Section 4: Validation of the Indenture
Section 4(1) ratifies and approves both the Indenture (Schedule 1) and the provisions of the 2000 Deed of Amendment (Schedule 2). The combined effect is that the Indenture and the 2000 amendments are carried out and have effect as though expressly enacted in the Act. This is the conventional form of an indenture ratification: the commercial terms of the agreement are given the force of statute without being reproduced as individual provisions of the Act itself.
Section 4(2) empowers and requires specified State agencies (the Minister of Works, Electricity Trust of South Australia, South Australian Housing Trust and Commissioner of Highways) to perform their obligations under the Act and the Indenture, ensuring that the State's infrastructure commitments cannot be resisted on grounds of agency incapacity.
Section 5: Performance of the Indenture
Section 5 imposes a duty on the Governor and Ministers for the time being in office to take all necessary measures to ensure full performance of the State's obligations under the Indenture. This is an unusually strong statutory guarantee of performance, designed to ensure that future governments cannot simply walk away from the State's industrial development commitments.
Section 6: Variation of the Indenture
Section 6 permits the parties to vary the Indenture by written agreement, subject to a parliamentary lying procedure. Any variation agreement must be laid before each House of Parliament for seven sitting days before it comes into operation. This mechanism preserves parliamentary oversight of any changes to the terms of the original deal while allowing flexibility for the parties to adapt the arrangement over time.
Section 6A: Assignments
Section 6A provides that an assignment by the Company of rights, powers, benefits, privileges or leases under the Indenture without the prior consent of the State is void and of no effect. This provision is retrospective in operation: it is declared to have always been the case that an assignment made without State consent was void. This provision was inserted to address concerns about corporate restructuring transactions that may have occurred without express State consent.
Section 6B: No Compensation
Section 6B provides that no compensation is payable to OneSteel Manufacturing Pty Ltd, Whyalla Ports Pty Ltd, or any other person in respect of the operation of section 6A or Schedule 4. This removes any proprietary or legitimate expectation argument that could arise from the retrospective operation of those provisions.
Sections 3A and 3B: Statutory Charge
Section 3A creates a first ranking statutory charge over all property of the Company (within and outside South Australia) in favour of the Crown for any amount owed by the Company to the Crown or a Crown agency. The charge is presently enforceable without demand from 30 days after the amount falls due. The Crown may enforce the charge by entry into and control of property, sale of property, appointment of a receiver or receiver and manager, or any other lawful method. A receiver appointed under the section has the powers of a receiver under the Corporations Act 2001 (Cth).
Section 3B declares the statutory charge to be a "statutory interest" for the purposes of section 73(2) of the Personal Property Securities Act 2009 (Cth), which means it takes priority over any security interest in the same property, regardless of registration. This is a significant statutory priority provision: it means that any financier taking security over the Company's assets does so subject to the Crown's first ranking statutory interest.
Section 3C: Information and Disclosure
Section 3C imposes a suite of financial reporting and disclosure obligations on the Company. The Company must provide copies of its annual financial report and auditor's report to the Minister within seven days of receipt. The Minister may require production of documents and information within 14 days of a written notice. The Company must notify the Minister of any unplanned significant disruption to its works and facilities, any planned disruption exceeding two days, and any material risk of such a disruption. The Minister may require further information about disruptions and may arrange inspections of the Company's works and facilities.
The provision creates significant offences for non-compliance: failure to comply attracts a maximum penalty of $1,000,000, and making a false or misleading statement in documents or information provided under the section attracts a maximum penalty of $1,000,000 or two years' imprisonment. Section 3C(11) contains a modified abrogation of the privilege against self-incrimination: a person required to provide documents or information must do so even if they are incriminating, but if the person is a natural person the information cannot be used in evidence against that person in subsequent criminal proceedings (other than for false and misleading statement offences).