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


RAILWAY AND PORT (THE PILBARA INFRASTRUCTURE PTY LTD) AGREEMENT AMENDMENT BILL 2018

                    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 page 15

 


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