Railway (Roy Hill Infrastructure Pty Ltd) Agreement Amendment Act 2025 (WA)

Case
No judgment structure available for this case.

Western Australia

Railway (Roy Hill Infrastructure Pty Ltd) Agreement Amendment Act 2025

Western Australia

Railway (Roy Hill Infrastructure Pty Ltd) Agreement Amendment Act 2025 Contents

Western Australia

Railway (Roy Hill Infrastructure Pty Ltd) Agreement Amendment Act 2025

Railway (Roy Hill Infrastructure Pty Ltd) Agreement Amendment Act 2025

No. 4 of 2025

An Act to amend the Railway (Roy Hill Infrastructure Pty Ltd) Agreement Act 2010.

[Assented to 19 June 2025]

The Parliament of Western Australia enacts as follows:

1.Short title

This is the Railway (Roy Hill Infrastructure Pty Ltd) Agreement Amendment Act 2025.

2.Commencement

This Act comes into operation as follows —

  • (a)

    sections 1 and 2 — on the day on which this Act receives the Royal Assent;

  • (b)

    the rest of the Act — on the day after that day.

3.Act amended

This Act amends the Railway (Roy Hill Infrastructure Pty Ltd) Agreement Act 2010.

4.Section 3 amended
  • (1)

    In section 3 delete the definition of the Agreement.

  • (2)

    In section 3 before the 1st alphabetical definition insert in numerical order:

     

2024 variation agreement means the agreement a copy of which is set out in Schedule 2;

  • (3)

    In section 3 insert in alphabetical order:

     

Agreement means the scheduled agreement —

  • (a)

    as varied from time to time in accordance with its terms; and

  • (b)

    as varied by the 2024 variation agreement;

     
  • (4)

    In section 3 in the definition of scheduled agreement delete “Schedule 1;” and insert:

     

Schedule 1.

5.Section 4 amended

After section 4(1) insert:

  • (1A)

    The 2024 variation agreement is ratified.

     
6.Section 6 amended

In section 6(2) after “agreement” insert:

or the 2024 variation agreement

7.Section 15 amended
  • (1)

    In section 15(1) in the definition of TPA Undertaking Acceptance Date delete “TPA”.

  • (2)

    In section 15(2) and (3) delete “TPA”.

8.Schedule 2 inserted

After Schedule 1 insert:

Schedule 2 — 2024 variation agreement

[s. 3]

2024

THE HONOURABLE ROGER COOK PREMIER OF THE STATE OF WESTERN AUSTRALIA

AND

ROY HILL INFRASTRUCTURE PTY LTD ACN 130 249 633

AND

ROY HILL HOLDINGS PTY LTD ACN 123 721 077

AND

ROY HILL IRON ORE PTY LTD ACN 123 722 038

RAILWAY (ROY HILL INFRASTRUCTURE PTY LTD) AGREEMENT 2010

RATIFIED VARIATION AGREEMENT

[Solicitor’s details]

THIS AGREEMENT is made this 13th day of November 2024

BETWEEN

THE HONOURABLE ROGER COOK, MLA., Premier of the State of Western Australia, acting for and on behalf of the said State and its instrumentalities from time to time ("the State") of the first part;

AND

ROY HILL INFRASTRUCTURE PTY LTD ACN 130 249 633 of 5 Whitham Road, Perth Airport Western Australia ("the Company") of the second part;

AND

ROY HILL HOLDINGS PTY LTD ACN 123 721 077 and ROY HILL IRON ORE PTY LTD ACN 123 722 038 both of 5 Whitham Road, Perth Airport Western Australia (collectively "the Guarantors") of the third part.

RECITALS

A. The State, the Company and the Guarantors are the parties to the agreement dated 22 June 2010 ratified by and scheduled to the Railway (Roy Hill Infrastructure Pty Ltd) Agreement Act 2010 ("the Principal Agreement").

B. The State, the Company and the Guarantors wish to vary the provisions of the Principal Agreement.

THE PARTIES AGREE AS FOLLOWS:

1. Ratification and operation

  • (1)

    This Agreement, other than this clause, does not come into operation except in accordance with subclause (2).

  • (2)

    This Agreement, other than this clause, comes into operation on the day on which it is ratified by an Act of the Parliament of Western Australia ("Operative Date") unless, before that day, it terminates under subclauses (4) or (5).

  • (3)

    The Company and the Guarantors acknowledge and agree that the State is not obliged to, and nor has it represented that it will, introduce in the Parliament of Western Australia a Bill to ratify this Agreement, notwithstanding that the State has executed this Agreement.

  • (4)

    If by 31 December 2025 this Agreement has not been ratified by an Act of the Parliament of Western Australia then, unless the parties to this Agreement otherwise agree, this Agreement terminates on that day and no party hereto will have any claim against any other party hereto with respect to any matter or thing arising out of, done, performed, or omitted to be done or performed under this Agreement.

  • (5)

    The parties agree that if the Principal Agreement is otherwise determined in accordance with its provisions on a day prior to the Operative Date, then this Agreement shall also terminate on and from that day and no party hereto will have any claim against any other party hereto with respect to any matter or thing arising out of, done, performed, or omitted to be done or performed under this Agreement.

2. Variations of the Principal Agreement

The Principal Agreement is varied as follows:

(1)     in clause 1 by:

  • (a)

    inserting in the appropriate alphabetical position the following new definitions:

"Additional Infrastructure" means:

(a)      Train Loading Infrastructure; and

(b)     Train Unloading Infrastructure;

"Australian Consumer Law" means the Competition and Consumer Act 2010 (Cth);

"LAA Minister" means the Minister for Lands, a body corporate under section 7 of the LAA;

"rail closure plan" means a document that:

(a)      is in the form required under the Mining Act for a mine closure plan relating to miscellaneous licences granted under that Act (or otherwise in a form determined from time to time by the Minister for Mines in the absence of such a requirement); and

(b)     contains information required under the Mining Act for a mine closure plan relating to miscellaneous licences granted under that Act (or otherwise information determined from time to time by the Minister for Mines in the absence of such a requirement) including about:

(i)       the decommissioning of the SRL Railway, Additional Infrastructure (if any) and any other works under this Agreement, and whether proposed or, as at the Variation Date, under construction, existing and not already decommissioned; and

(ii)      the rehabilitation of land,

within the area of the Special Railway Licence;

"SRL Railway associated infrastructure" means associated railway track structures including sidings, turning loops, over and under track structures, supports (including supports for equipment or items associated with the use of a railway), tunnels, bridges, train control systems, signalling systems, switch and other gear, communication systems, electric traction infrastructure, buildings (excluding office buildings, housing and freight centres), workshops and associated plant, machinery and equipment that is contiguous to, and ancillary to the operation of, the SRL Railway, but does not include an SRL Railway spur line;

"Train Loading Infrastructure" means conveyors, stockpile areas, blending and screening facilities, stackers, re‑claimers and other infrastructure reasonably required for the loading of iron ore products, freight goods or other products onto the SRL Railway for transport (directly or indirectly) to the Port;

"Train Unloading Infrastructure" means train unloading infrastructure reasonably required for the unloading of iron ore products, freight goods or other products from the SRL Railway and, in the case of iron ore products, to be processed or blended with other iron ore products at processing or blending facilities in the vicinity of that train unloading infrastructure and with the resulting iron ore products then loaded onto the SRL Railway for transport (directly or indirectly) to the Port; and

"Variation Date" means the date on which clause 2 of the variation agreement made on or about 11 November 2024 between the State, the Company and the Guarantors comes into operation.

  • (b)

    in the definition of "Port Authority", inserting "and, from its succession, the Pilbara Ports Authority, a body corporate under the Port Authorities Act" at the end of the definition before the semicolon;

  • (c)

    in the definition of "Port Railway Lease and Licence", after the words "(including as renewed)," inserting the words "as varied in accordance with its provisions,";

  • (d)

    in the definition of "Project", after the words "including access roads and" inserting the words "Additional Infrastructure (if any) and";

  • (e)

    in the definition of "Railway Safety Act", deleting "Rail Safety Act 1998" and substituting "Rail Safety National Law (WA) Act 2015 (WA)";

  • (f)

    in the definition of "Special Railway Licence", deleting "clause 13(8)" and substituting "clauses 13(8) and 13(9)";

  • (g)

    in the definition of "SRL Railway", inserting ", including for the avoidance of doubt any SRL Railway spur line and SRL Railway associated infrastructure the subject of additional proposals approved in accordance with clause 12" at the end of the definition before the semicolon;

  • (h)

    in the definition of "this Agreement", "hereof" and "hereunder", after the semicolon deleting the word "and"; and

  • (i)

    deleting the "Trade Practices Act" definition;

(2)     deleting clause 4 (including the heading) and substituting the following:

"Obligations of the State

  • (1)

    4.                    The State shall subject to subclause (3) and the adequate protection of the environment (including flora and fauna) and the land affected (including improvements thereon) arrange for the issue of requisite authority under any one or both of (as determined by the State in its discretion):

(a)      section 91 of the LAA; or

(b)      section 182 of the LAA,

to allow the Company to enter upon Crown land (within the meaning of the LAA and including, if applicable, land the subject of a pastoral lease but excluding land within the Port other than the Boodarie multi‑user stockyard area before any vesting of the land comprising it in, or any placing of the land comprising it under the care, control and management of, the Port Authority) with plant and equipment to carry out all works to the extent reasonably necessary for the purposes of undertaking its obligations under clause 5(1) (including as applying pursuant to clause 12(2)).

(2)        For the purposes of paragraph (b) of subclause (1), section 182 of the LAA shall apply as if the Project (including a significant modification, expansion or other variation of it for which proposals are required pursuant to clause 12) is a proposed public work for which the LAA Minister is under that section authorised to take interests in land within the meaning of that section.

(3)        The Company acknowledges that it shall be responsible for obtaining all consents of each person whose consent the LAA Minister (acting with the concurrence of the Minister in respect of any such Crown land the subject of a Government agreement) requires for the grant of any requisite authority referred to in subclause (1) and in a form and substance acceptable to the LAA Minister."

(3)     deleting clause 6 (other than the heading) and substituting the following:

  • (a)

    "6.                For the purposes of this Agreement the Aboriginal Heritage Act 1972 (WA) applies as if:

(i)      the expression ‘owner of any land’ in section 18(1) of that Act includes the Company to the extent that its requisite authority to enter and be on the relevant land would not otherwise comprise a right contemplated by section 18(1) of the Act; and

(ii)     the following sentences are added at the end of section 18(3):

“In relation to a notice from the Company the conditions that the Minister may specify can as appropriate include, among other conditions, a condition restricting the Company’s use of the relevant land to after the approval or deemed approval as the case may be under the agreement ratified by the Railway (Roy Hill Infrastructure Pty Ltd) Agreement Act 2010, as varied from time to time, of all of the Company’s submitted initial proposals thereunder for the Project (as defined in the abovementioned agreement), or in the case of additional proposals submitted or to be submitted by the Company to after the approval or deemed approval under that agreement of such additional proposals, and to the extent so approved.”

  • (b)

    The Company acknowledges that nothing in this clause 6 nor the granting of any consents under section 18 of the Aboriginal Heritage Act 1972 (WA) will constitute or is to be construed as constituting the approval of any proposals submitted or to be submitted by the Company under this Agreement or as the grant or promise of land tenure for the purposes of this Agreement."

(4)     in subclause 7(3) by:

  • (a)

    deleting paragraph (a) other than the paragraph number and substituting "not used";

  • (b)

    in the final paragraph following paragraph (d), after each occurrence of the word "lease" inserting the word ", easement"; and

  • (c)

    in the final paragraph following paragraph (d) by deleting the words "in respect of paragraph (a) the grant of the authority referred to therein and in respect of paragraphs (b), (c) and (d)";

(5)     in clause 8 by:

  • (a)

    in subclause 8(2), inserting before the words "Port Facilities" the word "initial"; and

  • (b)

    in subclause 8(5), after the words "or any other person" inserting the words "(whether for the initial Project or as expanded from time to time)";

(6)     in clause 9 by:

  • (a)

    in subclause (7), after the word "periodic" inserting the words "(at least annual)"; and

  • (b)

    inserting the following new subclause (9) in the appropriate numerical order:

"The Company shall promptly provide to the State a summary of each plan approved or deemed approved in a form reasonably required by the State (which summary shall be published by or on behalf of the Company)."

(7)     by inserting after clause 9 the following new clause 9A:

"Local industry participation plan

  • (1)

    9A.           In this clause, the term "local industry participation benefits" means:

(a)      the use and training of labour available within the said State;

(b)     the use of the services of engineers, surveyors, architects and other professional consultants, experts, specialists, project managers and contractors available within the said State; and

(c)      the procurement of works, materials, plant, equipment and supplies from Western Australian suppliers, manufacturers and contractors.

  • (2)

    The Company acknowledges the need for local industry participation benefits flowing from this Agreement.

  • (3)

    The Company agrees that immediately following the Variation Date it shall prepare and provide to the Minister a plan which contains:

(a)      a clear statement on the strategies which the Company will use, and require a third party as referred to in clause 18(2) to use, to maximise the uses and procurement referred to in subclause (1);

(b)     detailed information on the procurement practices the Company will adopt, and require a third party as referred to in clause 18(2) to adopt, in calling for tenders and letting contracts for works, materials, plant, equipment and supplies and how such practices will provide fair and reasonable opportunity for suitably qualified Western Australian suppliers, manufacturers and contractors to tender or quote for works, materials, plant, equipment and supplies;

(c)      detailed information on the methods the Company will use, and require a third party as referred to in clause 18(2) to use, to have their respective procurement officers promptly introduced to Western Australian suppliers, manufacturers and contractors seeking such introduction; and

(d)     details of the communication strategies the Company will use, and require a third party as referred to in clause 18(2) to use, to alert Western Australian engineers, surveyors, architects and other professional consultants, experts, specialists, project managers and consultants and Western Australian suppliers, manufacturers and contractors to services opportunities and procurement opportunities respectively as referred to in subclause (1).

It is acknowledged by the Company that the strategies of the Company referred to in subclause (3)(a) will include strategies of the Company in relation to supply of services, labour, works, materials, plant, equipment or supplies for the purposes of this Agreement.

  • (4)

    During the currency of this Agreement the Company shall implement the plan provided under this clause.

  • (5)

    At the request of either of them made at any time and from time to time, the Minister and the Company shall confer as to any amendments desired to any plan provided under this clause and may agree to the amendment of the plan or the provision of a new plan in substitution for the one previously provided.

  • (6)

    The provisions of subclauses (3) and (4) shall apply mutatis mutandis to any development proposed or to be proposed as the case may be pursuant to clause 12 (unless the Minister otherwise requires) but with any required plan to be submitted by no later than the giving of notice by the Company under clause 12(1).

  • (7)

    The Company shall promptly provide to the State a summary of each plan provided under this clause in a form reasonably required by the State (which summary shall be published by or on behalf of the Company)."

(8)     in paragraph (b) of subclause 11(2) by deleting "section 45(7)" and substituting "section 45(12)";

(9)     deleting clause 12 (other than the heading) and substituting the following:

"12.        (1)           If the Company at any time during the currency of this Agreement desires to construct outside the Port a SRL Railway spur line, Additional Infrastructure or otherwise desires to significantly modify, expand or otherwise vary its activities (including by constructing SRL Railway associated infrastructure outside the then Railway Corridor) that are the subject of this Agreement and that may be carried on by it pursuant to this Agreement beyond those activities specified in any approved proposals, it shall give notice of such desire to the Minister and furnish to the Minister with that notice:

(a)           an outline of its proposals in respect thereto (including such matters mentioned in clause 10(1) as are relevant or as the Minister otherwise requires);

(b)          in the case of the proposed construction of a SRL Railway spur line, the proposed design capacity of such spur line;

(c)           the expected consequent increase in the capacity of the Railway or part of it (as the case may be), as a result of the construction of the SRL Railway spur line or other modification, expansion or variation of the Company’s activities (as the case may be); and

(d)          to the Minister’s reasonable satisfaction evidence that capacity within the Port, and access for the Company to such capacity, will be available over the remaining term of this Agreement, and in a timeframe consistent with the commencement and completion of the construction of the SRL Railway spur line or other modification, expansion or variation of the Company’s activities (as the case may be) for the handling at and shipment from it of the additional tonnages of iron ore products (or manganese ore products or other products, with the consent of the Port Authority) that may be transported upon the Railway to the Port as a result of the expected consequent increase in the capacity of the Railway or part of it (as the case may be).

(2)           The Minister shall within one month of receipt of such notice advise the Company whether or not he approves in‑principle the proposed construction of such spur line, Additional Infrastructure (if any) or other modification, expansion or variation of the Company’s activities (as the case may be) or whether he or she requires the proposal to be modified (in which case, subclause (1) shall mutatis mutandis apply to such modified proposal). If the Minister gives in‑principle approval the Company may (but not otherwise) submit detailed proposals in respect thereof provided that the provisions of clauses 4, 5, 7 (in respect of any proposed spur line), 9 and 9A shall mutatis mutandis apply prior to submission of detailed proposals in respect thereof save that:

(a)           in respect of any land within the Railway Corridor (as at the Variation Date) upon which construction of Additional Infrastructure is proposed to occur, clause 7(3)(d) shall apply to the extent of that proposed construction as if the affected land were to be included in the Special Railway Licence for that purpose; and

(b)           the width of the Railway Corridor for any proposed spur line must be no more than 500 metres unless otherwise agreed by the Minister taking into account the matters specified in clause 7(1) and the proposed location of any Additional Infrastructure.

(3)           Subject to the EP Act, the provisions of this Agreement and agreement at that time subsisting in respect of any matters required to be agreed pursuant to clause 7(1) (as referred to in subclause (2)), approval of a plan as referred to in clause 9 and provision of a plan as referred to in clause 9A (in each case if the Minister so requires), the Company shall submit to the Minister within a reasonable timeframe, as determined by the Minister after receipt of the notice referred to in subclause (1) (or in the case of a notice referred to in subclause (2), the giving of the Minister’s in‑principle approval as referred to in that subclause), detailed proposals in respect of the proposed construction of such spur line, Additional Infrastructure (if any) or the other proposed modification, expansion or variation of its activities (as the case may be) including such of the matters mentioned in clause 10(1) as the Minister may require.

(4)           The provisions of clause 10 (other than subclause (2)(a) and with the reference in subclause (5)(b) to clause 7(3)(b) being read as a reference to clause 7(3)(d) including as supplemented by subclause (2)(a) of this clause) and clause 11 (other than subclauses (5)(a), (6) and (7) of clause 11) shall mutatis mutandis apply to detailed proposals submitted pursuant to this clause provided that:

(a)      the Company may withdraw such proposals at any time before approval thereof or, where any decision of the Minister in respect thereof is referred to arbitration, within 3 months after the award by notice to the Minister that it shall not be proceeding with the same; and

(b)      the Minister shall not consider a purported proposal or proposals (as the case may be) if the Minister is of the opinion that the purported proposal or proposals does not or do not (as the case may be) comply with this clause or other provisions of this Agreement that apply to the purported proposal or proposals and in such circumstances:

  • (i)

    this subclause (4) (other than this paragraph (b)) shall not apply to the purported proposal or proposals;

  • (ii)

    subject to this Agreement, the Minister shall afford the Company full opportunity to consult with him or her (including disclosure of written reasons for his or her opinion) and should it so desire to submit a new or revised proposal or proposals either generally or in respect to some particular matter; and

  • (iii)

    the Minister’s opinion is not subject to arbitration under clause 32.

(5)           Subject to and in accordance with the EP Act and any approvals or licences required under that Act, the Company shall implement approved proposals pursuant to this clause in accordance with the terms thereof."

(10)   in clause 13 by:

  • (a)

    in subclause (7) deleting the words "subclause (6)" and substituting the words "subclauses (8) and (9)";

  • (b)

    in subclause (8) after the words "SRL Railway spur line" inserting the words ", SRL Railway associated infrastructure and/or Additional Infrastructure";

  • (c)

    in subclause (8) after the words "in the Special Railway Licence by endorsement" before the full stop inserting the words "and upon such endorsement the Special Railway Licence shall be deemed to be amended so as to extend the rights and authority of the Company under the Special Railway Licence to all activities (including the taking of stone, sand, clay and gravel) necessary for the planning, design, construction, commissioning, operation and maintenance of Additional Infrastructure on the included area of land";

  • (d)

    after subclause (8) inserting the following new subclauses (9) to (15):

"(9)       If additional proposals are approved in accordance with clause 12 for the construction of Additional Infrastructure within the Railway Corridor (as at the Variation Date), the Minister for Mines shall delineate the area of land within which such construction is to occur in the Special Railway Licence by endorsement and upon such endorsement the Special Railway Licence shall be deemed to be amended so as to extend the rights and authority of the Company under the Special Railway Licence to all activities (including the taking of stone, sand, clay and gravel) necessary for the planning, design, construction, commissioning, operation and maintenance of Additional Infrastructure on the delineated area of land.

(10)      The Company shall, not later than 6 months after the Variation Date, lodge with the State a rail closure plan for, subject to the EP Act, approval by the Minister for Mines (acting with the concurrence of the Minister) and on provision of such approval:

(a)         the rail closure plan shall be deemed to be a mine closure plan within the meaning given to that term in the Mining Act that, subject to this clause, is to be reviewed, amended and implemented in accordance with that Act;

(b)        the Special Railway Licence shall be deemed to be subject to:

(i)         a condition that the holder of the Special Railway Licence must review the rail closure plan and obtain approval for the reviewed rail closure plan in accordance with this clause; and

(ii)        a condition that the holder of the Special Railway Licence must decommission all SRL Railway, Additional Infrastructure (if any) and any other works under this Agreement from time to time within the area of, and rehabilitate the land within, the Special Railway Licence in accordance with the approved rail closure plan from time to time.

(11)      The Company shall ensure that the rail closure plan referred to in subclause (10) is reviewed every five years and otherwise at the times determined from time to time by the Minister for Mines (acting with the concurrence of the Minister).

(12)      The Company shall ensure that a reviewed rail closure plan is within the applicable times under subclause (11) lodged with the State for approval, subject to the EP Act, by the Minister for Mines (acting with the concurrence of the Minister).

(13)      The Minister for Mines (acting with the concurrence of the Minister) may approve the rail closure plan or a reviewed rail closure plan as lodged or subject to such changes as required by the Minister for Mines (acting with the concurrence of the Minister). If the Company is unwilling to accept the changes required to be made, the Company shall notify the Minister to that effect and either party may refer to arbitration hereunder the question of the reasonableness of the changes and the effect of an award made on arbitration shall be that the rail closure plan or reviewed rail closure plan (as the case may be) lodged by the Company shall, with such changes as required by the Minister for Mines (acting with the concurrence of the Minister) as the arbitrator determines to be reasonable (with or without modification by the arbitrator) be deemed to be the rail closure plan approved by the Minister for Mines (acting with the concurrence of the Minister) under this clause.

(14)      Without limiting the Mining Act, and subject to clause 29(2)(b) and any arrangements with the State in that regard, the Company shall implement the rail closure plan or reviewed rail closure plan approved or deemed to be approved from time to time under subclause (13).

(15)      Without limiting the Mining Act, the obligations set out in subclause (14) shall survive the cessation or determination of this Agreement and the expiry or surrender of the Special Railway Licence, in which case the Company may enter and re‑enter the land that was the subject of the Special Railway Licence with such agents, employees, vehicles, machinery and equipment as may be necessary for the purpose of implementing the relevant rail closure plan and complying with the relevant conditions."

(11)   in clause 14 by:

  • (a)

    in paragraphs (a) and (b) of subclause (2) after each occurrence of the word "Railway" inserting the words "and Additional Infrastructure (if any)";

  • (b)

    in paragraph (c) of subclause (2) by deleting the words "on an owner and an operator (as those terms are therein defined)" and substituting the words "on a rail transport operator (as that term is therein defined)";

  • (c)

    deleting subclause (3) and substituting the following new subclause (3):

"(3)      The Company shall provide crossings for livestock and also for any roads, other railways, conveyors, pipelines, transmission lines and other utilities which in respect of a proposed crossing of land the subject of the Special Railway Licence exist at the date of grant of the Special Railway Licence or in respect of land subsequently included in it exist at the date of such inclusion or in respect of land the subject of a Lateral Access Road Licence exist at the date of grant of the Lateral Access Road Licence. In addition for the purposes of livestock and infrastructure such as roads, railways, conveyors, pipelines, transmission lines and other utilities proposed to cross the land the subject of the Special Railway Licence or land the subject of a Lateral Access Road Licence (as the case may be) the Company shall:

  • (a)

    if applicable, give its consent to, and otherwise facilitate, the grant by the State or any agency, instrumentality or other authority of the State of any lease, licence or other title over land the subject of the Special Railway Licence or of a Lateral Access Road Licence (as the case may be) so long as such grant does not in the Minister’s opinion unduly prejudice or interfere with the activities of the Company under this Agreement; and

  • (b)

    on reasonable terms and conditions allow access for the construction and operation of such crossings and associated infrastructure,

provided that in forming his opinion under this clause, the Minister must consult with the Company."

  • (d)

    in subclause (5) after the words "Special Railway Licence" inserting the words ", the Port Railway Lease and Licence", after the word "shall" inserting the words ", subject to any temporary emergency and statutory rights of a relevant authority or agency," and after the word "Railway" before the full stop inserting the words "and Additional Infrastructure (if any)";

  • (e)

    in subclause (7) after the words "SRL Railway" inserting the words "and Additional Infrastructure (if any)";

  • (f)

    in subclause (8) after the word "Railway" and before the comma inserting the words "or Additional Infrastructure (if any)";

  • (g)

    at the end of subclause (12) before the full stop inserting the words "(acting with the concurrence of the Port Authorities Minister)";

  • (h)

    after subclause (12) inserting the following new subclause (12A):

"(12A)       The parties acknowledge that the Port Facilities Lease and Licence and the Port Railway Lease and Licence were granted by a deed made on 30 June 2011 between the Port Authority, the Company and the Guarantors, as amended and restated by a deed made on 26 August 2019 between them."

  • (i)

    at the end of subclause (15) before the full stop inserting the words "or permit any third party referred to in clause 31 to trade in iron ore products while so engaged by the Company";

(12)   in clause 15 by:

  • (a)

    in paragraph (g) of subclause (1) deleting each occurrence of the words "Trade Practices Act" and substituting the words "Australian Consumer Law" and deleting the word "TPA";

  • (b)

    in subclause (2) in paragraph (a) deleting the word "TPA" and in subparagraph (ii) of paragraph (d) deleting the word "date";

  • (c)

    in subclause (3) and paragraphs (d) and (f) of subclause (6) deleting each occurrence of the word "TPA";

  • (d)

    in paragraphs (a), (b), (e) and (f) of subclause (6) deleting each occurrence of the words "Trade Practices Act" and substituting the words "Australian Consumer Law"; and

  • (e)

    in paragraph (b) of subclause (6) after the full stop inserting the following words and subparagraphs:

"As at the Variation Date:

(i)          no such undertaking has been given by the Company; and

(ii)         the Company has advised the State that it has no intention to give such an undertaking."

(13)   in clause 17 after the word "Railway," inserting the words "Additional Infrastructure (if any),";

(14)   in subclause 18(2) by:

  • (a)

    inserting a colon after the words "such third party shall undertake" and renumbering the remainder of that sentence as paragraph (a);

  • (b)

    at the end of renumbered paragraph (a), deleting the full stop and substituting the words "; and"; and

  • (c)

    inserting the following new paragraph after the renumbered paragraph (a):

"(b)      procurement activities in accordance with the plan provided under clause 9A."

(15)   in subclause 18(3) by:

  • (a)

    in paragraph (b) deleting the words "to the date of the first submission of proposals in connection with that notice under clause 12 and thereafter at monthly intervals";

  • (b)

    after the words "concerning its implementation of the provisions of this clause" before the comma inserting the following words "and of the relevant plan in connection with the development provided pursuant to clause 9A"; and

  • (c)

    deleting the word "month" and substituting the word "quarter";

(16)   in subclause 24(1) after the word "Railway" inserting the words ", Additional Infrastructure (if any)";

(17)   in clause 26 inserting a comma after the words "for such performance)";

(18)   in clause 27 by:

  • (a)

    deleting the heading and substituting the following new heading "Power to vary periods or dates"; and

  • (b)

    in subparagraph (1) deleting the words "extend or further extend any period or", "for such period or to such later date" and "to be extended has expired" and after the words "vary or further vary any" inserting the words "period or";

(19)   in clause 29 by:

  • (a)

    in paragraph (a) of subclause (1) deleting the words "in the Railway," and substituting the words "in the SRL Railway, Additional Infrastructure (if any),";

  • (b)

    in subclause (2) after each occurrence of the words "SRL Railway" inserting the words ", Additional Infrastructure (if any)";

  • (c)

    in subclause (2) after the words "determination of this Agreement" deleting the semicolon and substituting a colon; and

  • (d)

    after the semicolon at the end of paragraph (a) of subclause (2) inserting the word "and";

(20)   in subclause 32(1) deleting the words "Commercial Arbitration Act 1985 (WA)" and substituting the words "Commercial Arbitration Act 2012 (WA)";

(21)   inserting after clause 33 the following new clauses 33A and 33B:

"Provision of certain information relating to proposals and other matters

  • 33A.

    The Company shall:

(1)          provide to the Minister spatial information relating to proposals and other relevant matters submitted or otherwise notified under this Agreement in a form that can be accessed, viewed and uploaded into a geographic information system (for example, by provision of shapefiles); and

(2)          at the request of the Minister, promptly provide ‘as constructed’ drawings of works, services or facilities (including the Railway and Additional Infrastructure) constructed or modified pursuant to this Agreement to the extent such drawings have been obtained by the Company,

and without limiting any other provisions of this Agreement, which information and drawings will be provided on a confidential basis to the State.

Access by Minister

  • 33B.

    On reasonable prior notice and subject to compliance with reasonable safety requirements and directions, the Company will permit and facilitate the Minister and any other officer or person authorised by them to enter upon any land and access any works, services or facilities for the purpose of making any survey, inspection or examination relating to the administration or purposes of this Agreement."

(22)   in clause 34 by renumbering the existing clause as subclause (1) and inserting the following new subclause (2):

"(2)       Subclause (1) does not preclude the parties providing notices, consents or other writings required by this Agreement by electronic means in accordance with a protocol agreed from time to time by the parties."

(23)   in clause 36 by deleting subclause (2) and deleting the numbering for subclause (1); and

(24)   in clause 37 by inserting the following words at the end of the clause before the full stop "and except for matters to be referred to arbitration pursuant to this Agreement the parties to this Agreement submit to the jurisdiction of the courts of Western Australia in relation to any action or proceeding to settle any dispute or question arising out of or in connection with this Agreement".

EXECUTED as a deed.

SIGNED by THE HONOURABLE ROGER COOK in the presence of:

[Signature]

___________________________________________________

Signature of witness

SARAH GWEN KEEGAN

___________________________________________________

Name of witness

)

)

)

[Signature]                                 

EXECUTED by ROY HILL INFRASTRUCTURE PTY LTD ACN 130 249 633 in accordance with section 127(1) of the Corporations Act 2001 (Cth) by authority of its directors:

[Signature]

___________________________________________________

Signature of director

TADEUSZ WATROBA

___________________________________________________

Full name of director (block letters)

)

)

)

)

)

)

[Signature]

___________________________________________________

Signature of director/company secretary*

GREGORY HAWKINS

___________________________________________________

Full name of director/company secretary* (block letters)

*delete whichever is not applicable

EXECUTED by ROY HILL HOLDINGS PTY LTD ACN 123 721 077 in accordance with section 127(1) of the Corporations Act 2001 (Cth) by authority of its directors:

[Signature]

___________________________________________________

Signature of director

TADEUSZ WATROBA

___________________________________________________

Full name of director (block letters)

)

)

)

)

)

)

[Signature]

___________________________________________________

Signature of director/company secretary*

GREGORY HAWKINS

___________________________________________________

Full name of director/company secretary* (block letters)

*delete whichever is not applicable

EXECUTED by ROY HILL IRON ORE PTY LTD ACN 123 722 038 in accordance with section 127(1) of the Corporations Act 2001 (Cth) by authority of its directors:

[Signature]

___________________________________________________

Signature of director

TADEUSZ WATROBA

___________________________________________________

Full name of director (block letters)

)

)

)

)

)

[Signature]

___________________________________________________

Signature of director/company secretary*

GREGORY HAWKINS

___________________________________________________

Full name of director/company secretary* (block letters)

*delete whichever is not applicable

Actions
Download as PDF Download as Word Document


Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

0