Westernport Development Act 1967 (Victoria)

The Westernport Development Act 1967 is a piece of Victorian legislation that ratifies, validates, and gives the force of law to a private-state agreement (the Agreement) executed on 24 October 1967. This statutory contract was struck between the Premier of Victoria, acting on behalf of the Crown, and two corporate entities: Hematite Petroleum Proprietary Limited (a Victorian-registered entity) and Esso Exploration and Production Australia Inc. (a Delaware corporation registered as a foreign company in Victoria). Mechanically, the Act elevates a bilateral commercial agreement to statutory status, enabling the parties to bypass or override standard public law, environmental, and planning processes that would otherwise restrict the development of heavy industrial and maritime infrastructure.

The primary operational purpose of the Act is to facilitate the construction and operation of a petroleum fractionation plant at Old Tyabb and to establish dedicated, deep-water port facilities in Westernport Bay. Under the Act, the State of Victoria agreed to subsidise the construction of a jetty up to a limit of 3,500,000 dollars, with the physical design and construction managed by the Companies. While the jetty itself remains the property of the State, the Act grants the Companies prior, though non-exclusive, rights of use and management control.

Additionally, the Act authorizes the reclamation of approximately 250 acres of land at Old Tyabb, granting the Companies exclusive reclamation rights and subsequent long-term leasehold or freehold acquisition rights. The Act operates as an extraordinary legislative override. Under section 4(2)(b), both the Act and the Agreement take effect notwithstanding any other Act, regulation, Order in Council, by-law, lease, or licence. Any conflicting statutory or regulatory instruments are deemed modified by the force of this Act to the extent necessary to give full effect to the Agreement. This creates a highly customized legal envelope designed to secure major capital expenditure in natural resource processing by insulating the corporate proponents from standard administrative interference and local regulatory compliance.

Version No. 002

Westernport Development Act 1967

No. 7652 of 1967

Version incorporating amendments as at
1 July 2024

table of provisions

Section Page

1 Short title 2

2 Interpretation 2

2A Construction of references to State Electricity Commission of Victoria 2

3 Act to bind Crown 3

4 Ratification of agreement 3

5 Power to Governor in Council to grant easements etc. over Crown lands 4

6 Variation of Agreement 4

Schedule 7

Endnotes 26

1 General information 26

2 Table of Amendments 28

3 Explanatory details 29

Version No. 002

Westernport Development Act 1967

No. 7652 of 1967

Version incorporating amendments as at
1 July 2024

An Act to ratify validate approve and otherwise give Effect to an Agreement between the Premier for and on behalf of the State of Victoria and Hematite Petroleum Proprietary Limited and Esso Exploration and Production Australia Inc. to authorize the Construction of Additional Port Facilities in Westernport to make Provision with respect to the Reclamation of Certain Land at Old Tyabb and for other purposes.

Preamble

WHEREAS Hematite Petroleum Proprietary Limited a company incorporated in the State of Victoria under the Companies Act 1961 and Esso Exploration and Production Australia Inc. a company incorporated in Delaware one of the United States of America and registered as a foreign company in the State of Victoria are desirous of establishing a fractionation plant at Old Tyabb to enable the petroleum recovered in the waters adjacent to the State of Victoria to be further processed:

And whereas the operation of the fractionation plant requires the establishment of adequate port facilities in Westernport:

And whereas an agreement to facilitate the establishment of the fractionation plant and the port facilities has been entered into between the Premier of the State of Victoria and the Companies:

And whereas the agreement is expressed to be subject to ratification of the Parliament of Victoria:

And whereas it is expedient in the public interest to ratify validate approve and otherwise give effect to the said agreement and to make other provisions hereinafter provided.

Be it therefore enacted by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):—

1 Short title

This Act may be cited as the Westernport Development Act 1967.

2 Interpretation

(a) In this Act unless inconsistent with the context or subject-matter—

S. 2(a)
def. of The agreement amended by No. 82/1995 s. 197.

The agreement means the agreement a copy of which is set out in the Schedule and includes the Agreement as varied from time to time.

(b) The expressions used in this Act shall have the meanings respectively assigned to them in the agreement.

S. 2A inserted by No. 11/2024 s. 113.

2A Construction of references to State Electricity Commission of Victoria

On and from the commencement of section 8 of the State Electricity Commission Amendment Act 2024, a reference to the State Electricity Commission of Victoria in this Act is a reference to the State Electricity Commission of Victoria in existence immediately before the commencement of that section.

Note

See section 114 of the Former SEC (Residual Provisions) Act 1958.

3 Act to bind Crown

This Act shall bind the Crown.

4 Ratification of agreement

(1) The agreement is hereby ratified validated and approved and shall be given effect to.

(2) The following provisions shall be read as in aid of and not in derogation from the provisions of the last preceding subsection—

(a) The Premier and all other Ministers of the State of Victoria and all public statutory corporations and all officers concerned are hereby empowered to carry out the agreement and to enter into such agreements and to give such approvals as are provided for by it; and

(b) This Act and the agreement shall take effect notwithstanding anything in any Act or in any proclamation regulation Order in Council by-law lease licence authority permit or agreement under any Act; and every Act proclamation regulation Order in Council by-law lease licence or authority permit or agreement shall by virtue of this Act be deemed to be modified to the extent necessary to give full force and effect to this Act and the agreement (but not further or otherwise) and shall be read and construed and take effect accordingly; and

(c) The provisions of the agreement relating to the revocation of the temporary reservation referred to in clause 5 of the agreement shall, by force of this Act and without any further authority take effect.

5 Power to Governor in Council to grant easements etc. over Crown lands

(1) Notwithstanding anything to the contrary in any Act or in any lease licence proclamation reservation declaration or dedication of or with respect to any unalienated Crown land, the Governor in Council may upon such conditions as he thinks fit grant to the Companies any lease easement licence or other authority necessary or expedient to enable the Companies to develop the reclaimed area or any land owned by the Companies in the vicinity of the reclaimed area.

(2) Where the Governor in Council proposes to make a grant in fee simple pursuant to paragraph (m) of clause 5 of the agreement the following provisions shall have effect—

(a) The Governor in Council may accept the surrender of the whole or any part of any lease granted pursuant to the provisions of paragraph (l) of clause 5 of the agreement;

S. 5(2)(b) amended by No. 18/1989 s. 13(Sch. 2 item 103).

(b) The Registrar of Titles shall record the surrender of any such lease or part of a lease and make any necessary recordings in the Register.

S. 6
inserted by No. 82/1995 s. 198.

6 Variation of Agreement

(1) The Agreement may be varied by agreement between the Premier of Victoria and the Companies with the approval of the Governor in Council by Order in Council containing particulars of the variation published in the Government Gazette.

(2) Unless and until each House of Parliament passes a resolution in accordance with subsection (6) disallowing an Order in Council varying the Agreement, the provisions of the agreement making the variation shall have the force of law on and after the date on which the Order was published in the Government Gazette as though the provisions of the agreement were expressly enacted in this Act.

(3) An Order in Council made under subsection (1) must, on publication in the Government Gazette, be judicially noticed and that publication is conclusive evidence of the variation to the Agreement set out in the Order.

(4) A copy of each Order in Council made under subsection (1) must be laid before both Houses of Parliament on or before the sixth sitting day after the publication of the Order in the Government Gazette.

(5) An Order in Council made under subsection (1) is disallowed if each House of Parliament passes a resolution in accordance with subsection (6).

(6) A resolution to disallow an Order in Council made under subsection (1) is passed in accordance with this subsection if—

(a) notice of the resolution is given in each House of the Parliament on or before the 18th. day on which that House sits after the Order in Council is laid before that House; and

(b) the resolution is passed on or before the 12th. day on which that House sits after the notice of resolution has been given in that House.

(7) The power of each House to pass a resolution disallowing an Order in Council under this section is not affected by the prorogation or dissolution of the Parliament or of either House of the Parliament and, if there is such a prorogation or dissolution, the calculation of days on which a House has sat must be made as if there had been no such prorogation or dissolution.

(8) Notice of a resolution to disallow an Order in Council may be expressed to apply to all or any part of the particulars of the variation contained in the Order in Council and a resolution to disallow all or any part of those particulars shall take effect according to its tenor.

(9) If a resolution is passed disallowing part only of the particulars of the variation contained in an Order in Council, the particulars not disallowed shall be of no effect unless and until each of the Premier of Victoria and the Companies gives notice to the other expressing an intention to be bound by the particulars not disallowed, or by part of those particulars, and, if notice is so given, the particulars, or part of the particulars, take effect accordingly.

(10) If an Order in Council is disallowed by Parliament in accordance with subsection (6), the disallowance has the like effect to the repeal of an enactment.

(11) This section is in addition to and not in derogation from the power conferred by the Agreement for the Premier of Victoria and the Companies to enter agreements and arrangements for better giving effect to the provisions of the Agreement.

Schedule

THIS AGREEMENT is made the 24th day of October One thousand nine hundred and sixty-seven BETWEEN The Honourable Sir HENRY BOLTE in his capacity as the Premier for the time being of the State of Victoria and for and on behalf of the Crown in right of the said State of the one part and HEMATITE PETROLEUM PROPRIETARY LIMITED a company incorporated under the Companies Act 1961 of the said State, the registered office of which in the said State is situate at 500 Bourke-street, Melbourne, and ESSO EXPLORATION AND PRODUCTION AUSTRALIA INC. a company incorporated in Delaware one of the United States of America and registered as a foreign company under the said Companies Act 1961, the registered office of which in the said State is situate at 380 Lonsdale-street, Melbourne, aforesaid (hereinafter called "the Companies") of the other parts—

WHEREAS:

I. The Companies desire to establish, in the vicinity of the Port of Westernport in the said State, a plant for the processing of petroleum.

II. The State, for the purpose of encouraging decentralization of industry, desires to facilitate the establishment of the said plant.

III. Before the Companies incur the expense involved in the establishment of the said plant, it is necessary that certain rights and powers incidental to the establishment and operation of the said plant should be conferred on the Companies.

IV. For the purpose of conferring the said rights and powers and making provision for other matters, the parties hereto have agreed to execute this Agreement.

NOW IT IS HEREBY AGREED as follows:—

PART I.

Preliminary.

Agreement to be ratified by Act of Parliament.

This Agreement shall not be of any force or effect nor shall the parties hereto have any claim against the other in respect of any matter arising out of or in connexion therewith unless such matter arises after this Agreement has been ratified, validated, approved or otherwise given effect to by an Act of Parliament of the said State.

Definitions.

In this Agreement unless inconsistent with the context or subject-matter—

"The Act" means the Act of the Parliament of the said State ratifying validating approving or otherwise giving effect to this Agreement.

"Chief Engineer" means the Chief Engineer of Ports and Harbors for the State of Victoria, or any other person authorized by him in writing to act for him either generally or in relation to any particular matter under this Agreement.

"Commencing Date" means the date on which the Act comes into operation.

"Commissioning Date" means the date on which the Companies or either of them first use the jetty for the receipt or dispatch of petroleum.

"Companies" means Hematite Petroleum Proprietary Limited and Esso Exploration and Production Australia Inc. and any assigns of these companies.

"Governor in Council" has the same meaning as in the Acts Interpretation Act 1958.

"Jetty" means the jetty to be constructed by the Companies pursuant to this Agreement and includes any additions renovations and alterations made thereto.

"Petroleum" includes mineral oil liquified petroleum gas and other hydrocarbons of any description or source whether crude or refined including but without limiting the generality of the foregoing all products obtained from these substances and mixtures of these substances or their products with other substances.

"Pipelines" means pipelines installations and attendant facilities erected, constructed, laid down, established or fixed by the Companies on the jetty or between the plant and the jetty or between the plant and petroleum installations established or to be established in other parts of the said State.

"The Plant" means the Fractionation Plant to be constructed on the plant site to the plans and specifications of the Companies in accordance with the provisions of this Agreement and includes all additions and alterations that may be made to the plant.

"Plant Site" means the whole of the land described in Certificates of Title volume 7926 folio 090 and volume 4784 folio 753 and any other land in the vicinity thereof which has or may be acquired by the Companies.

"Premier" means the Premier for the time being of the State and includes any Minister of the Crown acting for or on behalf of the Premier.

"Reclamation area" means the area of land at or near Old Tyabb containing 250 acres 2 roods 30 perches more or less, commencing in the Parish of Tyabb County of Mornington at the south-western angle of the site temporarily reserved for a cemetery by Order in Council of the 24th February, 1862; bounded thence by that site bearing 93° 46′ 1,000 links; by allotment 76 bearing 180° 2′ 200 links, 93° 46′ 2,960 links, and 355° 28′ 1,495 2/10 links; and thence by lines bearing and measuring approximately 90° 0′ 1,000 links, 180° 0′ 7,652 links, 270° 0′ 682 links, 308° 23′ 5,296 links, and 0° 0′ 3,333 links to the point of commencement.

"The State" means the State of Victoria.

The headings and side-notes shall not affect the interpretation of this Agreement.

PART II.

Obligations of the Companies.

Construction of the plant.

The Companies jointly covenant that they will—

(a) after the commencing date and without undue delay commence and complete the construction of the plant and thereafter so long as this Agreement shall continue maintain operate and use the plant for the processing of petroleum, such construction, maintenance and operation to comply with accepted good industry practice and the standards and specifications required for the time being of similar plants in Great Britain and in the United States of America;

(b) at the cost of the State not exceeding 3,500,000 dollars and to the satisfaction, at all times, of the Chief Engineer—

(i) carry out such preliminary investigations in addition to those conducted by the State as may be necessary in connexion with the design and construction of the jetty;

(ii) design erect and establish a jetty (which shall be and remain the property of the State) extending seaward from the shore adjacent to the south-eastern boundary of the plant site; and

(iii) after giving at least 14 days notice of their intention so to do to the Minister of Public Works carry out such dredging as shall provide (at mean low water, ordinary spring tide)—

(A) a navigable channel of 40 feet minimum depth and a bottom width of approximately 800 feet through the northern arm of Westernport Bay and between the northern boundary of the swinging circle opposite the Refinery Pier at Crib Point and the area next hereinafter mentioned by a route which is to be agreed with the Chief Engineer;

(B) an adequate area in the vicinity of the jetty with a minimum depth of 40 feet to enable safe and unrestricted berthing of vessels and including a turning circle off the jetty of a diameter of approximately 1,800 feet and a minimum depth of 40 feet;

(D) a 30-foot wide area along the berthing line with a minimum depth of 52 feet;

(c) to the satisfaction of the Chief Engineer properly maintain the jetty and make such repairs to the jetty as may from time to time be necessary during the period of 20 years after the commissioning date and for such further periods as are from time to time agreed by the Companies and the Premier but the State shall reimburse the Companies for any cost reasonably incurred by the Companies for so maintaining or repairing the jetty;

(d) at their own cost construct, erect and establish with any additions thereto that they may from time to time consider necessary such pipelines as they desire, in accordance with the port rules in force in the Port of Westernport and to the satisfaction of the Chief Engineer, for the loading, unloading of petroleum, provision of a fire-fighting service and the provisioning, bunkering, servicing and watering of vessels using the jetty PROVIDED that such pipelines shall be and remain the property of the Companies;

(e) not cause, or permit to be caused any pollution of the waters of Westernport Bay from within the Plant, the Plant site, the Pipelines, or other sources within the control of the Companies: PROVIDED that this clause shall not be understood to impose any obligation or operating restrictions on the Companies more stringent that those imposed on any other persons engaged in similar operations in the Westernport Bay area;

(f) comply with all statutes, regulations and rules relating to standards health or safety in the construction, operation and maintenance of the plant and of the facilities attendant thereto including the jetty and all pipelines.

PART III.

Obligations of the Crown.

The Premier, on behalf of the State, covenants that the State will—

(a) by virtue of the Act [and without the necessity for any other authority, approval, permit, licence or consent, other than any authority approval permit licence or consent required under the Town and Country Planning Act 1961 and the Local Government Act 1958 in connexion with the construction operation and maintenance of any building or structure], authorize—

(i) the performance by the Companies of the covenants contained in paragraphs (a), (b), (c) and (d) of clause 4; and

(ii) subject to the port rules for the time being applicable to Westernport, the Companies to manage and control the jetty together with the pipelines of the Companies thereon and permit the Companies the prior but not exclusive right to the use of the jetty PROVIDED that the State will not authorize any other person to use the jetty in a way that would prejudicially affect or interfere with the operations of the Companies;

(b) maintain the dredging of the channel and areas mentioned in clause 4(b)(iii) hereof;

(d) maintain repair and operate tugs and small craft sufficient and adequate to provide normal harbour services at all times including a fire-fighting service (all of which tugs craft and services are hereinafter called "the harbour services"), and shall make same available as necessary to satisfy the operational requirements of the plant and of the vessels entering and leaving Westernport for purposes connected with the Plant, at rates no higher than the rates at which such services are made available to any other user;

(e) from time to time consult with the Companies as to the extent and methods of operation of the harbour services;

(f) facilitate through the State Electricity Commission of Victoria and ensure the provision to the Companies at a point on the boundary of the Plant site as may be mutually agreed an adequate supply of electricity for construction and operational purposes at rates agreed between the Commission and the Companies;

(g) facilitate through the State Rivers and Water Supply Commission and ensure the provision to the Companies at a point on the boundary of the plant site as may be mutually agreed an adequate supply of water at such pressure as is determined by the Commission for construction and operational purposes at rates to be agreed between the Commission and the Companies;

(h) provide adequate roads from the plant site to principal roads and such other roads as are required along the foreshore for construction and access purposes;

(i) ensure that an adequate pilotage service is provided at all times of the day and night for vessels entering and leaving Westernport Bay for purposes connected with the Plant, at rates not exceeding those charged for such service to any other vessels;

(j) permit the Companies—

(i) to draw sea water without charge from Westernport Bay for their operations on the plant site and for this purpose to construct such works and use such portions of the sea bed as may be mutually agreed; and

(ii) to discharge in a manner approved by the Minister of Public Works into the waters of Westernport without fee, charge or royalty any effluent which in the opinion of the Minister of Public Works is of a kind and at a temperature that will not cause pollution or harm to or in those waters;

(k) grant to the Companies the exclusive right to reclaim in accordance with plans and specifications approved by the Minister of Public Works the whole or any part of the land in the reclamation area at any time within 10 years after the execution of this Agreement or within such further period as is before the expiration of that period agreed to by the Premier;

(l) subject to sub-paragraphs (i) (ii) (iii) (iv) and (v) of this paragraph grant to the Companies a lease or leases of the whole or any part of the land in the reclamation area that has been reclaimed to the satisfaction of the Minister of Public Works for a term of 75 years at a rental of not more than $10 per acre per annum:

Provided that—

(i) the companies shall not be entitled to a lease of any of the land that in the opinion of the Minister of Public Works is necessary for or in connexion with the jetty to be established pursuant to this Agreement;

(ii) any such lease shall authorize the use of the land by the Companies for purposes associated with the manufacture processing and storage of petroleum or such other purposes as are from time to time authorized by the Governor in Council and not otherwise;

(iii) any such lease shall be subject to such covenants conditions reservations exceptions and provisions as the Governor in Council thinks fit;

(iv) a lease shall not be granted pursuant to this paragraph after the expiration of twenty years from the execution of the Agreement;

(v) the companies shall be liable to pay costs of any survey in connexion with any such lease and the fees applicable to leases under the Land Act 1958 shall apply to any such lease;

(m) authorize the Governor in Council for a consideration of not less than the full market value of the land as determined by an appraiser appointed by the Minister of Lands in accordance with the provisions of the Land Act 1958 at the time of the grant, to grant in fee simple to the Companies the whole or any part of the land in the reclamation area that has been reclaimed to the satisfaction of the Minister of Public Works:

Provided that—

(i) the State shall not be required to grant access to the land comprised in any such grant;

(ii) the companies shall be liable to pay the costs of any survey undertaken in connexion with the grant and the requirement to make a contribution to the Assurance Fund established under the Transfer of Land Act 1958 and the fees applicable to Crown grants under the Land Act 1958 shall apply to any grant under this paragraph; and

(iii) any such grant shall be subject to such covenants conditions reservations exceptions and provisions as the Governor in Council thinks fit;

(n) enable the Governor in Council to grant any easement right or privilege over any Crown land to the companies for any purpose which in his opinion is necessary or expedient to facilitate the operations of the Companies;

(o) revoke the temporary reservation for public purposes made by Order in Council dated 12th July, 1937, and published in the Government Gazette on 21st July, 1937, as to so much of the reservation as is within the reclamation area.

PART IV.

Financial.

(a) Notwithstanding any provision of any other law or regulation which would otherwise be applicable to goods of the kinds described in the table below which are received or dispatched from the jetty for the purposes of or in connexion with the plant (but not including ship's bunkers, lubricants, stores or other vessel supplies not shipped as cargo), there shall be payable therefor (subject however to the provisions of sub-clause (b) of this clause) only the wharfage charges calculated at the rates set out in the said table opposite the description of those goods.

TABLE.

Inward Wharfage Charges.
Description of Goods—
(i) Goods of any kind received over the jetty in each year of the said period of twenty years commencing on the commissioning date. The rates generally applicable from time to time in the Port of Westernport pursuant to any Statute or Statutes and the Regulations thereunder made from time to time.
Outward Wharfage Charges.
(ii) Goods of any kind (other than petroleum) dispatched over the jetty in each year of the said period of twenty years commencing on the commissioning date. The rates generally applicable from time to time in the Port of Westernport pursuant to any Statute or Statutes and the Regulations thereunder made from time to time.
(iii) Petroleum dispatched over the jetty in each year of the said period of twenty years commencing on the commissioning date. 10 cents a ton as defined in sub-clause (d) on the first 4,500,000 tons and 5 cents per ton thereafter, subject to the minimum annual payments as provided for in sub-clause (b).

(b) Where in any year during the said period of twenty years the total of the inward and outward wharfage charges pursuant to the above Table on petroleum is less than the total wharfage charges shown below for any such year, the Companies shall within fourteen (14) days after demand in writing is made by the Public Works Department of the said State, pay to the State the amount of the difference between these charges and—

(i) in the first second or third year
after the Commissioning date
$300,000

(ii) in the fourth fifth sixth seventh
eighth or ninth year after the
Commissioning date $350,000

(iii) In any subsequent year after the
Commissioning date $450,000.

(c) After the said period of twenty years the wharfage charges on inward and outward petroleum shall be determined from time to time by the State after consultation with the Companies but in making any such determination the State shall have regard to comparable wharfage charges in force in other ports in Australia.

(d) For the purpose of any calculation under or in relation to sub-clauses (a) and (b) of this Agreement it is agreed that—

One ton of Propane is equal to 430 Imperial Gallons.

One ton of Butane is equal to 400 Imperial Gallons.

One ton of Condensate/Crude Oil is equal to 280 Imperial Gallons at 60°F.

If petroleum having characteristics significantly different from those shown above is moved across the jetty the State may establish other equivalents for these products.

(e) There shall be exempted from all wharfage charges hereunder all materials, supplies and equipment which are moved across the jetty in connexion with the construction, reconstruction, alterations or additions to the jetty, pipelines or plant.

(f) Wharfage rates, if any, charged for ship's bunkers, lubricants, stores or other vessel supplies not shipped as cargo shall not be greater than the rates, from time to time, applicable by law in the port of Melbourne.

(g) If the State grants another person or persons the right to use the jetty under clause 5(a)(ii) the wharfage fees charged to them shall not be less than those specified in sub-clause 6(a). In addition, total wharfage charges payable by all such persons will be considered to be payments made by the Companies for purposes of application of the minimum payment provisions of sub-clause 6(b).

(h) The Companies shall, from time to time during the progress of the works to be carried out by them under this Agreement at the cost of the State, submit to the State statements audited by independent auditors selected by the Companies of the progress expenditure by each Company on such works, and subject to the approval of such statements by the State or its nominee, the State shall reimburse the Companies for the amount expended by them on the said works within a reasonable time as mutually agreed.

PART V.

General.

Contractors.

Without affecting the liability of the parties to each other under this Agreement either party shall have the right from time to time to entrust to other persons the performance of such portion or portions of its obligations and operations authorized under this Agreement as it may consider expedient.

Assignment of Agreement or interest therein.

(1) This Agreement or any rights therein shall not be assigned or otherwise dealt with by the Companies or either of them except as provided hereinafter.

(2) Either of the Companies may assign its rights in this Agreement to a Company which is its subsidiary Company within the meaning of the Companies Act 1961.

(3) With the consent in writing of the Premier the Companies may assign their rights under this Agreement or either of the Companies may assign its rights under this Agreement and such consent shall not be unreasonably withheld but may be given subject to such reasonable conditions as the Premier thinks fit.

(4) A subsidiary Company to which rights under this Agreement have been assigned shall have the like rights to assign its rights either alone or jointly with the other company as the Companies have under this clause.

Delays in performance of obligations.

This Agreement is made subject to any delay in the performance of any obligation under this Agreement which may be occasioned by or arise from circumstances beyond the power and control of the party responsible for the performance of such obligation, including, but without limiting the generality of the foregoing, delay caused by or arising from act of God, act of war, force majeure, act of public enemies, strikes, lock-outs, stoppages, restraint of labour, whether partial or general, shortage of essential materials, reasonable failure to secure or delays of contractors, riots and civil commotion and a failure by either party to perform its obligation for any such reason shall not be deemed a breach of this Agreement and such obligations shall be performed within a reasonable period following the cessation of the circumstances which so delayed performance.

Power to enter into agreements.

The Premier, on the one part, and the Companies, on the other part, may from time to time enter into agreements or arrangements with each other for better giving effect to the provisions of this Agreement.

Determination of agreement.

If the Companies or either of them—

(a) enters into liquidation (other than a voluntary liquidation for the purpose of reconstruction); or

(b) delays the commencement of the construction of the plant beyond the period of one year from the commencing date for any cause other than one or more of those specified in clause 9 hereof; or

the Premier may by notice in writing determine this Agreement but such determination shall not affect the enforcement of any right, obligation or liability theretofore accrued or incurred.

The Companies may, at their own cost, with the prior approval in writing of the Premier and to the satisfaction of the Chief Engineer, construct erect and establish such additions and alterations to the jetty, and carry out such dredging as, in the opinion of the Companies, may be necessary to provide for any increase in the designed capacity or throughput of the plant.

Arbitration.

If there shall be any difference or dispute between the parties hereto in respect of any matter arising out of or in connexion with this Agreement either party may give notice to the other of the difference or dispute and if the difference or dispute is not settled within one month after service of the notice—

(a) that matter shall be referred to two arbitrators one to be appointed by the Companies and one by the Premier; and

(b) the provisions of the Arbitration Act 1958 (in particular the provision allowing arbitrators to appoint an umpire) shall apply to the reference as if it were a reference by consent under that Act.

Notices.

Any notice consent or other writing authorized or required by this Agreement to be given or sent shall be deemed to have been duly given or sent by the State if signed by the Premier or other Minister of the Crown acting on his behalf and forwarded by prepaid post to the registered office of the Companies (or either of them) in the said State or to the plant site, and by the Companies if signed by a director or the secretary of either company in the said State, and forwarded by prepaid post to the Premier and any such notice consent or writing shall be deemed to have been received on the day on which it would be delivered in the ordinary course of post.

Interpretation of Agreement.

This Agreement shall be interpreted according to the laws for the time being in force in the said State.

IN WITNESS whereof the parties hereto have executed this Agreement the day and year first above written.

Signed sealed and delivered by the said SIR HENRY BOLTE in the presence of MURRAY PORTER—	 ⎪  ⎪ 	HENRY BOLTE (L.S.)

The Common seal of Hematite Petroleum Proprietary Limited was hereto affixed by authority of the Board of Directors	 ⎪ ⎪  ⎪ ⎪ 	K. A. ROWELL, Director. R. G. WALLACE, Secretary. (L.S.)

Signed sealed and delivered by Esso Exploration and Production Australia Inc. by its attorney EDWIN JAMES STANLEY in the presence of L. H. BODNARUK—	 ⎪ ⎪  ⎪ ⎪ 	EDWIN JAMES STANLEY (L.S.)

Endnotes

1 General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

Minister's second reading speech—

Legislative Assembly: 21 November 1967

Legislative Council: 7 December 1967

The long title for the Bill for this Act was—

The Westernport Development Act 1967 was assented to on 19 December 1967 and came into operation on 19 December 1967.

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

• Headings

All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).

• Examples, diagrams or notes

All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).

• Punctuation

All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).

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All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).

• Location of "legislative items"

A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.

• Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act.
See section 36(3)(3D)(3E).

2 Table of Amendments

This publication incorporates amendments made to the Westernport Development Act 1967 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Transfer of Land (Computer Register) Act 1989, No. 18/1989

Assent Date:	16.5.89
Commencement Date:	3.2.92: Government Gazette 18.12.91 p. 3488
Current State:	All of Act in operation

Port Services Act 1995, No. 82/1995

Assent Date:	28.11.95
Commencement Date:	Ss 197, 198 on 14.12.95: Government Gazette 14.12.95 p. 3488—see Interpretation of Legislation Act 1984
Current State:	This information relates only to the provision/s amending the Westernport Development Act 1967

State Electricity Commission Amendment Act 2024, No. 11/2024

Assent Date:	26.3.24
Commencement Date:	S. 113 on 1.7.24: Special Gazette (No. 319) 18.6.24 p. 1
Current State:	This information relates only to the provision/s amending the Westernport Development Act 1967

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

3 Explanatory details

No entries at date of publication.

1 Westernport Development Act 1967

Version No. 002

Westernport Development Act 1967

No. 7652 of 1967

Version incorporating amendments as at
1 July 2024

table of provisions

Section Page

1 Short title 2

2 Interpretation 2

2A Construction of references to State Electricity Commission of Victoria 2

3 Act to bind Crown 3

4 Ratification of agreement 3

5 Power to Governor in Council to grant easements etc. over Crown lands 4

6 Variation of Agreement 4

Schedule 7

Endnotes 26

1 General information 26

2 Table of Amendments 28

3 Explanatory details 29

Version No. 002

Westernport Development Act 1967

No. 7652 of 1967

Version incorporating amendments as at
1 July 2024

Preamble

And whereas the operation of the fractionation plant requires the establishment of adequate port facilities in Westernport:

And whereas an agreement to facilitate the establishment of the fractionation plant and the port facilities has been entered into between the Premier of the State of Victoria and the Companies:

And whereas the agreement is expressed to be subject to ratification of the Parliament of Victoria:

Understanding the operation of this Act requires a close analysis of several highly specific statutory and contractual concepts established within its provisions and the annexed Schedule.

The Agreement

The central concept of the Act is "the agreement" itself, defined in section 2(a) as the agreement set out in the Schedule, including any variations made from time to time. By virtue of section 4(1), the Agreement is not merely approved; it is "ratified validated and approved" and must be given full legal effect. It operates as a hybrid statutory-contractual instrument.

The Reclamation Area

This refers to a precise geographic parcel of land at or near Old Tyabb comprising approximately 250 acres, 2 roods, and 30 perches in the Parish of Tyabb, County of Mornington. The boundaries are defined with surveying specificity in Clause 2 of the Schedule. The Act establishes a legal path for this submerged or tidal land to be reclaimed by the Companies and subsequently converted into private leasehold or freehold property, bypassing standard Crown land disposal protocols.

The Jetty and Pipelines

"The jetty" refers to the maritime structure designed and erected by the Companies but funded by the State (up to 3.5 million dollars). Although owned by the State of Victoria, its day-to-day management and operational control are vested in the Companies (Clause 5(a)(ii)). Conversely, "pipelines" installed by the Companies on the jetty, or linking the jetty to the plant site, remain the private property of the Companies (Clause 4(d)).

Plant and Plant Site

"The plant" refers to the fractionation facility built by the Companies for processing petroleum. "The plant site" is restricted to specific land parcels identified under Certificates of Title Volume 7926 Folio 090 and Volume 4784 Folio 753, plus any adjacent land acquired by the Companies.

Wharfage Charges and Equivalents

The Agreement replaces the standard statutory port tariffs of Westernport with a bespoke financial regime. Under Clause 6, outward petroleum is charged at a highly concessionary rate of 10 cents per ton on the first 4,500,000 tons and 5 cents per ton thereafter. To maintain economic feasibility for these rates, Clause 6(d) establishes legal weight-to-volume equivalents: one ton of propane is fixed at 430 Imperial gallons; one ton of butane at 400 Imperial gallons; and one ton of condensate or crude oil at 280 Imperial gallons at 60 degrees Fahrenheit.

The Westernport Development Act 1967 establishes a targeted legal framework that directly and indirectly impacts a specific group of public and private actors.

The Contracting Companies

The direct beneficiaries of the statutory concessions are Hematite Petroleum Proprietary Limited and Esso Exploration and Production Australia Inc., alongside their permitted assigns under Clause 8 of the Agreement. These companies receive extraordinary property rights, guaranteed utility access, capped port charges, and legislative protection from standard local government planning controls.

The Crown in Right of Victoria

The Act binds the Crown (section 3). It imposes direct financial and operational obligations on the Premier of Victoria, the Minister of Public Works, and the Chief Engineer of Ports and Harbors. These state officials are contractually and statutorily bound to execute the Agreement, maintain the channels, and facilitate the infrastructure.

Public Statutory Corporations

Under section 4(2)(a), all Victorian public statutory corporations are empowered and directed to carry out the Agreement. This historically included the State Electricity Commission of Victoria (SECV) and the State Rivers and Water Supply Commission. Under Clause 5(f) and (g), these bodies are forced to negotiate and ensure the delivery of electricity and water to the plant boundary. Following the State Electricity Commission Amendment Act 2024, section 2A clarifies that references to the SECV refer to the entity as it existed immediately before the 2024 restructuring, ensuring legacy contractual arrangements are not disrupted by modern energy reforms.

Third-Party Port Users and Competitors

While the jetty is state-owned, third parties are effectively restricted. The State is prohibited from authorizing any other person to use the jetty if it would "prejudicially affect or interfere with" the operations of the Companies (Clause 5(a)(ii)). Furthermore, any third party permitted to use the jetty must be charged wharfage fees no less than the concessionary rates granted to the Companies, with those third-party fees offsetting the Companies' minimum annual payment obligations under Clause 6(g).

The Act and its Schedule establish a tightly balanced, albeit heavily state-subsidised, matrix of reciprocal rights and duties.

Duties of the Companies

Plant Construction and Standards: The Companies are jointly covenanted to construct, maintain, and operate the fractionation plant in accordance with accepted good industry practice and the prevailing standards of similar plants in Great Britain and the United States (Clause 4(a)).
Jetty Construction and Dredging: The Companies were required to design and build the jetty and perform extensive initial dredging to create a 40-foot deep navigable channel and an 1,800-foot wide turning circle, all to the satisfaction of the Chief Engineer (Clause 4(b)).
Maintenance of the Jetty: For at least 20 years from the commissioning date, the Companies must maintain the jetty and carry out repairs, though they have a right to be reimbursed by the State for all reasonable costs incurred in doing so (Clause 4(c)).
Pollution Prevention: The Companies must not cause pollution in Westernport Bay from their plant, pipelines, or sites (Clause 4(e)).
Minimum Financial Guarantees: Under Clause 6(b), the Companies must pay the State minimum annual wharfage charges for petroleum if actual throughput tariffs fall short of the thresholds: 300,000 dollars for years 1 to 3; 350,000 dollars for years 4 to 9; and 450,000 dollars for every subsequent year of the initial 20-year term.

Rights of the Companies

Prior Use of Jetty: The Companies hold a prior, protected right to use the jetty (Clause 5(a)(ii)).
Reclamation and Land Acquisition: The Companies had an exclusive 10-year window to reclaim the 250-acre reclamation area (Clause 5(k)). Upon satisfactory reclamation, they gained the right to secure a 75-year lease over the land at a capped rental of no more than 10 dollars per acre per annum (Clause 5(l)), or to acquire the fee simple estate at market value as determined by an appraiser (Clause 5(m)).
Resource and Utility Access: The Companies have the right to draw sea water from Westernport Bay without charge (Clause 5(j)(i)) and to discharge effluent into the bay, provided the Minister of Public Works is satisfied it will not cause pollution or thermal harm (Clause 5(j)(ii)).

Duties of the State

Capital Cost Reimbursement: The State was mandated to reimburse the Companies for the design, construction, and initial dredging of the jetty up to a maximum of 3,500,000 dollars (Clause 4(b), Clause 6(h)).
Ongoing Marine Support: The State must maintain the dredged depths, install navigational aids, provide an adequate 24-hour pilotage service, and supply tugs and harbor firefighting services at non-discriminatory rates (Clause 5(b), (c), (d), (i)).

The Westernport Development Act 1967 does not contain standard contemporary regulatory enforcement mechanisms. There are no administrative civil penalties, infringement notices, or criminal offenses set out in the text of the Act. Because the Act is designed to validate a commercial joint-venture agreement, enforcement is governed primarily by contract law, equity, and private arbitration.

Contractual Determination

Under Clause 11 of the Schedule, the Premier of Victoria holds a unilateral right to determine (terminate) the Agreement by written notice under specific, high-threshold default conditions. These conditions are restricted to:

The liquidation of either of the Companies, other than a voluntary liquidation purely for the purpose of corporate reconstruction (Clause 11(a)).
An unexcused delay of more than one year from the commencing date in starting construction of the plant (Clause 11(b)).
An outright abandonment or repudiation of the Agreement by the Companies (Clause 11(c)).

Importantly, any such determination is forward-looking and does not affect any rights, obligations, or liabilities that have already accrued or been incurred under the Agreement prior to the date of termination.

Compulsory Arbitration

For all other disputes, including disagreements over dredging standards, jetty maintenance costs, or environmental compliance, the parties are barred from launching immediate court litigation. Clause 13 mandates that any difference or dispute must first be subject to a one-month negotiation period. If unresolved, the matter must be referred to two arbitrators: one appointed by the Companies and one by the Premier.

The arbitration is governed by the Arbitration Act 1958 (which has been succeeded by the Commercial Arbitration Act 2011). The arbitrators have the power to appoint an umpire if they cannot agree. This statutory displacement of judicial oversight keeps commercial and operational disputes confidential and outside the public court system.

Debt Recovery for Wharfage Shortfalls

If the actual volume of petroleum processed over the jetty does not generate sufficient wharfage charges to meet the minimum annual thresholds set out in Clause 6(b), the Public Works Department may issue a written demand. The Companies are contractually and statutorily obligated to pay the difference within 14 days of receiving that demand. Failure to pay would constitute a standard debt due to the Crown, enforceable via commercial litigation or arbitration.

The Act functions as a powerful legislative carve-out that heavily alters the application of standard public, land, and environmental laws of Victoria.

+-------------------------------------------------------------+
|              Westernport Development Act 1967               |
|  Section 4(2)(b): "Notwithstanding anything in any Act..."  |
+----------------------------------------+--------------------+
                                         |
                       Overridden Laws   |   Retained Laws
         +-------------------------------+-------------------------------+
         |                                                               |
         v                                                               v
+----------------------------------+                            +----------------------------------+
| - General Port Tariff Regs       |                            | - Town & Country Planning Act    |
| - Crown Land Disposal Laws       |                            |   1961 (for buildings/structures)|
| - Standard Utility Access Rules  |                            | - Local Government Act 1958      |
| - Public Infrastructure Tenders  |                            |   (building compliance)          |
+----------------------------------+                            +----------------------------------+

The "Notwithstanding" Override

Section 4(2)(b) is the critical legal engine of the Act. It states that the Act and the Agreement shall take effect notwithstanding anything in any other Act, proclamation, regulation, Order in Council, by-law, lease, licence, authority, permit, or agreement. Furthermore, all other legislative and regulatory instruments are deemed modified to the extent necessary to give full force and effect to the Agreement. This clause effectively immunizes the development from conflicting state and local laws, establishing a supreme, localized legal regime for the Westernport operations.

Planning and Local Government Laws

The override is subject to a narrow, explicit exception in Clause 5(a). The authorization of the plant and jetty operations does not bypass the necessity for approvals under the Town and Country Planning Act 1961 and the Local Government Act 1958 "in connexion with the construction operation and maintenance of any building or structure." Consequently, while the broader industrial land use, marine dredging, and reclamation are statutorily guaranteed, the physical structural integrity of the buildings remains subject to local planning and municipal building approval systems.

Crown Land and Property Laws

The Act directly bypasses the standard public sale and leasing provisions of the Land Act 1958. Under section 5(1), the Governor in Council is granted wide, discretionary power to issue leases, easements, licences, or other authorities over unalienated Crown land to the Companies, notwithstanding anything to the contrary in any other Act.

Where a grant in fee simple is made for reclaimed land under Clause 5(m), the transaction is exempted from standard public land disposal protocols, though it is subject to the survey cost requirements and fee structures of the Land Act 1958. Under section 5(2)(b), the Registrar of Titles is directed to record any lease surrenders and make necessary recordings in the Register under the Transfer of Land Act 1958.

Electricity and Water Utilities

The Act overrides standard commercial utility allocation frameworks. Clause 5(f) and (g) mandate that the State, through the SECV and the State Rivers and Water Supply Commission, must ensure the provision of adequate power and water at rates agreed directly between those commissions and the Companies, effectively compelling public utilities to prioritize and deliver infrastructure to the plant boundary.

Since its passage in 1967, the Westernport Development Act 1967 has been amended by three separate pieces of legislation, reflecting broader structural shifts in Victorian land administration, port management, and state energy assets.

Transfer of Land (Computer Register) Act 1989 (No. 18/1989)

This amending Act modified section 5(2)(b) of the Principal Act. The amendment substituted historical references to the Registrar of Titles making entries in the physical paper register book with updated provisions enabling the Registrar to make "necessary recordings in the Register." This technical amendment was necessary to transition the specific land registration duties associated with the Tyabb reclamation area into Victoria's modern, computerized land titles registry system.

Port Services Act 1995 (No. 82/1995)

This Act introduced the most substantial modern administrative changes to the 1967 framework.

Definition of the Agreement: Section 197 amended the definition of "the agreement" in section 2(a) to include "the Agreement as varied from time to time."
Insertion of Section 6 (Variation of Agreement): Section 198 inserted a highly structured variation mechanism. Prior to this, any change to the 1967 Agreement would have required an Act of Parliament. Under the new section 6, the Premier and the Companies can vary the Agreement with the approval of the Governor in Council via an Order in Council published in the Government Gazette. To retain democratic oversight, any such variation must be laid before both Houses of Parliament within six sitting days of publication (section 6(4)). It is subject to a strict disallowance procedure: if both Houses pass a resolution to disallow the variation within specified sitting day limits (sections 6(5)-(9)), the variation is revoked, having the same effect as the repeal of an enactment (section 6(10)).

State Electricity Commission Amendment Act 2024 (No. 11/2024)

This amendment inserted section 2A into the Act. It was enacted to manage the legal consequences of the Victorian Government's re-establishment of a state-owned electricity body. Section 2A dictates that any reference to the State Electricity Commission of Victoria in the Act is a reference to the SECV as it existed immediately prior to the commencement of the 2024 reforms. This isolates the legacy utility access covenants in Clause 5(f) from the modern, restructured SECV corporate entities.

The source text of the Westernport Development Act 1967 does not record any judicial decisions, appellate litigation, or constitutional challenges associated with its provisions. This absence of public litigation is characteristic of bilateral statutory-contractual regimes of this nature. Several legal-economic factors explain why this Act has not generated public case law:

               Dispute Occurs
                     |
                     v
       +-----------------------------+
       |   Clause 13: Mandatory      |
       |  Private Arbitration (1958) |
       +--------------+--------------+
                      |
                      v
       +-----------------------------+
       |   Confidential Resolution   |
       |   (No Public Court Record)  |
       +-----------------------------+

Mandatory Arbitration

As detailed under Clause 13 of the Schedule, the parties are legally bound to resolve "any difference or dispute" arising out of or in connection with the Agreement via private commercial arbitration. By appointing their own arbitrators and selecting an umpire under the Arbitration Act 1958, the State and the Companies have successfully diverted highly technical operational and financial disputes, such as dredging depth performance, jetty repair cost-sharing, and utility tariff negotiations, away from the public registry of the Supreme Court of Victoria. Consequently, any operational friction has been resolved through confidential, binding arbitral awards that do not enter the public jurisprudence.

Legislative Immunity and Standing Barrier

Section 4(2)(b) operates as an absolute barrier to third-party public interest litigation. Because the Parliament of Victoria has explicitly declared that the Agreement has the force of law "notwithstanding anything in any Act," local environmental organizations, commercial competitors, or municipal councils have no legal basis to challenge the validity of actions authorized by the Act. Any administrative law challenge asserting that a permit or dredging operation was ultra vires is blocked by the statutory override, which deems all other laws modified to accommodate the development. This lack of viable legal avenues has historically prevented public-interest litigants from bringing actions under this Act.

Practitioners, corporate counsel, and state compliance officers dealing with properties or operations in the Westernport and Old Tyabb region must be aware of several high-risk legal "gotchas" embedded in the text of this Act.

Environmental Regulatory Freeze (Clause 4(e))

While Clause 4(e) contains a clear covenant requiring the Companies not to cause pollution in Westernport Bay, it includes an extraordinary proviso:

"PROVIDED that this clause shall not be understood to impose any obligation or operating restrictions on the Companies more stringent than those imposed on any other persons engaged in similar operations in the Westernport Bay area."

This clause effectively freezes the environmental compliance baseline for these operations. If the State of Victoria attempts to impose highly stringent, modernized environmental conditions specifically on the fractionation plant or its attendant pipelines, the Companies can legally resist them if those standards exceed the baseline applied to other local marine or industrial operators. This creates a significant regulatory hurdle for environmental protection agencies.

Jetty Maintenance Moral Hazard (Clause 4(c))

Under Clause 4(c), the Companies are required to maintain and repair the state-owned jetty "to the satisfaction of the Chief Engineer." However, the clause concludes with a sweeping financial caveat:

"...but the State shall reimburse the Companies for any cost reasonably incurred by the Companies for so maintaining or repairing the jetty."

This structure creates a severe economic moral hazard for the State. The Companies hold the physical management control and direct the maintenance operations, yet the State bears the ultimate financial liability for all "reasonably incurred" repair costs. The term "reasonably incurred" is a fertile ground for commercial disagreement, particularly as the infrastructure ages, leaving the state open to open-ended reimbursement claims.

Sovereign and Parliamentary Risk in Variations (Section 6)

Although the 1995 amendments allowed for the Agreement to be varied dynamically without passing a new Act, section 6 introduces significant sovereign risk for the Companies. Any negotiated variation published in the Government Gazette can be disallowed by a resolution of either House of Parliament (section 6(6)). If a hostile or minor-party-controlled Legislative Council disagrees with a commercial concession negotiated between the Premier and the Companies, it can unilaterally strike down the variation up to 18 sitting days after it is tabled. This exposes long-term capital planning to unpredictable parliamentary intervention.

Legacy Utility Reference Clutter (Section 2A)

The 2024 amendment means that any practitioner reviewing energy access, easement, or transmission rights under this Act cannot simply deal with the active, modern State Electricity Commission of Victoria. They must trace the rights back to the legal shell of the SECV "in existence immediately before" the 2024 amendments, navigating the complex transitional provisions of the Former SEC (Residual Provisions) Act 1958.

Compliance under the Westernport Development Act 1967 is divided between the administrative obligations of the State and the corporate compliance programs of the joint-venture Companies.

1. Accurate Metric Conversions for Outward Wharfage (Clause 6)

Accountants and logistics managers for the Companies must ensure that outward wharfage payments for petroleum products are calculated using the exact statutory volume-to-weight equivalents established in Clause 6(d). Standard commercial bills of lading expressed in liquid gallons or liters must be converted to statutory "tons" using the following formulas before applying the tariff:

$$\text{Propane Tons} = \frac{\text{Imperial Gallons}}{430}$$

$$\text{Butane Tons} = \frac{\text{Imperial Gallons}}{400}$$

$$\text{Condensate or Crude Oil Tons (at } 60^\circ\text{F)} = \frac{\text{Imperial Gallons}}{280}$$

These calculated tons must be aggregated annually. The first 4,500,000 tons are billed at 10 cents per ton, and any excess at 5 cents per ton, subject to the minimum payment reconciliation.

2. Mandatory Auditing of Reimbursement Claims (Clause 6(h))

Before submitting any claims to the State for the reimbursement of progress expenditures on jetty maintenance, alterations, or additional dredging, the Companies must comply with Clause 6(h):

Select an independent auditor.
Secure fully audited statements of the progress expenditure incurred by each individual Company.
Submit the audited statements directly to the Department of Treasury and Finance (or the relevant administering agency) for approval prior to the state's reimbursement.

3. Executing Variations (Section 6)

If the commercial realities of the fractionation plant or port operations require an amendment to the 1967 terms, the parties must follow the strict protocol under section 6:

Draft a formal variation agreement executed by both the Premier and authorized representatives of the Companies.
Secure an Order in Council from the Governor in Council approving the variation.
Publish the Order in Council, containing full particulars of the variation, in the Victorian Government Gazette.
Ensure the Minister tables a copy of the Order in Council in both the Legislative Assembly and the Legislative Council within six sitting days of publication.
Monitor the 18-sitting-day window in both Houses to ensure no notice of disallowance is given. If a partial disallowance occurs under section 6(9), compliance officers must immediately draft and exchange formal notices of intention to be bound by the non-disallowed portions to prevent the entire variation from failing.

4. Assignment Compliance (Clause 8)

Any corporate restructuring or transfer of assets requires strict adherence to Clause 8. The Companies may assign their rights to a subsidiary (within the meaning of the Companies Act 1961, now read as the Corporations Act 2001 (Cth)) without prior consent (Clause 8(2)). However, any assignment to a third-party commercial operator requires the written consent of the Premier (Clause 8(3)). Counsel must submit formal requests to the Premier’s department showing that the assignee possesses the technical and financial capacity to fulfill the deep-water port and plant obligations.

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