Perth Market (Disposal) Act 2015 (Western Australia)

The Perth Market (Disposal) Act 2015 creates a statutory framework by which the State of Western Australia may dispose of the Perth Market Authority’s business, assets, liabilities and related securities, and for related transitional and consequential matters. Mechanically, the Act authorises the Minister to make a section 9 order directing the disposal of specified market assets (s 9). Once a section 9 order is in force, the Act permits a wide range of transactions and vehicles to effect the disposal, including companies, trusts and subsidiaries (s 10). For the practical transfer of rights and obligations the Act gives the Minister power to make transfer orders (s 21) that operate at a specified transfer time to transfer specified assets and liabilities, substitute parties to proceedings, and treat agreements and instruments as if references to the transferor were references to the transferee (s 22). Transfers effected under the transfer-order mechanism take effect by operation of the Act without the need for conveyance or other acts ordinarily required to transfer property or vary contractual parties (s 22).

The Act also contains implementation and administrative mechanics. The Minister must publish section 9 orders and transfer orders in the Gazette (s 9(1), s 21(2)); transfer orders can be expressed in general terms and may reference schedules that need not be gazetted but must be available for inspection for six months (s 9(2), s 21(4)). Registration and recording obligations are placed on the Minister and on relevant officials, and officials are required to record and register instruments necessary to show the effect of a transfer order (s 26). The Act declares certain Corporations Act displacement provisions for specific sections (s 20(4), s 25(5)). It also establishes rules governing confidentiality and disclosure for purposes connected with a section 9 disposal, and creates criminal penalties for unauthorised disclosure by bound recipients and secondary recipients (ss 28-29).

CrestWestern Australia

Perth Market (Disposal) Act 2015

Western Australia

Perth Market (Disposal) Act 2015

Contents

Part 1 — Preliminary matters

Short title 1
Commencement 1
Terms used 1
Purposes of section 9 disposal 3
Things on land 4
Assignable nature of things on land 4
Act binds Crown 4

Part 2 — Enabling disposal

Disposal of market assets authorised 5
Minister may order disposal of market assets 5
Effecting disposal 5
Disposal of land 6
Land subject to unregistered leases with terms exceeding 5 years 7
Approval of Planning Commission not required for leases with terms exceeding 20 years 7
Development and building work 7
Use as public market 9
Development condition relating to warehousing 10
Functions and powers of Minister 11
Functions and powers of Authority 11
Functions and powers of corporate vehicles 11
Directions by Minister 11

Part 3 — Implementing disposal

Division 1 — Transfer orders

Minister may make transfer orders 13
Consequences of transfer orders 15
Completion of transactions for this Division 16
Effect of arrangements internal to transferors 16
Delivery and access to records 16
Registration of documents 17
Correction of errors in transfer orders 18

Division 2 — Disclosure of confidential information

Authorised disclosure of confidential information 19
Offence of disclosing information 20

Division 3 — Other matters

Application of proceeds of disposal 20
Provision by State of indemnities and guarantees 21
Takeover by State of certain obligations 21

Part 4 — Provisions relating to corporate vehicles

Application of this Part 23
Assignee’s powers and duties 23
Application of written laws to assignee 23

Part 5 — Miscellaneous matters

Exemption from State tax 24
Restriction on other public markets 25
Effect of this Act on existing rights and obligations 25
No compensation payable 26
Regulations for the purposes of, or consequential on, section 9 disposals 26
Regulations 27

Part 6 — Repeal of Perth Market Act 1926 and related transitional matters

Division 1 — Repeal of Perth Market Act 1926

Repeal of Act 28
Arrangements to be made for Authority’s staff before repeal 28
Members go out of office 29

Division 2 — Transitional arrangements after repeal

Term used: Authority 29
Authority continued in existence for transitional purposes 29
Disposal of residual assets and liabilities 30
Application of Constitution Acts Amendment Act 1899 30
Application of Financial Management Act 2006 and Auditor General Act 2006 30
Application of Statutory Corporations (Liability of Directors) Act 1996 30
Abolition of Authority 31
Transitional regulations 31
Interpretation Act 1984 not affected 32

Part 7 — Other Acts amended

Constitution Acts Amendment Act 1899 amended 33
Financial Management Act 2006 amended 33
Statutory Corporations (Liability of Directors) Act 1996 amended 33

Schedule 1 — Central trading lot and central trading area

Division 1 — Central trading lot

Division 2 — Central trading area

Notes

Compilation table 36

Defined terms

Western Australia

Perth Market (Disposal) Act 2015

An Act to provide for the disposal of the whole or part of any business carried on by, or all or any of the assets or liabilities owned by or managed on behalf of the State by, the Perth Market Authority, and for related purposes.

The Parliament of Western Australia enacts as follows:

Part 1 — Preliminary matters

1. Short title

This is the Perth Market (Disposal) Act 2015.

2. Commencement

(1) This Act (other than Part 6 Division 2 and Part 7) comes into operation on the day after the day on which it receives the Royal Assent.

(2) Part 6 Division 2 and Part 7 come into operation on the day on which the Perth Market Act 1926 is repealed under section 42.

3. Terms used

In this Act, unless the contrary intention appears —

asset means property of any kind whether tangible, intangible, real or personal and includes (without limitation) —

(a) any chose in action, goodwill, right, interest or claim of any kind, whether arising from, accruing under, created or evidenced by or the subject of an instrument or otherwise and whether liquidated or unliquidated or actual, contingent or prospective; and

(b) a contractual right that is to be regarded as arising because of section 24(2);

Authority means the Perth Market Authority under the Perth Market Act 1926;

central trading lot means the land that, immediately before the commencement of this section, was the part of Lot 1002 on Deposited Plan 16227, Certificate of Title Volume 2129 Folio 88 that is shown hatched on the plan in Schedule 1 Division 1;

company means a company registered under the Corporations Act 2001 (Commonwealth);

corporate vehicle means —

(a) a company created in accordance with section 10(4) each security in which is held by a person specified in section 10(6); or

(b) a subsidiary under the Corporations Act 2001 (Commonwealth) of a company referred to in paragraph (a);

dispose of, in relation to a market asset, includes —

(a) to sell or lease the market asset; and

(b) to create and assign an interest in the market asset;

liability —

(a) means any liability, duty or obligation —

(i) whether liquidated or unliquidated or actual, contingent or prospective; and

(ii) whether owed alone or jointly or jointly and severally with any other person;

and

(b) includes a contractual liability that is to be regarded as arising because of section 24(2);

market asset means —

(a) the whole or any part of a business carried on by, or any asset or liability owned by or managed on behalf of the State by, the Authority; or

(b) the whole or any part of a business carried on by, or any asset or liability owned by or managed on behalf of the Authority, a corporate vehicle or the State by, a corporate vehicle; or

produce means any of the following —

(a) fruit and vegetables;

(b) cut flowers;

public market means a place at which persons meet for the purposes of selling or purchasing produce by wholesale, but does not include —

(a) a place at which the sale of produce occurs if the place is the premises of the seller; or

(b) a place at which the purchase of produce occurs if the place is the premises of the purchaser;

purposes, of a section 9 disposal, has the meaning given in section 4;

right means any right, power, privilege or immunity whether actual, contingent or prospective but, in relation to a transfer order, does not include any privilege or immunity enjoyed as an agent of the Crown except in so far as it relates to anything done or omitted to be done before the transfer time;

section 9 disposal means a disposal for which an order is in force under section 9;

transferee, in relation to a transfer order, has the meaning given in section 21(2)(b);

transferor, in relation to a transfer order, has the meaning given in section 21(2)(b);

transfer order means a transfer order made under section 21 as amended under that section or corrected under section 27;

transfer time, in relation to a transfer order, means the time specified under section 21(2)(a) in the transfer order.

4. Purposes of section 9 disposal

The purposes of a section 9 disposal include the following —

(a) the purpose of effecting or facilitating the section 9 disposal;

(b) any purpose ancillary or incidental to, or consequential on, the section 9 disposal.

5. Things on land

A reference in this Act to a thing that is on land is to be taken to be a reference to a thing that is on, in, over or under the land.

6. Assignable nature of things on land

For the purposes of this Act, a thing that is on land and is capable of being disposed of —

(a) is not part of the land, regardless of whether it is in the nature of a fixture; and

(b) is capable of being assigned separately from the land; and

7. Act binds Crown

This Act binds the State and, so far as the legislative power of the State permits, the Crown in all its other capacities.

Part 2 — Enabling disposal

8. Disposal of market assets authorised

(1) A market asset owned or managed by the Authority may be disposed of, whether by the Authority or the State, if the disposal is authorised by an order made under section 9.

(2) A market asset owned or managed by a corporate vehicle may be disposed of, whether by the corporate vehicle or the State, if the disposal is authorised by an order made under section 9.

9. Minister may order disposal of market assets

(1) The Minister may, by order published in the Gazette —

(a) direct the disposal of all or specified market assets; or

(b) vary or revoke an order made under paragraph (a), or under this paragraph, at any time before effect is given to the order.

(2) An order made under subsection (1) may be in general terms and need not include any details about how the disposal is to be effected.

(3) The Minister cannot make an order under subsection (1) without the Treasurer’s approval.

(4) An order made under subsection (1) takes effect —

(a) on the day after the day on which the order is published in the Gazette; or

(b) if a later day is specified in the order — on that day.

10. Effecting disposal

(1) Subject to section 11, there are no limitations on the nature of any transaction or arrangement that can be entered into for the purposes of a section 9 disposal.

(2) An express provision of this Act authorising the establishment of a particular kind of legal entity for the purposes of a section 9 disposal does not limit the kinds of legal entity that can be used for those purposes.

(3) One or more corporate vehicles or one or more trusts can be used for the purposes of a section 9 disposal.

(4) If a company is to be used for the purposes of a section 9 disposal by the State, the Under Treasurer must ensure that the necessary steps are taken on behalf of the State to create the company.

(5) Any of the persons specified in subsection (6) can —

(a) receive on behalf of the State an allotment and issue of, or otherwise acquire on behalf of the State, securities in the company; and

(b) hold, and dispose of, on behalf of the State any securities so acquired by the person in the company.

(6) For subsection (5), the following persons are specified —

(a) the Minister;

(b) the Treasurer;

(7) The Minister may enter into on behalf of the State any agreement for the purposes of a section 9 disposal.

11. Disposal of land

The following land can be disposed of under this Act —

(a) Crown land;

(b) freehold land owned by the Authority, a corporate vehicle or the State.

12. Land subject to unregistered leases with terms exceeding 5 years

Despite the Transfer of Land Act 1893 section 68(1A), land disposed of under this Act is subject to any prior unregistered lease or agreement for lease or for letting for a term exceeding 5 years to a tenant in actual possession even though the lease or agreement may not be specially notified as an encumbrance on the certificate of title or registered instrument for the land.

13. Approval of Planning Commission not required for leases with terms exceeding 20 years

(1) This section applies in relation to land that, immediately before its disposal under this Act, was subject to a lease referred to in the Planning and Development Act 2005 section 136(1)(a) or (b).

(2) The Planning and Development Act 2005 section 136 does not apply, and is to be taken to have not applied, at any time while the land is or was subject to the lease or any renewal or extension of the lease.

14. Development and building work

(1) In this section —

approval includes —

(a) a permit, consent, notice, permission, or other authorisation;

(b) an approval certificate or other certificate;

building work means —

(a) building work as defined in the Building Act 2011 section 3; or

(b) demolition work as defined in the Building Act 2011 section 3; or

(d) any other work of a similar or related nature;

development has the meaning given in the Planning and Development Act 2005 and includes any other development or use of a similar or related nature;

issue includes give or grant;

Perth market site means the land consisting of all of the following —

(a) the land described as Lot 1002 on Deposited Plan 16227, Certificate of Title Volume 2129 Folio 88;

(b) the land described as Lot 1004 on Deposited Plan 16227, Certificate of Title Volume 1832 Folio 28;

premises means —

(a) a building or other structure, situated on the Perth market site, or part of the building or other structure; or

(b) the Perth market site or part of the site.

(2) Subsection (3) applies if —

(a) at any time before this subsection comes into operation, development or building work was carried out on the Perth market site; and

(b) under the law in force at the relevant time, an approval was required to be issued for the carrying out of the development or building work; and

(3) The approval is to be taken to have been issued.

(4) Subsection (5) applies if —

(a) at any time before this section comes into operation, the premises were used or occupied; and

(b) under the law in force at the relevant time, an approval was required to be issued for the use or occupation of the premises; and

(5) The approval is to be taken to have been issued.

(6) If the use or occupation of the premises continues after subsection (5) comes into operation, the continued use or occupation of the premises is to be taken to be with the approval.

15. Use as public market

(1) In this section —

central trading area means the part of the central trading lot that, immediately before the commencement of this section, was occupied by the building being used for the purposes of the sale or display of produce and is shown (for information only) hatched on the plan in Schedule 1 Division 2.

(2) The central trading lot can only be disposed of under this Act on condition that, for 20 years after the disposal, a part of the central trading lot is used as a public market in accordance with subsections (3) to (5).

(3) For subsection (2), the part of the central trading lot that must be used as a public market can be —

(a) the central trading area; or

(b) another part of the central trading lot in respect of which an approval is in force under subsection (4).

(4) The Minister may, by order published in the Gazette —

(a) approve a part of the central trading lot for use as a public market; or

(b) vary or revoke an approval given under paragraph (a).

(5) An order made under subsection (4) takes effect —

(a) on the day after the day on which the order is published in the Gazette; or

(b) if a later day is specified in the order — on that day.

16. Development condition relating to warehousing

(1) In this section —

CTL development application means a development application, as defined in the Planning and Development Act 2005 section 4(1), for the development of the central trading lot that is made at any time within 20 years after the disposal under this Act of the central trading lot.

(2) The conditions on which any CTL development application is approved must include both of these conditions —

(a) that one or more parts of the central trading lot (the area or total area of which part or parts must be at least 46 500 m2) are used or are available to be used for the purposes of warehousing to support the public market referred to in section 15(2); and

(b) that one or more parts of the central trading lot (the area or total area of which part or parts must be at least 24 000 m2) are set aside for use at some time in the future for the purposes of warehousing to support the public market referred to in section 15(2).

(3) Subsection (2) applies despite the Planning and Development Act 2005 or any planning scheme or interim development order under that Act.

(4) Despite the Planning and Development Act 2005, any planning scheme as defined in section 236(1) of that Act or any other written law, the imposition of a condition under subsection (2) is not reviewable by the State Administrative Tribunal.

17. Functions and powers of Minister

The Minister has all of the functions and powers that are necessary or convenient for the purposes of this Act, including the power to acquire land.

18. Functions and powers of Authority

The Authority has all of the functions and powers that are necessary or convenient for the purposes of the disposal of a market asset under this Act.

19. Functions and powers of corporate vehicles

A corporate vehicle has all of the functions and powers that are necessary or convenient for the purposes of the disposal of a market asset under this Act, including —

(a) the power to acquire land; and

(b) if the corporate vehicle is a company referred to in paragraph (a) of the definition of corporate vehicle in section 3 — the power to create subsidiaries of the company.

20. Directions by Minister

(1) The Minister may, for the purposes of a section 9 disposal, give a written direction to the Authority or a corporate vehicle.

(2) The Authority or a corporate vehicle must comply with a direction given to it under subsection (1).

(3) The Authority or a corporate vehicle, or a member, director or officer of the Authority or a corporate vehicle, is not liable for anything done or omitted to be done in good faith in compliance with, or purported compliance with, a direction given under subsection (1).

(4) This section is declared to be a Corporations legislation displacement provision for the purposes of the Corporations Act 2001 (Commonwealth) section 5G in relation to the Corporations legislation generally.

Part 3 — Implementing disposal

Division 1 — Transfer orders

21. Minister may make transfer orders

(1) In this section —

private entity means a person other than any of the following —

(a) the Authority;

(b) a statutory corporation;

(d) the State;

statutory corporation means —

(a) a Minister or chief executive officer who is constituted, or continued in existence, as a body corporate under an Act; or

(b) any other body corporate that is constituted, or continued in existence, under an Act.

(2) For the purposes of a section 9 disposal, the Minister may, by order published in the Gazette (a transfer order), specify all or any of the following —

(a) a time (which must be after the day on which the order is published in the Gazette) that is the transfer time under the transfer order;

(b) any asset or liability that, by operation of section 22, is to be transferred from the Authority, a corporate vehicle or the State as specified in the order (the transferor) to a corporate vehicle or a private entity as specified in the order (the transferee);

(d) any agreement or instrument relating to anything transferred that, by operation of section 22, is to have effect as if, unless otherwise expressly specified in the order, references to the transferee were substituted for references to the transferor in the agreement or instrument.

(3) If the transfer time is specified by reference to when a thing is done, the Minister must ensure that notice of the time when the thing is done is published in the Gazette.

(4) A transfer order may specify persons or things by reference to schedules that —

(a) need not be published in the Gazette; but

(b) must be available for public inspection on business days at the place and between the times specified in the transfer order for 6 months after the day on which the transfer order is published in the Gazette.

(5) For subsection (4)(b), a business day is a day other than a Saturday, Sunday or public holiday.

(6) A person or thing specified in a schedule for a transfer order is to be taken to be specified in the transfer order.

(7) A person or thing may be specified in a transfer order by describing the person or thing as a member of a class.

(8) Before a transfer order is made specifying anything by reference to a schedule, the Minister must consult each relevant official to whom a copy of the schedule must be given under section 26(2) about the form and content of the schedule for the purpose of facilitating the recording and registration of instruments or documents as required by section 26(3)(b).

(9) The Minister may, by order published in the Gazette, amend a transfer order or a schedule for a transfer order, but only —

(a) before the transfer time; and

(b) with the consent of the transferee.

22. Consequences of transfer orders

(1) In this section —

specified means specified in the transfer order.

(2) A transfer order has effect at the transfer time as follows —

(a) a specified asset is, by operation of this section and without the need for any conveyance, transfer, assignment or assurance or any prior notice or further act, transferred to the transferee and becomes an asset of the transferee;

(b) a specified liability is, by operation of this section and without the need for any prior notice or further act, transferred to and becomes a liability of the transferee;

(c) the transferee is, by operation of this section, substituted for the transferor as a party to any specified proceedings;

(d) a specified agreement or instrument has effect, by operation of this section, as if (unless otherwise specified) a reference to the transferee were substituted for a reference to the transferor in the agreement or instrument;

(e) any proceedings or remedy that might have been commenced by, or available against or to, the transferor in relation to an asset or liability transferred by paragraph (a) or (b) may be commenced by, or are available against or to, the transferee;

(f) anything relating to an asset or liability transferred by paragraph (a) or (b) that was done or omitted to be done by, to or in respect of the transferor before the transfer and is of any effect is to be taken to have been done or omitted by, to or in respect of the transferee.

23. Completion of transactions for this Division

If a transfer order cannot to any extent have the effect sought to be achieved by this Division (whether because a matter is governed otherwise than by a law of this State or for any other reason), the Minister and the transferor must each take all practicable steps to achieve that effect as soon as possible after the transfer time.

24. Effect of arrangements internal to transferors

(1) An instrument that provides for arrangements between different parts of the transferor’s business or undertaking may be specified in a transfer order as if it created contractual rights and liabilities.

(2) An instrument specified as described in subsection (1) is to be regarded as if its provisions were contractual provisions between different legal entities.

(3) A contractual right or liability that is to be regarded as arising because of subsection (2) is transferable under this Division.

25. Delivery and access to records

(1) In this section —

record includes a register, minute, receipt, book of account or other document (however compiled, recorded or stored);

relevant record, in relation to a transfer order, means a record relating to any asset, liability, agreement, instrument or proceedings specified under section 21(2) in the transfer order.

(2) The Minister may give the transferor under a transfer order a direction (whether in the transfer order or otherwise in writing) as to which relevant records, or classes of relevant records, in the possession or control of the transferor must be delivered to or shared with, or be able to be accessed by, the transferee under the transfer order.

(3) The transferor must deliver to or share with the transferee, or enable the transferee to have access to, relevant records in accordance with the direction.

(4) The transferor and transferee must make arrangements for the delivery or sharing of, or access to, relevant records in accordance with the direction.

(5) This section is declared to be a Corporations legislation displacement provision for the purposes of the Corporations Act 2001 (Commonwealth) section 5G in relation to the Corporations legislation generally.

26. Registration of documents

(1) In this section —

relevant official means any of the following —

(a) the Registrar of Titles under the Transfer of Land Act 1893;

(b) the Registrar of Deeds and Transfers under the Registration of Deeds Act 1856;

(d) any other person authorised by a written law to record and give effect to the registration of instruments or documents relating to transactions affecting any estate or interest in land or any other property.

(2) The Minister must ensure that a copy of each of the following instruments is given to each relevant official —

(a) a transfer order and any schedule for it;

(b) any order made under section 21(9) amending a transfer order or any schedule for it;

(d) any notice published under section 21(3) in respect of the transfer time in relation to a transfer order.

(3) A relevant official must —

(a) take notice of this Division, a transfer order and any other instrument relating to a transfer order that is referred to in subsection (2); and

(b) record and register in the appropriate manner the instruments or documents necessary to show the effect of this Division and a transfer order.

27. Correction of errors in transfer orders

(1) The Minister may, by order published in the Gazette, make any provision that is necessary to correct any error in a transfer order or a schedule for a transfer order.

(2) An order made under subsection (1) may be expressed to take effect on and after the transfer time.

(3) To the extent that a provision of an order made under subsection (1) takes effect before the order is published in the Gazette, section 22 does not, as a result of that provision, operate so as —

(a) to affect in a manner prejudicial to any person (other than the State, the transferor or transferee, or a Minister, officer or agency of the State) the rights of that person existing before publication; or

(b) to impose liabilities on any person (other than the State, the transferor or transferee, or a Minister, officer or agency of the State) in respect of anything done or omitted to be done before publication.

Division 2 — Disclosure of confidential information

28. Authorised disclosure of confidential information

(1) In this section —

confidential information means confidential information, or information that is not publicly known, concerning the affairs of the Authority or a corporate vehicle.

(2) A disclosure of confidential information that is authorised under this section is not to be regarded as —

(a) a breach of contract or confidence or any other civil wrong; or

(b) a breach of duty under any of the following —

(i) the Perth Market Act 1926;

[(ii) deleted]

(iii) the Statutory Corporations (Liability of Directors) Act 1996 section 5;

(c) a breach of, or an offence under, a provision of a written law that prohibits or restricts the disclosure of information.

(3) For subsection (2), a disclosure of confidential information is authorised if it is made for the purposes of a section 9 disposal by —

(a) the Government, the Authority or a corporate vehicle; or

(b) a person acting with the authority of a body referred to in paragraph (a).

(4) For subsection (3), a disclosure of confidential information made for the purposes of a section 9 disposal includes a disclosure of confidential information whenever made if the disclosure is or was made for the purposes of a potential section 9 disposal.

[Section 28 amended: No. 13 of 2023 s. 215.]

29. Offence of disclosing information

(1) Subsection (2) applies to a person (a bound recipient) who —

(a) obtains information connected with a section 9 disposal, whether through a disclosure authorised by section 28 or otherwise; and

(b) has agreed or is otherwise under a duty not to disclose the information to others.

(2) A bound recipient commits an offence if the bound recipient breaches the agreement or duty referred to in subsection (1)(b).

Penalty for this subsection: a fine of $200 000.

(3) A person who obtains information connected with a section 9 disposal from or through a bound recipient commits an offence if, without lawful excuse, the person discloses the information in a way that would have resulted in a breach of the agreement or duty referred to in subsection (1)(b) if the disclosure had been made by the bound recipient.

Penalty for this subsection: a fine of $200 000.

(4) For subsections (1)(a) and (3), information connected with a section 9 disposal includes information whenever obtained if the information is or was connected with a potential section 9 disposal.

Division 3 — Other matters

30. Application of proceeds of disposal

The proceeds of a section 9 disposal must be applied by paying them to the Treasurer or as the Treasurer directs otherwise.

31. Provision by State of indemnities and guarantees

(1) The Treasurer may, in the name and on behalf of the State, give an indemnity or guarantee in respect of a matter related to —

(a) a section 9 disposal; or

(b) the assignment (whether under a transfer order or otherwise) of anything in connection with a section 9 disposal.

(2) The Treasurer may, in the name and on behalf of the State, give to any person who is or has been a member, director or officer of the Authority or a corporate vehicle an indemnity against any liability determined by the Treasurer (including any civil liability under the Corporations Act 2001 (Commonwealth)), whether or not the liability relates to a matter referred to in subsection (1).

(3) Any money payable under an indemnity or guarantee given under this section must be paid by the Treasurer.

(4) Payments made under subsection (3) are charged to the Consolidated Account, which this subsection appropriates accordingly.

32. Takeover by State of certain obligations

(1) This section applies in relation to an obligation (whether contingent or otherwise) of the Authority or a corporate vehicle.

(2) The Treasurer may, in the name and on behalf of the State, agree to take over an obligation in connection with a section 9 disposal.

(3) If the performance of the obligation was guaranteed by the State, the agreement may also provide for —

(a) the release by the State of any security held by the State in connection with the guarantee; or

(b) the release of a person from an undertaking that the person gave to the State in relation to any security described in paragraph (a).

(4) The Treasurer may authorise the payment of money to discharge an obligation that the State has taken over under subsection (2), whether by terminating the obligation or otherwise.

(5) Payments authorised under subsection (4) are charged to the Consolidated Account, which this section appropriates accordingly.

Part 4 — Provisions relating to corporate vehicles

33. Application of this Part

This Part applies if, for the purposes of a section 9 disposal, a market asset is assigned (whether under a transfer order or otherwise) from the Authority or a corporate vehicle (the assignor) to a corporate vehicle (the assignee).

34. Assignee’s powers and duties

The assignee has the same powers, duties, rights and obligations in respect of the market asset as the assignor would have had if the assignment had not occurred.

35. Application of written laws to assignee

(1) In this section —

applicable written law —

(a) means a written law (other than this Act) that applies to or in relation to, or refers to, the assignor; and

(b) includes a written law that, by operation of this section, applies to or in relation to, or refers to, the assignor.

(2) An applicable written law is to be taken (with the changes that are prescribed by the regulations or are otherwise necessary or convenient for the purpose of this Part) to apply to or in relation to, or to refer to, the assignee.

(3) Without limiting subsection (2), the regulations may provide that a reference in an applicable written law to the assignor that relates to the market asset before the assignment occurred is to be taken to include a reference to the assignee.

Part 5 — Miscellaneous matters

36. Exemption from State tax

(1) In this section —

State tax includes —

(a) duty chargeable under the Duties Act 2008; and

(b) any other tax, duty, fee, levy or charge under a law of the State.

(2) State tax is not payable in relation to —

(a) anything that occurs by operation of either or both of Parts 2 and 3; or

(b) anything done (including a transaction entered into or an instrument or document of any kind made, executed, lodged or given) under, to give effect to, or for a purpose connected with or arising out of giving effect to, either or both of Parts 2 and 3.

(3) The Minister may, at the request of the transferor or transferee under a transfer order, certify in writing that —

(a) a specified thing occurred by operation of either or both of Parts 2 and 3; or

(b) a specified thing was done under, to give effect to, or for a purpose connected with or arising out of giving effect to, either or both of Parts 2 and 3.

(4) For all purposes and in all proceedings, a certificate under subsection (3) is sufficient evidence of the matters it certifies unless the contrary is shown.

(5) The exemption under subsection (2) does not apply in relation to a thing that occurs or is done if the Minister directs (whether in a transfer order or otherwise in writing) that it does not apply in relation to the thing.

37. Restriction on other public markets

(1) In this section —

specified means specified or described in the regulations.

(2) Despite anything in the Local Government Act 1995, a local government cannot, during the specified period (which cannot exceed 10 years) after the disposal under this Act of the central trading lot, provide or establish in a specified area a public market in respect of specified produce.

38. Effect of this Act on existing rights and obligations

The operation of this Act, including anything done or omitted to be done under or for the purposes of this Act, is not to be regarded as —

(a) a breach of confidence or any other civil wrong; or

(b) a breach of a contract or instrument, including (without limitation) a provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities; or

(d) giving rise to a right or remedy of a party to a contract or instrument or causing or permitting the termination of, or exercise of rights under, a contract or instrument; or

(e) an event of default under a contract or instrument; or

(f) causing a contract or instrument to be void or otherwise unenforceable; or

(g) subject to section 32(3) and (4), releasing, or allowing the release of, a surety or other obligee from the whole or part of an obligation.

39. No compensation payable

(1) No compensation is payable by or on behalf of the State —

(a) because of the enactment or operation of this Act or for the consequences of its enactment or operation; or

(b) because of any statement or conduct relating to the enactment of this Act; or

(2) Subsection (1) does not apply in relation to —

(a) any consideration payable under an agreement entered into for the purposes of a section 9 disposal; or

(b) any compensation payable in connection with the performance of an obligation arising under an agreement entered into for the purposes of a section 9 disposal.

40. Regulations for the purposes of, or consequential on, section 9 disposals

(1) In this section —

publication day, for regulations referred to in subsection (2), means the day on which those regulations are published in the Gazette.

(2) Regulations made under section 41 may provide for —

(a) matters for which it is necessary or convenient to make provision for the purposes of a section 9 disposal; or

(b) matters that it is necessary or convenient to deal with as a consequence of anything contained in, or anything done under, Part 2, 3 or 4.

(3) Regulations referred to in subsection (2) may be expressed to take effect before publication day for those regulations but after the day on which the order made under section 9(1)(a) for the section 9 disposal is published in the Gazette.

(4) To the extent that regulations referred to in subsection (2) take effect before publication day for those regulations, the regulations do not operate —

(a) to affect in a manner prejudicial to any person (other than the State, the assignor or assignee under an assignment for the purposes of the section 9 disposal, or a Minister, officer or agency of the State) the rights of that person existing before publication day for those regulations; or

(b) to impose liabilities on any person (other than the State, the assignor or assignee under an assignment for the purposes of the section 9 disposal, or a Minister, officer or agency of the State) in respect of anything done or omitted to be done before publication day for those regulations.

41. Regulations

The Governor may make regulations prescribing matters —

(a) required or permitted to be prescribed by this Act; or

(b) necessary or convenient to be prescribed for giving effect to this Act.

Part 6 — Repeal of Perth Market Act 1926 and related transitional matters

Division 1 — Repeal of Perth Market Act 1926

42. Repeal of Act

(1) The Perth Market Act 1926 is repealed on a day fixed by proclamation.

(2) A proclamation cannot be made under subsection (1) unless the Minister is satisfied that there is no reason for the Perth Market Act 1926 to remain in operation.

43. Arrangements to be made for Authority’s staff before repeal

(1) In this section —

staff member means a person appointed by the Authority under the Perth Market Act 1926 section 10(1)(a) or otherwise employed by the Authority.

(2) Before the Perth Market Act 1926 is repealed under section 42, the Minister —

(a) must, after consulting the Public Sector Commissioner —

(i) nominate the person or body in the Public Sector who will be the employing authority under the Public Sector Management Act 1994 for staff members after the repeal; and

(ii) ensure that employment by or under that employing authority is arranged for each staff member who has not made other arrangements;

and

(b) must ensure that the Public Sector Management Act 1994 Part 6 applies in relation to any staff member whose employment is arranged under paragraph (a).

(3) Except as agreed by a staff member, neither a change of employment arranged under paragraph (a) nor the repeal —

(a) affects the staff member’s remuneration or other terms and conditions of employment; or

(b) prejudices the staff member’s existing or accruing rights; or

(d) interrupts the staff member’s continuity of service.

44. Members go out of office

When the Perth Market Act 1926 is repealed under section 42, the members of the Authority go out of office.

Division 2 — Transitional arrangements after repeal

45. Term used: Authority

In this Division —

Authority means the Perth Market Authority continued in existence under section 46(1).

46. Authority continued in existence for transitional purposes

(1) Despite the repeal of the Perth Market Act 1926 under section 42, the Authority under that Act continues in existence for the purposes of sections 23, 25, 47 and 49.

(2) The Authority is to be constituted by, and must perform its functions through, one or more persons appointed by the Minister.

(3) A person appointed under subsection (2) holds office at the pleasure of the Minister and on the terms and conditions (including as to remuneration) the Minister determines.

(4) The Authority has all of the functions and powers necessary or convenient for the purposes referred to in subsection (1).

47. Disposal of residual assets and liabilities

(1) Any part of a business carried on by, or any asset or liability owned by, the Authority that, immediately before the repeal of the Perth Market Act 1926 under section 42, had not been disposed of otherwise under this Act may be assigned from the Authority to the State or another person.

(2) The Under Treasurer must ensure that the necessary steps are taken to effect any assignment of a part of a business, or an asset or liability, under subsection (1).

48. Application of Constitution Acts Amendment Act 1899

The Constitution Acts Amendment Act 1899 applies, until the Authority is abolished under section 51, as if the following item were inserted in Schedule V Part 3 —

Perth Market Authority continued in existence under the Perth Market (Disposal) Act 2015 section 46(1)

49. Application of Financial Management Act 2006 and Auditor General Act 2006

The Financial Management Act 2006 and the Auditor General Act 2006 apply, until the Authority is abolished under section 51, as if the following item were inserted in the Financial Management Act 2006 Schedule 1 —

Perth Market Authority continued in existence under the Perth Market (Disposal) Act 2015 section 46(1)

50. Application of Statutory Corporations (Liability of Directors) Act 1996

The Statutory Corporations (Liability of Directors) Act 1996 Part 3 applies, until the Authority is abolished under section 51, as if the following item were inserted in the Table in Schedule 1 —

Perth Market Authority	a member of the Authority appointed under the Perth Market (Disposal) Act 2015 section 46(2)	Perth Market (Disposal) Act 2015

51. Abolition of Authority

(1) The Authority is abolished, and its members go out of office, at the end of the day fixed by the Minister by notice published in the Gazette.

(2) A notice cannot be published under subsection (1) unless the Minister is satisfied that there is no reason for the Authority to continue in existence.

52. Transitional regulations

(1) In this section —

publication day, for regulations referred to in subsection (2), means the day on which those regulations are published in the Gazette;

specified means specified or described in the regulations;

transitional matter —

(a) means a matter of a transitional nature that arises as a result of —

(i) the enactment of this Part; or

(ii) the repeal of the Perth Market Act 1926 under section 42;

and

(b) includes a saving or application matter.

(2) If there is not sufficient provision in this Part for dealing with a transitional matter, regulations made under section 41 may prescribe matters that are required or necessary or convenient to be prescribed for dealing with the transitional matter.

(3) Regulations referred to in subsection (2) may provide that specified provisions of a written law —

(a) do not apply to or in relation to any matter; or

(b) apply with specified modifications to or in relation to any matter.

(4) If regulations referred to in subsection (2) provide that a specified state of affairs is to be taken to have existed, or not to have existed, on and from a day that is earlier than publication day for those regulations but not earlier than the day on which this section comes into operation, those regulations have effect according to their terms.

(5) If regulations referred to in subsection (2) contain a provision referred to in subsection (4), the provision does not operate so as —

(a) to affect in a manner prejudicial to any person (other than the State, the Authority or a Minister, officer or agency of the State) the rights of that person existing before publication day for those regulations; or

(b) to impose liabilities on any person (other than the State, the Authority or a Minister, officer or agency of the State) in respect of anything done or omitted to be done before publication day for those regulations.

53. Interpretation Act 1984 not affected

Except to the extent this Part or regulations made under section 52(2) expressly provide differently, the Interpretation Act 1984 applies in relation to the repeal of the Perth Market Act 1926 under section 42.

Part 7 — Other Acts amended

54. Constitution Acts Amendment Act 1899 amended

(1) This section amends the Constitution Acts Amendment Act 1899.

(2) In Schedule V Part 3 delete the item relating to the Perth Market Authority.

55. Financial Management Act 2006 amended

(1) This section amends the Financial Management Act 2006.

(2) In Schedule 1 delete “Perth Market Authority”.

56. Statutory Corporations (Liability of Directors) Act 1996 amended

(1) This section amends the Statutory Corporations (Liability of Directors) Act 1996.

(2) In Schedule 1 in the Table delete the row relating to the Perth Market Authority.

Schedule 1 — Central trading lot and central trading area

[s. 3 and 15(1)]

Division 1 — Central trading lot

View image in the official source

Division 2 — Central trading area

View image in the official source

dline

Notes

This is a compilation of the Perth Market (Disposal) Act 2015 and includes amendments made by other written laws. For provisions that have come into operation see the compilation table.

Compilation table

Short title	Number and year	Assent	Commencement
Perth Market (Disposal) Act 2015	40 of 2015	8 Dec 2015	Act other than Pt. 6 Div. 2 and Pt. 7: 8 Dec 2015 (see s. 2(1)); Pt. 6 Div. 2 and Pt. 7: 31 Mar 2016 ( see s. 2(2) and Gazette 31 Mar 2016 p. 969)
Government Trading Enterprises Act 2023 Pt. 12 Div. 3	13 of 2023	22 Jun 2023	1 Jul 2023 (see s. 2(b) and SL 2023/89 cl. 2)

Defined terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined term Provision(s)

applicable written law 35(1)

approval 14(1)

asset 3

assignee 33

assignor 33

Authority 3, 45

bound recipient 29(1)

building work 14(1)

central trading area 15(1)

central trading lot 3

company 3

confidential information 28(1)

corporate vehicle 3

CTL development application 16(1)

development 14(1)

dispose of 3

issue 14(1)

liability 3

market asset 3

Perth market site 14(1)

premises 14(1)

private entity 21(1)

produce 3

public market 3

publication day 40(1), 52(1)

purposes 3

record 25(1)

relevant official 26(1)

relevant record 25(1)

right 3

section 9 disposal 3

specified 22(1), 37(1), 52(1)

staff member 43(1)

State tax 36(1)

statutory corporation 21(1)

transfer order 3, 21(2)

transfer time 3

transferee 3, 21(2)

transferor 3, 21(2)

transitional matter 52(1)

This work is licensed under a Creative Commons Attribution 4.0 International Licence (CC BY 4.0). To view relevant information and for a link to a copy of the licence, visit www.legislation.wa.gov.au.

By Authority: GEOFF O. LAWN, Government Printer

Western Australia

Perth Market (Disposal) Act 2015

Western Australia

Perth Market (Disposal) Act 2015

Contents

Part 1 — Preliminary matters

Short title 1
Commencement 1
Terms used 1
Purposes of section 9 disposal 3
Things on land 4
Assignable nature of things on land 4
Act binds Crown 4

Part 2 — Enabling disposal

Disposal of market assets authorised 5
Minister may order disposal of market assets 5
Effecting disposal 5
Disposal of land 6
Land subject to unregistered leases with terms exceeding 5 years 7
Approval of Planning Commission not required for leases with terms exceeding 20 years 7
Development and building work 7
Use as public market 9
Development condition relating to warehousing 10
Functions and powers of Minister 11
Functions and powers of Authority 11
Functions and powers of corporate vehicles 11
Directions by Minister 11

Part 3 — Implementing disposal

Division 1 — Transfer orders

Minister may make transfer orders 13
Consequences of transfer orders 15
Completion of transactions for this Division 16
Effect of arrangements internal to transferors 16
Delivery and access to records 16
Registration of documents 17
Correction of errors in transfer orders 18

Division 2 — Disclosure of confidential information

Authorised disclosure of confidential information 19

The Act operates around a small set of core concepts that determine its practical effect.

Section 9 disposal and market asset. A "section 9 disposal" is any disposal authorised by an order under s 9. A "market asset" is broad, encompassing whole or parts of the business of the Authority, assets or liabilities owned or managed by the Authority or by corporate vehicles, and securities in corporate vehicles (s 3). The breadth of these definitions is consequential because the Act’s transfer and assignment mechanisms then apply to rights, liabilities, choses in action, goodwill and contingent interests (s 3, definitions of asset and liability).
Ministerial orders and transfer orders. The Minister’s power to order disposals is the statutory trigger for the suite of special provisions in the Act. A section 9 order authorises disposal and takes effect on publication in the Gazette unless a later day is specified (s 9(1), (4)). For detailed effectuation, the Minister may make transfer orders (s 21) which specify the transfer time, the assets and liabilities to be transferred, substitution in proceedings, and instruments to be treated as if references to the transferee replaced the transferor (s 21(2), s 22). Transfer orders may be general in form (s 9(2)) and may be amended before the transfer time with the transferee’s consent (s 21(9)).
Automatic statutory transfer. Section 22 is the operational core. At the transfer time specified in the transfer order, a specified asset becomes the transferee’s asset and a specified liability becomes the transferee’s liability by operation of the Act, without conveyance, assignment or prior notice (s 22(2)(a)-(b)). The transferee is substituted in proceedings and agreements operate with references read as if to the transferee (s 22(2)(c)-(d)). Pre-transfer acts and omissions affecting the transferor are taken to have been done to or by the transferee (s 22(2)(f)). Where statutory transfer cannot fully achieve the legal effect (for example because governed by non-State law), the Minister and transferor must take all practicable steps to achieve the intended effect as soon as possible (s 23).
Corporate vehicles and assignees. The Act contemplates use of corporate vehicles for disposals (s 3 definition, s 10(3)). If a market asset is assigned to a corporate vehicle, the assignee assumes the same powers, duties, rights and obligations as the assignor (s 34). The Act also provides for the application of written laws to an assignee in place of the assignor, subject to prescribed changes (s 35).
Planning and site-use constraints. Disposal of the central trading lot is subject to a 20 year use-as-public-market condition (s 15). CTL development applications made within 20 years must include minimum warehousing areas for market support (s 16(2)), and the imposition of those conditions is declared not reviewable by SAT (s 16(4)). The Act also preserves certain prior unregistered leases and limits the Planning Commission’s approval role for long leases (ss 12-13).
Fiscal and risk allocation tools. Proceeds of disposal are payable to or as directed by the Treasurer (s 30). The Treasurer may give indemnities and guarantees in respect of section 9 disposals, and make payments under those indemnities that are charged to the Consolidated Account (s 31(1), (3)-(4)). The Treasurer may also agree to take over obligations and authorise payments to discharge those obligations, similarly charged to Consolidated Account (s 32).
Confidentiality regime and penalties. Section 28 authorises disclosure of confidential information for the purposes of a section 9 disposal without it being a breach of confidence or other civil wrong, and without breaching certain written laws. Section 29 creates offences for "bound recipients" who breach confidentiality obligations and for third parties who receive such information and disclose it, with a fine of $200,000 for each offence (s 29).
Overrides and non-compensation. The Act declares that its operation is not to be regarded as breach of contract or other civil wrong, nor as giving rise to rights to compensation from the State for the enactment or operation of the Act, subject to specific exceptions for contractual consideration or contractual compensation (ss 38-39). It also exempts transactions under Parts 2 and 3 from State tax, unless the Minister directs otherwise (s 36).

These core concepts are tied together by publication and registration rules, Corporations Act displacement declarations for particular provisions, and the Minister’s and Treasurer’s central roles in decision making, indemnity and administrative arrangements.

The Act allocates decision-making power and financial consequences among the Minister, the Treasurer, the Authority (Perth Market Authority), corporate vehicles, transferees, transferors, relevant public officials, market participants and third parties who receive confidential information.

The Minister. The Minister is the principal decision maker. The Minister may make section 9 orders directing disposal of market assets (s 9), enter into agreements for disposals on behalf of the State (s 10(7)), make transfer orders (s 21), approve parts of the central trading lot for use as a public market (s 15(4)), give written directions to the Authority or a corporate vehicle (s 20(1)), and publish orders in the Gazette. The Minister also certifies tax-exempt status on request (s 36(3)) and is responsible for giving copies of transfer instruments to relevant officials for registration (s 26(2)).
The Treasurer. The Treasurer must give approval for a section 9 order before the Minister may make it (s 9(3)). The Treasurer may give indemnities or guarantees in the name of the State relating to a section 9 disposal, and may indemnify current or former members, directors or officers of the Authority or a corporate vehicle against liabilities the Treasurer determines (s 31). The Treasurer may take over obligations of the Authority or corporate vehicle and authorise payments charged to the Consolidated Account to discharge obligations (s 32).
The Authority and its staff. The Perth Market Authority is the initial owner and manager of the market assets targeted by the Act. The Authority must comply with written directions for a section 9 disposal (s 20(2)). Part 6 deals with transitional arrangements for staff ahead of repeal of the Perth Market Act 1926, requiring the Minister, after consulting the Public Sector Commissioner, to nominate an employing authority and make arrangements for staff employment, and to preserve remuneration, continuity and superannuation unless staff consent otherwise (s 43).
Corporate vehicles, transferees and transferors. Corporate vehicles are explicitly contemplated as both transferors and transferees (s 3 definition, s 33). The assignee/ transferee acquires the transferred assets and liabilities by operation of law (s 22) and assumes the same powers, duties and obligations as the assignor (s 34). Private entities and statutory corporations can be transferees as defined in s 21(1)-(2). Transferors include the Authority, corporate vehicles or the State.
Market participants, tenants and purchasers. Buyers of land or businesses on the Perth market site must note the statutory treatment of things on land (s 5-6), that prior unregistered leases for terms exceeding five years bind disposals under the Act (s 12), and that the central trading lot is subject to a 20 year market-use obligation and development conditions for warehousing (ss 15-16). Local governments are affected by the restriction on providing or establishing other public markets for specified produce for up to 10 years in specified areas (s 37).
Relevant officials and registrars. The Minister must provide copies of transfer orders and related instruments to relevant officials, such as the Registrar of Titles, Registrar of Deeds and Transfers and the Minister administering the Land Administration Act, who must take notice and record and register the instruments as necessary to show the legal effect of the transfer (s 26).
Persons handling confidential information. The Act authorises specified disclosures of confidential information for disposals (s 28). Persons who receive confidential information subject to a duty not to disclose (bound recipients) incur criminal liability for breaches and third parties who receive such information and disclose it without lawful excuse likewise face criminal penalties (s 29). The high monetary fine imposed applies to both direct bound recipients and secondary recipients (s 29, penalty specified).
The State’s finances and creditors. The proceeds of disposal must be paid to the Treasurer (s 30). The Treasurer’s power to give indemnities or take over obligations, and the statutory charging of payments to the Consolidated Account (ss 31-32), means taxpayers may bear contingent fiscal exposure to support disposals.

Overall, the Act centralises decision-making with the Minister and Treasurer, shifts property and contractual relationships by operation of statute to transferees, preserves certain pre-existing interests such as long unregistered leases, and places obligations on transferors to provide records and on relevant officials to effect registration.

The Act creates statutory duties for officials and transferors, rights for transferees, and discrete powers for Ministers and the Treasurer. The duties are largely administrative and operational, while the rights include statutory acquisition of assets and liabilities and substitution into proceedings.

Ministerial duties and powers. The Minister may make section 9 orders and transfer orders and must publish them in the Gazette (ss 9, 21). The Minister is required to consult relevant officials about the form and content of any schedule to a transfer order before specifying anything by reference to a schedule (s 21(8)). The Minister must ensure copies of transfer orders, amendments and related notices are given to each relevant official (s 26(2)). The Minister may also certify in writing that a specified thing occurred by operation of Parts 2 and 3 for tax-exemption purposes (s 36(3)). The Minister has power to give written directions to the Authority or a corporate vehicle for the purposes of a section 9 disposal; recipients must comply (s 20(1)-(2)). The Minister’s functions include acquiring land as necessary or convenient for the Act’s purposes (s 17).
Treasurer’s duties and powers. The Treasurer’s approval is a prerequisite to a section 9 order (s 9(3)). The Treasurer may give indemnities and guarantees in the name of the State, indemnify members or officers of the Authority or corporate vehicles against liabilities determined by the Treasurer, take over obligations, and authorise payments to discharge obligations arising from disposals; such payments are charged to the Consolidated Account (ss 31-32). The Treasurer is therefore the gatekeeper of financial risk allocation.
Transferor duties. Where a transfer order is made, the transferor must comply with directions about delivery or access to relevant records (s 25(2)-(4)). The transferor must also work with the Minister to take all practicable steps to achieve a transfer’s legal effect if the statutory mechanism cannot fully effect it (s 23). Transferors are entitled to the protections in s 20(3) where they comply in good faith with Ministerial directions.
Transferee rights and obligations. A transferee acquires specified assets and assumes specified liabilities at the transfer time by operation of s 22(2)(a)-(b). The transferee is substituted in proceedings and steps into the contractual and legal shoes of the transferor for specified agreements and instruments as specified in the transfer order (s 22(2)(c)-(d)). For corporate vehicles that are assignees, s 34 ensures the assignee has the same powers, duties, rights and obligations in respect of the market asset as the assignor would have had.
Registrars and relevant officials. Relevant officials, including the Registrar of Titles and the Registrar of Deeds and Transfers, must take notice of the Division, transfer orders and related instruments and record and register instruments or documents necessary to show the effect of the Division and transfer orders (s 26(3)). This imposes a duty on those officials to give legal effect administratively to statutory transfers.
Confidentiality and disclosure duties. The Act authorises specified disclosures for the purposes of a section 9 disposal without constituting a civil wrong or breach of specific duties (s 28(2)-(3)). However, recipients who are bound by an agreement or duty of confidentiality have a statutory duty not to disclose; breaching this duty is an offence punishable by a fine of $200,000 (s 29).
Tax and compensation rights. The Minister may certify that an event occurred by operation of Parts 2 and 3 for the purpose of excusing State tax payable in relation to those matters (s 36(3)-(4)). Conversely, s 39 establishes that no compensation is payable by or on behalf of the State in connection with enactment or operation of the Act, with limited exceptions for contractual consideration or compensation payable under agreements made for a section 9 disposal.
Rights to challenge. The Act limits review in a narrow way. In particular, the imposition of CTL development conditions under s 16(2) is non-reviewable by the State Administrative Tribunal (s 16(4)). Otherwise, the Act does not set out specific judicial review immunities for Ministerial decision making, but it does state that the operation of the Act is not to be regarded as a breach of confidence or other civil wrong or a breach of contract (s 38).

The rights and duties contract around automatic statutory transfers, administrative obligations to effect and register transfers, and financial powers held by the Treasurer.

The Act’s enforcement regime is primarily administrative, statutory transfer-based and focused on confidentiality offences. There are few criminal penalties beyond the confidentiality regime, with the Act relying on statutory operation and registration to give effect to transfers.

Statutory operation as enforcement mechanism. Transfer orders and the statutory effect of s 22 effect transfers without the usual need for conveyances, assignments or notice. The Act enforces its disposals by operating in law at the transfer time to shift property, liabilities, parties to proceedings and contractual references (s 22). The registration duties on relevant officials are the practical enforcement step to reflect those statutory changes in public records (s 26).
Publication and record-keeping obligations. The Minister must publish section 9 orders and transfer orders in the Gazette (ss 9, 21) and provide copies to relevant officials (s 26(2)). Schedules can be kept off the Gazette but must be available for public inspection for six months after publication (s 21(4)). Relevant officials must record and register instruments or documents necessary to show the effect of transfer orders (s 26(3)). These obligations create administrative enforcement points: failure by the Minister or officials to perform them could impede downstream property dealings, though the Act does not create express criminal penalties for such administrative non-performance.
Confidentiality offences and monetary penalty. The Act creates a specific criminal or quasi-criminal enforcement mechanism for unauthorised disclosure. A "bound recipient" who obtains information connected with a section 9 disposal and is subject to a duty not to disclose commits an offence if they breach that duty, with a fine of $200,000 (s 29(2)). A person who obtains such information from a bound recipient and discloses it without lawful excuse commits an offence with the same penalty (s 29(3)). The Act defines "confidential information" broadly and includes potential disposals (s 28(1), (3)-(4)). High monetary penalties are imposed rather than custodial sentences.
Civil liability and contract-based enforcement. The Act partly immunises certain disclosures made for section 9 disposal purposes from being treated as breaches of confidence or other civil wrongs, and from being breaches of specified duties under the Perth Market Act 1926 and other laws (s 28(2)). Conversely, the Act states that its operation is not to be regarded as a breach of contract or other civil wrong and does not itself give rise to compensation against the State for enactment or operation (ss 38-39). This limits civil enforcement options for persons who might otherwise challenge transfers or seek compensation for loss caused directly by statutory operation.
Treasurer indemnities and fiscal enforcement. The Treasurer may give indemnities and guarantees or agree to take over obligations, and payments under those arrangements are charged to the Consolidated Account (ss 31-32). This creates a state fiscal enforcement mechanism whereby creditors or parties to which obligations are transferred may be satisfied by State payments under those indemnities or takeovers, subject to Treasurer decisions.
Regulatory powers via regulations. The Governor may make regulations for matters required or permitted by the Act and for necessary or convenient matters to give effect to the Act (s 41). Regulations can also be made to take effect before their Gazette publication day for purposes connected with a section 9 disposal (s 40(3)), although with protections for persons other than State actors (s 40(4)). The regulations therefore provide an enforcement and implementation channel that can be tailored to practical needs.

Overall, enforcement is a mix of statutory operation, administrative duties on public officials and registrars, fiscal instruments (indemnities), and a narrow but heavily penalised confidentiality offence.

The Act expressly intersects with multiple existing statutes and common administrative regimes, and it displaces or modifies obligations under other written laws in specified areas.

Corporations legislation. The Act declares certain provisions to be Corporations legislation displacement provisions (s 20(4), s 25(5)). Those declarations mean the statutory powers of Ministers to direct and to require delivery or sharing of records for disposals are intended to displace conflicting aspects of the Corporations Act 2001 insofar as the Corporations Act would otherwise apply to the Authority or corporate vehicles. The Act also contemplates corporate vehicles and subsidiaries under the Corporations Act as mechanisms for disposals (s 10(3)-(6)).
Transfer of land and registration laws. Section 12 overrides the Transfer of Land Act 1893 s 68(1A) in relation to land disposed of under this Act, providing that prior unregistered leases or agreements for leases for terms exceeding five years will bind the land even if not specially notified on title (s 12). Section 26 requires the Minister to give transfer orders and related instruments to relevant officials, and those officials (including the Registrar of Titles and the Registrar of Deeds and Transfers) must record and register instruments to show the effect of the Division and transfer orders (s 26).
Planning and development. The Act modifies planning law effects for the Perth market site. Section 13 removes the application of Planning and Development Act 2005 s 136 in relation to certain leases that applied immediately before disposal; effectively, the Planning Commission’s approval is not required for leases with terms exceeding 20 years in the circumstances described (s 13). Section 14 deems certain approvals to have been issued where prior building or development work was carried out without required approval under the law in force at the time (s 14(2)-(5)). Section 16 requires specified warehousing conditions to be included in approvals for central trading lot development applications made within 20 years after disposal, and declares that imposing those conditions is not reviewable by the State Administrative Tribunal (s 16(2), (4)). Those provisions can displace or modify the ordinary operation of the Planning and Development Act 2005 and planning schemes.
Duties, taxes and State charges. The Act exempts State tax, including duty under the Duties Act 2008 and any other State tax, fee, levy or charge, from being payable in relation to anything that occurs by operation of Parts 2 and 3 or anything done to give effect to or connected with such disposals, unless the Minister directs otherwise (s 36(1)-(5)). The Minister’s certification under s 36(3) is conclusive evidence of matters certified unless the contrary is shown (s 36(4)).
Statutory corporations and related Acts. The Act provides for the repeal of the Perth Market Act 1926 and transitional application of the Constitution Acts Amendment Act 1899, the Financial Management Act 2006 and the Auditor General Act 2006 to the continued-in-existence Authority for transitional purposes (Part 6, ss 42, 46, 48-49). Part 7 amends these Acts by deleting references to the Perth Market Authority in schedules as abolition proceeds (ss 54-56).
Public Sector employment law. Section 43 requires the Minister to consult the Public Sector Commissioner and arrange employing authority and continuity of employment for staff members under the Public Sector Management Act 1994 once the Perth Market Act 1926 is to be repealed, preserving terms, superannuation and continuity of service unless staff agree otherwise (s 43).
Confidentiality and other written laws. Section 28 shields authorised disclosures of confidential information for the purposes of a section 9 disposal from being a breach of contract or confidence and from some written-law duties that would otherwise prohibit disclosure. The Act therefore overrides or displaces specified confidentiality norms and written-law prohibitions for the particular purpose of a section 9 disposal. However, s 29 then criminalises breaches of confidentiality by bound recipients.
Limitations on remedies and compensation. Section 38 declares that operation of the Act is not to be regarded as a breach of confidence or other civil wrong, or as a breach of contract or instrument, or as giving rise to a right or remedy. Section 39 removes any entitlement to compensation from the State because of enactment or operation of the Act, except in specified contractual circumstances. These provisions circumscribe the interplay between the Act and general civil remedies.

The Act therefore expressly modifies, displaces or interacts with the Corporations Act, Transfer of Land Act, Planning and Development Act, Duties Act and a range of public sector and statutory corporation statutes. It achieves these interactions both by direct statutory provision and by administrative duties to official registrars.

The compilation table and marginal annotations in the source record the Act’s amendments and commencement chronology that are present in the provided text.

Commencement. The Act came into operation other than Part 6 Division 2 and Part 7 on 8 December 2015, being the day after Royal Assent (s 2(1); compilation table). Part 6 Division 2 and Part 7 came into operation on 31 March 2016 (s 2(2); Gazette 31 Mar 2016 p. 969).
Subsequent amendment recorded. The compilation table records that Part 12 Division 3 of the Government Trading Enterprises Act 2023 (No. 13 of 2023) made amendments that appear in the consolidated text and that those amendments came into operation on 1 July 2023 (compilation table entry referencing Government Trading Enterprises Act 2023 Pt. 12 Div. 3). The marginal note to s 28 states that s 28 was amended by No. 13 of 2023 s 215.
Part 7 consequential amendments. The Act itself amends other statutes upon the repeal of the Perth Market Act 1926: it deletes references to the Perth Market Authority from the Constitution Acts Amendment Act 1899 (s 54), the Financial Management Act 2006 (s 55) and the Statutory Corporations (Liability of Directors) Act 1996 (s 56). The timing of these deletions is linked to the repeal of the Perth Market Act 1926 and the consequential transitional arrangements in Part 6.
Repeal and transitional timings. The Perth Market Act 1926 is repealed on a day fixed by proclamation pursuant to s 42(1). A proclamation cannot be issued unless the Minister is satisfied the 1926 Act need no longer remain in operation (s 42(2)). Part 6 Division 2 provides that certain provisions, transitional continuations and regulations take effect on the day the earlier Act is repealed (s 2(2) cross-referenced).
Notes on marginal edits and deletions. Section 28 contains a marginal note that a paragraph was deleted by No. 13 of 2023 s 215; the compilation reflects such textual amendments. The compilation table also displays commencement entries for alterations recorded by later statute.
Transitional and regulatory powers. The Act authorises regulations and transitional regulations (ss 41, 52), including powers to make regulations that may take effect before Gazette publication day under specified constraints (s 40(3)-(4)). Section 27 authorises the Minister to correct errors in transfer orders by a further Gazette order, and those corrections can be expressed to take effect on and after the transfer time (s 27(1)-(2)).

The compilation table and the textual marginal notes are the sole sources in the provided material for amendment history. The Act’s text shows that it has been the subject of at least one later amending statute recorded in the compilation table, being Government Trading Enterprises Act 2023 Pt 12 Div 3, and that s 28 was amended in 2023. No other amendment instruments or dates are set out in the provided material.

The Act as provided contains no judicial decisions, case law or litigation history. The statutory text and the compilation notes do not cite any cases, nor does the Act itself name judicial determinations applying or construing its provisions. The only historical materials included are commencement and amendment details in the compilation table and marginal notes indicating textual amendments, for example to s 28 by No. 13 of 2023 s 215.

In practice, litigation risk arises from predictable tensions the Act creates: disputes about the reach of transfer orders, contested obligations where statutory transfer cannot fully achieve intended effect, challenges to Ministerial or Treasurer decisions, or confidentiality breaches under ss 28-29. The Act anticipates some of those tensions by mandating consultation with relevant officials before schedules are finalised (s 21(8)), requiring transferors and transferees to take all practicable steps to effect transfers where statutory operation is insufficient (s 23), and by declaring that operation of the Act is not to be regarded as a breach of contract or giving rise to compensation (ss 38-39). The Act also insulates certain authorised disclosures from being treated as breaches of confidence or under other written-law prohibitions (s 28), while imposing significant monetary fines for impermissible disclosure by bound recipients or subsequent recipients (s 29).

Absent judicial authorities in the provided source, practitioners must rely on the plain language of the statute for interpretation, and if contentious issues arise they would expect courts or tribunals to be asked to construe statutory phrases such as "market asset", "transfer time", "purposes of a section 9 disposal" and the scope of the non-reviewable planning condition in s 16(4). The Act’s deliberate provisions limiting reviewability and depriving parties of compensation in many situations are likely to be focal points if litigation occurs.

The Act contains multiple provisions that can surprise buyers, tenants, registrars and advisers if not expressly considered.

Automatic transfer without conveyance. Section 22 transfers specified assets and liabilities by operation of the Act at the transfer time without conveyance, transfer, assignment or assurance and without prior notice or further act. Parties who expect transactional formalities to be prerequisites for transfer must recognise the statutory override. This also means that assurance and title searches may not show a transfer until the Registrar records the transfer order pursuant to s 26(3).
Schedules may be withheld from Gazette but available for limited inspection. Transfer orders may specify persons or things by reference to schedules that need not be published in the Gazette but must be available for inspection on business days for six months after publication (s 21(4)). Sensitive schedule content may therefore be withheld from broad public circulation while still being effective. The Minister must consult relevant officials about schedule form and content before making such a transfer order (s 21(8)).
Unregistered long leases bind disposals. Section 12 preserves prior unregistered leases or agreements for lease or letting for terms exceeding five years as binding the land despite non-registration. Purchasers who rely on title certificates without examining possession or unregistered interests risk unexpected tenancy encumbrances.
Planning and approvals effectively overridden or deemed. Section 14 deems certain approvals to have been issued where development or building work or uses occurred prior to the section’s commencement without approvals. Section 13 removes the application of Planning and Development Act 2005 s 136 where land was already subject to certain long leases. Section 16 mandates warehousing conditions for CTL development applications and renders those conditions non-reviewable by SAT (s 16(4)). These are significant curtailments of normal planning checks and review rights, and may surprise buyers or developers expecting ordinary planning appeal rights.
Public market use conditions and warehousing minima. Disposal of the central trading lot must be subject to a 20 year obligation that a part be used as a public market (s 15(2)). CTL development applications within 20 years must include warehousing areas of at least 46,500 m2 for immediate support and at least 24,000 m2 set aside for future warehousing (s 16(2)). These minimums are precise, potentially rigid development constraints that affect both land value and future development flexibility.
Tax-exemption not absolute. State tax is not payable in relation to things occurring by operation of Parts 2 and 3, and the Minister may certify such matters (s 36(2)-(4)), but the Minister may direct that the exemption does not apply in specified cases (s 36(5)). Transactions parties should not assume automatic duty exemption without appropriate certification or confirmation.
Confidentiality package with large monetary fines. Section 28 permits authorised disclosures for disposal purposes to avoid civil wrongs, but s 29 makes it an offence for bound recipients or third parties who receive confidential information from a bound recipient to disclose it, with a fine of $200,000. That creates a strong deterrent; parties must ensure confidentiality agreements are carefully drafted and that "bound recipients" understand the statutory offence attached to breaches.
Non-compensation for statutory operation. Section 39 disclaims compensation payable by or on behalf of the State because of enactment or operation of the Act or statements connected with enactment. The narrow exceptions relate to contractual consideration or compensation payable under agreements entered into for the disposal. Parties relying on compensation for statutory consequences may therefore find little statutory recourse.
Retrospective regulations and correction powers. Regulations and ministerial correction orders may be expressed to take effect before their gazetting day or before the publication day of related regulations, subject to protections that avoid prejudicing private persons (s 40(3)-(4), s 27(2)-(3)). These mechanisms give the executive flexibility to correct errors and to make regulations operate in tightly defined retrospective windows, which can complicate transactional certainty if not monitored.
Transfer of liabilities and need for Treasurer safeguards. Section 22 transfers liabilities to the transferee by operation of statute. The Treasurer’s power to give indemnities and to take over obligations (ss 31-32) is a key practical control for creditors and transferees, but those are discretionary and payments are charged to the Consolidated Account. Parties should check whether Treasurer indemnities or takeovers have been provided in any specific disposal.
Corporations Act displacement and record sharing. Sections 20(4) and 25(5) declare those provisions to be Corporations legislation displacement provisions. This affects how corporate governance and shareholders’ rights interact with Ministerial directions and record-delivery obligations. Directors and officers need to be aware that compliance with Ministerial directions is mandated and protected where done in good faith (s 20(3)).
Effect on existing contracts. Section 38 declares that the Act’s operation is not to be regarded as a breach of contract or other civil wrong and is not to give rise to rights or remedies of parties to contracts. Contracting parties who expect ordinary contractual protections against assignment or statutory alteration should treat those expectations as potentially displaced.

Each of the above is a concrete point where statutory mechanics depart from ordinary commercial or land law expectations; advisers should explicitly address them in due diligence, transaction documentation and client advice.

For practitioners advising transferors, transferees, corporate vehicles, registrars or the Authority, the Act prescribes a set of procedural and substantive steps to ensure lawful and effective disposals. The following is a practical compliance checklist based on the Act’s provisions.

Obtain Treasurer approval before a section 9 order. The Minister cannot make a section 9 order without the Treasurer’s approval (s 9(3)). Ensure written evidence of Treasurer approval is secured.
Draft and publish section 9 order. The Minister must publish the section 9 order in the Gazette and the order takes effect on publication or on a later day specified in the order (s 9(1), (4)). Confirm the operative date in the order.
Determine disposal vehicle(s). Decide whether to use corporate vehicles, trusts, a company created by the Under Treasurer or other entities permitted by s 10. If a company is to be created for the State, coordinate with the Under Treasurer to ensure the necessary steps are taken (s 10(4)) and determine who will hold securities on behalf of the State among the persons specified in s 10(6).
Prepare transfer order and schedules. For the intended assets and liabilities, prepare a transfer order under s 21 specifying the transfer time, transferor, transferee, and any agreements or instruments to be treated as transferring. If adopting schedules, ensure they meet s 21(4)-(6) requirements andwill be available for inspection for six months.
Consult relevant officials on schedule form and content. Before making a transfer order with schedules, consult each relevant official who must receive a copy under s 26(2) about the form and content of the schedule to facilitate recording and registration (s 21(8)).
Publish transfer order and give copies to relevant officials. Publish the transfer order in the Gazette and provide copies of the transfer order, any amendments and correction orders, and any notice with respect to the transfer time to each relevant official (s 26(2)).
Register instruments and record effect. Ensure relevant officials take notice and register instruments necessary to show the effect of the transfer (s 26(3)). Follow up with the Registrar of Titles and other registries to confirm registrations reflect statutory transfers.
Deliver and share relevant records. The Minister may give directions as to relevant records to be delivered, shared or made accessible to the transferee; transferors must comply and arrange delivery/access accordingly (s 25(2)-(4)). Ensure data rooms, electronic sharing platforms or physical file transfers are planned and executed in compliance with any such direction.
Address confidential information and comply with disclosure rules. If confidential information will be shared, document who are bound recipients and ensure appropriate confidentiality agreements are executed and consistent with s 28 and the penalties of s 29. Train personnel on statutory disclosure rules to avoid inadvertent breaches.
Confirm treatment of land interests. For land in the disposal, confirm whether there are prior unregistered leases exceeding five years since s 12 preserves such leases as binding. Verify any CTL development application considerations and the 20 year public market-use restrictions applicable to the central trading lot (ss 12, 15).
Obtain Ministerial tax certification where appropriate. To obtain State tax exemption for matters occurring by operation of Parts 2 and 3, request the Minister’s written certification under s 36(3). Keep the certificate as evidence since it is sufficient unless the contrary is shown (s 36(4)). Confirm whether the Minister has directed that the exemption not apply in any specific instance (s 36(5)).
Check for and secure Treasurer indemnities. Identify material contingent liabilities and, if prudent, seek Treasurer indemnities or guarantees under s 31, and if necessary the Treasurer taking over obligations under s 32. Where indemnities are provided, ensure documentation of the Treasurer’s decisions and identify whether payments would be charged to the Consolidated Account.
Ensure corporate governance compliance and note Corporations Act displacement. Directors and officers must comply with Ministerial directions for disposals (s 20(1)-(3)). Be alert to declared displacement provisions and obtain legal advice where corporation law conflicts may arise.
Plan for staff transition and statutory repeal. If the Perth Market Act 1926 is to be repealed, the Minister must consult the Public Sector Commissioner and arrange employing authority and staff transfers in accordance with s 43. Protect staff terms, superannuation and continuity of service as required.
Address development conditions and non-reviewability. If developing the central trading lot, ensure CTL development applications within 20 years include the warehousing areas mandated by s 16(2), and recognise these conditions are not reviewable by SAT (s 16(4)).
Make transfer-order corrections and amendments carefully. If errors in transfer orders are discovered, the Minister may correct errors by Gazette order and those corrections may be expressed to take effect on and after the transfer time; ensure corrections do not prejudice third-party rights as constrained by s 27(3). Amendments to transfer orders or schedules can only be made before the transfer time and with transferee consent (s 21(9)).
Address restrictions on other public markets. Where relevant, assess whether the local government prohibition under s 37 applies in specified areas for the specified period and take this into account for competitive and market planning.
Retain documentary evidence and maintain audit trail. Keep copies of all Gazette notices, transfer orders, schedules, Ministerial certifications, indemnities, consultation records with relevant officials, registration confirmations and confidentiality instruments. The Act ties legal effect to publication, official notices and registrar entries, so documentation is essential for proof.

Following this sequence and mapping each step to the statutory provision named will reduce legal and operational risk in typical disposals under the Act. When in doubt, obtain contemporaneous written Ministerial or Treasurer approvals and confirm registration actions with relevant officials.

Deep Dive

What it does

Current sections