Decision relating to a request for
the making of a waterway rule
Waterway:
Port waters of the Port Of Melbourne
Port Management Body: Port of Melbourne Corporation
Waterway rule decision: 157-2013-WR
Decision made by:
Peter Corcoran
Director Maritime Safety
Delegate of the Director, Transport Safety
Date of decision:
18 November 2014
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for a particular purpose. This document should not be relied upon as a substitute for the relevant legislation, legal
or professional advice.
Published by Transport Safety Victoria
Level 15, 121 Exhibition Street
Melbourne, Victoria 3000
Telephone: 1800 223 022
© Copyright State Government of Victoria 2014.
This publication is copyright. No part may be reproduced by any process except in accordance with the
provisions of the Copyright Act 1968.
Authorised by the Victorian Government, Melbourne
1.
The Port Management Body and the Waterway
1.1
The appointed port management body for the port waters of the Port of
Melbourne
The Port of Melbourne Corporation is the appointed port management body for the port
waters of the Port of Melbourne effective from 1 July 2003.
The Port of Melbourne Corporation is a public entity established under the Transport
Integration Act 2010 (Vic).
1.2
The Nature of the Waterway
The port waters of the Port of Melbourne cover the majority of Port Phillip Bay and extend to
the Bolte Bridge on the Yarra River, and Shepard Bridge on the Maribyrnong River.
Prior to 2007 Parks Victoria and the Port of Melbourne Corporation had overlapping
responsibilities for vessel operations on the waters of Port Phillip Bay.
Parks Victoria is the waterway manager for the Local Port of Port Phillip and has had
waterway management responsibilities since 1988.
1.3
History of the waterway rules
The Transit Only Zone (TOZ) was first established in 20041 and was later amended in 20062.
It was declared under Section 15 of the former Marine Act 1988 (Vic).
The purpose of the TOZ was to create a degree of separation between commercial vessels
approaching and departing the port and recreational vessels operating in the local vicinity
and to reduce the possibility of close quarters situations and/or collisions.
The TOZ protects the approaches to the Port Melbourne Channel and provides commercial
shipping more navigable water in which to manoeuvre.
The TOZ allows vessel operators to use the area but requires that all vessels only transit the
zone, not anchor in the zone and not drift in the zone.
The TOZ currently commences at Latitude 38°00.00’ and extends to Williamstown, Latitude
37°51.95’ and encompasses the Port Melbourne Channel.
The current transit zone rules are published in Schedule 1 of the Vessel Operating and
Zoning Rules.
Schedule 1 of the Vessel Operating and Zoning Rules covers waters under the management
of Parks Victoria as the local port and waterway manager for the Local Port of Port Phillip.
The rules relating to the TOZ have been in Schedule 1 prior to the separation of functions
between the Port of Melbourne Corporation and Parks Victoria.
2.
1
Application to make waterway rules
Victoria Government Gazette No. G 49 (2 December 2004), page 3243.
2
Victoria Government Gazette No. S 12 (9 January 2006), No. S 187 (28 July 2006), No. S 225 (31 August 2006) and S 239 (8
September 2006).
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On 6 November 2013 the Port of Melbourne Corporation submitted a Notice of Intention to
Request a Waterway Rule3 (Notice) to the Director, Transport Safety (Safety Director).
In the Notice, the Port of Melbourne Corporation requested that the Safety Director amend
the boundaries of waters referred to as the TOZ. The existing rules covering the operations
of vessels within the TOZ are unchanged.
3.
Marine Safety Act requirements for waterway rule making
The Marine Safety Act 2010 (Vic) (MSA) details the process that must be followed when a
port management body, local port manager or waterway manager proposes to introduce or
amend waterway rules.
Section 193 of the MSA details the process and considerations for assessment of a Notice of
Intention to Request a Waterway Rule.
The process to be followed in relation to requests for the making of a waterway rule is set
out in section 193 of the MSA:
Initial consideration and advice by Safety Director in relation to certain requests
(1)
(2)
(3)
(4)
(5)
3
Before making a request for the making of a rule under section 194, a port
management body, local port manager or waterway manager must notify the
Safety Director of the body's or manager's intention to make the request.
A notification under subsection (1)—
(a)
must be in writing; and
(b)
must contain the following information—
(i)
the name and address of the body or manager; and
(ii)
a description of the rule that the body or manager proposes be
made; and
(iii)
a statement of the nature and scope of the matter that is
proposed to be addressed and an explanation of how the
proposed rule would address the matter; and
(c)
may be accompanied by a draft of the proposed rule.
On receiving a notification under subsection (1), the Safety Director must—
(a)
consider whether the rule that is proposed to be requested—
(i)
appears to be within the powers conferred on the Safety
Director to make the rule; and
(ii)
is of a material nature or a non-material nature; and
(b)
within 2 weeks after receiving a notification under subsection (1)—
(i)
advise, in writing, the port management body, local port
manager or waterway manager of the matters under
subsection (5), (6) or (7), as the case requires; and
(ii)
publish notice of the advice in the Government Gazette.
An advice under this section must set out the reasons of the Safety Director
as to the matters under subsection (5), (6) or (7), as the case requires.
If the Safety Director is of the view that the rule that is proposed to be
requested appears to be within the powers conferred on the Safety Director to
make the rule and is of a material nature, the Safety Director must advise the
port management body, local port manager or waterway manager—
(a)
of that view; and
(b)
that it must comply with section 196 before making a request for the
making of the rule under section
Sections 193 (1) and (2), Marine Safety Act 2010 (Vic) refer.
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(6)
(7)
If the Safety Director is of the view that the rule that is proposed to be
requested appears to be within the powers conferred on the Safety Director to
make the rule and is of a non-material nature, the Safety Director must advise
the port management body, local port manager or waterway manager—
(a)
of that view; and
(b)
that it is not required to comply with section 196 before making a
request for the making of the rule under section 194.
If the Safety Director is of the view that the rule that is proposed to be
requested does not appear to be within the powers conferred on the Safety
Director to make the rule, the Safety Director must advise the port
management body, local port manager or waterway manager of that view.
Section 188 of the Marine Safety Act 2010 requires that reasons must be given for making or
not making a rule:
(1)
The Safety Director must publish his or her decision whether to make a rule
under section 184 on the Safety Director's Internet site.
(2)
A decision that is published under subsection (1) must contain a statement of
the reasons of the Safety Director for making or not making the rule,
including—
(a)
a description of the matter that was addressed by the request or
proposal for the making of the rule; and
(b)
the Safety Director's conclusions after having regard to the mandatory
considerations.
Section 187(1) of the Marine Safety Act 2010 requires that when making a rule:
the Safety Director must have regard to—
(a)
the mandatory considerations; and
(b)
if the rule is being made following a request from a port management body,
local port manager or waterway manager, the summary of submissions or
comments received by that body or manager under section 194; and
Mandatory Considerations are defined in section 183 Definitions of the Marine Safety Act
2010. In relation to a proposed waterway rule, mandatory considerations means—
(a)
(b)
(c)
the safety risk, or the nature and level of a safety risk, that the proposed rule
is intended to minimise or eliminate;
whether there are alternative ways (legislative or otherwise) to address the
matter being or to be addressed by the proposed rule;
the expected benefits and costs of the proposed rule on those persons likely
to be affected by the proposed rule, if made;
Section 196 of the Marine Safety Act 2010 requires a waterway manager to consult before
requesting rule:
(1)
(2)
(3)
Subject to this Part, before requesting the making of a rule under this Part, a
port management body, local port manager or waterway manager must invite
submissions and comments in relation to the proposed request from the
public in accordance with this section.
The port management body, local port manager or waterway manager must—
(a)
publish notice of the proposal to request the making of a rule—
(i)
in a newspaper circulating generally throughout the State; and
(ii)
on the body's or manager's Internet site; and
(b)
make copies of the proposal available to the public on the body's or
manager's Internet site and at the body's or manager's offices or
principal place of business during business hours free of charge.
A notice under subsection (2)(a) must—
(a)
include a summary of the proposal; and
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(b)
(4)
(5)
specify the date by when a submission or comment must be made to
the port management body, local port manager or waterway manager;
and
(c)
specify how a submission or comment must be made; and
(d)
specify that copies of the proposal are available on the body's or
manager's Internet site and at the body's or manager's offices or
principal place of business during business hours free of charge.
The period of time between publication of the notice and the date specified in
the notice must not be less than 4 weeks.
The port management body, local port manager or waterway manager must,
in formulating its request for the making of a rule, take into account every
submission or comment it receives by the date specified in the notice under
subsection (2)(a).
Section 194 of the Marine Safety Act 2010 – Requests for waterway rules
(3)
A request for the making of a rule—
(a)
must be in writing; and
(b)
must contain the following information—
(i)
the name and address of the body or manager making the
request; and
(ii)
a description of the rule that the body or manager proposes be
made; and
(iii)
a statement of the nature and scope of the matter that is
proposed to be addressed and an explanation of how the
proposed rule would address the matter; and
(iv)
an explanation of how the proposed rule addresses the
mandatory considerations; and
(v)
in the case where a port management body, local port
manager or waterway manager has been advised of the
matters under section 193(5)—
(A)
a list of submissions and comments received under
section 196; and
(B)
a summary of the matters raised in the submissions
and comments received under section 196; and
(C)
how the port management body, local port manager or
waterway manager has taken into account the
submissions and comments that address the
mandatory considerations; and
(c)
must be accompanied by a draft of the proposed rule.
Safety Director’s determination of whether the proposed rule
is within power or of a material nature
4.
After assessing4 the Notice, I, Peter Corcoran, Director, Director Maritime Safety, as a
delegate of the Safety Director, determined that the proposed rules were:

within the powers of the Safety Director to make a rule, and

were not of a material nature.
Given the determination that the request was within the powers of the Safety Director, and
was non material in nature, the Port of Melbourne Corporation was not required to undertake
public consultation.5
4
Required under s193 (3) MSA.
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Waterway manager’s public consultation
5.
Although not required to undertake formal consultation the Port of Melbourne Corporation
undertook consultation with the following organisations prior to submitting the Notice:






6.
Port Phillip Sea Pilots
Toll Shipping
Sea Road Shipping
T T- Line Company
Victorian Recreational Fishing
Transport Safety Victoria
Request to make waterway rules from the waterway manager
The Request for Making a Waterway Rule (Request) was received by Transport Safety
Victoria (TSV) on 8 January 2014. A copy of the Request is provided in Appendix 1.
In making its request for waterway rules the Port of Melbourne Corporation was required to:


provide a description of the proposed rule, and
address the mandatory considerations contained in s183 of the MSA
Port of Melbourne Corporation submitted the Request in writing, with the required
information including a draft of the proposed waterway rule as required.
6.1
Description of proposed waterway rule
Port of Melbourne Corporation submitted a proposal to amend the rules that defines the
boundaries of the TOZ. This proposal involves changes to the boundary to extend the
western boundary and delineation of the TOZ commencing southward from Beacon T2
further westward by approximately 260 metres. The effect of the changed delineation
extends the western limits of the TOZ up to Beacon T16 so as to make it parallel to the
southern part of the Port Melbourne Channel.
6.2
Mandatory considerations6
6.2.1
Safety risk the proposed rule is intended to minimise or eliminate
PoMC identified the following safety risks and issues that the proposed waterway rules seek
to address:

minimising the risk of an interaction between a large commercial vessel and smaller
recreational vessels. The waters in the vicinity of the TOZ are increasingly frequented
by recreational fishing vessels, sailing craft and motorised vessels.

reducing the risk of swamping or collision between small vessels and large
commercial vessels.

reducing the risk of a fatality on small vessels by prohibiting anchoring or drifting by
all vessels in the TOZ.

the changed alignment to the western boundary of the TOZ means the TOZ will run
parallel to the southern part of the Port Melbourne Channel and hence allow larger
5
Section 196, MSA.
6
MSA s187 (1) (a)
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vessels with a deeper draught to position and centre the vessel for transiting the Port
Melbourne Channel.
The Port of Melbourne Corporation believes that the risk of close quarter’s situations
between a large commercial vessel and recreational vessels was highly and effectively
mitigated through the establishment of the current transit only zone.
Commercial vessels using the deepened channels in Port Phillip Bay are draught
constrained and have limited means of avoiding recreational craft in their passage. However,
recent experience indicates that the increased level of recreational vessels operating in the
area has decreased the effectiveness of the TOZ in mitigating the risk of close quarter
incidents and unsafe interactions between commercial and recreational vessels.
6.2.2
Alternatives
Port of Melbourne Corporation considers that there are no alternatives and has indicated
that not making the rule which amends the TOZ western boundary would preclude the ability
to have separation between recreational vessels and large commercial vessels.
6.2.3
Benefits and costs
Port of Melbourne Corporation in the Request nominated the following benefits of introducing
the new waterway rules which amends the boundary of the TOZ:

The reduction in the risk of a close quarters situation between small recreational
vessels and large commercial vessels thereby enhancing the safety of all vessel
movements within the transit only zone.
The costs identified by Port of Melbourne Corporation are related to:


7.
the installation of navigational aids, and
that the amended transit zone area will reduce the area available for recreational
boating activity but considers that the changes are a minor amendment and the cost
to recreational boaters, through a reduction in operational area is negligible.
Compliance with Marine Safety Act waterway rule making
process
Port of Melbourne Corporation has complied with the requirements of the MSA.
8.
The Safety Director's conclusions in making a decision
whether to make or not make a waterway rule.
In making a decision as a result of a request to make a waterway rule the Safety Director
must have regard to the mandatory considerations as detailed in section 183 of the MSA.
8.1
Mandatory considerations
8.1.1
Safety risk the proposed rule is intended to minimise or eliminate
Port of Melbourne Corporation has identified the safety issues associated with interaction
between recreational vessels and commercial vessels whether it be close quarters
situations, collisions or swamping.
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Large commercial vessels are limited in their ability to deviate course on waters within
channels and this can lead to potential unsafe interactions between recreational and
commercial vessels.
The TOZ since its initial introduction has proved to be effective in addressing the safety
issues presented by commercial and recreational vessels using the same area of water.
After considering the safety issues I (Director, Transport Safety) am of the view that the new
waterway rules proposed by Port of Melbourne Corporation address the safety issues by
creating waterway rules which potentially minimise any unsafe interaction between
recreational vessels and large commercial vessels.
8.1.2
Alternative ways to address risks and safety issues
Port of Melbourne Corporation in its Request believes that the TOZ is the most effective way
of regulating unsafe vessel interactions.
After considering the risks and safety issues that have been raised, and the views of the Port
of Melbourne Corporation, I (Director, Transport Safety) am of the view that there exist few
effective alternative ways of ensuring that waterway safety can be maintained.
Alternative such as prohibiting all vessels other than commercial vessels form operating in
the TOZ cannot be supported given the effective nature of the current rules and the impacts
on recreational vessel activities.
Having no specific rules designed to meet particular local conditions is considered
inappropriate as the acknowledged safety issues related to unsafe vessel interaction cannot
be addressed.
The transit zone has been in place since 2006 and has proved to be highly effective. The
proposed waterway rule, in this instance, is the most appropriate response to the risks and
safety issues identified.
After considering the alternatives I (Director, Transport Safety) am of the view that the new
waterway rules proposed by Port of Melbourne Corporation are the only appropriate rules
that address the safety issues and risks.
8.1.3
Benefits and costs
Port of Melbourne Corporation has identified that the amended TOZ area will reduce some
boating activity but believes that the changes are a minor amendment.
In considering the impact of the proposed rule, to recreational vessels, the benefits of the
defined TOZ mitigate the risk of an interaction between large commercial vessels and
recreational vessels.
Additional costs identified by Port of Melbourne Corporation are related to the installation of
navigational aids marking the TOZ.
The benefits of the revised transit zone are that it will make easier the safe transit of large
commercial and passenger vessels to berths in the Yarra River and Station Pier.
After considering the benefits and costs I (Director, Transport Safety) am of the view that the
benefits of the new waterway rules proposed by Port of Melbourne Corporation far out way
any costs.
MSA Part 6.4 Functions and Powers of Harbour Master enables a Harbour Master to make
rules to control and direct vessels entering and leaving the waters for which he or she has
been engaged, including the time and manner of doing so.
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The transit zone already exists as a Harbour Masters Direction and was detailed in a Notice
to Mariners (No 128-2013, 15 October 2013).
The replication of the Harbour Masters Direction in waterway rules made under the MSA
provides for consistency regarding the particular rules covering vessel operations on the port
waters of the Port of Melbourne.
The new TOZ rules will be published in a separate schedule of waterway rules covering the
port waters of the Port of Melbourne. This will provide for consistency regarding the
particular rules covering vessel operations on the port waters of the Port of Melbourne and
assist in clarifying the specific management responsibilities.
Safety Director’s Decision
9.
I, Peter Corcoran, Director Maritime Safety, delegate of the Director, Transport Safety,
hereby advise7 that, after having regard to:

the mandatory considerations, and

having taken into account the Objectives and Principles of the Transport Integration
Act 2010 (Vic)
I have decided to make the waterway rule as requested by Port of Melbourne Corporation for
port waters of the Port of Melbourne.
10.
Reasons for Decision
Port of Melbourne Corporation has addressed the mandatory considerations as required
under the Marine Safety Act 2010 when submitting a Request for Making a Waterway Rule.
PETER CORCORAN
Director, Maritime Safety
Delegate of the Director, Transport Safety
Dated:
18/ 11 /2014
7
MSA s188
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Appendix 1 – Copy of the Request to Make a Waterway Rule
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