Pilbara Port Assets (Disposal) Act 2016 (Western Australia)

This Act establishes a statutory framework enabling the State of Western Australia to dispose of assets and businesses relating to the Utah Point Bulk Handling Facility by ministerial order and by transfer orders that operate by statute. Mechanically, the Act:

Authorises disposals of port assets and associated assets only where the Minister has made a section 10 order (a “section 10 disposal”) published in the Gazette (s 9, s 10). The Minister’s order may be framed in general terms and need not set out transactional detail (s 10(2)). The Minister must have the Treasurer’s approval where the Minister is not the Treasurer and, where not the minister administering the Port Authorities Act 1999, must have that Minister’s approval (s 10(3)-(4)). An order takes effect on the day after Gazette publication unless another day is specified (s 10(5)).
Enables transfers of specified assets, liabilities, proceedings and contractual rights by transfer order published in the Gazette (s 20-21). A transfer order may transfer assets and liabilities by operation of the statute at the “transfer time” specified in the order, without the need for conveyance, assignment or further act (s 21(2)(a)-(b)). The Minister must provide copies of transfer instruments to land and registry officials and those officials must register and record documents to show effect (s 25).
Permits the State to use corporate vehicles, trusts or subsidiaries as acquisition vehicles and to create companies on behalf of the State, with the Under Treasurer to take steps to create any company required (s 11(2)-(6)). The Act gives corporate vehicles usual powers needed to carry out disposals, including acquiring land and creating subsidiaries (s 17).

CrestWestern Australia

Pilbara Port Assets (Disposal) Act 2016

Western Australia

Pilbara Port Assets (Disposal) Act 2016

Contents

Part 1 — Preliminary matters

Short title 2
Commencement 2
Terms used 2
Associated assets and associated agencies 6
Purposes of section 10 disposal 6
Things on land 6
Severance of things on land 6
Act binds Crown 7

Part 2 — Enabling disposal

Disposal of port assets and associated assets authorised 8
Minister may order disposal of port assets or associated assets 8
Effecting disposal 9
Disposal of land 9
Land subject to unregistered leases with terms exceeding 5 years 11
Functions and powers of Minister 11
Functions and powers of Authority 11
Functions and powers of associated agencies 11
Functions and powers of corporate vehicles 11
Directions by Minister 12
Regulations about corporate vehicles and trusts 12

Part 3 — Implementing disposal

Division 1 — Transfer orders

Minister may make transfer orders 14
Consequences of transfer orders 15
Completion of transactions for this Division 16
Effect of arrangements internal to transferors 16
Delivery and access to records 17
Registration of documents 18
Correction of errors in transfer orders 19

Division 2 — Disclosure of information

Authorised disclosure of information 19
Auditor General may disclose information 20
Offence of disclosing information 20

Division 3 — Other matters

Application of proceeds of disposal 21
Provision by State of indemnities and guarantees 21
Takeover by State of certain obligations 22

Part 4 — Provisions relating to corporate vehicles

Application of this Part 23
Acquirer’s powers and duties 23
Application of written laws to acquirer 23

Part 5 — Provisions relating to leases and licences

Term used: port facilities instrument 24
Minister may designate certain matters 24
Effect of provisions of port facilities instrument 25
References to port authority may include other entities 26
Making and registration of certain lease variations 27

Part 6 — Miscellaneous matters

Exemption from State tax 29
Effect of this Act on existing rights and obligations 30
No compensation payable 30
Government agreements not affected 31
Regulations for purposes of, or consequential on, section 10 disposals 31
Regulations for purposes of providing access to services 32
Preservation of rights to future access 35
Regulations 36

Schedule 1 — Utah Point Bulk Handling Facility

Notes

Compilation table 38

Defined terms

Western Australia

Pilbara Port Assets (Disposal) Act 2016

An Act to provide for the disposal of the whole or part of certain businesses carried on by, or all or any of certain assets or liabilities owned or managed by, the Pilbara Ports Authority, and for related purposes.

The Parliament of Western Australia enacts as follows:

Part 1 — Preliminary matters

1. Short title

This is the Pilbara Port Assets (Disposal) Act 2016.

2. Commencement

This Act comes into operation on the day after the day on which it receives the Royal Assent.

3. Terms used

In this Act, unless the contrary intention appears —

acquirer means the entity to which a port asset or associated asset is disposed of for the purposes of a section 10 disposal;

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 23(2);

Authority means the Pilbara Ports Authority under the Port Authorities Act 1999;

associated agency has the meaning given in section 4(3);

associated asset means an associated State asset or an associated SC asset;

associated SC asset has the meaning given in section 4(2);

associated State asset has the meaning given in section 4(1);

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

corporate vehicle means —

(a) a company created for the purposes of this Act each security in which is held by the Minister or the Treasurer on behalf of the State; or

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

(d) a subsidiary of a subsidiary mentioned in paragraph (b) or (c);

dispose of, in relation to a port asset or associated asset, includes —

(a) to sell the port asset or associated asset; and

(b) to grant a lease or licence in respect of the port asset or associated asset; and

disposer means the entity from which a port asset or associated asset is disposed of for the purposes of a section 10 disposal;

lease includes a concurrent lease, a sublease or a concurrent sublease;

liability —

(a) means any liability, duty or obligation —

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

(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 23(2);

port asset means —

(a) the whole or any part of a business carried on by, or any asset or liability owned or managed 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, an associated agency, a corporate vehicle or the State by, a corporate vehicle,

to the extent to which the business, asset or liability relates to or comprises the Utah Point Bulk Handling Facility or is owned or managed by the Authority and is, in the Minister’s opinion, associated with the Utah Point Bulk Handling Facility;

port authority means a port authority under the Port Authorities Act 1999 section 3(1);

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

(a) a port authority;

(b) a statutory corporation;

(d) the State;

port facility means —

(a) a port asset or associated asset disposed of under this Act; or

(b) an asset that was a port asset or associated asset before it was disposed of under this Act; or

(c) anything prescribed by the regulations to be a port facility for the purposes of the provision in which the term is used;

purposes, of a section 10 disposal, has the meaning given in section 5;

regulations means regulations made under section 48;

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 insofar as it relates to anything done or omitted to be done before the transfer time;

section 10 disposal means a disposal for which an order is in force under section 10;

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, other than a port authority, that is constituted, or continued in existence, under an Act;

transferee, in relation to a transfer order, has the meaning given in section 20(1)(b);

transferor, in relation to a transfer order, has the meaning given in section 20(1)(b);

transfer order means a transfer order made under section 20 as amended under that section or corrected under section 26;

transfer time, in relation to a transfer order, means the time specified under section 20(1)(a) in the transfer order;

***Utah Point Bulk Handling Facility*** means —

(a) the Authority berth known as berth 4 (shown for information coloured red and marked as “PH 4” on the map in Schedule 1); and

(b) the Authority stockyards known as stockyard 1 (shown for information coloured red and marked as “Stockyards” on the map in Schedule 1); and

(c) the Authority stockyards known as stockyard 2 (shown for information coloured red and marked as “Atlas Stockyard 2” on the map in Schedule 1).

4. Associated assets and associated agencies

(1) An associated State asset is any asset or liability that —

(a) is owned by the State but is not owned or managed by a statutory corporation; and

(b) is, in the Minister’s opinion, associated with a port asset.

(2) An associated SC asset is any asset or liability that —

(a) is owned by, or managed on behalf of the State by, a statutory corporation; and

(b) is, in the Minister’s opinion, associated with a port asset.

(3) An associated agency is a statutory corporation that owns or manages an associated SC asset.

5. Purposes of section 10 disposal

The purposes of a section 10 disposal include the following —

(a) the purpose of effecting or facilitating the section 10 disposal;

(b) any purpose ancillary or incidental to, or consequential on, the section 10 disposal.

6. 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.

7. Severance of things on land

(1) The Minister may, by order in writing for the purposes of a section 10 disposal, direct that a specified thing that is on land and is capable of being disposed of is not part of the land, regardless of whether it is in the nature of a fixture.

(2) The effect of the order is that, for the purposes of a section 10 disposal, the thing —

(a) is taken to be severed from the land; and

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

(3) The severance of a thing from land under this section does not affect the right of the thing to be situated on that land.

(4) The Minister may vary or revoke an order made under subsection (1).

8. 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

9. Disposal of port assets and associated assets authorised

(1) A port 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 10.

(2) A port 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 10.

(3) An associated State asset may be disposed of by the State if the disposal is authorised by an order made under section 10.

(4) An associated SC asset may be disposed of, whether by the associated agency or the State, if the disposal is authorised by an order made under section 10.

10. Minister may order disposal of port assets or associated assets

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

(a) direct the disposal of all or specified port assets or all or specified associated 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 or specific details about the assets the subject of the disposal.

(3) If the Minister is not the Treasurer, the Minister cannot make an order under subsection (1) without the Treasurer’s approval.

(4) If the Minister is not the Minister administering the Port Authorities Act 1999, the Minister cannot make an order under subsection (1) without the Minister’s approval.

(5) 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.

11. Effecting disposal

(1) Subject to section 12, there are no limitations on the nature of any transaction or arrangement that can be entered into for the purposes of a section 10 disposal.

(2) An express provision of this Act authorising the establishment of a particular kind of legal entity for the purposes of a section 10 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 10 disposal.

(4) If a company mentioned in paragraph (a) of the definition of corporate vehicle in section 3 is to be used for the purposes of a section 10 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) The Minister or the Treasurer 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 in the company so acquired by the person.

(6) The Minister may enter into on behalf of the State any agreement for the purposes of a section 10 disposal.

12. Disposal of land

(1) The following land can be disposed of under this Act —

(a) Crown land;

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

(2) Land referred to in subsection (1) can only be disposed of under this Act to a private entity by granting to the private entity —

(a) an interest in the land that is no greater than a leasehold interest for a period not exceeding 99 years; or

(b) a licence in respect of the land for a period not exceeding 99 years.

(3) The securities in a corporate vehicle can only be disposed of under this Act to a private entity if the corporate vehicle holds —

(a) an interest in the land referred to in subsection (1) that is no greater than a leasehold interest for a period not exceeding 99 years; or

(b) a licence in respect of the land referred to in subsection (1) for a period not exceeding 99 years.

(4) In calculating, for subsection (2) or (3), the period for which an interest in land or licence in respect of land (the interest or licence) is granted or is held, any further period is to be included.

(5) In subsection (4) —

further period means the period of any further interest in the land, or further licence in respect of the land, that may be granted whether under —

(a) an option to renew the interest or licence; or

(b) an option to renew any further interest or licence,

or otherwise.

(6) This section applies despite the Port Authorities Act 1999 section 28(3) and (4).

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

Despite the Transfer of Land Act 1893 section 68, 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.

14. 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.

15. 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 port asset under this Act, including the power to acquire land.

16. Functions and powers of associated agencies

An associated agency has all of the functions and powers that are necessary or convenient for the purposes of the disposal of an associated SC asset under this Act, including the power to acquire land.

17. 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 port asset under this Act, including —

(a) the power to acquire land; and

(b) the power to create subsidiaries.

18. Directions by Minister

(1) The Minister may, for the purposes of a section 10 disposal, give a written direction to the Authority, an associated agency or a corporate vehicle.

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

(3) The Authority, an associated agency or a corporate vehicle, or a director or officer of the Authority, an associated agency or a corporate vehicle, is not liable for, and does not contravene the Port Authorities Act 1999 or the Western Australian Land Authority Act 1992 by reason of, anything done or omitted to be done in good faith in compliance with, or purported compliance with, a direction given under subsection (1).

(4) Unless a direction given under subsection (1) specifies otherwise, nothing in the direction or this section affects any requirement under the Port Authorities Act 1999 or the Western Australian Land Authority Act 1992 for the approval of a Minister to be obtained in relation to any matter.

(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.

19. Regulations about corporate vehicles and trusts

(1) Regulations may make provision about the constitution, trust deed or another constituent document of a corporate vehicle or trust that is to be used for the purposes of a section 10 disposal.

(2) Regulations may declare a matter dealt with, provided for, done or occurring under regulations referred to in subsection (1) to be an excluded matter for the purposes of the Corporations Act 2001 (Commonwealth) section 5F in relation to —

(a) the whole of the Corporations legislation; or

(b) a specified provision of that legislation; or

(d) that legislation other than to a specified extent.

Part 3 — Implementing disposal

Division 1 — Transfer orders

20. Minister may make transfer orders

(1) For the purposes of a section 10 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 21, is to be transferred from the Authority, an associated agency, a corporate vehicle or the State as specified in the order (the transferor) to the Authority, 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 21, 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.

(2) 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.

(3) 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.

(4) For subsection (3)(b), a business day is a day other than a Saturday, Sunday or public holiday.

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

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

(7) 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 25(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 25(3)(b).

(8) 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.

21. 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.

22. 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.

23. 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.

24. 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 20(1) 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.

25. 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 20(8) amending a transfer order or any schedule for it;

(d) any notice published under section 20(2) 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.

26. 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 21 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 information

27. Authorised disclosure of information

(1) A disclosure of 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 the Statutory Corporations (Liability of Directors) Act 1996 section 5; or

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

(2) For subsection (1), a disclosure of information is authorised if it is made for the purposes of a section 10 disposal by —

(a) the Government or the Authority, an associated agency or a corporate vehicle; or

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

(3) For subsection (2), a disclosure of information made for the purposes of a section 10 disposal includes a disclosure of information whenever made if the disclosure is or was made for the purposes of a potential section 10 disposal.

[Section 27 amended: No. 13 of 2023 s. 217.]

28. Auditor General may disclose information

Despite the Auditor General Act 2006 section 46(2), the Auditor General may, for the purposes of a section 10 disposal, disclose to any person, or provide any person with access to, information in the possession or under the control of the Auditor General.

29. Offence of disclosing information

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

(a) obtains information connected with a section 10 disposal, whether through a disclosure authorised by section 27 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 10 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 10 disposal includes information whenever obtained if the information is or was connected with a potential section 10 disposal.

Division 3 — Other matters

30. Application of proceeds of disposal

The proceeds of a section 10 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 10 disposal; or

(b) the action (whether under a transfer order or otherwise) by which anything is disposed of in connection with a section 10 disposal.

(2) The Treasurer may, in the name and on behalf of the State, give to any person who is or has been a director or officer of the Authority, associated agency or 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, an associated agency 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 10 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 10 disposal, a port asset or associated SC asset is disposed of (whether under a transfer order or otherwise) from the Authority, an associated agency or a corporate vehicle (the disposer) to a corporate vehicle (the acquirer).

34. Acquirer’s powers and duties

To the extent prescribed by the regulations, the acquirer has the powers, duties, rights and obligations in respect of the port asset or associated SC asset that the disposer would have had if the disposal had not occurred.

35. Application of written laws to acquirer

(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 disposer; and

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

(2) An applicable written law is to be taken to apply to or in relation to, or to refer to, the acquirer —

(a) to the extent prescribed by the regulations; and

(b) with the changes that are prescribed by the regulations or are otherwise necessary or convenient for the purposes of this Part.

(3) Without limiting subsection (2), the regulations may provide that a reference in an applicable written law to the disposer that relates to the port asset or associated SC asset before the disposal occurred is to be taken to include a reference to the acquirer.

Part 5 — Provisions relating to leases and licences

36. Term used: port facilities instrument

In this Part —

port facilities instrument means —

(a) a lease or licence in respect of port facilities entered into for the purposes of a section 10 disposal; or

(b) a lease or licence designated under section 37(2)(a) as a port facilities instrument for the purposes of the section in which the term is used,

and includes that lease or licence as varied from time to time.

37. Minister may designate certain matters

(1) In this section —

associate, in relation to a lessee or licensee under a port facilities instrument, means —

(a) a related body corporate; and

(b) a trust, joint venture or partnership where the interest of the lessee or licensee or of a related body corporate in the trust, joint venture or partnership entitles the lessee or licensee or the related body corporate to —

(i) control the composition of the governing body of the trust, joint venture or partnership; or

(ii) cast, or control the casting of, more than one half of the maximum number of votes that might be cast at a general meeting of the trust, joint venture or partnership; or

(iii) control the business affairs of the trust, joint venture or partnership;

related body corporate means a body corporate that is related to the lessee or licensee by virtue of the Corporations Act 2001 (Commonwealth) section 50.

(2) The Minister may by order —

(a) designate a lease or licence as a port facilities instrument for the purposes of section 38 or 39, as the case requires;

(b) designate the lessee or licensee under a port facilities instrument, or an associate of the lessee or licensee under a port facilities instrument, as a port facilities instrument holder for the purposes of section 39;

(c) designate an agreement or arrangement as an agreement or arrangement entered into in connection with a port facilities instrument for the purposes of section 38.

(3) The Minister may by order vary or revoke an order made under subsection (2).

(4) An order under this section must be published in the Gazette.

38. Effect of provisions of port facilities instrument

(1) In this section —

lessee or licensee mean the lessee or licensee under the relevant port facilities instrument;

lessor or licensor mean the lessor or licensor under the relevant port facilities instrument;

related arrangement, in relation to a port facilities instrument, means an agreement or arrangement designated under section 37(2)(c) as an agreement or arrangement entered into in connection with the instrument and includes that agreement or arrangement as varied from time to time.

(2) The provisions of a port facilities instrument, or of any related arrangement, dealing with the following matters have effect according to their terms despite any law or rule to the contrary —

(a) the payment of any amount by way of premium, rent or other moneys under the port facilities instrument or related arrangement and the retention of any such amount by the lessor or licensor or the State;

(b) the non‑refundability of any payment made on account of rent, premium, option fee, outgoings, security deposit or otherwise;

(c) the amount payable by the lessee or licensee in consequence of a breach or early termination of the port facilities instrument;

(d) the continuance of the port facilities instrument or related arrangement and the obligations that the lessee or licensee has under the port facilities instrument or related arrangement, including payment of rent and other moneys, despite the occurrence of unintended or unforeseen circumstances;

(e) the circumstances or conditions under which the port facilities instrument may be terminated by a party to the instrument;

(f) the right of re‑entry or forfeiture that the lessor or licensor or the State has in respect of the port facilities instrument.

39. References to port authority may include other entities

(1) In this section —

affected written law means —

(a) regulations under the Dangerous Goods Safety Act 2004;

(b) the Emergency Management Act 2005;

(d) the Lights (Navigation Protection) Act 1938;

(e) the Marine and Harbours Act 1981;

(f) the Marine Navigational Aids Act 1973;

(g) the Pollution of Waters by Oil and Noxious Substances Act 1987;

(h) the Port Authorities Act 1999;

(i) the Shipping and Pilotage Act 1967;

port facilities instrument holder means a person designated by order under section 37(2)(b);

specified means specified in the regulations.

(2) The regulations may provide that a reference to a port authority in a provision of an affected written law that is prescribed in the regulations —

(a) is to be taken to be a reference to a specified port facilities instrument holder in lieu of a specified port authority; or

(b) is to be taken to include a reference to a specified port facilities instrument holder.

40. Making and registration of certain lease variations

(1) In this section —

relevant official has the meaning given in section 25(1).

(2) If —

(a) before a section 10 disposal took place an agreement to lease existed between the Authority, the State or an associated agency and another entity (the third party) in relation to land; and

(b) for the purposes of the section 10 disposal the land was disposed of by way of a lease (the acquirer’s lease) recorded and registered by a relevant official under a written law; and

(c) the acquirer subsequently surrendered the land in order that a lease of the land could be granted to the third party in accordance with the agreement to lease,

the acquirer’s lease may be varied to reinclude the land, creating a concurrent lease over the land.

(3) If the Minister certifies in writing —

(a) that the matters set out in subsection (2)(a), (b) and (c) occurred; and

(b) that the acquirer’s lease has been varied under subsection (2),

a relevant official may record and register the variation of the acquirer’s lease.

Part 6 — Miscellaneous matters

41. 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.

42. Effect of this Act on existing rights and obligations

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

(b) being 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) being 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, any surety or other obligee from the whole or part of an obligation.

(2) This section does not limit section 44.

43. 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 10 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 10 disposal.

(3) This section does not limit section 44.

44. Government agreements not affected

(1) In this section —

Government agreement means an agreement referred to in paragraph (a) of the definition of Government agreement in the Government Agreements Act 1979 section 2 and, if the agreement has been varied, means the agreement as varied.

(2) This Act does not prejudice or in any way affect any right or obligation of a party to a Government agreement.

(3) The operation of the Government Agreements Act 1979 in relation to this Act is not limited or otherwise affected by this Act.

(4) This section does not limit section 27.

45. Regulations for purposes of, or consequential on, section 10 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;

the State includes a Minister, officer or agency of the State.

(2) Regulations may provide for —

(a) matters for which it is necessary or convenient to make provision for the purposes of a section 10 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, 4 or 5.

(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 10(1)(a) for the section 10 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 or the disposer or acquirer under the section 10 disposal) the rights of that person existing before publication day for those regulations; or

(b) to impose liabilities on any person (other than the State or the disposer or acquirer under the section 10 disposal) in respect of anything done or omitted to be done before publication day for those regulations.

46. Regulations for purposes of providing access to services

(1) In this section —

access arrangement, for a service, means an instrument approved under subsection (3)(b) in respect of the service and includes the instrument as amended or replaced under subsection (3)(c);

price regulation of a service includes the setting of pricing principles, or prices, for access to the service and the monitoring of prices for access to the service;

regulator means the person prescribed by the regulations to be the regulator in respect of access to services;

service means —

(a) a port or other service provided by means of a port facility; or

(b) a service ancillary or incidental to a port or other service referred to in paragraph (a);

service provider of a service means the person who owns, controls or operates the port facility —

(a) by means of which the service is provided; or

(b) by means of which a service to which the service is ancillary or supplemental is provided.

(2) Regulations may provide for access to a service, or price regulation of a service, or both.

(3) Without limiting subsection (2), the regulations may do any or all of the following —

(a) require the service provider of a service to lodge with the regulator an instrument setting out —

(i) the terms and conditions on which access to the service is to be provided; or

(ii) arrangements for price regulation of the service; or

(iii) the terms and conditions on which access to the service is to be provided and arrangements for price regulation of the service;

(b) provide for a process for the approval by the regulator of an instrument referred to in paragraph (a), including the matters to be taken into account by the regulator when deciding whether or not to approve the instrument;

(c) provide for a process for the approval by the regulator of any amendment or replacement of an instrument referred to in paragraph (a), including the matters to be taken into account by the regulator when deciding whether or not to approve the amendment or replacement;

(d) provide for the production of information by the service provider of a service to enable persons to understand the elements of an access arrangement for the service;

(e) set out, or provide for an instrument referred to in paragraph (a) to set out, duties and requirements in relation to the provision of a service that are to be complied with by the service provider of the service;

(f) set out the obligations of the service provider of a service in respect of the segregation of the functions and business of providing the service from the service provider’s other functions and businesses and enable the regulator to add to, or waive any of, those obligations;

(g) make provision in relation to services between bodies corporate that are related to each other by virtue of the Corporations Act 2001 (Commonwealth) section 50;

(h) provide for the arbitration of disputes between a service provider of a service and a person who is proposing to access, or is accessing, the service under an access arrangement, including the establishment of a panel of arbitrators and appointment of arbitrators by the regulator;

(i) provide that a provision of the regulations that imposes an obligation on a person is a civil penalty provision;

(j) prescribe, for a contravention of a civil penalty provision, the amounts that may, in accordance with the regulations, be demanded from or imposed on a person who contravenes a civil penalty provision, being —

(i) an amount not exceeding $500 000; and

(ii) an additional amount not exceeding $20 000 for each day or part of a day that the contravention continues;

(k) provide for the demand for payment of an amount prescribed under paragraph (j) and the enforcement of that demand;

(l) provide for and regulate the taking of proceedings in respect of alleged contraventions of provisions of the regulations, provide for the orders that can be made and other sanctions that can be imposed in those proceedings and provide for the enforcement of those orders and sanctions;

(m) provide for the manner in which an amount received by way of civil penalty is to be dealt with and applied;

(n) prescribe, for an offence under the regulations, a fine not exceeding $100 000, with or without an additional fine not exceeding $20 000 for each day or part of a day that the offence continues;

(o) provide for the review by a person specified in the regulations of a decision made under the regulations;

(p) confer functions on the Minister, the Economic Regulation Authority under the Economic Regulation Authority Act 2003 or any other person.

(4) An access arrangement is not subsidiary legislation for the purposes of the Interpretation Act 1984.

47. Preservation of rights to future access

(1) In this section —

access means access to a service;

access capacity means the capacity to provide services of the person who owns, controls or operates a port facility;

eligibility request for access means a request for access that would not, if granted, result in the proportion of the access capacity taken up by protected users exceeding 50%;

prescribed period for a request for access means 180 days, or such other period as is specified in regulations, after the day on which the request is made;

prescribed user means a person specified in regulations as a user or potential user of a service;

protected user means a user or potential user of a service other than a prescribed user;

service has the meaning given in section 46(1).

(2) It is a condition of the operation of a port facility that, subject to subsection (3), 50% of the access capacity must be reserved for protected users.

(3) Despite subsection (2) if a request for access made by a prescribed user would, if granted, result in the proportion of the access capacity taken up by prescribed users exceeding 50%, the request may be granted as long as it is granted on terms that would not prevent a protected user who subsequently makes an eligible request for access from being provided with access within the prescribed period or at a later time agreed to by the protected user.

48. 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.

Schedule 1 — Utah Point Bulk Handling Facility

[s. 3]

View image in the official source

dline

Notes

This is a compilation of the Pilbara Port Assets (Disposal) Act 2016 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
Pilbara Port Assets (Disposal) Act 2016	52 of 2016	13 Dec 2016	14 Dec 2016 (see s. 2)
Government Trading Enterprises Act 2023 Pt. 12 Div. 4	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)

access 47(1)

access arrangement 46(1)

access capacity 47(1)

acquirer 3, 33

acquirer’s lease 40(2)

affected written law 39(1)

applicable written law 35(1)

asset 3

associate 37(1)

associated agency 3

associated asset 3

associated SC asset 3

associated State asset 3

Authority 3

bound recipient 29(1)

company 3

corporate vehicle 3

dispose of 3

disposer 3, 33

eligibility request for access 47(1)

further period 12(5)

Government agreement 44(1)

interest or licence 12(4)

lease 3

lessee or licensee 38(1)

lessor or licensor 38(1)

liability 3

port asset 3

port authority 3

port facilities instrument 36

port facilities instrument holder 39(1)

port facility 3

prescribed period 47(1)

prescribed user 47(1)

price regulation 46(1)

private entity 3

protected user 47(1)

publication day 45(1)

purposes 3

record 24(1)

regulations 3

regulator 46(1)

related arrangement 38(1)

related body corporate 37(1)

relevant official 25(1), 40(1)

relevant record 24(1)

right 3

section 10 disposal 3

service 46(1), 47(1)

service provider 46(1)

specified 21(1), 39(1)

State tax 41(1)

statutory corporation 3

the State 45(1)

third party 40(2)

transfer order 3, 20(1)

transfer time 3

transferee 3, 20(1)

transferor 3, 20(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

Pilbara Port Assets (Disposal) Act 2016

Western Australia

Pilbara Port Assets (Disposal) Act 2016

Contents

Part 1 — Preliminary matters

Short title 2
Commencement 2
Terms used 2
Associated assets and associated agencies 6
Purposes of section 10 disposal 6
Things on land 6
Severance of things on land 6
Act binds Crown 7

Part 2 — Enabling disposal

Disposal of port assets and associated assets authorised 8
Minister may order disposal of port assets or associated assets 8
Effecting disposal 9
Disposal of land 9
Land subject to unregistered leases with terms exceeding 5 years 11
Functions and powers of Minister 11
Functions and powers of Authority 11
Functions and powers of associated agencies 11
Functions and powers of corporate vehicles 11
Directions by Minister 12
Regulations about corporate vehicles and trusts 12

Part 3 — Implementing disposal

Division 1 — Transfer orders

Minister may make transfer orders 14
Consequences of transfer orders 15
Completion of transactions for this Division 16
Effect of arrangements internal to transferors 16
Delivery and access to records 17
Registration of documents 18
Correction of errors in transfer orders 19

Division 2 — Disclosure of information

Authorised disclosure of information 19
Auditor General may disclose information 20

The statute is structured around a handful of principal concepts. Each is defined and operates as a legal mechanism rather than a policy statement.

Section 10 disposal and purposes, s 5 and s 3: A “section 10 disposal” is any disposal authorised by a section 10 order. The Act defines “purposes” of a section 10 disposal to include effecting or facilitating the disposal and any ancillary or consequential purposes (s 5). That definition is broad and is used to justify a wide range of acts and instruments “for the purposes of” a section 10 disposal.
Port asset, associated assets and associated agencies, s 3 and s 4: “Port asset” is defined by reference to assets or businesses of the Pilbara Ports Authority, or assets owned or managed by the Authority, an associated agency, a corporate vehicle or the State to the extent they relate to the Utah Point Bulk Handling Facility, in the Minister’s opinion (s 3). “Associated State asset” and “associated SC asset” cover State‑owned assets not held by statutory corporations, and assets owned or managed on behalf of the State by statutory corporations, where in the Minister’s opinion they are associated with a port asset (s 4). Those definitions explicitly rest on Ministerial opinion.
Transfer order and transfer time, s 20-21: A transfer order is the statutory instrument that effects transfers. It can specify the transfer time, identify assets, liabilities, proceedings and agreements to be transferred, and can do so by reference to schedules that do not need Gazette publication but must be available for public inspection for six months (s 20(1)-(3)). At the transfer time specified, specified assets and liabilities transfer by operation of section 21, and the transferee is substituted in proceedings (s 21).
Corporate vehicles and acquirers, s 3, s 11, s 33-35: “Corporate vehicle” is a tailored category including State‑owned companies and subsidiaries used to implement disposals (s 3). The Act expressly authorises use of trusts and corporate vehicles, and contemplates the Under Treasurer forming State companies and acquiring and disposing of securities on behalf of the State (s 11). When a corporate vehicle acquires assets, regulations may adapt the application of other written laws to the acquirer (s 34-35).
Port facilities instruments and statutory effect, s 36-38: Leases or licences can be designated as port facilities instruments. The Act gives the provisions of such instruments dealing with payment of money, non‑refundability, consequences of breach or early termination, continuity of obligations despite unforeseen circumstances, termination conditions and re‑entry or forfeiture effect despite any law or rule to the contrary (s 38). That is a carve out of ordinary legal consequences, creating contractual regime supremacy where designated.
Access and price regulation by regulation, s 46-47: The Act does not itself set detailed access rules but empowers regulation to create an access regime, require lodgement of access arrangements with an identified regulator, provide for approval and amendment processes, set duties (including segregation of functions), create arbitration mechanisms and impose civil and criminal sanctions for breaches, with upper limits for civil penalties and fines (s 46). Section 47 adds a statutory reservation that, as a condition of operation, 50 percent of a port facility’s access capacity must be reserved for “protected users,” subject to rules about prescribed users and eligibility requests.
Disclosure, confidentiality and offences, s 27-29: Disclosures made for the purposes of a section 10 disposal are authorised and are not a breach of duty or legal restriction (s 27). The Auditor General may disclose information for disposal purposes (s 28). Individuals given confidential information in connection with a disposal who are under a duty not to disclose face criminal fines of up to $200,000 for unauthorised disclosure (s 29).
Fiscal and protective provisions, s 30-32, s 41-43: Proceeds are payable to the Treasurer (s 30). The Treasurer may give indemnities and guarantees and may agree to take over obligations or discharge them on behalf of the State; payments under indemnities or taken‑over obligations are charged to the Consolidated Account (s 31-32). State tax exemptions apply to matters done under Parts 2 and 3 unless disapplied by Ministerial direction (s 41). The Act also states that no compensation is payable by the State for enactment or operation of the Act, subject to contractual considerations for disposal agreements (s 43).

These concepts form a package in which ministerial direction, statutory transfers, regulatory power, tax exemptions and indemnity mechanisms combine to facilitate disposals while insulating many transactional and contractual features from challenge or ordinary law. The Act thereby determines who can be made an acquirer, how transfer happens, what contractual terms will be insulated or validated, how records and registrations are to be effected, and the fiscal and liability treatment of the transaction.

The Act creates direct duties and confers rights on a small set of state entities, and consequential effects on a broader set of private and public stakeholders.

Primary public actors

The Minister and the Treasurer: The Minister is the gatekeeper for section 10 disposals (s 10). The Minister may only make an order with the Treasurer’s approval unless the Minister is the Treasurer (s 10(3)). The Treasurer holds financial levers: proceeds are payable to the Treasurer and the Treasurer may give indemnities and guarantees and take over obligations, with payments charged to the Consolidated Account (s 30-32). The Minister also issues transfer orders (s 20), directs the Authority and corporate vehicles (s 18), and can publish orders affecting procedural and substantive elements of disposals.
Pilbara Ports Authority (the Authority): The Authority is the primary transferor of “port assets” as defined, and is expressly given the functions and powers necessary for disposals, including acquiring land (s 15). The Authority is obliged to comply with directions under s 18 and has protections from liability for complying in good faith (s 18(2)-(3)).
Associated agencies/statutory corporations: An “associated agency” is any statutory corporation owning or managing associated SC assets (s 4(3)). These entities may be required to transfer assets and must comply with Ministerial directions (s 16, s 18).
Corporate vehicles: Defined in s 3 as companies created for the purposes of the Act with State securities or subsidiaries of such companies or of the Authority, corporate vehicles may be disposers or acquirers. The Act contemplates creation of corporate vehicles by the Under Treasurer on behalf of the State (s 11(4)-(5)).

Other public offices

Registrar of Titles and other relevant officials: The Minister must supply transfer orders and related instruments to relevant officials and those officials must take notice and record and register in the appropriate manner (s 25). The Auditor General may disclose information for disposal purposes (s 28).
Regulators under subsequent regulations: The Act contemplates a regulator being prescribed for access or price regulation functions and gives functions potentially to the Economic Regulation Authority or other person (s 46(3)(p)).

Private parties and market participants

Private acquirers and transferees: Private entities designated as transferees by a transfer order receive assets and liabilities by operation of law (s 21). They may acquire land only in the form of a leasehold interest or a licence not exceeding 99 years if the disposal is to a private entity (s 12(2)). If acquiring via corporate vehicle, securities in such vehicles can only be sold to a private entity if the vehicle holds no greater interest in land than a leasehold for 99 years or a licence not exceeding 99 years (s 12(3)).
Tenants and third parties: The Act preserves certain prior unregistered leases exceeding five years against disposals under the Act (s 13). It also establishes “port facilities instruments” protections which may alter ordinary rights and remedies of lessees or lessors (s 36-38). Protected users and prescribed users of services are created by regulation for access allocation (s 47).
Persons bound by confidentiality agreements: Those receiving information connected with a section 10 disposal and under a duty of confidentiality are “bound recipients” and face criminal penalties for unauthorised disclosure (s 29).
Directors and officers of the Authority or corporate vehicles: The Treasurer may give indemnities to current and former directors and officers against liabilities determined by the Treasurer, whether or not related to disposal matters (s 31(2)).

Diffuse impacts

Suppliers, port customers and competitors: The Act contemplates regulation of access and price for services provided by port facilities and can reserve capacity for protected users (s 46-47). These features will directly affect market access, allocation of capacity and pricing structures.
Government agreement parties: Rights and obligations under Government agreements are expressly preserved; the Act does not prejudice such agreements (s 44).

In short, the Act centralises decision rights in Ministers and Treasurer, places implementation obligations on the Authority and related entities, transfers property and liabilities by statute to transferees or acquirers, and creates regulatory levers that will affect private service providers, users and competitors through access, pricing and contractual regimes.

The Act sets out explicit duties and rights for the Minister, the Treasurer, the Authority, transferors, transferees, corporate vehicles, relevant officials and persons given confidential information. The principal duties and rights follow.

Minister and Treasurer

Authority to order disposals: The Minister may order disposals by Gazette publication (s 10). An order may be general, need not include transactional detail and is subject to Treasurer and other ministerial approvals when relevant (s 10(2)-(4)). The Minister may vary or revoke an order before it takes effect (s 10(1)(b)).
Power to make transfer orders: The Minister may make transfer orders specifying assets, liabilities, transfer time, substitution in proceedings, and substitution of parties in agreements by statutory operation (s 20). The Minister may amend transfer orders prior to the transfer time, but only with the transferee’s consent (s 20(8)).
Directions: The Minister may give written directions to the Authority, associated agencies or corporate vehicles for the purposes of a section 10 disposal. Those entities must comply and are protected from liability for acts or omissions in good faith compliance (s 18(1)-(3)). The section is declared a “Corporations legislation displacement provision” for the purposes of s 5G of the Corporations Act, meaning it displaces certain Corporations Act rules (s 18(5)).
Fiscal powers: The Treasurer receives proceeds (s 30), may give indemnities or guarantees in respect of matters related to disposals and may take over obligations or authorise payments to discharge them, with such payments charged to the Consolidated Account (s 31-32).

Authority, associated agencies and corporate vehicles

Compliance with Ministerial directions: The Authority, associated agencies and corporate vehicles must comply with Ministerial directions given for a section 10 disposal (s 18(1)-(2)). Compliance in good faith is protected from contravening other statutes or officer liability (s 18(3)).
Powers and duties: The Authority, associated agencies and corporate vehicles have all functions and powers necessary or convenient to effect disposals, including power to acquire land (s 14-17). Corporate vehicles have powers including creating subsidiaries (s 17).
Record and document duties: The Minister may direct which records must be delivered to or shared with the transferee; the transferor must comply and make arrangements for delivery and access (s 24). The Minister must give copies of transfer orders and related instruments to relevant officials and the officials must record and register appropriate instruments (s 25).

Transferees and acquirers

Statutory acquisition of assets and liabilities: At the transfer time a specified asset becomes an asset of the transferee and a specified liability becomes a liability of the transferee by operation of s 21, without need for conveyance, assignment or further act (s 21(2)(a)-(b)).
Substitution in proceedings and agreements: A transferee is substituted for the transferor in specified proceedings and references in specified agreements are taken to refer to the transferee unless the transfer order states otherwise (s 21(2)(c)-(d)).
Powers of acquirer: Where an acquirer is a corporate vehicle, the regulations may prescribe that the acquirer has the powers, duties, rights and obligations the disposer would have had if the disposal had not occurred (s 34). Regulations may also adapt applicable written laws to refer to the acquirer instead of the disposer (s 35).

Confidentiality and disclosure

Authorised disclosure: Disclosures for the purposes of a section 10 disposal by the Government, Authority, associated agencies or corporate vehicles are authorised and not to be treated as breach of contract, duty or written law restriction (s 27). The Auditor General may disclose information for disposal purposes (s 28).
Offence for unauthorised disclosure: Persons who obtain information connected with a section 10 disposal and are bound by a confidentiality duty commit an offence if they breach that duty; fine $200,000. Persons who obtain such information indirectly and disclose it without lawful excuse also commit an offence; fine $200,000 (s 29).

Contractual supremacy and land limits

Effect of port facilities instruments: The Minister may designate leases or licences as port facilities instruments and the Act gives statutory effect to specified contractual provisions (payment, non‑refundability, consequences of breach, continuation of obligations despite unforeseen events, termination and re‑entry) notwithstanding any law or rule to the contrary (s 36-38).
Land disposal limits: Land to private entities can be disposed of only by leasehold interest or licence not exceeding 99 years, and any options or further periods are included in calculating term length (s 12(2)-(5)). Prior unregistered leases exceeding five years remain effective against disposals under the Act despite Transfer of Land Act requirements (s 13).

Fiscal and legal protections

Tax exemption: State tax is not payable in relation to matters occurring by operation of Parts 2 and 3 or acting to give effect to them, except where the Minister directs otherwise (s 41(2), s 41(5)).
No compensation: The Act states no compensation is payable by the State because of the enactment or operation of the Act or in connection with disposals, except for consideration under agreements entered into for disposals or compensation payable in connection with performance of such agreements (s 43).
Indemnities and takeover: The Treasurer may give indemnities and guarantees and take over obligations, and may authorise payments to discharge taken‑over obligations, with payments charged to the Consolidated Account (s 31-32).

Taken together, the Act creates a statutory conveyor belt: Ministerial decision, transfer order that moves assets and liabilities by operation of statute, mandatory registration steps, record transfer and disclosure provisions, fiscal arrangements, and regulatory powers to shape post‑sale access and pricing.

Penalties and enforcement under the Act combine criminal fines for unauthorised disclosure, civil penalty regimes and enforcement powers to ensure transfer orders and registrations take legal effect. The statute also provides immunity and protection for officials acting under direction.

Disclosure and confidentiality penalties

Bound recipient offence: A “bound recipient” who obtains information connected with a section 10 disposal and is under a duty not to disclose commits an offence if the duty is breached. The penalty is a fine of $200,000 (s 29(2)). The same fine applies to a person who obtains such information via a bound recipient and discloses it without lawful excuse (s 29(3)). The Act defines “information connected with a section 10 disposal” broadly to include information connected with a potential disposal, whenever obtained (s 29(4)).

Regulatory civil penalties and criminal fines under regulations

Regulations may create civil penalty provisions and prescribe amounts to be demanded or imposed for contraventions, up to $500,000 and an additional amount up to $20,000 per day or part of a day for continued contravention (s 46(3)(i)-(j)). Regulations may provide procedures for demand and enforcement of civil penalties, provision for taking proceedings and sanctions, and handling of funds received as civil penalties (s 46(3)(k)-(m)). For criminal offences under the regulations, the Act allows a fine of up to $100,000 and an additional fine up to $20,000 per day for continued contravention (s 46(3)(n)).
The Act contemplates that the regulator, such as the Economic Regulation Authority or another person prescribed by regulation, may be conferred functions and enforcement powers (s 46(3)(p)).

Transfer orders and registration enforcement

Statutory effect of transfer orders: Transfer orders operate by statute at the transfer time to transfer assets, liabilities and substitute parties in proceedings without need for deed or conveyance (s 21). That legislative mechanism reduces reliance on court enforcement of transfer; the relevant officials are mandated to record and register instruments to show the effect (s 25(2)-(3)).
Registration duty on relevant officials: The Minister must provide copies of transfer orders and related instruments to the Registrar of Titles and other relevant officials; those officials must take notice of the Division and record and register as appropriate (s 25). That creates an administrative enforcement channel to update land titles and registry records.

Protections for officials and displacement of corporate law

Protection for officers complying with directions: The Authority, associated agencies, corporate vehicles and their directors or officers are not liable and do not contravene the Port Authorities Act 1999 or WA Land Authority Act 1992 by anything done or omitted in good faith in compliance with a Ministerial direction given for disposal purposes (s 18(3)). That reduces personal liability risk for officers implementing disposals under ministerial instruction.
Corporations Act displacement: Sections 18(5) and 24(5) are declared Corporations legislation displacement provisions for the purposes of s 5G of the Corporations Act, indicating the Act displaces certain Corporations Act requirements in relation to directions and record sharing. Regulators, officers and parties must therefore assess potential conflicts with Corporations Act duties, though the Act purports to override to the extent specified.

Fiscal enforcement

Treasurer’s appropriation and payment obligations: Indemnities and payments under s 31 and payments to discharge obligations taken over under s 32 are charged to the Consolidated Account; the Act expressly appropriates the sums necessary (s 31(4), s 32(5)). Those provisions create an internal fiscal enforcement mechanism where the State meets liabilities as authorised by the Treasurer.

Limitations and safeguards

Limits on retrospective effect: Regulations and correction orders may be expressed to take effect before publication day or, in the case of correction orders under s 26, back to transfer time. However, where provisions take effect before publication the Act restricts operation insofar as they would be prejudicial to persons other than the State, the transferor or transferee or State officials (s 26(3), s 45(4)). That limits the extent of retrospective imposition of liabilities.

Overall enforcement is a mixture of statutory transfer mechanics backed by administrative registration duties, criminal penalties for unauthorised disclosure, and the potential for significant civil penalties to be prescribed by regulation for access and price regulation breaches. The Act expressly shields state actors complying in good faith with Ministerial directions from liability, while creating fiscal authorisation for payments, indemnities and discharges directed by the Treasurer.

The Act creates a framework that interacts with and, in specified respects, displaces, overrides or preserves other written laws. The text sets out several specific interactions.

Corporations law and displacement

Corporations legislation displacement provisions are declared for particular parts of the Act. Section 18(5) declares that s 18 is a Corporations legislation displacement provision for the purposes of s 5G of the Corporations Act 2001 (Commonwealth) in relation to the Corporations legislation generally. Section 24(5) does the same in relation to the delivery and access to records. Those declarations indicate that the Act intends to displace aspects of the Corporations Act to the extent that the Act’s provisions conflict with corporate law duties about directions to, and record access by, entities (s 18(5); s 24(5)). Further, regulations may make provision about corporate vehicle constitutions and declare matters to be excluded matters for the purposes of Corporations Act s 5F (s 19).

Land titling and transfer law

Transfer of Land Act exception: The Act modifies priority rules under the Transfer of Land Act 1893 by preserving prior unregistered leases or agreements for leases exceeding five years as binding on land disposed under this Act, despite s 68 of the Transfer of Land Act (s 13). The Minister must also ensure transfer orders are provided to relevant officials (Registrar of Titles, Registrar of Deeds and Transfers, Minister administering Land Administration Act and other persons authorised to record transactions) and those officials must record and register instruments to show the effect of transfer orders (s 25). The Act therefore requires coordination with land registry regimes to give statutory transfers practical effect.

Port authorities and other maritime laws

Port Authorities Act 1999: Section 12 expressly states that its land disposal provisions apply despite s 28(3) and (4) of the Port Authorities Act 1999. The Authority’s functions and powers are modified by this Act to the extent necessary to implement disposals (s 15). Section 39 enables regulations to treat a specified port facilities instrument holder as if it were the port authority for the purposes of certain “affected written laws,” including the Port Authorities Act 1999 and a list of maritime and marine safety statutes (s 39(1)-(2)).

Auditor General and confidentiality laws

Auditor General Act: Despite s 46(2) of the Auditor General Act 2006, the Auditor General may disclose information for the purposes of a section 10 disposal (s 28). Separately, s 27 authorises disclosures for disposal purposes that would otherwise be breaches of confidence or written law prohibitions, giving legal clearance for information sharing in the disposal process.

Government Agreements Act and protection of agreements

Government agreements preserved: Section 44 explicitly states that the Act does not prejudice or affect any right or obligation of a party to a Government agreement as defined in the Government Agreements Act 1979. It further states that the operation of the Government Agreements Act in relation to this Act is not limited or otherwise affected by this Act (s 44(2)-(3)). That preserves rights under long‑form State contracts.

Tax and duty law

Exemption from State tax: Section 41 exempts State tax (including duty under the Duties Act 2008) in relation to anything occurring by operation of Parts 2 and 3 or anything done to give effect to those Parts, unless the Minister directs otherwise (s 41(2), s 41(5)). The Minister may issue a certificate to confirm matters (s 41(3)-(4)). This directly interacts with State tax statutes and registration obligations.

Regulatory overlay for access and pricing

Economic and other regulators: The Act does not itself set detailed access regimes but provides for regulations that may confer functions on the Economic Regulation Authority or other prescribed persons and permit civil penalty and criminal regimes to be created for access and pricing compliance (s 46(3)(p), (i)-(n)). Regulations may determine which written laws are treated as applying to acquirers or port facilities instrument holders (s 35, s 39). That means the Act can be used to import or adapt existing regulatory regimes to new acquirers.

Preservation of common law and other statutory rights

Limits on compensation and other doctrines: Section 43 removes statutory compensation by the State for the enactment and operation of the Act but preserves consideration payable under agreements entered into for disposals and compensation in connection with the performance of those obligations (s 43(1)-(2)). Section 42 states that operation of the Act is not to be regarded as breach of contract or other civil wrong, nor does it give rise to remedies or defaults under contracts, subject to s 44 (s 42(1)). Those provisions interact with general civil law and property doctrines and affect remedies normally available at common law or under other statutes.

Practical consequence

Overall, the Act both engages with and carves out exceptions to statutes across corporate, land, maritime, tax and auditing law. It establishes a hierarchy wherein transfer orders and Ministerial powers can operate notwithstanding normally applicable rules (subject to explicit protections such as s 44 for Government agreements). Parties and regulators must therefore reconcile ordinary regimes with the Act’s targeted displacing or preserving clauses when transactions proceed.

The compilation table and in‑text annotations identify two items of amendment history included in the provided text.

Original enactment: The Pilbara Port Assets (Disposal) Act 2016 received assent on 13 December 2016 and commenced on 14 December 2016 (see compilation table). The Act as compiled here includes amendments made by later written laws as noted.
Government Trading Enterprises Act 2023: The compilation table notes amendment by the Government Trading Enterprises Act 2023, Part 12 Division 4, assented 22 June 2023 and commencing 1 July 2023 (see compilation table entry “Government Trading Enterprises Act 2023 Pt. 12 Div. 4”). The compilation identifies that the 2023 Act made amendments included in this compilation.
Section 27 amendment: The Act’s Division 2 disclosure provision notes in brackets “[Section 27 amended: No. 13 of 2023 s. 217.]” This indicates section 27 was specifically amended by the 2023 Act (No. 13 of 2023) at s 217. The amended text, as compiled, reflects that change (see s 27 note).
Compilation and schedule: The schedule identifies the Utah Point Bulk Handling Facility and the map references that locate berth 4 and the stockyards. The compilation table states that for provisions that have come into operation, consult the compilation table; the version provided reflects the enactments listed.

The compilation text does not list other amending Acts or earlier amendments. For an implementation or transaction, practitioners must check the official WA legislation site for any amendments after the compilation date provided and any associated regulations made under s 48, s 45 or s 46. The Act expressly contemplates significant subordinate legislation: regulations may be used to prescribe matters about corporate vehicle constitutions and to create access and pricing regimes with civil penalty and fine structures (s 19, s 46). Those regulations can be consequential on disposals and, in certain instances, can be expressed to take effect before their Gazette publication day with limits on prejudicial effect (s 45(2)-(4)). Therefore, the amendment history to date includes the 2023 instruments; subsequent subordinate legislation could materially alter how disposals are implemented and should be checked in primary sources.

The Act does not itself record any cases. The provided statutory text and compilation notes contain no citations to judicial decisions, and the Act does not list litigation. Accordingly, there is no litigation history provided within the source material to cite or summarise.

That said, the Act contains several features that create potential areas for future litigation or administrative review. These potential dispute loci are derived from the Act’s text and mechanics; they are not reports of actual litigation.

Ministerial discretion and statutory definitions: Several operational elements depend on the Minister’s opinion, for example whether an asset is “associated with” the Utah Point Bulk Handling Facility (s 3 definition of “port asset” and s 4). Disputes could arise about whether the Minister’s opinion was rationally formed or procedurally fair, including judicial review challenges asserting error of law, Wednesbury unreasonableness or procedural unfairness. The Act permits general orders drawn in broad terms (s 10(2)), which can raise questions about adequacy of detail required.
Transfer orders and substitution in proceedings: Because transfer orders substitute transferees for transferors in proceedings by operation of s 21(2)(c), disputes may arise about whether a particular claim or proceeding was correctly specified as “specified” in the transfer order or was within the transferor’s estate. Section 26 allows correction of errors in transfer orders and permits those corrections to take effect from the transfer time, but s 26(3) restricts retrospective operation insofar as it prejudices persons other than the State, transferor or transferee. Litigation could inquire into the legitimacy of corrections and the scope of protections.
Port facilities instruments and statutory primacy: Section 38 declares that certain contractual provisions of port facilities instruments “have effect according to their terms despite any law or rule to the contrary.” Litigation could address the construction of those provisions and their interaction with statutory duties, public safety or planning laws, although the Act purports to give those contractual terms priority.
Disclosure offences and confidentiality: Section 29 creates heavy fines for bound recipients who disclose prohibited information. Litigation could involve determining whether a person was a “bound recipient,” whether the information was “connected with a section 10 disposal,” or whether the disclosure was with lawful excuse.
Tax exemptions and certificates: Section 41 permits the Minister to certify that specified things occurred for the purpose of tax exemptions. Disputes might arise over whether the exemption applied to a particular instrument or whether the Minister’s certificate was tanquam evidence. The Act states such a certificate is sufficient evidence “for all purposes and in all proceedings unless the contrary is shown” (s 41(4)), which could prompt litigation over the evidentiary standard and the scope of “contrary shown.”
Limits on compensation and contractual consequences: Section 43 removes compensation by the State for enactment or operation but preserves compensation under agreements entered into for disposals. Disputes could turn on whether particular claims are contractual claims for compensation or claims arising from the Act’s operation, and on the interpretation of s 42 exclusions from breach or default.

These are examples of the kinds of legal friction points the Act’s provisions create. Practitioners should search contemporary case law and administrative review decisions after the Act’s commencement and after any significant transfer orders or regulatory instruments are made to identify actual litigation developments.

Practitioners and commercial parties must watch for a number of specific statutory mechanics that commonly trip up transactional planning. The following items all flow directly from the Act’s text.

Ministerial and Treasurer approvals, and minimal detail in orders

A section 10 order may be expressed in general terms and need not include transactional details or specifics of how the disposal is to be effected (s 10(2)). That amplifies the importance of pre‑transaction due diligence and clear drafting of transfer orders because the enabling order will not itself constrain mechanics. Additionally, if the Minister is not the Treasurer or not the Minister administering the Port Authorities Act, separate approvals are required (s 10(3)-(4)); failing to obtain these approvals would render an order unauthorised.

Transfer by statute without conveyance or notice

Under s 21, assets and liabilities specified in a transfer order transfer by operation of statute at the transfer time without the need for conveyance, assignment or further act (s 21(2)(a)-(b)). This creates a sharp legal effect that may circumvent normal contractual assignment provisions, including clauses restricting assignment. Section 42 explicitly states operation of the Act is not to be regarded as breach of contract or a triggering event under many contractual provisions (s 42(1)(b)-(f)), but practitioners must check whether the transfer order specifies otherwise, and whether parties have remedies preserved by s 43(2).

Schedules and public inspection

Transfer orders may specify persons or things by reference to schedules that need not be published in the Gazette but must be made available for inspection on business days for six months (s 20(3)). Documents omitted from the Gazette may still be binding; limited public notice can impair third parties’ ability to learn whether they are specified.

Severance of fixtures and classification

The Minister may order that things on land be severed for disposal purposes, treating them as personal property and severable even if they are fixtures (s 7). That can change the legal character of assets and may impact whether an acquirer receives title free of other claims, affecting lenders and bonded interests. Practitioners should check whether a severance order has been made for particular items.

Tax exemption is discretionary and can be directed off

Section 41 exempts State tax for matters under Parts 2 and 3 but the Minister may direct that the exemption does not apply in relation to a specified thing (s 41(5)). Parties should not assume automatic duty or tax exemption without Ministerial certificate or direction, and should obtain a certificate if relying on the exemption (s 41(3)-(4)).

Confidentiality and heavy penalties for disclosure

Persons who receive information connected with a disposal and are under confidentiality duties face fines of $200,000 for unauthorised disclosure under s 29. The Act also defines “information connected with a section 10 disposal” to include information connected with potential disposals, whenever obtained (s 29(4)). This can sweep in very early stage discussions. Ensuring confidentiality obligations are properly drafted and training staff about scope is essential.

Port facilities instruments override ordinary rules

Port facilities instruments, when designated, have provisions about non‑refundability, consequences of breach and continuity of obligations that have effect “despite any law or rule to the contrary” (s 38(2)). This can affect the enforceability of consumer protection or public safety rules in particular circumstances unless explicitly protected elsewhere. Practitioners must review what has been designated and the precise terms given primacy.

Land term calculation includes options and further periods

The 99 year limit for leases or licences to private entities includes any further periods such as renewal options (s 12(4)-(5)). This can shorten the effective term available to a private acquirer if prior options exist, and must be accounted for by bidders.

Regulations can take effect before publication day

Regulations made for section 10 disposals may be expressed to take effect before their publication day (s 45(3)), although they cannot have prejudicial effect to persons other than the State, the disposer or acquirer (s 45(4)). Parties must monitor regulatory instruments closely as they may be made effective immediately with limits.

Corporations Act displacement

Certain provisions are declared to displace Corporations Act rules (s 18(5), s 24(5) and s 19 regarding exclusions under s 5F). Corporate officers may receive directions that would otherwise conflict with duties under company law; careful governance and legal advice are required to ensure compliance in form and substance.

Reservation of access capacity and allocation rules

Section 47 conditionally reserves 50 percent of access capacity of a port facility for “protected users.” A grant to a “prescribed user” that would push prescribed user capacity above 50 percent may be conditioned to preserve the right of protected users. Parties bidding for capacity must consider this cap and its interaction with commercial plans.

Indemnities and State takeover of obligations

The Treasurer may give indemnities to directors and officers and may take over obligations and release securities (s 31-32). However, reliance on such guarantees should be treated as discretionary policy rather than contractual certainty unless expressed in written agreements for the disposal, and payments are charged to the Consolidated Account.

These “gotchas” show the Act alters normal transaction mechanics in ways that can materially affect title, tax, contractual remedies, confidentiality risks, governance duties and allocation of service access. Diligent due diligence, clear identification of whether an asset is “specified” in a transfer order, careful drafting of confidentiality and access instruments, and early engagement with Ministerial and Treasurer approvals are practical imperatives.

Complying with the Act requires coordinated actions across the Minister’s office, the Treasurer, the Authority, transferors and transferees, corporate vehicle formation teams, registries and potential regulators. The following is a practical checklist of steps and controls, tied to the Act’s major provisions.

For the Minister and Treasury

Prepare a section 10 order: Ensure compliance with approval requirements. If the Minister is not the Treasurer or not the Minister administering the Port Authorities Act 1999, obtain the required approvals under s 10(3)-(4). Publish the order in the Gazette and, if a later day is specified, clearly state the effective date (s 10(1), s 10(5)).
Plan the scope and detail of transfer orders: Draft transfer orders under s 20 to identify transfer time, assets, liabilities, proceedings and agreements to be transferred. Use schedules to list items where necessary, but ensure each schedule will be available for public inspection for six months at the place and times specified in the transfer order (s 20(1)-(3)).
Consult relevant officials prior to scheduling: Before making a transfer order that uses schedules, consult each relevant official who must receive a copy under s 25(2) about the form and content of schedules for recording and registration purposes (s 20(7)).
Certify or direct tax treatment: If State tax exemption under s 41 is to be relied on, provide or authorise certificates under s 41(3). If the exemption should not apply to a particular item, issue a direction under s 41(5).

For the Authority, associated agencies and transferors

Comply with directions and protect actions: Ensure written directions from the Minister under s 18 are recorded and followed. Note the protection from liability for actions or omissions done in good faith in compliance with a direction (s 18(3)).
Prepare records for delivery and access: Under s 24, be prepared to deliver or give access to relevant records specified in the transfer order. Put in place agreed protocols for handover, preservation of originals, and secure transfer of electronic records. Record retention policies should anticipate transfer times and the six month inspection window for schedules under s 20(3).
Coordinate with registries: Expect to receive transfer orders and related instruments for registration and to liaise with the Registrar of Titles and other relevant officials to ensure that transfer effects are recorded promptly (s 25).

For transferees, acquirers and private bidders

Verify scope of transferred assets/liabilities: Examine transfer orders and schedules carefully to confirm which assets and liabilities are “specified.” The transfer occurs by statute at the transfer time; there is no need for conveyance but there may also be no notice to third parties beyond the Gazette and schedule inspection obligations (s 21, s 20(3)).
Confirm land interest limits: If acquiring land or securities in a corporate vehicle that holds land, confirm that the interest is no greater than a leasehold interest for a period not exceeding 99 years or a licence not exceeding 99 years, accounting for any further periods or options included as part of term calculation (s 12(2)-(5), s 12(4)-(5)).
Secure tax and registration positions: Obtain assurances or a Ministerial certificate under s 41(3) if relying on State tax exemptions. Work with registrars to ensure leases and registrations are processed; relevant officials must be provided copies of transfer orders (s 25).
Manage confidentiality obligations: Treat any information related to a potential or actual section 10 disposal as highly confidential. If receiving confidential information subject to duties, impose robust internal controls and legal agreements because s 29 creates large fines for unauthorised disclosure.
Understand contractual primacy: Check whether leases or licences will be or have been designated as port facilities instruments and the practical effect of s 38’s primacy on payment terms, non‑refundability, continuity of obligations and termination rights. Structure bids and finance accordingly.

Corporate vehicle formation and governance

Form corporate vehicles correctly: If a company is to be used as a corporate vehicle with State securities, the Under Treasurer must take steps to create it and the Minister or Treasurer may receive and hold securities on behalf of the State (s 11(4)-(6)). Constitutions and trust deeds may be prescribed by regulation (s 19).
Account for Corporations Act displacement: Where the Act displaces Corporations Act rules (s 18(5), s 24(5)), document governance decisions and legal advice, and update directors and officers about the statutory basis for directions and record sharing.

Regulatory and access regime preparation

Anticipate access arrangements and price regulation: The regulations may require lodging access arrangements, provide for regulator approval, set duties including segregation of functions and appoint arbitrators for dispute resolution (s 46). Engage early with the prescribed regulator and prepare draft access arrangements that meet the matters to be considered.
Model allocation under s 47: In commercial planning, model the effect of reserving 50 percent of access capacity for protected users, and account for eligibility requests and prescribed vs protected user designations in commercial forecasts.

Documentary and risk management responses

Draft transfer order contingencies: Include provisions permitting correction of errors (s 26) and make sure the Minister’s office retains drafts of schedules and notices to show compliance with s 20(2) and s 25(2).
Secure indemnities where necessary: Consider seeking indemnities or guarantees from the Treasurer where contingent liabilities or director liabilities are of concern, but treat such indemnities as discretionary unless included in an agreement entered into for the disposal (s 31).
Prepare for registration of lease variations: If lease variations or re‑inclusions are necessary under s 40, ensure the Minister certifies the required matters and then obtain registration with relevant officials.

This compliance checklist aims to bridge statutory mechanics with transactional reality. The essential controls are early engagement with Ministerial and Treasury processes, detailed review of transfer orders and schedules, careful handling of confidential information, coordination with registries and regulators, and explicit contractual documentation making any Ministerial certificates, indemnities and tax treatments clear.

Deep Dive

What it does

Current sections