely because the person holds shares in CSL.
10 CSL to apply to be registered as company etc.
(1) CSL must, 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; and
(b) apply to the National Companies and Securities Commission under subsection 55(1) of the Companies Act 1981 for the reservation of the name “Commonwealth Serum Laboratories Limited”; and
(c) lodge with the National Companies and Securities Commission a proposed memorandum, and proposed articles, for CSL; and
(d) if the rights attached to shares included in a class of shares under subsection 9(4) are not provided for in the memorandum or articles, lodge with the National Companies and Securities Commission the statement referred to in subsection 124(1) of the Companies Act 1981.
(2) Subject to the regulations, the application mentioned in paragraph (1)(a) must be accompanied by the documents required by subsection 85(4) of the Companies Act 1981 to accompany such an application.
(3) The applications mentioned in paragraphs (1)(a) and (b) must 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 paragraphs (1)(c) and (d) and subsection (2) must be lodged with the National Companies and Securities Commission by lodging them at that office.
(4) CSL is to be taken to be entitled to make the applications referred to 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 is to be taken:
(a) to have been required to reserve the name “Commonwealth Serum Laboratories 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).
11 New name of CSL
(1) On the day immediately before the transition, CSL’s name is, by force of this subsection, changed to “Commonwealth Serum Laboratories Limited”.
(2) Subsection 65(5) of the Companies Act 1981 applies in relation to the change of name made by subsection (1) as if:
(a) CSL was a company, within the meaning of that Act, when the change was made; and
(b) the change was made under that Act.
(3) This section has effect in spite of anything in the Companies Act 1981, but nothing in this section prevents:
(a) CSL 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.
Part 3—Conversion of CSL into a public company
12 Effect of Part—summary
After the commencement of this Part:
(a) CSL is a company registered under the Companies Act 1981; and
(b) CSL’s name is “Commonwealth Serum Laboratories Limited”; and
(c) CSL is a public company, and a company limited by shares, within the meaning of that Act; and
(d) that Act applies, subject to this Act, in relation to CSL.
13 CSL taken to be registered under Companies Act
(1) The National Companies and Securities Commission is to be taken:
(a) to have been required to grant the application mentioned in paragraph 10(1)(a) and to register CSL as a company under subsection 86(2) of the Companies Act 1981; and
(b) to have granted the application at the commencement of this Part; and
(c) to have so registered CSL, at the commencement of this Part:
(i) by the name “Commonwealth Serum Laboratories 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 “Commonwealth Serum Laboratories Limited” in relation to CSL at the commencement of this Part, under subsection 55(4) of the Companies Act 1981.
(2) The date of commencement of CSL’s registration as a company under Division 4 of Part III of the Companies Act 1981 is to be taken to be the day of commencement of this Part.
(3) For the purposes of Division 4 of Part III of the Companies Act 1981, CSL shall be taken to have been on the day before the commencement of this Part, and to be at that commencement, a corporation within the meaning of that Act.
14 Memorandum and Articles of CSL
(1) As from the commencement of this Part, the proposed memorandum, and the proposed articles, lodged under paragraph 10(1)(c):
(a) are respectively the memorandum, and the articles, of CSL; and
(b) bind CSL and its members accordingly.
(2) As from the commencement of this Part, the Companies Act 1981 applies in relation to CSL’s memorandum and articles as if they had been registered as such under that Act.
15 Membership of CSL
(1) A person who immediately before the commencement of this Part was, or was acting as, a member of CSL, ceases at that commencement to be, or to act as, such a member.
(2) Each person who holds shares in CSL at the commencement of this Part becomes, by force of this subsection, a member of CSL at that commencement.
(3) A person referred to in subsection (2) is, in relation to membership of CSL, 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 CSL under CSL’s memorandum and articles.
16 Past members
For the purposes of Division 2 of Part 5.6 of the Corporations Act 2001, a person is not a past member of CSL merely because he or she was a member of the CSL Commission, or acted as a member of the Commission, before the commencement of this Part.
19 Operation of section 25B of Acts Interpretation Act
Nothing in this Act or in the Corporations Act 2001 affects, or is affected by, section 25B of the Acts Interpretation Act 1901 as that section applies in relation to CSL.
Part 3A—National interest restrictions on CSL Limited
Division 1—Purpose and interpretation
19A Purpose
The purpose of this Part is to:
(a) provide for certain matters which affect the national interest in relation to the operations of CSL; and
(b) provide remedies in relation to some of those matters.
19B Interpretation
(1) In this Part, unless the contrary intention appears:
administering body, in relation to a CSL body, means:
(a) a liquidator or provisional liquidator of the CSL body; or
(b) a receiver, receiver and manager, or other controller, of property of the CSL body; or
(c) an administrator of the CSL body; or
(d) an administrator of a deed of company arrangement executed by the CSL body; or
(e) an administrator (if any) of a compromise or arrangement entered into by the CSL body;
under the Corporations Act 2001.
associate, in relation to a person, has the meaning it would have under Division 2 of Part 1.2 of the Corporations Act 2001 as in force on the commencement of that Act if that Division as so in force were, subject to the following modifications, still in force:
(a) section 12 of that Act as then in force were modified by omitting paragraphs (1)(b) and (c) and substituting the following word and paragraph:
“or (b) whether the primary person is in a position to exercise certain powers in relation to a body corporate;”; and
(b) sections 13 and 14 of that Act as then in force were disregarded.
Australian body corporate means a body corporate that:
(a) is incorporated by or under a law of the Commonwealth or of a State or Territory; and
(b) is substantially owned and, in the opinion of the directors of CSL at the time the matter is considered, effectively controlled by persons who are:
(i) Australian individuals; or
(ii) Australian government bodies; or
(iii) bodies corporate that have been determined to be Australian bodies corporate under a previous application of this definition; or
(iv) Australian fund managers.
Australian fund manager means the trustee or manager of a fund in which the total interests of Australian individuals, Australian government bodies and Australian bodies corporate represent at least 60% of the total interests in the fund.
Australian government body means:
(a) the Commonwealth, a State or a Territory; or
(b) a Commonwealth, State or Territory authority; or
(c) a local government body (whether incorporated or not) formed by or under a law of a State or a Territory; or
(d) a person who is a nominee of a body mentioned in paragraph (a), (b) or (c).
Australian individual means an individual who is an Australian citizen or is ordinarily resident in Australia.
Australian person means:
(a) an Australian individual; or
(b) an Australian government body; or
(c) an Australian body corporate; or
(d) an Australian fund manager.
Court means the Federal Court of Australia.
CSL means the body corporate known before the sale day as CSL Limited by whatever name called, and in whatever form that body corporate takes, from time to time.
CSL body means CSL or a CSL subsidiary.
CSL subsidiary means a body corporate that is a subsidiary of CSL.
foreign‑held voting shares means:
(a) voting shares that are acknowledged in writing by the registered owner of those shares to be shares in which a foreign person has a relevant interest; or
(b) voting shares that the directors of CSL have, after reasonable inquiries, declared to be shares in which a foreign person has a relevant interest.
foreign person means a person who is not an Australian person.
head office, in relation to CSL, means the place of business of CSL where central management and control are exercised.
mandatory article means a provision included in CSL’s articles of association in accordance with section 19C.
registered owner, in relation to a share, means the person who appears in the register of members as the holder of the shares.
register of members has the same meaning as in the Corporations Act 2001.
sale day has the same meaning as in the CSL Sale Act 1993.
share, in relation to a body corporate, means a share in the body corporate’s share capital.
voting share has the same meaning as in the Corporations Act 2001.
(2) For the purposes of this Part, a body corporate is substantially owned by:
(a) Australian individuals; or
(b) Australian government bodies; or
(c) bodies corporate that have been determined to be Australian bodies corporate under a previous application of the definition of Australian body corporate in subsection (1); or
(d) Australian fund managers;
if and only if the total value of shares in the body corporate in which persons other than persons mentioned in paragraphs (a) to (d) have relevant interests represents less than 40% of the total value of the issued share capital of the body corporate.
(3) For the purposes of this Part, a person has a relevant interest in a share if, and only if, the person would be taken to have a relevant interest in the share for the purposes of the Corporations Act 2001 if paragraph 608(3)(a) of that Act were disregarded.
(4) Subject to subsection (5), the directors of CSL must form the opinion for the purposes of the definition of Australian body corporate in subsection (1) that a particular body corporate is not effectively controlled by persons who are Australian individuals, Australian government bodies, Australian bodies corporate or Australian fund managers if any of the circumstances set out in subsection (6) apply in relation to the body corporate.
(5) The directors of CSL may form the opinion for the purposes of the definition of Australian body corporate in subsection (1) that a particular body corporate is effectively controlled by persons who are Australian individuals, Australian government bodies, Australian bodies corporate or Australian fund managers if, in spite of any of the circumstances set out in subsection (6), the directors are satisfied, on reasonable grounds, that the body corporate is effectively controlled by persons who are Australian individuals, Australian government bodies, Australian bodies corporate or Australian fund managers.
(6) The circumstances are as follows:
(a) a single foreign person has relevant interests in at least 15% of the voting shares of the body corporate;
(b) foreign persons, either alone or together with associates of the foreign persons, are in a position to exercise (whether directly or indirectly) control over a significant proportion of the operations of the body corporate;
(c) foreign persons, either alone or together with associates of the foreign persons, are in a position (whether directly or indirectly) to veto any significant action taken by the board of directors of the body corporate;
(d) foreign persons, either alone or together with associates of the foreign persons, are in a position (whether directly or indirectly) to appoint, to secure the appointment or veto the appointment of at least half of the board of directors of the body corporate;
(e) foreign persons, either alone or together with associates of the foreign persons, are in a position to exercise in any manner (whether directly or indirectly), direction or restraint over any substantial issue affecting the management or affairs of the body corporate;
(f) the body corporate or at least 50% of its directors:
(i) act or are accustomed to act; or
(ii) under a contract, or an arrangement or understanding (whether formal or informal), are intended or expected to act;
in accordance with the directions, instructions or wishes of foreign persons, either alone or together with associates of the foreign persons, either generally or in relation to the body corporate’s dealings with CSL or with shares in CSL.
(7) An employee of a body corporate is not to be regarded for the purposes of subsection (6) as being in a position to:
(a) exercise control over a significant proportion of the operations of the body corporate; or
(b) exercise direction or restraint over any substantial issue affecting the management or affairs of the body corporate;
purely because he or she is an employee of the body corporate.
(8) For the purposes of this Part, the question whether a person who is not an Australian citizen is ordinarily resident in Australia at a particular time is to be determined in the same manner as that question is determined under the Foreign Acquisitions and Takeovers Act 1975.
(9) For the purposes of Divisions 3 and 4, a reference to CSL or to a CSL subsidiary includes a reference to an administering body in relation to CSL or the CSL subsidiary.
Division 2—Requirements regarding CSL’s articles of association
19C CSL’s articles of association to include certain provisions
(1) The articles of association of CSL must, on and after the sale day, include the following provisions:
(a) a provision imposing restrictions on the counting of votes in respect of the appointment, replacement and removal of directors of CSL so as to prevent the votes attaching to all significant foreign shareholdings being counted in respect of the appointment, replacement or removal, of more than one‑third of the directors of CSL who hold office at any particular time; and
(b) a provision requiring the directors of CSL, for the purposes of enforcing the articles giving effect to paragraph (a), to take reasonable steps to find out whether there are significant foreign shareholdings; and
(c) a provision conferring the following powers on the directors of CSL to enable the directors to enforce the articles giving effect to paragraph (a):
(i) the power to remove or limit the right of a person to exercise voting rights attached to voting shares in CSL in respect of the appointment, replacement or removal of a director of CSL; and
(ii) the power to remove a director of CSL; and
(d) a provision requiring that the head office of CSL always be located in Australia; and
(e) a provision requiring that the principal facilities used by CSL and any CSL subsidiaries to produce products derived from human plasma collected from blood or plasma donated by individuals in Australia always be located in Australia; and
(f) a provision requiring that, at all times, at least two‑thirds of the directors of CSL be Australian citizens; and
(g) a provision requiring that the presiding director (however described) at a meeting of the board of directors of CSL be an Australian citizen; and
(h) a provision prohibiting CSL from taking any action at any time to become incorporated outside Australia.
(2) In this section:
significant foreign shareholding means a holding of voting shares in CSL in which a foreign person has a relevant interest, if the foreign person has relevant interests in at least 5% of the voting shares in CSL.
19D Inconsistent alteration to CSL’s articles of association to have no effect
(1) A special resolution of CSL that would, apart from this subsection, have the effect of altering CSL’s articles of association so that the articles would not comply with section 19C has no effect.
(2) A special resolution or resolution of CSL that, apart from this subsection:
(a) would, if acted on, result in a contravention of the mandatory articles; or
(b) would ratify an act or omission that contravenes the mandatory articles;
has no effect.
(3) In this section:
resolution has the same meaning as in section 9 of the Corporations Act 2001.
special resolution has the same meaning as in section 9 of the Corporations Act 2001.
19E CSL to maintain a register of foreign‑held voting shares
(1) CSL must on and after the sale day maintain a register of foreign‑held voting shares.
(2) If the Minister gives CSL a written request that CSL give to him or her the register or a copy of the register at such reasonable time and reasonable place as the Minister specifies, CSL must give the Minister the register or a copy of the register, as the case requires, in accordance with the request.
19F Injunctions in relation to contraventions of a mandatory article or section 19E
(1) Subsection (2) applies if CSL or any other person has engaged, is engaging or is proposing to engage in conduct constituting or that would constitute:
(a) a contravention of a mandatory article or section 19E; or
(b) attempting to contravene a mandatory article or section 19E; or
(c) aiding, abetting, counselling or procuring a person to contravene a mandatory article or section 19E; or
(d) inducing or attempting to induce, whether by threats, promises or otherwise, a person to contravene a mandatory article or section 19E; or
(e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of a mandatory article or section 19E; or
(f) conspiring with others to contravene a mandatory article or section 19E.
(2) The Court may, on the application of the Minister, grant an injunction, on such terms as the Court thinks appropriate, restraining CSL or the other person from engaging in the conduct and if the Court thinks it appropriate to do so, requiring CSL or the other person to do anything.
(3) Subsection (4) applies if CSL or any other person has refused or failed, is refusing or failing, or is proposing to refuse or fail, to do an act or thing and that refusal or failure constitutes or would constitute:
(a) a contravention of a mandatory article or section 19E; or
(b) attempting to contravene a mandatory article or section 19E; or
(c) aiding, abetting, counselling or procuring a person to contravene a mandatory article or section 19E; or
(d) inducing or attempting to induce, whether by threats, promises or otherwise, a person to contravene a mandatory article or section 19E; or
(e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of a mandatory article or section 19E; or
(f) conspiring with others to contravene a mandatory article or section 19E.
(4) The Court may, on the application of the Minister, grant an injunction on such terms as the Court thinks appropriate, requiring CSL or the other person to do anything.
(5) The Court may discharge or vary an injunction under this section.
19G Consent injunctions
On an application for an injunction under subsection 19F(2) or (4), the Court may, if the Court thinks it appropriate, grant an injunction by consent of all parties to the proceeding, whether or not the Court is satisfied that that subsection applies.
19H Interim injunctions
If the Court thinks it appropriate to do so, the Court may grant an interim injunction pending determination of an application under subsection 19F(2) or (4).
19J Factors relevant to the grant of a restraining injunction
The power of the Court to grant an injunction under subsection 19F(2) restraining CSL or any other person from engaging in conduct may be exercised:
(a) whether or not it appears to the Court that CSL or the other person intends to engage again, or to continue to engage, in conduct of that kind; and
(b) whether or not CSL or the other person has previously engaged in conduct of that kind; and
(c) whether or not there is an imminent danger of substantial damage to any person if CSL or the other person engages, or continues to engage, in conduct of that kind.
19K Factors relevant to the grant of a mandatory injunction
The power of the Court to require CSL or another person to do anything under subsection 19F(4) may be exercised:
(a) whether or not it appears to the Court that CSL or the other person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and
(b) whether or not CSL or the other person has previously refused or failed to do that act or thing; and
(c) whether or not there is an imminent danger of substantial damage to any person if CSL or the other person refuses or fails to do that act or thing.
19L Undertaking as to damages not required
If the Minister applies to the Court for the grant of an injunction under section 19F, the Court must not require the Minister, as a condition of granting an interim injunction, to give an undertaking as to damages.
19M Other orders
If the Court has power under section 19F to grant an injunction restraining CSL or another person from engaging in particular conduct, or requiring CSL or another person to do anything, the Court may, as well as or instead of granting an injunction, make such other orders as it thinks appropriate against CSL or the other person or a person who was involved in the conduct.
Division 3—Prohibition on disposal etc. of the Broadmeadows facility
19N Declaration of Broadmeadows land
The Minister may, by notice in the Gazette, declare the whole, or any specified part of, the land located at Broadmeadows in the State of Victoria that has been transferred to CSL or a wholly‑owned subsidiary of CSL by the Commonwealth on or before the sale day to be the Broadmeadows land for the purposes of this Division.
19P Prohibition on disposal etc. of Broadmeadows facility
(1) Neither CSL nor a wholly‑owned subsidiary may:
(a) dispose of the whole of the Broadmeadows facility; or
(b) grant an interest (including a contingent interest) in the Broadmeadows facility; or
(c) grant a security interest in the Broadmeadows facility or any part of that facility;
without the written approval of the Minister.
(2) Subsection (1) does not prevent CSL disposing of the facility, or granting an interest (including a contingent interest) in the facility, to a wholly‑owned subsidiary of CSL.
(3) Subsection (1) does not prevent a wholly‑owned subsidiary of CSL disposing of the facility, or granting an interest (including a contingent interest) in the facility, to CSL or another wholly‑owned subsidiary of CSL.
(4) If a wholly‑owned subsidiary of CSL owns or has an interest (including a contingent interest) in the Broadmeadows facility, neither CSL nor a wholly‑owned subsidiary of CSL that directly or indirectly owns the first‑mentioned subsidiary may:
(a) dispose of any shares in the first‑mentioned subsidiary or any other wholly‑owned subsidiary of CSL that directly or indirectly owns the first‑mentioned subsidiary; or
(b) do anything that would cause the first‑mentioned subsidiary not to be a wholly‑owned subsidiary of CSL;
without the written approval of the Minister.
(5) The Minister’s approval under subsection (1) or (4) may be subject to conditions.
(6) An act or transaction after the day this section commences which involves a contravention of subsection (1) or (4) is ineffective to the extent that it involves the contravention of that subsection.
(7) In this section:
Broadmeadows facility means:
(a) the Broadmeadows land declared under section 19N; and
(b) the buildings and fixtures on that land on the day the land was transferred to CSL or a wholly‑owned subsidiary of CSL by the Commonwealth; and
(c) buildings and fixtures that are constructed on or affixed to the land after that day.
security interest means an interest in or a power over property which secures payment of a debt or any other obligation.
Division 4—Injunctions to ensure performance of plasma products contracts
19Q Injunction to ensure performance of plasma products contracts
(1) This section applies if the Commonwealth and CSL have entered into a contract (the contract), whether before or after the commencement of this section, in relation to the production by CSL or a CSL subsidiary of products derived from human plasma collected from blood or plasma donated by individuals in Australia.
(2) Subsection (1) applies to the first contract of the kind described in that subsection and to any such contract subsequently entered into by the Commonwealth and CSL.
(3) If CSL has engaged, is engaging, or is proposing to engage in conduct that constitutes, or would constitute, a breach of a provision of the contract, the Court must, on the application of the Minister, grant an injunction on such terms as the Court thinks appropriate:
(a) restraining CSL from engaging in the conduct; and
(b) if the Court thinks it appropriate, requiring CSL to do anything to ensure that the contract is performed by CSL.
(4) If CSL has refused or failed, is refusing or failing, or is proposing to refuse or fail, to do anything that CSL is required by the contract to do, the Court must, on the application of the Minister, grant an injunction, on such terms as the Court thinks appropriate, requiring CSL to do that thing.
(5) On an application for an injunction under subsection (3), the Court may, if the Court thinks a CSL subsidiary has caused or contributed to CSL having engaged, engaging or proposing to engage, in conduct that constitutes a breach of a provision of the contract, make such orders (including granting an injunction) as it thinks appropriate against the CSL subsidiary.
(6) On an application for an injunction under subsection (4), the Court may, if the Court thinks a CSL subsidiary has caused or contributed to CSL having refused or failed, refusing or failing, or proposing to refuse or fail, to do anything that CSL is required by the contract to do, make such orders (including granting an injunction) as it thinks appropriate against the CSL subsidiary.
(7) The Court may discharge or vary an injunction under this section.
19R Consent injunctions
On an application for an injunction under subsection 19Q(3) or (4), the Court may, if the Court thinks it appropriate, grant an injunction by consent of all parties to the proceeding, whether or not the Court is satisfied that the subsection applies.
19S Interim injunctions
If the Court thinks it appropriate to do so, the Court may grant an interim injunction pending determination of an application under subsection 19Q(3) or (4).
19T Factors relevant to the grant of a restraining injunction
(1) The power of the Court to grant an injunction under subsection 19Q(3) restraining CSL from engaging in conduct must be exercised:
(a) whether or not it appears to the Court that CSL intends to engage again, or to continue to engage, in conduct of that kind; and
(b) whether or not CSL has previously engaged in conduct of that kind; and
(c) whether or not there is an imminent danger of substantial damage to any person if CSL engages, or continues to engage, in conduct of that kind; and
(d) whether or not the Commonwealth has or may have any other remedy available to it in relation to the conduct.
(2) The power of the Court to grant an injunction under subsection 19Q(5) or (6) restraining a CSL subsidiary from engaging in conduct may be exercised:
(a) whether or not it appears to the Court that the subsidiary intends to engage again, or to continue to engage, in conduct of that kind; and
(b) whether or not it appears to the Court that CSL intends to engage or to continue to engage in conduct that constitutes a breach of a provision of the contract; and
(c) whether or not the subsidiary has previously engaged in conduct of that kind; and
(d) whether or not there is an imminent danger of substantial damage to any person if the subsidiary engages, or continues to engage, in conduct of that kind; and
(e) whether or not the Commonwealth has or may have any other remedy available to it in relation to the conduct.
19U Factors relevant to the grant of a mandatory injunction
(1) The power of the Court to require CSL to do a thing under subsection 19Q(4) must be exercised:
(a) whether or not it appears to the Court that CSL intends to refuse or fail again, or to continue to refuse or fail, to do that thing; and
(b) whether or not CSL has previously refused or failed to do that thing; and
(c) whether or not there is an imminent danger of substantial damage to any person if CSL refuses or fails to do that thing; and
(d) whether or not the Commonwealth or another person has or may have any other remedy available to it in relation to the refusal or failure to do that thing.
(2) The power of the Court to require a CSL subsidiary to do a thing under subsection 19Q(5) or (6) may be exercised:
(a) whether or not it appears to the Court that the subsidiary intends to refuse or fail again, or to continue to refuse or fail, to do that thing; and
(b) whether or not it appears to the Court that CSL intends to refuse or fail again, or to continue to refuse or fail, to do anything that CSL is required by the contract to do; and
(c) whether or not the subsidiary has previously refused or failed to do that thing; and
(d) whether or not there is an imminent danger of substantial damage to any person if the subsidiary refuses or fails to do that thing; and
(e) whether or not the Commonwealth or another person has or may have any other remedy available to it in relation to the refusal or failure to do that thing.
19V Undertakings not required
If the Minister applies to the Court for the grant of an injunction under section 19Q, the Court must not require the Minister, as a condition of granting an interim injunction, to give any undertakings, including any undertakings as to damages.
19W Other orders
(1) If the Court has power under subsection 19Q(3) to grant an injunction restraining CSL from engaging in particular conduct, the Court may, as well as granting an injunction, make such orders as it thinks appropriate against CSL or any other CSL body involved in the conduct.
(2) If the Court has power under subsection 19Q(4) to grant an injunction requiring CSL to do a thing, the Court may, as well as granting an injunction, make such orders as it thinks appropriate against CSL or any other CSL body involved in the refusal or failure of CSL to do the thing.
Division 5—Miscellaneous
19X Delegation by Minister
(1) The Minister may delegate his or her powers and functions under this Part to an SES employee or acting SES employee in the Department.
19Y Jurisdiction of courts
The Federal Court of Australia has jurisdiction with respect to matters arising under this Part and that jurisdiction is exclusive of the jurisdiction of all other courts, other than the jurisdiction of the High Court under section 75 of the Constitution.
19Z This Part to have effect despite the Corporations Act
This Part has effect despite any provision of the Corporations Act 2001.
19ZA Remedies under this Part to be additional remedies
The remedies conferred by this Part are in addition to any other remedies the Commonwealth would have apart from this Part.
Part 5—Staff matters
26 Employment of staff members continues after transition
Subject to this Part, each staff member continues, at and after the transition to be employed by CSL on the terms and conditions on which he or she was employed by CSL immediately before the transition.
27 Act not to affect certain matters relating to staff members
(1) This section has effect for the purposes of the application, at any time at or after the transition, of a law, determination, award or industrial 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 26 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 CSL, it would have been necessary to take into account a period during which the staff member was employed by CSL 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 CSL;
CSL shall treat the whole of the first‑mentioned period as a period during which the staff member was employed by it.
28 Effect of sections 26 and 27
Sections 26 and 27 are enacted only for the avoidance of doubt and, in particular, do not limit subsection 65(5) or 87(2) of the Companies Act 1981.
29 Variation of terms and conditions of employment
(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, determination, award or industrial 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; or
(b) adding to those terms and conditions; or
(c) substituting new terms or conditions for any of those terms and conditions.
Part 6—Taxation matters
31 Interpretation
In this Part:
exempt matter means:
(a) a transfer of assets or liabilities under section 31A; or
(b) an issue of shares under subsection 9(3); or
(c) the reservation of name made by subsection 10(5); or
(d) the change of name made by subsection 11(1); or
(e) CSL’s registration as a company by force of this Act; or
(f) the operation of the Commonwealth Serum Laboratories (Conversion into Public Company) Act 1990; or
(g) giving effect to a matter referred to in another paragraph of this definition or giving effect to the Commonwealth Serum Laboratories (Conversion into Public Company) Act 1990.
tax includes:
(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.
32 Exemptions relating to exempt matters
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.
33 Minister may certify in relation to exemptions
(1) The Minister may, by signed writing, certify that:
(a) a specified matter or thing is an exempt matter; or
(b) a specified thing was 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, 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.
34 CSL taken to have had share capital for purposes of Income Tax Assessment Act
For the purposes of the Income Tax Assessment Act 1936 and the Income Tax Assessment Act 1997, CSL shall be taken to have had, at all times before it complied with subsection 9(3) of this Act, a share capital all the issued shares in which were, at all such times, beneficially owned by the Commonwealth.
35 Treatment of acquisitions of transferring assets for purposes of Income Tax Assessment Act
For the purposes of the Income Tax Assessment Act 1936 and the Income Tax Assessment Act 1997 after the commencement of this Part:
(a) CSL is to be taken to have acquired a transferring asset on the day on which that asset was acquired by the Commonwealth; and
(b) CSL is to be taken to have paid or given, in relation to its acquisition of a transferring asset, the consideration paid or given by the Commonwealth in relation to the acquisition of that asset by the Commonwealth and to have done so when the Commonwealth paid or gave the consideration; and
(c) CSL is to be taken to have incurred, in relation to its acquisition of a transferring asset, the liability to pay or give consideration incurred by the Commonwealth in relation to the acquisition of that asset by the Commonwealth and to have done so when the Commonwealth incurred the liability; and
(d) CSL is to be taken to have incurred, in relation to a transferring asset, costs and expenditure of the kinds referred to in subsection 110‑25(3), (5) or (6) of the Income Tax Assessment Act 1997 incurred by the Commonwealth in relation to the asset and to have done so when the Commonwealth incurred the costs or expenditure.
Part 7—Miscellaneous
36 CSL not public authority etc.
CSL, 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.
37 Judicial notice of CSL’s seal
(1) All courts, judges and persons acting judicially shall take judicial notice of the imprint of the seal of CSL appearing on a document and shall presume that it was duly affixed.
(2) Subsection (1) applies only in relation to an imprint that was affixed, or appears to have been affixed, before the transition.
38 Compensation for acquisition of property
(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 CSL such reasonable amount of compensation as is agreed on between the person and CSL 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.
41 Delegations
The Minister may by signed writing delegate to an officer of the Department all or any of the powers and functions of the Minister under this Act.
42 Regulations
(1) 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.
