Petroleum (Submerged Lands) Registration Fees Act 1982

Title. Section 4(1) defines “title” as a permit, lease, licence, infrastructure licence, pipeline licence or access authority. This definition is exhaustive and exactly mirrors the types of tenure that can be transferred or dealt with under the principal Act. It does not include exploration permits or production licences as separate categories; the term “licence” is broad enough to cover those under the principal Act. The definition was expanded in 2010 to include infrastructure licences, pipeline licences and access authorities, reflecting the evolution of offshore petroleum operations beyond simple exploration and production into transportation and processing.

Consideration and value. The fee is calculated on the higher of two amounts: the value of the consideration for the transfer or dealing, or the value of the title (or interest) being transferred. This dual basis prevents parties from artificially setting a low cash consideration to reduce the fee where the underlying asset is more valuable. Consideration is not defined in the Act, so it takes its ordinary contractual meaning - whatever the transferee gives in exchange for the transfer. Value of the title is also not defined; it would be assessed by the Minister in the absence of a market transaction. This creates valuation risk for parties who wish to transfer a title for nominal consideration, because the Minister may determine a higher value and apply the fee to that amount.

Prescribed amount. The Act repeatedly refers to a “prescribed amount” as a floor or cap. This amount is set by regulation under section 4A. The regulations are not reproduced in the compilation, so the actual dollar figure is not ascertainable from the Act alone. In practice, the prescribed amount is likely indexed or updated periodically. The Act gives no guidance on how the prescribed amount is to be set; it is entirely within the Governor’s discretion.

Related bodies corporate. Sections 4(4) and 4(7) allow a concession where parties to a transfer or dealing satisfy the Minister that they are related bodies corporate within the meaning of the Corporations Act 2001 (Cth), the transfer or dealing was solely for reorganisation or better administration, and it was not substantially for avoiding or reducing fees. The concession caps the fee at the prescribed amount (i.e., the minimum fee), rather than the 1.5 per cent ad valorem amount. This is a significant relief for intra‑group restructures. However, the condition that the transfer “was not executed substantially for the purpose of avoiding or reducing the registration fees” is a subjective test requiring Ministerial satisfaction. That introduces an element of discretion and potential compliance cost in proving the purpose.

Exploration works deduction. Section 4(8) applies only to dealings (not transfers). It permits the Minister to deduct the value of exploration works to be carried out under the dealing from the consideration or interest value, provided those works were required or permitted by the title at the time the application for approval was lodged. This is presumably intended to avoid double‑counting: if a dealing imposes an obligation to perform exploration works that were already required, the value of that obligation should not inflate the fee base. The deduction is discretionary (“as determined by the Minister”) and applies only to works that were already required or permitted under the title. It does not apply to new works voluntarily undertaken.

Incorporation with principal Act. Section 3 provides that this Act is incorporated and read as one with the principal Act. That means the definitions, administrative machinery and enforcement regime of the principal Act apply to the fee obligations. For example, the Minister’s powers to approve transfers and dealings under sections 78 and 81 of the principal Act are the triggers for the fees; the Act does not create a separate registration system. The incorporation also means that any amendment to the principal Act affecting the registration process may indirectly affect the fee obligations, even if this Act is not specifically amended.

The Act directly affects any person or entity that seeks to register a transfer of, or a dealing in, a petroleum title under the principal Act. That includes:

Titleholders. Any holder of a permit, lease, licence, infrastructure licence, pipeline licence or access authority who wishes to transfer all or part of that title. The transferor and transferee are jointly responsible for paying the fee? The Act says “payable to the Minister” but does not specify who must pay. In practice, the fee is likely a condition of registration, so the applicant (usually the transferee) pays it. The effect is to increase the transaction cost of selling offshore petroleum assets in Western Australia. The 1.5 per cent rate is material; for a title valued at AUD 100 million, the fee would be AUD 1.5 million. This may influence the structure of transactions, encouraging parties to use share sales rather than direct asset transfers (though share sales may not involve a registrable transfer of title under the principal Act, depending on how control is exercised).

Related entities of titleholders. The related‑body‑corporate concession is available to corporations that are “related” under the Corporations Act. This typically includes parent‑subsidiary groups and groups with common ultimate ownership. The concession reduces the fee to the prescribed amount, which is likely a small fixed sum. This affects how group restructures are documented: parties must ensure they qualify and can provide evidence to the Minister. The requirement that the transfer not be substantially for fee avoidance means that otherwise‑beneficial group reorganisations may incur additional legal costs to demonstrate the commercial purpose.

Financiers and counterparties to security interests. The dealing fee in section 4(5) applies to dealings approved under section 81 of the principal Act. Section 81 covers, among other things, assignments, transfers, creation or variation of charges (security interests), and entering into agreements that give a right to an interest in a title. A financier taking a charge over a petroleum title as security for a loan would trigger the dealing fee. Section 4(6)(b) specifically provides that if the dealing is only a charge over assets of a body corporate, the fee is the prescribed amount (i.e., the floor). This is an important relief for secured lending: it avoids the ad valorem fee that would otherwise apply to the value of the charged assets, which could be enormous. Without this provision, a charge over a billion‑dollar field would attract a AUD 15 million fee, making secured lending prohibitively expensive.

Third parties acquiring interests. The dealing fee also applies to assignments of a percentage interest in a title, farm‑in agreements, and other contractual arrangements that create an equitable interest. Joint venturers who wish to transfer or create interests among themselves must factor in the fee.

The Minister (and the State). The Minister is the recipient of the fees and has the administrative role of determining values for the fee calculation, granting the related‑body‑corporate concession, and deducting exploration works. The Act does not prescribe any right of review of the Minister’s determinations, which means applicants may be at the mercy of subjective judgment, subject to principles of administrative law.

Legal and accounting advisers. The complexity of the fee calculation - comparing consideration and value, determining whether the floor or cap applies, assessing related‑body status, and quantifying exploration works - creates compliance work for lawyers and accountants. Advisers must be familiar with both the principal Act and this Act.

Duty to pay the fee. Section 4(2) and (5) impose a statutory obligation to pay the fee upon registration of a transfer or approval of a dealing. The Act does not expressly state who is liable; it says the fee is “payable to the Minister”. In the absence of a specified debtor, the liability likely falls on the person lodging the instrument for registration - typically the transferee or the party seeking approval of the dealing. The fee is a condition precedent to the entry in the register; without payment, the Minister will not complete the registration, and the transfer or dealing will not be effective under the principal Act.

Right to a cap in certain cases. Sections 4(3), 4(4), 4(6) and 4(7) give the payer a right to have the fee capped at the prescribed amount in specified circumstances. The most important is for related bodies corporate (sections 4(4) and 4(7)). This is not automatic; the parties must “satisfy the Minister” of the conditions. There is no express provision for internal review or appeal if the Minister is not satisfied, but general judicial review principles would apply.

Right to deduct exploration works. Section 4(8) allows the calculation of the dealing fee to subtract the value of exploration works that were required or permitted under the title at the time of application. The Minister determines the value; again, the payer has no express right to challenge that determination but may seek judicial review for unreasonableness.

Duty to provide information. Because the Minister needs to determine values and satisfaction of conditions, the applicant has a practical duty to provide relevant information. There is no express obligation in the Act to provide documents, but failure to provide sufficient evidence may result in the Minister forming adverse conclusions or refusing to apply a concession.

Minister’s power to determine value. Section 4(8) gives the Minister explicit power to determine the value of exploration works. For the main fee calculation under section 4(2) and (5), the Minister also must determine the “value of the title” if that is the greater amount. The Act does not specify how the Minister is to value a title. The Minister could adopt market value, net present value of reserves, or some other metric. This creates legal uncertainty for parties who do not agree with the Minister’s valuation.

No right to offset or defer. The Act does not provide any mechanism for deferring payment or offsetting the fee against other amounts owed to the State. The fee is payable upfront upon registration.

The Act itself contains no penalty provisions. Like many revenue statutes, the enforcement mechanism is indirect: the fee is a precondition to the entry of the memorandum of transfer or the approval of the dealing in the register. If the fee is not paid, the Minister will not complete the registration, and the transfer or dealing will not take legal effect under the principal Act. This is a powerful incentive: without registration, the transfer of title is not recognised, and a dealing (such as a charge) may not be perfected.

Because this Act is incorporated with the principal Act by section 3, the penalties and enforcement provisions of the principal Act likely apply to any conduct that affects the fee obligation. The principal Act contains offences for providing false or misleading information in applications. A party that misstates the consideration or the nature of the relationship to obtain a concession could be liable for those offences. The principal Act also gives the Minister power to refuse to register an instrument that does not comply with the regulations. Since the fees are part of the regulatory scheme, non‑payment is non‑compliance.

The Act does not create a separate debt‑recovery mechanism. If the Minister were to register a transfer without collecting the fee erroneously, it is unclear whether the fee could later be recovered as a debt due to the State. There is no provision in this Act for that. The general law of restitution or statutory debt recovery under the principal Act might apply, but it is not explicit.

The Minister’s determinations of value under section 4(8) are not subject to any appeal mechanism within the Act. The only recourse would be judicial review on administrative law grounds (e.g., taking into account irrelevant considerations, acting unreasonably, or procedural unfairness). However, given the specialised nature of petroleum valuations, courts may give the Minister a wide margin of appreciation.

The Act also has no sunset clause or periodic review requirement. The fee rate (1.5%) has remained unchanged since 1990, although the definition of “title” has expanded. There is no provision for late‑payment interest or penalties for late lodgement of the fee, because the fee must be paid before registration - lateness is not an issue; the registration simply does not occur.

Principal Act (Petroleum (Submerged Lands) Act 1982). This is the most important interaction. By section 3, this Act is incorporated and read as one with the principal Act. That means the definitions in the principal Act (such as “Minister”, “register”, “permit”, “lease”, “licence”, “infrastructure licence”, “pipeline licence”, “access authority”) apply to this Act unless otherwise defined. The registration process, approval requirements under sections 78 and 81, and the Minister’s powers to approve or refuse transfers and dealings are all governed by the principal Act. The fee is an additional condition that must be satisfied before registration. Any amendment to the principal Act that changes the registration process or the nature of titles will automatically affect the scope of this Act’s fee provisions, even if this Act is not separately amended. For example, if the principal Act creates a new type of tenure, it would not be caught by the definition of “title” in section 4(1) unless that tenure is already within the list (permit, lease, licence, etc.). However, the 2010 amendment to add specific types of licences shows that the principal Act and this Act were amended in tandem.

Corporations Act 2001 (Cth). The related‑body‑corporate concessions in sections 4(4) and 4(7) rely on the meaning of “related bodies corporate” in the Corporations Act. That is a federal definition. Changes in federal corporate law could therefore affect eligibility for the concession without any amendment to this State Act. The interaction is indirect but important: a corporate group may qualify under the Corporations Act definition today but could lose that qualification if the group reorganises in a way that breaks the relationship. The Act also references the Corporations Act specifically as in force at the time of the amendment (2003), but section 4(4) and (7) do not contain a dynamic reference; they say “within the meaning of the Corporations Act 2001 of the Commonwealth”. That is probably a static reference to that Act as originally enacted, but a court might interpret it as a reference to the Commonwealth Act as amended from time to time, given the general principle that references to other Acts are ambulatory unless constrained by context.

Commonwealth offshore petroleum legislation. The principal Act applies to Western Australian‑adjacent submerged lands. There is also Commonwealth legislation for areas beyond the State‑Commonwealth boundary. This Act does not apply to Commonwealth‑administered titles. However, where there are joint‑authority arrangements or cross‑assignment between State and Commonwealth titles, the fee may apply only to the State‑registered component.

State revenue legislation. The fee is a specific statutory impost, not a tax under the Taxation Administration Act 2003 (WA) or similar. It is not a stamp duty or land tax. It operates alongside transfer duty on the underlying consideration, which may also be payable to the State on the same transaction. There is no credit or exemption for the registration fee in duty legislation. The combined cost of duty plus this fee could be significant.

Regulations under this Act and the principal Act. The prescribed amount is set by regulation under section 4A. The regulations under the principal Act govern the forms, procedures, and documentation for applications. The interaction is procedural: the applicant must comply with the principal Act’s application requirements and also calculate and pay the fee in accordance with this Act.

The Act was originally enacted as No. 34 of 1982, receiving assent on 27 May 1982 and commencing on 14 February 1983 (gazetted 25 February 1983). It commenced simultaneously with the principal Act, as required by section 2. The original fee provisions are not preserved in the compilation; the current section 4 was inserted by the Petroleum (Submerged Lands) Registration Fees Amendment Act 1990 (No. 13 of 1990). That amendment, which came into operation on 1 October 1990, replaced the original fee schedule with the ad valorem 1.5% structure, added the related‑body‑corporate concession, the exploration‑works deduction, and the floor/cap mechanism. It also inserted section 4A giving the Governor the power to make regulations, including prescribing amounts.

The Corporations (Consequential Amendments) Act (No. 2) 2003 (No. 20 of 2003) updated references from the Corporations Law to the Corporations Act 2001 (Cth). This amendment took effect retrospectively from 15 July 2001, the date the Corporations Act commenced in Western Australia. The amendment was purely mechanical, updating statutory references without changing the substance of the fee or concessions.

The Petroleum and Energy Legislation Amendment Act 2010 (No. 42 of 2010) section 185 amended section 4(1) to add “infrastructure licence, pipeline licence or access authority” to the definition of “title”. This came into operation on 25 May 2011. The effect is to extend the fee to new kinds of interests that were created or separately defined in the principal Act by the same amending Act. The amendment ensured that fees would be payable on transfers and dealings in these new titles, rather than leaving a gap.

The Act has been reprinted three times: as at 18 March 1992 (after the 1990 amendments), as at 13 February 2004 (after the 2003 consequential amendments), and as at 7 October 2011 (after the 2010 amendments). The current text is based on the 2011 reprint with no further commenced amendments.

There is one uncommenced amendment: the Petroleum Legislation Amendment Act 2024 (No. 17 of 2024) Part 5 Division 11. This division is not yet in force; it will be proclaimed at a later date. The content of Division 11 is not shown in the compilation, but the uncommenced provisions table indicates that it will amend this Act. The 2024 Act deals broadly with petroleum legislative amendments, possibly including changes to fees or title definitions. Until it commences, the current Act remains unchanged.

The Act itself records no litigation. The compilation notes do not cite any court decisions interpreting the Act. Given the specialised nature of the legislation and the relatively small number of title transactions in Western Australian offshore waters, there may be no reported cases. The absence of litigation suggests that either the fee is straightforward enough not to provoke disputes, or that the amounts involved are too small relative to the transaction costs to justify legal challenge. However, the Minister’s determinations of value under section 4(8) could theoretically be challenged, as could refusals to apply the related‑body‑corporate concession. Any such challenges would likely be brought under general administrative law in the Supreme Court of Western Australia, not under any specific provision in the Act.

The Act’s incorporation into the principal Act means that litigation concerning the principal Act may have indirect bearing. For example, a case that decides the meaning of “transfer” or “dealing” under sections 78 or 81 of the principal Act would determine which transactions trigger the fee. Those cases would not be recorded under this Act’s title. Similarly, any case that considers the meaning of “related bodies corporate” in the Corporations Act for general purposes would apply to the concession in this Act.

Practically, the most likely source of dispute is the valuation of a title. Unlike real property, petroleum titles have no standard valuation methodology; the Minister’s valuation might differ substantially from the parties’ view. If the parties believe the Minister has overvalued the title, they have no statutory right of objection. They could seek to have the matter stayed until judicial review, but that would delay the transfer. Given the commercial imperative to complete transactions quickly, parties may accept the Minister’s valuation rather than risk delay. This may explain the lack of litigation , the cost of challenge exceeds the potential benefit in most cases.

The related‑body‑corporate concession requires Ministerial satisfaction on three conditions. An adverse decision could be challenged for legal error, but the factual findings would be hard to overturn. The requirement that the transfer be “not substantially for the purpose of avoiding or reducing” fees is particularly subjective. A party that genuinely needs a restructure for administrative efficiency but also incidentally reduces fees might face an uphill battle.

The following aspects of the Act are easily overlooked and can cause unexpectedly high costs or procedural failures.

1. The fee is based on the greater of consideration or value, not just consideration. If parties agree to a low or nil consideration for a transfer (e.g., a gift or internal restructure), the Minister may assess the value of the title itself and charge 1.5% on that. The value of a petroleum title can be enormous, even if no cash changes hands. For example, a transfer of a 10% interest in a producing field with no cash consideration (perhaps as part of a broader arrangement) could still attract a fee on the assessed value. Parties should obtain a realistic valuation early and budget for the fee accordingly.

2. The related‑body‑corporate concession applies only if the fee would otherwise be more than the prescribed amount. Sections 4(4)(b) and 4(7)(b) both contain this condition. If the 1.5% fee on an intra‑group transfer is already at or below the prescribed amount (e.g., because the title has low value), the concession is irrelevant because the fee is already the prescribed amount. The concession only caps it; it does not reduce it further. The practical effect is that the concession matters only for high‑value titles. For low‑value titles, the group already pays the floor fee anyway.

3. The related‑body‑corporate concession requires Ministerial satisfaction that the transfer was “not executed substantially for the purpose of avoiding or reducing the registration fees”. This is a subjective test with no safe harbour. A group that restructures to achieve better administration will have to demonstrate that administration was the primary purpose. If the transaction also reduces fees (which it likely will, because the group qualifies for the cap), the Minister could argue that fee reduction was a substantial purpose. There is no case law on this provision. To mitigate risk, parties should prepare contemporaneous documentation of the business reasons and be ready to provide it to the Minister.

4. The exploration‑works deduction in section 4(8) only applies to dealing fees, not transfer fees. If a transfer is part of a farm‑in agreement that includes work obligations, the deduction cannot be used to reduce the transfer fee. The deduction is also limited to works that were “required or permitted” under the title at the time of application. If the dealing imposes new work obligations that go beyond what was already permitted, those new works are not deductible. The Minister determines the value; the party cannot simply claim the cost of the works.

5. The “prescribed amount” is not in the Act. The actual dollar figure for the floor and cap is set by regulation. The regulations are not reproduced in the compilation. A party cannot calculate the fee without looking up the current regulations. The prescribed amount may also differ for different transaction types (transfer vs dealing). The Act does not specify that the same amount applies to each.

6. A charge over assets of a body corporate attracts only the prescribed amount (section 4(6)(b)). This is a relief for financiers, but the provision is narrowly worded: it applies only if the dealing is a charge over “some or all of the assets of a body corporate”. It does not apply to a charge over an individual title that is held by a trust or by an individual. It also does not apply to other types of security interests (e.g., a mortgage of title) unless they fall within the definition of “charge”. The distinction between a charge and other security interests is a matter of property law; legal advice is essential.

7. The fee is payable upon entry in the register, not upon lodgement. The ministerial practice may require payment at the time of lodging the application. The Act is silent on timing. If the Minister accepts the application without payment but then refuses to enter the memorandum until payment, the applicant has a contingent liability. The applicant should confirm payment procedures with the department before submitting.

8. There is no express refund mechanism. If a transaction falls through after the fee is paid, the Act does not provide for a refund. The principal Act may allow withdrawal of an application before registration, but there is no guarantee of a refund of the fee. This creates a risk if deals are subject to conditions precedent.

Compliance with this Act is procedural and requires careful calculation and documentation. Because the Act is incorporated with the principal Act, the steps for registering a transfer or obtaining approval of a dealing under the principal Act automatically trigger the fee obligation. The following steps outline a typical compliance path.

Step 1: Identify whether the transaction triggers a fee. A fee under section 4(2) is payable on “an entry in the register of a memorandum of the transfer of a title” under section 78 of the principal Act. A fee under section 4(5) is payable on “an entry in the register of the approval of a dealing” under section 81. Examine the transaction: if it involves a transfer of legal title (permit, lease, licence, infrastructure licence, pipeline licence, access authority), it triggers the transfer fee. If it involves an assignment, charge, or agreement to assign an interest, it triggers the dealing fee. Some transactions may trigger both (e.g., a transfer that also involves a new charge); careful analysis is needed.

Step 2: Determine the fee base. For a transfer, calculate the greater of: the value of the consideration (cash, release of obligations, assumption of liabilities) and the value of the title. Where the consideration is not cash, obtain an expert valuation of the title to avoid underpayment. For a dealing, the fee base is the greater of: the consideration for the dealing (apportioned across titles if multiple), or the value of the interest in the title, subject to the exploration‑works deduction. If the dealing involves a title where exploration works are required, obtain a Ministerial determination of the value to be deducted (section 4(8)).

Step 3: Check whether a concession or cap applies. The prescribed amount (from regulations) is the floor. If the calculated fee is less than the prescribed amount, the fee is the prescribed amount. If a fee was already paid on an earlier instrument that led to the transfer, the transfer fee is capped at the prescribed amount (section 4(3)). If the parties are related bodies corporate (under Corporations Act), and the transfer or dealing is for reorganisation or better administration, and not substantially for fee avoidance, the fee is capped at the prescribed amount (sections 4(4) and 4(7)). To rely on the related‑body concession, prepare evidence: corporate organisation charts, board resolutions explaining the purpose, and a declaration that no fee‑avoidance purpose exists. Submit this to the Minister along with the application.

Step 4: Prepare and lodge the application under the principal Act. The application form and supporting documents required by the principal Act and its regulations must be submitted. Include a calculation of the fee, with supporting evidence of consideration and valuations. If seeking the related‑body concession, include the evidence. If seeking an exploration‑works deduction, request the Minister to determine the value.

Step 5: Pay the fee. The fee is payable at the time specified by the Minister or the department. Typically, payment must accompany the application or be promised before registration. Ensure the correct amount is paid. The method of payment (cheque, electronic transfer) should be confirmed with the administering agency.

Step 6: Receive registration. Once the Minister approves the transfer or dealing, the memorandum or approval is entered in the register, and the transaction is effective. The fee receipt should be retained as evidence of compliance.

Step 7: Monitor for changes. The prescribed amount may change by regulation. The definition of “title” may be expanded by future amendments to the principal Act. The 2024 uncommenced amendments may alter the fee structure. Keep track of gazette notices and regulatory amendments.

Step 8: Seek legal and valuation advice. Given the complexity of valuation, the Minister’s discretion, and the potential for significant fees, engage experienced petroleum lawyers and valuation experts for any substantial transaction. Relying on the Act alone is insufficient; the interaction with the principal Act and the regulations is critical. The precise dollar amount of the prescribed fee is not in this Act; you must consult the current regulations.