The NSW Parliament gave the NSW government no authority to pay NSW Ports Pty Ltd for any containers that are shipped through the Port of Newcastle.
Parliament authorised Port Botany and Port Kembla to be leased by passing the “Ports Assets (Authorised Transactions) Act 2012” in November 2012.
The government concealed from the public and Parliament its intention to pay a future lessee for containers shipped through the Port of Newcastle. Parliament did not authorise the government entering into a major financial obligation of which the public and Parliament had no knowledge.
The government’s lease agreements with NSW Ports for Port Botany and Port Kembla are unlawful while they include the unauthorised payment obligation.
Parliament gave the government no authority to obtain funds from a future lessee of the Port of Newcastle for meeting its obligation to pay NSW Ports. Parliament authorised the Port of Newcastle to be leased by passing the “Ports Assets (Authorised Transactions) Amendment Act 2013” in July 2013.
The government concealed from the public and Parliament its intention to obtain the funds for paying NSW Ports, from a future lessee of the Port of Newcastle. Parliament did not authorise the government linking the Port of Newcastle lease to the Port Botany and Port Kembla leases.
The government’s lease agreement with Port of Newcastle Investments Pty Ltd (PoN) is unlawful while it includes the obligation to pay the government for any cost the government incurs to NSW Ports, due to containers being shipped through the Port of Newcastle.
No decision had been made to lease the Port of Newcastle when the government required Mayfield Development Corporation Pty Ltd (MDC), in August 2013, to pay the government should the government make any payment to NSW Ports, due to MDC’s activities in the Port of Newcastle.
The government terminated its negotiation with MDC in November 2013 because the payment requirement was for an unauthorised purpose.
Current litigation in the Federal Court has no bearing on the government’s lack of authority to pay NSW Ports, or to recover the cost from MDC and later, PoN.