Mining (Gove Peninsula Nabalco Agreement) Act 1968

Several recurring legal and conceptual pillars run through the text and determine how parties and public authorities must behave.

• Agreement approval and statutory effect. The Act expressly approves the Agreement (s 4) and treats references in the Act to the Agreement as a statutory instrument of force. The Agreement is defined in s 3 and is said to be “set out in the Schedule” (Schedule; s 3). The Act therefore operates as a legislative vehicle to implement ratified contractual commitments.

• Consistency obligation for public officers. The Minister and the Administrator are required to exercise territorial statutory powers in relation to the Company consistently with the Agreement (s 5(1)). Subsection (2) identifies specific categories of titles (special mineral lease, and leases, licences, easements and other titles required by clause 4 of the Agreement) for which the consistency obligation is emphasised (s 5(2)(a)-(b)).

• Power to grant and to alter titles. The Minister (territorial) may grant leases and the Commonwealth may grant licences, easements and other titles required by clause 4 (s 6(1)). Titles granted under s 6 have effect according to their terms (s 6(2)). The Minister may vary or renew special mineral leases for the purposes of giving effect to stated Agreement clauses (s 6(3)-(4)); the Commonwealth may renew licences/easements/titles for the same purpose (s 6(5)-(6)).

• Treatment of security and assignment. The Act expressly deals with mortgages or charges that take the form of a floating charge, provided they are consented to by the Minister under clause 16 of the Agreement, and given by the Company over Agreement titles (s 7(1)(a)-(c)). Such mortgages/transfers on exercise of power of sale do not require additional approvals beyond the clause 16 consent (s 7(1)). The Act declares that such mortgages are not rendered ineffectual as equitable charges because of absence of other approvals or because of non-registration under the Act under which the title is granted (s 7(2)(a)-(b)).

• Restrictions on partition and sale orders. Titles granted or assigned under the Agreement are not to be subject to partition (by agreement, decree, court order or otherwise) nor to orders for sale under the Partition Act 1881 as applied to the Territory (s 8(a)-(b)).

• Legislative backstop of “necessary power”. Section 9 provides that a “specified person” (Commonwealth, the Minister or the Administrator where so specified in the Agreement or a lease) “has such power as is necessary to be conferred on him” to enable that person to do acts he is permitted or required to do under the Agreement or a lease (s 9(1)). The section defines “lease” and “specified person” for those purposes (s 9(2)).

• Bond enforcement treated as debt and pre-estimate. Where the Company (or an assignee who has entered into substituted bond) fails to observe obligations required by subclauses (4) and (5) of clause 5 of the Agreement, the bond sum becomes a debt due to the Commonwealth and recoverable by action (s 10(1)-(2)). Critically, in proceedings to recover that sum the statute deems the sum to be a genuine pre-estimate of damage, bars the defence that the damage was less or that the sum is a penalty, and excludes evidence tending to prove those points (s 10(3)(a)-(c)).

• Application of Territory mining and special-purpose lease statutes subject to Agreement. The Mining Act 1939 and related regulations apply to a special mineral lease granted under the Agreement as if it were a lease under that Act, but “subject to this Act and the provisions of the Agreement” (s 11(a)). The Special Purposes Leases Act 1953 analogously applies to special purposes leases under the Agreement (s 11(b)). Other applicable law applies to other leases/licences/easements/titles “subject to this Act and the provisions of the Agreement” (s 11(c)).

• Statutory supremacy over inconsistency. The Act contains an express prevail-over clause making it superior to inconsistent statute, rule, practice of law or equity (s 12).

Conceptually, the Act fuses contractual obligations with statutory power by (i) compelling public actors to act consistently with the Agreement, (ii) embedding particular treatments for security and assignment into statute, and (iii) specifying enforcement mechanisms that limit common equitable and legal defences in bond recovery proceedings. The Agreement itself is the operative commercial blueprint, but the Act imposes statutory parameters to secure its effect, including conferral of necessary powers to carry out Agreement obligations (s 9).

The Act sets out a defined set of actors whose rights, duties and legal positions are governed by the statute and the Agreement it approves.

• The Company. Defined by reference to clause 1 of the Agreement (s 3), the Company is the private party to which leases, licences, easements and other titles are to be granted and which is required to enter into the bond referenced in the Agreement and in s 10. The Act directly imposes liabilities on the Company: failure to comply with certain Agreement provisions gives rise to a debt recoverable by the Commonwealth (s 10(1)).

• Assignees of Company rights. Where the Company assigns rights under the Agreement and the assignee enters into a substituted bond, the assignee becomes liable in the same terms as the Company for non‑performance of the obligations covered by subclauses (4) and (5) of clause 5 (s 10(2)). The assignee’s bond is conditioned to be void only if the assignee observes and carries out the specified provisions (s 10(2)(b)-(c)).

• The Commonwealth. The Commonwealth is both a contracting party to the Agreement and an actor with grant power under this Act. The Commonwealth may grant licences, easements and other titles to the Company under s 6(1), and is a specified person in relation to acts it is to do under the Agreement (s 9(2)).

• The Minister and the Administrator. The Minister is given power to grant territorial leases (including special mineral and special purposes leases) and, together with the Administrator, is subject to the consistency obligation to exercise Territory powers in a way consistent with the Agreement (s 5(1)-(2); s 6). The Minister’s power to vary or renew leases for the purpose of giving effect to the Agreement is expressly preserved (s 6(3)-(4)). The Minister also has the role of consenting to floating-charge style mortgages under clause 16 of the Agreement, the only consent required under s 7(1)(b).

• Third-party secured creditors. Entities taking mortgages or charges over Agreement titles are directly affected by the Act’s treatment of floating-charge style securities. A mortgage or charge in the “floating charge” form consented to by the Minister under clause 16 and given by the Company over Agreement titles will not require additional approvals (s 7(1)) and will not be rendered ineffective as an equitable charge by lack of other approvals or non-registration (s 7(2)).

• Courts and practitioners. The Act changes evidentiary and substantive positions in litigation in respect of the bond: the bond amount is statutorily “deemed” to be a genuine pre-estimate and the usual defences that it is a penalty or that damages were less than the bond are excluded (s 10(3)). Courts are accordingly constrained by statute in bond-recovery litigation.

• Holders or applicants under Territory and other laws. The Act affects how the Mining Act 1939 and the Special Purposes Leases Act 1953 apply to Agreement titles, by rendering those Acts applicable to Agreement titles “subject to this Act and the provisions of the Agreement” (s 11). Thus holders or applicants under those Acts must operate within the Agreement’s and this Act’s parameters.

• The law of the Territory and its statutory regime. The definition of “statute” in s 3 includes Ordinances and South Australian State Acts in force as Territory law. Section 12 gives this Act primacy over inconsistent statutes, rules or equity, thereby displacing other rules to the extent of inconsistency.

Practical who-pays and who-decides points: the Company (and assignees) pay the bond sums and must comply with the Agreement’s performance obligations (s 10). The Commonwealth (and Minister/Administrator at Territory level) make executive decisions under territorial statutes and are legally obliged to act consistently with the Agreement (s 5). Creditors relying on security over Agreement titles must secure the Minister’s consent under clause 16 to avoid further approvals (s 7(1)). Where the Agreement requires bond substitution on assignment, assignees must provide that bond or become directly liable (s 10(2)).

The Act sets out precise duties for public decision-makers and private parties, and it creates or confirms certain rights in property and security treatment.

Duties imposed on public decision-makers

• Consistent exercise of territorial powers. The Minister and the Administrator must exercise their powers under Territory laws in relation to the Company consistently with the Agreement (s 5(1)). The subsection is framed as an ongoing statutory duty and is not limited to a single action. Subsection (2) emphasises that this duty extends specifically to the special mineral lease defined in clause 1 of the Agreement and “all leases, licences, easements and other titles to be granted to the Company pursuant to subclauses (2) to (6) inclusive of clause 4 of the Agreement” (s 5(2)(a)-(b)).

• Use of power to grant and adjust leases/titles. The Minister has express authority to grant special mineral and special purposes leases and to vary or renew them for purposes of giving effect to clause 4 or 6 of the Agreement or to fulfil covenants in the lease form contained in the Agreement (s 6(1), (3)-(4)). The Commonwealth may grant and renew licences/easements/titles for the purpose of giving effect to clause 4 (s 6(1), (5)). These are duties-plus-discretion: the Act authorises certain acts and requires consistency with the Agreement.

Duties on the Company and assignees

• Bond and performance obligations. The Company, upon entering a special mineral lease and the bond contemplated by the Agreement, is liable to pay the bond sum if it fails to observe and carry out the provisions on its part in subclauses (4) and (5) of clause 5 of the Agreement (s 10(1)). The assignee who substitutes a bond on assignment is analogously liable if the assignee does not perform (s 10(2)). The bond sum is recoverable as a debt (s 10(1)-(2)).

• Mortgage consent and form. The Company can grant mortgages or charges in floating-charge form over Agreement titles but only with the consent of the Minister pursuant to clause 16; where given with such consent they will not require other approvals (s 7(1)(a)-(c)). The statute also preserves the effectiveness of such mortgages as equitable charges irrespective of other approvals or registration (s 7(2)(a)-(b)).

Rights created or confirmed

• Title effectiveness according to terms. Any lease, licence, easement or other title granted under s 6 “has effect according to its terms” (s 6(2)). Where a lease is varied or renewed under the powers in s 6, it takes effect according to the varied or renewed terms (s 6(6)). This places significant emphasis on the primacy of the written title terms for establishing rights and obligations.

• Enforceable bond sum. The bond sum is a debt due to the Commonwealth and recoverable by action (s 10(1)-(2)). Section 10(3) treats the sum as a genuine pre-estimate of damage and prevents the usual legal and equitable defences that the sum is a penalty or excessive, and excludes evidence to the contrary (s 10(3)(a)-(c)). That statutory deeming converts the bond into a legally enforceable monetary right of the Commonwealth with limited contestability.

• Security rights preserved. Mortgages or charges of the approved form (floating-charge style) are preserved as equitable charges and can be exercised (including transfers/assignments in exercise of power of sale) without requiring additional approvals besides clause 16 consent (s 7(1)-(2)). That confers a degree of predictability and priority-benefit for lenders and secured financiers provided the ministerial consent condition is satisfied.

Delegations and conferral of necessary power

• Section 9 supplies the “necessary power” to specified persons (Commonwealth, Minister, Administrator where a person is specified) to enable them to do acts they are required or permitted to do under the Agreement or a lease (s 9(1)-(2)). The subsection modifies the ordinary limits of statutory powers by ensuring that, where the Agreement designates an actor to perform a task, the statutory framework supplies any necessary enabling power.

Limitations and subject-to clauses

• Application of other Acts is expressly “subject to this Act and the provisions of the Agreement” (s 11). That creates a hierarchy: the Agreement and this Act can displace or modify rights and duties that would otherwise attach under the Mining Act 1939 or the Special Purposes Leases Act 1953 or other applicable law (s 11(a)-(c)), effectively channeling how those Acts operate in respect of the Agreement titles.

Taken together, the statutory duties place the burden on public officeholders to implement the Agreement through available powers, while private parties (Company and assignees) face express financial liabilities embodied in the bond and statutory treatment of security, and financiers obtain statutory assurances about the effectiveness of mortgage-style security where ministerial consent is obtained.

The Act embeds a narrowly constructed enforcement regime centred on the bond and civil recovery, and it removes certain defences and equitable interpositions in proceedings for bond recovery.

Civil recovery and characterisation as debt

• If the Company fails to observe and carry out the specified provisions on its part of subclauses (4) and (5) of clause 5 of the Agreement after being granted the special mineral lease and after entering the bond, the Company is liable to pay the sum in which it acknowledges itself in the bond; that sum is “a debt due to the Commonwealth” and may be recovered by action in any court of competent jurisdiction (s 10(1)). The statutory language frames recovery as ordinary debt recovery, not as a regulatory fine, referencing normal civil courts and remedies.

• The same recovery route applies to assignees who substitute a bond and then fail to perform the same obligations; the assignee is similarly liable to pay the sum it acknowledged itself in the bond, and that sum is recoverable as a debt (s 10(2)).

Deeming of bond amount and exclusion of penalty defences

• Section 10(3) contains three tightly worded procedural and substantive limits on contesting the bond sum:
  • The sum is “deemed to be a genuine pre-estimate of the damage suffered and recoverable by the Commonwealth” in respect of the failure or omission (s 10(3)(a)).
  • It is not competent for a defence to plead that the damage suffered and recoverable was less than that sum, or that the sum or any part of it is a penalty or penal damages (s 10(3)(b)(i)-(ii)).
  • Evidence tending to prove those matters is not to be led or admitted (s 10(3)(c)).

These provisions alter standard litigation positions by excluding a common equitable and statutory route of defence in contractual liquidated-damages and penalty disputes. The Act thus reduces the available lines of contest in bond enforcement proceedings.

Mortgage enforcement and transfer

• Section 7 allows mortgages or charges of the specified floating charge form (with the required ministerial consent under clause 16) and provides that transfers or assignments in exercise of any power of sale contained in such a mortgage or charge do not require approvals other than clause 16 consent (s 7(1)). That facilitates enforcement and realisation by secured parties, subject to the ministerial consent prerequisite.

• Section 7(2) shields such mortgages from being considered ineffectual as equitable charges by reason of missing approvals or lack of registration under the Act that grants the underlying title. That reduces the scope for equitable invalidation of security for technical registration or approval failures.

Interaction with other enforcement regimes

• The Act does not itself create criminal offences or administrative penalties beyond contractual liability and debt recovery. Enforcement operates through civil action for debt (s 10). The Act expressly makes the Mining Act 1939 and the Special Purposes Leases Act 1953 applicable to Agreement titles “subject to this Act and the provisions of the Agreement” (s 11(a)-(b)), which preserves enforcement regimes under those Acts insofar as they are not inconsistent with this Act or the Agreement.

• The statutory prevail clause (s 12) means that, where contradictions arise between this Act and other statutes, rules or equitable practice, this Act will prevail to the extent of the inconsistency. That has enforcement implications where other statutes would, for example, constrain ministerial powers or alter remedies; such conflicting provisions are displaced.

Practical enforcement consequences

• The Commonwealth can sue to recover bond sums as debts in ordinary courts and will have the benefit of a statutory deeming that prevents the defendant from arguing the sum is a penalty or that actual loss was smaller (s 10). This simplifies the Commonwealth’s enforcement pathway and restricts contestability.

• Secured lenders who take approved mortgages have enhanced certainty that transfers under power of sale will not be subject to additional approvals and that equitable effectiveness is not defeated by non-registration or procedural lacunae (s 7). That increases realisation predictability for financiers.

• The Minister’s clause 16 consent is an operational bottleneck: without the consent contemplated in the Agreement, the statutory protections for floating-charge style mortgages in s 7 do not apply. The Act does not itself provide the content of clause 16; practitioners must consult the Agreement (Schedule/hard copy) for the precise consent mechanism.

The Act expressly sets out its relationship with Territory statutes, regulations and equity and provides cross‑references to specific Acts governing mining and special-purpose leases.

Definition of “statute” and territorial context

• Section 3 defines “statute” to mean an Ordinance or State Act of South Australia in force as a law of the Territory and includes regulations, rules and by‑laws made under an Ordinance or such a State Act (s 3). This definition confirms that the Act operates within the particular legal architecture of the Territory, where South Australian Acts and Ordinances have been applied.

Application of Mining Act 1939 and Special Purposes Leases Act 1953

• The Act makes the provisions of the Mining Act 1939 and regulations under it apply to a special mineral lease granted under the Agreement “as if it were a special mineral lease granted under that Act”, but subject to this Act and the provisions of the Agreement (s 11(a)). Equivalently, provisions of the Special Purposes Leases Act 1953 apply to special purposes leases under the Agreement “as if it were a special purposes lease granted under that Act”, subject to this Act and the Agreement (s 11(b)). This creates layered governance: mining-specific law applies but is subordinated to the Agreement and this Act.

Other applicable law and leases/licences/easements

• Subsection 11(c) provides that “the provisions of any applicable law other than this Act apply to and in relation to any other lease or any licence, easement or other title granted pursuant to the Agreement if that other lease or that licence, easement or other title were granted under that applicable law.” This means existing applicable law governs, but again subject to the primacy of this Act and the Agreement. Practitioners must therefore read other statutory regimes in the light of this Act’s subject-to framing.

Conflict and supremacy

• Section 12 states that “This Act prevails over any inconsistent statute or rule or practice of law or equity.” The provision is broad: it displaces inconsistent statutory provisions, rules and equitable doctrines to the extent of inconsistency. The supremacy affects interpretive and remedial outcomes where other laws might otherwise afford different rights or constraints.

Interaction with registration and equitable rules

• Section 7(2) expressly addresses registration and equitable effect: a mortgage or charge of the floating-charge form is not rendered ineffectual as an equitable charge by the absence of any approval other than clause 16 consent, nor because it is not registered under any provision of the Act under which the title over which it is given is granted. That displaces ordinary legal or equitable arguments that might rely on registration defaults to invalidate equitable charges.

Agreement-triggered powers

• Section 9 supplies “such power as is necessary” to the Commonwealth, the Minister or the Administrator where the Agreement or a lease specifies the actor for doing an act. That provision functions as a statutory bridge when contractual obligations would otherwise be frustrated by lack of a specific statutory head of power. The definition of “lease” for this purpose is limited to special mineral or special purposes leases under the Agreement (s 9(2)).

Practical reading rule

• Because s 11 repeatedly qualifies the operation of other Acts by “subject to this Act and the provisions of the Agreement”, the correct statutory reading is that the Agreement and this Act sit at the apex for activities and titles arising from the Agreement. Consequently, where the Agreement provides differently from the Mining Act 1939 or other laws, the Agreement and this Act control.

Limitations in the printed reprint

• The Schedule states that the Agreement is set out therein, but the printed reprint references a “hard copy” for the Agreement. The detailed contractual terms (for example clause 16 consent mechanics, the substance of clause 5 subclauses (4) and (5), the Third Schedule bond form) are not reproduced in the provided text. Therefore, full interactional analysis for particular operational matters (registration mechanics, licensing conditions, or exact bond wording) requires examination of the Agreement text in the Schedule/hard copy referenced by the Act.

The reprint includes an endnotes section that documents the original Ordinance/Act, assent and commencement dates, and subsequent formal revision instruments and a later amendment reference. The factual amendment timeline in the Endnotes is as follows.

Founding instrument and commencement

• Mining (Gove Peninsula Nabalco Agreement) Ordinance 1968, Act No. 15 of 1968; assent date recorded as 22 May 1968; commenced 29 May 1968, Gazette No. 24, 29 May 1968, p 133 (Endnotes, List of Legislation).

Ordinances revision and formal amendments

• Ordinances Revision Ordinance 1973 (Act No. 87, 1973), assent 11 December 1973, commenced 11 December 1973 (s 12(2)) (Endnotes).
• Ordnances Revision Ordinance 1974 (Act No. 34, 1974), assent date 26 August 1974, with commencement back-dated to 11 December 1973 (s 3(2)) (Endnotes).
• Ordinances Revision Ordinance (No. 2) 1974 (Act No. 69, 1974), assent date 24 October 1974, commenced 11 December 1973 (s 3) (Endnotes).
• Ordnances Revision Ordinance 1976 (Act No. 27, 1976), assent date 28 June 1976. Commencement particulars for that instrument are recorded as: sections 1, 2 and 6 commenced 28 June 1976 (s 6(2)); sections 3 and 4 commenced 11 December 1973; and section 5 commenced 24 October 1974 (Endnotes).

General/formal amendments

• The Endnotes state that general amendments of a formal nature were made by the Ordinances Revision Ordinance 1973 (Act No. 87, 1973) to ss 3, 5, 7, 10 and 11 (Endnotes, General amendments paragraph). The reprint indicates these are formalmatic, not substantive, editorial changes to conform to revision instruments.

Later interpretive amendment

• The Endnotes record that general amendments of a formal nature were made by the Interpretation Legislation Amendment Act 2018 (Act No. 22, 2018) to s 11 (Endnotes, General amendments). The reprint identifies this as a formal amendment rather than a change in substance.

Amendment character

• The Endnotes describe many of the recorded changes as “general amendments of a formal nature.” The reprint therefore implies that the principal substantive architecture of the Act (approval of the Agreement, duties of Minister/Administrator, mortgage treatment, bond enforcement, application of other Acts and statutory primacy) has remained intact, with later instruments making formal or drafting updates, and providing commencement directions.

Practical consequence for practitioners

• Because the Agreement’s text appears in the Schedule and the reprint references a “hard copy” for the Agreement (Schedule), practitioners should consult the specific Schedule/Agreement version corresponding to the operative instrument and confirm whether any later amendments to the Agreement itself or to clause numbers have been made. The Act’s Endnotes supply a paper trail for the Ordinance-to-Act conversion and for formal revision instruments; they do not, in the provided text, record any substantive amendment to the core enforcement or mortgage-related clauses.

The provided text contains no reported cases, decisions or litigation history. The statute itself mentions courts only as venues for recovery (s 10(1)-(2): “may be recovered by action in any court of competent jurisdiction”), but it does not reference judicial decisions or precedents.

Where litigation is likely to arise, the Act itself highlights the legal issues that would be litigated, but the reprint does not supply any judicial resolution of those issues. The following points identify litigation topics that the Act frames and that would be the likely subjects of future court proceedings, each referenced to the relevant statutory text:

• Enforcement of the bond as debt (s 10(1)-(2)). Litigation under the Act will likely involve the Commonwealth seeking to recover the bond sum as a debt. Because s 10(3) deems the bond sum to be a genuine pre-estimate of damage and excludes penalty defences and evidence to the contrary, most litigation under s 10 will be confined to jurisdictional or procedural defences, validity of the bond, or challenges to whether the factual prerequisites for recovery were met (for example whether the Company or assignee in fact failed to observe the particular provisions of subclauses (4) and (5) of clause 5 of the Agreement). The reprint does not report any judicial interpretation of s 10(3)’s scope.

• Interpretation of “consistently with the provisions of the Agreement” (s 5). Courts may be asked to resolve disputes about whether Ministerial or Administrator exercise of a power was consistent with the Agreement. The Act imposes the consistency duty but the reprint supplies no judicial gloss on its boundaries.

• Scope and effect of the “necessary power” conferral (s 9). Litigation could arise over whether a specified person was conferred sufficient statutory power to perform acts required by the Agreement or lease, and whether s 9’s backstop power displaces ordinary limits on public powers. The reprint does not catalogue any cases deciding the scope of s 9.

• Validity and priority of floating-charge style mortgages (s 7). Disputes could concern whether a mortgage or charge satisfied the requirement of being “in a form commonly known as a floating charge,” and whether the Minister’s consent pursuant to clause 16 was properly obtained. The Act removes certain technical objections (for example, non-registration) to the equitable effectiveness of such security, but litigation could arise over whether requirements in clause 16 were met or whether the mortgage was properly exercised.

• Validity of prohibitions on partition and orders for sale (s 8). Litigation may test the permitted reach of s 8 in circumstances involving competing proprietary claims, family or co‑ownership disputes, or third-party enforcement actions. The statute’s explicit bar on partition and on orders under the Partition Act 1881 modifies the usual remedies and could raise legal questions about the limits of those bars, but no judicial treatment is included in the reprint.

• Interaction with other statutes and possible conflict (s 11-12). Litigation could occur to determine whether specific provisions of the Mining Act 1939 or the Special Purposes Leases Act 1953 are displaced or modified by this Act or the Agreement in particular factual contexts. Section 12’s prevail clause invites disputes about scope of inconsistency and the proper exercise of statutory interpretation where provisions are in tension.

Because the reprint does not provide any reported decisions, practitioners must search external case law databases or court records for any judicial consideration of the Act or the Agreement if litigation history is required. The Act itself prescribes the primary legal hooks and limits but leaves factual enforcement and interpretive disputes to courts; none of the resulting decisions is cited or reproduced in the provided text.

The Act contains several statutory mechanics and drafting features that can produce unexpected legal consequences if overlooked. Practitioners and clients should note the concrete traps that follow directly from the text.

Bond enforceability and exclusion of penalty defence (s 10(3))

• The bond sum is statutorily “deemed” to be a genuine pre-estimate of damage and defendants are barred from pleading that the sum is a penalty or that actual damage was less than the bond. Evidence to show otherwise is excluded (s 10(3)(a)-(c)). Practitioners must therefore not rely on typical contractual penalty arguments in defending a recovery action under s 10. The Act transforms what might otherwise be a liquidated damages clause into a statutoryly enforceable debt with limited means of contest.

Minister’s clause 16 consent as gatekeeper for floating-charge protection (s 7)

• Section 7’s protections for floating-charge style mortgages apply only where the form is “commonly known as a floating charge” and it is “consented to by the Minister pursuant to clause 16 of the Agreement” (s 7(1)(a)-(b)). If the mortgage or charge does not meet that form or the ministerial consent under clause 16 is absent or defective, the statutory assurances in s 7 may not apply. Practitioners should check the clause 16 consent procedure in the Agreement (Schedule/hard copy) before relying on s 7 protections.

Non-registration does not render equitable charge ineffectual (s 7(2)(b))

• Section 7(2)(b) states that the mortgage or charge “shall not be rendered ineffectual as an equitable charge ... because the mortgage or charge is not registered under any provision of the Act under which the lease, licence, easement or other title ... is granted.” That is a strong provision protecting the equitable nature of the security, but it does not necessarily mean that all statutory priority or registration rules are neutralised for all purposes. Registration might still have other statutory consequences outside the limited protection in s 7(2); the reprint does not say that registration is irrelevant to every regime or third-party inquiry.

Prohibition on partition and sale orders (s 8)

• Titles granted or assigned under the Agreement are barred from being partitioned or subject to sale orders under the Partition Act 1881 (s 8). This can prevent co-owners or claimants from seeking typical partition remedies; clients who expect to exercise such remedies should be alerted that Agreement titles bear statutory restraint.

Titles effective according to terms and variation power (s 6(2), (3), (6))

• Any title granted under s 6 “has effect according to its terms” (s 6(2)), and if varied or renewed pursuant to s 6 it has effect according to its varied or renewed terms (s 6(6)). The Minister’s power to vary/renew for the purpose of giving effect to clause 4 or 6 of the Agreement (s 6(3)-(5)) means that the Minister can alter fundamental title provisions if required by the Agreement; private parties should not assume absolute security of existing terms without reference to s 6‑authorised variations.

“Subject to this Act and the provisions of the Agreement” caveat (s 11)

• The Mining Act 1939 and the Special Purposes Leases Act 1953 apply to Agreement titles only “subject to this Act and the provisions of the Agreement” (s 11). Where the Agreement departs from those statutes, the Agreement and this Act control. Parties accustomed to relying on the more familiar terms of the Mining Act or Special Purposes Leases Act should verify where the Agreement modifies or displaces those statutory defaults.

Agreement text not reproduced in reprint (Schedule/hard copy)

• The Schedule in the provided text refers readers to a “hard copy” for the Agreement. Many operational details are embedded in clauses of the Agreement (for example clause 16 consent mechanics, clause 5 subclauses (4) and (5), the First and Third Schedules to the Agreement). Failure to consult the actual Agreement text risks missing essential obligations, conditions precedent, timing rules and consent procedures that determine liability and enforceability under the Act.

Statutory supremacy and uncertainty in conflict (s 12)

• The explicit supremacy clause (s 12) displaces inconsistent statute or equitable practice, but the boundaries of “inconsistency” can be contested. Absent judicial guidance in the reprint, parties should be cautious about asserting that other statutes or equitable principles apply in ways inconsistent with this Act.

Assignment and substituted bond duty (s 10(2))

• Assignment of rights under the Agreement triggers a duty on assignees to enter into a substituted bond in the form required by the Agreement; otherwise the assignee remains liable for the bond sum (s 10(2)(a)-(c)). Practitioners advising on assignments must ensure the bond substitution occurs and is in the correct form.

“Necessary power” provision may expand statutory competence (s 9)

• Section 9 confers whatever power is necessary to specified persons to do acts required or permitted under the Agreement or a lease. This can expand executory capacity beyond ordinary statutory heads of power. Parties relying on a particular statutory grant or seeking to challenge a purportedly ultra vires act should be mindful that s 9 operates as a statutory authorisation tool.

Practical upshot: do not assume ordinary common law or statutory defences or remedies apply in the usual way to Agreement titles, bonds or securities; instead, check the Agreement’s clauses (Schedule/hard copy) and the specified statutory sections (notably ss 5, 6, 7, 9, 10 and 11) for modified rules.

Compliance under this Act involves both the Company and public officials taking steps to ensure contractual and statutory preconditions are satisfied, and that titles, securities and bonds are created and administered in accordance with the Act and the Agreement. The list below sets out concrete compliance actions grounded in the Act’s text.

For the Company (and prospective assignees)

• Enter and perform the bond as required by the Agreement. The Act makes non-performance of the obligations described in subclauses (4) and (5) of clause 5 of the Agreement actionable as debt recoverable by the Commonwealth (s 10(1)). Compliance therefore requires an accurate understanding of those subclauses in the Agreement and operational measures to ensure the Company meets its obligations.

• If assigning rights under the Agreement, ensure the assignee executes a substituted bond in the form required by the Agreement (s 10(2)(b)). If the assignee substitutes the bond and still does not perform, the assignee will be liable to pay the bond sum as a debt (s 10(2)(c)). The Company and potential assignees must therefore document assignment and bond substitution carefully and retain evidentiary proof of substitution.

• For financiers and secured creditors intending to take mortgages or charges: obtain the Minister’s consent under clause 16 of the Agreement (s 7(1)(b)). The statutory protections for floating-charge form security (no need for other approvals; resilience against non-registration) are conditional on that consent. Confirm via the Agreement (Schedule/hard copy) the precise form and procedure for ministerial consent.

• Structure security with awareness of s 7(2). Although s 7(2) preserves the equitable effect of authorised floating charges despite non-registration, prudence suggests completing any available registry formalities to protect priority and notice positions outside the narrow protective scope of s 7.

• Do not rely on partition or sale orders. Titles under the Agreement are not to be partitioned or subject to sale orders under the Partition Act 1881 as applied to the Territory (s 8). Agreements among co-owners should reflect this statutory constraint and alternative dispute‑resolution or buy-out provisions should be considered.

For the Minister/Administrator/Commonwealth

• Exercise territorial powers consistently with the Agreement. The Minister and Administrator must exercise powers under Territory laws in relation to the Company consistently with the Agreement (s 5(1)). Ensure internal decision‑making, delegations and statutory instruments are aligned with Agreement obligations and that record-keeping evidences that consistency.

• Make grants, variations and renewals only in the terms allowed by s 6. Where a special mineral lease is to be granted, varied or renewed, exercise powers under s 6(3)-(4) and ensure the variation or renewal is recorded to have effect according to its terms (s 6(6)). For Commonwealth-granted licences/easements/titles, ensure renewals for the purpose of giving effect to clause 4 are executed under s 6(5) and properly documented.

• Administer clause 16 consent process with clear standards. Because s 7 identifies the Minister’s clause 16 consent as the sole additional approval necessary for floating-charge style mortgages, the Minister should have transparent criteria and processes to issue the consent pursuant to clause 16, and maintain a register or file noting consents granted to reduce disputes about whether s 7 protections apply.

• Ensure bond enforcement actions comply with s 10 procedures. When pursuing recovery, the Commonwealth should ensure that claims fall strictly within the operation of s 10 (that is, based on the Company’s failure to observe subclauses (4) and (5) of clause 5), and ensure court pleadings invoke the Act’s deeming provisions (s 10(3)). As s 10(3) excludes certain evidence and defences, procedural steps should address the limited scope of defendant challenges.

For title and lease administration under other Acts

• When applying the Mining Act 1939 and the Special Purposes Leases Act 1953 to Agreement titles, ensure that applications of those Acts are read “subject to this Act and the provisions of the Agreement” (s 11). Administrative processes under those Acts should accommodate any different terms or procedures established by the Agreement or this Act.

Record-keeping and evidentiary practice

• Keep contemporaneous records of consents, bond forms, substituted bonds on assignment, variations and renewals of leases, and any ministerial reasons or advice related to exercising powers “consistently with the Agreement” (s 5). Because disputes are likely to turn on documentary proof of compliance or authorisation, robust records reduce litigation risk.

Consult the Agreement text in the Schedule/hard copy

• Multiple operative provisions in the Act refer to clauses and schedules of the Agreement (for example clause 1 definitions, clause 4 titles, clause 5 subclauses (4) and (5), clause 16 consent, First and Third Schedules to the Agreement). The Act’s operation depends on the content of those clauses. Compliance therefore requires reviewing the Agreement in its authoritative form (Schedule/hard copy) to determine precise contractual duties, timing, forms of bond and consent processes.

Practical checklist

• For Company: confirm bond entered, meet performance obligations in clause 5 subclauses (4) and (5), secure Minister consent under clause 16 for any intended floating-charge security, document assignments and substituted bonds.
• For financiers: confirm ministerial consent drafted in accordance with clause 16, seek written confirmation of statutory protections under s 7, consider registration where appropriate despite s 7(2).
• For Minister/Administrator: implement administrative procedures to ensure consistency with the Agreement (s 5), document variations/renewals under s 6, manage clause 16 consent process transparently, and coordinate with Crown law advisers regarding s 9 “necessary power” questions.
• For legal teams: obtain and review the Agreement text from the Schedule/hard copy before advising, and be aware that s 10 restricts typical penalty defences in bond enforcement.

Following these steps keeps conduct aligned with the statutory duties and mitigates the principal statutory risks created by the Act’s enforcement, title and security provisions.