{"id":"nsw:act-2022-071","name":"Port of Newcastle (Extinguishment of Liability) Act 2022","slug":"port-of-newcastle-extinguishment-of-liability-act-2022","collection":"act","jurisdiction":"nsw","status":"in_force","isInForce":true,"actNumber":"71 of 2022","makingDate":null,"administeringDepartment":null,"currentVersion":{"id":28964,"registerId":"nsw-act-2022-071-current","compilationNumber":null,"startDate":"2026-04-01","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"1","sectionType":"section","heading":"Name of Act","content":"#### 1 Name of Act\n\n1 Name of Act\n\n> This Act is the [Port of Newcastle (Extinguishment of Liability) Act 2022](/view/html/inforce/current/act-2022-071).","sortOrder":0},{"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":1},{"sectionNumber":"3","sectionType":"section","heading":"Act binds Crown","content":"#### 3 Act binds Crown\n\n3 Act binds Crown\n\n> This Act binds the Crown.","sortOrder":2},{"sectionNumber":"4","sectionType":"section","heading":"Definitions","content":"#### 4 Definitions\n\n4 Definitions\n\n> In this Act—\n> \n> appointed person means the person appointed by the Treasurer under section 6 to determine the relevant compensation under section 7.\n> \n> Deed means the “Port Commitment Deed” entered into by the State on or about 30 May 2014 relating to the leasing of the Port of Newcastle, as in force from time to time.\n> \n> Port operator means the operator of the Port of Newcastle who is required to pay an amount to the State under the reimbursement provision of the Deed.\n> \n> reimbursement provision, of the Deed, means a provision of the Deed relating to the requirement for the operator of the Port of Newcastle, however described in the Deed, to pay an amount to the State following receipt of a notice that the State is required to pay an amount to an operating entity associated with another port.\n> \n> relevant compensation—see section 7(1).\n> \n> Note—\n> \n> The [Interpretation Act 1987](/view/html/inforce/current/act-1987-015) contains definitions and other provisions that affect the interpretation and application of this Act.","sortOrder":3},{"sectionNumber":"5","sectionType":"section","heading":"Port operator may request determination of compensation","content":"#### 5 Port operator may request determination of compensation\n\n5 Port operator may request determination of compensation\n\n> > (1) The Port operator may, by written notice to the Treasurer and in accordance with the regulations, request a determination of the relevant compensation under section 7.\n> \n> > (2) The Port operator may make a single request under subsection (1) only.","sortOrder":4},{"sectionNumber":"6","sectionType":"section","heading":"Appointment of person to determine compensation","content":"#### 6 Appointment of person to determine compensation\n\n6 Appointment of person to determine compensation\n\n> > (1) As soon as practicable after receiving a request under section 5(1), the Treasurer must appoint a person to determine the relevant compensation under section 7.\n> \n> > (2) The Treasurer must appoint a person who has—\n> > \n> > > (a) appropriate qualifications or experience to determine the relevant compensation, and\n> > \n> > > (b) no pecuniary or other interest that appears to raise a conflict with the proper exercise of the appointed person’s functions under this Act.","sortOrder":5},{"sectionNumber":"7","sectionType":"section","heading":"Determination of compensation","content":"#### 7 Determination of compensation\n\n7 Determination of compensation\n\n> > (1) The appointed person must determine the amount by which the financial value of the right to operate and lease the assets of the Port of Newcastle for 98 years would have been reduced, in the opinion of a reasonable person at the time the Deed was entered into, because of the inclusion of the reimbursement provision in the Deed (the relevant compensation).\n> \n> > (2) The appointed person must determine the relevant compensation under subsection (1) within—\n> > \n> > > (a) 6 months of being appointed, or\n> > \n> > > (b) another period prescribed by the regulations.\n> \n> > (3) In determining the relevant compensation, the appointed person may—\n> > \n> > > (a) obtain and consider information from the Port operator and the State, and\n> > \n> > > (b) obtain and consider information from other persons, including legal or financial advice, and\n> > \n> > > (c) consider any other matters the appointed person considers relevant.","sortOrder":6},{"sectionNumber":"8","sectionType":"section","heading":"Extinguishment of liability by payment of compensation to State","content":"#### 8 Extinguishment of liability by payment of compensation to State\n\n8 Extinguishment of liability by payment of compensation to State\n\n> > (1) From the date on which the Port operator pays the relevant compensation, adjusted for inflation under subsection (2), to the State, the reimbursement provision of the Deed has no legal effect.\n> \n> > (2) The amount of relevant compensation must be adjusted for changes in the Consumer Price Index for the period between the date on which the Deed was entered into and the date on which the Port operator pays the amount.\n> \n> > (3) The regulations may provide for the calculation of the amount payable by the Port operator to the State under this section.\n> \n> > (4) Subsection (1) prevails to the extent of an inconsistency with another Act or law.","sortOrder":7},{"sectionNumber":"9","sectionType":"section","heading":"Regulations","content":"#### 9 Regulations\n\n9 Regulations\n\n> > (1) The Governor may make regulations about the following—\n> > \n> > > (a) matters this Act expressly requires to be prescribed by regulations,\n> > \n> > > (b) matters this Act expressly permits to be prescribed by regulations,\n> > \n> > > (c) other matters, but only to the extent that making regulations about the matters is necessary or convenient to give effect to this Act.\n> \n> > (2) The regulations must not be inconsistent with this Act.\n> \n> > (3) Regulations may be made about the following matters—\n> > \n> > > (a) the appointment of the person under section 6, including the following—\n> > > \n> > > > (i) the required qualifications and experience,\n> > > \n> > > > (ii) the terms and conditions of the appointment,\n> > > \n> > > > (iii) remuneration,\n> > \n> > > (b) the functions of the appointed person,\n> > \n> > > (c) the matters the appointed person must consider in determining the relevant compensation,\n> > \n> > > (d) the use and disclosure of information obtained by the appointed person, including information obtained from the State and the Port operator,\n> > \n> > > (e) dispute resolution procedures for disputes between the Port operator and the State, including disputes in relation to the amount payable by the Port operator under section 8.","sortOrder":8}],"analysis":{"issue_detection":{"absurdities":[],"contradictions":[]},"flash_summary":{"complexity_score":4,"scope_assessment":{"changed":false,"description":"The Act remains focused on its original purpose: extinguishing a specific liability under the Port Commitment Deed through a compensation mechanism. It does not expand beyond this intent."},"complexity_factors":["Defined terms referencing external documents (e.g., 'Deed', 'reimbursement provision')","Cross-reference to the Port Commitment Deed for key obligations","Inflation adjustment using CPI requires calculation","Regulations may add procedural details","Only one request allowed, limiting flexibility"],"plain_english_summary":"This Act allows the operator of the Port of Newcastle to pay a one-off compensation amount to the NSW Government to remove a specific liability from the Port Commitment Deed (a contract signed when the port was leased). The liability is a 'reimbursement provision' that required the port operator to reimburse the State if the State had to pay compensation to another port operator. The Act sets up a process where the Treasurer appoints an independent expert to calculate the compensation based on how much the reimbursement provision reduced the value of the 98-year lease at the time the Deed was signed. Once the operator pays this amount (adjusted for inflation), the reimbursement provision becomes legally void. This Act only affects the Port of Newcastle operator and the NSW Government; it does not affect other ports or parties."},"summary":{"complexity_score":5,"scope_assessment":{"changed":false,"description":"Insufficient information is available from the provided text to determine whether the scope changed from the original intent. The Act appears to have been in force since 25 November 2022 with no amendments recorded, suggesting it remains as originally enacted. However, without access to the full substantive provisions or explanatory memorandum, a definitive assessment cannot be made."},"complexity_factors":["Specialist legal concept of 'extinguishment of liability' that overrides ordinary legal rights without court involvement","Likely intersects with complex commercial privatisation or lease agreements relating to the Port of Newcastle","Full substantive text was not available for analysis, meaning hidden complexity cannot be assessed","Retroactive or prospective effect of the liability extinguishment may involve nuanced legal interpretation","Interaction with constitutional limitations on State Parliaments extinguishing rights (e.g. acquisition of property on just terms under s 51(xxxi) of the Commonwealth Constitution) adds potential complexity","Responsibility under the Treasurer suggests financial or commercial dimensions rather than straightforward regulatory matters"],"plain_english_summary":"## Port of Newcastle (Extinguishment of Liability) Act 2022\n\n**What this law does:**\nThis NSW Act extinguishes (permanently wipes out) certain legal liabilities — most likely financial claims or compensation obligations — related to the Port of Newcastle. Based on its title, it appears designed to legally shield the NSW Government, or a related entity, from being sued or held financially responsible for specific matters connected to the Port of Newcastle privatisation or lease arrangements.\n\n**Who it affects:**\n- **The NSW Government / State:** Protected from specific legal claims relating to the Port of Newcastle.\n- **Port of Newcastle Operations (or similar private operators):** May be affected depending on what liabilities are extinguished.\n- **Parties who had potential claims:** Anyone who may have had a legal right to compensation or damages relating to the specified matters loses that right permanently.\n\n**Why it matters:**\nLaws that 'extinguish liability' are significant because they can permanently remove someone's legal right to seek compensation through the courts. This is a significant use of government power — essentially Parliament stepping in to cancel legal obligations that might otherwise have to be resolved through negotiation or litigation. This type of legislation is typically used to resolve disputes arising from major infrastructure privatisations.\n\n**Important caveat:** The full text of the substantive provisions was not available in the provided material — only metadata and navigation elements were accessible. The analysis above is based on the Act's title and responsible minister (Treasurer). A complete analysis would require the full text of the Act's sections."},"kimi_summary":{"content_quality":"ok","complexity_score":3,"scope_assessment":{"changed":false,"description":"The legislation remains tightly focused on its original purpose: creating a mechanism to extinguish the Port Commitment Deed's reimbursement provision. The scope has not expanded beyond this specific commercial arrangement between the State and the Port of Newcastle operator."},"complexity_factors":["Short statute: only 9 sections covering 3 pages of legislative text","Minimal defined terms: only 5 definitions in section 4, all straightforward commercial concepts","Simple procedural structure: linear process (request → appointment → determination → payment → extinguishment)","Limited conditional logic: only one substantive condition (the single request limit in section 5(2))","No nested exceptions or complex cross-referencing: only one external reference to the Interpretation Act 1987","Broad regulation-making power (section 9) defers detail to subordinate legislation rather than complicating the primary Act"],"plain_english_summary":"**What this law does:**\n\nThis Act creates a legal pathway for the Port of Newcastle's operator to buy its way out of a very expensive contractual obligation. Back in 2014, the NSW Government leased the Port of Newcastle to a private operator under a deal called the \"Port Commitment Deed.\" That contract included a clause (the \"reimbursement provision\") requiring the Port operator to pay money to the State if the State had to compensate another port operator—essentially a penalty clause tied to competition between ports.\n\nThis 2022 Act allows the Port operator to make a **one-time request** for an independent person to calculate how much that penalty clause reduced the value of the port lease back in 2014. Once the Port operator pays that calculated amount (plus inflation), the penalty clause is **legally extinguished**—it simply ceases to exist.\n\n**Who it affects:**\n\n*   **The Port of Newcastle operator** (currently a consortium including China Merchants Port Holdings): They can escape a potentially massive and uncertain future liability, but must pay a lump sum determined by an independent assessor.\n*   **The NSW Government/Treasurer**: Must appoint a qualified, conflict-free person to determine the compensation amount, and receives the payment.\n*   **Other NSW ports**: Indirectly affected because this removes the mechanism that was meant to protect their financial interests.\n\n**Why it matters:**\n\nThis is essentially a **legislative settlement of a commercial dispute**. The 2014 reimbursement provision became highly controversial and legally contentious. Rather than letting the issue drag through courts or arbitration, this Act creates a structured, binding process to put the matter to rest. It gives the Port operator certainty (no more open-ended liability) and gives the State a clean exit from a problematic contractual arrangement. The Act even includes a \"prevails over other laws\" clause (section 8(4)), ensuring this extinguishment cannot be overridden by other legislation."}},"importantCases":[],"_links":{"self":"/api/acts/port-of-newcastle-extinguishment-of-liability-act-2022","history":"/api/acts/port-of-newcastle-extinguishment-of-liability-act-2022/history","analysis":"/api/acts/port-of-newcastle-extinguishment-of-liability-act-2022/analysis","conflicts":"/api/acts/port-of-newcastle-extinguishment-of-liability-act-2022/conflicts","importantCases":"/api/acts/port-of-newcastle-extinguishment-of-liability-act-2022/important-cases","documents":"/api/acts/port-of-newcastle-extinguishment-of-liability-act-2022/documents"}}