Transport Legislation Amendment (Port of Hastings Development

Authority) Bill 2011

Introduction Print

EXPLANATORY MEMORANDUM

General

The purpose of the Transport Legislation Amendment (Port of Hastings Development Authority) Bill 2011 (the Bill) is to promote increased capacity and competition in the container ports sector in Victoria.

Specifically the Bill establishes the Port of Hastings Development Authority under the Transport Integration Act 2010 (Transport Integration Act) to—

manage and operate the port of Hastings; and

facilitate the development of the port of Hastings as a viable alternative to the port of Melbourne.

The Bill transfers responsibility for the port of Hastings land from the Port of Melbourne Corporation to the Port of Hastings Development Authority PoHDA, and transfers responsibility for the port of Hastings channels and waters from the Port of Melbourne Corporation to the Victorian Regional Channels Authority.

Separating responsibility for port of Hastings land and waters allows the Port of Hastings Development Authority to focus on the key role of planning for the development of the port.

Under the Transport Integration Act, the Port of Hastings Development Authority will be a "Transport Corporation" established and constituted in the same manner as the Port of Melbourne Corporation and the Victorian Regional Channels Authority under Part 6 of that Act.

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The Bill makes associated changes to the Transport Integration Act, the Port Management Act 1995, the Marine Act 1988, the Marine Safety Act 2010 and other Acts for related purposes.

Clause Notes

PART 1—PRELIMINARY

Clause 1 sets out the main purpose of the Bill, which is to promote increased capacity and competition in the container ports sector in Victoria by amending the Transport Integration Act, the Port Management Act 1995 and other Acts to provide for—

the establishment of the Port of Hastings Development Authority;

the transfer of functions relating to the port of Hastings from the Port of Melbourne Corporation to the Port of Hastings Development Authority;

the transfer of functions relating to port of Hastings waters from the Port of Melbourne Corporation to the Victorian Regional Channels Authority;

the making of consequential and transitional amendments.

Clause 2 deals with commencement and provides that—

the provisions of the Bill come into operation on a day or days to be proclaimed; and

if a provision in the Bill does not come into operation before 1 January 2012, it comes into operation on that day.

PART 2—AMENDMENT OF TRANSPORT INTEGRATION ACT 2010

Clause 3 amends some of the definitions in section 3 of the Transport Integration Act, and adds an additional defined term.

Subclause (1) inserts a new definition for the Port of Hastings Development Authority.

Subclause (2) amends the definition of transport body to include the Port of Hastings Development Authority.

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Subclause (3) amends the definition of Transport Corporation to include the Port of Hastings Development Authority.

Clause 4 repeals section 141A of the Transport Integration Act which set out a definition of PoMC ports.

Clause 5 repeals section 141B(3) and 141B(4) of the Transport Integration Act with respect to the naming of the Port of Melbourne Corporation as the successor in law of the former Port of Hastings Corporation.

Clause 6 amends the object of the Port of Melbourne Corporation in section 141D(1) and 141D(2) of the Transport Integration Act by substituting references to "PoMC ports" with "port of Melbourne". The provision also deletes a reference to "port of Hastings waters" to modify the scope of the Port of Melbourne Corporation's object so that it relates to the port of Melbourne only.

Clause 7 amends the functions of the Port of Melbourne Corporation in the Transport Integration Act to modify the scope of the Port of Melbourne Corporation's functions so that these relate to the port of Melbourne only. The provision also makes a minor amendment to an Act reference.

Subclause (1)(a) amends section 141E(1) of the Transport Integration Act by substituting references to "PoMC ports" with "port of Melbourne" wherever occurring.

Subclause (1)(b) amends section 141E(1)(g) of the Transport Integration Act by substituting the words "outside the ports" with "outside the port of Melbourne".

Subclause (1)(c) amends section 141E(1)(h), (i) and (j) of the Transport Integration Act by deleting references to "port of Hastings waters" wherever occurring.

Subclause (1)(d) amends section 141E(1)(j) of the Transport Integration Act by substituting "Marine Act 1988" with "Marine Safety Act 2010".

Subclause (2) amends section 141E(2) of the Transport Integration Act by substituting references to "PoMC ports" with "port of Melbourne" wherever occurring.

Clause 8 amends section 141F of the Transport Integration Act by deleting "or port of Hastings waters" wherever occurring.

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Clause 9 amends the definition of regional port waters in section 141I of the Transport Integration Act by deleting paragraph (b) relating to the port of Hastings waters. This has the effect of modifying the scope of the Victorian Regional Channels Authority's activities so that they include the port of Hastings waters.

Clause 10 amends section 141M(1)(a)(iii) of the Transport Integration Act by substituting "Marine Act 1988" with "Marine Safety Act 2010".

Clause 11 inserts a new Division 3C (new sections 141Q to 141V) into Part 6 of the Transport Integration Act to establish the Port of Hastings Development Authority.

New section 141Q provides for the establishment of the Port of Hastings Development Authority.

New section 141R provides that the Port of Hastings Development Authority is a public entity but does not represent the Crown.

New section 141S(1) sets out the primary object of the Port of Hastings Development Authority, being to—

manage and operate the port of Hastings; and

facilitate the development of the port of Hastings as a viable alternative to the port of Melbourne as a container port in order to increase capacity and competition in the container ports sector to accommodate future growth in trade—

consistently with the vision statement and the transport system objectives.

New section 141S(2) provides further detail to the primary object which should be considered inclusive and indicative, but not exhaustive. For example, paragraph (a) provides that the Port of Hastings Development Authority should seek to ensure, in collaboration with relevant responsible bodies, that appropriate transport infrastructure is provided to support the growth and development of the port of Hastings.

New section 141T sets out the functions of the Port of Hastings Development Authority. The functions set out in new section 141T(1) are broadly equivalent to those listed for the Port of Melbourne Corporation's activities in section 141E(1) of the

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Transport Integration Act. New section 141T(2) places additional obligations on the Port of Hastings Development Authority when performing functions, such as paragraph (a) requiring the Port of Hastings Development Authority to carry out its functions consistently with State policies and strategies for the development of the Victorian port and freight networks.

New section 141U requires the Port of Hastings Development Authority to obtain the approval of the Minister before acquiring or disposing of any interest in land.

New section 141V gives the Minister, with the approval of the Treasurer, the power to direct the board of the Port of Hastings Development Authority to perform or cease to perform functions which the Minister considers to be in the public interest, and requires the board of the Port of Hastings Development Authority to comply with such a direction. New section 141V(3) provides that any financial detriment suffered by the Port of Hastings Development Authority in complying with a direction under this section, may be reimbursed by the State.

Clause 12 amends section 158(6) of the Transport Integration Act, by inserting ", the Port of Hastings Development Authority" after "Port of Melbourne Corporation". Section 158 sets out how the initial capital of a Transport Corporation is to be determined.

Clause 13 amends section 159(2) of the Transport Integration Act, by inserting ", the Port of Hastings Development Authority" after "Port of Melbourne Corporation". Section 159 deals with matters relating to the capital of a Transport Corporation.

Clause 14 amends section 160(3) of the Transport Integration Act, by inserting ", the Port of Hastings Development Authority" after "Port of Melbourne Corporation". Section 160 deals with the repayment of a Transport Corporation's capital to the State.

Clause 15 inserts a new subsection (4) into section 164 of the Transport Integration Act, requiring the Port of Hastings Development Authority, in its annual report for a financial year under Part 7 of the Financial Management Act 1994, to include a copy of each direction given to it under section 141V, and its response to that direction, during that year.

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Clause 16 amends section 165(13) of the Transport Integration Act, by inserting ", the Port of Hastings Development Authority" after "Port of Melbourne Corporation". Section 165 requires Transport Corporations such as the new Port of Hastings Development Authority to provide corporate plans to the Minister.

Clause 17 amends section 166(2) of the Transport Integration Act, by inserting ", the Port of Hastings Development Authority" after "Port of Melbourne Corporation". Section 166 sets out the requirements for the composition of the statement of corporate intent of a Transport Corporation.

Clause 18 amends section 167(3) of the Transport Integration Act, by inserting ", the Port of Hastings Development Authority" after "Port of Melbourne Corporation". Section 167 requires a Transport Corporation to comply with its corporate plan.

Clause 19 amends section 169(3) of the Transport Integration Act, by inserting ", the Port of Hastings Development Authority" after "Port of Melbourne Corporation". Section 169 requires the board of a Transport Corporation to notify the Minister of any matter which may prevent or significantly affect the Transport Corporation achieving its business objectives or targets under the corporate plan.

Clause 20 inserts a new section 201D into the Transport Integration Act.

New section 201D provides for the substitution of parties to the channel operating agreement in respect of the port of Hastings waters. Section 201C previously novated the channel operating agreement to the Port of Melbourne Corporation and section 201D provides that the Victorian Regional Channels Authority is re-instated as party to that agreement.

Clause 21 inserts a new Part 9 (new sections 207 to 239) in the Transport Integration Act to provide for the transfer of—

property and staff from the Port of Melbourne Corporation to the Port of Hastings Development Authority (Division 1); and

property from the Port of Melbourne Corporation to the Victorian Regional Channels Authority (Division 2).

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New section 207 sets out definitions for Division 1 including allocation statement and former Port of Melbourne Corporation instrument as well as providing that the Minister may fix the relevant date for the purposes of an allocation statement under new section 208.

New section 208 provides that the Minister may direct the transfer of Port of Melbourne Corporation property, rights and liabilities to the Port of Hastings Development Authority. The transfer is to be made under an allocation statement.

New section 209 provides that all property, rights and liabilities that are allocated under an allocation statement are transferred from the Port of Melbourne Corporation to the Port of Hastings Development Authority in accordance with the statement on the relevant date, which is the date fixed by the Minister by notice published in the Government Gazette.

New section 210 sets out that property, rights and liabilities vest in the Port of Hastings Development Authority subject to any encumbrances or rights to which they were subject immediately before vesting.

New section 211 sets out that the chief executive officer of the Port of Melbourne Corporation may sign certificates which certify that property, rights or liabilities of the Port of Melbourne Corporation have been allocated.

New section 212 provides that any value given to transferred property, rights or liabilities in an allocation statement is the value of the property, rights or liabilities to the Port of Hastings Development Authority.

New section 213 substitutes the Port of Hastings Development Authority as a party to any allocated agreement in the place of the Port of Melbourne Corporation.

New section 214 continues the effect of and reconstrues references in former Port of Melbourne Corporation instruments.

New section 215 substitutes the Port of Hastings Development Authority as a party in proceedings relating to the Port of Melbourne Corporation property.

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New section 216 provides that after the relevant date the Port of Hastings Development Authority is to be taken as the registered proprietor of an interest in land in relation to former Port of Melbourne Corporation property.

New section 217 sets out matters relating to the Port of Hastings Development Authority acquiring any right in the nature of an easement.

New section 218 provides that the Registrar of Titles, on request and on delivery of any relevant certificate or instrument, is to make any amendments to the Register that are necessary as a result of the operation of Division 1 of new Part 9.

New section 219 provides that no stamp duty or other tax is chargeable under any Act in respect of any act or transaction connected with or necessary to be done by reason of Division 1 of new Part 9.

New section 220 provides for the admissibility of evidence relating to former Port of Melbourne Corporation property.

New section 221 provides that the validity of things listed in the section is not to be affected by things done under Division 1 of new Part 9.

New section 222 provides that the Minister may direct the Port of Melbourne Corporation to lease land to the Port of Hastings Development Authority.

New section 223 sets out provisions relating to the transfer of staff from the Port of Melbourne Corporation to the Port of Hastings Development Authority.

Subsection (1) provides definitions for the purposes of the section.

Subsection (2) provides that the Secretary must list in writing the employees and officers of the Port of Melbourne Corporation who are to be employed by the Port of Hastings Development Authority.

Subsections (3), (4) and (6) provide that the employment status, terms and conditions, accrued entitlements and benefits, superannuation and other employment-related matters are taken to have been the same as they would have been had the employee or officer remained employed with the Port of Melbourne Corporation.

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Subsection (5) provides that no payments or any other benefits for employees or officers listed under subsection (2) result from the operation of Division 1 of new Part 9.

Subsection (7) provides that nothing in the section prevents the alteration of any of the terms and conditions of employment of an employee or officer, or the resignation or dismissal of an employee or officer, after the transfer.

New section 224 sets out definitions for Division 2 including allocation statement and former Port of Melbourne Corporation instrument as well as providing that the Minister may fix the relevant date for the purposes of an allocation statement under new section 225.

New section 225 provides that the Minister may direct the transfer of Port of Melbourne Corporation property, rights and liabilities to the Victorian Regional Channels Authority. The transfer is to be made under an allocation statement.

New section 226 provides that all property, rights and liabilities that are to be allocated under an allocation statement are transferred from the Port of Melbourne Corporation to the Victorian Regional Channels Authority in accordance with the statement on the relevant date, which is the date fixed by the Minister by notice published in the Government Gazette.

New section 227 sets out that property, rights and liabilities vest in the Victorian Regional Channels Authority subject to any encumbrances or rights to which they were subject immediately before the vesting.

New section 228 sets out that the chief executive officer of the Port of Melbourne Corporation may sign certificates which certify that property, rights or liabilities of the Port of Melbourne Corporation have been allocated.

New section 229 provides that any value given to transferred property, rights or liabilities in an allocation statement is the value of the property, rights or liabilities to the Victorian Regional Channels Authority.

New section 230 substitutes the Victorian Regional Channels Authority as a party to any allocated agreement in the place of the Port of Melbourne Corporation.

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New section 231 continues the effect of and reconstrues references in former Port of Melbourne Corporation instruments.

New section 232 substitutes the Victorian Regional Channels Authority as a party in proceedings relating to former Port of Melbourne Corporation property.

New section 233 provides that after the relevant date the Victorian Regional Channels Authority is to be taken as the registered proprietor of an interest in land in relation to former Port of Melbourne Corporation property.

New section 234 sets out matters relating to the Victorian Regional Channels Authority acquiring any right in the nature of an easement.

New section 235 provides for the Registrar of Titles, on request and on delivery of any relevant certificate or instrument, to make any amendments to the Register that are necessary as a result of the operation of Division 2 of new Part 9.

New section 236 provides that no stamp duty or other tax is chargeable under any Act in respect of any act or transaction connected with or necessary to be done by reason of Division 2 of new Part 9.

New section 237 provides for the admissibility of evidence relating to former Port of Melbourne Corporation property.

New section 238 provides that the validity of things listed in the section is not to be affected by things done under Division 2 of new Part 9.

New section 239 provides that the Minister may direct the Port of Melbourne Corporation to lease land to the Victorian Regional Channels Authority.

PART 3—AMENDMENT OF PORT MANAGEMENT ACT 1995

Clause 22 amends some of the definitions in section 3(1) of the Port Management Act 1995, and adds an additional defined term.

Subclause (1) amends the definition of channel operator by deleting the words "or port of Hastings waters".

Subclause (2) amends the definition of port corporation by including the words ", Port of Hastings Development Authority" after "Port of Melbourne Corporation".

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Subclause (3) inserts a definition of the Port of Hastings Development Authority.

Clause 23 amends section 17E of the Port Management Act 1995, by replacing references to the Port of Melbourne Corporation with references to the Port of Hastings Development Authority.

Clause 24 amends the definition of channel operator in section 45 of the Port Management Act 1995 by deleting the words "or port of Hastings waters".

Clause 25 amends section 54 of the Port Management Act 1995 which relates to the Essential Services Commission's power to make determinations for prescribed services.

Subclause (1) deletes the words "or the port of Hastings" from section 54(5), which enables the Essential Services Commission to consider services required to meet the Port of Melbourne Corporation's object when making determinations in respect of specified ports.

Subclause (2) amends section 54 by including a new subsection (6) which provides that the Essential Services Commission may have regard to the related services that are required to meet the Port of Hastings Development Authority's object in making determinations in relation to prescribed services that are the subject of price regulation.

Clause 26 makes amendments to section 74 of the Port Management Act 1995, which relates to the setting of wharfage fees.

Subclause (1) substitutes the heading to the section to read "Wharfage fees—Port of Melbourne".

Subclause (2) deletes the words "or the port of Hastings" from section 74(1).

Clause 27 inserts a new section 74A into the Port Management Act 1995 entitled "Wharfage fees—Port of Hastings". The new section confers on the Port of Hastings Development Authority the power to determine wharfage fees in respect of the provision of a site in the port of Hastings at which stevedoring operations may be carried out.

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Clause 28 amends section 78 of the Port Management Act 1995 by conferring powers on the Port of Hastings Development Authority in relation to payment of wharfage and channel fees.

Clause 29 amends section 79 of the Port Management Act 1995 by conferring powers on the Port of Hastings Development Authority in relation to interest on unpaid fees.

Clause 30 amends section 80 of the Port Management Act 1995 by conferring powers on the Port of Hastings Development Authority in relation to security for payment of wharfage and channel fees.

Clause 31 amends section 82 of the Port Management Act 1995 by conferring powers on the Port of Hastings Development Authority in relation to the waiver or refund of wharfage and channel fees.

Clause 32 amends the definition of recommending authority in section 83 of the Port Management Act 1995 by inserting a new paragraph (c) to list the Port of Hastings Development Authority as an agency which may exercise the power to recommend that the Minister declare restricted access to specified areas.

Clause 33 amends section 84 of the Port Management Act 1995, which allows the Minister to declare that a specified area is an area to which access is restricted.

Subclauses (1) and (2) amend section 84(1)(a) and (b) to modify the area in respect of which the Minister may make a restricted area declaration on the recommendation of the Port of Melbourne Corporation.

Subclause (3) inserts a new subsection (1A) to provide that the Port of Hastings Development Authority may recommend to the Minister land to which access should be restricted.

Clause 34 amends the definition of relevant port authority in section 91J of the Port Management Act 1995 so that—

the Port of Hastings Development Authority is the relevant port authority for the port of Hastings; and

the Port of Melbourne Corporation is the relevant port authority for the port of Melbourne.

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PART 4—CONSEQUENTIAL AMENDMENTS

Clause 35 amends Schedule 1 to the Borrowing and Investment Powers Act 1987, by adding a new item 7B to confer borrowing and investment powers on the Port of Hastings Development Authority.

Clause 36 makes various amendments to the definition of port management body in section 3(1) of the Marine Act 1988.

In paragraph (a) the words "or the port of Hastings" are deleted, which removes responsibility to act as the port management body for the port of Hastings from the Port of Melbourne Corporation.

In paragraph (b) "Port Services Act 1995" wherever occurring is substituted with "Port Management Act 1995".

In paragraph (b)(ii) "operator;" is substituted with "operator; and".

After paragraph (b)(ii), the following is inserted—

"(iii) port of Hastings waters, the Victorian Regional Channels Authority, or, if there is an agreement with a channel operator in relation to those waters, that channel operator;".

Clause 37 amends section 26A(4) of the Marine Act 1988 so that the Victorian Regional Channels Authority is responsible for engaging a harbour master for port of Hastings waters. Reference to the Port of Melbourne Corporation is removed.

Clause 38 amends section 26B(1A) of the Marine Act 1988 so that the Victorian Regional Channels Authority may authorise a person to act as an assistant harbour master for port of Hastings waters. Reference to the Port of Melbourne Corporation is removed.

Clause 39 amends some of the definitions in section 3(1) of the Marine Safety Act 2010 and adds an additional defined term. The Marine Safety Act 2010 is not yet in operation, but when it comes into operation it will do so as amended by this amendment.

Subclause (1) inserts new definitions for port of Hastings and port of Hastings waters to refer to those definitions in the Port Management Act 1995.

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Subclause (2) amends the definition of port management body by deleting the words "or the port of Hastings", which removes responsibility from the Port of Melbourne Corporation to act as the port management body for the port of Hastings.

Subclause (3) inserts a new paragraph (b)(iii) of the definition of port management body to provide that the port management body for the port of Hastings is the Victorian Regional Channels Authority, or, if there is an agreement with a channel operator in relation to those waters, that channel operator.

Clause 40 makes amendments to section 220 of the Marine Safety Act 2010, with respect to the need for certain entities to engage harbour masters. The Marine Safety Act 2010 is not yet in operation, but when it comes into operation it will do so as amended by this amendment.

Subclause (1) deletes the words "or port of Hastings waters" in section 220(1), which removes responsibility from the Port of Melbourne Corporation for engaging harbour masters for the port of Hastings.

Subclause (2) inserts a new section 220(1A) to provide that the Victorian Regional Channels Authority must ensure that a licensed harbour master is engaged at all times for port of Hastings waters. The new provision sets a maximum penalty of 120 penalty units applies to a failure to fulfil this obligation.

Clause 41 amends section 229 of the Marine Safety Act 2010 with respect to the authorisation of a person to act as assistant harbour master for port of Hastings waters. The Marine Safety Act 2010 is not yet in operation, but when it comes into operation it will do so as amended by this amendment.

Subclause (1) deletes the words "or port of Hastings waters" (wherever occurring) from section 229(1).

Subclause (2) inserts a new paragraph (aa) in section 229(2). The new provision will enable the Victorian Regional Channels Authority to authorise the appointment of an assistant harbour master for port of Hastings waters after consulting the harbour master and with the approval of the Safety Director.

Clause 42 amends section 92(3)(cb) of the Road Safety Act 1986, to remove the application of the provision to the port of Hastings.

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Clause 43 amends the definition of public authority in section 36A of the Treasury Corporation of Victoria Act 1992 by adding "the Port of Hastings Development Authority" after "Port of Melbourne Corporation,".

Clause 44 amends the Table in Schedule 1 to the Treasury Corporation of Victoria Act 1992 after the entry relating to the Port of Melbourne Corporation to add references to the Port of Hastings Development Authority.

PART 5—REPEAL OF AMENDING ACT

Clause 45 provides that the Transport Legislation Amendment (Port of Hastings Development Authority) Act 2011 is repealed on 1 January 2013.

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