South Australian Ports (Disposal of Maritime Assets) Act 2000 (South Australia)

Mechanically, the South Australian Ports (Disposal of Maritime Assets) Act 2000 authorises the State, by ministerial instrument or by contract, to reassign, dispose of, lease and otherwise deal with maritime assets that at commencement were vested in the South Australian Ports Corporation (the Corporation). The Act creates two principal legal devices for that purpose: transfer orders made by the Minister (s 6) and sale/lease agreements entered into by the Minister (s 7). Both devices operate "by force of this Act" and take effect despite any other law or instrument (s 6(4), s 7(4)). The Minister may determine that specified maritime assets be treated as personal property even if annexed to land (s 4). The Act provides for the transfer of assets to a nominated State-owned company (defined at s 3) as an intermediate step to sale of shares in that company (s 6(1)).

The Act also sets out the form and content expectations for sale/lease agreements that operate as leases, including mandatory subjects that should be included (s 8(1)-(2)): strategic development plans from lessees, security against non-payment of rent, disclaimers of lessor warranty for business use, indemnities by lessees to lessors for third‑party liabilities, insurance obligations, regulatory compliance obligations, termination triggers for serious breach or non-payment, and a lessor option to acquire business assets at reasonable market value on lease expiry. Sale/lease agreements must include a 12‑month minimum notice requirement before port or part closure (s 8(4)). The Governor may, by proclamation, exempt lessors to a specified extent from civil or criminal liabilities (s 8(8)), except liabilities the lessor owes to the lessee under the agreement (s 8(9)). The Act permits civil penalties in leases recoverable by the Crown as a debt (s 8(6)-(7)).

Staff and superannuation arrangements are addressed: the Minister can transfer Corporation employees to the Department for Administrative and Information Services and thereafter to purchasers (s 13); employee transfer orders must be consistent with a memorandum of understanding with unions (s 14(1)), and Schedule 3 prescribes superannuation options and actuarial adjustments for transferred employees. The Act contemplates assumption of control and dissolution of the Corporation by Gazette notice and proclamation (s 15-16).

South Australia South Australian Ports (Disposal of Maritime Assets) Act 2000 An Act to provide for the disposal of assets of the South Australian Ports Corporation; to provide for the repeal of the South Australian Ports Corporation Act 1994; and for other purposes.

Contents Part 1—Preliminary 1 Short title 3 Interpretation 4 Certain maritime assets to be treated as personal property 5 Territorial application of Act Part 2—Disposal of maritime assets 6 Transfer of maritime assets to State-owned company with a view to sale of shares in the company 7 Disposal of maritime assets and liabilities 8 Terms of certain sale/lease agreements 9 Orders, agreements etc to be laid before Parliament 10 Division of land and related changes to the Development Plan 11 Government guarantee 12 Application of proceeds of sale/lease agreement Part 3—Staff 13 Transfer of staff 14 Employee transfer orders Part 4—Dissolution of the Corporation 15 Dissolution of the Corporation 16 Repeal of the South Australian Ports Corporation Act 1994 Part 5—Recreational access to ports 17 Recreational access agreements 18 Enforcement of recreational access agreements Part 6—Statutory easement 19 Statutory easement Part 7—The Port Adelaide Container Terminal Monitoring Panel 20 Port Adelaide Container Terminal Monitoring Panel 21 Membership of panel 22 Procedure of panel 23 Performance objectives and criteria 24 Obligation to report 25 Notice of breach Part 8—Limitation on cross ownership 26 Limitation on cross-ownership Part 9—Miscellaneous 27 Provision of capital to State-owned company 28 State-owned company to be instrumentality of the Crown 29 Contract or arrangement between Corporation and State-owned company 30 Amount payable by State-owned company in lieu of tax 31 Validation of certain contracts etc 32 Interaction between this Act and other Acts 33 Effect of things done or allowed under this Act 34 Stamp duty 35 Land tax 36 Registration of transfer of land 37 Non-application of Parliamentary Committees Act 1991 38 Regulations Schedule 1—Division of land Schedule 2—Amendments to Development Plan Ceduna (DC)—13 April 2000 (1) Council-Wide provisions (2) Residential Zone Land Not Within a Council Area (Coastal Waters)—13 April 2000 (1) Council-Wide provisions Land Not Within a Council Area (Metropolitan)—6 April 2000 (1) Council-Wide provisions (2) Coastal Zone Port Adelaide Enfield (City)—11 May 2000 (1) Council-Wide provisions (2) Industry (Deferred Port) Zone (3) Industry (Port) Zone (4) MOSS (Conservation) Zone (5) In the MOSS (Buffer) Zone Port Lincoln (City)—16 September 1999 (1) Council-Wide provisions (2) Lincoln Harbor (Area 6) Port Pirie (City)—16 March 2000 (1) Council-Wide provisions (2) Commercial 3 Zone Wallaroo (CT)—23 March 2000 (1) Council-Wide provisions Yorketown (DC)—23 March 2000 (1) Council-Wide provisions Schedule 3—Superannuation benefits for transferred employees 1 Interpretation 2 Triple S Scheme 3 New scheme contributors 4 Old scheme contributors 5 Special provision for certain old scheme contributors 6 Provisions as to preservation apply despite the fact that the transferred employee may be over 55 7 Modifications to Superannuation Act 1988 to continue in operation Legislative history

The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the South Australian Ports (Disposal of Maritime Assets) Act 2000. 3—Interpretation In this Act, unless the contrary intention appears— asset includes— (a) an interest in real or personal property; (b) a contractual interest (including both contractual rights and contractual liabilities); (c) an interest in legal proceedings; Corporation means the South Australian Ports Corporation; land includes— (a) a subsurface stratum (which may terminate at a particular subsurface level or extend downwards without defined limit); (b) a stratum of airspace (which may terminate at a specified level or extend upwards without defined limit); lease includes— (a) a sub-lease or other derivative of a lease; (b) hire of personalty; (c) a licence; maritime asset means— (a) a port that was, at the commencement of this Act, vested in the Corporation; or (b) any asset vested in the Corporation associated with the operation of such a port; (c) any asset transferred to a State-owned company or other authorised transferee by a transfer order under this Act; (d) any other asset of the Corporation or the Crown that is, by direction of the Minister, to be regarded as a maritime asset; maritime liability means a liability of the Corporation as at the commencement of this Act and includes a liability transferred to a State-owned company or other authorised transferee by a transfer order under this Act; memorandum of understanding means a memorandum of understanding between the Government and the Maritime Union of Australia and the Australian Maritime Officers Union about the rights of employees in the event of their transfer to private employment under this Act; quarter means a period of 3 months beginning on 1 January, 1 April, 1 July or 1 October in any year; sale/lease agreement—see section 7; State-owned company means— (a) a company incorporated under the Corporations Law in which all the issued shares are held by Ministers of the Crown or their nominees, nominated by the Minister by notice in the Gazette as a State-owned company for the purposes of this Act; or (b) a subsidiary of such a company within the meaning of the Corporations Law; subjacent land means land that lies below the water in a harbor or port; transfer order—see section 6. 4—Certain maritime assets to be treated as personal property (1) The Minister may, by instrument in writing, determine that— (a) a maritime asset specified in the determination; or (b) maritime assets of a class specified in the determination, are to be regarded as personalty even though annexed to land. (2) The Minister may, by subsequent instrument in writing, vary or revoke a determination under this section. (3) A transfer of title to land to which an asset to which a determination under this section applies is annexed does not operate to transfer title to the asset and the asset may be dealt with separately from the land. 5—Territorial application of Act (1) This Act applies both within and outside the State. (2) This Act applies outside the State to the full extent of the extra-territorial legislative capacity of the Parliament. Part 2—Disposal of maritime assets 6—Transfer of maritime assets to State-owned company with a view to sale of shares in the company (1) The Minister may by instrument in writing (a transfer order)— (a) transfer a maritime asset to an authorised transferee; or (b) transfer a maritime asset acquired by an authorised transferee under a transfer order to the Corporation or another authorised transferee. (2) Each of the following is an authorised transferee— (a) a State-owned company; (b) a Minister, agency or instrumentality of the Crown. (3) A transfer order— (a) vests title to the asset to which the order relates in the transferee in accordance with its terms; and (b) discharges that asset from any trust or other interest in favour of the Crown (except to the extent that any such interest may be expressly preserved under the terms of the transfer order). (4) A transfer of title under this section operates by force of this Act and despite the provisions of any other law or instrument. (5) A transfer order may require the transferee to indemnify the Corporation against specified liabilities or liabilities of a specified class. 7—Disposal of maritime assets and liabilities (1) The Minister may by agreement (a sale/lease agreement) with another (the purchaser) do one or more of the following: (a) transfer to the purchaser maritime assets or liabilities (or both); (b) grant to the purchaser a lease, easement or other rights in respect of maritime assets; (c) transfer to the purchaser shares in a State-owned company. (2) A sale/lease agreement— (a) creates or transfers title to, or an interest in or in relation to, an asset to which the agreement relates in accordance with its terms; and (b) discharges an asset to which the agreement relates from any trust or other interest in favour of the Crown (except to the extent that any such interest may be expressly preserved under the terms of the agreement); and (c) creates or transfers liabilities in accordance with its terms. (3) Without limiting subsection (2)(c), a sale/lease agreement may impose on the purchaser a liability to indemnify the Corporation or the Crown against specified liabilities or liabilities of a specified class. (4) The creation or transfer of title to, or an interest in or in relation to, an asset under this section, and the creation or transfer of a liability under this section, operate by force of this Act and despite the provisions of any other law or instrument. 8—Terms of certain sale/lease agreements (1) This section applies if a sale/lease agreement operates as a lease of a maritime asset. (2) The agreement should contain terms under which— (a) the lessee is required periodically to submit a Strategic Development Plan giving specified details of how the lessee plans to develop the South Australian assets involved in the lessee's business; and (b) the risk of non-payment of rent (including amounts to be paid on the exercise of a right or option to renew or extend the lease) is addressed at the commencement of the lease by the provision of adequate security or other means; and (c) the lessor accepts no liability for, and provides no warranty or indemnity relating to, the lessee's use of the asset in trade or business; and (d) the lessee is to indemnify the lessor for any liability of the lessor to a third party arising from the lessee's use or possession of the asset; and (e) the lessee is required to have adequate insurance against risks arising from the use or possession of the asset; and (f) the lessee is required to ensure compliance with all regulatory requirements applicable to the use or possession of the asset; and (g) the lessor is entitled to terminate the lease for— (i) non-payment of rent; or (ii) any other serious breach that remains unremedied after the lessor has given notice of the breach and allowed a reasonable opportunity for it to be remedied; and (h) the lessor has a right or option, at the expiration or earlier termination of the lease, to acquire assets that form part of the business involving the asset at a reasonable market value (including, where the leased asset is land, improvements to the land). (3) A sale/lease agreement that does not comply with subsection (2) is not invalid for that reason but when the agreement is laid before Parliament it must be accompanied by a report identifying the non-compliance and stating the reasons for it. (4) A sale/lease agreement must contain a provision under which the lessee must give at least 12 months notice of the intended closure of a port or any part of it. (5) A provision of a sale/lease agreement or a related instrument that deals with any of the following subjects has effect according to its terms and despite any law to the contrary: (a) the circumstances or conditions under which the lease may be terminated by the lessor or lessee; or (b) the pre-payment of amounts payable by way of rent and the retention of such amounts by the lessor; or (c) the continuance of the lease despite the occurrence of unintended or unforeseen circumstances; or (d) the continuance of the obligation to pay rent despite the occurrence of unintended or unforeseen circumstances; or (e) the amount payable in consequence of a breach of the lease. (6) A sale/lease agreement may provide for the payment of civil penalties by the lessee in the event of specified breaches of the lease. (7) A civil penalty is recoverable by the Crown as a debt (whether or not the breach has resulted in damage or loss). (8) The Governor may, by proclamation, exempt the lessor under a sale/lease agreement (to an extent specified in the proclamation) from civil or criminal liabilities that the lessor might otherwise incur as owner or lessor of the land, or in relation to the use (or misuse) of the land. (9) However, an exemption cannot be granted from liabilities that the lessor has to the lessee under the sale/lease agreement. 9—Orders, agreements etc to be laid before Parliament (1) The Minister must have copies of a transfer order or a sale/lease agreement laid before both Houses of Parliament as soon as practicable after the order or agreement was made. (2) The Minister must have a report on the probity of the processes leading up to the making of a sale/lease agreement prepared by an independent person engaged for the purpose and cause the report to be laid before both Houses of Parliament as soon as practicable after the making of the sale/lease agreement. 10—Division of land and related changes to the Development Plan (1) The Minister may lodge an application for division of the land shown in Schedule 1. (2) If a maritime asset consists of land (other than the land shown in Schedule 1), and the Minister considers it appropriate to divide the land into separate allotments with a view to— (a) disposal of the whole of the land in separate allotments; or (b) disposal of some of the allotments and retention of others, the Minister may lodge an application for division of the land with the Registrar‑General. (3) An application under subsection (1) or (2) must be accompanied by a plan of the division and any other information or materials the Registrar-General may require. (4) The Registrar-General must cancel any existing certificate of title for the land to which an application under subsection (1) or (2) relates, and issue new certificates for the allotments to be created by the division. (5) No consent, approval, authorisation or certificate is required under the Development Act 1993 for a division of land under this section. (6) The Development Plan under the Development Act 1993 is amended as set out in Schedule 2. (7) If the Development Plan is amended before the amendments set out in Schedule 2 come into effect, the Minister may make consequential amendments to the amendments or the Development Plan as may be appropriate. 11—Government guarantee (1) A Government guarantee has no application in relation to— (a) liabilities transferred by a transfer order or sale/lease agreement (unless the liabilities are transferred back to the Corporation); or (b) liabilities of a company that was a State-owned company before the shares in the company were transferred to a purchaser. (2) In this section— Government guarantee means— (a) a guarantee under section 28 of the Public Corporations Act 1993; (b) a guarantee or indemnity given by the Corporation; (c) a guarantee or indemnity under section 19 of the Public Finance and Audit Act 1987. 12—Application of proceeds of sale/lease agreement (1) The proceeds of a sale/lease agreement must be applied for one or more of the following purposes: (a) defraying the cost of restructuring and disposal of maritime assets and the necessary preparatory work; (b) work to deepen, extend or clear a harbor or port or other work to develop or improve such a harbor or port; (c) improving services and facilities related to a port or infrastructure associated with a port; (d) retiring State debt; (e) making provision of up to $100 million for the State's superannuation liabilities. (2) If the proceeds are not applied immediately to a purpose mentioned above, they must be kept in a separate account at the Treasury, and any income from investment of the money standing to the credit of the account must be applied towards retiring State debt. (3) An amount paid by way of security will not be regarded as proceeds of a sale/lease agreement for the purposes of this section. Part 3—Staff 13—Transfer of staff (1) The Minister may, by order in writing (an employee transfer order)— (a) transfer employees of the Corporation to positions in the Department for Administrative and Information Services (DAIS); or (b) transfer employees who have been transferred to the positions in DAIS to employment by a purchaser under a sale/lease agreement or a company related to the purchaser. (2) An employee transfer order takes effect on the date of the order or on a later date specified in the order. (3) An employee transfer order may be varied or revoked by the Minister by further order in writing made before the order takes effect. (4) An employee transfer order has effect by force of this Act and despite the provisions of any other law or instrument. (5) A company and a purchaser are related for the purposes of this section if they are related bodies corporate within the meaning of the Corporations Law. 14—Employee transfer orders (1) An employee transfer order— (a) must be consistent with the memorandum of understanding; and (b) may contain provisions to give effect to the memorandum of understanding. (2) An employee transfer order may contain terms and conditions that, on the transfer of an employee to private employment, take effect as terms and conditions of the employee's contract of employment. (3) Any such term or condition takes effect as a term or condition of the employee's contract of employment on the transfer of the employee to private employment but thereafter the term or condition is subject to variation or exclusion by agreement between the employer and the employee. (4) On transfer of an employee to private employment under an employee transfer order, the Minister must make a lump sum payment to the employee in accordance with the memorandum of understanding. (5) Termination of employment with the Corporation or DAIS under an employee transfer order does not constitute a redundancy or retrenchment. Part 4—Dissolution of the Corporation 15—Dissolution of the Corporation (1) At any time after the transfer of assets from the Corporation commences, the Minister may, by notice in the Gazette, assume control of the Corporation. (2) On the date of the Minister's assumption of control, the board of directors of the Corporation is dissolved and the Corporation's powers are vested in the Minister. (3) After the Minister assumes control of the Corporation under this section, its functions are— (a) to administer efficiently and for the benefit of the State any assets for so long as they remain vested in the Corporation; and (b) to facilitate the disposal of assets under this Act; and (c) such of its former functions as, in the Minister's opinion, can be conveniently carried out by the Corporation. (4) The Governor may, by proclamation, dissolve the Corporation. (5) On the dissolution of the Corporation, any remaining assets and liabilities of the Corporation vest in the State. 16—Repeal of the South Australian Ports Corporation Act 1994 (1) The Governor may, by the proclamation dissolving the Corporation or by a later proclamation, fix a date for the repeal of the South Australian Ports Corporation Act 1994. (2) On the date fixed under subsection (1), the South Australian Ports Corporation Act 1994 is repealed. Part 5—Recreational access to ports 17—Recreational access agreements (1) The Minister will, as a condition of entering into a sale/lease agreement with a particular purchaser, require the purchaser to enter into an agreement (a recreational access agreement) governing access by the public to land and facilities to which the sale/lease agreement applies. (2) The purpose of a recreational access agreement is to preserve or enhance access by the public, free of charge, to land and facilities to which the sale/lease agreement applies. (3) A recreational access agreement is made between— (a) the council for the area in which the land to which the agreement relates is situated; and (b) the purchaser. (4) A recreational access agreement— (a) is binding on the occupiers for the time being of land to which it applies; and (b) may be amended from time to time by agreement between the relevant council and the current occupiers of that land. (5) The relevant council must keep a copy of a recreational access agreement (and of any amendment to such an agreement) available for public inspection at its public office. 18—Enforcement of recreational access agreements (1) The Supreme Court may, on application by an interested person, make orders for the enforcement of a recreational access agreement. (2) The following are interested persons: (a) the council for the area in which the land to which the agreement relates is situated; (b) an occupier of land to which the agreement relates; (c) the South Australian Recreational Fishing Advisory Council Inc.; (d) a person specified or a person of a class specified by regulation. Part 6—Statutory easement 19—Statutory easement (1) A statutory easement exists in favour of the owner of port infrastructure if— (a) the infrastructure was, at the commencement of this section, situated on, above or under Corporation land; and (b) either— (i) the owner then had no formal entitlement (in the form of a written easement, lease or licence) to maintain or operate the infrastructure on Corporation land; or (ii) the infrastructure was then owned by the Corporation and ownership of the infrastructure becomes dissociated from ownership of the land in the course of the sale or disposal of the Corporations's assets. (2) The easement is an easement in gross that does not depend on the existence of a dominant tenement. (3) The easement entitles the owner— (a) to retain, maintain and operate the relevant infrastructure on, above or under the land affected by the easement; (b) to enter the land (in person or by his or her agents or employees) at any reasonable time, for the purpose of operating, examining, maintaining, repairing, modifying, replacing or removing the relevant infrastructure; (c) to bring on to the land any vehicles or equipment that may be reasonably necessary for any of the above purposes. (4) A person exercising rights under the statutory easement must take reasonable steps— (a) to minimise damage to land or other property from work or activities carried out in the exercise of rights conferred by the statutory easement; and (b) to avoid unnecessary interference with land or other property, or the use or enjoyment of land or other property, from the exercise of rights under the statutory easement. (5) The owner of land affected by the statutory easement may, by agreement with the owner of the infrastructure, execute an instrument— (a) conferring an easement that operates to the exclusion of the statutory easement so far as it affects that land; or (b) discharging the land from the statutory easement, and on registration of the instrument under the Real Property Act 1886 or the Registration of Deeds Act 1935 the land is discharged from the statutory easement. (6) An easement under this section need not be registered. (7) However, the Registrar-General must, on application by the owner of the land or infrastructure, note the statutory easement on each certificate of title, or Crown lease, affected by the easement. (8) An application under this section— (a) need not include a plan of the easement; (b) must include a schedule of all certificates of title and Crown leases affected by the easement. (9) The Registrar-General is entitled to act on the basis of information included in the application and is not obliged to do anything to verify the accuracy of that information. (10) In this section— port infrastructure means fixtures at a port comprising a pipeline, conveyor belt or crane or any plant or equipment associated with the operation of a pipeline, conveyor belt or crane. Part 7—The Port Adelaide Container Terminal Monitoring Panel 20—Port Adelaide Container Terminal Monitoring Panel A panel entitled the Port Adelaide Container Terminal Monitoring Panel is established. 21—Membership of panel (1) The members of the panel are to be appointed by the Minister. (2) The membership of the panel is to be determined in accordance with the regulations. (3) A member is, subject to the regulations, to be appointed for a term (at least 2 years) stated in the instrument of the member's appointment. (5) A member of the panel may appoint an alternate member to act as a member of the panel when the member is unavailable to attend a meeting of the panel and, while so acting, the alternate member is to be regarded as a member of the panel. 22—Procedure of panel Subject to the regulations, the panel may determine its own procedures. 23—Performance objectives and criteria (1) The panel must establish performance objectives and performance criteria for the Port Adelaide container terminal. (2) The performance criteria must be capable of objective measurement. (3) The panel must notify the operator of the Port Adelaide container terminal of performance objectives and criteria established under this section. (4) The panel may from time to time revise performance objectives and performance criteria for the Port Adelaide container terminal. (5) Revised performance objectives or criteria do not take effect until a date fixed by the panel which must be at least 3 months after the panel gives the operator notice of the proposed new performance objectives or criteria. 24—Obligation to report (1) The operator of the Port Adelaide container terminal must report to the panel within 1 month after the end of each quarter. (2) The report must contain the information required by the panel to assess compliance with the performance objectives and performance criteria. 25—Notice of breach (1) If the operator fails to meet performance criteria for a particular quarter, the panel may issue a notice of non-performance. (2) If the panel issues notices of non-performance in relation to 2 successive quarters, the operator's rights to possession and control of the Port Adelaide container terminal are liable to termination. (3) If the panel issues notices of non-performance in relation to 2 successive quarters to the operator, the panel must inform the Minister, providing details of the nature of the non‑performance. Part 8—Limitation on cross ownership 26—Limitation on cross-ownership (1) A person has a cross-ownership interest if the person simultaneously has— (a) an interest in the container terminal at Outer Harbor, Port Adelaide, situated on the land designated as Title B in the plans in Schedule 1; and (b) an interest— (i) in a container terminal in the Port of Melbourne, Victoria, that annually handles 25 per cent or more (by mass) of the container freight handled in that port; or (ii) in a container terminal in the Port of Fremantle, Western Australia, that annually handles 25 per cent or more (by mass) of the container freight handled in that port. (2) A person has an interest in a container terminal if the person— (a) has an interest in the land, buildings, structures or equipment that constitute the terminal; or (b) has an interest in the operation or management of the container terminal; or (c) has a right to share in profits derived from the operation of the container terminal. (3) A person is taken to have an interest in a particular asset if an associate of the person has an interest in that asset. (4) Two persons are associates of each other if— (a) they are related bodies corporate within the meaning of the Corporations Law; or (b) one is a body corporate and the other is a director or secretary of the body corporate; or (c) they are members of the same partnership or joint venture; or (d) one is a trustee and the other is a beneficiary of the same trust; or (e) there is an agreement, arrangement or understanding (whether enforceable or not) under which— (i) one acts in accordance with the directions, instructions or wishes of the other; or (ii) if one or both are bodies corporate—a majority of the directors of one act in accordance with the directions, instructions or wishes of the other, (other than an agreement, arrangement or understanding entered into in the ordinary course of business for the supply of goods or services); or (f) the regulations declare them to be associates for the purposes of this Act; or (g) a chain of associations can (by applying any one or more of the above provisions) be traced between them through another person or another persons. (5) If a person has a cross-ownership interest that, in the opinion of the Minister, may result in the container terminal not being managed or operated in the best interests of the State, the Minister may, by notice in writing given to the person or to the person and an associate of the person, require the divestiture of assets, within a reasonable period specified in the notice, to the extent considered necessary by the Minister to avoid that result. (6) Before exercising a power under subsection (5), the Minister must— (a) give the person or the person and the associate (as the case requires) at least 21 days notice in writing of the proposed requirement for divestiture and the reasons for the proposed requirement; and (b) allow the person or the person and the associate (as the case requires) a reasonable opportunity to show cause why the requirement for divestiture should not be imposed and to provide supporting documents and other information (verified by statutory declaration if required by the Minister). (7) If a person fails to comply with a notice under subsection (5), the Minister may, by subsequent notice in writing to the person, confiscate assets that have not been divested as required. (8) A person to whom notice is given under subsection (5) or subsection (7) may, within 21 days, apply to the Supreme Court for judicial review of the decision to give the notice. Part 9—Miscellaneous 27—Provision of capital to State-owned company (1) Any one or more Ministers of the Crown may subscribe capital to a State-owned company. (2) The Treasurer may, on conditions the Treasurer considers appropriate— (a) advance loan capital to a State-owned company; and (b) transfer non-pecuniary assets of the Crown to a State-owned company. (3) Capital subscriptions and advances are, subject to any contrary direction by the Treasurer, to be paid out of the Consolidated Account (which is appropriated to the necessary extent). (4) An instrument to give effect to a transaction under this section is exempt from stamp duty. 28—State-owned company to be instrumentality of the Crown (1) A State-owned company formed for the purposes of this Act is to be regarded as an instrumentality of the Crown. (2) However, the company ceases to be an instrumentality of the Crown when it ceases to be a State-owned company. 29—Contract or arrangement between Corporation and State-owned company The Corporation may enter into a contract or arrangement with a State-owned company under which the State-owned company may make use of the services of employees or the facilities of the Corporation. 30—Amount payable by State-owned company in lieu of tax (1) If the results achieved by a State-owned company from its operations over a designated period give rise to a presumptive liability for income tax, the company must, at such time as the Treasurer stipulates, pay to the Treasurer, for the credit of the Consolidated Account, a sum equal to the amount of the presumptive liability. (2) The Treasurer may require a State-owned company to make other payments in respect of a designated period in lieu of taxes under the law of the State or the Commonwealth from which the company was exempt during the designated period because of the company's relationship to the Crown. (3) In this section— date of divestiture means the date the sale of shares in the State-owned company is completed; designated period is a period of 12 months or less falling before the date of divestiture of the company— (a) extending from the date of the company's incorporation to the following 30 June or the date of divestiture of the company (whichever is first); (b) extending from 1 July in one year to 30 June in the next; (c) extending from 30 June to the date of divestiture of the company; presumptive liability to income tax, in relation to a State-owned company, means a liability for income tax that would have existed under the Income Tax Assessment Act 1936, or the Income Tax Assessment Act 1997, of the Commonwealth (as amended from time to time) if— (a) the company were liable to income tax under that Act; and (b) the designated period were a year of income within the meaning of that Act. 31—Validation of certain contracts etc A contract, lease or licence purportedly made by the Corporation which would, but for this section, be invalid because it was made without the Minister's approval is valid and is taken to have been valid since its inception. 32—Interaction between this Act and other Acts (1) A transaction under this Act is not subject to the Land and Business (Sale and Conveyancing) Act 1994. (2) A transaction under this Act is not subject to the Retail and Commercial Leases Act 1995. (3) A transaction under this Act is not subject to Part 4 of the Development Act 1993. (4) However, the exemption conferred by subsection (3) does not extend to a development that is to be carried out under the terms or conditions of a sale/lease agreement. 33—Effect of things done or allowed under this Act Nothing done, authorised or allowed by or under this Act, a transfer order or a sale/lease agreement— (a) constitutes a breach of, or a default under, an Act or other law; or (b) constitutes a breach of, or default under, a contract, agreement, understanding or undertaking; or (c) constitutes a breach of duty of confidence (whether arising by contract, in equity or by custom) or in any other way; or (d) constitutes a civil or criminal wrong; or (e) terminates an agreement or obligation or fulfils any condition that allows a person to terminate an agreement or obligation, or gives rise to any other right or remedy; or (f) releases a surety or other obligee wholly or in part from an obligation. 34—Stamp duty (1) No stamp duty is payable in respect of— (a) a transfer order or a sale/lease agreement; or (b) a transaction effected by a transfer order or a sale/lease agreement. (2) No obligation arises under the Stamp Duties Act 1923 to lodge a statement or return, or to include information in a statement or return, relating to a transaction effected by a transfer order or a sale/lease agreement. 35—Land tax Subjacent land leased under a sale/lease agreement or a related agreement is not liable to land tax. 36—Registration of transfer of land (1) The Registrar-General must, on the application of a person to whom, or in whom, an interest in land is transferred or vested under this Act, register the transfer or vesting of the interest. (2) An application under this section— (a) must be accompanied by any documents or other materials required by the Registrar-General; and (b) must be accompanied by a fee determined by the Registrar-General. 37—Non-application of Parliamentary Committees Act 1991 If land is leased to a purchaser under a sale/lease agreement under this Act, no work carried out by the purchaser in relation to that land is to be considered a public work for the purposes of the Parliamentary Committees Act 1991 unless— (a) the total amount to be applied for the construction of the work will, when all stages of construction are complete, exceed $4 million; and (b) the whole or part of the cost is to be met from money provided or to be provided by Parliament or a State instrumentality. 38—Regulations (1) The Governor may make regulations for the purposes of this Act. (2) The regulations may impose fines, not exceeding $2 500, for offences against the regulations. Schedule 1—Division of land

Schedule 2—Amendments to Development Plan Ceduna (DC)—13 April 2000 (1)—Council-Wide provisions (i) In Objective 30 after the words "tourist accommodation" delete the words "and marinas" and insert the words ", marinas and ports". (ii) In Principle of Development Control 40 after the words "urban zone" insert the words "or to development associated with the operation of ports". (iii) In Principle of Development Control 42 after the words "reasons preclude" insert the words "or where operational requirements at ports renders this inappropriate". (iv) In Principle of Development Control 58 after the words "national importance" insert the words "; ports and port related functions". (2)—Residential Zone (i) Following Principle of Development Control 5, insert the following material as a new principle of development control: 6 Residential development adjacent to the port activities at Thevenard should be designed and located taking into account the operation of the port. (ii) Re-number the following principles accordingly. Land Not Within a Council Area (Coastal Waters)—13 April 2000 (1)—Council-Wide provisions (i) In Objective 33 after the words "tourist accommodation" delete the words "and marinas" and insert the words ", marinas and ports". (ii) In Principle of Development Control 20 after the words "urban zone" insert the words "or to development associated with the operation of ports". (iii) In Principle of Development Control 22 after the words "reasons preclude" insert the words "or where operational requirements at ports renders this inappropriate". (iv) In Principle of Development Control 39 after the words "Mineral Deposits of State or National importance" insert on a new line the words "Ports and Port Related functions". (v) Following Principle of Development Control 48, insert a new heading Public Notification. (vi) Following the new heading, insert the following material as a new principle of development control: 49 All kinds of development, except those designated as non-complying, associated with port activities at the ports of: • Wallaroo • Thevenard • Port Pirie • Port Lincoln • Port Giles • Klein Point are assigned to Category 2 notification. Land Not Within a Council Area (Metropolitan)—6 April 2000 (1)—Council-Wide provisions (i) Following Objective 14, insert the following material: Objective 15: Development associated with port activities protected from inappropriate development. (ii) Re-number the following Objectives accordingly. (iii) In Principle of Development Control 67 after the words "the foreshore" insert the words "except where operational requirements at ports renders this inappropriate". (iv) In Principle of Development Control 68 after the words "urban zone" insert the words "or to development associated with the operation of ports". (2)—Coastal Zone (i) In Principle of Development Control 7, the list of non-complying kinds of development, after the words "general industry" and "light industry", insert the following material: *(except where related to port functions) (ii) Following Principle of Development Control 7, insert a new heading Public Notification. (iii) Following the new heading Public Notification insert the following material as a new principle of development control: 8 All kinds of development, except those designated as non-complying, associated with port activities at the Port of Adelaide (including Outer Harbor, Pelican Point, Osborne, Inner Harbor West and Inner Harbor East) are assigned to Category 2 notification. Port Adelaide Enfield (City)—11 May 2000 (1)—Council-Wide provisions (i) Following Objective 109, insert the following material as a new objective: Objective 110: Development associated with port activities protected from inappropriate development (ii) Re-number the following objectives accordingly. (iii) In Principle of Development Control 266 after the words "the foreshore" insert the words "except where operational requirements at ports renders this inappropriate". (iv) In Principle of Development Control 267 after the words "urban zone" insert the words "or to development associated with the operation of ports". (2)—Industry (Deferred Port) Zone (i) Delete the Industry (Deferred Port) Zone. (3)—Industry (Port) Zone (i) Delete the Industry (Port) Zone, and insert the material contained in Attachment A as replacement. (4)—MOSS (Conservation) Zone (i) In the Introduction text after the words "Maps PtAdE/" insert "4, 6" immediately before "9". (ii) In the Desired Future Character Statement text after the words "Development within this" insert the words "portion of the". (iii) In the Desired Future Character Statement text after the words "education and recreation" insert the following material as a new paragraph: Mutton Cove is located on the western side of the Port River, approaching Pelican Point and is the only remnant of the tidal creek system remaining on the Le Fevre Peninsula. Although substantially degraded, it is a haven for a wide diversity of both Australian and migratory Wading birds and continues to support a substantial floral and fauna bio-diversity. Development within this portion of the Zone should assist in the rehabilitation of Mutton Cove and accommodate an open space linkage to the Moss (Buffer) Zone to the west. (iv) In Principle of Development Control 12 (e) after the words "structures at" insert the words "Mutton Cove,". (v) In Principle of Development Control 13 (g) after the words "structures at" insert the words "Mutton Cove,". (5)—In the MOSS (Buffer) Zone (i) In the Introduction text delete the words "Maps PtAdE/3 and 5" and insert "Maps PtAdelE/3, 4, 5 and 6". (ii) In the Desired Future Character Statement section delete the whole of the text and insert the following material as replacement: The Moss (Buffer) Zone should provide a buffer between the residential areas of North Haven and the port facilities and industries on the northern portion of the Le Fevre Peninsula. The purpose of the buffer is to maintain the amenity of nearby residential areas whilst facilitating the ongoing operations of the port and related industries. Land located to the south and west of Victoria Road should accommodate a golf course. Land located to the north and east of Victoria Road should be developed as a densely planted but functional open space to screen the port activities and industrial land. (iii) In Objective 2 after the words "primary activity" insert the words "south of Victoria Road". (iv) Following Principle of Development Control 4 insert the following material as a new principle of development control: 5 An open space linkage of a minimum width of 100 metres should be provided to the Moss (Conservation) Zone at Mutton Cove. (iv) Renumber the following principles accordingly. (6) Delete Maps PAdE/1 (Overlay) Part A, PAdE/1 (Overlay 4), PAdE/3, 4, 6, 8, 9, 12, 13 and 57, and insert the material contained within Attachment B. Port Lincoln (City)—16 September 1999 (1)—Council-Wide provisions (i) In Objective 26 after the words "tourist accommodation" delete the words "and marinas" and insert the words ", marinas and ports". (ii) In Principle of Development Control 69 after the words "urban zone" insert the words "or to development associated with the operation of ports". (iii) In Principle of Development Control 71 after the words "reasons preclude" insert the words "or where operational requirements at ports renders this inappropriate". (iv) In Principle of Development Control 88 after the words "Mineral Deposits of State or National importance" insert on a new line the words "Ports and Port Related functions". (2)—Lincoln Harbor (Area 6) (i) In the heading Principle of Development Control delete the word "Principle" and insert the word "Principles" as replacement. (ii) Following Principle of Development Control 1, insert a new heading Public Notification. (iii) Following the new heading insert the following material as a new principle of development control: 2 All kinds of development associated with port activities, on an allotment with water frontage, are assigned to Category 2 notification in the Lincoln Harbor (Area 6). Port Pirie (City)—16 March 2000 (1)—Council-Wide provisions (i) In Objective 43 after the words "tourist accommodation" delete the words "and marinas" and insert the words ", marinas and ports". (ii) In Principle of Development Control 130 after the words "urban zone" insert the words "or to development associated with the operation of ports". (iii) In Principle of Development Control 132 after the words "reasons preclude" insert the words "or where operational requirements at ports renders this inappropriate". (iv) In Principle of Development Control 149 after the words "Mineral Deposits of State or National importance" insert on a new line the words "Ports and Port Related functions". (2)—Commercial 3 Zone (i) In Objective 1 after the words "commercial activities," insert the words "port activities,". (ii) In Principle of Development Control 1 after the words "Parking Area" insert the words "Port Activities". (iii) Following Principle of Development Control 2, insert the following material as a new principle of development control: 3 The water frontage of the Zone should accommodate port activities including bulk cargo handling facilities, trans-shipment yards and associated servicing activities. (iv) Re-number the following principles accordingly. (v) Following Principle of Development Control 9, insert a new heading Public Notification. (vi) Under the new heading, insert the following material as a new principle of development control: 10 All kinds of development associated with port activities, east of Ellen Street, are assigned to Category 2 notification in the Commercial 3 Zone. Wallaroo (CT)—23 March 2000 (1)—Council-Wide provisions (i) Following the explanatory material for Objective 6 insert the following material: Port Development Objective 7: Port operations not jeopardised by inappropriate development or activities. (ii) Re-number the following Objectives accordingly. (iii) In Objective 24 after the words "tourist accommodation" delete the words "and marinas" and insert the words ", marinas and ports". (iv) Following Principle of Development Control 15 insert the following material as a new principle of development control: Port Development 16 Development in proximity to port facilities should not adversely impact upon the ongoing operations of the port. (v) Re-number the following principles accordingly and adjust cross references where required. (vi) In Principle of Development Control 70 after the words "urban zone" insert the words "or to development associated with the operation of ports". (vii) In Principle of Development Control 72 after the words "reasons preclude" insert the words "or where operational requirements at ports renders this inappropriate". (viii) In Principle of Development Control 89 after the words "Mineral Deposits of State or National importance" insert on a new line the words ", Ports and Port Related functions". Yorketown (DC)—23 March 2000 (1)—Council-Wide provisions (i) In Objective 30 after the words "tourist accommodation" delete the words "and marinas" and insert the words ", marinas and ports". (ii) In Principle of Development Control 87 after the words "urban zone" insert the words "or to development associated with the operation of ports". (iii) In Principle of Development Control 89 after the words "reasons preclude" insert the words "or where operational requirements at ports renders this inappropriate". (iv) In Principle of Development Control 106 after the words "Mineral Deposits of State or National importance" insert on a new line the words ", Ports and Port Related functions".

Schedule 3—Superannuation benefits for transferred employees 1—Interpretation In this Schedule, unless the contrary intention appears— Board means the South Australian Superannuation Board; contribution account means an account to which a contributor's contributions are credited (together with interest and accretions); contributor means a contributor to a superannuation scheme; employer account means an account to which an employer's contributions are credited (together with interest and accretions); new scheme contributor has the meaning given by the Superannuation Act 1988; old scheme contributor has the meaning given by the Superannuation Act 1988; presumptive retirement age means— (a) for a transferred employee who is under 60 years of age on the relevant day—the age of 60 years; (b) for a transferred employee who is 60 years of age or above on the relevant day, the lesser of the following: (i) the employee's age on the date when the employee's contributions would have ceased under section 23(7)(a) of the Superannuation Act 1988 assuming that the employee had continued as an old scheme contributor under that Act; (ii) the age of 65 years; PSESS scheme means the Public Sector Employees Superannuation Scheme established pursuant to a deed of arrangement dated 27 September 1989 between the Treasurer and the secretary of the United Trades and Labor Council; regulated superannuation scheme means a superannuation scheme regulated under the Superannuation Industry (Supervision) Act 1993 (Cwth); relevant day means the day on which a transferred employee is transferred to private employment under this Act; rollover account means an account to which is credited an amount rolled over from another superannuation scheme into an account kept under the Triple S scheme (together with interest and accretions); SIS requirements means requirements of the Superannuation Industry (Supervision) Act 1993 (Cwth) or other legislation of the Commonwealth related to superannuation; standard contribution rate has the same meaning as in section 4 of the Superannuation Act 1988; transferred employee means an employee who is transferred to private employment under this Act; Triple S scheme means the superannuation scheme established under the Southern State Superannuation Act 1994. 2—Triple S Scheme (1) This clause applies to a transferred employee who was on the relevant day a contributor to the Triple S scheme. (2) A transferred employee who has not reached the age of 55 years is entitled to the following: (a) the balance of the employee's contribution account (which may be taken immediately, preserved in the Triple S scheme, or rolled over into a regulated superannuation scheme); (b) the balance of the employer account (which may be preserved in the Triple S scheme or rolled over to a regulated superannuation scheme as a preserved amount); (c) the balance of any rollover account (which (subject to SIS requirements) may be taken immediately, preserved in the Triple S scheme, or rolled over into a regulated superannuation scheme). (3) A transferred employee who has reached the age of 55 years is entitled to the following: (a) the balance of the employee's contribution account (which may be taken immediately or rolled over into a regulated superannuation scheme); (b) the balance of the employer account (which may be taken immediately or rolled over into a regulated superannuation scheme); (c) the balance of any rollover account (which (subject to SIS requirements) may be taken immediately, preserved in the Triple S scheme, or rolled over into a regulated superannuation scheme). 3—New scheme contributors (1) This clause applies to a transferred employee who was, on the relevant day, a new scheme contributor. (2) A transferred employee who has not reached the age of 55 years may elect to do one of the following: (a) to preserve his or her accrued superannuation benefits under section 28(1)(b) of the Superannuation Act 1988; (b) to take immediately or roll over into a regulated superannuation scheme the aggregate of the following amounts: (i) the balance of the employee's contribution account; and (ii) the lesser of— • twice the balance of the employee's contribution account; or • twice the amount that would have been the balance of the contribution account if the employee had contributed to the scheme at the employee's standard contribution rate throughout the period of the employee's membership of the scheme; (iii) an amount determined in accordance with section 28(5)(b)(ii)(B) of the Superannuation Act 1988, and if the employee was a member of the PSESS scheme, the amount standing to the employee's account under section 32A(6) of the Superannuation Act 1988 is to be added to the amount preserved, rolled over or taken in cash under paragraph (a), (b) or (c). (3) A transferred employee who has reached the age of 55 years may elect to do one of the following: (a) to preserve his or her accrued superannuation benefits under section 28(1)(b) of the Superannuation Act 1988; (b) to take immediately or roll over into a regulated superannuation scheme an amount determined under section 27 of the Superannuation Act 1988 as if the employee had retired from employment on the relevant day, and if the employee was a member of the PSESS scheme, the amount standing to the employee's account under section 32A(6) of the Superannuation Act 1988 is to be added to the amount preserved, taken or rolled over under paragraph (a) or (b). (4) A transferred employee who elects to preserve his or her accrued benefits under this clause is not entitled to payment of the preserved benefits under the Superannuation Act 1988 until the employee's employment with the purchaser has terminated. (5) An election under this clause is made by notice in writing given personally or by post to the Board. (6) If a transferred employee fails to make an election under this clause within one month after the relevant day, the employee is taken to have elected to preserve his or her accrued superannuation benefits under section 28(1)(b) of the Superannuation Act 1988. 4—Old scheme contributors (1) This clause applies to a transferred employee who was, on the relevant day, an old scheme contributor. (2) A transferred employee who has not reached the age of 55 years may elect to do one of the following: (a) to preserve his or her accrued superannuation benefits under section 39(1)(b) of the Superannuation Act 1988; (b) to take immediately or roll over into a regulated superannuation scheme the aggregate of the following amounts: (i) the balance of the employee's contribution account; and (ii) the lesser of— • 2.5 times the balance of the employee's contribution account; or • 2.5 times the amount that would have been the balance of the contribution account if the employee had contributed to the scheme at the employee's standard contribution rate throughout the period of the employee's membership of the scheme. (3) A transferred employee who has reached the age of 55 years may elect to do one of the following: (a) to preserve his or her accrued superannuation benefits under section 39(1)(b) of the Superannuation Act 1988; (b) to take immediately or roll over into a regulated superannuation scheme an amount equivalent to the commuted value of the pension to which the employee would have been entitled if he or she had retired from employment on the relevant day and had elected to commute 100% of the pension. (4) A transferred employee who has elected to preserve his or her accrued benefits under this clause is not entitled to a retirement pension or a benefit related to the commutation of a retirement pension under the Superannuation Act 1988 until the employee's employment with the purchaser has terminated. (5) An election under this clause is made by notice in writing given personally or by post to the Board. (6) If a transferred employee fails to make an election under this clause within one month after the relevant day, the employee is taken to have elected to preserve his or her accrued superannuation benefits under section 39(1)(b) of the Superannuation Act 1988. 5—Special provision for certain old scheme contributors (1) This clause applies to a transferred employee— (a) who was, on the relevant day an old scheme contributor; and (b) whose contributions had, as at that day, not ceased under section 23(7)(a) of the Superannuation Act 1988; and (c) who elected to preserve his or her accrued superannuation benefits under section 39(1)(b) of the Superannuation Act 1988. (2) The Treasurer must obtain an actuarial report (from an actuary appointed for the purpose by the Treasurer) on each employee to whom this clause applies to determine a lump sum representing the amount (if any) by which the value of the retirement benefit referred to in paragraph (a) exceeds the aggregate value of the retirement benefits referred to in paragraph (b)— (a) the value (expressed as a capital sum) of the retirement benefit the employee would have received under the Superannuation Act 1988 assuming the employee had continued as a public sector employee, had continued to contribute as an old scheme contributor at the employee's average rate of contribution, and had retired on reaching the employee's presumptive retirement age; and (b) the aggregate value (expressed as a capital sum) of the retirement benefits to which the employee would be entitled assuming that the employee retired on reaching the employee's presumptive retirement age, then took retirement benefits under the Superannuation Act 1988 and also took retirement benefits under a private superannuation scheme to which the employee and the employer had contributed at the respective average contribution rates for the employee and the employer under the State scheme from the relevant day until the employee reached the employee's presumptive retirement age. (3) The Treasurer must pay a lump sum (if any) determined under subclause (2) to an account in the name of the employee in a regulated superannuation scheme nominated by the employee. 6—Provisions as to preservation apply despite the fact that the transferred employee may be over 55 The provisions of this Schedule as to the preservation of benefits under the Superannuation Act 1988 apply even though the transferred employee may be over the age of 55 years. 7—Modifications to Superannuation Act 1988 to continue in operation (1) This section applies to modifications, made under section 5 of the Superannuation Act 1988, to provisions of that Act in their application to employees of the Corporation. (2) Subject to a determination to the contrary by the Minister, the modifications— (a) continue to apply to employees of the Corporation who are transferred under this Act to positions in the Department for Administrative and Information Services while they remain in the Public Service; and (b) apply for the purpose of determining the superannuation entitlements (if any) under that Act of, or relating to, those employees. Legislative history Notes • For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or www.legislation.sa.gov.au. Principal Act and amendments New entries appear in bold. Year No Title Assent Commencement 2000 93 South Australian Ports (Disposal of Maritime Assets) Act 2000 21.12.2000 25.1.2001 (Gazette 25.1.2001 p300) 2007 36 South Australian Ports (Disposal of Maritime Assets) (Miscellaneous) Amendment Act 2007 4.10.2007 18.10.2007 (Gazette 18.10.2007 p3969) Provisions amended New entries appear in bold. Entries that relate to provisions that have been deleted appear in italics. Provision How varied Commencement Pt 1

s 2 omitted under Legislation Revision and Publication Act 2002

Pt 7

s 21

s 21(2) substituted by 36/2007 s 4(1) 18.10.2007 s 21(3) amended by 36/2007 s 4(2) 18.10.2007 s 21(4) deleted by 36/2007 s 4(3) 18.10.2007 s 22 substituted by 36/2007 s 5 18.10.2007 s 25

s 25(3) inserted by 36/2007 s 6 18.10.2007 Pt 8

s 26

s 26(1) amended by 36/2007 s 7(1) 18.10.2007 s 26(5) and (6) substituted by 36/2007 s 7(2) 18.10.2007 s 26(7) and (8) inserted by 36/2007 s 7(2) 18.10.2007

1 South Australian Ports (Disposal of Maritime Assets) Act 2000

The Act defines and deploys a set of recurring legal and administrative concepts that structure disposal and post‑disposal governance.

Maritime asset and maritime liability. A maritime asset is broadly defined to include ports vested in the Corporation at commencement, associated assets, assets transferred to State‑owned companies or other authorised transferees under transfer orders, and any other asset the Minister directs be regarded as a maritime asset (s 3). Maritime liability captures liabilities of the Corporation at commencement and liabilities transferred by transfer order (s 3).
Transfer orders and sale/lease agreements. A transfer order is a ministerial instrument transferring a maritime asset to an authorised transferee (s 6). An authorised transferee includes State‑owned companies and Ministers, agencies or instrumentalities of the Crown (s 6(2)). Sale/lease agreements are contractual disposals by the Minister with a purchaser, able to transfer assets, liabilities, leases, easements or shares in a State‑owned company (s 7).
State‑owned company. A company incorporated under the Corporations Law with all issued shares held by Ministers or their nominees is a State‑owned company for this Act (s 3). A State‑owned company may be used as an intermediate vehicle for transferring assets prior to share sale (s 6(1)) and is, so long as it is State‑owned, an instrumentality of the Crown (s 28). The Treasurer may fund such companies and advance loan capital or transfer non‑pecuniary assets (s 27).
Overriding operation. Transfers and agreements made under the Act operate by force of the Act despite other laws or instruments (s 6(4), s 7(4)); the Act also expressly states that actions done under it do not constitute breaches of other laws, contracts or duties (s 33). Transactions effected under the Act are exempt from stamp duty (s 34) and are not subject to specified State statutes such as the Land and Business (Sale and Conveyancing) Act 1994 and the Retail and Commercial Leases Act 1995 (s 32).
Content expectations for leases. If a sale/lease operates as a lease, s 8 sets out the matters it should contain, including strategic development plans, rent security, indemnities, insurance, regulatory compliance obligations and termination rights, and requires 12 months’ notice for intended port closure (s 8(2), (4)). The Act allows certain contractual provisions in sale/lease agreements to take effect despite contrary law, including termination circumstances, pre-payment and retention of rent, survival of obligations under unforeseen circumstances and liquidated damages (s 8(5)).
Employee transfers and superannuation. The Minister may transfer employees to DAIS and then to purchasers (s 13). Employee transfer orders must be consistent with the memorandum of understanding with unions and may set terms that become terms of private employment, with lump sum payments required on transfer (s 14). Schedule 3 prescribes detailed superannuation rules for transferred employees, differentiating Triple S contributors, new scheme and old scheme contributors and providing election processes and actuarial adjustment mechanisms.
Statutory easement. The Act creates a statutory easement in favour of owners of port infrastructure where there was no formal entitlement at commencement or where infrastructure ownership becomes dissociated from land ownership in disposal (s 19). The easement is in gross, confers rights to maintain and operate infrastructure and to enter land, and can be displaced by agreement and registered instrument (s 19(1)-(7)).
Monitoring panel and performance criteria. Pt 7 establishes the Port Adelaide Container Terminal Monitoring Panel, appointed by the Minister and constituted under regulations (s 20-21). The panel must set objective, measurable performance objectives and criteria, notify operators, receive quarterly reports, and may issue notices of non‑performance that can lead to termination of an operator’s rights if repeated (s 23-25).
Cross‑ownership limitation and divestiture. Pt 8 defines cross‑ownership interest in terms of simultaneous interests in the Outer Harbor container terminal and a dominant terminal in Melbourne or Fremantle (s 26(1)-(2)). The Minister may require divestiture where a cross‑ownership interest "may result" in the terminal not being managed in the State’s best interests, and may confiscate assets if the notice is not complied with (s 26(5)-(7)); limited judicial review is available within 21 days (s 26(8)).
Public access and recreational access agreements. The Minister requires, as a condition of sale/lease, a recreational access agreement between the purchaser and the local council to preserve or enhance public access free of charge (s 17). Such agreements bind occupiers and are enforceable by interested persons in the Supreme Court (s 17-18).

These concepts set up a legal structure that allows the executive to effect portfolio restructuring and privatisation of ports with statutory immunities and prescribed protections and obligations for the public, employees and monitoring bodies. Each mechanism carries allocation of risks and responsibilities in specific sections: indemnities in sale/lease agreements (s 7(3)), non‑application of guarantees (s 11), registration and title consequences (s 4, s 10, s 36) and parliamentary oversight via laying requirements (s 9).

The Act affects multiple parties in differentiated ways, allocating decision‑rights, fiscal obligations and operational responsibilities.

The Government and the Minister. The Minister is the decision‑maker empowered to make transfer orders (s 6), to require divestiture under cross‑ownership controls (s 26), to assume control of the Corporation and dissolve the board (s 15), to lodge division applications for land (s 10) and to determine assets to be treated as personalty (s 4). The Governor retains powers under proclamation to dissolve the Corporation (s 15(4)), to repeal the prior Ports Corporation Act 1994 (s 16), and to grant limited exemptions from liabilities by proclamation (s 8(8)). The Treasurer has financial powers to subscribe capital, advance loans and transfer assets to State‑owned companies (s 27) and to require payments in lieu of tax from State‑owned companies (s 30).
The South Australian Ports Corporation. The Corporation is the transferring entity whose assets and liabilities can be transferred by ministerial instrument or sale agreement (s 6-7). The Act contemplates the Corporation being placed under ministerial control, its board dissolved, and ultimately its dissolution and repeal of the South Australian Ports Corporation Act 1994 (s 15-16). The Corporation can also contract with State‑owned companies to share employees and facilities (s 29).
State‑owned companies and purchasers. State‑owned companies are defined and can be created or subscribed to by Ministers (s 3, s 27). They are instruments of the Crown while State‑owned (s 28). Purchasers who acquire assets or leases under sale/lease agreements take on obligations and rights as set out in the agreements, including possible indemnities to the Crown (s 7(3)), obligations to provide strategic development plans and compliance with terms in leases (s 8(2)). Purchasers must, as a condition of sale/lease, enter into recreational access agreements with local councils where public access is relevant (s 17).
Employees of the Corporation. The Minister may transfer employees to the Department for Administrative and Information Services and thereafter to private purchasers (s 13). Employee transfer orders must be consistent with a memorandum of understanding with maritime unions (s 14(1)) and may specify terms that become terms of private employment (s 14(2)-(3)). Transfer triggers a lump sum payment to the employee in accordance with the memorandum (s 14(4)). Termination under an employee transfer order is not redundancy or retrenchment (s 14(5)). Schedule 3 details superannuation entitlements and election processes for transferred employees, differentiating Triple S, new scheme and old scheme contributors (Schedule 3, cl 2-4).
Local councils and the public. Councils are parties to recreational access agreements (s 17(3)(a)); they must keep copies for public inspection (s 17(5)). The purpose stated in s 17(2) is to preserve or enhance public access free of charge. Interested persons including councils, occupiers and specified bodies can apply to the Supreme Court to enforce recreational access agreements (s 18).
Port infrastructure owners and landholders. S 19 grants statutory easements in favour of owners of port infrastructure (pipelines, conveyors, cranes and associated plant) where no formal entitlement existed at commencement or infrastructure ownership becomes dissociated from land. The easement is in gross and confers rights to maintain, operate and enter land. Landowners can agree to discharge or replace the statutory easement (s 19(5)) and the Registrar‑General must note the easement on title at application (s 19(7)).
Port operators, particularly the Port Adelaide container terminal operator. The Port Adelaide Container Terminal Monitoring Panel has powers to set objective performance criteria and receive quarterly reports from the operator (s 23-24). The panel can issue notices of non‑performance for quarters missed, and two successive notices expose the operator’s rights to possession and control to termination (s 25(1)-(2)). The Minister is informed on persistent non‑performance (s 25(3)).
Market participants with cross‑ownership interests. Pt 8 defines cross‑ownership and gives the Minister a power to require divestiture if a cross‑ownership interest may result in the terminal not being run in the State’s interests (s 26). The Minister may confiscate assets not divested after notice (s 26(7)). Affected persons have a right to show cause and to apply to the Supreme Court within 21 days for judicial review of a divestiture notice (s 26(6)-(8)).
Registrars and regulators. The Registrar‑General must issue new certificates on division of land under s 10 and register transfers under s 36, with fees. The Act exempts certain transactions from normal statutory processes (s 32), exempts transactions from stamp duty and certain returns (s 34), and removes some obligations under the Parliamentary Committees Act for purchaser works under specified thresholds (s 37).

Who pays and who bears risk emerges from specific provisions: purchasers may be required to indemnify the Crown or Corporation (s 6(5), s 7(3)); the Government excludes its guarantees from applying to liabilities transferred by transfer order or sale/lease (s 11(1)); and sale proceeds are ringfenced for specified State uses including up to $100 million for superannuation (s 12). The allocation of decision‑making power is concentrated in the Minister, with parliamentary laying and an independent probity report as legislative oversight mechanisms (s 9).

The Act allocates affirmative duties and confers rights across parties; these are precise and statutory.

Ministerial duties and rights

Power to make transfer orders and to specify assets to be treated as personalty (s 6, s 4). Transfer orders vest title in the authorised transferee and discharge Crown trusts except where expressly preserved (s 6(3)).
Power to enter sale/lease agreements transferring assets, liabilities or shares (s 7). Sale/lease agreements create or transfer interests and liabilities by force of the Act (s 7(2)-(4)).
Duty to lay transfer orders and sale/lease agreements before both Houses of Parliament "as soon as practicable" and to cause an independent probity report on the sale/lease processes to be laid (s 9(1)-(2)).
Power to assume control of the Corporation, dissolve its board, vest its powers in the Minister and, ultimately, to dissolve the Corporation by proclamation (s 15).
Power to require divestiture of assets where cross‑ownership may prejudice management in the State's interests, with procedural notice and show‑cause steps (s 26(5)-(6)).
Power to nominate State‑owned companies by Gazette notice (s 3, s 27).

Purchaser, lessee and operator duties and rights

Duty to comply with the terms of sale/lease agreements, which may include obligations to provide strategic development plans, financial security for rent, indemnities to lessor/Crown for specified liabilities, insurance, and regulatory compliance (s 8(2)).
Duty to provide at least 12 months’ notice before intended port or partial closure (s 8(4)).
Right to hold and exercise lease or other interests created by the sale/lease agreement, subject to termination for non‑payment or serious breach (s 8(2)(g)).
Where a sale/lease agreement contains civil penalties, the lessee may be subjected to such penalties, which are recoverable by the Crown as a debt (s 8(6)-(7)).
For Port Adelaide container terminal operator, duties to report quarterly to the Monitoring Panel with information required to assess compliance with objectively measurable performance criteria (s 23-24). The operator has the right to be notified of revised criteria at least three months before they take effect (s 23(5)).

Employees’ rights and employer duties

The Minister may transfer employees to DAIS and to private purchasers; employee transfer orders must be consistent with a memorandum of understanding with the unions and may include terms that take effect on transfer to private employment (s 13-14).
Transferred employees are entitled to lump sum payments on transfer as specified in the memorandum (s 14(4)).
Termination under an employee transfer order is not to be treated as redundancy or retrenchment (s 14(5)).
Schedule 3 gives detailed choices and entitlements for transferred employees regarding preservation, rollover or taking of superannuation amounts, differentiated by Triple S, new scheme and old scheme contributors, with election windows and default outcomes where no election is made within one month (Schedule 3, cl 2-4, 6).

Statutory easement rights and duties

Owners of port infrastructure obtain an easement in gross to retain, maintain and operate infrastructure, to enter land and bring necessary equipment, subject to duties to take reasonable steps to minimise damage and avoid unnecessary interference (s 19(1)-(4)).
Owners of affected land may, by agreement, create an express easement to exclude or discharge the statutory easement, which takes effect on registration (s 19(5)-(7)).

Council and public rights/duties

Councils must be parties to recreational access agreements with purchasers and must keep public copies available for inspection (s 17(3)-(5)). The public interest purpose is stated in s 17(2).
Interested persons including councils, occupiers and specified classes may apply to the Supreme Court to enforce recreational access agreements (s 18(1)-(2)).

Registrar‑General and land registration duties

The Registrar‑General must cancel existing certificates and issue new certificates on division applications (s 10(3)-(4)) and must register transfers or vesting of interests effected under the Act upon application with documentation and fee (s 36(1)-(2)). For statutory easements, upon application the Registrar‑General must note the easement on each title or Crown lease affected (s 19(7)).

Limitations on guarantees and taxes

Government guarantees do not apply to liabilities transferred under transfer orders or sale/lease agreements unless liabilities are transferred back to the Corporation; and guarantees do not apply to liabilities of a company that was State‑owned before its shares were sold (s 11(1)).
Transactions effected under the Act are exempt from stamp duty and related lodging obligations (s 34), and subjacent land leased under sale/lease agreements is not liable to land tax (s 35).

Rights of judicial review and parliamentary oversight

Notices under the cross‑ownership divestiture power can be judicially reviewed in the Supreme Court within 21 days (s 26(8)). Transfer orders and sale/lease agreements must be laid before Parliament and accompanied by an independent probity report for sale/lease agreements (s 9).

These duties and rights are distributed to allow the executive to both effect transfer and to impose operational and public‑access obligations on purchasers and operators, while preserving certain employee protections and providing monitoring and judicial‑review mechanisms.

The Act sets out multiple enforcement nodes: contractual remedies under sale/lease agreements, civil penalties recoverable as debts, panel powers for monitoring and termination, ministerial divestiture and confiscation powers, and courts for enforcement of public access provisions.

Civil penalties and recoverability

A sale/lease agreement may provide for the payment of civil penalties by the lessee for specified breaches (s 8(6)). Such civil penalties are recoverable by the Crown as a debt, whether or not the breach caused loss or damage (s 8(7)). That gives the Crown a private‑law collection remedy distinct from administrative sanctioning.

Termination rights and indemnities

Sale/lease agreements are expected to contain rights for the lessor to terminate for non‑payment of rent or any serious breach that remains unremedied after notice and a reasonable opportunity to remedy (s 8(2)(g)). Agreements may also include lessor options to acquire assets on expiry or earlier termination (s 8(2)(h)).
A sale/lease agreement may impose on the purchaser a liability to indemnify the Corporation or Crown against specified liabilities (s 7(3)); a transfer order may similarly require the transferee to indemnify the Corporation (s 6(5)). These are contractual risk‑allocation devices enforceable as private obligations.

Panel enforcement and termination of possession

Pt 7 provides an administrative monitoring and enforcement mechanism specific to the Port Adelaide container terminal. The Monitoring Panel establishes measurable performance objectives and criteria (s 23). The operator must report quarterly (s 24(1)). The panel can issue notices of non‑performance for failure to meet criteria in a quarter (s 25(1)). Two successive quarterly notices may render the operator’s rights to possession and control "liable to termination" (s 25(2)); on issuing two notices the panel must inform the Minister with details (s 25(3)). The Act does not prescribe the precise post‑notice steps for termination beyond this, leaving operational detail to the panel’s procedures and the regulations.

Ministerial divestiture and confiscation

Under Pt 8 the Minister may require divestiture where in the Minister’s opinion a cross‑ownership interest may result in the container terminal not being managed in the State’s best interests (s 26(5)). The Minister must give at least 21 days’ notice and allow a reasonable opportunity to show cause and provide supporting documents (s 26(6)). If the person fails to comply with a divestiture notice, the Minister may, by subsequent notice, confiscate assets not divested as required (s 26(7)). The person and associates affected may apply to the Supreme Court for judicial review within 21 days of the notice (s 26(8)). That gives the Minister a compulsory acquisition-style remedy, subject to a time‑limited judicial check.

Court enforcement of recreational access agreements

Recreational access agreements are enforceable; the Supreme Court may, on application by an interested person (council, occupier, South Australian Recreational Fishing Advisory Council Inc., or a person specified by regulation), make orders to enforce such agreements (s 18(1)-(2)). This creates a private enforcement route for specified public access obligations.

Exemptions and limitations on enforcement

The Governor may, by proclamation, exempt the lessor from civil or criminal liabilities that would otherwise attach as owner or lessor of the land, or in relation to use of the land, to the extent specified in the proclamation (s 8(8)). However, such exemption cannot be granted for liabilities the lessor has to the lessee under the sale/lease agreement (s 8(9)). The effect is to allow the State to shield itself from certain third‑party exposures while preserving contractual obligations owed to the operator.

Tax and duty enforcement consequences

The Act removes stamp duty from transfer orders and sale/lease agreements and their transactions (s 34(1)), and relieves parties from obligations to lodge statements under the Stamp Duties Act 1923 in relation to such transactions (s 34(2)). Subjacent land leased under sale/lease arrangements is not liable to land tax (s 35). These exemptions reduce fiscal enforcement levers against purchasers in those respects.

Validation and exclusion of liability

The Act validates certain Corporation contracts that would have been invalid for lack of ministerial approval (s 31). Section 33 states that nothing done under this Act constitutes a breach or default under other laws, contracts or duties, or gives rise to rights to terminate or other remedies (s 33(a)-(f)). That has the practical effect of insulating the State and transferees from claims that might otherwise arise from the transfers.

Regulatory penalties for contravening regulations

The Governor may make regulations under the Act and the regulations may impose fines not exceeding $2,500 for offences against the regulations (s 38(2)).

In sum, enforcement under the Act is a mix of private‑law remedies embedded in agreements (including civil penalties recoverable as debt), an administrative monitoring and termination mechanism for the Port Adelaide container terminal, ministerial compulsory powers for divestiture and confiscation in cross‑ownership cases, and judicial enforcement for public access agreements. The Act concurrently limits certain public remedies against the Crown by excluding guarantees for transferred liabilities (s 11) and by declaring that actions done under the Act do not constitute breaches of other laws (s 33), thereby shaping the enforcement landscape in favour of contractual and statutory enforcement channels the Act creates.

The Act explicitly displaces or excludes the operation of several State laws in relation to transactions effected under it, creates statutory overrides, and sets out interactions with taxation and registration regimes.

Express statutory overrides and non‑application

Both transfer orders and sale/lease agreements operate by force of the Act and despite any other law or instrument (s 6(4), s 7(4)). Section 33 further declares that nothing done under the Act constitutes a breach of any Act, other law, contract, duty of confidence, civil or criminal wrong, or gives rise to termination rights or releases sureties. Those sections create a broad legal carve‑out insulating disposals effected under the Act from many competing legal claims.
Section 32 sets out specific non‑applications: transactions under the Act are not subject to the Land and Business (Sale and Conveyancing) Act 1994, the Retail and Commercial Leases Act 1995, and Part 4 of the Development Act 1993 (with a qualification that the exemption from Part 4 does not extend to development to be carried out under the terms or conditions of a sale/lease agreement). That means common State statutory protections or procedural requirements in those regimes do not apply to these transactions.

Taxation and fiscal instruments

Transfers and sale/lease transactions under the Act are exempt from stamp duty and related lodgement obligations under the Stamp Duties Act 1923 (s 34(1)-(2)). Subjacent land leased under a sale/lease agreement is not liable for land tax (s 35). The Treasurer may, however, require a State‑owned company to make payments in lieu of tax for a designated period where the company incurs a presumptive income tax liability by reference to Commonwealth income tax law (s 30). This dual posture relieves purchasers from certain State taxes while allowing the Treasurer to require fiscal contributions to the Consolidated Account from State‑owned companies prior to divestiture.

Registration and land titles

The Minister may determine maritime assets to be treated as personal property even if attached to land, and such determinations prevent a transfer of land title from operating to transfer the asset (s 4(1)-(3)). That allows separation of physical asset from land title for disposal mechanics.
For divisions of land under s 10, the Registrar‑General must cancel existing certificates and issue new certificates for created allotments and no consent, approval or certificate is required under the Development Act 1993 for such a division (s 10(3)-(5)). The Development Plan is amended as set out in Schedule 2 (s 10(6)), but the Act also allows the Minister to make consequential amendments if the Development Plan is amended earlier (s 10(7)).
The Registrar‑General must register transfers or vestings effected under the Act on application (s 36(1)-(2)). For statutory easements (s 19), registration is not required but the Registrar‑General must, on application by an owner, note the statutory easement on each certificate of title or Crown lease affected (s 19(6)-(7)). The Registrar‑General is entitled to act on the basis of the information provided and is not obliged to verify its accuracy (s 19(9)), which interacts with property record accuracy and potential title disputes.

Employment law and superannuation

The Act permits employee transfer orders to take effect "despite the provisions of any other law or instrument" (s 13(4)). Employee transfer orders must be consistent with the memorandum of understanding with maritime unions (s 14(1)). Schedule 3 makes specific adaptations to interactions with the Superannuation Act 1988 and Commonwealth SIS requirements, setting out modified rights and election processes for transferred employees (Schedule 3). Those provisions operate alongside existing State superannuation regulatory frameworks and, where relevant, SIS requirements for rollovers to regulated schemes (Schedule 3, cl 1, 2-4).

Parliamentary oversight and committee law

The Minister must lay transfer orders and sale/lease agreements before both Houses of Parliament and lay an independent probity report for any sale/lease agreement (s 9). The Parliamentary Committees Act 1991 does not apply to works carried out by a purchaser under a sale/lease agreement unless the construction cost exceeds $4 million and part or all is funded by Parliament or a State instrumentality (s 37). That limits parliamentary committee oversight of purchaser works beneath defined fiscal thresholds.

Common law and contract

Section 33( a)-(f) aims to limit the common law consequences of actions taken under the Act, specifying that nothing done under the Act constitutes breaches or defaults under other laws, contracts or duties, or gives rise to rights to terminate or other remedies. Practically, that constrains counterparty contractual remedies and common law claims where transactions have been effected under the statutory regime.

Interplay with federal law

The statute expressly contemplates interactions with Commonwealth superannuation law (SIS requirements) for rollovers and regulated schemes in Schedule 3 (cl 1). It does not attempt to override federal law but sets out arrangements compatible with Commonwealth requirements for rollovers to regulated superannuation schemes.

Taken together, the Act carves out a distinct legal sphere for the disposal and governance of maritime assets, disapplying several State statutory protections and process regimes for transactions effected under the Act, and creating special registration, tax and employment treatments. Parties involved must navigate those statutory exceptions and interfaces with remaining State and Commonwealth law; in particular, the Act’s overrides (s 6(4), s 7(4), s 33, s 32) materially reduce the applicability of routine procedural and remedial mechanisms that would otherwise apply to property, contractual and employment matters.

The Act’s legislative history, as printed in the source, identifies the principal Act enacted in 2000 and a later miscellaneous amendment in 2007.

Principal Act: South Australian Ports (Disposal of Maritime Assets) Act 2000 (No 93), assented 21 December 2000 and commenced 25 January 2001 (Gazette 25.1.2001 p300). The original text provided in the source is the principal Act as enacted.
Amendment Act: South Australian Ports (Disposal of Maritime Assets) (Miscellaneous) Amendment Act 2007 (No 36), assented 4 October 2007 and commenced 18 October 2007 (Gazette 18.10.2007 p3969). The legislative history table documents specific provision changes effected by the 2007 Act.

Specific amendment entries recorded in the table:

Pt 7 (Port Adelaide Container Terminal Monitoring Panel) changes: s 21(2) was substituted by s 4(1) of the 2007 Act (commencing 18.10.2007); s 21(3) was amended by s 4(2); s 21(4) was deleted by s 4(3); s 22 was substituted by s 5; and s 25(3) was inserted by s 6. Those items indicate a restructuring of panel membership and procedures and an insertion to s 25 requiring the panel to inform the Minister if two successive notices of non-performance are issued, including details of the non‑performance (s 25(3) as presently printed).
Pt 8 (Limitation on cross‑ownership) changes: s 26(1) was amended by s 7(1) of the 2007 Act; subsections s 26(5) and (6) were substituted by s 7(2); and s 26(7) and (8) were inserted by s 7(2). These amendments modified the divestiture procedural requirements and introduced confiscation and judicial review provisions now reflected at s 26(7)-(8).

The legislative history table in the source flags other variations and deletions in the text of the Act, with entries showing the provision and how varied, and commencement dates. It also notes that s 2 was omitted under the Legislation Revision and Publication Act 2002. The table indicates the 2007 amendments substantively altered panel composition and cross‑ownership enforcement mechanisms.

No later amending instruments are recorded in the provided legislative history extract. The source also includes a general note pointing practitioners to the Index of South Australian Statutes or the State legislation website for further information relating to subordinate legislation made under the Act.

For practice, the legislative history shows that the Parliament has targeted the Act’s monitoring (Pt 7) and anti‑cross‑ownership (Pt 8) mechanisms for refinement since the original 2000 enactment. Those post‑enactment changes expand ministerial enforcement powers (confiscation) and clarify panel membership and procedure, which affects operational governance and review pathways. Users should consult the consolidated statute and Gazette notices for the exact texts of amendments and any subsequent subordinate instruments or regulations making procedural rules under the Act.

The text provided contains no judgments, case citations or summaries of litigation relating to the operation or interpretation of the South Australian Ports (Disposal of Maritime Assets) Act 2000. The Act itself contains procedural paths for limited judicial review: for example, a person to whom a divestiture notice is given under s 26(5) or (7) may, within 21 days, apply to the Supreme Court for judicial review of the decision to give the notice (s 26(8)). Recreational access agreements may be enforced by interested persons in the Supreme Court (s 18(1)-(2)). These provisions create statutory mechanisms for court engagement in specified circumstances.

Beyond those internal references, the statutory text does not identify or list any litigation brought under the Act nor does it name any judicial decisions. The legislative history supplied records amendments made in 2007 but does not reference litigation as a driver of amendment.

For practitioners requiring litigation history, the Act as printed is silent. Effective due diligence requires searching South Australian Supreme Court, District Court and appellate databases, and consolidated legal reporting services for cases invoking s 6-9, s 19 statutory easements, s 23-25 panel actions, s 26 divestiture/confiscation notices, s 17-18 recreational access agreements, s 33 exemptions from breach, or Schedule 3 superannuation disputes. Given the Act’s provisions that limit or displace other statutory and contractual remedies (s 6(4), s 7(4), s 33), litigation may be focussed on the boundaries of those overrides, on the exercise of ministerial discretion, on the Registrar‑General’s notation of statutory easements under s 19 and on judicial review of ministerial decisions under s 26(8).

In short, the statute provides avenues for judicial engagement in targeted areas but the source contains no reported judgments. Users should undertake targeted legal database searches for reported and unreported decisions post‑2001 to discover litigation that has interpreted the Act.

This Act contains multiple technical traps and areas where ordinary assumptions about property, employment and public procedural protections do not apply; each point below is tied to a specific section.

Overriding effect of transfer orders and sale/lease agreements. Transfers operate "by force of this Act and despite the provisions of any other law or instrument" (s 6(4), s 7(4)). Expect that standard property defences, contractual termination rights and many statutory protections can be displaced by operation of the Act; s 33 states that nothing done under the Act constitutes a breach of other laws or contracts. Practitioners should not assume common law or usual statutory remedies are available without checking these specific carve‑outs.
Assets treated as personalty. The Minister can determine that an asset annexed to land is to be treated as personal property (s 4). That severs the asset from land transfer mechanics: a land sale may not include the asset unless the determination provides otherwise (s 4(3)). Titles and encumbrance searches need careful attention: a port fixture may survive land transfers.
Registrar‑General’s limited verification role for statutory easements. The Registrar‑General must note statutory easements on title on application but "is entitled to act on the basis of information included in the application and is not obliged to do anything to verify the accuracy of that information" (s 19(9)). That creates a risk of inaccurate title markings and potential disputes where the accuracy of the claimed easement is material.
Employee transfers not redundancy and limited contractual protections. Employee transfer orders have force despite other law (s 13(4)), terminations under such orders do not constitute redundancy (s 14(5)), and transferred employees’ contractual terms may be imposed into private employment (s 14(2)-(3)). Ensure union MOU consistency and that lump sum payments per the MOU are properly calculated and delivered (s 14(4)). Superannuation choices must be made within one month or default outcomes apply (Schedule 3, cl 3(5), 4(5)).
Government guarantee exclusions. Section 11 excludes the application of Government guarantees to liabilities transferred by transfer order or sale/lease agreement and to liabilities of a company that was State‑owned before share sale (s 11(1)(a)-(b)). Purchasers should not assume State guarantees backstop transferred liabilities; contractual indemnities and security will matter.
Civil penalties recoverable as debt. A sale/lease may provide civil penalties for breach that the Crown can recover as a debt, whether or not damage occurred (s 8(6)-(7)). That mixes regulatory sanction and private claim, and provides the State with a powerful collection tool.
Governor’s power to exempt lessor from liabilities. The Governor can exempt the lessor from civil or criminal liabilities in declared circumstances (s 8(8)), but not from lessor’s liabilities to the lessee (s 8(9)). Purchasers must check whether the lessor’s risk profile has been materially altered by a proclamation.
Confiscation power under cross‑ownership controls. Where the Minister requires divestiture for cross‑ownership concerns and compliance fails, the Minister may confiscate assets not divested (s 26(7)). That is a strong compulsory power with a 21‑day judicial‑review window only (s 26(8)); affected parties must act quickly. The Minister's standard is whether the cross‑ownership "may result" in mismanagement from the State’s perspective (s 26(5)), a relatively low threshold enabling discretionary action.
Development Act non‑application and Development Plan amendments. The Act excludes transactions from Part 4 of the Development Act 1993 (s 32(3)) while at the same time amending Development Plans as set out in Schedule 2 (s 10(6)). Development consents and notification rules may differ from ordinary processes, and the Minister may make divisions of land without Development Act consents (s 10(5)).
Limited parliamentary oversight but required laying and probity reporting. The Minister must lay transfer orders and sale/lease agreements before Parliament and commission an independent probity report for sale/lease agreements (s 9). While these are oversight steps, they are post‑contractual, and the Act provides little other mandatory pre‑contract competitive or procurement process.
Registrar‑General fees and documentation required. Transfers and vestings under the Act must be registered on application and accompanied by documents and a fee determined by the Registrar‑General (s 36(2)). Practical closing checklists must budget for these administrative steps.
Superannuation election timing and actuarial adjustments. Schedule 3 sets tight election windows (generally one month) and complex actuarial processes for certain old scheme contributors (Schedule 3, cl 5). Failure to elect in time triggers preservation defaults (Schedule 3, cl 3(6), 4(6)). The Treasurer must obtain an actuarial report and pay lump sums where actuarial shortfalls are identified (Schedule 3, cl 5).

These gotchas emphasise the need for precise contract drafting, informed fiduciary decision‑making by purchasers and State entities, rapid action where ministerial notices are served, and careful attention to registration, tax and employee entitlements.

This section lists concrete compliance steps for the principal actors , Minister/State, purchasers/operators, employees, councils, registrars , keyed to specific provisions.

For the Minister and State agencies

Prepare transfer orders and sale/lease agreements in forms that explicitly state transfer of title, discharge of Crown trusts (s 6(3), s 7(2)(a)-(b)), and any indemnities to be imposed (s 6(5), s 7(3)). Ensure instruments record any Crown interests to be preserved.
Ensure sale/lease agreements that operate as leases contain the matters listed at s 8(2): strategic development plan obligations, rent security, lessee indemnities, insurance requirements, regulatory compliance obligations, termination triggers, and lessor acquisition options at market value. If any item is omitted, be prepared to produce a report identifying the non‑compliance and reasons when the agreement is laid before Parliament (s 8(3)).
Commission an independent probity report for each sale/lease agreement and arrange prompt laying of both transfer orders and sale/lease agreements before both Houses of Parliament (s 9(1)-(2)). Maintain records suitable for that probity report.
For divisions of land under s 10, lodge applications with plans and materials required by the Registrar‑General, and coordinate amendments to the Development Plan per Schedule 2 (s 10(1)-(6)). No Development Act consent is required for such divisions (s 10(5)), but coordinate with planning authorities on consequential matters.
Where cross‑ownership issues may arise, follow s 26(6) show‑cause steps before issuing divestiture notices, and be prepared for potential confiscation powers if notices are not complied with (s 26(7)). Ensure legally sufficient reasons and record keeping to withstand judicial review under s 26(8).
For employee transfers, ensure employee transfer orders are consistent with the memorandum of understanding and specify lump sum payments and any contractual terms to transfer into private employment (s 13-14). Maintain documentation to confirm compliance with Schedule 3 superannuation directions.

For purchasers and operators

Require and review strategic development plans as part of the lease terms (s 8(2)(a)). Provide adequate security at lease commencement to address the risk of non‑payment of rent (s 8(2)(b)).
Ensure contracts and operations include adequate indemnity and insurance arrangements contemplated by s 8(2)(d)-(e), and accept the lessor’s disclaimer scope under s 8(2)(c).
Comply with the 12‑month notice of intended port closure in s 8(4). Keep detailed compliance records for regulatory obligations and strategic development plan deliverables.
If operating the Port Adelaide container terminal, establish reporting processes to provide the panel’s required quarterly information in the form and within one month after the end of each quarter (s 24(1)). Track performance against objective criteria and respond promptly to panel notices to avoid the risk of two successive notices and potential termination exposure (s 25).
Be aware of civil penalties contained in the sale/lease agreement and the Crown’s right to recover such penalties as a debt (s 8(6)-(7)).
Monitor whether the purchaser’s ownership triggers cross‑ownership provisions in Pt 8 (s 26(1)-(3)). If a divestiture notice is given, respond within the show‑cause period and, if appropriate, prepare judicial review materials within 21 days (s 26(6)-(8)).
For any lands subject to statutory easements under s 19, check title notes and, if appropriate, negotiate express easements or discharge instruments for registration to secure certainty (s 19(5)-(7)).

For employees and unions

On transfer, review the memorandum of understanding and any employee transfer order particulars to confirm lump sum entitlement and any contractual terms that will transfer into private employment (s 14(1)-(4)).
Make timely elections under Schedule 3 for preservation or cash/rollover of superannuation benefits; elections must be made within one month of the relevant day (Schedule 3, cl 3(5), 4(5)). If advice is needed on SIS requirements for rollovers, obtain it promptly.
For old scheme contributors eligible for actuarial adjustment under Schedule 3, ensure nomination of a regulated superannuation scheme for any lump sum the Treasurer pays pursuant to cl 5.

For councils and public interest bodies

Negotiate and execute recreational access agreements with purchasers as a sale/lease condition (s 17(1), (3)). Keep copies available for public inspection in municipal offices (s 17(5)). Establish internal processes to monitor compliance and to take enforcement action in the Supreme Court where appropriate (s 18).

For the Registrar‑General and land titles administrators

Accept division applications with plans as lodged under s 10 and cancel and reissue certificates of title as required (s 10(3)-(4)). Note statutory easements on certificates on application (s 19(7)), and register transfers or vesting effected under the Act on application and receipt of required documents and prescribed fees (s 36(1)-(2)). Be aware the Registrar‑General is not obliged to verify application information for statutory easements (s 19(9)).

Cross‑cutting compliance points

Record and maintain contracts in forms that anticipate the Act’s overrides (s 6(4), s 7(4), s 33) and the tax/duty exemptions (s 34-35) to ensure accurate accounting and reporting of proceeds. Proceeds must be applied only to the specified purposes in s 12; if not applied immediately they must be held in a separate Treasury account with investment income applied towards retiring State debt (s 12(1)-(2)). Ensure Treasury and accounting processes segregate such proceeds accordingly.
For State‑owned companies, satisfy the Treasurer’s reporting requirements and be ready to make payments in lieu of tax for the designated period as stipulated by s 30, ensuring proper accounting for any presumptive income tax liabilities.

Practical checklist summary

Minister: draft transfer/sale instruments, commission independent probity report, lay instruments before Parliament, comply with land‑division and Development Plan steps, follow show‑cause for divestiture.
Purchaser/operator: draft lease to include/comply with s 8 items, provide rent security, insure, comply with strategic development plan and quarterly reporting obligations, track cross‑ownership exposure.
Employees: review MOU and employee transfer order, make timely superannuation elections under Schedule 3.
Council: execute recreational access agreements and keep public inspection copies.
Registry/Treasury: register transfers, note statutory easements, segregate sale proceeds and follow application rules for proceeds (s 12).

Following these targeted steps tied to the statutory text materially reduces transactional, regulatory and reputational risk created by the Act’s special regime.

South Australian Ports (Disposal of Maritime Assets) Act 2000

Plain English Summary

Deep Dive

What it does

Current sections

South Australian Ports (Disposal of Maritime Assets) Act 2000

Source text: opening excerpt

1 South Australian Ports (Disposal of Maritime Assets) Act 2000

Main concepts

Who it affects

Key duties and rights

Penalties and enforcement

How it interacts with other laws

Amendment history

Litigation history

Gotchas

How to comply