Infrastructure Investment (Asset Restructuring and Disposal) Act 2009

The Act operates around two foundational definitions: “declared project” and “declared entity”. Section 5 lists the specific declared projects: the disposal of all or part of the businesses, assets and liabilities of Queensland Motorways, Port of Brisbane Corporation, the above‑rail businesses of Queensland Rail (excluding passenger services), the below‑rail businesses of Queensland Rail, the Abbot Point Coal Terminal held by Ports Corporation of Queensland, Forestry Plantations Queensland, and Forestry Plantations Queensland Office. It also includes the taking of steps to facilitate any of those disposals, including restructuring an entity or its business, asset or liability, and any thing the Minister declares by gazette notice to be part of a declared project if satisfied it is appropriate or necessary for proper completion. A declared entity is defined in section 6 and includes Forestry Plantations Queensland, Port of Brisbane Corporation, Ports Corporation of Queensland, Queensland Motorways, Queensland Rail, Queensland Treasury Holdings, any company of which one of those is the ultimate holding company, the Coordinator‑General, Forestry Plantations Queensland Office, MEDQ, a government company established for a declared project, certain transferred‑share companies, and any government entity declared by the Minister by gazette notice when necessary for a declared project. The Minister may not give a project direction to the Coordinator‑General (section 11(7)). A “transfer notice” is a gazette notice under section 9 that can effect the transfer of shares, businesses, assets or liabilities, grant or vary leases, deal with land‑Act leases and reserves, provide for legal succession, regulate legal proceedings, deal with instruments (including applications or authorities under an Act), transfer or second employees, and provide for any incidental matter. A “project direction” under section 11 is a written direction signed by the Minister that requires a declared entity or its board to do something for a declared project. A “GOC declaration” under section 11A can revoke the status of Queensland Rail or Port of Brisbane Corporation as a government owned corporation or, for the latter, its port authority status. The Act also creates “workforce transition codes of practice” under section 10A, approved by the Minister and published, with the approval notice being subordinate legislation; declared entities and the State must act in conformity with such codes. The concept of “excluded matter” under section 13 ensures that anything done by the Minister under this Act is an excluded matter for the Corporations Act, chapter 2D (officers and employees), so that the Corporations Act does not apply to those matters. The dictionary in the schedule (section 4) defines particular words, but the Act itself provides many definitions in context, such as “instrument” including an application or authority under an Act (section 9(8)), and “employee” of a declared entity not including a director (sections 9(8), 24(5), 25(3)).

The Act directly affects a defined set of government‑owned or controlled entities listed as declared entities in section 6: Forestry Plantations Queensland, Port of Brisbane Corporation, Ports Corporation of Queensland, Queensland Motorways, Queensland Rail, Queensland Treasury Holdings, their ultimate‑holding‑company subsidiaries, the Coordinator‑General, Forestry Plantations Queensland Office, MEDQ, government companies established for a declared project, companies whose shares have been transferred to the State or to Queensland Treasury Holdings or to such government companies, and any additional government entity declared by the Minister by gazette notice. The boards and employees of these entities are impacted: section 11 requires a declared entity to comply with a project direction given to it, its board to comply with a direction given to it or to take action to ensure entity compliance, and employees to help the entity or board comply. This creates direct obligations on individuals within those organisations. Employees are further protected by sections 10 (limitation on secondment without consent regarding reduction in status or unreasonable duty changes), 24 (preservation of rights for seconded employees - continuity of service, benefits, superannuation, leave, no termination or redundancy) and 25 (similar preservation for transferred employees, plus no entitlement to payment for loss of employment and no requirement for former employer to pay out accrued leave). Prospective purchasers are affected through section 20, which allows them to enter into confidentiality agreements with the State to access information, identifying the information, the employees or agents who may access it, and any conditions. Persons involved in a declared project, including those to whom information is disclosed under a confidentiality agreement or employees or agents of declared entities, are affected by section 21, which permits disclosure and use of information for the declared project and provides a statutory immunity for honest disclosure or use. Registering authorities - the registrar of titles and other persons required to register transactions affecting assets or liabilities - are affected by section 19, which empowers them to register transfers under a transfer notice without formal application and requires them to do so on written application by the transferee entity; they may also register dealings without enquiring whether the asset was transferred under a transfer notice. The State itself is both a transferor and transferee of assets, liabilities, shares and employees, and is bound by workforce transition codes of practice (section 10A(5)). The Minister is the primary actor, but the Minister’s powers under sections 5, 6 and 9 cannot be delegated (section 27). The sunset in section 18 means that from 1 July 2014 no further Ministerial functions can be exercised, so the Act no longer has ongoing operational effect, but existing transfers, directions, instruments and rights continue.

The central duty imposed by the Act is the obligation of declared entities and their boards to comply with project directions. Section 11(4) states that a declared entity must comply with a project direction given to it. Section 11(5) requires a declared entity’s board to comply if the direction is given to the board, or to take the action necessary to ensure the entity complies if the direction is given to the entity. Section 11(6) further provides that a declared entity’s employees must help the entity or board to comply. These are mandatory duties with no express exception, though the Minister cannot direct the Coordinator‑General (section 11(7)). A related duty arises under section 21(2): a declared entity or its board must comply with a request by the Minister for the disclosure of information under section 21(1) to a person. On the rights side, the Act provides robust protections for employees. Section 10 prohibits the secondment of an employee under a transfer notice without the employee’s consent if it involves a reduction in the employee’s status or any change in duties that would be unreasonable having regard to the employee’s skills, abilities and experience - though a reduction in the scope of business operations or the number of supervised employees does not constitute a reduction in status if the employee’s functions in their general nature remain the same or similar. Sections 24 and 25 preserve the rights of seconded and transferred employees respectively, ensuring that the move does not affect benefits, entitlements or remuneration, does not prejudice superannuation or leave rights, does not interrupt continuity of service (with a prohibition on double‑claiming benefits), and does not constitute termination, retrenchment or redundancy. For transferred employees, there is also a right not to be entitled to a payment because of no longer being employed by the former employer, and the former employer is not required to make any payment for accrued leave. The Act also confers rights on persons disclosing or using information. Section 21(5) provides that a person who, acting honestly, discloses or uses information under that section is not liable civilly, criminally or under an administrative process for the disclosure or use. This immunity applies to disclosure under a transfer notice or project direction as well (section 21(4)). Prospective purchasers have the right to enter into a confidentiality agreement with the State under section 20 to access information; the agreement must state the information, the employees or agents who may access it, and any conditions. The Act also deems certain consents and notices. Section 22(2) provides that if the advice, consent or approval of a person would otherwise be necessary to do something under this Act, the advice is taken to have been obtained or the consent or approval taken to have been given unconditionally. Section 22(3) similarly deems any necessary notice to have been given. These deemed provisions effectively grant a right to proceed without third‑party approvals or notifications.

The Infrastructure Investment (Asset Restructuring and Disposal) Act 2009 does not create its own criminal offences or monetary penalties. Enforcement is achieved through the mandatory compliance obligations imposed on declared entities, their boards and employees. Section 11(4) requires a declared entity to comply with a project direction; section 11(5) requires its board to comply or ensure compliance; section 11(6) requires employees to help. Failure to comply with a project direction would constitute a breach of the Act, but the Act does not specify a penalty for non‑compliance. Instead, the Act relies on the Minister’s other powers and the potential for the entity’s governing legislation or the general law to address non‑compliance by directors and officers. The evidentiary aids in section 26 provide a powerful enforcement tool: in any proceeding under the Act, a certificate signed by the Minister stating that a stated thing was or is being done for the purpose of a declared project, that a stated person is or was involved in a declared project, that a stated company was established for a declared project, or that a stated direction related to a declared project is conclusive evidence of that matter. Similarly, a document certified by the Minister to be a copy of a project direction is conclusive evidence of the direction. This means that the Minister’s certification is not rebuttable, which effectively prevents a party from challenging the factual basis of a direction or a declared project in proceedings. The Act also contains a sweeping ouster clause in section 17: a decision under the Act is final and conclusive, cannot be challenged, appealed against, reviewed, quashed, set aside or called in question under the Judicial Review Act 1991 or otherwise (whether by the Supreme Court, another court, a tribunal or another entity), and is not subject to any writ or order. This ouster includes decisions about making a declaration under sections 5(2) or 6(2), the decision to give a transfer notice or project direction, and any decision or conduct leading up to or forming part of the process of making a decision. The effect is to remove virtually all avenues for judicial review, making the Act’s decisions effectively unchallengeable. The Act also provides for severability in section 17A: if a provision of the Act, a transfer notice or a lease mentioned in sections 15A or 15B is held by a court or judge to be beyond power, invalid or unenforceable, the provision is to be disregarded or severed and the remaining provisions continue to have effect. This does not affect the operation of the Acts Interpretation Act 1954, section 9. While the Act does not impose penalties, the combination of mandatory compliance duties, conclusive evidentiary certificates, and the ouster of review creates a strong enforcement regime that relies on ministerial direction rather than court‑imposed sanctions.

The Act is designed to override other laws and instruments to achieve its purpose. Section 12(1) declares that a thing may be done under the Act despite any other law or instrument. Section 9(5) provides that a transfer notice has effect despite any other law or instrument, subject only to the limitation in subsection (7A) regarding conditions in a report of the Coordinator‑General under the State Development and Public Works Organisation Act 1971. Similarly, a GOC declaration under section 11A(2) has effect despite any other law or instrument. Section 13 specifies that anything done by the Minister under the Act is an excluded matter for the Corporations Act, section 5F, in relation to chapter 2D (officers and employees), meaning that the Corporations Act does not apply to that matter. Section 14 provides that no duty under the Duties Act 2001 is payable in relation to anything done under a transfer notice. Section 15 allows the Minister to declare a project dealing or class of project dealings to be an exempt project dealing, and then the Property Law Act 2023, section 142 and part 9 division 5 do not apply to that dealing - this section applies despite any other law or instrument. Sections 15A and 15B give specific lease provisions the force of law as if they were enactments of the Act, despite any other law or instrument to the contrary: leases granted in connection with a declared project can provide that fixtures do not attach to the land, that things are leased separately or treated as personal property (section 15A), and can include provisions about prepayment of rent, continuation despite unforeseen circumstances, termination, breach consequences, security, ownership on termination, and lessor liability (section 15B). Section 16 deals with disposal of public records under the Public Records Act 2023, declaring that a disposal under a transfer notice or project direction is done under legal authority for the purpose of section 23 of that Act. Section 22(1) protects relevant entities from liability for civil wrongs, breach of contract, confidence or duty, breach of any instrument, and provides that nothing done under the Act is taken to fulfil a condition that would terminate, modify, accelerate payment, or release a surety - except as expressly provided under a transfer notice. Section 22(2) deems any necessary advice, consent or approval to have been given unconditionally, overriding any contractual or statutory requirement for third‑party consent. Section 23 clarifies that a thing is taken to be done under the Act if it is done by or in compliance with a transfer notice or project direction, even if it includes steps under another Act - for example, granting a sublease of land held under the Land Act 1994 is taken to be done under this Act, so any required approval under that Act is deemed given. The Act also interacts with the Government Owned Corporations Act 1993: section 12(2) allows a GOC to form a subsidiary in accordance with a project direction without the approval that would otherwise be required under section 140 of that Act. The sunset in section 18 limits the temporal scope: the Minister may not perform functions under the Act on or after 1 July 2014, so no further interactions with other laws through new transfer notices or project directions are possible after that date, though existing interactions continue.

The Act as presented in the source includes amendments up to 2023. The original Act was passed in 2009. Section 5, section 6, section 8, section 9, section 10, section 11, section 11A, section 15, section 15A, section 15B, section 17A, section 21, section 24 and section 25 all contain amendment notations. The principal amending Act appears to be No. 11 of 2010, which is referenced on many provisions. That amending Act inserted section 10A (workforce transition codes of practice), section 11A (change of status or ownership via GOC declaration), section 15A (particular lease provisions about fixtures having force of law), section 15B (other lease provisions having force of law), and section 17A (severability). It also amended sections 5, 6, 8, 9, 10, 11, 15, 21, 24 and 25. These 2010 amendments broadened the scope of declared projects, expanded the list of declared entities, added the power to second employees and to make provision for employees’ rights in transfer notices, and strengthened the lease provisions to give them statutory effect. Subsequently, No. 43 of 2012 amended section 6 by inserting Forestry Plantations Queensland Office and MEDQ into the list of declared entities, with a schedule amendment. No. 39 of 2013 amended section 10A to specify that the notice of approval of a workforce transition code of practice is subordinate legislation. No. 27 of 2023 amended section 15 to update the reference from the repealed Property Law Act 1974 to the Property Law Act 2023. No. 33 of 2023 amended section 16 to update the reference from the repealed Public Records Act 2002 to the Public Records Act 2023. The amendment history reflects the Act’s evolution from its original focus on a specific set of state‑owned entities and assets, with successive expansions to include additional entities (Forestry Plantations Queensland Office, MEDQ) and the introduction of mechanisms to give lease provisions statutory force. The 2010 amendments in particular significantly expanded the Minister’s toolkit.

The source text of the Act does not contain any references to legal cases, judgments or litigation history. The Act itself, however, includes provisions that are expressly designed to minimise the scope for litigation. Section 17 ousts judicial review entirely: a decision under the Act is final and conclusive and cannot be challenged, appealed against, reviewed, quashed, set aside or called in question under the Judicial Review Act 1991 or otherwise, whether by the Supreme Court, another court, a tribunal or another entity, and is not subject to any writ or order. This ouster extends to decisions about declarations under sections 5(2) and 6(2), the decision to give a transfer notice or project direction, and the decision‑making process leading up to such decisions. The effect is to remove virtually all avenues for judicial review, which would be expected to suppress litigation. Additionally, section 26 provides that a certificate signed by the Minister stating that a thing was done for the purpose of a declared project, or that a direction related to a declared project, is conclusive evidence of that matter. This evidentiary provision further limits the ability to contest the factual basis of ministerial actions in any proceeding. The Act also contains a severability clause (section 17A) which provides that if a provision is held beyond power or invalid, it is to be disregarded or severed without affecting the remaining provisions - indicating an awareness that litigation may occur but seeking to limit its impact. The sunset in section 18 (no Ministerial functions after 1 July 2014) means that any litigation about the exercise of powers under the Act would be historical, relating to actions taken before that date. Given the Act’s explicit ouster of review, any successful challenge would likely need to be on jurisdictional or constitutional grounds (such as lack of legislative power or ultra vires the Act itself), rather than on the merits of a decision. The absence of any case references in the source provided means we cannot identify specific litigation; the Act’s structure strongly suggests that litigation would be rare and, if pursued, would face significant barriers.

The Act contains several provisions that could trap unwary practitioners or counterparties. The most significant is section 17: a decision under the Act is final and conclusive and cannot be challenged, appealed against, reviewed, quashed, set aside or called in question under the Judicial Review Act 1991 or otherwise, whether by the Supreme Court, another court, a tribunal or another entity. This ouster is comprehensive, including decisions about declarations under sections 5(2) and 6(2), the decision to give a transfer notice or project direction, and any decision or conduct leading up to or forming part of the process of making a decision. This means that if the Minister makes an error of law or fact, or fails to afford procedural fairness, there is no avenue for review unless the decision is found to be beyond the Minister’s power under the Act (and even then, section 17A provides for severance rather than invalidating the entire action). A second major trap is the sunset in section 18: the Minister may not perform a function under the Act on or after 1 July 2014. This means that the Act is essentially spent for new actions. Any proposal to restructure or dispose of a government entity after that date cannot rely on this Act, and any representation that a declaration or direction could still be made would be incorrect. However, things done before that date, including transfer notices, project directions, and the terms of any lease given statutory force under sections 15A or 15B, remain effective. A third gotcha is that a transfer notice has effect despite any other law or instrument (section 9(5)), subject only to the limitation regarding Coordinator‑General conditions. This means that a transfer notice can override contractual rights, statutory prohibitions, and even court orders (other than those not within the Act’s power). Section 22(2) deems any necessary advice, consent or approval to have been given unconditionally, so a party cannot claim that a transfer breached a contract requiring third‑party consent. Section 22(1) provides that nothing done under the Act makes a relevant entity liable for a civil wrong or contravention of law, including breach of contract, confidence or duty. Fourth, section 26(2) makes a certificate signed by the Minister conclusive evidence of certain matters - meaning that in any proceeding, the Minister’s statement that something was done for the purpose of a declared project is irrefutable. Fifth, section 14 exempts anything done under a transfer notice from duty under the Duties Act 2001 - but counterparties should verify that a particular transaction is indeed “under a transfer notice” to claim the exemption, as section 23 clarifies that a thing is taken to be done under the Act if done by or in compliance with a transfer notice or project direction, even if it includes steps under another Act. Sixth, the Act’s lease provisions under sections 15A and 15B can give lease clauses the force of law as if they were enactments - this is a powerful tool that can override property law principles about fixtures and leases, but it also means that parties dealing with such leases must be aware that the lease text itself is effectively statutory regulation. Finally, workforce transition codes of practice under section 10A are subordinate legislation (section 10A(3)), and declared entities and the State must act in conformity with them (section 10A(5)) - failure to do so could be a breach of the Act, even though no specific penalty is provided, and may be relevant to claims by affected employees.

Because the Minister’s functions under the Act ceased on 1 July 2014 (section 18), there is no ongoing compliance framework for new actions. Compliance with the Act is therefore historical or relates to the continued operation of instruments and transactions created before that date. For declared entities and their boards, the primary compliance obligation was to follow any project direction given under section 11: they had to comply with the direction if given to them, or take action to ensure entity compliance if given to the entity, and employees had to help (sections 11(4)-(6)). They also had to comply with any Ministerial request for disclosure of information under section 21(2). In addition, section 10A(5) required declared entities and the State to ensure that, to the extent a workforce transition code of practice applied to them, they acted in conformity with that code. For actions taken under transfer notices, compliance includes ensuring that any necessary registrations are effected. Section 19 provides that the registrar of titles or other registering authority may register or record a transfer without formal application, and must do so on written application by the transferee entity. The transferee entity should make that written application to ensure the transfer is properly recorded. Where a transfer notice includes provisions about instruments (section 9(1)(j)), the responsible entity for the instrument must take action to register or record the effect, including updating registers, amending, cancelling or issuing instruments (section 9(7)). For employees, compliance means that the employee must help comply with project directions, but also that the employer must respect the protections in sections 10, 24 and 25: no secondment without consent if it reduces status or unreasonably changes duties; no termination of employment, retrenchment or redundancy caused by the transfer or secondment; preservation of benefits, entitlements, leave and superannuation rights. For prospective purchasers entering confidentiality agreements under section 20, compliance means ensuring the agreement states the information, the persons who may access it, and any conditions; and that any disclosure by the State or a declared entity is for the purpose of a declared project (section 21(1)). For persons disclosing or using information, honesty is key to attracting the immunity in section 21(5). For the Minister, compliance required not exercising functions after 1 July 2014 (section 18), and not delegating the power to make declarations under sections 5 or 6 or to give a transfer notice under section 9 (section 27). For any party seeking to challenge a decision, the reality is that section 17 precludes review; the only potential avenue would be to argue that the decision was ultra vires the Act - for example, that a purported declared project did not fall within section 5 or that a transfer notice was not for the purpose of a declared project. However, the conclusive evidence provisions in section 26 would make that difficult. As a practical matter, due diligence on any asset or liability transferred under this Act should examine the relevant transfer notice and project direction to understand the terms, conditions and any deemed consents. Any lease granted in connection with a declared project should be checked to see if it contains provisions given force of law under sections 15A or 15B, because those provisions override ordinary property law and contractual principles.