Port Services Act 1995

Port Services Act 1995

No. 82 of 1995

TABLE OF PROVISIONS Section

PART 1—PRELIMINARY

1. Purpose 2. Commencement 3. Definitions 4. Owner of vessel or cargo 5. Orders in Council 6. MPC subsidiary 7. Subsidiary 8. Crown to be bound 9: Extra-territorial operation

PART 2—PORT CORPORATIONS

Division 1—Melbourne Port Corporation

10. Establishment 11. MPC not to represent the Crown 12. Objective 13. Functions and powers 14. Closure of roads 15. Declaration of roads 16. Municipal rates 17. Financial benefit on arm's length terms

Division 2—Victorian Channels Authority

18. Establishment 19. VCA not to represent the Crown 20. Objective 21. Functions and powers 22. Dredging

Division 3—General

23. Accountability for damage 24. Liability of certain persons 25. Schedule 1 26. Delegation 27. Borrowing and investment by port corporations 28. Duties of directors 29. Port corporation or Minister may bring proceedings 30. Directions 31. Port corporation not to make loans to directors

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32. Indemnity 33. Corporate plan 34. Statement of corporate intent: contents 35. Corporate plan to be followed 36. Nothing void merely because of non-compliance 37. Board to give notice of significant events 38. Non-commercial functions 39. Determination of initial capital 40. Capital 41. Repayment of capital 42. Dividends 43. Reports to Minister or Treasurer 44. Annual report

PART 3—REGULATION OF PORT SERVICES

Division 1—Preliminary

45. Definitions 46. Construction of Part 47. Application of Part 48. Objectives of the Office 49. Powers in relation to price regulation

Division 2—Pricing Orders

50. Pricing Orders 51. Existing contracts 52. Sunset

Division 3—General Powers

53. Conduct of inquiries 54. General power to make price determinations 55. Standards and conditions of service and supply 56. Financial and business records 57. Restriction on disclosure of confidential information

Division 4—Access

58. Application of Division 59. Obligations of channel operator 60. Procedure if disputes arise 61. Hindering access 62. Inquiry about channels 63. Application for general determination

PART 4—CROWN LAND

Division 1—Port of Melbourne

64. Divesting of Crown land from PMA

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65. MPC to manage land 66. Revocation of reservations 67. Issue of Crown grant

Division 2—Port of Geelong

68. Revocation of reservations 69. Issue of Crown grant

Division 3—Port of Portland

70. Revocation of reservations 71. Issue of Crown grant


72. Registrar-General and Registrar of Titles to amend records 73. Exemption from stamp duty and other taxes

PART 5—PORT CHARGES

74. Wharfage charge 75. Channel usage charge 76. Port promotion levy 77. Port Promotion Fund 78. Payment and collection of wharfage or channel usage charge 79. Interest on overdue payments 80. Security for payment of wharfage and channel usage charges 81. Liability of current owners and agents 82. Waiver or refund of wharfage or channel usage charges

PART 6—HARBOUR MASTERS

83. Engagement of harbour masters 84. General functions of harbour master 85. Authorisation of person to exercise functions of harbour master 86. General powers of harbour master in relation to vessels 87. Powers of harbour master to give directions 88. Harbour master may carry out direction 89. Offence to fail to comply with direction, or obstruct, harbour master 90. Identity cards 91. Protection from liability

PART 7—GENERAL

92. Port corporation may act under certain agreements and instruments 93. Amendment of planning schemes 94. Offences by bodies corporate 95. Service of documents on port corporation 96. Treasurer may give guarantee 97. Trade Practices Act 1974 of the Commonwealth 98. Regulations

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PART 8—TRANSFER OF PROPERTY


99. Definitions

Division 2—Transfer by operation of Act

100. Transfer of certain port authority property to MPC

Division 3—Transfer by allocation

101. Treasurer may direct transfer of property 102. Property transferred in accordance with direction 103. Allocation of property etc. subject to encumbrances 104. Payments in respect of financial obligations


105. Certificate of chief executive officer 106. Value of former port authority property 107. Substitution of party to agreement 108. Former port authority instruments 109. Proceedings 110. Interests in land 111. Amendment of Register 112. Taxes 113. Evidence 114. Validity of things done under this Part

Division 5—Rights as between Transferees

115. Interim arrangements 116. Easements

PART 9—STAFF

117. Definitions 118. Rights of port authority staff 119. Superannuation—continuing membership 120. Superannuation—transfer to Local Authorities Superannuation Fund—designated

port employees 121. Superannuation—change of employment—designated port employees 122. Superannuation—contributions—designated port employees 123. Superannuation—private sector employment—regional port employees 124. Taxes 125. Appropriation

PART 10—AMENDMENT OF PORT ACTS

Division 1—Port of Melbourne Authority Act 1958

126. Definitions 127. Associated ports

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128. Powers of PMA 129. New section 11 inserted

11. Treasurer may give directions to Authority 130. New section 28 inserted

28. Annual report 131. New sections 50A, 50B and 50c substituted

50A. Treasurer's approval required 50B. Land tax 50c. Validation of certain leases

132. Municipal rates 133. New sections 56, 56A and 56B inserted

56. Formation of companies 56A. Treasurer may exercise certain Authority powers 56B. Indemnity

134. Proceeds of sale 135. Repeal of certain provisions of Port of Melbourne Authority Act

Division 2—Port of Geelong Authority Act 1958

136. Definitions 137. Associated ports 138. New sections 4A to 4c inserted

4A. Additional powers 4B. Formation of companies 4c. Indemnity

139. New section 6A substituted 6A. Treasurer may give directions to Authority

140. New section 9A inserted 9A. Annual report

141. New sections 25, 26, 26A, 26B, and 26c substituted 25. Treasurer's approval required 26. Rates and land tax 26A. Validation of certain leases 26B. Treasurer may exercise certain Authority powers 26c. Non-application of Sale of Land Act

142. Municipal rates 143. Proceeds of sale 144. Repeal of certain provisions of Port of Geelong Authority Act

Division 3—Port of Portland Authority Act 1958

145. Definitions 146. Associated ports 147. New sections 4A to 4c inserted

4A. Additional powers 4B. Formation of companies 4c. Indemnity

148. New sections 6B and 6c inserted 6B. Treasurer may give directions to Authority 6c. Annual report

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149. New section 17B substituted and new sections 17c to 17F inserted 17B. Treasurer's approval required 17c. Rates and land tax 17D. Validation of certain leases 1 7E. Treasurer may exercise certain Authority powers 1 7F. Non-application of Sale of Land Act

150. Municipal rates 151. Proceeds of sale 152. Repeal of certain provisions of Port of Portland Authority Act

PART 11—AMENDMENT OF MARINE ACT 1988

153. Definitions 154. Removal of references to Port Authorities 155. Boating activities 156. Authorised officers 157. New section 20A inserted

20A. Damage, etc. to be reported 158. Acts tending to endanger vessel or crew 159. New Part 3A inserted

PART 3A—HARBOUR MASTERS

26A. Engagement of harbour masters 26B. General functions of harbour master 26c. Authorisation of person to exercise functions of harbour master 26D. General powers of harbour master in relation to vessels 26E. Powers of harbour master to give directions 26F. Harbour master may carry out direction 26G. Offence to fail to comply with direction, or obstruct, harbour master 26H. Identity cards 26I. Protection from liability

160. Pollution 161. Amendment of section 49 162. Establishment of the Board 163. Objectives of the Board 164. Functions of the Board 165. New sections 66A to 66D inserted

66A. Acquisition of land 66B. Recovery of costs 66c. Protection of Board from liability 66D. Protection from liability (Victorian Marine Pollution Contingency Plan)

166. Publication of directions 167. New sections 69 to 74E substituted

69. Board of directors 70. Terms and conditions of appointment 71. Vacancies, resignations, removal from office 72. Validity of decisions 73. Proceedings of board 74. Resolutions without meetings

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74A. Disclosure of interests 74B. Duties of directors 74c. Minister may bring proceedings 74D. Board not to make loans to directors 74E. Indemnity

168. New section 76 substituted 76. Delegation

169. Inspections and investigations 170. New section 85A inserted in Part 9

85A. Powers of entry in relation to lights 171. New section 91A inserted

91A. Accountability for damage 172. New section 92A inserted

92A. Offence to fail to comply with certain directions, etc. 173. Offence with respect to harbour masters 174. Offence not to use a pilot 175. New section 98 substituted

98. Unsafe vessels 176. Service 177. Fees, rates and charges 178. Repeal of Division 4 of Part 10 179. Particular powers of the Board 180. Subject matter for regulations

PART 12—AMENDMENT OF POLLUTION OF WATERS BY OIL AND NOXIOUS SUBSTANCES ACT 1986

181. Definitions 182. Delegation 183. New Division 2D inserted

Division 2D—Discharges

23H. Definitions 23i. Environment Protection Act prevails 23J. Prohibited discharge into State waters 23K. Discharge from ships 23L. Duty to report discharges

184. Power to prosecute and application of penalties 185. Reception facilities 186. Amendment of section 27 187. Section 28 substituted

28. Enforcement provisions 188. New section 34A inserted

34A. Execution of documents by Authority 189. Consequential amendments

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PART 13—AMENDMENT OF DANGEROUS GOODS ACT 1985

190. Definition 191. Application of Act 192. Ships 193. Subject-matter for regulations

PART 14—AMENDMENT OF OTHER ACTS 194. Borrowing and Investment Powers Act 1987 195. Treasury Corporation of Victoria Act 1992 196. Amendment of Ports Acts (Amendment) Act 1995 197. Amendment of Westernport Development Act 1967 198. New section 6 inserted in Westernport Development Act 1967

6. Variation of Agreement 199. Amendment of Western Port (Steel Works) Act 1970 200. New section 4A inserted in Western Port (Steel Works) Act 1970

4A. Variation of Agreement 201. Bayside Project Act 1988 202. Docklands Authority Act 1991 203. Environment Protection Act 1970 204. Historic Buildings Act 1981 205. Land Act 1958 206. Metropolitan Fire Brigades Act 1958 207. Melbourne and Metropolitan Board of Works Act 1958

SCHEDULE 1

PROVISIONS APPLYING TO PORT CORPORATIONS

1. Board of directors 2. Constitution of board 3. Appointment of directors 4. Terms and conditions of appointment 5. Acting appointments 6. Chief executive officer and other staff 7. Vacancies, resignations, removal from office 8. Validity of decisions 9. Proceedings of board

10. Resolutions without meetings 11. Disclosure of interests

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Victoria

No. 82 of 1995

Port Services Act 1995

[Assented to 28 November 1995]

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

1. Purpose

The main purpose of this Act is—

(a) to establish the Melbourne Port Corporation and the Victorian Channels Authority; and

(b) to provide for the economic regulation of certain port services; and

(c) to provide for the imposition of certain port charges; and

(d) to require the engagement of licensed harbour masters in certain circumstances and set out their functions; and

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(e) to provide for the transfer of property, rights and liabilities and the management of Crown land and to make provision with respect to the rights of staff; and

(/) to amend the Port of Melbourne Authority Act 1958, the Port of Geelong Authority Act 1958, the Port of Portland Authority Act 1958, the Marine Act 1988, the Pollution of Waters by Oil and Noxious Substances Act 1986 and the Dangerous Goods Act 1985.

2. Commencement

(1) This Part and section 189 (7) and (8) come into operation on the day on which this Act receives the Royal Assent.

(2) Subject to sub-section (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

(3) If a provision referred to in sub-section (2) does not come into operation within the period of 12 months beginning on, and including, the day on which this Act receives the Royal Assent, it comes into operation on the first day after the end of that period.

3. Definitions

In this Act—

"board", in relation to a port corporation, means the board of directors of the port corporation;

"cargo" includes any substance or article and any container or other item used to contain any substance or article;

"channel" includes swinging basin, turning circle, an area alongside a berth or dock, fairway and anchorage;

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"channel operator" means a person who manages channels in port waters under an arrangement with VCA;

"coastal vested land" means— (a) in relation to PGA, Crown land—

(i) that is vested in PGA and that was so vested by or under the Port of Geelong Authority Act 1958; and

(ii) that is coastal Crown land within the meaning of the Coastal Management Act 1995;

(b) in relation to PPA, Crown land— (i) that is vested in PPA and that was so

vested by or under the Port of Portland Authority Act 1958; and

(ii) that is coastal Crown land within the meaning of the Coastal Management Act 1995—

but does not include any land vested in PGA or PPA that is declared by Order in Council under section 5 (4) not to be coastal vested land for the purposes of this Act;

"development" includes— (a) the construction, extension, demolition or

removal of a building or works; (b) the decoration or alteration of the inside or

outside of a building or the alteration of works;

(c) the subdivision or consolidation of land, airspace or buildings;

(d) the installation, provision or operation of facilities or services;

"harbour master" includes a person authorised by a harbour master under section 85 to exercise the functions of the harbour master;

"instrument" includes a document and an oral agreement;

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"liabilities" means all liabilities, duties and obligations, whether actual, contingent or prospective;

"licensed harbour master" means a harbour master licensed by the Marine Board under the Marine Act 1988;

"managed land" means land to which section 65 applies;

"Marine Board" means Marine Board of Victoria established under Part 8 of the Marine Act 1988;

"Melbourne port area" means—

(a) managed land; and

(b) land to which section 67 or 100 applies while owned by MPC;

"MPC" means Melbourne Port Corporation established by Division 1 of Part 2;

"navigation aid" means a device used for the safety of navigation including a beacon, buoy or marine mark but not including a device on board a vessel;

"owner", in relation to a vessel or cargo, means owner within the meaning of section 4;

"PGA" means Port of Geelong Authority;

"PMA" means Port of Melbourne Authority;

"port authority" means Port of Melbourne Authority, Port of Geelong Authority or Port of Portland Authority;

"port corporation" means Melbourne Port Corporation or Victorian Channels Authority and, in section 30 and Parts 8 and 9, includes the subsidiary of MPC that is the declared subsidiary under section 6;

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Port Services Act 1995 Act No. 82/1995

"port land" means— (a) in relation to the port of Melbourne, the

Melbourne port area; (b) in relation to the port of Geelong, Portland

or Hastings, the land declared by Order in Council made under section 5 (1) to be the port land of that port;

"port operator" means a person who owns the business of, or is responsible for the management and operations of, the port of Geelong, Portland or Hastings or a berth located in one of those ports but does not include a port authority;

"port waters", in relation to the port of Melbourne, Geelong, Portland or Hastings, means the waters declared by Order in Council made under section 5 (2) to be the port waters of that port;

"PPA" means Port of Portland Authority;

"property" means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description;

"rights" means all rights, powers, privileges and immunities, whether actual, contingent or prospective;

"stevedoring" means the loading or unloading of the cargo of a vessel and incidental activities such as the handling or storage of cargo or stevedoring equipment at the place at which the cargo is loaded or unloaded;

"VCA" means Victorian Channels Authority established by Division 2 of Part 2;

"vessel" means any kind of vessel that is used, or capable of being used, in navigation by water, however propelled or moved, and includes— (a) a barge, lighter, floating restaurant or other

floating vessel; and

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(b) an air-cushion vehicle, or other similar craft, that is used in navigation by water;

"works" includes— (a) any change to the natural or existing

condition or topography of land;

(b) the removal of vegetation or topsoil; (c) land reclamation and land

decontamination; (d) the construction, demolition or substantial

alteration of any structure in or on land; (e) dredging.

4. Owner of vessel or cargo

(1) A reference in this Act to the owner of a vessel includes a reference to— (a) a person to whom the vessel belongs; or

(b) a person who has chartered the vessel.

(2) A reference in this Act to the owner of a vessel or cargo includes a reference to any person who, whether on the person's own behalf or on behalf of another—

(a) exercises any of the functions of the owner of the vessel or cargo; or

(b) represents to MPC, VCA or a port operator that the person has those functions or accepts the obligation to exercise those functions.

(3) For the purposes of this Act, a person does not cease to be an owner of a vessel because the vessel is mortgaged, chartered, leased or hired to another person.

5. Orders in Council

(1) The Governor in Council may, by Order published in the Government Gazette, declare any lands, or 2 or more areas of lands, to be the port land of the port of Geelong, the port of Portland or the port of Hastings.

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(2) The Governor in Council may, by Order published in the Government Gazette, declare any waters, or 2 or more areas of waters, to be the port waters of the port of Melbourne, the port of Geelong, the port of Portland or the port of Hastings.

(3) An Order under sub-section (1) or (2) must contain a description of the port land or port waters that is sufficient to identify it and to define its boundaries.

(4) The Governor in Council may on the recommendation of the Minister administering the Crown Land (Reserves) Act 1978, by Order published in the Government Gazette, declare any land vested in PGA or PPA not to be coastal vested land for the purposes of this Act.

6. MPC subsidiary

The Governor in Council may, by Order published in the Government Gazette, declare a subsidiary of MPC to be the declared subsidiary for the purposes of section 17 and Parts 8 and 9.

7. Subsidiary

For the purposes of this Act, the question whether a body corporate is a subsidiary of MPC or VCA shall be determined in the same manner as the question would be determined under the Corporations Law of Victoria if MPC or VCA and the body corporate were corporations within the meaning of that Law.

8. Crown to be bound

This Act binds the Crown, not only in right of Victoria but also, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

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9. Extra-territorial operation

It is the intention of the Parliament that the operation of this Act should, so far as possible, include operation in relation to the following— (a) land situated outside Victoria, whether in or

outside Australia; (b) things situated outside Victoria, whether in or

outside Australia; (c) acts, transactions and matters done, entered into

or occurring outside Victoria, whether in or outside Australia;

(d) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Act, be governed or otherwise affected by the law of the Commonwealth, another State, a Territory or a foreign country.

PART 2—PORT CORPORATIONS

Division 1—Melbourne Port Corporation

10. Establishment

(1) There is established a body by the name "Melbourne Port Corporation".

(2) MPC—

(a) is a body corporate with perpetual succession;

(b) has an official seal;

(c) may sue and be sued;

(d) may acquire, hold and dispose of real and personal property;

(e) may do and suffer all acts and things that a body corporate may by law do and suffer.

(3) All courts must take judicial notice of the seal of MPC affixed to a document and, until the contrary is proved, must presume that it was duly affixed.

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(4) The official seal of MPC must be kept in such custody as MPC directs and must not be used except as authorised by MPC.

11. MPC not to represent the Crown

MPC is a public authority but does not represent the Crown.

12. Objective

The objective of MPC is to carry on the business of being the land manager of the Melbourne port area b y -

(a) planning and co-ordinating the development of port land and infrastructure within that area; and

(b) making that land and infrastructure available to port service providers—

and to do so in a manner that is economically efficient and that encourages competition among port service providers.

13. Functions and powers

(1) The functions of MPC are—

(a) to plan and co-ordinate the development of, and manage, land within the Melbourne port area and construct infrastructure within that area;

(b) to make land and infrastructure within the Melbourne port area available to port service providers;

(c) to apply money standing to the credit of the Port Promotion Fund kept by it under section 77 in the promotion of the use of the port of Melbourne for maritime commerce;

(d) to carry out such other functions as are conferred on MPC by or under this or any other Act.

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(2) MPC— (a) subject to sub-section (4) and to Part 4, may

acquire or dispose of real or personal property, and may dispose of any such property acquired by it;

(b) subject to Part 4, may enter into contracts, agreements, leases and licences for the carrying out of its functions;

(c) may employ agents or contractors;

(d) may act as agent of another person;

(e) may do all things necessary or convenient to be done for, or in connection with, carrying out its functions.

(3) Without limiting the generality of the powers conferred on it, MPC—

(a) may form, or participate in the formation of, or be a member of, companies;

(b) may form, or participate in the formation of, and may participate in, partnerships, trusts, unincorporated joint ventures and other arrangements for the sharing of profits;

(c) may act as trustee;

(d) may engage in any business, undertaking or activity incidental to the performance of its functions.

(4) MPC must not sell any land that is within 125 metres of a defined water front without the approval of the Minister.

14. Closure of roads

(1) MPC may construct or, in accordance with sub-section (2), close roads on managed land.

(2) If MPC decides to close a road on managed land, MPC must cause notice of the closure to be published in the Government Gazette and in a newspaper circulating generally throughout Victoria.

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(3) On the publication of notices in accordance with sub-section (2), the land over which the closed road ran ceases to be a road and all easements, rights and privileges existing or claimed either in the public or by any body or person as incident to any express or implied grant or past dedication or supposed dedication or by user or operation of law or otherwise, cease.

15. Declaration of roads

(1) The Governor in Council may, at the request of MPC and of the municipal council within the district of which the road is situated, declare by notice published in the Government Gazette, that a road within the Melbourne port area is a public highway.

(2) A road to which a notice under sub-section (1) applies is a public highway under the care and management of the municipal council and shall be treated as if it were a public highway to which section 205 of the Local Government Act 1989 applies, despite not being vested in the municipal council.

16. Municipal rates

(1) Despite anything to the contrary in the Local Government Act 1989, the rates and charges payable by MPC under that Act in respect of rateable land that, immediately before MPC became the owner or manager of the land, was exempt from any such rate or charge by reason of section 55 of the Port of Melbourne Authority Act 1958 are reduced—

(a) in respect of the period of 12 months beginning on the date on which MPC became the owner or manager, by 50%; and

(b) in respect of the next following period of 12 months, by 25%.

(2) Despite anything to the contrary in section 174 of the Local Government Act 1989, land to which sub-section (1) applies continues to be exempt from

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rates and charges in respect of any period before MPC became the owner or manager of the land to the same extent as it would have been if section 55 of the Port of Melbourne Authority Act 1958 had continued to apply to it.

17. Financial benefit on arm's length terms

(1) Except as permitted by sub-section (2)—

(a) MPC must not give a financial benefit within the meaning of section 243G of the Corporations Law to the declared subsidiary of MPC; and

(b) the declared subsidiary of MPC must not give such a financial benefit to MPC.

(2) Section 243N of the Corporations Law applies to MPC and the declared subsidiary of MPC so as to permit the giving of a financial benefit in accordance with that section and so applies as if, for the purposes of that section— (a) MPC were a public company; and (b) the declared subsidiary were a child entity of a

public company—

within the meaning of that section.

Division 2—Victorian Channels Authority

18. Establishment

(1) There is established a body by the name "Victorian Channels Authority".

(2) VCA— (a) is a body corporate with perpetual succession; (b) has an official seal; (c) may sue and be sued; (d) may acquire, hold and dispose of real and

personal property;

(e) may do and suffer all acts and things that a body corporate may by law do and suffer.

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(3) All courts must take judicial notice of the seal of VCA affixed to a document and, until the contrary is proved, must presume that it was duly affixed.

(4) The official seal of VCA must be kept in such custody as VCA directs and must not be used except as authorised by VCA.

19. VCA not to represent the Crown

VCA is a public authority but does not represent the Crown.

20. Objective

The objective of VCA is to manage channels in port waters for use on a fair, reasonable and commercial basis.

21. Functions and powers

(1) The functions of VCA are— (a) to establish and manage and, in accordance with

the standards developed by the Marine Board, to dredge and maintain channels in port waters;

(b) to provide and maintain, in accordance with the standards developed by the Marine Board, navigation aids in connection with navigation in port waters;

(c) generally, to direct and control, in accordance with the Marine Act 1988, the movement of vessels within port waters;

(d) such other functions as are conferred on VCA by this or any other Act.

(2) VCA— (a) may acquire real or personal property and may

dispose of any such property acquired by it; (b) may enter into contracts, agreements, leases and

licences for the carrying out of its functions;

(c) may employ agents or contractors;

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(d) may act as agent of another person;

(e) may do all things necessary or convenient to be done for, or in connection with, carrying out its functions.

(3) Without limiting the generality of the powers conferred on it, VCA—

(a) may form, or participate in the formation of, or be a member of companies;

(b) may form, or participate in the formation of, and may participate in, partnerships, trusts, unincorporated joint ventures and other arrangements for the sharing of profits;

(c) may act as trustee;

(d) may engage in any business, undertaking or activity incidental to the performance of its functions.

(4) VCA may carry out its functions and exercise its powers within or outside Victoria and outside Australia.

22. Dredging

Without limiting the generality of the powers conferred on it but subject to obtaining any permit, consent or other authority required by or under any other Act, VCA in connection with carrying out its functions—

(a) may alter, dredge, cleanse, scour, straighten and improve the bed and channel of any river or sea-bed in port waters;

(b) may reduce or remove any banks or shoals within any such river or sea-bed;

(c) may abate and remove impediments, obstructions and nuisances in, or on the banks and shores of, any such river or sea-bed that are injurious to the river or sea-bed or that obstruct or tend to obstruct navigation.

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23. Accountability for damage

(1) MPC or VCA may recover damages in any court of competent jurisdiction from the owner, master and agent of any vessel or any of them for any injury caused by the vessel, or by any person employed in or about it, to the property of MPC or VCA or to any building, works, infrastructure or facilities on port land or port waters erected, established, installed, provided, managed or maintained by it under this Act.

(2) The owner, master and agent of a vessel is liable for any injury referred to in sub-section (1) despite the fact— (a) that the injury was caused by act of God or

inevitable accident or otherwise without negligence or wrongful act or omission on the part of any person; or

(b) that the vessel was under compulsory pilotage.

(3) Nothing in this section prejudices any other rights which MPC or VCA may have, or limits any liabilities to which a vessel or its master, owner or agent may be subject, in respect of an injury caused by the vessel.

24. Liability of certain persons

(1) If any sum has been paid to MPC or VCA by, or recovered from, the owner, master or agent of a vessel as damages for an injury under section 23, the owner, master or agent may, if the injury was due to the negligence of a person other than the owner, master or agent, recover from that person the sum so paid or recovered (together with the costs of levying and recovering it) in any court of competent jurisdiction.

(2) Nothing in this section deprives any licensed pilot of the benefit of any statutory limitation of liability.

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25. Schedule 1

Schedule 1 applies to each port corporation.

26. Delegation

A port corporation may, by instrument under its official seal, delegate to 2 or more directors of the port-corporation, to an officer or employee of the port corporation or, with the consent of the Minister, to another person any function or power of the port corporation, other than—

(a) this power of delegation; and

(b) any other power that is prescribed for the purposes of this section.

27. Borrowing and investment by port corporations

A port corporation has the powers conferred on it by the Borrowing and Investment Powers Act 1987.

28. Duties of directors

(1) A director of a port corporation must at all times act honestly in the performance of the functions of his or her office.

(2) A director of a port corporation must at all times exercise a reasonable degree of care and diligence in the performance of his or her functions.

(3) A director, or former director, of a port corporation must not make improper use of information acquired by virtue of his or her position as a director to gain, directly or indirectly, an advantage for himself or herself or for any other person or to cause detriment to the port corporation.

(4) A director of a port corporation must not make improper use of his or her position as a director to gain, directly or indirectly, an advantage for himself or herself or for any other person or to cause detriment to the port corporation.

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(5) This section has effect in addition to, and not in derogation of, any Act or law relating to the criminal or civil liability of a member of the governing body of a corporation and does not prevent the institution of any criminal or civil proceedings in respect of such a liability.

29. Port corporation or Minister may bring proceedings

If a person contravenes section 28 in relation to a port corporation, the port corporation or the Minister, in the name of the port corporation, may recover from the person as a debt due to the port corporation by action in a court of competent jurisdiction either or both of the following—

(a) if that person, or any other person, made a profit as a result of the contravention, an amount equal to that profit;

(b) if the port corporation has suffered loss or damage as a result of the contravention, an amount equal to that loss or damage.

30. Directions

(1) The Treasurer, after consultation with the Minister, may give to the board of a port corporation* any written direction that he or she thinks fit.

(2) The Treasurer must not give a direction under this section to a port corporation that is inconsistent with the objectives of the port corporation or a provision of this Act.

(3) As soon as possible after giving a direction to the board of a port corporation, the Treasurer must cause a copy of the direction to be published in the Government Gazette.

(4) The board of a port corporation must comply with a direction given under this section but an act or decision of the board is not invalid merely because of a failure to comply with such a direction.

* In this section "port corporation" includes the declared subsidiary of MPC.

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31. Port corporation not to make loans to directors

(1) The powers of a port corporation do not include a power, whether directly or indirectly—

(a) to make a loan to a director of the port corporation, a spouse of such a director, or a relative (as defined in the Corporations Law) of such a director or spouse; or

(b) to give a guarantee or provide security in connection with a loan made or to be made by another person to a director, spouse or relative referred to in paragraph (a).

(2) Nothing in sub-section (1) prohibits a port corporation entering into an agreement or arrangement with a person referred to in sub-section (1) if similar agreements or arrangements are entered into by the port corporation with members of the public on the same terms and conditions.

32. Indemnity

The powers of a port corporation do not include a power to exempt, whether directly or indirectly, a director of the port corporation from, or to indemnify (whether by paying a premium in respect of a contract of insurance or otherwise) a director of the port corporation against, any liability that by law would otherwise attach to the director in respect of a wilful breach of duty or breach of trust of which the director may be guilty in relation to the port corporation.

33. Corporate plan

(1) The board of each port corporation must prepare a corporate plan for each financial year.

(2) The board must give a copy of the proposed plan to the Minister and the Treasurer on or before 31 May in each year.

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(3) The proposed corporate plan must be in or to the effect of a form approved by the Minister and the Treasurer and must include—

(a) a statement of corporate intent in accordance with section 34;

(b) a business plan containing such information as the Minister or Treasurer requires;

(c) financial statements containing such information as the Treasurer requires.

(4) The board must consider any comments on the proposed plan that are made to it by the Minister or the Treasurer within 2 months after the plan was submitted to the Minister and the Treasurer.

(5) The board must consult in good faith with the Minister and the Treasurer following communication to it of the comments, must make such changes to the plan as are agreed between the Minister, the Treasurer and the board and must deliver the completed plan to the Minister and Treasurer within 2 months after the commencement of the financial year.

(6) The plan, or any part of the plan, must not be published or made available except for the purposes of this Part without the prior approval of the board, the Minister and the Treasurer.

(7) The plan may be modified at any time by the board with the agreement of the Minister and the Treasurer.

(8) If the board, by written notice to the Minister and the Treasurer, proposes a modification of the plan, the board may, within 14 days, make the modification unless the Minister or the Treasurer, by written notice to the board, directs the board not to make it.

(9) The Treasurer, after consultation with the Minister may, from time to time, by written notice to the board, direct the board to include in, or omit from, a statement of corporate intent, a business plan or a financial statement of a specified kind, any specified matters.

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(10) Before giving a direction under this section, the Treasurer must consult with the board as to the matters to be referred to in the notice.

(11) The board must comply with a direction under this section.

(12) At any particular time, the statement of corporate intent, the business plan or the financial statements for a port corporation are the statements and plan last completed, with any modifications or deletions made in accordance with this Part.

34. Statement of corporate intent: contents

Each statement of corporate intent must specify for the port corporation and its subsidiaries (if any), in respect of the financial year to which it relates and each of the 2 following financial years, the following information—

(a) the business objectives of the port corporation and of its subsidiaries;

(b) the main undertakings of the port corporation and of its subsidiaries;

(c) the nature and scope of the activities to be undertaken by the port corporation and its subsidiaries;

(d) the accounting policies to be applied in the accounts;

(e) the performance targets and other measures by which the performance of the port corporation and of its subsidiaries may be judged in relation to their stated business objectives;

(/) the kind of information to be provided to the Minister and the Treasurer by the port corporation during the course of those financial years;

(g) such other matters as may be agreed on by the Minister, the Treasurer and the board of the port corporation from time to time.

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35. Corporate plan to be followed

A port corporation must act only in accordance with its corporate plan, as existing from time to time, unless it has first obtained the written approval of the Minister and the Treasurer to do otherwise.

36. Nothing void merely because of non-compliance

Nothing done by a port corporation is void or unenforceable merely because the port corporation has failed to comply with section 33, 34 or 35.

37. Board to give notice of significant events

If the board of a port corporation forms the opinion that matters have arisen—

(a) that may prevent, or significantly affect, achievement of the business objectives of the port corporation and its subsidiaries (if any) under the corporate plan; or

(b) that may prevent, or significantly affect achievement of the targets under the plan—

the board must immediately notify the Minister and the Treasurer of its opinion and the reasons for the opinion.

38. Non-commercial functions

(1) The Treasurer, after consultation with the Minister, may direct the board of a port corporation—

(a) to perform certain functions that the Treasurer considers to be in the public interest but that may cause the port corporation to suffer financial detriment; or

(b) to cease to perform functions of a kind referred to in paragraph (a); or

(c) to cease to perform certain functions that the Treasurer considers not to be in the public interest.

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(2) The board of the port corporation must comply with a direction given under sub-section (1).

(3) If the port corporation satisfies the Treasurer that it has suffered financial detriment as a result of complying with a direction given under sub-section (1), the port corporation may be reimbursed by the State an amount determined by the Treasurer and the Consolidated Fund is hereby appropriated to the necessary extent accordingly.

(4) The reference in this section to suffering financial detriment includes a reference to incurring net costs that are greater than would have been incurred if the direction were not complied with.

39. Determination of initial capital

(1) The Treasurer, after consultation with the Minister, must determine the amount of initial capital of each port corporation.

(2) In making the determination, the Treasurer must have regard to any relevant advice that the board of the port corporation has given to the Treasurer.

(3) The determination must be in writing.

(4) The value of the capital is the value specified in the determination or, if the Treasurer and the board of the port corporation agree that the value so specified does not correctly represent the value, the value agreed by the Treasurer and the board.

40. Capital

The capital of each port corporation is equal to the sum of—

(a) the amount of the port corporation's initial capital under this Act in accordance with section 39 (1); and

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(b) any part of the port corporation's liabilities that is converted into capital at the direction of the Treasurer; and

(c) any amounts paid to the port corporation out of money appropriated by the Parliament for the purpose of providing capital; and

(d) any part of the port corporation's reserves that is converted into capital at the direction of the Treasurer after consultation with the board—

less any amount of capital repaid under section 41.

41. Repayment of capital

(1) The capital of a port corporation is repayable to the State at such times, and in such amounts, as the Treasurer, after consultation with the Minister, directs in writing after consultation with the board of the port corporation.

(2) In giving such a direction, the Treasurer shall have regard to any advice that the board of the port corporation has given to the Treasurer in relation to the port corporation's affairs.

42. Dividends

A port corporation must pay to the State such amounts, at such times and in such manner, as are determined by the Treasurer after consultation with the board of the port corporation and the Minister.

43. Reports to Minister or Treasurer

The Minister or the Treasurer may, in writing, require the board of a port corporation to give the Minister or the Treasurer such information as the Minister or the Treasurer requires.

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44. Annual report

A port corporation, in its annual report for a financial year under Part 7 of the Financial Management Act 1994, must include— (a) a copy of each direction given to it during that

year under section 30 or 38 together with a statement of its response to the direction; and

(b) a copy of the statement of corporate intent last completed.

PART 3—REGULATION OF PORT SERVICES


45. Definitions

In this Part—

"channel operator" means VCA or a person who manages channels in port waters under an arrangement with VCA;

"Competition Principles Agreement" means the Competition Principles Agreement made on 11 April 1995 between the Commonwealth and all of the States and Territories of the Commonwealth;

"Office" means the Office of the Regulator-General established under the Office of the Regulator-General Act 1994;

"prescribed channel" means a channel, that under this Part, is a significant infrastructure facility;

"prescribed prices" means the prices specified in section 49 (b);

"prescribed services" means the services specified in section 49 (c);

"Pricing Order" means a Pricing Order made under section 50;

"regulated industry" means the industry specified in section 49 (a).

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46. Construction of Part

This Part is relevant legislation for the purposes of the Office of the Regulator-General Act 1994.

47. Application of Part

This Part applies to any person, including a person who is a provider of prescribed services.

48. Objectives of the Office

The objectives of the Office in relation to the regulated industry are, in addition to the objectives under section 7 of the Office of the Regulator-General Act 1994 (but subject to section 4 (2) of that Act)—

(a) to promote competition in the regulated industry;

(b) to protect the interests of users of prescribed services by ensuring that prescribed prices are fair and reasonable whilst having regard to the level of competition in, and efficiency of, the regulated industry;

(c) for the purposes of Division 4, to ensure users have fair and reasonable access to prescribed channels whilst having regard to'the level of competition in, and efficiency of, the regulated industry.

49. Powers in relation to price regulation

For the purposes of Part 3 of the Office of the Regulator-General Act 1994—

(a) the port industry in the ports of Melbourne, Geelong, Portland and Hastings is a regulated industry;

(b) the prices charged for the provision of, or in connection with, prescribed services in respect of the regulated industry, other than prescribed prices for prescribed services within the

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meaning of the Grain Handling and Storage Act 1995, are prescribed prices;

(c) the following are prescribed services—

(i) the provision of channels for use by shipping;

(ii) the making available of berths, buoys or dolphins in connection with the berthing of vessels in the ports of Melbourne, Geelong, Portland and Hastings;

(iii) the provision of short term storage or cargo marshalling facilities in connection with the loading or unloading of vessels at adjacent berths, buoys or dolphins in the ports of Melbourne, Geelong, Portland and Hastings;

(iv) the connection of water or electricity to berthed vessels in the ports of Melbourne, Geelong, Portland and Hastings;

(v) towage in the ports of Geelong, Portland and Hastings;

(vi) until 30 June 1999, pilotage in the ports of Melbourne, Geelong and Hastings to which the agreement dated 3 June 1989 between the Marine Board of Victoria and Port Phillip Sea Pilots Pty Ltd applies.

Division 2—Pricing Orders

50. Pricing Orders

(1) The Governor in Council may by Order published in the Government Gazette regulate in such manner as the Governor in Council thinks fit—

(a) prescribed prices; and

(b) terms and conditions subject to which prescribed services are to be provided—

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in any one or more of the ports of Melbourne, Geelong, Portland and Hastings, or in any part or parts of those ports.

(2) A Pricing Order may contain directions regarding the exercise by the Office of its powers under the Office of the Regulator-General Act 1994 in relation to the regulated industry.

(3) While a Pricing Order is in force, the Office must in relation to the regulated industry exercise its powers under the Office of the Regulator-General Act 1994 in accordance with the Pricing Order.

(4) Without limiting the generality of sub-section (1), the manner of regulating prescribed prices may include—

(a) fixing the price or the rate of increase or decrease in the price;

(b) fixing a maximum price or maximum rate of increase or minimum rate of decrease in the maximum price;

(c) fixing an average price for specified goods or services or an average rate of increase or decrease in the average price;

(d) specifying pricing policies or principles;

(e) specifying an amount determined by reference to a general price index, the cost of production, a rate of return on assets employed or any other specified factor;

(/) specifying an amount determined by reference to quantity, location, period or other specified factor relevant to the rate or supply of the goods or services;

(g) fixing a maximum average revenue or maximum rate of increase or minimum rate of decrease in the maximum average revenue in relation to specified goods or services;

(h) monitoring the price levels of specified goods and services.

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(5) A Pricing Order—

(a) subject to section 51, has effect from the date specified in the Pricing Order, being a date after the Pricing Order has been published in the Government Gazette;

(b) has effect as if the Pricing Order were a determination under the Office of the Regulator-General Act 1994 except that sections 37 and 38 of that Act do not apply in respect of the Pricing Order;

(c) subject to section 52, ceases to have effect on the date specified in the Pricing Order but cannot be revoked before then;

(d) cannot be made, amended or varied after the expiry of 12 months after this Act receives the Royal Assent.

(6) If there is a port operator in relation to the port, or part of the port, of Geelong, Portland or Hastings, a Pricing Order applying to the supply of prescribed services in that port, or part, cannot be made, amended or varied.

51. Existing contracts

(1) A Pricing Order regulating prescribed prices for towage does not apply in respect of towage to which an existing contract applies until the next adjustment of charges under that contract after the commencement of this section.

(2) In this section, "existing contract" means a contract between a towage contractor and a port authority specifying the prices at which towage may be charged to shippers entered into on or before 18 January 1995 and in force immediately before the commencement of this section.

52. Sunset

This Division expires on 30 June 2000.

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Division 3—General Powers

53. Conduct of inquiries

(1) The Office must, not later than 1 January 2000, conduct and complete an inquiry under the Office of the Regulator-General Act 1994 to determine whether or not prescribed services are to be subject to price regulation and the form of that price regulation.

(2) The inquiry must be conducted in accordance with any provisions of a Pricing Order that are relevant to the conduct of the inquiry.

(3) The Office must conduct a further inquiry under the Office of the Regulator-General Act 1994 before the expiry of each subsequent period of 5 years commencing from the date that the last inquiry commenced to determine whether or not prescribed services are to be subject to price regulation and the form of that price regulation.

(4) Sub-section (3) does not apply to a prescribed service that, as a result of a previous inquiry under this section, has ceased to be subject to price regulation.

(5) The final report on an inquiry must report on transitional issues in relation to any change in the form of price regulation.

(6) Subject to sub-section (2), an inquiry under this section must be conducted in accordance with Part 4 of the Office of the Regulator-General Act 1994 but section 28 of that Act does not apply in respect of the inquiry.

54. General power to make price determinations

(1) This section applies if the Office determines that prescribed services are to be subject to price regulation.

(2) Price determinations are to be made by the Office in accordance with Part 3 of the Office of the

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Regulator-General Act 1994 and have effect only after the expiry of Division 2.

(3) Without limiting sub-section (2), Part 3 of the Office of the Regulator-General Act 1994 applies as if section 50 (4) (g) and (h) of this Act were included in section 25 (3) of that Act.

(4) The Office must ensure that, in the case of a determination relating to towage in the ports of Geelong, Portland and Hastings, the determination is consistent with the criteria applied at the time by the Prices Surveillance Authority or the Australian Competition and Consumer Commission in assessing towage prices in other ports in Australia.

55. Standards and conditions of service and supply

(1) For the purposes of Part 3 of the Office of the Regulator-General Act 1994, the Office has power to—

(a) develop, issue and review standards and conditions of service and supply in respect of prescribed services; and

(b) monitor and report on compliance with those standards and conditions; and

(c) make determinations in relation to any matter specified in paragraph (a) or (b).

(2) The Office must consult with the Marine Board of Victoria before exercising a power under sub-section (1) (a), other than a power relating to prescribed services referred to in section 49 (c) (iii) or (iv).

(3) The Office must exercise the powers conferred by this section in accordance with any provisions of a Pricing Order.

(4) The Office may exercise the powers conferred by this section in respect of prescribed services (other than services that have ceased to be subject to price regulation) at any time.

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(5) This section does not apply to a prescribed service that, as a result of an inquiry under section 53, has ceased to be subject to price regulation.

56. Financial and business records

(1) A provider of prescribed services must keep financial and business records in respect of those prescribed services which are separate from other aspects of any business conducted by the provider of prescribed services.

(2) The financial and business records must be prepared and maintained in accordance with guidelines made by the Office.

(3) The provider of prescribed services must make the financial and business records available to the Office when required to do so by notice in writing given by the Office.

(4) A requirement under sub-section (3) must identify the information or document required and must specify—

(a) by when the requirement, must be complied with; and

(b) in what form the information or copy of the document is to be given to the Office; and

(c) that the requirement is made under this section and must include a copy of this section and section 57.

(5) A person who without lawful excuse fails to comply with any requirement made under this section is guilty of an offence.

Penalty: 100 penalty units or imprisonment for 2 years.

(6) It is a lawful excuse for the purposes of sub-section (5) that compliance may tend to incriminate the person or make the person liable to a penalty for any other offence.

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(7) A person must not, in purported compliance with a requirement, knowingly give the Office information that is false or misleading.


(8) A person must not— (a) threaten, intimidate or coerce another person; or (b) take, threaten to take, incite or be involved in

any action that causes another person to suffer any loss, injury or disadvantage—

because that other person complied, or intends to comply, with a requirement made under this section.


(9) A person is not liable in any way for any loss, damage or injury suffered by another person because of the giving in good faith of a document or information to the Office under this section.

(10) Part 3A of the Office of the Regulator-General Act 1994 does not apply to financial and business records kept by a provider of prescribed services.

57. Restriction on disclosure of confidential information

(1) This section applies if information or a document is given to the Office under section 56 and, at the time it is given, the person giving it states that it is of a confidential or commercially sensitive nature.

(2) The Office must not disclose the information or the contents of the document to any person unless— (a) it is of the opinion—

(i) that the disclosure of the information or document would not cause detriment to the person supplying it; or

(ii) that although the disclosure of the information or document would cause detriment to the person supplying it, the

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disclosure would assist in achieving the objectives of this Part and the benefit of achieving those objectives would outweigh any detriment caused by the disclosure; and

(b) it is of the opinion, in relation to any other person who is aware of the information or the contents of the document and who might be detrimentally affected by the disclosure—

(i) that the disclosure of the information or document would not cause detriment to that person; or

(ii) that although the disclosure of the information or document would cause detriment to that person, the disclosure would assist in achieving the objectives of this Part and the benefit of achieving those objectives would outweigh any detriment caused by the disclosure; and

(c) it gives the person who supplied the information or document a written notice—

(i) stating that the Office wishes to disclose the information or contents of the document, specifying the nature of the intended disclosure and setting out detailed reasons why the Office wishes to make the disclosure; and

(ii) stating that the Office is of the opinion required by paragraph (a) and setting out detailed reasons why it is of that opinion; and

(d) if it is aware that the person who supplied the information or document in turn received the information or document from another person and is aware of that other person's identity and address, it gives that other person a written notice—

(i) containing the details required by paragraph (c); and

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(ii) stating that the Office is of the opinion required by paragraph (b) in relation to him, her or it and setting out detailed reasons why it is of that opinion.


(3) Sub-section (2) does not prevent the Office—

(a) from disclosing information or the contents of a document to an Associate Regulator-General, an officer or employee appointed or employed under section 20 (1) of the Office of the Regulator-General Act 1994, a member of staff referred to in section 20 (2) of that Act, a consultant engaged under section 21 of that Act or a member of a committee or panel acting under a delegation under section 22 of that Act; or

(b) from using information or a document for the purposes of an inquiry; or

(c) from disclosing information or the contents of a document to the Minister in a report prepared in the form required by section 33 (1A) of that Act.

(4) For the purposes of this section, the disclosure of anything that is already in the public domain at the time the Office wishes to disclose it cannot cause detriment to any person referred to in sub-section (2) (a)or(fc).

Division 4—Access

58. Application of Division

This Division applies to a channel declared by the Governor in Council by Order published in the Government Gazette to be a significant infrastructure facility.

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59. Obligations of channel operator

(1) A channel operator must provide access to prescribed channels on fair and reasonable terms and conditions.

(2) A channel operator must—

(a) use all reasonable endeavours to meet the requirements of a person seeking access to prescribed channels; and

(b) make a formal proposal of terms and conditions for access within 30 business days of receiving a request or within such reasonable lesser period as is determined by the Office.

(3) The terms and conditions of access may vary according to the actual and opportunity costs to the channel operator.

60. Procedure if disputes arise

(1) If a channel operator has not made a formal proposal in accordance with section 59 (2) (b), the person seeking access to a prescribed channel may apply in writing to the Office for the making of a determination in accordance with the Office of the Regulator-General Act 1994.

(2) If a channel operator and a person seeking access cannot agree on the terms and conditions on which access is to be provided, the channel operator or the person seeking access may apply in writing to the Office for the making of a determination in accordance with the Office of the Regulator-General Act 1994 specifying the terms and conditions on which access is to be provided.

(3) The Office must, within 20 days of receiving an application under sub-section (1) or (2), give notice in writing to the person making the application or to any other person from whom the Office is entitled to

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Act No. 82/1995

require information under the Office of the Regulator-General Act 1994 specifying—

(a) any information that the Office requires the person to give so that the Office can make a determination; and

(b) a reasonable time within which the information must be provided.

(4) The Office must not make a determination if the Office considers that the making of a determination would substantially impede the existing right of access of another person unless that person has been given an opportunity to make a submission to the Office in respect of the application.

(5) In making a determination the Office must consider the matters specified in paragraphs (i) and (_/') of clause 6 (4) of the Competition Principles Agreement.

(6) A person who is bound by a determination may apply in writing to the Office for the amendment or revocation of the determination on the ground that there has been a material change in circumstances.

(7) Subject to sub-section (8), the Office must determine an application under this section within 90 days of receiving the application, excluding the period of time between the day on which notice is given under sub-section (3) and the day on which the required information is received by the Office.

(8) The Office may refuse to make a determination under this section if the Office considers that the dispute is vexatious.

(9) The costs of the Office in making a determination under this section are to be paid equally by the channel operator and the person seeking access.

(10) A determination under this section must not be inconsistent with any relevant Pricing Order.

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61. Hindering access

(1) A channel operator or any person having access to a prescribed channel must not engage in any conduct having the purpose of hindering access to a prescribed channel by any other person in the reasonable exercise of a right of access.

(2) A person who considers that his or her right of access to a prescribed channel has been hindered in contravention of sub-section (1) may apply in writing to the Office for the making of a determination in accordance with the Office of the Regulator-General Act 1994.

(3) If the Office determines that there has been a contravention of sub-section (1), the Office may make a determination that the person is entitled to access on such terms and conditions as are specified in the determination.

62. Inquiry about channels

(1) The Office must, not later than 30 June 2000, conduct and complete an inquiry under Part 4 of the Office of the Regulator-General Act 1994 to determine whether or not a channel that is declared to be a significant infrastructure facility has ceased to be such a facility.

(2) The Office must conduct a further inquiry under Part 4 of the Office of the Regulator-General Act 1994 before the expiry of each subsequent period of 5 years commencing from the date of the last inquiry to determine whether or not a channel that is declared to be a significant infrastructure facility has ceased to be such a facility.

(3) Sub-section (2) does not apply to a channel that, as a result of a previous inquiry under this section, has ceased to be a significant infrastructure facility.

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(4) For the purposes of this section, a channel in port waters is a significant infrastructure facility if—

(a) it would not be economically feasible to develop another channel providing access to the same port waters; and

(b) access to the channel would promote competition in at least one market (whether or not in Australia) other than a market for using the channel; and

(c) safe access to the channel can be ensured at an economically feasible cost.

(5) A prescribed channel ceases to be a significant infrastructure facility if the provision of the channel is a declared service under Part IIIA of the Trade Practices Act 1974 of the Commonwealth or is the subject of an access undertaking accepted under that Part.

(6) An inquiry under this section must be conducted in accordance with Part 4 of the Office of the Regulator-General Act 1994 but section 28 of that Act does not apply in respect of the inquiry.

63. Application for general determination

(1) A channel operator of a prescribed channel may apply in writing to the Office for the making of a determination under Part 3 of the Office of the Regulator-General Act 1994 approving the terms and conditions on which access to the channel is to be provided for the period specified in the determination.

(2) The Office must, within 20 days of receiving an application under sub-section (1), give notice in writing to the person making the application specifying—

(a) any information that the Office requires the person to give so that the Office can make a determination; and

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(b) a reasonable time within which the information must be provided.

(3) The Office must determine whether to accept or refuse an application under this section within 90 days of receiving the application, excluding the period of time between the day on which notice is given under sub-section (2) and the day on which the required information is received by the Office.

(4) The costs of the Office in making a determination under this section are to be paid by the channel operator.

(5) Section 60 does not apply while a determination is in force under this section unless the Office determines that the determination does not deal with the matters that are in dispute.

PART 4—CROWN LAND

Division 1—Port of Melbourne

64. Divesting of Crown land from PMA

(1) By force of this sub-section, the land delineated and shown in red stipple on a plan comprising 2 sheets lodged in the Central Plan Office of the Department of Treasury and Finance and numbered LEGL./95-123—

(a) is divested from PMA; and

(b) subject to section 65, becomes unalienated Crown land freed and discharged from the trust subject to which it was vested in PMA.

(2) The Governor in Council may, by Order published in the Government Gazette, divest land specified in the Order from PMA (being land, other than land referred to in sub-section (1), vested in PMA by or under the Port of Melbourne Authority Act 1958)

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and, on the commencement of that Order, the land specified in it—

(a) is divested from PMA; and

(b) subject to section 65, becomes unalienated Crown land freed and discharged from the trust subject to which it was vested in PMA.

(3) Sub-section (1) or an Order under sub-section (2) does not affect the status or continuity of any lease (including an agreement, licence or other interest arising under or in relation to a lease, whether or not the lease has expired, and any interest in the nature of a lease) of, or licence over, land referred to in sub-section (1) or specified in the Order and existing immediately before the commencement of sub-section (1) or the Order (as the case requires) and that lease or licence has effect—

(a) as if it had been granted by MPC; and

(b) as if, in relation to any period on or after that commencement, a reference (however expressed) to the grantor of the lease or licence were a reference to MPC.

(4) Nothing effected by this section is to be regarded as placing any person in breach of, or as constituting a default under, any provision of a lease, including any provision prohibiting, restricting or regulating the assignment of the lease.

65. MPC to manage land

(1) Any land referred to in section 64 (1) or specified in an Order under section 64 (2) is placed under the management of MPC.

(2) The Governor in Council may, by Order published in the Government Gazette, place under the management of MPC any unalienated Crown land specified in the Order.

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(3) An Order under sub-section (2) does not affect the status or continuity of any lease (including an agreement, licence or other interest arising under or in relation to a lease, whether or not the lease has expired, and any interest in the nature of a lease) of, or licence over, land to which an Order made under that sub-section applies and existing immediately before the commencement of the order.

(4) MPC— {a) must manage, improve, maintain and control the

managed land for the purposes for which it is reserved;

(b) subject to this Part, may carry out any of its functions or exercise any of its powers in relation to the managed land;

(c) has, in relation to the managed land, all the powers necessary to give effect to this Act;

(d) may grant a lease of, or a licence over, the managed land even though the land is—

(i) subject to a trust or condition requiring it to be used for a particular purpose; or

(ii) temporarily or permanently reserved for any purpose under the Crown Land (Reserves) Act 1978 or any previous Act relating to Crown land;

(e) may develop the managed land.

(5) MPC must not, without the approval of the Minister, grant a lease under sub-section (4) (d) for a term exceeding 21 years or, if the lease gives the lessee an option to renew the lease for a further term or terms, for a term exceeding 21 years when taken together with any such further term or terms.

(6) In developing any managed land, MPC— (a) may grant or create an easement over the land in

favour of any person and on any terms and conditions;

(b) may develop the land on any terms and conditions;

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(c) may maintain, operate and manage the land and any buildings, works, structures and other property on the land.

66. Revocation of reservations

(1) If managed land is permanently or temporarily reserved under the Crown Land (Reserves) Act 1978 or any previous Act relating to Crown land, the Minister and the Minister administering the Crown Land (Reserves) Act 1978 may jointly recommend to the Governor in Council that the entire reservation be revoked or, subject to sub-section (2), that part only of the reservation be revoked.

(2) The Ministers referred to in sub-section (1) must not recommend to the Governor in Council the revocation of a part of a reservation unless they— (a) have received a plan of the area of the

reservation to be revoked signed by the Surveyor-General; and

(b) are satisfied that the land described in the plan represents the area of the reservation to be revoked.

(3) On receiving the Ministers' recommendation under sub-section (1), the Governor in Council may, by

' Order published in the Government Gazette, revoke any Order in Council reserving the land in its entirety or to the extent that it relates to the land shown on the plan referred to in sub-section (2), as the case requires.

(4) Subject to sub-section (5), on the publication in the Government Gazette of an Order under sub-section (3), the land to which the Order applies is deemed to be unalienated Crown land freed and discharged from all trusts, limitations, reservations, restrictions, encumbrances, estates and interests.

(5) Sub-section (4)— (a) does not affect the status or continuity of any

lease (including an agreement, licence or other

2202


interest arising under or in relation to a lease, whether or not the lease has expired, and any interest in the nature of a lease) of, or licence over, land to which an Order made under that sub-section applies and existing immediately before the commencement of the Order;

(b) does not affect the status of the land as managed land.

67. Issue of Crown grant

(1) The Governor in Council, on the joint recommendation of the Minister and the Minister administering the Crown Land (Reserves) Act 1978, may, on behalf of the Crown, grant to MPC for an estate in fee simple, any unalienated Crown land that—

(a) is managed land; and

(b) is not reserved, either temporarily or permanently, under the Crown Land (Reserves) Act 1978 or any previous Act relating to Crown land.

(2) A Crown grant under this section is subject to any terms, conditions, covenants, exceptions, reservations and limitations that the Governor in Council may determine.

(3) On the issue of a Crown grant under this section, the land that is the subject of the grant ceases to be managed land.

(4) A Crown grant under this section may make any adjustments necessary to correct any defect in boundaries found on survey.

(5) The issue of a Crown grant of any land affected by a lease (including an agreement, licence or other interest arising under or in relation to a lease, whether or not the lease has expired, and any interest in the

2203


nature of a lease) and existing immediately before the date of issue of the Crown grant does not affect the status or continuity of that lease.

(6) This section has effect despite anything to the contrary in any Act or law or in a Crown grant of the land.

Division 2—Port of Geelong


(1) This section applies to land (other than coastal vested land) that is vested in PGA and that was so vested by or under the Port of Geelong Authority Act 1958 but not including any land within the Parishes of Murtcaim and Woornyalook in the County of Grant.

(2) If land to which this section applies is permanently or temporarily reserved under the Crown Land (Reserves) Act 1978 or any previous Act relating to Crown land, the Minister and the Minister administering the Crown Land (Reserves) Act 1978 may jointly recommend to the Governor in Council that the entire reservation be revoked or, subject to sub-section (3), that part only of the reservation be revoked.

(3) The Ministers referred to in sub-section (2) must not recommend to the Governor in Council the revocation of a part of a reservation unless they—

(a) have received a plan of the area of the reservation to be revoked signed by the Surveyor-General; and


(4) On receiving the Ministers' recommendation under sub-section (2), the Governor in Council may, by Order published in the Government Gazette, revoke any Order in Council reserving the land in its entirety

2204


or to the extent that it relates to the land shown on the plan referred to in sub-section (3), as the case requires.

(5) On the publication in the Government Gazette of an Order under sub-section (4), the land to which the Order applies—

(a) is divested from PGA; and

(b) subject to sub-section (6), is deemed to be unalienated Crown land freed and discharged from all trusts, limitations, reservations, restrictions, encumbrances, estates and interests.

(6) The Governor in Council may, by Order published in the Government Gazette, divest land specified in the Order from PGA (being land to which this section applies that is not permanently or temporarily reserved under the Crown Land (Reserves) Act 1978 or any previous Act relating to Crown land) and, on the commencement of that Order, the land specified in it—

(a) is divested from PGA; and

(b) becomes unalienated Crown land freed and discharged from the trust subject to which it was vested in PGA.

(7) Sub-section (5) or an Order under sub-section (6) does not affect the status or continuity of any lease (including an agreement, licence or other interest arising under or in relation to a lease, whether or not the lease has expired, and any interest in the nature of a lease) of, or licence over, land to which the Order under sub-section (5) applies or specified in the Order under sub-section (6) (as the case requires) and existing immediately before the commencement of the Order and that lease or licence has effect—

(a) as if it had been granted by the Minister administering Part IX of the Land Act 1958; and

(b) as if, in relation to any period on or after that commencement, a reference (however

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Act No. 82/1995

expressed) to the grantor of the lease or licence were a reference to that Minister.



(1) The Governor in Council, on the joint recommendation of the Minister and the Minister administering the Crown Land (Reserves) Act 1978, may, on behalf of the Crown, grant to PGA or any other person for an estate in fee simple, any unalienated Crown land that—

(a) has been land vested in PGA by or under the Port of Geelong Authority Act 1958; and




(4) Subject to sub-section (5), the issue of a Crown grant of any land affected by a lease (including an agreement, licence or other interest arising under or in relation to a lease, whether or not the lease has expired, and any interest in the nature of a lease) and existing immediately before the date of issue of the Crown grant does not affect the status or continuity of that lease and that lease has effect on and from the issue of the Crown grant—

2206


(a) as a lease between the person to whom the Crown grant is made as lessor and the lessee for the time being under the lease, as if it had been assigned to the person to whom the Crown grant is made; and

(b) as if the lease referred to the person to whom the Crown grant is made instead of to the lessor (however described).

(5) If more than one Crown grant is issued of any land affected by a lease referred to in sub-section (4) and existing immediately before the date of issue of the Crown grants, the issue of the Crown grants does not affect the status or continuity of that lease and that lease has effect on and from the issue of the Crown grants— (a) as a lease between the persons to whom the

respective Crown grants are made as joint lessors and the lessee for the time being under the lease, as if it had been assigned jointly to the persons to whom the respective Crown grants are made; and

(b) as if the lease referred to the persons to whom the respective Crown grants are made instead of to the lessor (however described).



Division 3—Port of Portland


(1) This section applies to land (other than coastal vested land) that is vested in PPA and that was so vested by

2207


or under the Port of Portland Authority Act 1958 and that is— (a) within the area delineated and bordered red on a

plan lodged in the Central Plan Office of the Department of Treasury and Finance and numbered LEGL./95-125; or

(b) situated between— (i) the northern boundary of Childers Street,

Portland and a line extending that boundary by the shortest route to high water mark; and

(ii) the southern boundary of Otway Street, Portland and a line extending that boundary by the shortest route to high water mark—

but not including— (iii) the land shown in colour yellow on the plan

annexed to the lease dated 25 February 1966 between Portland Harbour Trust Commissioners and the Mayor Councillors and Burgesses of the Town of Portland; and

(iv) the land shown within the boundaries coloured lemon and pink on Drawing No. 5069 attached to the tenancy agreement bearing file number 77/666 between the Commonwealth Department of Administrative Services and PPA; and

(v) the areas marked A, B and C on PPA drawing No. 5052 annexed to the Deed of Licence dated 24 December 1986 between PPA and the Mayor Councillors and Burgesses of the City of Portland; and

(vi) the area marked D on PPA drawing No. 5052 annexed to the Deed of Licence dated 28 May 1987 between PPA and the Mayor Councillors and Burgesses of the City of Portland; and

(vii) the land delineated and shown in colour red on the plan annexed to the lease dated 24 February 1971 between Portland Harbour Trust Commissioners and Gordon Graham

2208


Harman, Ian Donald Errey and Andrew Robert Jack as the trustees for the time being of Portland Yacht Club; and

(viii) the land bordered in red on PPA drawing No. 4898 annexed to the lease dated 23 February 1984 between PPA and Ronald Alexander Edgar, Cyril George Burch and Elijah Thomas Teal as trustees of the Portland Angling Club; and

(ix) the land identified as Area 2 and coloured blue on the diagram annexed to a licence dated 21 July 1983 between PPA and Portland Yacht Club.

(2) If land to which this section applies is permanently or temporarily reserved under the Crown Land (Reserves) Act 1978 or any previous Act relating to Crown land, the Minister and the Minister administering the Crown Land (Reserves) Act 1978 may jointly recommend to the Governor in Council that the entire reservation be revoked or, subject to sub-section (3), that part only of the reservation be revoked.

(3) The Ministers referred to in sub-section (2) must not recommend to the Governor in Council the revocation of a part of a reservation unless they—

(a) have received a plan of the area of the reservation to be revoked signed by the Surveyor-General; and


(4) On receiving the Ministers' recommendation under sub-section (2), the Governor in Council may, by Order published in the Government Gazette, revoke any Order in Council reserving the land in its entirety or to the extent that it relates to the land shown on the plan referred to in sub-section (3), as the case requires.

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(5) On the publication in the Government Gazette of an Order under sub-section (4), the land to which the Order applies—

(a) is divested from PPA; and

(b) subject to sub-section (6), is deemed to be unalienated Crown land freed and discharged from all trusts, limitations, reservations, restrictions, encumbrances, estates and interests.

(6) The Governor in Council may, by Order published in the Government Gazette, divest land specified in the Order from PPA (being land to which this section applies that is not permanently or temporarily reserved under the Crown Land (Reserves) Act 1978 or any previous Act relating to Crown land) and, on the commencement of that Order, the land specified in it—

(a) is divested from PPA; and

(b) becomes unalienated Crown land freed and discharged from the trust subject to which it was vested in PPA.

(7) Sub-section (5) or an Order under sub-section (6) does not affect the status or continuity of any lease (including an agreement, licence or other interest arising under or in relation to a lease, whether or not the lease has expired, and any interest in the nature of a lease) of, or licence over, land to which the Order under sub-section (5) applies or specified in the Order under sub-section (6) (as the case requires) and existing immediately before the commencement of the Order and that lease or licence has effect—

(a) as if it had been granted by the Minister administering Part IX of the Land Act 1958; and

(b) as if, in relation to any period on or after that commencement, a reference (however expressed) to the grantor of the lease or licence were a reference to that Minister.

(8) Nothing effected by this section is to be regarded as placing any person in breach of, or as constituting a

2210


default under, any provision of a lease, including any provision prohibiting, restricting or regulating the assignment of the lease.


(1) The Governor in Council, on the joint recommendation of the Minister and the Minister administering the Crown Land (Reserves) Act 1978, may, on behalf of the Crown, grant to PPA or any other person for an estate in fee simple, any unalienated Crown land that—

(a) has been land vested in PPA by or under the Port of Portland Authority Act 1958; and




(4) Subject to sub-section (5), the issue of a Crown grant of any land affected by a lease (including an agreement, licence or other interest arising under or in relation to a lease, whether or not the lease has expired, and any interest in the nature of a lease) and existing immediately before the date of issue of the Crown grant does not affect the status or continuity of that lease and that lease has effect on and from the issue of the Crown grant—

(a) as a lease between the person to whom the Crown grant is made as lessor and the lessee for the time being under the lease, as if it had been assigned to the person to whom the Crown grant is made; and

2211


(b) as if the lease referred to the person to whom the Crown grant is made instead of to the lessor (however described).

(5) If more than one Crown grant is issued of any land affected by a lease referred to in sub-section (4) and existing immediately before the date of issue of the Crown grants, the issue of the Crown grants does not affect the status or continuity of that lease and that lease has effect on and from the issue of the Crown grants—

(a) as a lease between the persons to whom the respective Crown grants are made as joint lessors and the lessee for the time being under the lease, as if it had been assigned jointly to the persons to whom the respective Crown grants are made; and

(b) as if the lease referred to the persons to whom the respective Crown grants are made instead of to the lessor (however described).




72. Registrar-General and Registrar of Titles to amend records

(1) The Registrar-General, on being requested to do so, must make all entries on the records of enrolment of any Crown grant and on any memorial relating to land that are necessary because of the operation of any provision of this Part.

2212


(2) The Registrar of Titles, on being requested to do so, must make any amendments to the Register under the Transfer of Land Act 1958 that are necessary because of the operation of any provision of this Part.

73. Exemption from stamp duty and other taxes

No stamp duty or other tax is chargeable under any Act in respect of anything done under this Part or in respect of any act or transaction connected with or necessary to be done by reason of this Part.

PART 5—PORT CHARGES

74. Wharfage charge

(1) Subject to this Part, MPC may, with the approval of the Minister, impose a wharfage charge in respect of the availability of a site in the Melbourne port area at which stevedoring operations may be carried out, being a site that continues to be leased under a lease that was in force immediately before the commencement of this section.

(2) For the purposes of sub-section (1), a site continues to be leased under a lease even if—

(a) the lease continues to be in force only because of the exercise of an option to renew it; or

(b) there has been a change in the parties to the lease.

(3) Subject to Part 3, the wharfage charge is to be determined by MPC, being a charge calculated by reference to the quantity, volume, weight or value of cargo loaded or unloaded at the site.

(4) Subject to this Act, different wharfage charges may be determined in respect of a site, or class of sites, or cargo or a class of cargo or a vessel or class of vessels or according to such other factors as MPC determines.

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Act No. 82/1995

(5) The wharfage charge is payable to MPC— (a) in the case of cargo unloaded from a vessel at

the site, by the person who, immediately after it is unloaded, is the owner of the cargo; and

(b) in the case of cargo loaded onto a vessel at the site, by the person who, immediately before it is loaded, is the owner of the cargo.

(6) If the wharfage charge, or any part of the wharfage charge, is not paid by the person liable under sub-section (5) to pay it, that person and the person who, at the time payment is demanded by MPC, is the owner of the cargo are jointly and severally liable for the payment of the charge.

(7) Nothing in this section affects a wharfage charge payable in accordance with the terms of a contract.

75. Channel usage charge

(1) Subject to this Part, VCA or a channel operator may, with the approval of the Minister, impose a channel usage charge in respect of each vessel arriving in the relevant port waters.

(2) Subject to Part 3, the channel usage charge is to be determined by VCA or the channel operator, being a charge calculated by reference to the tonnage of a vessel or in any other manner.

(3) Subject to this Act, different channel usage charges may be determined in respect of different vessels or class of vessels, or different cargo or class of cargo or according to the length of time a vessel is in the relevant port waters.

(4) The channel usage charge is payable to VCA or the channel operator by the owner of the vessel.

76. Port promotion levy

(1) Subject to this Part, an occupier or licensee of land within the Melbourne port area (other than MPC) must pay to MPC a port promotion levy.

2214


(2) The amount of the port promotion levy is to be determined by MPC with the approval of the Minister.

(3) Subject to this Act, different amounts may be determined as the port promotion levy in respect of different land or classes of land or different occupiers or licensees or class of occupiers or licensees.

(4) The port promotion levy is payable to MPC at such time or times as MPC determines with the approval of the Minister.

(5) The port promotion levy is not payable in respect of a period after the expiration of 2 years after the commencement of this section.

77. Port Promotion Fund

(1) MPC must establish and maintain a fund to be called the Port Promotion Fund.

(2) MPC must pay amounts received by it as port promotion levy, and any other money given to it specifically for the purpose of promoting the use of the port of Melbourne for maritime commerce, into the Port Promotion Fund.

(3) Money standing to the credit of the Port Promotion Fund must be applied in the promotion of the use of the port of Melbourne for maritime commerce.

78. Payment and collection of wharfage or channel usage charge

(1) A wharfage charge or channel usage charge under this Part is payable on demand by MPC, VCA or the channel operator (as the case requires), or at such time, or on such terms, as MPC, VCA or the channel operator may determine in respect of the person liable to pay it.

(2) Agents may be appointed by MPC, VCA or the channel operator for collection of wharfage or channel usage charges.

2215


(3) A wharfage or channel usage charge under this Part is a debt due to MPC, VCA or the channel operator (as the case requires) from the person liable to pay it and is recoverable in a court of competent jurisdiction.

(4) If there is more than one person liable to pay a wharfage charge or channel usage charge under this Part, those persons are jointly and severally liable to pay the charge.

79. Interest on overdue payments

(1) Wharfage charges and channel usage charges under this Part that are unpaid by the due date may, if MPC, VCA or the channel operator so requires, attract interest at a rate determined by it.

(2) Different rates may be determined for charges that remain unpaid for different periods of time.

(3) The rate determined in respect of any period is not to exceed the prescribed rate.

80. Security for payment of wharfage and channel usage charges

(1) As security for the payment of wharfage charges or channel usage charges that have been or may be incurred under this Part by a person, MPC, VCA or the channel operator may require the person to lodge with it a security deposit.

(2) The security deposit may take the form of cash or a bank guarantee or such other form as MPC, VCA or the channel operator may approve, and is to be in or for an amount determined by MPC, VCA or the channel operator.

(3) MPC, VCA or a channel operator may appropriate a security deposit or the proceeds of a security deposit to meet liabilities of the depositor (including any interest payable) under this Part that are unpaid after becoming due.

2216


(4) If a security deposit or the proceeds of a security deposit have been appropriated or partly appropriated, MPC, VCA or the channel operator may require lodgement of further security.

(5) If at any time MPC, VCA or a channel operator considers that a depositor's potential liabilities under this Part should be more adequately guaranteed, it may require the lodgement of security in a greater amount, or in a different form or both.

81. Liability of current owners and agents

(1) To the extent to which a channel usage charge under this Part is not paid by the person who was the owner of the vessel at the time the charge was incurred, the charge is payable by the person who is the owner at the time payment is demanded by VCA or the channel operator.

(2) If, when a vessel left port waters—

(a) there was an agent for the berthing or working of the vessel; and

(b) there was no other agent for the vessel—

that agent is liable, to the same extent as-the owner of the vessel, for unpaid channel usage charges under this Part incurred by the vessel while in port waters.

(3) If, when a vessel left port waters, there was an agent for the vessel other than an agent for the berthing or working of the vessel, that agent is liable, to the same extent as the owner of the vessel, for any such unpaid charges.

82. Waiver or refund of wharfage or channel usage charges

MPC, VCA or a channel operator may waive or refund the whole or any part of a wharfage charge or channel usage charge under this Part that is due to it in any particular case or class of cases.

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PART 6—HARBOUR MASTERS

83. Engagement of harbour masters

(1) VCA or, if particular port waters are under the control of a channel operator, the channel operator must ensure that a licensed harbour master is at all times engaged as the harbour master for the port waters under its control.

Penalty: 60 penalty units for every day during which the offence continues.

(2) It is a defence to a charge under sub-section (1) for the person charged to prove that the person charged believed, after making all reasonable enquiries, that the person engaged as the harbour master for the port waters was licensed under the Marine Act 1988 to act as the harbour master for those waters.

84. General functions of harbour master

(1) A harbour master has, in relation to the port waters for which he or she is the harbour master, such functions as are conferred on a harbour master by this Act.

(2) The functions of a harbour master may be limited by a condition imposed by the Marine Board on his or her licence.

(3) A harbour master's licence may contain a condition that makes the exercise of his or her functions subject to any directions given from time to time to the harbour master by the Marine Board.

85. Authorisation of person to exercise functions of harbour master

(1) Subject to any directions given by VCA or the channel operator (as the case requires) by which he or she is engaged, a harbour master may authorise a person approved by VCA or the channel operator (as the case requires) to exercise, in relation to the port

2218


waters for which he or she is the harbour master, the harbour master's functions under this Act.

(2) An authorisation under this section may be general or may apply only to the exercise of such functions as are specified in the instrument of authorisation.

(3) A person authorised under this section has all the functions specified in the instrument of authorisation.

(4) The authorisation under this section of a person to exercise any of the functions of a harbour master does not prevent the harbour master from exercising those functions.

86. General powers of harbour master in relation to vessels

(1) A harbour master may direct and control the following—

(a) the time and manner in which any vessel may enter or leave the port waters for which he or she is the harbour master;

(b) the navigation and other movements of any vessel within those waters;

(c) the position where and the manner in which any vessel may anchor or be secured within those waters;

(d) the time and manner of the taking in or discharging by any vessel within those waters of cargo, stores, fuel, fresh water or water ballast;

(e) the securing or removal of any vessel within those waters in, from or to any position the harbour master thinks fit.

(2) A harbour master may, as a condition of allowing a vessel to be anchored or secured within any part of the port waters for which he or she is the harbour master, being a part in which a licensed pilot is required to be engaged, direct that a pilot remain on board the vessel while it is so anchored or secured, whether or not pilotage is compulsory under section 96 of the Marine Act 1988.

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Act No. 82/1995

(3) A harbour master must not give any direction under this section that would result in a contravention of any law relating to the port waters or vessel concerned or that would impede the proper administration of the customs or quarantine services within those waters.

(4) If a direction given by a harbour master under this section is inconsistent with a direction given by the Marine Board under paragraph 18c of Schedule 4 to the Marine Act 1988, the direction given by the Marine Board prevails and the harbour master's direction is, to the extent of the inconsistency, of no effect.

87. Powers of harbour master to give directions

(1) The harbour master for any port waters may give directions prohibiting the entry into, or requiring the removal from, those waters of any vessel that the harbour master has reasonable cause to believe is unseaworthy or in imminent danger of sinking and causing an obstruction to navigation in those waters or is in imminent danger of causing serious damage to the marine environment or property in those waters.

(2) A harbour master must not give a direction under this section that would endanger the life of any person on the vessel.

(3) A direction under this section may be revoked by order of the Marine Board.

88. Harbour master may carry out direction

(1) If—

(a) there is no person on board any vessel to whom a harbour master may give a direction under this Part and there are reasonable grounds for the harbour master to act urgently without giving the direction; or

2220


(b) a direction under this Part is not complied with—

the harbour master may cause the vessel to be dealt with as required by the harbour master.

(2) For that purpose, the harbour master (or a person authorised by the harbour master for the purposes of this section) may board a vessel and move, secure or otherwise operate the vessel.

(3) VCA or the channel operator (as the case requires) by which the harbour master is engaged may recover from the master or owner of a vessel referred to in sub-section (1) as a civil debt in any court of competent jurisdiction the reasonable charges and expenses incurred in the exercise of the harbour master's functions under this section.

89. Offence to fail to comply with direction, or obstruct, harbour master

(1) The master of a vessel must not, without reasonable excuse, refuse or fail to comply with any direction given under this Part to the master by a harbour master.

Penalty: 120 penalty units.

(2) A person must not, without reasonable excuse, obstruct a harbour master (or a person acting under the direction of a harbour master) exercising any function under this Part.


90. Identity cards

(1) VCA or the channel operator (as the case requires) by which a harbour master is engaged must give an identity card to the harbour master.


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Act No. 82/1995

(2) A harbour master who, under section 85, authorises a person to exercise any of the functions of a harbour master must give an identity card to the person.


(3) An identity card is to be in a form approved by the Marine Board.

(4) A harbour master or person exercising the functions of a harbour master must produce his or her identity card if requested to do so in the course of exercising a function other than the giving of a direction by radio or other communication device.


(5) A person who has been issued with an identity card must return it to the Marine Board, or the person who issued it, on demand.


91. Protection from liability

(1) A harbour master, or any other person exercising the functions of a harbour master, is not personally liable for anything done or omitted to be done in good faith—

(a) in the exercise of a power or the performance of a function under or in connection with this Part; or

(b) in the reasonable belief that the act or omission was in the exercise of a power or the performance of a function under or in connection with this Part.

(2) If a harbour master, or another person exercising the functions of a harbour master, does or omits to do anything—

(a) negligently in the exercise of a power or performance of a function under or in connection with this Part; or

2222


(b) in the reasonable belief that the act or omission was in the exercise of a power or the performance of a function under or in connection with this Part—

any liability that would, but for sub-section (1), attach to the person because of that act or omission attaches instead to VCA or the channel operator (as the case requires) by which the harbour master is engaged.

PART 7—GENERAL

92. Port corporation may act under certain agreements and instruments

(1) If, under section 100 or an allocation statement under section 101, the rights and liabilities of a port authority under an agreement or instrument, vest in or become liabilities of a port corporation ("the first corporation")—

(a) another port corporation may, with the agreement of the first corporation and instead of the first corporation, perform personally or by an agent any obligation, act or conduct allowed to be performed by the first corporation under, or indemnify the first corporation in respect of any liability of the first corporation under, that agreement or instrument; and

(b) the performance by the other port corporation of any obligation, act or conduct allowed to be performed by the first corporation under or in relation to that agreement or instrument is for all purposes deemed to be performance by the first corporation.

(2) If the rights and liabilities of a port authority under an agreement or instrument do not, under section 100 or

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Act No. 82/1995

an allocation statement under section 101, vest in or become liabilities of a port corporation— (a) the port corporation may, with the agreement of

the port authority and instead of the port authority, perform personally or by an agent any obligation, act or conduct allowed to be performed by the port authority under, or indemnify the port authority in respect of any liability of the port authority under, that agreement or instrument; and

(b) the performance by the port corporation of any obligation, act or conduct allowed to be performed by the port corporation under or in relation to that agreement or instrument is for all purposes deemed to be performance by the port authority.

(3) Nothing in this section shall be construed as imposing any liability on a port corporation in favour of any party to the relevant agreement or instrument.

93. Amendment of planning schemes

(1) In addition to any other powers to prepare or approve amendments to any planning scheme, the Minister administering the Planning and Environment Act 1987 may prepare and approve an amendment to any planning scheme to do any one or more of the following—

(a) substitute a reference to a Minister, the Secretary to the Department of Conservation and Natural Resources, a port corporation, a channel operator, the Marine Board or a port operator for a reference to a port authority;

(b) change the designation of land from being reserved or zoned for the purposes of a specified port authority to being reserved or zoned for general port purposes;

(c) specify the Minister administering the Planning and Environment Act 1987, the Secretary to the Department of Conservation and Natural

2224


Resources, a port authority, a port corporation, a channel operator, the Marine Board, a municipal council or a port operator as a responsible authority for the administration or enforcement of the planning scheme or of a specified provision of the planning scheme;

(d) specify a Minister, the Secretary to the Department of Conservation and Natural Resources, a port authority, a port corporation, a channel operator, the Marine Board or a port operator as a referral authority for applications of a specified kind;

(e) provide that no permit is required to be obtained by a port authority, port corporation, channel operator or port operator for a use or development of land of a specified class;

( / ) zone or re-zone land forming part of port land or port waters and describe the objects and purposes of those zones and of particular use and development controls within those zones.

(2) Sub-section (1) authorises the preparation of only one amendment to each existing planning scheme.

(3) The Planning and Environment Act 1987, except for section 12 and Divisions 1 and 2 of Part 3, applies to the preparation and approval of an amendment under sub-section (1).

94. Offences by bodies corporate

(1) If a person charged with an offence against this Act is a body corporate, any person who is concerned or takes part in the management of that body corporate may be charged with the same offence.

(2) If a body corporate is convicted of an offence against this Act, a person charged under this section with the same offence may also be convicted of the offence and is liable to the penalty for that offence unless that person proves that the act or omission constituting

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Act No. 82/1995

the offence took place without that person's knowledge or consent.

95. Service of documents on port corporation

(1) A document required or authorised to be served on a port corporation may be served—

(a) personally on a person—

(i) apparently concerned in the management of the port corporation; or

(ii) apparently authorised to accept service of documents on behalf of the port corporation; or

(b) by post to the port corporation at its principal office.

(2) Nothing in this section affects the operation of any provision of a law or of the rules of a court authorising a document to be served on a port corporation in any other manner.

96. Treasurer may give guarantee

(1) The Treasurer may, on behalf of the Government of Victoria, execute a guarantee on such terms and conditions as the Treasurer determines in favour of any person guaranteeing the due satisfaction of amounts that become payable by a port corporation under section 104 (1) or because of Part 8 or of amounts that become payable, and of other actions required to be performed, as a result of or in connection with the provision to a port corporation of financial accommodation including, but not limited to, the payment of expenses of enforcing or obtaining or endeavouring to obtain such satisfaction.

(2) Any sums required by the Treasurer in fulfilling any liability arising under a guarantee given under this section shall be paid out of the Consolidated Fund, which is to the necessary extent appropriated accordingly.

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(3) Any sums received or recovered by the Treasurer from a port corporation or otherwise in respect of any sum paid by the Treasurer under a guarantee shall be paid into the Consolidated Fund.

97. Trade Practices Act 1974 of the Commonwealth

The regulations may provide that any act or thing or kind of act or thing of or relating to a port corporation or a subsidiary of a port corporation is authorised for a particular period for the purposes of Part IV of the Trade Practices Act 1974 of the Commonwealth.

98. Regulations

(1) The Governor in Council may make regulations for or with respect to— (a) the management of the Melbourne port area; (b) the conduct and behaviour of persons within the

Melbourne port area and the conditions on which persons may be admitted to, or excluded from, any part of that area;

(c) traffic co-ordination and vehicle scheduling within the Melbourne port area;

(d) prescribing penalties not exceeding 5 penalty units for breaches of the regulations;

(e) prescribing any matter or thing authorised or required to be prescribed or necessary or convenient to be prescribed for carrying this Act into effect.

(2) Regulations made under this Act may be made— (a) so as to apply—

(i) at all times or at a specified time; or (ii) throughout the whole of the Melbourne

port area or in a specified part of that area; (b) so as to require a matter affected by the

regulations to be— (i) in accordance with a specified standard or

specified requirement; or

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Act No. 82/1995

(ii) approved by or to the satisfaction of a prescribed person;

(c) so as to incorporate, adopt or apply, wholly or partially or as amended by the regulations, the provisions of any document, standard, rule, specification or method formulated, issued, prescribed or published by any authority or body whether—

(i) as formulated, issued, prescribed or published at the time the regulation is made or at any time before the regulation is made; or

(ii) as amended from time to time;

(d) so as to confer a discretionary authority on a prescribed person;

(e) so as to provide, in a specified case or class of cases for the exemption of persons or things or a class of persons or things from any of the provisions of the regulations, whether unconditionally or on specified conditions and either wholly or to the extent specified.

PART 8—TRANSFER OF PROPERTY


99. Definitions

(1) In this Part—

"former port authority instrument" means— (a) in relation to former port authority property

of which PMA is the transferor, PMA instrument;

{b) in relation to former port authority property of which PGA is the transferor, PGA instrument;

(c) in relation to former port authority property of which PPA is the transferor, PPA instrument;

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Port Services Act 1995 Act No. 82/1995

"former port authority property" means property, rights or liabilities of a port authority that, under this Part, have vested in, or become liabilities of, a port corporation, of a subsidiary that is wholly owned by the port authority or of the State;

"PGA instrument" means an instrument (including a legislative instrument other than this Act and regulations under this Act and the Port of Geelong Authority Act 1958 and regulations under that Act) subsisting immediately before the appropriate relevant date—

(a) to which PGA was a party; or (b) that was given to or in favour of PGA; or (c) that refers to PGA; or (d) under which—

(i) money is, or may become, payable to or by PGA; or

(ii) other property is to be, or may become liable to be, transferred to or by PGA;

"PMA instrument" means an instrument (including a legislative instrument other than this Act and regulations under this Act and the Port of Melbourne Authority Act 1958 and regulations under that Act), subsisting immediately before the appropriate relevant date— (a) to which PMA was a party; or (b) that was given to or in favour of PMA; or (c) that refers to PMA; or (d) under which—

(i) money is, or may become, payable to or by PMA; or

(ii) other property is to be, or may become liable to be, transferred to or by PMA;

"PPA instrument" means an instrument (including a legislative instrument other than this Act and regulations under this Act and the Port of

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Act No. 82/1995

Portland Authority Act 1958 and regulations under that Act) subsisting immediately before the appropriate relevant date— (a) to which PPA was a party; or

(b) that was given to or in favour of PPA; or

(c) that refers to PPA; or (J) under which—

(i) money is, or may become, payable to or by PPA; or

(ii) other property is to be, or may become liable to be, transferred to or by PPA;

"relevant date"— (a) in relation to property or rights of PMA

that are transferred to MPC under section 100, means the commencement of that section;

(b) in relation to an allocation statement under section 101 or property, rights or liabilities allocated under such an allocation statement, means the date fixed by the Treasurer under sub-section (2) for the purposes of that statement;

"transferee", in relation to former port authority property, means the port corporation, the subsidiary that is wholly owned by a port authority or the State to which the property has been transferred under this Part;

"transferor", in relation to former port authority property, means the port authority from which the former port authority property was transferred under this Part.

(2) The Treasurer may, by notice published in the Government Gazette, fix the relevant date for the purposes of an allocation statement under section 101.

(3) Nothing in this Part enables the transfer of any Crown land.

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Division 2—Transfer by operation of Act

100. Transfer of certain port authority property to MPC

On the commencement of this section, the property and rights of PMA in the land described in the folios of the Register set out below vest in MPC subject to the encumbrances (if any) to which they were subject immediately before so vesting.

Volume Folio

3523 704573 9352 954 2369 473640 3000 599980 3118 623563 3473 694519 3798 759565 3523 704574 9352 955

Division 3—Transfer by allocation

101. Treasurer may direct transfer of property

(1) The Treasurer, after consultation with the Minister, may give a direction in writing to a port authority directing it to transfer, in accordance with the direction, property, rights and liabilities of a specified kind to— (a) a port corporation; or (b) a subsidiary that is wholly owned by the port

authority; or (c) the State.

(2) Within 21 days after receiving a direction under sub-section (1), the port authority must give to the Treasurer a statement approved by the Treasurer relating to the property, rights and liabilities of the port authority to which the direction relates, as at a

2231


date specified by the Treasurer for the purposes of this section.

(3) A statement under this section— (a) must allocate the property, rights and liabilities

of the port authority shown in the statement in accordance with the directions of the Treasurer; and

(b) must be signed by the chief executive officer of the port authority.

(4) If a statement under this section is approved by the Treasurer and the Minister— (a) the Treasurer and the Minister must sign the

statement; and (b) the statement is an allocation statement for the

purposes of this Part.

(5) The Treasurer and the Minister may at any time direct a port authority to amend a statement given to them under this section as specified in the direction.

(6) An allocation statement under this section may be amended by writing signed by the Treasurer and the Minister.

(7) In this section, "statement" and "allocation statement" include a statement or allocation statement amended in accordance with this section.

102. Property transferred in accordance with direction

On the relevant date— (a) all property and rights of a port authority,

wherever located, that are allocated under an allocation statement in accordance with a direction of the Treasurer under section 101, vest in a port corporation, a subsidiary that is wholly owned by the port authority or the State in accordance with the statement; and

(b) all liabilities of a port authority, wherever located, that are allocated under an allocation statement become liabilities of a port

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Port Services Act J 995 Act No. 82/]995 s. 103

corporation, a subsidiary that is wholly owned by the port authority or the State in accordance with the statement.

103. Allocation of property etc. subject to encumbrances

Unless an allocation statement under this Part otherwise provides, where, under this Part—

(a) property and rights vest in; or

(b) liabilities become liabilities of—

a transferee in accordance with a direction under section 101—

(c) the property and rights so vested are subject to the encumbrances (if any) to which they were subject immediately before so vesting; and

(d) the rights to which the transferor was entitled in respect of those liabilities immediately before they ceased to be liabilities of the transferor vest in the transferee.

104. Payments in respect of financial obligations

(1) If—

(a) an Order has been made under section 36D (1) or 36E (1) of the Treasury Corporation of Victoria Act 1992 relating to financial obligations of PMA; and

(b) responsibility for those financial obligations has become the responsibility of a port corporation under an allocation statement under this Part—

then—

(c) the port corporation must pay to the Treasury Corporation of Victoria such amounts, and at such times, as PMA would have been liable to pay in respect of those financial obligations if the Order had not been made, except in so far as the Corporation and the port corporation otherwise agree; and

2233


(d) the Corporation must pay to the port corporation such amounts, and at such times, as PMA would have been entitled to receive in respect of those financial obligations if the Order had not been made, except in so far as the Corporation and the port corporation otherwise agree.

(2) An amount payable under sub-section (1) may be recovered in a court of competent jurisdiction as a debt due to the Treasury Corporation of Victoria or the port corporation, as the case requires.


105. Certificate of chief executive officer

(1) A certificate signed by the chief executive officer of a port authority that is a transferor certifying that property, rights or liabilities of the port authority specified in the certificate have been vested in or become liabilities of the transferee in accordance with section 100 or have been allocated under an allocation statement in accordance with section 101 is, unless revoked under sub-section (2), conclusive evidence—

(a) that the property, rights or liabilities have been so vested or allocated or become liabilities of the transferee; and

(b) that the property, rights or liabilities vested in or became the property, rights or liabilities of the transferee on the relevant date.

(2) If the Treasurer and the Minister so direct the chief executive officer of a transferor in writing, the chief executive officer must revoke a certificate given under sub-section (1) by issuing another certificate or certificates in place of the first certificate.

2234


(3) The chief executive officer of a transferor— (a) must keep a register of certificates issued under

this section; and

(b) must make the register reasonably available for inspection by a transferee or other interested person.

106. Value of former port authority property

(1) The value to MPC as at the commencement of section 100 of the property and rights of PMA transferred under that section is the value determined by the Treasurer.

(2) The value to a transferee as at the relevant date of property, rights and liabilities of the transferor that are allocated to it under an allocation statement is the value shown in, or calculated in accordance with, the relevant allocation statement.

107. Substitution of party to agreement

Where, under section 100 or an allocation statement, the rights and liabilities of a port authority under an agreement vest in or are allocated to a transferee in accordance with that section or a direction under section 101—

(a) the transferee becomes, on the relevant date, a party to the agreement in place of the transferor; and

(b) on and after the relevant date, the agreement has effect as if the transferee had always been a party to the agreement.

108. Former port authority instruments

Each former port authority instrument relating to former port authority property continues to have effect according to its tenor on and after the relevant date in relation to the transfer of that property as if a reference in the instrument to the transferor were a reference to the transferee.

2235


109. Proceedings

If, immediately before the relevant date, proceedings relating to former port authority property (including arbitration proceedings) of a transferor to which the transferor was a party were pending or existing in any court or tribunal, then, on and after that date, the transferee is substituted for the transferor as a party to the proceedings and has the same rights in the proceedings as the transferor had.

110. Interests in land

Without prejudice to the generality of this Part and despite anything to the contrary in any other Act or law if, immediately before the relevant date, a transferor is, in relation to former port authority property of the transferor, the registered proprietor of an interest in land under the Transfer of Land Act 1958, then on and after that date— (a) the transferee is to be taken to be the registered

proprietor of that interest in land; and (b) the transferee has the same rights and remedies

in respect of that interest as the transferor had.

111. Amendment of Register

(1) The Registrar of Titles, on being requested to do so and on delivery of any relevant certificate of title or instrument and certificate of the chief executive officer of the transferor of former port authority property, must make any amendments in the Register that are necessary because of the operation of this Part.

(2) The Registrar-General must make all entries on the records of enrolment of any Crown grant and on any memorial relating to land that are necessary because of the operation of this Part.

(3) If any land vested under this Part or allocated under an allocation statement under this Part is not under the operation of the Transfer of Land Act 1958, the

2236


transferee of the former port authority property, must, as soon as practicable after the land vests in accordance with this Part or the allocation statement, cause a memorial of the certificate of the chief executive officer of the transferor (that complies with Part I of the Property Law Act 1958) to be delivered to the office of the Registrar-General and, for the purposes of that Part, that certificate must be taken to be an instrument affecting land.

112. Taxes

No stamp duty or other tax is chargeable under any Act in respect of anything effected by or done under this Part or in respect of any act or transaction connected with or necessary to be done by reason of this Part, including a transaction entered into or an instrument made, executed, lodged or given, for the purpose of, or connected with the transfer of property, rights or liabilities of a port authority.

113. Evidence

(1) Documentary or other evidence that would have been admissible for or against the interests of a transferor in relation to former port authority property if this Part had not been enacted is admissible for or against the interests of the transferee.

(2) Division 3A of Part III of the Evidence Act 1958 continues to apply with respect to the books of account of a port authority and to entries made in those books of account before the relevant date, whether or not they relate to former port authority property.

(3) In sub-section (2), "books of account" has the same meaning as in Division 3A of Part III of the Evidence Act 1958.

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114. Validity of things done under this Part

Nothing effected or to be effected by this Part or done or suffered under this Part— (a) is to be regarded as placing any person in breach

of contract or confidence or as otherwise making any person guilty of a civil wrong; or

(b) is to be regarded as placing any person in breach of or as constituting a default under any Act or other law or obligation or any provision in any agreement, arrangement or understanding including, but not limited to, any provision or obligation prohibiting, restricting or regulating the assignment, transfer, sale or disposal of any property or the disclosure of any information; or

(c) is to be regarded as fulfilling any condition which allows a person to exercise a power, right or remedy in respect of or to terminate any agreement or obligation; or

(d) is to be regarded as giving rise to any remedy for a party to a contract or an instrument or as causing or permitting the termination of any contract or instrument because of a change in the beneficial or legal ownership of any asset, right or liability; or

(e) is to be regarded as causing any contract or instrument to be void or otherwise unenforceable; or

(/) is to be regarded as frustrating any contract; or (g) releases any surety or other obligee wholly or in

part from any obligation.

Division 5—Rights as between Transferees

115. Interim arrangements

(1) Each transferee of former port authority property ("the new body")— (a) may, subject to any agreement to the contrary,

exercise such rights and privileges (including

2238


access to goods and services) in relation to former port authority property that has become property of another transferee as are reasonably necessary to enable the new body to carry out its functions in a manner similar to the manner in which the relevant port authority carried out corresponding functions before the relevant date; and

(b) must, subject to any agreement to the contrary— (i) permit any other transferee to exercise such

rights and privileges in relation to former port authority property that has become property of the new body; and

(ii) make available to each other transferee such goods and services as are available from that former port authority property—

as are reasonably necessary to enable the other transferee to carry out its functions in a manner similar to the manner in which the relevant port authority carried out corresponding functions before the relevant date.

(2) A transferee must pay such reasonable charges for the exercise of rights and privileges under sub-section (1) (a) in respect of former port authority property of another transferee as are determined by the other transferee and agreed between the parties or, if the other transferee determines charges and there is no agreement, as are determined by the Treasurer.

116. Easements

(1) A transferee may, subject to and in accordance with any agreement entered into with another transferee, exercise such rights and privileges in respect of easements to which the other transferee is entitled as are reasonably necessary to enable the first-mentioned transferee to carry out its functions in a manner similar to the manner in which the transferor carried out corresponding functions before the relevant date.

2239


(2) A transferee must pay such reasonable charges for the exercise of rights and privileges under sub-section (1) in respect of easements to which another transferee is entitled as are determined by the other transferee and agreed by the first-mentioned transferee or, if there is no agreement, as are determined by the Treasurer.

PART 9—STAFF

117. Definitions

In this Part—

"complying superannuation scheme" means a superannuation scheme which is deemed to be a complying superannuation fund for the purposes of Part 14 of the Commonwealth Income Tax Assessment Act 1936;

"current defined benefit scheme" means—

(a) the Port of Melbourne Authority Superannuation Scheme;

(b) the State Employees Retirement Benefits Fund;

(c) the State Superannuation Fund;

(d) the Transport Superannuation Fund;

(e) the Local Authorities Superannuation Fund;

"designated agency" means—

(a) the Environment Protection Authority of Victoria;

(b) the Marine Board of Victoria;

(c) the Health and Safety Organisation;

"designated agency employee" means a port authority employee who accepts an offer of employment made by a designated agency under section 118 (1);

2240


"designated port employee" means a port authority employee who accepts an offer of employment made by a local authority under section 118 (2);

"port authority employee" means a person who immediately before the commencement of this Part is an employee of—

(a) PMA;or

(b) PGA; or

(c) PPA;

"port corporation employee" means a port authority employee who accepts an offer of employment made by a port corporation under section 118 (1);

"purchaser" means—

(a) a port operator; or

(b) a channel operator; or

(c) a person declared by the Minister by instrument in writing to be a purchaser;

"regional port employee" means a port authority employee who accepts an offer of employment made by a purchaser before the expiry of the transfer period;

"transfer period" means in respect of each purchaser the period of 2 months commencing on the date on which the purchase is completed.

118. Rights of port authority staff

(1) If, before 30 June 1996 or such later date as is specified by the Minister for the purposes of this sub-section by notice published in the Government Gazette before 30 June 1996, an employee of a port authority accepts an offer of employment made by a port corporation or a designated agency—

(a) the employee is to be regarded as having accrued an entitlement to benefits, in connection with his or her employment by the port

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Act No. 82/1995

corporation or the designated agency, that is equivalent to the entitlement that he or she had accrued, as an employee of the port authority, immediately before the commencement of his or her employment by the port corporation or the designated agency;

(b) the service of the employee as an employee of the port corporation or the designated agency is to be regarded for all purposes as having been continuous with the service of the employee, immediately before the commencement of his or her employment by the port corporation or the designated agency, as an employee of the port authority;

(c) the employee is not entitled to receive any payment or other benefit by reason only by having ceased to be an employee of the port authority.

(2) If, before 30 June 1996 or such later date as is specified by the Minister for the purposes of this sub-section by notice published in the Government Gazette before 30 June 1996, an employee of a port authority accepts an offer of employment made by a local authority within the meaning of section 112 of the Marine Act 1988— (a) the employee is to be regarded as having

accrued an entitlement to benefits, in connection with his or her employment by the local authority, that is equivalent to the entitlement that he or she had accrued, as an employee of the port authority, immediately before the commencement of his or her employment by the local authority;

(b) the service of the employee as an employee of the local authority is to be regarded for all purposes as having been continuous with the service of the employee, immediately before the commencement of his or her employment by the local authority, as an employee of the port authority;

2242


(c) the employee is not entitled to receive any payment or other benefit by reason only by having ceased to be an employee of the port authority.

119. Superannuation—continuing membership

(1) A port corporation employee or a designated agency employee who, immediately before becoming a port corporation employee or designated agency employee, was a member of the Port of Melbourne Authority Superannuation Scheme or the Port of Geelong Authority Superannuation Fund—

(a) continues, on and after becoming a port corporation employee or designated agency employee, to be a member of the Port of Melbourne Authority Superannuation Scheme or the Port of Geelong Authority Superannuation Fund for so long as he or she continues to be employed by a port authority, a port corporation or a designated agency or until ceasing to be a member as provided in the relevant governing instrument;

(b) is not entitled to receive any payment or other benefit by reason only of having ceased to be a port authority employee because of this Act, despite any provision of the relevant governing instrument;

(c) is entitled to payments and other benefits as if the relevant port authority, port corporation or designated agency had been the employer at all times since the port authority employee last became a member of the Port of Melbourne Authority Superannuation Scheme or the Port of Geelong Authority Superannuation Fund.

(2) A designated port employee who, immediately before becoming a designated port employee was a member of the Port of Geelong Authority Superannuation Fund—

(a) continues, on and after becoming a designated port employee, to be a member of the Port of

2243


Geelong Authority Superannuation Fund for so long as he or she continues to be employed by a port authority or a local authority or until ceasing to be a member as provided in the relevant governing instrument;

(b) is not entitled to receive any payment or other benefit by reason only of having ceased to be a port authority employee because of this Act, despite any provision of the relevant governing instrument;

(c) is entitled to payments and other benefits as if the relevant port authority or local authority had been the employer at all times since the port authority employee last became a member of the Port of Geelong Authority Superannuation Fund.

(3) On and after the commencement of this Part, the governing instrument of the Port of Melbourne Authority Superannuation Scheme or the Port of Geelong Authority Superannuation Fund has effect as if— (a) the reference to PMA or PGA in the definition

of "Authority" for the purposes of the governing instrument were a reference to the relevant port authority, port corporation, designated agency or local authority;

(b) the relevant governing instrument were amended to the extent necessary to give effect to sub-sections (1) and (2).

120. Superannuation—transfer to Local Authorities Superannuation Fund—designated port employees

(1) A port authority employee who becomes a designated port employee and who, immediately before becoming a designated port employee, was a member of a current defined benefit scheme is upon becoming a designated port employee transferred to the Local Authorities Superannuation Fund.

2244


(2) Despite the transfer of a member under this section to the Local Authorities Superannuation Fund— (a) the member is entitled to receive the same

benefits that he or she would have been entitled to receive had he or she not so transferred; and

(b) the member is entitled to have his or her rights and obligations determined in accordance with the provisions of the governing instrument of the current defined benefit scheme.

(3) For the purpose of sub-section (2) the Local Authorities Superannuation Board has in respect of a member the duties and powers conferred on the trustees of the current defined benefit scheme by or under the provisions of the governing instrument of that scheme.

(4) With the approval of the Minister, the trustees of each current defined benefit scheme must enter into an agreement with the Local Authorities Superannuation Board which specifies—

(a) the liability of the current defined benefit scheme up to the date of transfer in respect of transferred members under this section; and

(b) the value of assets of the current defined benefit scheme equal to the liability of the current defined benefit scheme under paragraph (a) that are to be transferred to the Local Authorities Superannuation Fund; and

(c) the terms and conditions which apply to the transfer of those assets to the Local Authorities Superannuation Fund.

(5) For the purposes of sub-section (4), the liability in respect of each transferred member is to be treated as being in the same proportion as the total net assets of the current defined benefit scheme are to the total liabilities of the current defined benefit scheme.

(6) If agreement cannot be reached within 3 months after the member becoming a designated port employee, the Minister may determine the matters specified in

2245


sub-section (4) or which are in dispute and the trustees of the current defined benefit scheme and the Local Authorities Superannuation Board are deemed by virtue of this sub-section to have entered into an agreement containing the matters determined by the Minister.

(7) The trustees of the current defined benefit scheme must transfer the assets specified in the agreement to the Local Authorities Superannuation Fund.

(8) As soon as the assets have been transferred, the assets form part of the Local Authorities Superannuation Fund.

(9) In this section, "current denned benefit scheme" does not include the Local Authorities Superannuation Fund.

121. Superannuation—change of employment—designated port employees

(1) If a person to whom section 120 applies ceases to be an employee of a local authority so as to become an employee of an Authority (within the meaning of the Local Authorities Superannuation Act 1988) subject to section 42 of that Act the person becomes, from the date of commencement of employment with the Authority, a contributor with a resignation benefit and an accrued retirement benefit entitlement calculated in accordance with sub-section (2).

(2) The resignation benefit and accrued retirement benefit entitlement to the date of becoming a contributor to the Local Authorities Superannuation Fund under this section are to be calculated in accordance with the provisions of the governing instrument of the current defined benefit scheme and certified by an actuary appointed by the Local Authorities Superannuation Board after having been translated into the corresponding benefit entitlements under Part 7 of the Local Authorities Superannuation Act 1988.

2246


(3) From the date of becoming a contributor under this section a person is entitled to receive benefits as a contributor to the Local Authorities Superannuation Fund.

(4) The Local Authorities Superannuation Board must from the separate accounting records kept in respect of persons transferred to the Local Authorities Superannuation Fund under section 120 determine—

(a) the liability up to the date of becoming a contributor in respect of a person to whom this section applies; and

(b) the adjustment to be made to the value of assets shown in the accounting records equal to that liability.

(5) For the purposes of sub-section (4), the liability in respect of a person to whom this section applies is to be treated as being in the same proportion as the total net assets are to the total liabilities as shown in the accounting records at the date of becoming a contributor.

122. Superannuation—contributions—designated port employees

(1) The Local Authorities Superannuation Board must on the advice of an actuary appointed by the Local Authorities Superannuation Board determine—

(a) the extent to which the liability specified under section 120 (4) (a) is unfunded; and

(b) the contribution to be paid to the Local Authorities Superannuation Fund in respect of that unfunded liability—

(i) by PMA, PGA or PPA in respect of persons who transferred from the Transport Superannuation Fund;

(ii) by PMA in respect of persons who transferred from the Port of Melbourne Authority Superannuation Fund;

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Act No. 82/1995

(iii) by the Treasurer from the Consolidated Fund in respect of persons who transferred from the State Superannuation Fund;

(iv) by PMA, PGA or PPA in respect of persons who transferred from the State Employees Retirement Benefits Fund.

(2) For the purpose of sub-section (1), the liability in respect of each person who transferred is to be treated as being in the same proportion as the total net assets of the Local Authorities Superannuation Fund are to the total liabilities of the Local Authorities Superannuation Fund.

(3) The contributions determined under sub-section (1) must be paid to the Local Authorities Superannuation Board in such instalments and at such intervals as is agreed between the Local Authorities Superannuation Board and the relevant person, or in the absence of agreement, as is determined by the Minister.

123. Superannuation—private sector employment—regional port employees

(1) A regional port employee may elect during the transfer period to transfer the transfer amount to a complying superannuation scheme.

(2) The transfer amount and the terms and conditions that apply in respect of the transfer are to be determined by the Minister administering the State Superannuation Act 1988.

(3) The trustees must pay out of the relevant current defined benefit scheme or the Port of Geelong Authority Superannuation Scheme the transfer amount, after deducting any tax required to be paid under the Commonwealth Income Tax Assessment Act 1936, to the relevant complying superannuation scheme.

(4) Subject to sub-section (5), the trustees must pay into the relevant current defined benefit scheme or the Port of Geelong Authority Superannuation Scheme

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Port Services Act 1995 .Act No. 82/1995 s. 123

payments received from the purchaser for superannuation provision in respect of each relevant scheme.

(5) The Treasurer may, in addition to any amount received under sub-section (4), pay an amount to be determined by the Treasurer into the relevant scheme referred to in sub-section (4) to meet any unfunded superannuation liability relating to regional port employees.

(6) For the purposes of sub-section (4), the Purchaser is deemed to be—

(a) an authority under the Local Authorities Superannuation Act 1988;

(b) an employing authority under the State Superannuation Act 1988;

(c) a transport authority under the Transport Superannuation Act 1988;

(d) an employer under the State Employees Retirement Benefits Act 1979;

(e) the Authority under the Port of Melbourne Authority Superannuation Scheme.

(7) If a person—

(a) elects not to transfer a transfer amount to a complying superannuation scheme under sub-section (1); or

(b) fails to make an election in accordance with sub-section (1)—

the person is deemed to have resigned as a regional port employee as from the date of the relevant sale for the purposes of the Local Authorities Superannuation Act 1988, the State Superannuation Act 1988, the Transport Superannuation Act 1988, the State Employees Retirement Benefits Act 1979 or the governing instrument of the Port of Melbourne Authority Superannuation Scheme (as the case may be).

2249


(8) For the purposes of the Superannuation (Portability) Act 1989, an officer to whom sub-section (7) applies is entitled by virtue of this section to elect to make an application in accordance with section 5 of that Act.

124. Taxes

No stamp duty or other tax is payable under any Act in respect of anything done under this Part.

125. Appropriation

The Consolidated Fund is for the purposes of any payment required to be made under section 122 (1) (b) (iii) or 123 (5) to the necessary extent appropriated accordingly.

PART 10—AMENDMENT OF PORT ACTS

Division 1—Port of Melbourne Authority Act 1958

126. Definitions

(1) In section 3 of the Port of Melbourne Authority Act 1958 insert the following definitions:

' "Melbourne Port Corporation" means Melbourne Port Corporation established by Division 1 of Part 2 of the Port Services Act 1995;

"Port of Hastings" means the lands and waters that, as at 1 January 1995, were the Port of Hastings in accordance with section 3AA of this Act;

"Victorian Channels Authority" means Victorian Channels Authority established by Division 2 of Part 2 of the Port Services Act 1995;'.

(2) In section 3 of the Port of Melbourne Authority Act 1958 omit the definitions of "ballast", "books", "buoys and beacons", "coastal waters", "goods" and "cargo", "master", "owner", "owner of a ship

2250


registered", "Port of Westernport", "river", "ship", "shore", "vessel" and "wreck".

(3) In section 3 of the Port of Melbourne Authority Act 1958, in the definition of "the port" for "forty five A of this Act to be part of the port" substitute—

" 4 5 A to be part of the port—

but does not include any land which ceases to be land of a kind referred to in section 45A whether because of the exercise with respect to it of a power under section 10 (2), 50 or 56A of this Act or Part 8 of the Port Services Act 1995 or for any other reason whatsoever".

(4) In section 3 of the Port of Melbourne Authority Act 1958, omit the definition of "the port".

127. Associated ports

(1) In section 3AA (1) of the Port of Melbourne Authority Act 1958 for "that are" substitute "that on 1 January 1995 were".

(2) In section 3AA (4) of the Port of Melbourne Authority Act 1958 for "has" (where secondly occurring) substitute "had, immediately before 1 January 1995,".

128. Powers of PMA

(1) In section 10 of the Port of Melbourne Authority Act 1958, before "The Authority" insert "(1)".

(2) At the end of section 10 of the Port of Melbourne Authority Act 1958 insert— "(2) In addition to its other powers under this Act,

the Authority must (if directed in writing to do so by the Treasurer after consultation with the Minister) sell, assign, transfer or otherwise dispose of any part of its assets, liabilities, undertaking or business to any person or body

2251


Act No. 82/1995

specified in the written direction, at the price specified in the written direction and subject to and in accordance with the other conditions (if any) specified in the written direction.

(3) The exercise of a power conferred by sub-section (2) has effect despite anything to the contrary in this Act and even if, as a result of the exercise of that power, the Authority is no longer able to carry out a part of its functions under this Act.

(4) No stamp duty or other tax is chargeable under any Act in respect of anything done under sub-section (2) at the direction of the Treasurer or in respect of any act or transaction connected with or necessary to be done by reason of sub-section (2) or by way of compliance with the direction, including a transaction entered into or an instrument made, executed, lodged or given for the purpose of, or connected with, the transfer of property to, or the creation of an interest in or in favour of, a purchaser or transferee.".

129. New section 11 inserted

After section 10 of the Port of Melbourne Authority Act 1958 insert—

"11. Treasurer may give directions to Authority

(1) The Treasurer may give to the members of the Authority written directions in relation to the performance of the functions or exercise of the powers of the Authority.

(2) The members of the Authority must comply with any direction given under sub-section (1).

(3) The Treasurer must cause a copy of any direction given under sub-section (1) to be

2252


published in the Government Gazette as soon as practicable after it has been given.".

130. New section 28 inserted

Before section 29 of the Port of Melbourne Authority Act 1958 insert—

"28. Annual report

The Authority, in its annual report for a financial year under Part 7 of the Financial Management Act 1994, must include—

(a) a copy of each direction given under section 11 (1) together with a statement of its response to the direction; and

(b) a copy of the statement of corporate intent last completed.".

131. New sections 50A, 50B and 50c substituted

For section 50A of the Port of Melbourne Authority Act 1958 substitute—

"50A. Treasurer's approval required

The Authority must not, under section 50, sell any land or grant a lease of, or licence over, any land without the prior written approval of the Treasurer.

50B. Land tax

Section 10 of the Land Tax Act 1958 does not apply to land that ceases to be exempt from land tax under section 9(1) (b) of that Act because of it ceasing to be vested in the Authority after the

2253


Act No. 82/1995

commencement of section 131 of the Port Services Act 1995.

50c. Validation of certain leases

A lease granted by the Authority under section 50 of any land for a term of more than 21 years at any time between 23 December 1986 and the commencement of section 131 of the Port Services Act 1995 is not, and must be taken never to have been, invalid only because it was granted without the approval of the Minister and any such lease has effect, and must be taken always to have had effect, according to its tenor.".

132. Municipal rates

In section 55 (1) of the Port of Melbourne Authority Act 1958, for "vested in the Authority at the commencement of this Act or which hereafter are purchased or acquired by the Authority in pursuance hereof" substitute "for the time being vested in or belonging to the Authority".

133. New sections 56, 56A and 56B inserted

After section 55 of the Port of Melbourne Authority Act 1958 insert—

"56. Formation of companies

The Authority may, with the approval of the Treasurer, form, or participate in the formation of, or be a member of, companies.

2254


56A. Treasurer may exercise certain Authority powers

(1) The Treasurer, after consultation with the Minister, may exercise any power of the Authority with respect to—

(a) the sale of, or the granting of a lease of or licence over, any land; or

(b) the sale, assignment, transfer or disposal in any other way of any part of the assets, liabilities, undertaking or business of the Authority—

and the exercise of that power by the Treasurer is for all purposes as effectual as if it had been exercised by the Authority.

(2) The Treasurer may, and the Authority must, do anything necessary to make the exercise of a power under sub-section (1) fully effective.

56B. Indemnity

(1) The Treasurer, on behalf of the Government of Victoria, may by instrument on such terms and conditions (including payment of fees) as the Treasurer determines indemnify the Authority or any other person in respect of the whole or any part of the liability of the Authority or any liability arising in relation to the business that is or has been carried on by the Authority or by a company while all its shares were beneficially held by the Authority.

(2) Any sums required by the Treasurer in fulfilling any liability arising under an indemnity given under this section must be paid out of the Consolidated Fund which is hereby to the necessary extent appropriated accordingly.".

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Act No. 82/1995

134. Proceeds of sale

(1) In section 115 (1) of the Port of Melbourne Authority Act 1958 omit "for the maintenance and improvement of the port and of the navigation thereof or any part thereof and for the expenses of carrying into effect the provisions of this Act".

(2) In section 115 of the Port of Melbourne Authority Act 1958, after sub-section (1) insert—

"(2) The proceeds or instalments of proceeds derived from any exercise, after the commencement of section 134 (2) of the Port Services Act 1995, of a power under section 10 (2), 50 or 56A of this Act must be paid into the Fund.

(3) The Authority must deal with any proceeds or instalments of proceeds referred to in sub-section (2) as directed by the Treasurer in writing.

(4) The Treasurer under sub-section (3) may direct the Authority—

(a) to repay, discharge or satisfy—

(i) any specified liability of the Authority, including any liability of the Authority in respect of financial accommodation obtained, or financial arrangements entered into, by the Authority;

(ii) any specified liability of the Treasury Corporation of Victoria in respect of a liability in respect of financial accommodation obtained, or financial arrangements entered into, by the Authority;

(b) to defray any specified expenses incurred in connection with any exercise of a power under section 10 (2), 50 or 56A after the commencement of section 134 (2) of the Port Services Act 1995;

2256


(c) to pay any specified part of the proceeds or instalments of proceeds referred to in sub-section (2) into the Consolidated Fund.".

135. Repeal of certain provisions of Port of Melbourne Authority Act

(1) Section 3AB of the Port of Melbourne Authority Act 1958 is repealed.

(2) Sections 5, 6, 7 and 8 of the Port of Melbourne Authority Act 1958 are repealed.

(3) Sections 37 and 37A of the Port of Melbourne Authority Act 1958 are repealed.

(4) Sections 39, 40, 41, 42, 43 and 44 of the Port of Melbourne Authority Act 1958 are repealed.

(5) Section 45 of the Port of Melbourne Authority Act 1958 is repealed.

(6) Sections 45A, 48, 49, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 72A, 73, 76, 77, 78, 79, 81, 82, 83, 85, 86, 87, 88, 89, 90, 90A, 90B, 91, 92, 92A, 93, 94, 95,96, 97, 98, 100, 101, 105, 106, 106A and 106B of the Port of Melbourne Authority Act 1958 are repealed.



(9) Sections 51, 52, 53 and 54 of the Port of Melbourne Authority Act 1958 are repealed.

(10) Part IV of the Port of Melbourne Authority Act 1958 is repealed.

(11) Sections 114B, 116, 117, 119, 130, 132, 133A, 134A and 135 of the Port of Melbourne Authority Act 1958 are repealed.

2257

s. 135 Port Services Act J 995

Act No. 82/1995

(12) Sections 125, 125A, 126, 127, 128 and 129 of the Port of Melbourne Authority Act 1958 are repealed.

(13) Part VA of the Port of Melbourne Authority Act 1958 is repealed.

(14) In section 136 of the Port of Melbourne Authority Act 1958—

(a) in sub-section (1), paragraphs (c) to (u) are repealed;

(b) in sub-section (1) (v)—

(i) omit "and the Sixth Schedule to this Act relating to the creation and issue of inscribed stock";

(ii) in sub-paragraph (i) omit "and the said Schedule";

(iii) sub-paragraph (ii) is repealed;

(c) in sub-section (1) omit "maintaining the good rule and government of the port and";

(d) sub-section (2) is repealed;

(e) in sub-section (3) for "All other regulations" substitute "Regulations".

(15) Sections 140, 142, 143, 154, 156, 157, 158, 159, 161 and 167 of the Port of Melbourne Authority Act 1958 are repealed.

(16) The First Schedule and Schedule Two A to the Port of Melbourne Authority Act 1958 are repealed.

(17) The Second Schedule to the Port of Melbourne Authority Act 1958 is repealed.

(18) Despite the repeal by sub-section (6) of section 69 of the Port of Melbourne Authority Act 1958, that section continues to apply to legal proceedings instituted or brought after the commencement of that sub-section in relation to acts or omissions that occurred before that commencement.

2258


(19) The repeal by sub-section (10), (11) or (12) of a provision of the Port of Melbourne Authority Act 1958 does not affect—

(a) any liability to pay to the Authority any toll, rate, charge, duty, due, fee or other money (including interest) incurred under that provision before that repeal;

(b) any right to an exemption from the obligation to pay any amount referred to in paragraph (a) acquired before that repeal;

(c) any other obligation, right or power of any person relating to the payment, collection, recovery or application of any amount referred to in paragraph (a) arising or acquired before that repeal;

(d) any liability of the Authority to pay any amount to a person incurred under that provision before that repeal;

(e) any other obligation, right or power of any person relating to the payment, collection, recovery or application of any amount referred to in paragraph (d) arising or acquired before that repeal—

and any such liability, right, power or obligation continues and may be enforced or exercised as if that provision had not been repealed.

(20) The provisions of sub-sections (18) and (19) are in addition to, and not in derogation from, the provisions of the Interpretation of Legislation Act 1984.

Division 2—Port of Geelong Authority Act 1958

136. Definitions

(1) In section 3 of the Port of Geelong Authority Act 1958 omit the definitions of "ballast", "buoy and beacon", "goods", "master", "owner", "owner of a

2259


ship registered", "river", "ship", "shore", "vessel", "wharf" and "wreck".

(2) In section 3 of the Port of Geeiong Authority Act 1958, in the definition of "the port" for "Fourth Schedule" substitute—

"Fourth Schedule-but does not include any land which ceases to be land of a kind referred to in section 21A whether because of the exercise with respect to it of a power under section 4A, 24 or 26B of this Act or Part 8 of the Port Services Act 1995 or for any other reason whatsoever".

(3) In section 3 of the Port of Geeiong Authority Act 1958, omit the definition of "the port".


(1) In section 3AA (1) of the Port of Geeiong Authority Act 1958 for "that are" substitute "that on 1 January 1995 were".

(2) In section 3AA (4) of the Port of Geeiong Authority Act 1958 for "has" (where secondly occurring) substitute "had, immediately before 1 January 1995,".

138. New sections 4A to 4c inserted

After section 4 of the Port of Geeiong Authority Act 1958 insert—

"4A. Additional powers

(1) In addition to its other powers under this Act, the Authority must (if directed in writing to do so by the Treasurer after consultation with the Minister) sell, assign, transfer or otherwise dispose of

2260


any part of its assets, liabilities, undertaking or business to any person or body specified in the written direction, at the price specified in the written direction and subject to and in accordance with the other conditions (if any) specified in the written direction.


(3) No stamp duty or other tax is chargeable under any Act in respect of anything done under sub-section (1) at the direction of the Treasurer or in respect of any act or transaction connected with or necessary to be done by reason of sub-section (1) or by way of compliance with the direction, including a transaction entered into or an instrument made, executed, lodged or given for the purpose of, or connected with, the transfer of property to, or the creation of an interest in or in favour of, a purchaser or transferee.

4B. Formation of companies


4c. Indemnity

(1) The Treasurer, on behalf of the Government of Victoria, may by instrument on such terms and conditions (including payment of fees) as the

2261


Treasurer determines indemnify the Authority or any other person in respect of the whole or any part of the liability of the Authority or any liability arising in relation to the business that is or has been carried on by the Authority or by a company while all its shares were beneficially held by the Authority.


139. New section 6A substituted

For section 6A of the Port of Geelong Authority Act 1958 substitute—

"6A. Treasurer may give directions to Authority



(3) The Treasurer must cause a copy of any direction given under sub-section (1) to be published in the Government Gazette as soon as practicable after it has been given.".

2262


140. New section 9A inserted

After section 9 of the Port of Geelong Authority Act 1958 insert—

"9A. Annual report

The Authority, in its annual report for a financial year under Part 7 of the Financial Management Act 1994, must include—

(a) a copy of each direction given under section 6A (1) together with a statement of its response to the direction; and


141. New sections 25, 26, 26A, 26B, and 26c substituted

For section 25 of the Port of Geelong Authority Act 1958 substitute—

"25. Treasurer's approval required

The Authority must not, under section 24, sell any land or grant a lease of, or licence over, any land without the prior written approval of the Treasurer.

26. Rates and land tax

(1) Despite anything to the contrary in the Local Government Act 1989, the rates and charges payable under that Act in respect of rateable land that is sold by the Authority or the Treasurer after the commencement of section 141 of the Port Services Act 1995 in the exercise of a

2263


power under section 4A, 24 or 26B and that, immediately before its sale, was exempt from any such rate or charge by reason of section 38, are reduced—

(a) in respect of the period of 12 months beginning on the date of that sale, by 50%; and


(2) Despite anything to the contrary in section 174 of the Local Government Act 1989, land to which sub-section (1) applies continues to be exempt from rates and charges in respect of any period before its sale to the same extent as it would have been if section 38 of this Act had continued to apply to it.

(3) Section 10 of the Land Tax Act 1958 does not apply to land that ceases to be exempt from land tax under section 9 (1) (b) of that Act because of it ceasing to be vested in the Authority after the commencement of section 141 of the Port Services Act 1995.

2 6 A. Validation of certain leases

A lease granted by the Authority under section 24 of any land for a term of more than 21 years at any time between 23 December 1986 and the commencement of section 141 of the Port Services Act 1995 is not, and must be taken never to have been, invalid only because it was granted without the approval of the Minister and any such lease has effect, and must be taken always to have had effect, according to its tenor.

2264


26B. Treasurer may exercise certain Authority powers



(b) the sale, assignment, transfer or disposal in any other way of any part of the assets, liabilities, undertaking or business of the Authority—



26c. Non-application of Sale of Land Act

Section 32 of the Sale of Land Act 1962 does not, despite anything to the contrary in that Act, apply in relation to a contract for the sale of land entered into by the Authority or the Treasurer after the commencement of section 141 of the Port Services Act 1995 in the exercise of a power under section 4A, 24 or 26B.".


In section 38 (1) of the Port of Geelong Authority Act 1958, for "vested in the Authority or at any time purchased or acquired by the Authority pursuant to this Act" substitute "for the time being vested in or belonging to the Authority".

2265


Act No. 82/1995


In section 84 of the Port of Geelong Authority Act 1958, after sub-section (2) insert—

"(2A) The proceeds or instalments of proceeds derived from any exercise, after the commencement of section 143 of the Port Services Act 1995, of a power under section 4A, 24 or 26B of this Act must be paid into the Fund.

(2B) The Authority must deal with any proceeds or instalments of proceeds referred to in sub-section (2A) as directed by the Treasurer in writing.

(2c) The Treasurer under sub-section (2B) may direct the Authority—




(b) to defray any specified expenses incurred in connection with any exercise of a power under section 4A, 24 or 26B after the commencement of section 143 of the Port Services Act 1995;

(c) to pay any specified part of the proceeds or instalments of proceeds referred to in sub-section (2A) into the Consolidated Fund.".

2266


144. Repeal of certain provisions of Port of Geelong Authority Act

(1) Section 6 of the Port of Geelong Authority Act 1958 is repealed.

(2) Sections 14, 17, 18, 19 and 19B of the Port of Geelong Authority Act 1958 are repealed.

(3) Section 21 of the Port of Geelong Authority Act 1958 is repealed.

(4) Sections 21A, 22, 23, 27, 27A, 27B, 27C, 30, 31, 32, 33, 39, 40, 41, 43, 44, 45, 45A, 46, 48, 51, 51A, 51B, 51c, 55, 56, 59, 64, 65, 66, 66A, 67, 68, 69, 70, 71, 72, 73, 74 and 75 of the Port of Geelong Authority Act 1958 are repealed.

(5) Section 21 B of the Port of Geelong Authority Act 1958 is repealed.

(6) Part IV of the Port of Geelong Authority Act 1958 is repealed.

(7) Sections 85, 96 and 97 of the Port of Geelong Authority Act 1958 are repealed.

(8) Sections 89,90, 91,92 and 93 of the Port of Geelong Authority Act 1958 are repealed.

(9) Part VA of the Port of Geelong Authority Act 1958 is repealed.

(10) In section 99 of the Port of Geelong Authority Act 1958— (a) in sub-section (2), paragraph (ba) and

paragraphs (c) to (0 are repealed; (b) in sub-section (2) (w)—

(i) omit "penalties not exceeding 50 penalty units for breach of any regulation made under paragraph («) and of";

(ii) omit "other";

(c) in sub-section (2) omit "maintaining the good rule and government of the port and";

(d) sub-section (3) is repealed.

2267


(11) Sections 101, 102, 103, 111, 112, 114, 117, 120 and 121 of the Port of Geelong Authority Act 1958 are repealed.

(12) The First and Sixth Schedules to the Port of Geelong Authority Act 1958 are repealed.

(13) The Second, Third and Fourth Schedules to the Port of Geelong Authority Act 1958 are repealed.

(14) The repeal by sub-section (6), (7) or (8) of a provision of the Port of Geelong Authority Act 1958 does not affect—

(a) any liability to pay to the Authority any toll, rate, charge, duty, due, fee or other money (including interest) incurred under that provision before that repeal;






(15) The provisions of sub-section (14) are in addition to, and not in derogation from, the provisions of the Interpretation of Legislation Act 1984.

2268


Division 3—Port of Portland Authority Act 1958

145. Definitions

(1) In section 3 (1) of the Port of Portland Authority Act 1958 omit the definitions of "ballast", "buoys and beacons", "goods", "Part", "ship", "shore", "vessel" and "wreck".

(2) In section 3 (1) of the Port of Portland Authority Act 1958, in the definition of "port" after "Schedule" insert "but does not include any land which ceases to be vested in, or to belong to or to be otherwise under the management and control of the Authority whether because of the exercise with respect to the land of a power under section 4A, 17A or 17E of this Act or Part 8 of the Port Services Act 1995 or for any other reason whatsoever".

(3) In section 3 (1) of the Port of Portland Authority Act 1958, omit the definition of "port".


(1) In section 3AA (1) of the Port of Portland Authority Act 1958 for "that are" substitute "that on 1 January 1995 were".

(2) In section 3AA (4) of the Port of Portland Authority Act 1958 for "has" (where secondly occurring) substitute "had, immediately before 1 January 1995,".

147. New sections 4A to 4c inserted

After section 4 of the Port of Portland Authority Act 1958 insert—

"4A. Additional powers

(1) In addition to its other powers under this Act, the Authority must (if directed in writing to do so by the Treasurer after

2269


Act No. 82/1995

consultation with the Minister) sell, assign, transfer or otherwise dispose of any part of its assets, liabilities, undertaking or business to any person or body specified in the written direction, at the price specified in the written direction and subject to and in accordance with the other conditions (if any) specified in the written direction.


(3) No stamp duty or other tax is chargeable under any Act in respect of anything done under sub-section (1) at the direction of the Treasurer or in respect of any act or transaction connected with or necessary to be done by reason of sub-section (1) or by way of compliance with the direction, including a transaction entered into or an instrument made, executed, lodged or given for the purpose of, or connected with, the transfer of property to, or the creation of an interest in or in favour of, a purchaser or transferee.

4B. Formation of companies


4c. Indemnity

(1) The Treasurer, on behalf of the Government of Victoria, may by instrument on such terms and conditions

2270


(including payment of fees) as the Treasurer determines indemnify the Authority or any other person in respect of the whole or any part of the liability of the Authority or any liability arising in relation to the business that is or has been carried on by the Authority or by a company while all its shares were beneficially held by the Authority.


148. New sections 6B and 6c inserted

After section 6A of the Port of Portland Authority Act 1958 insert—

"6B. Treasurer may give directions to Authority



(3) The Treasurer must cause a copy of any direction given under sub-section (1) to be published in the Government Gazette as soon as practicable after it has been given.

6c. Annual report

The Authority, in its annual report for a financial year under Part 7 of the

2271


Financial Management Act 1994, must include—

(a) a copy of each direction given under section 6B (1) together with a statement of its response to the direction; and


149. New section 17B substituted and new sections 17c to 17F inserted

For section 17B of the Port of Portland Authority Act 1958 substitute—

"17B. Treasurer's approval required

The Authority must not, under section 17A, sell any land or grant a lease of, or licence over, any land without the prior written approval of the Treasurer.

17c. Rates and land tax

(1) Despite anything to the contrary in the Local Government Act 1989, the rates and charges payable under that Act in respect of rateable land that is sold by the Authority or the Treasurer after the commencement of section 149 of the Port Services Act 1995 in the exercise of a power under section 4A, 17A or 17E and that, immediately before its sale, was exempt from any such rate or charge by reason of section 20, are reduced—

(a) in respect of the period of 12 months beginning on the date of that sale, by 50%; and


2272


(2) Despite anything to the contrary in section 174 of the Local Government Act 1989, land to which sub-section (1) applies continues to be exempt from rates and charges in respect of any period before its sale to the same extent as it would have been if section 20 of this Act had continued to apply to it.

(3) Section 10 of the Land Tax Act 1958 does not apply to land that ceases to be exempt from land tax under section 9 (1) (b) of that Act because of it ceasing to be vested in the Authority after the commencement of section 149 of the Port Services Act 1995.

17D. Validation of certain leases

A lease granted by the Authority under section 17A of any land for a term of more than 21 years at any time between 23 December 1986 and the commencement of section 149 of the Port Services Act 1995 is not, and must be taken never to have been, invalid only because it was granted without the approval of the Minister and any such lease has effect, and must be taken always to have had effect, according to its tenor.

17E. Treasurer may exercise certain Authority powers



(b) the sale, assignment, transfer or disposal in any other way of any part

2273


Act No. 82/1995

of the assets, liabilities, undertaking or business of the Authority—



17F. Non-application of Sale of Land Act

Section 32 of the Sale of Land Act 1962 does not, despite anything to the contrary in that Act, apply in relation to a contract for the sale of land entered into by the Authority or the Treasurer after the commencement of section 149 of the Port Services Act 1995 in the exercise of a power under section 4A, 17A or 17E.".


In section 20 (1) of the Port of Portland Authority Act 1958, for "vested in the Authority or acquired by the Commissioners in pursuance of this Act" substitute "for the time being vested in or belonging to the Authority".


In section 42 of the Port of Portland Authority Act 1958 for sub-section (2) substitute—

"(2A) The proceeds or instalments of proceeds derived from any exercise, after the commencement of section 151 of the Port Services Act 1995, of a power under section 4A, 17A or 17E of this Act must be paid into the Port of Portland Authority Fund.

2274


(2B) The Authority must deal with any proceeds or instalments of proceeds referred to in sub-section (2A) as directed by the Treasurer in writing.

(2c) The Treasurer under sub-section (2B) may direct the Authority—




(b) to defray any specified expenses incurred in connection with any exercise of a power under section 4A, 17A or 17E after the commencement of section 151 of the Port Services Act 1995;

(c) to pay any specified part of the proceeds or instalments of proceeds referred to in sub-section (2A) into the Consolidated Fund.".

152. Repeal of certain provisions of Port of Portland Authority Act

(1) Sections 14 and 14A of the Port of Portland Authority Act 1958 are repealed.

(2) Section 15 of the Port of Portland Authority Act 1958 is repealed.

(3) Section 1 5A of the Port of Portland Authority Act 1958 is repealed.

2275


(4) Sections 16, 17, 18, 24, 25 and 26A of the Port of Portland Authority Act 1958 are repealed.


(6) In section 26 of the Port of Portland Authority Act 1958, the first paragraph (a), the first paragraph (c), paragraph (d) and the second paragraphs {b) and (c) are repealed.

(7) Sections 27, 27AA, 27A, 36 and 37 of the Port of Portland Authority Act 1958 are repealed.

(8) Sections 34, 35, 40 and 41 of the Port of Portland Authority Act 1958 are repealed.

(9) Part IIIA of the Port of Portland Authority Act 1958 is repealed.

(10) In section 45 (1) of the Port of Portland Authority Act 1958, paragraphs (c) to (p) are repealed.

(11) In section 45 (1) (r) of the Port of Portland Authority Act 1958 omit "the governance, good management, and preservation of the port and".

(12) In section 47 (1) of the Port of Portland Authority Act 1958— (a) the first paragraph (a) and paragraphs (c) and (d)

are repealed; (b) in paragraph (e) for "to" substitute "and".


(14) The First Schedule to the Port of Portland Authority Act 1958 is repealed.

(15) The Second Schedule to the Port of Portland Authority Act 1958 is repealed.

(16) The repeal by sub-section (7) or (8) of a provision of the Port of Portland Authority Act 1958 does not affect— (a) any liability to pay to the Authority any toll,

rate, charge, duty, due, fee or other money

2276


(including interest) incurred under that provision before that repeal;






(17) The provisions of sub-section (16) are in addition to, and not in derogation from, the provisions of the Interpretation of Legislation Act 1984.

PART 11—AMENDMENT OF MARINE ACT 1988

153. Definitions

(1) In section 3 (1) of the Marine Act 1988 insert the following definitions:

' "channel operator" has the same meaning as in the Port Services Act 1995;

"harbour master" includes a person authorised by the harbour master under section 26c to exercise the functions of the harbour master;

"licensed harbour master" means a harbour master licensed by the Board under this Act;

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"navigation aid" has the same meaning as in the Port Services Act 1995;

"port" includes any of the following waters, or any part of those waters—

(a) any harbour or haven, whether natural or artificial;

(b) any estuary, channel, river, creek or roadstead;

(c) any navigable water in which vessels may lie for shelter or for the transfer of cargo or passengers;

"port waters" has the same meaning as in the Port Services Act 1995;

"Victorian Channels Authority" means Victorian Channels Authority established by Division 2 of Part 2 of the Port Services Act 1995;

"Victorian Marine Pollution Contingency Plan" means the plan (as in force from time to time) established under arrangements developed by Commonwealth, State and Territory Ministers in connection with the National Plan to Combat Pollution of the Sea by Oil and in compliance with the requirements of the Victorian State Disaster Management Plan;'.

(2) In section 3 of the Marine Act 1988, the definition of "Port Authority" is repealed.

154. Removal of references to Port Authorities

(1) Section 13 (1) (b) of the Marine Act 1988 is repealed.

(2) In section 15 (1) of the Marine Act 1988, for "a Port Authority" substitute "the Victorian Channels Authority or a channel operator".

(3) In section 15 (1) (a) of the Marine Act 1988, for "the Port Authority" substitute "the Victorian Channels Authority or channel operator".

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(4) In section 16 of the Marine Act 1988, omit "Port Authority or".

(5) In section 18 (1) of the Marine Act 1988, omit "Port Authority or".



(8) In section 34(1) of the Marine Act 1988— (a) in the definition of "agent" for paragraphs (a),

(b), (c) and (d) substitute "this Act"; (b) in the definition of "appropriate authority" for

paragraphs (a), (b) and (c) substitute "the Board".


(10) In section 60 (6) of the Marine Act 1988, omit "Port Authority or of a".

(11) In section 77 of the Marine Act 1988— (a) for "Port Authority" substitute "local

authority"; (b) for "or Authority" substitute "or local

authority".

(12) In section 87 (1) (b) of the Marine Act 1988— (a) omit "or of a Port Authority"; (b) omit "or Port Authority".

(13) In section 87 (2) of the Marine Act 1988— (a) omit "or of a Port Authority"; (b) omit "or Port Authority".

(14) In sections 92, 93 (1) and 93 (2) of the Marine Act 1988 omit "Port Authority or".

(15) In paragraph 20 of Schedule 4 to the Marine Act 1988— (a) omit "Port Authorities,"; (b) omit "Port Authority," (wherever occurring).

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155. Boating activities

In section 16 of the Marine Act 1988, after "apply" insert ", or apply with specified modifications,".

156. Authorised officers

(1) In sections 18 (1) and 19 (1) of the Marine Act 1988, for "a Port Authority or local authority" substitute "the Minister".

(2) In section 21 (1) of the Marine Act 1988, for "or of a Port Authority or local authority who is authorised by the Board or that Port Authority or local authority" substitute "who is authorised by the Board, or a person who is authorised by the Minister,".

(3) In section 60 (1) of the Marine Act 1988, for "a Port Authority or local authority" substitute "the Minister".

(4) In section 60 (6) of the Marine Act 1988, for "authorised officer of the Board or of a Port Authority or of a local authority" substitute "officer of the Board who is authorised by the Board, or a person who is authorised by the Minister, for the purposes of this section".


After section 20 of the Marine Act 1988 insert—

"20A. Damage, etc. to be reported

The owner or master of a trading vessel or fishing vessel must report, in writing and without delay, to the Board full particulars if—

(a) the vessel has been damaged or a defect in it or in its boilers, machinery or equipment has been discovered and the damage or defect has affected or is likely to affect—

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(i) the seaworthiness or safety of the vessel; or

(ii) the efficient operation or the safety of the boilers, machinery or fixed equipment (within the meaning of section 268 of the Navigation Act 1912 of the Commonwealth) of the vessel; or

(iii) the efficiency or completeness of the life-saving appliances or other safety equipment (within the meaning of section 268 of the Navigation Act 1912 of the Commonwealth) of the vessel; or

(b) the vessel has been in a position of great peril, either from the action of some other vessel or from danger of wreck or collision; or

(c) the vessel has been stranded or wrecked; or

(d) the vessel has fouled or done any damage to a pipeline or submarine cable or to a lighthouse, lightship, beacon, buoy or marine mark to which section 268 (1) (e) of the Navigation Act 1912 of the Commonwealth applies.

Penalty: 5 penalty units.".

158. Acts tending to endanger vessel or crew

In section 23 of the Marine Act 1988—

(a) for "A master or crew member of a vessel (other than a recreational vessel)" substitute "Any person";

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(b) in paragraphs (a), (b), (c) and (d) for "the vessel" (wherever occurring) substitute "a vessel";

(c) in paragraphs (a) and (c) omit "or any other vessel or its cargo";

(d) in paragraphs (b) and (d) omit "or any other vessel";

(e) for "20 penalty units" substitute "240 penalty units".

159. New Part 3A inserted

In the Marine Act 1988, after Part 3 insert—

"PART 3A—HARBOUR MASTERS

2 6 A. Engagement of harbour masters

(1) A local authority must ensure that a licensed harbour master is at all times engaged as the harbour master for any State waters under its control with respect to which the Board has determined that a licensed harbour master is required to be engaged.

Penalty: 60 penalty units for every day during which the offence continues.

(2) It is a defence to a charge under sub-section (1) for the person charged to prove that the person charged believed, after making all reasonable enquires, that the person engaged as the harbour master for the State waters was licensed under this Act to act as the harbour master for those waters.

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26B. General functions of harbour master

(1) A harbour master has, in relation to the State waters for which he or she is the harbour master, such functions as are conferred by this Act.

(2) The functions of a harbour master may be limited by a condition imposed by the Board on his or her licence.

(3) A harbour master's licence may contain a condition that makes the exercise of his or her functions subject to any directions given from time to time to the harbour master by the Board.

26c. Authorisation of person to exercise functions of harbour master

(1) Subject to any directions given by the local authority by which he or she is engaged, a harbour master may authorise a person approved by the local authority to exercise, in relation to the State waters for which he or she is the harbour master, the harbour master's functions under this Act.

(2) An authorisation under this section may be general or may apply only to the exercise of such functions as are specified in the instrument of authorisation.

(3) A person authorised under this section has all the functions specified in the instrument of authorisation.

(4) The authorisation under this section of a person to exercise any of the functions of a harbour master does not prevent the harbour master from exercising those functions.

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26D. General powers of harbour master in relation to vessels

(1) A harbour master may direct and control the following:

(a) the time and manner in which any vessel may enter or leave the State waters for which he or she is the harbour master;

(b) the navigation and other movements of any vessel within those waters;

(c) the position where and the manner in which any vessel may anchor or be secured within those waters;

(d) the time and manner of the taking in or discharging by any vessel within those waters of cargo, stores, fuel, fresh water or water ballast;

(e) the securing or removal of any vessel within those waters in, from or to any position as the harbour master thinks fit.

(2) A harbour master may, as a condition of allowing a vessel to be anchored or secured within any part of the State waters for which he or she is the harbour master, being a part in which a licensed pilot is required to be engaged, direct that a pilot remain on board the vessel while it is so anchored or secured, whether or not pilotage is compulsory under section 96.

(3) A harbour master must not give any direction under this section that would result in a contravention of any law relating to the State waters or vessel concerned or that would impede the proper administration of the customs or quarantine services within those waters.

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(4) If a direction given by a harbour master under this section is inconsistent with a direction given by the Board under paragraph 18c of Schedule 4, the direction given by the Board prevails and the harbour master's direction is, to the extent of the inconsistency, of no effect.

26E. Powers of harbour master to give directions

(1) The harbour master for any State waters may give directions prohibiting the entry into, or requiring the removal from, those waters of any vessel that the harbour master has reasonable cause to believe is unseaworthy or in imminent danger of sinking and causing an obstruction to navigation in those waters or is in imminent danger of causing serious damage to the marine environment or property in those waters.

(2) A harbour master must not give a direction under this section that would endanger the life of any person on the vessel.

(3) A direction under this section may be revoked by order of the Board.

26F. Harbour master may carry out direction

(1) I f -

(a) there is no person on board any vessel to whom a harbour master may give a direction under this Part and there are reasonable grounds for the harbour master to act urgently without giving the direction; or

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(b) a direction under this Part is not complied with—

the harbour master may cause the vessel to be dealt with as required by the harbour master.

(2) For that purpose, the harbour master (or a person authorised by the harbour master for the purposes of this section) may board a vessel and move, secure or otherwise operate the vessel.

(3) The local authority by which the harbour master is engaged may recover from the master or owner of a vessel referred to in sub-section (1) as a civil debt in any court of competent jurisdiction the reasonable charges and expenses incurred in the exercise of the harbour master's functions under that sub-section.

26G. Offence to fail to comply with direction, or obstruct, harbour master

(1) The master of a vessel must not, without reasonable excuse, refuse or fail to comply with any direction given under this Part to the master by a harbour master.


(2) A person must not, without reasonable excuse, obstruct a harbour master (or a person acting under the direction of a harbour master) exercising any function under this Part.


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26H. Identity cards

(1) The local authority by which a harbour master is engaged must give an identity card to the harbour master.


(2) A harbour master who, under section 26c, authorises a person to exercise any of the functions of a harbour master must give an identity card to the person.


(3) An identity card is to be in a form approved by the Board.

(4) A harbour master or person exercising the functions of a harbour master must produce his or her identity card if requested to do so in the course of exercising a function other than the giving of a direction by radio or other communication device.


(5) A person who has been issued with an identity card must return it to the Board, or the person who issued it, on demand.

Penalty applying to this sub-section: 5 penalty units.

26i. Protection from liability

(1) A harbour master, or any other person exercising the functions of a harbour master, is not personally liable for anything done or omitted to be done in good faith—

(a) in the exercise of a power or the performance of a function under or in connection with this Part; or

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(b) in the reasonable belief that the act or omission was in the exercise of a power or the performance of a function under or in connection with this Part.

(2) If a harbour master, or another person exercising the functions of a harbour master, does or omits to do anything—

(a) negligently in the exercise of a power or performance of a function under or in connection with this Part; or

(b) in the reasonable belief that the act or omission was in the exercise of a power or the performance of a function under or in connection with this P a r t -

any liability that would, but for sub-section (1), attach to the person because of that act or omission attaches instead to the local authority by which the harbour master is engaged.".

160. Pollution

Sections 36, 37, 40, 41, 42, 43 and 44 of the Marine Act 1988 are repealed.

161. Amendment of section 49

In section 49 of the Marine Act 1988 for "funds of the appropriate authority" substitute "Consolidated Fund".

162. Establishment of the Board

(1) In section 63 (2) (b) of the Marine Act 1988, for "a . common seal" substitute "an official seal".

(2) In section 63 (3) and (4) of the Marine Act 1988, for "common seal" substitute "official seal".

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163. Objectives of the Board

In section 64 of the Marine Act 1988—

(a) in paragraph (a) after "waters" insert "and the safety of navigation on State waters";

(b) at the end of paragraph (c) insert—

"; and

(d) to be responsible for ensuring an effective response to oil pollution incidents in State waters.".

164. Functions of the Board

(1) In section 65 of the Marine Act 1988, for paragraphs (h), (i) and (j) substitute—

"(/i) to determine and enforce standards and procedures for navigation and maritime safety on State waters; and

(/) to develop appropriate standards for the provision and maintenance of navigation aids for State waters; and

(j) to develop appropriate standards for the dredging and maintenance of channels in State waters; and

(ja) to direct the removal of impediments or obstructions to navigation on State waters; and

(jb) after consultation with the Environment Protection Authority, to develop, review, co-ordinate and administer the Victorian Marine Pollution Contingency Plan; and

(jc) to determine the parts of State waters in which a licensed pilot is required to be engaged; and

(jd) to determine the parts of State waters (other than port waters of the Port of Melbourne, the Port of Geelong, the Port of Portland or the Port of Hastings) with respect to which a licensed harbour master is required to be engaged; and

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(Je) to licence harbour masters and determine standards for the training of harbour masters; and".

(2) Subject to sub-section (3), the repeal by sub-section (1) of paragraph (h) of section 65 (as in force immediately before the commencement of sub-section (1)) does not affect the agreement dated 3 June 1989 between the Marine Board of Victoria and Port Phillip Sea Pilots Pty. Ltd. and that agreement continues to have effect according to its tenor until its expiry on 30 June 1999 but it cannot be given any operation after that date.

(3) In exercising its powers under the agreement referred to in sub-section (2) to conduct a review of pilotage rates, the Marine Board must consult with the Office of the Regulator-General established under the Office of the Regulator-General Act 1994.

165. New sections 66A to 66D inserted


"66A. Acquisition of land

(1) The Board may purchase or compulsorily acquire any land which is or may be required, whether by the Board, the Victorian Channels Authority, a channel operator or a local authority, for or in connection with, or as incidental to, the provision of a navigation aid for State waters.

(2) The Land Acquisition and Compensation Act 1986 applies to this section and for that purpose—

(a) the Marine Act 1988 is the special Act; and

(b) the Board is the Authority.

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66B. Recovery of costs

(1) If a local authority, the Victorian Channels Authority or a channel operator refuses or fails to comply with a standard developed by the Board under paragraph 18B of Schedule 4 for the provision and maintenance of navigation aids, the Board may itself provide or maintain (as the case requires) the navigation aid in accordance with that standard and recover the cost of doing so from the local authority, the Victorian Channels Authority or the channel operator as a civil debt in any court of competent jurisdiction.

(2) If—

(a) there is no person on board any vessel to whom the Board may give a direction under paragraph 18c of Schedule 4 and there are reasonable grounds for the Board to act urgently without giving the direction; or

(b) a direction given by the Board under paragraph 18c of Schedule 4 is not complied with—

the Board may cause a person authorised by it to board the vessel and move, secure or otherwise operate it and recover from the master or owner of the vessel as a civil debt in any court of competent jurisdiction the reasonable charges and expenses incurred under this sub-section.

(3) The Board may recover from the person on whom a notice has been served under paragraph 18D of Schedule 4 any costs incurred by it under section 66c (2) (c) as a civil debt in any court of competent jurisdiction.

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66c. Protection of Board from liability

(1) A director of the Board is not personally liable for anything done or omitted to be done in good faith—

(a) in the exercise of a power or the performance of a function under or in connection with section 65 (jb) or 66B (2); or

(b) in the reasonable belief that the act or omission was in the exercise of a power or the performance of a function under or in connection with section 65 (jb) or 66B (2).

(2) If a director of the Board does or omits to do anything—

(a) negligently in the exercise of a power or performance of a function under or in connection with section 65 (jb) or 66B (2); or

(b) in the reasonable belief that the act or omission was in the exercise of a power or the performance of a function under or in connection with section 65 (jb) or 66B (2)—

any liability that would, but for sub-section (1), attach to the director because of that act or omission attaches instead to the Crown.

66D. Protection from liability (Victorian Marine Pollution Contingency Plan)

(1) A person required by the Board under paragraph 22 of Schedule 4 to participate in the Victorian Marine Pollution Contingency Plan is not personally liable for anything done or omitted to be done in good faith—

(a) in carrying out that requirement; or

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(b) in the reasonable belief that the act or omission was carrying out that requirement.

(2) If a person referred to in sub-section (1) does or omits to do anything—

(a) negligently in carrying out a requirement referred to in that sub-section; or

(b) in the reasonable belief that the act or omission was carrying out such a requirement—

any liability that would, but for sub-section (1), attach to the person because of that act or omission attaches instead to the Crown.".

166. Publication of directions

For section 68 (2) of the Marine Act 1988 substitute—

"(2) The Board must include a copy of each written direction given under sub-section (1) in its annual report for a financial year under Part 7 of the Financial Management Act 1994.".

167. New sections 69 to 74E substituted

(1) For sections 69 to 74 of the Marine Act 1988 substitute—

"69. Board of directors

(1) There shall be a board of directors of the Board consisting of not less than 3, and not more than 5, directors appointed in accordance with this Part.

(2) The board of directors—

(a) is responsible for the management of the affairs of the Board; and

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(b) may exercise the powers of the Board.

(3) The board of directors shall consist of— (a) a chairperson; and (b) subject to sub-section (1), such

number of other directors as are appointed by the Minister in accordance with this Part.

(4) The chairperson and other directors shall be appointed by the Minister having regard to the expertise necessary for the Board to achieve its objectives.

(5) The Public Sector Management Act 1992 does not apply to a director in respect of the office of director.

70. Terms and conditions of appointment

(1) A director of the Board shall be appointed for such term, not exceeding 3 years, as is specified in the instrument of appointment, but is eligible for re-appointment.

(2) A director of the Board holds office, subject to this Part, on such terms and conditions as are determined by the Minister.

71. Vacancies, resignations, removal from office

(1) The office of a director of the Board becomes vacant if the director— (a) without the Board's approval, fails to

attend 3 consecutive meetings of the board; or

(b) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors

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or makes an assignment of his or her remuneration for their benefit; or

(c) is convicted of an indictable offence or an offence which, if committed in Victoria, would be an indictable offence.

(2) A director of the Board may resign by writing delivered to the Minister.

(3) The Governor in Council may remove a director of the Board, or all directors, from office.

(4) If a director of the Board—

(a) is convicted of an offence relating to his or her duties as a director; or

(b) fails, without reasonable excuse, to comply with section 74A—

the director must be removed from office by the Governor in Council.

72. Validity of decisions

(1) An act or decision of the board of directors is not invalid merely because of—

(a) a defect or irregularity in, or in connection with, the appointment of a director; or

(b) a vacancy in the membership of the Board, including a vacancy arising from the failure to appoint an original director.

(2) Anything done by or in relation to a person purporting to act as chairperson or as a director is not invalid merely because—

(a) the occasion for the appointment has not arisen; or

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(b) there was a defect or irregularity in relation to the appointment; or

(c) the appointment had ceased to have effect; or

(d) the occasion for the person to act had not arisen or had ceased.

73. Proceedings of board

(1) Subject to sub-section (2), meetings of the board of directors shall be held at such times and places as the board determines.

(2) The chairperson may at any time convene a meeting but must do so when requested by a director.

(3) A majority of the directors for the time being constitutes a quorum of the Board.

(4) A question arising at a meeting shall be determined by a majority of votes of directors present and voting on that question and, if voting is equal, the person presiding has a casting, as well as a deliberative, vote.

(5) The Board must ensure that minutes are kept of each of its meetings.

(6) Subject to this Part, the Board may regulate its own proceedings.

74. Resolutions without meetings

(1) If the directors of the Board for the time being (other than a director who is absent from Australia when the other directors sign) sign a document containing a statement that those directors are in favour of a resolution in terms set out in the document, a resolution in those terms shall be taken to have been passed at a meeting of the Board held on the day on

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which the document is signed or, if the directors do not sign it on the same day, on the day on which the last director to sign signs the document.

(2) If a resolution is, under sub-section (1), taken to have been passed at a meeting of the Board, each director must be advised as soon as practicable and given a copy of the terms of the resolution.

(3) For the purposes of sub-section (1), two or more separate documents containing a statement in identical terms, each of which is signed by one or more directors, shall be taken to constitute one document.

74A. Disclosure of interests

(1) If— (a) a director of the Board has a direct or

indirect pecuniary interest in a matter being considered, or about to be considered, by the Board; and

(b) the interest could conflict with the proper performance of the director's duties in relation to the consideration of the matter—

the director, as soon as practicable after the relevant facts come to the director's knowledge, must disclose the nature of the interest at a meeting of the Board.

(2) A disclosure under sub-section (1) must be recorded in the minutes of the meeting and, unless the Minister or the Board otherwise determines, the director— (a) must not be present during any

deliberation of the Board in relation to the matter; and

(b) must not take part in any decision of the Board in relation to the matter.

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(3) For the purpose of the making of a determination by the Board under sub-section (2) in relation to a director who has made a disclosure under sub-section (1), a director who has a direct or indirect pecuniary interest in the matter to which the disclosure relates—

(a) must not be present during any deliberation of the Board for the purpose of making the determination; and

(b) must not take part in the making by the Board of the determination.

(4) Sub-section (1) does not apply in relation to a matter relating to the supply of goods or services to the director if the goods or services are, or are to be, available to members of the public on the same terms and conditions.

74B. Duties of directors

(1) A director of the Board must at all times act honestly in the performance of the functions of his or her office, whether within or outside the State.

(2) A director of the Board must at all times exercise a reasonable degree of care and diligence in the performance of his or her functions, whether within or outside the State.

(3) A director, or former director, of the Board must not make improper use of information acquired by virtue of his or her position as a director to gain, directly or indirectly, an advantage for himself or herself or for any other person or to cause detriment to the Board.

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(4) A director of the Board must not, whether within or outside the State, make improper use of his or her position as a director to gain, directly or indirectly, an advantage for himself or herself or for any other person or to cause detriment to the Board.

(5) This section has effect in addition to, and not in derogation of, any Act or, law relating to the criminal or civil liability of a member of the governing body of a corporation and does not prevent the institution of any criminal or civil proceedings in respect of such a liability.

74c. Minister may bring proceedings

If a person contravenes section 74B the Minister, in the name of the Board, may recover from the person as a debt due to the Board by action in a court of competent jurisdiction either or both of the following—

(a) if that person, or any other person, made a profit as a result of the contravention, an amount equal to that profit;

(b) if the Board has suffered loss or damage as a result of the contravention, an amount equal to that loss or damage.

74D. Board not to make loans to directors

(1) The powers of the Board do not include a power, whether directly or indirectly—

(a) to make a loan to a director of the Board, a spouse of such a director, or a relative (as defined in the

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Corporations Law) of such a director or spouse; or

(b) to give a guarantee or provide security in connection with a loan made or to be made by another person to a director, spouse or relative referred to in paragraph (a).

(2) Nothing in sub-section (1) prohibits the Board entering into an agreement or arrangement with a person referred to in sub-section (1) if similar agreements or arrangements are entered into by the Board with members of the public on the same terms and conditions.

74E. Indemnity

The powers of the Board do not include a power to exempt, whether directly or indirectly, a director of the Board from, or to indemnify (whether by paying a premium in respect of a contract of insurance or otherwise) a director of the Board against, any liability that by law would otherwise attach to the director in respect of a wilful breach of duty or breach of trust of which the director may be guilty in relation to the Board.".

(2) The members of the Marine Board holding office at the commencement of this section go out of office.

(3) Despite the alterations made to the constitution of the Marine Board by this Part, the Marine Board must be taken to be the same body after the commencement of this section as it was before that commencement.

(4) No act, matter or thing shall be in any way abated or affected by reason of the alteration in the constitution of the Marine Board and any such act, matter or thing may be continued and concluded in all respects as if this Act had not been passed.

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168. New section 76 substituted

For section 76 of the Marine Act 1988—

"76. Delegation

The Board may, by instrument under its official seal, delegate any power of the Board under this Act or the regulations (other than this power of delegation) to—

(a) a director or two or more directors; or

(b) an officer or employee of the Board or of the Victorian Channels Authority or of a local authority by name or the holder of an office or position with the Board or the Victorian Channels Authority or a local authority; or

(c) with the consent of the Minister, any other person.".

169. Inspections and investigations

(1) In section 82 (2) of the Marine Act 1988, after paragraph (a) insert—

"(ab) Any accident or incident reported to the Board under section 20 (3) or (4);".

(2) In section 82 (2) (b) of the Marine Act 1988, after "regulations" insert ", and the conditions of any licence or certificate issued by the Board,".

(3) In section 84 (1) (b) of the Marine Act 1988, after "master" insert", harbour master".

170. New section 85A inserted in Part 9

Before section 86 of the Marine Act 1988 insert—

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"85A. Powers of entry in relation to lights

(1) If a notice served under paragraph 18D of Schedule 4 is not complied with, an officer of the Board or other person authorised by the Board for the purposes of this sub-section may do all or any of the following—

(a) enter any premises and take possession of the light;

(b) order that the light be forfeited;

(c) do anything in relation to the light that the notice required the owner or other person to do.

(2) A person on whom a notice under paragraph 18D of Schedule 4 is served must comply with the notice.




"91A. Accountability for damage

(1) The Board may recover damages in any court of competent jurisdiction from a person who removed or damaged a light house, light ship, buoy, beacon, navigation aid or other land or sea mark used for the safety or convenience of navigation.

(2) Nothing in sub-section (1) prejudices any other rights which the Board may have or limits any liabilities to which a person may be subject in respect of any such removal or damage as is referred to in that sub-section.".

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"92A. Offence to fail to comply with certain directions, etc.

(1) A person must not, without reasonable excuse, refuse or fail to comply with any direction given to the person by the Board under paragraph 18c, 18H or 22 of Schedule 4.


(2) The Victorian Channels Authority, a channel operator or a local authority must not refuse or fail to comply with a standard developed by the Board under paragraph 1 8B or 1 8G of Schedule 4.


173. Offence with respect to harbour masters

In section 94 of the Marine Act 1988, after sub-section (1) insert—

"(1A) A person must not act as the harbour master for any port waters or other State waters with respect to which a licensed harbour master is required to be engaged unless he or she is licensed under this Act to so act.


174. Offence not to use a pilot

(1) In section 96 (1) of the Marine Act 1988, for "a port" (wherever occurring) substitute "port waters".

(2) In section 96 (2) of the Marine Act 1988— (a) before paragraph (a) insert—

"(aa) port waters in which a licensed pilot is not required to be engaged; or";

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(b) in paragraphs (a) and (c), for "a port" substitute "port waters";

(c) in paragraph (c), for "that port" substitute "those port waters".

175. New section 98 substituted

For section 98 of the Marine Act 1988 substitute—

"98. Unsafe vessels

(1) A vessel is an unsafe vessel for the purposes of this section if the operation of the vessel is likely to endanger any person because of— (a) the condition or equipment of the

vessel; or (b) the manner in which cargo or

equipment on the vessel is stowed or secured; or

(c) the nature of the cargo; or (d) the overloading of the vessel with

persons or cargo; or (e) the number or qualifications of its

crew; or (/) any other reason.

(2) The owner of a vessel must not operate the vessel if the owner knows that it is an unsafe vessel.

Penalty: Imprisonment for 2 years or 240 penalty units.

(3) The master of a vessel must not operate the vessel if the master knows that it is an unsafe vessel.


(4) The fact that an unsafe vessel has been detained under this section does not

2304


prevent a prosecution for an offence against sub-section (2) or (3).

(5) The Board may order a vessel that is on State waters or in any other part of the State to be provisionally detained if it appears to the Board to be an unsafe vessel.

(6) The following provisions apply if a vessel has been ordered to be provisionally detained—

(a) the Board must, as soon as practicable, cause to be served on the master or owner of the vessel a notice of the detention and a written statement of the reasons for the detention;

(b) the Board must appoint an inspector to investigate and report to it under Division 3 of Part 8 on the condition and adequacy of the vessel and its equipment;

(c) the Board may, on receipt of the report—

(i) order the release of the vessel; or

(ii) if of the opinion that it is an unsafe vessel, order it to be finally detained either absolutely or until the performance of such conditions as the Board considers necessary to ensure that the vessel is not an unsafe vessel;

(d) the Board may at any time (and without any report) order the release of the vessel (with or without conditions) if satisfied that the vessel is not an unsafe vessel;

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Act No. 82/1995

(e) before an order for final detention is made, the Board must cause a copy of the report to be served on the master or owner of the vessel;

(/) the Board must cause a copy of an order for final detention to be served on the owner and master of the vessel (if their identity and whereabouts are known to the Board).

(7) If an order for the final detention of a vessel is made, the vessel must not be released until the Board is satisfied that its further detention is no longer necessary, and orders its release.

(8) The owner of a vessel must not cause or allow the vessel to be taken on a voyage if the owner knows that the vessel has been detained under this section and has not been duly released.


(9) The master of a vessel must not take the vessel on a voyage if the master knows that the vessel has been detained under this section and has not been duly released.


(10) An agent for a vessel that has been detained under this section and has not been duly released must not assist the owner or master of the vessel to contravene this section.


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(11) A person must not obstruct or fail to comply with any reasonable requirement of a person appointed by the Board to take charge of a vessel detained under this section in connection with the exercise of that person's functions.


(12) If a vessel is detained under this section without reasonable cause, the Board is liable to pay the owner of the vessel compensation for any loss or damage resulting from the detention.".

176. Service

In section 101 of the Marine Act 1988, at the end of the section insert—

"(3) If under this Act or the regulations a notice, summons or other document is required or permitted to be served on the owner or master of a vessel, it may be served by serving it on the agent for the vessel.".

177. Fees, rates and charges

In section 108 (1) of the Marine Act 1988—

(a) in paragraph (a) after "for" insert "the issue of licences or certificates or";

(b) in paragraph (b) after "services" insert "or the control of navigation or management of vessel movement in State waters outside ports".

178. Repeal of Division 4 of Part 10

Division 4 of Part 10 of the Marine Act 1988 is repealed.

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179. Particular powers of the Board

(1) In Schedule 4 to the Marine Act 1988 after paragraph 8 insert—

"HARBOUR MASTERS

8A. To issue, cancel or suspend the licences of harbour masters.

8B. To inquire into the conduct of harbour masters.".

(2) In Schedule 4 of the Marine Act 1988 after paragraph 15 insert—

"TONNAGE

15A. TO determine the tonnage of vessels.".

(3) In Schedule 4 of the Marine Act 1988 after paragraph 18 insert—

"18A. TO provide and maintain, in accordance with the standards developed by the Board, navigation aids in State waters control over the navigation of which is not vested in a local authority, the Victorian Channels Authority or a channel operator.

18B. TO develop standards for the provision and maintenance of navigation aids in State waters the navigation of which is under the control of the Victorian Channels Authority or a channel operator or local authority.

18c. TO give directions (not being directions that would endanger the life of any person on the vessel) prohibiting the entry into, or requiring the removal from, any State waters of any vessel that it has reasonable cause to believe is unseaworthy or in imminent danger of sinking and causing an obstruction to navigation or is in imminent danger of causing serious damage to the marine environment or property in State waters.

2308


1 8D. If it considers it desirable to do so for the safety or convenience of navigation in State waters, by notice served on the owner or person in possession or control of a light (including a fire, lamp, illuminated sign, street light or other illuminating device) to require that owner or person to extinguish, remove, relocate, alter or modify the light as specified in the notice or do or refrain from doing any specified thing in relation to the light.

18E. TO control navigation and vessel movements in State waters control over the navigation of which is not vested in a local authority, the Victorian Channels Authority or a channel operator.

18F. TO designate anchorage areas within State waters control over the navigation of which is not vested in a local authority, the Victorian Channels Authority or a channel operator and prohibit anchoraging outside those areas.

18G. TO develop standards for the dredging and maintenance of channels the navigation of which is under the control of the Victorian Channels Authority or a channel operator or local authority.

18H. TO direct persons who manage and control channels to publish information about the depths and configurations of the channels.".

(4) In Schedule 4 of the Marine Act 1988, after paragraph 21 insert—

"VICTORIAN MARINE POLLUTION CONTINGENCY PLAN

22. To direct local authorities, channel operators, port operators, committees of management of Crown land within designated ports, oil terminal operators and any other person or body specified in an Order made by the Governor in

2309


Council for the purposes of this paragraph and published in the Government Gazette to participate in the Victorian Marine Pollution Contingency Plan by providing and maintaining equipment, training personnel and responding to marine pollution incidents as directed by the Board.".

180. Subject matter for regulations

(1) In Schedule 5 to the Marine Act 1988, after paragraph 23 insert—

"HARBOUR MASTERS

23A. Applications for harbour master licences, the dates by which applications must be made and the information and evidence that must accompany applications.

23B. Requirements to be complied with before harbour master licences may be granted, varied or renewed.

23c. The conditions on which harbour master licences may be granted, varied or renewed.

23D. The date on which harbour master licences commence and the period for which they remain in force.

23E. The qualifications and experience required on the part of harbour masters and the examination of people as to their competency to act as harbour masters.".


"60A. The safety of navigation in State waters.

60B. The safe anchoring, mooring, riding and securing of vessels in State waters.

2310


60c. The stability, direction and control of vessels in State waters.

60D. The slipping, careening and repairing of vessels in State waters.

60E. Cutting and welding operations on vessels in State waters and the safety measures required for the protection of persons and property.

60F. Ballast and ballast water.

60G. The removal of wrecks and obstructions to navigation in State waters.

60H. The regulation and control of the use of lights and fire on board any vessel in State waters.

60i. Fire-fighting on board vessels in State waters.

60J. Access to and from vessels in State waters and the safety of persons embarking or disembarking from such vessels.

60K. Bunkering operations.".


"MARINE POLLUTION

63A. The implementation, administration and co-ordination of the Victorian Marine Pollution Contingency Plan.".


"TONNAGE

81. The ascertainment of the tonnage of vessels.".

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Act No. 82/1995

PART 12—AMENDMENT OF POLLUTION OF WATERS BY OIL AND NOXIOUS SUBSTANCES ACT 1986

181. Definitions

In section 3 (1) of the Pollution of Waters by Oil and Noxious Substances Act 1986— (a) after the definition of "Australian ship" insert—

'"Authority" means Environment Protection Authority constituted under the Environment Protection Act 1970;

"authorised officer" means— (a) a person who is appointed in writing

by the Authority for the purposes of this Act; or

(b) an authorised officer within the meaning of the Environment Protection Act 1970; or

(c) a member of the police force;';

(b) the definitions of "inspector" and "Port Authority" are repealed;

(c) before the definition of "master" insert—

'"Marine Board" means the Marine Board of Victoria constituted under the Marine Act 1988;'.

182. Delegation

(1) In section 6 (1) of the Pollution of Waters by Oil and Noxious Substances Act 1986, for "Minister" (where twice occurring) substitute "Authority".

(2) For section 6 (2) of the Pollution of Waters by Oil and Noxious Substances Act 1986 substitute—

"(2) An authorised officer (other than a member of the police force) may, by instrument, delegate to any other person any power as an authorised officer under this Act, other than this power of delegation.".

2312


183. New Division 2D inserted

Before Division 3 of Part 2 of the Pollution of Waters by Oil and Noxious Substances Act 1986 insert—

'Division 2D—Discharges

23H. Definitions

(1) In this Division—

"agent", in relation to a ship, means any person who performs for or on behalf of the owner of the ship any function or duty under or for the purposes of this Act and includes any person who, within the State, on behalf of the owner of the ship, undertakes or performs the functions of ships' husbandry or makes any arrangements for or in connection with the repair or berthing of the ship or the carriage, loading or unloading of cargo, stores or bunkers on the ship or from the ship;

"discharge" means any discharge or escape, howsoever caused;

"liquid substance" and "mixture" have the same meanings as in Division 2;

"occupier"—

(a) in relation to a place on land, means the person exercising personally or through servants or agents, any right of occupation of the land or, if there is no such person, the owner of the land; and

(b) in relation to a vehicle, includes the person in charge of the

2313


Act No. 82/1995

vehicle and the owner of the vehicle but does not include the occupier of the land on or over which the vehicle stands or moves; and

(c) in relation to a pipeline, means the person who undertakes the carriage of oil or an oily mixture by means of the pipeline;

"oil" and "oily mixture" have the same meanings as in Annex 1 to the Convention;

"oil tanker" means a ship constructed or adapted for carrying a cargo of oil in bulk;

"oil residues" means those parts of an oily mixture that remain after undergoing a separation process;

"place on land" includes—

(a) any structure or apparatus on land;and

(b) any thing or vehicle resting on or moving over land; and

(c) any thing resting on or lying under the bed, shore or bank of any navigable waters; and

(d) any thing afloat (other than a ship) if it is anchored or attached to the bed, shore or bank of any navigable waters or is used in any operation for the exploration of the sea-bed and sub-soil or the exploitation of the natural resources of the sea-bed and sub-soil;

2314


"prohibited discharge" means a discharge into State waters of— (a) oil; or

(b) an oily mixture; or (c) an undesirable substance;

"public statutory body" includes any Minister of the Crown and any municipal council;

"ship" has the same meaning as in Annex 1 to the Convention;

"transfer operation" mean any operation involved in the preparation for, or the commencement, carrying on or termination of, the transfer of oil or an oily mixture or a liquid substance or a mixture containing a liquid substance from or to any ship, whether to or from a place on land or to or from another ship;

"undesirable substance" means— (a) any solid ballast, rubbish,

gravel, earth, stone or wreck; or (b) any dangerous, flammable,

corrosive or offensive substance, whether solid, liquid or gaseous; or

(c) any article or thing or any substance (whether solid, liquid or gaseous) which is capable of constituting a hazard to navigation or of preventing or hindering the proper use of State waters—

but does not include oil or an oily mixture.

(2) A discharge of oil or an oily mixture onto or into any land, water, structure or thing is, if the whole or any part of the oil or

2315


Act No. 82/1995

oily mixture eventually enters State waters, to be taken for all purposes under this Part to be a discharge into State waters of the oil or oily mixture or of so much of it as enters State waters.

23i. Environment Protection Act prevails

To the extent that this Division is inconsistent with any of the provisions of the Environment Protection Act 1970, the provisions of the Environment Protection Act 1970 prevail.

23j. Prohibited discharge into State waters

(1) If a prohibited discharge occurs from any apparatus used in a transfer operation, the person in charge of the apparatus is guilty of an indictable offence.

(2) If a prohibited discharge occurs by reason of any act or omission in a transfer operation (not being an act or omission done or made at the place on land or in relation to the apparatus from which the discharge occurs)—

(a) if the act or omission is done or made at a place on land (otherwise than in circumstances described in paragraph (£>))—the occupier of that place; or

(b) if the act or omission is done or made in relation to apparatus used in a transfer operation—the person in charge of the apparatus—

is guilty of an indictable offence.

2316


(3) A person who is guilty of an offence under sub-section (1) or (2) is liable— (a) in the case of an individual, to a fine

not exceeding 2000 penalty units or imprisonment for 2 years, or both; or

(b) in the case of a body corporate, to a fine not exceeding 10 000 penalty units.

(4) It is a defence to a charge under sub-section (1) for the person charged to prove— (a) that the discharge was due to an

accident that could not have been foreseen and avoided; and

(b) that all reasonable steps were taken for the prompt discovery of the discharge and, after the discovery, for stopping or reducing the discharge.

(5) It is a defence to a charge under sub-section (2) for the person charged to prove that the act or omission by reason of which the discharge occurred was not done or made wilfully or negligently.

23K. Discharge from ships

(1) If a discharge into State waters of oil or an oily mixture occurs from any ship that— (a) is not an oil tanker; and

(b) has a gross tonnage of less than 400—

the owner of that ship is guilty of an indictable offence.

(2) If a discharge into State waters of an undesirable substance (not being a liquid substance or a mixture containing a liquid substance carried as cargo or part cargo in

2317


bulk) occurs from any ship, the owner of that ship is guilty of an indictable offence.

(3) A person who is guilty of an offence under sub-section (1) or (2) is liable—

(a) in the case of an individual, to a fine not exceeding 2000 penalty units or imprisonment for 2 years, or both; or

(b) in the case of a body corporate, to a fine not exceeding 10 000 penalty units.

(4) It is a defence to a charge under sub-section (1) or (2) for the person charged to prove—

(a) that the discharge was due to an accident that could not have been foreseen and avoided; and

(b) that all reasonable steps were taken for the prompt discovery of the discharge and, after the discovery, for stopping or reducing the discharge.

23L. Duty to report discharges

(1) If a prohibited discharge occurs from any apparatus used in a transfer operation on any place on land or from any ship that is not an oil tanker and has a gross tonnage of less than 400, the occupier of that place, or the owner or master of the ship must, without delay, inform the Authority or its delegate of all details of the occurrence and if the Authority or its delegate is not so notified each of those persons is guilty of an indictable offence punishable, on conviction—

(a) if the offender is an individual, by a fine not exceeding 500 penalty units,

2318


or imprisonment for one year, or both; or

(b) if the offender is a body corporate, by a fine not exceeding 2500 penalty units.

(2) If information is given orally under sub-section (1), the occupier, owner or master must give to the Authority within 24 hours a written notice confirming the information.


(3) A certificate purporting to be issued by the Authority or to be signed by an authorised officer or any other person authorised by the Authority in that behalf certifying that by a particular time any information or notice required to be given to the Authority by sub-section (1) or (2) had not been given, is admissible in evidence in any proceedings for an offence under either of those sub-sections and, in the absence of evidence to the contrary, is proof of the matters stated in the certificate.'.

184. Power to prosecute and application of penalties

Sections 24A and 24B of the Pollution of Waters by Oil and Noxious Substances Act 1986 are repealed.

185. Reception facilities

(1) In section 24E (1) of the Pollution of Waters by Oil and Noxious Substances Act 1986, omit "provide, join with any other person (including the Crown) in providing, arrange for the provision of, or".

2319


(2) In section 24E of the Pollution of Waters by Oil and Noxious Substances Act 1986—

(a) in sub-sections (1) and (3), for "A Port Authority" substitute "The Minister";

(b) in sub-section (4) (a), for "Port Authority" substitute "Minister".

(3) In section 24E (5) (b) of the Pollution of Waters by Oil and Noxious Substances Act 1986, for "chief executive officer of the Port Authority" substitute "Minister".

186. Amendment of section 27

After section 27 (c) of the Pollution of Waters by Oil and Noxious Substances Act 1986 insert—

"; and

(d) a map, plan or chart of any State waters purporting to be certified by the Authority or by a person authorised by the Authority for the purpose is admissible in evidence and, in the absence of evidence to the contrary, is proof of any matter that is apparent from, or can be calculated from, the map, plan or chart.".

187. Section 28 substituted

For section 28 of the Pollution of Waters by Oil and Noxious Substances Act 1986 substitute—

"28. Enforcement provisions

Sections 57, 57A, 58, 59, 66c and 69 of the Environment Protection Act 1970 must be read and construed as one with this Act.".

2320



After section 34 of the Pollution of Waters by Oil and Noxious Substances Act 1986 insert—

"34A. Execution of documents by Authority

Section 59AA of the Environment Protection Act 1970 must be read and construed as one with this Part.".

189. Consequential amendments

(1) In section 3 of the Pollution of Waters by Oil and Noxious Substances Act 1986, in the definition of "pleasure vessel", for "Minister" substitute "Authority".

(2) In the heading to Part 2 of the Pollution of Waters by Oil and Noxious Substances Act 1986 omit "FROM SHIPS".

(3) In sections 18 (4) (b), (5) (b) and (15) and 20 (6) of the Pollution of Waters by Oil and Noxious Substances Act 1986, for "inspector" (wherever occurring) substitute "authorised officer".

(4) In section 24 of the Pollution of Waters by Oil and Noxious Substances Act 1986, in sub-sections (1) (b) (c) (d) (/) and (J), (2) (a) and (3), for "inspector" substitute "authorised officer".

(5) In section 29 of the Pollution of Waters by Oil and Noxious Substances Act 1986, for "inspector" (where twice occurring) substitute "authorised officer".

(6) In section 37 (1) of the Pollution of Waters by Oil and Noxious Substances Act 1986—

(a) for "Minister" substitute "Marine Board";

(b) for "he" substitute "the Marine Board".

(7) In section 11 of the Pollution of Water by Oil and Noxious Substances (Amendment) Act 1991, in the

2321


proposed new section 18A (1) (e), for "inspector" substitute "authorised officer".

(8) In section 17 of the Pollution of Water by Oil and Noxious Substances (Amendment) Act 1991, in the proposed new section 23G (4) (a) (i), for "inspector" substitute "authorised officer".

PART 13—AMENDMENT OF DANGEROUS GOODS ACT 1985

190. Definition

In section 3 (1) of the Dangerous Goods Act 1985, after the definition of "Officer or member" insert—

' "owner" in relation to a ship, includes a person who is the charterer of the ship or has possession of the ship;'.

191. Application of Act

For section 9 (c) of the Dangerous Goods Act 1985 substitute—

"(c) the transport of dangerous goods by ships;

(ca) ship to ship transfers of dangerous goods;

(cb) the transport by boat of dangerous goods (not being explosives) carried as freight;".

192. Ships

(1) In sections 17 (other than (1) (d)), 27 (1), 29 and 32 (3) of the Dangerous Goods Act 1985 after "vehicle" (wherever occurring) insert", ship".

(2) In the Dangerous Goods Act 1985—

(a) in section 17 (1) (a) (iii) after "occupier" insert "or master";

(b) in section 17 (1) (d)—

(i) after "driver" insert "or master";

(ii) after "vehicle" insert", ship or boat";

2322


(c) in section 17 (1) (/) after "owner" insert "or master";

(d) in section 17 (2) after "owner" insert ", including a master,";

(e) in section 32 (1) after "person" (where twice occurring) insert "or master of a ship";

(/) in section 32 (3) after "owner" insert "or master";

(g) in sections 33 (1) and 33 (2) for ", vehicle or boat" substitute "or vehicle";

(h) section 35 is repealed.

193. Subject-matter for regulations

In Schedule 2 to the Dangerous Goods Act 1985—

(a) in paragraph 13 after "vehicle" insert ", ship or boat";

(b) after paragraph 13 insert—

"13A. The conditions under which dangerous goods may be transferred on or transferred from any ship or boat.";

(c) in paragraph 45 after "vehicles" insert ", ships";

(d) in paragraph 46 after "vehicle" insert", ship";

(e) in paragraph 51—

(i) after "storage" insert "or transfer";

(ii) after "of storage" insert "or of transfer".

PART 14—AMENDMENT OF OTHER ACTS

194. Borrowing and Investment Powers Act 1987

(1) In Schedule 1 to the Borrowing and Investment Powers Act 1987, after item 7 insert— "7A. Melbourne Port Corporation 5, 6, 8, 10, 11, IIAA,

IIAB, 13, 14, 14A, 15, 20, 20A and 21.".

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Act No. 82/1995

(2) In Schedule 1 to the Borrowing and Investment Powers Act 1987, after item 20 insert— "20A. Victorian Channels Authority 5, 6, 8, 10, 11, IIAA,

IIAB, 13, 14, 14A, 15,

20, 20A and 21.".

195. Treasury Corporation of Victoria Act 1992

(1) In section 36A of the Treasury Corporation of Victoria Act 1992, in the definition of "public authority", after "Grain Elevators Board," insert "the Port of Melbourne Authority, the Port of Geelong Authority, the Port of Portland Authority, the Melbourne Port Corporation, the Victorian Channels Authority,".

(2) At the end of Schedule 1 to the lYeasury Corporation of Victoria Act 1992 insert—

"Melbourne Port Corporation Port Services Act 1995

Victorian Channels Authority Port Services Act 1995".

196. Amendment of Ports Acts (Amendment) Act 1995

(1) In section 6 of the Ports Acts (Amendment) Act 1995, for "Marine Act 1958" substitute "Marine Act 1988".

(2) In section 6 of the Ports Acts (Amendment) Act 1995, in proposed section 111 (1) of the Marine Act 1988— (a) in paragraphs (a), (b) and (c), after "1958"

insert "as in force on 1 January 1995"; (b) in paragraph (d), for "1994" substitute "1995".

(3) In section 6 of the Ports Acts (Amendment) Act 1995, in proposed section 112 (1) of the Marine Act 1988, for the definition of "associated port functions and powers" substitute—

'"associated port functions and powers" means functions and powers of a kind that the Port of Melbourne Authority had under Part II, III or IV of the Port of Melbourne Authority Act 1958

2324


as in force on 1 January 1995 or under regulations as then in force under that Act relating to any of those Parts and could then have exercised in relation to the port within the meaning of that Act;'.

(4) In section 6 of the Ports Acts (Amendment) Act 1995, in proposed section 112 (6) of the Marine Act 1988, after "1958" insert "as in force on 1 January 1995".

(5) Sections 7, 10, 11 and 13 of the Ports Acts (Amendment) Act 1995 are repealed.

(6). Sections 14, 15, 16 and 20 of the Ports Acts (Amendment) Act 1995 are repealed.

(7) Sections 21, 25, 26 and 27 of the Ports Acts (Amendment) Act 1995 are repealed.

197. Amendment of Westernport Development Act 1967

In section 2 (a) of the Westernport Development Act 1967 after "Schedule" insert "and includes the Agreement as varied from time to time".

198. New section 6 inserted in Westernport Development Act 1967

After section 5 of the Westernport Development Act 1967 insert—

"6. Variation of Agreement

(1) The Agreement may be varied by agreement between the Premier of Victoria and the Companies with the approval of the Governor in Council by Order in Council containing particulars of the variation published in the Government Gazette.

(2) Unless and until each House of Parliament passes a resolution in

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Act No. 82/1995

accordance with sub-section (6) disallowing an Order in Council varying the Agreement, the provisions of the agreement making the variation shall have the force of law on and after the date on which the Order was published in the Government Gazette as though the provisions of the agreement were expressly enacted in this Act.

(3) An Order in Council made under sub-section (1) must, on publication in the Government Gazette, be judicially noticed and that publication is conclusive evidence of the variation to the Agreement set out in the Order.

(4) A copy of each Order in Council made under sub-section (1) must be laid before both Houses of Parliament on or before the sixth sitting day after the publication of the Order in the Government Gazette.

(5) An Order in Council made under sub-section (1) is disallowed if each House of Parliament passes a resolution in accordance with sub-section (6).

(6) A resolution to disallow an Order in Council made under sub-section (1) is passed in accordance with this sub-section if—

(a) notice of the resolution is given in each House of the Parliament on or before the 18th. day on which that House sits after the Order in Council is laid before that House; and

(b) the resolution is passed on or before the 12th. day on which that House sits after the notice of resolution has been given in that House.

2326


(7) The power of each House to pass a resolution disallowing an Order in Council under this section is not affected by the prorogation or dissolution of the Parliament or of either House of the Parliament and, if there is such a prorogation or dissolution, the calculation of days on which a House has sat must be made as if there had been no such prorogation or dissolution.

(8) Notice of a resolution to disallow an Order in Council may be expressed to apply to all or any part of the particulars of the variation contained in the Order in Council and a resolution to disallow all or any part of those particulars shall take effect according to its tenor.

(9) If a resolution is passed disallowing part only of the particulars of the variation contained in an Order in Council, the particulars not disallowed shall be of no effect unless and until each of the Premier of Victoria and the Companies gives notice to the other expressing an intention to be bound by the particulars not disallowed, or by part of those particulars, and, if notice is so given, the particulars, or part of the particulars, take effect accordingly.

(10) If an Order in Council is disallowed by Parliament in accordance with sub-section (6), the disallowance has the like effect to the repeal of an enactment.

(11) This section is in addition to and not in derogation from the power conferred by the Agreement for the Premier of Victoria and the Companies to enter agreements and arrangements for better giving effect to the provisions of the Agreement.".

2327


199. Amendment of Western Port (Steel Works) Act 1970

In section 2 (1) (a) of the Western Port (Steel Works) Act 1970 after "Schedule" insert "and includes the Agreement as varied from time to time".

200. New section 4A inserted in Western Port (Steel Works) Act 1970

After section 4 of the Western Port (Steel Works) Act 1970 insert—

"4A. Variation of Agreement

(1) The Agreement may be varied by agreement between the Premier of Victoria and the Company with the approval of the Governor in Council by Order in Council containing particulars of the variation published in the Government Gazette.

(2) Unless and until each House of Parliament passes a resolution in accordance with sub-section (6) disallowing an Order in Council varying the Agreement, the provisions of the agreement making the variation shall have the force of law on and after the date on which the Order was published in the Government Gazette as though the provisions of the agreement were expressly enacted in this Act.

(3) An Order in Council made under sub-section (1) must, on publication in the Government Gazette, be judicially noticed and that publication is conclusive evidence of the variation to the Agreement set out in the Order.

(4) A copy of each Order in Council made under sub-section (1) must be laid before both Houses of Parliament on or before

2328


the sixth sitting day after the publication of the Order in the Government Gazette.

(5) An Order in Council made under sub-section (1) is disallowed if each House of Parliament passes a resolution in accordance with sub-section (6).

(6) A resolution to disallow an Order in Council made under sub-section (1) is passed in accordance with this sub-section if—

(a) notice of the resolution is given in each House of the Parliament on or before the 18th. day on which that House sits after the Order in Council is laid before that House; and

(b) the resolution is passed on or before the 12th. day on which that House sits after the notice of resolution has been given in that House.

(7) The power of each House to pass a resolution disallowing an Order in Council under this section is not affected by the prorogation or dissolution of the Parliament or of either House of the Parliament and, if there is such a prorogation or dissolution, the calculation of days on which a House has sat must be made as if there had been no such prorogation or dissolution.

(8) Notice of a resolution to disallow an Order in Council may be expressed to apply to all or any part of the particulars of the variation contained in the Order in Council and a resolution to disallow all or any part of those particulars shall take effect according to its tenor.

(9) If a resolution is passed disallowing part only of the particulars of the variation

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Act No. 82/1995

contained in an Order in Council, the particulars not disallowed shall be of no effect unless and until each of the Premier of Victoria and the Company gives notice to the other expressing an intention to be bound by the particulars not disallowed, or by part of those particulars, and, if notice is so given, the particulars, or part of the particulars, take effect accordingly.

(10) If an Order in Council is disallowed by Parliament in accordance with sub-section (6), the disallowance has the like effect to the repeal of an enactment.

(11) This section is in addition to and not in derogation from the power conferred by the Agreement for the Premier of Victoria and the Company to enter agreements and arrangements for better giving effect to the provisions of the Agreement.".

201. Bayside Project Act 1988

In the Bayside Project Act 1988—

(a) in section 35 (a) (i) and (ii), after "Port of Melbourne Authority" insert "or the Melbourne Port Corporation";

(b) in section 35, paragraph (b) is repealed.

202. Docklands Authority Act 1991

In the Docklands Authority Act 1991

(a) in section 10 after "1958" insert "and the Minister administering the Port Services Act 1995";

(b) in section 28—

(i) after "Port of Melbourne Authority" insert ", Melbourne Port Corporation";

2330


(ii) for "or Public Transport Corporation" substitute ", Public Transport Corporation or the Victorian Channels Authority";

(c) in section 32 (1) (a)—

(i) after "Authority" (where first occurring) insert ", the Melbourne Port Corporation or the Victorian Channels Authority";

(ii) after "Authority" (where second occurring) insert "or Corporation";

(d) in section 32 (1), after paragraph (d) insert—

"(da) that land divested under this Act from the Melbourne Port Corporation or the Victorian Channels Authority is no longer subject to the Port Services Act 1995;";

(e) in section 32 (1), after paragraph (e) insert—

"(ea) that land to which a declaration under paragraph (da) applies is subject to the Port Services Act 1995;";

(/) in section 32 (2) after "Port of Melbourne Authority Act 1958" insert "or the Port Services Act 1995".

203. Environment Protection Act 1970

In section 61 (3) of the Environment Protection Act 1970 omit the expression commencing "a person" and ending with "and includes".

204. Historic Buildings Act 1981

In section 3 of the Historic Buildings Act 1981 in the definition of "public authority"—

(a) after "the Port of Melbourne Authority" insert "the Melbourne Port Corporation,";

(b) after "the Victorian Arts Centre Trust" insert "the Victorian Channels Authority".

2331


Act No. 82/1995

205. Land Act 1958

In section 385 (2) of the Land Act 1958, after paragraph (d) insert—

"; or (e) the Melbourne Port Corporation; or (/) the Victorian Channels Authority.".

206. Metropolitan Fire Brigades Act 1958

In section 4 (2) of the Metropolitan Fire Brigades Act 1958, after paragraph (a) insert—

"(aa) lands which are vested in or purchased or acquired by the Melbourne Port Corporation or the Victorian Channels Authority under the Port Services Act 1995; and".

207. Melbourne and Metropolitan Board of Works Act 1958

(1) In section 147 of the Melbourne and Metropolitan Board of Works Act 1958— (a) after "Port of Melbourne Authority" (where first

occurring) insert "and of the port waters of the port of Melbourne within the meaning of the Port Services Act 1995";

(b) after "1958" insert "or of any such port waters";

(c) after "Port of Melbourne Authority before" insert "or the Victorian Channels Authority (as the case requires)".

(2) In section 259 (1) of the Melbourne and Metropolitan Board of Works Act 1958, in the definition of "public corporation" after "Port of Melbourne Authority" insert ", the Melbourne Port Corporation, the Victorian Channels Authority".

(3) In the Twelfth Schedule to the Melbourne and Metropolitan Board of Works Act 1958, after "Port of Melbourne Authority" insert "or the Victorian Channels Authority".

2332

Port Services Act 1995 Act No. 82/1995 Sch. 1

SCHEDULE 1

PROVISIONS APPLYING TO PORT CORPORATIONS

1. Board of directors

(1) There shall be a board of directors of each port corporation consisting of not less than 3, and not more than 5, directors appointed in accordance with this Schedule.

(2) The board of directors of a port corporation—

(a) is responsible for the management of the affairs of the port corporation; and

(b) may exercise the powers of the port corporation.

2. Constitution of board

The board of a port corporation shall consist of—

(a) a chairperson;

(b) a deputy chairperson;

(c) subject to clause 1, such number of other directors as are appointed by the Governor in Council in accordance with this Schedule.

3. Appointment of directors

(1) The chairperson, deputy chairperson and other directors of a port corporation shall be appointed by the Governor in Council.

(2) The Public Sector Management Act 1992 does not apply to a director of a port corporation in respect of the office of director.

4. Terms and conditions of appointment

(1) A director of a port corporation shall be appointed for such term, not exceeding 3 years, as is specified in the instrument of appointment, but is eligible for re-appointment.

(2) A director of a port corporation holds office, subject to this Act, on such terms and conditions as are determined by the Minister after consultation with the Treasurer.

5. Acting appointments

(1) When—

(a) the office of chairperson of the board of a port corporation is vacant; or

2333

Sch. 1 Port Services Act 1995

Act No. 82/1995

SCHEDULE I—continued

(b) the chairperson of the board of a port corporation is absent from Victoria or is, for any reason, unable to attend meetings of the board or otherwise unable to perform the duties of the office—

the deputy chairperson of the board must act as chairperson.

(2) While the deputy chairperson of the board of a port corporation is acting as chairperson, the deputy chairperson has and may exercise all the powers, and must perform all the duties of the chairperson.

(3) The Minister may appoint a director of a port corporation to act as deputy chairperson of the board of the port corporation—

(a) during a vacancy in the office of deputy chairperson; or

(b) during any period, or during all periods, when the deputy chairperson is acting as chairperson or is unable, for any reason, to attend meetings of the board.

(4) The Minister may appoint a person to act as a director (other than the chairperson or deputy chairperson) of a port corporation—

(a) during a vacancy in the office of such a director; or

(b) during any period, or during all periods, when such a director is acting as deputy chairperson or is unable, for any reason, to attend meetings of the board.

6. Chief executive officer and other staff

(1) The board of a port corporation, with the approval of the Treasurer after consultation/with the Minister, may appoint a person as the chief executive officer of the port corporation.

(2) The chief executive officer of a port corporation holds office, subject to this Act, on a full-time basis and on such terms and conditions as are determined by the Minister, after consultation with the Treasurer and specified in the instrument of appointment.

(3) The Minister may remove the chief executive officer of a port corporation from office.

(4) The chief executive officer of a port corporation may be a director of the port corporation but may not be the chairperson.

(5) The board of a port corporation may engage such other officers and employees as are necessary for the performance of its functions.

(6) The terms and conditions of employment of officers and employees of a port corporation are as determined by the board of the port corporation.

2334

Port Services Act 1995 Act No. 82/1995 Sch.l

SCHEDULE 1—continued

Vacancies, resignations, removal from office

(1) The office of a director of a port corporation becomes vacant if the director—

(a) without the board's approval, fails to attend 3 consecutive meetings of the board of the port corporation; or

(b) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit; or

(c) is convicted of an indictable offence or an offence which, if committed in Victoria, would be an indictable offence.

(2) A director of a port corporation may resign by writing delivered to the Minister.

(3) The Governor in Council may remove a director, or all directors, of a port corporation from office.

(4) If a director of a port corporation—

(a) is convicted of an offence relating to his or her duties as a director; or

(ft) fails, without reasonable excuse, to comply with clause l i

the director must be removed from office by the Governor in Council.

Validity of decisions

(1) An act or decision of the board of a port corporation is not invalid merely because of—

(a) a defect or irregularity in, or in connection with, the appointment of a director of the port corporation; or

(b) a vacancy in the membership of the board, including a vacancy arising from the failure to appoint an original director.

(2) Anything done by or in relation to a person purporting to act as chairperson, deputy chairperson or as a director is not invalid merely because—

(a) the occasion for the appointment had not arisen; or

(b) there was a defect or irregularity in relation to the appointment; or

(c) the appointment had ceased to have effect; or

(d) the occasion for the person to act had not arisen or had ceased.

2335

Port Services Act 1995 Sch. 1 Act No. 82/1995

SCHEDULE I—continued

9. Proceedings of board

(1) Subject to sub-clause (2), meetings of the board of a port corporation shall be held at such times and places as the board determines.

(2) The chairperson of a port corporation may at any time convene a meeting but must do so when requested by a director of the port corporation.

(3) A majority of the directors for the time being of a port corporation constitute a quorum of the board of the port corporation.

(4) A question arising at a meeting of the board of a port corporation shall be determined by a majority of votes of directors of the port corporation present and voting on that question and, if voting is equal, the person presiding has a casting, as well as a deliberative, vote.

(5) The board of a port corporation must ensure that minutes are kept of each of its meetings.

(6) Subject to this Act, the board of a port corporation may regulate its own proceedings.

10. Resolutions without meetings

(1) If the directors for the time being of a port corporation (other than a director who is absent from Australia when the other directors sign) sign a document containing a statement that those directors are in favour of a resolution in terms set out in the document, a resolution in those terms shall be taken to have been passed at a meeting of the board held on the day on which the document is signed or, if the directors do not sign it on the same day, on the day on which the last director to sign signs the document.

(2) If a resolution is, under sub-clause (1), taken to have been passed at a meeting of the board, each director must be advised as soon as practicable and given a copy of the terms of the resolution.

(3) For the purposes of sub-clause (1), two or more separate documents containing a statement in identical terms, each of which is signed by one or more directors, shall be taken to constitute one document.

(4) In this clause, "director" in relation to a resolution, does not include a director who, by reason of clause 11, is not permitted to take part in the making of the resolution.

2336

Port Services Act 1995 Act No. 82/1995 Sch.l

SCHEDULE 1—continued

11. Disclosure of interests

(1) I f -

(a) a director of a port corporation has a direct or indirect pecuniary interest in a matter being considered, or about to be considered, by the board of the port corporation; and

(b) the interest could conflict with the proper performance of the director's duties in relation to the consideration of the matter—

the director, as soon as practicable after the relevant facts come to the director's knowledge, must disclose the nature of the interest at a meeting of the board.

(2) A disclosure under sub-clause (1) must be recorded in the minutes of the meeting and, unless the Minister or the board otherwise determines, the director—

(a) must not be present during any deliberation of the board in relation to the matter; and

Ob) must not take part in any decision of the board in relation to the matter.

(3) For the purpose of the making of a determination by the board of a port corporation under sub-clause (2) in relation to a director who has made a disclosure under sub-clause (1), a director who has a direct or indirect pecuniary interest in the matter to which the disclosure relates—

(a) must not be present during any deliberation of the board for the purpose of making the determination; and

(b) must not take part in the making by the board of the determination.

(4) Sub-clauses (1) and (2) do not apply in relation to a matter relating to the supply of goods or services to the director if the goods or services are, or are to be, available to members of the public on the same terms and conditions.

2337

Notes Port Services Act 1995

Act No. 82/1995

NOTES

1. Minister's second reading speech—

Legislative Assembly: 5 October 1995

Legislative Council: 31 October 1995

2. The long title for the Bill for this Act was "A Bill to make further provision relating to ports, to amend the Port of Melbourne Authority Act 1958, the Port of Geelong Authority Act 1958, the Port of Portland Authority Act 1958, the Marine Act 1988 and certain other Acts and for other purposes.".

3. Section headings appear in bold italics and are not part of the Act. (See Interpretation of Legislation Act 1984.)

2338

Port Services Act 1995

Documents

Transcript of Port Services Act 1995