Western Parkland City Authority Act 2018

The Act introduces several key concepts that define its scope and operation. The Authority is a corporation constituted by the Act and a NSW Government agency (s 6). It is subject to the control and direction of the Minister (s 7(1)). The Board is the governing body of the Authority, consisting of a Chairperson, three persons nominated by the Minister, and three persons nominated by the Commonwealth Minister (s 8(2)). The appointment of the Chairperson requires the concurrence of the Commonwealth Minister (s 8(4)). Decisions relating to the Authority’s functions must be made by or under the authority of the Board (s 9(1)). The operational area is a critical territorial concept: it is the geographic sphere within which the Authority exercises its functions. It is defined as the Western Sydney Aerotropolis (identified on the map in Schedule 1) plus any other area within the Western City that is specified in Schedule 2 (Western City operational areas) or Schedule 3 (local council requested operational areas) (s 4). The Western City comprises eight listed local government areas (s 4). Development has the same meaning as in the Environmental Planning and Assessment Act 1979 (the Planning Act) and includes subdivision of land (s 4, note). The Western Sydney Airport is defined by reference to the Commonwealth Airports Act 1996 (s 4). The Authority’s charter, prepared by the Board and approved by the Minister, must identify priority projects and classes of decisions that must be referred to the Minister before being made (s 14). The Western Parkland City Fund is a Special Deposits Account administered by the Authority, into which money advanced by the Treasurer, appropriated by Parliament, investment proceeds, and other receipts are paid, and from which all Authority expenditure and payments under funding schemes are made (s 19). The Act also creates the concept of a private subsidiary corporation: a private corporation (within the meaning of the Corporations Act 2001 (Cth)) in which the Authority has a controlling interest (s 18(4)). Such a corporation is not, and does not represent, the Crown (s 18(3)). The Act’s three schedules serve distinct functions: Schedule 1 contains the map of the Western Sydney Aerotropolis; Schedule 2 specifies Western City operational areas (amended by 2020 (479), Sch 1); and Schedule 3 is for local council requested operational areas (which, on enactment, did not include any areas). The regulations may amend these schedules, after consultation with the Commonwealth Minister (s 5). The withdrawal notice mechanism allows the Commonwealth Minister to withdraw from exercising specified functions under the Act, with at least three months’ notice, after which those functions are either exercised by the Minister otherwise or the relevant concurrence is no longer required (s 20).

The Act directly affects the Western Parkland City Authority itself, its Board members, its Chief Executive Officer, and its staff (ss 6, 8, 11, 12). The Minister administering the Act exercises significant control and direction over the Authority, and must consult with the Commonwealth Minister before giving a direction that would have a material effect on the Authority’s functions (s 7). The Commonwealth Minister has specific roles: nominating three Board members (s 8(2)(c)), concurring in the appointment of the Chairperson (s 8(4)), and being consulted on material directions, schedule amendments, and charter approvals (ss 5(5), 7(2), 14(3)). The Commonwealth Minister may withdraw from any of those functions by notice (s 20). The Act affects local councils in the Western City: they may request the inclusion of specified land in the operational area (s 5(3)); the Authority must liaise and work collaboratively with them (s 13(1)(i)); and their officers and employees are deemed “associated with the Authority” for the purposes of the misuse of information offence (s 23(6)(b)). Landowners, developers, and investors within the operational area are affected by the Authority’s functions, including master planning, development, infrastructure co-ordination, and investment attraction (s 13). The Authority may enter into joint ventures, project delivery agreements, and other arrangements with them (s 13(1)(h)). Private subsidiary corporations formed or acquired by the Authority are subject to Ministerial approval (s 18). Persons associated with the Authority - including Board members, committee members, staff, local council officers, bankers, lawyers, auditors, and professional advisers - are subject to the stringent misuse of information provisions in section 23, which impose criminal penalties and civil liability for dealing in land using inside information. Any person who receives information in connection with the administration of the Act is prohibited from disclosing it except in specified circumstances (s 22). Committees of the Board (which may include non-members) are subject to the same pecuniary interest disclosure rules as the Board (Sch 4, cl 7(7)). The Treasurer is involved in the Fund: money may be advanced by the Treasurer, and the Authority may invest Fund money in ways permitted by the Government Sector Finance Act 2018 or as approved by the Minister with the Treasurer’s concurrence (s 19(4)). The Parliament appropriates money for the Authority (s 19(1)(a)). The Local Court has jurisdiction to deal with offences under the Act summarily (s 24). The Governor may make regulations (s 26).

The Act imposes a range of duties on the Authority, its Board, and its officers, and confers corresponding rights and powers. The Authority has the duty to prepare master plans for development within precincts, carry out development, participate in infrastructure planning, co-ordinate and attract investment, and provide consultancy and other services (s 13(1)). It must develop and, if directed by the Minister, implement schemes for funding public infrastructure (s 13(1)(e)). The Authority must provide the Minister with information, advice and reports upon request, and keep the Minister and the Commonwealth Minister informed of significant developments (s 15(1)). The Authority must establish a charter identifying priority projects and classes of decisions requiring prior Ministerial referral (s 14). The Authority has the power to form and participate in private subsidiary corporations, acquire and dispose of interests, and exercise its functions through partnerships and joint ventures, subject to Ministerial approval for certain actions (ss 17, 18). The Authority may delegate any of its functions (other than the power of delegation) to an authorised person, who may sub-delegate if authorised in writing (s 16). The Board has the duty to make decisions relating to the Authority’s functions, and any act done under its authority is taken to have been done by the Authority (s 9). Board members must disclose direct or indirect pecuniary interests that appear to raise a conflict, and must not participate in deliberations or decisions on the matter unless the Minister or Board determines otherwise (Sch 4, cl 7). The Chief Executive Officer is responsible for the day-to-day management of the Authority in accordance with Board policies and directions (s 11(2)). The CEO may attend and participate in Board meetings but has no vote (s 11(3)). The Minister has the right to control and direct the Authority, and must consult the Commonwealth Minister before giving a direction with a material effect (s 7). The Commonwealth Minister has the right to nominate Board members, concur in the Chairperson’s appointment, and withdraw from those functions by notice (ss 8, 20). Local councils have the right to request inclusion of land in Schedule 3 (s 5(3)). Persons associated with the Authority are protected from personal liability for acts done or omitted in good faith for the purposes of executing the Act (s 21). The Authority must not exercise its functions in relation to the Western Sydney Airport itself (s 13(4)). The Board must not appoint committee members without appropriate expertise, and must have regard to an appropriate mix of skills, knowledge and experience (s 10(2)-(3)).

The Act creates two specific offences, each carrying a maximum penalty of 20 penalty units. First, section 22 prohibits a person from disclosing any information obtained in connection with the administration or execution of the Act unless the disclosure is made with the consent of the person from whom the information was obtained, in connection with the administration or execution of the Act, for legal proceedings, in accordance with a requirement under the Ombudsman Act 1974, or with other lawful excuse. This is a broad confidentiality provision that applies to anyone who comes into possession of such information. Second, section 23 prohibits the misuse of information relating to proposals regarding the acquisition, development or disposal of land. Subsection 23(1) makes it an offence for a person associated with the Authority to deal in land or divulge information for the purpose of gaining an advantage, where the information is not generally known and would materially affect the market price of the land if generally known. Subsection 23(2) creates a separate offence where a person in a position to influence such proposals does so for the purpose of gaining an advantage. The definition of “associated with the Authority” in section 23(6) is broad, capturing Board members, committee members, staff, persons whose services the Authority uses, local council officers, and bankers, lawyers, auditors and professional advisers (including directors, managers or secretaries of corporate advisers). Beyond criminal penalties, section 23(3)-(5) creates a civil liability regime: any person who gains an advantage from a contravention is liable to another person for the amount of any loss incurred. The loss is calculated as the difference between the dealing price and the market price that would have prevailed if the information had been generally known or if the proposals had not been influenced. An action to recover such a loss must be brought within five years of the dealing (s 23(5)). All proceedings for offences under the Act are dealt with summarily before the Local Court (s 24). The Act does not establish its own enforcement agency; prosecution would presumably be brought by police or other authorised officers. The penalty unit amount is not specified in the Act but is set under separate legislation (currently $110 per penalty unit in NSW). The Act also provides that contravention of the pecuniary interest disclosure requirements in Schedule 4 clause 7 does not invalidate any decision of the Board (Sch 4, cl 7(6)).

The Act operates alongside a number of other statutes. Most significantly, the Environmental Planning and Assessment Act 1979 (the Planning Act) supplies the definition of “development” used in this Act (s 4). The Authority may enter into voluntary planning agreements with developers under Part 7 of the Planning Act (note to s 13(2)). The Government Sector Finance Act 2018 is relevant in two respects: section 27 of this Act commences on the commencement of Division 6.4 of that Act (s 2(2)), and the Authority’s investment of Fund money is governed by Part 6 of that Act if the Authority is a GSF agency for its purposes (s 19(4)(a)). The Government Sector Employment Act 2013 governs the employment of staff of the Authority (s 12) and its provisions relating to Public Service employees do not apply to Board members (Sch 4, cl 8(1)). The Corporations Act 2001 (Cth) defines “private corporation” for the purposes of private subsidiary corporations (s 18(4)). The Airports Act 1996 (Cth) defines the Western Sydney Airport (s 4). The Ombudsman Act 1974 provides an exception to the disclosure prohibition where information is disclosed in accordance with a requirement imposed under that Act (s 22(d)). The Interpretation Act 1987 contains definitions and other provisions affecting interpretation (note to s 4(1)); section 53 of that Act is expressly applied to the name change of the Authority (s 27). The Constitution Act 1902, section 47A, precludes the Authority from employing staff directly (note to s 12). The Act also provides that a private subsidiary corporation is not and does not represent the Crown (s 18(3)), which may affect its status under other laws. The Statutory and Other Offices Remuneration Tribunal determines remuneration for full-time Board members (Sch 4, cl 4(1)). The Act is subject to regulations made by the Governor, which may also contain savings or transitional provisions (s 26). The Act’s relationship with the Planning Act is particularly important because the Authority’s master planning and development functions must be exercised consistently with that Act.

The Act was originally enacted as the Western City and Aerotropolis Authority Act 2018 (Act No 53 of 2018). It received the short title “Western City and Aerotropolis Authority Act 2018” (s 1 as originally enacted). The Statute Law (Miscellaneous Provisions) Act 2020 (Act No 30 of 2020) made a series of amendments to rename the Authority and update references. Specifically, Schedule 1.49 of the 2020 Act amended section 1 (the name of the Act), section 4 (definitions), section 6 (constitution of the Authority - substituting the new corporate name), and section 19 (the Fund) (ss 1, 4, 6, 19 as amended by 2020 No 30, Sch 1.49[2]-[7]). The 2020 Act also inserted a new section 27 into the Act, which gives effect to the name change by applying section 53 of the Interpretation Act 1987 (s 27 as inserted by 2020 No 30, Sch 1.49[8]). Section 28 was repealed (s 28, rep 1987 No 15, sec 30C). Additionally, Schedule 2 (Western City operational areas) was amended by 2020 (479) Sch 1. The Act was also amended by 2018 No 53, sec 27 in relation to the Fund (s 19 as amended by 2018 No 53, sec 27 - this appears to be a self-amendment at the time of original enactment, likely changing references from “Western City Fund” to “Western Parkland City Fund” in tandem with the name change). Section 27 itself was repealed by 2019 No 1, Sch 3 and then re-inserted by the 2020 Act (historical note to s 27). The original section 27 (which has been replaced) is no longer in force. The notes to sections throughout the Act indicate the amendment history. The Act thus started with a different name for the Authority and was comprehensively renamed in 2020 along with consequential updates to references. The operational area schedules have been amended at least once (Schedule 2 by 2020 (479) Sch 1). The power to amend Schedules 1, 2 and 3 by regulation, after consultation with the Commonwealth Minister, is contained in section 5, meaning further changes to the operational area can occur without amending the primary Act.

The Act itself does not reference any specific litigation or court cases. As a relatively recent piece of legislation (enacted 2018, with significant amendments in 2020), there is no reported case law cited in the source text. However, the Act creates several provisions that could give rise to litigation. The civil liability regime in section 23(3)-(5) is a notable example: any person who gains an advantage from a contravention of the misuse of information provisions is liable for the loss incurred by another person, with a five-year limitation period. This creates a private right of action that could be pursued in the courts, but the source does not record any such actions. Summary proceedings for offences under the Act are to be dealt with before the Local Court (s 24), but again no specific prosecutions are mentioned. The Ministerial power of direction (s 7) and the Board’s decision-making functions (s 9) could be subject to judicial review under administrative law principles, but the Act creates no special review mechanism. The requirement for the Minister to take “all reasonable steps” to consult with the Commonwealth Minister before giving a direction with a material effect (s 7(2)) or before amending schedules (s 5(5)) is a procedural obligation that could potentially be challenged if not followed, but no such challenge is recorded. The charter (s 14) must identify classes of decisions that require prior Ministerial approval; disputes about the scope of such classes could theoretically arise. The pecuniary interest disclosure requirements (Sch 4, cl 7) include a provision that non-compliance does not invalidate a Board decision (cl 7(6)), which may limit the scope of litigation on that ground. The Act also provides for the Commonwealth Minister to withdraw from functions (s 20), which could give rise to a dispute about the validity or timing of a withdrawal notice. Practitioners should be aware that while no reported cases exist in the source, the Act’s operation - particularly in the context of major land development projects and the use of inside information - may generate litigation in the future.

Several provisions in the Act contain traps for the unwary. The misuse of information offence in section 23(1) is extremely broad. It catches not only Board members and staff but also local council officers, bankers, lawyers, auditors, and professional advisers (s 23(6)). The prohibition applies to dealing in land or divulging information where the information relates to proposals by the Authority and could materially affect the market price of land if generally known. A person who gains an advantage from a contravention faces civil liability for the loss incurred by another person, measured by the difference between the dealing price and the hypothetical market price (s 23(3)-(4)). The disclosure of information prohibition in section 22 is also broad, applying to any information obtained in connection with administration or execution of the Act, with limited exceptions. Note that “other lawful excuse” (s 22(e)) may not cover all professional disclosures. The Board’s quorum is only four members (Sch 4, cl 10), meaning a minority of the seven-member board can make decisions. The Minister may remove a Board member at any time without cause (Sch 4, cl 5(2)), although removal of the Chairperson or a Commonwealth nominee requires the concurrence of the Commonwealth Minister (cl 5(3)). A Board member who is absent from three consecutive meetings without leave or excuse may have their office vacated (cl 5(1)(e)). The Chairperson has both a deliberative and a casting vote in the event of a tie (Sch 4, cl 11(2)). The Board may transact business by circulation of papers or by electronic means; a resolution approved in writing by a majority of members is as effective as a meeting decision (Sch 4, cl 13). The contravention of pecuniary interest disclosure does not invalidate any Board decision (Sch 4, cl 7(6)), so a failure to disclose does not necessarily undo a decision. The Authority cannot exercise functions in relation to the Western Sydney Airport itself (s 13(4)), but can benefit from its development as per the object. The Western Parkland City Fund is a Special Deposits Account, not a separate legal entity; all moneys received by the Authority must be paid into the Fund (s 19(1)(d)), meaning commercial returns from land dealings cannot be retained separately. Any reference in another Act or instrument to the former “Western City Fund” is to be construed as a reference to the Western Parkland City Fund (s 19(5)). The notes included in the Act do not form part of the Act (s 4(2)), so they cannot be relied upon as legally operative text. Regulations with savings or transitional effect may take effect from a date earlier than publication, but cannot prejudice persons other than the State (s 26(5)). The Commonwealth Minister may withdraw from any function by giving three months’ notice; after withdrawal, the Minister may perform the function alone (s 20). Committees established by the Board may include non-Board members (s 10(4)), and the Board may not appoint a person to a committee unless they have appropriate expertise (s 10(2)).

Compliance with the Act requires attention to several distinct areas. For the Authority itself, the primary obligation is to exercise its functions in accordance with its charter (s 14) and subject to Ministerial control and direction (s 7). The Board must ensure that all decisions relating to the Authority’s functions are made by or under its authority (s 9(1)). The Authority must establish and administer the Western Parkland City Fund, paying all receipts into it and making all expenditure from it (s 19). It must keep the Minister and Commonwealth Minister informed of significant developments and provide information, advice and reports upon request (s 15). The Authority must obtain Ministerial approval before forming, acquiring or disposing of interests in private subsidiary corporations (s 18(2)). Delegations must be in writing; sub-delegation requires specific written authorisation (s 16). The Authority must prepare its charter and seek Ministerial approval, and may amend it only with approval (s 14). Before the Minister approves the charter or an amendment with a material effect, reasonable steps must be taken to consult the Commonwealth Minister (s 14(3)). For Board members, compliance requires attending meetings regularly (absence from three consecutive meetings without leave may result in vacation of office - Sch 4, cl 5(1)(e)). Board members must disclose any direct or indirect pecuniary interest that appears to raise a conflict with their duties, as soon as possible after the relevant facts come to their knowledge (Sch 4, cl 7(1)). After disclosure, they must not be present during deliberation or take part in the decision unless the Minister or Board determines otherwise (cl 7(4)). Particulars of disclosures must be recorded in a document kept available for inspection (cl 7(3)). Board members should be aware that they may be removed at any time by the Minister (cl 5(2)). For persons associated with the Authority (including staff, local council officers, bankers, lawyers, and auditors), the key compliance obligation is to avoid misusing information about the Authority’s proposals regarding land. Section 23 prohibits dealing in land or divulging such information for the purpose of gaining an advantage. Compliance requires implementing information barriers and ensuring that any such information is kept confidential and not used for personal gain. The disclosure prohibition in section 22 means that information obtained in connection with the Act should only be disclosed with the person’s consent, in connection with administering the Act, for legal proceedings, under the Ombudsman Act, or with other lawful excuse. For local councils wishing to have land included in the operational area, the correct procedure is to make a written request to the Minister specifying the area (s 5(3)). For the Minister, compliance includes taking all reasonable steps to consult the Commonwealth Minister before giving a direction with a material effect (s 7(2)), before amending Schedules 1, 2 or 3 (s 5(5)), and before approving the charter or a material amendment (s 14(3)). For the Commonwealth Minister, compliance involves nominating Board members, concurring in the Chairperson’s appointment, and, if withdrawal is desired, giving at least three months’ written notice specifying the functions being withdrawn (s 20). Annual reporting must include any additional matters prescribed by the regulations (s 26(2)). The Authority should also maintain records of pecuniary interest disclosures and make them available for inspection upon payment of a fee (Sch 4, cl 7(3)).