Energy Companies Act 1992

1: Short Title and commencement
1: This Act may be cited as the Energy Companies Act 1992.
2: Except as provided in subsections (3) to (8) and in section 80(2)
3: Section 67
4: Sections 79 89 95 96
5: In the case of section 79 section 76
6: In the case of section 89
7: In the case of section 95 section 47(1) Auckland Electric Power Board Act 1978
8: In the case of section 96 section 47(1)
9: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 1(4) section 95 brought into force 1 October 1993 clause 3 Energy Companies Act Commencement Order 1993 Section 1(4) section 79 brought into force 26 October 1993 clause 2 Energy Companies Act Commencement Order 1993 Section 1(4) sections 89 and 96 brought into force 7 October 1994 clause 2 Energy Companies Act Commencement Order 1994 Section 1(9) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
1: Preliminary provisions
2: Interpretation
1: In this Act, unless the context otherwise requires,— appointed day section 47(1) approved establishment plan section 27 section 28 approved person Gazette Part 4 Board
a: an Electric Power Board constituted under the Electric Power Boards Act 1925
b: the Auckland Electric Power Board constituted under the Auckland Electric Power Board Act 1978
c: the Rotorua Area Electricity Authority (which was constituted by an Order in Council made on 9 August 1971 and published in the Gazette section 726(3)﻿(b) Board's successor company section 47 constituent local authority debt security section 8 directorate electoral address electricity undertaking
a: the sale or supply of equipment or appliances that consume electricity; and
b: the sale or supply of services in relation to equipment or appliances that consume electricity; and
c: all the assets of the local authority used for or in connection with the electricity undertaking of that local authority, including all land, buildings, works, machinery, apparatus, fittings, appliances, contracts, and every other property, right, or interest, whether real or personal and whether legal or equitable, that is an asset of that electricity undertaking energy energy company section 32 section 47 section 56 energy undertaking
a: an electricity undertaking:
b: a gas undertaking:
c: the undertaking of a Board equity security section 8 establishing authority
a: a Board:
b: a local authority whose operations include an energy undertaking establishment plan section 18 section 27 financial statements
a: group financial statements within the meaning of section 7 Financial Reporting Act 2013
b: if the energy company does not have any subsidiaries, financial statements within the meaning of section 6 Financial Reporting Act 2013 gas section 2 gas undertaking
a: the sale or supply of equipment or appliances that consume gas; and
b: the sale or supply of services in relation to equipment or appliances that consume gas; and
c: all the assets of the local authority used for or in connection with the gas undertaking of that local authority, including all land, buildings, works, machinery, mains, apparatus, fittings, appliances, stocks, by-products, contracts, and every other property, right, or interest, whether real or personal and whether legal or equitable, that is an asset of that gas undertaking generally accepted accounting practice section 8 Financial Reporting Act 2013 Inland Revenue Acts Schedule instrument
a: any instrument (other than an enactment) of any form or kind that creates, evidences, modifies, or extinguishes rights, interests, or liabilities or would do so if it or a copy thereof were lodged, filed, or registered under any enactment; and
b: any judgment, order, or process of a court instrument by way of security section 2 of the Chattels Transfer Act 1924 interim trustee section 4 section 8 land section 5(1) liabilities local authority Local Government Act 2002 Minister property
a: choses in action and money:
b: goodwill:
c: rights, interests, and claims of every kind in or to property, whether arising from, accruing under, created or evidenced by, or the subject of, an instrument or otherwise and whether liquidated or unliquidated, actual, contingent, or prospective qualifying elector relevant energy company
a: in relation to a Board, the Board's successor company:
b: in relation to a local authority, an energy company to which all or part of the energy undertaking of the local authority is proposed to be transferred rights rules security share allocation plan section 22 special consultative procedure section 83 statement of corporate intent section 39 subsidiary section 5 undertaking voting equity security
a: during a period in which a dividend (or part of a dividend) in respect of the security is in arrears:
b: on a proposal to reduce the capital of the company:
c: on a proposal that affects rights attached to the security:
d: on a proposal to put the company into liquidation:
e: on a proposal for the disposal of the whole of the property, business, and undertaking of the company:
f: during the liquidation of the company;— and includes a security that, in accordance with the terms of the security, is convertible into a security of that kind.
2: For the purposes of this Act, to hold a controlling interest in an energy company means to hold equity securities in that company that carry in the aggregate 51% or more of the voting rights at any general meeting of the company.
3: For the purposes of subsection (2), a person holds equity securities in an energy company if that person is beneficially entitled to, or is beneficially entitled to an interest in, any equity securities in the company (whether or not the whole or any part of the legal ownership of the equity securities is vested in the person). Section 2(1) debt security replaced 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 2(1) equity security replaced 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 2(1) financial statements inserted 1 April 2014 section 126 Financial Reporting (Amendments to Other Enactments) Act 2013 Section 2(1) gas amended 1 April 1993 section 58(2) Gas Act 1992 Section 2(1) generally accepted accounting practice inserted 1 April 2014 section 126 Financial Reporting (Amendments to Other Enactments) Act 2013 Section 2(1) Inland Revenue Acts amended 1 April 1995 Income Tax Act 1994 Section 2(1) land amended 12 November 2018 section 250 Land Transfer Act 2017 Section 2(1) local authority substituted 1 July 2003 section 262 Local Government Act 2002 Section 2(1) rules replaced 5 December 2013 section 14 Companies Amendment Act 2013 Section 2(1) special consultative procedure substituted 1 July 2003 section 262 Local Government Act 2002 Section 2(1) subsidiary replaced 5 December 2013 section 14 Companies Amendment Act 2013 Section 2(1) voting equity security substituted 1 July 1994 section 2 Company Law Reform (Transitional Provisions) Act 1994 Section 2(1) voting equity security substituted 1 July 1994 section 2 Company Law Reform (Transitional Provisions) Act 1994
3: Act to bind the Crown
This Act binds the Crown.
2: Interim trustees
4: Interim trustees
1: Subject to subsection (4), as from the commencement of the 21st day after the commencement of this section, there shall hold office, in respect of each Board, persons to be known as interim trustees.
2: Subject to subsection (3) and to sections 6 to 8
a: in the case of an Electric Power Board constituted under the Electric Power Boards Act 1925
i: all the persons who, immediately before 8 August 1990 (being the date of commencement of the Electric Power Boards Amendment Act 1990
A: as members of that Board under section 10 or section 23 of the Electric Power Boards Act 1925
B: as members of that Board continued in office by section 3 section 4, of the Electric Power Boards Amendment Act 1989
ii: every person (not being a person referred to in subparagraph (i)) who was appointed as a trustee of the Electric Power Trust established in respect of that Board by a trust deed executed under section 3 of the Electric Power Boards Amendment Act 1990
b: in the case of the Auckland Electric Power Board, comprise—
i: all the persons who, immediately before 8 August 1990, were holding office—
A: as members of that Board elected or appointed under Part 3 or Part 4 of the Auckland Electric Power Board Act 1978
B: as members of that Board continued in office by section 8 section 9, of the Electric Power Boards Amendment Act 1989
ii: every person (not being a person referred to in subparagraph (i)) who was appointed as a trustee of the Electric Power Trust established in respect of that Board by a trust deed executed under section 3 of the Electric Power Boards Amendment Act 1990
c: in the case of the Rotorua Area Electricity Authority, comprise—
i: all the persons who, immediately before 8 August 1990, were holding office—
A: as members of that Authority who were representatives of a constituent district of the Rotorua Electric Supply District; or
B: as members of that Authority continued in office by section 3 section 4, of the Electric Power Boards Amendment Act 1989 section 6 of that Act
ii: every person (not being a person referred to in subparagraph (i) section 3 of the Electric Power Boards Amendment Act 1990
3: No person shall be an interim trustee pursuant to subsection (2) unless that person has informed the Minister, within 20 days of the commencement of this section, that the person is willing to be an interim trustee.
4: Nothing in this section shall apply in respect of the Central Canterbury Electric Power Board.
5: Term of office of interim trustees
Subject to section 8 section 47
6: Disqualification of interim trustees
1: The following persons shall be incapable of being interim trustees:
a: a person who is mentally disordered within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992
b: a bankrupt who has not obtained an order of discharge, or whose order of discharge is suspended for a term not yet expired, or is subject to conditions not yet fulfilled:
c: a person to whom an order made under section 299
d: a person in respect of whom a composition or arrangement with that person's creditors is in force:
e: a person who is subject to a property order made under section 30 section 31
f: a person who is convicted of an offence punishable by imprisonment for a term of 2 years or more, unless that person has obtained a pardon or has served the sentence or otherwise suffered the sentence imposed on that person:
g: a person who is convicted of any offence punishable by imprisonment for a term of less than 2 years and is sentenced to imprisonment for that offence, unless that person has obtained a pardon or has served the sentence:
h: a person who is disqualified from being appointed or holding office as a director of a company by virtue of paragraph (ba) or paragraph (c) or paragraph (d) or paragraph (e) of section 151(2)
i: a person who holds office as a member of the Board in respect of which the person is, or is to be, an interim trustee.
2: In any case to which subsection (1)﻿(f) applies,—
a: the disqualification shall not take effect until the expiration of the time for appealing against the conviction and, in the event of an appeal against conviction, until the appeal is determined; and
b: the interim trustee concerned shall be deemed to have been granted leave of absence until the expiration of that time, and shall not be capable of acting as an interim trustee during the period of that leave of absence.
3: In any case to which subsection (1)﻿(g) applies,—
a: the disqualification shall not take effect until the expiration of the time for appealing against the conviction or the sentence and, in the event of an appeal against the conviction or against the sentence or both, until the appeal is determined; and
b: the interim trustee concerned shall be deemed to have been granted leave of absence until the expiration of that time, and shall not be capable of acting as an interim trustee during the period of that leave of absence.
4: Every person commits an offence and is liable on
a: where the incapacity arises under paragraph (a) of that subsection; or
b: while on leave of absence pursuant to paragraph (f) or paragraph (g) of that subsection. 1989 No 63 s 200 Section 6(1)﻿(a) amended 1 November 1992 section 137(1) Mental Health (Compulsory Assessment and Treatment) Act 1992 Section 6(1)﻿(c) amended 3 December 2007 section 445 Insolvency Act 2006 Section 6(1)﻿(h) substituted 1 July 1994 section 2 Company Law Reform (Transitional Provisions) Act 1994 Section 6(4) amended 1 July 2013 section 413 Criminal Procedure Act 2011
7: Removal from office
An interim trustee may be removed from office at any time by the Minister for inability to perform the functions of the office Section 7 amended 1 January 2002 section 70(1) Human Rights Amendment Act 2001
8: Appointment to fill casual vacancies
1: The office of an interim trustee shall become vacant, and the vacancy shall be deemed to be a casual vacancy, if the trustee—
a: dies; or
b: resigns from office by written notice delivered to the Minister; or
c: becomes incapable of continuing to hold office under section 6
d: is removed from office under section 7
2: In the event of a casual vacancy in the office of an interim trustee, the Minister may appoint some other qualified person to fill that vacancy.
3: No person shall be appointed to fill a casual vacancy in the office of an interim trustee in respect of a Board unless the remaining interim trustees holding office in respect of that Board have first approved the proposed appointment of that person.
4: No act or proceeding of any interim trustees, or of any person acting as an interim trustee, shall be invalidated because there was a vacancy in the office of an interim trustee at the time of the act or proceeding, or because of the subsequent discovery that there was a defect in the appointment of a person so acting, or that the person was incapable of being, or had ceased to be, an interim trustee.
9: Chairperson and Deputy Chairperson
1: The interim trustees holding office in respect of a Board shall, at their first meeting held after the commencement of this section and thereafter from time to time as any vacancy arises, elect one of their number to be their Chairperson, and another to be their Deputy Chairperson.
2: Every person elected as Chairperson or Deputy Chairperson pursuant to subsection (1) shall, unless he or she sooner vacates office as an interim trustee, hold office for such period as the interim trustees electing that person may determine at the time of the election.
10: Quorum
At a meeting of the interim trustees holding office in respect of a Board the quorum necessary for the transaction of business shall be,—
a: if there is an even number of interim trustees, half the number of interim trustees; or
b: if there is an odd number of interim trustees, a majority of the number of interim trustees,— but in no case shall the quorum be fewer than 2 interim trustees.
11: Voting at meetings
1: All questions arising at a meeting of interim trustees holding office in respect of a Board shall be decided by a majority of the votes cast by the interim trustees present.
2: The interim trustee presiding at any such meeting has a deliberative vote, and, in the case of an equality of votes, also has a casting vote.
12: Procedure
Subject to this Act, interim trustees may regulate their procedure in such manner as they think fit.
13: Application of certain Acts to interim trustees
No person shall be deemed to be employed in the service of the Crown for the purposes of the Public Service Act 2020 Government Superannuation Fund Act 1956 Section 13 amended 7 August 2020 section 135 Public Service Act 2020
14: Trusts Act 2019, etc, not to apply to interim trustees
The fact that a person holds or has held office as an interim trustee does not, of itself, confer or impose on that person any of the rights, powers, duties, or liabilities of a trustee under the Trusts Act 2019 Section 14 replaced 30 January 2021 section 161 Trusts Act 2019
15: Board may meet costs and expenses of interim trustees
Subject to section 16
16: Salaries and allowances
1: Subject to section 17
2: There shall be paid to interim trustees travelling allowances and expenses in accordance with the Fees and Travelling Allowances Act 1951
3: Sections 101ZZO 101ZZV
4: Notwithstanding anything in any other enactment, all salaries, allowances, travelling allowances, and travelling expenses payable pursuant to this section to an interim trustee shall be paid out of the funds of the Board in respect of which that person holds office as an interim trustee.
17: Amounts of salaries and meeting allowances
1: The salary payable pursuant to section 16
a: in the case of the Chairperson of those interim trustees, 75%; and
b: in the case of the Deputy Chairperson of those interim trustees, 60%; and
c: in the case of the other interim trustees, 50%— of the salary that, immediately before 8 August 1990, was payable, in accordance with Part 4C
2: The meeting allowance payable pursuant to section 16 Part 4C
3: The payment, to interim trustees holding office in respect of a Board, of meeting allowances pursuant to section 16 Part 4C
4: Where any interim trustee holds office for only part of a year in respect of which an annual salary is payable, pursuant to section 16
3: Establishment plans
18: Establishment plan
1: Not later than 31 December 1992, each establishing authority shall prepare and submit to the Minister, for the Minister's approval, an establishment plan relating to the transfer to an energy company of the energy undertaking of that establishing authority.
2: The establishment plan prepared by an establishing authority shall—
a: identify with reasonable precision the energy undertaking that is to be vested in the relevant energy company; and
b: value that energy undertaking, which valuation shall be made on such basis as is determined by the Minister after consultation by the Minister with such representatives of electrical supply authorities (within the meaning of the Electricity Act 1968
c: contain a share allocation plan; and
d: indicate whether or not any equity securities (other than voting equity securities) should be issued by the relevant energy company to any person consequent upon the vesting in the company of the relevant energy undertaking, and, if so, the name of the person and the kind, number, nominal value, and terms of those securities; and
e: indicate whether or not any debt securities should be issued by the relevant energy company to any person consequent upon the vesting in the company of the relevant energy undertaking, and, if so, the name of the person and the kind, number, nominal value, and terms (including interest) of those securities; and
f: contain, in draft form, a memorandum of association, articles of association, and (except where section 42(1)
g: subject to section 32
h: where the establishing authority is a local authority, identify a fair and equitable system for the transfer of appropriate employees from the local authority to the relevant energy company; and
i: contain such other details as the Minister may from time to time require or as the establishing authority considers appropriate.
19: Joint establishment plan
1: Notwithstanding anything in section 18
2: Where—
a: 2 or more Boards; or
b: 1 or more local authorities and 1 or more Boards— wish to submit a joint establishment plan to the Minister, they may do so only if the share allocation plan included in that establishment plan is endorsed by the interim trustees for each such Board.
3: For the purposes of the preparation of a joint establishment plan, and for the purposes of the adoption of the special consultative procedure in relation to such a plan, a Board may adopt the procedures set out in section 114S Section 19(3) added 17 December 1992 section 2 Energy Companies Amendment Act 1992
20: Local authorities may form 1 or more energy companies
Notwithstanding anything in section 18
21: Establishment plan may provide for use of existing company
An establishment plan prepared by an establishing authority may provide for the energy undertaking of a Board, or the whole or part of the energy undertaking of a local authority, to be transferred to a company other than a company that is to be formed and registered by that establishing authority pursuant to section 32 section 18
f: except where section 42(1)
fa: specify the amendments (if any) that are intended to be made to the memorandum of association and articles of association of the relevant energy company; and
22: Share allocation plan
1: The establishment plan prepared by an establishing authority shall set out the authority's recommendations as to the person or persons, or the class or classes of persons, to whom the voting equity securities in the relevant energy company should be allocated consequent upon the vesting in that company of the relevant energy undertaking.
2: Those recommendations shall indicate—
a: the kind, number, nominal value, and terms of those voting equity securities; and
b: the person or persons, or the class or classes of persons, to whom those equity securities should be allocated.
23: Consultation with interim trustees
1: Where a Board prepares an establishment plan, that Board shall, before submitting the establishment plan to the Minister, send a copy of it in draft form to the interim trustees holding office in respect of the Board for comment, and shall give those trustees a reasonable opportunity to comment on the draft.
2: The establishment plan submitted to the Minister by a Board shall incorporate a fair and accurate summary of any comments received by the Board under subsection (1), and shall indicate—
a: the extent to which those comments were taken into account in finalising the plan; and
b: where any such comment has not been so taken into account, the reasons for not doing so; and
c: whether or not the interim trustees endorse the share allocation plan included in the establishment plan.
24: Public consultation on establishment plan
1: An establishing authority shall not forward an establishment plan to the Minister unless the establishing authority has adopted the special consultative procedure in relation to that plan.
2: For the purposes of section 83 Section 24(2) amended 25 December 2002 section 267(a) Local Government Act 2002
25: Extension of time for submission of establishment plan
1: Notwithstanding subsection (1) of section 18
2: Only 1 extension of time may be given under subsection (1) in respect of a particular establishing authority.
3: In no case may an extension of time be granted under subsection (1) in order to permit an establishing authority to submit an establishment plan after 31 March 1993.
26: Future financial stability of company to be considered
In making any determination for the purposes of section 18(2)﻿(d) section 27 section 28
27: Approval of establishment plan
1: Subject to subsection (2) and to section 29 section 18
2: If the Minister considers that an establishment plan submitted by an establishing authority that is a Board should be varied, the Minister may decline to approve the plan and direct the authority to prepare and submit a revised plan.
3: Where, pursuant to subsection (2), the Minister declines to approve an establishment plan and directs the establishing authority to prepare and submit a revised plan, the Minister shall inform the establishing authority of the reasons for the direction, and may indicate any specific matter that the Minister requires to be dealt with in the revised plan.
4: Where, pursuant to subsection (2), the Minister declines to approve an establishment plan submitted by an establishing authority, the establishing authority shall submit a revised establishment plan to the Minister not later than 6 weeks after the date on which that approval was declined or such later date as the Minister in any particular case may allow.
5: The provisions of sections 18 to 22 section 23
6: Nothing in section 24 section 25
28: Approval of revised establishment plan
1: As soon as practicable after receiving a revised establishment plan submitted by an establishing authority under section 27(4) section 29
a: approve the plan by notice in writing to the establishing authority; or
b: if the Minister considers that the revised plan requires further amendment,—
i: make such amendments to the plan as the Minister considers necessary; and
ii: approve the plan (as amended) by notice in writing to the establishing authority, which notice shall be accompanied by a copy of the plan as approved.
2: Before making any amendments to an establishment plan under subsection (1)﻿(b), the Minister shall advise the establishing authority of the Minister's intention to do so, and shall give the establishing authority a reasonable opportunity to make submissions on the matter.
29: Establishment plan not to be approved unless share allocation plan endorsed
1: Subject to subsection (2), the Minister shall not approve an establishment plan under section 27 section 28
2: Where, but for the provisions of subsection (1), the Minister could approve, or would be required to approve, an establishment plan, the Minister may or, as the case may require, shall approve the establishment plan except for the share allocation plan included in that plan, and in any such case section 30
30: Allocation of shares where share allocation plan not endorsed
Where section 29(2)
a: the securities shall be allocated to each constituent local authority of the relevant Board:
b: each constituent local authority to which the securities are required to be so allocated shall be entitled to receive such proportion of the total voting equity securities in the relevant energy company as the number of qualifying electors of that constituent local authority bears to the aggregate number of qualifying electors of all the constituent local authorities of that Board.
31: Failure to submit establishment plan
1: In any case where an establishing authority has not submitted an establishment plan in accordance with section 18 section 25 sections 18(2) 26 27
2: Where, as a result of the default of any establishing authority, the Minister acts under subsection (1), the Minister shall be entitled to be reimbursed by the establishing authority for any costs and expenses incurred in the taking of the action.
3: In any case where, pursuant to subsection (2) of section 27 section 28
4: Where, pursuant to subsection (1), the Minister causes an establishment plan to be prepared,—
a: in the case of an establishment plan prepared as the result of the default of a Board, the share allocation plan included in that establishment plan shall provide for the voting equity securities in the relevant energy company to be allocated on the same basis as they would be allocated if the establishment plan were a plan to which section 29(2)
b: in the case of an establishment plan prepared as the result of the default of a local authority, the share allocation plan included in that establishment plan shall provide for the voting equity securities in the relevant energy company to be allocated to that local authority.
4: Energy companies
Formation of energy companies
32: Formation and registration
1: Notwithstanding anything in the Electric Power Boards Act 1925 section 33 Companies Act 1955
1A: Where any Board has not by 1 July 1994, in accordance with subsection (1), formed and registered a company under the Companies Act 1955 Companies Act 1993
2: Notwithstanding anything in the Local Government Act 1974 section 33 Companies Act 1955
3: No company shall be formed and registered under this section except in accordance with the terms of an approved establishment plan.
4: Nothing in section 13(1) of the Companies Act 1955
5: Except as provided in this Act, the Companies Act 1993
6:
7: Every Board and every local authority shall have such powers as may be necessary or desirable for the purposes of this section. Section 32 heading amended 5 December 2013 section 14 Companies Amendment Act 2013 Section 32(1A) inserted 1 July 1994 section 2 Company Law Reform (Transitional Provisions) Act 1994 Section 32(5) amended 5 December 2013 section 14 Companies Amendment Act 2013 Section 32(6) repealed 5 December 2013 section 14 Companies Amendment Act 2013
33: Use of existing company
Notwithstanding anything in section 32 Part 5
34: Board and local authority may jointly form energy company
Notwithstanding anything in subsection (1) or subsection (2) of section 32
35: Minister may act in default of Board or local authority
1: In any case where a company has not been formed and registered by a Board or a local authority in accordance with section 32
2: Subsections (4) to (6) of section 32
3: Where, as a result of the default of any Board or any local authority, the Minister acts under subsection (1), the Minister shall be entitled to be reimbursed by the Board or, as the case requires, the local authority for any costs and expenses incurred in the taking of the action. Operation of energy companies
36: Principal objective to be successful business
1: The principal objective of an energy company shall be to operate as a successful business.
2: In seeking to attain its principal objective, an energy company shall have regard, among other things, to the desirability of ensuring the efficient use of energy. 1974 No 66 s 594Q 1988 No 91 s 5 1989 No 29 s 34(1)
37: Directors and their role
1: The directors of an energy company shall be persons who, in the opinion of those appointing them, will assist the company to achieve its principal objective.
2: Notwithstanding anything in subsection (1), the articles of association of every energy company shall provide that not more than 2 members of the directorate of the energy company may be persons who are members or employees of any local authority that holds voting equity securities in that company.
3: All decisions relating to the operation of an energy company shall be made by or pursuant to the authority of the directorate of the company in accordance with the statement of corporate intent (if any).
4: For the avoidance of doubt, it is hereby declared that no director of an energy company is, by virtue of holding that office, a statutory officer within the meaning of the Local Government Official Information and Meetings Act 1987 1974 No 66 s 594R 1988 No 91 s 6 1989 No 29 s 34(1)
38: First directors of energy company formed by Board
1: This section applies in respect of any energy company that is formed and registered by a Board in accordance with section 32(1)
2: The first directors of an energy company to which this section applies shall be appointed by the Minister.
3: Subject to subsection (4), the first directors of an energy company to which this section applies shall comprise or include all the persons who, immediately before the date of incorporation of the company, were holding office as members of the Board that formed and registered that energy company and who are willing to accept appointment as directors of that company.
4: Subsection (3) shall not apply in respect of an energy company in any case where, as a result of the default of the Board in respect of which that energy company is established, the Minister has been required to act pursuant to section 31 section 35
5: Subject to subsection (3), during the interim period the Minister shall have the sole right to appoint the directors of an energy company to which this section applies.
6: Notwithstanding anything in section 199H of the Companies Act 1955 section 156
7: In this section, the term interim period Part 5 Section 38(6) amended 1 July 1994 section 2 Company Law Reform (Transitional Provisions) Act 1994
38A: Directors of existing company
1: This section applies in respect of any company (other than a company to which section 38
2: This section applies notwithstanding anything in the Companies Act 1955
3: During the interim period, only those persons who have been approved or appointed by the Minister pursuant to this section shall hold office as directors of a company to which this section applies.
4: The Minister shall, before the commencement of the interim period in relation to a company to which this section applies, approve such number of persons as the Minister thinks fit to be directors of the company at the commencement of the interim period.
5: Subject to subsection (6), the persons who are approved by the Minister pursuant to subsection (4) in respect of a company shall comprise or include all the persons who—
a: on the appointed day in relation to the Board the undertaking of which is to be transferred to that company, will vacate office as members of that Board; and
b: are willing to hold office as directors of that company.
6: Subsection (5) shall not apply in respect of any company in any case where, as a result of the default of the Board the undertaking of which is to be transferred to that company, the Minister has been required to act pursuant to section 31
7: Where any person who is approved pursuant to subsection (4) is not already a director of the company, the Minister shall appoint that person to be a director as from the commencement of the interim period, and the Minister shall have all such powers as are necessary or desirable for that purpose.
8: Every person who,—
a: immediately before the commencement of the interim period, is holding office as a director of a company to which this section applies; and
b: is not approved, pursuant to subsection (4), as a director of that company before the commencement of that period— shall, on the commencement of that period, vacate office as a director of the company; and no such person shall be entitled to any compensation in respect of loss of office.
9: Subject to subsection (5), during the interim period the Minister shall have the sole power to appoint the directors of a company to which this section applies.
10: A person who is approved or appointed pursuant to this section as a director of a company shall not be removed from office by the company during the interim period unless the Minister consents to his or her removal.
11: In this section, the term interim period Part 5 Section 38A inserted 17 December 1992 section 3 Energy Companies Amendment Act 1992
39: Statement of corporate intent
1: The directorate of every energy company shall deliver to its shareholders a draft statement of corporate intent not later than 1 month after the commencement of each financial year of the energy company.
2: Each statement of corporate intent shall specify for the group comprising the energy company and its subsidiaries (if any), and in respect of the financial year in which it is delivered and each of the following 2 financial years, the following information:
a: the objectives of the group:
b: the nature and scope of the activities to be undertaken:
c: the ratio of consolidated shareholders' funds to total assets, and definitions of those terms:
d: the accounting policies:
e: the performance targets and other measures (including the rate of return on shareholders' funds after payment of tax) by which the performance of the group may be judged in relation to its objectives:
f: an estimate of the amount or proportion of accumulated profits and capital reserves that is intended to be distributed to the shareholders:
g: the kind of information to be provided to the shareholders by the group during the course of those financial years, including the information to be included in each half-yearly report:
h: the procedures to be followed before any member of the group subscribes for, purchases, or otherwise acquires shares in any company or other organisation:
i: the details of all transactions intended to be entered into between any member of the group and—
i: any local authority that is a shareholder in any member of the group:
ii: every company that, in relation to any member of the group, is a related company (as defined in section 2(3)
iii: every company in relation to which any member of the group is a related company (as so defined):
iv: every company that, in relation to any local authority that is a shareholder in any member of the group, would be a related company (as so defined) if the local authority were a company:
j: such other matters as are agreed by the shareholders and the directorate.
3: The directorate—
a: shall consider any comments on the draft statement of corporate intent that are made to it within 2 months of the commencement of the financial year by the shareholders; and
b: shall deliver the completed statement of corporate intent to such shareholders within 3 months of the commencement of the financial year. 1974 No 66 ss 594S–594U 1989 No 29 s 34(1) Section 39(2)﻿(i)﻿(ii) replaced 5 December 2013 section 14 Companies Amendment Act 2013
40: Modifications of statement of corporate intent
1: A statement of corporate intent for an energy company may be modified at any time by written notice from the directorate, so long as the directorate has first—
a: given written notice to the shareholders of the proposed modification; and
b: considered any comments made on the proposed modification by the shareholders within—
i: 1 month after the date on which the notice under paragraph (a) was given; or
ii: such shorter period as the shareholders may agree.
2: Notwithstanding any other provision of this Act or of the rules of any energy company, but subject to section 42 section 39(2)
3: Before giving any notice under subsection (2), the shareholders shall—
a: have regard to sections 36 44
b: consult the directorate concerned as to the matters to be referred to in the notice. 1974 No 66 s 594V 1989 No 29 s 34(1)
41: Obligation to make statement of corporate intent available
Where—
a: a completed statement of corporate intent for an energy company is delivered to the shareholders by the directorate; or
b: any modification is adopted to a statement of corporate intent for any energy company,— the directorate shall, not later than 1 month after that completed statement of corporate intent is delivered to the shareholders or, as the case may be, the modification is adopted, make that completed statement of corporate intent or, as the case may be, that modification available to the public. 1974 No 66 s 594W 1989 No 29 s 34(1)
42: Circumstances in which accountability provisions not to apply
1: Nothing in sections 36 to 41
2: Upon a controlling interest in any energy company ceasing to be held by any local authority or local authorities, or any approved person or approved persons, or any combination of 1 or more local authorities and 1 or more approved persons,—
a: sections 36 to 38
b: the energy company shall no longer be required to comply with sections 39 to 41
3: Where, in accordance with this section, any provision of this Act does not apply or is made inapplicable in respect of an energy company, that provision shall, notwithstanding any subsequent change in the shareholding of the company, have no or, as the case may be, no further application to that company at any time.
43: Savings of certain transactions
A failure by an energy company to comply with—
a: any provision of sections 36 to 41
b: any provision contained in any statement of corporate intent— shall not affect the validity or enforceability of any deed, agreement, right, or obligation entered into, obtained, or incurred by the energy company. 1974 No 66 s 594Y 1989 No 29 s 34(1)
44: Reports and
financial statements
1: Within 3 months after the end of the first half of each financial year of an energy company, the directorate of the energy company shall deliver to the shareholders a report of the company's operations during that half-year.
2: Each report required by subsection (1) shall include the information required by the statement of corporate intent to be included therein.
3: Within 3 months after the end of each financial year of an energy company, the directorate shall deliver to the shareholders—
a: a report of the operations of the energy company and those of its subsidiaries (if any) during the financial year; and
b: audited financial statements for that financial year prepared in accordance with generally accepted accounting practice; and
c: the auditor's report on—
i: those financial statements; and
ii: the performance targets and other measures by which performance has been judged in relation to the objectives.
4: Every report under subsection (3)﻿(a) shall—
a: contain such information as is necessary to enable an informed assessment of the operations of the energy company and its subsidiaries (if any), including a comparison of the performance of the energy company and its subsidiaries (if any) with any relevant statement of corporate intent; and
b: state the maximum dividend (if any) recommended to be payable by the energy company in respect of its equity securities (other than fixed interest securities) for the financial year to which the report relates.
5:
6: If, at any time, section 39 1974 No 66 s 594Z 1989 No 29 s 34(1) Section 44 heading amended 1 April 2014 section 126 Financial Reporting (Amendments to Other Enactments) Act 2013 Section 44(3)﻿(b) replaced 1 April 2014 section 126 Financial Reporting (Amendments to Other Enactments) Act 2013 Section 44(5) repealed 1 April 2014 section 126 Financial Reporting (Amendments to Other Enactments) Act 2013
45: Auditor-General to be auditor of energy companies and subsidiaries
1: Despite sections 207P to 207V section 4
2: Without limiting the provisions of this section, the directors of an energy company may, after consultation with the Auditor-General, appoint a person or firm that is qualified for appointment as an auditor of a company to be an additional auditor of the energy company or any subsidiary of it.
3: If an energy company is not a public energy company,—
a: the company is not a public entity under subsection (1); and
b: the Auditor-General is not the auditor of the company; and
c: the directors of the company and of every subsidiary of the company must appoint an auditor or auditors of the company and of every subsidiary of the company and, where such appointment is made consequent on the Auditor-General ceasing to be the auditor of the energy company, every such appointment must be treated as having been made by the directors to fill a casual vacancy in the office of auditor under section 207R(3)
4: Despite subsection (3), if, in respect of any energy company that has ceased to be a public energy company, and its subsidiaries (if any),
5: In this section, public energy company Section 45 substituted 1 July 2001 section 53 Public Audit Act 2001 Section 45(1) amended 1 April 2014 section 126 Financial Reporting (Amendments to Other Enactments) Act 2013 Section 45(3)﻿(c) amended 1 April 2014 section 126 Financial Reporting (Amendments to Other Enactments) Act 2013 Section 45(4) amended 1 April 2014 section 126 Financial Reporting (Amendments to Other Enactments) Act 2013
46: Protection from disclosure of sensitive information
Nothing in this Act shall be construed as requiring the inclusion, in any statement of corporate intent, annual report, financial statement, or half-yearly report required to be produced under this Act in relation to an energy company, of any information that could be properly withheld if the Local Government Official Information and Meetings Act 1987 1988 No 91 s 17 Auditing of approved persons Heading inserted 17 December 1992 section 4 Energy Companies Amendment Act 1992
46A: Auditing of approved persons
1: While an approved person holds equity securities in an energy company,—
a: the approved person shall cause to be kept proper accounts relating to the equity securities so held; and
b: the approved person shall, within 5 months after the end of each financial year of the approved person, cause to be prepared, with respect to the affairs of the approved person as they relate to those equity securities, a yearly statement of financial position
c: as soon as practicable after the preparation of the yearly statement of financial position
d: the approved person shall make available to the public—
i: the auditor's report prepared under paragraph (c); and
ii: the statement of financial position and section 85
2: In this section, auditor section 35 Financial Reporting Act 2013
3: Nothing in this section limits any other enactment or rule of law relating to the maintenance and auditing of the accounts of an approved person.
4: This section is subject to section 104 Section 46A inserted 17 December 1992 section 4 Energy Companies Amendment Act 1992 Section 46A(1)﻿(b) amended 1 October 1997 section 6(1) Financial Reporting Amendment Act 1997 Section 46A(1)﻿(c) amended 1 October 1997 section 6(1) Financial Reporting Amendment Act 1997 Section 46A(1)﻿(d)﻿(ii) amended 1 October 1997 section 6(1) Financial Reporting Amendment Act 1997 Section 46A(2) replaced 1 April 2014 section 126 Financial Reporting (Amendments to Other Enactments) Act 2013 Section 46A(4) added 1 November 2010 section 166 Electricity Industry Act 2010
5: Transfer of energy undertakings to energy companies
Transfer of undertaking of Boards
47: Transfer of undertaking of Board to successor company
1: On a date appointed by the Governor-General by Order in Council made on the recommendation of the Minister,—
a: the undertaking of a Board named in the order (other than the shares referred to in paragraph (b)) shall, by virtue of this section, vest in the Board's successor company; and
b: all of the shares (if any) held by that Board in the Board's successor company shall, by virtue of this section, vest in such person or persons as are specified in the order, which for that purpose shall give effect to the provisions of the establishment plan approved in respect of that Board.
2: On the appointed day in relation to a Board,—
a: the Board shall be deemed to be dissolved; and
b: every person holding office as a member of the Board shall cease to hold that office; and no such member shall be entitled to any compensation in respect of loss of office.
3: An Order in Council shall be made under subsection (1) in relation to a Board and its successor company not later than 1 month after the date on which that successor company is incorporated or such later date as the Minister in any particular case determines.
4: In the application of subsection (3) in relation to a Board whose undertaking is to be transferred, in accordance with an approved establishment plan, to a successor company other than a company that is to be formed and registered pursuant to section 32
48: Issue of equity securities and debt securities
1: Every Order in Council made under section 47(1)
a: specify—
i: the kind, number, terms, and consideration for the issue
ii: the names of the persons, or the class or classes of the persons, to whom those equity securities shall be issued; and
b: specify—
i: the kind, number, nominal value, and terms (including interest) of any debt securities that shall be issued by the successor company consequent upon the vesting in it of the undertaking of the Board; and
ii: the names of the persons to whom those debt securities shall be issued; and
c: specify the date on which the equity securities and debt securities shall be issued.
2: In respect of the matters required by subsection (1) to be specified in an Order in Council made in relation to a Board and its successor company, the Order in Council shall give effect to the provisions of the establishment plan approved in respect of that Board.
3: On the date specified in the Order in Council pursuant to subsection (1)﻿(c), the company shall—
a: issue to such persons as are specified in the order in that behalf, and as fully paid up, equity securities of such kind, number and terms, and of such nominal value or for such consideration, as the case may be, as are specified in the order:
b: issue to such persons as are specified in the order in that behalf, debt securities of such kind, number, nominal value, and terms as are specified in the order.
4: 1987 No 195 s 6(4), (5), (8) Section 48(1)﻿(a)﻿(i) substituted 1 July 1994 section 2 Company Law Reform (Transitional Provisions) Act 1994 Section 48(1)﻿(a)﻿(i) amended 5 December 2013 section 14 Companies Amendment Act 2013 Section 48(3)﻿(a) substituted 1 July 1994 section 2 Company Law Reform (Transitional Provisions) Act 1994 Section 48(4) repealed 5 December 2013 section 14 Companies Amendment Act 2013
49: Depreciation funds to vest in energy company free of all trusts
1: On the appointed day in relation to a Board,—
a: all investments made by the Board pursuant to section 23 of the Electric Power Boards Amendment Act 1927
b: all money held, pursuant to section 24 of that Act shall, notwithstanding anything in sections 23A to 28 of that Act
2: On the appointed day in relation to a Board, any person holding office in respect of that Board as a Depreciation Fund Commissioner pursuant to section 21 of the Electric Power Boards Amendment Act 1927
50: Consequential provisions on transfer of undertaking of Board to successor company
Without limiting the generality of section 47
a: a reference (express or implied) to the Board in any instrument made, given, passed, or executed before the appointed day shall be read and construed as a reference to its successor company:
b: all contracts, agreements, conveyances, deeds, leases, licences, and other instruments, undertakings, and notices, (whether or not in writing), entered into by, made with, given to or by, or addressed to the Board (whether alone or with any other person) before the appointed day and subsisting immediately before the appointed day shall, to the extent that they were previously binding on and enforceable by, against, or in favour of the Board, be binding on and enforceable by, against, or in favour of its successor company as fully and effectually in every respect as if, instead of the Board, the company had been the person by whom they were entered into, with whom they were made, or to or by whom they were given or addressed, as the case may be:
c: nothing effected or authorised by this Act—
i: shall be regarded as placing the Board or its successor company or any other person in breach of contract or confidence or as otherwise making any of them guilty of a civil wrong; or
ii: shall be regarded as giving rise to a right for any person to terminate or cancel any contract or arrangement or to accelerate the performance of any obligation; or
iii: shall be regarded as placing the Board or its successor company or any other person in breach of any enactment or rule of law or contractual provision prohibiting, restricting, or regulating the assignment or transfer of any property or the disclosure of any information; or
iv: shall release any surety wholly or in part from all or any obligation; or
v: shall invalidate or discharge any contract or security:
d: any action, arbitration, proceedings, or cause of action which, immediately before the appointed day, is pending or existing by, against, or in favour of the Board or to which the Board is a party may be prosecuted, and without amendment of any writ, pleading, or other document, continued and enforced by, against, or in favour of its successor company. 1988 No 90 s 7(a), (c), (i), (j)
51: Employees of Board
Notwithstanding any other provision of this Act,—
a: on the appointed day in relation to a Board, each employee of the Board shall become an employee of its successor company but, for the purposes of every enactment, law, determination, contract, and agreement relating to the employment of each such employee, the contract of employment of that employee shall be deemed to have been unbroken and the period of service of that employee with the Board, and every other period of service of that employee that is recognised as continuous service by the Board, shall be deemed to have been a period of service with the company:
b: the terms and conditions of employment of each such employee shall, until varied, be identical with the terms and conditions of that employee's employment with the Board immediately before the appointed day and be capable of variation in the same manner:
c: no such employee shall be entitled to receive any payment or other benefit by reason only of that employee ceasing by virtue of this Act to be an employee of the Board:
d: property held on trust or vested in any person under any provident, benefit, superannuation, or retirement fund or scheme for the employees of a Board or their dependants or other persons immediately before the appointed day shall, on and after the appointed day, be deemed to be held on trust or vested in that person for those employees in their capacity as employees of the Board's successor company or their dependants or other persons on the same terms and conditions; and every reference in any instrument constituting that fund or scheme to the Board or an employee of the Board or a dependant of that employee or any other person shall be read and construed as a reference to the Board's successor company or an employee of that company, or a dependant of that employee or any other person, as the case may be; and any superannuation scheme that was, immediately before the appointed day, a registered superannuation scheme within the meaning of the Superannuation Schemes Act 1989 1988 No 90 s 9
52: Books and documents to remain evidence
1: Any document, matter, or thing, which, if this Act had not been passed, would have been admissible in evidence in respect of any matter for or against a Board shall, on and after the appointed day in relation to that Board, be admissible in evidence in respect of the same matter for or against that Board's successor company.
2: In this section, document section 2(1) 1988 No 90 s 10
53: Registers
1: The Registrar of Deeds, the District Land Registrar, or any other person charged with the keeping of any books or registers is not
2: The presentation to any registrar or other person of any instrument, whether or not comprising an instrument of transfer, by a Board's successor company,—
a: executed or purporting to be executed by the company; and
b: relating to any property held immediately before the appointed day in relation to the Board by that Board; and
c: containing a recital that that property has become vested in the company by virtue of the provisions of this Act— shall, in the absence of evidence to the contrary, be sufficient proof that the property is vested in the company. 1988 No 90 s 11 Section 53(1) amended 12 November 2018 section 250 Land Transfer Act 2017
54: Taxes and duties
1: For the purposes of the Inland Revenue Acts, and any other enactment that imposes or provides for the collection of a tax, duty, levy, or other charge, a Board and its successor company shall be deemed to be the same person.
2: For the purposes of section IA 5
a: by reason of the vesting in that person or those persons, by virtue of section 47(1)﻿(b)
b: by reason of the issue to that person or those persons, pursuant to section 48(3) shall be deemed to be the same persons as those persons who, immediately before the appointed day in relation to that Board, were treated by the Income Tax Act 2007
3: Neither—
a: the vesting of shares by virtue of section 47(1)﻿(b)
b: the issue of equity securities or debt securities pursuant to section 48(3) shall constitute a dutiable gift for the purposes of the Estate and Gift Duties Act 1968
4: In this section, the terms voting interest market value circumstance market value interest Income Tax Act 2007 Section 54 substituted 17 December 1992 section 5 Energy Companies Amendment Act 1992 Section 54(2) amended 1 April 2008 section ZA 2(1) Income Tax Act 2007 Section 54(4) amended 1 April 2008 section ZA 2(1) Income Tax Act 2007
55: Savings as to Board's special rates
1: Where, before 29 June 1988 (being the date of commencement of section 209 of the Rating Powers Act 1988
2: For the purposes of subsection (1), the provisions of sections 57 to 64 of the Electric Power Boards Act 1925 section 209(1) of the Rating Powers Act 1988
3: Where, before the appointed day in relation to the Auckland Electric Power Board, that Board has pledged a special rate as security for any special loan, that rate may be made and levied by that Board's successor company as if that company were the Board.
4: For the purposes of subsection (3), the provisions of sections 47 to 54 of the Auckland Electric Power Board Act 1978 section 95(1) Transfer of undertaking of local authorities
56: Local authorities to transfer energy undertakings to energy companies
1: Notwithstanding anything in the Local Government Act 1974
2: No local authority shall transfer any part of its energy undertaking to an energy company pursuant to subsection (1) except in accordance with the terms of an approved establishment plan.
3: In any case where an energy undertaking has not been transferred by a local authority to an energy company in accordance with this section within the time required by this section (including, where that time has been extended under this section, that extension of time), the Minister may transfer the energy undertaking to an energy company, and the Minister shall have all such powers as are necessary or desirable for that purpose.
4: Where, as a result of the default of any local authority, the Minister acts under subsection (3), the Minister shall be entitled to be reimbursed by the local authority for any costs and expenses incurred in the taking of the action.
57: Liabilities in respect of undertakings
1: Where any energy undertaking is to be transferred to an energy company by a local authority, the liabilities of the local authority that relate to the undertaking shall be identified by the local authority and the person or persons to whom the liabilities are owed.
2: In the absence of agreement between the local authority and the person or persons to whom the liabilities are owed as to the extent of the liabilities of the local authority that relate to the undertaking, the matter shall be referred to arbitration under the Arbitration Act 1996
3: The liabilities so identified shall remain liabilities of the local authority except to the extent of any written agreement to the contrary between all of the following:
a: the local authority:
b: the energy company:
c: the person or persons to whom the liability is owed:
d: any guarantor of the liability.
4: The directorate and members of the energy company shall ensure that sufficient debt securities are issued by the energy company to the local authority as will ensure that the local authority receives from the energy company funds sufficient to meet the liabilities that it is to retain and that relate to the undertaking transferred to the energy company. 1974 No 66 s 594ZI 1989 No 29 s 34(1) Section 57(2) amended 1 July 1997 section 18 Arbitration Act 1996
58: Certain matters not affected by transfer of undertaking to energy company
No transfer of any energy undertaking of a local authority to an energy company—
a: shall be regarded as placing the local authority, the energy company, or any other person in breach of contract or confidence or as otherwise making any of them guilty of a civil wrong; or
b: shall be regarded as giving rise to a right for any person to terminate or cancel any contract or arrangement or to accelerate the performance of any obligation; or
c: shall be regarded as placing the local authority, the energy company, or any other person in breach of any contractual provision prohibiting, restricting, or regulating the assignment or transfer of any property or the disclosure of any information; or
d: shall release any surety wholly or in part from all or any obligation; or
e: shall invalidate or discharge any contract or security,— unless there is in force an express commitment by the local authority that the undertaking will not be transferred to any such energy company. 1974 No 66 s 594ZJ 1989 No 29 s 34(1)
59: Consequential provisions on transfer of undertaking of local authority to energy company
1: Where any energy undertaking is transferred from a local authority to an energy company, thenceforth—
a: a reference (express or implied) to the local authority in any Act or instrument relating to the undertaking shall be read and construed as a reference to the energy company:
b: all contracts, agreements, conveyances, deeds, leases, licences, and other instruments, undertakings, and notices, (whether or not in writing) relating to the undertaking entered into by, made with, given to or by, or addressed to the local authority (whether alone or with any other person) subsisting immediately before the transfer shall, to the extent that they were previously binding on and enforceable by, against, or in favour of the local authority, be binding on and enforceable by, against, or in favour of the energy company as fully and effectually in every respect as if, instead of the local authority, the energy company had been the person by whom they were entered into, with whom they were made, or to or by whom they were given or addressed, as the case may be.
2: For the purposes of this section, an Act, instrument, contract, agreement, conveyance, deed, lease, licence, or other instrument or undertaking or notice shall be deemed to be related to the undertaking if it is acknowledged by both the local authority and the energy company as being so related.
3: Nothing in this section shall apply in respect of the liabilities of the local authority in relation to any energy undertaking except as may be necessary to give effect to any agreement referred to in section 57(3)
4: This section shall apply in relation to any company or entity to which section 81 1974 No 66 s 594ZK 1989 No 29 s 34(1) Section 59(4) added 17 December 1992 section 6 Energy Companies Amendment Act 1992
60: Protection of conditions of employment upon transfer
1: Where any employee of a local authority is transferred to an energy company to do substantially the same work as that person was doing before the transfer, the employment of that person by the energy company shall be on terms and conditions of employment no less favourable than the terms and conditions of employment applying to that person immediately before the date of the transfer.
2: Subsection (1) shall continue to apply to the terms and conditions of employment of each transferred employee until such time as any of the terms and conditions of employment that apply under the employment contract applying to that employee at the date of the transfer are varied.
3: The terms and conditions of employment of each transferred employee shall, from the date of any such variation, be determined in accordance with the employment contract applying to that employee in the energy company in which the transferred employee is then employed.
4: Nothing in subsection (1) shall continue to apply to any transferred employee who receives any subsequent appointment within the energy company to which that employee was transferred. 1988 No 20 s 61B 1991 No 31 s 6
61: Employment of transferred employees deemed to be continuous
1: Every employee of a local authority who is transferred to an energy company shall, on the date of the transfer, become an employee of the energy company, but, for the purposes of every enactment, determination, contract, and agreement relating to the employment of each such employee, the contract of employment of that employee shall be deemed to have been unbroken and that employee's period of service with that local authority, and every other period of service of that employee that is recognised as continuous service by that local authority, shall be deemed to have been a period of service with the energy company.
2: No employee of a local authority who is transferred to an energy company shall be entitled to receive any payment or other benefit by reason only of that person ceasing by virtue of that transfer to be an employee of that local authority.
62: Taxes and duties
1: Where any energy undertaking of a local authority is transferred to an energy company in accordance with this Act, then, for the purposes of the Inland Revenue Acts, and any other enactment that imposes or provides for the collection of a tax, duty, levy, or other charge, that local authority (in its capacity as an energy trading operator within the meaning given to that term by section OB 1 of the Income Tax Act 1994
2: Where an energy undertaking of a local authority is transferred to an energy company in accordance with this Act, then, for the purposes of section IA 5 treated by the Income Tax Act 2007 given to that term by section OB 1 of the Income Tax Act 1994
3: Notwithstanding anything in subsection (1), where an energy undertaking of a local authority is transferred to 2 or more energy companies in accordance with this Act, then, for the purposes of section IA 5 net loss as defined in section YA 1 given to that term by section OB 1 of the Income Tax Act 1994 net loss as defined in section YA 1 of the Income Tax Act 2007
4: This section shall apply in relation to any company or entity to which section 81
5: In this section, the terms voting interest market value circumstance market value interest Income Tax Act 2007 Section 62 substituted 17 December 1992 section 7 Energy Companies Amendment Act 1992 Section 62(1) amended 1 April 2005 section YA 2 Income Tax Act 2004 Section 62(2) amended 1 April 2008 section ZA 2(1) Income Tax Act 2007 Section 62(2) amended 1 April 2005 section YA 2 Income Tax Act 2004 Section 62(3) amended 1 April 2008 section ZA 2(1) Income Tax Act 2007 Section 62(3) amended 1 April 2005 section YA 2 Income Tax Act 2004 Section 62(3) amended 26 July 1996 Taxation (Core Provisions) Act 1996 Section 62(5) amended 1 April 2008 section ZA 2(1) Income Tax Act 2007
63: Transfer of leases, licences, etc, to energy company
1: A local authority may grant to any energy company any lease, licence, easement, permit, or interest of any kind in relation to any energy undertaking transferred by the local authority to the energy company.
2: Notwithstanding anything in any enactment or rule of law, property that is fixed to, or under or over, any land may be transferred pursuant to this Act by a local authority to an energy company, whether or not any interest in the land is also transferred. Where any such property is so transferred, the property and the land shall be regarded as separate property each capable of separate ownership. 1974 No 66 s 594ZE 1989 No 29 s 34(1)
64: Exclusion of Public Bodies Leases Act 1969
Nothing in the Public Bodies Leases Act 1969 1974 No 66 s 594ZH 1989 No 29 s 34(1)
65: Prohibition on guarantees, etc
No local authority shall give any guarantee, indemnity, or security in respect of the performance of any obligation by an energy company in which that local authority is a shareholder. 1974 No 66 s 594ZP 1989 No 29 s 34(1)
65A: Restriction on power of local authority to lend to energy company
Where a local authority is a shareholder in an energy company, that local authority shall not lend money to, or provide any other financial accommodation to, that energy company on terms and conditions that are more favourable to the energy company than those that would apply if the local authority were (without charging any rate or rate revenue as security) borrowing the money or obtaining the financial accommodation. Section 65A inserted 1 July 1998 section 16(1) Local Government Amendment Act (No 3) 1996
66: Prohibition on transfer of regulatory functions
1: Except with the prior approval of the Minister, no local authority shall transfer or attempt to transfer any regulatory function to an energy company, whether or not that function is ordinarily carried out in conjunction with any energy undertaking that is being or has been so transferred.
2: Any approval given under subsection (1) may be given either unconditionally or subject to such conditions as the Minister thinks fit.
3: Any approval given under subsection (1) may at any time be withdrawn by the Minister; and any condition subject to which any such approval is given may from time to time be revoked, varied, or added to by the Minister. 1974 No 66 s 594E 1989 No 29 s 34(1)
67: Duty to act in furtherance of objectives of this Part
1: Every local authority shall at all times do everything in its power to achieve the objectives of this Part, (in so far as those objectives relate to the local authority), and for that purpose, but without limitation, shall do everything in its power—
a: to preserve and maintain the energy undertaking of the local authority pending the transfer of that undertaking to an energy company:
b: to facilitate the transfer of its energy undertaking to an energy company:
c: to assist in the transfer of the staff of its energy undertaking to an energy company.
2: No local authority shall, without the prior written consent of the Minister,—
a: dispose of or charge any of its energy undertaking; or
b: enter into or grant any lease, licence, concession, or other franchise agreement or arrangement of more than 12 months' duration relating to its energy undertaking; or
c: extend the term of any lease, licence, concession, or other franchise agreement or arrangement relating to its energy undertaking for a period exceeding 12 months,— except in accordance with an approved establishment plan.
3: The Minister, upon being satisfied that the energy undertaking of a local authority has been transferred to an energy company, shall advise the local authority in writing that the consent of the Minister to any action referred to in subsection (2) is no longer required. 1988 No 91 s 33 General
68: Issue of shares on incorporation of energy company
1: On the appointed day in relation to a Board, the shares subscribed or applied for in the capital of the Board's successor company on its incorporation shall be deemed,—
a:
b: in the case of a company registered under the Companies Act 1993
2: On the transfer by a local authority to an energy company of an energy undertaking of the local authority, the shares subscribed or applied for in the capital of the energy company on its incorporation shall be deemed,—
a:
b: in the case of a company registered under the Companies Act 1993
3: Nothing in subsection (1) or subsection (2) shall apply in respect of any company that has been incorporated otherwise than pursuant to section 32
4: Section 68 substituted 1 July 1994 section 2 Company Law Reform (Transitional Provisions) Act 1994 Section 68(1)﻿(a) repealed 5 December 2013 section 14 Companies Amendment Act 2013 Section 68(2)﻿(a) repealed 5 December 2013 section 14 Companies Amendment Act 2013 Section 68(4) repealed 5 December 2013 section 14 Companies Amendment Act 2013
69: Modification of provisions of Public Works Act 1981
1: Nothing in sections 40 to 42 sections 40 41
2: If, in relation to land that has been vested in, or transferred to, an energy company pursuant to this Act, an offer made under subsection (2) of section 40
a: within 40 working days after the making of the offer or such further period as the energy company considers reasonable; or
b: if an application has been made pursuant to subsection (2A) of that section to the Land Valuation Tribunal, within 20 working days after the determination of the Tribunal,— whichever is later, and the parties have not agreed on other terms for the sale of the land, the energy company may sell or otherwise dispose of the land to any person on such terms and conditions as it thinks fit.
3: For the purposes of subsection (2), the term working day section 2 1974 No 66 s 594ZF 1989 No 29 s 34(1)
69A: Preparation of accounts
1: Where—
a: under section 47(1)
b: under section 56 the energy company in which such undertaking or undertakings has vested, or to which such undertaking or undertakings has been transferred, as the case may be, shall, not later than 6 months after the date of vesting or transfer, prepare financial statements for the Board or Boards or the energy undertaking of the local authority or local authorities, as the case may be, for the period from the end of the last financial year of the Board or local authority to the date of vesting or transfer, as the case may be, and shall have such financial statements audited.
2: The Auditor-General Public Audit Act 2001 Section 69A inserted 28 September 1993 Energy Companies Amendment Act 1993 Section 69A(2) amended 1 July 2001 section 52 Public Audit Act 2001 Section 69A(2) amended 1 July 2001 section 54(1)﻿(a) Public Audit Act 2001
6: Waikato Electricity Authority
70: Waikato Electricity Authority
The provisions of sections 71 to 78 Waikato Electricity Authority Act 1988
71: Waikato Electricity Authority to prepare share allocation plan
1: Not later than 6 months after the commencement of this section or such later date as the Minister may allow (but in no case later than 31 March 1993), the Waikato Electricity Authority shall prepare and submit to the Minister, for the Minister's approval, a plan setting out the Authority's recommendations as to the person or persons to whom the voting equity securities held by the Authority in WEL Energy Group Limited should be allocated consequent upon the dissolution of the Authority.
2: The Waikato Electricity Authority shall not forward a share allocation plan to the Minister unless the Authority has adopted the special consultative procedure in relation to that plan.
3: For the purposes of section 716A
72: Approval of plan
1: Subject to subsection (2), as soon as practicable after receiving the plan submitted by the Authority under section 71
2: If the Minister considers that the plan should be varied, the Minister may decline to approve the plan and direct the Authority to prepare and submit a revised plan.
3: Where, pursuant to subsection (2), the Minister declines to approve the plan and directs the Authority to prepare and submit a revised plan, the Minister shall inform the Authority of the reasons for the direction, and may indicate any specific matter that the Minister requires to be dealt with in the revised plan.
4: Where, pursuant to subsection (2), the Minister declines to approve the plan submitted by the Authority, the Authority shall submit a revised plan to the Minister not later than 6 weeks after the date on which that approval was declined or such later date as the Minister may allow.
5: The provisions of section 71(1)
73: Approval of revised plan
1: As soon as practicable after receiving a revised plan submitted by the Waikato Electricity Authority under section 72(4)
a: approve the plan by notice in writing to the Authority; or
b: if the Minister considers that the revised plan requires further amendment,—
i: make such amendments to the plan as the Minister considers necessary; and
ii: approve the plan (as amended) by notice in writing to the Authority, which notice shall be accompanied by a copy of the plan as approved.
2: Before making any amendments to the plan under subsection (1)﻿(b), the Minister shall advise the Authority of the Minister's intention to do so, and shall give the Authority a reasonable opportunity to make submissions on the matter.
74: Failure to submit plan
1: If the Waikato Electricity Authority has not submitted a plan in accordance with section 71
2: Where, as a result of the default of the Authority, the Minister acts under subsection (1), the Minister shall be entitled to be reimbursed by the Authority for any costs and expenses incurred in the taking of the action.
3: In any case where, pursuant to subsection (2) of section 72 section 73
4: Where, pursuant to subsection (1), the Minister causes a plan to be prepared, the plan shall provide for the voting equity securities held by the Authority in WEL Energy Group Limited to be allocated to the local authorities referred to in section 6(1) of the Waikato Electricity Authority Act 1988 section 6(2) of that Act section 14 of the Electric Power Boards Amendment Act 1989
75: Valuation to be submitted with plan
1: Before submitting to the Minister the plan required by section 71
2: The valuation required by subsection (1) shall be made on the same basis as valuations made for the purposes of section 18(2)﻿(b)
3: The plan submitted to the Minister in accordance with section 71
76: Transfer of assets and shares
1: On a date appointed by the Governor-General by Order in Council made on the recommendation of the Minister,—
a: both—
i: all shares held by the Waikato Electricity Authority in WEL Energy Group Limited; and
ii: all money and other debt securities that are part of the undertaking of the Waikato Electricity Authority— shall, by virtue of this section, vest in such person or persons as are specified in the order, which for that purpose shall give effect to the provisions of the plan approved pursuant to section 72 section 73
b: the undertaking of the Waikato Electricity Authority (other than the shares referred to in paragraph (a)﻿(i), and the money and debt securities referred to in paragraph (a)﻿(ii)) shall, by virtue of this section, vest in WEL Energy Group Limited.
2: On the date appointed under subsection (1) in relation to the Waikato Electricity Authority,—
a: the Authority shall be deemed to be dissolved; and
b: every person holding office as a member of the Authority shall cease to hold that office; and no such member shall be entitled to any compensation in respect of loss of office.
3: An Order in Council shall be made under subsection (1) in relation to the Waikato Electricity Authority not later than 2 months after the date on which the plan required by section 71
4: Neither—
a: the vesting of shares by virtue of paragraph (a)﻿(i) of subsection (1); nor
b: the vesting of money and debt securities by virtue of paragraph (a)﻿(ii) of that subsection— shall constitute a dutiable gift for the purposes of the Estate and Gift Duties Act 1968 Section 76(1) substituted 17 December 1992 section 8(1) Energy Companies Amendment Act 1992 Section 76(4) added 17 December 1992 section 8(2) Energy Companies Amendment Act 1992
77: Provisions to apply in respect of Waikato Electricity Authority and WEL Energy Group Limited
For the purposes of Part 5
a: the Waikato Electricity Authority shall be deemed to be an Electric Power Board constituted under the Electric Power Boards Act 1925
b: on and after the date appointed under section 76(1) section 32
c: the Order in Council made under section 76(1) section 47(1) and, subject to sections 71 to 76 Part 5
78: WEL Energy Group Limited deemed to be energy company for certain purposes
For the purposes of sections 36 37 39 to 46 85 87 88
79: Repeal of Waikato Electricity Authority Act 1988 and amendments
1: The following enactments are hereby repealed, namely,—
a: the Waikato Electricity Authority Act 1988
b: sections 11 to 15 of the Electric Power Boards Amendment Act 1989
c: the Waikato Electricity Authority Amendment Act 1990
d: section 7(2)﻿(b) of the Local Government Official Information and Meetings Amendment Act 1991
e: section 92
2: The enactments specified in Schedule 1
3: The repeal, by subsection (1), of the Waikato Electricity Authority Amendment Act 1990 section 6 of that Act
80: WEL Energy Group Limited declared to be administering body
1: WEL Energy Group Limited is declared to be an administering body within the meaning of section 2 Waikato Electricity Authority Act 1988
1A: Notwithstanding subsection (1), WEL Energy Group Limited shall be a local authority for the purposes of the Local Government Official Information and Meetings Act 1987
a: for the purposes of Parts 1 to 6 8 section 2
b: for the purposes of Part 7 section 2
2: This section shall come into force on the date on which section 79 Section 80(1A) inserted 28 September 1993 Energy Companies Amendment Act 1993
7: Miscellaneous provisions
General
81: Undertakings transferred before commencement of this Act
1: Notwithstanding anything in any other enactment, where any local authority has, before the commencement of this section, transferred all or any of its energy undertaking to any company or any other entity in which shares that carry 51% or more of the voting rights at any general meeting of the company or entity are held by or on behalf of the local authority or other local authorities, that company or other entity (hereafter in this section referred to as an existing company) shall be deemed, for the purposes of sections 36 37 39 to 46 85 87 88
2: Every existing company shall, not later than 31 December 1992 or such later date as the Minister in any particular case may allow, cause a valuation of the undertaking of the company to be undertaken, which valuation shall be determined on the same basis as valuations are made for the purposes of section 18(2)﻿(b)
3: For the purposes of the application of section 197C(8) of the Income Tax Act 1976 section 197C of that Act
82: Validation of transfer of certain energy undertakings
1: The following actions are hereby validated and declared to have been lawful, namely,—
a: the formation and registration, under the Companies Act 1955 Waipori Power Generation Limited
b: the formation and registration, under the Companies Act 1955 Dunedin Electricity Limited
c: the formation and registration, under the Companies Act 1955 Otago Citigas Limited and section 81
2: The formation and registration, under the Companies Act 1955 Progas Systems Limited section 81
3: The formation and registration, under the Companies Act 1955 Electricity Invercargill Limited section 81
4: The formation and registration, under the Companies Act 1955 Invergas Limited section 81
83: Electric Power Trusts dissolved
Where, before the commencement of this section, an Electric Power Trust has been established in respect of a Board by a trust deed executed under section 3 of the Electric Power Boards Amendment Act 1990
a: the property, rights, assets, and liabilities (if any) of the trust shall vest in the Board freed and discharged of all trusts and restrictions affecting the property, rights, assets, or liabilities; and
b: the trust shall be deemed to be dissolved; and
c: the trustees of the trust shall cease to hold office as trustees of that trust; and no such trustee shall be entitled to any compensation in respect of loss of office.
84: Remuneration of trustees appointed under Electric Power Boards Amendment Act 1990
1: Every person who, at any time before the commencement of this section, was appointed to be a trustee of an Electric Power Trust established in respect of a Board by a trust deed executed under section 3 of the Electric Power Boards Amendment Act 1990
2: The salary to which a person to whom subsection (1) applies is entitled—
a: shall be payable in respect of the period—
i: that begins on the date of the appointment of that person as a trustee of an Electric Power Trust; and
ii: that ends with the close of the 20th day after the commencement of this section, or the date on which that person vacated office as a trustee of that trust (other than by virtue of section 83
b: shall be equal in amount to 50% of the salary that, immediately before 8 August 1990, was payable, in accordance with Part 4C
c: shall, in respect of any period in respect of which that person is entitled to receive that salary but which is not a complete year, be reduced in proportion to that period; and
d: shall be paid out of the funds of the Board in respect of which the Electric Power Trust of which the person was a member was established.
3: For the purposes of this section, a person who, pursuant to section 4(3) of the Electric Power Boards Amendment Act 1990
84A: Continuation in office of members of Central Canterbury Electric Power Board
During the period beginning on 1 July 1992 and ending with the close of the day before the appointed day in relation to the Central Canterbury Electric Power Board, sections 2 to 4 of the Electric Power Boards Amendment Act 1989 30 June 1992 day before the appointed day (within the meaning of the Energy Companies Act 1992) in relation to the Central Canterbury Electric Power Board Section 84A inserted 17 December 1992 section 9(1) Energy Companies Amendment Act 1992
85: Public availability of documents
Where any Board, local authority, or energy company is required under this Act to make any document available to the public, it shall—
a: make sufficient copies of that document available for public inspection, free of charge; and
b: make sufficient copies of that document available for purchase at a reasonable price during normal office hours at every office of the Board, local authority, or energy company, as the case may require; and
c: notify by advertisement in a newspaper circulating in the district the fact that copies are so available. 1988 No 91 s 35
86: Supply of information
The Minister may, from time to time, for the purposes of this Act, require any establishing authority to make available to the Minister information in its possession or over which it has control relating to its energy undertaking; and the establishing authority shall make that information available in a form in which it may be readily understood.
86A: Supply of computer compiled lists and computer tapes containing electoral information to Electric Power Boards and energy companies
1: Where any officer, member, or employee of an Electric Power Board (within the meaning of the Electric Power Boards Act 1925
a: any election or poll to be conducted by or on behalf of that Board or company or trust; or
b: any distribution of shares— the Electoral Commission
2: For the purposes of subsection (1), the following information may be recorded on a computer compiled list or computer tape, disk, or diskette for any electoral district:
a: the name of each elector, including first names and surname:
b: the residential address of each elector, and postal address (if different):
c: the occupation (if any) of each elector:
d: statistical meshblock details of each elector.
3: The provisions of sections 116 117 under the Electoral Act 1993
a: the information sought or supplied under this section had been sought or supplied pursuant to section 113(9)
b: the persons to whom information may be supplied under this section were persons to whom section 113(9)
c: the purposes described in paragraphs (a) and (b) of subsection (1) were purposes for which the supply of information was authorised under section 113(9)
3A: Electoral Commission section 4B
4: In this section, expressions (other than Electoral Commission) defined in the Electoral Act 1993 Section 86A inserted 28 September 1993 Energy Companies Amendment Act 1993 Section 86A(1) amended 1 July 2012 section 56(2) Electoral (Administration) Amendment Act 2011 Section 86A(3) amended 1 July 2012 section 56(3)﻿(a) Electoral (Administration) Amendment Act 2011 Section 86A(3) amended 1 July 2012 section 56(3)﻿(b) Electoral (Administration) Amendment Act 2011 Section 86A(3)﻿(a) amended 1 July 2012 section 56(3)﻿(c) Electoral (Administration) Amendment Act 2011 Section 86A(3)﻿(b) amended 1 July 2012 section 56(3)﻿(c) Electoral (Administration) Amendment Act 2011 Section 86A(3)﻿(c) amended 1 July 2012 section 56(3)﻿(c) Electoral (Administration) Amendment Act 2011 Section 86A(3A) inserted 1 July 2012 section 56(4) Electoral (Administration) Amendment Act 2011 Section 86A(4) amended 1 July 2012 section 56(5) Electoral (Administration) Amendment Act 2011
87: Local authority shareholding in energy companies
1: Local authorities are hereby authorised to subscribe for, otherwise acquire, hold, or dispose of, equity securities in energy companies.
2: Nothing in subsection (1) limits or prevents any other person from subscribing for, otherwise acquiring, holding, or disposing of, equity securities in energy companies. 1989 No 91 s 7 1990 No 120 s 4
88: Relinquishment by local authority of controlling interest in energy company
Notwithstanding anything in section 87(1)
a: proposes to reduce its shareholding in that energy company with the effect that the local authority would no longer hold a controlling interest in that energy company; or
b: proposes to take any action or not to take any action with the effect that the local authority would no longer hold a controlling interest in that energy company,— the local authority may deal with that proposal only in accordance with the special consultative procedure. 1974 No 66 s 594F 1989 No 29 s 34(1) Amendments to other enactments
89: Amendments to Local Government Act 1974
(1), (2): Amendment(s) incorporated in the Act(s)
3: The following enactments are hereby consequentially repealed:
a: section 43(2)
b: section 23 of the Local Government Amendment Act (No 2) 1982
c: section 10
89A: Further amendment to Local Government Act 1974
Section 89A repealed 1 July 2003 section 266 Local Government Act 2002
90: Amendment to Immigration Act 1987
Amendment(s) incorporated in the Act(s)
91: Amendment to Electric Power Boards Act 1925
Amendment(s) incorporated in the Act(s)
92: Amendments to Waikato Electricity Authority Act 1988
Section 92 repealed 26 October 1993 section 79(1)﻿(e)
93: Amendments to Electric Power Boards Amendment Act 1989
Amendment(s) incorporated in the Act(s)
94: Amendment to Electric Power Boards Amendment Act 1990
Amendment(s) incorporated in the Act(s) Consequential amendments and repeals
95: Repeal of Auckland Electric Power Board Act 1978 and related amendments
1: The following enactments are hereby repealed, namely,—
a: the Auckland Electric Power Board Act 1978
b: the Auckland Electric Power Board Amendment Act 1979
c: the Auckland Electric Power Board Amendment Act 1981
d: so much of Part 3 of Schedule 3
i: the Auckland Electric Power Board Act 1978
ii: the Auckland Electric Power Board Amendment Act 1979
iii: the Auckland Electric Power Board Amendment Act 1981
e: so much of Schedule 1 of the Local Government Amendment Act 1986 Auckland Electric Power Board Act 1978
f: sections 7 to 10 of the Electric Power Boards Amendment Act 1989
g: sections 17 to 21 of the Electric Power Boards Amendment Act 1990
2: The enactments specified in Schedule 2
96: Consequential amendments and repeals
1: The enactments specified in Schedule 3
2: The enactments specified in Schedule 4
3: The repeal, by subsection (2), of the enactments specified in Schedule 4
4: The Electric Power Boards Accounting Regulations 1977 (SR 1977/66)