PARLIAMENT OF VICTORIA
Delivering Victorian Infrastructure (Port of
Melbourne Lease Transaction) Bill 2015
TABLE OF PROVISIONS
Clause
Page
Part 1—Preliminary
1
2
3
4
5
6
7
8
9
10
1
Purposes
Commencement
Definitions
Meaning of port assets
Meaning of transfer
Words and expressions defined in Corporations Act
Associated assets
Functions for the purposes of an authorised transaction
Act to bind the Crown
Extraterritorial operation of Act
1
3
3
6
7
8
8
8
9
9
Part 2—Authorised transactions
10
Division 1—Transfer of port assets
10
11
12
Authorised transfer of port assets
Proceeds of transaction
10
11
Division 2—The Victorian Transport Fund
13
14
15
16
13
Victorian Transport Fund
Payments into the Fund
Payments out of the Fund
Delegation of power to authorise payments
13
13
14
14
Part 3—Facilitating authorised transactions
15
Division 1—Premier's functions
15
17
18
Premier's functions
Manner of effecting authorised transaction
Division 2—Functions of the Port Corporation
19
20
21
Additional functions of the Port Corporation
Direction and control of the Port Corporation
Immunity of directors and officers of the Port Corporation
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15
15
15
15
16
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Page
Division 3—Transaction entities
22
23
24
25
26
27
28
17
Establishment of statutory corporations as transaction entities
Establishment of companies as transaction entities
Designation of subsidiary company of the Port Corporation
as transaction entity
Transaction entity does not represent the State
Functions of transaction entities
Direction and control of transaction entities
Immunity of directors and officers of transaction entity
17
19
19
20
20
20
21
Part 4—Arrangements for transfer of port assets
23
Division 1—Transfer orders
23
29
30
31
32
33
34
35
36
37
38
39
40
41
Making of transfer orders
Vesting of assets, rights and liabilities in transferee
Terms and conditions of transfer order
Consideration for vesting
Transfer subject to encumbrances
Substitution of party to agreement
Transfer of interests in land
Transfer of rights and interests in vehicles and recreational
vessels
Confirmation of vesting
Determinations by Premier
Amendment of Land Titles Register
Amendment of VicRoads vehicles register
Evidence
Division 2—Grant of relevant authorisations
42
Grant of relevant authorisations
48
49
26
26
26
27
27
28
28
28
Part 5—Arrangements relating to transfer of Port Corporation
staff
43
44
45
46
47
23
23
24
24
24
25
25
Definitions
Meaning of employment guarantee period
Designation of a private sector employer
Temporary transfers (secondments)
Transfers to private sector employment of Port Corporation
executive employees
Limitation on changes to terms and conditions of transferred
employees
Continuity of entitlements of transferred employees
31
31
33
33
33
34
34
36
Part 6—Crown land for the purposes of authorised transactions
38
Division 1—Application of Part
38
50
Land Acts and certain land provisions do not apply
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Division 2—Removal of reservations on land
51
52
53
54
Revocation of reservations
Revocation of reservations—part of reservation
Effect of revocation of reservation
Preservation of leases and licences
Division 3—Leasing and licensing of Crown land
55
Grant of lease or licence of Crown land for the purposes of
an authorised transaction
38
38
38
39
40
42
42
Part 7—General
45
Division 1—General matters relating to authorised transactions
45
56
57
58
59
Severance of fixtures
Protection of contractual and other obligations
Compensation not payable
Port of Melbourne leases
Division 2—Operation of other laws
60
61
62
63
64
65
66
67
68
69
50
Excluded matter for Corporations Act
State taxes and fees
Application of Borrowing and Investment Powers Act 1987
Operation of Public Administration Act 2004
Operation of State Owned Enterprises Act 1992
Operation of Transport Integration Act 2010
No land tax is payable
Rates under Local Government Act 1989
Inconsistency with prescribed legislation
Competition and Consumer Act and Competition Code
Division 3—Miscellaneous
70
71
50
51
52
52
52
53
53
53
53
53
56
Delegation
Orders
56
57
Division 4—Regulations
72
45
46
47
48
57
Regulations
57
Part 8—Transaction-related amendments
58
Division 1—Amendment of Transport Integration Act 2010
58
73
74
75
76
77
Definition
Object of Port of Melbourne Corporation
Functions of Port of Melbourne Corporation
New section 141EA inserted
Dredging by Port of Melbourne Corporation
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58
58
59
62
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Clause
Page
Division 2—Amendment of Port Management Act 1995
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
107
108
109
110
111
112
113
114
115
116
117
118
119
120
Definitions
Owner of vessel or cargo
New section 4A inserted
Accountability for damage
Liability of certain persons
New section 44H substituted and new sections 44HAA and
44HA inserted
Notice of annual licence fee
Method of payment of annual licence fee
New sections 44M and 44N inserted
Definitions
Application of Part
New section 48 substituted and new section 48A inserted
Price regulation—prescribed services
New Division 2 of Part 3 inserted
New Divisions 2A and 2B of Part 3 inserted
New Division 3 heading substituted
Repeal of section 53
General power to make determinations
New Division heading inserted
New section 54A inserted
Standards and conditions of service and supply
New Division heading inserted
Division 5 of Part 3 substituted
New Division 6 of Part 3 inserted
Towage requirements determination
Process for making a towage requirements determination
Determination of towage conditions
Limitation on making towage conditions determinations
Process for making towage conditions determination
New sections 74AA and 74AB inserted
Wharfage fees—port of Melbourne
Channel fees
Payment of wharfage and channel fees
Interest on overdue payments
Security for payment of wharfage and channel fees
Liability of current owners and agents
Waiver or refund of wharfage or channel fees
Definitions for the purposes of Part 5A
Making a declaration of restricted access area
Effect of declaration
Pollution abatement by Port of Melbourne Corporation
New section 88JA inserted
Recovery of costs of clean up by Port of Melbourne
Corporation
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62
62
64
64
64
65
65
67
68
68
70
73
74
75
77
82
90
90
90
91
92
92
92
93
98
98
99
100
100
101
101
102
104
105
106
106
106
106
107
107
107
107
108
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121
122
123
124
125
126
127
128
129
130
131
132
133
134
135
136
137
138
139
140
Page
New section 88KA inserted
Hazardous port activity notice
New section 88P substituted
Removal of things
Powers when moving things
Requirement to make enquiries as to owner of thing
Disposal of thing
Recovery of costs
Payment of compensation
Proceeds of disposal where owner not located
New Part 5C inserted
New section 91BA inserted
Port manager's responsibilities for management plans
Safety and environment management plans
Audits of compliance
Ministerial directions
Reporting
Definitions for the purposes of Part 6B
Port Development Strategy
Regulations
Division 3—Amendment of Marine Safety Act 2010
141
142
143
144
145
146
147
148
149
Definitions
Principle of shared responsibility
New Part 2.2A inserted
New section 200 substituted
Offence to fail to comply with standard determined under
this Part
New Part 5.2A inserted
Provision or maintenance of navigation aids by Safety
Director
Recovery of costs
Acquisition of land
Division 4—Amendment of Marine (Drug, Alcohol and Pollution
Control) Act 1988
150
Definitions
Definitions
Order declaring a regulated industry
Right of appeal
Appeal panel
130
131
133
133
133
134
v
134
138
Definitions for the purposes of Part XII
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128
128
128
130
134
135
135
137
Division 6—Amendment of Land Act 1958
155
128
134
Division 5—Amendment of Essential Services Commission Act
2001
151
152
153
154
109
109
110
110
111
111
111
112
112
112
113
125
126
126
126
127
127
127
127
127
138
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156
Page
Crown property in beds and banks of certain watercourses
Division 7—Repeal of amending Part
157
138
139
Repeal of amending Part
139
Part 9—Port of Melbourne Corporation name change
amendments
140
Division 1—Amendment of Transport Integration Act 2010
140
158
159
160
Definitions
Division heading substituted
Port of Melbourne Corporation name change to Victorian
Ports Corporation (Melbourne)
Division 2—Consequential amendments
161
162
141
141
Reference to Port of Melbourne Corporation
Consequential amendments
Division 3—Repeal of amending Part and Schedule 1
163
140
140
Repeal of amending Part and Schedule 1
Schedule 1—Consequential amendments
141
142
142
142
143
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Endnotes
1
151
General information
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BILL LA INTRODUCTION 26/5/2015
PARLIAMENT OF VICTORIA
Introduced in the Assembly
Delivering Victorian Infrastructure
(Port of Melbourne Lease Transaction)
Bill 2015
A Bill for an Act to authorise and facilitate the leasing of land in the
port of Melbourne and disposal of assets of the Port of Melbourne
Corporation to a private sector entity, to establish the Victorian
Transport Fund, to make related amendments to the Transport
Integration Act 2010, the Port Management Act 1995, the Marine
Safety Act 2010, the Essential Services Commission Act 2001 and
consequential amendments to other Acts and for other purposes.
The Parliament of Victoria enacts:
Part 1—Preliminary
1 Purposes
The main purposes of this Act are—
(a) to authorise and facilitate transactions under
which land in the port of Melbourne is
leased, and assets of the Port of Melbourne
5
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Bill 2015
Part 1—Preliminary
Corporation are disposed of, to a private
sector entity; and
(b) to establish the Victorian Transport Fund
into which the proceeds of transactions
referred to in paragraph (a) are to be paid;
and
5
(c) to guarantee the employment entitlements of
employees of the Port of Melbourne
Corporation who become employees of a
private sector entity in connection with the
transactions referred to in paragraph (a); and
10
(d) to amend the Transport Integration Act
2010 and the Port Management Act 1995 to
revise the Port of Melbourne Corporation's
functions and powers to reflect the port of
Melbourne's operation by the private sector
entity and the Port of Melbourne
Corporation's continuing role in relation to
the port; and
15
20
(e) to amend the Port Management Act 1995
and the Essential Services Commission Act
2001 to establish a new licensing and
economic regulatory framework to apply to
the private sector entity that will be
providing services at the port of Melbourne
through its operation of the port; and
25
(f) to amend the Marine Safety Act 2010 to
ensure that the private sector entity operating
the port of Melbourne, when carrying out
activities at the port, is subject to marine
safety duties; and
30
(g) to make consequential amendments to other
Acts.
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Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction)
Bill 2015
Part 1—Preliminary
2 Commencement
(1) Subject to subsection (2), this Act comes into
operation on a day or days to be proclaimed.
5
(2) If a provision of this Act does not come into
operation before 30 June 2017, it comes into
operation on that day.
3 Definitions
In this Act—
10
15
assets means any legal or equitable estate or
interest (whether present or future, whether
vested or contingent) in real or personal
property of any description;
associated assets means any assets, rights and
liabilities designated under section 7 as
associated assets;
authorised transaction means a transfer of port
assets authorised by Part 2;
Crown land includes a stratum of Crown land;
20
exercise, in relation to a function, includes
perform a duty;
function includes power, authority or duty;
lease includes—
(a) concurrent lease; and
(b) sublease, sublease of a sublease or any
further sublease; and
25
(c) concurrent sublease, concurrent
sublease of a concurrent sublease or
any further concurrent sublease of a
concurrent sublease;
30
liabilities means all liabilities, duties and
obligations, whether actual, contingent or
prospective;
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Bill 2015
Part 1—Preliminary
licence includes sublicence, sublicence of a
sublicence or any further sublicence;
port assets has the meaning given by section 4;
5
Port Corporation means the Port of Melbourne
Corporation within the meaning of the
Transport Integration Act 2010;
port of Melbourne has the same meaning as in the
Port Management Act 1995;
10
port of Melbourne seabed means the Crown land
comprising the area of waters that are port of
Melbourne waters and, to avoid doubt,
includes any stratum of that land;
port of Melbourne waters has the same meaning
as in the Port Management Act 1995;
15
private sector entity means any person other than
a public sector entity;
public sector entity means any of the following—
(a) the State;
(b) the Minister;
20
(c) the Port Corporation;
(d) the Port of Hastings Development
Authority within the meaning of the
Transport Integration Act 2010;
(e) the Victorian Regional Channels
Authority within the meaning of the
Transport Integration Act 2010;
25
(f) a public entity within the meaning of
the Public Administration Act 2004;
(g) any other person acting on behalf of the
State;
30
(h) a corporation established under
section 22;
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Bill 2015
Part 1—Preliminary
(i) a company established in accordance
with section 23, but only while all the
shares in the company are held by or on
behalf of an entity referred to in
paragraphs (a) to (h);
5
(j) a wholly-owned subsidiary of an entity
referred to in paragraphs (c) to (i);
relevant land Ministers means—
15
(a) in sections 51 and 52, the Minister
administering the Crown Land
(Reserves) Act 1978, the Minister
administering the Coastal
Management Act 1995 and the
Minister administering Part IX of the
Land Act 1958; and
20
(b) in section 55, the Minister
administering the Coastal
Management Act 1995 and the
Minister administering Part IX of the
Land Act 1958;
10
rights means all rights, powers, privileges and
immunities, whether actual, contingent or
prospective;
25
transaction arrangement means a transaction,
agreement or other arrangement entered into
by or on behalf of a public sector entity for
the purposes of an authorised transaction;
transaction entity means—
(a) a corporation established under
section 22; or
30
(b) a company established in accordance
with section 23; or
(c) a company designated under section 24;
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Part 1—Preliminary
transaction proceeds means the proceeds of the
transfer of port assets to a private sector
entity under an authorised transaction;
5
transfer, in relation to port assets, has the
meaning given by section 5;
transfer date means the date of coming into effect
of a transfer order;
transfer order means an order made under
Division 1 of Part 4;
10
15
transferee means the person or body in whom any
assets, rights and liabilities are vested by a
transfer order;
transferor means the person or body from whom
any assets, rights or liabilities are divested by
a transfer order;
vehicle has the same meaning as in the Road
Safety Act 1986;
Victorian Transport Fund means the Fund
established under section 13.
20
4 Meaning of port assets
(1) Port assets are the following—
(a) the assets, rights and liabilities of the Port
Corporation;
(b) associated assets.
25
30
(2) Port assets include assets, rights and liabilities
vested in a public sector entity that were port
assets before their transfer to a public sector entity
for the purposes of an authorised transaction.
(3) However, assets, rights and liabilities cease to be
port assets when they are transferred (other than
under a lease or licence) to a private sector entity
for the purposes of an authorised transaction.
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Part 1—Preliminary
5 Meaning of transfer
(1) A transfer, in relation to port assets, includes the
sale, lease or licensing of port assets, and the
creation and transfer of any interest in port assets.
5
(2) To avoid doubt, for the purposes of subsection (1)
each of the following is a creation and transfer of
an interest in port assets—
(a) a declaration of trust relating to port assets
the specification of which forms part of the
declaration of trust or part of the transaction
constituted by the declaration of trust;
10
(b) a surrender of an interest in port assets;
(c) a change in the beneficial ownership of port
assets.
15
(3) In this section—
beneficial ownership includes, but is not limited
to, ownership of assets by a person as trustee
of a trust;
20
change in beneficial ownership includes, but is
not limited to the following—
(a) the creation of an asset;
(b) the extinguishment of an asset;
(c) a change in equitable interests in an
asset;
25
(d) an asset becoming the subject of a trust;
(e) an asset ceasing to be the subject of a
trust;
30
declaration of trust means any declaration
(other than by a will or testamentary
instrument) that any identified asset vested
or to be vested in the person making the
declaration is or is to be held in trust for the
person or persons, or the purpose or
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Bill 2015
Part 1—Preliminary
purposes, mentioned in the declaration
although the beneficial owner of the asset, or
the person entitled to appoint the asset, may
not have joined in or assented to the
declaration.
5
6 Words and expressions defined in Corporations Act
10
In this Act the following words and expressions
have the same meanings respectively as they have
in section 9 of the Corporations Act unless the
context or subject-matter otherwise requires—
(a) associated entity;
(b) company;
(c) director;
(d) dispose;
15
(e) issue;
(f) officer;
(g) related body corporate;
(h) securities;
(i) subsidiary;
20
(j) wholly-owned subsidiary.
7 Associated assets
25
The Premier, by order, may designate any assets,
rights or liabilities of a public sector entity that
relate to, or are connected with, the port of
Melbourne to be associated assets for the purposes
of this Act.
8 Functions for the purposes of an authorised
transaction
30
For the purposes of this Act, any act, matter or
thing is done or has effect for the purposes of an
authorised transaction if—
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Bill 2015
Part 1—Preliminary
(a) it is done or has effect for the purpose of
effecting or facilitating an authorised
transaction; or
(b) it is done or has effect for any purpose that is
ancillary or incidental to or consequential on
an authorised transaction; or
5
(c) it is done or has effect for any purpose
connected with the vesting of port assets in,
or the transfer of staff of the Port
Corporation to, a public sector entity at any
time after completion of an authorised
transaction.
10
9 Act to bind the Crown
15
This Act binds the Crown in right of Victoria, and
so far as the legislative power of the Parliament
permits, the Crown in all its other capacities.
10 Extraterritorial operation of Act
20
It is the intention of the Parliament that the
operation of this Act is, as far as possible, to
include operation in relation to the following—
(a) things situated in or outside the territorial
limits of Victoria;
25
(b) acts, transactions and matters done, entered
into or occurring in or outside the territorial
limits of Victoria;
30
(c) things, acts, transactions and matters
(wherever situated, done, entered into or
occurring) that would, apart from this Act, be
governed or otherwise affected by the law of
another jurisdiction.
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Bill 2015
Part 2—Authorised transactions
Part 2—Authorised transactions
Division 1—Transfer of port assets
11 Authorised transfer of port assets
5
(1) This Act authorises the transfer of port assets to a
private sector entity, or a public sector entity,
subject to the following limitations—
10
(a) land comprising port assets may be leased or
licensed to a private sector entity but the
ownership of the freehold title to that land
must remain with a public sector entity;
15
(b) in the case where one lease or licence of land
comprising port assets is granted to a private
sector entity, the maximum period for that
lease or licence must not exceed the period
specified in subsection (2);
(c) in the case where a lease or licence of land
comprising port assets is granted to a private
sector entity and any further lease or licence
of those port assets is granted, the maximum
period for all of the leases or licences
granted to a private sector entity must not
exceed, in aggregate, the period specified in
subsection (2).
20
25
(2) For the purposes of subsection (1)(b) and (c), the
specified period is—
(a) 50 years, or if the Premier makes an order
under subsection (3), the period determined
under that order; or
(b) if the regulations prescribe an additional
period, the period that is an aggregate of the
period specified in paragraph (a) and the
prescribed additional period.
30
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Part 2—Authorised transactions
(3) The Premier, by order, may, for the purposes of
subsection (2)(a), determine the period of a lease
or licence of land comprising port assets to be
granted to a private sector entity.
5
(4) The period determined under an order under
subsection (3) must not exceed 50 years and
30 days.
(5) The prescribed additional period for the purposes
of subsection (2)(b) must not exceed 20 years.
10
15
(6) Port assets may be transferred for the purposes of
an authorised transaction in any manner.
(7) Without limiting subsection (6), port assets of a
body corporate (the port assets holder) may be
transferred to another body corporate by the port
assets holder becoming a wholly-owned
subsidiary of the other body corporate.
12 Proceeds of transaction
20
25
30
(1) The proceeds of the transfer of port assets to a
private sector entity under an authorised
transaction belong to and are payable directly to
the State.
(2) The transaction proceeds include any payment to a
public sector entity that is a premium or periodic
payment under or related to a lease or licence of
port assets to a private sector entity or grant of
other rights that is authorised by this Act that, but
for subsection (1), would be payable to another
public sector entity.
(3) The transaction proceeds paid to the State are to
be paid into the Victorian Transport Fund.
(4) The following deductions are authorised to be
made from the transaction proceeds—
(a) deduction of amounts approved by the
Premier to repay debt and satisfy other
liabilities of a public sector entity in relation
35
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Part 2—Authorised transactions
to port assets transferred for the purposes of
an authorised transaction;
(b) deduction of amounts approved by the
Premier—
5
(i) to reimburse a public sector entity for
payments made by the entity in relation
to any tax, duty, fee or charge imposed
on the public sector entity by any Act
or law of the State or any other
jurisdiction in connection with a
transaction arrangement; or
10
(ii) to pay on behalf of a public sector
entity any tax, duty, fee or charge
referred to in subparagraph (i) payable
by the public sector entity in connection
with a transaction arrangement;
15
(c) deduction of amounts approved by the
Premier to satisfy any liability of a public
sector entity arising under or in connection
with a transaction arrangement;
20
(d) deduction of amounts approved by the
Premier to meet expenses reasonably
incurred by a public sector entity for the
purposes of an authorised transaction;
25
(e) deduction of amounts approved by the
Premier—
(i) to satisfy the liabilities of a public
sector entity arising under or in
connection with a project that is
approved by the Premier as a portrelated project; or
30
(ii) to reimburse a public sector entity for
payments made by it to satisfy the
liabilities it incurs for or in connection
with a project that is approved by the
Premier as a port-related project.
35
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Part 2—Authorised transactions
5
(5) The transaction proceeds do not include any
amount certified by the Premier to have been paid
to a public sector entity as a tax, duty, fee or
charge imposed by any Act or law of the State in
connection with a transaction arrangement.
(6) The deductions authorised to be made from the
transaction proceeds may be made—
(a) before payment of the transaction proceeds
into the Victorian Transport Fund; or
10
(b) by payment from the Victorian Transport
Fund.
(7) The requirements of this section do not affect the
validity of a transaction arrangement.
Division 2—The Victorian Transport Fund
15
13 Victorian Transport Fund
There must be established in the Public Account
as part of the Trust Fund an account to be known
as the Victorian Transport Fund.
14 Payments into the Fund
20
There must be paid into the Victorian Transport
Fund—
(a) all money that is appropriated by the
Parliament for the purposes of the Fund; and
(b) all money that is received from the
investment of money in the Fund; and
25
(c) all money directed or authorised to be paid
into the Fund by or under this or any other
Act.
Note
30
The transaction proceeds are money that this Act
directs to be paid into the Fund—see section 12(3).
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Part 2—Authorised transactions
15 Payments out of the Fund
(1) There must be paid out of the Victorian Transport
Fund—
(a) amounts authorised by the Treasurer to fund
the cost of all or any part of the development
of—
5
(i) the Level Crossing Removal Program;
and
(ii) infrastructure projects for or in relation
to public transport, roads, rail, the
movement of freight, ports or other
infrastructure; and
10
(b) all money directed or authorised to be paid
out of the Fund by or under this or any other
Act.
15
Note
For example, see section 12(6)(b).
20
(2) There must be paid out of the Victorian Transport
Fund amounts authorised by the Treasurer for the
payment of costs and expenses incurred in—
(a) administering this Division; and
(b) monitoring and reporting on the financial
operations and financial position of the Fund.
(3) In this section—
25
development includes plan, implement and
deliver.
16 Delegation of power to authorise payments
30
The Treasurer, by instrument, may delegate the
Treasurer's power to authorise payments under
section 15 to the Secretary to the Department of
Treasury and Finance.
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Part 3—Facilitating authorised transactions
Part 3—Facilitating authorised transactions
Division 1—Premier's functions
17 Premier's functions
5
10
(1) The Premier has and may exercise all the
functions that are necessary or convenient for the
purposes of an authorised transaction.
(2) In addition, the Premier may act for or on behalf
of the Port Corporation or a transaction entity in
the exercise of any of its functions for the
purposes of an authorised transaction while it is a
public sector entity.
(3) The functions conferred on the Premier by any
other provision of this Act do not limit the
Premier's functions under this section.
15
18 Manner of effecting authorised transaction
(1) An authorised transaction is to be effected as
directed by the Premier and may be effected in
any manner the Premier considers appropriate.
20
(2) There are no limitations as to the kinds of
transactions or arrangements that may be entered
into or used for the purposes of an authorised
transaction.
Example
25
An ownership structure involving a trust could be used for
the purposes of an authorised transaction.
Division 2—Functions of the Port Corporation
19 Additional functions of the Port Corporation
30
(1) The Port Corporation has and may exercise all the
functions that are necessary or convenient for the
purposes of an authorised transaction.
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Part 3—Facilitating authorised transactions
5
(2) The functions conferred by this section are in
addition to any other functions that the Port
Corporation has apart from this section and those
other functions do not prevent or otherwise limit
the exercise of the additional functions conferred
by this section.
Note
See also section 17(2).
20 Direction and control of the Port Corporation
10
15
(1) The Port Corporation is subject to the direction
and control of the Premier in the exercise of any
of its functions for the purposes of an authorised
transaction.
(2) The Premier may give directions for the purposes
of an authorised transaction to the Port
Corporation and to the directors and other officers
of the Port Corporation.
(3) The Port Corporation must comply with a
direction given to it under subsection (2).
20
25
(4) A director or officer of the Port Corporation must
comply with a direction given to the director or
officer under subsection (2).
(5) The power to give a direction under subsection (2)
extends to a direction relating to the way in which
the Port Corporation is to carry out its functions.
(6) An action taken by the Port Corporation to
comply with a direction of the Premier under
subsection (2) does not require the approval of
any other Minister.
30
21 Immunity of directors and officers of the Port
Corporation
(1) A director or officer of the Port Corporation is not
personally liable for anything done or omitted to
be done—
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Part 3—Facilitating authorised transactions
(a) in complying with a direction given by the
Premier under this Act; or
(b) in the reasonable belief that the act or
omission was in compliance with a direction
given by the Premier under this Act.
5
(2) Any liability resulting from an act or omission
that would but for subsection (1) attach to a
director or officer of the Port Corporation attaches
instead to the State.
10
Division 3—Transaction entities
22 Establishment of statutory corporations as
transaction entities
15
20
(1) The Governor in Council, on the recommendation
of the Premier, may, by Order published in the
Government Gazette, establish a statutory
corporation by the name stated in the Order.
(2) An Order under subsection (1) may establish a
corporation sole, constituted by the holder for the
time being of an office or position in the public
sector stated in the Order.
(3) An Order under subsection (1)—
(a) must state the particular purpose of
establishing the corporation; and
(b) must state the functions of the corporation;
and
25
(c) if the corporation is to be a subsidiary of a
statutory corporation, must state that fact and
the name of the particular statutory
corporation; and
30
(d) if the corporation is to have a share capital,
must state particulars of the share capital;
and
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Part 3—Facilitating authorised transactions
(e) if the corporation is to have a board—
(i) must state the particulars of the
constitution of the board; and
(ii) may include provision for the
appointment of directors by the
Governor in Council; and
5
(f) may include any other particulars relating to
the establishment or operation of the
corporation that the Governor in Council
determines.
10
(4) A statutory corporation established under this
section is a transaction entity for the purposes of
this Act.
15
(5) A statutory corporation established under this
section—
(a) is a body corporate with perpetual
succession; and
(b) must have an official seal; and
(c) may sue and be sued; and
20
(d) may acquire, hold and dispose of real and
personal property; and
(e) may do and suffer all things that a body
corporate may by law do and suffer.
25
30
(6) All courts must take judicial notice of the seal of a
statutory corporation established under this
section affixed to a document and, until the
contrary is proved, must presume that it was duly
affixed.
(7) The official seal must be kept in the custody that
the statutory corporation directs and must not be
used except as authorised by the statutory
corporation.
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Part 3—Facilitating authorised transactions
(8) Shares in a statutory corporation must not be
issued or dealt with except in accordance with an
Order under this section.
23 Establishment of companies as transaction entities
5
(1) The Premier may, for the purposes of an
authorised transaction, establish, or direct the
establishment of, companies as transaction entities
in any of the following ways—
(a) the formation or acquisition, or participation
in the formation or acquisition, by or on
behalf of the State or the Port Corporation of
a company limited by shares, so that all the
issued shares in the company are held by or
on behalf of the State or the Port Corporation
(or both);
10
15
(b) the formation or acquisition of a company as
a wholly-owned subsidiary company of a
transaction entity.
20
(2) A company established in accordance with this
section is a transaction entity for the purposes of
this Act.
24 Designation of subsidiary company of the Port
Corporation as transaction entity
25
(1) The Premier, by notice published in the
Government Gazette, may designate a subsidiary
company of the Port Corporation to be a
transaction entity for the purposes of this Act.
(2) A company designated under this section is a
transaction entity for the purposes of this Act.
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Part 3—Facilitating authorised transactions
25 Transaction entity does not represent the State
Unless the Premier otherwise determines—
(a) a transaction entity is not and does not
represent the State; and
5
(b) the debts, liabilities and obligations of a
transaction entity are not guaranteed by the
State.
26 Functions of transaction entities
10
15
(1) A transaction entity has and may exercise all the
functions that are necessary or convenient for the
purposes of an authorised transaction.
(2) The functions conferred by this section are in
addition to any other functions that a transaction
entity has apart from this section and those other
functions do not prevent or otherwise limit the
exercise of the additional functions conferred by
this section.
Note
See also section 17(2).
20
27 Direction and control of transaction entities
(1) A transaction entity is subject to the direction and
control of the Premier in the exercise of any of its
functions for the purposes of an authorised
transaction while it is a public sector entity.
25
30
(2) The Premier may give directions for the purposes
of an authorised transaction to a transaction entity,
and to the directors and other officers of a
transaction entity.
(3) A transaction entity must comply with a direction
given to it under subsection (2).
(4) A director or officer of a transaction entity must
comply with a direction given to the director or
officer under subsection (2).
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Part 3—Facilitating authorised transactions
(5) The power to give a direction under subsection (2)
extends to a direction relating to the way in which
the transaction entity is to carry out its functions
or conduct its business or other affairs.
5
(6) A direction under subsection (2) can only be given
to a transaction entity or its directors and other
officers and is only required to be complied with
while the transaction entity is a public sector
entity.
10
(7) Action taken by a transaction entity to comply
with a direction of the Premier under
subsection (2) does not require the approval of the
voting shareholders of the entity or of any other
Minister.
15
(8) The provisions of this section are declared to be
Corporations legislation displacement provisions
for the purposes of section 5G of the Corporations
Act in relation to the Corporations legislation.
Note
20
25
Section 5G of the Corporations Act provides that if a State
law declares a provision of a State law to be a Corporations
legislation displacement provision for the purposes of that
section, any provision of the Corporations legislation with
which the State provision would otherwise be inconsistent
does not operate to the extent necessary to avoid the
inconsistency.
28 Immunity of directors and officers of transaction
entity
30
(1) A director or officer of a transaction entity is not
personally liable for anything done or omitted to
be done—
(a) in complying with a direction given by the
Premier under this Act; or
(b) in the reasonable belief that the act or
omission was in compliance with a direction
given by the Premier under this Act.
35
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Part 3—Facilitating authorised transactions
(2) Any liability resulting from an act or omission
that would, but for subsection (1), attach to a
director or officer of a transaction entity attaches
instead to the State.
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Bill 2015
Part 4—Arrangements for transfer of port assets
Part 4—Arrangements for transfer of port
assets
Division 1—Transfer orders
29 Making of transfer orders
5
The Premier, by order, may do either or both of
the following—
(a) vest assets, rights and liabilities comprising
port assets in a person specified in the order
as the transferee for the purposes of an
authorised transaction;
10
(b) divest assets, rights and liabilities comprising
port assets from a public sector entity for the
purpose of vesting those assets, rights and
liabilities under a transfer order.
15
30 Vesting of assets, rights and liabilities in transferee
(1) When any assets, rights or liabilities are vested by
a transfer order, the following provisions have
effect (subject to the transfer order)—
(a) the assets vest in the transferee by virtue of
this section and without the need for any
conveyance, transfer, assignment or
assurance;
20
(b) the rights and liabilities become, by virtue of
this section, the rights and liabilities of the
transferee;
25
(c) all proceedings relating to the assets, rights
or liabilities pending by or against the
transferor are taken to be proceedings
pending by or against the transferee;
30
(d) the transferee has all the entitlements and
obligations of the transferor in relation to the
assets, rights and liabilities that the transferor
would have had but for the order;
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Part 4—Arrangements for transfer of port assets
(e) any act, matter or thing done or omitted to be
done in relation to the assets, rights or
liabilities by, to or in relation to the
transferor is (to the extent that the act, matter
or thing has any force or effect) taken to
have been done or omitted by, to or in
relation to the transferee;
5
(f) a reference in any Act, in any instrument
made under any Act or in any document of
any kind to the transferor or a predecessor of
the transferor is (to the extent that it relates
to those assets, rights or liabilities but subject
to the regulations) to be read as, or as
including, a reference to the transferee.
10
15
(2) No attornment to the transferee by a lessee from
the transferor is required.
31 Terms and conditions of transfer order
A transfer order may be made on the terms and
conditions specified in the order.
20
32 Consideration for vesting
A transfer order may specify the consideration for
which a vesting to which it applies is made and
the value or values at which assets, rights and
liabilities are vested.
25
33 Transfer subject to encumbrances
Unless the transfer order otherwise provides, if
under the transfer order assets and rights vest in
the transferee or liabilities become liabilities of
the transferee—
30
(a) the assets and rights vested are subject to the
encumbrances (if any) to which they were
subject immediately before being vested; and
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Part 4—Arrangements for transfer of port assets
(b) the rights to which the transferor was entitled
in relation to those liabilities immediately
before they ceased to be liabilities of the
transferor vest in the transferee.
5
34 Substitution of party to agreement
(1) This section applies if, under a transfer order, the
rights and liabilities of the transferor under an
agreement are transferred to the transferee.
10
(2) On the transfer date, the transferee becomes a
party to the agreement in place of the transferor
unless the transfer order requires otherwise.
35 Transfer of interests in land
15
(1) This section applies to the vesting under a transfer
order of an interest in land under the Transfer of
Land Act 1958.
20
(2) If, immediately before the vesting of the interest
in land, the transferor was the registered
proprietor of the interest under the Transfer of
Land Act 1958, then on and after the transfer
date—
(a) the transferee is taken to be the registered
proprietor of that interest in land; and
(b) the transferee has the same rights and
remedies in relation to that interest that the
transferor had.
25
(3) This section applies despite anything to the
contrary in any other Act or law (other than the
Charter of Human Rights and Responsibilities).
30
(4) This section does not limit the generality of this
Division.
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Bill 2015
Part 4—Arrangements for transfer of port assets
36 Transfer of rights and interests in vehicles and
recreational vessels
(1) This section applies to the vesting under a transfer
order of the ownership or management of—
5
(a) a vehicle; or
(b) a recreational vessel.
10
(2) If, immediately before the vesting of the
ownership or management of the vehicle or
recreational vessel, the transferor was the owner
or manager of that vehicle or recreational vessel,
then on and after the transfer date—
(a) the transferee is taken to be the owner or
manager of that vehicle or recreational vessel
(as the case requires); and
15
20
(b) the transferee has the same rights and
remedies in relation to that vehicle or
recreational vessel that the transferor had.
(3) This section applies despite anything to the
contrary in any other Act or law (other than the
Charter of Human Rights and Responsibilities).
(4) This section does not limit the generality of this
Division.
37 Confirmation of vesting
25
(1) The Premier, by order, may confirm a vesting or
divesting of particular assets, rights and liabilities
by operation of this Division.
(2) An order under subsection (1) is evidence of the
vesting or divesting of the assets, rights or
liabilities to which it applies.
30
38 Determinations by Premier
(1) The Premier may determine whether or not
particular assets, rights or liabilities comprise port
assets for the purposes of a transfer order.
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Part 4—Arrangements for transfer of port assets
(2) A determination under subsection (1) is evidence,
and, in the absence of evidence to the contrary,
proof, of the matters determined.
39 Amendment of Land Titles Register
5
10
(1) The Registrar of Titles, on being requested to do
so and on delivery of any relevant certificate of
title or instrument and any relevant transfer order,
must make any amendments in the Register that
are necessary because of the operation of this
Division.
15
(2) Despite subsection (1), it is not necessary to
produce a certificate of title in the case of a
request for amendment of the Register in relation
to property that is an easement registered under
the Transfer of Land Act 1958.
40 Amendment of VicRoads vehicles register
20
(1) VicRoads, on being requested to do so, must make
any recordings in the register in relation to any
transferred vehicle that are necessary because of
the operation of a provision of this Division.
(2) A current certificate of roadworthiness is not
required to be obtained and given to VicRoads for
a transferred vehicle for the purposes of
subsection (1).
25
(3) In this section—
the register has the same meaning as in the Road
Safety Act 1986;
30
transferred vehicle means a vehicle to which a
transfer order applies and which is eligible to
be registered under the Road Safety Act
1986.
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Part 4—Arrangements for transfer of port assets
41 Evidence
5
Documentary or other evidence that would have
been admissible for or against the interests of the
transferor in relation to assets, rights or liabilities
transferred to the transferee is admissible for or
against the interests of the transferee.
Division 2—Grant of relevant authorisations
42 Grant of relevant authorisations
10
15
(1) The Premier may give a direction to a public
sector entity in relation to the grant of any relevant
authorisation to a person who becomes or will
become the new operator of any port assets under
an authorised transaction.
(2) A direction under subsection (1) may include a
direction for or in relation to any of the
following—
(a) requiring the grant of a relevant authorisation
without the need to make or determine an
application;
20
25
(b) the conditions or endorsements subject to
which any relevant authorisation is to be
granted or that are to be attached to any
relevant authorisation.
(3) A direction under subsection (1) may only be
given under that subsection for the grant of a
relevant authorisation that—
(a) operates to transfer or replace an existing
relevant authorisation that is currently in
force; and
30
(b) is subject to terms, conditions or
endorsements that are the same (or to
substantially the same effect) as those to
which the relevant authorisation is subject.
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Part 4—Arrangements for transfer of port assets
(4) Before giving a direction to the public sector
entity under subsection (1), the Premier must
consult with—
(a) the Minister administering the Act under
which the relevant authorisation is to be
granted; and
5
(b) the public sector entity.
10
15
20
(5) A public sector entity under a relevant law must
comply with a direction given to it under
subsection (1).
(6) Anything done by a public sector entity (as the
grantee of a relevant authorisation) in compliance
with a term, condition or endorsement of a
relevant authorisation in relation to port assets of
which a person is the new operator is taken to
have been done by the new operator for the
purposes of any corresponding term, condition or
endorsement of a relevant authorisation granted to
the new operator as a result of a direction given
under subsection (1).
(7) In this section—
grant includes give, issue and transfer;
new operator of port assets means—
(a) a public sector entity to which any port
assets are transferred for the purposes
of an authorised transaction; or
25
(b) a person (or the nominee of a person) in
whom port assets are vested, or to
whom port assets are transferred,
pursuant to an authorised transaction;
30
relevant authorisation means a licence, permit,
consent, entitlement, accreditation, approval,
exemption or other authorisation under a
relevant law;
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Part 4—Arrangements for transfer of port assets
relevant law means any of the following Acts or
provisions of Acts—
(a) the Coastal Management Act 1995;
(b) the Fisheries Act 1995;
5
(c) the Flora and Fauna Guarantee Act
1988;
(d) the Heritage Act 1995;
(e) section 27 of the National Parks Act
1975;
10
(f) the Planning and Environment Act
1987;
(g) the Port Management Act 1995;
(h) the Water Act 1989;
(i) the Wildlife Act 1975.
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Part 5—Arrangements relating to transfer of Port Corporation staff
Part 5—Arrangements relating to transfer of
Port Corporation staff
43 Definitions
In this Part—
5
10
casual employee means an employee of the Port
Corporation whose employment is in a
category of employment that is described in
or classified under a relevant award as casual
employment or who is otherwise engaged as
a casual employee;
designated private sector employer means a
private sector entity designated under an
order under section 45;
15
20
employee of a public sector entity means a person
employed by the public sector entity whether
under Part 3 of the Public Administration
Act 2004 or otherwise;
employment guarantee period, for a transferred
employee who is a permanent employee or
temporary employee, has the meaning given
by section 44;
executive employee means an employee employed
under an individual contract in an executive
position within the Port Corporation;
25
permanent employee means an employee of the
Port Corporation whose employment is of
indefinite duration and who is not a casual
employee, temporary employee or executive
employee;
30
relevant award means any award, agreement or
other industrial instrument (under a law of
the State or the Commonwealth) that
provides for the terms and conditions of
employment of employees;
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5
10
temporary employee means an employee of the
Port Corporation (other than a casual
employee or executive employee) whose
employment is in a category of employment
that is described in or classified under a
relevant award as temporary employment or
whose employment is, under the terms of the
employee's employment, for a limited
period;
transfer date means—
(a) in relation to an executive employee to
whom an order under section 47
applies, the date on which the
employment of the employee is
transferred under that section to a
designated private sector employer; and
15
(b) in relation to a permanent employee,
temporary employee or executive
employee who accepts an offer of
employment with a designated private
sector employer, the day on which the
employee commences employment
with that designated private sector
employer;
20
25
transferred employee means—
(a) an executive employee to whom an
order under section 47 applies; or
(b) a permanent employee, temporary
employee or executive employee who
is offered and accepts employment with
a designated private sector employer in
connection with an authorised
transaction.
30
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44 Meaning of employment guarantee period
The employment guarantee period for a
transferred employee who is a permanent
employee or temporary employee is as follows—
5
(a) for a permanent employee, a period of
2 years after the transfer date;
(b) for a temporary employee, a period that is
the remainder of the employee's current term
of employment (as specified in the
arrangements under which the employee was
engaged as a temporary employee)
immediately before the transfer date or a
period of 2 years after the transfer date,
whichever period ends first.
10
15
45 Designation of a private sector employer
(1) The Premier, for the purposes of this Part, may, by
order, designate a private sector entity as a
designated private sector employer.
20
25
(2) The Premier must not make an order under
subsection (1) unless the Premier is satisfied that
the private sector entity will offer employment to
a permanent employee, temporary employee or
executive employee on terms and conditions no
less favourable than those that apply to the
employee as an employee of the Port Corporation.
46 Temporary transfers (secondments)
(1) The Premier, for the purposes of an authorised
transaction, may, by order, temporarily transfer an
employee of a public sector entity—
30
(a) to the service of another public sector entity;
or
(b) to the service of a designated private sector
employer.
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Part 5—Arrangements relating to transfer of Port Corporation staff
(2) A person may be temporarily transferred under
this section at the person's existing level of
remuneration or at a higher level of remuneration.
5
10
15
20
25
30
(3) A person who is temporarily transferred under this
section remains an employee of the public sector
entity concerned (unless and until the person's
employment is transferred under another provision
of this Part or the person ceases to be an employee
of the public sector entity).
47 Transfers to private sector employment of Port
Corporation executive employees
(1) The Premier, for the purposes of an authorised
transaction, may, by order, transfer the
employment of an executive employee to the
employment of a designated private sector
employer.
(2) The Premier must not make an order under
subsection (1) unless the Premier is satisfied that
the designated private sector employer has offered
employment to the executive employee on terms
and conditions that are no less favourable than
those that apply to the executive employee as an
employee of the Port Corporation.
(3) On the transfer date, an executive employee
specified in an order under subsection (1) is taken
to be an employee of the designated private sector
employer on the terms and conditions contained in
the offer of employment by the designated private
sector employer.
48 Limitation on changes to terms and conditions of
transferred employees
(1) This section applies if—
(a) a permanent employee, temporary employee
or executive employee is offered
employment by a designated private sector
employer; and
35
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Part 5—Arrangements relating to transfer of Port Corporation staff
(b) the Premier is satisfied that the offer of
employment with the designated private
sector employer will be on terms and
conditions that are no less favourable than
those that apply to the employee as an
employee of the Port Corporation
immediately before the transfer date; and
5
(c) the permanent employee, temporary
employee or executive employee accepts that
offer of employment.
10
(2) On the transfer date, the transferred employee's
employment with the designated private sector
employer is taken to be subject to the
requirements under subsections (3) to (5).
15
(3) The terms and conditions of employment of a
transferred employee who is a permanent
employee or temporary employee cannot be
varied during any employment guarantee period
for the transferred employee except—
20
(a) by agreement entered into by or on behalf of
the transferred employee; or
(b) following the proper application of
reasonable disciplinary procedures.
25
30
(4) The terms and conditions of employment of a
transferred employee who is an executive
employee cannot be varied except by agreement
entered into by or on behalf of the transferred
employee.
(5) The employment of a permanent employee or
temporary employee with the designated private
sector employer cannot be terminated by the
designated private sector employer during any
employment guarantee period for the transferred
employee, except—
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Part 5—Arrangements relating to transfer of Port Corporation staff
(a) for serious misconduct pursuant to the proper
application of reasonable disciplinary
procedures; or
(b) by agreement with the employee.
5
49 Continuity of entitlements of transferred employees
(1) On and after the transfer date, the following
provisions have effect—
(a) a transferred employee is entitled to continue
as a contributor, member or employee for the
purposes of any superannuation scheme in
respect of which the employee was a
contributor, member or employee (as an
employee of the Port Corporation)
immediately before the transfer date and
remains so entitled subject to any variation to
that entitlement made either by agreement or
otherwise in accordance with law;
10
15
(b) a designated private sector employer who is
a transferred employee's employer is taken to
be an employer for the purposes of any
superannuation scheme in respect of which
the transferred employee continues as a
contributor, member or employee pursuant to
an entitlement under this section;
20
25
(c) the continuity of a transferred employee's
contract of employment is taken not to have
been broken by the employee ceasing to be
an employee of the Port Corporation and
commencing employment with a designated
private sector employer and service of the
employee with the Port Corporation
(including service deemed to be service with
the Port Corporation) that is continuous
service up to the transfer date is taken for all
purposes to be service with the designated
private sector employer;
30
35
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Part 5—Arrangements relating to transfer of Port Corporation staff
(d) a transferred employee retains any rights to
sick leave, annual leave or long service leave
accrued or accruing immediately before the
transfer date (except accrued leave for which
the employee has, on ceasing to be an
employee of the Port Corporation, been paid
the monetary value in pursuance of any other
entitlement of the transferred employee).
5
10
15
(2) Nothing in the Long Service Leave Act 1992
prevents payment in connection with the
commencement of employment of an employee of
the Port Corporation with a designated private
sector employer to which this Part applies of the
monetary value of long service leave in lieu of an
entitlement to that leave accrued as an employee
of the Port Corporation before that
commencement.
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Part 6—Crown land for the purposes of authorised transactions
Part 6—Crown land for the purposes of
authorised transactions
Division 1—Application of Part
50 Land Acts and certain land provisions do not apply
5
This Part applies despite anything to the contrary
in the Land Act 1958, the Crown Land
(Reserves) Act 1978, Part 4 of the Port
Management Act 1995 or any other Act.
Division 2—Removal of reservations on land
10
15
20
51 Revocation of reservations
(1) If any Crown land permanently or temporarily
reserved under the Crown Land (Reserves) Act
1978 is entirely within the port of Melbourne, the
Premier, after consultation with the relevant land
Ministers, may recommend to the Governor in
Council that the reservation of that land be
revoked in its entirety.
(2) On receiving the Premier's recommendation, the
Governor in Council, by Order published in the
Government Gazette, may revoke the following—
(a) any Order in Council reserving the land;
(b) any Crown grant, certificate of title or folio
of the Register issued or created with respect
to the land.
25
30
52 Revocation of reservations—part of reservation
(1) If any Crown land permanently or temporarily
reserved under the Crown Land (Reserves) Act
1978 is entirely within the port of Melbourne, and
if only part of the reservation of that land is to be
revoked, the Premier—
(a) on receiving a plan of land signed by the
Surveyor-General; and
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Part 6—Crown land for the purposes of authorised transactions
(b) on being satisfied that the land shown on the
plan represents that part of the reservation to
be revoked; and
(c) after consultation with the relevant land
Ministers—
5
may recommend to the Governor in Council that
that part of the reservation be revoked.
10
(2) On receiving the Premier's recommendation, the
Governor in Council, by Order published in the
Government Gazette, may revoke the following—
(a) any Order in Council reserving the land;
(b) any Crown grant, certificate of title or folio
of the Register issued or created with respect
to the land—
15
to the extent that the Order in Council, Crown
grant, certificate of title or folio relates to the land
shown on the plan.
53 Effect of revocation of reservation
20
25
(1) This section applies to land referred to in an Order
under section 51 or 52, on the publication of that
Order in the Government Gazette.
(2) Subject to section 54, the land is taken to be
unalienated land of the Crown and is freed and
discharged from all trusts, limitations,
reservations, restrictions, encumbrances, estates
and interests.
(3) The appointment of any committee of
management is revoked in so far as it applies to
the land.
30
(4) Any regulations made under section 13 of the
Crown Land (Reserves) Act 1978 are revoked in
so far as they apply to the land.
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Part 6—Crown land for the purposes of authorised transactions
54 Preservation of leases and licences
5
(1) Section 53 does not affect the status or continuity
of any lease or licence of affected land existing
immediately before the commencement of an
Order under section 51 or 52 applying to that
affected land and that lease or licence has effect—
(a) as the case requires, as a lease or licence
between the Minister administering the
Land Act 1958 as lessor or licensor and the
lessee or licensee for the time being under
the lease or licence, as if the lease or licence
had been assigned to the Minister; and
10
(b) as if it referred to the Minister instead of to
the lessor or licensor (however described).
15
(2) Section 53 does not affect the status or continuity
of any sublease or sublicence existing over
affected land at the date of commencement of an
Order under section 51 or 52 applying to that
affected land.
20
(3) Subject to subsection (4), the issue of a Crown
grant of any land affected by a lease or licence
and existing immediately before the date of issue
of the Crown grant does not affect the status or
continuity of the lease or licence of that land and
that lease or licence has effect on and after the
issue of the Crown grant—
25
(a) as the case requires, as a lease or licence
between the person to whom the Crown
grant is made as lessor or licensor and the
lessee or licensee for the time being under
the lease or licence, as if the lease or licence
had been assigned to the person to whom the
Crown grant is made; and
30
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Part 6—Crown land for the purposes of authorised transactions
(b) as if the lease or licence referred to the
person to whom the Crown grant is made
instead of to the lessor or licensor
(however described).
5
10
(4) If more than one Crown grant is issued of any
land affected by a lease or licence and existing
immediately before the date of issue of the Crown
grants, the issue of the Crown grants does not
affect the status or continuity of the lease or
licence of that land and that lease or licence has
effect on and after the issue of the Crown grants—
(a) as the case requires, as a lease or licence
between the persons to whom the respective
Crown grants are made as joint lessors or
licensors and the lessees or licensees for the
time being under the lease or licence, as if it
had been assigned jointly to the persons to
whom the respective Crown grants are made;
and
15
20
25
30
(b) as if the lease or licence referred to the
persons to whom the respective Crown
grants are made instead of to the lessors or
licensors (however described).
(5) The issue of a Crown grant in respect of any land
affected by a lease or licence and existing
immediately before the date of issue of the Crown
grant does not affect the status or continuity of
any sublease or sublicence existing over that land
at the time of the issue of the Crown grant in
respect of that land.
(6) This section has effect despite anything to the
contrary in any Act or law or in a Crown grant of
the land.
(7) In this section—
35
Act does not include the Charter of Human Rights
and Responsibilities;
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Part 6—Crown land for the purposes of authorised transactions
affected land means land to which an Order under
section 51 or 52 applies;
5
lease includes an agreement or other interest
arising under or in relation to a lease whether
or not the lease has expired and an interest in
the nature of a lease and sublease has a
corresponding meaning;
10
licence includes an agreement or other interest
arising under or in relation to a licence
whether or not the licence has expired and an
interest in the nature of a licence and
sublicence has a corresponding meaning.
Division 3—Leasing and licensing of Crown land
15
55 Grant of lease or licence of Crown land for the
purposes of an authorised transaction
(1) The Governor in Council, on behalf of the Crown,
and on the recommendation of the Premier and the
relevant land Ministers—
(a) may grant a lease of Crown land (other than
a stratum of the port of Melbourne seabed)
or a licence of any Crown land to a private
sector entity or a public sector entity for the
purposes of an authorised transaction; and
20
25
(b) may impose any conditions on the lease or
licence; and
30
(c) may ratify or give effect to any partial
surrender of a lease or licence by the lessee
or licensee, if the lessee or licensee has the
consent of any mortgagee and the holder of
any charge over the lease or licence.
(2) The Governor in Council, on behalf of the Crown,
and on the recommendation of the Premier after
consultation with the relevant land Ministers—
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Part 6—Crown land for the purposes of authorised transactions
(a) may grant a lease of a stratum of the whole,
or a part, of that part of the port of
Melbourne seabed identified in a
determination under subsection (8) to a
private sector entity or a public sector entity
for the purposes of an authorised transaction;
and
5
(b) may impose any conditions on the lease; and
(c) may ratify or give effect to any partial
surrender of a lease by the lessee, if the
lessee has the consent of any mortgagee and
the holder of any charge over the lease.
10
15
(3) In imposing conditions on a lease or licence of a
stratum of land under subsection (1) or (2), the
Governor in Council must have regard to the
following matters—
(a) if the land is not part of the port of
Melbourne seabed—
(i) that reasonable access to and use of the
stratum and other land be provided for;
and
20
(ii) that the rights of the registered
proprietor, lessee or licensee of other
land not be interfered with; and
25
(iii) that the rights of support of the stratum
or of other land or of any building or
structure erected or to be erected on
those lands be provided for;
(b) in all cases—
30
(i) that the making or maintenance of
improvements by the lessee or licensee
be provided for; and
(ii) that any necessary rights for the
passage or provision of services
(including drainage, sewerage or the
35
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Part 6—Crown land for the purposes of authorised transactions
supply of water, gas, electricity or
telephone) to or through the stratum,
where those rights are necessary for the
reasonable enjoyment of the stratum or
of other land be provided for.
5
(4) The granting of a lease or licence under this
section of a stratum of land is conclusive proof of
compliance with subsection (3)(a) and (b) with
respect to the lease or licence.
10
15
20
25
(5) To avoid doubt, the partial surrender of a lease or
licence ratified or given effect to under
subsection (1)(c) or (2)(c) does not constitute the
surrender in full of that lease or licence and does
not affect the operation of the lease or licence in
relation to any part of the leased or licensed land
that is not surrendered.
(6) The term of a lease or licence granted to a private
sector entity under this section, or if more than
one lease or licence is granted to a private sector
entity under this section, the aggregate period of
the terms of those leases or licences, must not
exceed the maximum period specified in
section 11(2) in relation to a lease or licence
granted to the private sector entity to which that
section applies.
(7) A lease or licence granted under this section may
be amended at any time with the consent of the
lessee or licensee.
30
(8) The Premier, after consultation with the relevant
land Ministers, may make a determination
identifying a part of the port of Melbourne seabed
for the purposes of subsection (2)(a).
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Part 7—General
Part 7—General
Division 1—General matters relating to authorised
transactions
56 Severance of fixtures
5
10
15
(1) The Premier, by order, may, for the purposes of an
authorised transaction, direct that fixtures
designated under this section are severed from the
land on which they are situated.
(2) The effect of an order under subsection (1) is that
the fixtures concerned are taken to be severed
from the land on which they are situated and may
be dealt with as personal property separate from
the land for the purposes of an authorised
transaction.
(3) The severance of a fixture from land under this
section does not affect—
(a) the right to have the fixture continue to be
situated on the land; or
(b) any right to drain water or sewage from the
fixture across and through the land; or
20
(c) the right to use any means of drainage of
water or sewage from the fixture across and
through the land.
25
(4) The Premier, by order, may designate for the
purposes of this section fixtures that are—
(a) port assets; and
(b) owned by the Port Corporation or another
public sector entity; and
(c) situated on land owned by the Port
Corporation or another public sector entity.
30
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Part 7—General
57 Protection of contractual and other obligations
(1) This section applies to the following—
(a) the operation of this Act (including any order
under this Act and anything done or omitted
to be done under or for the purposes of this
Act);
5
(b) the vesting of port assets by a transfer order
for the purposes of an authorised transaction;
(c) the entering into or performance of
obligations under a transaction arrangement
by a public sector entity;
10
(d) the disclosure of information by, or on behalf
of, or with the consent of a public sector
entity for the purposes of an authorised
transaction.
15
(2) None of the matters or things to which this section
applies—
(a) is to be regarded as placing any person in
breach of contract or confidence, in breach
of a professional code or otherwise making
the person guilty of a civil wrong; or
20
(b) is to be regarded as placing any person in
breach of or as constituting a default under,
or as requiring any act to be done under, any
Act or other law or obligation or any
provision in any agreement, arrangement or
understanding including, but not limited to,
any provision or obligation prohibiting,
restricting or regulating—
25
30
(i) the assignment, transfer, sale or
disposal of any assets, rights or
liabilities; or
(ii) the disclosure of any information; or
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Part 7—General
(c) is to be regarded as fulfilling any condition
that allows a person to exercise a power,
right or remedy in relation to or to terminate
any agreement or obligation; or
5
(d) is to be regarded as giving rise to any remedy
for a party to a contract or an instrument or
as causing or permitting the termination of
any contract or instrument; or
(e) is to be regarded as causing any contract or
instrument to be void or otherwise
unenforceable; or
10
(f) is to be regarded as frustrating any contract;
or
(g) releases a surety or other obligor wholly or
partly from an obligation.
15
(3) In this section—
Act does not include the Charter of Human Rights
and Responsibilities.
58 Compensation not payable
20
(1) Compensation is not payable by the State because
of—
(a) the enactment or operation of this Act, or for
any consequence of that enactment or
operation; or
25
30
(b) any statement or conduct relating to the
enactment of this Act.
(2) This section does not extend to compensation
payable under a transaction arrangement in
connection with the performance of obligations
under the arrangement.
(3) In this section—
compensation includes damages or any other
form of monetary compensation;
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conduct includes any act or omission, whether
unconscionable, misleading, deceptive or
otherwise;
5
operation of this Act includes the operation of any
order or direction under this Act and any
agreement entered into under and for the
purposes of this Act;
statement includes a representation of any kind—
(a) whether made verbally or in writing;
and
10
(b) whether negligent, false, misleading or
otherwise;
15
the State means the Crown and includes a public
sector entity and an officer, employee or
agent of the Crown or a public sector entity.
59 Port of Melbourne leases
20
(1) A provision of a port of Melbourne lease (or of
any agreement or arrangement entered into in
connection with a port of Melbourne lease)
dealing with a matter set out in subsection (2) has
effect according to its terms despite any law or
rule to the contrary.
(2) The matters are—
(a) the payment of any amount by way of
premium under the lease and the retention of
any such amount by the lessor or the State;
and
25
(b) the circumstances or conditions under which
the lease may be terminated by the lessor or
lessee (including a provision of a lease to the
effect that it is only terminable in accordance
with its terms and not at will); and
30
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(c) the application of section 139, 144 or 146(2)
or (4) of the Property Law Act 1958 to or in
relation to the lease (or any lease under the
lease); and
5
(d) the entitlement to, or the retention or
application of, a security provided in relation
to the lease; and
(e) the payment of a sum that is in the nature of
a penalty; and
10
(f) the ownership of, or the vesting or forfeiture
of ownership of, or a right or option to
acquire, any real or personal property on
termination of the lease or on the occurrence
of some other specified event or other thing;
and
15
(g) the pre-payment of amounts payable by way
of rent under the lease and the retention of
any such amounts by the lessor or the State;
and
20
(h) the continuance of the lease despite the
occurrence of unintended or unforeseen
circumstances; and
(i) the continuance of the obligation to pay rent
despite the occurrence of unintended or
unforeseen circumstances; and
25
(j) the amount payable, or the non-payment of
an amount, in consequence of a breach or
early termination of the lease; and
(k) the liability of the lessor or lessee in relation
to the leased assets; and
30
(l) the non-refundability of any payment made
on account of rent, a premium, an option fee,
outgoings, a security deposit or otherwise in
relation to the lease; and
35
(m) the operation of any set-off.
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(3) A port of Melbourne lease may include provision
for the removal by the lessee of any fixture
severable from the land leased.
5
(4) The Premier, by order, may designate a lease or
licence of port assets as a port of Melbourne lease
for the purposes of this section.
(5) In this section—
port of Melbourne lease means—
(a) a lease or licence of port assets entered
into for the purposes of an authorised
transaction; or
10
(b) a lease or licence of all or a part of the
port of Melbourne seabed entered into
for the purposes of an authorised
transaction; or
15
(c) a lease or licence of port assets
designated under subsection (4)—
and lessor and lessee have corresponding
meanings.
20
Division 2—Operation of other laws
60 Excluded matter for Corporations Act
Anything done by the Premier under this Act is
declared to be an excluded matter for the purposes
of section 5F of the Corporations Act in relation to
Chapter 2D of the Corporations Act.
25
Note
30
This section ensures that Chapter 2D of the Corporations Act will
not apply to anything done by the Premier. Section 5F of the
Corporations Act provides that if a State law declares a matter to
be an excluded matter in relation to specified provisions of the
Corporations legislation, then those provisions will not apply to
that matter in the State concerned.
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61 State taxes and fees
(1) A State tax or fee is not chargeable or applicable
in relation to a relevant matter if that relevant
matter—
5
(a) relates only to a public sector entity; or
(b) is a matter to which only public sector
entities are parties.
10
15
(2) A State tax or fee is not payable by a person or
body (other than a public sector entity) in relation
to a relevant matter to the extent (if any) that the
Premier, by order, directs, either generally or in a
particular case.
(3) An order may be made under subsection (2)
before or after the liability to pay the State tax or
fee concerned accrues.
(4) An order under subsection (2) may specify the
date of completion of an authorised transaction.
20
(5) The Premier must give a copy of an order under
subsection (2) to the Commissioner of State
Revenue or other person or entity to whom the
State tax or fee would be payable but for the
order.
(6) The Premier may certify, in writing, any of the
following things as a relevant matter—
25
(a) a thing that the Premier considers has been
done in consequence of a vesting of assets,
rights or liabilities by virtue of Part 4;
(b) a transaction occurring within 6 months after
the designated date of completion of an
authorised transaction that the Premier
considers has been entered into in connection
with the transfer of port assets to a private
sector entity pursuant to the authorised
transaction.
30
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(7) In this section—
relevant matter means any of the following—
(a) an authorised transaction;
(b) a transaction arrangement;
5
(c) the issue, disposal or purchase of
shares, units in a unit trust or other
securities in or issued by a company for
the purposes of an authorised
transaction;
10
(d) a vesting of assets, rights or liabilities
by virtue of Part 4;
(e) a thing certified by the Premier under
subsection (6);
(f) any other matter for the purposes of an
authorised transaction that is prescribed
by the regulations;
15
State tax or fee means duty under the Duties Act
2000 or any other tax, duty, fee or charge
imposed by or under any other Act.
20
62 Application of Borrowing and Investment Powers
Act 1987
The Borrowing and Investment Powers Act
1987 does not apply to an authorised transaction.
63 Operation of Public Administration Act 2004
25
Nothing in this Act affects the operation of the
Public Administration Act 2004.
64 Operation of State Owned Enterprises Act 1992
Nothing in this Act affects the operation of the
State Owned Enterprises Act 1992.
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65 Operation of Transport Integration Act 2010
5
Nothing in the Transport Integration Act 2010
operates to prevent, restrict or otherwise limit the
carrying out of a transaction arrangement or the
exercise of any function for the purposes of an
authorised transaction.
66 No land tax is payable
10
No land tax is payable under the Land Tax Act
2005 in respect of Crown land that is the subject
of a lease entered into for the purposes of an
authorised transaction.
67 Rates under Local Government Act 1989
15
Crown land that is the subject of a lease entered
into for the purposes of an authorised transaction
is not rateable land within the meaning of
section 154 of the Local Government Act 1989.
68 Inconsistency with prescribed legislation
20
25
(1) In the event of any inconsistency between the
provisions of this Act or the regulations and a
provision of any other Act or a regulation under
any other Act that is prescribed by the regulations
as an inconsistent provision for the purposes of
this section, the provisions of this Act or the
regulations (as the case may be) prevail to the
extent of the inconsistency.
(2) In this section—
Act does not include the Charter of Human Rights
and Responsibilities.
30
69 Competition and Consumer Act and Competition
Code
(1) For the purposes of the Competition and
Consumer Act 2010 of the Commonwealth and
the Competition Code, the following things are
authorised by this Act—
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(a) the entering into a primary agreement by the
State and any one or more of the following—
(i) a person who at the time the primary
agreement takes effect is the port of
Melbourne operator;
5
(ii) a person who at the time the primary
agreement is entered into or takes effect
is an associated entity of the port of
Melbourne operator;
10
(iii) a person in relation to whom the port of
Melbourne operator is an associated
entity at the time the primary agreement
is entered into or takes effect;
(iv) a person specified under an order under
subsection (2)(a);
15
(v) a financing party of a person referred to
in subparagraph (i), (ii), (iii) or (iv);
(vi) a trustee of a financing party;
(b) the entering into an agreement that is
designated under an order under
subsection (2)(b);
20
(c) the amendment of a primary agreement or an
agreement referred to in paragraph (b);
(d) the giving effect to a primary agreement or
an agreement referred to in paragraph (b);
25
(e) the acceptance of the benefit under a primary
agreement or an agreement referred to in
paragraph (b);
(f) the assignment or acceptance of an interest
in, or right under, a primary agreement or an
agreement referred to in paragraph (b).
30
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(2) The Premier, by order, may do any one or more of
the following—
(a) specify a person for the purposes of
subsection (1)(a)(iv);
5
(b) designate an agreement that confers a
right or imposes an obligation on a person
referred to in subparagraph (v) or (vi) of
subsection (1)(a) in relation to a primary
agreement as an agreement for the purposes
of subsection (1)(b).
10
(3) In this section—
derivative means an arrangement in relation to
which—
(a) under the arrangement, a party to the
arrangement must, or may be required
to, provide at some future time
consideration of a particular kind or
kinds to someone; and
15
(b) the amount of the consideration, or the
value of the arrangement, is ultimately
determined, derived from or varies by
reference to (wholly or in part) the
value or amount of something else
(of any nature whatsoever and whether
or not deliverable), including, for
example, any one or more of the
following—
20
25
(i) an asset;
(ii) a rate (including an interest rate or
exchange rate);
30
(iii) an index;
(iv) a commodity;
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5
financing party, of a person (the first person),
means a person who directly or indirectly
provides financial accommodation to, or is a
counterparty to, a derivative with the first
person;
giving effect to, in relation to an agreement or
assignment, includes—
(a) complying with any obligation under
the agreement or assignment; and
10
15
20
(b) exercising or enforcing any right or
power under the agreement or
assignment;
port of Melbourne operator has the same
meaning as in the Port Management Act
1995;
primary agreement means an agreement
connected with an authorised transaction
containing provisions for or with respect to
the making of any payment by the State
relating to a port in Victoria specified in the
agreement at which one or more of the
following occurs—
(a) the loading, unloading, handling,
transport or transhipment of cargo
containers serving international trade;
25
(b) the storage of cargo containers serving
international trade.
Division 3—Miscellaneous
70 Delegation
30
The Premier, by instrument, may delegate any of
the Premier's functions under this Act, except this
power of delegation, to any of the following
persons—
(a) the Special Minister for State;
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(b) the Secretary to the Department of Premier
and Cabinet;
(c) a person (other than the Secretary) employed
under Part 3 of the Public Administration
Act 2004 in the Department of Premier and
Cabinet as an executive within the meaning
of that Act.
5
71 Orders
10
(1) An order made by the Premier under this Act must
be in writing.
(2) An order made by the Premier under this Act
takes effect on the day on which it is made or if it
specifies a later day, that day.
15
(3) A document purporting to be an order made by the
Premier under a provision of this Act is, unless the
contrary is established, taken to be such an order
and to have been properly made.
Division 4—Regulations
72 Regulations
20
(1) The Governor in Council may make regulations
for or with respect to any matter required or
permitted by this Act to be prescribed or
necessary or convenient to be prescribed to give
effect to this Act.
25
(2) The regulations may—
(a) be of general or limited application; and
(b) differ according to differences in time, place
or circumstances; and
(c) confer a discretionary authority or impose a
duty on a specified person or a specified
class of person.
30
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Part 8—Transaction-related amendments
Division 1—Amendment of Transport Integration
Act 2010
73 Definition
5
10
15
In section 3 of the Transport Integration Act
2010 insert the following definition—
"Port Capacity Project part of the port of
Melbourne means that part of the port of
Melbourne at which the development
declared in the nomination order under the
Project Development and Construction
Management Act 1994, dated 4 September
2012 and published in the Government
Gazette on 7 September 2012, is being
carried out;".
74 Object of Port of Melbourne Corporation
(1) For section 141D(1) of the Transport
Integration Act 2010 substitute—
20
"(1) The main objects of the Port of Melbourne
Corporation are—
(a) to ensure that port of Melbourne waters
and channels in port of Melbourne
waters are managed for use on a fair
and reasonable basis consistent with the
vision statement and the transport
system objectives; and
25
(b) to manage and develop Station Pier and
West Finger Pier consistent with the
vision statement and the transport
system objectives; and
30
(c) if authorised under section 141EA, to
manage and develop the Port Capacity
Project part of the port of Melbourne
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consistent with the vision statement and
the transport system objectives; and
(d) if the Port of Melbourne Corporation is
a designated State port entity (as
defined in section 74AA of the Port
Management Act 1995), to manage a
site in the port of Melbourne at which
stevedoring operations are carried out
consistent with the vision statement and
the transport system objectives.".
5
10
(2) In section 141D(2) of the Transport Integration
Act 2010—
(a) for "primary object includes" substitute
"main objects include";
15
(b) in paragraph (a), for "port of Melbourne is"
substitute "port of Melbourne waters,
Station Pier and West Finger Pier are";
(c) paragraphs (b) and (c) are repealed.
75 Functions of Port of Melbourne Corporation
20
(1) For section 141E(1)(a) and (b) of the Transport
Integration Act 2010 substitute—
"(a) if authorised under section 141EA—
(i) to plan for the development of the Port
Capacity Project part of the port of
Melbourne;
25
(ii) to provide infrastructure necessary for
the development and operation of the
Port Capacity Project part of the port of
Melbourne;
30
(iii) to develop, or enable and control the
development by others of, the Port
Capacity Project part of the port of
Melbourne;
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(b) if the Port of Melbourne Corporation is a
designated State port entity (as defined in
section 74AA of the Port Management Act
1995)—
5
(i) to manage, or enable and control the
management by others of, a site in the
port of Melbourne for the carrying out
of stevedoring operations;
(ii) to provide, or enable and control the
provision by others of, services at a site
in the port of Melbourne it manages
and at which stevedoring operations are
carried out;".
10
15
(2) Section 141E(1)(c) to (e) and (g) of the
Transport Integration Act 2010 are repealed.
(3) At the foot of section 141E(1)(f) of the Transport
Integration Act 2010 insert—
"Note
20
25
Station Pier and West Finger Pier are part of the port of
Melbourne—see the definition of port of Melbourne in
section 3(1) of the Port Management Act 1995 and
section 65 of that Act.".
(4) In section 141E(1)(h) of the Transport
Integration Act 2010, before "manage" insert
"establish and".
(5) After section 141E(1)(i) of the Transport
Integration Act 2010 insert—
30
"(ia) to publish information about the depths and
configurations of channels and berths in port
of Melbourne waters;
(ib) to provide or maintain systems related to
navigation in port of Melbourne waters,
including systems for—
(i) managing vessel traffic and vessel
communications in those waters;
35
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(ii) the scheduling and allocation of vessels
to berths in those waters and in the port
of Melbourne;".
5
(6) After section 141E(1)(j) of the Transport
Integration Act 2010 insert—
"(ja) to perform functions under Part 4A of the
Port Management Act 1995 (Regulation of
towage services);
10
(jb) in relation to Station Pier and West Finger
Pier—
(i) to plan for the development and
operation of the piers;
(ii) to provide land, waters and
infrastructure necessary for the
development and operation of the piers;
15
(iii) to develop, or enable and control the
development by others of, the whole or
any part of the piers;
(iv) to manage, or enable and control the
management by others of, the whole or
any part of the piers;
20
(v) to provide, or enable and control the
provision by others of, services for the
operation of the piers;
25
(vi) to facilitate the integration of
infrastructure and logistics systems in
the piers with the transport system and
other relevant systems outside the
piers;".
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76 New section 141EA inserted
After section 141E of the Transport Integration
Act 2010 insert—
5
"141EA Minister may authorise Port of Melbourne
Corporation to perform certain functions
The Minister may, in writing, authorise the
Port of Melbourne Corporation to perform a
function specified in section 141E(1)(a).".
77 Dredging by Port of Melbourne Corporation
10
15
In section 141F of the Transport Integration Act
2010, for "carrying out its functions as a channel
operator" substitute "performing its functions
under section 141E(1)(h)".
Division 2—Amendment of Port Management Act
1995
78 Definitions
(1) In section 3(1) of the Port Management Act
1995—
(a) for the definition of port licence fee
substitute—
20
"port licence fee means the fee payable by
the port licence holder under Part 2B;";
(b) in the definition of port of Melbourne land,
in paragraph (a)(i), for "the Port of
Melbourne Corporation" substitute "a public
sector entity or the port of Melbourne
operator".
25
(2) In section 3(1) of the Port Management Act
1995 insert the following definitions—
30
"anchorage means a place in port waters where
vessels may anchor;
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channel-dredging activities means any of the
following activities to enable use of a
channel by vessels—
(a) altering, dredging, cleansing, scouring,
straightening and improving a channel;
5
(b) reducing or removing any banks or
shoals within a channel;
(c) abating and removing any
impediments, obstructions and
nuisances in a channel that are injurious
to the seabed or that obstruct or tend to
obstruct navigation;
10
(d) placing or disposing of excavated or
dredged material resulting from the
carrying out of an activity referred to in
paragraph (a), (b) or (c);
15
(e) undertaking any works necessary to
place or dispose of excavated or
dredged material resulting from the
carrying out of an activity referred to in
paragraph (a), (b) or (c);
20
25
leased port of Melbourne land means port of
Melbourne land in respect of which the port
of Melbourne operator holds a leasehold
interest;
port licence means a licence granted under
Division 5 of Part 3;
port licence holder means the holder of a port
licence;
30
port of Melbourne operator means a person
declared under section 4A to be the port of
Melbourne operator;
provision of channels includes carrying out
channel-dredging activities;
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public entity has the same meaning as in the
Public Administration Act 2004;
5
public sector entity has the same meaning as in
the Delivering Victorian Infrastructure
(Port of Melbourne Lease Transaction)
Act 2015;".
79 Owner of vessel or cargo
10
In section 4(2)(b) of the Port Management Act
1995, after "Corporation," insert "the port of
Melbourne operator,".
80 New section 4A inserted
After section 4 of the Port Management Act
1995 insert—
"4A Declaration of port of Melbourne operator
15
20
The Minister, by Order published in the
Government Gazette, may declare that a
person specified in the Order is on and after
a date specified in the Order the port of
Melbourne operator.".
81 Accountability for damage
(1) In section 23(1) of the Port Management Act
1995—
(a) after paragraph (a)(i) insert—
"(ia) any property (whether real or personal)
of the port of Melbourne operator
(being property used by the port of
Melbourne operator in connection with
the provision of channels by it); or";
25
(b) in paragraph (b), for "or a channel operator
as channel operator," substitute "a channel
operator as channel operator or the port of
Melbourne operator";
30
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(c) for "or the channel operator" substitute
", the channel operator or the port of
Melbourne operator (as the case requires)".
5
10
(2) In section 23(2) of the Port Management Act
1995, for "or the channel operator" substitute
", the channel operator or the port of Melbourne
operator".
(3) In section 23(2A) and (3) of the Port
Management Act 1995, for "or a channel
operator" substitute ", a channel operator or the
port of Melbourne operator".
82 Liability of certain persons
15
In section 24(1) of the Port Management Act
1995, for "or a channel operator" substitute
", a channel operator or the port of Melbourne
operator".
83 New section 44H substituted and new sections
44HAA and 44HA inserted
20
For section 44H of the Port Management Act
1995 substitute—
"44HAA Definitions
In this Part—
annual licence fee means the port licence
fee payable under section 44H;
25
upfront licence fee means the port licence
fee payable under section 44HA;
Victorian Transport Fund means the Fund
established under section 13 of the
Delivering Victorian Infrastructure
(Port of Melbourne Lease
Transaction) Act 2015.
30
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44H Liability to pay port licence fee
(1) The port licence holder is liable to pay a port
licence fee in respect of the port licence the
port licence holder holds.
5
(2) The port licence fee is payable for each
financial year the port licence is in force on
and after 1 July 2015 (an annual licence
fee).
(3) The amount of the annual licence fee is the
amount calculated in accordance with this
Part.
10
(4) The amount of the annual licence fee that is
payable is not to be adjusted even if the
obligation to pay the fee arises after the
beginning of the financial year in respect of
which the fee is payable.
15
(5) No amount of an annual licence fee that has
been paid is to be refunded if the port licence
ceases to be in force before the end of the
financial year in respect of which that fee has
been paid.
20
44HA Treasurer may require upfront licence fee
for a period instead of annual licence fees
for that period
25
(1) Despite section 44H, the Treasurer, in
respect of a period commencing on or after
1 July 2016 during which the port licence
will be in force, may require the port licence
holder to pay to the Treasurer, before that
period commences, a fee determined by
the Treasurer in relation to all of the
financial years encompassed by that period
(an upfront licence fee) instead of the annual
licence fees that would otherwise be payable
under section 44H for those financial years.
30
35
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(2) In determining an upfront licence fee, the
Treasurer may have regard to the way
section 44J would otherwise apply to
determine the annual licence fee for each
financial year encompassed by the period to
which the upfront licence fee relates.
5
(3) Subsection (2) does not limit how the
Treasurer may determine an upfront licence
fee.
10
(4) The payment of an upfront licence fee
satisfies any obligation a port licence holder
has to pay an annual licence fee for a
financial year that would otherwise arise
under section 44H if that upfront licence fee
relates to a period that encompasses that
financial year.
15
(5) No upfront licence fee, and no part of an
upfront licence fee, that is paid in accordance
with this section is to be refunded to the port
licence holder except as provided under
section 44N.".
20
84 Notice of annual licence fee
25
(1) In the heading to section 44K of the Port
Management Act 1995, for "port" substitute
"annual".
(2) In section 44K(1) of the Port Management Act
1995—
(a) for "a port" substitute "an annual";
(b) for "the port" substitute "the annual".
30
(3) In section 44K(2) of the Port Management Act
1995—
(a) for "Port of Melbourne Corporation"
substitute "port licence holder";
(b) for "port" substitute "annual".
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85 Method of payment of annual licence fee
(1) In the heading to section 44L of the Port
Management Act 1995, for "port" substitute
"annual".
5
(2) In section 44L(1) of the Port Management Act
1995—
(a) for "port" substitute "annual";
(b) for "Port of Melbourne Corporation"
substitute "port licence holder".
10
(3) In section 44L(2) of the Port Management Act
1995—
(a) for "Port of Melbourne Corporation"
substitute "port licence holder";
(b) for "port" substitute "annual".
15
(4) In section 44L(3) of the Port Management Act
1995—
(a) for "Port of Melbourne Corporation"
substitute "port licence holder";
(b) for "State" substitute "Minister".
20
86 New sections 44M and 44N inserted
After section 44L of the Port Management Act
1995 insert—
"44M Where are port licence fees to be paid?
(1) An annual licence fee (including an
instalment amount of an annual licence fee)
is to be paid into the Consolidated Fund.
25
(2) An upfront licence fee is to be paid into the
Victorian Transport Fund unless the
Treasurer directs that the fee is to be paid
into the Consolidated Fund.
30
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44N Refund of upfront licence fee
(1) This section applies if—
(a) the port licence holder has paid an
upfront licence fee; and
5
(b) before the period for which the port
licence holder has paid that fee ends,
the Minister revokes the holder's port
licence under section 63J on a ground
specified in the licence as a ground on
which a refund of an upfront licence or
part of an upfront licence fee is
payable.
10
(2) There must be paid to the previous port
licence holder an amount (the refund
amount) that is attributable to the financial
years that have not passed and are
encompassed by the period to which the
upfront licence relates.
15
(3) The refund amount must be paid as
follows—
20
(a) if the upfront licence fee was paid into
the Victorian Transport Fund and there
are sufficient funds in that Fund for that
payment, from that Fund;
25
(b) if the upfront licence fee was paid into
the Victorian Transport Fund but there
are insufficient funds in that Fund for
that payment, from—
(i) that Fund; and
30
(ii) the Consolidated Fund in respect
of any part of the amount that
cannot be met by funds in the
Victorian Transport Fund;
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(c) if the upfront licence fee was paid into
the Consolidated Fund, from the
Consolidated Fund.
(4) The Consolidated Fund is appropriated to the
extent necessary for the purposes of a
payment of a refund amount under
subsection (3)(b)(ii) or (c).
5
(5) In this section—
previous port licence holder means the
person who held the port licence that
has been revoked under section 63J and
to which this section applies.".
10
87 Definitions
15
In section 45 of the Port Management Act
1995—
(a) insert the following definitions—
'adverse compliance report, in relation to a
provider of prescribed services, means
a final published report in which the
Commission has found that the
provider has not complied with a
Pricing Order in a significant and
sustained manner;
20
associated entity has the same meaning as in
the Corporations Act;
25
authorised transaction has the same
meaning as in the Delivering Victorian
Infrastructure (Port of Melbourne
Lease Transaction) Act 2015;
30
Dedicated Channels means that part of port
of Melbourne waters that are north of
Fawkner Beacon;
enforceable provision means a provision of
a Pricing Order that is prescribed;
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ESC Minister means the Minister
administering the Essential Services
Commission Act 2001;
ESC Price Monitoring Determination
means—
5
(a) the determination of the
Commission under Part 3 of the
Essential Services Commission
Act 2001 titled the "Price
Monitoring Determination for
Victorian Ports 2010" made on
4 May 2010, as amended from
time to time;
10
(b) any determination under Part 3 of
the Essential Services
Commission Act 2001 made by
the Commission that revokes and
substitutes, or supersedes, the
determination referred to in
paragraph (a), as amended from
time to time;
15
20
final published report means a report on an
inquiry under section 49I laid before
each House of the Parliament or made
available for public inspection in
accordance with section 45 of the
Essential Services Commission Act
2001;
25
port assets has the same meaning as in the
Delivering Victorian Infrastructure
(Port of Melbourne Lease
Transaction) Act 2015;
30
Pricing Order means an Order in Council
made under section 49A;
35
Pricing Order transition period means the
period specified under a Pricing Order;
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protected provision means—
(a) a provision of a Pricing Order that
specifies the initial values of
assets used by a provider of
prescribed services to provide
those services, including the
Shared Channels used by vessels
bound either for the port of
Melbourne or for the port of
Geelong; or
5
10
(b) a provision of a Pricing Order that
specifies the economic life of an
asset used by a provider of
prescribed services to provide
those services for amortisation and
depreciation purposes; or
15
(c) a provision of a Pricing Order
specified under a Pricing Order as
a protected provision;
20
re-regulation recommendation means a
recommendation of the ESC Minister to
the Governor in Council to make an
Order under section 49A that amends or
revokes provisions of a Pricing Order to
make Division 3 apply in relation to the
provision of prescribed services;
25
seaward limit means the line constituting
the arc of a circle with a radius of
3 nautical miles centred on position
38°17'.52' S144°36'.84"E
(Point Lonsdale Signal Station);
30
Shared Channels means that part of port of
Melbourne waters extending from the
seaward limit to Point Richards in the
direction of Geelong and Fawkner
Beacon in the direction of Melbourne,
35
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including the channels known as the
Great Ship Channel and adjacent
channels and the South Channel;
show cause notice means a notice under
section 49K(1).';
5
(b) in the definition of prescribed prices,
for "section 49(b)" substitute
"section 49(1)(b)";
(c) in the definition of prescribed services,
for "section 49(c)" substitute
"section 49(1)(c)";
10
(d) in the definition of regulated industry,
for "section 49(a)." substitute
"section 49(1)(a);";
15
(e) the definitions of channel operator,
Competition Principles Agreement and
prescribed channel are repealed.
88 Application of Part
20
(1) In section 47 of the Port Management Act 1995,
for "This" substitute "Subject to this section,
this".
(2) At the end of section 47 of the Port Management
Act 1995 insert—
25
"(2) Division 3 applies (and Divisions 2A and 2B
do not apply) in relation to the provision of
prescribed services if a Pricing Order
declares that—
(a) Division 3 applies in relation to the
provision of prescribed services; and
30
(b) the Pricing Order (other than the
protected provisions) does not apply in
relation to the provision of prescribed
services.
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(3) To avoid doubt, Divisions 2A and 2B do not
apply, and Division 3 applies, to the
provision of prescribed services if there is no
Pricing Order in effect.".
5
89 New section 48 substituted and new section 48A
inserted
For section 48 of the Port Management Act 1995
substitute—
"48 Objectives of this Part
10
The objectives of this Part are—
(a) to promote efficient use of, and
investment in, the provision of
prescribed services for the long-term
interests of users and Victorian
consumers; and
15
(b) to allow a provider of prescribed
services a reasonable opportunity to
recover the efficient costs of providing
prescribed services, including a return
commensurate with the risks involved;
and
20
(c) to facilitate and promote competition—
(i) between ports; and
(ii) between shippers; and
25
(iii) between other persons conducting
other commercial activities in
ports.
48A Commission must have regard to
objectives of this Part
30
In addition to the objectives under section 8
of the Essential Services Commission Act
2001 (but subject to section 5(2) of that Act),
the Commission must have regard to the
objectives set out in section 48 when
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performing its functions or exercising its
powers in relation to the regulated industry.".
90 Price regulation—prescribed services
5
10
(1) For section 49(c)(i), (ii) and (iii) of the Port
Management Act 1995 substitute—
"(i) the provision of channels (except
anchorages) for use by shipping in port of
Melbourne waters, including the Shared
Channels used by vessels bound either for
the port of Melbourne or for the port of
Geelong and the Dedicated Channels used by
vessels bound for the port of Melbourne;
(ii) the provision of berths, buoys or dolphins in
connection with the berthing of vessels in the
port of Melbourne;
15
(iii) the provision of short-term storage or cargo
marshalling facilities in connection with the
loading or unloading of vessels at berths,
buoys or dolphins in the port of Melbourne;
20
(iv) the provision of access to, or allowing the
use of, places or infrastructure (including
wharves, slipways, gangways, roads and rail
infrastructure) on port of Melbourne land for
the provision of services to port users;
25
Examples
Tanker, wharf and water inspection services, and
security services, are kinds of services that are
provided to port users on port of Melbourne land.
(v) any other service that is prescribed by the
regulations.".
30
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(2) At the end of section 49 of the Port Management
Act 1995 insert—
"(2) For the purposes of Part 3 of the Essential
Services Commission Act 2001—
5
(a) a granting of a lease or sublease by the
port of Melbourne operator pursuant to
which a person is permitted to provide
any of the following in the port of
Melbourne to other persons is not a
prescribed service—
10
(i) container terminal or stevedoring
operations;
(ii) automotive terminal or
stevedoring operations;
15
(iii) dry-bulk terminal or stevedoring
operations;
(iv) liquid-bulk terminal or
stevedoring operations;
(v) break-bulk terminal or stevedoring
operations;
20
(vi) an activity or operations specified
in the regulations; and
(b) the services described in subparagraphs
(i) to (v) of subsection (1)(c) are not
prescribed services if the Port of
Melbourne Corporation provides those
services.".
25
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91 New Division 2 of Part 3 inserted
After Division 1 of Part 3 of the Port
Management Act 1995 insert—
"Division 2—Port of Melbourne Pricing
Order
5
49A Pricing Order
(1) The Governor in Council, on the
recommendation of the ESC Minister, may
make an Order—
10
(a) for or with respect to the provision of
prescribed services; and
(b) for the regulation, in such manner as
the Governor in Council thinks fit, of
the prices for the provision of
prescribed services.
15
(2) Without limiting the generality of
subsection (1)(a), an Order under
subsection (1) may—
(a) declare whether Division 2A, 2B or 3,
or the Order, applies in relation to the
provision of prescribed services; and
20
Note
See also section 47(2).
(b) specify a provision of the Order as a
protected provision; and
25
(c) specify a period commencing on the
day the Pricing Order takes effect as the
Pricing Order transition period; and
(d) specify procedures to enable
monitoring of compliance with the
Order; and
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(e) specify how specified information is to
be recorded and kept; and
(f) require persons to prepare and give
reports to the Commission about
specified information or specified
matters.
5
(3) Without limiting the generality of
subsection (1)(b), the manner may include
any one or more of the following—
10
(a) monitoring the level of prices for
prescribed services or any component
of prescribed services;
(b) specifying pricing policies or
principles;
15
(c) specifying cost measurement and
allocation principles;
(d) specifying initial values of assets used
by the port of Melbourne operator to
provide prescribed services, including
the initial values of the Shared
Channels used by vessels bound either
for the port of Melbourne or for the port
of Geelong;
20
(e) specifying the treatment of capital
expenditure;
25
(f) fixing the price or the rate of increase
or decrease in a price;
30
(g) fixing a maximum price or maximum
rate of increase or minimum rate of
decrease in the maximum price;
35
(h) fixing an average price for prescribed
services or any component of
prescribed services, or an average rate
of increase or decrease in the average
price;
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5
(i) specifying an amount determined by
reference to a general price index, the
cost of production, a rate of return on
assets employed or any other specified
factor;
10
(j) specifying an amount determined by
reference to quantity, location, period
or other specified factor relevant to the
rate or supply of prescribed services or
any component of prescribed services;
(k) fixing a maximum revenue or
maximum rate of increase or minimum
rate of decrease in the maximum
revenue in relation to prescribed
services or any component of
prescribed services;
15
(l) providing for a return on, or return of,
capital—
(i) before any relevant capital
expenditure is incurred; or
20
(ii) over a period that is shorter than
the projected economic life of the
relevant asset; or
(iii) if the provider of prescribed
services to whom the Order
applies or any associated entity of
the provider is a private sector
entity who has been granted a
lease of port assets for the
purposes of an authorised
transaction, on an uneven basis
during the period that equates to
the term of that lease.
25
30
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49B General powers in relation to a Pricing
Order
A Pricing Order may—
(a) confer functions and powers on, or
leave any matter to be decided by, the
Commission; and
5
(b) be of general or limited application; and
(c) differ according to differences in time,
place or circumstances.
10
49C Pricing Order must be published in the
Government Gazette
A Pricing Order must be published in the
Government Gazette.
49D When Pricing Order takes effect
15
A Pricing Order takes effect—
(a) on the day the Order is published in the
Government Gazette; or
(b) if a later day is specified in the Order,
on that day.
20
49E Limitation on amending or revoking a
Pricing Order
A Pricing Order cannot be amended or
revoked except in accordance with this
Division.
25
49F Circumstances in which a Pricing Order
may be amended
(1) Subject to sections 49G and 49H, a Pricing
Order may only be amended by an Order
made under section 49A as follows—
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(a) to revoke a provision that declares that
Division 3 does not apply in relation to
the provision of prescribed services;
Note
5
See also section 47(2).
(b) to revoke a provision because of the
commencement of port operations at a
new container port in Victoria;
(c) to make consequential amendments to
the Order as a result of a revocation of
the kind provided under paragraph (a)
or (b);
10
(d) with the agreement of the provider of
prescribed services to whom the Order
applies.
15
(2) A Pricing Order may only be amended as
provided under subsection (1)(a) if the ESC
Minister decides to make a re-regulation
recommendation.
20
Note
See also section 49L.
49G Circumstances in which a Pricing Order
may be wholly revoked
A Pricing Order may be wholly revoked by
an Order made under section 49A if—
25
(a) the provider of prescribed services to
whom the Order applies is a public
entity; or
(b) the provider of prescribed services to
whom the Order applies agrees to the
revocation.
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49H Protected provisions cannot be revoked or
amended etc.
(1) A protected provision that is in effect cannot
be amended by another Order made under
section 49A except with the agreement of the
provider of prescribed services to whom the
Order applies.
5
(2) In addition, the effect of a protected
provision that is in effect cannot be altered
or varied by another Order made under
section 49A except with the agreement of the
provider of prescribed services to whom the
Order applies.
10
(3) A protected provision cannot be revoked
except—
15
(a) when the Pricing Order is wholly
revoked because of the circumstances
set out in section 49G; or
(b) with the agreement of the provider of
prescribed services to whom the Order
applies.".
20
92 New Divisions 2A and 2B of Part 3 inserted
After Division 2 of Part 3 of the Port
Management Act 1995 insert—
"Division 2A—Monitoring compliance
with Pricing Order
25
49I Conduct of reviews into compliance with
Pricing Order
(1) The Commission must, not later than
6 months after a review period, conduct and
complete an inquiry under the Essential
Services Commission Act 2001 and report
to the ESC Minister—
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(a) as to whether a provider of prescribed
services to whom a Pricing Order
applies has complied with the Order
during the review period; and
5
(b) if there was non-compliance with the
Pricing Order, whether that noncompliance was, in the Commission's
view, non-compliance in a significant
and sustained manner.
10
(2) Subject to this Division, an inquiry under
this section must be conducted in accordance
with Part 5 of the Essential Services
Commission Act 2001 but sections 40
and 46 of that Act do not apply in respect of
that inquiry.
15
(3) As part of an inquiry under this section the
Commission may take into account—
20
(a) any findings it has made in reports on
previous inquiries under this section;
and
25
(b) the nature and details of any instance of
non-compliance with a Pricing Order
by a provider of prescribed services that
is the subject of a report on a previous
inquiry under this section.
(4) Without limiting Part 5 of the Essential
Services Commission Act 2001, a final
report on an inquiry under this section must
include—
30
(a) the Commission's findings as to
whether there has been non-compliance
with a Pricing Order by a provider of
prescribed services that is noncompliance in a significant and
sustained manner; and
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(b) the Commission's reasons for those
findings.
(5) In this section—
review period means—
5
(a) the period commencing on the day
on which the first Pricing Order
made under section 49A takes
effect and ending 5 years after that
day; and
10
(b) every subsequent period of 5 years
commencing on the day after the
day on which the previous period
ends.
15
49J Draft report to be provided to provider of
prescribed services
The Commission must—
20
(a) provide a draft of a report on an inquiry
under section 49I to the provider of
prescribed services who is the subject
of the inquiry; and
25
(b) give the provider an opportunity to
make a written submission to the
Commission on that draft report before
the Commission prepares its final
report on the inquiry.
49K Giving of show cause notice to noncompliant provider of prescribed services
(1) If the ESC Minister, having regard to an
adverse compliance report and after
consultation with the Minister, considers that
the provider of prescribed services who is the
subject of the report has not complied with a
Pricing Order in a significant and sustained
manner, the ESC Minister may give the
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provider a written notice (a show cause
notice).
(2) A show cause notice must—
10
(a) state that the ESC Minister considers
that the provider of prescribed services
has not complied with the Pricing Order
in a significant and sustained manner
and that the ESC Minister is
considering making a re-regulation
recommendation; and
15
(b) set out the nature and details of noncompliance with the Pricing Order that
the ESC Minister considers constitute
non-compliance in a significant and
sustained manner; and
5
(c) specify any actions that the ESC
Minister considers the provider may
take to remedy that non-compliance or
to prevent non-compliance, including
the giving of an undertaking under
section 49M; and
20
(d) state that the provider may make
written submissions to the ESC
Minister, in the time specified in the
show cause notice, as to why, in the
provider's view, the ESC Minister
should not make a re-regulation
recommendation.
25
(3) The time specified in a show cause notice for
the purposes of subsection (2)(d) must not be
less than 60 days after the notice is given to
the provider.
30
(4) After receiving a written submission in
response to a show cause notice, the ESC
Minister, by written notice, may request
further information from the provider of
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prescribed services within the period
specified in that notice.
(5) The ESC Minister must not give a show
cause notice until any appeal under
section 55 of the Essential Services
Commission Act 2001 relating to the
adverse compliance report is finally heard
and determined by the appeal panel under
section 56 of that Act.
5
10
(6) The ESC Minister must cause to be
published a show cause notice and a notice
under subsection (4) on the Department's
Internet site.
49L Re-regulation recommendation
15
(1) Subject to this section, after the giving of a
show cause notice to a provider of prescribed
services, the ESC Minister must decide
whether to make a re-regulation
recommendation.
20
(2) Before making a decision under
subsection (1), the ESC Minister must
consult with the Minister.
(3) In deciding whether to make a re-regulation
recommendation, the ESC Minister must
have regard to—
25
(a) any written submission of the provider
of prescribed services in response to the
show cause notice that the Minister
receives within the time specified in the
notice, including any undertakings the
provider proposes to give under
section 49M; and
30
(b) any further information the provider
gives to the Minister on a request under
section 49K(4); and
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(c) whether the provider has breached any
undertaking given under section 49N;
and
(d) whether it is in the public interest that
Division 3 apply in relation to the
provision of prescribed services.
5
(4) In having regard to the matter in
subsection (3)(d), the ESC Minister must
have regard to the objectives of this Part.
10
(5) The ESC Minister must decide whether to
make a re-regulation recommendation within
90 days after the later of—
(a) the date specified in the show cause
notice as the date by which the provider
of prescribed services must make a
submission; or
15
(b) the date on which the provider must
provide the information requested
under section 49K(4) to the ESC
Minister.
20
49M Undertakings
(1) The ESC Minister may accept a written
undertaking given by a provider of
prescribed services who is the subject of an
adverse compliance report in relation to the
provider's non-compliance with a Pricing
Order if the ESC Minister is satisfied that—
25
(a) the terms of the undertaking offered by
the provider are appropriate to
adequately address the provider's noncompliance with a Pricing Order; and
30
(b) the provider is reasonably likely to
comply with the terms of the
undertaking.
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(2) Before accepting an undertaking under
subsection (1), the ESC Minister must
consult with the Minister.
(3) The provider of prescribed services may
withdraw or vary the undertaking at any
time, but only with the consent of the ESC
Minister.
5
(4) The ESC Minister must cause to be
published a copy of an undertaking accepted
under subsection (1) on the Department's
Internet site.
10
49N Enforcement of undertakings
(1) This section applies if the ESC Minister
considers that a provider of prescribed
services whose undertaking has been
accepted under section 49M has breached
any of its terms.
15
(2) The ESC Minister may apply to the Supreme
Court for an order under subsection (4).
20
(3) Before making an application under
subsection (2), the ESC Minister must
consult with the Minister.
(4) If, on an application under subsection (2), the
Supreme Court is satisfied that the provider
of prescribed services has breached a term of
the undertaking, the Court may make all or
any of the following orders—
25
(a) an order directing the provider to
comply with that term of the
undertaking;
30
(b) an order directing the provider to pay to
the State an amount up to the amount of
any financial benefit that the provider
has obtained directly or indirectly and
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that is reasonably attributable to the
breach;
(c) any order that the Court considers
appropriate directing the provider to
compensate any other person who has
suffered loss or damage as a result of
the breach;
5
(d) any other order that the Court considers
appropriate.
Division 2B—Transitional enforcement
regime
10
49O Application of Division
(1) This Division applies during the Pricing
Order transition period.
15
(2) This Division does not limit Division 2A.
49P Enforcement of Pricing Order during
Pricing Order transition period
If the Supreme Court is satisfied, on the
application of the ESC Minister, that a
provider of prescribed services has engaged,
is engaging, or is proposing to engage in
conduct that constitutes a contravention of an
enforceable provision, the Court may make
all or any of the following orders—
20
25
(a) an order granting an injunction on such
terms as the Court thinks appropriate—
(i) restraining the provider from
engaging in the conduct; or
(ii) if the conduct involves refusing or
failing to do something, requiring
the provider to do that thing;
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(b) an order directing the provider to pay to
the State an amount up to the amount of
any financial benefit that the provider
has obtained directly or indirectly and
that is reasonably attributable to the
contravention;
5
(c) an order directing the provider to
compensate any other person who has
suffered loss or damage as a result of
the contravention;
10
(d) any other order that the Court thinks
appropriate.".
93 New Division 3 heading substituted
15
For the heading to Division 3 of Part 3 of the Port
Management Act 1995 substitute—
"Division 3—General economic
regulation powers".
94 Repeal of section 53
20
Section 53 of the Port Management Act 1995 is
repealed.
95 General power to make determinations
(1) For section 54(1) and (2) of the Port
Management Act 1995 substitute—
"(1) This section applies if—
25
(a) there is no Pricing Order in effect and
the ESC Minister determines that
prescribed services are to be subject to
price regulation; or
(b) there is a Pricing Order in effect and
that Order declares that this Division
applies to the provision of prescribed
services.
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(2) The Commission must make a determination
in accordance with Part 3 of the Essential
Services Commission Act 2001.".
5
10
(2) After section 54(3) of the Port Management Act
1995 insert—
"(3A) In addition, while a Pricing Order is in
effect, the Commission must not make a
determination under this section in relation
to prescribed services provided in the port of
Melbourne that does not give effect to, or has
the effect of altering or varying, a protected
provision.".
(3) Section 54(5) of the Port Management Act 1995
is repealed.
15
20
(4) After section 54(6) of the Port Management Act
1995 insert—
"(7) To avoid doubt, a determination made by the
Commission under this section in relation to
prescribed services provided in the port of
Melbourne does not cease to have effect only
because a Pricing Order ceases to have
effect.".
96 New Division heading inserted
25
Insert the following heading after section 54 of
the Port Management Act 1995—
"Division 3A—Service quality
monitoring".
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97 New section 54A inserted
Before section 55 of the Port Management Act
1995 insert—
5
"54A ESC Minister may direct Commission in
relation to exercise of powers relating to
standards and conditions of service and
supply
(1) The ESC Minister may request, in writing,
the Commission to exercise its powers under
section 55(1).
10
(2) A request under subsection (1) may specify
the time within which the Commission is to
exercise its powers under section 55(1).
(3) The Commission must comply with a request
it receives under subsection (1).".
15
98 Standards and conditions of service and supply
20
(1) In section 55(2) of the Port Management
Act 1995 omit ", other than a power relating
to prescribed services referred to in
section 49(c)(iii)".
(2) Section 55(3), (4) and (5) of the Port
Management Act 1995 are repealed.
99 New Division heading inserted
25
Insert the following heading before section 56 of
the Port Management Act 1995—
"Division 3B—Information
requirements and information
disclosure restrictions".
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100 Division 5 of Part 3 substituted
For Division 5 of Part 3 of the Port Management
Act 1995 substitute—
"Division 5—Port licences
5
63A Provision of prescribed services without
licence prohibited
A person must not provide prescribed
services unless the person—
(a) is the holder of a licence authorising the
provision of the relevant prescribed
services; or
10
(b) is exempted from the requirement to
obtain a licence in respect of the
provision of the relevant prescribed
services.
15
Penalty: 100 penalty units and 10 penalty
units for each day after the day on
which a notice of contravention of
this section is served on the
person by the Minister.
20
63B Exemptions for public sector entities that
are not the port of Melbourne operator
The following entities are exempted from the
requirement to obtain a licence in respect of
the provision of prescribed services—
25
(a) the Port of Melbourne Corporation;
(b) any other public sector entity if it is not
the port of Melbourne operator.
63C Exemptions by Governor in Council
30
(1) The Governor in Council, by Order in
Council published in the Government
Gazette, may exempt a person from the
requirement to obtain a licence in respect of
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the provision of the prescribed services
specified in the Order in Council.
(2) An exemption may be of general or specific
application.
5
(3) An exemption is subject to such terms,
conditions and limitations as are specified in
the Order in Council.
(4) An Order under subsection (1) may confer
powers and functions on, and leave any
matter to be decided by, the Minister.
10
63D Application for port licence
(1) A person may apply to the Minister for the
issue of a licence authorising the provision of
the prescribed services specified in the
application.
15
(2) An application must be in a form approved
by the Minister and be accompanied by such
documents as may be required by the
Minister.
20
(3) An application must be accompanied by the
application fee (if any) fixed by the Minister.
63E Grant or refusal of application
(1) Subject to subsection (2), the Minister may
grant or refuse an application for the issue of
a licence for any reason the Minister
considers appropriate.
25
(2) Subject to this section, the Minister may
decide the procedures that are to apply in
respect of the issue of a licence.
30
(3) The Minister must notify an applicant in
writing of the Minister's decision to grant or
refuse to grant the application and, in the
case of a decision to refuse to grant the
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application, of the reasons for the Minister's
decision.
63F Provisions relating to port licences
(1) A licence is to be issued for such term
(if any) as is decided by the Minister and is
specified in the licence.
5
(2) Subject to this section, a licence is subject to
such conditions as are decided by the
Minister.
10
(3) Without limiting the generality of
subsection (2), the conditions on a licence
may include provisions—
(a) requiring the port licence holder to be
the port of Melbourne operator; or
15
(b) requiring the port licence holder to
comply with a requirement under
Part 2B; or
(c) specifying procedures for the variation
of the licence; or
20
(d) specifying grounds and procedures for
the revocation of the licence.
(4) The Minister must consult with the Treasurer
before deciding conditions specifying—
(a) procedures for the variation or
revocation of the licence; or
25
(b) any grounds for the revocation of the
licence.
(5) In addition, the Minister, in any conditions
that the Minister decides that specify a
procedure for the variation or revocation of
the licence, must include a requirement that
the Minister consult with the Treasurer
before making any decision under that
procedure.
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63G Gazettal requirement in relation to grant
of port licence
(1) The Minister must ensure that notice of the
grant of a port licence is published in the
Government Gazette as soon as possible
after the grant of a licence.
5
(2) A notice under subsection (1) must
include—
(a) the name of the port licence holder; and
10
(b) the term of the port licence; and
(c) the place where a copy of the port
licence may be inspected.
63H Compliance with conditions of port
licence
15
A port licence holder must comply with the
conditions of the port licence the port licence
holder holds.
Penalty: 100 penalty units and 10 penalty
units for each day after the day on
which a notice of contravention of
this section is served on the
person by the Minister.
20
63I Variation of port licence
A port licence or the licence conditions may
be varied—
25
(a) in accordance with the procedures
specified in the licence conditions; or
(b) by agreement between the Minister
(after consultation with the Treasurer)
and the port licence holder.
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63J Revocation of port licence
(1) The Minister may revoke a port licence on
any ground specified in the licence
conditions.
5
10
(2) The procedure that applies to a revocation of
a port licence under subsection (1) is the
procedure specified in the licence conditions
(if any).
63K Transfer of port licence—on application
by port licence holder
(1) A port licence holder may apply to the
Minister for approval to transfer the port
licence they hold.
(2) An application must be in a form approved
by the Minister and be accompanied by such
documents as may be required by the
Minister.
15
(3) An application must be accompanied by the
application fee (if any) fixed by the Minister.
20
(4) Subject to this section, the Minister may
approve, or refuse to approve, the application
for any reason the Minister considers
appropriate.
(5) The Minister may, after consultation with the
Treasurer, decide that, upon the transfer of
the port licence under this section, the
conditions to which the licence is subject are
varied as decided by the Minister.
25
(6) Subject to this section, the Minister may
decide the procedures that are to apply in
respect of the transfer of a port licence.
30
(7) The Minister must notify an applicant in
writing of the Minister's decision to approve
or refuse to approve the application and, in
the case of a decision to refuse to approve
35
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the application, of the reasons for the
Minister's decision.
63L Transfer of port licence—on Minister's
initiative
5
(1) The Minister, with the consent of the port
licence holder, may transfer the port licence
the port licence holder holds to another
person.
(2) The Minister may, after consultation with the
Treasurer, decide that, upon the transfer of
the port licence under this section, the
conditions to which the licence is subject are
varied as decided by the Minister.".
10
101 New Division 6 of Part 3 inserted
15
After Division 5 of Part 3 of the Port
Management Act 1995 insert—
"Division 6—Other matters
20
63M Revocation of ESC Price Monitoring
Determination when Pricing Order takes
effect
Despite anything to the contrary in the
Essential Services Commission Act 2001
or this Act, unless sooner revoked, the ESC
Price Monitoring Determination is revoked
on the day the first Pricing Order takes
effect.".
25
102 Towage requirements determination
(1) In section 73B(1) of the Port Management Act
1995—
30
(a) in paragraph (c), after "minimum" insert
"towing and pushing";
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(b) after paragraph (c) insert—
"(ca) the minimum emergency response
capability (including minimum firefighting capabilities) of any such
vessels or class of such vessels and any
specified standards applicable to such
capabilities; and";
5
(c) in paragraph (e), for "services." substitute
"services; and";
10
(d) after paragraph (e) insert—
"(f) the availability required for such
vessels that have emergency response
capabilities (including fire-fighting
capabilities).".
15
20
25
(2) After section 73B(3) of the Port Management
Act 1995 insert—
"(3A) A standard specified for the emergency
response capabilities (including the firefighting capabilities) for a towage vessel, or
a class of towage vessel, in a determination
under subsection (1) must meet or exceed the
relevant standard specified by the Director,
Transport Safety under section 202B of the
Marine Safety Act 2010.".
103 Process for making a towage requirements
determination
For section 73C(1) of the Port Management Act
1995 substitute—
30
"(1) Subject to subsection (1A), the Port of
Melbourne Corporation must publish notice
of a proposal to make a towage requirements
determination in the Government Gazette
before making the determination.
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(1A) The Port of Melbourne Corporation must
consult with the port of Melbourne operator
on the proposal at least 30 days before
publishing a notice under subsection (1).".
5
104 Determination of towage conditions
In section 73J(2) of the Port Management Act
1995—
(a) in paragraph (b), after "minimum" insert
"towing and pushing";
10
(b) after paragraph (b) insert—
"(ba) the minimum emergency response
capability (including minimum
fire-fighting capabilities) of any such
vessels or class of such vessels and any
specified standards applicable to such
capabilities; and";
15
(c) in paragraph (d), for "services." substitute
"services; and";
(d) after paragraph (d) insert—
20
25
"(e) the availability required for such
vessels that have emergency response
capabilities (including fire-fighting
capabilities).".
105 Limitation on making towage conditions
determinations
After section 73K(1)(b) of the Port Management
Act 1995 insert—
30
"(ba) must not make a determination that specifies
a standard that is to apply to the emergency
response capabilities (including the firefighting capabilities) of a towage vessel, or
class of towage vessel, to be supplied by the
notified towage services provider that does
not meet or exceed the relevant standard
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specified by the Director, Transport Safety
under section 202B of the Marine Safety
Act 2010; and".
106 Process for making towage conditions determination
5
10
For section 73N(1) of the Port Management Act
1995 substitute—
"(1) The Port of Melbourne Corporation must not
make a towage conditions determination
unless the Corporation has first consulted
with—
(a) the Director, Transport Safety; and
(b) the port of Melbourne operator.".
107 New sections 74AA and 74AB inserted
15
Before section 74 of the Port Management Act
1995 insert—
"74AA Definitions
In this Part—
anchorage fee means a channel fee for the
provision of an anchorage;
20
Note
A channel includes anchorages—see the
definition of channel in section 3(1).
approved channel fee means a channel fee
approved by Order in Council under
section 74AB;
25
approved wharfage fee means a wharfage
fee approved by Order in Council under
section 74AB;
designated State port entity means any of
the following entities designated by
Order in Council under section 74AB—
30
(a) the Port of Melbourne
Corporation;
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(b) a public entity other than the Port
of Melbourne Corporation.
74AB Designated State port entities and
approved wharfage fees and channel fees
5
The Governor in Council, by Order
published in the Government Gazette, may
do any one or more of the following—
(a) designate the Port of Melbourne
Corporation or another public entity as
a designated State port entity;
10
(b) approve a wharfage fee determined by a
designated State port entity under
section 74 as an approved wharfage fee;
(c) approve a channel fee (other than an
anchorage fee) determined by the Port
of Melbourne Corporation under
section 75 as an approved channel fee.
15
Note
The Port of Melbourne Corporation is the
channel operator for port of Melbourne
waters—see the definition of channel operator
in section 3(1).".
20
108 Wharfage fees—port of Melbourne
25
(1) For section 74(1) of the Port Management Act
1995 substitute—
"(1) Subject to this Part—
(a) the port of Melbourne operator may
determine a wharfage fee in respect of
the provision of a site in the port of
Melbourne at which stevedoring
operations may be carried out; and
30
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(b) a designated State port entity may
determine a wharfage fee in respect of
the provision of a site in the port of
Melbourne at which stevedoring
operations may be carried out.".
5
(2) In section 74(2) of the Port Management Act
1995, for "Subject to Part 3, a fee" substitute
"A fee".
10
(3) After section 74(2) of the Port Management Act
1995 insert—
"(2A) The calculation of a fee by the port of
Melbourne operator as provided under
subsection (2) is subject to Part 3.".
15
20
25
(4) In section 74(3) of the Port Management Act
1995, for "Port of Melbourne Corporation"
substitute "port of Melbourne operator or
designated State port entity".
(5) In section 74(4) of the Port Management
Act 1995, for "subsection (1) is payable to the
Port of Melbourne Corporation" substitute
"subsection (1)(a) is payable to the port of
Melbourne operator and a fee determined under
subsection (1)(b) that is an approved wharfage fee
is payable to the designated State port entity that
determined it".
(6) In section 74(5) of the Port Management Act
1995—
(a) for "subsection (1)" substitute
"subsection (1)(a) or an approved
wharfage fee";
30
(b) for "Port of Melbourne Corporation"
substitute "port of Melbourne operator or
designated State port entity (as the case
requires)".
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109 Channel fees
(1) In section 75(1) of the Port Management Act
1995—
(a) in paragraph (a)(i) omit "under this Act";
5
(b) for paragraph (b) substitute—
"(b) a channel operator may determine fees
for—
(i) the provision of channels by the
channel operator in the port waters
of the channel operator for use by
vessels; and
10
(ii) any service related to the
provision of the service described
in subparagraph (i); and
15
Note
The Port of Melbourne Corporation is the
channel operator for port of Melbourne
waters—see the definition of channel operator
in section 3(1).
20
(c) the port of Melbourne operator may
determine fees for—
(i) the provision of channels
(other than anchorages) by the
port of Melbourne operator in port
of Melbourne waters for use by
vessels; and
25
(ii) any service related to the
provision of the service described
in subparagraph (i).".
30
(2) For section 75(2)(c) of the Port Management Act
1995 substitute—
"(c) may differ according to the length of time
vessels are in—
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(i) if the fee is determined by the VRCA or
the channel operator, the port waters of
a port serviced by the VRCA or the
channel operator (as the case requires);
and
5
(ii) if the fee is determined by the port of
Melbourne operator, port of Melbourne
waters.".
10
(3) After section 75(2) of the Port Management Act
1995 insert—
"(2A) A fee determined by the port of Melbourne
operator as provided under subsection (2) is
subject to Part 3.".
15
(4) In section 75(3) of the Port Management Act
1995, for "A fee" substitute "Subject to
subsection (3A), a fee".
(5) After section 75(3) of the Port Management Act
1995 insert—
20
"(3A) A fee determined under subsection (1) by the
Port of Melbourne Corporation (other than
an anchorage fee) is not payable under
subsection (3) unless the fee is an approved
channel fee.
Note
25
30
The Port of Melbourne Corporation is the channel
operator for port of Melbourne waters—see the
definition of channel operator in section 3(1).".
(6) In section 75(4) of the Port Management Act
1995, for "or the channel operator" substitute
", the channel operator or the Port of Melbourne
operator (as the case requires)".
110 Payment of wharfage and channel fees
35
(1) In section 78(1) of the Port Management Act
1995, for "Port of Melbourne Corporation"
(where twice occurring) substitute "port of
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Melbourne operator, the designated State port
entity".
5
(2) In section 78(2) and (3) of the Port Management
Act 1995, for "Port of Melbourne Corporation"
substitute "port of Melbourne operator, the
designated State port entity".
111 Interest on overdue payments
10
In section 79(1) of the Port Management Act
1995, for "Port of Melbourne Corporation"
substitute "port of Melbourne operator, the
designated State port entity".
112 Security for payment of wharfage and channel fees
15
20
(1) In section 80(1), (3), (4) and (5) of the Port
Management Act 1995, for "Port of Melbourne
Corporation" substitute "port of Melbourne
operator, the designated State port entity".
(2) In section 80(2) of the Port Management Act
1995, for "Port of Melbourne Corporation"
(where twice occurring) substitute "port of
Melbourne operator, the designated State port
entity".
113 Liability of current owners and agents
25
In section 81(1) of the Port Management Act
1995, for "or the channel operator" substitute
", the channel operator or the port of Melbourne
operator".
114 Waiver or refund of wharfage or channel fees
30
In section 82 of the Port Management Act 1995,
for "Port of Melbourne Corporation" substitute
"port of Melbourne operator, the designated State
port entity".
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115 Definitions for the purposes of Part 5A
In section 83 of the Port Management Act 1995,
in the definition of recommending authority, after
paragraph (a) insert—
5
10
"(ab) in relation to an area, the declaration of
which as a restricted access area is or may be
recommended by the port of Melbourne
operator, means the port of Melbourne
operator; or".
116 Making a declaration of restricted access area
(1) In section 84(1)(a) of the Port Management Act
1995, after "land" insert ", that is not leased port
of Melbourne land, ".
15
20
(2) After section 84(1) of the Port Management Act
1995 insert—
"(1AA) The Minister, on the recommendation of the
port of Melbourne operator, may declare that
any part of leased port of Melbourne land
that is specified in the declaration (not being
more than 12 square kilometres, in area) is
an area to which access is restricted.".
117 Effect of declaration
In section 85 of the Port Management Act 1995,
for "or 84(2)" substitute ", (1AA), (1A) or (2)".
25
118 Pollution abatement by Port of Melbourne
Corporation
(1) In the heading to section 88J of the Port
Management Act 1995, after "abatement" insert
"by Port of Melbourne Corporation".
30
(2) In section 88J of the Port Management Act
1995, after "land" (wherever occurring) insert
", that is not leased port of Melbourne land, ".
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119 New section 88JA inserted
After section 88J of the Port Management Act
1995 insert—
5
"88JA Pollution abatement by port of Melbourne
operator
(1) This section applies if—
(a) pollutants have been or are being
discharged on leased port of Melbourne
land; or
10
(b) a condition of pollution is likely to arise
on leased port of Melbourne land; or
(c) any potentially hazardous substance
appears to have been abandoned or
dumped on leased port of Melbourne
land; or
15
(d) any potentially hazardous substance is
being handled in a manner which is
likely to cause an environmental hazard
on leased port of Melbourne land.
20
25
(2) The port of Melbourne operator may conduct
a clean up or cause a clean up to be
conducted as the port of Melbourne operator
considers necessary.".
120 Recovery of costs of clean up by Port of Melbourne
Corporation
In the heading to section 88K of the Port
Management Act 1995, after "up" insert
"by Port of Melbourne Corporation".
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121 New section 88KA inserted
After section 88K of the Port Management Act
1995 insert—
5
"88KA Recovery of costs of clean up by port of
Melbourne operator
(1) If the port of Melbourne operator conducts a
clean up under section 88JA, the port of
Melbourne operator may recover any
reasonable costs incurred by it in conducting
the clean up from the person who caused the
circumstances that gave rise to the need for
the clean up to be conducted.
10
(2) The costs that may be recovered under
subsection (1) include labour, administrative
and overhead costs, determined on such basis
as the port of Melbourne operator reasonably
considers appropriate, incurred as a result of
any action taken by it under subsection (1).
15
(3) An amount payable under subsection (1)
may be recovered in any court of competent
jurisdiction as a debt due to the port of
Melbourne operator.".
20
122 Hazardous port activity notice
25
(1) In section 88M(1) of the Port Management Act
1995, after "land" insert "that is not leased port of
Melbourne land".
(2) After section 88M(1) of the Port Management
Act 1995 insert—
30
"(1A) A person who proposes to carry out a
hazardous activity on leased port of
Melbourne land must give notice to the Port
of Melbourne Corporation and the port of
Melbourne operator before doing so.
Penalty: 20 penalty units.".
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(3) In section 88M(2) of the Port Management Act
1995, after "(1)" insert "or (1A)".
123 New section 88P substituted
5
For section 88P of the Port Management Act
1995 substitute—
"88P Offence to leave things in port waters or
on port land
(1) A person must not leave any thing
unattended in port of Melbourne waters or on
port of Melbourne land that is not leased port
of Melbourne land for more than one month
without the permission of the Port of
Melbourne Corporation.
10
Penalty: 60 penalty units.
15
(2) A person must not leave any thing
unattended on leased port of Melbourne land
for more than one month without the
permission of the port of Melbourne
operator.
20
Penalty: 60 penalty units.".
124 Removal of things
(1) In section 88Q(1) of the Port Management Act
1995—
(a) after "land" (where first occurring) insert
", that is not leased port of Melbourne land,
and the port of Melbourne operator may
move any thing or cause any thing to be
moved from leased port of Melbourne land,";
25
(b) in paragraph (b), after "Port of Melbourne
Corporation" insert "or port of Melbourne
operator".
30
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(2) In section 88Q(2) of the Port Management Act
1995—
(a) after "land" (where first occurring) insert
", that is not leased port of Melbourne land,
and the port of Melbourne operator may
immediately remove any thing from leased
port of Melbourne land,";
5
(b) in paragraphs (a) and (b), after "Corporation"
insert "or port of Melbourne operator".
10
125 Powers when moving things
In section 88R(2) of the Port Management
Act 1995, after "Corporation" (where twice
occurring) insert "or port of Melbourne operator".
126 Requirement to make enquiries as to owner of thing
15
In section 88S of the Port Management
Act 1995, after "Corporation" (where twice
occurring) insert "or port of Melbourne operator".
127 Disposal of thing
20
(1) In section 88T(1) and (2) of the Port
Management Act 1995, after "Corporation"
(where twice occurring) insert "or port of
Melbourne operator".
(2) In section 88T(4) of the Port Management
Act 1995—
25
(a) after "Corporation" (where first and secondly
occurring) insert "or port of Melbourne
operator";
(b) after "Corporation" (where thirdly occurring)
insert "or port of Melbourne operator (as the
case requires)".
30
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(3) In section 88T(5) of the Port Management
Act 1995—
(a) for "Corporation" (where first occurring)
substitute "Port of Melbourne Corporation
or port of Melbourne operator";
5
(b) after "Corporation" (where secondly
occurring) insert "or port of Melbourne
operator";
(c) after "Corporation" (where thirdly occurring)
insert "or port of Melbourne operator (as the
case requires)".
10
128 Recovery of costs
15
(1) In section 88U(1) of the Port Management
Act 1995, after "Corporation" (where twice
occurring) insert "or port of Melbourne operator".
(2) In section 88U(2) of the Port Management
Act 1995, after "Corporation" insert "or port of
Melbourne operator (as the case requires)".
129 Payment of compensation
20
25
(1) In section 88V(1) of the Port Management
Act 1995, after "Corporation" insert "or port of
Melbourne operator".
(2) In section 88V(3)(b) of the Port Management
Act 1995, after "Corporation" (where twice
occurring) insert "or port of Melbourne operator".
130 Proceeds of disposal where owner not located
In section 88W of the Port Management
Act 1995—
(a) in paragraph (a), after "Corporation" insert
"or port of Melbourne operator";
30
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(b) in paragraph (b), for "into the Consolidated
Fund." substitute—
"—
(i) if the thing was disposed of by the Port
of Melbourne Corporation, into the
Consolidated Fund; and
5
(ii) if the thing was disposed of by the port
of Melbourne operator, to the State.".
131 New Part 5C inserted
10
After Part 5B of the Port Management Act 1995
insert—
"Part 5C—Regulation of activities
in the port of Melbourne
Division 1—Preliminary
15
88X Definitions
In this Part—
allowable purposes means the purposes set
out in section 88ZI(2);
authorised officer means a person appointed
under section 88ZL;
20
information direction means a direction
given under 88ZI(1);
port operator direction means a direction
given under 88Y(1);
25
reportable matter—see section 88ZG.
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Division 2—Port operator directions
88Y Directions to maintain or improve safety
and security
(1) The port of Melbourne operator, for the
purpose of maintaining or improving safety
and security on leased port of Melbourne
land, may give directions that regulate or
prohibit any of the following activities on
that land—
5
10
(a) the driving, stopping and parking of
vehicles;
(b) the movement, handling or storage of
goods;
(c) any activity that may pose a risk to
safety or security on that land.
15
(2) A port operator direction may be of general
application or may be limited in its
application to specified persons or a
specified class of persons.
20
88Z How port operator directions are given
(1) A port operator direction may be given in
any of the following ways—
(a) by notice displayed in the area of the
leased port of Melbourne land where
the direction applies;
25
(b) by notice published on the port of
Melbourne operator's Internet site;
(c) by notice served on the person or
persons to whom the direction applies.
30
(2) A port operator direction given by notice
published on the port of Melbourne
operator's Internet site is of no effect until a
copy of the notice has been published in the
Government Gazette.
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(3) Before a port operator direction is given, not
less than 2 weeks advance notice of the
proposed direction must be given—
(a) to the harbour master engaged for the
port of Melbourne waters; and
5
(b) to the Minister administering the
Dangerous Goods Act 1985 if the
direction relates to dangerous goods to
which that Act applies.
10
(4) Advance notice of a proposed port operator
direction is sufficiently given to the harbour
master engaged for the port of Melbourne
waters or the Minister administering the
Dangerous Goods Act 1985 by being
delivered or sent by post to the office of the
harbour master or that Minister, as
appropriate.
15
(5) Advance notice of a proposed port operator
direction is not required if the direction is
given in an emergency or is necessary to
avert an imminent threat of death or serious
injury to persons or serious damage to
property.
20
88ZA Enforcement of port operator directions
25
(1) A person to whom a port operator direction
applies must comply with the direction
unless compliance would result in the person
contravening a requirement imposed by or
under an Act.
30
(2) The port of Melbourne operator may enforce
compliance with a port operator direction in
any of the following ways—
(a) by removing from the leased port of
Melbourne land any person who is
contravening the direction;
35
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(b) by removing from the leased port of
Melbourne land or moving within that
land any vehicle that is stopped or
parked in contravention of the
direction;
5
(c) by removing from the leased port of
Melbourne land or moving within that
land any goods stored in contravention
of the direction;
10
(d) by carrying out any work in the leased
port of Melbourne land that a person
has failed to carry out in contravention
of the direction or that is reasonably
required to be carried out to remedy a
contravention of the direction.
15
(3) The power to remove or move a vehicle or
goods from or within leased port of
Melbourne land includes the power to place
the vehicle or goods in secure storage
pending return of the vehicle or goods to
their owner.
20
(4) Anything done by or on behalf of the port of
Melbourne operator reasonably and in good
faith to enforce compliance with a port
operator direction as permitted by this
Division does not subject the port of
Melbourne operator or any other person to
any action, liability, claim or demand.
25
88ZB Recovery of costs
30
(1) This section applies if—
(a) a person fails to comply with a port
operator direction; and
(b) as a result, the port of Melbourne
operator incurs costs in enforcing
compliance with the port operator
direction.
35
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(2) The port of Melbourne operator is entitled to
recover from the person the reasonable costs
incurred by it as a debt in a court of
competent jurisdiction.
5
10
(3) A certificate issued by the port of Melbourne
operator certifying as to the reasonable costs
incurred by it in enforcing compliance with a
port operator direction is evidence of the
matters certified.
88ZC Advance notice of proposed work
(1) The port of Melbourne operator is not
authorised to enforce compliance with a port
operator direction by carrying out work that
a person has failed to carry out in
contravention of the direction, or that is
reasonably required to be carried out to
remedy a contravention by a person of the
direction, unless the port of Melbourne
operator has given the person advance notice
of the proposed work.
15
20
(2) Advance notice of proposed work must—
(a) be given no less than 7 days before the
work commences; and
(b) be given in writing; and
25
(c) give details of the alleged contravention
concerned.
(3) Advance notice of proposed work is not
required in an emergency or if the proposed
work is necessary to avert an imminent threat
of death or serious injury to persons or
serious damage to property.
30
(4) In such a case, notice of the work being
undertaken must be given as soon as
reasonably practicable in the circumstances.
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88ZD Power of entry
The port of Melbourne operator may enter
any premises on leased port of Melbourne
land at any time for the purpose of—
5
(a) ascertaining whether a port operator
direction is being complied with or has
been contravened; or
(b) doing anything that the port of
Melbourne operator is authorised to do
to enforce compliance with a port
operator direction.
10
88ZE Functions and powers may be performed
or exercised by authorised officers
(1) The functions and powers of the port of
Melbourne operator under this Division may
be performed or exercised on behalf of the
port of Melbourne operator by an authorised
officer.
15
(2) Accordingly, a reference in this Division to a
port operator direction includes such a
direction given by an authorised officer on
behalf of the port of Melbourne operator.
20
(3) An authorised officer who enters land or
premises under the authority of this Division
may be accompanied by any person believed
by the authorised officer to be capable of
providing assistance in the performance or
exercise of the authorised officer's functions
or powers under this Division.
25
30
(4) An authorised officer may request the
assistance of any police officer if the
authorised officer reasonably believes that
the performance or exercise of the authorised
officer's functions or powers under this
Division will be obstructed or otherwise
interfered with.
35
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88ZF Obstruction of authorised officer
A person must not obstruct or otherwise
interfere with an authorised officer in the
performance of any function, or exercise of
any power, of the authorised officer under
this Division.
5
Penalty: 60 penalty units.
88ZG Monitoring of port operator directions
(1) The port of Melbourne operator must within
3 months after the end of each 6 month
period ending on 30 June or 31 December in
a year (beginning with the year 2015)
provide details to the Minister of such of the
following matters (reportable matters) as
occurred in the period concerned—
10
15
(a) the giving of a port operator direction
by the port of Melbourne operator;
(b) any port operator direction given by the
port of Melbourne operator ceasing to
have effect;
20
(c) any contravention of which the port of
Melbourne operator is aware of a port
operator direction given by the port of
Melbourne operator;
25
(d) any exercise by the port of Melbourne
operator of the power under
section 88ZD to enter premises;
(e) any action taken by the port of
Melbourne operator to enforce
compliance with a port operator
direction (being action authorised to be
taken under this Part).
30
(2) The port of Melbourne operator must also
provide details of reportable matters to the
Minister as and when directed to do so by the
35
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Minister by written notice given to the port
of Melbourne operator.
5
(3) A notice under subsection (2) must allow not
less than 21 days for compliance with the
direction.
10
(4) Information required to be provided by or
under this section must be provided in such
manner and form as the Minister may direct
by written notice given to the port of
Melbourne operator.
88ZH Publication of reports about port operator
directions
(1) The Minister may publish reports and
statements, based on information provided to
the Minister under section 88ZG about
reportable matters, subject to the following
requirements—
15
(a) any such report or statement must not
include information that identifies a
person (or is likely to lead to the
identification of a person) as a person
who has contravened a port operator
direction;
20
(b) the Minister must provide the port of
Melbourne operator with a copy of the
proposed report or statement at least
14 days before it is published.
25
(2) No liability (including liability in
defamation) is incurred for publishing in
good faith a report or statement under this
section or a fair report or summary of such a
report or statement.
30
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Division 3—Information gathering by
port of Melbourne operator
88ZI Power to require information to be
provided
5
(1) The port of Melbourne operator, by written
direction (an information direction), may
require any of the following persons to
provide relevant information to the port of
Melbourne operator—
10
(a) the master of any vessel that berths in
the port of Melbourne;
(b) a shipping agent for goods shipped to,
from or within the port of Melbourne;
(c) a consignor or consignee of goods
shipped to, from or within the port of
Melbourne;
15
(d) an operator of stevedoring or other
facilities on leased port of Melbourne
land.
20
(2) Information is relevant information if it is
information that the port of Melbourne
operator reasonably requires for any of the
following purposes—
(a) monitoring compliance with port
operator directions;
25
(b) determining liability for and the amount
of, and facilitating the collection of,
wharfage fees and channel fees;
(c) compiling statistics that the port of
Melbourne operator is—
30
(i) directed, in writing, by the
Minister to compile; or
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(ii) required to compile by or under an
Act or an agreement with the State
or a public entity;
(d) co-ordinating communication at the
port;
5
(e) any purpose prescribed by the
regulations in connection with the
operation and management of the port
of Melbourne.
10
(3) An information direction must allow a
reasonable period of not less than 14 days for
compliance with the direction unless the
direction is given in response to an
emergency or to avert an imminent threat of
death or serious injury to persons or serious
damage to property (in which case
compliance is required as soon as reasonably
practicable).
15
20
88ZJ Use and disclosure of information
collected
The port of Melbourne operator is authorised
to use and disclose information provided to it
in compliance with an information direction
for any allowable purpose for which it is
authorised to require the information.
25
88ZK Compliance with information direction
(1) A person must not without reasonable excuse
fail to comply with an information direction
given to the person.
30
Penalty: In the case of a natural person,
120 penalty units;
In the case of a body corporate,
600 penalty units.
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(2) A duty of confidentiality is not a reasonable
excuse for failure to comply with an
information direction.
(3) A person must not in purported compliance
with an information direction given to the
person provide information that the person
knows, or ought reasonably to know, is false
or misleading in a material particular.
5
Penalty: In the case of a natural person,
120 penalty units;
10
In the case of a body corporate,
600 penalty units.
(4) The provision of information that would
otherwise constitute a breach of a duty of
confidentiality does not constitute such a
breach if the information is provided in
compliance with an information direction.
15
Division 4—Authorised officers
88ZL Appointment
20
(1) The chief executive officer of the port of
Melbourne operator, by instrument, may
appoint as an authorised officer any officer,
employee or agent of the port of Melbourne
operator who the chief executive officer
considers is suitably qualified or trained to
exercise the powers of an authorised officer
under this Part.
25
(2) An appointment under subsection (1) is for a
term, and subject to the conditions, specified
in the instrument of appointment.
30
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(3) The chief executive officer of the port of
Melbourne operator, by instrument, may
delegate the chief executive's power under
subsection (1) to an officer or employee of
the port of Melbourne operator.
5
88ZM Identity cards
(1) The port of Melbourne operator must cause
to be issued an identity card to an authorised
officer appointed under section 88ZL.
10
(2) An identity card must—
(a) state the authorised officer's name and
their appointment as an authorised
officer; and
(b) include any other matter that is
prescribed.
15
88ZN Return of identity cards
If a person to whom an identity card has
been issued ceases to be an authorised
officer, the person must return the identity
card to the port of Melbourne operator as
soon as practicable.
20
Penalty: 60 penalty units.
88ZO Production of identity card
(1) An authorised officer must produce the
officer's identity card for inspection—
25
(a) before exercising a power under this
Part; or
(b) if asked to do so by any person at any
time during the exercise of a power
under this Part.
30
Penalty: 5 penalty units.
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(2) Subsection (1) does not apply if—
(a) the authorised officer reasonably
believes that the production of the
officer's identity card would affect the
safety or welfare of any person; or
5
(b) the request to produce the identity card
is made by a person to whom the
authorised officer has already produced
that identity card on the same day
before exercising a power under this
Part.
10
(3) Any action taken or thing done by an
authorised officer under this Part is not
invalidated by the officer's failure to produce
the officer's identity card.".
15
132 New section 91BA inserted
After section 91B of the Port Management Act
1995 insert—
"91BA Extended meaning of port manager
20
(1) Without limiting the meaning of port
manager in section 3(1), for the purposes of
this Part, the port of Melbourne operator is
also a port manager who manages,
superintends or controls the operation of a
part of the port of Melbourne when the
operator is—
25
(a) carrying out channel-dredging activities
in port of Melbourne waters; or
(b) establishing or maintaining
navigational aids in connection with
navigation in port of Melbourne waters.
30
(2) To avoid doubt, the activities referred to in
subsection (1)(a) and (b) are part of the
operations of the port of Melbourne.".
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133 Port manager's responsibilities for management
plans
5
(1) In section 91C(2)(a) and (b) of the Port
Management Act 1995, after "port" insert
"or part of the port".
(2) In section 91C(4)(a) of the Port Management
Act 1995, after "port" (where secondly occurring)
insert "or part of the port".
134 Safety and environment management plans
10
(1) In section 91D(1)(f) of the Port Management
Act 1995, after "port" insert "or part of the port".
(2) In section 91D(1)(h) of the Port Management
Act 1995, after "port" (where secondly occurring)
insert "or part of the port".
15
(3) In section 91D(2) of the Port Management Act
1995—
(a) after "a port" insert "or part of a port";
(b) after "the port" (where twice occurring)
insert "or part of the port".
20
(4) In section 91D(3) of the Port Management Act
1995, after "port" insert "or part of a port".
135 Audits of compliance
In section 91E(1) and (2) of the Port
Management Act 1995—
25
(a) after "port" (where first occurring) insert
"or a part of a commercial trading port";
(b) after "port" (where thirdly occurring) insert
"or the part of the port".
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136 Ministerial directions
(1) In section 91H(1) of the Port Management Act
1995, after "the port" insert "or the part of the
port".
5
10
(2) In section 91H(3)(a) and (b) of the Port
Management Act 1995, after "the port" insert
"or the part of the port".
(3) In section 91H(4) and (5) of the Port
Management Act 1995, after "the port"
(where secondly occurring) insert "or the part of
the port".
137 Reporting
15
In section 91HB(1) of the Port Management Act
1995, after "the port" insert "or the part of the
port".
138 Definitions for the purposes of Part 6B
In section 91J of the Port Management Act
1995, in the definition of relevant port authority,
for paragraph (a) substitute—
20
"(a) in the case of the port of Melbourne, the port
of Melbourne operator;".
139 Port Development Strategy
In section 91K(1) of the Port Management Act
1995, for "4 years" substitute "5 years".
25
140 Regulations
(1) After section 98(1) of the Port Management Act
1995 insert—
30
"(1A) In addition, the Governor in Council may
make regulations for or with respect to any
matter required or permitted by this Act to be
prescribed or necessary or convenient to be
prescribed to give effect to this Act.".
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(2) Before section 98(2)(a) of the Port Management
Act 1995 insert—
"(aa) so as to be of general or limited application;
5
(aab) so as to differ according to differences in
time, place or circumstances;".
(3) Section 98(2)(a)(i) of the Port Management Act
1995 is repealed.
Division 3—Amendment of Marine Safety Act 2010
141 Definitions
10
In section 3(1) of the Marine Safety Act 2010—
(a) insert the following definitions—
"Emergency Management Commissioner
has the same meaning as in the
Emergency Management Act 2013;
15
port of Melbourne operator has the same
meaning as in the Port Management
Act 1995;";
(b) in the definition of port management body,
in paragraph (a), after "Corporation" insert
"when it is performing functions and
exercising powers in the port of Melbourne".
20
142 Principle of shared responsibility
25
In section 15(1)(e) of the Marine Safety Act
2010, after "bodies" insert ", the port of
Melbourne operator".
143 New Part 2.2A inserted
After Part 2.2 of the Marine Safety Act 2010
insert—
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"Part 2.2A—Safety duty of port of
Melbourne operator
25 Duty of port of Melbourne operator to
ensure safety of marine safety
infrastructure operations
5
(1) The port of Melbourne operator must, so far
as is reasonably practicable, ensure the safety
of marine safety infrastructure operations
carried out by it or supplied to it in the port
of Melbourne.
10
Penalty: In the case of a natural person,
1800 penalty units;
In the case of a body corporate,
9000 penalty units.
15
(2) Without limiting subsection (1), the port of
Melbourne operator contravenes that
subsection if the port of Melbourne operator
fails to do any of the following—
(a) provide or maintain marine safety
infrastructure that is, so far as is
reasonably practicable, safe;
20
(b) provide or maintain systems of marine
safety work that are, so far as is
reasonably practicable, safe;
25
(c) provide, so far as is reasonably
practicable, such—
(i) information, instruction, training
or supervision to marine safety
workers as is necessary to enable
those workers to perform their
marine safety work in a way that
is safe; and
30
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(ii) information to persons (other than
marine safety workers) at, or in
the immediate area around, a place
where marine safety work is being
performed as is necessary to
enable those persons to ensure
their safety.
5
(3) An offence against subsection (1) is an
indictable offence.".
10
144 New section 200 substituted
For section 200 of the Marine Safety Act 2010
substitute—
"200 Consultation required before making a
determination
15
Before the Safety Director makes a
determination under section 199, the Safety
Director must consult with—
(a) every port management body, local port
manager or waterway manager that the
Director considers will need to comply
with the determination; and
20
(b) the port of Melbourne operator if it will
need to comply with the
determination.".
25
145 Offence to fail to comply with standard determined
under this Part
In section 202 of the Marine Safety Act 2010,
after "body" insert ", the port of Melbourne
operator".
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146 New Part 5.2A inserted
After Part 5.2 of the Marine Safety Act 2010
insert—
"Part 5.2A—Standards for
emergency response capabilities of
towage vessels in port waters
5
202A Definitions
In this Part—
commercial trading port has the same
meaning as in the Port Management
Act 1995;
10
towage service has the meaning given by
section 73A of the Port Management
Act 1995;
15
20
towage vessel has the meaning given by
section 73A of the Port Management
Act 1995.
202B Determination of the standards for
emergency response capabilities of towage
vessels
(1) Subject to this Part, the Safety Director, by
notice published in the Government Gazette,
may determine standards for the emergency
response capability (including fire-fighting
capability) of a towage vessel or a class of
towage vessel required to be provided at a
commercial trading port as part of a towage
service.
25
(2) A determination under subsection (1) must
set out the reasons for the making of a
determination.
30
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202C Consultation required before making a
determination
Before the Safety Director makes a
determination under section 202B, the Safety
Director must consult with—
5
(a) the port management body in relation to
the commercial trading port at which
the towage vessels are to be provided;
and
10
(b) if the towage vessels are to be provided
in the port of Melbourne, the port of
Melbourne operator; and
(c) the harbour master engaged for the
waters of the commercial trading port at
which the towage vessels are to be
provided; and
15
(d) each person who provides towage
services in the commercial trading port
at which the towage vessels are to be
provided; and
20
(e) the Emergency Management
Commissioner; and
(f) if the standard to be determined relates
to the fire-fighting capabilities of a
towage vessel or a class of towage
vessel, the Metropolitan Fire and
Emergency Services Board and the
Country Fire Authority.
25
30
202D Matters that must be considered in
making a determination
In making a determination under
section 202B, the Safety Director must have
regard to—
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(a) the safety risk, or the nature and level
of a safety risk, that the determination
is intended to minimise or eliminate;
and
5
(b) whether there are alternative ways
(legislative or otherwise) to address the
matter to be addressed by the
determination; and
(c) the expected benefits and costs of the
determination on those persons likely to
be affected by the determination, if
made; and
10
(d) the requirements that are necessary for
the safe and efficient operation of the
relevant commercial trading port.".
15
147 Provision or maintenance of navigation aids by
Safety Director
In section 261(1) of the Marine Safety Act
2010—
20
(a) after "port management body," (where first
occurring) insert "the port of Melbourne
operator,";
(b) in paragraphs (a) and (b), after "port
management body," insert "the port of
Melbourne operator, the".
25
148 Recovery of costs
In section 263(a) of the Marine Safety Act 2010,
after "port management body," insert "the port of
Melbourne operator,".
30
149 Acquisition of land
In section 271(1) of the Marine Safety Act 2010,
after "port management body," insert "the port of
Melbourne operator,".
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Division 4—Amendment of Marine (Drug, Alcohol
and Pollution Control) Act 1988
150 Definitions
5
10
In section 3(1) of the Marine (Drug, Alcohol and
Pollution Control) Act 1988, in the definition of
port management body, in paragraph (a), after
"Corporation" insert "when it is performing
functions and exercising powers in the port of
Melbourne".
Division 5—Amendment of Essential Services
Commission Act 2001
151 Definitions
In section 3 of the Essential Services
Commission Act 2001—
15
(a) in the definition of empowering
instrument—
(i) in paragraph (e), for "1994;" substitute
"1994; or";
(ii) after paragraph (e) insert—
20
"(f) a port Pricing Order;";
(b) insert the following definitions—
"Commission port Pricing Order decision
means a decision of the Commission
made under a provision of a port
Pricing Order that is prescribed;
25
port Pricing Order means an Order made
under section 49A of the Port
Management Act 1995;".
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152 Order declaring a regulated industry
After section 4(8) of the Essential Services
Commission Act 2001 insert—
5
"(9) While a port Pricing Order is in effect, this
section does not apply to—
(a) the ports industry in the port of
Melbourne within the meaning of the
Port Management Act 1995; or
(b) the Port Management Act 1995 in
respect of the port of Melbourne.".
10
153 Right of appeal
(1) In section 55(1) of the Essential Services
Commission Act 2001—
(a) in paragraph (c), for "Commission—"
substitute "Commission; or";
15
(b) after paragraph (c) insert—
"(d) a decision of the Commission contained
in a final published report (as defined in
section 45 of the Port Management
Act 1995) that a provider of prescribed
services (as defined in that section) has
not complied with a port Pricing Order
in a significant and sustained manner;
or
20
25
30
(e) a Commission port Pricing Order
decision—".
(2) In section 55(1A) of the Essential Services
Commission Act 2001, after "subsection (1)"
insert "as it applies to an appeal against a
requirement, decision or determination
contemplated by subsection (1)(a), (b) or (c)".
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(3) In section 55(2) of the Essential Services
Commission Act 2001—
(a) in paragraph (c)(ii), for "respect." substitute
"respect;";
5
(b) after paragraph (c) insert—
"(d) under subsection (1)(d) is that the
decision—
(i) was not made in accordance with
the law; or
10
(ii) is unreasonable having regard to
all the relevant circumstances;
(e) under subsection (1)(e) is that the
decision—
(i) was not made in accordance with
the law; or
15
(ii) is unreasonable having regard to
all the relevant circumstances.".
(4) In section 55(3) of the Essential Services
Commission Act 2001—
20
(a) in paragraph (b), for "published." substitute
"published; or";
(b) after paragraph (b) insert—
"(c) in the case of an appeal under
subsection (1)(d), within 21 working
days after the final report in which the
decision is contained is laid before each
House of the Parliament or a copy is
made available for public inspection
under section 45; or
25
30
(d) in the case of an appeal under
subsection (1)(e), within 14 working
days after the Commission port Pricing
Order decision is made.".
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(5) After section 55(6) of the Essential Services
Commission Act 2001 insert—
5
"(7) If a person lodges an appeal under
subsection (1)(d), the decision of the
Commission contained in a final published
report (as defined in section 45 of the Port
Management Act 1995) continues in effect
until the appeal is determined.
(8) If a person lodges an appeal under
subsection (1)(e), the Commission port
Pricing Order decision continues in effect
until the appeal is determined.".
10
154 Appeal panel
15
(1) In section 56(4)(b) of the Essential Services
Commission Act 2001, after "55(1)(c)," insert
"55(1)(d) or 55(1)(e),".
(2) In section 56(7) of the Essential Services
Commission Act 2001—
(a) in paragraph (d)(iii), for "panel." substitute
"panel; and";
20
(b) after paragraph (d) insert—
"(e) in the case of an appeal under
section 55(1)(d), may in granting the
appeal—
25
(i) affirm the decision of the
Commission; or
(ii) vary the decision of the
Commission; or
(iii) set aside the decision of the
Commission and remit it to the
Commission for amendment of
the decision and the final report
which contains the decision in
accordance with the decision and
30
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recommendations (if any) of the
appeal panel; and
(f) in the case of an appeal under
section 55(1)(e), may in granting the
appeal—
5
(i) affirm the Commission port
Pricing Order decision; or
(ii) vary the Commission port Pricing
Order decision; or
10
(iii) set aside the Commission port
Pricing Order decision and remit it
to the Commission for amendment
of the decision in accordance with
the decision and recommendations
(if any) of the appeal panel.".
15
(3) In section 56(11) of the Essential Services
Commission Act 2001, for "or 55(1)(b)"
substitute ", 55(1)(b), 55(1)(d) or 55(1)(e)".
Division 6—Amendment of Land Act 1958
20
155 Definitions for the purposes of Part XII
In section 384(1) of the Land Act 1958 insert the
following definition—
25
"port of Melbourne operator has the same
meaning as in the Port Management Act
1995;".
156 Crown property in beds and banks of certain
watercourses
In section 385(2) of the Land Act 1958—
(a) in paragraph (f), after "Authority;" insert
"or";
30
(b) after paragraph (f) insert—
"(g) the port of Melbourne operator;".
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Part 8—Transaction-related amendments
Division 7—Repeal of amending Part
157 Repeal of amending Part
This Part is repealed on the first anniversary of
the first day on which all of its provisions are in
operation.
5
Note
The repeal of this Part does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
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Part 9—Port of Melbourne Corporation name change amendments
Part 9—Port of Melbourne Corporation
name change amendments
Division 1—Amendment of Transport Integration
Act 2010
5
158 Definitions
(1) Insert the following definition in section 3 of the
Transport Integration Act 2010—
10
"Victorian Ports Corporation (Melbourne) means
the body corporate continued under
section 141B;".
(2) In section 3 of the Transport Integration Act
2010—
(a) the definition of Port of Melbourne
Corporation is repealed;
15
(b) in the definition of transport body, for
paragraph (p) substitute—
"(p) the Victorian Ports Corporation
(Melbourne);";
(c) in the definition of Transport Corporation,
for paragraph (d) substitute—
20
"(d) the Victorian Ports Corporation
(Melbourne); or".
159 Division heading substituted
25
For the heading to Division 3A of Part 6 of the
Transport Integration Act 2010 substitute—
"Division 3A—Victorian Ports
Corporation (Melbourne)".
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Part 9—Port of Melbourne Corporation name change amendments
160 Port of Melbourne Corporation name change to
Victorian Ports Corporation (Melbourne)
(1) For the heading to section 141B of the Transport
Integration Act 2010 substitute—
5
"Victorian Ports Corporation (Melbourne)".
(2) After section 141B(2) of the Transport
Integration Act 2010 insert—
10
15
"(3) The Victorian Ports Corporation
(Melbourne) is the same body as the Port of
Melbourne Corporation, despite the change
to its name by Part 9 of the Delivering
Victorian Infrastructure (Port of
Melbourne Lease Transaction) Act 2015
and no act, matter or thing is to be affected
because of that change of name.
(4) On and after the commencement of
section 160 of the Delivering Victorian
Infrastructure (Port of Melbourne Lease
Transaction) Act 2015, any reference in any
Act (other than this Act), regulation,
instrument or other document whatsoever to
the Port of Melbourne Corporation is to be
construed as a reference to the Victorian
Ports Corporation (Melbourne) unless the
contrary intention appears.".
20
25
Division 2—Consequential amendments
161 Reference to Port of Melbourne Corporation
30
In section 3, in the definition of Port Corporation,
for "Port of Melbourne Corporation" substitute
"Victorian Ports Corporation (Melbourne)".
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Part 9—Port of Melbourne Corporation name change amendments
162 Consequential amendments
On the coming into operation of an item in
Schedule 1, the Act specified in the heading to
that item is amended as set out in the item.
5
Division 3—Repeal of amending Part and
Schedule 1
163 Repeal of amending Part and Schedule 1
This Part and Schedule 1 are repealed on the first
anniversary of the first day on which all of the
provisions of this Part are in operation.
10
Note
15
The repeal of this Part and Schedule 1 does not affect the
continuing operation of the amendments made by this Part and that
Schedule (see section 15(1) of the Interpretation of Legislation
Act 1984).
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Schedule 1—Consequential amendments
Schedule 1—Consequential amendments
Section 162
1 Borrowing and Investment Powers Act 1987
5
1.1 In item 7A of Schedule 1, for "Port of Melbourne
Corporation" substitute "Victorian Ports
Corporation (Melbourne)".
2 Docklands Act 1991
2.1 In section 28(2), for "Port of Melbourne
Corporation" substitute "Victorian Ports
Corporation (Melbourne)".
10
2.2 In section 32(1)(a), for "Port of Melbourne
Corporation" substitute "Victorian Ports
Corporation (Melbourne)".
3 Land Act 1958
15
3.1 In section 385(2)(e), for "Port of Melbourne
Corporation" substitute "Victorian Ports
Corporation (Melbourne)".
4 Marine Safety Act 2010
4.1 In section 3(1)—
(a) insert the following definition—
20
"Victorian Ports Corporation (Melbourne)
has the same meaning as in the
Transport Integration Act 2010;";
(b) in paragraph (a) of the definition of port
management body, for "Port of Melbourne
Corporation" substitute "Victorian Ports
Corporation (Melbourne)";
25
(c) the definition of Port of Melbourne
Corporation is repealed.
30
4.2 In section 220(1), for "Port of Melbourne
Corporation" substitute "Victorian Ports
Corporation (Melbourne)".
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Schedule 1—Consequential amendments
4.3 In section 229(1), for "Port of Melbourne
Corporation" substitute "Victorian Ports
Corporation (Melbourne)".
5
5 Marine (Drug, Alcohol and Pollution Control) Act
1988
5.1 In section 3(1)—
(a) insert the following definition—
"Victorian Ports Corporation (Melbourne)
has the same meaning as in the
Transport Integration Act 2010;";
10
(b) in paragraph (a) of the definition of port
management body, for "Port of Melbourne
Corporation" substitute "Victorian Ports
Corporation (Melbourne)";
15
(c) the definition of Port of Melbourne
Corporation is repealed.
6 Metropolitan Fire Brigades Act 1958
20
6.1 In section 32B(5), for "Port of Melbourne
Corporation" substitute "Victorian Ports
Corporation (Melbourne)".
7 Port Management Act 1995
7.1 In section 3(1)—
(a) insert the following definition—
"Victorian Ports Corporation (Melbourne)
has the same meaning as in the
Transport Integration Act 2010;";
25
(b) in paragraph (a) of the definition of channel
operator, for "Port of Melbourne
Corporation" substitute "Victorian Ports
Corporation (Melbourne)";
30
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Schedule 1—Consequential amendments
(c) in the definition of port corporation, for
"Port of Melbourne Corporation" substitute
"the Victorian Ports Corporation
(Melbourne)";
5
(d) the definition of Port of Melbourne
Corporation is repealed.
7.2 In section 4(2)(b), for "Port of Melbourne
Corporation" substitute "Victorian Ports
Corporation (Melbourne)".
10
15
7.3 In section 7, for "Port of Melbourne Corporation"
(where twice occurring) substitute "Victorian
Ports Corporation (Melbourne)".
7.4 In section 49(2)(b), for "Port of Melbourne
Corporation" substitute "Victorian Ports
Corporation (Melbourne)".
7.5 In section 63B(a), for "Port of Melbourne
Corporation" substitute "Victorian Ports
Corporation (Melbourne)".
20
7.6 In sections 64(4)(c) and 65(b), for "Port of
Melbourne Corporation" substitute "Victorian
Ports Corporation (Melbourne)".
7.7 In the heading to section 66, for "Port of
Melbourne Corporation" substitute
"Victorian Ports Corporation (Melbourne)".
25
30
7.8 In section 66, for "Port of Melbourne
Corporation" (where four times occurring)
substitute "Victorian Ports Corporation
(Melbourne)".
7.9 In section 73B, for "Port of Melbourne
Corporation" (where twice occurring) substitute
"Victorian Ports Corporation (Melbourne)".
7.10 In sections 73C(1), 73C(1A), 73D(1) and 73E(2),
for "Port of Melbourne Corporation" substitute
"Victorian Ports Corporation (Melbourne)".
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Schedule 1—Consequential amendments
7.11 In section 73F, for "Port of Melbourne
Corporation" (where three times occurring)
substitute "Victorian Ports Corporation
(Melbourne)".
5
10
7.12 In section 73G, for "Port of Melbourne
Corporation" substitute "Victorian Ports
Corporation (Melbourne)".
7.13 In sections 73H, 73I, 73J and 73K, for "Port of
Melbourne Corporation" (where twice occurring)
substitute "Victorian Ports Corporation
(Melbourne)".
7.14 In section 73L, for "Port of Melbourne
Corporation" substitute "Victorian Ports
Corporation (Melbourne)".
15
20
7.15 In section 73N, for "Port of Melbourne
Corporation" (where twice occurring) substitute
"Victorian Ports Corporation (Melbourne)".
7.16 In sections 73O and 73P, for "Port of Melbourne
Corporation" substitute "Victorian Ports
Corporation (Melbourne)".
7.17 In section 74AA, in the definition of designated
State port entity, for "Port of Melbourne
Corporation" (where twice occurring) substitute
"Victorian Ports Corporation (Melbourne)".
25
30
7.18 In section 74AB(a) and (c), for "Port of
Melbourne Corporation" substitute "Victorian
Ports Corporation (Melbourne)".
7.19 In the note at the foot of section 74AB, for
"Port of Melbourne Corporation" substitute
"Victorian Ports Corporation (Melbourne)".
7.20 In the note at the foot of section 75(1)(b), for
"Port of Melbourne Corporation" substitute
"Victorian Ports Corporation (Melbourne)".
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Schedule 1—Consequential amendments
7.21 In section 75(3A), for "Port of Melbourne
Corporation" substitute "Victorian Ports
Corporation (Melbourne)".
5
10
7.22 In the note at the foot of section 75(3A), for
"Port of Melbourne Corporation" substitute
"Victorian Ports Corporation (Melbourne)".
7.23 In section 83, in paragraph (a) of the definition of
recommending authority, for "Port of Melbourne
Corporation" (where twice occurring) substitute
"Victorian Ports Corporation (Melbourne)".
7.24 In section 84(1), for "Port of Melbourne
Corporation" substitute "Victorian Ports
Corporation (Melbourne)".
15
7.25 In the heading to section 88J, for "Port of
Melbourne Corporation" substitute
"Victorian Ports Corporation (Melbourne)".
7.26 In section 88J, for "Port of Melbourne
Corporation" substitute "Victorian Ports
Corporation (Melbourne)".
20
25
7.27 In the heading to section 88K, for "Port of
Melbourne Corporation" substitute
"Victorian Ports Corporation (Melbourne)".
7.28 In section 88K, for "Port of Melbourne
Corporation" (where twice occurring) substitute
"Victorian Ports Corporation (Melbourne)".
7.29 In section 88M, for "Port of Melbourne
Corporation" (where twice occurring) substitute
"Victorian Ports Corporation (Melbourne)".
30
35
7.30 In section 88P, for "Port of Melbourne
Corporation" substitute "Victorian Ports
Corporation (Melbourne)".
7.31 In section 88Q, for "Port of Melbourne
Corporation" (where four times occurring)
substitute "Victorian Ports Corporation
(Melbourne)".
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Schedule 1—Consequential amendments
7.32 In sections 88R(2) and 88S, for "Port of
Melbourne Corporation" substitute
"Victorian Ports Corporation (Melbourne)".
5
10
7.33 In section 88T, for "Port of Melbourne
Corporation" (wherever occurring) substitute
"Victorian Ports Corporation (Melbourne)".
7.34 In sections 88U(1), 88V(1), 88W(a)
and 88W(b)(i), for "Port of Melbourne
Corporation" substitute "Victorian Ports
Corporation (Melbourne)".
7.35 In section 97, for "Port of Melbourne
Corporation" substitute "Victorian Ports
Corporation (Melbourne)".
8 Transport Integration Act 2010
15
20
8.1 In the heading to section 141C, for "Port of
Melbourne Corporation" substitute
"Victorian Ports Corporation (Melbourne)".
8.2 In section 141C, for "Port of Melbourne
Corporation" substitute "Victorian Ports
Corporation (Melbourne)".
8.3 In the heading to section 141D, for "Port of
Melbourne Corporation" substitute
"Victorian Ports Corporation (Melbourne)".
25
8.4 In section 141D(1), for "Port of Melbourne
Corporation" (where twice occurring) substitute
"Victorian Ports Corporation (Melbourne)".
8.5 In the heading to section 141E, for "Port of
Melbourne Corporation" substitute
"Victorian Ports Corporation (Melbourne)".
30
8.6 In section 141E, for "Port of Melbourne
Corporation" (wherever occurring) substitute
"Victorian Ports Corporation (Melbourne)".
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Schedule 1—Consequential amendments
8.7 In the heading to section 141EA, for "Port of
Melbourne Corporation" substitute
"Victorian Ports Corporation (Melbourne)".
5
8.8 In section 141EA, for "Port of Melbourne
Corporation" substitute "Victorian Ports
Corporation".
8.9 In the heading to section 141F, for "Port of
Melbourne Corporation" substitute
"Victorian Ports Corporation (Melbourne)".
10
15
8.10 In section 141F, for "Port of Melbourne
Corporation" substitute "Victorian Ports
Corporation (Melbourne)".
8.11 In the heading to section 141G, for "Port of
Melbourne Corporation" substitute
"Victorian Ports Corporation (Melbourne)".
8.12 In section 141G, for "Port of Melbourne
Corporation" (where twice occurring) substitute
"Victorian Ports Corporation (Melbourne)".
20
25
8.13 In section 141H, for "Port of Melbourne
Corporation" (where five times occurring)
substitute "Victorian Ports Corporation
(Melbourne)".
8.14 In section 158(6), for "Port of Melbourne
Corporation" substitute "Victorian Ports
Corporation (Melbourne)".
8.15 In section 159(2), for "Port of Melbourne
Corporation" substitute "Victorian Ports
Corporation (Melbourne)".
30
35
8.16 In section 160(3), for "Port of Melbourne
Corporation" substitute "Victorian Ports
Corporation (Melbourne)".
8.17 In sections 164(2), 165(13), 166(2), 167(3)
and 169(3), for "Port of Melbourne Corporation"
substitute "Victorian Ports Corporation
(Melbourne)".
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Schedule 1—Consequential amendments
9 Transport (Compliance and Miscellaneous) Act
1983
5
9.1 In section 230L(1)(b), for "Port of Melbourne
Corporation" substitute "Victorian Ports
Corporation (Melbourne)".
10 Treasury Corporation of Victoria Act 1992
10
10.1 In section 36A, in the definition of public
authority, for "Port of Melbourne Corporation"
substitute "Victorian Ports Corporation
(Melbourne)".
10.2 In Schedule 1, for "Port of Melbourne
Corporation" substitute "Victorian Ports
Corporation (Melbourne)".
═══════════════
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Endnotes
Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current
authorised versions of legislation and up-to-date legislative information.
By Authority. Government Printer for the State of Victoria.
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