Delivering Victorian Infrastructure
(Port of Melbourne Lease Transaction)
Bill 2015
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Part 1—Preliminary
Clause 1
581014
sets out the main purposes of the Bill, which are—

to authorise and facilitate transactions under which land
in the port of Melbourne is leased, and assets of the Port
of Melbourne Corporation are disposed of, to a private
sector entity; and

to establish the Victorian Transport Fund into which the
transaction proceeds are to be paid; and

to guarantee the employment entitlements of employees
of the Port of Melbourne Corporation who become
employees of a private sector entity; and

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 continuing role of the Port of Melbourne
Corporation in relation to the port; and

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; and
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BILL LA INTRODUCTION 26/5/2015

to amend the Marine Safety Act 2010 to ensure that,
when carrying out activities at the port, the private
sector entity is subject to marine safety duties; and

to make consequential amendments to other Acts.
Clause 2
provides that the provisions of the Bill come into operation on a
day or days to be proclaimed or, if not proclaimed sooner, on
30 June 2017. The extended forced commencement date
reflects the desirability to provide flexibility in relation to
altering the objects, functions and name of the Port of
Melbourne Corporation as well as making other amendments to
the Transport Integration Act 2010 once authorised
transactions under the Bill are finalised.
Clause 3
defines various words and expressions used in the Bill.
The definitions of port of Melbourne and port of Melbourne
waters adopt the meaning used in the Port Management Act
1995.
Other key definitions include—
assets is defined to mean 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 clause 7 as associated assets.
authorised transaction is defined to mean a transfer of port
assets authorised by Part 2 of the Bill, which allows for such a
transfer subject to certain restrictions and specifies the nature
and use of the transaction proceeds.
Crown land is defined to include a stratum of Crown land.
liabilities is defined to mean all liabilities, duties and
obligations, whether actual, contingent or prospective.
Port Corporation is defined to mean the Port of Melbourne
Corporation within the meaning of the Transport Integration
Act 2010.
port of Melbourne seabed is defined to mean the Crown land
comprising the area of waters that are port of Melbourne waters
and, to avoid doubt, includes any stratum of that land.
2
private sector entity is defined to mean any person other than a
public sector entity.
public sector entity is defined to mean any of the following—
(a)
the State;
(b)
Minister;
(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;
(f)
a public entity within the meaning of the Public
Administration Act 2004;
(g)
any other person acting on behalf of the State;
(h)
a corporation established under clause 22;
(i)
a company established in accordance with clause 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);
(j)
a wholly-owned subsidiary of an entity referred to in
paragraphs (c) to (i).
relevant land Ministers is defined to mean—

in clauses 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

in clause 55, the Minister administering the Coastal
Management Act 1995 and the Minister administering
Part IX of the Land Act 1958.
rights is defined to mean all rights, powers, privileges and
immunities, whether actual, contingent or prospective.
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transaction arrangement is defined to mean 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 is defined to mean—

a corporation established under clause 22; or

a company established in accordance with clause 23; or

a company designated under clause 24.
Clause 4
defines port assets to mean the assets, rights and liabilities of
the Port Corporation and associated assets. Subclause (2)
provides that 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. However, subclause (3) provides that
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.
Clause 5
defines a transfer, in relation to port assets, to include the sale,
lease or licensing of port assets, and the creation and transfer of
any interest in port assets.
Subclause (2) provides that, to avoid doubt, each of the
following is a creation and transfer of an interest in port assets
for the purposes of subclause (1)—

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;

a surrender of an interest in port assets;

a change in the beneficial ownership of port assets.
Subclause (3) defines the following words and expressions used
in the clause—
beneficial ownership is defined to include ownership of assets
by a person as trustee of a trust.
change in beneficial ownership is defined to include—

the creation of an asset;
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
the extinguishment of an asset;

a change in equitable interests in an asset;

an asset becoming the subject of a trust;

an asset ceasing to be the subject of a trust.
declaration of trust is defined to mean 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 purpose
mentioned in the declaration although the beneficial owner of,
or the person entitled to appoint, the asset may not have joined
in or assented to the declaration.
Clause 6
provides that certain words and expressions have the same
meanings as they have in section 9 of the Corporations Act
2001 of the Commonwealth.
Clause 7
empowers the Premier to designate any assets, rights or
liabilities of a public sector entity concerning the port of
Melbourne as associated assets, forming part of port assets.
Clause 8
specifies the circumstances in which any act, matter or thing is
done or has effect for the purposes of an authorised transaction.
Clause 9
provides that the Bill will bind the Crown in right of Victoria,
and so far as the legislative power of the Parliament permits, in
all its other capacities.
Clause 10
provides that the Bill is intended to operate in or outside
Victoria as far as the legislative power of Parliament is able to
extend.
Part 2—Authorised transactions
Division 1—Transfer of port assets
Clause 11
authorises the transfer to a private sector entity or public sector
entity of port assets subject to limitations that—

the 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; and
5

the maximum term of a lease or licence of land
comprising port assets to be granted to a private sector
entity, including any period of a further lease or licence
of those port assets is 50 years or, if the Premier makes
an order under subclause (3), for a period not exceeding
50 years and 30 days or, if the regulations prescribe an
additional period, for an aggregate period not exceeding
70 years or, if the Premier makes an order under
subclause (3), for an aggregate period not exceeding
70 years and 30 days.
The clause also provides that port assets may be transferred for
the purposes of an authorised transaction in any manner.
Clause 12
specifies that the proceeds (including 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 the Bill that,
but for subclause (1), would be payable to another public sector
entity) of the transfer of port assets to a private sector entity
under an authorised transaction belong to and are payable
directly to the State and are to be paid into the Victorian
Transport Fund, except for specified authorised deductions
approved by the Premier, including—

amounts to repay debt and satisfy other liabilities of a
public sector entity in relation to the transfer of port
assets; and

amounts to reimburse or pay on behalf of a public sector
entity certain taxes, duties fees or charges; and

amounts to satisfy any liability of a public sector entity
arising under or in connection with a transaction
arrangement; and

amounts to meet expenses reasonably incurred by a
public sector entity for the purpose of an authorised
transaction; and

amounts to satisfy the liabilities of a public sector entity
arising under or in connection with a project approved
by the Premier as a port-related project or to reimburse a
public sector entity for payments made to satisfy
liabilities incurred in connection with such a project.
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Such deductions may be made before payment of the
transaction proceeds into the Victorian Transport Fund or by
payment from the Victorian Transport Fund.
The clause also provides that 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. The clause further provides that requirements of
the clause do not affect the validity of the transaction
arrangement.
Division 2—The Victorian Transport Fund
Clause 13
provides for the establishment in the Public Account as part of
the Trust Fund of an account to be known as the Victorian
Transport Fund.
Clause 14
provides for payment into the Victorian Transport Fund of all
money that is appropriated by the Parliament for the purposes of
the Fund, money received from the investment of money in the
Fund and money directed or authorised to be paid into the Fund
by or under the Bill or any other Act.
Clause 15
provides for payments out of the Victorian Transport Fund of—

amounts authorised by the Treasurer to fund the cost of
all or any part of the development of the Level Crossing
Removal Program and infrastructure projects for or
relating to public transport, roads, rail, the movement of
freight, ports or other infrastructure; and

all money directed or authorised to be paid out of the
Fund by or under the Bill or any other Act.
The clause also authorises payments out of the Victorian
Transport Fund of amounts authorised by the Treasurer for the
payment of costs and expenses incurred in administering
Division 2 of Part 2 of the Bill and monitoring and reporting on
the financial operations and financial position of the Fund.
Clause 16
authorises the Treasurer, by instrument, to delegate the
Treasurer's power to authorise payments under clause 15 to the
Secretary to the Department of Treasury and Finance.
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Part 3—Facilitating authorised transactions
Division 1—Premier's functions
Clause 17
provides that the Premier has and may exercise all the functions
that are necessary or convenient for the purposes of an
authorised transaction.
The clause also authorises the Premier to 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. The clause further provides
that functions conferred on the Premier by any other provision
of the Bill do not limit the Premier's functions under clause 17.
Clause 18
provides that an authorised transaction is to be effected as
directed by the Premier in any manner that the Premier
considers appropriate and there are no limitations on the kinds
of transactions or arrangements that may be entered into or used
for the purposes of an authorised transaction.
Division 2—Functions of the Port Corporation
Clause 19
provides that the Port Corporation has and may exercise all the
functions that are necessary or convenient for the purposes of an
authorised transaction. The clause further provides that the
functions conferred by clause 19 are in addition to any other
functions that Port Corporation has apart from clause 19 and
those other functions do not prevent or limit the exercise of
additional functions conferred by clause 19.
Clause 20
provides that 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. Subclause (2)
provides that the Premier may give directions to the Port
Corporation and the directors and other officers of the Port
Corporation for the purposes of an authorised transaction.
The Port Corporation, a director or an officer must comply with
any direction given to the Port Corporation, director or officer
by the Premier under subclause (2). Subclause (5) provides that
power to give a direction under subclause (2) extends to a
direction relating to the way the Port Corporation carries out its
functions. Action taken by the Port Corporation to comply with
8
a direction of the Premier does not require the approval of any
other Minister.
Clause 21
provides that a director or officer of the Port Corporation is
not personally liable for actions or omissions in complying
with a direction of the Premier or in the reasonable belief that
the act or omission complied with a direction of the Premier.
Any resulting liability attaches to the State.
Division 3—Transaction entities
Clause 22
provides for the establishment by Order of the Governor in
Council on the recommendation of the Premier of a statutory
corporation as a transaction entity for the purposes of the Bill.
The Order may establish a corporation sole constituted by the
holder for the time being of an office or position in the public
sector. The Order must state the purpose of establishing the
corporation, the functions of the corporation and certain other
particulars.
Subclause (5) provides that a statutory corporation established
under the clause—

is a body corporate with perpetual succession; and

must have an official seal; and

may sue and be sued; and

may acquire, hold and dispose of real and personal
property; and

may do and suffer all things that a body corporate may
by law do and suffer.
Subclause (6) requires all courts to take judicial notice of the
seal of a statutory corporation affixed to a document and, until
proven otherwise, must presume that it was duly affixed.
Subclause (7) requires the official seal to be kept in the custody
that the statutory corporation directs and must not be used
except as authorised by the statutory corporation.
Subclause (8) prohibits shares in a statutory corporation from
being issued or dealt with except in accordance with an Order
under the clause.
9
Clause 23
authorises the Premier, for the purposes of an authorised
transaction, to establish or direct the establishment of
companies as transaction entities for the purposes of the Bill in
specified ways.
Clause 24
authorises the Premier, by notice published in the Government
Gazette, to designate a subsidiary company of the Port
Corporation to be a transaction entity for the purposes of the
Bill.
Clause 25
provides that, unless the Premier otherwise determines, a
transaction entity is not and does not represent the State and the
debts, liabilities and obligations of a transaction entity are not
guaranteed by the State.
Clause 26
provides that a transaction entity has and may exercise all the
functions that are necessary or convenient for the purposes of an
authorised transaction, in addition to any other functions that a
transaction entity has apart from clause 26 and those other
functions do not limit the exercise of the additional functions
conferred by clause 26.
Clause 27
provides that 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.
Subclause (2) provides that the Premier may also give directions
to the transaction entity or its directors and other officers for the
purposes of an authorised transaction. The recipients of such
directions must comply with the directions. The power of the
Premier to give a direction under subclause (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.
Subclause (6) provides that a direction given under
subclause (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.
Subclause (7) provides that action taken by a transaction entity
to comply with a direction under subclause (2) does not require
the approval of voting shareholders or of any other Minister.
10
Section 5G of the Corporations Act 2001 of the Commonwealth
provides that if a State law declares a provision of 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. Accordingly, clause 27 is declared to be such
a provision.
Clause 28
provides that a director or officer of a transaction entity is not
personally liable for actions or omissions in complying with a
direction of the Premier or in the reasonable belief that the act
or omission complied with a direction of the Premier given
under the Bill. Any resulting liability attaches instead to the
State.
Part 4—Arrangements for transfer of port assets
Division 1—Transfer orders
Clause 29
authorises the Premier to make transfer orders for the purposes
of an authorised transaction and/or orders divesting port assets
from a public sector entity for the purpose of vesting under a
transfer order.
Clause 30
provides that when assets, rights and liabilities comprising port
assets are vested by a transfer order—

the assets vest in the transferee specified in the order
without the need for any conveyance, transfer,
assignment or assurance; and

the rights and liabilities become the rights and liabilities
of the transferee; and

all proceedings relating to the assets, rights and
liabilities pending by or against the transferor are taken
to be proceedings pending by or against the transferee;
and

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
transfer order; and
11

any act, matter or thing done or omitted to be done in
relation to the assets, rights and 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; and

a reference to the transferor or a predecessor of the
transferor in any Act, instrument made under any Act or
document of any kind 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.
Subclause (2) provides that no attornment to the transferee by a
lessee from the transferor is required.
Clause 31
provides that a transfer order may be made on the terms and
conditions specified in the order.
Clause 32
provides that a transfer order may specify the consideration for
the vesting of port assets and the value or values at which port
assets, rights and liabilities are vested.
Clause 33
provides that, unless the transfer order otherwise provides,
vested assets and rights are subject to any encumbrances to
which they were subject immediately before vesting and the
rights to which the transferor was entitled in relation to vested
liabilities immediately before they cease to be liabilities of the
transferor vest in the transferee.
Clause 34
provides that, if a transfer order transfers rights and liabilities
under an agreement, the transferee becomes a party to the
agreement on the transfer date in the place of the transferor,
unless the transfer order requires otherwise.
Clause 35
provides that it applies to the vesting under a transfer order of
an interest in land under the Transfer of Land Act 1958.
Subclause (2) provides that if the transferor was the registered
proprietor of an interest in land under the Transfer of Land
Act 1958 immediately before vesting, then on and after the
transfer date, the transferee is taken to be the registered
proprietor of that interest and has the same rights and remedies
in relation to that interest that the transferor had. Clause 35
12
applies despite anything to the contrary in any other Act or law
(other than the Charter of Human Rights and Responsibilities).
Clause 36
provides that it applies to the vesting under a transfer order of
the ownership or management of a vehicle or a recreational
vessel. Subclause (2) provides that if the transferor was the
owner or manager of a vehicle or recreational vessel
immediately before vesting, then on and after the transfer date,
the transferee is taken to be the owner or manager of that
vehicle or recreational vessel and has the same rights and
remedies in relation to that vehicle or recreational vessel that
the transferor had. Clause 36 applies despite anything to the
contrary in any other Act or law (other than the Charter of
Human Rights and Responsibilities).
Clause 37
authorises the Premier to make an order confirming a vesting or
divesting of particular port assets, rights and liabilities by
operation of Division 1 of Part 4 of the Bill. Such an order is
evidence of the vesting or divesting to which it applies.
Clause 38
authorises the Premier to determine whether particular assets,
rights or liabilities comprise port assets for the purposes of a
transfer order. Such determination is evidence, and, in the
absence of evidence to the contrary, proof of the matters
determined.
Clause 39
provides that the Registrar of Titles, when requested to do so
and on delivery of any relevant certificate of title or any other
instrument evidencing title and any relevant transfer order, must
make any amendments in the Register that are necessary
because of the operation of Division 1 of Part 4. A certificate of
title need not be produced in the case of a request to amend the
Register in relation to property that is an easement registered
under the Transfer of Land Act 1958.
Clause 40
provides that VicRoads, on request, must make any recordings
in the register in relation to any transferred vehicle that are
necessary because of the operation of a provision of Division 1
of Part 4. A current certificate of roadworthiness need not be
obtained and given to VicRoads for this purpose.
The clause also defines the register to have the same meaning
as in the Road Safety Act 1986 and transferred vehicle to
mean a vehicle to which a transfer order applies and which is
eligible to be registered under the Road Safety Act 1986.
13
Clause 41
provides that documentary or other evidence that would have
been admissible for or against the interests of the transferor of
port assets is admissible for or against the interests of the
transferee.
Division 2—Grant of relevant authorisations
Clause 42
authorises the Premier to give a direction under subclause (1) to
a public sector entity (after consultation with that public sector
entity and the Minister administering the Act under which the
relevant authorisation is to be granted) in relation to the grant of
any relevant authorisation under various relevant laws to a
person who becomes or will become the new operator of any
port assets under an authorised transaction. A public sector
entity under a relevant law must comply with a direction given
to it under subclause (1).
Subclause (2) provides that a direction under subclause (1) may
include a direction for or in relation to requiring the grant of a
relevant authorisation without the need to make or determine an
application or the conditions or endorsements subject to which
any relevant authorisation is to be granted or that are to be
attached to any relevant authorisation.
Subclause (3) provides that a direction under subclause (1)
may only be given for the grant of a relevant authorisation
that operates to transfer or replace an existing relevant
authorisation currently in force and that is subject to the same
(or substantially the same) terms, conditions or endorsements as
those to which the relevant authorisation is subject.
Subclause (6) provides that anything done by a public sector
entity as a grantee of a relevant authorisation in compliance
with a term, condition or endorsement of a relevant
authorisation in relation to ports 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 as a result of a
direction given under subclause (1).
Subclause (7) defines various words and expressions used in the
clause, namely, grant, new operator, relevant authorisation
and relevant law.
grant is defined to include give, issue and transfer.
14
new operator of port assets is defined to mean a public sector
entity to which any port assets are transferred for the purposes
of an authorised transaction or 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.
relevant authorisation is defined to mean a licence, permit,
consent, entitlement, accreditation, approval, exemption or
other authorisation under a relevant law.
relevant law is defined to mean any of the following—

the Coastal Management Act 1995;

the Fisheries Act 1995;

the Flora and Fauna Guarantee Act 1988;

the Heritage Act 1995;

section 27 of the National Parks Act 1975;

the Planning and Environment Act 1987;

the Port Management Act 1995;

the Water Act 1989;

the Wildlife Act 1975.
Part 5—Arrangements relating to transfer of Port
Corporation staff
Clause 43
defines various words and expressions used in Part 5.
Key definitions include—
casual employee is defined to mean 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 is defined to mean a private
sector entity designated under an order under clause 45.
employee of a public sector entity is defined to mean a person
employed by the public sector entity whether under Part 3 of the
Public Administration Act 2004 or otherwise.
15
employment guarantee period is defined to have the meaning
given in clause 44 in relation to a transferred employee who is a
permanent employee or temporary employee.
executive employee is defined to mean an employee employed
under an individual contract in an executive position within the
Port Corporation.
permanent employee is defined to mean an employee of the
Port Corporation whose employment is of indefinite duration
and who is not a casual employee, temporary employee or
executive employee.
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.
temporary employee is defined to mean 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 is defined to mean—

in relation to an executive employee to whom an order
under clause 47 applies, the date on which the
employment of the employee is transferred under that
clause to a designated private sector employer; and

in relation to a permanent employee or 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.
transferred employee is defined to mean an executive employee
to whom an order under clause 47 applies or 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.
16
Clause 44
defines employment guarantee period for permanent
employees to be a period of 2 years after the transfer date, and
for temporary employees to be a period that is the remainder of
the employee's current term of employment immediately before
the transfer date or 2 years after the transfer date, whichever
period ends first.
Clause 45
authorises the Premier, by order, for the purposes of Part 5 to
designate a private sector entity as a designated private sector
employer. Such an order must not be made 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.
Clause 46
authorises the Premier, by order, for the purposes of an
authorised transaction to temporarily transfer an employee of a
public sector entity to the service of another public sector entity
or a designated private sector employer at the employee's
existing level of remuneration or at a higher level of
remuneration. A person who is temporarily transferred under
the clause remains an employee of the public sector entity
concerned unless and until the person's employment is
transferred under another provision of Part 5 of the Bill or the
person ceases to be an employee of the public sector entity.
Clause 47
authorises the Premier, by order, for the purposes of an
authorised transaction to transfer the employment of an
executive employee to the employment of a designated private
sector employer. Such an order must not be made unless the
Premier is satisfied that the employment of the executive
employee with the designated private sector employer is to be
on terms and conditions that are no less favourable than those
that apply to the executive employee as an employee of the Port
Corporation.
Subclause (3) provides that on the transfer date, an executive
employee who is transferred under subclause (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.
17
Clause 48
provides for limitations on changes to terms and conditions of
transferred employees.
Subclause (1) provides that the clause applies if a permanent
employee, temporary employee or executive employee is
offered employment by a designated private sector employer,
and the Premier is satisfied that the 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 the employee accepts
that offer.
Subclause (2) provides that on the transfer date, the transferred
employee's employment with the designated private sector
employer is taken to be subject to the requirements under
subclauses (3) to (5).
Subclause (3) provides that 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 that employee except by
agreement entered into by or on behalf of the transferred
employee or following the proper application of reasonable
disciplinary procedures.
Subclause (4) provides that 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 a transferred employee.
Subclause (5) provides that 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 an employment guarantee period except
for serious misconduct pursuant to the proper application of
reasonable disciplinary procedures or by agreement with the
employee.
Clause 49
provides for the continuity of the entitlements of a transferred
employee in relation to superannuation schemes in respect of
which the employee was a contributor, member or employee
immediately before the transfer, the continuity of the
employee's contract of employment and service, and the
employee's rights to sick leave, annual leave or long service
leave accrued or accruing immediately before the transfer.
18
Part 6—Crown land for the purposes of authorised transactions
Division 1—Application of Part
Clause 50
provides that Part 6 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
Clause 51
authorises the Premier, after consultation with the "relevant land
Ministers", to recommend to the Governor in Council that the
reservation of any Crown land permanently or temporarily
reserved under the Crown Land (Reserves) Act 1978 that is
entirely within the port of Melbourne be revoked in its entirety.
Subclause (2) also authorises the Governor in Council on
receiving a recommendation from the Premier to revoke any
Order in Council reserving the land and any Crown grant,
certificate of title or folio of the Register issued or created with
respect to the land by Order published in the Government
Gazette.
Clause 52
authorises the Premier on receiving a plan of land signed by the
Surveyor-General and being satisfied that the land shown on the
plan represents that part of the reservation to be revoked and
after consultation with the "relevant land Ministers", to
recommend to the Governor in Council that part of the
reservation of any Crown land permanently or temporarily
reserved under the Crown Land (Reserves) Act 1978 that is
entirely within the port of Melbourne be revoked.
The clause also authorises the Governor in Council on receiving
the Premier's recommendation to revoke any Order in Council
reserving the land and any Crown grant, certificate of title or
folio of the Register issued or created with respect to the land to
the extent that the Order in Council, Crown grant, certificate of
title or folio relates to the land shown on the plan, by Order
published in the Government Gazette.
19
Clause 53
sets out the effect of revocation of reservations under clause 51
or 52.
Subclause (2) provides that 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, subject to clause 54.
Subclause (3) revokes the appointment of any committee of
management in so far as it applies to the land.
Subclause (4) revokes any regulations made under section 13 of
the Crown Land (Reserves) Act 1978 in so far as they apply to
the land.
Clause 54
provides for the preservation of leases and licences despite the
operation of clause 53.
Subclause (1) provides that clause 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
clause 51 or 52 applying to that land and that lease or licence
has effect 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, as if the lease or licence
had been assigned to the Minister and referred to the Minister
instead of to the lessor or licensor.
Subclause (2) provides that clause 53 does not affect the status
or continuity of any sublease or sublicence over affected land at
the date of commencement of an Order under clause 51 or 52
applying to that land.
Subclause (3) provides that, subject to subclause (4), the issue
of a Crown grant of any land affected by a lease or licence
existing immediately before the date of issue of the Crown grant
does not affect the status or continuity of the lease or licence
and that lease or licence has effect on and after the issue of the
Crown grant as a lease or licence between the grantee as the
lessor or licensor and the lessee or licensee for the time being,
as if the lease or licence had been assigned to the grantee and
referred to the grantee instead of to the lessor or licensor.
Subclause (4) provides that 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
20
of the lease or licence and that lease or licence has effect on and
after the issue of the Crown grants as a lease or licence between
the respective grantees as joint lessors or licensors and the
lessees or licensees for the time being, as if it had been assigned
jointly to the grantees and referred to the grantees instead of to
the lessors or licensors.
Subclause (5) provides that the issue of a Crown grant in respect
of any land affected by a lease or licence 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 issue of the Crown grant.
Subclause (6) provides that the clause has effect despite
anything to the contrary in any Act or law or in a Crown grant
of the land.
Subclause (7) defines terms for the purposes of clause 54
including Act which does not include the Charter of Human
Rights and Responsibilities.
Division 3—Leasing and licensing of Crown land
Clause 55
provides for the grant of a lease or licence of Crown land for the
purposes of an authorised transaction.
Subclause (1) authorises the Governor in Council, on behalf of
the Crown and on the recommendation of the Premier and the
relevant land Ministers, to—

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;

impose any conditions on the lease or licence; and

ratify or give effect to any partial surrender of a lease or
licence by the lessee or licensee provided any
mortgagee and the holder of any charge over the lease
or licence has given consent.
Subclause (2) authorises the Governor in Council, on behalf of
the Crown and on the recommendation of the Premier after
consultation with the relevant land Ministers, to—
21

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 subclause (8) to a private sector
entity or a public sector entity for the purposes of an
authorised transaction;

impose any conditions on the lease; and

ratify or give effect to any partial surrender of a lease by
the lessee provided any mortgagee and the holder of any
charge over the lease has given consent.
Subclause (3) provides that the Governor in Council must have
regard to certain matters in imposing conditions on a lease or
licence of a stratum of land under subclause (1) or (2), including
the rights of other land owners.
Subclause (4) provides that the granting of a lease or licence
under the clause of a stratum of land is conclusive proof of
compliance with subclause (3)(a) and (b) with respect to the
lease or licence.
Subclause (5) provides that the partial surrender of a lease
or licence ratified or given effect to under subclause (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.
Subclause (6) provides that the term of a lease or licence
granted to a private sector entity under the clause, or if more
than one lease or licence is granted to a private sector entity
under this clause, the aggregate period of the terms of those
leases or licences, must not exceed the maximum period
specified in clause 11(2) in relation to a lease or licence granted
to the private sector entity to which that clause applies.
Subclause (7) provides that a lease or licence under the clause
may be amended at any time with the consent of the lessee or
licensee.
Subclause (8) provides that, after consultation with the relevant
land Ministers, the Premier may make a determination
identifying a part of the port of Melbourne seabed for the
purposes of new subclause (2)(a).
22
Part 7—General
Division 1—General matters relating to authorised transactions
Clause 56
authorises the Premier, by order, for the purposes of an
authorised transaction to direct that designated fixtures are
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.
Subclause (3) provides that severance of a fixture from land
under this clause does not affect the right to have the fixture
continue to be situated on the land, or any right to drain water or
sewage from the fixture across and through the land or the right
to use any means of drainage and water or sewage from the
fixture across and through the land.
Subclause (4) authorises the Premier, by order, to designate for
the purposes of the clause fixtures that are port assets, owned by
the Port Corporation or another public sector entity and situated
on land owned by the Port Corporation or another public sector
entity.
Clause 57
provides that it applies to the operation of the Bill, the vesting
of port assets by transfer order, the entering into or performance
of obligations under transaction arrangements by a public sector
entity and 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. Subclause (2) provides that none of the
specified matters or things to which the clause applies are 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;

placing any person in breach of or as constituting
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;

fulfilling any condition that allows a person to exercise
a power, right or remedy to terminate any agreement or
obligation;
23

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;

causing any contract or instrument to be void or
otherwise unenforceable;

frustrating a contract; or

releasing a surety or other obligor wholly or partly from
an obligation.
Subclause (3) provides that Act does not include the Charter of
Human Rights and Responsibilities.
Clause 58
provides that compensation is not payable by the State because
of the enactment or operation of the Bill, any consequence of
that enactment or operation or any statement or conduct relating
to the enactment of the Bill, excluding compensation payable
under a transaction arrangement in connection with the
performance of obligations under the arrangement. For this
purpose, the State is defined to mean the Crown and to include
a public sector entity and an officer, employee or agent of the
Crown or a public sector entity.
Clause 59
protects the validity of leases and licences of port assets or the
port of Melbourne seabed entered into for the purposes of an
authorised transaction.
Subclause (1) provides that 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 subclause (2) has effect according to its terms
despite any law or rule to the contrary.
Subclause (2) specifies relevant matters including 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,
the circumstances or conditions under which the lease may
be terminated by the lessor or lessee, the application of
section 139, 144 or 146(2) or (4) of the Property Law Act
1958 to or in relation to the lease, the payment of a sum that is
in the nature of a penalty, the pre-payment of amounts payable
by way of rent under the lease and the non-refundability of any
payment made on account of rent, a premium, an option fee,
24
outgoings, a security deposit or otherwise in relation to the
lease.
Subclause (3) provides that a port of Melbourne lease may
include provision for the removal by the lessee of any fixture
severable from the land leased.
Subclause (4) authorises the Premier, by order, to designate a
lease or licence of port assets as a port of Melbourne lease for
the purposes of the clause.
Subclause (5) defines port of Melbourne lease to mean a
lease or licence of port assets entered into for the purposes of an
authorised transaction or 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 a lease or licence of port assets
designated under subclause (4).
Division 2—Operation of other laws
Clause 60
declares anything done by the Premier under the Bill to be an
excluded matter for the purposes of section 5F of the
Corporations Act 2001 of the Commonwealth in relation to
Chapter 2D of the Corporations Act 2001 of the
Commonwealth.
Section 5F of the Corporations Act 2001 of the Commonwealth
provides that if a State law declares a matter to be an excluded
matter for the purposes of that section in relation to a specified
provision of the Corporations legislation, the specified
provision of the Corporations legislation does not apply in the
State in relation to the matter. Accordingly, clause 60 will have
the effect that Chapter 2D (Officers and Employees) of the
Corporations Act 2001 of the Commonwealth will not apply to
anything done by the Premier under the Bill.
Clause 61
sets out the matters that apply to State taxes and fees.
Subclause (1) provides that a State tax or fee is not chargeable
or applicable in relation to a relevant matter if that relevant
matter relates only to a public sector entity or is a matter to
which only public sector entities are parties.
Subclause (2) authorises the Premier to, by order, direct that 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
25
(if any) that the Premier directs, either generally or in a
particular case.
Subclause (3) provides that an order may be made under
subclause (2) before or after the liability to pay the State tax or
fee concerned accrues.
Subclause (4) provides that an order under subclause (2) may
specify the date of completion of an authorised transaction.
Subclause (5) requires the Premier to give a copy of the order
under subclause (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.
Subclause (6) authorises the Premier to certify in writing any of
the following things as a relevant matter—

a thing that the Premier considers has been done in
consequence of a vesting of assets, rights or liabilities
by virtue of Part 4 of the Bill;

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.
Subclause (7) defines relevant matter to mean an authorised
transaction, a transaction arrangement, 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, a vesting of assets, rights or liabilities by virtue of
Part 4 of the Bill, a thing certified by the Premier under
subclause (6) and other prescribed matters. Subclause (7) also
defines State tax or fee for the purposes of clause 61.
Clause 62
provides that the Borrowing and Investment Powers Act 1987
does not apply to an authorised transaction.
Clause 63
provides that nothing in the Bill affects the operation of the
Public Administration Act 2004.
Clause 64
provides that nothing in the Bill affects the operation of the
State Owned Enterprises Act 1992.
26
Clause 65
provides that 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.
Clause 66
provides that 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.
Clause 67
provides that 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.
Clause 68
provides that in the event of any inconsistency between
provisions of the Bill 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 clause 68, the provisions of the Bill or the regulation prevail,
to the extent of the inconsistency. For this purpose, Act does
not include the Charter of Human Rights and Responsibilities.
Clause 69
provides that certain conduct is authorised for the purposes of
the Competition and Consumer Act 2010 of the Commonwealth
so as to exempt, in accordance with section 51 of that Act, such
conduct from the application of various parts of Part IV of that
Act.
Subclause (1) authorises the entering into a primary agreement
by the State with any one or more of the following—

a person who at the time the primary agreement is
entered into or takes effect is the port of Melbourne
operator;

a person who at the time the primary agreement is
entered into or takes effect is an associated entity
(as defined in the Corporations Act 2001 of the
Commonwealth) of the port of Melbourne operator;

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;

a person specified under an order made by the Premier
under subclause (2)(a);
27

a financing party of a person referred to above;

a trustee of a financing party.
Subclause (1) also authorises—

the entering into, amending, giving effect to or
acceptance of the benefit under an agreement that is
designated under an order made by the Premier under
subclause (2)(b); and

the assignment or acceptance of an interest in, or right
under, a primary agreement or an agreement that is
designated under an order made by the Premier under
subclause (2)(b).
Subclause (2) confers powers on the Premier to make certain
orders specifying persons and designating agreements for the
purposes of subclause (1).
Subclause (3) defines the following terms and expressions used
in the clause—
derivative is defined to mean an arrangement in relation to
which 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 the amount of consideration, or the
value of the arrangement, is 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, an asset, a rate
(including an interest rate or exchange rate), an index, a
commodity.
financing party, of a person (the first person), is defined to
mean 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 complying with any obligation under the agreement or
assignment and exercising or enforcing any right or power
under the agreement or assignment.
port of Melbourne operator adopts the meaning used in the
Port Management Act 1995 (see clauses 78 and 80).
28
primary agreement is defined to mean 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—

the loading, unloading, handling, transport or
transhipment of cargo containers serving international
trade;

the storage of cargo containers serving international
trade.
Division 3—Miscellaneous
Clause 70
authorises the Premier, by instrument, to delegate any of the
Premier's functions under the Bill (other than the power of
delegation) to the Special Minister for State, the Secretary to the
Department of Premier and Cabinet and 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.
Clause 71
provides for when orders made by the Premier under the Bill
take effect and for a document purporting to be an order to be
taken to be such an order and to have been properly made,
unless the contrary is established.
Division 4—Regulations
Clause 72
provides that regulations may be made by the Governor in
Council for or with respect to any matter required or permitted
by the Bill to be prescribed or necessary or convenient to be
prescribed to give effect to the Bill.
Part 8—Transaction-related amendments
Division 1—Amendment of Transport Integration Act 2010
Clause 73
provides for the insertion of a new definition in section 3 of the
Transport Integration Act 2010, namely, Port Capacity
Project part of the port of Melbourne.
29
Port Capacity Project part of the port of Melbourne is defined
to mean 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.
Clause 74
substitutes section 141D(1) of the Transport Integration Act
2010 stating the main objects of the Port of Melbourne
Corporation, being to ensure that port of Melbourne waters and
channels are managed for use on a fair and reasonable basis, to
manage and develop Station Pier and West Finger Pier, to
manage and develop the Port Capacity Project part of the port of
Melbourne if authorised under new section 141EA, and if the
Port of Melbourne Corporation is a designated State port entity,
to manage a site in the port of Melbourne at which stevedoring
operations are carried out, in each case consistent with the
vision statement and the transport system objectives.
The clause also amends section 141D(2) of the Transport
Integration Act 2010 as follows—

it consequentially replaces a reference to the Port of
Melbourne Corporation's primary object with a
reference to the main objects of the Port of Melbourne
Corporation (see also subclause (1));

it replaces a reference to "port of Melbourne" with
"port of Melbourne waters, Station Pier and West Finger
Pier" to reflect the narrowing of the Port of Melbourne
Corporation's narrowing of responsibilities within the
port of Melbourne;

it repeals paragraphs (b) and (c) which cease to be
relevant because, following a declaration of the port of
Melbourne operator under new section 4A of the Port
Management Act 1995 (see clause 80), the Port of
Melbourne Corporation will no longer be responsible
for facilitating the sustainable growth of trade through
the port of Melbourne or ensuring that essential port
services are available and cost effective.
30
Clause 75
amends the functions of the Port of Melbourne Corporation.
Subclause (1) substitutes section 141E(1)(a) and (b) of the
Transport Integration Act 2010 to provide that the functions
of the Port of Melbourne Corporation include, if authorised
under new section 141EA, to plan for the development, to
provide infrastructure necessary for the development and
operation, to develop or enable and control the development by
others, in each case of the Port Capacity Project part of the port
of Melbourne, and if the Port of Melbourne Corporation is a
designated State port entity, 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 and to provide or enable
and control the provision by others of services at a site which it
manages and at which stevedoring operations are carried out.
Subclause (2) repeals section 141E(1)(c) to (e) and (g) of
the Transport Integration Act 2010 so that the Port of
Melbourne Corporation ceases to have functions relating to the
development, management and provision of services at the port
of Melbourne and facilitation of the integration of infrastructure
and logistics systems at the port of Melbourne with the transport
system outside the port of Melbourne.
Subclause (3) inserts a note in relation to section 141E(1)(f) of
the Transport Integration Act 2010 to make it clear that
Station Pier and West Finger Pier are part of the port of
Melbourne.
Subclause (4) amends section 141E(1)(h) of the Transport
Integration Act 2010 so that the Port of Melbourne
Corporation has the function of establishing, as well as
managing and developing, channels in port of Melbourne
waters.
Subclause (5) inserts new paragraphs (ia) and (ib) into
section 141E(1) of the Transport Integration Act 2010 so
that the Port of Melbourne Corporation has the functions, in
port of Melbourne waters, of publishing information about
depths and configurations of channels and berths and providing
or maintaining navigation systems.
Subclause (6) inserts new paragraphs (ja) and (jb) into
section 141E(1) of the Transport Integration Act 2010 so
that the Port of Melbourne Corporation has the functions of
performing functions under Part 4A of the Port Management
31
Act 1995 (Regulation of towage services) and, in relation to
Station Pier and West Finger Pier, functions including planning
for the development and operation of the piers and developing
and managing the piers.
Clause 76
inserts new section 141EA of the Transport Integration Act
2010, which authorises the Minister to authorise the Port of
Melbourne Corporation to perform certain functions. Such an
authorisation must be in writing.
Clause 77
amends section 141F of the Transport Integration Act 2010
by substituting the words "performing its functions under
section 141E(1)(h)" for the current words "carrying out its
functions as a channel operator".
Division 2—Amendment of Port Management Act 1995
Clause 78
substitutes the definition of port licence fee in section 3(1) of
the Port Management Act 1995 so that it means the fee
payable by the port licence holder under Part 2B of the Port
Management Act 1995.
The clause also amends the definition of port of Melbourne
land in section 3(1) of the Port Management Act 1995 to
substitute a reference to "a public sector entity or the port of
Melbourne operator" for the current reference to "the Port of
Melbourne Corporation" in paragraph (a)(i). This facilitates the
vesting of the freehold title to port of Melbourne land in a
public sector entity (other than the Port of Melbourne
Corporation) and the concurrent leasing or subleasing of that
land to the port of Melbourne operator.
Subclause (2) sets out additional definitions for inclusion in
section 3(1) of the Port Management Act 1995, namely,
anchorage, channel-dredging activities, leased port of
Melbourne land, port licence, port licence holder, port of
Melbourne operator, provision of channels, public entity and
public sector entity.
anchorage is defined to mean a place in port waters where
vessels may anchor.
channel-dredging activities is defined to mean certain activities
to enable use of a channel by vessels, including altering,
dredging, cleansing, scouring, straightening and improving a
32
channel and reducing or removing any banks or shoals within a
channel.
leased port of Melbourne land is defined to mean land in
respect of which the port of Melbourne operator holds a
leasehold interest.
port licence is defined to mean a licence granted under
Division 5 of Part 3 of the Port Management Act 1995.
port licence holder is defined to mean the holder of a port
licence.
Port of Melbourne operator is defined to mean an entity
declared under new section 4A of the Port Management Act
1995 to be the port of Melbourne operator.
provision of channels is defined to include carrying out
channel-dredging activities.
public entity adopts the meaning used in the Public
Administration Act 2004.
public sector entity adopts the meaning used in the Delivering
Victorian Infrastructure (Port of Melbourne Lease
Transaction) Act 2015.
Clause 79
amends section 4(2)(b) of the Port Management Act 1995 by
inserting the words "the port of Melbourne operator" after
"Corporation" so that a reference in the Act to the owner of a
vessel or cargo includes a reference to any person who, among
other things, makes certain representations to the port of
Melbourne operator.
Clause 80
inserts new section 4A in the Port Management Act 1995,
providing that the Minister, by Order, may declare that a
specified person is the port of Melbourne operator.
Clause 81
amends section 23(1) of the Port Management Act 1995 to
extend the benefit of the provision to the port of Melbourne
operator, other than section 23(1)(b), which relates to the
recovery of economic loss. Section 23(1) authorises channel
operators and the Victorian Regional Channels Authority to
recover damages from persons who damage the property of or
cause economic loss to a channel operator or the Victorian
Regional Channels Authority.
33
The clause also amends section 23(2), (2A) and (3) of the Port
Management Act 1995 to include a reference to the port of
Melbourne operator in consequence of the amendment to
section 23(1) of the Port Management Act 1995.
Clause 82
amends section 24(1) of the Port Management Act 1995 to
include a reference to the port of Melbourne operator in
consequence of the amendment to section 23(1) of the Port
Management Act 1995.
Clause 83
substitutes section 44H of the Port Management Act 1995 and
inserts new sections 44HAA and 44HA into that Act.
New section 44HAA defines terms used in Part 2B of the Port
Management Act 1995 as follows—

annual licence fee is defined to mean the port
licence fee payable under section 44H of the Port
Management Act 1995;

upfront licence fee is defined to mean the port licence
fee payable under section 44HA of the Port
Management Act 1995;

Victorian Transport Fund is defined to mean the Fund
established under section 13 of the Delivering
Victorian Infrastructure (Port of Melbourne Lease
Transaction) Act 2015.
Substituted section 44H provides that the port licence holder is
required to pay a port licence fee for each financial year the port
licence is in force after 1 July 2015 (annual licence fee).
Section 44H also provides that the amount of the licence fee
that is payable is not to be adjusted even if the obligation to pay
arises after the beginning of the financial year in respect of
which the fee is payable, and that the licence fee is not
refundable even if the port licence ceases to be in force before
the end of the financial year. The annual licence fee is intended
to be a continuation of the existing port licence fee, being an
annual fee determined in accordance with the formula in
sections 44I and 44J of the Port Management Act 1995.
New section 44HA provides that the Treasurer may, in respect
of a period commencing on or after 1 July 2016 that a port
licence will be in force, require a licence holder, before that
period commences, to pay to the Treasurer a fee determined by
34
the Treasurer in relation to all 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. In determining the upfront licence fee,
the Treasurer may (without limiting how the Treasurer may
determine an upfront licence fee) have regard to the CPI based
formula in section 44J of the Port Management Act 1995 that
would otherwise apply to determine the annual licence fee.
New section 44HA also provides that the payment of an upfront
licence fee in respect of a period satisfies any obligation a port
licence holder has to pay an annual licence fee in respect of that
period. No part of an upfront licence fee is to be refunded to the
port licence holder except in accordance with section 44N of the
Port Management Act 1995.
Clause 84
amends section 44K of the Port Management Act 1995 so as
to change references to "Port of Melbourne Corporation" to
"port licence holder" and references to "port licence fee" to
"annual licence fee".
Clause 85
amends section 44L of the Port Management Act 1995 so as
to change references to "Port of Melbourne Corporation" to
"port licence holder", references to "port licence fee" to "annual
licence fee" and references to "State" to "Minister" (being the
Minister administering the Port Management Act 1995).
Clause 86
inserts new sections 44M and 44N into the Port Management
Act 1995.
New section 44M specifies that—

an annual licence fee is to be paid into the Consolidated
Fund; and

an upfront licence fee is to be paid into the Victorian
Transport Fund (see clause 13), unless the Treasurer
directs that it be paid into the Consolidated Fund.
New section 44N specifies the circumstances in which part of
an upfront licence fee is to be refunded to the port licence
holder. A refund is only payable where the Minister
administering the Port Management Act 1995 revokes the port
licence holder's port licence on a ground specified in the licence
as a ground on which a refund is payable. The refund amount is
to be an amount that is attributable to the financial years that
35
have not passed and are encompassed by the period to which the
upfront licence fee relates.
New section 44N also specifies from where a refund amount is
to be paid and provides that where, for the purposes of payment
of a refund amount, a payment from the Consolidated Fund is
required (including in circumstances where a payment is
required in part from the Victorian Transport Fund and in other
part from the Consolidated Fund), the Consolidated Fund is
appropriated to the extent necessary.
Clause 87
inserts new definitions into section 45 of the Port Management
Act 1995 for the purposes of Part 3 of that Act, including the
definition of protected provision.
A protected provision is defined as a provision of a Pricing
Order that—

specifies the initial values of assets used by a provider
of prescribed services to provide those prescribed
services, including the initial value of the Shared
Channels used by vessels bound for either the port of
Melbourne or the Port of Geelong;

specifies the economic life of an asset used by a
provider of prescribed services to provide those services
for amortisation and depreciation purposes; or

is specified under a Pricing Order as a protected
provision.
Clause 87 also repeals the definitions of channel operator,
Competition Principles Agreement and prescribed channel
from section 45 of the Port Management Act 1995 as these
terms are not currently used in Part 3 of the Port Management
Act 1995.
Clause 88
amends section 47 of the Port Management Act 1995 to state
to whom Part 3 of the Port Management Act 1995 applies, and
when specific Divisions of Part 3 of the Port Management Act
1995 will apply. In particular—

new section 47(2) provides that Division 3 of Part 3
applies (and Divisions 2A and 2B do not apply) where a
Pricing Order declares it does; and
36

Clause 89
new section 47(3) clarifies that, where there is no
Pricing Order in effect, new Divisions 2A and 2B of
Part 3 do not apply but Division 3 does apply.
substitutes section 48 of the Port Management Act 1995 to
specify the objectives of Part 3 of the Port Management Act
1995. New section 48 sets out tailored objectives of the new
economic regulatory regime introduced under Division 2 of
Part 8 of the Bill.
Clause 89 also inserts a new section 48A into the Port
Management Act 1995 requiring the Essential Services
Commission to have regard to the objectives set out in
section 48 of the Port Management Act 1995 when
performing its functions or exercising its powers in relation to
the regulated industry (being the port industry in a commercial
trading port).
Clause 90
amends section 49(c) of the Port Management Act 1995 in
relation to what are prescribed services to broaden the scope of
the economic regulatory regime established under Part 3 of the
Port Management Act 1995 in respect of the port of
Melbourne from the point at which a Pricing Order comes into
effect. Under the amendment, the following are specified as
prescribed services—

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;

the provision of berths, buoys or dolphins in connection
with the berthing of vessels in the port of Melbourne;

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;

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
37
users (examples of such services being tanker, wharf
and water inspection services and security services);

any other service prescribed by the regulations.
Clause 90 also inserts a new subsection (2) at the end of
section 49 of the Port Management Act 1995 which provides
that for the purposes of Part 3 of the Essential Services
Commission Act 2001—
Clause 91

the granting of a lease or sublease by the port of
Melbourne operator pursuant to which a person is
permitted to provide container, automotive, dry-bulk,
liquid-bulk or break-bulk terminal or stevedoring
operations in the port of Melbourne or an activity or
operations specified in the regulations to other persons
is not a prescribed service; and

any services specified in section 49(1)(c)(i) to (v) of the
Port Management Act 1995 are not prescribed
services, where such services are provided by the Port
of Melbourne Corporation.
inserts new Division 2 (Port of Melbourne Pricing Order) into
Part 3 of the Port Management Act 1995.
New Division 2 is comprised of new sections 49A to 49H
which establish the framework for the making, amending and
revoking of a Pricing Order.
New section 49A gives the Governor in Council the power, on
the recommendation of the ESC Minister, to make an Order—

for or with respect to the provision of prescribed
services; and

for the regulation, in such manner as the Governor in
Council thinks fit, of the prices for the provision of
prescribed services.
Without limiting the above listed broad powers of the Governor
in Council, an Order made under new section 49A may—

declare whether Division 2A, 2B or 3 of Part 3 of the
Port Management Act 1995 or the Order applies to the
provision of prescribed services;
38

specify a provision of the Order as a protected provision
(see clause 87); and

specify a period commencing on the day the Order takes
effect as the "Pricing Order transition period"
(see explanation of new Division 2B of Part 3 of the
Port Management Act 1995); and

specify procedures to enable monitoring of compliance
with the Order, information, reporting and record
keeping requirements; and

require persons to prepare and give reports to the
Commission about specified information or specified
matters.
The manner in which prescribed services may be regulated
under a Pricing Order is set out, including fixing maximum
prices, revenues or rates of increase in such prices or revenues,
monitoring price levels, and providing for a return on, and a
return of, capital.
New section 49B provides general powers in relation to a
Pricing Order, including the ability to confer functions and
powers on, or leave any matter to be decided by, the
Commission.
New section 49C provides that a Pricing Order must be
published in the Government Gazette.
New section 49D provides that a Pricing Order will take effect
on the day the Pricing Order is published in the Government
Gazette or if a later day is specified in the Pricing Order, then
on that later day.
To provide certainty, new section 49E states that a Pricing
Order cannot be amended or revoked except in accordance with
new Division 2 of Part 3 of the Port Management Act 1995.
New section 49F sets out the only circumstances (subject to
new sections 49G and 49H) in which a Pricing Order may be
amended by an Order made under section 49A. A Pricing
Order may only be so amended—

to revoke a provision of the Pricing Order which
declares that Division 3 does not apply in relation to the
provision of prescribed services (and to make
consequential amendments resulting from such a
39
revocation) after the ESC Minister has made a
"re-regulation recommendation" (see explanation of
Division 2A of Part 3 of the Port Management Act
1995 in clause note 92);

to revoke a provision of the Pricing Order due to the
commencement of port operations at a new container
port in Victoria (and to make consequential
amendments resulting from such a revocation); or

with the agreement of the provider of prescribed
services to whom the Pricing Order applies.
Any amendment to the Pricing Order pursuant to new
section 49F is subject to new sections 49G and 49H.
New section 49G sets out the circumstances in which a Pricing
Order may be wholly revoked by an Order made under
section 49A, which are as follows—

the provider of prescribed services to whom a Pricing
Order applies is a public entity; or

the provider of prescribed services to whom the Pricing
Order applies agrees to the revocation.
New section 49H limits the ability for a subsequent Pricing
Order to amend or alter or vary the effect of specified
provisions, known as protected provisions (see clause 87), as
well as the ability to revoke protected provisions. This is to
provide the provider of prescribed services to whom a Pricing
Order applies with certainty that specific aspects of the port of
Melbourne economic regulatory regime will not change in form
or effect in the event of amendments to the initial Pricing Order
made under new section 49A.
However, section 49H also provides for an exception in respect
of the protection from revocation afforded to protected
provisions, namely, that such a revocation may occur where the
Pricing Order containing the protected provision is wholly
revoked in accordance with section 49G or with the agreement
of the provider of the prescribed services to whom the Order
applies.
Clause 92
inserts new Division 2A (Monitoring compliance with Pricing
Order) and new Division 2B (Transitional enforcement regime)
into Part 3 of the Port Management Act 1995.
40
Division 2A comprises new sections 49I to 49N, which concern
matters associated with compliance with a Pricing Order.
New section 49I sets out when and how inquiries by the
Commission into compliance with a Pricing Order are to be
conducted. The Commission must conduct an inquiry on a
5 yearly basis and report to the ESC Minister as to whether the
provider of prescribed services to which the Pricing Order
applies has complied with the Pricing Order during the review
period.
An inquiry by the Commission must be conducted in
accordance with Part 5 of the Essential Services Commission
Act 2001, except that sections 40 and 46 of the Essential
Services Commission Act 2001 do not apply in respect of that
inquiry.
As part of its inquiry, the Commission may take into account
the following matters in forming its view as to whether the
provider has been non-compliant with a Pricing Order in a
significant and sustained manner—

any findings the Commission has made in reports on
previous inquiries under new section 49I; and

the nature and details of any instances of noncompliance with a Pricing Order that is the subject
of a report on a previous inquiry.
The Commission's report must include the Commission's
findings as to whether any identified non-compliance with a
Pricing Order was non-compliance in a significant and
sustained manner and include its reasons for forming such a
view.
New section 49J provides for a draft of a report on an inquiry
by the Commission under section 49I to be provided to the
provider of prescribed services to which the Pricing Order
applies and for an opportunity for such a person to make a
written submission to the Commission on that draft report
before the Commission prepares its final report on the inquiry.
This provision is intended to provide the provider of prescribed
services to whom the Pricing Order applies with an opportunity
to comment on a draft report prior to its finalisation in the
interests of fairness given the potential consequences that may
41
flow from a finding of significant and sustained non-compliance
in a final report (as explained directly below).
New section 49K sets out the requirements that must be met in
order for the ESC Minister to give a show cause notice. A show
cause notice informs the provider of prescribed services to
which the Pricing Order applies of the ESC Minister's intention
to make a re-regulation recommendation and must be published
on the Department's website.
The ESC Minister may, after consultation with the Minister
administering the Port Management Act 1995, give a show
cause notice if the ESC Minister considers that the provider
of prescribed services has not complied with a Pricing Order
in a significant and sustained manner, having regard to a report
of the Commission (provided pursuant to new section 49I)
containing the Commission's view that such a significant
and sustained non-compliance has occurred (known as an
"adverse compliance report").
New section 49K also specifies certain matters that a show
cause notice must contain, these being—

a statement that the ESC Minister considers that the
provider of prescribed services has failed to comply
with the Pricing Order in a significant and sustained
manner and that the ESC Minister is considering
making a re-regulation recommendation; and

the nature and details of such a significant and sustained
non-compliance; and

specification of any actions that the ESC Minister
considers the provider may take to remedy or prevent
non-compliance (including provision of an
undertaking—see new section 49M); and

a statement that the provider of prescribed services may
make written submissions in response to the show cause
notice within a specified time (not less than 60 days
after the show cause notice is given).
New section 49K also confers a power on the ESC Minister to
request further information from a provider following receipt of
a written submission from the provider. Such a request must be
published on the Department's website.
42
New section 49K further provides that a show cause notice may
not be given until any appeal of the Commission's adverse
compliance report is determined under section 56 in Part 7 of
the Essential Services Commission Act 2001.
New section 49L sets out the requirements that must be met for
the ESC Minister to make a re-regulation recommendation.
New section 49L provides that within 90 days after giving a
show cause notice or requesting further information under new
section 49L, the ESC Minister must decide whether to make a
re-regulation recommendation. Prior to making such a decision,
the ESC Minister must consult with the Minister administering
the Port Management Act 1995.
In deciding to make a re-regulation recommendation, the ESC
Minister must have regard to—

any response to the show cause notice given under new
section 49K that is received from the provider of
prescribed services, including any undertakings offered
(see new section 49M); and

any further information from the provider of
prescribed services given in response to a request for
further information by the ESC Minister under new
section 49K; and

whether the provider of prescribed services has
breached any undertaking (see new section 49M)
previously offered by the provider and accepted by the
ESC Minister; and

whether it is in the public interest for the power to
determine the form of regulation to apply in respect of
the prescribed services to be conferred on the
Commission, having regard to the objectives of Part 3 of
the Port Management Act 1995.
New sections 49M and 49N enable a provider of prescribed
services who is the subject of an adverse compliance report,
being a final report by the Commission under section 49I that
contains a finding of significant and sustained non-compliance
with a Pricing Order, to offer a court-enforceable undertaking to
the ESC Minister to remedy such non-compliance.
43
The ESC Minister, after consultation with the Minister
responsible for administering the Port Management Act 1995,
may accept a court enforceable undertaking from the provider if
the ESC Minister is satisfied that the terms of the undertaking
are appropriate to adequately address the provider's
non-compliance with a Pricing Order and the provider is
reasonably likely to comply with the terms of the undertaking.
The process for offer and acceptance of a court-enforceable
undertaking to remedy significant and sustained
non-compliance with a Pricing Order provides an alternative
option to the ESC Minister making a re-regulation
recommendation under section 49L.
New Division 2B of Part 3 of the Port Management Act 1995
comprises new sections 49O and 49P. These sections establish
a stand-alone enforcement regime during the Pricing Order
transition period (being a period specified in the Pricing Order)
in respect of specified enforceable provisions under a Pricing
Order (being provisions of a Pricing Order that are prescribed in
regulations made under the Port Management Act 1995).
The enforcement regime provides that 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 various orders, such
as injunctions and compensation orders.
The enforcement regime established under new Division 2B of
Part 3 of the Port Management Act 1995 operates in a
mutually exclusive manner from Division 2A of Part 3 of the
Port Management Act 1995 regarding the monitoring of
compliance with the Pricing Order and the re-regulation
recommendation process.
Clause 93
substitutes a new heading to Division 3 of Part 3 of the Port
Management Act 1995—"General economic regulation
powers"—so that the heading better describes the subject matter
of Division 3.
44
Clause 94
repeals section 53 contained in Division 3 of Part 3 of the Port
Management Act 1995 regarding the conduct of mandatory
5 yearly inquiries by the Commission. Where Division 3 of
Part 3 of the Port Management Act 1995 applies to the
provision of prescribed services (that is, where a Pricing Order
is amended pursuant to new section 49A on the basis of a
re-regulation recommendation (see explanation of Division 2 of
Part 3 of the Port Management Act 1995 contained in clause
note 92)), it is not intended that the Commission be required to
conduct 5 yearly inquiries as to whether or not prescribed
services are to be subject to price regulation and the form of that
price regulation. Rather, it is intended that the Commission be
conferred with general powers to make determinations pursuant
to section 54 of the Port Management Act 1995 (as amended
by clause 95) only.
Clause 95
amends section 54 of the Port Management Act 1995
concerning the Commission's general power to make
determinations in the following respects—

to specify that if there is no Pricing Order in effect,
section 54 applies if the ESC Minister determines that
prescribed services are to be subject to price regulation;

to specify that if there is a Pricing Order in effect,
section 54 applies if the Pricing Order declares that
Division 3 of Part 3 of the Port Management Act 1995
applies to the provision of prescribed services;

to prohibit the Commission from exercising its powers,
while a Pricing Order is in effect, to make a
determination 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 (see clause 87). This is to provide the
provider of prescribed services to which the Pricing
Order applies with certainty that those aspects of the
economic regulatory regime established in an initial
Pricing Order which are protected provisions will not be
changed in form or effect in the event that the initial
Pricing Order is amended on the basis of a re-regulation
recommendation;
45

as a consequential amendment, to repeal section 54(5)
of the Port Management Act 1995. Section 54(5)
concerns the exercise of the Commission's power to
make a determination in the context of the provision of
prescribed services and related services specifically by
the Port of Melbourne Corporation. Section 54(5) is
redundant under the new economic regulatory regime
being implemented under Division 2 of Part 8 of the
Bill, as the new regime applies to a provider of
prescribed services to whom a Pricing Order applies
rather than the Port of Melbourne Corporation; and

to clarify the circumstances in which a determination
will cease to have effect.
Clause 96
inserts a new Division heading titled "Division 3A—Service
quality monitoring" after section 54 in Part 3 of the Port
Management Act 1995 to create a Division structure
for provisions concerning the establishing of a service
monitoring regime. New Division 3A contains new
section 54A (see clause 97) and existing section 55.
Clause 97
inserts new section 54A of Division 3A of Part 3 of the Port
Management Act 1995 to enable the ESC Minister to request
the Commission to exercise its existing powers under
section 55(1) of that Act. The Commission must comply with
any such request.
Clause 98
amends section 55(2) of the Port Management Act 1995 so
that the Commission is required to consult with the Director,
Transport Safety before exercising its existing powers under
section 55 (standards and conditions of service and supply) in
all circumstances.
Clause 98 also repeals section 55(3), (4) and (5) of the Port
Management Act 1995 for the following reasons—

subsection (3) is a redundant provision that is not
presently utilised; and

subsections (4) and (5) relate to matters associated with
section 53 that is to be repealed pursuant to clause 94.
46
Clause 99
inserts a new Division heading titled "Division 3B—
Information requirements and information disclosure
restrictions" before section 56 of the Port Management Act
1995 to create a separate Division for sections 56 and 57 of the
Port Management Act 1995.
Clause 100 substitutes Division 5 of Part 3 of the Port Management Act
1995 so that the current licence requirements in that Division
are replaced with a new port licence requirement, for which the
holder of the port licence must pay a port licence fee under
Part 2B of the Port Management Act 1995 (see clause notes 83
to 86).
New section 63A prohibits a person from providing prescribed
services unless—

the person is the holder of a licence authorising the
provision of the relevant prescribed services issued
under Division 5 of Part 3 of the Port Management
Act 1995 (that is, a "port licence"); or

the person is exempted from the requirement to obtain a
licence in respect of the provision of the relevant
prescribed services.
To enable the State to provide certain prescribed services
(in addition to prescribed services that are provided by the port
of Melbourne operator) without the need to obtain a port
licence, new section 63B provides that the following entities are
expressly exempt from the requirement to obtain a port
licence—

the Port of Melbourne Corporation; and

any other public sector entity that is not the port of
Melbourne operator.
New section 63C enables the Governor in Council to, by Order
published in the Government Gazette, exempt a person from the
requirement to obtain a port licence to provide prescribed
services so as to provide flexibility for the Governor in Council
to issue an exemption in appropriate circumstances.
New section 63D provides for a person who is required to
hold a port licence to make an application to the Minister
administering the Port Management Act 1995 for the issue
of a port licence in a form approved by the Minister.
47
An application must be accompanied by such documents as
may be required by the Minister and the application fee (if any)
fixed by the Minister.
New section 63E provides that the Minister administering the
Port Management Act 1995 may grant or refuse an application
for the issue of a licence for any reason the Minister considers
appropriate. The Minister must notify the applicant of the
Minister's decisions and provide reasons in the case of a refused
application, but may otherwise decide the procedures that are to
apply in respect of the issue of a licence.
New section 63F provides for a port licence to be issued for a
term (if any) that is decided by the Minister administering
the Port Management Act 1995 and specified in the licence.
New section 63F also sets out the conditions that may be
specified in a port licence, being any conditions decided by the
Minister administering the Port Management Act 1995,
including the following—

a requirement that the port licence holder also be the
port of Melbourne operator;

an obligation to comply with Part 2B of the Port
Management Act 1995 (that is, the requirements
regarding the payment of a port licence fee);

procedures for the variation of the licence or grounds
and procedures for the revocation of the licence.
The Minister must consult with the Treasurer before deciding
conditions specifying procedures for the variation or revocation
of the licence or grounds for the revocation of the licence.
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.
New section 63G requires the Minister administering the Port
Management Act 1995 to publish notice of the grant of a port
licence in the Government Gazette as soon as possible after the
granting of the licence, including specification of the name of
the port licence holder, the term of the port licence and where a
copy of the port licence may be inspected.
48
New section 63H creates an offence for non-compliance by the
port licence holder with the conditions of the holder's port
licence.
New section 63I provides that a port licence may only be varied
in the following circumstances—

in accordance with the procedures specified in the
licence conditions; or

by agreement between the Minister administering the
Port Management Act 1995, after consultation with
the Treasurer, and the port licence holder.
New section 63J provides that the Minister administering the
Port Management Act 1995 may revoke a port licence on any
ground specified in the licence conditions.
New section 63J also provides that the procedure applicable to a
revocation under the section is that specified in the licence
conditions (if any).
New section 63K sets out a process by which a port licence
holder may apply to transfer the port licence it holds and by
which the Minister administering the Port Management Act
1995 may approve or refuse to approve a transfer, the key
features of which are as follows—

a transfer application must be in a form approved by the
Minister, be accompanied by any documents required
by the Minister, and accompanied by a fee (if any) fixed
by the Minister;

upon receipt of a transfer application, the Minister may
approve, or refuse to approve, the application for any
reason the Minister considers appropriate;

if the Minister approves a transfer application, the
Minister may, after consultation with the Treasurer,
decide to vary any conditions to which the licence is
subject, and may decide the procedures that are to apply
in respect of the transfer of the licence; and

the Minister is required to notify the transfer applicant
of a decision and to provide reasons if the decision is to
refuse to approve an application.
49
New section 63L provides for the port licence to be transferred
on the initiative of the Minister administering the Port
Management Act 1995 with the consent of the port licence
holder. The Minister may, after consulting with the Treasurer,
decide that the conditions to which the licence is subject are
varied upon transfer.
Clause 101 inserts new "Division 6—Other matters" after Division 5 of
Part 3 of the Port Management Act 1995. New Division 6
contains new section 63M. Section 63M provides for the
revocation of the ESC Price Monitoring Determination on the
day the initial Pricing Order takes effect (unless sooner
revoked) to enable automatic transition from the current port of
Melbourne economic regulatory regime to the new regime
introduced by Division 2 of Part 8 of the Bill.
Clause 102 amends section 73B(1) of the Port Management Act 1995 to
specify that the Port of Melbourne Corporation may make a
towage requirements determination as to the minimum
emergency response capability (including minimum firefighting capabilities) of any towage vessels or class of towage
vessels and any specified standards applicable to such
capabilities, and the availability required for such vessels that
have emergency response capabilities (including fire-fighting
capabilities).
The clause also inserts new section 73B(3A) in the Port
Management Act 1995, which provides that a standard
specified for the emergency response capabilities (including the
fire-fighting capabilities) for a towage vessel or class of towage
vessel in a determination under subsection (1) must meet or
exceed standards specified by the Director, Transport Safety
under section 202B of the Marine Safety Act 2010.
Clause 103 substitutes section 73C(1) of, and inserts a new section 73C(1A)
into, the Port Management Act 1995 to require the Port of
Melbourne Corporation to publish notice of a proposal to make
a towage requirements determination in the Government
Gazette before making the determination. The new provisions
further provide that the Port of Melbourne is required at least
30 days before publishing a notice of a proposal to make a
towage requirements determination to consult with the port of
Melbourne operator.
50
Clause 104 amends section 73J(2) of the Port Management Act 1995
to include 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 the availability required for
such vessels that have emergency response capabilities
(including fire-fighting capabilities) as matters that may be the
subject of a towage conditions determination by the Port of
Melbourne Corporation.
Clause 105 inserts new section 73K(1)(ba) in the Port Management Act
1995, which prohibits the Port of Melbourne Corporation from
making a towage conditions determination that specifies a
standard that does not meet or exceed the relevant standard
specified by the Director, Transport Safety under section 202B
of the Marine Safety Act 2010.
Clause 106 substitutes section 73N(1) of the Port Management Act 1995
to provide that the Port of Melbourne Corporation must not
make a towage conditions determination unless it has first
consulted with the Director, Transport Safety and the port of
Melbourne operator.
Clause 107 inserts new section 74AA in the Port Management Act 1995
to define various words and expressions used in Part 5, namely,
anchorage fee, approved channel fee, approved wharfage fee
and designated State port entity.
anchorage fee is defined to mean a channel fee for the
provision of an anchorage.
approved channel fee is defined to mean a channel fee
approved by Order in Council under new section 74AB.
approved wharfage fee is defined to mean a wharfage fee
approved by Order in Council under new section 74AB.
designated State port entity is defined to mean the Port of
Melbourne Corporation and another public entity designated by
Order in Council under new section 74AB.
The clause also inserts new section 74AB in the Port
Management Act 1995, which authorises the Governor in
Council, by Order, to designate the Port of Melbourne
Corporation or another public entity as a designated State port
entity, to approve a wharfage fee determined by a designated
51
State port entity under section 74 of that Act as an approved
wharfage fee and to approve a channel fee (other than an
anchorage fee) determined by the Port of Melbourne
Corporation under section 75 of that Act as an approved
channel fee.
Clause 108 amends section 74 of the Port Management Act 1995 in
relation to wharfage fees.
Subclause (1) substitutes section 74(1) so that both the port of
Melbourne operator and a designated State port entity may
determine wharfage fees in respect of the provision of a site in
the port of Melbourne at which stevedoring operations may be
carried out.
Subclause (2) amends section 74(2) so that it is no longer
subject to Part 3 (Regulation of port services).
Subclause (3) inserts new section 74(2A) so that the calculation
of a wharfage fee by the port of Melbourne operator is subject
to Part 3.
Subclauses (4), (5) and (6) make consequential amendments to
section 74(3), (4) and (5) of the Port Management Act 1995.
Clause 109 amends section 75 of the Port Management Act 1995 in
relation to channel fees.
Subclause (1) amends section 75(1)(a)(i) of the Port
Management Act 1995 to omit the words "under this Act"
to recognise that the provision of a channel may occur
under this Act or otherwise. Subclause (1) also substitutes
section 75(1)(b) to provide that a channel operator may
determine fees for provision of channels by the channel operator
in the port waters of the channel operator and for any related
service and inserts new paragraph (c) in section 75(1) to provide
that the port of Melbourne operator may determine fees for the
provision of channels (other than anchorages) by the port of
Melbourne operator in port of Melbourne waters and for any
related service.
Subclause (2) substitutes section 75(2)(c) of the Port
Management Act 1995 to provide that channel fees may differ
according to the length of time that vessels are in relevant
waters.
52
Subclause (3) inserts new section 75(2A) in the Port
Management Act 1995 to provide that a channel fee
determined by the port of Melbourne operator is subject to
Part 3.
Subclause (4) makes a consequential amendment to
section 75(3) of the Port Management Act 1995.
Subclause (5) inserts new section 75(3A) in the Port
Management Act 1995 to provide that a channel fee
(other than an anchorage fee) determined by the Port of
Melbourne Corporation is not payable unless the fee is an
approved channel fee.
Subclause (6) makes a consequential amendment to
section 75(4) of the Port Management Act 1995.
Clause 110 amends section 78(1) of the Port Management Act 1995 to
provide that a wharfage fee or channel fee is payable on demand
by the port of Melbourne operator and the designated State port
entity, instead of the Port of Melbourne Corporation.
The clause also amends section 78(2) and (3) of the Port
Management Act 1995 to facilitate the collection of wharfage
and channel fees by the port of Melbourne operator and the
designated State port entity, instead of the Port of Melbourne
Corporation.
Clause 111 amends section 79(1) of the Port Management Act 1995 to
substitute a reference to the port of Melbourne operator and the
designated State port entity for the current reference to the Port
of Melbourne Corporation so that the port of Melbourne
operator and the designated State port entity have the discretion
to charge interest on unpaid wharfage and channel fees.
Clause 112 amends section 80 of the Port Management Act 1995 to
substitute a reference to the port of Melbourne operator and the
designated State port entity for the current references to the Port
of Melbourne Corporation so that the port of Melbourne
operator and the designated State port entity may exercise
various discretions in relation to the provision and appropriation
of a security deposit for the payment of wharfage or channel
fees and, in certain circumstances, the provision of further
security.
53
Clause 113 amends section 81(1) of the Port Management Act 1995 to
include a reference to the port of Melbourne operator in
consequence of the amendment to section 78 of the Port
Management Act 1995.
Clause 114 amends section 82 of the Port Management Act 1995 to
substitute a reference to the port of Melbourne operator and the
designated State port entity for the current reference to the Port
of Melbourne Corporation so that the port of Melbourne
operator and the designated State port entity may exercise
discretions to waive or refund wharfage or channel fees.
Clause 115 amends the definition of recommending authority in section 83
of the Port Management Act 1995 by inserting new
paragraph (ab) so that the port of Melbourne operator is the
recommending authority in respect of any area in respect of
which it may recommend as a restricted access area.
Clause 116 amends section 84 of the Port Management Act 1995 relating
to declarations of restricted access areas.
Subclause (1) amends section 84(1)(a) of the Port
Management Act 1995 to provide that the Minister, on
recommendation of the Port of Melbourne Corporation, may
declare that any part of port of Melbourne waters or port of
Melbourne land that is not leased port of Melbourne land
(not exceeding 12 square kilometres) that is specified in the
declaration is a restricted access area.
Subclause (2) inserts new section 84(1AA) in the Port
Management Act 1995 to provide that the Minister, on
recommendation of the port of Melbourne operator, may
declare that any part of leased port of Melbourne land
(not exceeding 12 square kilometres) that is specified in the
declaration is a restricted access area.
Clause 117 amends section 85 of the Port Management Act 1995 to
include a reference to section 84(1A) and (1AA) as a
consequence of the amendment to section 84 of the Port
Management Act 1995 by clause 116.
Clause 118 amends section 88J of the Port Management Act 1995 so that
the Port of Melbourne Corporation has pollution abatement
powers in respect of port of Melbourne waters and port of
Melbourne land that is not leased port of Melbourne land.
54
Clause 119 inserts new section 88JA in the Port Management Act 1995 so
that the port of Melbourne operator has pollution abatement
powers in respect of leased port of Melbourne land.
Clause 120 makes a consequential amendment to the heading of
section 88K of the Port Management Act 1995.
Clause 121 inserts new section 88KA in the Port Management Act 1995,
which provides that if the port of Melbourne operator conducts
a clean-up operation under new section 88JA, it may recover
any reasonable costs incurred by it from the person who caused
the circumstances that gave rise to the need for the clean up to
be conducted.
Clause 122 amends section 88M(1) of the Port Management Act 1995 so
that a person who proposes to carry out a hazardous activity in
port of Melbourne waters or on port of Melbourne land that is
not leased port of Melbourne land must give notice to the Port
of Melbourne Corporation before doing so.
The clause also inserts new section 88M(1A) in the Port
Management Act 1995 so that 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. In each case, a penalty of
20 penalty units applies.
Clause 123 substitutes section 88P of the Port Management Act 1995 so
that—

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; and

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.
In each case, a penalty of 60 penalty units applies.
55
Clause 124 amends section 88Q(1) and (2) of the Port Management Act
1995 so that—

the Port of Melbourne Corporation has certain removal
powers in relation to things left unattended for more
than one month in port of Melbourne waters or on port
of Melbourne land that is not leased port of Melbourne
land; and

the port of Melbourne operator has certain removal
powers in relation to things left unattended for more
than one month on leased port of Melbourne land.
Clause 125 amends section 88R(2) of the Port Management Act 1995 to
confer on the port of Melbourne operator powers to enter
vessels and vehicles for the purpose of conveniently or
expeditiously removing the vehicle or vessel when acting in
accordance with section 88Q.
Clause 126 amends section 88S of the Port Management Act 1995 to
require the port of Melbourne operator to make inquiries as to
the identity or location of the owner of unattended things
removed by the port of Melbourne operator.
Clause 127 amends section 88T(1), (2), (4) and (5) of the Port
Management Act 1995 to authorise the port of Melbourne
operator to dispose of unattended things in certain
circumstances and subject to giving certain notices.
Clause 128 amends section 88U(1) and (2) of the Port Management Act
1995 to authorise the port of Melbourne operator to recover the
cost of moving, storing or disposing of certain unattended
things from the owner of the thing.
Clause 129 amends section 88V(1) and (3)(b) of the Port Management
Act 1995 to require the port of Melbourne operator to pay to the
owner of any unattended thing disposed of by the port of
Melbourne operator under Division 4 of Part 5B the value of the
thing less the port of Melbourne operator's costs of moving,
storing or disposing of the thing.
Clause 130 amends section 88W of the Port Management Act 1995 to
provide that the port of Melbourne operator may recover the
costs of moving and disposing of a thing from the proceeds of
that disposal, and if the owner of the thing has not made a claim
56
under Division 4 of Part 5B of that Act within 12 months of the
disposal, any proceeds from the disposal, after recovery of any
costs, must be paid to the State.
Clause 131 inserts new Part 5C (Regulation of activities in the port of
Melbourne), which is comprised of new sections 88X to 88ZO,
into the Port Management Act 1995. New Part 5C provides
for a special regulatory regime for the port of Melbourne,
including provision for the regulation of activities at the port of
Melbourne by means of directions given by the port of
Melbourne operator for the purpose of maintaining or
improving safety and security at the port, and conferring
information gathering powers on the port of Melbourne
operator.
New Division 1 provides for relevant definitions for new
Part 5C.
New section 88X defines various words and expressions used in
Part 5C, namely, allowable purposes, authorised officer,
information direction, port operator direction and reportable
matter.
allowable purposes is defined to mean the purposes set out in
new section 88ZI(2).
authorised officer is defined to mean a person appointed under
new section 88ZL.
information direction is defined to mean a direction given
under new section 88ZI(1).
port operator direction is defined to mean a direction given
under new section 88Y(1).
reportable matter is defined in new section 88ZG.
New Division 2 provides for a port operator directions regime.
New section 88Y authorises the port of Melbourne operator to
give, for the purpose of maintaining or improving safety and
security on leased port of Melbourne land, directions regulating
or prohibiting specified activities on that land.
New section 88Z provides for the manner in which port
operator directions may be given.
New section 88ZA provides for the manner in which port
operator directions may be enforced.
57
New section 88ZB authorises the port of Melbourne operator to
recover costs incurred in enforcing compliance with a port
operator direction from a person who fails to comply.
New section 88ZC provides that 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 remedy a contravention unless the port of
Melbourne operator has given the person advance notice of the
proposed work in the specified manner.
New section 88ZD authorises the port of Melbourne operator to
enter any premises on leased port of Melbourne land at any time
for the purpose of ascertaining compliance with a port operator
direction and taking authorised compliance action.
New section 88ZE provides that the functions and powers of the
port of Melbourne operator in relation to port operator
directions may be performed or exercised on its behalf by an
authorised officer.
New section 88ZF prohibits a person from obstructing or
otherwise interfering with an authorised officer when the officer
is performing a function or exercising a power under Division 2
of Part 5C. A penalty of 60 penalty units applies.
New section 88ZG requires the port of Melbourne operator to
provide details to the Minister within 3 months of specified
reportable matters in relation to port operator directions on a 6
monthly basis and as and when directed to do so by the Minister
by written notice. Reportable matters comprise the giving of a
port operator direction by the port of Melbourne operator, any
such port operator direction ceasing to have effect, any
contravention of such a port operator direction of which the port
of Melbourne operator is aware, any exercise by the port of
Melbourne operator of power under section 88ZD and any
action taken by the port of Melbourne operator to enforce
compliance with the port operator direction authorised to be
taken under Part 5C.
New section 88ZH requires the Minister to publish reports and
statements based on information provided to the Minister under
section 88ZG about reportable matters subject to requirements
that any such report or statement must not include information
that identifies a person or is likely to lead to the identification of
58
a person as a person who has contravened a port operator
direction and that 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.
New Division 3 provides for an information gathering regime
for the port of Melbourne operator.
New section 88ZI authorises the port of Melbourne operator
to issue information directions requiring specified persons
to provide relevant information for allowable purposes,
including monitoring compliance with port operator directions,
determining liability for wharfage and channel fees, compiling
statistics and coordinating communication at the port.
The specified persons comprise masters of vessels berthing at
the port, shipping agents, consignors or consignees for goods
shipped to, from or within the port and operators of stevedoring
or other facilities at the port.
New section 88ZJ authorises the port of Melbourne operator to
use and disclose information provided to it in compliance with
an information direction for any allowable purpose for which it
is authorised to acquire the information.
New section 88ZK contains provisions dealing with compliance
with information directions—

new subsection (1) creates an offence of failing to
comply with an information direction without a
reasonable excuse. A penalty of 120 penalty units
applies in the case of a natural person and 600 penalty
units in the case of a body corporate;

new subsection (2) provides that a duty of
confidentiality is not a reasonable excuse for failure to
comply with an information direction. The duty of
confidentiality is intended to have its common law
meaning;

new subsection (3) creates an offence of providing
information in purported compliance with an
information direction given to the person that the person
knows or ought reasonably to know is false or
misleading in a material particular. A penalty of
120 penalty units applies in the case of a natural person
and 600 penalty units in the case of a body corporate;
59

new subsection (4) provides that provision of
information that would otherwise constitute a breach of
confidentiality is not such a breach if provided in
compliance with an information direction.
New Division 4 provides for the appointment of authorised
officers and identity cards.
New section 88ZL authorises the chief executive officer of the
port of Melbourne operator, by instrument, to 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 Part 5C. The chief executive officer
may, by instrument, delegate their power to an officer or
employee of the port of Melbourne operator.
New section 88ZM requires the port of Melbourne operator to
cause to be issued an identity card to an authorised officer
appointed under section 88ZL, which states their name and
appointment and includes any other prescribed matter.
New section 88ZN requires a person who ceases to be an
authorised officer to return their identity card to the port of
Melbourne operator as soon as practicable. A penalty of
60 penalty units applies.
New section 88ZO contains provisions dealing with the
production of an identity card—

new subsection (1) requires an authorised officer to
produce their identity card for inspection before
exercising a power under Part 5C or when asked to do
so. A penalty of 5 penalty units applies;

new subsection (2) provides that an authorised officer
need not produce their identity card when asked to do so
if the authorised officer reasonably believes that such
production would affect the safety or welfare of any
person or if the request for production 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 Part 5C;

new subsection (3) provides that an officer's failure to
produce their identity card does not invalidate an action
taken or thing done by the officer under Part 5C.
60
Clause 132 inserts new section 91BA in the Port Management Act 1995,
which extends the meaning of port manager for the purposes of
Part 6A of that Act so that the port of Melbourne operator is
also a port manager in respect of a part of the port of Melbourne
when carrying out channel-dredging activities, or establishing
or maintaining navigational aids in connection with navigation,
in port of Melbourne waters.
Clause 133 amends section 91C(2)(a) and (b) and (4)(a) of the Port
Management Act 1995 so that the port manager's obligations
in relation to management plans apply to a port or the relevant
part of a port.
Clause 134 amends section 91D(1)(f) and (h) and (2) and (3) of the Port
Management Act 1995 so that the requirements applicable to
management plans relate to a port or the relevant part of a port.
Clause 135 amends section 91E(1) and (2) of the Port Management Act
1995 so that the audit requirements apply to management plans
in respect of a commercial trading port or the relevant part of a
commercial trading port.
Clause 136 amends section 91H(1), (3)(a) and (b), (4) and (5) of the Port
Management Act 1995 so that the Minister is authorised to
give the specified directions in relation to management plans for
a port or the relevant part of a port.
Clause 137 amends section 91HB(1) of the Port Management Act 1995 so
that specified reports may be provided in relation to the safety
and environmental performance outcomes for a port or the
relevant part of a port.
Clause 138 substitutes paragraph (a) of the definition of relevant port
authority in section 91J of the Port Management Act 1995 so
that, in the case of the port of Melbourne, the relevant port
authority is the port of Melbourne operator, instead of the Port
of Melbourne Corporation.
Clause 139 amends section 91K(1) of the Port Management Act 1995 so
that relevant port authorities must prepare port development
strategies at intervals of 5 years, instead of 4 years.
61
Clause 140 amends section 98 of the Port Management Act 1995 in
relation to regulations.
Subclause (1) inserts new subsection (1A) in section 98 of the
Port Management Act 1995 so that the Governor in Council is
given a general regulation-making power.
Subclause (2) inserts new paragraphs (aa) and (aab) in
section 98(2) of the Port Management Act 1995 to provide
that regulations may be made so as to be of general or limited
application or differ according to differences in time, place or
circumstances.
Subclause (3) repeals section 98(2)(a)(i) of the Port
Management Act 1995 to remove any overlap with the new
regulation making powers being inserted by subclause (2).
Division 3—Amendment of Marine Safety Act 2010
Clause 141 inserts new definitions in section 3(1) of the Marine Safety Act
2010, namely, Emergency Management Commissioner and
port of Melbourne operator.
Emergency Management Commissioner adopts the meaning
used in the Emergency Management Act 2013.
port of Melbourne operator adopts the meaning used in the
Port Management Act 1995.
The clause also amends paragraph (a) in the definition of port
management body in section 3(1) of the Marine Safety Act
2010 so that it applies to the Port of Melbourne Corporation
when performing functions and exercising powers in the port of
Melbourne.
Clause 142 amends section 15(1)(e) of the Marine Safety Act 2010 to
include a reference to the port of Melbourne operator in the list
of bodies subject to the principle of shared responsibility for
marine safety.
Clause 143 inserts new Part 2.2A (Safety duty of port of Melbourne
operator), which is comprised of new section 25, in the Marine
Safety Act 2010, which sets out the marine safety duties of the
port of Melbourne operator.
62
New section 25(1) provides that the port of Melbourne operator
must, so far as is reasonably practicable, ensure the safety of
marine safety infrastructure operations carried out or supplied to
it in the port of Melbourne.
The port of Melbourne operator contravenes this duty if it fails
to do the particular things set out in new section 25(2),
including if it fails to provide or maintain marine safety
infrastructure that is, so far as is reasonably practicable, safe.
New section 25(2) is inclusive and a person may breach
subsection (1) even if there is no failure set out in
subsection (2).
If the port of Melbourne operator contravenes new
section 25(1), it is guilty of an indictable offence under new
section 25(3) and is liable to a fine not exceeding 1800 penalty
units (for a natural person) or 9000 penalty units (for a body
corporate).
Clause 144 substitutes section 200 of the Marine Safety Act 2010 to
require the Safety Director before making a determination under
section 199 of the Marine Safety Act 2010 to consult with
every port management body, local port manager or waterway
manager that the Director considers will need to comply with
the determination and the port of Melbourne operator if it will
need to comply with the determination.
Clause 145 amends section 202 of the Marine Safety Act 2010 so that the
port of Melbourne operator is included in the list of persons
who commit an offence by failing to comply with a standard
determined under section 199 of the Marine Safety Act 2010.
Clause 146 inserts new Part 5.2A—Standards for emergency response
capabilities of towage vessels in port waters (new sections 202A
to 202D) in the Marine Safety Act 2010.
New section 202A defines various words and expressions used
in Part 5.2A, namely, commercial trading port, towage service
and towage vessel.
Commercial trading port, towage service and towage vessel
adopt the meanings used in the Port Management Act 1995.
63
New section 202B provides that the Safety Director, by notice,
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.
New section 202C requires the Safety Director to consult
with specified persons before making a determination under
section 202B.
New section 202D specifies matters to which the Safety
Director must have regard in making a determination under
section 202B.
Clause 147 amends section 261(1) of the Marine Safety Act 2010 so that
the Safety Director is authorised to provide or maintain
navigation aids and carry out dredging and maintenance of
channels if the port of Melbourne operator does not comply
with a relevant standard developed by the Safety Director under
Part 5.2 of the Marine Safety Act 2010.
Clause 148 amends section 263(a) of the Marine Safety Act 2010 so that
the Safety Director is authorised to recover, as a civil debt, from
the port of Melbourne operator the cost of doing something
under section 261 of the Marine Safety Act 2010 pursuant to
non-compliance by the port of Melbourne operator.
Clause 149 amends section 271(1) of the Marine Safety Act 2010 so that
the Minister is authorised to purchase or compulsorily acquire
any land which is or may be required by the port of Melbourne
operator for or in connection with, or as incidental to, the
provision of a navigation aid for State waters.
Division 4—Amendment of Marine (Drug, Alcohol and Pollution
Control) Act 1988
Clause 150 amends paragraph (a) in the definition of port management
body in section 3(1) of the Marine (Drug, Alcohol and
Pollution Control) Act 1988 so that it applies to the Port of
Melbourne Corporation only when it is performing functions
and exercising powers in the port of Melbourne.
64
Division 5—Amendment of Essential Services Commission
Act 2001
Clause 151 amends the definition of empowering instrument in section 3
of the Essential Services Commission Act 2001 to include a
"port Pricing Order" (being an Order made under new
section 49A of the Port Management Act 1995 as inserted by
clause 91) as a new type of empowering instrument. Giving a
"port Pricing Order" the status of an empowering instrument
provides flexibility to specify matters which impact the
Commission's performance of its functions and exercise of its
powers under sections 8A, 33, 34 and 35 of the Essential
Services Commission Act 2001 in the "port Pricing Order",
rather than having to specify such matters in another
empowering instrument (that is, the Port Management Act
1995, which is "relevant legislation" for the purposes of
paragraph (a) of the definition of empowering instrument).
Clause 151 also inserts definitions of Commission port Pricing
Order decision and port Pricing Order into section 3 of the
Essential Services Commission Act 2001.
Clause 152 inserts new section 4(9) in the Essential Services Commission
Act 2001 to prevent an Order declaring a regulated industry to
be made under section 4(1) of that Act in respect of the port of
Melbourne while a port Pricing Order is in effect. While a port
Pricing Order is in effect, it is intended that any amendments to
the port of Melbourne regulatory regime established under a
port Pricing Order occur only in accordance with the tailored
process contained in new Divisions 2 and 2A of Part 3 of the
Port Management Act 1995. See clause notes 91 and 92 for
further details on amendments to a port Pricing Order.
Clause 153 amends section 55 of the Essential Services Commission Act
2001 to give an aggrieved person appeal rights in respect of new
specified types of decisions by the Commission.
Subclause (1) inserts the following types of decisions into
section 55(1) of the Essential Services Commission Act 2001
(being section 55(1)(d) and (e) respectively) as decisions of the
Commission which may be appealed by an aggrieved person in
accordance with Part 7 of the Essential Services Commission
Act 2001—
65

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 to which a port Pricing Order applies has not
complied with the port Pricing Order in a significant
and sustained manner; or

a "Commission port Pricing Order decision" (being a
decision made under a provision of a port Pricing Order
that is prescribed in regulations made under the
Essential Services Commission Act 2001).
Subclause (2) amends section 55(1A) of the Essential Services
Commission Act 2001 to preclude a person who represents a
consumer or user group from being entitled to appeal against a
decision or determination contemplated by new section 55(1)(d)
or (e).
Subclause (3) inserts into section 55(2) of the Essential
Services Commission Act 2001 the following grounds for an
appeal of the decisions of the Commission referred to in new
section 55(1)(d) and (e) of the Essential Services Commission
Act 2001—

that the decision was not made in accordance with the
law;

that the decision is unreasonable having regard to all the
relevant circumstances.
Reference to "all the relevant circumstances" includes factual
circumstances and errors of fact.
Subclause (4) amends section 55(3) of the Essential Services
Commission Act 2001 to enable the aggrieved person to give
notice of appeal against a decision of the Commission referred
to—

under new section 55(1)(d) of the Essential Services
Commission Act 2001 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 of the
Essential Services Commission Act 2001; and
66

under new section 55(1)(e) of the Essential Services
Commission Act 2001 within 14 working days after the
Commission port Pricing Order decision is made.
Subclause (5) inserts new section 55(7) and (8) in the
Essential Services Commission Act 2001 which provides
that a decision of the Commission referred to in new
section 55(1)(d) or Commission port Pricing Order referred
to in new section 55(1)(e) that is being appealed continues in
effect until the appeal is determined.
Clause 154 amends section 56 of the Essential Services Commission Act
2001 to set out, in respect of an appeal of a decision of the
Commission (see clause note 153(1)), the timing for
determination of the appeal and specific powers of the appeal
panel.
Subclause (1) amends section 56(4)(b) of the Essential
Services Commission Act 2001 to provide that the appeal of a
decision referred to in new section 55(1)(d) or (e) of that Act
(as inserted by clause 153(1)) must be heard and decided
within 30 working days of the appeal panel being constituted.
This timing is consistent with the longer timing afforded to the
appeal panel for appeals of a determination of the Commission
pursuant to section 55(1)(c) of the Essential Services
Commission Act 2001.
Subclause (2) inserts new section 56(7)(e) and (f) in the
Essential Services Commission Act 2001 the following
powers of the appeal panel in granting an appeal of a decision
referred to in new section 55(1)(d) or (e) of that Act (as inserted
by clause 153(1))—

the power to affirm or vary the decision of the
Commission; or

the power to set aside the decision of the Commission
and remit it to the Commission for amendment of the
decision.
Subclause (3) amends section 56(11) of the Essential Services
Commission Act 2001 to reference appeals of the decisions
specified in new section 55(1)(d) or (e) of that Act (as inserted
by clause 153(1)). This amendment is intended to ensure
consistency in the Commission's onus of proof across all
appealable decisions under section 55(1) of the Essential
67
Services Commission Act 2001 where the grounds for appeal
are equivalent to those referred to in section 55(2) of that Act
(as amended by clause 153).
Division 6—Amendment of Land Act 1958
Clause 155 inserts a definition in section 384(1) of the Land Act 1958,
namely, port of Melbourne operator.
Port of Melbourne operator adopts the meaning used in the
Port Management Act 1995.
Clause 156 amends section 385(2) of the Land Act 1958 so that any right
of the port of Melbourne operator in the bed and banks of the
River Yarra and all other public rivers, creeks and watercourses
within the waterway management district of the Melbourne
Water Corporation is not affected by the operation of
section 385 of the Land Act 1958 which provides that land
bounded in whole or in part by a watercourse and alienated by
the Crown remains the property of the Crown.
Division 7—Repeal of amending Part
Clause 157 repeals Part 8 of the Bill on the first anniversary of the first day
on which all of its provisions are in operation. This repeal does
not affect the continuing operation of the amendments made by
the Part (see section 15(1) of the Interpretation of Legislation
Act 1984).
Part 9—Port of Melbourne Corporation name change
amendments
Division 1—Amendment of Transport Integration Act 2010
Clause 158 inserts a definition in section 3 of the Transport Integration
Act 2010, namely, Victorian Ports Corporation (Melbourne).
Victorian Ports Corporation (Melbourne) is defined to mean
the body corporate continued under section 141B of the
Transport Integration Act 2010.
The clause also repeals the definition of Port of Melbourne
Corporation in section 3 of the Transport Integration Act
2010 and amends the definitions of transport body and
Transport Corporation in section 3 of the Transport
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Integration Act 2010 to substitute a reference to the Victorian
Ports Corporation (Melbourne) for the current references to the
Port of Melbourne Corporation in specified paragraphs.
Clause 159 makes a consequential amendment to the heading to
Division 3A of Part 6 of the Transport Integration Act 2010
by substituting the existing heading with a heading which
reflects the change in the name of the Port of Melbourne
Corporation to Ports Corporation (Melbourne).
Clause 160 makes a consequential amendment to the heading to
section 141B of the Transport Integration Act 2010.
The clause also inserts new subsections (3) and (4) in
section 141B of the Transport Integration Act 2010 to
provide that 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 Bill, and on and after the
commencement of clause 160, any reference in any other Act,
regulation, instrument or document to the Port of Melbourne
Corporation is to be construed as a reference to the Victorian
Ports Corporation (Melbourne).
Division 2—Consequential amendments
Clause 161 makes a consequential amendment to the definition of Port
Corporation in clause 3.
Clause 162 provides that on the commencement of an item in Schedule 1,
the Act specified in the heading to that item is amended as set
out in the item.
Division 3—Repeal of amending Part and Schedule 1
Clause 163 repeals Part 9 of, and Schedule 1 to, the Bill on the first
anniversary of the first day on which all of the provisions of the
Part are in operation. This repeal does not affect the continuing
operation of the amendments made by Part 9 and Schedule 1
(see section 15(1) of the Interpretation of Legislation Act
1984).
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Schedule 1—Consequential amendments
Schedule 1 makes consequential amendments to the Borrowing and
Investment Powers Act 1987, Docklands Act 1991, Land Act 1958,
Marine Safety Act 2010, Marine (Drug, Alcohol and Pollution Control)
Act 1988, Metropolitan Fire Brigades Act 1958, Port Management Act
1995, Transport Integration Act 2010, Transport (Compliance and
Miscellaneous) Act 1983 and Treasury Corporation of Victoria Act 1992
to reflect the name change from the Port of Melbourne Corporation to the
Victorian Ports Corporation (Melbourne) by Part 9 of the Bill.
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