Port Services (Port Management Reform) Act 2003 (Vic)

Port Services (Port Management Reform) Act 2003

ts	Act No. 85/2003
n
e
m	TABLE OF PROVISIONS

u Section Page

c	1.	Purpose	1
o	2.	Commencement	1
D	3.	Purpose	2
ry	4.	Definition	2
5.	Declaration of port lands and waters	2
ta	6.	New section 6 inserted	3

6. Ports 3

n	7.	Acquisition or disposal of land	4
e	8.	New section 16 inserted	5
m	16.	Transitional powers under leases	5
ia	9.	Substitution of Division 1A of Part 2	5
rl	Division 1A—Port of Hastings Corporation	5
a	17A.	Establishment	5
P	17B.	Port of Hastings Corporation not to represent the Crown	6
d	17C.	Objectives	6
17D.	Functions	7
n	17E.	Port operations	8
a	17F.	Powers of the Port of Hastings Corporation	8
n	17G.	Acquisition or disposal of land by the Corporation to
o	be approved by Minister	9
ti	10.	New Division 2 of Part 2 inserted	10
la	Division 2—Victorian Regional Channels Authority	10
is	18AA.	Division not to apply to port of Melbourne waters	10
g	18.	Establishment of VRCA	10
e	19.	VRCA not to represent the Crown	11
L	20.	Objective	11
21.	Functions and powers	11
n	22.	Dredging	13
a
ri	11.	New Part 2A inserted	14
to	PART 2A—LOCAL PORTS	14
ic
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Section Page

44D.	Charges	18
44E.	Dredging	19
44F.	Other works	19

ts	44G.	Port manager may act as harbour master if there is no
harbour master 20

n	12.	New section 49 substituted	20
e	49.	Price regulation	20
m	13.	Price determination powers	21
u	14.	Financial and business records	22
c	15.	Disputes about access	23
o	16.	Inquiries about channels	24
17.	New sections 63AA to 63AD inserted	24
D	63AA.	Procedures and powers of the Commission	24
ry	63AB.	Commission may give directions in relation to a
dispute	25

ta	63AC. Confidentiality agreements	26
n	63AD. Appeals	27

e	18.	New Part 6A inserted	29
m	PART 6A—PORT MANAGEMENT PLANS	29
ia	91A.	Definition	29
rl	91B.	Application of other Acts	29
a	91C.	Port manager's responsibilities for management plans	30
91D.	Safety and environment management plans	31
P	91E.	Certification of plans	33
d	91F.	Audits of compliance	34
n	91G.	Ministerial guidelines	36
a	91H.	Ministerial directions	37
91I.	Transitional provisions—management plans	38
n	19.	Regulations	39
o
ti	20.	Consequential amendments	39
21.	Amendments to allocation statements	40
la	22.	New section 176A inserted	40
is	176A.	Saving of port of Melbourne waters	40

23. Insertion of new Part 14 41

g

e	PART 14—TRANSITIONAL PROVISIONS—
L	ESTABLISHMENT OF PORT OF HASTINGS
CORPORATION 41
n
a
ri
177. Definitions 41
178. Transfer of property etc. from HPHC to the new

corporation 41

to	179.	Staff to be transferred from the old corporation to the
ic
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ii

Section Page

24.	Insertion of new Part 15	44
PART 15—TRANSITIONAL PROVISIONS—

ts	ESTABLISHMENT OF VICTORIAN REGIONAL
CHANNELS AUTHORITY 44
n	180. Definitions 44
e	181. Transfer of property etc. from VCA to the new

m	corporation	45
u	182.	Staff to be transferred from the old corporation to the
c	new corporation 46

o	25.	New Part 16 inserted	48
D	PART 16—OTHER SAVINGS AND TRANSITIONALS	48
ry	183.	Savings for existing local authorities	48

26. Boards of Corporations 49

ta	27.	Consequential amendments—management plans	50
n	28.	Consequential amendments—port management	50
e	29.	Consequential amendments—POHC	51
30.	Consequential amendments—VRCA	52
m	31.	Borrowing and Investment Powers Act 1987	52
ia	32.	Docklands Act 1991	52
rl	33.	Land Act 1958	53
a	34.	Marine Act 1988	53
35.	Treasury Corporation of Victoria Act 1992	54

P	═══════════════
d

n	ENDNOTES	55
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iii

ts
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e
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c
o	Victoria
D
ry
ta
n	No. 85 of 2003
e
m
ia
rl	Port Services (Port Management
a	Reform) Act 2003†
P

[Assented to 11 November 2003]

d
n
a
n
o

ti	The Parliament of Victoria enacts as follows:
la
is	1. Purpose
g
e	The main purpose of this Act is to amend the Port
L	Services Act 1995 and the Marine Act 1988 to
n	make further provision for the establishment,
a
ri	management and operation of ports in Victoria.

2. Commencement

to	(1) Sections 1, 3, 4, 7, 8, 12 to 17, 20, 21 and 22 and
ic	this section come into operation on the day after
V	the day on which this Act receives the Royal Assent.

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(2) Subject to sub-section (3), the remaining

provisions of this Act come into operation on a

ts	day or days to be proclaimed.
n	(3) If a provision of this Act does not come into
e	operation before 1 July 2004, it comes into
m	operation on that day.
u	3. Purpose
c	See:
o	Act No.

For section 1(a) of the Port Services Act 1995

D	82/1995.	substitute—
Reprint No. 3
ry	as at	"(a) to establish bodies to manage and operate
1 July 2003
ta	and	certain commercial trading ports in Victoria;

amending	and (ab) to provide for the establishment,
n	Act No.
e	23/2003.
LawToday:

m		management and operation of commercial
ia	dpc.vic.
gov.au
trading ports and local ports in Victoria;
rl	and".

a	4. Definition
P

In section 3 of the Port Services Act 1995 for the

d	definition of "port of Melbourne waters"
n
a	substitute—
n	' "port of Melbourne waters" means any waters
o	which by Order in Council made under
ti	section 5(2) are declared to be port waters of
la	the port of Melbourne;'.
is	5. Declaration of port lands and waters
g
e	(1) In section 5(1) and (2) of the Port Services Act
L	1995 for "or the port of Hastings" substitute ", the
n	port of Hastings or any other commercial trading
a
ri
port or a local port".

(2) In section 5(3) of the Port Services Act 1995 for

to	"(1) or (2)" substitute "(1), (1A) or (2)".
ic
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(3) After section 5(4) of the Port Services Act 1995

insert—

ts	"(5) The Governor in Council may, by Order
n	published in the Government Gazette, amend
e	a declaration of port lands or a declaration of
m	port waters or a declaration of both port
u	lands and port waters so as to—
c	(a) include an area of lands and waters or
o	lands or waters in, or exclude an area of
D	lands and waters or lands or waters
ry	from, that declaration; or

ta	(b)	correct any error in that description of
n	the lands or waters.

e	(6) A port consists of the area or areas of lands
m	and waters or lands or waters that are from
ia	time to time declared in relation to that port
rl	by Order of the Governor in Council under
a	this section.
P

(7) An Order of the Governor in Council may

d

n	describe an area of lands or waters by
a	reference to any map or plan lodged in the Central Plan Office of the Department of
n	Sustainability and Environment.".
o
ti	6. New section 6 inserted
la	After section 5 of the Port Services Act 1995
is	insert—
g
e	"6. Ports
L	The Governor in Council may by Order
n	published in the Government Gazette—
a

ri	(a)	name the port established by the area of
to	lands and waters or lands or waters
ic	declared by an Order under section 5;
V

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(b) declare the port to be a commercial trading port or a local port for the

ts	purposes of this Act;
n	(c) revoke the declaration of a port as a
e	commercial trading port or a local port;
m	(d) declare a port that has been declared by
u	Order in Council to be a local port to be
c	a commercial trading port;
o
D	(e) declare part of a port that has been declared by Order in Council to be a
ry	local port to be a commercial trading
ta	port;
n	(f) declare a port that has been declared by
e	Order in Council to be a commercial
m	trading port to be a local port;
ia

rl	(g)	declare part of a port that has been
a	declared by Order in Council to be a
P	commercial trading port to be a local port;
d

n	(h) amend the name of a port that has been
a	established by Order in Council.".
n	7. Acquisition or disposal of land
o
ti	At the end of section 15 of the Port Services Act
la	1995 insert—
is	"(2) Sub-section (1) does not apply to any interest
g	in land or class of interest in land exempted
e	by the Minister by notice in writing given to
L	the Port of Melbourne Corporation.".
n
a
ri
to
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8. New section 16 inserted

After section 15 of the Port Services Act 1995

ts	insert—
n	"16. Transitional powers under leases
e

Despite the repeal of the Port of Melbourne

m

u	Authority Act 1958, the Port of Melbourne
c	Corporation may decline an option on a lease
o	that was in force immediately before the
D	relevant date under Part 8 having regard to the requirements for port purposes pursuant
ry	to the Port of Melbourne Authority Act
ta	1958 as if that Act were still in operation.".
n	9. Substitution of Division 1A of Part 2
e
m	For Division 1A of Part 2 of the Port Services
ia
rl
Act 1995 substitute—
a	'Division 1A—Port of Hastings Corporation
P	17A. Establishment
d
n	(1) There is established a body to be known as
a	the "Port of Hastings Corporation".
n	(2) The Port of Hastings Corporation—
o

ti	(a)	is a body corporate with perpetual
la	succession; and

is	(b) has an official seal; and
g	(c) may sue and be sued; and
e
L	(d) may acquire, hold and dispose of real
n	and personal property; and
a

ri	(e)	may do and suffer all acts and things that a body corporate may, by law, do
to	and suffer.
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(3) All courts must take judicial notice of the

seal of the Port of Hastings Corporation
affixed to a document and, until the contrary

ts	is proved, must presume that it was duly
n	affixed.
e

(4) The official seal of the Port of Hastings

m

u	Corporation must be kept in such custody as
c	the Corporation directs and must not be used
o	except as authorised by the Corporation.
D	17B. Port of Hastings Corporation not to
ry	represent the Crown
ta	The Port of Hastings Corporation is a public
n	authority but does not represent the Crown.
e	17C. Objectives
m
ia	The objectives of the Port of Hastings
rl	Corporation are—
a	(a) to manage and develop the port of
P	Hastings in an economically, socially
d	and environmentally sustainable
n	manner;
a

(b) to ensure that essential port services of

n	the port of Hastings are available and
o
ti	cost effective;
la	(c) to ensure, in co-operation with other
is	relevant responsible bodies, that the
g	port of Hastings is effectively
e	integrated with other systems of
L	infrastructure in the State;
n	(d) to facilitate, in co-operation with other
a
ri	relevant responsible bodies, the
sustainable growth of trade through the
to	port of Hastings.
ic
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17D. Functions

(1) The functions of the Port of Hastings

ts	Corporation are—
n	(a) to plan for the development and
e	operation of the port of Hastings;
m	(b) to provide land, waters and
u
c	infrastructure necessary for the
o	development and operation of the port
D	of Hastings;

ry	(c)	to develop, or enable and control the
ta	development by others of, the whole or
any part of the port of Hastings;
n
e	(d)	to manage, or enable and control the
m	management by others of, the whole or
ia
rl
any part of the port of Hastings;

(e) to provide, or enable and control the

a	provision by others of, services for the
P	operation of the port of Hastings;
d	(f) to promote and market the port of
n
a	Hastings;
n	(g) to facilitate the integration of
o	infrastructure and logistics systems in
ti	the port of Hastings with relevant
la	systems outside the port.
is	(2) The Port of Hastings Corporation must carry
g	out its functions in a manner that—
e
L	(a) is safe and secure; and
n	(b) is environmentally sustainable; and
a
ri	(c) is effective and efficient; and
to	(d) is commercially sound; and
ic	(e) has regard for the persons living or
V	working in the immediate neighbourhood of the port of Hastings.

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17E. Port operations

(1) The Port of Hastings Corporation must

ts	administer any port management agreement
n	in force in relation to the port of Hastings.
e	(2) The Port of Hastings Corporation must
m	notify the Minister and the Treasurer
u	immediately if—
c
o	(a) a port management agreement is
D	terminated; or

ry	(b)	a default occurs under the agreement;
ta	or

n	(c) the Corporation has reason to believe it
e	is likely that—
m	(i) the port management agreement
ia	may be terminated; or
rl	(ii) a default may occur under the
a
P	agreement.
d	(3) The Port of Hastings Corporation must
n	notify the Minister and the Treasurer of its
a	recommended course of action consequent
n	on a termination or default or likely
o	termination or default notified under sub-
ti	section (2).
la	17F. Powers of the Port of Hastings
is	Corporation
g
e	The Port of Hastings Corporation—
L	(a) subject to section 17G, may acquire or
n	dispose of real or personal property;
a

ri	(b)	may enter into contracts, agreements,
to	leases or licences;

ic	(c) may employ agents or contractors;
V

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(d) may act as an agent of another person;

(e) may form, or participate in the

ts	formation of, or be a member of,
n	companies;
e	(f) may form, participate in the formation
m	of, and may participate in, partnerships,
u	trusts, unincorporated joint ventures
c	and other arrangements for sharing
o	profits;
D

(g) may act as trustee;

ry

ta (h) may engage in any business,

undertaking or activity incidental to the

n

e performance of its functions;

(i) may act as a committee of management

m

ia	under the Crown Land (Reserves) Act
rl	1978;
a	(j) may do all things necessary or
P	convenient to be done for, or in
d	connection with, the carrying out of its
n	functions.
a

17G. Acquisition or disposal of land by the

n	Corporation to be approved by Minister
o
ti	(1) The Port of Hastings Corporation must
la	obtain the approval of the Minister before
is	acquiring or disposing of any interest in land.
g	(2) Sub-section (1) does not apply to any interest
e	in land or class of interest in land exempted
L	by the Minister by notice in writing given to
n	the Port of Hastings Corporation.'.
a
ri
to
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10. New Division 2 of Part 2 inserted

For Division 2 of Part 2 of the Port Services Act

ts	1995 substitute—
n
e	'Division 2—Victorian Regional Channels

Authority

m

u	18AA. Division not to apply to port of Melbourne
c
o	waters
D	Nothing in this Division applies to port of
ry	Melbourne waters and channels in port of
ta	Melbourne waters.

18. Establishment of VRCA

n

e	(1) There is established a body by the name
m	"Victorian Regional Channels Authority".
ia
rl	(2) VRCA—
a	(a) is a body corporate with perpetual
P	succession;
d	(b) has an official seal;
n
a	(c) may sue and be sued;
n	(d) may acquire, hold and dispose of real
o
ti	and personal property;
la	(e) may do and suffer all acts and things

that a body corporate may by law do

is	and suffer.
g
e	(3) All courts must take judicial notice of the
L	seal of VRCA affixed to a document and,
n	until the contrary is proved, must presume
a	that it was duly affixed.
ri	(4) The official seal of VRCA must be kept in
to	such custody as VRCA directs and must not
ic	be used except as authorised by VRCA.
V

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19.  VRCA not to represent the Crown

VRCA is a public authority but does not

ts	represent the Crown.
n	20. Objective
e

The main objective of VRCA is to ensure

m

u	that port waters and channels in port waters
c	are managed for use on a fair and reasonable
o	basis.
D	21. Functions and powers
ry	(1) The VRCA is responsible for ensuring that
ta	the following functions are carried out in
n	relation to port waters and channels in port
e	waters in commercial trading ports—
m	(a) the establishment, management and, in
ia	accordance with the standards
rl	developed by the Director of Marine
a	Safety, the dredging and maintenance
P	of the channels in the port waters;
d	(b) the provision and maintenance, in
n
a	accordance with the standards developed by the Director of Marine
n	Safety, of navigation aids in connection
o
ti	with navigation in the port waters;
la	(c) the general direction and control of the
is	movement of vessels within the port
g	waters in accordance with the Marine
e	Act 1988.
L	(2) The VRCA may carry out its functions under
n	sub-section (1) in relation to a commercial
a
ri	trading port—
to	(a) by arranging for the port manager or

another person to carry out those

ic	functions for the port waters and
V	channels in the port; or

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(b) in the absence of any arrangement with a port manager or person under paragraph (a), by itself carrying out

ts	those functions for the port waters and
n	channels in the port.
e

(3) The VRCA also has the following

m

u	functions—
c	(a) to provide technical advice and support
o	to port managers about the management
D	and operation of port waters and
ry	channels in port waters;

ta	(b)	at the request of the port manager and
n	with the approval of the Minister, to
e	assist a port manager with integrated
m	planning, development, management
ia	and promotion activities for the port.

rl	(4) VRCA—
a
P	(a) may acquire real or personal property and may dispose of any such property
d
n	acquired by it;

a	(b)	may enter into contracts, agreements,
n	leases and licences for the carrying out
o
ti	of its functions;

la	(c) may take and hold indemnities;
is	(d) without limiting paragraph (b), may
g	enter into contracts (including contracts
e	of indemnity) for the provision of
L	services or facilities;
n	(e) may employ agents or contractors;
a
ri	(f) may act as agent of another person;
to	(g) may do all things necessary or
ic	convenient to be done for, or in
V	connection with, carrying out its functions.

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(5) Without limiting the generality of the powers conferred on it, VRCA—

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

m	(b) may form, or participate in the
u	formation of, and may participate in,
c	partnerships, trusts, unincorporated
o	joint ventures and other arrangements
D	for the sharing of profits;
ry	(c) may act as trustee;
ta	(d) may engage in any business,
n	undertaking or activity incidental to the
e	performance of its functions.
m
ia	(6) VRCA may carry out its functions and
rl	exercise its powers within or outside Victoria
a	and outside Australia.
P	(7) VRCA must carry out its functions in a
d	manner that—
n	(a) is safe and secure; and
a
n	(b) is environmentally sustainable; and
o
ti	(c) is effective and efficient; and
la	(d) is commercially sound; and
is	(e) has regard for the persons living or
g	working in the immediate
e	neighbourhood of the area where it is
L	carrying out the functions.
n	22. Dredging
a
ri	Without limiting the generality of the powers
to	conferred on it but subject to obtaining any
ic	permit, consent or other authority required by or under any other Act, VRCA in
V	connection with carrying out its functions—

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(a)

may alter, dredge, cleanse, scour, channel of any river or sea-bed in port

ts	waters;
n
e	(b) may reduce or remove any banks or
m	shoals within any such river or sea-bed;
u	(c) may abate and remove impediments,
c	obstructions and nuisances in, or on the
o	banks and shores of, any such river or
D	sea-bed that are injurious to the river or
ry	sea-bed or that obstruct or tend to
ta	obstruct navigation.'.
n	11. New Part 2A inserted
e	After Part 2 of the Port Services Act 1995
m	insert—
ia
rl	"PART 2A—LOCAL PORTS
a
P	44A. Appointment of port managers of local
d	ports
n	(1) The Governor in Council may by instrument
a	appoint as the port manager of a local port a
n	committee of management of Crown land
o
ti	that is within the port.
la	(2) The Governor in Council may—

is	(a)	revoke the appointment of a port
g	manager of a local port;

e	(b) if the name of a port manager changes, make corresponding amendments to the
L
n
a	instrument of appointment of the port
ri	manager.
to
ic
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(3) A port manager for a local port has the following functions—

ts	(a)	to manage the operations of the port,
n	particularly with respect to shipping
e	and boating activities in the port, with a
m	view to ensuring that those operations
u	are carried out safely, efficiently and
c	effectively;

o	(b) to provide, develop and maintain port
D	facilities, including wharves, jetties,
ry	slipways, breakwaters, moorings,
ta	buildings and vehicle parks;
n	(c) to provide, develop and maintain, in
e	accordance with any relevant standards
m	developed by the Director of Marine
ia	Safety, navigational aids in the port;
rl	(d) to carry out the functions and powers of
a	a local authority under the Marine Act
P	1988 in respect of any State waters
d	within the port;
n
a	(e) to provide, develop and maintain, in accordance with any relevant standards
n
o	developed by the Director of Marine
ti	Safety, navigation channels in the port;
la	(f) to manage the operations of the port,
is	and the construction and operation of
g	port facilities and navigation channels
e	in a manner that minimises the risk of
L	environmental damage;
n	(g) to participate in the control of marine
a
ri	and land pollution in the port as a relevant statutory authority under the
to	Victorian component of the National
ic	Plan to Combat Pollution of the Sea by
V	Oil and Other Noxious and Hazardous Substances;

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(h) to allocate and manage moorings and berths in the port;

ts	(i)	to exercise any other functions of the
n	port manager of a local port under this
e	or any other Act;

m	(j) to do anything else in relation to the
u	port that is specified by Order of the
c	Governor in Council under sub-
o	section (4).
D

(4) The Governor in Council on the

ry	recommendation of the Minister may
ta	declare, by Order published in the
n	Government Gazette—
e	(a) that port managers are to have
m	additional functions in relation to local
ia
rl	ports;
a	(b) that a particular port manager is to have
P	an additional function in relation to its local port or to a specified part of its
d
n	local port;

a	(c)	that a particular port manager is not to
n	have a particular function (including a
o	function referred to in sub-section (3))
ti	in relation to its local port or to a
la	specified part of its local port.

is	(5) The Minister must not make a
g	recommendation under sub-section (4)
e
L	unless the Minister—

(a) has consulted with—

n
a

ri (i) the Minister administering the

Crown Land (Reserves) Act

to	1978; and
ic	(ii) the Minister administering the
V	Coastal Management Act 1995;

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(b) is satisfied that the additional functions are necessary or desirable because of the particular operations or location of

ts	the port.
n
e	(6) The Order in Council must specify the
m	function that is being added or removed.
u	(7) An Order in Council takes effect on the day
c	after the day the Order is published in the
o	Government Gazette, or on any later date
D	specified in the Order.
ry	44B. General powers of port managers
ta	(1) A port manager of a local port may do all
n	things that are necessary or convenient to
e	enable it to carry out its functions under
m	section 44A.
ia
rl	(2) Without limiting sub-section (1), a port
a	manager may—

P	(a)	enter into other contracts and
d	agreements (including contracts of
n	indemnity and contracts for the
a	provision of services or facilities);

n	(b) employ staff, or engage consultants,
o
ti	contractors or agents;
la	(c) exercise its powers outside the port
is	lands or waters of the port to the extent
g	necessary or convenient to carry out the
e	functions of port manager of that port
L	or to ensure the safe operation of the
n	port.
a
ri	44C. Delegation
to	The port manager of a local port may
delegate, in writing, any power conferred on
ic	it by or under this Act (other than this power
V	of delegation) to any of its employees. Port Services (Port Management Reform) Act 2003

s. 11

Act No. 85/2003

44D. Charges

(1) The port manager of a local port may impose

ts	a charge for the use of any facility in the
n	port.
e	(2) A reference to the use of a facility includes a
m	reference—
u
c	(a) to the use of a channel in the port; and
o	(b) to the use of any service provided by
D	the port manager.
ry	(3) The amount of a charge imposed under this
ta	section in respect of a facility must not
n	exceed the maximum charge (if any) that the
e	regulations state is to be the maximum
m	amount that may be charged by a port
ia
rl
manager for the use of such a facility.

(4) In imposing a charge under this section, the

a	port manager may—
P

(a) make allowances for differences in

d	time, place or circumstance relating to
n
a	the use of the facility for which the charge is being imposed; and
n
o	(b) may provide for exemptions from the
ti	charge in specified circumstances.
la	(5) In imposing a charge, the port manager must
is	specify who is to be liable for paying the
g	charge.
e
L	(6) The port manager must ensure that it does
n	not impose a charge on a person for using a
a	facility unless it gave the person adequate
ri	notice of the charge before the person
to	became liable to pay the charge.
ic	(7) A charge imposed under this section is a debt
V	due to the port manager by the person who is liable to pay it.

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(8) A port manager may charge interest at the

rate not exceeding the rate fixed under
section 2 of the Penalty Interest Rates Act

ts	1983 on any unpaid charge that is due to the
n	local authority.
e

44E. Dredging

m

u	Subject to obtaining any permit, consent or
c	other authority required by or under any
o	other Act, the port manager of a local port
D	may, in carrying out its functions—
ry	(a) alter, dredge, cleanse, scour, straighten
ta	and improve the bed and channel of any
n	river or sea-bed in port waters;
e	(b) reduce or remove any banks or shoals
m	within any such river or sea-bed;
ia

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

n	44F. Other works
o
ti	Subject to obtaining any permit, consent or
la	other authority required by or under any
other Act, in carrying out its functions in
is	relation to the provision, development and
g	maintenance of port facilities, a port manager
e
L	of a local port may—

(a) change the natural or existing condition

n

or topography of land;

a
ri

(b) remove vegetation or topsoil;

to	(c) reclaim or decontaminate land;
ic
V

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(d) construct, demolish or substantially
alter any structure in or on land;

ts	(e)	remove, decommission or make safe
n	any existing facility.

e	44G. Port manager may act as harbour master
m	if there is no harbour master
u
c	(1) This section applies if there is no harbour
o	master for a local port.
D	(2) Sections 26D, 26E, 26F, 26G and 26I of the
ry	Marine Act 1988 apply as if a reference in
ta	those provisions to a harbour master were a
reference to the local authority for the port.".
n
e	12. New section 49 substituted
m	For section 49 of the Port Services Act 1995
ia	substitute—
rl	"49. Price regulation
a
P	For the purposes of Part 3 of the Essential
d	Services Commission Act 2001—
n	(a) the port industry in a commercial
a	trading port is a regulated industry;
n
o	(b) the prices charged for the provision of,
ti	or in connection with, prescribed
la	services in respect of the regulated
is	industry, other than prescribed prices
g	for prescribed services within the
e	meaning of the Grain Handling and
L	Storage Act 1995, are prescribed
n	prices;
a
ri	(c) the following are prescribed services—
to	(i) the provision of channels for use

by shipping;

ic
V

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(ii)  the provision of berths, buoys or dolphins in connection with the berthing of vessels in the ports of

ts	Melbourne, Geelong, Portland and
n	Hastings;
e

(iii) the provision of short term storage

m

u	or cargo marshalling facilities in
c	connection with the loading or
o	unloading of vessels at berths,
D	buoys or dolphins in the ports of
ry	Melbourne, Geelong, Portland and
Hastings;
ta	(iv) the connection of water or
n
e	electricity to berthed vessels in the ports of Geelong and Portland;
m
ia	(v) towage in the ports of Geelong,
rl	Portland and Hastings.".
a	13. Price determination powers
P

After section 54(3) of the Port Services Act 1995

d

n	insert—
a	"(4) The Commission may, when making a
n	determination in relation to prescribed
o	services in a commercial trading port, have
ti	regard to the costs associated with any
la	service related to the prescribed services if—
is	(a) the related service is necessary or
g	essential to the provision of prescribed
e
L	services; and

(b) the related service cannot readily be

n

provided by another provider; and

a
ri

(c) it is not feasible to charge a separate

to	price for the related service.
ic	(5) Without limiting sub-section (4), the
V	Commission may, when making a determination in relation to prescribed

Port Services (Port Management Reform) Act 2003

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services in the port of Melbourne, have
regard to a related service required to meet

the Port of Melbourne Corporation's

ts	objectives under section 12 including the
n	following services—
e

(a) the provision of rail and road

m

u	infrastructure within the port that is
c	necessary for moving cargo to or from
o	berthing facilities or short term storage
D	facilities or cargo marshalling facilities;

ry	(b)	the provision of land to satisfy safety,
ta	security, planning or environmental
requirements;
n
e	(c)	the provision of safety, security,
m	emergency or environmental
ia	management services that are required
rl	by law or to meet the reasonable
a	expectations that the community has of
P	the Corporation;

d	(d) the provision of strategic planning for
n	the port;
a

(e) the facilitation of trade through the

n	port.".
o
ti	14. Financial and business records
la	For section 56(1) of the Port Services Act 1995
is	substitute—
g
e	"(1) A provider of prescribed services must keep
L	financial and business records—
n	(a) in respect of the provision of channels
a
ri	for use by shipping that are separate
from financial and business records for
to	other prescribed services; and
ic
V

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(b)

in respect of prescribed services that are business records for other aspects of

ts	any business conducted by the provider
n	of prescribed services.".
e

15. Disputes about access

m

u	(1) In section 60(7) of the Port Services Act 1995 for
c	"sub-section (8)" substitute "sub-sections (7A)
o	and (8)".
D

(2) For section 60(8) of the Port Services Act 1995

ry	substitute—
ta	"(7A) The Commission may extend the 90 day time
n	limit in sub-section (7) for a period or
e	periods not exceeding 45 days if the
m	Commission—
ia

rl	(a)	is unable to determine the application
a	within the period of 90 days or any
P	further periods of 45 days; and

d	(b) notifies the person seeking access and
n	the channel operator of the extension of
a	time and the reasons why the
n	Commission needs further time to
o
ti	determine the application; and
la	(c) publishes the notice under paragraph
is	(b) in the Government Gazette.

(8) Without limiting any other powers of the

g

e	Commission, the Commission may refuse to
L	make a determination if—
n	(a) the Commission considers that the
a
ri	application is vexatious; or
to	(b) the Commission is satisfied that—

ic	(i)	the channel operator has complied
V	with the obligations under section 59; or

Port Services (Port Management Reform) Act 2003

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Act No. 85/2003

(ii) (iii) having regard to the objectives of the terms and conditions of access seeking access do not constitute a

ts	taking advantage of a substantial
n	degree of market power in the
e	provision of the prescribed
m	services; or
u
c
o	the Commission under section 48
D	and under the Essential Services
ry	Commission Act 2001 and to any
other matter that the Commission
ta	considers relevant, it is
n	appropriate to refuse to make a
e	determination.
m	(8A) A person who is aggrieved by a decision of
ia
rl	the Commission to refuse to make a
determination under this section, may appeal
a	as if that decision were a determination for
P	the purposes of section 55(1)(c) of the
d	Essential Services Commission Act 2001.".
n
a	16. Inquiries about channels
n	In section 62(1) of the Port Services Act 1995 for
o
ti	"2004" substitute "2008".
la	17. New sections 63AA to 63AD inserted
is	After section 63 of the Port Services Act 1995
g	insert—
e	'63AA. Procedures and powers of the
L	Commission
n
a	(1) Except as provided in sub-sections (2) and
ri	(3), sections 37 and 38 of the Essential
to	Services Commission Act 2001 apply to
ic	this Act.
V

Port Services (Port Management Reform) Act 2003

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(2) Section 37(4) of the Essential Services Commission Act 2001 does not apply to a

ts	requirement made under section 63AB(1).
n	(3) Section 38 of the Essential Services
e	Commission Act 2001 only applies to
m	information or a document required under
u	section 63AB(1)(a) if the Commission
c	proposes to disclose the information or
o	document to a person who is not identified
D	by the Commission under that section.
ry	63AB. Commission may give directions in
ta	relation to a dispute
n	(1) The Commission, for the purposes of
e	facilitating negotiations or determining a
m	dispute under this Division, may require a
ia	person who is or was a party to the dispute to
rl	do, or refrain from doing, something,
a	including—
P	(a) requiring a person to give relevant
d	information or a document to one or
n	more other persons identified by the
a	Commission, and copies to the
n	Commission, subject to section 63AC;
o

ti	(b)	requiring a person to carry out
la	reasonable research or investigations in
is	order to obtain relevant information;

g	(c) prohibiting a person from imposing, or
e	seeking to impose, an unreasonable
L	procedural condition on the person's
n	participation in negotiations;
a

ri	(d)	requiring a person to respond in writing to another person's proposal or request
to	in relation to the time and place of a
ic	meeting;
V

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Act No. 85/2003

(e) requiring a person, or a representative of a person, to attend a mediation

ts	conference.
n	(2) For the purposes of sub-section (1)(c) "an
e	unreasonable procedural condition"
m	includes a requirement by one party that the
u	other party or parties to the dispute must not
c	disclose to the Commission information or a
o	document provided in the course of
D	negotiations.
ry	(3) A person must not, without lawful excuse,
ta	disobey a requirement of the Commission
made under this section.
n
e	Penalty: 120 penalty units.
m	63AC. Confidentiality agreements
ia
rl	(1) This section applies if—
a	(a) the Commission makes a requirement
P	under section 63AB(1)(a); and
d	(b) the person in control or possession of
n
a	the information or document ("the disclosing party") notifies the
n	Commission in writing that the
o
ti	information or document is of a
la	confidential or commercially sensitive
is	nature; and

(c) the Commission notifies the person that

g

e	the information or document must still
L	be provided in accordance with section
n	63AB(1)(a).
a
ri
to
ic
V

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Act No. 85/2003

(2) If, under sub-section (1)(c), the Commission

notifies the disclosing party that the
information or document must still be

ts	provided in accordance with section
n	63AB(1)(a), the disclosing party may require
e	the person receiving the information or
m	document ("the receiving party") to enter
u	into a confidentiality agreement.
c
o	(3) The terms of a confidentiality agreement
D	may be proposed by the disclosing party and
ry	those terms must be promptly notified to the Commission and to the receiving party.
ta	(4) If the Commission considers that the terms
n
e	of the proposed confidentiality agreement are unreasonable, the Commission may decide to
m
ia	amend or delete those terms or substitute
rl	other terms.
a	63AD. Appeals
P	(1) A person who is aggrieved by a requirement
d	of the Commission under section 63AB(1)(a)
n	or a decision of the Commission under
a	section 63AC(4) may appeal against that
n	requirement or decision.
o
ti	(2) An appeal may only be made on the ground
la	that—

is	(a)	the requirement or decision was not
g	made in accordance with the law; or

e	(b) the requirement or decision is
L	unreasonable having regard to all
n	relevant circumstances.
a
ri
to
ic
V

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s. 17

Act No. 85/2003

(3) The person must lodge notice of the appeal

with the Commission within 7 working days
after the person is given notice of the

ts	requirement or decision.
n
e	(4) On the hearing of an appeal under this
m	section, the Commission bears the onus of
u	establishing that—
c	(a) the requirement or decision was made
o	in accordance with the law; and
D

(b) the requirement or decision is

ry	reasonable having regard to all relevant
ta	circumstances.
n	(5) Sections 56 to 59 of the Essential Services
e	Commission Act 2001 apply to an appeal
m	under this section with the following
ia
rl	paragraph inserted after section 56(7)(d)—
a	"(e) in the case of an appeal under section
P	63AD(1) of the Port Services Act 1995—
d
n	(i) may affirm, cancel or modify the
a	requirement made under section
n	63AB(1)(a) of that Act;
o

ti	(ii)	may affirm, cancel or modify the
la	terms of a confidentiality
agreement decided by the
is	Commission under section
g	63AC(4) of that Act;
e
L	(iii)	may remit the matter back to the
n	Commission to be dealt with in
a	accordance with the decision and
ri	recommendations (if any) of the
to	appeal panel;
ic
V

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Act No. 85/2003

(iv)  must hear and decide the appeal within 7 working days after the appeal panel was constituted or, if

ts	the appeal panel requires further
n	time, within a further period not
e	exceeding 7 working days.".'.
m
u	18. New Part 6A inserted
c	After Part 6 of the Port Services Act 1995
o	insert—
D
ry	'PART 6A—PORT MANAGEMENT PLANS
ta	91A. Definition
n
e	In this Part—
m	"relevant Ministers" means the Ministers
ia	administering the Dangerous Goods
rl	Act 1985, the Environment
a	Protection Act 1970, the Marine Act
P	1988, the Occupational Health and
d	Safety Act 1985 and the Emergency
n	Management Act 1986.
a	91B. Application of other Acts
n	(1) This Part has effect in addition to, and not in
o
ti	derogation of, any Act referred to in the
la	definition of "relevant Ministers".
is	(2) If a provision of this Part is inconsistent with
g	a provision of an Act referred to in the
e	definition of "relevant Ministers", the
L	provision of the Act referred to in the
n	definition prevails to the extent of any
a
ri	inconsistency.
to
ic
V

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91C. Port manager's responsibilities for management plans

ts	(1) A port manager must ensure that—
n	(a) a safety management plan; and
e
(b) an environment management plan—
m
u	are prepared and certified in accordance with
c	this Part for the port or part of the port that
o	the port manager manages, superintends or
D	controls.
ry	Penalty:  240 penalty units, in the case of a
ta	commercial trading port and
n	60 penalty units in the case of a
e	local port.
m	(2) A port manager must ensure that reasonable
ia	steps are taken to—
rl	(a) implement the measures or strategies that are specified in the management plan to prevent or reduce the hazards
a
P
d	and risks associated with the operation
n
a	of the port; and
n	(b) follow the processes that are set out in
o	the management plan to involve
ti	tenants, licensees and service providers
la	in the port with the implementation of
is	the management plan; and
g	(c) follow the procedures that are set out in
e	the management plan for implementing,
L	reviewing and revising the management
n	plan.
a

ri	Penalty:	240 penalty units, in the case of a
to	commercial trading port and
60 penalty units in the case of a
ic	local port.
V

Port Services (Port Management Reform) Act 2003

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(3) The port manager must comply with any written direction of the Minister under

ts	section 91H.
n	Penalty:  240 penalty units, in the case of a
e	commercial trading port and
m	60 penalty units in the case of a
u	local port.
c	(4) The port manager must ensure that copies of
o	the following documents are kept at the
D	office of the port manager at the port—
ry	(a) the port safety management plan and
ta	the environment management plan for
n	the port; and
e	(b) the certificates required to be attached
m	to those plans; and
ia

rl	(c)	audit reports on the management plans
a	prepared under section 91F.

P	Penalty: 20 penalty units.
d	(5) The port manager must ensure that copies of
n
a	the documents referred to in sub-section (4) are made available for inspection by a person
n	authorised in writing by the Minister to have
o
ti	access to those documents.
la	Penalty: 20 penalty units.
is	91D. Safety and environment management
g	plans
e
L	(1) A management plan must—
n	(a) identify by a description, map or plan
a
ri	the area or areas of the port lands and
waters to which it applies;
to	(b) identify the nature and extent of the
ic	hazards and risks associated with the
V	operation of the port;

Port Services (Port Management Reform) Act 2003

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Act No. 85/2003

(c) assess the likely impact of those hazards and risks on the port and the

ts	surrounding area;
n	(d) specify the measures and strategies to
e	be implemented to prevent or reduce
m	those hazards or risks;
u	(e) nominate the person who is to be
c	responsible for implementing those
o	measures and strategies;
D

(f) set out the processes to be followed to

ry	involve tenants, licensees and service
ta	providers in the port with the
n	implementation of the management
e	plan;
m	(g) set out the procedures to be followed
ia	for implementing, reviewing and
rl	revising the management plan.
a
P	(2) The safety management plan and the environment management plan for a port
d
n	must be prepared and certified in accordance
a	with this Part within 12 months after the declaration of the port under section 6 or any
n
o	later date that is fixed by the Minister with
ti	respect to the port.
la	(3) A management plan remains in force for—
is	(a) 4 years after the plan was certified in
g	accordance with section 91E(1) or (2),
e	in the case of a commercial trading
L	port; and
n
a	(b) 6 years after the plan was certified in
ri	accordance with section 91E(1) or (3),
to	in the case of a local port; and
ic
V

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(c) any other period that the Minister determines under section 91H, in the case of a commercial trading port or a

ts	local port.
n
e	(4) A certificate for a management plan under
m	section 91E must be attached to the
u	management plan at all times when the plan
c	is in force.
o	91E. Certification of plans
D

(1) A safety management plan for a commercial

ry	trading port and a local port must be certified
ta	by a person who is approved by the Minister
n	in accordance with sub-section (5) that the
e	management plan—
m	(a) adequately provides for the matters
ia
rl	required by section 91D(1); and
a	(b) has been prepared in accordance with
P	Ministerial guidelines made under section 91G.
d
n	(2) An environment management plan for a
a	commercial trading port must be certified by
n	an environmental auditor appointed under
o	section 53S of the Environment Protection
ti	Act 1970 that the plan—
la	(a) adequately provides for the matters
is	required by section 91D(1); and
g
e	(b) has been prepared in accordance with
L	Ministerial guidelines made under
n	section 91G.
a
ri	(3) An environment management plan for a local

port must be certified by a person who is

to	approved by the Minister in accordance with
ic	sub-section (6) or an environmental auditor
V	appointed under section 53S of the

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Environment Protection Act 1970 that the plan—

ts	(a)	adequately provides for the matters
n	required by section 91D(1); and

e	(b) has been prepared in accordance with
m	Ministerial guidelines made under
u	section 91G.
c
o	(4) A person who has certified a management
D	plan under this section must forward a copy of the certificate to the Minister within
ry	21 days after the person has certified the
ta	plan.
n	(5) The Minister may, after consulting the
e	relevant Ministers, approve a person to
m	certify and audit safety management plans
ia	for a commercial trading port or a local port
rl	if the Minister is satisfied the person has the
a	appropriate qualifications or experience in
P	safety assessment or safety management to
d	certify the plans and conduct the audits.
n
a	(6) The Minister may, after consulting the relevant Ministers, approve a person to
n
o	certify and audit environment management
ti	plans for a local port if the Minister is
la	satisfied that the person has the appropriate
qualifications or experience in environmental
is	assessment or environmental management to
g
e	certify the plans and conduct the audits.
L	91F. Audits of compliance
n	(1) The port manager of a commercial trading
a
ri	port must ensure that, within 2 years after the environment management plan for the port is
to	certified under section 91E, an
ic	environmental auditor appointed under
V	section 53S of the Environment Protection Act 1970—

Port Services (Port Management Reform) Act 2003

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Act No. 85/2003

(a)

reviews the management plan to adequately provide for the matters

ts	required by section 91D(1); and
n
e	(b) conducts an audit to determine whether
m	the port manager is complying with the
u	management plan for the port.
c	(2) The port manager of a local port must ensure
o	that, within 3 years after the environment
D	management plan for the port is certified
ry	under section 91E, a person approved in
ta	accordance with section 91E(6)—
n	(a) reviews the management plan to
e	determine whether it continues to
m	adequately provide for the matters
ia	required by section 91D(1); and
rl	(b) conducts an audit to determine whether
a	the port manager is complying with the
P	management plan for the port.
d	(3) The port manager of a commercial trading
n
a	port must ensure that, within 2 years after the safety management plan for the port is
n
o	certified under section 91E, a person
ti	approved in accordance with section
la	91E(5)—

is	(a)	reviews the management plan to
g	determine whether it continues to
e	adequately provide for the matters
L	required by section 91D(1); and

n	(b) conducts an audit to determine whether
a
ri	the port manager is complying with the
to	management plan for the port.
ic	(4) The port manager of a local port must ensure

that, at least once every 3 years after the

V safety management plan for the port is
certified under section 91E, a person

Port Services (Port Management Reform) Act 2003

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approved in accordance with section

91E(5)—

ts	(a)	reviews the management plan to
n	determine whether it continues to
e	adequately provide for the matters
m	required by section 91D(1); and

u	(b) conducts an audit to determine whether
c	the port manager is complying with the
o	management plan for the port.
D

(5) A person who has audited a management

ry	plan under this section must—
ta	(a) prepare a report to the port manager
n	about the outcomes of the audit and the
e	person's recommendations (if any)
m	about any changes required to the plan
ia	or to the operations of the port to
rl	comply with the plan; and
a
P	(b) forward a copy of the report to the Minister within 21 days after the person
d
n	has completed the report.
a	91G. Ministerial guidelines
n	(1) The Minister may issue guidelines about the
o
ti	following matters in relation to management
la	plans—
is	(a) the form of the plans;
g	(b) the content of the plans;
e
L	(c) the method and process for preparing
n	the plans;
a
ri	(d) the processes to enable tenants,

licensees and service providers in the

to	port to be involved in the preparation
ic	and implementation of the plans;

V (e) the processes for consultation with people affected by the plans;

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(f) the publication and availability of management plans.

ts	(2) The guidelines must be published in the
n	Government Gazette and made available for
e	inspection free of charge at the office of the
m	Minister.
u	(3) The Minister must consult with the relevant
c	Ministers before issuing guidelines under
o	this section.
D

91H. Ministerial directions

ry

ta (1) The Minister may, by notice in writing to a

port manager, direct that a management plan

n	for the port must be prepared within any time
e	fixed by the Minister other than that required
m	by this Part.
ia
rl	(2) The Minister may, by notice in writing to a
a	port manager, direct that the management
P	plan for the port remains in force for any longer or shorter period than that required by
d
n	section 91D(3).
a	(3) The Minister may, by notice in writing to a
n	port manager, direct the port manager to—
o

ti	(a)	implement any of the measures or
la	strategies that are specified in the
management plan to prevent or reduce
is	the hazards and risks associated with
g	the operation of the port; or
e
L	(b)	follow the processes that are set out in
n	the management plan to involve
a	tenants, licensees and service providers
ri	in the port with the implementation of
to	the management plan; or
ic
V

Port Services (Port Management Reform) Act 2003

s. 18

Act No. 85/2003

(c) follow any procedures that are set out in the management plan for implementing, reviewing and revising

ts	the plan.
n
e	(4) The Minister may, after consulting with the
m	relevant Ministers, by notice in writing to a
u	port manager, direct the port manager to
c	have a safety management plan or an
o	environment management plan for the port
D	audited in accordance with section 91F at
ry	other times in addition to those required by
section 91F if the Minister is of the opinion
ta	that the audit is necessary.
n	(5) The Minister may, by notice in writing to a port manager, direct the port manager to
e
m
ia	amend a management plan for the port to
rl	implement any recommendation of the person who has conducted an audit of the
a	management plan under section 91F to make
P	changes to the plan so that it continues to
d	adequately provide for the matters required
n	by section 91D(1).
a

91I. Transitional provisions—management

n

o	plans
ti	Despite section 91C, the port manager of a
la	port that was operating immediately before
is	the date of commencement of section 18 of
g	the Port Services (Port Management
e	Reform) Act 2003 must comply with
L	section 91C within 12 months after that date
n	or any later date that is fixed by the Minister
a
ri	with respect to the port.'.
to
ic
V

Port Services (Port Management Reform) Act 2003

s. 19

Act No. 85/2003

19. Regulations

(1) For section 98(1) of the Port Services Act 1995

ts	substitute—
n	"(1) The Governor in Council may, with respect
e	to commercial trading ports managed by a
m	port corporation or local ports generally or
u	with respect to a specified commercial
c	trading port managed by a port corporation
o	or local port, make regulations for or with
D	respect to—
ry	(a) the management of the ports or port;
ta	(b) the conduct and behaviour of people
n	within the ports or port, and the
e	conditions on which people may be
m	admitted to, or excluded from, any part
ia
rl	of the ports or port;
a	(c) traffic co-ordination and the movement
P	and the parking of vehicles within the ports or port;
d
n	(d) prescribing penalties not exceeding
a	5 penalty units for breaches of the
n	regulations;
o

ti	(e)	prescribing any other matter or thing
la	authorised or required to be prescribed
or necessary or convenient to be
is	prescribed for carrying this Act into
g	effect with respect to the ports or port.".
e

L	(2) In section 98(2) of the Port Services Act 1995
n	omit "Melbourne".
a
ri	20. Consequential amendments
to	In the Port Services Act 1995—

ic	(a)	in section 165, for "Division" substitute
V	"Part";

Port Services (Port Management Reform) Act 2003

s. 21

Act No. 85/2003

(b) in section 165 insert the following definition—

ts	' "new corporation" means the Port of
n	Melbourne Corporation established
e	under Part 10;';
m	(c) in sections 169(b) and 170, for "relevant
u	date" substitute "appointed day".
c
o	21. Amendments to allocation statements
D	After section 166(3) of the Port Services Act
ry	1995 insert—
ta	"(3A) The Treasurer, after consultation with the
n	Minister, may at any time direct the VCA to
e	amend a statement given to him or her under
m	this section as specified in the direction.
ia	(3B) An allocation statement under this section
rl	may be amended by writing signed by the
a	Treasurer and the Minister.
P

(3C) An amendment under sub-section (3B) to an

d	allocation statement made after the appointed
n
a	day in relation to that statement may be made with effect from the appointed day if
n	the Treasurer and the Minister are satisfied
o
ti	that the amendment does not adversely affect
la	any property, rights or liabilities of a person
other than the VCA or the new corporation
is	in relation to that statement.".
g
e	22. New section 176A inserted
L	After section 176 of the Port Services Act 1995
n	insert—
a
ri	"176A. Saving of port of Melbourne waters
to	Any waters that were declared to be port of
ic	Melbourne waters or any waters declared to
V	be port waters of the port of Melbourne immediately before the commencement of

Port Services (Port Management Reform) Act 2003

s. 23

Act No. 85/2003

section 4 of the Port Services (Port

Management Reform) Act 2003 are

ts	deemed to be port of Melbourne waters.".
n	23. Insertion of new Part 14
e	After Part 13 of the Port Services Act 1995
m	insert—
u
c	'PART 14—TRANSITIONAL PROVISIONS—
o	ESTABLISHMENT OF PORT OF HASTINGS
D	CORPORATION
ry	177. Definitions
ta	In this Part—
n
e	"commencement day" means the day on
m	which section 23 of the Port Services
ia	(Port Management Reform) Act 2003
rl	comes into operation;
a	"old corporation" means HPHC, within the
P	meaning of this Act, as in force
d	immediately before the commencement
n	day;
a

"new corporation" means the Port of

n	Hastings Corporation, within the
o
ti	meaning of this Act, as in force on and
la	from the commencement day;
is	"transferred employee" means an
g	employee of the old corporation who is
e	deemed to be an employee of the new
L	corporation by section 179(1).
n	178. Transfer of property etc. from HPHC to
a
ri	the new corporation
to	Except as otherwise provided in this Act, on
ic	and from the commencement day—
V	(a) the old corporation is abolished and the directors go out of office; and

Port Services (Port Management Reform) Act 2003

s. 23

Act No. 85/2003

(b) (c) all debts, liabilities and obligations of all rights, property and assets that, day were vested in the old corporation,

ts	vest in the new corporation; and
n
e
m	the old corporation existing
u	immediately before the commencement
c	day, become debts, liabilities and
o	obligations of the new corporation; and
D	(d) the new corporation is substituted as a
ry	party to any proceedings pending in any
ta	court or tribunal to which the old
corporation was a party, immediately
n
e	before the commencement day; and
m	(e) the new corporation is substituted as a
ia	party to any contract or arrangement
rl	entered into by or on behalf of the old
a	corporation and in force immediately
P	before the commencement day; and (f) any reference to the old corporation in
d
n	any Act or in any proclamation, Order
a	in Council, rule, regulation, order,
n	agreement, instrument, deed or other
o
ti	document, so far as it relates to any
period after the commencement day,
la	and if not inconsistent with the context
is	or subject matter, must be construed as
g	a reference to the new corporation.
e	179. Staff to be transferred from the old corporation to the new corporation
L
n
a	(1) A person who was an employee of the old
ri	corporation immediately before the
to	commencement day is deemed to be an
ic	employee of the new corporation.
V

Port Services (Port Management Reform) Act 2003

s. 23

Act No. 85/2003

(2) A transferred employee is to be regarded

as—

ts	(a)	being employed in his or her new
n	position with effect on and from the
e	commencement day; and

m	(b) having the same terms and conditions
u	as those that applied to the person in
c	relation to his or her employment with
o	the old corporation immediately before
D	the commencement day; and
ry	(c) having accrued an entitlement to
ta	benefits in connection with the
n	employment with the new corporation
e	that is equivalent to the entitlement that
m	the person had accrued, as an employee
ia	of the old corporation, immediately
rl	before the commencement day.
a	(3) The service of a transferred employee with
P	the new corporation is to be regarded for all
d	purposes as having been continuous with the
n	service of the transferred employee,
a	immediately before the commencement day,
n	as an employee of the old corporation.
o
ti	(4) A transferred employee is not entitled to
la	receive any payment or other benefit by
reason only of having ceased to be an
is	employee of the old corporation because of
g
e	the operation of this Part.
L	(5) A certificate purporting to be signed by the
n	chief executive officer of the new
a	corporation certifying that the person named
ri	in the certificate was, with effect from the
to	commencement day, employed, by virtue of
ic	this section, with the new corporation, is
admissible in evidence in any proceedings
V

Port Services (Port Management Reform) Act 2003

s. 24

Act No. 85/2003

and is conclusive proof of the matters stated

in it.

ts	(6) The superannuation entitlements of any
n	person who is a transferred employee are
e	deemed not to be affected by that person
m	becoming a transferred employee.
u	(7) If a transferred employee was, immediately
c	before the appointed day an officer within
o	the meaning of the State Superannuation
D	Act 1988, he or she continues to be such an
ry	officer.
ta	(8) Nothing in this section prevents—
n	(a) any of the terms and conditions of
e	employment of a transferred employee
m	from being altered by or under any law,
ia	award or agreement with effect from
rl	any time after the commencement day;
a	or
P

(b) a transferred employee from resigning

d

n	or being dismissed at any time after the
a	commencement day in accordance with the existing terms and conditions of his
n
o	or her employment with the new
ti	corporation.'.
la	24. Insertion of new Part 15
is	After Part 14 of the Port Services Act 1995
g	insert—
e
L	'PART 15—TRANSITIONAL PROVISIONS—
n	ESTABLISHMENT OF VICTORIAN REGIONAL
a
ri	CHANNELS AUTHORITY
to	180. Definitions
ic	In this Part—
V	"commencement day" means the day on which section 24 of the Port Services

Port Services (Port Management Reform) Act 2003

s. 24

Act No. 85/2003

(Port Management Reform) Act 2003

comes into operation;

ts	"old corporation" means VCA, within the
n	meaning of this Act, as in force
e	immediately before the commencement
m	day;
u	"new corporation" means the VRCA,
c	within the meaning of this Act, as in
o	force on and from the commencement
D	day;
ry	"transferred employee" means an
ta	employee of the old corporation who is
n	deemed to be an employee of the new
e	corporation by section 182(1).
m	181. Transfer of property etc. from VCA to the
ia
rl	new corporation
a	Except as otherwise provided in this Act, on
P	and from the commencement day—
d	(a) the old corporation is abolished and the
n	directors go out of office; and
a

(b) all rights, property and assets that,

n	immediately before the commencement
o
ti	day were vested in the old corporation,
la	vest in the new corporation; and

is	(c)	all debts, liabilities and obligations of
g	the old corporation existing
e	immediately before the commencement
L	day, become debts, liabilities and
n	obligations of the new corporation; and
a

ri (d) the new corporation is substituted as a

party to any proceedings pending in any

to	court or tribunal to which the old
ic	corporation was a party, immediately
V	before the commencement day; and

Port Services (Port Management Reform) Act 2003

s. 24

Act No. 85/2003

(e) the new corporation is substituted as a party to any contract or arrangement entered into by or on behalf of the old

ts	corporation and in force immediately
n	before the commencement day; and
e

(f) any reference to the old corporation in

m

u	any Act or in any proclamation, Order
c	in Council, rule, regulation, order,
o	agreement, instrument, deed or other
D	document, so far as it relates to any
ry	period after the commencement day,
and if not inconsistent with the context
ta	or subject matter, must be construed as
n	a reference to the new corporation.
e

182. Staff to be transferred from the old

m	corporation to the new corporation
ia
rl	(1) A person who was an employee of the old
a	corporation immediately before the
P	commencement day is deemed to be an
d	employee of the new corporation.
n	(2) A transferred employee is to be regarded
a	as—
n	(a) being employed in his or her new
o
ti	position with effect on and from the
la	commencement day; and

is	(b)	having the same terms and conditions
g	as those that applied to the person in
e	relation to his or her employment with
L	the old corporation immediately before
n	the commencement day; and
a
ri	(c)	having accrued an entitlement to benefits in connection with the
to	employment with the new corporation
ic	that is equivalent to the entitlement that
V	the person had accrued, as an employee

Port Services (Port Management Reform) Act 2003

s. 24

Act No. 85/2003

of the old corporation, immediately

before the commencement day.

ts	(3) The service of a transferred employee with
n	the new corporation is to be regarded for all
e	purposes as having been continuous with the
m	service of the transferred employee,
u	immediately before the commencement day,
c	as an employee of the old corporation.
o	(4) A transferred employee is not entitled to
D	receive any payment or other benefit by
ry	reason only of having ceased to be an
ta	employee of the old corporation because of
the operation of this Part.
n
e	(5) A certificate purporting to be signed by the
m	chief executive officer of the new
ia	corporation certifying that the person named
rl	in the certificate was, with effect from the
a	commencement day, employed, by virtue of
P	this section, with the new corporation, is
d	admissible in evidence in any proceedings
n	and is conclusive proof of the matters stated
a	in it.
n	(6) The superannuation entitlements of any
o
ti	person who is a transferred employee are
deemed not to be affected by that person
la	becoming a transferred employee.
is	(7) If a transferred employee was, immediately
g
e	before the appointed day an officer within
L	the meaning of the State Superannuation Act 1988, he or she continues to be such an
n	officer.
a
ri	(8) Nothing in this section prevents—
to	(a) any of the terms and conditions of
ic	employment of a transferred employee
V	from being altered by or under any law, award or agreement with effect from

Port Services (Port Management Reform) Act 2003

s. 25

Act No. 85/2003

any time after the commencement day;

or

ts	(b)	a transferred employee from resigning
n	or being dismissed at any time after the
e	commencement day in accordance with
m	the existing terms and conditions of his
u	or her employment with the new
c	corporation.'.

o	25. New Part 16 inserted
D

After Part 15 of the Port Services Act 1995

ry	insert—
ta
n	"PART 16—OTHER SAVINGS AND
e	TRANSITIONALS
m	183. Savings for existing local authorities
ia
rl	(1) Any lands or waters that were immediately
a	before the date of commencement of
P	section 11 of the Port Services (Port
d	Management Reform) Act 2003 declared to
n	be a designated port under section 111 of the
a	Marine Act 1988 are to be deemed to be the lands and waters of a local port for the
n	purposes of this Act.
o
ti	(2) Nothing in the Port Services (Port
la	Management Reform) Act 2003 affects the
is	appointment or constitution of a person or
g	body that was a local authority for lands and
e	waters that were declared to be a designated
L	port under section 111 of the Marine Act
n	1988 immediately before the date of
a
ri	commencement of section 11 of the Port
Services (Port Management Reform) Act
to	2003 and that person or body is deemed to be
ic	the port manager of those lands and waters
V	as a local port under this Act.

Port Services (Port Management Reform) Act 2003

s. 26

Act No. 85/2003

(3) Any delegation made or charge fixed under Part 10 of the Marine Act 1988 by a person or body referred to in sub-section (2),

ts	immediately before the date of
n	commencement of section 11 of the Port
e	Services (Port Management Reform) Act
m	2003, is deemed to be a delegation made or a
u	charge fixed (as the case requires) under the
c
o	corresponding provisions of Part 2A of this
D	Act.".
ry	26. Boards of Corporations
ta	(1) In Schedule 1 to the Port Services Act 1995—
n	(a) in clause 1(1) omit "(or, in the case of
e	HPHC, 2)";
m	(b) in clause 9(3) omit "other than HPHC";
ia
rl	(c) clause 9(3A) is repealed.
a	(2) In Schedule 1 to the Port Services Act 1995—
P

(a) in clause 1(1) after "3" insert "(or, in the

d	case of VRCA, 2)";
n

a	(b)	in clause 9(3) after "a port corporation"
n	insert ", other than VRCA";
o

ti	(c) after clause 9(3) insert—
la	"(3A) A quorum of the board of VRCA
is	consists of—
g	(a) the chairperson of the corporation, if
e	there are no more than 2 directors of the
L	corporation;
n	(b) a majority of the directors of the
a
ri	corporation for the time being, if there
to	are more than 2 directors.".
ic
V

Port Services (Port Management Reform) Act 2003

s. 27

Act No. 85/2003

27. Consequential amendments—management plans

In section 3 of the Port Services Act 1995 insert

ts	the following definition—
n	' "management plan" means a safety
e	management plan or an environment
m	management plan required by section 91C;'.
u
c	28. Consequential amendments—port management
o	In the Port Services Act 1995—
D

(a) in section 3, insert the following

ry	definitions—
ta	' "commercial trading port" means the port
n	of Melbourne, the port of Geelong, the
e	port of Portland, the port of Hastings
m	and any other port declared to be a
ia	commercial trading port by Order in
rl	Council under section 6;
a
P	"local port" means a port declared to be a local port by Order in Council under
d	section 6;
n
a	"port" means the port of Melbourne, the
n	port of Geelong, the port of Portland,
o	the port of Hastings and any other port
ti	declared under section 6 in relation to
la	which port lands or port waters or both
is	port lands and port waters have been
g	declared under section 5;
e	"port manager" means—
L

(a) in the case of a commercial

n

a	trading port, the person or body
ri	who effectively manages,
to	superintends or controls the
operation of the port or part of the
ic	port, but does not include a tenant
V	or occupier of part of the port unless the tenant or occupier has

Port Services (Port Management Reform) Act 2003

s. 29

Act No. 85/2003

entered into a port management
agreement to manage the

operations of that part of the port;

ts	or
n
e	(b) in the case of a local port, the
m	person or body appointed under
u	section 44A to be the port
c	manager of the port;';
o	(b) in section 3, for the definition of "port
D	waters" substitute—
ry	' "port waters", in relation to a port, means
ta	the waters declared by Order in Council
n	under section 5(2) to be port waters of
e	the port;';
m	(c) in section 26 for "local authority within the
ia	meaning of section 112 of the Marine Act
rl	1988" substitute "port manager of a local
a	port".
P

29. Consequential amendments—POHC

d

n	In section 3 of the Port Services Act 1995—
a

(a) the definition of "HPHC" is repealed;

n

o	(b) insert the following definition—
ti	' "POHC" means the Port of Hastings
la	Corporation established by Division 1A
is	of Part 2;';
g
e	(c) in the definition of "port corporation" for
L	"Hastings Port (Holding) Corporation"
n	substitute "Port of Hastings Corporation".
a
ri
to
ic
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s. 30

Act No. 85/2003

30. Consequential amendments—VRCA

(1) In section 3 of the Port Services Act 1995—

ts	(a) in the definition of "channel operator", for
n	"VCA" substitute "VRCA";
e

(b) in the definition of "port corporation" for

m

u	"Victorian Channels Authority" substitute
c	"Victorian Regional Channels Authority";
o	(c) for the definition of "VCA" substitute—
D

' "VCA" means the Victorian Channels

ry	Authority as in force immediately
ta	before the commencement of section 10
n	of the Port Services (Port
e	Management Reform) Act 2003;
m	"VRCA" means the Victorian Regional
ia	Channels Authority established by
rl	Division 2 of Part 2;';
a	(2) In sections 4(2)(b), 7, 23, 24, 45, 75, 78, 79, 80, 81, 82, 83, 85, 88, 90 and 91 of the Port Services
P
d	Act 1995 for "VCA" (wherever occurring)
n
a	substitute "VRCA".
Act No.
n	13/1987.

31. Borrowing and Investment Powers Act 1987

o

ti	In the Borrowing and Investment Powers Act
1987 in column 1 of item 20A in the Table in
la	Schedule 1, for "Victorian Channels Authority"
is	substitute "Victorian Regional Channels
g	Authority".
e	Act No.
L	22/1991.

32. Docklands Act 1991

n	In the Docklands Act 1991, in sections 28(2) and
a
ri	32(1)(a) for "Victorian Channels Authority"
substitute "Victorian Regional Channels
to	Authority".
ic
V

Port Services (Port Management Reform) Act 2003

s. 33

Act No. 85/2003

33. Land Act 1958 Act No. 6284.

For section 385(2)(f) of the Land Act 1958

ts	substitute—
n	"(f) the Victorian Regional Channels Authority;".
e	Act No.

34. Marine Act 1988

m	52/1988.
u	(1) In the Marine Act 1988—
c
o	(a) in section 3(1), in the definition of "local
D	authority" for paragraph (c) substitute—
ry	"(c) a person or body declared under section 6 of the Port Services Act 1995
ta	to be a port manager of a local port
n	within the meaning of that Act;";
e

(b) Part 10 is repealed.

m

ia	(2) In the Marine Act 1988—
rl	(a) in section 3(1), for the definition of
a	"Victorian Channels Authority" substitute—
P
d	' "Victorian Regional Channels
n	Authority" means the Victorian
a	Regional Channels Authority
n	established by Division 2 of Part 2 of
o
ti
the Port Services Act 1995;';

(b) in sections 15, 66A(1), 66B(1), 69(1)(b),

la	70(1)(b) and 92A(2) and items 18A, 18B,
is	18E, 18F, and 18G of Schedule 4, for
g	"Victorian Channels Authority" (wherever
e	occurring) substitute "Victorian Regional
L	Channels Authority".
n
a
ri
to
ic
V

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s. 35

Act No. 85/2003

35. Treasury Corporation of Victoria Act 1992

Act No. 80/1992.

In the Treasury Corporation of Victoria Act

ts	1992—
n	(a) in section 36A, in the definition of "public
e	authority" for "Victorian Channels
m	Authority" substitute "Victorian Regional
u	Channels Authority";
c
o	(b) in column 1 of the table in Schedule 1, for
D	"Victorian Channels Authority" substitute
ry	"Victorian Regional Channels Authority".
ta	═══════════════
n
e
m
ia
rl
a
P
d
n
a
n
o
ti
la
is
g
e
L
n
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Port Services (Port Management Reform) Act 2003

Endnotes

Act No. 85/2003

ENDNOTES

ts †

Minister's second reading speech—

n	Legislative Assembly: 8 October 2003
e
Legislative Council: 29 October 2003
m
u	The long title for the Bill for this Act was "to amend the Port Services
c	Act 1995 and the Marine Act 1988 to make further provision for the
o	establishment, management and operation of ports in Victoria, to make
D	consequential amendments to other Acts and for other purposes."
ry
ta
n
e
m
ia
rl
a
P
d
n
a
n
o
ti
la
is
g
e
L
n
a
ri
to
ic
V