BHP Billiton (Termination of Agreements) Agreement Act 2006

Mechanically, the BHP Billiton (Termination of Agreements) Agreement Act 2006 (the Act) does two things. First, it ratifies a written agreement between the State of Western Australia and BHP Billiton Limited and BHP Billiton Minerals Pty Ltd (the Agreement), by declaring in s 4(1) that “The Agreement is ratified.” Second, it provides that the Agreement “operates and takes effect despite any enactment or other law” (s 4(2)), subject to the Government Agreements Act 1979 being neither limited nor otherwise affected by that statement.

The Agreement itself is set out in Schedule 1 to the Act and, on its operative provisions, terminates two long‑standing industry agreements: the agreement made on 7 October 1952 (the 1952 Agreement) and the agreement made on 18 November 1960 (the 1960 Agreement). The Schedule (clause 3(1)) expressly terminates those two agreements “with effect on and from the Operative Date.” The Schedule defines the Operative Date as the date the Bill to ratify the Agreement “comes into operation as an Act” (Schedule cl 2(3)). The Act’s commencement provision (s 2) fixes the Act’s operation to the date of Royal Assent (the compilation table records both assent and commencement as 30 November 2006), which supplies the statutory occurrence that triggers the Agreement’s operative effect.

Beyond termination, the Agreement effects releases. On the Operative Date, the State grants “a full unconditional release” to BHP Billiton Limited and BHP Billiton Minerals Pty Ltd from their obligations under the 1952 and 1960 Agreements and from obligations under Western Australian legislation, regulations or other comparable requirements in effect prior to or at the Operative Date, but only “to the extent: (A) the release is lawful; and (B) the obligations were excluded from applying to the activities of BHPB or BHPM ... under the terms of the 1952 Agreement or the 1960 Agreement” (Schedule cl 4(a)). The Agreement also records that certain mineral leases listed in the Schedule to the 1952 Agreement continue in force subject to clause 4(mb) of the 1952 Agreement (Schedule cl 3(2)), and confirms a prior release to AIS in the Deed of Covenant (Schedule cl 5).

In short, the Act gives statutory force to a contract‑style settlement: it ends two statutoryised agreements, continues certain mineral leases under their original terms, and grants releases from past obligations permitted by those agreements, with the statutory declaration that the Agreement operates notwithstanding other laws (s 4(2)).

The Act is short in form but contains several layered legal concepts reflected in the Schedule. These concepts are: ratification; conditional commencement and operative date; termination of earlier agreements; statutory release of liabilities; continuity of specified mineral leases; and the interaction with other statutory schemes.

• Ratification. Section 4(1) ratifies the Agreement set out in Schedule 1. That is a statutory confirmation that the Agreement has legislative backing. The Schedule itself requires the State to introduce a Bill and secure its passage (Schedule cl 1), so the Act gives legal effect to that procedural commitment.

• Conditional commencement and Operative Date. The Agreement’s own commencement provisions require the Bill to be passed and come into operation as an Act before its substantive clauses take effect (Schedule cl 2(1)). The Agreement uses “Operative Date” to denote the moment the Bill becomes an Act (Schedule cl 2(3)), and the Act’s s 2 fixes commencement to the date of Royal Assent. The Agreement also contains a sunset contingency if the Bill is not passed by a target date (Schedule cl 2(2)).

• Termination. Clause 3(1) of the Agreement terminates the 1952 and 1960 Agreements from the Operative Date. Those earlier instruments had themselves been approved by earlier Western Australian statutes (the schedule recitals name the 1952 Act, the 1960 Act and subsequent amending Acts). Termination here is a contractual and legislative mechanism to displace the ongoing operation of those older agreement instruments.

• Release of obligations. Clause 4(a) of the Agreement has the State grant “a full unconditional release” to the companies from obligations under the 1952 and 1960 Agreements and from obligations under Western Australian legislation and regulations or other requirements “in effect prior to or at the Operative Date,” but expressly qualified “to the extent (A) the release is lawful; and (B) the obligations were excluded from applying to the activities ... under the terms of the 1952 Agreement or the 1960 Agreement.” Clause 4(b) adds that the companies will have “no further liability for any action done or omission made which was permitted to be done or omitted to be done by the terms of the 1952 Agreement and the 1960 Agreement.”

• Continuity of listed mineral leases. Clause 3(2) preserves certain mineral leases set out in the Schedule to the 1952 Agreement, continuing them “subject to and in accordance with clause 4(mb) of the 1952 Agreement.” The Act itself does not reproduce that clause 4(mb); rather it imports its effect by reference.

The Act identifies a small, clearly named set of principal parties and a broader set of affected interests.

Primary parties:

• The State of Western Australia, represented in the Agreement by the Premier (the Schedule shows the Premier signing), and more generally the State and its instrumentalities (Schedule recital and cl 1). The State is both a contracting party to the Agreement (Schedule) and the legislature enacting the ratification (ss 1-4).
• BHP Billiton Limited (BHPB) and BHP Billiton Minerals Pty. Ltd. (BHPM), jointly “the Companies” in the Schedule. The Schedule records their corporate details and their role as the counter‑parties to the 1952 and 1960 Agreements (recitals).

Entities with confirmed historical involvement:

• AIS (BHP Steel (AIS) Pty. Ltd.), which previously held certain rights and obligations under the 1952 and 1960 Agreements and whose release is confirmed by the State (Schedule cl 5). The Schedule records a Deed of Covenant dated 31 January 2002 under which AIS assigned rights and obligations to BHPM; the Agreement confirms the State’s earlier release of AIS.

Persons and instruments directly affected:

• Holders and beneficiaries of the 1952 Agreement and 1960 Agreement obligations and rights, including those identified in earlier statutes that approved those agreements (the Schedule recitals name the Broken Hill Proprietary Steel Industry Agreement Act 1952, the Broken Hill Proprietary Company’s Integrated Steel Works Agreement Act 1960, the Iron Ore (The Broken Hill Proprietary Company Limited) Agreement Act 1964 and various amendment Acts). Termination of the 1952 Agreement and 1960 Agreement (Schedule cl 3(1)) necessarily affects any person whose rights or liabilities derived from those agreements.

Regulators and enforcement agencies:

• Any Western Australian authority that previously relied on the 1952 and 1960 Agreements or on statutory provisions made concurrent with or in aid of those agreements to regulate BHP’s activities. The Agreement’s release (Schedule cl 4) and the Act’s statement that the Agreement “operates and takes effect despite any enactment or other law” (s 4(2)) change what those agencies can enforce vis‑à‑vis the Companies for historical acts or omissions that were previously excluded under the earlier agreements.

Third‑party commercial counterparties:

• Other businesses and private parties with contracts, leases or claims that depend on the continued operation of the 1952 Agreement or the 1960 Agreement, including holders of mineral leases that are listed in the Schedule to the 1952 Agreement and are preserved (Schedule cl 3(2)). The Agreement’s preservation of those mineral leases subject to clause 4(mb) of the 1952 Agreement affects the property rights of those lessees.

The Act is primarily a ratification vehicle; the substantive duties and rights are in the Agreement in Schedule 1. Those duties and rights, as expressed in the Schedule, fall into several categories: the State’s duty to ratify and release; the Companies’ rights to legal certainty and release from past obligations; procedural duties about the Bill; and preservation of certain property interests.

State duties:

• Introduce and sponsor the Bill and “endeavour to secure its passage as an Act prior to 30 June 2005 or such later date as the parties ... may agree” (Schedule cl 1). That is an explicit precondition in the Agreement that the State accepted when it executed the Agreement as a deed.
• On the Operative Date, the State is obliged to grant the specified releases (Schedule cl 4(a)). The text frames the release as being “full” and “unconditional,” but also qualifies it by two limits: (A) “the release is lawful”; and (B) “the obligations were excluded from applying to the activities ... under the terms of the 1952 Agreement or the 1960 Agreement” (Schedule cl 4(a)(A)-(B)). Those two qualifications are express limits to the State’s duty to release.

Companies’ rights and obligations:

• The Companies acquire the right to a release from their respective obligations under the 1952 and 1960 Agreements and from obligations under Western Australian legislation, regulations or other requirements in effect prior to or at the Operative Date, to the extent permitted by the two qualifications (Schedule cl 4(a)).
• The Companies have a promise that they “will have no further liability for any action done or omission made which was permitted to be done or omitted to be done by the terms of the 1952 Agreement and the 1960 Agreement” (Schedule cl 4(b)). That creates a forward‑looking cessation of liability for historical acts permitted under those agreements.

Continuing rights for mineral leases:

• The Agreement preserves the mineral leases set out in the Schedule to the 1952 Agreement “subject to and in accordance with clause 4(mb) of the 1952 Agreement” (Schedule cl 3(2)). That is a contractual recognition that particular land tenure rights continue despite the termination of the overarching 1952 Agreement. The Act does not reproduce clause 4(mb), so the detail of the continuing rights depends on the terms of the 1952 Agreement itself, as referenced.

Rights confirmed by prior instruments:

• The Agreement confirms a prior release to AIS contained in clause 3.2 of the Deed of Covenant dated 31 January 2002 (Schedule cl 5). That confirmation consolidates earlier contractual shifts in rights and obligations among BHPB, AIS and BHPM.

The Act contains no novel criminal offences or administrative penalty regime. It is a statutory ratification and has no express standalone enforcement provisions, fines, or criminal sanctions embedded in its four sections. Enforcement and remedies therefore arise from two sources: (1) the Agreement’s effect on existing rights and obligations and (2) ordinary civil and public law mechanisms that apply to contracts and statutory instruments.

Statutory operation and priority. Section 4(2) declares the Agreement operates “despite any enactment or other law.” Once ratified, the Agreement has statutory backing, which affects how courts, tribunals and regulators treat conflicting laws or obligations. The Act does not itself create an enforcement mechanism; instead, enforcement relies on the legal instruments it modifies or terminates. For example, if the Agreement extinguishes a statutory cause of action or regulatory requirement to the extent allowed by law, then the relevant regulator may find its enforcement powers constrained vis‑à‑vis the Companies for conducts covered by the release. Section 4(2) therefore operates as a procedural shield in practice, but enforcement consequences depend on the interaction of the Agreement’s text with other statutes.

Qualification “to the extent the release is lawful.” Clause 4(a)(A) of the Agreement explicitly limits the State’s release to that which is “lawful.” That qualification preserves the possibility that some statutory obligations cannot lawfully be released by contract or agreement. The Act does not define the limits of “lawful,” leaving courts or regulators to determine whether particular statutory or public law duties are susceptible to release. Potential enforcement scenarios therefore include litigation determining whether a particular obligation was capable of lawful exclusion or release.

Civil remedies and contractual enforcement. The Agreement was executed as a deed (Schedule end part shows “IN WITNESS WHEREOF this Agreement has been executed by the parties as a Deed”). Breach of the Agreement’s terms by any contracting party (for example, if the State failed to perform its duty to grant the release upon the Operative Date) would be enforced through ordinary civil remedies for breach of contract, subject to public law constraints on governmental parties. The Act’s ratification strengthens the Agreement’s enforceability by giving it statutory backing.

Regulatory discretion and administrative remedies. Regulators who seek to enforce environmental, land, or resource laws against the Companies for historic acts must confront the Agreement’s release language and the Act’s operative primacy. That may constrain regulatory enforcement where the release is valid. Conversely, regulators retain enforcement tools for obligations that were not lawfully excluded or released, because the Schedule expressly limits releases to obligations lawfully excluded under the 1952/1960 Agreements.

The Act and its Schedule are expressly drafted to interact with an existing architecture of government agreements, statutory approvals and prior instruments. The text identifies both specific prior Acts and general mechanisms for legal precedence.

Specific prior statutes and agreements:

• The Schedule recitals identify that the 1952 Agreement had been approved by the Broken Hill Proprietary Steel Industry Agreement Act 1952, and that the 1960 Agreement had been approved by the Broken Hill Proprietary Company’s Integrated Steel Works Agreement Act 1960. The recital also lists later variations approved by the Iron Ore (The Broken Hill Proprietary Company Limited) Agreement Act 1964 and other amendment Acts. Those earlier Acts authorised and embedded the operation of the 1952 and 1960 Agreements in Western Australian law. By terminating the 1952 and 1960 Agreements (Schedule cl 3(1)), the Agreement changes the legal posture established by those earlier statutes insofar as the agreements themselves were sources of exemptions, obligations or rights.

Priority over inconsistent law:

• Section 4(2) provides that “the Agreement operates and takes effect despite any enactment or other law.” That is a clause of primacy: the Act gives the Agreement statutory effect and declares its operation to be effective against conflicting statutes or other laws, to the extent of inconsistency. The common consequence is that the Agreement, once ratified, displaces inconsistent provisions elsewhere in the legal corpus.

Government Agreements Act 1979:

• Section 4(2) also expressly says “Without limiting or otherwise affecting the application of the Government Agreements Act 1979.” That preserves the procedural and other regimes provided by the Government Agreements Act 1979, even while stating the Agreement’s operational primacy. Practically, this indicates that the Agreement remains within the formal administrative framework for State agreements and their parliamentary ratification, and that the Government Agreements Act 1979 may continue to govern aspects such as disclosure, parliamentary tabling, or other procedural matters.

Deed of Covenant and prior releases:

• The Schedule cross‑references the Deed of Covenant dated 31 January 2002, which in turn involved assignment of rights and obligations among BHP entities and AIS. Clause 5 of the Agreement “confirms the release given by it to AIS in clause 3.2 of the Deed of Covenant.” This integration means the Act consolidates prior contractual reallocations of obligations and confirms their legal effect in the web of agreements.

The Act is short and the compilation notes in the source provide a concise amendment/compilation record. The compilation table included in the source shows:

• Short title: BHP Billiton (Termination of Agreements) Agreement Act 2006
• Number and year: 63 of 2006
• Assent: 30 November 2006
• Commencement: 30 November 2006 (see s 2)

No further amendments, variations, or subsequent compilations are recorded in the provided text. The text contains no schedule of amendments, no later amendment Acts, and no notation of repeal or of transitional or saving amendments. The Agreement in Schedule 1 itself records a history of prior agreements and variations (various agreements dated between 1952 and 2002 and earlier Acts that approved them), but those are prior instruments that the Act terminates or references rather than amendments of the 2006 Act.

Because the Act’s substantive content is to ratify a specific Agreement and to give it effect, future modifications to those undertakings would require either subsequent legislation or further contractual arrangement between the State and the Companies. The Act contains no provision authorising unilateral amendment by ministerial or executive action; its ratification in s 4(1) is a present‑tense legislative act. Any later change to the Agreement’s legal effect would thus require parliamentary action to amend or repeal the Act, or a new agreement between the parties with legislative ratification if necessary.

The compilation table is the only express textual record of the Act’s legislative lifecycle within the source. There is no recorded legislative history in the text such as amending instruments, schedules listing repealed provisions, or notes on transitional arrangements for third parties. The Agreement itself contains internal temporal clauses (Schedule cl 1 and cl 2) about introduction and passage of the Bill and consequences if that did not occur by a target date, but the Act’s compilation table demonstrates that the legislative passage did in fact occur on 30 November 2006.

Users seeking further amendment history beyond what appears in the provided compilation table will need to consult parliamentary records, the Government Gazette or the consolidated statutes database for any subsequent amending Acts or notations, none of which are contained in the provided source.

The text of the Act and its Schedule contain no references to court decisions, ongoing litigation, or adjudicated disputes arising out of the Agreement. The source does not list cases, judgments, or tribunal determinations that interpret the Act, the Agreement, or the terminated 1952 and 1960 Agreements. There is no litigation docket, no cited authorities, and no judicial annotations within the provided material.

Because the Agreement effects releases from historical obligations and declares operation “despite any enactment or other law” (s 4(2)), issues that could generate litigation include:

• Whether particular statutory obligations were lawfully excluded under the earlier agreements such that the State could validly grant releases for them (Schedule cl 4(a)(A)-(B)). The source preserves the qualification that releases are effective “to the extent the release is lawful,” which leaves open judicial questions about what may lawfully be released by agreement between a State and a private party.

• The scope and continuity of mineral leases preserved under Schedule cl 3(2) “subject to and in accordance with clause 4(mb) of the 1952 Agreement.” Disputes could arise concerning the content of clause 4(mb), since the Act does not reproduce that clause, and about how termination of the 1952 Agreement affects associated tenure rights.

• The effect of the Agreement on rights of third parties who previously relied on the 1952 or 1960 Agreements, or on statutory provisions enacted in connection with those agreements. For example, if a third party asserted a statutory right or cause of action that was materially affected by the releases, the boundaries of enforceability could be litigated.

• Whether the procedural prerequisites in the Agreement (the State’s obligation to introduce and sponsor a Bill and the target date in Schedule cl 1 and cl 2) were satisfied in practice, and whether any party’s actions during the period before parliamentary passage created legal rights or liabilities.

The source shows none of those potential disputes having been litigated, adjudicated or cited. Absent any court decisions in the source, readers must treat litigation possibilities as potential legal risks rather than established judicial outcomes. Any authoritative statements about how courts have interpreted these provisions would require consulting judicial databases and case law beyond the present text, because the Act’s materials as provided contain no litigation history.

The Act and its Schedule are compact, but the text contains multiple features that raise practical legal pitfalls and interpretive issues for practitioners. The following are concrete points to check, each grounded in the source text.

1. “Full unconditional release” qualified by “to the extent the release is lawful.” Schedule cl 4(a) describes the State granting “a full unconditional release” from obligations, including obligations under WA legislation and regulations “in effect prior to or at the Operative Date,” but immediately limits efficacy “to the extent the release is lawful.” That qualification creates a substantive legal boundary. Do not assume the release extinguishes all statutory duties: some obligations may be non‑releaseable under public law or other statutory limits. Practitioners must identify which obligations were lawfully capable of being excluded under the 1952/1960 Agreements before concluding the release is absolute.

2. Reliance on exclusions under earlier agreements. The release only covers obligations “the obligations were excluded from applying to the activities of BHPB or BHPM ... under the terms of the 1952 Agreement or the 1960 Agreement” (Schedule cl 4(a)(B)). That means rights to rely on the release depend on prior contractual exclusion clauses; you must examine the 1952 and 1960 Agreements’ texts to determine which obligations were excluded and whether those exclusions were effective.

3. Mineral leases preserved by reference to an earlier clause. Schedule cl 3(2) continues mineral leases “subject to and in accordance with clause 4(mb) of the 1952 Agreement.” The Act does not print clause 4(mb). That creates a point of reference risk: the exact present rights and obligations attaching to those mineral leases depend on an external clause. Do not assume simple continuity without reading clause 4(mb) of the 1952 Agreement.

4. Interaction with Government Agreements Act 1979. Section 4(2) both declares the Agreement operates “despite any enactment or other law” and expressly preserves the application of the Government Agreements Act 1979. This means procedural or disclosure requirements under that Act may continue to apply even though the Agreement displaces inconsistent substantive law. Practitioners should check compliance with the Government Agreements Act 1979 before relying on the Agreement for any administrative action.

5. Timing and execution anomalies in the Schedule. The Schedule contains several date references that do not align neatly. For example, the opening line reads “THIS AGREEMENT is made the day of 2004,” whereas the signature block includes a signature date of “5 SEPTEMBER 2001” for a power of attorney. Clause 1 of the Agreement required the State to secure passage “prior to 30 June 2005” or such later date as the parties agreed. The Act’s parliamentary assent occurred on 30 November 2006 (compilation table). The Schedule contains multiple references to prior instruments dated across decades. These date inconsistencies and the reliance on unspecified later agreements to extend the Bill’s passage date create potential interpretive and evidential issues in disputes about whether the parties complied with the Agreement’s temporal conditions.

The Act ratifies an Agreement that primarily benefits the Companies and adjusts regulatory obligations. Compliance tasks differ by role: State agencies, the Companies (BHPB and BHPM), regulators, mineral leaseholders and third parties each have distinct compliance checks to perform.

For the Companies (BHPB and BHPM)

• Catalogue the obligations you claim are released. The Agreement provides release “from their respective obligations ... under the 1952 Agreement and the 1960 Agreement” and from certain statutory/regulatory obligations “in effect prior to or at the Operative Date” but only to the extent the release is lawful and the obligations were excluded under the earlier agreements (Schedule cl 4(a)). Produce an itemised inventory of obligations you assert were excluded under the 1952/1960 Agreements and that therefore fall within the Schedule’s scope.
• Maintain documentary proof of acts or omissions that were permitted by the 1952/1960 Agreements. Clause 4(b) promises “no further liability for any action done or omission made which was permitted to be done or omitted to be done by the terms of the 1952 Agreement and the 1960 Agreement.” Keep contemporaneous records evidencing permissions and authorisations under those earlier agreements.
• Verify the scope of any release of statutory obligations. Because the release is limited by what is lawful, legal counsel should analyse whether particular statutory duties were capable of lawful exclusion prior to relying on the release. Seek pre‑emptive legal opinions on contentious obligations (environmental, native title, safety, public health) that might be argued to be non‑releaseable.
• Confirm the continued status of mineral leases preserved by Schedule cl 3(2) by reviewing clause 4(mb) of the 1952 Agreement to understand tenure obligations, rent, royalties, and surrender/renewal conditions.

For State agencies and regulators

• Map regulatory powers against the Agreement. Compile a list of regulatory provisions that the Agreement or the Act may affect and determine whether those obligations were excluded under the 1952/1960 Agreements. The Schedule’s saving of lawful limits (cl 4(a)(A)) means you must determine what remained enforceable.
• Check procedural requirements under the Government Agreements Act 1979. Section 4(2) expressly preserves the application of that Act. Ensure that any steps required by that Act for the Agreement’s tabling, disclosure or administrative processing were completed.
• Maintain enforcement records for matters not covered by the release. Where obligations were not excluded or not lawfully releaseable, enforcement should proceed as normal. Preserve the evidentiary record showing that the particular obligation was not captured by the Agreement’s exclusions.