Gladstone Power Station Operation Agreement Act 1975 (Qld)

403 (QuEExt5 ANNO VICESIMO QUARTO ELIZABETHAE SECUNDAE REGINAE No. 31 of 1975 An Act to authorize the making of an agreement between The State Electricity Commission of Queensland and The Southern Electric Authority of Queensland and for related purposes [ASSENTED TO 17TH SEPTEMBER, 1975] BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:- 1. Short title . This Act may be cited as the Gladstone Power Station Operation Agreement Act 1975. 2. Meaning of terms . In this Act, save where a contrary intention appears- "Agreement " means the agreement a copy of which is set out in the Schedule;

404 Gladstone Power Station Operation Agreement Act 1975, No. 31 "Authority " means The Southern Electric Authority of Queensland constituted under The Southern Electric Authority of Queensland Acts, 1952 to 1964 and includes the successors and assigns of the Authority; " Commission " means The State Electricity Commission of Queensland constituted under The State Electricity Commission Acts, 1937 to 1965. 3. A greement authorized . The Commission and the Authority are hereby empowered and authorized to make the Agreement. 4. A greement has force of law. Upon its making the Agreement shall have the force of law as if its provisions were enacted by this Act. The Governor shall by Proclamation notify the date of the making of the Agreement. 5. Variation of AgreemeaL (1) An attempted variation of the Agreement, either as set out in the Schedule or as varied from time to time , that is not made in the manner prescribed by this section shall be void and of no effect. (2) The Agreement, either as set out in the Schedule or as varied from time to.time, may be varied by agreement between the Commission and the Authority approved by the Governor in Council by way of Order in Council. (3) Unless the Legislative Assembly duly disallows an Order in Council referred to in subsection (2) the agreement approved of by way of that order shall have the force of law as if its provisions were enacted in this Act. If the Legislative Assembly duly disallows an Order in Council referred to in subsection (2) the agreement approved of by way of that order shall thereupon cease to have any effect. 6. C ommission and Authority controlled by Agreement . The rights, powers and obligations of the Commission and the Authority in con nexion with the Gladstone Power Station and matters incidental thereto dealt with by the Agreement , as varied at the material time , shall be as provided for. by the Agreement , as varied at the material time, and shall not be altered save by way of variation made. as prescribed by section 5. 7. Governor in Council may make Orders . (1) The Governor in Council may make- (a) such Orders in Council as are provided for by this Act; and (b) such Orders in Council as are not inconsistent with the Agreement, as varied at the material time, and as are in his opinion necessary or expedient to provide for and regulate the carrying into effect of the provisions of the Agreement as so varied. (2) Every Order in Council referred to in provision (b) of subsection (1) shall upon its publicatipn in the Gazette have the force of law and shall be binding on all persons concerned according to its terms.

Gladstone Power Station Operation Agreement Act 1975, No. 31 405 . & Orders in Comcil to be laid before Assembly. Every Order in Council made under this Act shall be laid before the Legislative Assembly within 14 sitting days after its publication in the Gazette if the Assembly is in session and, if not, then within 14 sitting days after the commencement of the next session. If the Legislative Assembly passes a resolution of which notice has been given at any time within 14 sitting days after such Order in Council has been laid before it disallowing such Order in Council or any part thereof that Order in Council or part shall thereupon cease to have effect but without prejudice to the validit}t of anything done in the meantime or to the making of a further Order in Council. SCHEDULE AN AGREEMENT made the day of One thousand nine hundred and seventy-five BETWEEN THE SOUTHERN ELECTRIC AUTHORITY OF QUEENSLAND, a public authority duly incorporated in the State of Queensland under the provisions of " The Southern Electric Authority of Queensland Acts, 1952 to 1964 " (hereinafter with its successors and assigns called " the Authority ") of the one part AND THE STATE ELECTRICITY COMMISSION OF QUEENSLAND -a corporation sole duly constituted under " The State Electricity Commission Acts, 1937 to 1965 " (hereinafter called " the Commission ") of the other part WHEREAS uhder the provisions of " The State Electricity Commission Acts, 1937 to 1965 " the Commission has the power, function and duty if and where considered necessary to acquire and construct, maintain and operate generating stations and main transmission lines and substations for the purpose of establishing. comprehensive electricity supply systems and providing therefrom adequate supplies of energy in bulk at minimum cost to any electric authority AND WHEREAS under the provisions of " The State Electricity Commission Acts, 1937 to 1965 " subject to the approval of the Governor in Council the Commission may negotiate and enter into such agreements, issue all such directions and give all such orders as it shall think necessary or expedient for the purposes of the due and proper exercise of the functions, powers and duties conferred or imposed upon it by " The State Electricity Commission Acts, 1937 to 1965 " or any other act AND WHEREAS it was considered necessary by the Commission that a generating station be constructed at Gladstone in the said State on property described as Portion 69 (R. 296), Parish of Auckland, County of Clinton: and that a main transmission line be constructed from the existing substation of the Authority at South Pine in the said State on property described as Portions 125 and 126, Parish of Warner, County of Stanley to a substation to be constructed at Gladstone on property described as Portion 69 (R. 296), Parish of Auckland, County of Clinton AND WHEREAS by an Agreement made between the parties hereto on the Twenty-first day of May One thousand nine hundred and seventy (which said Agreement is hereinafter called " the Construction Agreement ") the Authority agreed to act as the engineering and supervising consultants on behalf of and to the extent necessary as agent of the Commission to undertake and to supervise the construction of certain works of the Gladstone Power Station, to recruit and train operators and to make preliminary arrangements for the organisation necessary for the operation of the generating station AND WHEREAS by an Agreement made between the parties hereto on the

406 Gladstone Power Station Operation Agreement Act 1975. No. 31 SCHEDULE- continued third day of August One thousand nine hundred and seventy-two it was determined and agreed that the said transmission line should be the property of the Authority and was assigned to the Authority AND WHEREAS by an agreement (hereinafter called " the Original Agreement ") made between THE MINISTER FOR MINES AND MAIN ROADS of the first part, THE STATE ELECTRICITY COMMISSION OF QUEENSLAND of the second part and UTAH DEVELOPMENT COMPANY (hereinafter called "the Company ") of the third part on the sixteenth day of August One thousand nine hundred and seventy-four, the Company 'undertook to, inter alia, deliver to the Commission when so required by the Minister the steaming coal necessarily mined in the course of mining coking coal from the Company's special Coal Mining Leases numbers 110, 113 and 121, other than coal unacceptable to the Commission, to a suitable place on the said leases as specified by the Minister AND WHEREAS by an agreement (hereinafter called " the Second Agreement ") entered into between the Commission and the Company on the sixteenth day of August One thousand nine hundred and seventy-four, the Company undertook to crush, stockpile , reclaim and load into rail waggons the steaming coal referred to in the Original Agreement and to provide other services as set out in the Second Agreement (both of which aforesaid agreements being hereinafter referred to as " the Utah Agreements ") AND WHEREAS, THE STATE ELECTRICITY COMMISSION OF QUEENSLAND has made arrangements with the COMMISSIONER FOR RAILWAYS for the transport of the coal loaded into rail waggons by UTAH DEVELOPMENT COMPANY to the Gladstone. Generating Station AND WHEREAS agreements have been and will be made between THE QUEENSLAND HOUSING COMMISSION and THE STATE ELECTRICITY COMMISSION OF QUEENSLAND (hereinafter referred to as " the Housing Agreements ") whereby The State Electricity Commission of Queensland will guarantee payment of the rental of houses to be provided by The Queensland Housing Commission and occupied by or on behalf of persons employed in or of and incidental to the operation of the Power Station AND WHEREAS the Commission may enter into agreements to supply electricity in bulk to major industrial consumers AND WHEREAS the Commission is empowered by the Government of Queensland to delegate to the Authority the performance of the functions provided for in this Agreement NOW THEREFORE with the prior approval of Governor in Council IT IS AGREED AS FOLLOWS: 1. The Commission shall be the Owner and the Authority shall be the Operator of the Power Station as hereinafter defined. 2. The term Power Station for the purpose of this Agreement shall include: (a) All works constructed on the site of Gladstone Power Station which is situated on Portion 69 (R. 296), Parish of Auckland, County of Clinton. (b) All transmission works constructed under the Construction Agreement for the purpose of supply of electricity to bulk. supply consumers, and remaining under the ownership of the Commission. I

Gladstone Power Station Operation Agreement Act 1975, No. 31 407 SCHEDULE -continued (c) Such other existing or future works which directly affect the operation of the Power Station and which the Commission and the Authority mutually agree should be subject to the provisions of this Agreement. 3. The Authority shall take charge of and be responsible as Operator for and on behalf of the Commission for the completed portions or sections of the Power Station and as such shall subject to the terms of this Agreement: (a) manage , protect , man, maintain and operate the Power Station (b) administer on behalf of the Commission the particular agreements or such sections thereof as stated in this Agreement and such other agreements made by the Commission relating to the management and operation of the Power Station as may be agreed by the Commission and the Authority (c) collect all revenues arising from the operation of the Power Station and in ,particular those revenues from sales of electricity and steam from the Power Station (d) incur all proper and necessary costs and meet all proper and necessary expenditure required for the discharge of the duties herein provided for (e) make payments to the Commission for interest and loan repayments on the capital expenditure incurred in relation to the Power Station (f) make payments to the Commission in reimbursement of such other expenditure related to the operation of the Power Station incurred by the Commission during the operation of this Agreement or prior to its commencement as shall be agreed. For this purpose, agreement shall be deemed to have been made if the Commission submits an account and the Authority pays such account. 4. The Authority shall do and perform all such acts, deeds and things as are necessary for the efficient operation, maintenance and conduct of the Power Station and shall arrange for the operation of the interconnected systems (namely the systems of The Capricornia Regional Electricity Board, The Wide Bay-Burnett Regional Electricity Board, The Southern Electric Authority of Queensland and the Power Station) with full regard to practicability of operation and to overall economy subject to constraints which may apply from time to time resulting from policy directions including usage.of fuel resources. 5. During the period between the making of this Agreement and a date to be agreed as the date of commissioning of the first portion of the Power Station for commercial generation of electricity, all costs incurred by the Authority pursuant to this Agreement, not being costs already payable pursuant to the Construction Agreement, shall be reimbursed by the Commission and revenues (if any) duly received pursuant to this Agreement during such period shall be remitted to the Commission. Such costs shall include costs and expenditure apportioned as provided in Clause 7 (ii) herein.

408 Gladstone Power Station Operation Agreement Act 1975, No. 31 SCHED ULE-continued 6. (i) The Authority shall at the direction of the Commission supply electricity to consumers other than Electric Authorities, who are parties to special agreements with the Commission for supply, and the rates for such supply shall be determined by the Commission. The provisions of this Agreement in relation to the duties and responsibilities of the Authority shall also be held to apply to special agreements which may be entered into for the supply of steam from the Power Station provided that due and proper notice of such special agreements shall have first been given to the Authority. (ii) Such of the remainder of the output of the Power Station as is. required to be utilised for the proper conduct or working of the interconnected systems referred to in Clause 4 hereof shall be purchased by the Authority at a rate which shall be determined by the Commission. This rate shall be determined so as to ensure in and for each year sufficient revenue from all sources of and incidental to the operation and conduct of the Power Station including special consumers and any moneys which. may be received from the Queensland Government as arranged by the Commission on account of the operation of the Power Station to cover fully the following outgoings and provisions: (a) all costs, interest, expenses, taxes, losses and outgoings incurred or payable in managing , operating and maintaining the,Power Station. (b) provisions for depreciation at rates and under conditions determined from time to time by the Commission. (c) a contribution, in accordance with the determination of the Commission in and for each year to capital works reserves. The capital works reserves and the balance of the provision for depreciation after the deduction of loan repayments by instalments and sinking fund contributions shall be applied as determined by the Commission after consultation with the Authority. (iii) In order to provide for variations of actual costs and revenues in a particular year from those allowed for in determining the rate in Clause 6 (ii) hereih, there shall be established an equalisation account and any surplus or deficiency shall be taken into account as follows: (a) If at- the end of any financial year there is a surplus or deficiency, such surplus or deficiency shall be transferred to the equalisation account. (b) In determining the rate to be charged for the supply of electricity to the Authority, the Commission shall have regard to the balance remaining in the equalisation account. (c) If in any year there is insufficient revenue from the operation of the Power Station to meet the costs and charges herein outlined, the Authority for and on behalf of the Commission may obtain all or part of such moneys as may be required to• meet expenditure by advances by overdraft on current account with any Bank or Banks and such advance shall be a charge upon the income and revenue of the Commission in respect to the Power Station. For this purpose the Authority is authorised to make agreements at any time for such advances to be available subject to the approval of the Commission of the maximum amount to be advanced.

Gladstone Power Station Operation Agreement Act 1975, No. 31 409 SCHEDULE -continued (d) If at any time there are excess moneys available from the operation of the Power Station the Authority may invest such amounts of these moneys as may be deemed to be available for investment in such manner as may be approved by the Governor in Council. The Authority shall supply electricity in bulk to other Electric Authorities at rates approved by the Commission taking due account of the price at which electricity generated at the Power Station is purchased by the Authority and subject to the provisions of existing and future agreements with other Electric Authorities. 7. (i) The Authority shall keep accounts relating to all activities of and incidental to the operation of the Power Station clearly identified and separable from the remainder of the accounts of the Authority. The accounts shall be kept in accordance with the established practices and standards of the Authority. Such accounts shall contain all necessary detail as may be agreed on from time to time between the Commission and the Authority and as approved by the Auditor-General. The accounts shall record all income, revenues , costs, expenditure, provisions, stocks, assets and liabilities relating to the management and operation of the Power Station. (ii) The Commission and the Authority shall from time to time agree on equitable bases for the apportionment of those costs, expenditures, `revenues and incomes which cannot be allocated directly to the Power Station but which are common to the management and operation of other functions of the Authority. The costs, expenditures, revenues and incomes duly apportioned in accordance with these agreed bases shall be included in the accounts of the Power Station under the provisions of Clause 6 (ii). Such agreement shall be subject to the approval of the Auditor-General. (iii) The Authority shall provide, out of the revenues of the Power Station, depreciation as determined by the Commission from time to time in respect of the works forming part of the Power Station and shall keep a register for that purpose. (iv) (a) Within seven days (or such longer period as may be approved by the Treasurer) after the end of each month, the Authority shall pay to the Treasurer the amounts collected during that month in terms of Clause 3 (c). (b) The Commission shall reimburse to the Authority, forthwith upon receipt of a claim from the Authority, the expenditure incurred in terms of paragraphs (d), (e) and (f) of Clause 3. Such claims shall be submitted once in each month in respect of the expenditure incurred in the previous month. (v) (a) The Authority shall arrange for its auditor to audit all accounts which (for the purposes. of this Agreement) are kept by the Authority, and as required from time to time by the Auditor-General, to audit the financial statements prepared by the Authority in respect of the operation of the Power Station.

410 Gladstone Power Station Operation Agreement Act 1975, No. 31 SCHEDULE- continued (b) The Authority shall instruct its auditor to: 1. carry out such audits in accordance with a programme approved by the Auditor -General and to make the reports on such audits to the Auditor- General. 2. include in such reports those matters required by the Auditor- General and state whether in the auditor 's opinion the accounts and financial statements relating to the operation of the Power Station present a true and fair view of the financial position and whether the accounts and financial records are being properly kept in such form and content as may be necessary for the purposes of this Agreement. 8. (i) Prior to the commencement of each financial year ( being the first of July) in accordance with the required budget programme, the Authority and the Commission shall confer on the preliminary Revenue and Capital budgets for such financial year and on forecasts for the four subsequent financial years . When conferring the parties shall have regard to Clause 6 (ii) of this Agreement. (ii) Such preliminary budgets shall include a statement of the source and disposition of capital funds. Funds that may be required for capital works shall, subject to the last paragraph of subclause {- ii) (c) of Clause 6 be the responsibility of the Commission .. The working capital required to be provided for the day to day operation of the Power Station and the source of such funds shall be as mutually agreed from time to time by the Authority and the Commission. (iii) The preliminary budgets shall form the basis for the determination by the Commission of the rate payable by the Authority for electricity purchased from the Power Station in the following financial year. Such determination shall be made no later than the 31st day of March in each year or if this is not practicable , as soon as possible thereafter. 9. The Authority shall provide to the Commission monthly and annually such financial statements and statistical reports of operations as shall from time to time be required by the Commission. 10. (i) The Authority shall supervise and administer the Housing Agreements and shall make such rental payments as are ^ due to the Queensland Housing Commission under such Agreements in so far as such is relevant to the implementation of this Agreement. (ii) For the purpose of this Agreement any housing provided for the use of personnel employed in the operation or maintenance of the Power Station other than that provided under the Housing Agreements shall be deemed to form part of the works which- directly affect the operation of the Power Station. 11. The Commission being the principal in the Utah Agreements and the Authority being responsible under the provisions of this Agreement for the efficient operation of the Power Station and the making of payments associated with the supply of coal it is agreed that: (a) Upon receipt of claims from the Utah Development Company and from other companies or bodies concerned in the arrangements for the supply of coal to the Power Station duly certified for payment by the Commission , the Authority shall pay such claims.

Gladstone Power Station Operation Agreement Act 1975, No. 31 411 SCHEDULE -continued (b) Officers of the Authority shall liaise with nominated officers of the Commission, Utah Development Company and the Commissioner for Railways to achieve co-ordination in all matters related to the supply of coal for Power Station operation . Employees of the Commission engaged at Blackwater in surveillance of the provisions of the Utah Agreements shall as arranged work under the direction of authorised officers of the Authority in matters related to the provision of adequate supplies of coal for the operation of the Power Station. 12. All personnel engaged in the operation of the Power Station under the provisions of this Agreement shall be required to work under the direction and control of the Authority. If prior to their appointment they are not employees of the Authority they shall become employees of the Authority unless the Commission and the Authority otherwise agree. In making such appointments the Authority shall give preference to suitable employees of Electric Authorities in Queensland and the Commission. 13. Any work carried out by the Authority being modifications or extensions to the Power Station ( not being work carried out under the Construction Agreement) shall be reimbursed by the Commission at the actual cost to the Authority plus an allowance for overheads. The Authority may without the prior approval of the Commission incur capital expenditure on works required for the efficient and/or effective operation of the Power Station provided that the expenditure on any one item shall not exceed an amount to be agreed and further provided that the total of such expenditure in any budget period shall not exceed the approved budget provision for that period. The Commission shall be informed monthly of the expenditure so incurred. 14. If it is mutually agreed by the Commission and the Authority that additional functions are 'to be undertaken by the Authority in the operation of the Power Station, such additional functions shall be governed by the provisions of this Agreement to the extent that the same are pertinent or applicable and to the extent that the parties hereto do not otherwise agree. 15. Nothing in this Agreement shall in any way abrogate, refute or nullify the Construction Agreement and that Agreement shall apply concurrently with this Agreement. _ 16. The provision of this Agreement shall not be held to apply to any functions or operations of the Authority not directly related to its responsibilities for the operation of the Power Station. Nothing in this Agreement shall affect any of the provisions of or derogate from the rights, powers and duties of the Commission as defined in " The State Electricity Commission Acts, 1937 to 1965 " or established thereunder. 17. Nothing in this Agreement shall in any way whatsoever affect or derogate from the provisions of " The Southern Electric Authority ofQueensland Acts, 1952 to 1964 " and (without in any way limiting the generality of the foregoing) the provisions of Section 68 of the said Act.

412 Gladstone Power Station Operation Agreement Act 1975, No. 31 SCHEDULE-= continued 18. The provisions of this Agreement shall apply from the date of signing of the Agreement. 19. This Agreement shall continue to remain in force until terminated under provisions of any legislation enacted by the Parliament of the © State of Queensland or by mutual agreement of the parties hereto provided that six month's notice shall be given of the intention to so terminate, by mutual agreement. 20. Any difference or dispute arising between the parties hereto. whether as to the intent or meaning of any provision of this Agreement or any matter or thing, arising therefrom shall be determined in accordance with the provisions of the Arbitration Act1973 by an arbitrator nominated by the Co-ordinator-General appointed pursuant to the provisions of the State and Regional Planning and Development, Public Works Organizationand Environmental Control Act1971-1974, whose determination shall be final and binding on the parties. 21. Notwithstanding any provision of any Act or rule of law or equity or provision of this Agreement or any other Agreement mentioned, or referred to herein to the contrary the Authority, its employees, servants, officers and agents , shall not be liable to the Commission in either contract tort or otherwise in respect of work carried out or services provided of or incidental to the provisions of this Agreement even if such be done negligently and the parties hereto hereby state and acknowledge that this Agreement was entered into on the basis that it was the intent of the parties hereto that the Authority perform the obligations hereby assumed by it at and for a price equal to the anticipated actual cost thereof to the Authority and on the basis that no direct gain, benefit or advantage would accrue to the Authority or its consumers and accordingly, the Commission agrees to release, discharge, indemnify and save harmless and hereby releases, exonerates and forever discharges the Authority and its employees, servants, officers and agents from and against all actions, claims and demands of whatsoever nature and kind which the Commission could or might or but for the provisions of this Clause 21, have against the Authority, its employees, servants, officers and agents in connection with or arising out of any act or non-feasance or mis-feasance of the Authority, its employees, servants, officers and agents for or in connection with or arising out of any matter or thing done or not done of or incidental to the provisions of this Agreement and this release and indemnity may be pleaded in bar to any such action or claim and without affecting the generality of the foregoing, neither the Authority nor its employees, servants, officers and agents shall in any circumstances or events whatsoever and whether the consequence of negligence or otherwise be liable for any loss of profit or loss of income or loss of any machinery or equipment, fixtures or fittings in or on or appurtenant to or forming part of the Power Station or any consequential loss whatsoever of the Commission and the Commission shall be deemed to have released and indemnified the Authority, its employees, servants, officers and agents from and against all liability in respect of any cause or causes of action giving rise to any such loss as aforesaid.

Gladstone Power Station Operation Agreement Act 1975, No. 31 413 SCHEDULE- continued IN WITNESS whereof these presents have been executed the day and year first hereinbefore written. THE SEAL of TILE Souma EI..Ecnuc AuTHoRrrY of QUEENSLAND was hereunto affixed this day of 1975 pursuant to a. resolution of the Board in the presence of a member thereof and of the Secretary Member Secretary THE OFFICIAL SEAL of Txn S TATE ELEcrlucrry COMMISSION of QUEENSLAND was hereto affixed this day of 1975 by EDWARD DOUGLAS MURRAY, Commissioner for Electricity Supply in the presence of ERIS MICHAEL ROBINSON, the Secretary of The State Electricity Commission of Queensland i Commissioner Secretary