Western Australian Current Acts Western Australian Current Acts (1) In this Part
—
adjudicator means any of the following —
(a) a
court;
(b) a
tribunal;
(c) an
arbitrator;
Agreement means the Iron Ore Processing
(Mineralogy Pty. Ltd.) Agreement, a copy of which is set out in Schedule 1
—
(a) as
varied from time to time in accordance with its provisions; and
(b) as
varied by the agreement a copy of which is set out in Schedule 2;
amending Act means the Iron Ore Processing
(Mineralogy Pty. Ltd.) Agreement Amendment Act 2020 ;
arbitration agreement means —
(a) an
arbitration agreement as defined in the Commercial Arbitration Act 1985
section 4(1) immediately before its repeal; or
(b) an
arbitration agreement as defined in the Commercial Arbitration Act 2012
section 7;
arrangement includes (without limitation) the
following —
(a) the
Agreement;
(b) a
relevant arbitration arrangement or relevant mediation arrangement;
(c) any
other contract, deed, agreement or other instrument;
(d) an
understanding;
(e) a
part of an arrangement (including a part of an agreement or other thing
referred to in any of paragraphs (a) to (d));
Balmoral South Iron Ore Project means the project
known as the “Balmoral South Iron Ore Project” as proposed or
described from time to time;
civil wrong includes (without limitation) the
following —
(a) a
tort;
(b) a
breach of trust;
(c) a
breach of confidence;
(d) a
breach of a duty in equity;
(e) a
breach of a written law;
(f)
maladministration, misconduct or any other conduct that, under an Act or law,
could be the subject of an adverse report, adverse finding, penalty or other
sanction of a disciplinary, regulatory or other civil type;
commencement means the coming into operation of
section 7 of the amending Act;
conduct includes (without limitation) the
following —
(a) a
decision or purported decision;
(b) an
omission, or purported omission, to make a decision;
(c) any
other act or omission or purported act or omission;
(d)
without limiting paragraphs (a) to (c) —
(i)
behaviour;
(ii)
the consideration of a matter or thing, or an omission to
consider a matter or thing;
(iii)
the taking into account of, or an omission to take into
account, the interests of a particular person;
(iv)
the knowing, or the believing or suspecting (rightly or
wrongly), of something;
(v)
the commission of a civil wrong;
(vi)
a breach of an arrangement;
connected with —
(a)
means directly or indirectly, and wholly or partly —
(i)
in anticipation of; or
(ii)
preparatory to; or
(iii)
relating to; or
(iv)
caused by; or
(v)
arising out of; or
(vi)
resulting from; or
(vii)
in consequence of; or
(viii)
contributed to by; or
(ix)
connected with in any other way;
and
(b) has
the extended meaning given in subsection (3);
disputed matter means any of the following —
(a) the
Minister’s refusal or purported refusal, on or around 4 September 2012
—
(i)
to accept the first Balmoral South proposal as valid
proposals; and
(ii)
therefore to consider the first Balmoral South proposal
for the purposes of clause 7 of the Agreement;
(b) the
Minister’s omission or purported omission, in respect of the first
Balmoral South proposal, to give notice to the Project Proponents under clause
7(2) of the Agreement within the 2-month period referred to in that clause;
(c) the
Minister’s requirement or purported requirement, on or around 22 July
2014, that the Project Proponents make alterations to the first Balmoral South
proposal and comply with various conditions precedent concerning the first
Balmoral South proposal;
(d) the
Minister’s refusal or purported refusal, on or around 22 August 2013
—
(i)
to accept the second Balmoral South proposal as valid
proposals; and
(ii)
therefore to consider the second Balmoral South proposal
for the purposes of clause 7 of the Agreement;
(e) the
Minister’s omission or purported omission, in respect of the second
Balmoral South proposal, to give notice to the Project Proponents under clause
7(2) of the Agreement within the 2-month period referred to in that clause;
(f) to
the extent not covered by paragraphs (a) to (e), any conduct of the State, or
of a State agent, occurring or arising before commencement and connected with
the Balmoral South Iron Ore Project;
(g) any
other conduct of the State, or of a State agent, occurring or arising before,
on or after commencement and connected with a disputed matter referred to in
any of paragraphs (a) to (f);
(h)
pre-agreement State conduct;
document has the meaning given in the Freedom of
Information Act 1992 in the Glossary clause 1;
first Balmoral South proposal means —
(a) the
Project Proponents’ proposals titled “Balmoral South Iron Ore
Project; Project Proposal for the Western Australian Government”
submitted, or purportedly submitted, under clause 6 of the Agreement on or
around 8 August 2012; and
(b) the
addendum to those proposals titled “Balmoral South Iron Ore Project;
Project Proposal addendum for the Western Australian Government”
submitted, or purportedly submitted, under clause 6 of the Agreement on or
around 22 August 2012;
indemnify includes (without limitation) hold
harmless;
International Minerals means International
Minerals Pty Ltd (ACN 058 341 638);
introduction time means the beginning of the day
on which the Bill for the amending Act is introduced into the Legislative
Assembly;
1
legal costs means costs or expenses connected with
bringing, making or beginning, or defending or responding to, or otherwise
participating in, proceedings or purported proceedings;
liability , except in the definition of non-WA
liability in this subsection —
(a)
means a liability, obligation or duty (whether actual, contingent, prospective
or otherwise and whether incurred alone or jointly or jointly and severally or
otherwise) arising —
(i)
in contract or tort; or
(ii)
under the law of restitution; or
(iii)
in equity; or
(iv)
under a written law; or
(v)
under an order, award, ruling, finding or declaration
made by an adjudicator; or
(vi)
under a direction or other requirement (however
described) made by a body or person appointed under a written law or under an
arrangement; or
(vii)
on any other basis;
and
(b)
includes (without limiting paragraph (a)) a liability, obligation or duty of
the type described in paragraph (a) (whether liquidated or unliquidated) to
pay any of the following —
(i)
damages;
(ii)
compensation;
(iii)
a debt;
(iv)
an amount by way of restitution;
(v)
interest;
(vi)
legal costs;
(vii)
any other type of amount;
and
(c)
includes (without limiting paragraphs (a) and (b)) a non-WA liability;
loss —
(a)
means any loss, harm, damage, cost or expense (whether economic, non-economic
or otherwise and whether actual, contingent, prospective or otherwise); and
(b)
includes (without limiting paragraph (a)) the following —
(i)
loss, harm or damage to reputation;
(ii)
wasted cost or expense;
(iii)
loss of value of rights or other assets (including loss
of value to nil);
(iv)
loss of royalties or other income or profit;
(v)
loss of funding or revenue;
(vi)
loss of opportunity;
Mineralogy means Mineralogy Pty Ltd (ACN 010 582
680);
Mr Palmer —
(a)
means the individual who, on 10 August 2020, is named Clive Frederick Palmer
and is a director of Mineralogy; and
(b)
includes any executor, administrator or trustee of the estate of the
individual referred to in paragraph (a);
non-WA liability —
(a)
means a liability, obligation or duty (whether actual, contingent, prospective
or otherwise and whether incurred alone or jointly or jointly and severally or
otherwise) arising on any basis —
(i)
under the law of the Commonwealth, another State or a
Territory; or
(ii)
under the law of a country or territory, or of a part of
a country or territory, outside Australia; or
(iii)
under international law (including an international
treaty or other agreement or instrument); or
(iv)
otherwise outside Western Australia;
and
(b)
includes (without limiting paragraph (a)) a liability, obligation or duty of
the type described in paragraph (a) that corresponds to, or is substantially
the same as, or is similar to, a liability, obligation or duty of a type
described in the definition of liability in this subsection;
non-WA proceedings means anything that corresponds
to, or is substantially the same as, or is similar to, any proceedings as
defined in this subsection and that takes place or occurs —
(a)
under the law of the Commonwealth, another State or a Territory; or
(b)
under the law of a country or territory, or of a part of a country or
territory, outside Australia; or
(c)
under international law (including an international treaty or other agreement
or instrument); or
(d)
outside Western Australia on any other basis;
Part 3 subsidiary legislation means regulations
under section 29 or an order under section 30;
pre-agreement State conduct means any conduct of
the State, or of a State agent —
(a)
occurring or arising before the making of the agreement, a copy of which is
set out in Schedule 1, and connected with the making of that agreement; or
(b)
occurring or arising before the making of the agreement, a copy of which is
set out in Schedule 2, and connected with the making of that agreement;
proceedings —
(a)
means any of the following —
(i)
an action, suit, complaint, arbitration or other
proceedings brought or made before or to an adjudicator or before or to any
other body or person appointed under a written law or under an arrangement;
(ii)
an application, claim, counterclaim or demand (however
described) brought or made before or to an adjudicator or before or to any
other body or person appointed under a written law or under an arrangement;
(iii)
to the extent not covered by subparagraphs (i) and (ii),
a disciplinary, regulatory or other civil investigation, inquiry or
proceedings under an Act or law;
(iv)
a complaint or allegation (however described) that leads
to, or is capable of leading to, an investigation, inquiry or proceedings
referred to in subparagraph (iii);
and
(b)
includes (without limiting paragraph (a)) proceedings (as defined in paragraph
(a)) connected with any of the following —
(i)
establishing, quantifying or enforcing a liability;
(ii)
seeking a remedy by way of injunction, declaration,
prohibition, mandamus or certiorari or seeking a remedy having the same effect
as any of those remedies or otherwise seeking judicial review of any conduct;
(iii)
seeking discovery, provision, production, inspection or
disclosure of a document or other thing;
(iv)
seeking recognition or enforcement of an arbitral award;
(v)
seeking any other type of remedy, relief, order,
direction, award, ruling or finding (whether interim or permanent and whether
procedural or substantive);
and
(c)
includes (without limiting paragraphs (a) and (b)) non-WA proceedings; and
(d)
includes (without limiting paragraphs (a) to (c)) proceedings (as defined in
paragraphs (a) to (c)) brought, made or begun as part of, or otherwise in the
course of, other proceedings (as so defined);
Project Proponents means Mineralogy and
International Minerals;
protected matter means any of the following
(whether occurring or arising before, on or after commencement) —
(a) the
consideration of courses of action for resolving, addressing or otherwise
dealing with a disputed matter or liabilities or proceedings, or potential
liabilities or proceedings, connected with a disputed matter;
(b) the
preparation of the Bill for the amending Act (including any drafts of that
Bill);
(c) any
decision or recommendation to introduce that Bill into Parliament;
(d) the
introduction of that Bill into Parliament or that Bill’s passage through
Parliament (including any amendment of it during its passage);
(e) the
enactment or coming into operation of the amending Act;
(f) the
consideration of courses of action for resolving, addressing or otherwise
dealing with matters or things to be, or potentially to be, the subject of
Part 3 subsidiary legislation;
(g) the
preparation of any Part 3 subsidiary legislation (including any drafts of Part
3 subsidiary legislation);
(h) any
decision or recommendation to make any Part 3 subsidiary legislation;
(i)
the making, publication or coming into operation of any
Part 3 subsidiary legislation;
(j) the
operation of this Part or any Part 3 subsidiary legislation;
(k) any
of the following connected with a protected matter referred to in any of
paragraphs (a) to (j) —
(i)
any explanation, advice, consultation, discussion,
communication, announcement, disclosure or statement;
(ii)
any omission to explain, advise, consult, discuss or
communicate or to make an announcement, disclosure or statement;
(iii)
any other conduct;
(l) any
matter or thing connected with a protected matter referred to in any of
paragraphs (a) to (k);
relevant arbitration means an arbitration —
(a) that
begins before commencement (whether or not it is completed before
commencement); and
(b) that
concerns a disputed matter; and
(c) to
which the State and the Project Proponents are parties;
relevant arbitration arrangement means an
agreement connected with a relevant arbitration that is made before
commencement by the State, the Project Proponents and the arbitrator;
relevant mediation arrangement means an agreement
for mediation connected with a relevant arbitration that is made before
commencement by the State, the Project Proponents and the mediator;
second Balmoral South proposal means the Project
Proponents’ proposals titled “Balmoral South Iron Ore Project;
Project Proposal for the Western Australian Government” submitted, or
purportedly submitted, under clause 6 of the Agreement on or around 21 June
2013;
State includes (without limitation) the following
—
(a) the
Crown in right of the State;
(b) the
Government of the State;
(c) a
State authority;
State agent means an agent, representative,
advisor or contractor of the State (but, to avoid doubt, does not include,
apart from the State, a party to the Agreement or Mr Palmer);
State authority means any of the following —
(a) the
Governor;
(b) a
Minister of the Crown in right of the State;
(c) a
department of the Public Service;
(d) an
agency, authority, instrumentality or other body (whether or not a body
corporate) established or continued for a public purpose —
(i)
under a written law; or
(ii)
otherwise by the State;
(e) to
the extent not covered by paragraph (d), a government trading enterprise as
defined in the Infrastructure Western Australia Act 2019 section 3;
(f) a
person holding, or exercising the powers of, an office established or
continued for a public purpose —
(i)
under a written law; or
(ii)
otherwise by the State;
(g) a
ministerial officer, or any other employee, as those terms are defined in the
Public Sector Management Act 1994 section 3(1);
(h) a
member, officer or employee of a State authority referred to in any of
paragraphs (d) to (f);
(i)
a person who is appointed to any office or other position
under a written law, or otherwise by the State, for a public purpose and who
is not covered by paragraphs (a) to (h).
(2) Subsection (3)
applies if, in accordance with paragraph (a) of the definition of connected
with in subsection (1), a matter or thing ( matter A ) is connected with
another matter or thing ( matter B ).
(3) For the purposes
of this Part, matter B is also connected with matter A (if that would not
otherwise be the case in accordance with paragraph (a) of the definition of
connected with in subsection (1)).
(4) References in this
Part to proceedings being brought, made or begun against the State include
(without limitation) the following —
(a)
proceedings connected with any of the following being brought, made or begun
—
(i)
establishing, quantifying or enforcing a liability of the
State;
(ii)
in relation to any conduct of the State, seeking a remedy
by way of injunction, declaration, prohibition, mandamus or certiorari or
seeking a remedy having the same effect as any of those remedies or otherwise
seeking judicial review of the conduct;
(iii)
seeking, by or from the State, discovery, provision,
production, inspection or disclosure of a document or other thing;
(iv)
seeking recognition or enforcement of an arbitral award
made in a relevant arbitration;
(v)
seeking any other type of remedy, relief, order,
direction, award, ruling or finding (whether interim or permanent and whether
procedural or substantive) that would be against, or unfavourable to, the
State or otherwise require the State to do, or not to do, anything;
(b) a
disciplinary, regulatory or other civil investigation, inquiry or proceedings
under an Act or law being brought, made or begun in relation to any conduct of
the State.
(5) In applying
subsection (4) for the purposes of section 11 or 19, references in that
subsection to the State are to be read in accordance with section 11(9) or
19(8) (as the case requires).
(6) To avoid doubt,
references in this Part to conduct of the State, or of a State agent, include
conduct of a State authority or State agent (as the case requires) even though
—
(a) the
State authority or State agent subsequently ceases to exist; or
(b) the
person who is the State authority or State agent subsequently ceases to be a
State authority or State agent.
[Section 7 inserted: No. 32 of 2020 s. 7.]