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TASMANIA
__________
EMU BAY RAILWAY (OPERATION AND
ACQUISITION) BILL 2009
__________
CONTENTS
PART 1 PRELIMINARY
1. Short title
2. Commencement
3. Interpretation
PART 2 AUTHORITY OF PN TAS (OPERATIONS) PTY LIMITED
TO OPERATE RAIL BUSINESS ON EMU BAY
RAILWAY
4. Authority of PN Tas (Operations) Pty Limited to operate rail
business on Emu Bay Railway
PART 3 RATIFICATION OF BUSINESS SALE AGREEMENT
5. Ratification of Business Sale Agreement
PART 4 VESTING OF REMAINING INTERESTS IN CROWN OR
NOMINEE
6. Vesting of remaining interests in Crown or nominee
7. Entitlement to compensation for vesting of remaining interest
8. Notices inviting lodgement of compensation claim
PART 5 MISCELLANEOUS
9. Lapsing of caveat
10. Regulations
[Bill 56]-III
11. Administration of Act
12. Consequential amendments
13. Legislation repealed
SCHEDULE 1 CONSEQUENTIAL AMENDMENTS
SCHEDULE 2 LEGISLATION REPEALED
2
EMU BAY RAILWAY (OPERATION AND
ACQUISITION) BILL 2009
(Brought in by the Minister for Infrastructure, the Honourable
Graeme Lindsay Sturges)
A BILL FOR
An Act to authorise the operation of a rail business on the
Emu Bay Railway by PN Tas (Operations) Pty Limited, to
ratify the Business Sale Agreement and to ratify or
approve supplementary agreements, to vest in the Crown
or its nominee certain interests in the Emu Bay Railway
not acquired under the Business Sale Agreement, to amend
the Boundary Fences Act 1908 and the Rail Infrastructure
Act 2007, to repeal certain Acts and for related purposes
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 PRELIMINARY
1. Short title
This Act may be cited as the Emu Bay Railway
(Operation and Acquisition) Act 2009.
2. Commencement
(1) Except as provided in this section, the provisions
of this Act commence on the day on which this
Act receives the Royal Assent.
THIS BILL IS COGNATE WITH THE RAIL COMPANY BILL 2009 AND THE CONSOLIDATED
FUND APPROPRIATION (SUPPLEMENTARY APPROPRIATION FOR 2009-2010) BILL 2009
[Bill 56] 3
Emu Bay Railway (Operation and Acquisition) Act 2009
Act No. of
s. 3 Part 1 Preliminary
(2) Section 12 and Schedule 1 and section 13 and
Schedule 2 commence at the time on the day on
which completion of the Business Sale
Agreement occurs.
3. Interpretation
(1) In this Act, unless the contrary intention
appears
"affected person" means a person who,
immediately before the completion of the
Business Sale Agreement, owns or holds
or is entitled to own or hold any estate in
the subject railway, or part of the subject
railway, pursuant to an Emu Bay security
and, for the avoidance of doubt, includes
(without limitation)
(a) a trustee for the purposes of a
debenture scheme created by an
Emu Bay security; and
(b) a person claiming through such a
trustee; and
(c) the holder, or a person entitled to
be the holder, of a debenture
issued under a debenture scheme
created by an Emu Bay security;
"ASIC" means the Australian Securities and
Investments Commission established by
the Australian Securities and Investments
Commission Act 1989 of the
4
Emu Bay Railway (Operation and Acquisition) Act 2009
Act No. of
Part 1 Preliminary s. 3
Commonwealth and continued by section
261 of the ASIC Act;
"asset" includes any, and any part of any,
property, business, operation and right;
"Business Sale Agreement" means the
agreement (as amended from time to
time), for the sale and purchase of rail
infrastructure and related assets and rail
businesses, entered into on
4 September 2009
(a) by the PN group, as the seller;
and
(b) by the Crown, as the buyer;
"completion of the Business Sale
Agreement" means Completion within
the meaning of the Business Sale
Agreement;
"Emu Bay Railway" means
(a) the railway in Tasmania known
as the Emu Bay Railway, and
also known as the Melba Line,
extending from the port at Emu
Bay in the City of Burnie to
Melba Flats, including the
Handling Facilities within the
meaning of the Business Sale
Agreement; and
(b) the railway known as the Hellyer
Spur which runs from the Hellyer
5
Emu Bay Railway (Operation and Acquisition) Act 2009
Act No. of
s. 3 Part 1 Preliminary
Mine site to the eastern boundary
of the railway referred to in
paragraph (a) at Moory Junction;
"Emu Bay Railway Company" means The
Emu Bay Railway Company Limited
(ACN 009 475 790);
"Emu Bay security" means
(a) ASIC Charge No. 245871; and
(b) ASIC Charge No. 340579; and
(c) the debenture scheme created by
Indenture No. 11/955 registered
in the Registry of Deeds (Hobart)
and each mortgage, charge,
encumbrance or other security
granted under that scheme; and
(d) the debenture scheme created by
Indenture No. 16/9070 registered
in the Registry of Deeds (Hobart)
and each mortgage, charge,
encumbrance or other security
granted under that scheme; and
(e) any other mortgage, charge,
encumbrance or other security
granted by the Emu Bay Railway
Company, or any predecessor in
title of that Company, that affects
the subject railway, or a part of
the subject railway, immediately
before the completion of the
Business Sale Agreement;
6
Emu Bay Railway (Operation and Acquisition) Act 2009
Act No. of
Part 1 Preliminary s. 3
"estate" includes any estate, interest,
easement, right, title, claim, demand,
charge, lien and encumbrance;
"nominee" means a nominee appointed by the
Crown under clause 31.1 of the Business
Sale Agreement to complete the purchase
under that Agreement of some or all of
the Business (including some or all of the
Assets), within the meaning of that
Agreement;
"PN group" means Pacific National Pty Ltd
(ACN 098 060 550), Pacific National
(Tasmania) Pty Limited (ACN
079 371 305), PN Tas (Operations) Pty
Limited (ACN 078 295 468), formerly
known as Tasrail Pty Limited, and PN
Tas (Services) Pty Limited (ACN
078 906 519), together;
"rail business" means the business of rail
haulage on a railway in Tasmania and
associated services, including (without
limitation) capital works, maintenance,
storage, loading, train control and safety
functions, carried on in Tasmania;
"rail infrastructure and related assets"
means
(a) rail infrastructure within the
meaning of the Rail
Infrastructure Act 2007; or
(b) rolling stock within the meaning
of the Rail Safety Act 1997; or
7
Emu Bay Railway (Operation and Acquisition) Act 2009
Act No. of
s. 3 Part 1 Preliminary
(c) any other asset used, or that is
intended for use or has been used,
in connection with the operation
of a rail business in Tasmania; or
(d) any other asset purchased by the
Crown or a nominee under the
Business Sale Agreement;
"railway" includes the track of the railway,
the rail corridor of the railway and all of
the attendant rail infrastructure and
related assets but does not include the
railways, or railways of a kind, specified
in Part 2 of Schedule 1 to the Rail
Infrastructure Act 2007;
"remaining interest" means any estate in the
subject railway, or part of the subject
railway, that is not purchased by the
Crown or a nominee under the Business
Sale Agreement but, immediately before
completion of the Business Sale
Agreement
(a) is owned or held by the Emu Bay
Railway Company; or
(b) is owned or held by an affected
person, or which an affected
person is entitled to own or hold,
pursuant to an Emu Bay security;
"right" includes any right, power, privilege
and immunity, whether actual, contingent
or prospective;
8
Emu Bay Railway (Operation and Acquisition) Act 2009
Act No. of
Part 1 Preliminary s. 3
"subject railway" means that part of the Emu
Bay Railway in relation to which the PN
group is selling its estate under the
Business Sale Agreement.
(2) A reference in this Act to an ASIC Charge with a
number is a reference to a charge entered, with
that number, in the register kept by ASIC under
section 265 of the Corporations Act.
9
Emu Bay Railway (Operation and Acquisition) Act 2009
Act No. of
s. 4 Part 2 Authority of PN Tas (Operations) Pty Limited to Operate Rail
Business on Emu Bay Railway
PART 2 AUTHORITY OF PN TAS (OPERATIONS)
PTY LIMITED TO OPERATE RAIL BUSINESS ON
EMU BAY RAILWAY
4. Authority of PN Tas (Operations) Pty Limited to
operate rail business on Emu Bay Railway
(1) In this section
"Agreement day" means 4 September 2009,
being the day on which the Business Sale
Agreement was made;
"Agreement period" means the period
commencing on the Agreement day and
ending on the completion of the Business
Sale Agreement;
"Company" means
(a) PN Tas (Operations) Pty Limited
(ACN 078 295 468) which was
formerly known as Tasrail Pty
Limited; or
(b) Pacific National Pty Ltd (ACN
098 060 550); or
(c) Pacific National (Tasmania) Pty
Limited (ACN 079 371 305); or
(d) PN Tas (Services) Pty Limited
(ACN 078 906 519);
"contract" means
10
Emu Bay Railway (Operation and Acquisition) Act 2009
Act No. of
Part 2 Authority of PN Tas (Operations) Pty Limited to Operate Rail s. 4
Business on Emu Bay Railway
(a) an agreement, arrangement,
undertaking, lease, licence,
warranty or other contract; or
(b) part of an agreement,
arrangement, undertaking, lease,
licence, warranty or other
contract;
"rail corridor" means the rail corridor of the
Emu Bay Railway or part of the Emu
Bay Railway;
"railway access contract" means a contract
between the Company and another
person or the Crown in respect of the use
of, or access to, the rail corridor.
(2) The Company
(a) is authorised on and after 1 April 1998
until completion of the Business Sale
Agreement to operate a rail business on
the Emu Bay Railway, whether or not
that Company owns all, or any, of the
Emu Bay Railway; and
(b) is taken always to have been so
authorised.
(3) Subsection (2)
(a) does not authorise the Company to
operate a rail business on the Emu Bay
Railway on and after 1 April 1998
11
Emu Bay Railway (Operation and Acquisition) Act 2009
Act No. of
s. 4 Part 2 Authority of PN Tas (Operations) Pty Limited to Operate Rail
Business on Emu Bay Railway
without the accreditation required by
section 6 of the Rail Safety Act 1997; and
(b) does not invalidate or affect any railway
access contract entered into by the
Company on or after 1 April 1998 but
before completion of the Business Sale
Agreement; and
(c) operates on and after the Agreement
day
(i) to extinguish any right of an
owner or occupier of the rail
corridor to require the Company
to pay or provide any fee or other
consideration in respect of its use
of, or access to, the rail corridor
on and after that day if the
Company was not paying or
providing such a fee or other
consideration on that day in
accordance with a railway access
contract; and
(ii) to extinguish any right of an
owner or occupier of the rail
corridor to require the Company,
after the Agreement day, to pay
or provide any fee or other
consideration in respect of its use
of, or access to, the rail corridor
before that day except as
provided by a railway access
12
Emu Bay Railway (Operation and Acquisition) Act 2009
Act No. of
Part 2 Authority of PN Tas (Operations) Pty Limited to Operate Rail s. 4
Business on Emu Bay Railway
contract entered into before that
day.
(4) If a railway access contract that was in effect on
the Agreement day would, but for this
subsection, end during the Agreement period
(a) that railway access contract is taken to
continue in effect until the completion of
the Business Sale Agreement; and
(b) the owner or occupier of the rail corridor
is entitled to require the Company to pay
or provide the fee or other consideration
payable under the railway access contract
in respect of the Company's use of, or
access to, the rail corridor during the
Agreement period.
(5) Nothing in subsection (3) or (4) authorises the
owner or occupier of the rail corridor to prevent
the use of, or access to, the rail corridor by the
Company.
13
Emu Bay Railway (Operation and Acquisition) Act 2009
Act No. of
s. 5 Part 3 Ratification of Business Sale Agreement
PART 3 RATIFICATION OF BUSINESS SALE
AGREEMENT
5. Ratification of Business Sale Agreement
(1) In this section
"supplementary agreement" means any
contract that
(a) amends or otherwise relates to the
Business Sale Agreement; and
(b) is entered into by the parties to
the Business Sale Agreement.
(2) The Business Sale Agreement, and all
supplementary agreements entered into before
the commencement of this section, are ratified.
(3) The Minister, on behalf of the Crown, may enter
into supplementary agreements.
14
Emu Bay Railway (Operation and Acquisition) Act 2009
Act No. of
Part 4 Vesting of Remaining Interests in Crown or Nominee s. 6
PART 4 VESTING OF REMAINING INTERESTS IN
CROWN OR NOMINEE
6. Vesting of remaining interests in Crown or nominee
(1) On completion of the Business Sale
Agreement
(a) if the Crown purchases the whole, or a
part, of the subject railway, all remaining
interests relating to that whole or part
vest in the Crown; and
(b) if a nominee purchases the whole, or a
part, of the subject railway, all remaining
interests relating to that whole or part
vest in the nominee
without need for any further conveyance,
transfer, assignment or assurance.
(2) On completion of the Business Sale Agreement,
the subject railway is freed and discharged
from
(a) all Emu Bay securities; and
(b) all estates connected with or arising out
of any Emu Bay security.
(3) The vesting in the Crown or nominee, by reason
of subsection (1), of remaining interests does not
extinguish any interest in the subject railway, or
a part of the subject railway, that is not a
remaining interest.
15
Emu Bay Railway (Operation and Acquisition) Act 2009
Act No. of
s. 7 Part 4 Vesting of Remaining Interests in Crown or Nominee
7. Entitlement to compensation for vesting of
remaining interest
(1) An affected person is entitled to compensation
for the vesting in the Crown or a nominee, by
reason of section 6, of his or her remaining
interest.
(2) An affected person's entitlement to
compensation under subsection (1) is
extinguished at the end of the period of 6 months
commencing on the day after completion of the
Business Sale Agreement occurs if the affected
person does not lodge a claim for compensation,
in writing, with the Minister within that period.
(3) Compensation is the amount agreed, in writing,
between the affected person and the Minister.
(4) Before agreeing an amount of compensation, the
Minister must obtain the approval of the Valuer-
General to that amount.
(5) In determining whether to approve an amount of
compensation, the Valuer-General is to apply the
same principles, with any necessary
modification, as he or she would apply in
approving an amount of compensation for the
purposes of section 40(8) of the Land
Acquisition Act 1993.
(6) If the affected person and the Minister cannot
agree on the amount of compensation, the claim
for compensation is to be determined as if it
were a disputed claim for compensation under
16
Emu Bay Railway (Operation and Acquisition) Act 2009
Act No. of
Part 4 Vesting of Remaining Interests in Crown or Nominee s. 8
the Land Acquisition Act 1993 and, for that
purpose
(a) a reference in that Act to land is taken to
be or include, as appropriate, a reference
to rail infrastructure and related assets,
including any estates in rail infrastructure
and related assets; and
(b) this section is taken to be a notice of
acquisition, within the meaning of that
Act, validly gazetted on the day after the
day on which completion of the Business
Sale Agreement occurs; and
(c) the Crown is the acquiring authority.
(7) No compensation is payable to the Emu Bay
Railway Company for the vesting in the Crown
or a nominee, by reason of section 6, of its
remaining interest.
8. Notices inviting lodgement of compensation claim
(1) Within one month after the day on which the
completion of the Business Sale Agreement
occurs, the Minister is to
(a) advertise for the lodgement of claims for
compensation by affected persons
(i) at least twice in a newspaper
published and circulating
generally in Tasmania; and
17
Emu Bay Railway (Operation and Acquisition) Act 2009
Act No. of
s. 8 Part 4 Vesting of Remaining Interests in Crown or Nominee
(ii) at least twice in a newspaper
circulating generally in Australia;
and
(iii) at least once in a newspaper
circulating generally in the
United Kingdom; and
(b) notify, in writing, each person who may
be an affected person, and who is known
to the Minister, of his or her right to
compensation under this Act.
(2) Each advertisement and notice under
subsection (1) is to
(a) specify that a claim for compensation is
to be
(i) in writing; and
(ii) lodged with the Minister at the
address stated; and
(b) specify the day by which a claim for
compensation is to be lodged, being the
last day of the period of 6 months
referred to in section 7(2); and
(c) specify that, if a claim for compensation
is not lodged by the day so specified, the
entitlement to compensation is
extinguished; and
(d) specify that the amount of
compensation
18
Emu Bay Railway (Operation and Acquisition) Act 2009
Act No. of
Part 4 Vesting of Remaining Interests in Crown or Nominee s. 8
(i) is to be determined by agreement
between the affected person and
the Minister; or
(ii) if no such agreement can be
reached, is to be determined as a
disputed claim for compensation
under the Land Acquisition Act
1993.
19
Emu Bay Railway (Operation and Acquisition) Act 2009
Act No. of
s. 9 Part 5 Miscellaneous
PART 5 MISCELLANEOUS
9. Lapsing of caveat
A caveat, relating to a remaining interest,
registered under the Land Titles Act 1980 in
respect of the subject railway, or any part of the
subject railway, lapses immediately before
completion of the Business Sale Agreement
despite any contrary provision of that Act.
10. Regulations
(1) The Governor may make regulations for the
purposes of this Act.
(2) The regulations may be made so as to apply
differently according to matters, limitations or
restrictions, whether as to time, circumstance or
otherwise, specified in the regulations.
(3) The regulations may
(a) provide that a contravention of any of the
regulations is an offence; and
(b) in respect of such an offence, provide for
the imposition of a fine not exceeding 50
penalty units and, in the case of a
continuing offence, a further fine not
exceeding 10 penalty units for each day
during which the offence continues.
20
Emu Bay Railway (Operation and Acquisition) Act 2009
Act No. of
Part 5 Miscellaneous s. 11
(4) The regulations may authorise any matter to be
from time to time determined, applied, approved
or regulated by the Minister or the Secretary of
the Department.
(5) The regulations may
(a) provide for savings or transitional
matters necessary or expedient for
bringing this Act into operation or
consequent on the operation of section 6
or 9; and
(b) provide for any of those savings or
transitional matters to take effect on the
day this section commences or on a later
day specified in the regulations, whether
the day so specified is before, on or after
the day on which the regulations are
made.
11. Administration of Act
Until provision is made in relation to this Act by
order under section 4 of the Administrative
Arrangements Act 1990
(a) the administration of this Act is assigned
to the Minister for Infrastructure; and
(b) the department responsible to that
Minister in relation to the administration
of this Act is the Department of
Infrastructure, Energy and Resources.
21
Emu Bay Railway (Operation and Acquisition) Act 2009
Act No. of
s. 12 Part 5 Miscellaneous
12. Consequential amendments
The legislation specified in Schedule 1 is
amended as specified in that Schedule.
13. Legislation repealed
The legislation specified in Schedule 2 is
repealed.
22
Emu Bay Railway (Operation and Acquisition) Act 2009
Act No. of
sch. 1
SCHEDULE 1 CONSEQUENTIAL AMENDMENTS
Section 12
Boundary Fences Act 1908
1. After section 7, the following section is inserted
in Part I:
7A. Act not to apply to rail corridors
(1) In this section
"Rail Infrastructure Manager" has
the same meaning as in the Rail
Infrastructure Act 2007;
"Rail Infrastructure Owner" has the
same meaning as in the Rail
Infrastructure Act 2007;
"rail network" has the same meaning
as in the Rail Infrastructure Act
2007.
(2) Except as provided by or under the Rail
Infrastructure Act 2007 or the Rail Safety
Act 1997, neither a Rail Infrastructure
Owner nor a Rail Infrastructure Manager
is liable to make any contribution
towards the erection or repair of any
dividing fence between any part of the
rail network and the land of any occupier
of land adjoining that part of the rail
network.
23
Emu Bay Railway (Operation and Acquisition) Act 2009
Act No. of
sch. 1
Rail Infrastructure Act 2007
1. Schedule 1 is amended by inserting after item 7
in Part 1 the following items:
8. The "Melba Line" also known as the
"Emu Bay Railway" (being the railway
running from the port at the City of
Burnie on Emu Bay to Melba Flats).
9. The line known as the "Hellyer Spur"
(being the railway running from the
Hellyer Mine site to the eastern boundary
of the Melba Line at Moory Junction).
24
Emu Bay Railway (Operation and Acquisition) Act 2009
Act No. of
sch. 2
SCHEDULE 2 LEGISLATION REPEALED
Section 13
Van Diemen's Land Company's Waratah and Zeehan Railway
Act 1895 (59 Vict.--Private)
Van Diemen's Land Company's Waratah and Zeehan Railway
Act 1896 (60 Vict.--Private)
Burnie to Waratah Railway Act 1939 (No. 54 of 1939)
Van Diemen's Land Company's Waratah and Zeehan Railway
Act 1948 (No. 7 of 1948)
Emu Bay Railway Act 1965 (No. 17 of 1965)
Emu Bay Railway Act 1976 (No. 91 of 1976)
Government Printer, Tasmania 25