NORTHERN TERRITORY OF AUSTRALIA
AUSTRALASIA RAILWAY (SPECIAL PROVISIONS) REGULATIONS 2000
As in force at 19 March 2001
Table of provisions
Part 1 Preliminary
1 Citation ............................................................................................ 1
2 Commencement .............................................................................. 1
3 Definitions ........................................................................................ 1
Part 2 Amendment of AustralAsia Railway
Corporation Act 1996
4 New section ..................................................................................... 2
"28C Successful consortium may pass on civil penalties to contractors
Part 3 Amendments of AustralAsia Railway
(Special Provisions) Act 1999
5 Repeal ............................................................................................. 3
6 Repeal and substitution ................................................................... 3
"10A Relief against forfeiture of leases
"10AA Power of Crown Lands Minister to enter agreements about
termination or forfeiture of leases
"10B Certain provisions of Law of Property Act 2000 not to apply
7 Easements in favour of PAWA ........................................................ 8
8 Access easements in favour of private landholders......................... 8
Part 4 Amendments of AustralAsia Railway (Third
Party Access) Act 1999
9 New section ..................................................................................... 8
"8 Modification of Code
10 Schedule.......................................................................................... 9
"48 Amendment of Code
ENDNOTES
NORTHERN TERRITORY OF AUSTRALIA
As in force at 19 March 2001
AUSTRALASIA RAILWAY (SPECIAL PROVISIONS) REGULATIONS 2000
Regulations under the AustralAsia Railway (Special Provisions) Act 1999
Part 1 Preliminary
1 Citation
These Regulations may be cited as the AustralAsia Railway
(Special Provisions) Regulations 2000.
2 Commencement
These Regulations come into operation on the date, or respective
dates, fixed by the Minister by notice in the Gazette.
3 Definitions
In these Regulations, unless the contrary intention appears:
Railway Corporation Act means the AustralAsia Railway
Corporation Act 1996.
Special Provisions Act means the AustralAsia Railway (Special
Provisions) Act 1999.
Third Party Access Act means the AustralAsia Railway (Third
Party Access) Act 1999.
Part 2 Amendment of AustralAsia Railway Corporation Act 1996
AustralAsia Railway (Special Provisions) Regulations 2000 2
Part 2 Amendment of AustralAsia Railway
Corporation Act 1996
4 New section
The Railway Corporation Act is amended by inserting after
section 28B in Part 4B the following:
"28C Successful consortium may pass on civil penalties to
contractors
"(1) An agreement to which the successful consortium and a contractor
of the successful consortium are parties may provide –
(a) that if the successful consortium –
(i) is in breach of an obligation under an agreement with the
Corporation; and
(ii) is required to pay to the Corporation by way of civil
penalty for the breach an amount in accordance with
section 28B; and
(b) that if the breach of the obligation by the successful
consortium arose, in whole or in part, from a breach by the
contractor of an obligation under an agreement with the
successful consortium in connection with the construction,
operation or maintenance of the railway,
then the contractor is required to pay to the successful consortium
the amount, or part of the amount, of the civil penalty required to be
paid by the successful consortium to the Corporation.
"(2) An amount required to be paid to the successful consortium by a
contractor under an agreement in accordance with subsection (1) is
a debt due to the successful consortium by the contractor –
(a) despite that neither the successful consortium nor any other
person (whether a party to the agreement or not) suffered
damage as a result of the breach; and
(b) despite that the amount required to be paid by the contractor
is unrelated to the extent of any damage that the successful
consortium or any other person (whether a party to the
agreement or not) may have suffered as a result of the
breach.".
Part 3 Amendments of AustralAsia Railway (Special Provisions) Act 1999
AustralAsia Railway (Special Provisions) Regulations 2000 3
Part 3 Amendments of AustralAsia Railway (Special
Provisions) Act 1999
5 Repeal
Section 5B of the Special Provisions Act is repealed.
6 Repeal and substitution
Section 10A of the Special Provisions Act is repealed and the
following substituted –
"10A Relief against forfeiture of leases
"(1) In relation to a registered lease –
(a) sections 136 to 140 (inclusive) of the Law of Property
Act 2000 (Act No. 1 of 2000) apply subject to the modifications
that –
(i) may be made to, or that may apply in relation to, those
provisions by virtue of this section; or
(ii) may be made by regulation; and
(b) the provisions of the Crown Lands Act 1992 relating to
forfeiture of leases and Part VII of the Commercial Tenancies
Act 1979 do not apply.
"(2) Relief against forfeiture of a lease (whether under section 138
or 139 of the applied provisions or any other law of the Territory,
including the common law and the law of equity) is not available if
the lease is being terminated as a consequence of the lawful
termination of the Concession Deed.
"(3) On an application for relief against forfeiture of a registered lease
under section 138 of the applied provisions, subject to
subsections (2) and (11), the Supreme Court must grant the relief
unless the Court is satisfied –
(a) that there has been a material breach of the lease;
(b) that written notice of the breach has been given to the lessee,
any sublessee under a registered sublease and the holder of
any registered security over the lease or any registered
sublease requiring –
(i) in the case of a remediable breach, including a breach
for non-payment of rent – the breach to be remedied;
Part 3 Amendments of AustralAsia Railway (Special Provisions) Act 1999
AustralAsia Railway (Special Provisions) Regulations 2000 4
(ii) in the case of a non-remediable breach – the payment of
reasonable compensation; or
(iii) in the case of a breach which is partly remediable and
partly non-remediable – the breach to be remedied to
the extent that it is capable of remedy and otherwise the
payment of reasonable compensation;
(c) that a reasonable period of time to comply with the
requirements set out in the notice under paragraph (b) has
been given;
(d) in the case of a breach which is remediable or partly
remediable – that the breach has not been remedied and none
of the lessee, any sublessee under a registered sublease or
the holder of any registered security over the lease or any
registered sublease is diligently pursuing the remedy of the
breach or that part of the breach that is remediable; and
(e) in the case of a breach which is non-remediable or partly non-
remediable – that reasonable compensation has not been
paid.
"(4) If a lessee under a registered lease is not entitled to relief under
subsection (3), subject to subsection (2), the Supreme Court may
grant the lessee relief in accordance with section 138(2) and (3) of
the applied provisions.
"(5) Section 138 of the applied provisions (as modified by the operation
of subsection (3) of this section) is to operate as if the section
included a provision allowing a sublessee under a registered
sublease or the holder of any registered security over a registered
sublease to make application under that section in relation to the
registered headlease (and such an application may be made even
though the headlessee has not applied for relief under that section).
"(6) Section 139 of the applied provisions is to operate as if the section
included a provision allowing the holder of any registered security
over a registered sublease to make application under that section
as if the holder of the security were a sublessee.
"(7) On an application in relation to a registered headlease under
section 139 of the applied provisions by a sublessee under a
registered sublease or the holder of any registered security over a
registered sublease, the Supreme Court must, subject to
subsections (8) and (11), grant the application unless –
(a) the granting of the application would be inconsistent with a
decision on an application under section 138 of the applied
provisions;
Part 3 Amendments of AustralAsia Railway (Special Provisions) Act 1999
AustralAsia Railway (Special Provisions) Regulations 2000 5
(b) the Court is satisfied, in respect of any breach of the
headlease, that the headlessee has not had a reasonable
opportunity –
(i) to remedy the breach or to pay reasonable
compensation or both; or
(ii) to apply for relief against forfeiture,
taking into account –
(iii) sections 137 and 138 of the applied provisions and this
section; and
(iv) the principle that the preservation of the headlease (and
any registered sublease) by way of orders under
section 138 of the applied provisions (as modified by the
operation of subsection (3) of this section) is to be
preferred to the making of an order under section 139 of
the applied provisions; or
(c) the Court is satisfied, in respect of any breach of the
headlease that is attributable to any act, omission or default of
the sublessee or the holder of any registered security over the
sublease –
(i) that written notice of the breach has been given to the
sublessee and the holder of any registered security over
the sublease requiring –
(A) in the case of a remediable breach, including a
breach for non-payment of rent – the breach to be
remedied;
(B) in the case of a non-remediable breach – the
payment of reasonable compensation; or
(C) in the case of a breach which is partly remediable
and partly non-remediable – the breach to be
remedied to the extent that it is capable of remedy
and otherwise the payment of reasonable
compensation;
(ii) that a reasonable period of time to comply with the
requirements set out in the notice under
subparagraph (i) has been given;
(iii) in the case of a breach which is remediable or partly
remediable – that the breach has not been remedied and
neither the sublessee nor the holder of any registered
Part 3 Amendments of AustralAsia Railway (Special Provisions) Act 1999
AustralAsia Railway (Special Provisions) Regulations 2000 6
security over the sublease is diligently pursuing the
remedy of the breach or that part of the breach that is
remediable; and
(iv) in the case of a breach which is non-remediable or partly
non-remediable – that reasonable compensation has not
been paid.
"(8) Subsection (7) does not derogate from the operation of
section 139(2) and (3) of the applied provisions.
"(9) If a sublessee under a registered sublease is not entitled to an
order under subsection (7), subject to subsection (2), the Supreme
Court may grant an order in accordance with section 139 of the
applied provisions.
"(10) If the Supreme Court makes an order under section 139(1)(d) of the
applied provisions in respect of a registered lease, the lease
granted to the sublessee by virtue of the order (the new lease) is to
include a provision to the effect –
(a) that despite any law to the contrary or any provisions as to the
period of the new lease, the new lease will be automatically
and simultaneously determined on the termination of the
Concession Deed and without necessity of notice;
(b) that if the new lease is determined in the manner
contemplated by paragraph (a), the new lease and any
interests derived or dependent on the new lease will be
determined for all time; and
(c) that, for the avoidance of doubt, it is expressly acknowledged
and agreed by the parties to the new lease that, on the
termination of the Concession Deed, the new lease is
intended to and will expire by effluxion of time, despite any
law.
"(11) The Supreme Court must not make an order under section 138
or 139 of the applied provisions in relation to a registered
headlease on the application of a sublessee under a registered
sublease or the holder of any registered security over a registered
sublease unless –
(a) the headlessee; and
(b) any sublessee under a registered sublease or holder of any
registered security over a registered sublease who is not the
applicant,
Part 3 Amendments of AustralAsia Railway (Special Provisions) Act 1999
AustralAsia Railway (Special Provisions) Regulations 2000 7
has had notice of the application and the Court has given each of
those persons who is entitled to such notice a reasonable
opportunity to be heard on the application.
"(12) In this section, unless the contrary intention appears –
applied provisions means sections 136 to 140 (inclusive) of the
Law of Property Act 2000 (Act No. 1 of 2000) as modified and
applied under this section.
lease means –
(a) a lease over a part of the corridor and includes –
(i) a sublease over a part of the corridor; and
(ii) a lease over a part of the corridor granted by virtue of an
order under section 139(1)(d) of the applied provisions;
or
(b) a lease over a part of the Port of Darwin granted for a purpose
connected with the construction, operation or maintenance of
the railway;
lessee includes –
(a) a sublessee; and
(b) the executors, administrators and assigns of a lessee.
"10AA Power of Crown Lands Minister to enter agreements about
termination or forfeiture of leases
"(1) Despite the provisions of the Crown Lands Act 1992 relating to the
termination and forfeiture of leases, the Crown Lands Minister may
in the name of the Territory enter into an agreement relating to the
termination or forfeiture of a lease over a part of the corridor
granted under that Act, including an agreement that is inconsistent
with the provisions of the Crown Lands Act 1992 relating to the
termination and forfeiture of leases.
"(2) In subsection (1), Crown Lands Minister means the Minister for
the time being administering the Crown Lands Act 1992 (except
section 79).
Part 4 Amendments of AustralAsia Railway (Third Party Access) Act 1999
AustralAsia Railway (Special Provisions) Regulations 2000 8
"10B Certain provisions of Law of Property Act 2000 not to apply
"Sections 134 and 141 of the Law of Property Act 2000 do not apply
in relation to –
(a) a sublease over a part of the corridor; or
(b) a lease over a part of the Port of Darwin granted for a purpose
connected with the construction, operation or maintenance of
the railway.".
7 Easements in favour of PAWA
Section 14 of the Special Provisions Act is amended –
(a) by omitting from subsection (1) "the Real Property Act 1918 or";
(b) by omitting from subsection (3) "the Register under the Real
Property Act 1918 or"; and
(c) by omitting from subsection (3A)(c) "the Real Property Act 1918 or".
8 Access easements in favour of private landholders
Section 14A of the Special Provisions Act is amended by omitting
from subsection (3) "the Real Property Act 1918 or".
Part 4 Amendments of AustralAsia Railway (Third
Party Access) Act 1999
9 New section
The Third Party Access Act is amended by inserting after section 7
the following:
"8 Modification of Code
If the designated Minister under Part IIIA of the Trade Practices
Act 1974 of the Commonwealth believes under section 44H(6) of
that Act that an amendment to the Access Code made under
clause 48 of the Code after the commencement of this section is, or
results in, a substantial modification of the Code, then that
amendment is to be taken not to be in force, and never to have
been in force, to the extent of that belief.
Part 4 Amendments of AustralAsia Railway (Third Party Access) Act 1999
AustralAsia Railway (Special Provisions) Regulations 2000 9
10 Schedule
The Schedule to the Third Party Access Act is amended by omitting
clause 48 and substituting the following:
"48 Amendment of Code
"(1) This Code may be amended by the Northern Territory Minister and
the South Australian Minister jointly as prescribed.
"(2) This clause expires on 30 June 2001.".
ENDNOTES
AustralAsia Railway (Special Provisions) Regulations 2000 10
ENDNOTES
1 KEY
Key to abbreviations
amd = amended od = order
app = appendix om = omitted
bl = by-law pt = Part
ch = Chapter r = regulation/rule
cl = clause rem = remainder
div = Division renum = renumbered
exp = expires/expired rep = repealed
f = forms s = section
Gaz = Gazette sch = Schedule
hdg = heading sdiv = Subdivision
ins = inserted SL = Subordinate Legislation
lt = long title sub = substituted
nc = not commenced
2 LIST OF LEGISLATION
AustralAsia Railway (Special Provisions) Regulations (SL No. 61, 2000)
Notified 10 January 2001
Commenced 14 February 2001 (Gaz G6, 14 February 2001, p 3)
Amendments of AustralAsia Railway (Special Provisions) Regulations (SL No. 20, 2001)
Notified 19 March 2001
Commenced 19 March 2001
3 GENERAL AMENDMENTS
General amendments of a formal nature (which are not referred to in the table
of amendments to this reprint) are made by the Interpretation Legislation
Amendment Act 2018 (Act No. 22, 2018) to: rr 1, 3, 6, 7 and 8.
4 LIST OF AMENDMENTS
r 3 amd No. 20, 2001, r 3
pt 4 hdg ins No. 20, 2001, r 4
rr 9 – 10 ins No. 20, 2001, r 4