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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Railway and Port (The Pilbara Infrastructure
Pty Ltd) Agreement Amendment Bill 2018
Contents
1. Short title 2
2. Commencement 2
3. Act amended 2
4. Section 3 amended 2
5. Section 4 amended 3
6. Section 6 amended 3
7. Schedule 3 inserted 4
Schedule 3 -- 2018 variation agreement
63--1 page i
Western Australia
LEGISLATIVE ASSEMBLY
Railway and Port (The Pilbara Infrastructure
Pty Ltd) Agreement Amendment Bill 2018
A Bill for
An Act to amend the Railway and Port (The Pilbara Infrastructure Pty
td) Agreement Act 2004.
The Parliament of Western Australia enacts as follows:
page 1
Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement
Amendment Bill 2018
s. 1
1 1. Short title
2 This is the Railway and Port (The Pilbara Infrastructure Pty
3 Ltd) Agreement Amendment Act 2018.
4 2. Commencement
5 This Act comes into operation as follows --
6 (a) sections 1 and 2 -- on the day on which this Act
7 receives the Royal Assent;
8 (b) the rest of the Act -- on the day after that day.
9 3. Act amended
10 This Act amends the Railway and Port (The Pilbara
11 Infrastructure Pty Ltd) Agreement Act 2004.
12 4. Section 3 amended
13 (1) In section 3 delete the definition of the Agreement.
14 (2) In section 3 insert in numerical order:
15
16 2018 variation agreement means the agreement a copy
17 of which is set out in Schedule 3;
18
19 (3) In section 3 insert in alphabetical order:
20
21 Agreement means the scheduled agreement --
22 (a) as varied from time to time in accordance with
23 its terms; and
24 (b) as varied by the 2010 variation agreement; and
25 (c) as varied by the 2018 variation agreement.
26
page 2
Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement
Amendment Bill 2018
s. 5
1 5. Section 4 amended
2 After section 4(2A) insert:
3
4 (2B) The 2018 variation agreement is ratified.
5
6 6. Section 6 amended
7 In section 6(2) delete "scheduled agreement or the 2010
8 variation agreement" and insert:
9
10 scheduled agreement, the 2010 variation agreement or the 2018
11 variation agreement
12
page 3
Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement
Amendment Bill 2018
s. 7
1 7. Schedule 3 inserted
2 After Schedule 2 insert:
3
4 Schedule 3 -- 2018 variation agreement
5 [s. 3]
6 2018
7 THE HONOURABLE MARK McGOWAN
8 THE STATE OF WESTERN AUSTRALIA
9 and
10 THE PILBARA INFRASTRUCTURE PTY LTD
11 ACN 103 096 340
12 and
13 FORTESCUE METALS GROUP LTD
14 ACN 002 594 872
15 RAILWAY AND PORT (THE PILBARA INFRASTRUCTURE PTY
16 LTD) AGREEMENT 2004
17 RATIFIED VARIATION AGREEMENT
18
19
20 [Solicitor's details]
21
page 4
Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement
Amendment Bill 2018
s. 7
1 THIS AGREEMENT is made this 13th day of March 2018
2 BETWEEN
3 THE HONOURABLE MARK McGOWAN, BA LLB MLA, Premier of the
4 State of Western Australia, acting for and on behalf of the said State and its
5 instrumentalities from time to time (hereinafter called the "State") of the first
6 part,
7 AND
8 THE PILBARA INFRASTRUCTURE PTY LTD ACN 103 096 340 of
9 87 Adelaide Terrace, East Perth, Western Australia, (hereinafter called the
10 "Company" in which term shall be included its successors and permitted
11 assigns) of the second part,
12 AND
13 FORTESCUE METALS GROUP LTD ACN 002 594 872 of 87 Adelaide
14 Terrace, East Perth, Western Australia, (hereinafter called the "Guarantor") of
15 the third part.
16 RECITALS:
17 A. The State, the Company and the Guarantor are the parties to the
18 agreement dated 10 November 2004 which was ratified by and is
19 scheduled to the Railway and Port (The Pilbara Infrastructure Pty
20 Ltd) Agreement Act 2004 and which as subsequently varied is referred
21 to in this Agreement as the "Principal Agreement".
22 B. The State, the Company and the Guarantor wish to vary the
23 provisions of the Principal Agreement on the terms and conditions set
24 out in this Agreement.
25 THE PARTIES AGREE AS FOLLOWS:
26 1. Ratification and operation
27 (1) This Agreement, other than this clause, does not come into operation
28 except in accordance with subclause (2).
29 (2) This Agreement, other than this clause, comes into operation on the
30 day on which it is ratified by an Act of the Parliament of Western
31 Australia ("Operative Date") unless, before that day, it terminates
32 under subclauses (4) or (5).
page 5
Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement
Amendment Bill 2018
s. 7
1 (3) The State must introduce in the Parliament of Western Australia
2 before 30 April 2018 or a later date agreed by the parties to this
3 Agreement a Bill to ratify this Agreement and must endeavour to
4 secure its passage as an Act.
5 (4) If by 30 September 2018 this Agreement has not been ratified by an
6 Act of the Parliament of Western Australia then, unless the parties to
7 this Agreement otherwise agree, this Agreement terminates on that
8 day and no party hereto will have any claim against any other party
9 hereto with respect to any matter or thing arising out of, done,
10 performed, or omitted to be done or performed under this Agreement.
11 (5) The parties agree that if the Principal Agreement is otherwise
12 determined in accordance with its provisions on a day prior to the
13 Operative Date, then this Agreement shall also terminate on and from
14 that day and no party hereto will have any claim against any other
15 party hereto with respect to any matter or thing arising out of, done,
16 performed, or omitted to be done or performed under this Agreement.
17 2. Variations of the Principal Agreement
18 The Principal Agreement is hereby varied as follows:
19 (1) in clause 1:
20 (a) by inserting after the definition of "approved
21 proposal" the following new definition:
22 "Australian Consumer Law" means the
23 Competition and Consumer Act 2010;
24 (b) by inserting after the definition of "LAA" the
25 following new definition:
26 "LAA Minister" means the Minister for Lands, a
27 body corporate under section 7 of the LAA;
28 (c) by deleting the definition of "Port Authority" and
29 substituting the following new definition:
30 "Port Authority" means the Pilbara Ports
31 Authority, being the body corporate having
32 management and control of the Port under the Port
33 Authorities Act;
page 6
Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement
Amendment Bill 2018
s. 7
1 (d) in the definition of "Rail Safety Act" by deleting the
2 words "Rail Safety Act 1998" and substituting "Rail
3 Safety National Law (WA) Act 2015";
4 (e) by inserting after the definition of "said State" the
5 following new definition:
6 "second variation date" means the date on which
7 clause 2 of the variation agreement made on or
8 about 12 March 2018 between the Honourable
9 Mark McGowan, Premier of Western Australia
10 acting for and on behalf of the said State and its
11 instrumentalities from time to time, the Company
12 and the Guarantor comes into operation;
13 (f) by deleting the definition of "Trade Practices Act";
14 (2) by deleting clause 4 and substituting the following new
15 clause:
16 "Obligations of the State
17 4. (1) The State shall subject to subclause (3) and
18 the adequate protection of the environment
19 (including flora and fauna) and the land
20 affected (including improvements thereon)
21 arrange for the issue of requisite authority
22 under one or both of (as determined by the
23 State in its discretion):
24 (a) section 91 of the LAA; or
25 (b) section 182 of the LAA,
26 to allow the Company to enter upon Crown
27 land (within the meaning of the LAA and
28 including, if applicable, land the subject of a
29 pastoral lease but excluding land within the
30 Port) to carry out all works to the extent
31 reasonably necessary for the purposes of
32 undertaking its obligations under clause 5(1)
33 as applied pursuant to clause 12(2a).
page 7
Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement
Amendment Bill 2018
s. 7
1 (2) For the purposes of paragraph (b) of
2 subclause (1), section 182 of the LAA shall
3 apply as if the Project (including a
4 significant modification, expansion or other
5 variation of it for which detailed proposals
6 are required) is a proposed public work for
7 which the LAA Minister is under that
8 section authorised to take interests in land
9 within the meaning of that section.
10 (3) The Company acknowledges that it shall be
11 responsible for obtaining all consents of
12 each person whose consent the LAA
13 Minister (acting with the concurrence of the
14 Minister in respect of any such Crown land
15 the subject of a Government agreement)
16 requires for the grant of any requisite
17 authority referred to in subclause (1) and in
18 a form and substance acceptable to the LAA
19 Minister.";
20 (3) in clause 7(3) by deleting paragraph (a);
21 (4) by inserting after clause 9 the following new clause:
22 "9A. Local participation plan
23 (1) In this clause, the term "local industry
24 participation benefits" means:
25 (a) the use and training of labour
26 available within the said State;
27 (b) the use of the services of
28 engineers, surveyors, architects
29 and other professional
30 consultants, experts, specialists,
31 project managers and
32 contractors available within the
33 said State; and
34 (c) the procurement of works,
35 materials, plant, equipment and
page 8
Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement
Amendment Bill 2018
s. 7
1 supplies from Western
2 Australian suppliers,
3 manufacturers and contractors.
4 (2) The Company acknowledges the need for
5 local industry participation benefits
6 flowing from this Agreement.
7 (3) The Company agrees that within 3 months
8 after the second variation date it shall
9 prepare and provide to the Minister a plan
10 which contains:
11 (a) a clear statement on the
12 strategies which the Company
13 will use, and require a third
14 party as referred to in
15 clause 21(2) to use, to
16 maximise the uses and
17 procurement referred to in
18 subclause (1);
19 (b) detailed information on the
20 procurement practices the
21 Company will adopt, and
22 require a third party as referred
23 to in clause 21(2) to adopt, in
24 calling for tenders and letting
25 contracts for works, materials,
26 plant, equipment and supplies
27 and how such practices will
28 provide fair and reasonable
29 opportunity for suitably
30 qualified Western Australian
31 suppliers, manufacturers and
32 contractors to tender or quote
33 for works, materials, plant,
34 equipment and supplies;
35 (c) detailed information on the
36 methods the Company will use,
37 and require a third party as
page 9
Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement
Amendment Bill 2018
s. 7
1 referred to in clause 21(2) to
2 use, to have their respective
3 procurement officers promptly
4 introduced to Western
5 Australian suppliers,
6 manufacturers and contractors
7 seeking such introduction; and
8 (d) details of the communication
9 strategies the Company will
10 use, and require a third party as
11 referred to in clause 21(2) to
12 use, to alert Western Australian
13 engineers, surveyors, architects
14 and other professional
15 consultants, experts, specialists,
16 project managers and
17 consultants and Western
18 Australian suppliers,
19 manufacturers and contractors
20 to services opportunities and
21 procurement opportunities
22 respectively as referred to in
23 subclause (1).
24 It is acknowledged by the Company that
25 the strategies of the Company referred to in
26 subclause (3)(a) will include strategies of
27 the Company in relation to supply of
28 services, labour, works, materials, plant,
29 equipment or supplies for the purposes of
30 this Agreement.
31 (4) During the currency of this Agreement the
32 Company shall implement the plan
33 provided under this clause.
34 (5) At the request of either of them made at
35 any time and from time to time, the
36 Minister and the Company shall confer as
37 to any amendments desired to any plan
38 provided under this clause and may agree
page 10
Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement
Amendment Bill 2018
s. 7
1 to the amendment of the plan or the
2 provision of a new plan in substitution for
3 the one previously provided.
4 (6) At least 3 months before the anticipated
5 submission of detailed proposals under
6 clauses 12, 12A or 13 (or such lesser
7 period as the Minister may, at the request
8 of the Company, approve in respect of any
9 such anticipated proposals), the Company
10 must, unless the Minister otherwise
11 requires, give to the Minister information
12 about the implementation of the plan
13 provided under this clause in relation to the
14 activities to be the subject of such detailed
15 proposals. This obligation operates in
16 relation to all detailed proposals submitted
17 on or after the date that is 4 months after
18 the date when a plan is first provided under
19 this clause.";
20 (5) in clause 12(3):
21 (a) by deleting the word "and" after the words
22 "subclause (2),"; and
23 (b) by inserting after the words "as referred to in
24 clause 9" the words "and compliance with
25 clause 9A";
26 (6) in clause 12A(3)(b) by deleting the first reference to
27 "clause 9" and substituting "clauses 9 and 9A";
28 (7) in clause 13(3)(b) by deleting the first reference to "clause 9"
29 and substituting "clauses 9 and 9A";
30 (8) by deleting clause 15(3) and substituting the following:
31 "The Company shall provide crossings for livestock and also
32 for any roads, other railways, conveyors, pipelines and other
33 utilities which exist in respect of land at the date such land is
34 included in the Special Railway Licence or is made the
35 subject of a Lateral Access Road Licence. In addition for the
page 11
Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement
Amendment Bill 2018
s. 7
1 purposes of livestock and infrastructure such as roads,
2 railways, conveyors, pipelines, transmission lines and other
3 utilities proposed to cross the land the subject of the Special
4 Railway Licence or land the subject of a Lateral Access Road
5 Licence (as the case may be) the Company shall:
6 (a) if applicable, give its consent to, and otherwise
7 facilitate, the grant by the State or any agency,
8 instrumentality or other authority of the State of any
9 lease, licence or other title over land the subject of the
10 Special Railway Licence or of a Lateral Access Road
11 Licence (as the case may be) so long as such grant
12 does not in the Minister's opinion unduly prejudice or
13 interfere with the activities of the Company under this
14 Agreement; and
15 (b) on reasonable terms and conditions allow access for
16 the construction and operation of such crossings and
17 associated infrastructure,
18 provided that in forming his opinion under this clause, the
19 Minister must consult with the Company.";
20 (9) in clause 16(6) by deleting the words "Trade Practices Act"
21 and substituting "Australian Consumer Law";
22 (10) in clause 18(6) by deleting the words "Trade Practices Act"
23 and substituting "Australian Consumer Law";
24 (11) in clause 21:
25 (a) by inserting after subclause (2) the following new
26 subclause:
27 "(2a) Except as otherwise agreed by the Minister,
28 the Company shall, in every contract
29 entered into with a third party after the
30 second variation date for the supply of
31 services, labour, works, materials, plant,
32 equipment or supplies for the purposes of
33 this Agreement require as a condition
34 thereof that such third party shall undertake
35 procurement activities in accordance with
page 12
Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement
Amendment Bill 2018
s. 7
1 the relevant plan under clause 9A as and
2 from the date of its provision to the
3 Minister.";
4 (b) in subclause (3) by inserting after the words
5 "concerning its implementation of the provisions of
6 this clause" the words "and of the relevant plan
7 provided pursuant to clause 9A";
8 (12) in clause 35(1) by deleting the number "1985" and
9 substituting "2012"; and:
10 (13) in clause 41 by:
11 (a) adding the words "and Submission to Jurisdiction" to
12 the clause heading; and
13 (a) adding the following words after "State of Western
14 Australia":
15 "and the parties to this Agreement submit to the
16 jurisdiction of the courts of Western Australia in
17 relation to any action or proceeding to settle any
18 dispute or question arising out of or in connection
19 with this Agreement".
20 3. Confirmation of Guarantee
21 The Guarantor confirms that its guarantee in favour of the State
22 contained in clause 39 of the Principal Agreement shall continue
23 notwithstanding the above-mentioned variations to the Principal
24 Agreement.
page 13
Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement
Amendment Bill 2018
s. 7
1 EXECUTED AS A DEED.
SIGNED by THE HONOURABLE )
MARK McGOWAN, in the )
presence of: )
[Signature] [Signature]
.......................................................... ...........................................................
Signature of witness Signature of THE HONOURABLE
MARK McGOWAN
JOSH JERGA
..........................................................
Name of witness (block letters)
2
EXECUTED by THE PILBARA )
INFRASTRUCTURE PTY LTD )
ACN 103 096 340 in accordance )
with section 127(1) of the )
Corporations Act 2001 (Cth) by )
authority of its directors: )
[Signature] [Signature]
.......................................................... ...........................................................
Signature of director Signature of director/company
secretary*
*delete whichever is not applicable
Elizabeth Gaines Cameron Wilson
.......................................................... ...........................................................
Name of director (block letters) Name of director/company
secretary* (block letters)
*delete whichever is not applicable
page 14
Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement
Amendment Bill 2018
s. 7
EXECUTED by FORTESCUE )
METALS GROUP LTD )
ACN 002 594 872 in accordance )
with section 127(1) of the )
Corporations Act 2001 (Cth) by )
authority of its directors: )
[Signature] [Signature]
.......................................................... ...........................................................
Signature of director Signature of director/company
secretary*
*delete whichever is not applicable
Elizabeth Gaines Cameron Wilson
.......................................................... ...........................................................
Name of director (block letters) Name of director/company
secretary* (block letters)
*delete whichever is not applicable
1
2
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