South Australian Current Acts South Australian Current ActsTHE COMMONWEALTH OF AUSTRALIA
-and-
THE STATE OF SOUTH AUSTRALIA
IN RELATION TO THE NON-METROPOLITAN RAILWAYS OF THE STATE OF SOUTH AUSTRALIA
CONTENTS
|
Clause | | |
|---|---|---|
|
1 |
INTERPRETATION | |
| |
1.1 |
Definitions |
| |
1.2 |
General |
| |
1.3 |
Successor to Australian National |
| |
1.4 |
Ministerial Delegates |
| |
1.5 |
Headings |
|
2 |
ENABLING LEGISLATION | |
| |
2.1 |
Commonwealth Legislation |
| |
2.2 |
State Legislation |
|
3 |
CONDITIONS | |
| |
3.1 |
Conditions Precedent |
| |
3.2 |
Effect of Non-Fulfilment |
| |
3.3 |
Fulfilment by Waiver |
| |
3.4 |
Obligation to Satisfy Conditions |
| |
3.5 |
Extent of Obligation to Fulfil Conditions |
| |
3.6 |
Effective Date |
|
4 |
RAIL TRANSFER AGREEMENT | |
| |
4.1 |
Waiver of Rights as from Effective Date |
| |
4.2 |
Preservation of Other Rights |
| |
4.3 |
Waiver of Reversionary Rights to AN House |
| |
4.4 |
Cessation of Services by the Commonwealth |
| |
4.5 |
Variation of Tarcoola to Alice Springs Railway Agreement |
|
5 |
TRANSFER OF RAILWAYS LAND | |
| |
5.1 |
Agreement to Transfer |
| |
5.2 |
Satisfaction by Statutory Vesting |
| |
5.3 |
Extent of Interest in Railways Land |
| |
5.4 |
Certificates as to Railways Land |
| |
5.5 |
Subdivisions |
| |
5.6 |
Transfer of Subdivided Land |
|
6 |
TRACK INFRASTRUCTURE | |
| |
6.1 |
Severance |
| |
6.2 |
Interstate Mainline Track and Other Land |
| |
6.3 |
Track Infrastructure on Leigh Creek Line |
| |
6.4 |
Track Infrastructure on South Eastern Lines |
|
7 |
REMEDIATION PROGRAM | |
| |
7.1 |
Remediation by the Commonwealth |
| |
7.2 |
No Admission of Liability |
| |
7.3 |
Cessation of Commonwealth Liability |
| |
7.4 |
Completion of Remediation |
| |
7.5 |
Disputes |
|
8 |
INDEMNITIES | |
| |
8.1 |
Liabilities Associated with Land Ownership |
| |
8.2 |
Commonwealth Indemnity |
| |
8.3 |
State Indemnity |
| |
8.4 |
Reduction of Liability |
| |
8.5 |
Employee Liabilities |
|
9 |
LEASES | |
| |
9.1 |
Ground Lease |
| |
9.2 |
Passenger Terminal Site Lease |
|
10 |
PINNAROO LINE | |
| |
10.1 |
Commonwealth to Undertake Standardisation |
| |
10.2 |
State Contribution |
|
11 |
AMENDMENT | |
| |
11.1 |
Power to Amend |
| |
11.2 |
Amendments to be Tabled in Parliaments |
| |
11.3 |
Effective Date of Amendments |
|
12 |
GENERAL | |
| |
12.1 |
Notices |
| |
12.2 |
Governing law |
| |
12.3 |
Waiver |
| |
12.4 |
Severability |
| |
12.5 |
Counterparts |
| |
12.6 |
Further assurance |
| |
12.7 |
Disputes |
|
SCHEDULE 1 | ||
| |
Address for Notices | |
|
SCHEDULE 2 | ||
| |
Excluded Land | |
|
SCHEDULE 3 | ||
| |
Interstate Mainline Track | |
|
SCHEDULE 4 | ||
| |
Track Infrastructure | |
|
SCHEDULE 5 | ||
| |
Leigh Creek Line | |
AGREEMENT made 30 June 1997
BETWEEN:
(1) THE COMMONWEALTH
OF AUSTRALIA ; and
(2) THE STATE OF SOUTH
AUSTRALIA.
RECITALS:
A. Australian National
and its predecessor in law the commonwealth Railways Commissioner has with the
consent of the State acquired land in the State for the purpose of the
construction and extension of railways in the State.
B. Pursuant to the
Rail Transfer Agreement the right title and interest of the South Australian
Railways Commissioner in all land in the State used for the non-metropolitan
railways and services was with the consent of the State acquired by, and
pursuant to the Railways Transfer Legislation vested in, Australian National.
C. Since the declared
date under the Rail Transfer Agreement, Australian National has administered,
maintained and operated the non-metropolitan railways and services in the
State.
D. The Commonwealth
proposes on the Effective Date:
(a) to
vest in the State the Commonwealth Railways Land and the SAR Land (other than
the Excluded Land);
(b) to
vest in SAGC the Track Infrastructure on the Leigh Creek Line;
(c) to
vest in the Freight Operator certain assets of Australian National used in
connection with the non-metropolitan railways and services (other than land);
and
(d) to
vest in the Passenger Operator those assets of Australian National (other than
land) used in connection with the Passenger Services,
and to complete the sale by public tender of the shares in the Freight
Operator and the shares in the Passenger Operator.
E. The Commonwealth
and the State have agreed to enter into this agreement for the purpose of:
(a)
varying the Rail Transfer Agreement;
(b)
providing for the transfer to the State of the SAR Land and the Commonwealth
Railways Land (other than the Excluded Land);
(c)
providing for the long term lease by the State to the Freight Operator of the
Operational Railways Land and to the Passenger Operator of the Keswick
Passenger Terminal Land,
and for necessary and incidental matters.
IT IS AGREED AS FOLLOWS:
INTERPRETATION
1.1 Definitions
In this agreement unless the context otherwise requires:
" Adelaide to Crystal Brook Railway Agreement " means the agreement dated
11 August 1980 approved by the Railway Agreement (Adelaide to Crystal
Brook) Act 1980 (Commonwealth) and the Railway Agreement (Adelaide to
Crystal Brook) Act 1980 (South Australia);
" Australian National " means Australian National Railways Commission a
statutory corporation established under the Australian National Railways
Act 1917 and continued in existence pursuant to the Australian National
Railways Commission Act 1983 ;
" Bulk Handling Facilities " has the meaning given to that expression in
section 18a(4) of the Bulk Handling of Grain Act 1955 (South Australia)
(each a " Bulk Handling Facility ");
" Business Day " means a day other than a weekend or public holiday in Sydney,
Canberra and Adelaide;
" Commonwealth " means the Commonwealth of Australia as a party to this
agreement;
" Commonwealth Minister " means the Minister of the Commonwealth for the time
being having responsibility for administration of this agreement;
" Commonwealth Railways Land " means the estate or interest of Australian
National on the Effective Date in the land referred to in recital A (other
than Excluded Land);
" Condition Satisfaction Date " means the date which is six months after the
date of this agreement (or such later date as the Commonwealth Minister and
the State Minister or their respective delegates agree in writing);
" Contamination " means affectations or degradation of land by the presence of
any chemical substance (including without limitation any dangerous good,
hazardous material, asbestos or any waste) where, having regard to the use of
the land or of any other land in its vicinity, the chemical substance creates
or may create a risk of harm to any person or to the environment;
" Effective Date " means the date on which the Sale Agreement is completed (or
such other date as the Commonwealth Minister and the State Minister or their
respective delegates may agree in writing);
" Excluded Land " means:
(a) the
land described in the schedule 2;
(b) any
land in respect of which Australian National has entered into a contract for
sale as at the date of this agreement; and
(c) any
other land certified by the Commonwealth Minister and the State Minister to be
Excluded Land for the purposes of this agreement;
" Freight Operator " means the person nominated as the Freight Operator for
the purposes of this agreement by notice in writing from the Commonwealth
Minister to the State Minister given at any time prior to the Effective Date;
" Ground Lease " means a lease by the State to the Freight Operator of the
Operational Railways Land containing (subject to clause 9.1) such terms and
conditions as the Commonwealth and the State may agree;
" Interstate Mainline Track " means the right title and interest of Australian
National in, and its access transit or running rights over, the rail corridors
carrying the interstate standard gauge railway line within the State
comprising:
(a) the
land granted, reserved or acquired for the construction of a railway or for
railway purposes on each of the line sections specified in respect of that
line section in column 1 of schedule 3 as authorised by and delineated in or
pursuant to the instruments specified in column 2 of schedule 3 (or in any
other relevant instrument modifying or varying such corridor); and
(b) the
Track Infrastructure on or over the land referred to in (a) above;
but excluding any part of that land which is referred to in clause 5.5(b) upon
its transfer to the State;
" Keswick Passenger Terminal Land " means that part of the SAR Land which is
used on the Effective Date in connection with the Passenger Services (being
the land leased to the Passenger Operator pursuant to and more particularly
described in the Passenger Terminal Site Lease);
" land " includes:
(a) a
legal or equitable estate in land; and
(b) a
right, power or privilege over, or in connection with, land
but does not include Track Infrastructure severed from land as contemplated by
clause 6.1;
" Leigh Creek Line " means the right title and interest of Australian National
in all land granted, reserved or acquired for the construction of the railway
on the rail corridors specified in schedule 5 (or in any other relevant
instrument modifying or varying such corridor) excluding any part of those
corridors which constitutes Interstate Mainline Track;
" Loss or Claim " means, in relation to any person, a damage, loss, cost,
expense or liability incurred by the person or a claim, demand, action,
proceeding or judgment made against the person, however arising and whether
present or future, fixed or unascertained, actual or contingent;
" Operational Railways Land " means that part of the SAR Land and Commonwealth
Railways Land (other than the Leigh Creek Line) which is used on, or intended
by the Freight Operator to be used after, the Effective Date in connection
with the Railway Services (being the land to be leased to the Freight Operator
pursuant to the Ground Lease);
" Passenger Terminal Site Lease " means a lease by the State to the Passenger
Operator of the Keswick Passenger Terminal Land containing (subject to clause
9.2) such terms and conditions as the Commonwealth and the State may agree;
" Passenger Operator " means the person nominated as the Passenger Operator
for the purposes of this agreement by notice in writing from the Commonwealth
Minister to the State Minister given at any time prior to the Effective Date;
" Passenger Services " means the passenger rail services known as the Indian
Pacific, The Ghan and The Overland as operated by Australian National on the
Effective Date;
" Property Identification Folder " means the folder initialled by the parties
for the purposes of identification and marked "A" containing copies of plans
of the Excluded Land or parts thereof;
" Railway Services " means services provided in association with the
Operational Railways Land including the handling, storage and carriage of
freight by rail (and incidentally by road), the storage, servicing and
maintenance of rolling stock, the maintenance and replacement of Track
Infrastructure and the maintenance and operation of signalling and
communication equipment (but excluding the Passenger Services);
" Rail Transfer Agreement " means the agreement dated 21 May 1975 a copy of
which is set out in the schedule to the Railways Transfer Legislation;
" Railways Transfer Legislation " means the Railways Agreement (South
Australia) Act 1975 (Commonwealth) and the Railways (Transfer Agreement)
Act 1975 (South Australia) ;
" Remediation Program " means the program for the remediation of certain
parcels of land to be transferred to the State under clause 5.1 identified as
such by agreement in writing signed by the Commonwealth Minister and the State
Minister or their respective delegates;
" SACBH " means South Australian Co-operative Bulk Handling Limited
(ACN 007 556 256) a company limited by guarantee;
" SAGC " means SA Generation Corporation (trading as Optima Energy) a
statutory authority established pursuant to the Electricity Corporations
Act 1996 (SA) ;
" Sale Agreement " means an agreement for the sale by the Commonwealth of its
shares in the Freight Operator and the Passenger Operator (or if more than
one, each such agreement);
" SAR Land " means the estate or interest of Australian National on the
Effective Date in the land referred to in recital B (other than Excluded
Land);
" South Eastern Lines " means the rail corridors carrying the broad gauge
lines (including yards, sidings, crossing loops and goods loops) from Wolseley
to Mount Gambier, Millicent to Mount Gambier and Mount Gambier to the
Victorian border;
" the State " means the Crown in right of the State of South Australia as a
party to this agreement;
" State Minister " means the Minister of the State for the time being having
responsibility for administration of the Rail Safety Act 1996 ;
" Tarcoola to Alice Springs Railway Agreement " means the agreement dated
10 April 1974 approved by the Tarcoola to Alice Springs Railway
Act 1974 (Commonwealth) and the Tarcoola to Alice Springs Railway
Act 1974 (South Australia);
" Track Infrastructure " has the meaning given in schedule 4.
1.2 General
In this agreement, unless the context otherwise requires:
(a) a
reference to any law or legislation or legislative provision includes any
statutory modification or re-enactment of, or legislative provision
substituted for, and any subordinate legislation issued under, that
legislation or legislative provision;
(b) a
reference to a recital, clause or schedule is to a recital, clause or schedule
in this agreement;
(c) a
reference to a person includes a corporation, partnership, joint venture,
association, authority, trust, state or government;
(d) the
singular includes the plural and vice versa;
(e) a
reference to any agreement or document is to that agreement or document (and,
where applicable, any of its provisions) as amended, novated, supplemented or
replaced from time to time; and
(f) a
reference to "amendment" includes addition, alteration, deletion, extension,
modification and variation;
1.3 Successor to Australian National
Subject to any law or regulation to the contrary, if Australian National is
dissolved or otherwise ceases to exist, the rights and obligations of
Australian National under this agreement will upon such dissolution become the
rights and obligations of the Commonwealth, and all references to Australian
National are to be read and construed as references to the Commonwealth.
1.4 Ministerial Delegates
Any act, notice, instrument or agreement required or permitted to be
performed, given or signed by the Commonwealth Minister or the State Minister
may be performed, given or signed on their behalf by their respective
delegates duly authorised in writing either generally or specifically to do
so.
1.5 Headings
In this agreement, headings are for convenience of reference only and do not
affect interpretation.
ENABLING LEGISLATION
2.1 Commonwealth Legislation
The Commonwealth will take all practical steps to seek the enactment of
legislation:
(a)
authorising the Commonwealth Minister to approve and enter into this agreement
on behalf of the Commonwealth;
(b)
authorising the performance and observance of this agreement by the
Commonwealth;
(c)
making such provision as is necessary or appropriate for the implementation by
the Commonwealth of this agreement and the transactions contemplated by this
agreement including provisions facilitating:
(i)
the termination or variation of the Rail Transfer
Agreement;
(ii)
the vesting in the State the SAR Land and the
Commonwealth Railways Land;
(iii)
the vesting in SAGC the Track Infrastructure on the Leigh
Creek Line; and
(iv)
the issuing of certificates by the Commonwealth Minister
and the State Minister or their respective delegates identifying the SAR Land
or the Commonwealth Railways Land (or any part thereof).
2.2 State Legislation
The State will take all practical steps to seek the enactment of legislation:
(a)
authorising the State Minister to approve and enter into this agreement on
behalf of the State;
(b)
authorising the performance and observance of this agreement by the State;
(c)
authorising the State Minister to approve and enter into the Ground Lease and
the Passenger Lease on behalf of the State;
(d)
authorising the performance and observance by the State of the Ground Lease
and the Passenger Lease;
(e)
giving effect for the purposes of the laws of the State (including without
limitation the Real Property Act 1886 and the Crown Lands Act 1929
) to the transfer to the State of the legal estate in fee simple in the SAR
Land and the Commonwealth Railways Land;
(f)
authorising the registration of the Ground Lease and the Passenger Lease under
the provisions of the Real Property Act 1886 ;
(g)
providing for such exemptions as may be appropriate for the owner or occupier
for the time being of the Operational Railways Land from the laws of the State
in relation to:
(i)
fencing;
(ii)
State taxes and charges; and
(iii)
municipal rates, taxes and charges;
(h)
providing for such exemptions as may be appropriate from the laws of the State
in relation to the sale of liquor and the conduct of gaming activities on the
Passenger Services;
(i)
making such provision as is necessary or appropriate for
the implementation by the State of this agreement and the facilitation of the
operation of the Railway Services and the Passenger Services including:
(i)
varying the Rail Transfer Agreement;
(ii)
issuing of certificates by the Commonwealth Minister or
the State Minister or their respective delegates as to the identification of
the SAR Land and the Commonwealth Railways Land (or any part thereof) for the
purposes of the Real Property Act 1886 or otherwise;
(iii)
facilitating the severance and separate ownership of the
Track Infrastructure from the SAR Land and the Commonwealth Railways Land
(including the Leigh Creek Line).
CONDITIONS
3.1 Conditions Precedent
The obligations of the parties under this agreement (other than under clauses
2.1 and 2.2) do not become binding and no party is under an obligation to any
other party unless:
(a) the
legislation referred to in clauses 2.1 and 2.2 comes into operation; and
(b) the
conditions precedent specified in the Sale Agreement are satisfied or waived,
before the Condition Satisfaction Date.
3.2 Effect of Non-Fulfilment
If the conditions referred to in clause 3.1 are not fulfilled (or waived under
clause 3.3) on or before the Condition Satisfaction Date, then this agreement
is at an end as to its future operation except for the enforcement of any
right or claim which arises on or has arisen before this agreement comes to an
end.
3.3 Fulfilment by Waiver
A condition referred to in clause 3.1 is waived if, and only if, the parties
agree in writing to waive the condition.
3.4 Obligation to Satisfy Conditions
The parties must do anything needed on their part to ensure that the
conditions referred to in clause 3.1 are fulfilled on or before the Condition
Satisfaction Date. No party is under any express or implied obligation to
procure fulfilment of any condition referred to in clause 3.1, and is not
liable to any other party for any Loss or Claim whatever arising out of, or in
connection with, or relating to the non-fulfilment of any condition.
3.5 Extent of Obligation to Fulfil Conditions
The obligation imposed on the parties by clause 3.4 does not require a party
to waive any condition under clause 3.3.
3.6 Effective Date
Subject to satisfaction or waiver of the conditions referred to in clause 3.1,
this agreement takes effect on the Effective Date.
RAIL TRANSFER AGREEMENT
4.1 Waiver of Rights as from Effective Date
Subject to clause 4.2, the State unconditionally waives and forever
relinquishes its rights under the Rail Transfer Agreement and the Adelaide to
Crystal Brook Railway Agreement as from the Effective Date to the extent
necessary:
(a) to
permit the Freight Operator to operate the Railway Services;
(b) to
permit the Passenger Operator to operate the Passenger Services; and
(c) to
facilitate the transfer to or vesting in the Freight Operator, the Passenger
Operator and SAGC of the Track Infrastructure,
freed and discharged from any obligation to consult with or obtain the consent
or approval of the State in relation to any matter which prior to the
Effective Date required the consent or approval of, or conferred any rights
on, the State.
4.2 Preservation of Other Rights
Nothing in clause 4.1 operates to relinquish or vary the rights of the State:
(a)
under clause 11(8) of the Rail Transfer Agreement and under clause 25(2) of
the Adelaide to Crystal Brook Railway Agreement in respect of that portion of
the Interstate Mainline Track which comprises SAR Land;
(b)
under clause 11(8) of the Rail Transfer Agreement in respect of the Islington
Freight Terminal (being the land described in item 2 of schedule 2); and
(c)
under any other provision of the Rail Transfer Agreement or the Adelaide to
Crystal Brook Railway Agreement other than those expressly waived or
relinquished under clause 4.1.
4.3 Waiver of Reversionary Rights to AN House
The State agrees that it will on the Effective Date without any further
instrument and by force of this clause unconditionally waive its rights under
clause 11(8) of the Rail Transfer Agreement in respect of that part the
Excluded Land referred to in item 7 of schedule 2;
4.4 Cessation of Services by the Commonwealth
The State consents to the cessation by the Commonwealth and Australian
National of Railway Services in the State on and from the Effective Date and
releases Commonwealth and Australian National from all obligations howsoever
arising to administer, maintain and operate or otherwise work the railways of
the State (other than the Interstate Mainline Track).
4.5 Variation of Tarcoola to Alice Springs Railway
Agreement
The Tarcoola to Alice Springs Railway Agreement is varied as from the
Effective Date by deleting clause 5 of that agreement.
TRANSFER OF RAILWAYS LAND
5.1 Agreement to Transfer
The Commonwealth agrees that it will transfer or will procure the transfer to
the State on the Effective Date of:
(a) the
SAR Land (other than any Excluded Land)
(b) the
Commonwealth Railways Land (other than any Excluded Land).
5.2 Satisfaction by Statutory Vesting
The obligation of the Commonwealth under clause 5.1 may be satisfied by the
vesting of those assets in the State by Ministerial declaration pursuant to
the Commonwealth legislation referred to in clause 2.1.
5.3 Extent of Interest in Railways Land
The land referred to in clause 5.1 is to be transferred to the State without
reservation of minerals and unlimited as to depth.
5.4 Certificates as to Railways Land
A certificate signed by the Commonwealth Minister and the State Minister or
their respective delegates identifying:
(a) the
land referred to in clause 5.1 or any part thereof;
(c) the
land referred to in clause 5.5(b) or any part thereof; or
(b) the
Excluded Land or any part thereof; or
shall be conclusive evidence for any purpose as to whether a parcel of land
specified in the certificate forms part of the SAR Land, the Commonwealth
Railways Land or the Excluded Land (as the case may be).
5.5 Subdivisions
If:
(a) any
Excluded Land is included in the title to a parcel of land to be transferred
to the State under clause 5.1; or
(b) the
parties agree after the date of this agreement that any land forming part of
the Interstate Mainline Track is surplus to that reasonably required or likely
to be required for the purposes of providing a corridor and associated access,
storage and communications facilities for interstate rail transport,
the Commonwealth will arrange at its cost for a subdivision of the relevant
land to be carried out. The State will render and will procure that its
authorities render all such assistance as may be reasonably necessary to
facilitate that subdivision.
5.6 Transfer of Subdivided Land
Upon completion of the subdivision and issue of titles, an instrument of
transfer in registrable form will be signed and delivered to the State in
respect of the land referred to in clause 5.5 which is to be transferred to
the State. Property and (subject to clause 8) risk in that land shall
pass to the State:
(a) in
the case of land referred to in clause 5.5(a), upon vesting under clause 5.2
notwithstanding that separate titles have not been issued; and
(b) in
the case of land referred to in clause 5.5(b), upon the date of transfer.
TRACK INFRASTRUCTURE
6.1 Severance
It is the intention of the commonwealth and the State that to the extent that
any item of Track Infrastructure is affixed to the Operational Railways Land,
the Keswick Passenger Terminal Land or the Leigh Creek Line then that item
shall first be deemed to be severed from the land to which it is affixed and
may be transferred to or vested by the Commonwealth in the Freight Operator,
the Passenger Operator or SAGC respectively as personal property capable of
separate ownership from the land.
6.2 Interstate Mainline Track and Other Land
For the avoidance of doubt, nothing in this agreement shall constitute a
severance or any agreement to sever the Track Infrastructure from the
Interstate Mainline Track or from any land other than the Operational Railways
Land, the Keswick Passenger Terminal Land or the Leigh Creek Line.
6.3 Track Infrastructure on Leigh Creek Line
The Commonwealth agrees that it will transfer or will procure the transfer to
SAGC on the Effective Date of the Track Infrastructure on, over or under the
Leigh Creek Line. The obligation of the Commonwealth under this clause may be
satisfied by the vesting of that Track Infrastructure by ministerial
declaration pursuant to the Commonwealth legislation referred to in clause
2.1.
6.4 Track Infrastructure on South Eastern Lines
If the South Eastern Lines do not form part of the Operational Railway Land:
(a) the
State may for a period of 3 months after the Effective Date endeavour to
procure an offer for the purchase from the Commonwealth of all or any part of
the South Eastern Lines; and
(b) the
Commonwealth shall be at liberty (for a period commencing 3 months and ending
12 months after the Effective Date) to remove or authorise the removal of any
item of Track Infrastructure on those lines and redeploy that Track
Infrastructure on any part of the Operational Railway Land on such terms and
conditions as the Commonwealth shall determine. The Commonwealth and its
agents and contractors shall have such access to the relevant land as may be
necessary to dismantle and remove that Track Infrastructure.
REMEDIATION PROGRAM
7.1 Remediation by the Commonwealth
Subject to clauses 7.2 and 7.3, the Commonwealth undertakes at its own cost to
discharge the liability of the parties for remediation of identified
Contamination of the land to be transferred to the State under clause 5.1:
(a) to
the environmental standards applicable generally in the State as at the date
of this agreement; and
(b)
having regard to the purpose for which the land is used at the date of this
agreement (or at the date on which the land was last used),
in accordance with the Remediation Program.
7.2 No Admission of Liability
The undertaking on the part of the Commonwealth in clause 7.1 is given
voluntarily without any admission as to liability for the contamination and
irrespective of the party or parties legally liable for such remediation.
7.3 Cessation of Commonwealth Liability
The Commonwealth's liability under clause 7.1 ceases when the moneys allocated
in the Remediation Program have been fully expended in or towards:
(a)
carrying out the Remediation Program;
(b) the
issuing of acceptance certificates pursuant to clause 7.4; and
(c) to
the extent of any surplus, the discharging of any liability of the State for
any Loss or Claim of the type referred to in clause 8.1 which arises from
Contamination.
7.4 Completion of Remediation
A review of the Remediation Program shall be carried out in such manner as the
Commonwealth Minister and the State Minister agree. The State agrees that the
Commonwealth will be released from any further liability under clause 7.1 in
respect of a parcel of land on the State Minister confirming in writing that
the Remediation Program on that land has been satisfactorily completed to the
standard required by that clause.
7.5 Disputes
Any party may refer a dispute under this clause to arbitration in accordance
with clause 12.7.
INDEMNITIES
8.1 Liabilities Associated with Land Ownership
Subject to this clause 8, nothing in this agreement relieves any party from or
indemnifies it against any Loss or Claim arising from injury, loss or damage
suffered, or from events or circumstances occurring, at any time which Loss or
Claim arises from or is associated with the ownership, occupation, use, state
or condition of any land (including any Contamination) or the consequences
thereof.
8.2 Commonwealth Indemnity
The Commonwealth indemnifies the State against any Loss or Claim of the type
referred to in clause 8.1 for which the Commonwealth is liable except to the
extent that it was caused or contributed to by the State.
8.3 State Indemnity
The State indemnifies the Commonwealth against any Loss or Claim of the type
referred to in clause 8.1 for which the State is liable except to the extent
that it was caused or contributed to by the Commonwealth.
8.4 Reduction of Liability
The liability of a party for a Loss or Claim of the type referred to in clause
8.1 shall be reduced to the extent to which it is satisfied pursuant to the
Remediation Program.
8.5 Employee Liabilities
Notwithstanding clause 8.1, the State and its instrumentalities and agencies
have no liability for any Loss or Claim by or in respect of a person who
became an officer or employee of the Commonwealth or Australian National by
operation of the Railways Transfer Legislation.
LEASES
9.1 Ground Lease
The State agrees that it will on the Effective Date sign and deliver to the
Freight Operator the Ground Lease. The Ground Lease will contain such terms
and conditions as may be agreed between the parties, including provisions:
(a) for
an initial term of 50 years;
(b)
entitling the State to terminate the lease in respect of all or any part of
the Operational Railways Land if:
(i)
the lessee becomes insolvent;
(ii)
within the first 5 years of the term of the lease the
lessee fails to provide for a continuous period of six months the minimum
services nominated by the lessee and specified in the lease; or
(iii)
the Operational Railways Land or that part ceases to be
used for Railway Services for a continuous period of eighteen months;
(c) for
the transfer to the State at its option of the Track Infrastructure on any
part of the Operational Railways Land in respect of which the lease has
terminated:
(i)
where that termination occurs within 5 years of the
commencement of the lease, at no consideration; and
(ii)
in any other case, at valuation on the basis of continued
railways usage;
(d) for
rental to be charged:
(i)
for rail corridors, at a nominal rent; and
(ii)
for other land, at a nominal rent for the first 5 years
and at commercial rates thereafter;
(e) for
the excision from the Operational Railways Land of any land which is or
subsequently becomes a Bulk Handling Facility so as to facilitate the lease of
that land to SACBH; and
(f) that
the Track Infrastructure on that land will not be removed without the prior
written consent of the State.
9.2 Passenger Terminal Site Lease
The State agrees that it will on the Effective Date sign and deliver to the
Passenger Operator the Passenger Terminal Site Lease. The Passenger Terminal
Site Lease will contain such terms and conditions as may be agreed between the
parties, including provisions:
(a) for
an initial term of 50 years;
(b)
entitling the State to terminate the lease in respect of all or any part of
the Keswick Passenger Terminal Land if:
(i)
the lessee becomes insolvent; or
(ii)
the Keswick Passenger Terminal Land or that part ceases
to be used for Passenger Services for a continuous period of eighteen months;
(c) for
the transfer to the State at its option of the Track Infrastructure on any
part of the Keswick Passenger Terminal Land in respect of which the lease has
terminated:
(i)
where that termination occurs within 5 years of the
commencement of the lease, at no consideration; and
(ii)
in any other case, at valuation on the basis of continued
railways usage;
(d) for
rental to be charged at a nominal rate for the first 5 years (or for so much
of this period as the specified services continue to be provided) and at
commercial rates thereafter; and
(e) that
the Track Infrastructure on that land will not be removed without the prior
written consent of the State.
PINNAROO LINE
10.1 Commonwealth to Undertake Standardisation
The Commonwealth agrees that it will at its cost complete or procure the
completion within 12 months of the Effective Date (or such other period as the
Commonwealth Minister and the State Minister may agree) of the conversion to
standard gauge of the line from Pinnaroo to Tailem Bend to the same standard
as applied on the standardisation of the Loxton to Tailem Bend line.
10.2 State Contribution
The State agrees that it will contribute to the cost of the work to be carried
out under clause 10.1 in an amount being the lesser of:
(a)
$2,000,000; and
(b) one
third of the expenditure incurred by the Commonwealth in carrying out that
work (as certified in the event of a dispute by the Australian National Audit
Office).
AMENDMENT
11.1 Power to Amend
The provisions of this agreement may be amended by an agreement in writing
signed by the Commonwealth Minister and the State Minister or their respective
delegates. This agreement may be so amended on more than one occasion.
11.2 Amendments to be Tabled in Parliaments
A copy of an agreement under clause 11.1 shall be tabled in the Commonwealth
and the State Parliaments within 15 sittings days from the date on which the
agreement is made.
11.3 Effective Date of Amendments
An agreement under clause 11.1 shall, if not disallowed by any Parliament
within 15 sitting days of being tabled, take effect at the expiration of 15
sitting days of the Parliament in which the agreement is last tabled.
GENERAL
12.1 Notices
A notice, consent approval or similar communication under this agreement must
be in writing signed by or on behalf of the person giving it, addressed to the
person to whom it is to be given and delivered sent by pre-paid mail or
transmitted by facsimile to that person's address set out in schedule 1 or
another address of which that person may from time to time give notice to each
other person.
12.2 Governing Law
This agreement is governed by the law in force in the State and the parties
submit to the non-exclusive jurisdiction of the courts of the State and any
courts which may hear appeals from those courts in respect of any proceedings
in connection with this agreement.
12.3 Waiver
The non-exercise of or delay in exercising any power or right of a party does
not operate as a waiver of that power or right, nor does any single exercise
of a power or right preclude any other or further exercise of it or the
exercise of any other power or right. A power or right may only be waived in
writing, signed by the party to be bound by the waiver.
12.4 Severability
Any provision in this agreement which is invalid or unenforceable in any
jurisdiction:
(a) is
to be read down for the purposes of that jurisdiction, if possible, so as to
be valid and enforceable; or
(b) if
the provision cannot be read down under paragraph (a), is capable of being
severed to the extent of the invalidity or unenforceability,
without affecting the remaining provisions of this agreement or affecting the
validity or enforceability of that provision in any other jurisdiction.
12.5 Counterparts
This agreement may be executed in any number of counterparts and all of those
counterparts taken together constitute one and the same instrument.
12.6 Further assurance
Each party must do, sign, execute and deliver and must procure that each of
its agents does, signs, executes and delivers, all deeds, documents,
instruments and acts reasonably required of it or them by notice from another
party to carry out and give full effect to this agreement and the rights and
obligations of the parties under it.
12.7 Disputes
Where there is a dispute between the parties in respect of this agreement or
any of its provisions (a " Dispute "):
(a) any
party may at any time after the Dispute arises give to the other parties a
notice containing full particulars of the Dispute, including terms proposed
for settlement of the Dispute;
(b) if
the Dispute is not resolved between the parties within 28 days of the giving
of the notice, any party may refer the Dispute to the arbitration of an
independent arbitrator appointed by the Commonwealth Minister and the State
Minister;
(c) the
arbitrator shall not perform his or her functions as an arbitrator under any
law relating to arbitration, but shall act as an independent expert; and
(d) the
costs of an arbitration under this clause will be shared equally by the
Commonwealth and the State.
SCHEDULE 1
Address for Notices
(clause 12.1)
|
Party |
Address |
|---|---|
|
The Commonwealth of Australia |
The Secretary, Facsimile: (06) 274 7819 |
|
The State of South Australia |
Chief Executive Officer, Facsimile: (08) 8343 2497 |
SCHEDULE 2
Excluded Land
|
Item No. |
Description |
Title or other particulars |
|---|---|---|
|
1 |
Interstate Mainline Track |
See Schedule 3 |
|
2 |
Islington Freight Terminal |
That part of the land comprised in Certificate of title volume 5276 folio 917
and the whole of the land in certificate of title volume 4397 folio 698 marked
"NRC" and delineated in yellow on page 1 of the Property Identification
Folder. |
|
3 |
Cooinda Complex (including ANI tennis club) |
That part of the land in certificate of title volume 5266 folio 549 marked
"Cooinda Complex" and delineated in yellow on page 2 of the Property
Identification Folder. |
|
4 |
ANI Bowling Club |
The whole of the land in certificate of title volume 5253 folio 943. |
|
5 |
ANI Stirling Golf Club, |
The whole of the land in certificate of title volume 4384 folio 532. |
|
6 |
Seafield Towers, |
The whole of the land in certificate of title volume 2587 folio 119. |
|
7 |
AN House (including car park and associated buildings), |
That part of the land comprised in certificate of title volume 5387 folio 966
marked "AN House", "AN Institute" and "SAMHS" and delineated in yellow on page
3 of the Property Identification Folder. |
SCHEDULE 3
Interstate Mainline Track
|
Rail Corridor |
Relevant agreement and/or enabling legislation authorising the construction,
and establishing the route, of the railway |
|---|---|
|
Kalgoorlie to Port Augusta |
Construction authorised by, and the route set out in the schedule to, the
Kalgoorlie to Port Augusta Railway Act 1911 (Cth) Land granted by South Australia and Western Australia in an agreement dated 14
November 1912 (as amended in the case of Western Australia by an agreement
dated 9 September 1914) set out in the schedule to the Kalgoorlie to Port
Augusta Railway Lands Act 1918 (Cth) and subject to the Transcontinental
Railway Land Grant Act 1911 (SA) and the
Transcontinental Railway Act 1911 (WA) |
|
Tarcoola to Alice Springs |
Agreement dated 10 April 1974 set out in the schedule to the Tarcoola to
Alice Springs Railway Act 1974 (Cth) and the Tarcoola to Alice Springs
Railway Agreement Act 1974 (SA) . |
|
Port Augusta to Whyalla |
Agreement dated 26 February 1970 set out in the schedule to the Port Augusta
to Whyalla Railway Act 1970 (Cth) and the Port Augusta to Whyalla Railway
Agreement Act 1970 (SA) |
|
Port Augusta to Port Pirie |
Agreement dated 29 November 1935 set out in the schedule to the Port Augusta
to Port Pirie Railway Act 1935 including the route of the railway from
Port Augusta to Solomontown (a suburb of Port Pirie) |
|
Adelaide to Crystal Brook |
Agreement dated 11 August 1980 set out in the schedule to the Railway
Agreement (Adelaide to Crystal Brook) Act 1980 (Cth) comprising a
non-urban sector from Salisbury to Crystal Brook (first schedule part 1) and
an urban sector from Keswick passenger terminal to Salisbury (first schedule
part 2). |
|
Dry Creek South to Outer Harbor |
Agreement dated 11 August 1980 set out in the schedule to the Railway
Agreement (Adelaide to Crystal Brook) Act 1980 (Cth) comprising the
branch line from Dry Creek to Gillman and Port Adelaide (first schedule part 2
clause B1) and the connection from Gillman Yard "D" Cabin to Outer Harbor
(first schedule part 3). |
|
Port Pirie to NSW border |
Authorised by and constructed pursuant to the Port Pirie Railway Act 1873
(SA) , the Petersburg and Border Railway Act 1884 (SA) , the Petersburg
and Border Railway Amendment Act 1886 (SA) and the Railway Deviation
Act 1896 (SA) as varied on conversion to standard gauge pursuant to the
Port Pirie to Cockburn Railway Deviation Act 1964 (SA) . |
|
Adelaide to Victorian Border |
Authorised by and constructed pursuant to: (a)
Adelaide to Nairne Railway Act 1878 (SA) ; and (b) The
Nairne to Victorian Border Railway Act 1882 (SA) , with deviations
authorised pursuant to the Nairne to Victorian Border Railway Deviation
Act 1924 (SA) . |
SCHEDULE 4
Track Infrastructure
For the purposes of this agreement the expression " Track Infrastructure "
means the following improvements, whether or not constituting fixtures at law,
owned by Australian National on the Effective Date:
(a)
trackwork including without limitation, rail lines, crossing loops, level
crossings, sleepers, ballast, fastenings, points, poles, pylons, pipes,
drains, structures, supports, overhead lines, buffer stops, posts and signs;
(b)
earthworks and formations including cuttings, embankments, tunnels (including
any tunnel lighting and ventilation), ditches and retaining walls;
(c)
bridges, culverts, overpasses, underbridges, viaducts, jetties and wharves;
(d)
signalling and train control and communications systems (including signal
boxes, huts and telegraph and transmission lines and instruments) which are
necessary for the safe and proper movement of trains;
(e)
access roads, approaches, footpaths, gates, cattle stops, and fences; and
(f)
buildings and other structures including platforms, railway stations,
passenger terminals, freight sheds, freight terminals, roundhouses, workshops
and associated buildings.
SCHEDULE 5
Leigh Creek Line
|
Rail Corridor (including land used for yards, sidings, crossing loops and
goods loops) |
Relevant agreement and/or enabling legislation authorising the construction,
and establishing the route, of the railway |
|
Interstate Mainline Track (lead 19) to Northern Power Station loop (lead 26) |
Port Augusta Spur Agreement dated 28 June 1962 between the Commonwealth
Railways Commissioner and The Electricity Trust of South Australia and
subsequent arrangements set out in an unsigned Port Augusta Loop Agreement
between Australian National and The Electricity Trust of South Australia. |
|
Stirling North to Brachina |
Agreement forming the schedule to the Stirling North to Brachina Railway
Act 1952 (Commonwealth) |
|
Brachina to Leigh Creek North Coalfield |
Agreement forming the schedule to the Brachina to Leigh Creek North Coalfield
Railway Act 1950 (Commonwealth) and the Leigh Creek North Coalfield
Railway Agreement Act 1950 (South Australia). |
|
SIGNED by THE HONOURABLE JOHN RANDALL SHARP Minister for Transport and
Regional Development of the Commonwealth in the presence of: |
} |
JOHN SHARP |
|
R GIBSON | |
|
|
| | |
|
SIGNED by THE HONOURABLE DIANA LAIDLAW Minister for Transport of the State of
South Australia in the presence of: |
} |
DIANA LAIDLAW |
|
H L WEBSTER | |
|
|
| | |