Tweed River Entrance Sand Bypassing Act 1995 (NSW)

Tweed River Entrance Sand Bypassing Act 1995 No 55 An Act to provide for the carrying out of agreements between the States of New South Wales and Queensland with regard to improving the navigability of the entrance of the Tweed River and the bypassing of sand around that entrance, and for related purposes. Part 1 Preliminary 1 Name of Act This Act is the Tweed River Entrance Sand Bypassing Act 1995. 2 Commencement This Act commences on the date of assent to this Act. 3 Purpose of Act The purpose of this Act is to provide for the carrying out of agreements between the States of New South Wales and Queensland with regard to: (a) the improvement of the navigability of the Tweed River entrance, and (b) the bypassing of sand around that entrance so that it can replenish the southern Queensland beaches. 4 Definitions In this Act: deed of agreement means the Deed of Agreement dated 2 March 1995, a copy of which is set out in Schedule 1. further agreement means an agreement approved by the operation of section 6. heads of agreement means the Heads of Agreement dated 31 March 1994, a copy of which is set out in Schedule 2. the works means the works to be carried out, maintained or constructed to give effect to the deed of agreement and any further agreement. Part 2 Agreements 5 Ratification, approval and construction of certain agreements (1) The execution of the heads of agreement and the deed of agreement on behalf of the State of New South Wales is ratified and both of those agreements are approved. (2) References in the heads of agreement and the deed of agreement to the Minister for Public Works are taken to be, and to have been on and from 5 April 1995, references to the Minister administering this Act. 6 Further agreements (1) If: (a) an agreement is entered into on or after the date of assent to this Act between a New South Wales Minister and a Queensland Minister, described in the agreement as acting on behalf of their respective States, and (b) the Minister administering this Act certifies that the agreement is for the purpose of giving effect to the heads of agreement, or for any ancillary purpose, the Minister administering this Act must, within 7 sitting days after this section commences or the agreement was entered into (whichever occurs later), lay a copy of the agreement before each House of Parliament or cause a copy to be so laid. (2) The execution of any such agreement by a Minister on behalf of the State of New South Wales is ratified, and the agreement is approved, at the expiration of 21 sitting days of each House after the copy of the agreement was laid before it. (3) However, subsection (2) does not apply if either House of Parliament resolves to disapprove the agreement during the period of 21 sitting days applicable to it. (4) Schedule 3 to this Act may be amended by a proclamation inserting in that Schedule a copy of each further agreement approved by the operation of this section. 7 Authorisation to enter into contracts and other arrangements (1) The Minister may enter into contracts, agreements or arrangements on behalf of the State of New South Wales and (if so authorised by a Queensland Minister or another person acting on behalf of that State) on behalf of the State of Queensland for the carrying out of the works, whether or not within New South Wales. (2) Without limiting subsection (1), the Minister may be a joint party to any such contracts, agreements or arrangements. Part 3 Implementation 8 Implementation of agreements (1) The deed of agreement and each further agreement may be carried into effect despite the provisions of any other Act or law. (2) In particular, the carrying out of the works is not subject to the Pipelines Act 1967. (3) All acts, matters and things: (a) for or with respect to which provision is made in the deed of agreement or a further agreement, or (b) that by the deed of agreement or a further agreement are agreed, directed, authorised or permitted to be made, done or executed, are authorised and confirmed. (4) Without limiting subsection (3): (a) the Minister may do or cause to be done (whether or not within New South Wales) any act, matter or thing necessary for the purpose of carrying out the deed of agreement and each further agreement, and (b) any such act, matter or thing may be done in New South Wales by or on behalf of the State of Queensland. (5) Any act, matter or thing done or omitted to be done for the purpose of carrying out the heads of agreement or the deed of agreement before their approval by this Act, or for the purpose of carrying out an agreement (which has been certified under section 6 (1)) before its approval by or disapproval under this Act, is validated. 9 Carrying out of the works (1) For the purposes of the Public Works Act 1912, the works are taken to be an authorised work and the Minister is, in relation to the works, taken to be the Constructing Authority. Sections 34, 35, 36 and 37 of that Act do not apply in respect of the works. (2) Accordingly, the Minister may acquire land under section 39 of that Act for the purposes of the works. (3) Section 42 of the Aboriginal Land Rights Act 1983 does not apply to such an acquisition of land. (4) Division 1 (Pre-acquisition procedures) of Part 2 of the Land Acquisition (Just Terms Compensation) Act 1991 does not apply to such an acquisition of land if the Minister certifies to the Governor, when obtaining the approval of the Governor to an acquisition notice under section 19 of that Act, that it is appropriate for the purposes of the works that the Division not apply to the acquisition. (5) Land may be acquired for the purposes of the works even if: (a) any consent or permission required under the Crown Land Management Act 2016 has not been obtained or granted, or (b) the Minister may not be qualified under the Crown Land Management Act 2016 to hold land of the tenure to be so acquired. 10 Application of Environmental Planning and Assessment Act 1979 to the works (1) In this section, development has the same meaning as in the Environmental Planning and Assessment Act 1979. (2) Development for the purposes of the works: (a) may be carried out without the necessity for development consent under Part 4 of the Environmental Planning and Assessment Act 1979, and (b) may be so carried out even if the development would be prohibited, or would require development consent, in the absence of this section. (3) Any such development is an activity within the meaning of Part 5 of the Environmental Planning and Assessment Act 1979 and the Minister is the determining authority in relation to that activity for the purposes of that Part. (4) For the purposes of section 115D of the Environmental Planning and Assessment Act 1979, the Minister is excluded from Division 4 of Part 5 of that Act in relation to so much of the works as is the subject of the environmental impact statement dated October 1994, entitled "Tweed River Entrance Sand Bypassing Project - Tweed River Entrance Maintenance Dredging and Associated Nourishment of Southern Gold Coast Beaches" and prepared for NSW Public Works and the Queensland Department of Environment and Heritage. (5) So much of the works as is the subject of that environmental impact statement is taken to be, and always to have been, maintenance dredging within the meaning of State Environmental Planning Policy No 35—Maintenance Dredging of Tidal Waterways. (6) Any act, matter or thing done in accordance with the Environmental Planning and Assessment Regulation 1980 in connection with the preparation of that environmental impact statement before the commencement of this section has the same effect as if it had been done in accordance with the Environmental Planning and Assessment Regulation 1994. Part 4 Miscellaneous 11 Limitation on liability (1) Any act, matter or thing done or omitted to be done by the Minister (or by any other natural person, whether or not acting on behalf of the State, being a person engaged, or involved in performing any function, in connection with the carrying out the works) does not subject the Minister (or the person) personally to any action, liability, claim or demand, if the act, matter or thing was done or omitted to be done in good faith for the purpose of carrying out the works. (2) An action for nuisance connected with or in any way arising out of any act, matter or thing done or omitted to be done in carrying out the works, or an action for the abatement or remedying of any such nuisance, may not be brought against the State, the Minister or any other person (including a corporation) involved in carrying out the works or performing any function in connection with the carrying out of the works, whether or not the other person was acting on behalf of the State. (3) This section applies whether the act, matter or thing concerned was done or omitted to be done before or after the commencement of this section and so applies despite any other Act or law. 12 Right to compensation for acquisition of certain claimable Crown lands (1) In this section, claimable Crown Lands has the same meaning as in section 36 (1) of the Aboriginal Land Rights Act 1983. (2) Any claim under Part 6 of the Aboriginal Land Rights Act 1983 made in respect of land that has been acquired for the purposes of the works and that was claimable Crown land when the claim was made, may be determined under the Aboriginal Land Rights Act 1983 as if the land had not been so acquired. (3) However, land so acquired is not to be transferred under section 36 of the Aboriginal Land Rights Act 1983. A claimant to whom land would, but for this subsection, be transferred under section 36 of that Act is entitled to compensation as if the claimant held, at the date of the acquisition, an estate in fee simple in the land. (4) The compensation is to be determined as if the land had been acquired in accordance with the Land Acquisition (Just Terms Compensation) Act 1991. (5) For the purposes of subsection (3), the Land and Environment Court may make an order for compensation if any such claim is determined by the Court. (6) This section applies to any such claim whether the claim was made before or after the commencement of this section. 13 Act binds Crown This Act binds the Crown in right of New South Wales and also, as far as the legislative power of Parliament permits, in all its other capacities. 14 Review of Act (1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives. (2) The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act. (3) A report of the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years. Schedule 1 Deed of Agreement (Section 4) TWEED RIVER ENTRANCE SAND BYPASSING PROJECT AGREEMENT THIS DEED OF AGREEMENT is made on SECOND day of MARCH 1995. B E T W E E N: THE STATE OF NEW SOUTH WALES ("NSW") A N D: THE STATE OF QUEENSLAND ("Queensland") RECITALS W H E R E A S: A NSW and Queensland have agreed to the implementation of a project to be known as the Tweed River Entrance Sand Bypassing Project. B The purpose of this Agreement is to enhance and maintain the attributes of the Gold Coast - Tweed Heads region and more specifically the Tweed River estuary and the southern Gold Coast beaches and to achieve the respective objectives of the Parties. NSW's objective is "to establish and maintain a navigable depth of water of at least 3.5 metres below Indian Spring Low Water (ISLW) in the approach to and within the entrance channel to the Tweed River over a width equal to that between the rubble mound breakwaters" and Queensland's objective is "to achieve a continuing supply of sand to the Southern Gold Coast beaches at a rate consistent with the natural littoral drift rates updrift and downdrift, together with the supply of such additional sand to the beaches as is required to restore the recreational amenity of the beaches and to maintain it". The intention is to achieve the objectives in perpetuity. C The Parties have agreed to implement the Project jointly and in a spirit of goodwill and cooperation. For that purpose they propose to enter into all necessary contracts contemplated by this Agreement as Joint Principals. D The Parties have further agreed that NSW will for practical reasons and given the need to commence the Project expeditiously let the contracts for the Initial Dredging Component and either State may be authorised to let other contracts in its own name on behalf of both Parties as exceptions to the intention that all contracts be entered into by them as Joint Principals. E The Parties acknowledge that the Artificial Sand Bypassing System will need to be replaced from time to time and have agreed to do all necessary cooperative acts to ensure that any replacement system will be established and operated in such a way as to fulfil the purpose of this Agreement. NOW IT IS AGREED AS FOLLOWS:— PART I INTERPRETATION - 1. PURPOSE The purpose of this Agreement is as set out in the Recitals. 2. DEFINITIONS In this Agreement - "Additional Works" means the works which the Ministerial Council agrees to include as part of the Project pursuant to clause 11. "Adjustment Formula" means the relevant monetary amount being adjusted by being divided by the Consumer Price Index (All groups) last published by the Australian Bureau of Statistics at the date of signing of this Deed and multiplied by the Consumer Price Index last published at the date of notification of the relevant default, dispute or other matter to which a monetary amount applies. If the Consumer Price Index ceases to be published a replacement index shall be agreed on in writing by the Parties and in default of agreement for a period of fourteen (14) days the index may be determined at the request of either Party by the President or Acting President of the New South Wales Division of the Australian Institute of Valuers or his nominee. "Anniversary Date" means the 30th day of September each year or such other date as may be agreed by the Parties, commencing on the first 30th day of September following the commissioning of the First System or an Interim System. "Annual Period" means a period of one year, or part thereof for the first Annual Period, following the commissioning of the First System or an Interim System, concluding on an Anniversary Date. "Artificial Sand Bypassing System" or "System" means the works as described in the Heads of Agreement to be established pursuant to this Agreement for the hydraulic or mechanical movement of sand in perpetuity from within the Tweed River Bar and Entrance Area on the updrift side to the Beaches on the downdrift side of the Tweed River entrance other than by natural processes and includes all necessary preliminary and ancillary activities, any interim works that the Parties agree to establish for that purpose and any replacement of the works which may be necessary from time to time to meet the purpose of this Agreement but does not include any works associated with the Initial Dredging Component. "Beaches" means, for the purpose of the Initial Dredging Component, the area identified on the map shown in Schedule 1 and means, for the purpose of the System, Duranbah Beach, Snapper Rocks and Kirra Point or in their vicinity. "Cash Flow Period" means the period of one month, or such other period as may be agreed by the Parties for the purpose of clause 14. "Clear Navigation Channel" means a navigation channel which has a depth below Indian Spring Low Water (ISLW) of at least 3.5 metres over a width of 70 metres and extending from an upriver limit defined by the upriver boundary of the Tweed River Bar and Entrance Area shown in Schedule 2 to the open sea or such other parameters as may be agreed in writing between the Parties. "Consultation Actions" mean the actions listed in column 1 of the table in clause 10.5. "Contract Management" means the functions and activities referred to in clause 8.3.1(b). "Contract Quantity" means the cumulative quantity of sand which is to be delivered by any Anniversary Date in accordance with clause 12 or as otherwise agreed in writing by the Parties. "Contracting State" means a Party who carries out or pays for work which is a Shared Project Cost. "Coordinating State" means the Party specified in clause 8.6.2 and as varied from time to time pursuant to clause 10.11.2, as the Party representing both Parties for the purposes set out in clause 8.6. "First System" means the first Artificial Sand Bypassing System established under this Agreement which is assessed by the Parties before accepting tenders as being capable of operating for a period of approximately 25 years and does not mean any Interim System unless the Parties expressly agree in writing that an Interim System is to be considered as the First System. The assessment of the Parties shall be based upon best available practices and best available data. "Government Agency" means: (a) a department or administrative office of the government of either Party, or of the Commonwealth of Australia; (b) a statutory body representing the Crown in right of either Party or the Commonwealth of Australia; (c) a local government body in NSW or Queensland; or (d) any other public authority which is agreed in writing by the Parties to be a Government Agency for the purposes of this Agreement. "Heads of Agreement" means the Heads of Agreement between the State of NSW and the State of Queensland relating to the Tweed River Entrance Sand Bypassing Project executed by the Premier of NSW and the Premier of Queensland on 31st March 1994. "Initial Dredging Component" or "Initial Dredging and Sand Supply Component" means the dredging of two (2) million cubic metres of sand from the Tweed River Bar and Entrance Area and the deposit thereof on the Beaches and includes all necessary preliminary and ancillary activities. "Intellectual Property" includes copyright, patent rights, design rights, eligible layout rights, rights of confidentiality and trade or business secrets and the rights to registration or proprietorship of such rights. "Interim System" means an Artificial Sand Bypassing System which the Parties agree under clause 10.4 to establish prior to the establishment of the First System and which is intended by the Parties to operate for a period of less than 25 years. "Joint Consultants' Report" means the report entitled "Tweed River Entrance - NSW/Qld Sand Transfer Negotiation" by WBM Pty Limited, The University of Queensland and Australian Water and Coastal Studies Pty Limited dated May 1991. "Joint Principals" means both Parties or one nominee of each Party for the purpose of the execution of contracts contemplated by this Agreement to be let jointly by both Parties. "Joint Principals' Representative" means the person described in clause 8.8. "Latest Commencement Date" means the date specified in clause 9.3, as adjusted pursuant to this Agreement, after which Queensland may give notice that it intends to let contracts for the Initial Dredging Component. "Long Term Average" means the long term average annual net littoral transport of sand that would, in the absence of any artificial actions to influence it, cross a line perpendicular to the coastline, situated one kilometre south of the southern training wall at the Tweed River entrance and extending to the 20 metre depth contour, less the annual net quantity of sand which, after the commissioning of the System, crosses that line and reaches Queensland, or the coastal waters of the State of Queensland as defined in the Coastal Waters (State Powers) Act, 1980 (Cth), by natural means. "Ministerial Council" means the NSW Minister for Public Works and the Queensland Minister for Environment and Heritage or their nominees. "Original Project Material" means all sketches, plans, drawings, specifications, estimates, designs, calculations, data, information, computer programs, reports, models or other documents or tangible materials produced in the course of the Project or in relation to any activity connected with the Project. "Partnering Document" means the "Partnering Guidelines" (ISBN 0 7310 0989 4) of the New South Wales Capital Works Procurement Manual dated October 1993 (ISBN 0 7310 0964 9) or any amendment or substitution to those guidelines approved by both Parties for the purpose of this Agreement. "Process" means the expert determination process as set out in clause 17.4. "Project" means the Tweed River Entrance Sand Bypassing Project which comprises two inter-related components namely: (a) the Initial Dredging Component; and (b) the System. Without limitation of the above, the Project includes: (i) the items described in the Heads of Agreement as being part of the Project; and (ii) the Additional Works. "Project Directors" means the persons described in clause 8.4. "Project Management" means the functions and activities referred to in clause 8.3.1(a). "Project Manager" means the person described in clause 8.9. "Reviewing State" means the Party which is not the Coordinating State. "Sand" means clean natural sand of an equivalent quality to that which exists in the natural littoral system arriving at the northern portion of Letitia Spit and includes that supplied to the bar by the natural fluvial system. "Shared Project Cost" means an item of work, the costs of which are to be shared by the Parties on a percentage basis as specified in this Agreement. Without limitation of the above, all works falling within the definition of the Project in this clause 2 shall be Shared Project Costs. "System" means the same as "Artificial Sand Bypassing System". "Target Action" means an action listed in Column 1 of the table in clause 10.3. "Target Date" means a date listed in Column 2 of the table in clause 10.3 as amended by clause 10.4 or clause 10.6. "Tweed River Bar and Entrance Area" means the area identified on the map shown in Schedule 2. "Working Group" means the Working Group established under the Heads of Agreement. 3. INTERPRETATION 3.1 In this Agreement, (a) a reference to any Act includes any Act amending, or in substitution for, that Act; (b) a reference to this Agreement includes a reference to: (i) the Schedules to this Agreement; and (ii) any amendment of or addition to this Agreement or the Schedules hereto; (c) words importing the singular include the plural and vice versa; (d) words importing any gender include any other gender; (e) "person" includes a corporation; and (f) all monetary amounts are expressed in Australian currency and shall be adjusted from time to time by the application of the Adjustment Formula. 3.2 In interpreting a provision of this Agreement, a construction that would promote the purpose or object underlying the Agreement (whether or not that purpose or object is expressly stated in the Agreement) shall be preferred to a construction that would not promote that purpose or object. PART II LEGAL RELATIONS AND RATIFICATION - 4. LEGAL RELATIONS The Parties acknowledge and agree that this Agreement is intended to be legally binding and enforceable by the Parties. 5. COMMENCEMENT AND TERM This Agreement shall commence on the date first set out above and shall continue in force until lawfully determined. 6. RATIFICATION AND SUBMISSION TO PARLIAMENT 6.1 Each Party shall promptly take every practicable step to have this Agreement ratified by its Parliament. 6.2 Each Party, so far as its jurisdiction extends and so far as it may be necessary, shall provide for or secure the execution and enforcement of the provisions of this Agreement and any Acts ratifying it. 6.3 If either Party is unable to secure ratification of this Agreement because any provision is unacceptable to its Parliament, the Parties shall negotiate in good faith to achieve a solution, including by amendment of this Agreement, which promotes the purpose of this Agreement. PART III THE PROJECT - 7. PARTNERING The Parties recognise the benefits of partnering as described in the Partnering Document and will endeavour to follow the principles outlined in that document in relation to the conduct of this Agreement and any contract let by the Joint Principals or by either Party under this Agreement provided that: (i) each Party shall be a "stakeholder" for the purposes of the partnering process in any contract let by either Party for the purposes of this Agreement; and (ii) to the extent of any inconsistency between the provisions of the Partnering Document and this Agreement, the provisions of this Agreement shall prevail. 8. PROJECT IMPLEMENTATION 8.1 Joint Principals 8.1.1 Subject to this Agreement, all necessary contracts for the implementation of the Project shall be let jointly by the Parties as Joint Principals and executed in a manner deemed appropriate by each. It is intended by the Parties that such contracts will be let in the names of the NSW Minister for Public Works and the State of Queensland. 8.1.2 Notwithstanding clause 8.1.1, either Party may enter any contract for the Project in its own name, or in the name of its nominee, as the representative of both Parties, subject to a determination by the Working Group that it is appropriate for the contract to be entered in that way. 8.1.3 Subject to compliance by both Parties with their obligations to consult with the other Party, any monetary liability incurred by either Party in the course of the performance of the Project for breach of contract, in tort (excluding a liability incurred by reason solely of the negligence of that Party), or other common law or statutory cause of action, whether arising out of or in relation to a contract entered as Joint Principals, a contract entered into by either Party as representative of both Parties or otherwise, shall for the purpose of sharing costs for the Project be included as part of the final actual costs of the applicable item of work. For the purpose of this clause 8.1.3, a liability is not incurred solely by reason of the negligence of one Party if it arises out of the implementation of a course of action approved by both Parties in accordance with this Agreement or deemed under clause 8.7.7 to be so approved, in a manner which is within the scope of such approval. 8.2 Project Risk Assessment 8.2.1 Each Party will be responsible for making its own assessment of Project risks for discussion with the other Party through the Project Directors or within the Working Group. 8.2.2 Without limiting any other obligation under this Agreement, where specific problems arise in relation to the implementation of any aspect of the Project both Parties undertake to cooperate fully in order to achieve a solution which promotes the purpose of this Agreement. 8.3 Management 8.3.1 The Parties acknowledge that for the purpose of defining responsibility in the implementation of the Project two separate but related lines of activity must be undertaken. These are Project Management and Contract Management. (a) Project Management is the joint responsibility of the Parties working through the Project Directors and the Working Group. It is an over-arching function which involves the coordination, forward planning and review of all elements of the Project including funding, development of a master plan and timetable, securing statutory approvals, public relations, identification of the needs of the Parties and resolution of any differences or inconsistencies between the needs of each Party. When the Project reaches the construction and the subsequent operational stage the dominant Project Management function is the ongoing review of progress. (b) Contract Management is the responsibility of the Coordinating State. It involves the management of the interface between the Parties and the contractor(s) for the performance of any work in implementing the Project and includes the day to day administration of contracts in accordance with any risk management strategy which the Parties agree to apply. 8.3.2 In order to implement the Project: (a) NSW may use the officers and resources of NSW Public Works or other Government Agency and may authorise any person including any Project Manager appointed under this Agreement to act on its behalf; and (b) Queensland may use the officers and resources of the Queensland Department of Environment and Heritage or other Government Agency and may authorise any person including any Project Manager appointed under this Agreement to act on its behalf. 8.4 Project Directors 8.4.1 Each Party will appoint a Project Director whose primary function is the representation and promotion of the respective Party's interests. 8.4.2 The Project Directors shall be members of the Working Group. 8.4.3 Details of the Project Directors' responsibilities are set out in Schedule 3. 8.5 Working Group 8.5.1 The Working Group shall provide a forum for liaison between the Parties and shall be responsible for implementation of the Project on behalf of the Parties including: (a) strategic action planning (including risk management); (b) financial control; (c) policy setting; and (d) review at State Government level including review of project parameters. 8.5.2 The Working Group shall: (a) report to the Ministerial Council through the Project Directors; (b) promote close liaison and cooperation between the Parties; and (c) provide guidance to the Coordinating State on strategic planning aspects of the Project which impact on contract development or management (an example of such a strategic planning aspect would be whether to place sand at a particular location at a particular time). 8.5.3 Decisions of the Working Group for the purpose of this Agreement, including decisions or determinations pursuant to clause 17.2, shall be by majority provided that such majority includes both Project Directors. 8.6 Coordinating State 8.6.1 One of the Parties shall be the Coordinating State which shall be the representative of both Parties for the purpose of implementing any aspect of the Project which is to be performed by way of contracts entered into by the Parties as Joint Principals. 8.6.2 Subject to this Agreement NSW shall be the Coordinating State. 8.6.3 The Coordinating State shall have the powers and functions expressly conferred by this Agreement and such other ancillary and incidental powers and functions as are necessary for the effective implementation of the Project but excluding the power to execute any contract on behalf of the Reviewing State unless expressly authorised in writing by the Reviewing State to do so. 8.6.4 The Coordinating State shall have the following functions for the purpose of managing the investigation, design, construction, commissioning, operation, maintenance and replacement from time to time of the System: (a) environmental impact assessment; (b) developing contracts; (c) the tender process; (d) the development of designs, including benchmark designs for the System; (e) technical issues; (f) monitoring and auditing in accordance with clause 8.10.1; (g) the engagement of consultants; (h) Contract Management; (i) financial reporting, scheduling reporting, services for the Working Group, public information and administration; (j) entering into contracts in its own name as