Mobil Lubricating Oil Refinery (Indenture) Act 1976

The Act and the Indenture in the Schedule create and operate around a small set of recurring legal and commercial concepts. Those concepts determine how charges, rights and obligations are calculated, who can assign them, and how the State will step in financially.

Company and Indenture

• The Act defines "the Company" as Mobil Oil Australia Limited (s 3(1)), and imports the Indenture set out in Schedule 1 as the contractual document given statutory effect (s 3(1), Schedule 1 heading). Clause 1 of the Indenture supplies further definitions used throughout the Indenture (Schedule 1 cl 1(1)-(2)).

Conditional commencement and performance

• The Indenture is conditioned on Mobil constructing and operating a lubricating oil refinery of a specified minimum designed capacity (3 000 barrels/day) on the lube refinery site; until that is done, most clauses do not operate (Schedule 1 cl 3(1)-(2)). The Indenture also contemplated the State introducing a Bill to ratify it and provided a cut‑off date if Parliament did not do so (Schedule 1 cl 2(1)-(2)); the Act itself is that ratification (s 4).

Fixed and formulaic rates

• Section 5 prescribes precise amounts for council rates for the lube refinery site for specific historical years (for the years ending 30 June 2001-2004) and provides a two‑arm test for subsequent years. For each later year the rates payable are the lesser of: (i) the prior year’s payable amount increased by the CPI (All groups index for Adelaide) for the 12 months ending 31 March in that financial year; or (ii) a sum obtained by reference to a formula described in the Act, with variables defined (s 5(1)(b)(i)-(ii); s 5(3) definitions). Payment of the prescribed sums discharges the Company’s liability for council rates in respect of the site (s 5(2)).

Cargo service charges and port charging rules

• Section 6 makes the Company’s liability for inward and outward cargo service charges operate according to clauses 4-9 of the Indenture "as if those clauses were enacted in this Act" (s 6). Those Indenture clauses (Schedule 1 cll 5-9) define feedstock and finished product, treat petroleum carried between certain nearby Mobil sites as not distributed for charging purposes (cl 5), create an arrangement under which the State reimburses Mobil if total charges for certain years exceed prescribed amounts (cl 6), and provide exemptions from charges to the Minister for Transport for products produced at the lube refinery and loaded in certain ways (cl 7). Clause 8 limits inward cargo service charges at Port Adelaide unless additional harbour works and facilities are provided and used (Schedule 1 cl 8).

State reimbursement and thresholds

• The Indenture (Schedule 1 cl 6(1)-(1a)) obliges the State to pay Mobil the amount by which certain combined charges exceed a "prescribed amount" in specified years. The Indenture sets out a staged schedule of prescribed amounts for years up to 1996 (cl 6(1a)), and also contains a measurement rule excluding certain excess volumes (cl 6(2)-(3)).

Assignment, consent and liability

• The Indenture allows assignment or disposal of Mobil’s rights with the State’s written consent (Schedule 1 cl 12(1)-(2)); Mobil may have obligations performed by others but remains liable for failures (cl 12(3)). A special rule removes the need for consent where the assignee is a company more than 50% owned (directly or indirectly) by Mobil Oil Corporation (Schedule 1 cl 12(4)). The State must not arbitrarily or unreasonably withhold its consent (cl 12(5)). Consent by the State is deemed given if signed by the Premier or Acting Premier (cl 13).

Executive override power

• Section 11 gives the Governor power by regulation to dispense with, suspend or vary any legal provision (Act, by‑law, rule, regulation or other provision having the force of law) so far as necessary for carrying out the Indenture where, in the Governor’s opinion, that provision prevents or impedes implementation. The Governor may revoke or vary such regulations (s 11(1)-(2)). Regulations made under s 11 are deemed to have effect as if enacted in the Act.

Other operational rights and duties

• The Act grants a statutory entitlement to draw seawater adjacent to the refinery site for cooling and other uses (s 9), and applies an existing clause regarding pilotage and harbour and navigation charges to the Company (s 10, which refers to the Oil Refinery (Hundred of Noarlunga) Indenture Act 1958 formulation). The Indenture also requires Mobil to comply with "accepted modern oil refinery practice and standards" in design, erection, equipment and operation (Schedule 1 cl 3(3)).

Definitions and cross‑references

• The Indenture introduces technical terms that determine charge treatment, most importantly "lube refinery feedstock", "finished petroleum product", "cargo service charge", "the lube refinery site", and "the marine installations" (Schedule 1 cl 1(1)). The Act ensures expressions defined in Clause 1 of the Indenture bear the same meaning for the purposes of the Act (s 3(2)).

In short, the Act fuses a negotiated, project‑specific contractual regime into statute by prescribing payments and exemptions, imposing performance conditions, and providing a broad regulatory override to clear legal obstacles to implementing the Indenture. The principal recurring tradeoffs in the instrument are between certainty for Mobil (fixed rates, exemptions and reimbursements) and the State delegating or relinquishing certain revenue streams and statutory controls in defined situations.

Primary parties named in the Act and Indenture are the State of South Australia and Mobil Oil Australia Limited (the Company), but the Act also affects several categories of public and private actors concretely and predictably.

Mobil Oil Australia Limited and its corporate group

• The Act directly confers rights and imposes obligations on Mobil (s 3(1); Schedule 1). Mobil obtains statutory entitlements: to draw seawater adjacent to the refinery site for cooling and other uses (s 9; Schedule 1 cl 14(1)(c)), to use specified foreshore and marine installations subject to consents and P.R.A. consent (Schedule 1 cl 14(1)(a)-(b)), exemptions from certain port charges (Schedule 1 cll 7-8), and treatment of cargo service charges and potential state reimbursements (s 6; Schedule 1 cl 6). Mobil also has rights to assign its Indenture rights subject to State consent, with specified exceptions (Schedule 1 cl 12).

Local government (council) and ratepayers in the prescribed area

• The local council that has care of rates for the lube refinery site is affected because rates payable in respect of the site are prescribed amounts (s 5(1)). The Act prescribes specific dollar amounts for particular years and a mechanism for subsequent annual adjustments (s 5(1)(a)-(b)). Section 5(2) treats payment of the prescribed amounts as a discharge of all liability of the Company for council rates on the site; this limits both the council’s potential to recover higher rates and its taxing discretion in respect of that property. The defined "prescribed area" (s 5(3)) identifies land whose rates data feed into the formula for subsequent years.

State agencies, port authorities and the Minister for Transport

• Port and harbour authorities, and the Minister for Transport, are affected by the Indenture’s charging rules. Clause 7 of the Indenture expressly says no charge is payable to the Minister for Transport in respect of certain products loaded at marine installations or loaded at Port Adelaide when transported by pipeline to Port Adelaide and subsequently exported (Schedule 1 cl 7). Clause 8 limits inward cargo service charges at Port Adelaide absent additional harbour works and facilities (Schedule 1 cl 8). Section 10 applies an existing clause on pilotage and harbour and navigation charges to the Company (s 10). The legislative scheme therefore changes the incidence or timing of port‑related revenue streams that would otherwise be available to State authorities.

Petroleum Refineries (Australia) Pty. Limited (P.R.A.) and related Mobil sites

• The Indenture expressly references P.R.A., the P.R.A. refinery and Mobil’s Birkenhead Terminal and other Mobil‑owned sites within five kilometres (Schedule 1 cll 1(1), 5). The treatment of petroleum products when transferred between nearby sites is relevant to whether cargo service charges apply, and the Indenture’s definitions and rules directly affect how inter‑site movements are charged (Schedule 1 cl 5). The Indenture also refers to the P.R.A. refinery’s maximum yearly production capacity for certain charge exclusions and certifications (Schedule 1 cl 6(2)-(3)).

Other port users and operators

• Operators who provide additional harbour works and facilities at Port Adelaide or other State ports are affected because the Indenture links liability for inward cargo service charges to whether those additional facilities are used (Schedule 1 cl 8(1)). Ports receiving lube refinery products by sea other than Port Adelaide remain able to levy inward cargo service charges at the standard bulk liquid scale (Schedule 1 cl 8(2)-(3)).

The Treasurer and Premier

• The Indenture requires certification and approval actions by the Treasurer in relation to maximum yearly production capacity (Schedule 1 cl 6(3)). Notices of State consent under the Indenture are to be signed by the Premier or Acting Premier to be deemed duly given (Schedule 1 cl 13). The State also has an obligation to pay excess cargo charges where they exceed prescribed amounts (Schedule 1 cl 6(1)). Section 7 of the Act appropriates General Revenue for State payments required under the Indenture (s 7).

Owners and occupiers of rateable property in the prescribed area

• The formula supplied for subsequent years in s 5(1)(b)(ii) relies on variables A-D, which involve the total amount payable to the council and the number of rateable properties within the prescribed area. Those variables directly connect how the council’s overall rating base in the prescribed area moves to the amount payable by Mobil under the formula. Thus, changes in the local rating base affect the ceiling on Mobil’s rates under the Act.

Judicial and regulatory actors

• The Governor obtains the power to make regulations dispensing with any Act or by‑law to the extent necessary for the Indenture (s 11). That power makes the instruments and decisions of regulators and local authorities potentially subject to being suspended or varied by regulation, affecting regulatory predictability.

Other potential assignees and purchasers

• Any person who receives an assignment or other disposition of Indenture rights from Mobil (Schedule 1 cl 12) is affected because they step into the contract rights and obligations, but their rights require the State’s written consent in most cases. The exception for companies more than 50% owned by Mobil Oil Corporation alters who can be aggregated in corporate reorganisations without needing State consent (Schedule 1 cl 12(4)).

In sum, the Act affects Mobil and its group, the local council and local ratepayers through rate setting and data inputs, State port authorities and the Minister for Transport through charge exemptions and limitations, the Treasurer and Premier via certification and consent functions, potential assignees of Mobil’s contractual rights, and regulatory decision‑makers because of the Governor’s regulation power to override existing law for implementation. Those effects are created by the Act’s specific provisions rather than by general administrative change; each affected actor’s legal position is altered in identifiable clauses (notably s 5; s 6; s 9; s 11; Schedule 1 cll 5-14).

The Act and its Indenture convert negotiated commercial arrangements into statutory duties and rights. Below are the principal obligations, entitlements and operational instructions, with the specific source clauses.

State duties and authorisations

• Ratification and execution: The State has authorised, empowered and is required to do all things necessary or expedient for carrying the Indenture into effect (s 4(2)). The Indenture itself recorded the State’s intention to introduce a Bill to ratify the Indenture (Schedule 1 cl 2(1)).
• Payment obligation: The State must pay to Mobil amounts where total cargo service charges exceed prescribed amounts in specified years, as governed by Schedule 1 cl 6(1)-(1a). Section 7 appropriates General Revenue for any moneys the State is required to pay under the Indenture (s 7).
• Consent and deemed consent: The Premier (or Acting Premier) may give written consent on behalf of the State; such consent is "deemed to be duly given" if given as a notice signed by the Premier or Acting Premier (Schedule 1 cl 13). The State must not "arbitrarily or unreasonably" withhold consent to assignment or disposition under cl 12(5).

Company rights and obligations

• Right to draw seawater: Mobil may draw seawater adjacent to the refinery site and use it for cooling and other lube refinery purposes notwithstanding any Act or law to the contrary (s 9; Schedule 1 cl 14(1)(c)).
• Charging and reimbursement rules: Mobil’s liability for cargo service charges is determined pursuant to indicated clauses of the Indenture and those clauses are to be treated as if enacted in the Act (s 6). The Indenture sets out definitions that determine whether goods are treated as distributed (Schedule 1 cl 5), exemptions from some port charges (cl 7), rules around Liverpool/Port Adelaide charges (cl 8) and the State reimbursement obligation where charges exceed prescribed amounts (cl 6).
• Assignment and continued liability: Mobil may assign rights with the State’s written consent and may cause obligations to be performed by others but remains liable for failures to perform (Schedule 1 cl 12(1)-(3)). No consent is required where the assignee is a company more than 50% owned by Mobil Oil Corporation (cl 12(4)).

Local government obligations and enforcement rights

• Receipt and discharge: Councils receiving the prescribed amounts have those payments operate as discharge of all liability of the Company for council rates in respect of the lube refinery site and lube refinery (s 5(2)). Councils may sue for and recover any rates due and payable as a debt due to it (s 5(4)).

Governor’s regulatory power

• The Governor may by regulation dispense with, suspend or vary any provision of an Act, by‑law, rule or regulation or other legal provision so far as necessary to carry out the Indenture when, in the Governor’s opinion, the provision prevents or impedes that carrying out; the Governor can revoke or vary such regulations (s 11(1)-(2)). Regulations under s 11 are to have full effect "as if they were enacted in this Act."

Operational standards

• Mobil must in the design, erection, equipment and operation of the lube refinery comply with "accepted modern oil refinery practice and standards" (Schedule 1 cl 3(3)). This imposes an industry standard duty, though the Act does not itself define the specific technical standards; it imports a contemporaneous industry benchmark.

Timing and payment dates

• Rates payments under s 5 are due according to section 5(4): for the year ending 30 June 1977 they were due at the expiration of the second month following commencement; for any subsequent year they are due on 1 February of that year. The Act states such rates may be sued for and recovered as a debt if unpaid (s 5(4)).

Definitions that shape entitlements

• Clause 1 of the Indenture defines terms central to charge calculation and entitlements, including "cargo service charge", "lube refinery feedstock", "finished petroleum product", "the marine installations" and "the lube refinery site" (Schedule 1 cl 1(1)). Section 3(2) of the Act says an expression defined in Clause 1 of the Indenture "shall, for the purposes of this Act," bear the meaning assigned there.

Limits and exceptions

• The Indenture expressly states that except as provided, it does not confer exemption from charges payable under State law for the use of port facilities or services provided by or on behalf of the State at such facilities (Schedule 1 cl 9). This clause preserves any chargeability not expressly dealt with elsewhere in the Indenture.

Conditions precedent and lapse

• The Indenture’s substantive clauses are subject to Mobil completing the construction of a lube refinery of at least 3 000 barrels/day; if Mobil does not complete the construction within the period allowed, those clauses (other than certain preliminary clauses) do not come into effect or have no effect (Schedule 1 cl 3(1)-(2)). Similarly, the Indenture provided for expiry if Parliament did not ratify the indenture by a specified date, but that condition is historical and was satisfied by enactment of the Act (Schedule 1 cl 2).

In short, the key duties require the State to facilitate and pay in certain circumstances (s 4; s 7; Schedule 1 cl 6), require Mobil to build and operate to specified technical standards and to comply with specified exemptions and charge rules (Schedule 1 cl 3; cll 5-9), and give the Governor the power to override other legal provisions to ensure the Indenture operates (s 11). The Act converts contractual conditions into statutory obligations and entitlements, producing legally enforceable duties on the State, Mobil and local authorities.

The Act contains a limited number of explicit enforcement mechanisms and leaves other enforcement to the ordinary legal remedies that attend statutory obligations and contractual undertakings. Specific enforcement and penalty mechanisms in the Act and Indenture are as follows.

Recovery of rates as a debt

• Section 5(4) provides that rates due and payable under the prescribed schedule may be "sued for and recovered by the council as a debt due to it." That provision establishes a civil enforcement route for councils to recover unpaid prescribed rates specific to the lube refinery site. Section 5(2) further provides that payment of the statutory prescribed amounts discharges all liability of the Company for council rates in relation to the lube refinery site and the lube refinery, which limits enforcement remedy options to recovery of those statutory amounts rather than broader rating mechanisms.

Contract and statutory enforcement for cargo charges and state payments

• The Indenture creates payment obligations on the State to reimburse Mobil where prescribed cargo charge thresholds are exceeded (Schedule 1 cl 6(1)). That is a contractual obligation given statutory effect by the Act. The Act’s appropriation provision (s 7) directs that moneys required to be paid by the State pursuant to the Indenture shall be paid out of General Revenue. Failure by the State to make such payments would be a breach of the instrument and potentially actionable; the Act does not itself prescribe criminal penalties for failure to make payments, but the contractual/statutory nature of the obligation suggests ordinary civil enforcement would be the remedy (Schedule 1 cl 6; s 7).

Regulatory power and limits

• Section 11 gives the Governor power to make regulations that can dispense with, suspend or vary any legal provision to the extent necessary to carry out the Indenture where, in the Governor’s opinion, that provision prevents or impedes carrying out the Indenture. The Act states that any such regulation "shall apply and have effect as if it were enacted in this Act" (s 11(1)). That creates a legislative‑level override mechanism rather than an enforcement penalty mechanism. The power to revoke or vary those regulations is explicitly given (s 11(2)). The Act does not itself set out administrative sanction mechanisms around the exercise of s 11; it is framed as a discretionary power to use regulation to enable implementation.

Assignment and continued liability

• The Indenture allows assignment of rights and obligations with State consent (Schedule 1 cl 12). Mobil remains liable for failure to perform obligations even where another company performs them (cl 12(3)). This preserves contractual enforcement against Mobil and creates statutory continuity of liability for original party defaults.

No express criminal penalties

• The Act does not create express criminal offences or fines. Penalties, where they exist, are civil in nature: the council may sue for rates (s 5(4)), and parties may enforce contractual/state payment obligations through ordinary civil proceedings. The Governor’s regulatory power is not framed as punitive; it is a means to enable enforcement of the Indenture by suspension or variation of conflicting legal provisions.

Implications for enforcement strategy

• For a council or for Mobil, the primary enforcement routes are civil: recovery of debt for unpaid prescribed rates, breach of contract remedies for failure of the State under the Indenture, and contract remedies against Mobil’s default where Mobil remains liable even if it delegates performance (Schedule 1 cl 12(3)). Port authorities retain ability to levy charges not expressly displaced by the Indenture (Schedule 1 cl 9), and any dispute over whether a particular cargo movement is exempt or liable under the Indenture or Act will be resolved by reference to the definitional and charging provisions in the Indenture (Schedule 1 cll 1, 5-9).

Potential for judicial review (not stated in Act)

• The Act does not address judicial review of the Governor’s exercise of the regulation power under s 11. Because s 11 ties action to the Governor’s opinion that a provision "prevents or impedes" carrying the Indenture into effect, and grants broad scope to dispense with other laws, that dimension may give rise to legal challenge in practice. The Act itself does not create internal administrative appeal mechanisms regarding use of s 11; remedy would be by recourse to administrative law challenges in court (text: s 11(1)-(2)). The Act does not specify time limits or procedural forms for bringing challenges to such regulations.

Overall, enforcement under the Act is achieved largely through civil mechanisms (debt recovery; contractual enforcement; state appropriation and payment obligations), with the Governor’s regulation power serving as a non‑penal but potent legal mechanism to ensure the Indenture’s operation by suspending conflicting laws where necessary (s 11; s 7; s 5(4); Schedule 1 cl 6(1)).

The Act and the Indenture deliberately modify or displace particular statutory regimes and local regulatory powers to give effect to the negotiated arrangements for the lube refinery. The interplay with other laws is explicitly addressed in several places.

Direct statutory displacements and overrides

• Local government rates: Section 5 contains an express override: "The foregoing provisions of this section shall have effect notwithstanding any other Act or enactment or any rate at any time declared or levied by any district or municipal council" (s 5(5)). That gives the Act primacy over other State or local rating statutes and any council levies for the property described.
• Cargo service charges: Section 6 states that "Notwithstanding any Act or other enactment, whether passed or enacted before, on or after the commencement of this Act, relating to inward or outward cargo service charges, the liability of the Company for inward or outward cargo service charges shall be as determined pursuant to clauses 4, 5, 6, 7, 8 and 9 of the Indenture and as if those clauses were enacted in this Act" (s 6). This provision expressly displaces other statutory cargo service charging regimes insofar as they would otherwise apply to the Company’s cargo movements dealt with in the Indenture.
• Water rights: Section 9 provides that "Notwithstanding any Act or law to the contrary, the Company may draw water from the sea at any place adjacent to the refinery site ... and use such water for cooling and other purposes of the lube refinery." This is an explicit statutory carve‑out from other laws that might regulate sea water extraction or foreshore use.

Imported provisions and cross‑Acts

• Section 10 directly imports Clause 8 of the Indenture set out in the Oil Refinery (Hundred of Noarlunga) Indenture Act 1958 and makes it apply to the Company "in the same manner and to the same extent as it applies and has effect to and in relation to the Company as defined in that Act." This is a cross‑statutory application linking different Indentures and ensuring parity of charging obligations and rights across related refinery instruments (s 10).

Regulatory override via Governor

• Section 11 provides a broad instrument by which the Governor may make regulations dispensing with, suspending or varying any provision of an Act, by‑law, rule or regulation, when in the Governor’s opinion such provision prevents or impedes the Indenture’s implementation (s 11(1)). Regulations under s 11 operate "as if they were enacted in this Act" and may be revoked or varied by the Governor (s 11(2)). That effectively enables temporary or permanent statutory‑level modifications of other laws to accommodate the Indenture. The Act does not limit which Acts or by‑laws may be dispensed with, nor specify procedural safeguards within the text.

Interaction with the Oil Refinery (Hundred of Noarlunga) framework

• The Indenture cross‑references the original Indenture embedded in the Oil Refinery (Hundred of Noarlunga) Indenture Act 1958 and relies on existing foreshore and marine installation arrangements, P.R.A. facilities and the statutory structure created for the earlier refinery project (Schedule 1 cll 1, 14). The Act is therefore part of a network of refinery‑specific indentures that together allocate rights and charges across the adjacent refinery developments.

Preserved rights and residual chargeability

• Clause 9 of the Indenture explicitly states that "Except as expressly provided, this Indenture does not confer any exemption from charges payable under the law of the State for the use of port facilities, or services provided by or on behalf of the State at such facilities" (Schedule 1 cl 9). This confirms that the Indenture and the Act displace only what is expressly displaced; otherwise normal statutory charging regimes remain in force.

Ancillary legal effects

• The Act includes an appropriation (s 7) so that the State’s payment obligations under the Indenture are to be met from General Revenue. This ties the financial obligations arising under the Indenture into ordinary public finance law and appropriation practice.
• Where the Act or Indenture refers to other statutory definitions or provisions (for example the Indenture’s definition of "Consumer Price Index" or the reference to Port Adelaide's meaning in the Harbors and Navigation Act 1993 as substituted), those cross‑references import the content of other statutes and their amendments as relevant to calculation or interpretation (Schedule 1 cl 1; legislative history notes indicating substitution of Port Adelaide definition).

Limits of interaction in the text

• The Act establishes priority in identified areas (rates, cargo charges, water draw) but otherwise leaves general enforcement, licensing and regulatory regimes intact except where regulations are made under s 11. The Indenture also contains delegation and assignment rules (Schedule 1 cl 12) which may interact with corporations law and property transfer processes, but those interactions are not spelled out in the Act.

Consequences for regulated parties

• The combined effect is that the Company’s legal entitlements and liabilities with respect to local rates, certain cargo and port charges, foreshore and seawater use, and assignment/consent are to be governed primarily by this Act and the Indenture clauses applied in it, rather than by the generally applicable statutory regimes, unless the Act says otherwise. Where the Act says "notwithstanding" (s 5; s 6; s 9), it signals statutory supremacy in those limited domains. The Governor’s power to make regulations under s 11 creates an additional route for adapting or temporarily suspending other legal provisions when the State determines it is necessary to give effect to the Indenture.

In short, the Act is a project‑specific statute that overrides aspects of general law in identified areas (rates, cargo service charges, water use) and links into an existing statutory Indenture network for refinery operations, while preserving other statutory charging regimes except where displacement is made explicit (Schedule 1 cl 9).

The legislative history attached to the Act records successive amendments and reprints, identifying which provisions were altered or substituted and on what dates. The key amendment milestones recorded in the provided legislative history are:

Original Act and commencement

• The Mobil Lubricating Oil Refinery (Indenture) Act 1976 (No. 78 of 1976) received assent on 9 December 1976 and commenced 24 February 1977 (Gazette 24.2.1977 p 491). The Act ratified and approved the Indenture dated 29 July 1976 (Schedule 1).

1986 amendments (Statute: No. 42 of 1986)

• The Act was amended by the Mobil Lubricating Oil Refinery (Indenture) Act Amendment Act 1986 (No. 42), with certain amendments commencing 1 February 1986 (s 2 of that amending Act). The 1986 amendments included:
  • Redesignation of s 6 as s 6(1) (42/1986 s 3).
  • Insertion of cl 6(1a) in the Indenture providing a schedule of "prescribed amounts" for specified years (Schedule 1 cl 6(1a) inserted by 42/1986 s 3).
  • Amendments to the definition of "lube refinery feedstock" and insertion of "finished petroleum product" and "the Consumer Price Index" in cl 1 of the Indenture (Schedule 1 cl 1 amended/inserted by 42/1986 s 3).
  • Amendment of Clause 4 of the Indenture by 42/1986 s 3 (the legislative history records cl 4 was amended by 42/1986 s 3 and later substituted by 1994 amendments).

1994 amendments (Statute: No. 74 of 1994)

• The Statutes Amendment (Oil Refineries) Act 1994 (No. 74) made a series of amendments that came into force largely on 1 December 1994. The legislative history lists the following adjustments:
  • Section 6 of the Act was amended (74/1994 s 5), with some subprovisions or functions noted as having been deleted or expired subsequently.
  • Multiple changes to the Indenture in Schedule 1: insertion of "cargo service charge" (74/1994 s 6(a)), substitution of the definition or reference to "Port Adelaide" (74/1994 s 6(b)), wide substitution of Clause 4 (74/1994 s 6(c)), amendment of Clause 5(1) (s 6(d)), amendments to Clause 6 (s 6(e), s 6(f), s 6(g)) including deletion of certain subclauses, substitution of Clause 7 (s 6(h)), and substantial amendments to Clause 8 including substitution of subclauses (s 6(i)-(m)). Clause 9 and Clauses 10 and 11 were also affected by 74/1994 s 6(n), including substitution and deletion of material. The legislative history notes some clauses were deleted because their function was exhausted.
  • Sch 2 was deleted as its function was exhausted.

2001 amendments (Statute: No. 70 of 2001)

• The Statutes Amendment (Mobil Oil Refineries) Act 2001 (No. 70) made further changes with commencement dates noted in the legislative history:
  • Part 3 (s 5) of the 2001 Act amended s 5 of the Mobil Indenture Act (6 December 2001). The legislative history table records that s 5(1) and s 5(2) were amended by 70/2001 s 5(a)-(d), with s 5(1) amended and s 5(2) amended, reflecting modernisation or updating of the rates schedule and related procedural matters.

2003 amendments (Statute: No. 44 of 2003)

• The Statute Law Revision Act 2003 (No. 44) made housekeeping amendments, including substitution of the Schedule 1 heading and omission of s 2 under the Legislation Revision and Publication Act 2002, with commencement on 24 November 2003. The long title was amended and certain historical provisions omitted as spent.

Deletions, expiries and reprints

• The legislative history notes that certain clauses or subclauses expired or were deleted where their function was exhausted, for example cl 4(7) expired and cll 10 and 11 were deleted in 1994 as their function was exhausted. The Acts Republication Act 1967 was applied to remove spent material. The history records three reprints: Reprint No. 1 (1 Oct 1991), Reprint No. 2 (1 Dec 1994), Reprint No. 3 (6 Dec 2001).

Specific clause amendments called out in the table

• The table in the legislative history itemises specific provisions amended and the instrument effecting the amendment. Selected examples include:
  • Clause 1 definitions updated across the amending Acts: "cargo service charge" was inserted in 1994 (74/1994 s 6(a)), "lube refinery feedstock", "finished petroleum product" and "the Consumer Price Index" were inserted or amended in 1986 (42/1986 s 3).
  • Clause 4 of the Indenture was amended in 1986 and substituted in 1994; certain subclauses expired in 1996.
  • Clause 6(1) was amended in 1986 and 1994; Clause 6(1a) was inserted in 1986 providing the "prescribed amount" schedule.
  • Clause 7 was substituted in 1994; Clause 8 underwent amendments and substitutions in 1994; Clause 9 was substituted in 1994.
  • Clauses 10 and 11 were deleted in 1994.

Interpreting the amendment schedule

• The legislative history therefore demonstrates an iterative pattern: initial enactment in 1976, a substantive package of amendments in 1986 that introduced CPI indexing and prescribed amounts (cl 6(1a)), substantial restructuring and modernization of charging and definitional provisions in 1994, and targeted amendments to the rates provisions in 2001. The 2003 Statute Law Revision Act removed spent material and updated the text for publication.

Practical consequence of amendments

• The amendments progressively modernised definitions (including CPI references), adjusted threshold and reimbursement mechanisms, updated port and charge references to reflect evolving port infrastructure and law (e.g., the Harbors and Navigation Act 1993 substitution for Port Adelaide), and removed clauses whose functions had been spent. Readers and practitioners must therefore consult the consolidated version of the Act and the Indenture as amended to determine the current legal text, because the legislative history shows substantial substitution and deletion activity over time.

Note on sources

• The legislative history notes that the published text may not reflect automatic updating of cross‑references to other instruments or offices, and advises consulting the Index of South Australian Statutes or legislation.sa.gov.au for further information. The Act as presented above records the key amendments and dates and signals areas where clauses were abolished or replaced.

The legislation and the Indenture, as supplied, do not include any reported cases or judicial determinations in their text. The source material (the Act and its legislative history) contains no case citations and no reported litigation. Therefore there is no direct litigation history embedded in the statutory material provided.

That said, the Act and Indenture contain multiple discrete points that could give rise to legal disputes were parties to litigate. The text itself identifies issues that would, in practice, be likely subjects of contention and which a court might be required to resolve. Highlighted potential areas of dispute, grounded in the Act’s provisions, include:

• Interpretation of definitional boundaries: The Indenture’s contractual treatment of whether a petroleum substance is "lube refinery feedstock" or a "finished petroleum product" will determine whether cargo service charges apply and the party responsible for them (Schedule 1 cl 1(1); cl 5). Disputes could arise over whether a substance meets the Indenture’s marketing specification criteria or whether a movement of product is properly characterised as distribution.

• Application of the five‑kilometre locality rule and "distribution" concept: Clause 5(1) of the Indenture treats petroleum products as not distributed while inside or en route to the lube refinery site, the P.R.A. site, or any other site owned by Mobil within five kilometres of the lube refinery site. Questions could arise about the geographic scope of the five‑kilometre rule, location of boundaries, or whether intermediate storage or pipeline use triggers distribution.

• Calculation of the prescribed amount and state reimbursement: Clause 6 establishes a state obligation to pay the amount by which combined charges exceed the prescribed amount for specified years. Disputes could arise over what should be included in the total amount paid under clause 4(1) of the Indenture and clause 9(1) of the original Indenture, the application of the exclusion in cl 6(2) regarding excess Mobil‑owned volume beyond 76% of P.R.A. capacity, or the correct application of CPI adjustments in the schedule (cl 6(1a)).

• Determination of harbour works and additional facilities: Clause 8 states that inward cargo service charges at Port Adelaide do not apply unless harbour works and facilities additional to existing works are provided and used. Litigation could concern whether specified harbour works qualify as "additional" for the purpose of triggering charges, the date baseline for "in existence at the time of the execution of this Indenture," and whether usage of such facilities has occurred.

• State consent and the "not arbitrarily or unreasonably" standard: Clause 12(1)-(5) creates a consent requirement for assignment and disposals with the State’s written consent, while cl 12(5) obliges the State not to "arbitrarily or unreasonably" withhold consent. Disputes may arise over whether the State’s refusal to consent met that standard, and whether the Premier’s signature system (cl 13) sufficed as a valid State consent.

• Governor’s regulatory power under s 11: Section 11 allows the Governor by regulation to dispense with, suspend or vary any provision of an Act, by‑law, rule or regulation as necessary to give effect to the Indenture. Litigation could focus on the extent and limits of that power, procedural fairness in adoption of regulations, or whether a particular exercise of power went beyond the "necessary" scope to carry out the Indenture. Because s 11 ties action to the Governor’s opinion that a provision prevents or impedes the Indenture, judicial review on grounds of jurisdictional error, bad faith, or Wednesbury unreasonableness (in Australian administrative law terms) might be pursued, though the Act itself does not create or exclude judicial review.

• Rates formula and prescribed area variables: Section 5(1)(b)(ii) sets out a rates formula with variables A-D linked to the council’s total rates and number of rateable properties in the prescribed area. Disputes could arise over accounting, calculation or classification of rateable properties, interpretations of the "prescribed area" boundaries (s 5(3)), or the applicable Consumer Price Index figure used under s 5(1)(b)(i).

• Delegation and continued liability: Clause 12(3) allows Mobil to have obligations performed by others but preserves Mobil’s liability for any failure to perform such obligations. Litigation might concern whether Mobil remains contractually liable when a delegate defaults, including issues of due diligence in delegation.

Because the statute itself does not report cases, anyone needing current litigation guidance should search South Australian case law and administrative decisions for any judicial consideration of these clauses. The Act’s text identifies the precise points likely to generate disputes but does not provide outcomes. Researchers and practitioners should therefore check court databases, tribunal records and government gazettes for any proceedings involving the Indenture, the State’s exercise of s 11, or disputes involving the rates and cargo charge mechanisms.

The Act contains several drafting and operational features that create potential pitfalls for practitioners, councils, the State and Mobil. Below are discrete "gotchas" identified from the text, each tied to the relevant clause.

1. Prescribed rates procedure and formulaic ceiling (s 5)

• The Act prescribes fixed dollar amounts for certain historical years and then sets a "whichever is the lesser" test for subsequent years (s 5(1)). Practitioners should note that the two alternatives are (i) the prior year’s payable amount increased by the CPI (All groups index for Adelaide) for the relevant 12‑month period; or (ii) an amount obtained "in accordance with the following formula" with variables defined in s 5(1)(b)(ii). The Act as supplied defines the variables A-D and X and S, but the formula line itself is not printed in the provided text. That omission in the supplied excerpt creates an interpretive risk: do not assume the internal algebraic relationship; consult the consolidated Act or official Gazette to obtain the precise formula text (s 5(1)(b)(ii); s 5(3) variables). Relying on an incomplete text may produce incorrect rate computations.

2. "Notwithstanding" overrides (s 5; s 6; s 9)

• The Act repeatedly uses "notwithstanding" language to override other Acts or by‑laws in important areas (s 5(5); s 6; s 9). Users should remember these are specific carve‑outs and do not provide general immunity from all other legal obligations. For example, cl 9 grants a sea water drawing right "notwithstanding any Act or law to the contrary" (s 9), but the Indenture still requires Mobil to comply with "accepted modern oil refinery practice and standards" (Schedule 1 cl 3(3)). Practitioners must identify which legal requirements remain relevant despite the "notwithstanding" wording.

3. Governor’s regulation power is broad and may be opaque (s 11)

• Section 11 gives the Governor power to suspend or vary any provision of an Act, by‑law, rule or regulation to the extent necessary to carry out the Indenture, based on the Governor’s opinion that the provision prevents or impedes carrying out the Indenture (s 11(1)). That creates executive flexibility but raises questions about scope, the standard of necessity, procedural limits, and the absence of explicit parliamentary veto or judicial constraint within the Act. Parties affected by such regulations should track any s 11 regulations in the Gazette and be aware that affected stakeholders might seek judicial review on ordinary administrative law grounds, although the Act does not state whether or how such review interacts with s 11.

4. Assignment consent mechanics and Deemed consent (Schedule 1 cll 12-13)

• The Indenture requires the State’s written consent for assignments, but cl 12(4) exempts assignments to companies more than 50% owned by Mobil Oil Corporation from needing consent. Clause 12(5) obliges the State not to "arbitrarily or unreasonably" withhold consent. The Indenture deems consent duly given if signed by the Premier or Acting Premier (cl 13). Practically, consents signed by the Premier have strong legal effect, but there is still potential for dispute over whether the State's refusal was arbitrary or unreasonable. Documentation and formal processes for consent requests should be carefully managed to avoid inadvertent triggering of consent disputes.

5. Exemptions are narrow and conditional (Schedule 1 cll 7-9)

• Clauses 7-9 create exemptions from some port or transport charges but they are fact‑sensitive: e.g. cl 7 exempts charges to the Minister for Transport for certain loadings; cl 8 excludes inward cargo service charges at Port Adelaide unless additional harbour works and facilities beyond what existed at the Indenture execution are provided and used. Those are conditional, not blanket, exemptions. Practitioners must be careful to document the exact logistics of loading/unloading and the facilities used, because small differences in unloading location or facility usage may change charge exposure.

6. Retained chargeability under clause 9 (Schedule 1)

• Clause 9 of the Indenture states that except as expressly provided, the Indenture does not confer any exemption from charges payable under State law. It is therefore dangerous to assume that the Indenture creates broad exemptions; only those exemptions expressly described apply. This limits the practical reach of s 6’s "notwithstanding" clause to the matters the Indenture expressly addresses.

7. Temporal conditions and expiration of clauses (Schedule 1 cll 2-3)

• The Indenture’s substantive clauses were conditional on Mobil constructing the lube refinery within a period allowed by the State, and included a cut‑off date for parliamentary ratification in the initial instrument (Schedule 1 cl 2(2); cl 3(1)-(2)). While those conditions were historically satisfied, practitioners should check whether any clause contains time‑limited obligations or expiry events; the legislative history shows clauses have been deleted or expired where spent, and modern practice requires consulting the consolidated text.

8. Multi‑site interaction and the five‑kilometre rule (Schedule 1 cl 5)

• Clause 5(1) treats petroleum products as not "distributed" when they are inside or on the way to Mobil‑owned sites within five kilometres. That five‑kilometre rule can have surprising effects on chargeability depending on pipeline routing, storage locations and temporary placement. Commercial planners must map physical logistics against the statutory definition zones carefully.

9. CPI measures and index references differ across clauses (s 5; Schedule 1 cl 1)

• The Act uses different CPI references in different places: s 5(1)(b)(i) uses the "Consumer Price Index (All groups index for Adelaide)," while the Indenture defines "the Consumer Price Index" as the "all groups index‑weighted average, eight capital cities" published under the Commonwealth Census and Statistics Act (Schedule 1 cl 1). Practitioners must be careful which CPI series applies to which calculation, as the Act imports the Indenture’s definition for the purposes of the Act (s 3(2) says expressions defined in Clause 1 of the Indenture bear the meaning assigned).

10. Incomplete reproduction of formula in provided text (s 5(1)(b)(ii))

• The provided text lists that the amount payable shall be "the sum obtained in accordance with the following formula" and then lists variable definitions (S, X, A, B, C, D), but the algebraic expression that ties those variables together is not shown in the supplied excerpt. This omission means the practitioner must consult the official consolidated Act text to see the precise formula and avoid miscalculation.

Mitigation steps

• Maintain contemporaneous copies: keep consolidated, gazetted versions of the Act and any regulations under s 11.
• Confirm the formula: do not compute s 5 amounts until the definitive formula and the relevant data for A-D are verified against council records and the consolidated statute.
• Log facility usage: for port charging purposes, document precisely where and how products are loaded/unloaded and whether additional harbour works were used.
• Plan for consent processes: when contemplating assignment or delegation, follow the Indenture’s consent procedure and seek the Premier’s signature where appropriate.
• Check CPI series: ensure the correct CPI index is applied to each clause’s calculation.

Those "gotchas" are matters of clause design and practical implementation: they are not errors in policy but points where compliance and interpretation require particular attention to text, records and Gazette notices.

Below is a practical compliance checklist tailored to the principal actors named in the Act: Mobil (the Company), the relevant local council, port authorities, and the State. Each item links to the controlling clause(s) so readers can locate the statutory source.

For the Company (Mobil Oil Australia Limited)

1. Confirm construction and operational preconditions
   • Ensure the lube refinery meets the minimum designed production capacity (3 000 barrels/day) required under the Indenture for substantive clauses to operate (Schedule 1 cl 3(1)-(2)). Retain engineering and commissioning certificates to evidence meeting the threshold.
2. Maintain operational standards
   • Document compliance with "accepted modern oil refinery practice and standards" in design, erection, equipment and operation (Schedule 1 cl 3(3)). Keep audits, third‑party certifications and compliance registers.
3. Rates payments and recordkeeping
   • Pay the prescribed amounts for council rates in accordance with s 5(1) and meeting the due dates: for subsequent years, payments are due on 1 February (s 5(4)). Maintain accounting records showing payment as discharge of council liability (s 5(2)). For historical or back years, confirm the amounts set by s 5(1)(a)-(ac).
   • If the formula arm (s 5(1)(b)(ii)) comes into play, obtain the definitive, consolidated formula and the council’s confirmed data for A-D, and document the computation and supporting evidence.
4. Cargo service charge procedures
   • Apply the charging rules in the Indenture for inward and outward cargo service charges (s 6; Schedule 1 cll 4-9 as applied). Maintain records demonstrating why a cargo movement is feedstock, finished product or not "distributed" (Schedule 1 cl 1; cl 5).
5. Track state reimbursements
   • Monitor annual charges and keep a running calculation of amounts paid under clause 4(1) and clause 9(1) of the original Indenture so as to identify if the total exceeds the "prescribed amount" for the year (Schedule 1 cl 6(1)-(1a)). Maintain documentation to support any claim for State payment.
6. Assignment and delegation compliance
   • When assigning Indenture rights or giving performance to third parties, obtain the State’s written consent unless the assignee falls within cl 12(4) (more than 50% owned by Mobil Oil Corporation). If seeking State consent, prepare a formal consent application, attach supporting documents, and request Premier signature where appropriate (Schedule 1 cll 12-13).
7. Marine and foreshore use
   • If drawing seawater or using foreshore/marine installations, ensure usage matches the statutory rights (s 9; Schedule 1 cl 14(1)(a),(c)). Obtain P.R.A. consent where required (Schedule 1 cl 14(1)(a)). Keep environmental and permitting documentation where overlapping regimes may still apply notwithstanding s 9.
8. Document facility usage
   • For determining whether inward cargo service charges apply (especially at Port Adelaide), maintain contemporaneous records showing whether additional harbor works and facilities (beyond those in existence at the Indenture execution date) were provided and used (Schedule 1 cl 8(1)).
9. Contest or monitor s 11 regulations
   • Monitor South Australian regulations for any s 11 instruments that affect Indenture implementation. If a regulation is made under s 11, retain a legal review of scope, effect and any grounds for challenge.

For the local council

1. Accept payments as discharge but verify computation
   • Treat receipt of prescribed amounts under s 5 as a discharge of the Company’s liability for council rates on the site (s 5(2)). Ensure monies are applied and recorded properly. If notified of computations under the formula arm, provide council data (A-D) used in calculation in a transparent manner.
2. Debt recovery procedures
   • Where the Company fails to pay prescribed amounts, the council may sue for recovery as a debt due (s 5(4)). Maintain invoices and demand notices and follow ordinary debt recovery procedures.
3. Data management for prescribed area
   • Keep accurate records of total rates payable in the prescribed area and the number of rateable properties (A, B, C, D in s 5(1)(b)(ii)). Provide those figures promptly when requested, and keep historical data archives to support formula calculations.

For port authorities and the Minister for Transport

1. Apply Indenture charging rules
   • Review cargo movements from the lube refinery and determine whether the Indenture’s exemptions or liabilities apply (Schedule 1 cll 5-9). Apply bulk liquid inward cargo service charge scales where clause 8(2)-(3) applies.
2. Record facility upgrades
   • Keep detailed records of harbour works and facilities added over time, including construction dates and usage logs, to determine when clause 8’s "additional facilities" condition is met for charging purposes.
3. Coordinate on claims for payments
   • Where a charge is levied under the Indenture, ensure collection and accounting follow the authorised procedures and note that certain charges may be subject to State reimbursement under Schedule 1 cl 6.

For the State and Treasury

1. Budget and appropriations
   • Ensure that budgets and appropriation frameworks accommodate potential State reimbursements under the Indenture (Schedule 1 cl 6(1); s 7). Section 7 appropriates General Revenue for the purpose and Treasury should allocate for contingent liabilities accruing under the Indenture’s reimbursement obligations.
2. Consent and governance process
   • When the State exercises consent under cl 12 or signs notices under cl 13, adopt a transparent internal process to evaluate assignment requests and record reasons to mitigate disputes over alleged arbitrary or unreasonable withholding (Schedule 1 cl 12(5)).
3. Use of s 11
   • If the Governor considers using s 11 to dispense with legal provisions, prepare statutory instruments carefully, publish them in the Gazette, and document the necessity and scope to facilitate administrative and judicial review if challenged (s 11(1)-(2)).

General compliance tips for all parties

• Consult the consolidated statutory text: Amendments across 1986, 1994, 2001, and 2003 materially changed definitions and clauses; verify the current, consolidated wording before action (legislative history).
• Preserve documentary evidence: Records of loading/unloading locations, pipeline transfers, inter‑site movements, foreshore usage, and facility construction are decisive in chargeability disputes.
• Clarify CPI indices: Different clauses reference different CPI series; ensure the correct CPI measure is used for each calculation (s 5(1)(b)(i); Schedule 1 cl 1).
• Legal review of s 11 instruments: Any regulation under s 11 should be reviewed for scope and legal risk; agencies and private parties should track Gazette notices.
• Seek early consents: When contemplating assignments or changes in operations that may affect Indenture rights, seek State consent proactively and obtain the Premier’s written sign‑off where necessary.

This compliance checklist maps legislative obligations to concrete operational tasks. Parties should adopt internal controls,financial modelling templates keyed to the prescribed amounts, documentation protocols for marine operations and foreshore usage, and formal approval and recordkeeping for assignments,so that statutory entitlements and duties are performed and evidenced in line with the Act and the Indenture.