Whyalla Steel Works Act 1958 (SA)

South Australia Whyalla Steel Works Act 1958 An Act to approve and ratify an Indenture made between the State of South Australia of the one part and The Broken Hill Proprietary Company Limited of the other part relating to the establishment of a steel works in South Australia, to ratify a Deed amending the Indenture and to provide for carrying the provisions of the Indenture into effect and for other purposes. Contents 1 Short title 3 Interpretation 3A Charge on property 3B Charge declared to be a statutory interest 3C Provision of reports and information etc 4 Validation of Indenture and 2000 Deed of Amendment 5 Performance of Indenture 6 Variation of Indenture 7 Liability for certain pollution 7B Special provisions relating to certain land (clause 26A of the Indenture) 8 Legal proceedings 9 Repeal of Private Act, sections 10, 12, 15, 26, 11 (part) 10 Application of Act No 309, sections 6, 23, 26, 32, 34, 44–58, 65 and 20 11 Charges on Company's Tramways and jetties 12 Vesting of Company's statutory rights and obligations in assignee 13 References to shares listed on a stock exchange 14 Interpretation 15 Company granted environmental authorisation under Environment Protection Act 1993 16 Revocation of other environmental authorisations 17 Period of operation of environmental exemptions 18 Minister to perform functions under Development Act 1993 19 Making of environment protection policies that affect Company operations or developments 20 Commissioner may revise Schedule 3 following variation of environmental authorisation Schedule 1—The original Indenture Schedule 2—The 2000 Deed of Amendment Schedule 3—Environmental authorisation under Part 6 of the Environment Protection Act 1993 Consolidated Indenture Legislative history The Parliament of South Australia enacts as follows: 1—Short title This Act may be cited as the Whyalla Steel Works Act 1958. 3—Interpretation In this Act unless the context otherwise requires: BHP means The Broken Hill Proprietary Company Limited; the Company means BHP and includes its successors and assigns; the 2000 Deed of Amendment means the deed set out in Schedule 2; the Indenture means the Indenture set out in Schedule 1, as amended from time to time; the prescribed day means the day on which the rights and obligations of the Company under the Indenture and the Indenture under the Broken Hill Proprietary Company's Indenture Act 1937 first become rights and obligations of a person that is not a related body corporate (within the meaning of the Corporations Law) of BHP. 3A—Charge on property (1) If any amount is owed by the Company to the Crown or an agency or instrumentality of the Crown, all property of the Company is, by operation of this section, subject to a first ranking charge securing payment of the amount so owed. Note— This will apply to all present and after-acquired property of the Company. (2) Subsection (1) applies to— (a) any amount owed by the Company on or after the commencement of this section (regardless of whether the amount first became owing before or after the commencement of this section); and (b) property within the State and outside the State to the full extent of the extraterritorial legislative capacity of the Parliament. (3) If an amount referred to in subsection (1) remains unpaid on the prescribed day, the following provisions apply: (a) the charge referred to in that subsection is, on and after the prescribed day, presently enforceable by the Minister (and the Minister is not required to make any demand for payment or take any other steps before proceeding to enforce the charge); (b) the charge may be immediately enforced by the Minister by taking any 1 or more of the following actions: (i) entry into possession of, and control of, real and personal property of the Company; (ii) sale of any real or personal property referred to in subparagraph (i) (in such manner as the Minister thinks fit); (iii) the appointment of a receiver or of a receiver and manager; (iv) any other lawful method of enforcement. (4) A person appointed as a receiver, or as a receiver and manager, under subsection (3)(b), has all the powers of a receiver under the Corporations Act 2001 of the Commonwealth. (5) This section has effect— (a) notwithstanding any provision of the Indenture or the Indenture under the Broken Hill Proprietary Company's Indenture Act 1937; and (b) notwithstanding the provisions of the Real Property Act 1886; and (c) notwithstanding any other Act or law (including an Act or law providing for recovery of the amount owed but in such a case powers to recover the amount under that Act or law will apply in addition to the powers under this Act). (6) Nothing in this section derogates from a charge on property created— (a) pursuant to the Indenture and section 85 of the Mining Act 1971; or (b) pursuant to section 18C of the South Australian Water Corporation Act 1994. (7) Section 8(1)(b) does not apply to any dispute or difference between the State and the Company arising out of or in connection with the operation of this section. (8) In this section— prescribed day, in relation to an amount owed by the Company to the Crown or an agency or instrumentality of the Crown, means— (a) in the case of an amount that has, on the commencement of this section, been owing for more than 30 days—the day on which this section commences; or (b) in any other case—the day occurring 30 days after the day on which the amount first became owing. 3B—Charge declared to be a statutory interest A charge of a kind created pursuant to section 3A is declared to be a statutory interest to which section 73(2) of the Personal Property Securities Act 2009 of the Commonwealth applies. 3C—Provision of reports and information etc (1) The Company must, within 7 days (or such longer period as the Minister may allow) after receiving the auditor's report in relation to the Company's financial report for a financial year (as required under the Corporations Act 2001 of the Commonwealth), provide the Minister with a copy of the financial report and auditor's report. (2) The Minister may, by written notice given to the Company, require the Company to provide documents or information of a kind specified in the notice within 14 days after the date on which the notice was given. (3) For the avoidance of doubt, a notice under subsection (2) may require the provision of documents or information that— (a) were created, or relate to, matters occurring before or after the commencement of this section; or (b) were created, or are located, within or outside the State. (4) The Company must notify the Minister, in writing, as soon as practicable after becoming aware of any of the following events (as specified in any guidelines issued under subsection (5)): (a) an unplanned significant disruption of relevant Company works or facilities; (b) a planned significant disruption of relevant Company works or facilities if the planned significant disruption is to be, or becomes, for a period greater than 2 days; (c) a risk (not being trivial or insubstantial) that a significant disruption of relevant Company works or facilities may occur. (5) The Minister may issue guidelines to the Company that specify the kinds of events that will constitute an unplanned or planned significant disruption, or a risk of a significant disruption, of relevant Company works or facilities for the purposes of subsection (4). (6) The Minister may, by written notice given to the Company, require the Company to provide information of a kind specified in the notice in relation to an event specified in subsection (4) within 14 days after the date on which the notice was given. (7) The Company must, at the written request of the Minister, facilitate access to relevant Company works or facilities (within 30 days after the giving of the notice) by any persons designated by the Minister for the purpose of— (a) inspecting such works and facilities; and (b) reporting to the Minister in relation to— (i) the operation and condition of such works and facilities (including any plant, equipment or other thing at such works and facilities); and (ii) any other matter arising from the inspection. (8) Any persons designated by the Minister for the purpose of an inspection under subsection (7) may, for the purposes of carrying out the inspection, require an employee or agent of the Company to— (a) open or facilitate access to any place or thing at the relevant Company works or facilities; or (b) operate any plant, equipment or thing at the relevant Company works or facilities; or (c) answer any questions. (9) If the Company, or an employee or agent of the Company, refuses or fails to comply with a provision of, or requirement under, this section, the Company is guilty of an offence. Maximum penalty: $1 000 000. (10) A person must not make a statement that is false or misleading in a material particular (whether by reason of the inclusion or omission of any particular) in any document, information or answer given under this section. Maximum penalty: $1 000 000 or imprisonment for 2 years. (11) If a person is required to provide documents or information, or to answer a question, under this section and the documents, information or answer would tend to incriminate the person of an offence, the person must nevertheless provide the documents, information or answer but, if the person is a natural person, the documents, information or answer so provided will not be admissible in evidence against the person in proceedings for an offence (other than an offence relating to the making of a false or misleading statement). (12) Information obtained under this section is not liable to disclosure under the Freedom of Information Act 1991. (13) In this section— relevant Company works or facilities has the same meaning as in section 14. 4—Validation of Indenture and 2000 Deed of Amendment (1) The Indenture set out in Schedule 1 and the provisions of the 2000 Deed of Amendment that amend or relate to that Indenture are ratified and approved and shall notwithstanding any other Act or law be carried out and take effect as though they had been expressly enacted in this Act. (2) Notwithstanding any other Act or law and without in any way limiting the generality of the effect of subsection (1) of this section— (a) the Minister of Works; and (b) the Electricity Trust of South Australia; and (c) the South Australian Housing Trust; and (d) the Commissioner of Highways, are hereby empowered and required to perform the functions and carry out the obligations which are under this Act or the Indenture to be performed or carried out by such body. 5—Performance of Indenture The Governor and Ministers for the time being in office shall take all necessary measures to ensure the full performance of the duties and obligations imposed on the State by the Indenture. 6—Variation of Indenture (1) The parties to the Indenture may by agreement in writing vary the terms of the Indenture so far as may be necessary for the purpose of more effectively carrying out the intention of this Act and of the Indenture but for no other purpose. (2) The Minister of Works shall cause a copy of every such agreement to be laid before each House of Parliament. (3) Every such agreement— (a) shall come into operation on the day after the day on which it has lain before both Houses of Parliament for seven sitting days or such later day as is specified in the agreement; and (b) upon coming into operation shall have effect as if the terms thereof had been enacted in an Act of Parliament. 7—Liability for certain pollution (1) The repeal of the section substituted by this section does not affect the exemption afforded to BHP or to any subsidiary of BHP by the repealed section in respect of pollution occurring before the prescribed day (and, to remove any doubt, section 16 of the Acts Interpretation Act 1915 applies in relation to that repeal). (2) Despite any Act or law to the contrary, no assignee under the Indenture has any liability for pollution that occurred before the prescribed day and that falls within the exemption afforded to BHP or a subsidiary by the repealed section. 7B—Special provisions relating to certain land (clause 26A of the Indenture) (1) The Registrar-General must— (a) on application by the Minister and on being furnished with such documents as the Registrar-General may require, register the Minister, or some other agency or instrumentality of the Crown nominated by the Minister, as the proprietor of an estate in fee simple of land vested in the State by virtue of clause 26A(8) of the Indenture; and (b) on application by the Company, note the statutory easement arising under clause 26A(10) of the Indenture on each certificate of title affected by the easement. (2) An application under subsection (1)(b)— (a) need not include a plan of the easement; but (b) must include a schedule of all certificates of title affected by the easement. (3) The owner of land affected by the statutory easement arising under clause 26A(10) may, by agreement with the Company, execute an instrument— (a) conferring an easement that operates to the exclusion of the statutory easement so far as it affects that land; or (b) discharging the land from the statutory easement, and, on registration of the instrument by the Registrar-General, the instrument has effect according to its terms. 8—Legal proceedings (1) Notwithstanding anything to the contrary in any other Act or law the State of South Australia may— (a) sue and be sued and be a party to any legal proceedings to enforce any of the provisions of or obligations created by this Act or the Indenture or any agreed variation thereof, or in any way arising out of this Act or the Indenture or any agreed variation thereof or out of any of the rights duties and obligations thereby created; (b) agree with the Company to submit any dispute or difference between the State and the Company arising out of or in connection with the Indenture or any agreed variation thereof or as to the construction of the Indenture or any such variation or as to any rights duties or liabilities thereunder or as to any matter to be agreed between the State and the Company thereunder to the award order and final determination of an arbitrator or arbitrators under the provisions of the laws relating to arbitration for the time being in force in the State; and (c) agree to abide and be bound by such award order and final determination. (2) In any action or arbitration to which the State of South Australia is a party pursuant to subsection (1) of this section the rights of the parties shall as nearly as possible be the same and judgment may be given or an award may be made and costs awarded on either side as in an action or arbitration between subject and subject and the Treasurer shall satisfy any award or judgment for the payment of money made or given against the State in any such proceedings or arbitration. 9—Repeal of Private Act, sections 10, 12, 15, 26, 11 (part) (1) Sections 10, 12, 15, 26 and the second paragraph of section 11 of The Broken Hill Proprietary Company Limited's Hummock Hill to Iron Knob Tramways and Jetties Act 1900 are hereby repealed. (2) In section 8 of the Hummock Hill to Iron Knob Tramway Extension Act 1927 the figures 10, 12, 15 and 26 shall be deleted and notwithstanding anything therein contained the provisions of the second paragraph of section 11 of the Principal Act therein referred to shall not apply to the tramways extension therein defined. 10—Application of Act No 309, sections 6, 23, 26, 32, 34, 44–58, 65 and 20 (1) Sections 6, 23, 26, 32, 34, 44 to 58 (inclusive) and 65 of the General Tramways Act 1884 shall not apply to the Company. (2) In section 20 of the General Tramways Act 1884 the words "with the consent of the Governor" shall not apply to the Company. 11—Charges on Company's Tramways and jetties Notwithstanding anything in any other Act or law the Company may charge for the carriage of passengers and goods on any of its tramways charges at rates not exceeding those charged from time to time by the South Australian Railways Commissioner for the same distances and, in the case of goods, for goods of a similar class, and may charge for the use of any of its jetties charges not exceeding those charged from time to time by The South Australian Harbors Board. 12—Vesting of Company's statutory rights and obligations in assignee (1) If at any time the rights and obligations of the Company under the Indenture are duly assigned to and assumed by an assignee in accordance with the Indenture— (a) all other rights and obligations of the Company under this Act vest at the same time in the assignee; and (b) subject to subsection (2), the assignor and the State are released from any future obligations to each other under this Act. (2) If the assignee is a subsidiary (within the meaning of the Corporations Law) of BHP, subsection (1)(b) does not operate to release BHP from its obligations to the State under this Act unless and until the assignee ceases to be a subsidiary of BHP. (3) The Minister must, within 14 days of an assignment of the Company's rights and obligations under the Indenture taking effect, cause notice of the name and registered address of the assignee to be published in the Gazette (but failure to comply with this subsection has no prejudicial effect on that assignment and assumption). 13—References to shares listed on a stock exchange A reference in the Indenture (or in the 2000 Deed of Amendment) to shares listed (or being listed) on a stock exchange will be taken to include a reference to shares quoted (or being quoted) on a prescribed financial market within the meaning of section 9 of the Corporations Act 2001 of the Commonwealth. 14—Interpretation In this section and any of the following sections— development has the same meaning as in the Development Act 1993; draft environment protection policy has the same meaning as in Part 5 Division 1 of the Environment Protection Act 1993; environmental authorisation means a document consisting of 1 or more of the following (forms of authorisation): (a) a licence within the meaning of the Environment Protection Act 1993; (b) a works approval within the meaning of the Environment Protection Act 1993; (c) an exemption within the meaning of the Environment Protection Act 1993; environmental exemption means an exemption within the meaning of the Environment Protection Act 1993; relevant Company development means a development of the Company at, or associated with, relevant Company works or facilities; relevant Company operations means operations of the Company at, or associated with, relevant Company works or facilities; relevant Company works or facilities means— (a) the Company's steel works at Whyalla, including its associated rolling mills and other works at Whyalla (the steel works); or (b) the Company's mining works that produce materials for use in the steel works and for export (the mining works); or (c) the Company's transport, storage or trans-shipping facilities associated with the Company's operations at the steel works or mining works. 15—Company granted environmental authorisation under Environment Protection Act 1993 (1) For the purposes of any Act or law, the document set out in Schedule 3 (and if it is varied under this section, the document as so varied) will be taken to be an environmental authorisation granted to the Company under Part 6 of the Environment Protection Act 1993. (2) The Minister may vary the environmental authorisation, by written notice to the Company, including (without limitation)— (a) by adding a further form of authorisation; (b) by extending the operations or places to which the environmental authorisation relates. (3) A variation of the environmental authorisation— (a) must relate to relevant Company operations or developments, or proposed relevant Company operations or developments; and (b) may only be made after consultation between the Minister and the Company. (4) The Environment Protection Authority may not vary the environmental authorisation. (5) If the environmental authorisation is varied, the Minister must cause a copy of the variation and the environmental authorisation as varied to be laid before both Houses of Parliament. (6) The following provisions of the Environment Protection Act 1993 do not apply to the environmental authorisation: section 43 section 45(1) to (4) (inclusive) section 49 section 55 section 106(1)(a) and (c). (7) The environmental authorisation expires on the 20th anniversary of the date of commencement of this section. (8) It is the intention of Parliament that the State will not initiate any legislative amendment of the environmental authorisation without first engaging in consultations with the Company. (9) In any proceedings, an apparently genuine document purporting to set out the contents of the environmental authorisation as in force between specified dates, and to be certified as such by the Minister, will be accepted as proof of the contents of the environmental authorisation as in force between those dates, in the absence of proof to the contrary. 16—Revocation of other environmental authorisations (1) The Minister may, by written notice to the Environment Protection Authority and the Company, revoke an environmental authorisation that— (a) has been granted to the Company by the Environment Protection Authority; and (b) relates to relevant Company operations or developments, or proposed relevant Company operations or developments. (2) An environmental authorisation may only be revoked by the Minister under this section after consultation between the Minister and the Company. 17—Period of operation of environmental exemptions (1) Despite the provisions of the Environment Protection Act 1993, an environmental exemption may be granted or renewed by the Environment Protection Authority in relation to relevant Company operations or developments, or proposed relevant Company operations or developments, for such period as the Authority thinks fit. (2) Despite the provisions of the Environment Protection Act 1993, an environmental exemption that forms part of the environmental authorisation as in force from time to time under section 15 may operate for such period as is specified in the environmental authorisation. 18—Minister to perform functions under Development Act 1993 (1) In the application of the Development Act 1993 to a proposed relevant Company development, a reference in the Development Act 1993 to the Environment Protection Authority is to be read as a reference to the Minister. (2) In the performance of a function that the Minister has under the Development Act 1993 by virtue of the operation of this section, the Minister must— (a) consult with the Company; and (b) take into account section 15 and the purpose and effect of the environmental authorisation, as in force from time to time, under that section; and (c) not derogate from the environmental authorisation. (3) The Minister may delegate a function that the Minister has under the Development Act 1993 by virtue of the operation of this section to another Minister. (4) A delegation under this section— (a) may be by instrument in writing; and (b) may be absolute or conditional; and (c) does not derogate from the power of the Minister to act in any matter; and (d) is revocable at will. 19—Making of environment protection policies that affect Company operations or developments (1) This section applies to a draft environment protection policy that would, if approved by the Minister under section 28(11) of the Environment Protection Act 1993, affect relevant Company operations or developments, or proposed relevant Company operations or developments. (2) In the exercise of the Minister's discretion under section 28(11) of the Environment Protection Act 1993 in relation to a draft environment protection policy to which this section applies, the Minister must— (a) consult with the Company; and (b) take into account section 15 and the purpose and effect of the environmental authorisation, as in force from time to time, under that section; and (c) not derogate from the environmental authorisation. (3) In this section— the Minister means the Minister having the administration of the Environment Protection Act 1993. 20—Commissioner may revise Schedule 3 following variation of environmental authorisation (1) The Commissioner may, on the written request of the Minister, revise Schedule 3 to reflect a variation of the environmental authorisation set out in that Schedule made in accordance with this Act. (2) The Commissioner may, in revising Schedule 3— (a) substitute the environmental authorisation as varied for the environmental authorisation set out in the Schedule; and (b) make such other alterations as he or she thinks necessary to reflect a variation. (3) The Commissioner may, in respect of a revision under this section— (a) rely on such information as the Commissioner thinks fit; and (b) include (whether in the legislative history or otherwise) such notes or other information as the Commissioner thinks fit in respect of the revision. (4) A revision of Schedule 3 under this section will, for the purposes of the Legislation Revision and Publication Act 2002, be taken to be legislation revised under that Act. (5) This section applies in relation to a variation whether made before or after the commencement of this section. (6) This section is in addition to, and does not derogate from, the provisions of the Legislation Revision and Publication Act 2002. (7) In this section— Commissioner means the Commissioner for Legislation Revision and Publication under the Legislation Revision and Publication Act 2002. Schedule 1—The original Indenture THIS INDENTURE made the fourth day of September 1958 BETWEEN the State of South Australia (hereinafter referred to as "the State") of the one part and THE BROKEN HILL PROPRIETARY COMPANY LIMITED a company incorporated in the State of Victoria and having its registered office in South Australia at Number 28 Franklin Street Adelaide (hereinafter referred to as "the Company" which expression shall include the successors and assigns of The Broken Hill Proprietary Company Limited) of the other part: WHEREAS the establishment of steel works in South Australia would greatly increase the economic strength of the State and provide opportunities for the employment and advancement of its citizens and be instrumental in influencing other industries which substantially depend on the products of the Company in their processes of manufacture to establish operations at Whyalla: AND WHEREAS the State has requested the Company to extend its undertaking at Whyalla by the establishment of steel-making plant, rolling mills and other works associated therewith or ancillary or incidental thereto, and the Company is willing to do so upon satisfactory arrangements for that purpose being made: AND WHEREAS for the proper conduct of its operations it is necessary that the Company should be assured of supplies of raw materials, and security of tenure of certain lands and mineral and other leases, and be granted certain powers and rights: NOW THIS INDENTURE WITNESSETH that the parties hereto covenant and agree with each other as follows: 1. Ratification and operation of Indenture (1) The clauses of this Indenture other than this clause shall not come into operation unless the Parliament of the State passes a Bill to ratify this Indenture and unless the Act resulting from the passage of such a Bill comes into operation before the 1st day of January 1959. (2) If such a Bill is so passed this Indenture shall upon the day when the Bill becomes operative as an Act come into operation and be binding on the parties hereto. (3) Without in any way derogating from any right or remedy of the Company in respect of a breach of this Indenture if the Parliament of the State should at any time alter or amend the Act passed to ratify this Indenture or should enact legislation which modifies the rights of the Company under such Act or under this Indenture the Company shall have the right to terminate this Indenture. 2. Interpretation In this Indenture, unless the context otherwise requires— "the Indenture of 1937" means the Indenture set out in the schedule to the Broken Hill Proprietary Company's Indenture Act, 1937: "the Middleback Range area" means the area shown on the plan set out in the Appendix A hereto being an area of 242 square miles or thereabouts in the Counties of Hore-Ruthven, Manchester and York, bounded as follows: Commencing at a point latitude 32 degrees, 41 minutes south and longitude 137 degrees, 5 minutes east near White Dam in the county of Hore-Ruthven, thence 5 miles, 60 chains east, thence 42 miles south, thence 5 miles, 60 chains west, thence north to the point of commencement; all bearings true: "steel works" means steel-making plant, rolling mills and other works associated therewith or ancillary or incidental thereto at Whyalla: "reserved area" means an area which by or pursuant to a proclamation made under the Mining Act, 1930–1955, or any subsequent amendment or re-enactment thereof is reserved from the operation of all or any of the provisions of that Act: "subsidiary company" or "subsidiary" means a company in which the Company holds directly or indirectly at least one half of the issued share capital: "associated company" means any company carrying on operations at or near Whyalla which substantially depends on the products of the Company for its trading or manufacturing processes: "the ratification of this Indenture" means the day upon which this Indenture comes into operation. 3. Construction of works by the Company (1) At a date not later than the 1st day of January 1960 the Company will commence the construction of steel works at Whyalla and subject to sub-clause (5) of this clause will by the 31st day of December 1970 expend on such construction the sum of £30 million in the aggregate. (2) In computing such expenditure there shall be taken into account all moneys expended by the Company after the 18th day of February 1958 in connection with such construction. (3) Notwithstanding anything contained in subclause (2) of this clause expenditure by the Company on the construction of a beneficiation and treatment plant for jaspilite and other iron bearing substances shall not be taken into account in computing the expenditure of the Company on steel works. (4) The Company will, if required by the State, as early as practicable after the end of each financial year until the sum of £30 million has been expended by the Company on the construction of steel works supply to the State a summary audited by the Company's auditors of its expenditure on steel works during such financial year. (5) If the Company should at any time suffer any delay in the construction of steel works by reason of or arising from any cause beyond the reasonable control of the Company, the date for the completion of the expenditure of £30 million on such construction will be postponed after the said 31st day of December 1970 by a period equal to the period of such delay and any further delay consequential thereon. (6) Whenever any such delay or further delay consequential thereon occurs the Company will within a reasonable time report it in writing to the State. 4. Prospecting rights of Company (1) Notwithstanding the Proclamations made on the 15th day of March 1951 and the 17th day of February 1955 under paragraph (c) of section 6 of the Mining Act 1930–1951, the Company shall for a period of ten years after the ratification of this Indenture and during any period of extension as provided in subclause (2) of this clause, have within the Middleback Range area— (a) the sole and exclusive right to prospect for iron ore and iron bearing substances; and (b) a non-exclusive right to prospect for metal, minerals and natural substances other than iron ore or iron bearing substances. (2) The Company's rights under this clause will continue for a further period of ten years beyond the period referred to in subclause (1) of this clause unless they cease as provided by subclause (5) of this clause. (3) For the purpose of any such prospecting the Company may without payment enter and occupy any land within the Middleback Range area and may on any such land erect buildings and structures, drill and dig holes, and carry out such other work as the Company deems necessary but the Company shall no