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This is a Bill, not an Act. For current law, see the Acts databases.


CLEAN COAL TECHNOLOGY SPECIAL AGREEMENT BILL 2007

          Queensland



Clean Coal Technology
Special Agreement Bill 2007

 


 

 

Queensland Clean Coal Technology Special Agreement Bill 2007 Contents Page Part 1 Preliminary 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2 Object of Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 3 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Part 2 Clean Coal Council 4 Establishment of council. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 5 Membership of council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 6 Functions of council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 7 Reporting to the Minister about funding requests . . . . . . . . . . . . 6 8 Conduct of council's business . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 9 Administrative support for council. . . . . . . . . . . . . . . . . . . . . . . . . 6 10 Delegation by Minister . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Part 3 Queensland Clean Coal Agreement 11 Premier may make agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Schedule Queensland Clean Coal Agreement . . . . . . . . . . . . . . . . . . . . 8

 


 

 

2007 A Bill for An Act to establish the Clean Coal Council and to authorise the Premier to enter into the Queensland Clean Coal Agreement

 


 

s1 4 s4 Clean Coal Technology Special Agreement Bill 2007 The Parliament of Queensland enacts-- 1 Part 1 Preliminary 2 1 Short title 3 This Act may be cited as the Clean Coal Technology Special 4 Agreement Act 2007. 5 2 Object of Act 6 The object of this Act is to accelerate the development, 7 demonstration and widespread implementation and use of 8 clean coal technology by encouraging collaborative 9 investment, by the State and the coal industry, in research, 10 development and demonstration. 11 3 Definitions 12 In this Act-- 13 ACALET means ACA Low Emissions Technologies Limited 14 ACN 123 147 240. 15 agreement means the agreement made under section 11. 16 council means the Clean Coal Council established under 17 section 4. 18 relevant project means a Queensland Clean Coal Technology 19 Project or National Clean Coal Technology Project under the 20 agreement. 21 Part 2 Clean Coal Council 22 4 Establishment of council 23 The Clean Coal Council is established. 24

 


 

s5 5 s6 Clean Coal Technology Special Agreement Bill 2007 5 Membership of council 1 (1) The council consists of at least 11 members made up of-- 2 (a) 1 person who is to be the chairperson of the council; and 3 (b) 5 representatives of the Government of Queensland; and 4 (c) 5 representatives of the Queensland black coal industry 5 who are nominated by ACALET; and 6 (d) other persons who the Minister is satisfied have relevant 7 experience in, or knowledge of, any aspect of clean coal 8 technology. 9 (2) Members of the council are to be appointed by the Minister by 10 gazette notice. 11 (3) Members of the council hold office on the conditions, 12 including the term of office, decided by the Minister. 13 (4) The Minister may change the conditions on which a member 14 of the council holds office. 15 6 Functions of council 16 The functions of the council are-- 17 (a) advising the Minister about priorities for funding in 18 Queensland for the development, demonstration and 19 widespread implementation and use of clean coal 20 technology, including the sourcing of public and private 21 funding; and 22 (b) assessing, and making recommendations to the Minister 23 about, which relevant projects should be funded under 24 the agreement, and the amount of funding that should be 25 provided; and 26 (c) considering intellectual property issues associated with 27 relevant projects; and 28 (d) reporting to the Minister under section 7 about requests 29 for funding, received by the council, for projects relating 30 to clean coal technology, including relevant projects; 31 and 32 (e) co-ordinating the State's involvement in international 33 research collaborations relating to clean coal 34

 


 

s7 6 s 10 Clean Coal Technology Special Agreement Bill 2007 technology, including the project that is, immediately 1 before the commencement of this section, known as 2 FutureGen; and 3 (f) if asked by the Minister in writing, advising the Minister 4 on other matters relevant to the development of clean 5 coal technology. 6 7 Reporting to the Minister about funding requests 7 The council must if asked by the Minister, and may on its own 8 initiative, report to the Minister about a request received by 9 the council for funding for a project relating to clean coal 10 technology, including a relevant project. 11 8 Conduct of council's business 12 (1) The council may conduct its business, including its meetings, 13 in the way it considers appropriate. 14 (2) However, the council must meet at least 3 times in a year. 15 9 Administrative support for council 16 The department may make administrative support services 17 available to the council to enable the council to perform its 18 functions. 19 10 Delegation by Minister 20 (1) The Minister may delegate the Minister's functions under this 21 part to another Minister. 22 (2) In this section-- 23 functions includes powers. 24

 


 

s 11 7 s 11 Clean Coal Technology Special Agreement Bill 2007 Part 3 Queensland Clean Coal 1 Agreement 2 11 Premier may make agreement 3 The Premier is authorised to make, for the State, an agreement 4 with ACALET substantially in the form set out in the 5 schedule. 6

 


 

8 Clean Coal Technology Special Agreement Bill 2007 Schedule Queensland Clean Coal 1 Agreement 2 section 11 3 Details 4 Date 5 Parties 6 Name ACA Low Emissions Technologies Limited ACN 7 123 147 240 8 ABN 90 123 147 240 9 Short form name ACALET 10 Notice details PO Box 9115 11 Deakin ACT 2600 12 13 Facsimile 02 6273 6060 14 Attention: Mark O'Neill, Executive Director 15 16 Name The State of Queensland 17 ABN 18 Short form name State 19 Notice details PO Box 15185 20 City East Qld 4002 21 22 Facsimile 07 3227 7433 23 Attention Director-General, Department of the 24 Premier and Cabinet 25

 


 

9 Clean Coal Technology Special Agreement Bill 2007 Schedule (continued) Background 1 A The purpose of this Deed is to give effect to the agreement between 2 ACALET and the State to work together on developing and 3 implementing Queensland Clean Coal Technology Projects that 4 have the potential to facilitate substantial reductions in greenhouse 5 gas emissions from the use of coal in Queensland and Australia, 6 and in the overseas markets for Queensland coal. 7 B The black coal mining industry has established a voluntary fund 8 which will be managed by ACALET, and which is commonly 9 known as the COAL21 Fund, to support research, development and 10 demonstration aimed at developing Clean Coal Technologies. 11 C Participating coal producers have agreed to pay a voluntary levy of 12 10 cents per tonne of saleable coal to the COAL21 Fund, 13 commencing with effect from 1 April 2007, increasing to 20 cents 14 per tonne with effect from 1 July 2007. ACALET has applied to the 15 Australian Taxation Office for a Class Ruling. The term of the levy 16 is indefinite, but, subject to clauses 2.5 and 2.6, it will be 17 maintained for a minimum of 10 years. 18 D ACALET will use its best endeavours to ensure that all Queensland 19 Coal Producers commit to paying the levy in respect of their 20 Queensland Production. 21 E ACALET intends to contribute to approved Queensland Clean Coal 22 Technology Projects or National Clean Coal Technology Projects, 23 an amount equivalent to the total amount of the voluntary levy 24 raised in respect of Queensland Production. It is estimated that this 25 will raise approximately $600 million over 10 years based on 26 estimates of future tonnages in Queensland. 27 F Terms used above have the meanings ascribed to them in this Deed. 28

 


 

10 Clean Coal Technology Special Agreement Bill 2007 Schedule (continued) Agreed terms 1 1. Defined terms & interpretation 2 1.1 Defined terms 3 In this Deed: 4 Business Day means: 5 (a) for receiving a notice under clause 5, a day that is not a 6 Saturday, Sunday, public holiday or bank holiday in the 7 place where the notice is received; and 8 (b) for all other purposes, a day that is not a Saturday, 9 Sunday, public holiday or bank holiday in Queensland, 10 Australia. 11 Business Hours means from 9.00am to 5.00pm on a Business 12 Day. 13 Carbon Tax means: 14 (a) any tax, impost, surcharge, levy or penalty, the 15 imposition of which, or the rate of which, is dependent 16 upon, or calculated by reference to or in relation to the 17 production or emission of Greenhouse Gas; and 18 (b) any emissions trading or other scheme which has the 19 purpose or effect of limiting or reducing by any means 20 whatsoever, including, without limitation, by: 21 (i) issue of capping permits in respect of; 22 (ii) imposing a tax, impost, surcharge, levy or penalty 23 upon; or 24 (iii) requiring payment in any form, whether to the 25 State, or to the Commonwealth of Australia or to 26 another person, for the right to undertake, or to 27 acquire the right to undertake, 28 the production or emission of Greenhouse Gas; and 29

 


 

11 Clean Coal Technology Special Agreement Bill 2007 Schedule (continued) (c) a levy, tax or other impost mentioned in clause 2.5(c) 1 which has the purpose or effect set out in clause 2.5 is 2 enacted as complementary legislation to any legislation 3 of the Commonwealth of Australia. 4 Class Ruling means the Class Ruling to be obtained from the 5 Australian Taxation Office by ACALET on behalf of 6 Contributors, which confirms that Contributors are entitled to 7 claim income tax deductions for their payments of the Levy to 8 ACALET, and that, to the extent that ACALET's expenditure 9 in any period includes R&D Expenditure, the Contributors 10 will be entitled to claim a deduction for 125% of their 11 payments to ACALET under section 73B(13) of the Income 12 Tax Assessment Act 1936. 13 Clean Coal Council means the council established under the 14 Clean Coal Technology Special Agreement Act 2007 (Qld). 15 Clean Coal Technologies means technologies that have 16 potential to facilitate substantial reduction of emissions of 17 Greenhouse Gas to the atmosphere from the use of coal. 18 Clean Coal Technology Project means a project that has as 19 its purpose either or both of, the conduct of research and 20 development associated with the demonstration of, and the 21 demonstration of, Clean Coal Technologies. 22 Contributors means entities which pay the Levy to 23 ACALET. 24 Corporations Act means the Corporations Act 2001 (Cth). 25 CS Energy Oxy-fuel Project means the project to 26 demonstrate a technology for capturing carbon dioxide to be 27 carried out at Callide A power station. 28 Greenhouse Gas means any or all of carbon dioxide, 29 methane, nitrous oxide, hydroflourocarbons, perflourocarbons 30 and sulphur hexafluoride. 31 Levy means the voluntary levy to be collected by ACALET 32 from coal producers in Australia as described in paragraph C 33 of the Background. 34 National Clean Coal Technology Projects means those 35 Clean Coal Technology Projects that form part of a national 36

 


 

12 Clean Coal Technology Special Agreement Bill 2007 Schedule (continued) portfolio of such projects which are identified through a 1 nationally agreed action plan endorsed by the State, and in 2 respect of which the State agrees that Queensland 3 Contribution may be used to fund those projects. 4 Premier means the Premier of the State of Queensland or 5 such other Minister of the State of Queensland designated in 6 writing by the Premier from time to time. 7 Project Funding Agreement means an agreement entered 8 into by ACALET, in accordance with clause 3.3, with the 9 parties involved in, or the proponents of, a Clean Coal 10 Technology Project, which sets out the terms on which 11 ACALET will fund the project, whether by direct expenditure 12 on the acquisition of goods or services which are necessary 13 for the project, or by the making of payments to the 14 proponents of the project, or the parties involved with the 15 project or a company or entity established for the purpose of 16 carrying on the project, whether that expenditure or payment 17 occurs with or without consideration on the part of the 18 proponent of the project, or any other person. 19 Queensland Coal Producer means a person who is liable to 20 pay royalty in respect of coal under section 320 of the Mineral 21 Resources Act 1989, Queensland. 22 Queensland Contribution means that part of the Levy 23 (Queensland Levy Proceeds) which is calculated and paid by 24 Contributors to ACALET in relation to Queensland 25 Production, as advised by Contributors in accordance with 26 clause 2.2, net of ACALET reasonable administration costs 27 associated with that part of the Levy, the aggregate of which 28 administration costs over the first ten years of the term of this 29 Deed must not exceed 2% of the aggregate Queensland Levy 30 Proceeds over that period, unless otherwise agreed in writing 31 by the parties. 32 Queensland Clean Coal Technology Projects means Clean 33 Coal Technology Projects that are, or are to be, physically 34 based in Queensland. 35 Queensland Production means the amount of saleable coal 36 that is produced in Queensland in a period. 37

 


 

13 Clean Coal Technology Special Agreement Bill 2007 Schedule (continued) R&D Expenditure means `research and development 1 expenditure', as that term is defined in section 73B(1) of the 2 Income Tax Assessment Act 1936. 3 Tax Exemption Ruling means the private ruling dated 18 4 May 2007 which was received by ACALET from the 5 Australian Taxation Office which confirmed that ACALET is 6 exempt from income tax for the year of income ended 30 June 7 2007 until the year of income ended 30 June 2010, or any 8 subsequent private ruling which may be issued dealing with 9 the same subject matter for future years. 10 1.2 Interpretation 11 In this Deed, except where the context otherwise requires: 12 (a) the singular includes the plural and vice versa, and a 13 gender includes other genders; 14 (b) another grammatical form of a defined word or 15 expression has a corresponding meaning; 16 (c) a reference to a clause, paragraph, schedule or annexure 17 is to a clause or paragraph of, or schedule or annexure 18 to, this Deed, and a reference to this Deed includes any 19 schedule or annexure; 20 (d) a reference to a document or instrument includes the 21 document or instrument as novated, altered, 22 supplemented or replaced from time to time; 23 (e) a reference to A$, $A, dollar or $ is to Australian 24 currency; 25 (f) a reference to time is to Queensland, Australia time; 26 (g) a reference to a year is to a 12-month period ended 30 27 June; 28 (h) a reference to a party is to a party to this Deed, and a 29 reference to a party to a document includes the party's 30 executors, administrators, successors and permitted 31 assigns and substitutes; 32

 


 

14 Clean Coal Technology Special Agreement Bill 2007 Schedule (continued) (i) a reference to a person includes a natural person, 1 partnership, body corporate, association, governmental 2 or local authority or agency or other entity; 3 (j) a reference to a statute, ordinance, code or other law 4 includes regulations and other instruments under it and 5 consolidations, amendments, re-enactments or 6 replacements of any of them; 7 (k) the meaning of general words is not limited by specific 8 examples introduced by including, for example or 9 similar expressions; 10 (l) a rule of construction does not apply to the disadvantage 11 of a party because the party was responsible for the 12 preparation of this Deed or any part of it; and 13 (m) if a day on or by which an obligation must be performed 14 or an event must occur is not a Business Day, the 15 obligation must be performed or the event must occur on 16 or by the next Business Day. 17 1.3 Headings 18 Headings are for ease of reference only and do not affect 19 interpretation. 20 2. Queensland Clean Coal Technology Projects 21 2.1 Expenditure in Queensland 22 ACALET agrees that the Queensland Contribution will be 23 spent on Queensland Clean Coal Technology Projects or on 24 National Clean Coal Technology Projects approved or 25 determined by the Premier under clause 3.2, in accordance 26 with the provisions of this Deed, and will not be spent or used 27 for any other purpose. 28

 


 

15 Clean Coal Technology Special Agreement Bill 2007 Schedule (continued) 2.2 Allocation of Levy 1 ACALET will require Contributors to provide, each time they 2 make a payment of Levy to ACALET, a record showing how 3 much, if any, of the Levy which is paid relates to Queensland 4 Production. 5 2.3 Commitment of funds 6 ACALET will enter into Project Funding Agreements with 7 proponents of Queensland Clean Coal Technology Projects or 8 National Clean Coal Technology Projects, in accordance with 9 clause 3.3. 10 2.4 Rate of expenditure 11 (a) ACALET will endeavour to procure that, to the extent to 12 which it is practical, the amount of Queensland 13 Contribution which is collected by ACALET in each 14 year will be expended on Queensland Clean Coal 15 Technology Projects or National Clean Coal Technology 16 Projects in that year in accordance with Project Funding 17 Agreements relating to those projects. 18 (b) If, in any year, a greater or lesser amount of Queensland 19 Contribution is collected than is expended in that year 20 on Queensland Clean Coal Technology Projects or 21 National Clean Coal Technology Projects, the 22 difference, which will be added to or subtracted from 23 any cumulative difference from the previous years, will 24 be carried over to the following year and added to, or 25 subtracted from, as the case may be, the amount which 26 ACALET will endeavour to expend on Queensland 27 Clean Coal Technology Projects or National Clean Coal 28 Technology Projects in the subsequent year in 29 accordance with clause 2.4(a). 30 2.5 No increase in coal royalty rates 31 Despite any other provision of this Deed, the State agrees that 32 this Deed will be terminated, and ACALET will have no 33

 


 

16 Clean Coal Technology Special Agreement Bill 2007 Schedule (continued) further obligations under this Deed, if any of the following 1 occurs: 2 (a) the rate of coal royalties in Queensland is increased 3 above the rate applying at the date of this Deed; 4 (b) the basis of application or method of calculation of coal 5 royalties in Queensland is changed from that applying at 6 the date of this Deed, so as to have the effect of 7 increasing the aggregate amount of coal royalty paid by 8 Queensland Coal Producers in relation to their 9 Queensland Production; or 10 (c) the State introduces or enforces any new levy, tax, or 11 other impost on Queensland Coal Producers, whether 12 payable to the State or otherwise, unless it is enacted as 13 complementary legislation to any legislation of the 14 Commonwealth of Australia; 15 with the purpose, whether directly or indirectly, or effect of 16 funding the development or demonstration of technology 17 which will assist in reducing the production or emission of 18 Greenhouse Gas from the use of coal. The parties 19 acknowledge that the Project Funding Agreements then in 20 existence will continue to operate in accordance with their 21 terms not withstanding termination of this Deed. 22 2.6 Introduction of Carbon Tax 23 The parties agree that if a Carbon Tax is introduced, either by 24 the Commonwealth of Australia or by the State, then: 25 (a) the operation of the Levy will be reviewed by the parties 26 to ensure that the purpose of this Deed set out in 27 paragraph (a) of the Background continues to be met; 28 (b) unless otherwise agreed in writing by the parties, any 29 such review will not affect ACALET's obligations under 30 this Deed, including its obligations under clauses 2.1 31 and 3.5, nor its obligations under the terms of any 32 Project Funding Agreement to which it is a party at that 33 time; and 34

 


 

17 Clean Coal Technology Special Agreement Bill 2007 Schedule (continued) (c) the parties will use reasonable endeavours to have the 1 Queensland Contribution paid to ACALET by 2 Contributors which is expended by ACALET under 3 those Project Funding Agreements, recognised in 4 relation to, and as an offset against those Contributors' 5 obligations, if any, under, that Carbon Tax, regardless of 6 whether the contributions have been made before or 7 after the introduction of the Carbon Tax. 8 2.7 Commitment to payment of Levy 9 ACALET will use its best endeavours to ensure that all 10 Queensland Coal Producers commit to paying the Levy. 11 3. Selection of Projects 12 3.1 Advice of Clean Coal Council 13 It is acknowledged that the Clean Coal Council will be 14 making recommendations to the Premier on which 15 Queensland Clean Coal Technology Projects or National 16 Clean Coal Technology Projects should be funded and the 17 amount of funding which should be provided by ACALET. 18 3.2 Decisions by Premier 19 (a) The Premier, having received a recommendation from 20 the Clean Coal Council, will advise ACALET if the 21 recommendation is accepted or, if it is not acceptable to 22 the Premier, what further action (if any) is required of 23 either the Clean Coal Council or ACALET. 24 (b) If the Premier wishes to consider another Queensland 25 Clean Coal Technology Project or National Clean Coal 26 Technology Project then the Premier will refer it to the 27 Clean Coal Council for its consideration, and the Clean 28 Coal Council must make a recommendation in relation 29

 


 

18 Clean Coal Technology Special Agreement Bill 2007 Schedule (continued) to that project within a timeframe which is nominated by 1 the Premier. 2 (c) If the Clean Coal Council fails to reach agreement or the 3 Premier rejects its recommendation in relation to a 4 particular Queensland Clean Coal Technology Project or 5 National Clean Coal Technology Project, the Premier 6 retains the right to make the final decision in relation to 7 the funding of that project, including the amount of 8 funding to be provided by ACALET to that project. 9 3.3 Negotiation of Project Funding Agreements 10 (a) Subject to clause 4, ACALET agrees to negotiate in 11 good faith with the intention of executing a Project 12 Funding Agreement within 3 months after the relevant 13 decision of the Premier (or such longer period as may be 14 agreed by the State) with the proponents of each project 15 accepted or determined by the Premier under clause 3.2 16 in respect of the contribution to the project of the 17 amount of funding accepted or determined by the 18 Premier under clause 3.2, but only to the extent that 19 ACALET is satisfied, acting reasonably, that there will 20 be a sufficient balance of the Queensland Contribution 21 in the years to which the Project Funding Agreement is 22 proposed to relate, having regard to any commitments 23 arising under other Project Funding Agreements. 24 (b) ACALET will comply with its funding and other 25 obligations under the Project Funding Agreements. 26 (c) ACALET will provide the State with a copy of each 27 Project Funding Agreement and of any amendment to a 28 Project Funding Agreement upon its execution. 29 3.4 Matching of contributions 30 The parties agree that they will seek to ensure that every dollar 31 of Queensland Contribution which is expended on 32 Queensland Clean Coal Technology Projects or National 33 Clean Coal Technology Projects under Project Funding 34

 


 

19 Clean Coal Technology Special Agreement Bill 2007 Schedule (continued) Agreements is matched by at least two dollars from other 1 project participants including power generators, other private 2 sector partners, the Commonwealth of Australia, the State, 3 and other States and Territories of Australia. 4 3.5 IGCC Plant 5 The parties acknowledge and agree that, notwithstanding 6 anything to the contrary in this Deed (other than clauses 2.5 7 and 4.1): 8 (a) one of the Queensland Clean Coal Technology Projects 9 which the Clean Coal Council will review and 10 recommend to the Premier is an integrated gasification 11 combined cycle (IGCC) plant; 12 (b) the amount of $300 million is to be provided by 13 ACALET as funding for that project; and 14 (c) subject to clause 3.5(b), the Premier will make the final 15 decision in accordance with clause 3.2 on the IGCC 16 project which is to be funded, including the scale and 17 configuration of that project. 18 3.6 CS Energy Oxy-fuel Project 19 The parties acknowledge and agree that the CS Energy 20 Oxy-fuel Project is a Queensland Clean Coal Technology 21 Project which will be funded from the Queensland 22 Contribution. 23 3.7 Collaboration 24 The parties acknowledge that ACALET and proponents of 25 Queensland Clean Coal Technology Projects which are the 26 subject of Project Funding Agreements may, in the pursuance 27 of, and as part of their expenditure on, such Queensland Clean 28 Coal Technology Projects enter into alliances, exchanges of 29 information, research agreements and collaborations with 30 other organisations pursuing projects with similar objectives 31 whether in Queensland or elsewhere, provided they are 32

 


 

20 Clean Coal Technology Special Agreement Bill 2007 Schedule (continued) entered into on an arms length basis and will materially 1 benefit and support those Queensland Clean Coal Technology 2 Projects. 3 3.8 Reporting by ACALET 4 ACALET shall provide a written report to the State on at least 5 a six-monthly basis in relation to such matters as may 6 reasonably be required by the State including: 7 (a) the unexpended balance of the Queensland 8 Contribution; 9 (b) the forecast amounts of the Queensland Contribution for 10 each of the subsequent ten years; 11 (c) the status of projects the subject of Project Funding 12 Agreements; 13 (d) the status of projects which have been approved or 14 determined by the Premier under clause 3.2 but in 15 respect of which Project Funding Agreements have not 16 yet been executed; 17 (e) the administrative expenses of ACALET; and 18 (f) the expenditure made and forecast to be made by 19 ACALET under Project Funding Agreements on an 20 individual project basis and in aggregate. 21 4. Class Ruling and Tax Exemption Ruling 22 4.1 Consistency with Class Ruling and Tax Exemption 23 Ruling 24 The State agrees that ACALET will only enter into a Project 25 Funding Agreement in relation to any Queensland Clean Coal 26 Technology Project or National Clean Coal Technology 27 Project, where entry into that Project Funding Agreement is 28 consistent with the basis upon which the Australian Taxation 29

 


 

21 Clean Coal Technology Special Agreement Bill 2007 Schedule (continued) Office prepared the Class Ruling and the Tax Exemption 1 Ruling. The parties acknowledge and agree that this clause 2 does not derogate from the obligation of ACALET under 3 clause 2.1 to ensure that the Queensland Contribution is spent 4 on Queensland Clean Coal Technology Projects or National 5 Clean Coal Technology Projects nor the obligation of 6 ACALET under clause 3.5(b) to spend the amount of $300 7 million of the Queensland Contribution on an IGCC project. 8 4.2 Nature of Project Funding Agreements 9 The parties agree that ACALET will use its best endeavours to 10 negotiate the terms of each Project Funding Agreement to 11 ensure that to the greatest extent possible, the Project Funding 12 Agreement is consistent with the basis upon which the 13 Australian Taxation Office prepared the Class Ruling and the 14 Tax Exemption Ruling. Without limiting the foregoing, 15 ACALET will have discretion in relation to the following, 16 provided such discretion is exercised in good faith and in 17 order to ensure such consistency: 18 (a) whether it funds a particular part of a Queensland Clean 19 Coal Technology Project or National Clean Coal 20 Technology Project, or the entire project; 21 (b) whether or not ACALET is entitled to any consideration 22 for its contribution, and the nature of that consideration; 23 (c) whether ACALET contributes funds directly to the 24 proponents of the Queensland Clean Coal Technology 25 Project or National Clean Coal Technology Project, or 26 whether it pays for the acquisition of goods and services 27 related to, or required by, the project. 28 ACALET will keep the State fully informed regarding the 29 basis upon which the Australian Taxation Office prepared the 30 Class Ruling and the Tax Exemption Ruling and of all 31 negotiations regarding Project Funding Agreements. 32

 


 

22 Clean Coal Technology Special Agreement Bill 2007 Schedule (continued) 4.3 Further ruling 1 If the State and ACALET are unable to agree as to whether or 2 not entering into a Project Funding Agreement with a 3 Queensland Clean Coal Technology Project or National Clean 4 Coal Technology Project is consistent with the basis upon 5 which the Australian Taxation Office prepared the Class 6 Ruling or the Tax Exemption Ruling, then: 7 (a) ACALET will seek in a timely manner either or both of 8 a further Class Ruling and Tax Exemption Ruling from 9 the Australian Taxation Office, based upon the 10 assumption that ACALET will enter into such a Project 11 Funding Agreement; and 12 (b) ACALET is not required to enter into that Project 13 Funding Agreement unless and until it receives a further 14 Class Ruling or Tax Exemption Ruling in terms which 15 ACALET reasonably believes are favourable. 16 5. Notices and other communications 17 5.1 Service of notices 18 A notice, demand, consent, approval or communication under 19 this Deed (Notice) must be: 20 (a) in writing, in English and signed by a person duly 21 authorised by the sender; and 22 (b) hand delivered or sent by prepaid post or facsimile to the 23 recipient's address for Notices specified in the Details, 24 as varied by any Notice given by the recipient to the 25 sender. 26 5.2 Effective on receipt 27 A Notice given in accordance with clause 5.1 takes effect 28 when taken to be received (or at a later time specified in it), 29 and is taken to be received: 30

 


 

23 Clean Coal Technology Special Agreement Bill 2007 Schedule (continued) (a) if hand delivered, on delivery; 1 (b) if sent by prepaid post, on the second Business Day after 2 the date of posting (or on the seventh Business Day after 3 the date of posting if posted to or from a place outside 4 Australia); 5 (c) if sent by facsimile, when the sender's facsimile system 6 generates a message confirming successful transmission 7 of the entire Notice unless, within eight Business Hours 8 after the transmission, the recipient informs the sender 9 that it has not received the entire Notice, 10 but if the delivery, receipt or transmission is not on a Business 11 Day or is after 5.00pm on a Business Day, the Notice is taken 12 to be received at 9.00am on the next Business Day. 13 6. Miscellaneous 14 6.1 Alterations 15 This Deed may be altered only in writing signed by each 16 party. 17 6.2 Approvals and consents 18 Except where this Deed expressly states otherwise, a party 19 may, in its discretion, give conditionally or unconditionally or 20 withhold any approval or consent under this Deed. 21 6.3 Assignment 22 A party may only assign this Deed or a right under this Deed 23 with the prior written consent of the other party. 24

 


 

24 Clean Coal Technology Special Agreement Bill 2007 Schedule (continued) 6.4 Costs 1 Each party must pay its own costs of negotiating, preparing 2 and executing this Deed. 3 6.5 Stamp duty 4 Any stamp duty, duties or other taxes of a similar nature 5 (including fines, penalties and interest) in connection with this 6 Deed or any transaction contemplated by this Deed must be 7 paid by the State. 8 6.6 Survival 9 Any indemnity or any obligation of confidence under this 10 Deed is independent and survives termination of this Deed. 11 Any other term by its nature intended to survive termination 12 of this Deed survives termination of this Deed. 13 6.7 Counterparts 14 This Deed may be executed in counterparts. All executed 15 counterparts constitute one document. 16 6.8 No merger 17 The rights and obligations of the parties under this Deed do 18 not merge on completion of any transaction contemplated by 19 this Deed. 20 6.9 Entire agreement 21 This Deed constitutes the entire agreement between the 22 parties in connection with its subject matter and supersedes all 23 previous agreements or understandings between the parties in 24 connection with its subject matter. 25

 


 

25 Clean Coal Technology Special Agreement Bill 2007 Schedule (continued) 6.10 Further action 1 Each party must do, at its own expense, everything reasonably 2 necessary (including executing documents) to give full effect 3 to this Deed and any transaction contemplated by it. 4 6.11 Severability 5 A term or part of a term of this Deed that is illegal or 6 unenforceable may be severed from this Deed and the 7 remaining terms or parts of the terms of this Deed continue in 8 force. 9 6.12 Waiver 10 A party does not waive a right, power or remedy if it fails to 11 exercise or delays in exercising the right, power or remedy. A 12 single or partial exercise of a right, power or remedy does not 13 prevent another or further exercise of that or another right, 14 power or remedy. A waiver of a right, power or remedy must 15 be in writing and signed by the party giving the waiver. 16 6.13 Relationship 17 Except where this Deed expressly states otherwise, it does not 18 create a relationship of employment, trust, agency or 19 partnership between the parties. 20 6.14 Confidentiality 21 A party may only use confidential information of another 22 party for the purposes of this Deed, and must keep any 23 confidential information of another party confidential except 24 where: 25 (a) the information is public knowledge (but not because of 26 a breach of this Deed) or the party has independently 27 created the information; 28 (b) disclosure is required by law or a regulatory body 29 (including a relevant stock exchange); or 30

 


 

26 Clean Coal Technology Special Agreement Bill 2007 Schedule (continued) (c) disclosure is made to a person who must know for the 1 purposes of this Deed on the basis that the person keeps 2 the information confidential. 3 6.15 Governing law and jurisdiction 4 This Deed is governed by the law of Queensland and each 5 party irrevocably and unconditionally submits to the 6 non-exclusive jurisdiction of the courts of Queensland. 7 6.16 Term 8 Subject to clause 2.5, this Deed commences with effect from 1 9 July 2007 and will be reviewed by the parties during the three 10 month period expiring on 30 June 2017, and will continue 11 unless the parties otherwise agree. 12

 


 

27 Clean Coal Technology Special Agreement Bill 2007 Signing page 1 2 3 EXECUTED as a Deed. 4 5 The common seal of 6 ACA Low Emissions Technologies 7 Limited is affixed to this document 8 in accordance with its constitution 9 in the presence of 10 11 12 ___________________________ _____________________________ 13 Signature of director Signature of director/company secretary 14 (Please delete as applicable) 15 16 ___________________________ _____________________________ 17 Name of director (print) Name of director/company secretary (print) 18 19 20 Signed by the Premier of the State 21 of Queensland for and on behalf of 22 the State of Queensland in the 23 presence of 24 25 26 ___________________________ _____________________________ 27 Signature of witness The Premier of the State of Queensland for 28 and on behalf of the State of Queensland 29 30 ___________________________ 31 Name of witness (print) 32 State of Queensland 2007

 


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