Government Agreements Act 1979

The Act directly affects three main groups.

First, it benefits the State of Western Australia and the private parties (typically resources companies) who enter into the scheduled agreements. By confirming that the agreements operate according to their terms notwithstanding any other law, the Act reduces the litigation risk that would otherwise arise from inconsistencies with the Mining Act 1978, the Environmental Protection Act 1986, the Land Administration Act 1997, native title legislation, or local government planning schemes. Project proponents therefore enjoy a high degree of regulatory certainty once an agreement is ratified.

Second, it affects landowners, occupiers and members of the public who come into contact with “subject land”. The offence provisions in s. 4 apply to anyone who remains on such land after a warning or who interferes with project activities. Because the definition of subject land is functional rather than cadastral, it can extend beyond the boundaries of any particular lease or title to include land “incidental to implementing” the agreement. This gives project operators and police a flexible tool to manage protest activity or unauthorised entry.

Third, the Act affects other branches of the Western Australian statute book. Because a Government agreement can modify any other Act for its own purposes (s. 3(b)), the legislation indirectly amends every statute that touches the subject matter of a scheduled agreement. Ministers, public servants and compliance officers administering those other statutes must therefore read them subject to the overriding Government agreement. The Government Agreements Act 1979 itself is administered by the Minister for State Development, reflecting its close connection with major project facilitation.

The Act has no direct impact on Commonwealth legislation or on agreements that have not been scheduled to or ratified by an Act of the Western Australian Parliament. Its reach is therefore confined to the State sphere and to the specific class of agreements that satisfy the s. 2 definition.

The Act creates few positive duties. Its dominant technique is to confer rights and immunities rather than to impose obligations.

The central right is the right of parties to a Government agreement to rely on its terms irrespective of any conflicting statute or common-law rule (s. 3(a)). This includes the right to rely on any modification of another Act that the agreement itself purports to make (s. 3(b)). Because the deeming language operates retrospectively, the right extends to past acts performed in reliance on the agreement even if, at the time, a court might have thought another statute prevailed.

Owners and occupiers of subject land are given an ancillary right to require persons to leave that land. Once a warning is given by an authorised person or police, continued presence without lawful authority becomes an offence. The Act does not define “lawful authority”, leaving that question to the general law and to any specific rights granted by the underlying Government agreement or ancillary instruments.

For the public, the Act implicitly recognises a right to protest or object provided it does not cross into the obstructive conduct prohibited by s. 4(2). The line between lawful protest and the offence of “preventing, obstructing, or hindering” is not drawn in the statute and must be determined case by case.

On the duty side, the only explicit obligations are negative: the duties not to remain on subject land after warning and not to obstruct project activities. There is no general duty on project operators to notify the public of the boundaries of subject land, although in practice many agreements require public consultation or environmental management plans that indirectly serve this purpose.

Prosecutors enjoy an evidentiary right under s. 4(3). An averment that an agreement is scheduled to an Act under ministerial control, or has been declared by proclamation, is prima facie proof. The defendant bears an evidential burden to displace it. This is a standard reverse-onus provision common in regulatory statutes but still represents a procedural advantage for the State.

The penalties are modest by contemporary standards. Both offences carry a maximum of $5,000 or 12 months’ imprisonment. The fine has not been indexed since the 1990 amendment and remains at the level set in the Government Agreements Amendment Act 1990. Imprisonment is available, signalling that Parliament viewed deliberate obstruction of major State projects as potentially serious. In practice, custodial sentences are unlikely for first offenders unless accompanied by aggravating factors such as violence or significant economic damage.

Enforcement is by summary prosecution. The Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 amended s. 4 to replace the former reference to a “complaint” with “prosecution notice”, aligning the Act with the uniform criminal procedure regime. Police are expressly authorised to issue warnings under s. 4(1)(b), giving them a direct role in protecting project sites.

Because the definition of subject land is broad, enforcement officers must form a view about whether particular land is being used “for the purposes of or incidental to” implementing the agreement. This factual judgment can be contested, but the averment provision in s. 4(3) reduces the State’s burden of proving that the underlying agreement qualifies as a Government agreement.

The Act contains no civil enforcement mechanism. Injured project proponents must rely on the general law of trespass, nuisance or breach of contract, or on specific remedies contained in the scheduled agreement itself. The criminal offences therefore operate as a supplementary, public-order shield rather than a comprehensive remedial scheme.

The Government Agreements Act 1979 is expressly designed to prevail over “any other Act or law” (s. 3). Its interaction with the statute book is therefore hierarchical: where a scheduled Government agreement conflicts with another Western Australian statute, the agreement modifies the statute for its own purposes.

Classic examples include modification of the Mining Act 1978 (to grant tenements on terms different from the standard regime), the Environmental Protection Act 1986 (to substitute a contractual environmental regime for statutory approvals), and planning and local government legislation. Because the modification is deemed to have occurred from inception, later amendments to those other statutes do not automatically override the Government agreement unless the agreement itself so provides.

The Act sits alongside the Ratifying Acts that schedule the individual agreements. Each major resources project typically has its own Ratifying Act that both approves the agreement and, in many cases, declares it to be a Government agreement for the purposes of the 1979 Act. The two statutes work in tandem: the Ratifying Act gives parliamentary approval; the Government Agreements Act 1979 supplies the overriding legal effect.

Interaction with Commonwealth law is more complex. The State Act cannot modify Commonwealth statutes. If a Government agreement purports to do something inconsistent with the Environment Protection and Biodiversity Conservation Act 1999 (Cth) or the Native Title Act 1993 (Cth), the Commonwealth law will prevail to the extent of the inconsistency under s. 109 of the Constitution. In practice, many agreements contain clauses requiring the parties to use best endeavours to obtain necessary Commonwealth approvals, recognising this constitutional limit.

At common law, the Act interacts with principles of statutory interpretation. Courts have traditionally read down ouster clauses and privative provisions, but the language in s. 3 is not an ouster of jurisdiction; it is a substantive declaration of legislative intent. A court would be expected to give effect to it according to its terms, although constitutional limits (such as the inability to oust judicial review of jurisdictional error) would still apply.

The 2004 amendment aligned the Act with the Criminal Procedure Act 2004, illustrating how procedural statutes can update older regulatory offences without altering their substantive content.

The Act has been amended only twice since 1979. The Government Agreements Amendment Act 1990 (No. 30 of 1990) expanded the definition of “Government agreement” to its present form. Prior to 1990 the definition was narrower; the 1990 Act inserted the paragraphs dealing with variations ratified by Parliament and the inclusive list of ancillary instruments (grants, leases, licences, etc.). It also increased the penalties from the original $2,000/$6,000 distinction to a uniform $5,000 or 12 months’ imprisonment. These changes were driven by experience in the 1980s resources boom, when lawyers realised that many ancillary approvals and subsequent variations required explicit statutory cover to avoid doubt.

The second amendment was contained in the Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (s. 80). It substituted “prosecution notice” for the former reference to a “complaint” in s. 4(3). This was purely mechanical, part of the statewide shift to new criminal procedure rules commencing in 2005. No policy change to the substance of the offences was intended.

There have been no further amendments in the last two decades. The penalty amount remains unadjusted for inflation, which is unusual but reflects the Act’s low volume of use in the criminal courts. The absence of recent legislative attention suggests that the 1990 formulation continues to serve its purpose for contemporary agreements such as those for the Gorgon LNG project, the Oakajee port, or various iron-ore rail and port expansions.

The source text contains no reported cases, and the Act’s brevity has meant it is rarely the subject of standalone litigation. Most disputes arise in the context of judicial review or compensation claims under the individual Ratifying Acts rather than under the 1979 Act itself.

The core controversy surrounding the legislation is constitutional and democratic rather than doctrinal. Critics argue that allowing a contract scheduled to an Act to modify any other statute delegates legislative power to the executive and the contracting company. Because the modifications are not set out in the statute in full, Parliament may not appreciate the full extent of the changes it is ratifying. The retrospective operation of s. 3 also raises rule-of-law concerns: citizens and companies may have ordered their affairs on the basis of the general law only to discover later that a Government agreement has deemed that law to be different since its inception.

Another area of controversy is the breadth of “subject land”. Because the definition is activity-based rather than title-based, protesters have argued that the offence provisions could criminalise conduct on land that is only remotely connected to the project. In practice, operators have tended to rely on ordinary trespass law for peripheral land and have invoked the Act only for core project sites.

No High Court or Supreme Court authority has yet struck down or read down the Act. Its validity rests on the unquestioned power of the Western Australian Parliament to legislate with respect to Crown contracts and to give one statute precedence over others. The real limits are political: governments are conscious that overly broad use of the mechanism can attract adverse comment from environmental groups, traditional owners and the Commonwealth.

Most practitioners assume that once an agreement is ratified it is bullet-proof. The gotcha is that the Government Agreements Act 1979 only protects against State laws. Commonwealth statutes and the Constitution remain superior. A clause in a Government agreement that purports to exclude the Native Title Act 1993 (Cth) or to authorise activities listed as controlled actions under the EPBC Act will be ineffective to the extent of the inconsistency.

Another trap is the precise wording of the definitional trigger. The agreement must be “scheduled to, incorporated in, or appearing in” an Act that is under the control of “the Minister”. If the administration of the Ratifying Act is later transferred to another portfolio, a literal reading of the definition could create doubt. Although s. 4(3) contains an averment provision, a defendant who can prove the agreement is no longer under the relevant Minister’s control might displace the prima facie case.

The inclusive list in paragraph (c) of the definition is often overlooked. A mining lease or environmental approval issued under the agreement is itself deemed part of the Government agreement. This can be useful when arguing that the lease is not subject to standard Mining Act surrender or forfeiture provisions, but it also means that any breach of the lease can be characterised as a breach of the Government agreement, potentially triggering State guarantees or indemnity clauses.

Section 3(b) modifies “any other Act or law” only “for the purposes of the Government agreement”. The modification is therefore not a permanent amendment to the statute book; it is purpose-limited. A court asked to interpret the modified statute in a different context may hold that the modification has no effect outside the agreement’s scope. This creates a dual-track statute that is easy to get wrong in advice.

Finally, the offence in s. 4(2) includes “attempt to” obstruct. Because the maximum penalty is 12 months’ imprisonment, the attempt is itself an indictable offence in theory, yet the section is drafted as a summary matter. Careful practitioners ensure that charges are laid under the specific provision rather than under the general attempt provisions of the Criminal Code, to avoid arguments about maximum penalties.

Compliance for project proponents is largely contractual and administrative.

1. Ensure the principal agreement is scheduled to a Ratifying Act and that the Ratifying Act expressly declares it to be a Government agreement for the purposes of the 1979 Act.
2. Draft all variations so they are either made under an express power in the original agreement or are separately ratified by Parliament.
3. When issuing or obtaining ancillary instruments (leases, licences, permits), expressly state that they are issued “for the purposes of” the Government agreement so they fall within paragraph (c) of the definition.
4. Maintain a register of all documents that qualify as part of the Government agreement so they can be produced if an averment is challenged.
5. For land management, prepare maps showing “subject land” based on the functional test in s. 2. Where possible, secure owner or occupier consent or formal leases so that warnings under s. 4(1) rest on clear title.
6. Train security and operational staff that a warning must come from a person with actual or ostensible authority; a warning given by an unauthorised contractor will not trigger the offence.
7. When dealing with protesters, prefer civil remedies (trespass, injunction) for peripheral activity and reserve the criminal provisions for clear cases of obstruction of core activities.
8. In contractual negotiations, include indemnity clauses covering any successful challenge to the agreement’s status under the 1979 Act.
9. Keep the project’s legal team briefed on any proposed amendments to the Mining Act, Environmental Protection Act or planning legislation so that consequential amendments to the Government agreement can be made if necessary.

For State agencies, compliance requires that every new resources or infrastructure agreement be routed through the Cabinet and Parliamentary processes that trigger the definitional criteria. The Department of Jobs, Tourism, Science and Innovation (or its successor) should maintain a central register of all live Government agreements so that portfolio Ministers can confirm administrative responsibility.

Legal advisers should never assume that the Act automatically applies; each element of the s. 2 definition must be checked on every occasion. A short checklist confirming (a) scheduling or proclamation, (b) ministerial responsibility, (c) ratification of variations, and (d) express “for the purposes of the agreement” language in ancillary instruments will avoid most pitfalls.

Because the Act is rarely amended, the compliance regime established in the 1990s remains current. The real compliance burden lies not in the four sections of the 1979 Act but in the hundreds of pages of the individual agreements it protects. Those agreements must be drafted with the overriding effect of the 1979 Act clearly in mind so that the statutory supremacy is not wasted by ambiguous drafting.