{"id":"nsw:act-2005-106","name":"James Hardie (Civil Liability) Act 2005","slug":"james-hardie-civil-liability-act-2005","collection":"act","jurisdiction":"nsw","status":"in_force","isInForce":true,"actNumber":"106 of 2005","makingDate":null,"administeringDepartment":null,"currentVersion":{"id":104741,"registerId":"nsw-act-2005-106-current","compilationNumber":null,"startDate":"2026-04-03","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"Part 1","sectionType":"part","heading":"Preliminary","content":"# Part 1 Preliminary\n\nPart 1 Preliminary","sortOrder":0},{"sectionNumber":"1","sectionType":"section","heading":"Name of Act","content":"#### 1 Name of Act\n\n1 Name of Act\n\n> This Act is the [James Hardie (Civil Liability) Act 2005](/view/html/inforce/current/act-2005-106).","sortOrder":1},{"sectionNumber":"2","sectionType":"section","heading":"Commencement","content":"#### 2 Commencement\n\n2 Commencement\n\n> This Act commences on the date of assent to this Act.","sortOrder":2},{"sectionNumber":"3","sectionType":"section","heading":"Definitions","content":"#### 3 Definitions\n\n3 Definitions\n\n> > (1) In this Act—\n> > \n> > ABN 60 means the company registered under the Corporations Act immediately before the introduction day as ABN 60 Pty Limited (ACN 000 009 263) that was formerly called James Hardie Industries Limited, and includes any successor to or continuation of that company.\n> > \n> > ABN 60 Foundation means the company registered under the Corporations Act immediately before the introduction day as ABN 60 Foundation Limited (ACN 106 266 611), and includes any successor to or continuation of that company.\n> > \n> > Amaba means the company registered under the Corporations Act immediately before the introduction day as Amaba Pty Limited (ACN 000 387 342) that was formerly called Jsekarb Pty Limited, and includes any successor to or continuation of that company.\n> > \n> > Amaca means the company registered under the Corporations Act immediately before the introduction day as Amaca Pty Limited (ACN 000 035 512) that was formerly called James Hardie & Coy Pty Limited, and includes any successor to or continuation of that company.\n> > \n> > assent day means the day on which this Act received the Royal Assent.\n> > \n> > Compensation Foundation means the company registered under the Corporations Act immediately before the introduction day as the Medical Research and Compensation Foundation (ACN 095 924 137), and includes any successor to or continuation of that company.\n> > \n> > concurrent wrongdoer, in relation to a civil liability, means a person who is one of two or more persons whose acts or omissions (or act or omission) caused, independently of each other or jointly, the damage or loss that is the subject of the liability.\n> > \n> > controlled entity of James Hardie Industries NV has the same meaning as it has in section 32 of the [James Hardie Former Subsidiaries (Winding up and Administration) Act 2005](/view/html/inforce/current/act-2005-105).\n> > \n> > Corporations Act means the [Corporations Act 2001](http://www.legislation.gov.au/) of the Commonwealth.\n> > \n> > Corporations legislation means the Corporations legislation to which Part 1.1A of the Corporations Act applies.\n> > \n> > damages includes any form of monetary compensation.\n> > \n> > economic loss includes damage to property.\n> > \n> > exercise a function includes perform a duty.\n> > \n> > Final Funding Agreement has the same meaning as it has in the [James Hardie Former Subsidiaries (Winding up and Administration) Act 2005](/view/html/inforce/current/act-2005-105).\n> > \n> > function includes a power, authority or duty.\n> > \n> > general law means the common law and equity.\n> > \n> > Heads of Agreement means the Heads of Agreement entered into on 21 December 2004 by the following persons and bodies—\n> > \n> > > (a) James Hardie Industries NV,\n> > \n> > > (b) the State,\n> > \n> > > (c) the Australian Council of Trade Unions,\n> > \n> > > (d) Unions New South Wales,\n> > \n> > > (e) Mr Bernie Banton as the designated representative of the Asbestos Victims Groups named in Schedule 1 to the Heads of Agreement.\n> > \n> > introduction day means the day on which the Bill for this Act was first introduced into Parliament.\n> > \n> > Editorial note—\n> > \n> > Day the Bill for this Act was first introduced into Parliament: 1.12.2005.\n> > \n> > Jackson Inquiry means the Special Commission of Inquiry that was commissioned, by Letters Patent dated 27 February 2004 and 30 June 2004, to inquire into and report on certain matters relating to the establishment of the Compensation Foundation.\n> > \n> > Jackson Inquiry Report means the report issued by the Jackson Inquiry on 21 September 2004 entitled “Report of the Special Commission of Inquiry into the Medical Research and Compensation Foundation”.\n> > \n> > James Hardie Industries NV means the foreign company incorporated in the Netherlands registered under the Corporations Act immediately before the introduction day as James Hardie Industries NV (ARBN 097 829 895), and includes such successors to or continuations of that company, or other entities having obligations under the Final Funding Agreement, as may be prescribed by the regulations.\n> > \n> > legislation includes—\n> > \n> > > (a) any statute of a legislature (whether enacted or made in Australia or elsewhere), and\n> > \n> > > (b) any proclamation, regulation, rule, by-law, order or any other kind of subordinate legislation (however described) made under the authority of a statute (whether enacted or made in Australia or elsewhere).\n> > \n> > liable entity means each of the following—\n> > \n> > > (a) ABN 60,\n> > \n> > > (b) Amaba,\n> > \n> > > (c) Amaca.\n> > \n> > Related Agreement means any agreement as in force from time to time that is entered into (whether before, during or after the assent day) as contemplated by the terms of the Final Funding Agreement.\n> > \n> > the 2001 Deed of Covenant and Indemnity means the Deed of Covenant and Indemnity executed in February 2001 by—\n> > \n> > > (a) James Hardie Industries Limited (which was subsequently renamed as ABN 60), and\n> > \n> > > (b) Jsekarb Pty Limited (which was subsequently renamed as Amaba), and\n> > \n> > > (c) James Hardie & Coy Pty Limited (which was subsequently renamed as Amaca).\n> > \n> > the 2003 Deed of Covenant, Indemnity and Access means the Deed of Covenant, Indemnity and Access executed by James Hardie Industries NV and ABN 60 in March 2003, as amended by the Deed of Rectification executed by those parties on 3 February 2004.\n> > \n> > the State means the State of New South Wales.\n> \n> > (2) In this Act, the following terms have the meanings given in section 9 of the Corporations Act—\n> > \n> > ACN\n> > \n> > ARBN\n> > \n> > company\n> > \n> > director\n> > \n> > foreign company\n> > \n> > officer\n> \n> > (3) If this Act provides for an event or other thing to occur on a particular day, that event or thing is taken to occur at the beginning of that day.\n> \n> > (4) Notes included in this Act do not form part of this Act.","sortOrder":3},{"sectionNumber":"4","sectionType":"section","heading":"Extraterritorial operation of Act","content":"#### 4 Extraterritorial operation of Act\n\n4 Extraterritorial operation of Act\n\n> > (1) It is the intention of the Parliament of New South Wales that the operation of this Act should, as far as possible, include operation in relation to the following—\n> > \n> > > (a) things situated in or outside the territorial limits of the State,\n> > \n> > > (b) acts, transactions and matters done, entered into or occurring in or outside the territorial limits of the State,\n> > \n> > > (c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Act, be governed or otherwise affected by the law of another State, a Territory, the Commonwealth or a foreign country.\n> \n> > (2) Without limiting subsection (1), it is the intention of the Parliament of New South Wales that the provisions of this Act have an operation in relation to the things, acts, transactions and matters referred to in that subsection even if the rules of private international law (whether at general law or as provided by legislation) would require the application of a law other than this Act instead of the provisions of this Act.","sortOrder":4},{"sectionNumber":"5","sectionType":"section","heading":"Construction of legislation so as not to exceed legislative power","content":"#### 5 Construction of legislation so as not to exceed legislative power\n\n5 Construction of legislation so as not to exceed legislative power\n\n> > (1) Unless a contrary intention appears, if a provision of this Act or an instrument made under this Act—\n> > \n> > > (a) would, apart from this section, have an invalid application, but\n> > \n> > > (b) also has at least one valid application,\n> > \n> > it is the intention of the Parliament of New South Wales that the provision is not to have the invalid application, but is to have every valid application.\n> \n> > (2) Despite subsection (1), the provision is not to have a particular valid application if—\n> > \n> > > (a) apart from this section, it is clear, taking into account the provision’s context and the purposes or objects underlying this Act, that the provision was intended to have that valid application only if every invalid application, or a particular invalid application, of the provision had also been within the legislative power of the Parliament of New South Wales, or\n> > \n> > > (b) the provision’s operation in relation to that valid application would be different in a substantial respect from what would have been its operation in relation to that valid application if every invalid application of the provision had been within the legislative power of the Parliament of New South Wales.\n> \n> > (3) Subsection (2) does not limit the cases in which a contrary intention may be taken to appear for the purposes of subsection (1).\n> \n> > (4) This section is in addition to, and not in derogation of, section 31 of the [Interpretation Act 1987](/view/html/inforce/current/act-1987-015).\n> \n> > (5) In this section—\n> > \n> > application means an application in relation to—\n> > \n> > > (a) one or more particular persons, things, matters, places, circumstances or cases, or\n> > \n> > > (b) one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases.\n> > \n> > invalid application, in relation to a provision, means an application because of which the provision exceeds the legislative power of the Parliament of New South Wales.\n> > \n> > valid application, in relation to a provision, means an application which, if it were the provision’s only application, would be within the legislative power of the Parliament of New South Wales.","sortOrder":5},{"sectionNumber":"6","sectionType":"section","heading":"Act to bind State and other jurisdictions","content":"#### 6 Act to bind State and other jurisdictions\n\n6 Act to bind State and other jurisdictions\n\n> > (1) This Act binds the State and, in so far as the legislative power of the Parliament of New South Wales permits, the other States, the Territories and the Commonwealth.\n> > \n> > Note—\n> > \n> > The [Interpretation Act 1987](/view/html/inforce/current/act-1987-015) defines the term person to include a body politic.\n> \n> > (2) Without limiting subsection (1), this Act has effect despite any privilege or immunity of the Crown in any of its capacities.\n> \n> > (3) This Act does not make any State or Territory, the Commonwealth, or the Crown in any of its capacities, liable to be prosecuted for an offence.\n> \n> > (4) A reference in this section to a State, Territory or the Commonwealth includes a reference to the Government of the State, Territory or Commonwealth.\n> \n> **s 6:** Am 2023 No 7, Sch 3.15.","sortOrder":6},{"sectionNumber":"Part 2","sectionType":"part","heading":"Extinguishment of certain civil liability","content":"# Part 2 Extinguishment of certain civil liability\n\nPart 2 Extinguishment of certain civil liability","sortOrder":7},{"sectionNumber":"Division 1","sectionType":"division","heading":"General","content":"## Division 1 General\n\nDivision 1 General","sortOrder":8},{"sectionNumber":"7","sectionType":"section","heading":"Application of Part","content":"#### 7 Application of Part\n\n7 Application of Part\n\n> > (1) This Part applies to civil liability of any kind, regardless of whether it arises—\n> > \n> > > (a) at general law (whether in tort, contract or otherwise), or\n> > \n> > > (b) by or under any legislation.\n> \n> > (2) The provisions of this Part apply despite the provisions of any other legislation or any other law (whether written or unwritten).","sortOrder":9},{"sectionNumber":"8","sectionType":"section","heading":"Meaning of “protected conduct”","content":"#### 8 Meaning of “protected conduct”\n\n8 Meaning of “protected conduct”\n\n> For the purposes of this Part, protected conduct is anything done or omitted to be done in connection with any of the following—\n> \n> > (a) the transfer of the assets of, and the payment of dividends and management fees by, any liable entity, that is set out in Part 3 of the Jackson Inquiry Report,\n> \n> > (b) the establishment and funding and underfunding of the Compensation Foundation and the Medical Research and Compensation Foundation Trust (including announcements or other representations made in relation to the effect or consequences of the establishment or funding),\n> \n> > (c) the transfer of assets from ABN 60 to James Hardie Industries NV, the establishment in 2001 of the ABN 60 Foundation and the ABN 60 Foundation Trust and the allotment of shares in ABN 60 to the ABN 60 Foundation,\n> \n> > (d) the corporate reorganisation of the James Hardie group of companies on 15 February 2001 (including announcements or other representations made in relation to the effect or consequences of the reorganisation),\n> \n> > (e) the corporate reorganisation of the James Hardie group of companies between August and October 2001, including without limitation—\n> > \n> > > (i) the scheme of arrangement approved by the Supreme Court in October 2001 under which James Hardie Industries NV became the holding company for the James Hardie group of companies, and\n> > \n> > > (ii) announcements or other representations made in relation to the effect or consequences of that scheme (including representations made to the Supreme Court),\n> \n> > (f) the entry into the 2001 Deed of Covenant and Indemnity and the 2003 Deed of Covenant, Indemnity and Access and the amendment of the 2003 Deed of Covenant, Indemnity and Access by the Deed of Rectification executed by the parties to it on 3 February 2004,\n> \n> > (g) the issue by ABN 60 of shares in ABN 60 to James Hardie Industries NV and the cancellation of those shares in March 2003,\n> \n> > (h) the negotiation of, and entry into, the Heads of Agreement, the Final Funding Agreement or any Related Agreement.\n> \n> Note—\n> \n> The matters referred to in paragraphs (a)–(g) are described in the Jackson Inquiry Report.","sortOrder":10},{"sectionNumber":"Division 2","sectionType":"division","heading":"Extinguishment of liability","content":"## Division 2 Extinguishment of liability\n\nDivision 2 Extinguishment of liability","sortOrder":11},{"sectionNumber":"9","sectionType":"section","heading":"Civil liability in relation to protected conduct extinguished","content":"#### 9 Civil liability in relation to protected conduct extinguished\n\n9 Civil liability in relation to protected conduct extinguished\n\n> Any civil liability to which this Part applies that is incurred (whether before, during or after the assent day) by any of the following persons in respect of any protected conduct of the person is extinguished—\n> \n> > (a) any liable entity,\n> \n> > (b) the Compensation Foundation,\n> \n> > (c) James Hardie Industries NV,\n> \n> > (d) any controlled entity of James Hardie Industries NV,\n> \n> > (e) any person who engaged in the conduct in the person’s capacity as a director or other officer, employee, advisor or agent of—\n> > \n> > > (i) any liable entity, or\n> > \n> > > (ii) the Compensation Foundation, or\n> > \n> > > (iii) James Hardie Industries NV, or\n> > \n> > > (iv) any controlled entity of James Hardie Industries NV.","sortOrder":12},{"sectionNumber":"10","sectionType":"section","heading":"Certain liability for economic loss for asbestos harm extinguished","content":"#### 10 Certain liability for economic loss for asbestos harm extinguished\n\n10 Certain liability for economic loss for asbestos harm extinguished\n\n> > (1) Any civil liability to which this Part applies that is incurred (whether before, during or after the assent day) by any of the following persons in respect of asbestos harm is extinguished to the extent that it is a liability for economic loss, other than economic loss resulting from or attributable to personal injury or death—\n> > \n> > > (a) any liable entity,\n> > \n> > > (b) James Hardie Industries NV,\n> > \n> > > (c) any controlled entity of James Hardie Industries NV.\n> \n> > (2) This section does not limit section 9.\n> \n> > (3) In this section—\n> > \n> > asbestos harm means damage or loss sustained by any person (including damage to or loss of property) arising from exposure to, or the presence of, any asbestos or asbestos products that were mined, manufactured, sold, distributed or used by or on behalf of a liable entity.","sortOrder":13},{"sectionNumber":"11","sectionType":"section","heading":"When civil liability extinguished","content":"#### 11 When civil liability extinguished\n\n11 When civil liability extinguished\n\n> Civil liability that is extinguished by section 9 or 10 is extinguished—\n> \n> > (a) if the liability accrues during or before the assent day (but subject to paragraph (c))—on the assent day, or\n> \n> > (b) if the liability accrues after the assent day (but subject to paragraph (c))—on the day on which the liability accrues, or\n> \n> > (c) if the liability was revived under Division 3 and then extinguished again under this Division as referred to in section 17 (1) (b)—on the day on which the order that revived the liability is revoked by a revoking order under section 14.","sortOrder":14},{"sectionNumber":"12","sectionType":"section","heading":"Effect of extinguishment of civil liability under this Division","content":"#### 12 Effect of extinguishment of civil liability under this Division\n\n12 Effect of extinguishment of civil liability under this Division\n\n> If civil liability is extinguished under this Division, then (to the full extent that the legislative power of the Parliament of New South Wales permits)—\n> \n> > (a) any person to whom the liability is owed cannot assert, continue or enforce a cause of action in respect of the liability in any civil proceedings unless and until the liability is subsequently revived under this Part, and\n> \n> > (b) no court or other tribunal has any jurisdiction or power to entertain proceedings or grant any relief in respect of such liability unless and until the liability is subsequently revived under this Part.","sortOrder":15},{"sectionNumber":"13","sectionType":"section","heading":"Certain liability not affected by Division","content":"#### 13 Certain liability not affected by Division\n\n13 Certain liability not affected by Division\n\n> > (1) Nothing in this Part operates to extinguish—\n> > \n> > > (a) any civil liability incurred by a party to the Heads of Agreement, the Final Funding Agreement or a Related Agreement to another party to the Agreement where that liability arises under or in relation to the Agreement or in connection with the negotiation of, and entry into, the Agreement, or\n> > \n> > > (b) any civil liability incurred by an advisor or agent of James Hardie Industries NV in connection with the negotiation of, and entry into, the Heads of Agreement, the Final Funding Agreement or any Related Agreement, or\n> > \n> > > (c) any civil liability in respect of which proceedings are pending before a court or other tribunal immediately before 1 December 2005, or\n> > \n> > > (d) any civil liability of a person who is a concurrent wrongdoer with another person whose liability is extinguished under this Division in respect of the damage or loss to which the extinguished liability relates.\n> > \n> > Note—\n> > \n> > A person whose liability is extinguished under this Division is not liable as a concurrent wrongdoer in respect of that liability for the purposes of paragraph (d) even if the person is a concurrent wrongdoer with another person whose liability is also extinguished under this Division.\n> \n> > (2) The extinguishment of a liability by this Part operates even if the liability is the subject of proceedings commenced during or after 1 December 2005. The fact that any such proceedings are pending on the assent day does not prevent or limit the application of that provision or this Part in respect of the liability concerned.","sortOrder":16},{"sectionNumber":"Division 3","sectionType":"division","heading":"Revival of liability","content":"## Division 3 Revival of liability\n\nDivision 3 Revival of liability","sortOrder":17},{"sectionNumber":"14","sectionType":"section","heading":"Revival of extinguished civil liability","content":"#### 14 Revival of extinguished civil liability\n\n14 Revival of extinguished civil liability\n\n> > (1) A civil liability extinguished by operation of Division 2 may be revived as provided by this section, but not if the liability is a liability of a natural person or a liability of the Compensation Foundation.\n> \n> > (2) The Minister may, at any time, by order published in the Gazette (a reviving order) declare that specified civil liability, or a specified class of civil liability, extinguished by operation of Division 2 is revived on a day specified in the order. That day must not be earlier than 14 days after the day on which the reviving order is published in the Gazette.\n> \n> > (3) A reviving order may not be made if the making of the order would constitute a breach by the State of the terms of the Final Funding Agreement or a Related Agreement.\n> > \n> > Note—\n> > \n> > An exercise of the power to make a reviving order in a manner that breaches the Final Funding Agreement or a Related Agreement may also render the State liable to pay damages. See Part 3.\n> \n> > (4) Any person whose civil liability is revived (or purportedly revived) by a reviving order (or purported reviving order) may not claim or otherwise assert in any proceedings that the order or purported order was not validly made unless the Minister is, or is subsequently joined as, a party to the proceedings.\n> \n> > (5) A reviving order operates to revive the civil liability concerned on the day specified by the order.\n> \n> > (6) The Minister may, by order published in the Gazette (a revoking order), revoke a reviving order on a day specified in the order.\n> \n> > (7) Without limiting subsection (6), the Minister must revoke a reviving order as soon as is reasonably practicable after the Minister becomes aware of the cessation of the breach or breaches of the Final Funding Agreement by another party to the Agreement that occasioned the reviving order.\n> \n> > (8) A revoking order may be published before, during or after the day fixed by the reviving order for the revival of the civil liability concerned.\n> \n> > (9) The revocation of a reviving order does not prevent publication of a further reviving order.\n> \n> > (10) More than one reviving or revoking order may be made under this section.","sortOrder":18},{"sectionNumber":"15","sectionType":"section","heading":"Effect of revival of extinguished liability","content":"#### 15 Effect of revival of extinguished liability\n\n15 Effect of revival of extinguished liability\n\n> If extinguished civil liability is revived under this Division—\n> \n> > (a) the civil liability is taken for all purposes never to have been extinguished and is enforceable accordingly by any person for whose benefit the liability accrues, and\n> \n> > (b) any limitation period applicable to a cause of action for the liability is taken to have stopped running on the day on which the liability was extinguished and to have recommenced to run on the day on which the liability is revived.","sortOrder":19},{"sectionNumber":"16","sectionType":"section","heading":"Claims against liable entities in respect of revived liabilities","content":"#### 16 Claims against liable entities in respect of revived liabilities\n\n16 Claims against liable entities in respect of revived liabilities\n\n> > (1) If extinguished civil liability is revived under this Division, a claim against a liable entity in respect of the liability becomes a payable liability of the entity.\n> \n> > (2) The Minister may, by order published in the Gazette, order that a claim against a liable entity in respect of a specified liability or a liability of a specified class or description that is an extinguished civil liability revived under this Division is not a payable liability, and such an order has effect accordingly.\n> \n> > (3) The Minister may make such an order before or after the liability concerned is revived under this Division.\n> \n> > (4) If the Minister’s order is made to take effect after the liability is revived, the effect of the order is as follows—\n> > \n> > > (a) a claim against a liable entity in respect of the liability is a payable liability until the Minister’s order takes effect,\n> > \n> > > (b) the claim remains a payable liability after the Minister’s order takes effect but only for the purposes of and in connection with any proceedings commenced in respect of the claim before a court or other tribunal before the Minister’s order takes effect and only if those proceedings are pending immediately before the Minister’s order takes effect.\n> \n> > (5) In this section, payable liability of a liable entity means a payable liability under and for the purposes of the [James Hardie Former Subsidiaries (Winding up and Administration) Act 2005](/view/html/inforce/current/act-2005-105).","sortOrder":20},{"sectionNumber":"17","sectionType":"section","heading":"Effect of revocation of reviving order","content":"#### 17 Effect of revocation of reviving order\n\n17 Effect of revocation of reviving order\n\n> > (1) If a reviving order under section 14 is revoked by a revoking order under that section, the revoking order has the following effect—\n> > \n> > > (a) if it is published before or during the day fixed by the reviving order for the revival of a specified civil liability—the reviving order is taken never to have been published and, accordingly, the specified civil liability is not revived,\n> > \n> > > (b) if it is published after the day fixed by the reviving order for the revival of a specified civil liability—the reviving order ceases to have effect on the day on which it is revoked and, accordingly, Division 2 operates (subject to subsection (2)) to extinguish again the specified civil liability.\n> \n> > (2) Subsection (1) (b) does not operate to apply Division 2 to civil liability in respect of which proceedings were commenced before a court or other tribunal while the liability was revived if those proceedings are still pending immediately before the publication of the revoking order.\n> > \n> > Note—\n> > \n> > Subsection (2) extends to proceedings in respect of a claim that is a claim for a payable liability under section 16.","sortOrder":21},{"sectionNumber":"Part 3","sectionType":"part","heading":"Contractual liability of State","content":"# Part 3 Contractual liability of State\n\nPart 3 Contractual liability of State","sortOrder":22},{"sectionNumber":"18","sectionType":"section","heading":"Meaning of “legislative or regulatory action”","content":"#### 18 Meaning of “legislative or regulatory action”\n\n18 Meaning of “legislative or regulatory action”\n\n> For the purposes of this Part, legislative or regulatory action means any of the following—\n> \n> > (a) the enactment or making of legislation by or on behalf of the State or an instrumentality of the State,\n> \n> > (b) the exercise of functions by officials, employees, authorities or agencies of the State that are conferred or imposed on them by legislation.","sortOrder":23},{"sectionNumber":"19","sectionType":"section","heading":"Right to compensation for enactment, making or enforcement of legislation confirmed","content":"#### 19 Right to compensation for enactment, making or enforcement of legislation confirmed\n\n19 Right to compensation for enactment, making or enforcement of legislation confirmed\n\n> > (1) This section applies to any provision of the Final Funding Agreement or a Related Agreement that provides for the State not to carry out, or not to cause the carrying out of, legislative or regulatory action of a kind specified by the Agreement.\n> \n> > (2) For the avoidance of doubt, it is declared that a breach by the State of a provision to which this section applies is capable of rendering the State liable to pay damages for breach of contract if the breach is of such a kind as to warrant an award of damages for breach of contract at general law.","sortOrder":24},{"sectionNumber":"20","sectionType":"section","heading":"Validity of action not affected even if compensable","content":"#### 20 Validity of action not affected even if compensable\n\n20 Validity of action not affected even if compensable\n\n> > (1) Nothing in section 19, the Final Funding Agreement or any Related Agreement operates—\n> > \n> > > (a) to prevent the introduction of any Bill in, or the passage of a Bill through, a House of Parliament or prevent assent being given to any Bill, or\n> > \n> > > (b) to prevent the making of any other legislation, or\n> > \n> > > (c) to affect the validity of any legislation, or\n> > \n> > > (d) to affect the validity of any action taken, or not taken, by the State or any its officials, employees, authorities or agencies.\n> \n> > (2) Nothing in subsection (1) limits the operation of section 14 (3) of this Act or section 9 (3) of the [James Hardie (Civil Penalty Compensation Release) Act 2005](/view/html/inforce/current/act-2005-107).\n> > \n> > Note—\n> > \n> > Section 14 (3) of this Act provides that a reviving order under section 14 may not be made if the making of the order would constitute a breach by the State of the terms of the Final Funding Agreement or a Related Agreement. Section 9 (3) of the [James Hardie (Civil Penalty Compensation Release) Act 2005](/view/html/inforce/current/act-2005-107) makes similar provision in relation to a reviving order made under section 9 of that Act.","sortOrder":25},{"sectionNumber":"Part 4","sectionType":"part","heading":"Baryulgil claims against Marlew Mining","content":"# Part 4 Baryulgil claims against Marlew Mining\n\nPart 4 Baryulgil claims against Marlew Mining","sortOrder":26},{"sectionNumber":"21","sectionType":"section","heading":"Interpretation","content":"#### 21 Interpretation\n\n21 Interpretation\n\n> > (1) In this Part—\n> > \n> > asbestos claim means a claim by any of the following persons for damages (whether arising before, during or after the assent day) in respect of personal injury or death arising from exposure to asbestos—\n> > \n> > > (a) the person who sustains the personal injury,\n> > \n> > > (b) the legal personal representative of a deceased person who sustained the injury or died as a result of the injury,\n> > \n> > > (c) a relative of a deceased person who sustained the injury or died as a result of the injury,\n> > \n> > and includes such a claim against a person pursuant to the joinder of the person as a party to proceedings.\n> > \n> > asbestos mining activities means the mining or milling of asbestos and includes the disposal or other parting with of tailings (and other materials containing asbestos) that resulted from those mining or milling operations.\n> > \n> > concurrent wrongdoer, in relation to an asbestos claim, means a person who is one of two or more persons whose acts or omissions (or act or omission) caused, independently of each other or jointly, the damage or loss that is the subject of the claim.\n> > \n> > Marlew means the company registered under the Corporations Act immediately before the introduction day as Marlew Mining Pty Limited (ACN 000 049 650) that was formerly called Asbestos Mines Pty Limited, and includes any successor to or continuation of that company.\n> > \n> > Marlew asbestos claim means an asbestos claim in respect of personal injury or death arising from exposure to any asbestos in the course of or as a consequence of asbestos mining activities conducted by or on behalf of Marlew at Baryulgil, but only where that exposure occurred at or near Baryulgil.\n> > \n> > Marlew contribution claim means a claim (whether arising before, during or after the assent day) for contribution against a person as a concurrent wrongdoer in relation to a Marlew asbestos claim.\n> \n> > (2) For the purposes of the [James Hardie Former Subsidiaries (Winding up and Administration) Act 2005](/view/html/inforce/current/act-2005-105)—\n> > \n> > > (a) a Marlew asbestos claim against Amaca is a personal asbestos claim under that Act against Amaca as a liable entity under that Act, and\n> > \n> > > (b) a Marlew contribution claim against Amaca in respect of which a final judgment has been entered by a court or other tribunal against Amaca or a binding settlement has been entered into by Amaca is a proven personal asbestos contribution claim under that Act against Amaca as a liable entity under that Act.\n> \n> > (3) This Part operates even if Marlew ceases or has ceased to exist or is or has been deregistered under the Corporations Act (and in such a case operates as if Marlew had not ceased to exist or been deregistered).\n> \n> **s 21:** Am 2006 No 108, sec 4.","sortOrder":27},{"sectionNumber":"22","sectionType":"section","heading":"Amaca liable for asbestos claims and contribution claims against Marlew","content":"#### 22 Amaca liable for asbestos claims and contribution claims against Marlew\n\n22 Amaca liable for asbestos claims and contribution claims against Marlew\n\n> > (1) Amaca is liable on and from the assent day in respect of a Marlew asbestos claim or Marlew contribution claim as if the asbestos mining activities conducted by or on behalf of Marlew at Baryulgil in respect of which the claim arises had been conducted by or on behalf of Amaca.\n> \n> > (2) Amaca’s liability under this Part is limited to liability in respect of a Marlew asbestos claim or Marlew contribution claim—\n> > \n> > > (a) that is a claim in proceedings against Amaca commenced during or after the assent day in the Dust Diseases Tribunal of New South Wales, or\n> > \n> > > (b) that is a claim in proceedings against Marlew commenced before the assent day in any court, tribunal or other judicial body constituted in Australia.\n> \n> > (3) This Part extends to a claim in proceedings commenced against Marlew before the assent day, so as to require Amaca to satisfy the claim (as a proven personal asbestos claim under the [James Hardie Former Subsidiaries (Winding up and Administration) Act 2005](/view/html/inforce/current/act-2005-105)) but only to the extent that the claim has not already been satisfied by Marlew, and as if—\n> > \n> > > (a) a final judgment entered by a court, tribunal or other judicial body against Marlew in respect of the claim were a final judgment against Amaca, or\n> > \n> > > (b) a binding settlement entered into by Marlew in respect of the claim had been entered into by Amaca.\n> > \n> > Note—\n> > \n> > Pending proceedings against Marlew can continue to finality (with judgment being satisfied by Amaca), and Amaca will be liable for claims already finalised but not yet paid by Marlew.\n> \n> > (4) This section does not prevent the discontinuance of any proceedings commenced before the assent day against Marlew and the commencement of separate proceedings against Amaca in respect of the claim concerned.\n> \n> > (5) This Part does not entitle a person to recover more than once in respect of a Marlew asbestos claim or Marlew contribution claim, and a person who recovers against either Amaca or Marlew in respect of such a claim cannot also recover against the other in respect of the claim.","sortOrder":28},{"sectionNumber":"23","sectionType":"section","heading":"Amaca not liable for certain claims—rehabilitation of mine","content":"#### 23 Amaca not liable for certain claims—rehabilitation of mine\n\n23 Amaca not liable for certain claims—rehabilitation of mine\n\n> > (1) Amaca is not liable under this Part in respect of any Marlew asbestos claim or Marlew contribution claim that is a claim in respect of a liability that is the subject of an indemnity granted by the Minister for Mineral Resources by way of a release and indemnity agreement dated 11 March 1996 between that Minister and James Hardie Industries Limited (now ABN 60).\n> \n> > (2) The Minister is to cause a copy of the agreement referred to in this section to be published in the Gazette.\n> \n> Note—\n> \n> The agreement referred to releases James Hardie Industries Limited from liability for asbestos related death or injury of employees of the Department of Mineral Resources or Fuller Earthmoving Pty Ltd in connection with the rehabilitation of an asbestos mine at Baryulgil.","sortOrder":29},{"sectionNumber":"24","sectionType":"section","heading":"Amaca to have all Marlew’s rights in respect of claim","content":"#### 24 Amaca to have all Marlew’s rights in respect of claim\n\n24 Amaca to have all Marlew’s rights in respect of claim\n\n> > (1) Amaca is subrogated to the rights of Marlew in respect of a Marlew asbestos claim or Marlew contribution claim against Amaca.\n> \n> > (2) Amaca also has all the rights that Marlew would have had in respect of a Marlew asbestos claim or Marlew contribution claim against Amaca (being the rights Marlew would have had if Marlew had not ceased to be liable in respect of the claim under this Part), including the following rights—\n> > \n> > > (a) rights of subrogation,\n> > \n> > > (b) rights of contribution against any concurrent wrongdoer in respect of the claim,\n> > \n> > > (c) rights that Marlew would have under any policy of insurance in respect of a Marlew asbestos claim or Marlew contribution claim (as if Marlew and not Amaca were liable on the claim).","sortOrder":30},{"sectionNumber":"25","sectionType":"section","heading":"Special provisions for Amaca liabilities as concurrent wrongdoer","content":"#### 25 Special provisions for Amaca liabilities as concurrent wrongdoer\n\n25 Special provisions for Amaca liabilities as concurrent wrongdoer\n\n> > (1) If Amaca’s liability under this Part pursuant to the settlement or determination of a Marlew asbestos claim is a joint liability as a concurrent wrongdoer in relation to the claim, the provisions of this section apply to Amaca’s liability and the liability of any other concurrent wrongdoer (collectively referred to in this section as the other concurrent wrongdoers) in relation to the claim.\n> \n> > (2) The plaintiff is required to pursue recovery of the plaintiff’s damages from the other concurrent wrongdoers and is only entitled to recover from Amaca as a defendant of last resort. Amaca’s liability to the plaintiff as a defendant of last resort is liability solely to the extent (if any) that the plaintiff is unable to recover from any of the other concurrent wrongdoers.\n> \n> > (3) None of the other concurrent wrongdoers is entitled to recover contribution from Amaca as a concurrent wrongdoer, and the other concurrent wrongdoers are liable for the purposes of rights of contribution as between themselves as if Amaca’s share of contribution had been shared between them in proportion to their shares of contribution among themselves.\n> \n> > (4) Amaca is entitled to recover from the other concurrent wrongdoers any payment made by Amaca to the plaintiff in respect of Amaca’s liability as a concurrent wrongdoer, and for that purpose—\n> > \n> > > (a) the other concurrent wrongdoers are jointly and severally liable to Amaca for the amount of any such payment made to the plaintiff by Amaca, and\n> > \n> > > (b) any such amount recoverable by Amaca is recoverable in a court of competent jurisdiction as a debt due to Amaca from the other concurrent wrongdoers, and\n> > \n> > > (c) any of the other concurrent wrongdoers from whom Amaca recovers in respect of any such payment to the plaintiff is entitled to recover contribution from the other concurrent wrongdoers (but not from Amaca) in proportion to their shares of contribution among themselves.\n> \n> > (5) For the purposes of this section, a plaintiff is considered to be unable to recover damages from a concurrent wrongdoer if, and only if, the plaintiff has made a demand for payment of damages by the concurrent wrongdoer after judgment in favour of the plaintiff takes effect and the concurrent wrongdoer has failed to pay the damages within 28 days after the demand for payment was made.\n> \n> > (6) The expression other concurrent wrongdoers includes a single concurrent wrongdoer if the concurrent liability of Amaca is a concurrent liability with only one other concurrent wrongdoer.","sortOrder":31},{"sectionNumber":"26","sectionType":"section","heading":"Insurance","content":"#### 26 Insurance\n\n26 Insurance\n\n> The operation of this Part—\n> \n> > (a) does not limit or otherwise affect any liability of an insurer under a policy of insurance that insures Marlew against liability in connection with a Marlew asbestos claim or Marlew contribution claim, and\n> \n> > (b) does not give any such insurer a right of action against Amaca in respect of a Marlew asbestos claim or Marlew contribution claim that the insurer would not have against Marlew.","sortOrder":32},{"sectionNumber":"27","sectionType":"section","heading":"Recovery of payments from Marlew","content":"#### 27 Recovery of payments from Marlew\n\n27 Recovery of payments from Marlew\n\n> > (1) Amaca is entitled to recover from Marlew as a debt the amount of any payment made by Amaca in satisfaction of any payable liability (within the meaning of the [James Hardie Former Subsidiaries (Winding up and Administration) Act 2005](/view/html/inforce/current/act-2005-105)) in respect of a Marlew asbestos claim or Marlew contribution claim.\n> \n> > (2) Amaca is entitled to prove as a creditor in respect of a debt arising under this section in any winding up of Marlew.\n> \n> > (3) Subsections (1) and (2) are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act in relation to Chapter 5 of the Corporations Act.\n> > \n> > Note—\n> > \n> > Chapter 5 of the Corporations Act makes provision for the external administration of companies and certain other bodies.\n> > \n> > Section 5G (11) of the Corporations Act provides that if a State law declares a provision of a State law to be a Corporations legislation displacement provision, any provision of the Corporations legislation with which the State provision would otherwise be inconsistent does not apply to the extent necessary to avoid the inconsistency.\n> > \n> > However, section 5G (3) of the Corporations Act provides that section 5G will only apply to a provision of a law of a State or Territory enacted after the commencement of that Act if a law of the State or Territory declares the provision to be a Corporations legislation displacement provision for the purposes of that section.","sortOrder":33},{"sectionNumber":"Part 5","sectionType":"part","heading":"Miscellaneous","content":"# Part 5 Miscellaneous\n\nPart 5 Miscellaneous","sortOrder":34},{"sectionNumber":"28","sectionType":"section","heading":"Relationship with James Hardie (Civil Penalty Compensation Release) Act 2005","content":"#### 28 Relationship with James Hardie (Civil Penalty Compensation Release) Act 2005\n\n28 Relationship with [James Hardie (Civil Penalty Compensation Release) Act 2005](/view/html/inforce/current/act-2005-107)\n\n> The provisions of this Act are in addition to, and do not derogate from, the provisions of the [James Hardie (Civil Penalty Compensation Release) Act 2005](/view/html/inforce/current/act-2005-107).","sortOrder":35},{"sectionNumber":"29","sectionType":"section","heading":"Regulations","content":"#### 29 Regulations\n\n29 Regulations\n\n> > (1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.\n> \n> > (2) The regulations may create offences punishable by a penalty not exceeding 100 penalty units.","sortOrder":36},{"sectionNumber":"30","sectionType":"section","heading":"Savings, transitional and other provisions","content":"#### 30 Savings, transitional and other provisions\n\n30 Savings, transitional and other provisions\n\n> Schedule 1 has effect.","sortOrder":37},{"sectionNumber":"Schedule 1","sectionType":"schedule","heading":"Savings, transitional and other provisions","content":"# Schedule 1 Savings, transitional and other provisions\n\nSchedule 1 Savings, transitional and other provisions\n\n(Section 30)","sortOrder":38}],"analysis":{"summary":{"complexity_score":6,"scope_assessment":{"changed":false,"description":"Based on available metadata, the Act appears to have remained focused on its original purpose of establishing civil liability obligations for James Hardie entities in relation to asbestos-related harm. Amendments in 2006 and 2023 appear to be refinements rather than fundamental shifts in scope, consistent with the original intent of ensuring victim compensation access."},"complexity_factors":["Involves complex corporate law concepts including corporate restructuring, group liability, and cross-jurisdictional entities","Intersects with personal injury, tort law, and asbestos-specific compensation schemes","Requires understanding of the broader James Hardie compensation framework involving multiple Acts and agreements","Has been amended over time (three distinct versions since 2005), suggesting evolving legal obligations","Corporate liability for historical wrongs raises difficult questions about which legal entity is responsible","Interaction with Commonwealth legislation and interstate/international corporate structures adds jurisdictional complexity","Full substantive provisions were not available for review, limiting definitive analysis"],"plain_english_summary":"## James Hardie (Civil Liability) Act 2005 (NSW)\n\n**What is this law about?**\n\nThis NSW Act deals with the civil liability (legal responsibility to pay compensation) of the James Hardie group of companies — the manufacturer infamous for producing asbestos-containing building products that caused devastating diseases like mesothelioma and asbestosis in thousands of Australians.\n\n**Background you need to know:**\nJames Hardie manufactured asbestos products for decades. When the scale of harm became undeniable, the company restructured and set up a compensation fund — but there were serious concerns the fund was underfunded and that victims would miss out. This Act, along with related legislation, was part of NSW Government action to hold James Hardie legally accountable and ensure compensation reached victims and their families.\n\n**Who does this affect?**\n- **Asbestos disease victims** and their families who were harmed by James Hardie products\n- **James Hardie Industries** and its associated companies\n- **Workers, tradies, and home renovators** exposed to James Hardie asbestos products\n\n**Why does it matter?**\nThis law is part of a landmark legal and political response to one of Australia's worst corporate health scandals. It helped ensure that people suffering from asbestos-related diseases retained legal pathways to seek compensation from James Hardie entities, and supported the enforceability of compensation arrangements.\n\n> ⚠️ **Note:** The full text of the Act's substantive provisions was not included in the material provided — only metadata and version information. The above summary reflects the known purpose of this legislation based on its title, history, and public record."},"flash_summary":{"complexity_score":7,"scope_assessment":{"changed":false,"description":"The Act's operative scope aligns with the scope stated within the Act itself: it applies broadly to civil liability of any kind (s7), is intended to operate extraterritorially as far as possible (s4), and contains statutory mechanisms to preserve valid applications if any part would otherwise exceed legislative power (s5). The Act therefore establishes its own comprehensive scope (extinguishment, exceptions, revival, special allocations) rather than expanding or narrowing that scope elsewhere; the enacted provisions and declared intentions in s4–s7 and the definitions in s3 set the scope that the Act implements."},"complexity_factors":["Broad, retroactive extinguishment of civil liabilities (ss9–11) across tort, contract and statutory causes of action increases doctrinal complexity.","Detailed and specific definition of \"protected conduct\" that cross-refers to the Jackson Inquiry Report and multiple corporate transactions (s8).","Ministerial discretion to revive or revoke liabilities by Gazette order, with procedural bars on challenging validity unless the Minister is a party (s14), concentrates administrative power and creates procedural complexity.","Interplay with contract law and State exposure: recognition of State contractual liability under the Final Funding Agreement and Related Agreements (s19–20).","Interaction with companion legislation and insolvency/winding-up provisions — particularly the James Hardie Former Subsidiaries (Winding up and Administration) Act 2005 and Corporations Act cross-references (s16, s27, s3 definitions).","Specific, statutory reassignment of liability for Baryulgil/Marlew claims to Amaca, with modified contribution and subrogation rules (ss21–27), adds a bespoke liability-allocation regime.","Extraterritorial intent and remedial construction provisions (ss4–5) aimed at preserving as many valid applications of the Act as possible complicate choice-of-law and jurisdictional analysis.","Effects on limitation periods (s15) and court jurisdiction (s12) produce procedural and evidentiary implications for pending and future claims."],"plain_english_summary":"What this law does (mechanics)\n\n- It extinguishes (removes) certain civil liabilities connected to specified James Hardie corporate actions and agreements. Those extinguishments apply to particular companies and people and stop courts from hearing or enforcing the extinguished claims unless the law later revives them (see s8–s12).\n  - The persons whose liability can be extinguished include the three \"liable entities\" (ABN 60, Amaba, Amaca), the Compensation Foundation, James Hardie Industries NV, any controlled entities of James Hardie Industries NV, and persons acting in the capacity of directors, officers, employees, advisors or agents of those bodies (s9).\n  - \"Protected conduct\" is defined as a set of specific corporate transactions, reorganisations, transfers, funding arrangements, deeds and negotiations listed in the Act and described in the Jackson Inquiry Report — for example, transfers of assets and the establishment/funding of the Compensation Foundation, and negotiations/entry into the Heads of Agreement and Final Funding Agreement (s8).\n  - Separately, the Act extinguishes certain civil liabilities for economic loss (including property damage) arising from asbestos harm caused by a liable entity, James Hardie Industries NV or its controlled entities, but only to the extent the claim is for economic loss rather than personal injury or death (s10).\n\n- Timing and legal effect:\n  - If a liability accrued on or before the day the Act received assent, it is extinguished on the assent day; if it accrues later, it is extinguished on the day it accrues (subject to rules about revival) (s11).\n  - Once extinguished, affected claimants cannot assert, continue or enforce causes of action in any court or tribunal and courts have no power to grant relief for those liabilities unless the liabilities are revived under the Act (s12).\n\n- Exceptions and limits to extinguishment:\n  - The Act does not extinguish liabilities between parties under the Heads of Agreement, the Final Funding Agreement or a Related Agreement where the liability arises under or in connection with those agreements (s13(1)(a)).\n  - It does not extinguish liabilities of advisors/agents of James Hardie Industries NV in connection with negotiating those agreements (s13(1)(b)).\n  - It does not affect liabilities for which proceedings were already pending before 1 December 2005 (s13(1)(c)).\n  - A person who is a concurrent wrongdoer with another whose liability is extinguished is not shielded for that same liability (s13(1)(d)).\n\n- Revival mechanism (ministerial discretion):\n  - The Minister may revive extinguished liabilities (except liabilities of natural persons or of the Compensation Foundation) by publishing a reviving order in the Gazette; such orders cannot take effect earlier than 14 days after publication and cannot be made if they would cause the State to breach the Final Funding Agreement or a Related Agreement (s14(1)–(3)).\n  - The Minister may revoke a reviving order (a revoking order). The Minister must revoke a reviving order as soon as reasonably practicable after becoming aware that the breach of the Final Funding Agreement that produced the reviving order has ceased (s14(6)–(7)).\n  - If revived, the liability is treated as never having been extinguished for all purposes; limitation periods stop on the day of extinguishment and recommence on the day of revival (s15). A revived claim against a \"liable entity\" can become a payable liability under the companion James Hardie Former Subsidiaries (Winding up and Administration) Act 2005 scheme, subject to further ministerial orders (s16).\n  - A person whose liability is purportedly revived may not challenge the validity of the reviving order in proceedings unless the Minister is or is joined as a party to those proceedings (s14(4)).\n\n- State contractual liability and limits on legal effect of agreements:\n  - The Act declares that provisions of the Final Funding Agreement or Related Agreements that require or oblige the State not to take certain legislative or regulatory action can give rise to an ordinary contractual right to damages against the State if breached (s19). The Act also makes clear that exercising or making legislation is not prevented by those agreements and that the validity of legislation or State action is not affected by those agreements (s20).\n\n- Special allocation of liability for Baryulgil/Marlew claims:\n  - For asbestos claims arising from Marlew Mining activities at Baryulgil, the Act transfers liability to Amaca: Amaca is treated as if Marlew's mining activities had been conducted by Amaca (s21–22).\n  - Amaca’s liability in this Part is limited to certain proceedings (e.g. Dust Diseases Tribunal claims commenced on/after the assent day or proceedings against Marlew commenced before the assent day) and does not permit double recovery (s22).\n  - Amaca is subrogated to Marlew’s rights and may recover from Marlew in certain circumstances; rules about contribution and plaintiff recovery as against \"other concurrent wrongdoers\" are adjusted (ss24–27).\n\nWho pays and who decides (in practice)\n\n- Who may be relieved from paying: the specified corporate entities and persons listed in s9 and s10 may have civil liabilities extinguished (s9, s10).\n- Who may become liable: if the Minister revives liabilities, affected corporate entities can again be made liable and, in particular situations (Part 4), Amaca is made liable for Marlew claims (s14, s16, s22).\n- Who decides: the Minister has a discretionary power to revive and revoke extinguished liabilities by Gazette order (s14). Courts are excluded from entertaining extinguished claims until revival (s12), and a challenge to a reviving order requires the Minister to be a party to the proceedings (s14(4)).\n- State exposure: section 19 recognises that the State can be contractually liable to pay damages for breaching provisions in the Final Funding Agreement or Related Agreements.\n\nPractical incentives, trade-offs and implementation risks (source-linked)\n\n- Concentrated benefits and diffuse costs: the extinguishment provides a direct legal benefit to the specified companies and persons (s9, s10). The removal of enforceable claims shifts the burden of unresolved or potential claims away from those entities to claimants, unless revived (s12). That distribution of legal protection is concentrated among named entities (s3 definitions; s9). This is a mechanical effect stated by the Act.\n\n- Ministerial discretion creates implementation risk and strategic timing: the Act gives the Minister power to revive or revoke extinguished liabilities by Gazette order (s14). Revival is conditional on not causing a breach of the Final Funding Agreement or Related Agreements (s14(3)), and the Minister must revoke a reviving order once the breach that occasioned it has ceased (s14(7)). Those features create administrative discretion over whether extinguished claims can be restored and when, and link the legal status of claims to compliance with contractual terms.\n\n- Legal certainty and court access: extinguishment removes the ability of claimants to litigate or enforce extinguished claims (s12). Revival treats the liability as if never extinguished and restarts limitation periods (s15), which affects claimants’ procedural rights and timing considerations.\n\n- Interaction with other laws and institutions: the Act cross-references and interacts with the Final Funding Agreement, Related Agreements, the Jackson Inquiry Report, the James Hardie Former Subsidiaries (Winding up and Administration) Act 2005 (as to payable liabilities) and Corporations law concepts (s3, s8, s16). These cross-references create interdependence between contract, administrative action and insolvency/winding-up frameworks.\n\n- Transfer and recovery mechanics in Part 4: the Act substitutes Amaca for Marlew for particular asbestos claims (s22). Amaca gets Marlew’s rights of subrogation and the right to recover payments made to claimants from Marlew (s24, s27). The Act also modifies usual contribution rules among concurrent wrongdoers where Amaca is involved (s25).\n\n- Compliance and publication requirements: some ministerial actions must be published in the Gazette (reviving and revoking orders) and the Minister for Mineral Resources is required to publish the specific 1996 release and indemnity agreement relevant to Baryulgil (s14(2), s23(2)).\n\nTrade-offs and opportunity costs (mechanical effects)\n\n- The Act converts potential private litigation liabilities into contingent political/administrative choices (extinguishment unless revived by Minister) (s9–14). That shifts some resolution from courts to executive action and contract enforcement between the State and private parties (s19–20).\n\n- Where revival occurs, the Act preserves claimants’ substantive rights (liability treated as never extinguished) but interrupts limitation periods for the duration of extinguishment (s15).\n\n- Part 4 changes how liability for historic mining-related asbestos claims is allocated among corporate entities, adjusts contribution rights, and allows subrogation and recovery against Marlew in winding-up — these are specific, mechanically stated reallocations of legal positions (ss22–27).\n\nKey statutory references (short): s3 (definitions), s4 (extraterritorial intention), s7 (application), s8 (protected conduct), s9–12 (extinguishment and effect), s13 (exceptions), s14–17 (revival/revocation and effects), s16 (payable liabilities interaction), s18–20 (State contractual liability), s21–27 (Baryulgil/Marlew/Amaca provisions)."},"kimi_summary":{"content_quality":"ok","complexity_score":6,"scope_assessment":{"changed":false,"description":"The legislation appears to be serving its original purpose. It was enacted specifically to facilitate the James Hardie compensation deal by extinguishing certain liabilities and transferring Baryulgil mine liability. The scope remains tightly focused on these objectives without significant mission creep, though the machinery provisions (revival orders, subrogation rights) are necessarily complex to implement the political compromise."},"complexity_factors":["Heavy cross-referencing to companion legislation (James Hardie Former Subsidiaries (Winding up and Administration) Act 2005, James Hardie (Civil Penalty Compensation Release) Act 2005)","23 defined terms in section 3, many referring to specific corporate entities with historical name changes (ABN 60, Amaba, Amaca, etc.)","Complex conditional logic in the revival mechanism (sections 14-17) with multiple scenarios for timing of orders","Nested exceptions: section 13 preserves certain liabilities despite the general extinguishment in sections 9-10","Extraterritorial operation provisions (section 4) and constitutional savings provisions (section 5) adding defensive legal complexity","Subrogation and concurrent wrongdoer provisions in Part 4 (sections 24-25) creating intricate rights of recovery between parties","Interaction between statutory extinguishment and common law limitation periods (section 15)","Displacement of Corporations Act provisions via section 27(3)"],"plain_english_summary":"This legislation is a special law passed by the New South Wales Parliament to deal with the fallout from one of Australia's biggest corporate scandals—the James Hardie asbestos compensation crisis.\n\n**What it does:**\n\nThe Act has three main jobs:\n\n1. **Wipes out certain legal claims (Part 2):** It extinguishes (cancels) civil lawsuits against James Hardie companies and their directors/officers for specific past conduct. This includes:\n   - The controversial 2001 corporate restructure that moved assets offshore\n   - The establishment of the underfunded Medical Research and Compensation Foundation\n   - Various deeds and agreements made during this period\n   - Claims for pure economic loss (property damage) from asbestos exposure\n\n   However, it **preserves** claims between the parties to the Final Funding Agreement, claims already in court before 1 December 2005, and claims against concurrent wrongdoers (other companies also responsible).\n\n2. **Creates a \"revival\" mechanism (Part 2, Division 3):** The Minister can temporarily revive extinguished liabilities if James Hardie breaches the Final Funding Agreement. This acts as a threat to keep James Hardie honest—if they don't fund compensation properly, the shield against lawsuits comes back.\n\n3. **Transfers liability for the Baryulgil mine (Part 4):** It makes Amaca (a James Hardie subsidiary) liable for asbestos claims from the Baryulgil mine in northern NSW, which was actually run by Marlew Mining. This ensures victims can claim compensation even though Marlew is essentially defunct.\n\n**Who it affects:**\n- Asbestos victims and their families (mostly positively, by ensuring funding)\n- James Hardie Industries NV and its Australian subsidiaries\n- Directors, officers, and advisors of those companies (protected from certain lawsuits)\n- The NSW Government (which can be sued for breach of contract if it improperly revives liabilities)\n\n**Why it matters:**\nThis Act was the legislative glue that made the 2005 Final Funding Agreement possible. Without this law wiping away the threat of massive litigation over the 2001 restructure, James Hardie likely wouldn't have agreed to fund future compensation. It's a pragmatic trade-off: victims get guaranteed future funding, but give up the right to sue for past corporate misconduct. The Baryulgil provisions ensure a specific group of Indigenous and worker victims aren't left out due to corporate shell games."},"issue_detection":{"absurdities":[],"contradictions":[]}},"importantCases":[],"_links":{"self":"/api/acts/james-hardie-civil-liability-act-2005","history":"/api/acts/james-hardie-civil-liability-act-2005/history","analysis":"/api/acts/james-hardie-civil-liability-act-2005/analysis","conflicts":"/api/acts/james-hardie-civil-liability-act-2005/conflicts","importantCases":"/api/acts/james-hardie-civil-liability-act-2005/important-cases","documents":"/api/acts/james-hardie-civil-liability-act-2005/documents"}}