Snowy Mountains Engineering Corporation Act 1970

Act No. 39 of 1970 as amended

This compilation was prepared on 31 July 2002
taking into account amendments up to Act No. 63 of 2002

The text of any of those amendments not in force
on that date is appended in the Notes section

Prepared by the Office of Legislative Drafting,
Attorney‑General’s Department, Canberra

Contents

Part I—Preliminary

1 Short title [see Note 1]...........................

2 Commencement [see Note 1].......................

3 Interpretation.................................

3C Operation of Act...............................

3D Extension to external Territories......................

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................................

18C SMEC to apply to be registered as company etc.............

18D New name of SMEC............................

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..........

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...........

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             

Part VII—Miscellaneous

51 SMEC not public authority etc.......................

52 Judicial notice of SMEC’s seal......................

53 Compensation for acquisition of property................

55 Regulations..................................

Notes  

An Act relating to the constitution of SMEC as a public company, and for other purposes

Part I—Preliminary

1  Short title [see Note 1]

  This Act may be cited as the Snowy Mountains Engineering Corporation Act 1970.

2  Commencement [see Note 1]

  This Act shall come into operation on the day on which it receives the Royal Assent.

3  Interpretation

  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.

member, in relation to SMEC at any time before the transition, includes a Director.

memorandum means memorandum of association.

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.

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.

3C  Operation of Act

  This Act applies both within and outside Australia.

3D  Extension to external Territories

  This Act extends to all external Territories.

Part IIIA—Creation of capital structure and other steps prior to conversion of SMEC into a public company

18A  Share capital of SMEC

 (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:

Issue Price is the number of dollars in the amount that is the sum of:

 (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 Companies Act 1981.

18B  Issue of shares

 (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  SMEC to apply to be registered as company etc.

 (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 Companies Act 1981 to accompany such an application.

 (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  New name of SMEC

 (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 Companies Act 1981 applies in relation to the change of name made by subsection (1) as if:

 (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 Companies Act 1981, but nothing in this section prevents:

 (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.

Part IV—Conversion of SMEC into a public company

19  Effect of Part—summary

  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  SMEC taken to be registered under Companies Act

 (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 Companies Act 1981 shall 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, SMEC 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.

21  Memorandum and articles of SMEC

 (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 Companies Act 1981 applies in relation to SMEC’s memorandum and articles as if they had been registered as such under that Act.

22  Membership of SMEC

 (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  Application of certain provisions of Companies Act

 (2) Paragraph 86(6)(b) and subsections 87(4) and 90(5) of the  Companies Act 1981 do not apply in relation to SMEC.

 (3) The Companies Act 1981 applies in relation to the account referred to in subsection 18B(6) as if the account were a share premium account referred to in section 119 of that Act.

 (4) For the purposes of section 360 of the Companies Act 1981, a person is not a past member of SMEC merely because he or she was a Director of SMEC or acted as a Director of SMEC before the commencement of this Part.

24  Accounting records

  For the purposes of the Companies Act 1981, accounts and records kept under section 63F of the Audit Act 1901 (as that section applied in relation to SMEC because of this Act) shall be taken to be accounting records kept by SMEC under a provision of a previous law of the Australian Capital Territory, being a provision corresponding to section 267 of the Companies Act 1981.

25  Accounts

 (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 the Companies Act 1981.

 (2) A report and financial statements that were prepared under section 63H of the Audit Act 1901 (as that section applied in relation to SMEC because of this Act) in relation to a period and furnished to the Minister on a particular day shall be taken to be a profit and loss account of SMEC that was:

 (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  Operation of section 25B of Acts Interpretation Act

  Nothing in this Act or in the Companies Act 1981 affects, or is affected by, section 25B of the Acts Interpretation Act 1901 as that section applies in relation to SMEC.

Part VB—Staff matters

39G  Employment of staff members continues after transition

  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  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, 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  Effect of sections 39G and 39H

  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 Companies Act 1981.

39K   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, 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.

Part VC—Taxation matters

39M  Interpretation

  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;

 (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  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.

39P  Authorised person may certify in relation to exemptions

 (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  SMEC 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, SMEC shall be taken to have had, at all times before it complied with subsection 18B(2) of this Act, a share capital, all the issued shares in which were, at all such times, beneficially owned by the Commonwealth.

Part VII—Miscellaneous

51  SMEC not public authority etc.

  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  Judicial notice of SMEC’s seal

 (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  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 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.

55  Regulations

  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.

Notes to the Snowy Mountains Engineering Corporation Act 1970

Note 1

The Snowy Mountains Engineering Corporation Act 1970 as shown in this consolidation comprises Act No. 39, 1970 amended as indicated in the Tables below.

Table of Acts

(a) The Salaries Act 1971 was repealed by section 7 of the Statute Law Revision Act 1973. That section provides that the repeal does not affect the operation of any amendment made by the repealed Act or any provision made by it for the citation of an Act as so amended.

(b) The Snowy Mountains Engineering Corporporation Act 1970 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 1) 1986, subsection 2(1) of which provides as follows:

 (1) Subject to this section, this Act shall come into operation on the day on which it receives the Royal Assent.

(c) The Snowy Mountains Engineering Corporation Act 1970 was amended by section 44 only of the Snowy Mountains Engineering Corporation Limited Sale Act 1993, subsection 2(2) of which provides as follows:

 (2) Sections 5 to 36 (inclusive) and 39 to 44 (inclusive) commence on the sale day.

(d) The Snowy Mountains Engineering Corporation Act 1970 was amended by Schedule 2 (item 98) only of the Statute Law Revision Act 1996, subsection 2(2) of which provides as follows:

 (2) Each item in Schedule 2 commences or is taken to have commenced (as the case requires) at the time specified in the note at the end of the item.

 Item 98 is taken to have commenced immediately after the commencement of section 44 of the Snowy Mountains Engineering Corporation Limited Sale Act 1993.

 Section 44 commenced on 9 November 1993 (see Gazette 1993, No. S334).

(e) The Statute Law Revision Act 1993 was amended by Schedule 1 (item 30) only of the Statute Law Revision Act 2002, subsection 2(1) (item 24) of which provides as follows:

 (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.

(f) The Snowy Mountains Engineering Corporation Act 1970 was amended by Schedule 3 (item 112) only of the Income Tax (Consequential Amendments) Act 1997, section 2 of which provides as follows:

 2 This Act commences on 1 July 1997.

Table of Amendments

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