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Department of the Attorney General
Annual Report 2015/16
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Agency Performance

State Solicitor's Office

The State Solicitor’s Office (SSO) provides broad-based legal services to the Government of Western Australia and many State Government departments, instrumentalities and agencies.

These legal services include:

  • conducting litigation
  • providing legal advice
  • representing clients in courts and tribunals
  • preparing a range of legal documents, including contracts, agreements and court documents.

The SSO also advises the Attorney General on legal matters, including those relating to law reform.

Outcomes 2015/16

Significant legal matters addressed by the SSO during the year included:

Protection of the State’s policy interests

Royal Commission

On 11 January 2013 the Commonwealth and State Governments issued Letters Patent appointing a Royal Commission to inquire into and report on institutional responses to child sexual abuse. The Royal Commission is operating in all States and Territories including Western Australia. SSO is assisting agencies by providing legal representation to State officers, including preparing statements for officers who have been asked to prepare statements for the Commission, appearing as counsel at hearings and roundtables, assisting in the preparation of submissions and responses to issue papers and providing legal advice to Government about recommendations made by the Royal Commission in its published reports.

City of South Perth v Simpson

SSO successfully defended a challenge to the validity of steps taken by the State Government to achieve reductions in the numbers of metropolitan local governments by district amalgamations and boundary changes. The SSO represented the Minister for Local Government and the Local Government Advisory Board at the Supreme Court hearing.

Rayney v The State of Western Australia

In 2008, the plaintiff commenced a defamation action against the State in relation to words published at certain police media conferences given in August and September 2007. The action is being prepared for trial and is currently listed for hearing from late February to early April 2017.

Protection of the State’s revenues

Placer and Alacer

SSO acted for the Commissioner of State Revenue in significant disputes arising from the acquisition in 2006 of Placer Dome Inc by Barrick Gold Corp (the Placer matter) and the 2011 merger of Avoca Resources and Anatolia Minerals (the Alacer matter). The disputes concerned valuation issues arising under the land rich provisions of the Stamp Act 1921 and the landholder provision of the Duties Act 2008 respectively. The duties in issue were significant. Both matters were heard by the State Administrative Tribunal during the financial year and the Commissioner was successful in each case. Placer has appealed the adverse outcome and the appeal is pending.

Eclipse Resources

SSO represented the State, the Minister for the Environment and the Chief Executive Officer of the Department of Environment Regulation in legal proceedings against Eclipse Resources Pty Ltd, seeking a recovery of unpaid landfill levy and penalties. After a two-week trial in November 2015, the Government parties were successful, securing an order that Eclipse pay to the Minster $21.4 million in unpaid levy and penalties. Eclipse is currently appealing the decision to the Court of Appeal. The appeal is yet to be listed for hearing. The decision has broader implications for the waste disposal industry with more than $300 million in levies to be
recovered over the forward estimates.

Significant commercial claims

The Bell Group Ltd (in Liquidation)

SSO continued to assist the Insurance Commission of WA in relation to the realisation of the proceeds of settlement of the “Bell proceedings”, Western Australia’s largest and longest running civil case. The litigation is the last dispute involving the State of Western Australia to be resolved arising out of various commercial government activities in the 1980s.

James Point Pty Ltd v WA

SSO represents the State and Ministers for Transport and Lands in defending proceedings brought by James Point Pty Ltd in November 2011 in relation to the development of a private port at James Point in Kwinana. The litigation is highly complex, raising a number of contractual and statutory issues.

Planning and compensation matters

WA Pastoral Management Pty Ltd v Minister for Local Government

The Office successfully defended a judicial review challenge to a determination by the Minister for Local Government changing, for rating purposes, the method of valuation of land which is the subject of a mining tenement.

Kelliher

SSO successfully represented the Commissioner of Main Roads in relation to a compensation claim involving the acquisition of land for the Forrest Highway in which the valuers for the claimant asserted a compensation entitlement of approximately $40 million. In December 2015, the Supreme Court awarded compensation in the sum of $3.41 million, an amount less than the amount of the disputed original offer of compensation already paid to the claimant.

De Beazior

SSO acted for the Western Australian Planning Commission on an assessment of compensation for injurious affection to land attributable to a long-standing public purpose reservation in the Metropolitan Region Scheme. The proceedings commenced prior to the announcement of the Northlink project, for which the land is now required. The case raised a novel and significant legal issue as to whether land which is environmentally valuable and therefore constrained from development should be valued as if it had development potential because of the reservation predating the introduction of environmental protection laws in WA. A decision favourable to the State was delivered in early 2016, but has since been the subject of a Supreme Court appeal, yet to be determined.

Native Title claims

SSO has continued to represent the State in the mediation and litigation of native title claims in the Federal Court and in the arbitration of future act matters involving the grant of mining tenements in the National Native Title Tribunal.

The SSO provides legal and policy advice to Government in all matters involving native title and Aboriginal heritage issues, including possible changes to State law, and assistance in drafting Indigenous Land Use Agreements.

Significant matters included:

The South West Settlement

This is an historic native title settlement, negotiated over a five year period, with the South West Aboriginal Land and Sea Council and the six south-west native title claim groups which culminated in this period.

The settlement, once approved by the Federal Court, involves the surrender of any native title rights and interests by the native title groups in exchange for a comprehensive package of benefits.

These benefits include, among other things, statutory recognition of the Noongar people as traditional owners of the South West Settlement area, the establishment of a Noongar Boodja Trust into which funding instalments of $50 million will be paid yearly for 12 years, and land allocations of up to 320,000 hectares.

As part of the settlement, in 2016 State Parliament enacted the Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Act 2016, which recognises the important relationship the Noongar people have with the Noongar lands, and the significant and unique contribution of Noongar people to the heritage, cultural identity, community and economy of WA. The Act symbolically commenced on Western Australia Day. SSO continues to act on the implementation of the settlement which is expected to commence in early 2017.

Gibson Desert

SSO represented the State in proceedings for compensation as a result of the creation of the Gibson Desert Nature Reserve in 1977. The case was considered a test case for the principles for assessing compensation for extinguishment of native title under the Native Title Act 1993 (Commonwealth). However, the applicant discontinued the claim after Justice Barker found at a preliminary hearing that the reserve had extinguished non-exclusive native title only, and not exclusive possession native title.

Badimia People v State of Western Australia

SSO represented the State in an appeal brought by the Badimia people from the Court’s May 2015 determination that native title does not exist in respect of the Badimia claim area (in the Mid-West region of Western Australia). In May 2016 a full court of five judges dismissed the appeal.

Banjima Appeal

SSO represented the State in an application for special leave to appeal to the High Court from aspects of the Full Court’s final determination of native title and associated reasons for decisions given in June and December 2015. The application for leave to appeal is listed for hearing in July 2016.

Area 4 Compensation Case

SSO is continuing to act in a compensation claim under Land Administration Act 1997 (WA) seeking approximately $87 million for the Thalanyji native title holders, following the taking and extinguishment of the Thalanyji people’s nonexclusive native title rights and interests over 64.8 hectares of land within Onslow. The interests in the land were compulsorily acquired by the Minister for Lands in 2013 to enable the land to be developed by Landcorp for residential and associated uses following significant industrial developments in the Onslow area.

Agreements

The SSO assisted with the negotiation, drafting and implementation of major native title agreements in the Pilbara and Kimberley regions of WA, including agreements for the creation of conservation reserves under the Kimberley Science Conservation Strategy.

Land Administration Amendment Bill 2016 - Rangelands Reform

SSO also provided extensive advice to the Department of Lands on the Rangelands Reform Program designed to enable land tenure reform and diversification of activity on the Rangelands.

Commercial matters

In recent years the SSO has been responsible for delivering the State’s legal resources on a number of key social and economic infrastructure projects. The Office either directly provides legal services or supervises the provision of services by outsourced commercial service providers.

These include the following key projects:

Energy Reform

SSO has been advising the Public Utilities Office in relation to far-reaching reforms of the electricity supply industry in Western Australia. These reforms, still under development and implementation include:

  • a transfer of the operation of WA’s wholesale electricity market from the Independent Market Operator of WA to the Australia Energy Market Operator
  • a transfer of the regulation of electricity and gas networks from the Economic Regulation Authority under WA legislation to the Australia Energy Regulator under the national regimes for gas and electricity (application of the National Electricity Law and National Gas Law in WA)
  • a transfer of responsibility for the security and reliability of the South West interconnected system (electricity network) from Western Power to the Australian Energy Market Operator
  • numerous reforms to the WA Wholesale Electricity Market, including the introduction of constrained access for generators, extensive modifications to the ‘reserve capacity mechanism’ and new institution (governance arrangements)
  • preparation for the introduction of full retail contestability and new arrangements for the relationships between Western Power, electricity retailers and retail customers.

The legal demand of this reform program has been extensive. SSO has co-ordinated and overseen the work of four different external advisers engaged on behalf of the Public Utilities Office to meet the needs of the State Government’s reform agenda.

Government Asset Sales Program

SSO has been significantly involved in the State Government’s Asset Sale program, which comprises:

  • the sale of the Perth Market site for approximately $135 million in February 2016. This project also included the winding up of the Perth Market Authority
  • the proposed divestment of the Fremantle Port. This divestment is proposed to be in the form of a long term lease and has an expected value of $2 billion
  • the proposed divestment of the Utah Point Bulk Handling Facility. This divestment is proposed to be in the form of a long term lease and has an expected value of $250-400 million
  • the proposed divestment of part of the Keystart loan book, and ongoing Keystart operational funding
  • a potential divestment of the Totalisator Agency Board (note that this divestment is at a preliminary stage and the State has not yet undertaken scoping or due diligence of the WA TAB).

The projects described above required solicitors from SSO to be members of the steering committees and subcommittees, provide detailed opinions and advice, draft and review procurement and transaction documents, prepare drafting instructions for, and review drafts of, divestment legislation, assist the Treasurer and other Ministers during State Parliament’s consideration of the divestment legislation, while providing or arranging for and co-ordinating the full range of legal services to each project.

Forrestfield Airport Link Project

This project involves the 8.5 km extension of the metropolitan passenger rail network from Forrestfield in the Shire of Kalamunda to the Perth CBD. SSO acts in respect of the procurement and contractual documentation required for the project.

Perth Children’s and Fiona Stanley Hospital Project and Midland Hospital Project

The Perth Children’s Hospital, with an estimated budget of $1.2 billion, is being delivered at the QEII site in Nedlands. The new Midland regional hospital in the eastern suburbs of Perth is being delivered by a private service provider under contract to the State. The SSO has worked with external service providers in all aspects of the contract and delivery, building on the success of the Fiona Stanley Hospital.

Karratha Health Campus

The SSO drafted the Karratha Health Campus Managing Contractor Agreement and supported the State in contract negotiations. The contract was successfully executed in July 2015. Support continued throughout 2015/16 as this $207 million regional health facility proceeds through the design phase.

Melaleuca Remand and Re-integration Facility

This project delivers a new 254-bed women’s remand and re-integration facility, to accommodate the State’s increasing population of sentenced and remand women prisoners. The contract to construct the $24.3 million stand-alone facility was awarded to ADCO Construction and Building Australia in November 2015 and is on track for completion in October 2016.

New Museum Project

The 24,000m² new structure in the Perth Cultural Centre, Northbridge will be built on the existing WA Museum site.

The project is considered one of the most significant museum redevelopments in the world with the State Government allocating some $428 million for the redevelopment. The SSO has provided all of the legal advice to the State in respect of the procurement and contractual documentation required for the project. The State is currently in negotiations with its preferred respondent with a view to agreeing contractual terms to manage construction of the New Museum and an energy efficiency system upgrade for the Perth Culture Centre.

Eastern Goldfields Regional Prison Project

This $232 million project involves the replacement of the existing Eastern Goldfields Regional Prison with a new facility to cater for both genders across minimum, medium and maximum security ratings.

Acacia Prison

SSO acted for the Department of Corrective Services in its negotiations with Serco around extension of the Acacia Prison Services Agreement. The contract was extended for a further five years. Estimated savings to Government arising from renegotiated pricing represents $55 million over five years. Additional benefits include the installation of a further 75 beds in Acacia Prison, as well as some capital improvements to security and prisoner management, each at Serco’s cost, and a commitment by the Department and Serco to implement performance benchmarks which will provide financial incentives to improve performance in areas such as recidivism rates and program completion by prisoners.

Northlink WA Project

The $1.12 billion NorthLink WA project is a joint Federal and State Government-funded project that will provide a vital, state of the art transport link between Morley and Muchea.

It will reduce travel times and congestion, and provide significant productivity benefits to the economy, industry, motorists and local communities.

The project will link to Gateway WA, servicing regional traffic movements to commercial and industrial areas such as Malaga, Kewdale, Perth Airport and the Perth CBD.

New Perth Stadium

Built on the Burswood Peninsula, this project provides a 60,000-seat world class stadium designed for multidiscipline sporting and entertainment events, together with associated transport infrastructure. SSO has provided advice on the procurement process, including the Expression of Interest and Request for Proposal phases. In conjunction with an external services provider, the Office continues to provide support for the closing out of the design, build, finance and maintain Project Agreement and ongoing advice during the construction phase and Stadium operator and user agreements.

WA Schools PPP Project

This project delivers a package of four new primary schools and three new secondary schools as well as the second stage of an existing secondary school. The project uses a public private partnership model with the successful private sector proponent designing, constructing, financing and maintaining the schools over the next 25 years.

General operations of Government

While the matters listed above represent some of the high points of SSO’s activities, in terms of the size, media prominence and complexity of the work, much of the work undertaken by the SSO is in direct support of the broader operations of Government.

During 2015/16 the SSO provided advice and representation to 85 departments and agencies. This work included:

  • responding to 4,146 requests for advice
  • assessing or undertaking 689 prosecutions
  • representing agencies in 100 coronial inquests
  • appearing in more than 148 superior court and Tribunal hearings for which judgements were published during the year
  • supporting the State in 114 industrial relations matters
  • delivering more than 4,800 other legal activities in support of the delivery by Government of policies and programs.

Last updated: 27-Sep-2016

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