AUSTRALIAN BUSINESS INVESTMENT PARTNERSHIP BILL 2009

i Australian Business Investment Partnership Bill 2009 No. , 2009

Contents

Part 1--Preliminary

Short title ............................................................................................ 1

Commencement .................................................................................. 1

Extension to external Territories ........................................................ 2

Definitions .......................................................................................... 2

Part 2--Australian Business Investment Partne rship Limited

Application for registration of company............................................. 4

Shareholders' Agreement ................................................................... 4

Objects of ABIP Limited .................................................................... 4

ABIP Limited may enter into financing arrangements....................... 5

Limit on borrowing by ABIP Limited ................................................ 6

Constitution of ABIP Limited to include certain provisions

etc........................................................................................................ 7

Audit ................................................................................................... 8

Tabling of ABIP Limited's financial report etc.................................. 8

Part 3--Appropriations etc.

Initial appropriation ............................................................................ 9

Appropriation relating to Commonwealth guarantee ......................... 9

Borrowing ........................................................................................... 9

Part 4--Miscellaneous

Interaction with the Trade Practices Act .......................................... 10

Regulations ....................................................................................... 10

Australian Business Investment Partnership Bill 2009 No. , 2009 1

A Bill for an Act relating to the Australian Business

Investment Partnership, and for other purposes

The Parliament of Australia enacts:

Part 1--Preliminary

1 Short title

This Act may be cited as the Australian Business Investment

Partnership Act 2009.

2 Commence ment

This Act commences on the day after it receives the Royal Assent.

Part 1 Preliminary

Section 3

2 Australian Business Investment Partnership Bill 2009 No. , 2009

3 Extension to external Territories

This Act extends to every external Territory.

4 Definitions

In this Act:

ABIP Limited means the company registered as the Australian

Business Investment Partnership Limited under Part 2A.2 of the

Corporations Act.

ASIC means the Australian Securities and Investments

Commission.

borrow includes raise money or obtain credit, whether by dealing

in securities or otherwise.

constitutional corporation means a corporation to which

paragraph 51(xx) of the Constitution applies.

Corporations Act means the Corporations Act 2001.

Deed of Guarantee means a Deed of Guarantee in respect of

money borrowed by ABIP Limited for the purpose of entering into

financing arrangements under section 8, executed on behalf of the

Commonwealth, as the Deed is in force from time to time.

enforcement resolution means a resolution of the directors of

ABIP Limited:

(a) to begin or proceed with action; or

(b) that decides on a strategy (including the settlement or

compromise);

in relation to enforcement of any rights of ABIP Limited relating to

a financing arrangement under section 8.

loan includes:

(a) an advance of money; and

(b) the provision of credit or any other form of financial

accommodation; and

Preliminary Part 1

Section 4

Australian Business Investment Partnership Bill 2009 No. , 2009 3

at the request of a person where there is an obligation

(whether expressed or implied) to repay the amount; and

(d) a dealing in securities or any other transaction, whatever its

terms or form, which in substance effects a loan of money.

Shareholders' Agreement means the agreement referred to in

subsection 6(1).

special resolution has the same meaning as in the Corporations

Act.

subsidiary has the same meaning as in the Corporations Act.

Part 2 Australian Business Investment Partnership Limited

Section 5

4 Australian Business Investment Partnership Bill 2009 No. , 2009

Part 2--Australian Business Investment

Partnership Limited

5 Application for registration of company

As soon as possible after the commencement of this Act, a person

on behalf of the Commonwealth must apply to ASIC under

Part 2A.2 of the Corporations Act to register a company named

"Australian Business Investment Partnership Limited" as a public

company limited by shares.

6 Shareholders' Agreement

(1) ABIP Limited and its members may enter into an agreement

relating to any or all of the following:

(a) the operation of the business that ABIP Limited is to carry

on;

(b) the control, management and funding of ABIP Limited;

(2) As soon as practicable after the agreement is entered into, ABIP

Limited must publish (whether on the internet or otherwise) a copy

of the agreement.

(3) If the agreement is amended, ABIP Limited must publish (whether

on the internet or otherwise) a copy of each of the following as

soon as practicable after the amendment is made:

(a) the amendment;

(b) the agreement as amended.

7 Objects of ABIP Limited

(1) The object of ABIP Limited is to provide refinancing for loans

relating to commercial property assets in Australia in situations

where:

(a) finance relating to the assets is not available from

commercial providers other than ABIP Limited; and

Australian Business Investment Partnership Limited Part 2

Section 8

Australian Business Investment Partnership Bill 2009 No. , 2009 5

(b) the assets would otherwise be financially viable.

(2) A further object of ABIP Limited is to provide financing in other

areas of commercial lending through financing arrangements of a

kind agreed to by the members of ABIP Limited in accordance

with paragraph 8(3)(b).

8 ABIP Limite d may enter into financing arrange ments

(1) ABIP Limited may enter into a financing arrangement if and only

if:

(a) the arrangement is entered into for an object mentioned in

subsection 7(1) or (2); and

(b) the requirements set out in subsections (2), (3), (4) and (5) of

this section are met.

Constitutional limits

(2) At least one of the following must apply in relation to the

arrangement:

(a) the other party to the arrangement, or (if there is more than

one other party to the arrangement) at least one of those other

parties, is a constitutional corporation;

(b) entering into the arrangement constitutes, or the arrangement

is entered into for a purpose connected with:

(i) trade or commerce between Australia and places outside

Australia; or

(ii) trade or commerce among the States; or

(iii) trade or commerce within a Territory, between a State

and a Territory or between 2 Territories;

(d) the arrangement is entered into for a purpose connected with

the supply of goods or services to the Commonwealth or an

authority or instrumentality of the Commonwealth.

Kind of arrangement

(3) The arrangement:

Part 2 Australian Business Investment Partnership Limited

Section 9

6 Australian Business Investment Partnership Bill 2009 No. , 2009

(a) is an arrangement for the refinancing of a loan relating to a

commercial property asset in Australia and ABIP Limited is

satisfied that:

(i) finance relating to the asset is not available from

commercial providers other than ABIP Limited; and

(ii) the asset, and the income stream from the asset, are

financially viable; or

(b) if all the members of ABIP Limited agree, in writing, that

ABIP Limited may enter into another specified kind of

financing arrangement--is an arrangement of that specified

kind.

Arrangement to be entered into within 2-year period

(4) The arrangement is to be entered into within the 2-year period

beginning on the day on which this Act commences.

Term of arrangement

(5) The term of the arrangement is not to exceed 3 years or such longer

period as is specified in the regulations.

Borrowings by ABIP Limited

(6) This section does not apply to borrowings by ABIP Limited.

9 Limit on borrowing by ABIP Limited

(1) ABIP Limited may borrow money for the purpose of entering into

financing arrangements under section 8, or meeting obligations

under such arrangements, if and only if:

(a) the borrowing would not result in the total amount of

principal outstanding in relation to all borrowings of that kind

exceeding $26 billion; and

(b) all the members of ABIP Limited agree, in writing, to the

borrowing.

(2) For the purposes of paragraph (1)(a), disregard the amount of any

loans made to ABIP Limited by its members in accordance with

the Shareholders' Agreement.

Australian Business Investment Partnership Limited Part 2

Section 10

Australian Business Investment Partnership Bill 2009 No. , 2009 7

10 Constitution of ABIP Limited to include certain provisions etc.

(1) ABIP Limited must have a constitution that includes the following:

(a) a provision limiting the powers of ABIP Limited to:

(i) entering into financing arrangements in accordance with

section 8; and

(ii) borrowing money in accordance with section 9; and

(iii) doing such other things as are incidental to the exercise

of the powers mentioned in subparagraphs (i) and (ii);

(b) a provision requiring ABIP Limited to have 5 directors;

nominate one of those directors and may remove the

nominated director from office;

(d) a provision that the director nominated by the

Commonwealth, or an alternate director appointed by the

Commonwealth, is to be the Chairperson of the Board of

ABIP Limited;

(e) a provision requiring resolutions of the directors of ABIP

Limited (other than enforcement resolutions) to be passed

unanimously;

(f) a provision requiring enforcement resolutions to be passed by

a majority that:

(i) consists of at least 80% of the votes cast by directors

entitled to vote on the resolution; and

(ii) includes the vote of the director nominated by the

Commonwealth, or an alternate director appointed by

the Commonwealth;

(g) a provision requiring the directors of ABIP Limited to give

the Minister a copy of ABIP Limited's financial report,

directors' report and auditor's report for each financial year;

(h) a provision requiring the directors of ABIP Limited to

establish and maintain an audit committee with functions that

include:

(i) helping ABIP Limited and its directors to comply with

obligations under the Corporations Act; and

(ii) providing a forum for communication between the

directors, the senior managers of ABIP Limited and the

internal and external auditors of ABIP Limited;

Part 2 Australian Business Investment Partnership Limited

Section 11

8 Australian Business Investment Partnership Bill 2009 No. , 2009

being a committee that is constituted in accordance with any

regulations made for the purposes of subsection 44(2) of the

Commonwealth Authorities and Companies Act 1997;

(i) a provision that has the effect of imposing on the directors of

ABIP Limited the obligations that section 37 of that Act

would impose on the directors if ABIP Limited were a

Commonwealth company within the meaning of that Act.

(2) A special resolution of ABIP Limited that would, apart from this

subsection, have the effect of modifying ABIP Limited's

constitution so that it would not comply with subsection (1) has no

effect.

(3) A special resolution or resolution of ABIP Limited that, apart from

this subsection:

(a) would, if acted on, result in a contravention of a provision

included in ABIP Limited's constitution in accordance with

subsection (1); or

(b) would ratify an act or omission that contravenes such a

provision;

has no effect.

11 Audit

(1) The Auditor-General's functions include auditing financial

statements of ABIP Limited and its subsidiaries consistently with

the Corporations Act.

(2) Section 14 of the Auditor-General Act 1997 (which deals with

audit fees for statement audits) applies to any such audit, as if the

financial statements were audited as mentioned in section 12 or 13

of that Act.

12 Tabling of ABIP Limited's financial report etc.

As soon as practicable after the Minister is given a copy of ABIP

Limited's financial report, directors' report and auditor's report for

a financial year, the Minister must table the reports in each House

of the Parliament.

Appropriations etc. Part 3

Section 13

Australian Business Investment Partnership Bill 2009 No. , 2009 9

Part 3--Appropriations etc.

13 Initial appropriation

The Consolidated Revenue Fund is appropriated in the amount of

$2 billion for the purpose of:

(a) subscribing for shares in ABIP Limited; and

(b) providing a loan to ABIP Limited.

14 Appropriation relating to Commonwealth guarantee

The Consolidated Revenue Fund is appropriated for the purpose of:

(a) paying claims under the Deed of Guarantee; and

(b) repaying a borrowing, and paying interest on a borrowing,

made under section 15.

Note:

Section 9 limits the amount that ABIP Limited may borrow.

15 Borrowing

(1) The Minister may, on behalf of the Commonwealth, borrow money

for the purpose of paying claims under the Deed of Guarantee.

(2) However, a borrowing in accordance with subsection (1) must not

be for a period longer than 24 months.

(3) This section does not apply to obtaining credit in a transaction

forming part of the day-to-day operations of the Commonwealth.

Part 4 Miscellaneous

Section 16

10 Australian Business Investment Partnership Bill 2009 No. , 2009

Part 4--Miscellaneous

16 Inte raction with the Trade Practices Act

(1) For the purposes of subsection 51(1) of the Trade Practices Act

1974, the following things done by a designated person (whether

alone or jointly with another designated person) are to be regarded

as specified in this section and specifically authorised by this

section:

(a) anything done in relation to, or in accordance with, the

Shareholders' Agreement as in force from time to time;

(b) anything done in relation to, or in accordance with, the

constitution of ABIP Limited, as in force from time to time;

ABIP Limited carries on, including (but not limited to):

(i) receiving and assessing applications to enter into

financing arrangements; and

(ii) rejecting such applications; and

(iii) entering into financing arrangements;

(d) anything done solely in furtherance of ABIP Limited's

objects under section 7 of this Act.

(2) Each of the following is a designated person:

(a) ABIP Limited;

(b) a member of ABIP Limited;

representative, agent or employee of:

(i) ABIP Limited; or

(ii) a member of ABIP Limited;

acting in the capacity of such a director, officer,

representative, agent or employee.

17 Regulations

The Governor-General may make regulations prescribing matters:

Commonwealth of Australia Bills

AUSTRALIAN BUSINESS INVESTMENT PARTNERSHIP BILL 2009