Port Services (Port of Melbourne Reform) Act 2003 (Vic)

Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

TABLE OF PROVISIONS

Section Page

PART 1—PRELIMINARY 1

1. Purposes 1
2. Commencement 2
PART 2—ESTABLISHMENT OF PORT OF MELBOURNE

CORPORATION 3

3. Definitions 3
4. Orders in Council 4
5. Substitution of Division 1 of Part 2 4
Division 1—Port of Melbourne Corporation 4

10. Establishment 4
11. Port of Melbourne Corporation not to represent the
Crown 5
12. Objectives 5
13. Functions 6
14. Powers of the Port of Melbourne Corporation 7
15. Acquisition or disposal of land by the Corporation to
be approved by Minister 8

6. Directions by the Minister 8
7. Non-commercial functions 9
8. Amendment of heading to Part 4 9
9. Insertion of new Division 1 of Part 4 9
Division 1—Reservation of land for the purposes of the port
of Melbourne 9
64. Power to reserve unalienated Crown land for the

purposes of the port of Melbourne 9

10. Wharfage charge 11
11. Substitution of heading to Part 8 11
12. Insertion of definition of "port corporation" in section 99 12
13. Substitution of heading to Part 9 12
14. Insertion of definition of "port corporation" in section 117 12

Section Page

15. Insertion of new Part 12 13
PART 12—TRANSITIONAL PROVISIONS—
ESTABLISHMENT OF PORT OF MELBOURNE
CORPORATION 13

162. Definitions 13
163. Transfer of property etc. from MPC to the new
corporation 13
164. Staff to be transferred from the old corporation to the
new corporation 14

16. Provisions applying to the Boards of port corporations 16
17. Consequential amendments 17

PART 3—TRANSFER OF VCA FUNCTIONS 18

18. Definitions 18
19. Objectives of the Port of Melbourne Corporation 19
20. Functions of the Port of Melbourne Corporation 19
21. Insertion of new section to follow section 14 19

14A. Dredging by Port of Melbourne Corporation 19

22. Definition of port waters for VCA 20
18AA. Definition 20
23. Amendment of definition of channel operator in Part 3 20
24. Insertion of new Part 13 21
PART 13—TRANSITIONAL PROVISIONS—TRANSFER
OF CERTAIN VCA FUNCTIONS ETC. 21
Division 1—Definitions 21

165. Definitions 21

Division 2—Allocation of property etc. 22

166. Treasurer may direct transfer of property etc. 22
167. Property transferred to the new corporation 23
168. Allocation of property etc. subject to encumbrances 23
169. Substitution of party to agreement 24
170. VCA instruments 24
171. Taxes 24
172. Validity of things done under this Part 25
173. Payments in respect of financial obligations of VCA 26

Division 3—Staff and other matters 26
174. List of staff to be transferred from VCA to the new

corporation 26
175. Terms of employment of staff transferred from VCA

to the new corporation 27
176.

Price determination 28

Section Page

PART 4—AMENDMENTS TO OTHER ACTS 30
25. Amendment of references in the Borrowing and Investment

Powers Act 1987 30
26. Amendment of references in the Docklands Authority

Act 1991 30
27.

Amendment of references in the Land Act 1958 30
28. Amendment of references in the Metropolitan Fire Brigades

Act 1958 31
29.

Amendment of the Public Authorities (Dividends) Act 1983 31
30.

Amendment of references in the Transport Act 1983 32
31. Amendment of references in the Treasury Corporation of

Victoria Act 1992 32

__________________

SCHEDULE—Consequential Amendments to the Port Services

Act 1995 33

═══════════════

ENDNOTES 35

iii

Victoria

No. 23 of 2003

Port Services (Port of Melbourne

Reform) Act 2003†

[Assented to 13 May 2003]
The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

1. Purposes

The purposes of this Act are to—

(a)

amend the Port Services Act 1995 to provide for the abolition of the Melbourne Port Corporation and the establishment of the Port of Melbourne Corporation; and

Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

Part 1—Preliminary s. 2

(b)

make other amendments to the Port Services Act 1995; and

(c)

amend the Public Authorities (Dividends) Act 1983; and

(d)

make consequential amendments to other Acts.

2. Commencement
(1) This Act (except Part 3 (other than section 24) and Part 4) comes into operation on 1 July 2003.
(2) Subject to sub-section (3), the remaining
provisions of Part 3 come into operation on a day,
not earlier than 2 July 2003, to be proclaimed.
(3) If the remaining provisions of Part 3 do not come into operation before 2 February 2004, they come into operation on that day.
(4) Subject to sub-section (5), Part 4 comes into
operation on a day or days to be proclaimed.
(5) If a provision of Part 4 does not come into
operation before 2 February 2004, it comes into
operation on that day.

__________________
Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

s. 3	Part 2—Establishment of Port of Melbourne Corporation

PART 2—ESTABLISHMENT OF PORT OF MELBOURNE

CORPORATION

See:	3. Definitions
Act No. 82/1995. Reprint No. 2	In section 3 of the Port Services Act 1995—
as at

(a) insert the following definitions—

1 June 2001
and

amending	' "port of Melbourne" means port of
Act Nos
44/2001,	Melbourne land;
62/2001 and
77/2001.	"Port of Melbourne Corporation" means
LawToday:	the corporation established under
	dpc.vic.	section 10;
gov.au

"port of Melbourne land" means land that
Melbourne City Council, Maribyrnong

is in the municipal district of the Council or Port Phillip City Council or any land in Port Phillip Bay adjoining one or more of those municipal districts, being—

(a) land—

(i)
an interest that is in the
nature of a freehold or
leasehold interest or a
an interest in which (being Melbourne Corporation; and

(ii)
in Council under section
that is declared by the Order Melbourne land; and

(b)
temporarily reserved under the
any land that is deemed to be 1978 for the purposes of the port

Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

Part 2—Establishment of Port of Melbourne Corporation s. 4
of Melbourne by the operation of
section 64;';

(b)
the definitions of "managed land", are repealed;

(c)

in the definition of "port corporation", for "Melbourne Port Corporation" substitute "Port of Melbourne Corporation";
(d) in the definition of "port land"—
(i) for paragraph (a) substitute—
"(a) in the case of the port of
Melbourne, the port of Melbourne
land;";

(ii) in paragraph (b) for "in relation to" substitute "in the cases of".

4. Orders in Council
After section 5(1) of the Port Services Act 1995
insert—
"(1A) The Governor in Council may, from time to time, by Order published in the Government Gazette, declare any land, an interest in
which (being an interest in the nature of a
freehold or leasehold interest or a licence) is
held by the Port of Melbourne Corporation,
to be port of Melbourne land.".

5. Substitution of Division 1 of Part 2
For Division 1 of Part 2 of the Port Services Act
1995 substitute—
'Division 1—Port of Melbourne Corporation
10. Establishment
(1) There is established a body to be known as the "Port of Melbourne Corporation".

Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

s. 5	Part 2—Establishment of Port of Melbourne Corporation

(2) The Port of Melbourne Corporation—

(a)

is a body corporate with perpetual succession; and
(b) has an official seal; and
(c) may sue and be sued; and

(d) may acquire, hold and dispose of real and personal property; and
(e) may do and suffer all acts and things that a body corporate may, by law, do and suffer.
(3) All courts must take judicial notice of the seal of the Port of Melbourne Corporation affixed to a document and, until the contrary
is proved, must presume that it was duly
affixed.
(4) The official seal of the Port of Melbourne
Corporation must be kept in such custody as the Corporation directs and must not be used except as authorised by the Corporation.
11. Port of Melbourne Corporation not to represent the Crown

The Port of Melbourne Corporation is a
public authority but does not represent the
Crown.
12.
Objectives Corporation are—

(a)
Melbourne in an economically, socially
to manage and develop the port of manner;

Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

Part 2—Establishment of Port of Melbourne Corporation s. 5

(b) to ensure that essential port services of the port of Melbourne are available and cost effective;
(c) to ensure, in co-operation with other relevant responsible bodies, that the port of Melbourne is effectively
integrated with other systems of
infrastructure in the State;
(d)
relevant responsible bodies, the
to facilitate, in co-operation with other port of Melbourne.

13. Functions
(1) The functions of the Port of Melbourne Corporation are—

(a) to plan for the development and operation of the port of Melbourne;
(b)
infrastructure necessary for the
to provide land, waters and of Melbourne;

(c)

to develop, or enable and control the development by others of, the whole or any part of the port of Melbourne;

(d)

to manage, or enable and control the management by others of, the whole or any part of the port of Melbourne;

(e)

to provide, or enable and control the provision by others of, services for the operation of the port of Melbourne;

(f)

to promote and market the port of Melbourne;

Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

s. 5	Part 2—Establishment of Port of Melbourne Corporation

(g)
infrastructure and logistics systems in
to facilitate the integration of systems outside the port;

(h) any other functions that are conferred on the Corporation by or under this or any other Act.
(2) The Port of Melbourne Corporation must

carry out its functions under sub-section (1)
in a manner that—

(a) is safe and secure; and
(b) is environmentally sustainable; and
(c) is effective and efficient; and
(d) is commercially sound; and

(e)
working in the immediate
has regard for the persons living or Melbourne.

14. Powers of the Port of Melbourne Corporation
The Port of Melbourne Corporation—

(a)

subject to section 15, may acquire or dispose of real or personal property;

(b)

may enter into contracts, agreements, leases or licences;
(c) may employ agents or contractors;
(d) may act as an agent of another person;

(e)

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

Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

Part 2—Establishment of Port of Melbourne Corporation s. 6

(f)
of, and may participate in, partnerships,
trusts, unincorporated joint ventures
may form, participate in the formation profits;

(g) may act as trustee;

(h)
may engage in any business, performance of its functions;
(i) may act as a committee of management under the Crown Land (Reserves) Act 1978;

(j) may do all things necessary or convenient to be done for, or in connection with, the carrying out of its functions.
15. Acquisition or disposal of land by the Corporation to be approved by Minister
The Port of Melbourne Corporation must obtain the approval of the Minister before acquiring or disposing of any interest in
land.'.

6. Directions by the Minister
(1) For section 30(1) of the Port Services Act 1995
substitute—
"(1) Each port corporation is subject to the
general direction and control of the Minister. (1A) Each port corporation is subject to any
specific direction given to it by the Minister
with the approval of the Treasurer.".

(2) In section 30(2) of the Port Services Act 1995, for "Treasurer" substitute "Minister".
(3) In section 30(3) of the Port Services Act 1995, for "Treasurer" substitute "Minister".

Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

s. 7	Part 2—Establishment of Port of Melbourne Corporation

7. Non-commercial functions
In section 38(1) of the Port Services Act 1995—
(a) for "Treasurer" substitute "Minister";

(b)

for "after consultation with the Minister" substitute "with the approval of the Treasurer";

(c)

in paragraph (a), for "Treasurer" substitute "Minister";

(d)

in paragraph (c), for "Treasurer" substitute "Minister".

8. Amendment of heading to Part 4
In the heading to Part 4 of the Port Services Act
1995, for "CROWN LAND" substitute
"RESERVATION OF LAND".

9. Insertion of new Division 1 of Part 4
After the heading to Part 4 of the Port Services
Act 1995 insert—
"Division 1—Reservation of land for the
purposes of the port of Melbourne
64. Power to reserve unalienated Crown land for the purposes of the port of Melbourne
(1) The Minister, in consultation with the Minister administering section 4 of the Crown Land (Reserves) Act 1978, may
recommend to the Governor in Council that
any Crown land that is—

(a)
Melbourne City Council, Maribyrnong
in the municipal district of the Council or Port Phillip City Council or in Port Phillip Bay adjoining one or more of those municipal districts; and

Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

Part 2—Establishment of Port of Melbourne Corporation s. 9

(b)

not reserved under the Crown Land (Reserves) Act 1978—
be reserved for the purposes of the port of
Melbourne.

(2) The Minister must not make a

recommendation under sub-section (1)
unless the Minister—

(a)

has received a plan of the land signed by the Surveyor-General; and

(b)

is satisfied that the land, shown on the plan signed by the Surveyor-General, represents the land that is to be reserved
for the purposes of the port of
Melbourne.
(3) On receiving a recommendation of the
Minister under sub-section (1), the Governor in Council may, by Order published in the Government Gazette, declare that any interests over the land shown in the plan, other than those specified in the Order, are surrendered to the Crown.
(4) On the publication of an Order under sub- section (3) in the Government Gazette—

(a)
land of the Crown, freed and
discharged from all trusts, limitations,
reservations, restrictions,
encumbrances, estates and interests
the land is deemed to be unalienated and

Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

s. 10

Part 2—Establishment of Port of Melbourne Corporation

(b)

the land is deemed to be temporarily reserved under section 4(1) of the Crown Land (Reserves) Act 1978 for the purposes of the port of Melbourne, and the reservation may be amended, revoked and otherwise dealt with in accordance with that Act; and

(c)

the Port of Melbourne Corporation is deemed to be the committee of management of the land.".
10. Wharfage charge
(1) In section 74(1) of the Port Services Act 1995,

for "MPC" substitute "the Port of Melbourne
Corporation".

(2) In section 74(3) of the Port Services Act 1995,

for "MPC" substitute "the Port of Melbourne
Corporation".

(3) In section 74(4) of the Port Services Act 1995,

for "MPC" substitute "the Port of Melbourne
Corporation".

(4) In section 74(5) of the Port Services Act 1995,

for "MPC" substitute "the Port of Melbourne
Corporation".

(5) In section 74(6) of the Port Services Act 1995,

for "MPC" substitute "the Port of Melbourne
Corporation".

11. Substitution of heading to Part 8
For the heading to Part 8 of the Port Services Act
1995 substitute—
"PART 8—TRANSFER OF PROPERTY BY PORT AUTHORITIES TO CERTAIN PORT
CORPORATIONS".

Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

Part 2—Establishment of Port of Melbourne Corporation s. 12
12. Insertion of definition of "port corporation" in section 99
In section 99(1) of the Port Services Act 1995,
insert the following definition—
' "port corporation" means—

(a)

Melbourne Port Corporation, within the meaning of this Act, as in force immediately before the commencement of section 5 of the Port Services (Port of Melbourne Reform) Act 2003; or
(b) Hastings Port (Holding) Corporation; or
(c) Victorian Channels Authority;'.

13. Substitution of heading to Part 9
For the heading to Part 9 of the Port Services Act
1995 substitute—
"PART 9—STAFF OF PORT AUTHORITIES".

14. Insertion of definition of "port corporation" in section 117
In section 117 of the Port Services Act 1995,
insert the following definition—
' "port corporation" means—

(a)

Melbourne Port Corporation, within the meaning of this Act, as in force immediately before the commencement of section 5 of the Port Services (Port of Melbourne Reform) Act 2003; or
(b) Hastings Port (Holding) Corporation; or
(c) Victorian Channels Authority;'.

Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

s. 15

Part 2—Establishment of Port of Melbourne Corporation

15. Insertion of new Part 12
After Part 11 of the Port Services Act 1995 insert—
'PART 12—TRANSITIONAL PROVISIONS—
ESTABLISHMENT OF PORT OF MELBOURNE
CORPORATION

162. Definitions
In this Part—
"commencement day" means the day on
which section 5 of the Port Services
(Port of Melbourne Reform) Act
2003 comes into operation;

"old corporation" means MPC, within the

meaning of this Act, as in force
immediately before the commencement
day;

"new corporation" means the Port of
Melbourne Corporation, within the meaning of this Act, as in force on and from the commencement day.
163. Transfer of property etc. from MPC to the new corporation
Except as otherwise provided in this Act, on and from the commencement day—

(a) the old corporation is abolished and the directors go out of office; and
(b)
immediately before the commencement
all rights, property and assets that, vest in the new corporation; and

(c)
all debts, liabilities and obligations of immediately before the commencement

Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

Part 2—Establishment of Port of Melbourne Corporation s. 15
day, become debts, liabilities and
obligations of the new corporation; and

(d) the new corporation is substituted as a party to any proceedings pending in any court or tribunal to which the old corporation was a party, immediately before the commencement day; and
(e) the new corporation is substituted as a party to any contract or arrangement entered into by or on behalf of the old corporation and in force immediately before the commencement day; and
(f) any reference to the old corporation in any Act or in any proclamation, Order in Council, rule, regulation, order,
agreement, instrument, deed or other
document, so far as it relates to any
period after the commencement day,
and if not inconsistent with the context
or subject matter, must be construed as
a reference to the new corporation.
164. Staff to be transferred from the old corporation to the new corporation

(1) A person who was an employee of the old

corporation immediately before the
commencement day is deemed to be an
employee of the new corporation.

(2) A transferred employee is to be regarded
as—

(a)

being employed in his or her new position with effect on and from the commencement day; and

(b)

having the same terms and conditions as those that applied to the person in relation to his or her employment with

Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

s. 15

Part 2—Establishment of Port of Melbourne Corporation

the old corporation immediately before
the commencement day; and

(c)
benefits in connection with the
having accrued an entitlement to that is equivalent to the entitlement that the person had accrued, as an employee of the old corporation, immediately before the commencement day.

(3) The service of a transferred employee with the new corporation is to be regarded for all purposes as having been continuous with the service of the transferred employee,
immediately before the commencement day,
as an employee of the old corporation.
(4) A transferred employee is not entitled to receive any payment or other benefit by reason only of having ceased to be an
employee of the old corporation because of
the operation of this Division.
(5) A certificate purporting to be signed by the

chief executive officer of the new
corporation certifying that the person named
in the certificate was, with effect from the
commencement day, employed, by virtue of
this section, with the new corporation, is
admissible in evidence in any proceedings
and is conclusive proof of the matters stated
in it.

(6) The superannuation entitlements of any
person who is a transferred employee are deemed not to be affected by that person becoming a transferred employee.
(7) If a transferred employee was, immediately
before the appointed day an officer within the meaning of the State Superannuation

Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

Part 2—Establishment of Port of Melbourne Corporation s. 16
Act 1988, he or she continues to be such an officer.
(8) Nothing in this section prevents—

(a) any of the terms and conditions of employment of a transferred employee from being altered by or under any law, award or agreement with effect from any time after the commencement day; or
(b) a transferred employee from resigning or being dismissed at any time after the commencement day in accordance with the existing terms and conditions of his or her employment with the new corporation.
(9) This section applies to the person occupying the position of chief executive officer of the Melbourne Port Corporation immediately
before the commencement day, and the person.
amendment to this Act by section 16(3) of
the Port Services (Port of Melbourne

(10) In this section, "transferred employee"

means an employee of the old corporation
who is deemed to be an employee of the new
corporation by sub-section (1).'.

16. Provisions applying to the Boards of port corporations
(1) In clause 1 of Schedule 1 to the Port Services Act

1995, for "Melbourne Port Corporation, 7"
substitute "Port of Melbourne Corporation, 9".

(2) In clause 3(1) of Schedule 1 to the Port Services Act 1995 after "the Governor in Council" insert ", on the recommendation of the Minister, after

consultation with the Treasurer".
Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

s. 17

Part 2—Establishment of Port of Melbourne Corporation

(3) In clause 6(1) of Schedule 1 to the Port Services Act 1995, for "the Treasurer after consultation with the Minister" substitute "the Minister, after consultation with the Treasurer".
17. Consequential amendments
The Port Services Act 1995 is amended as set out in the Schedule.

__________________
Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

Part 3—Transfer of VCA Functions s. 18

PART 3—TRANSFER OF VCA FUNCTIONS

18. Definitions
In section 3 of the Port Services Act 1995—

(a) insert the following definitions—
' "Director of Marine Safety" has the same
meaning as "Director" has in the
Marine Act 1988;

"port of Melbourne waters" means any

waters that, by Order in Council made
under section 5(2) are declared to be
port of Melbourne waters;';

(b)
for the definition of "channel operator" ' "channel operator" means—

(a)

in the case of port of Melbourne waters, the Port of Melbourne Corporation;

(b)

in the case of any other port waters, a person who manages channels in those waters under an agreement with VCA;';

(c) in the definition of "port of Melbourne", after "port of Melbourne land" insert "and port of Melbourne waters";
(d)
in the definition of "port waters" for substitute "in the case of the port of Melbourne, the port of Melbourne waters, and in the cases of the port of".

Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

s. 19

Part 3—Transfer of VCA Functions

19. Objectives of the Port of Melbourne Corporation

In section 12 of the Port Services Act 1995—

(a)

in paragraph (d), for "Melbourne." substitute "Melbourne;";
(b) after paragraph (d) insert—
"(e) to establish and manage channels in

port of Melbourne waters for use on a
fair and reasonable basis.".

20. Functions of the Port of Melbourne Corporation

After section 13(1)(g) of the Port Services Act
1995, insert—
"(ga) to manage and, in accordance with standards developed by the Director of Marine Safety, to dredge and maintain channels in port of
Melbourne waters;

(gb) to provide and maintain, in accordance with

the standards developed by the Director of with navigation in port of Melbourne waters;
(gc) generally, to direct and control, in
accordance with the Marine Act 1988, the movement of vessels in port of Melbourne waters;".

21. Insertion of new section to follow section 14
After section 14 of the Port Services Act 1995 insert—

"14A. Dredging by Port of Melbourne

Corporation
Without limiting the generality of the powers
conferred on it, but subject to obtaining any
permit, consent or other authority required
by or under any other Act, the Port of
Melbourne Corporation, in connection with

Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

Part 3—Transfer of VCA Functions s. 22
carrying out its functions as a channel
operator—

(a)
may alter, dredge, cleanse, scour, port of Melbourne waters;

(b) may reduce or remove any banks or shoals within any such channel;
(c)
impediments, obstructions and
may abate and remove any injurious to the sea-bed or that obstruct or tend to obstruct navigation.".

22. Definition of port waters for VCA
After the heading to Division 2 of Part 2 insert—
'18AA. Definition
In this Division "port waters" does not include port of Melbourne waters.'.

23. Amendment of definition of channel operator in Part 3
In the definition of "channel operator" in port of Melbourne waters".
section 45 of the Port Services Act 1995, after
"under an arrangement with VCA" insert "or the

Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

s. 24

Part 3—Transfer of VCA Functions

24. Insertion of new Part 13
After Part 12 of the Port Services Act 1995 insert—
'PART 13—TRANSITIONAL PROVISIONS— TRANSFER OF CERTAIN VCA FUNCTIONS
ETC.

Division 1—Definitions

165. Definitions
In this Division—
"appointed day" means the day on which
section 20 of the Port Services (Port
of Melbourne Reform) Act 2003
comes into operation;

"former VCA property" means property, rights or liabilities of VCA that, under this Part, have vested in or become
property rights or liabilities of the new
corporation;

"instrument" includes a document and an

oral agreement;

"liabilities" means all liabilities, duties and obligations, whether actual, contingent or prospective;
"property" means any legal or equitable estate or interest (whether present or future and whether vested or
contingent) in real or personal property
of any description;

"rights" means all rights, powers, privileges

and immunities, whether actual,
contingent or prospective;

Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

Part 3—Transfer of VCA Functions s. 24
"VCA instrument" means an instrument

subsisting immediately before the
relevant date—

(a) to which VCA was a party; or

(b)

that was given in favour of VCA; or
(c) that refers to VCA; or
(d) under which—
(i)  money is or may become payable to or by VCA; or
(ii)  other property is to be or may become liable to be transferred to or by VCA.
Division 2—Allocation of property etc.
166.  Treasurer may direct transfer of property etc.
(1) The Treasurer, after consultation with the
Minister, may give a direction in writing to VCA directing it to transfer, in accordance with the direction, property, rights and
liabilities of a specified kind to the new
corporation.

(2) Within 21 days after receiving a direction
Treasurer a statement approved by the

under sub-section (1), VCA must give to the liabilities of VCA to which the direction relates, as at a date specified by the Treasurer, for the purposes of this section.

Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

s. 24

Part 3—Transfer of VCA Functions

(3) A statement under this section—

(a)
liabilities of VCA shown in the
must allocate the property, rights and directions of the Treasurer; and

(b) must be signed by the chief executive officer of VCA.
(4) If a statement under this section is approved by the Treasurer and the Minister—

(a) the Treasurer and the Minister must sign the statement; and
(b) the statement is an allocation statement for the purposes of this Part.
167. Property transferred to the new corporation On the appointed day—

(a) all property and rights of VCA that are allocated to the new corporation under the allocation statement, vest in the new
corporation; and

(b)
to the new corporation under the
all liabilities of VCA that are allocated of the new corporation.

168. Allocation of property etc. subject to encumbrances

Unless an allocation statement under this Part property and rights vest in the new corporation or liabilities become liabilities of the new corporation—

(a)

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

Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

Part 3—Transfer of VCA Functions s. 24

(b) the rights to which VCA was entitled in respect of those liabilities immediately before they ceased to be liabilities of
VCA, vest in the new corporation.

169.
Substitution of party to agreement and liabilities of VCA under an agreement are allocated to the new corporation—

(a) the new corporation becomes, on the appointed day, a party to the agreement in place of VCA; and
(b) on and after the relevant date, the agreement has effect as if the new corporation had always been a party to
the agreement.

170.
VCA instruments VCA property continues to have effect according to its tenor on and after the relevant date as if a reference in the instrument to VCA were a reference to the new corporation.

171.
Taxes Act in respect of anything done under this Division or in respect of any act or transaction connected with or necessary to be done by reason of this Division, including a transaction entered into or an instrument made, executed, lodged or given, for the purpose of, or connected with the transfer of property, rights or liabilities of VCA.

Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

s. 24

Part 3—Transfer of VCA Functions

172. Validity of things done under this Part
(1) Nothing effected by this Division or done or

suffered by VCA, a Minister or the new
corporation under this Division—

(a)

is to be regarded as placing VCA, a Minister or the new corporation in breach of contract or confidence or as otherwise making any of them guilty of a civil wrong; or

(b)

is to be regarded as placing any of them in breach of or as constituting a default under any Act or other law or any
provision in any agreement,
arrangement or understanding
including, without limiting the
generality of the foregoing, any
provision prohibiting, restricting or
regulating the assignment or transfer of
any property or the disclosure of any
information; or

(c)

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

(d)

releases any surety or other obligor wholly or in part from any obligation.
(2) The validity of any act or transaction of
VCA or the new corporation must not be called in question in any proceedings on the ground that any provision of this Division had not been complied with.

Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

Part 3—Transfer of VCA Functions s. 24
173. Payments in respect of financial obligations of VCA

In the case of any obligations or rights of
VCA under section 36D or 36E of the
Treasury Corporation of Victoria Act
1992, that have been allocated under an
allocation statement under this Division—

(a)
Treasury Corporation of Victoria such
amounts, and at such times, as VCA
would have been liable to pay in
the new corporation must pay to the the Order under section 36D or 36E (as the case requires) had not been made, except so far as the Treasury Corporation of Victoria and the new corporation otherwise agree; and

(b)

the Treasury Corporation of Victoria must pay to the new corporation those amounts, and at those times, as VCA would have been entitled to receive in respect of those financial obligations if the Order under section 36D or 36E (as the case requires) had not been made, except in so far as the Treasury Corporation of Victoria and the new corporation otherwise agree.
Division 3—Staff and other matters
174. List of staff to be transferred from VCA to the new corporation
The chief executive officer of VCA must list, in writing, the employees of VCA, employed by VCA immediately before the appointed

day, who are to be employed by the new
corporation.

Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

s. 24

Part 3—Transfer of VCA Functions

175. Terms of employment of staff transferred from VCA to the new corporation
(1) A transferred employee is to be regarded
as—

(a) being employed in his or her new position with effect on and from the appointed day; and
(b) having the same terms and conditions as those that applied to the person in relation to his or her employment with the VCA immediately before the appointed day; and
(c)
benefits in connection with the
having accrued an entitlement to that is equivalent to the entitlement that the person had accrued, as an employee of VCA, immediately before the appointed day.

(2) The service of a transferred employee with the new corporation is to be regarded for all purposes as having been continuous with the service of the transferred employee,
immediately before the appointed day, as an
employee of VCA.
(3) A transferred employee is not entitled to receive any payment or other benefit by reason only of having ceased to be an
employee of VCA because of the operation
of this Division.
(4) A certificate purporting to be signed by the
Chief Executive Officer of the new corporation certifying that the person named in the certificate was, with effect from the appointed day, employed, by virtue of this section, with the new corporation, is

Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

Part 3—Transfer of VCA Functions s. 24
admissible in evidence in any proceedings
and is conclusive proof of the matters stated
in it.
(5) The superannuation entitlements of any
person who is a transferred employee are deemed not to be affected by that person becoming a transferred employee.
(6) If a transferred employee was, immediately before the appointed day an officer within the meaning of the State Superannuation Act 1988, he or she continues to be such an
officer.
(7) Nothing in this section prevents—

(a)

any of the terms and conditions of employment of a transferred employee from being altered by or under any law, award or agreement with effect from any time after the appointed day; or

(b)

a transferred employee from resigning or being dismissed at any time after the appointed day in accordance with the existing terms and conditions of his or her employment with the new corporation.
(8) In this section, "transferred employee"
means a person listed under section 174.
176. Price determination

(1) On and from the appointed day—

(a)

a reference in the price determination to VCA, to the extent that that reference applies to the exercise by that body of functions or powers within the port of Melbourne, is deemed to be a reference to the Port of Melbourne Corporation; and

Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

s. 24

Part 3—Transfer of VCA Functions

(b) any powers, functions, rights and liabilities of VCA under the price determination, to the extent that they
relate to the port of Melbourne, become powers, functions, rights and liabilities of the Port of Melbourne Corporation.

(2) In this section "price determination" means the Price Determination for the Channels of the Ports of Melbourne and
Geelong, as in force immediately before the appointed day, being the price determination—

(a)
General under section 54 (as in force
before the commencement of the
that was made by the Regulator- 2001); and

(b)

notice of the making of which was given in Special Government Gazette Number S99; and

(c)

that came into operation on 3 July 2000; and

(d)

that was continued in force under Part 8 of the Essential Services Commission Act 2001.'.
__________________

Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

Part 4—Amendments to Other Acts s. 25

PART 4—AMENDMENTS TO OTHER ACTS

See:

25. Amendment of references in the Borrowing and Act No.

Investment Powers Act 1987 13/1987.
Reprint No. 6

In Column 1 of item 7A of Schedule 1 of the as at
1 July 2001
Borrowing and Investment Powers Act 1987, and
for "Melbourne Port Corporation" substitute amending
Act Nos
"Port of Melbourne Corporation". 66/2000,
81/2000 and
87/2001.
LawToday:

dpc.vic.
gov.au
See:

26. Amendment of references in the Docklands Authority Act No.

Act 1991 22/1991.
Reprint No. 2

(1) In section 28(2) of the Docklands Authority Act 1991, for "Melbourne Port Corporation"

as at
1 July 1999
and

substitute "Port of Melbourne Corporation". amending
Act Nos

(2) In section 32(1)(a) of the Docklands Authority

45/1999, 30/2000,

Act 1991, for "Melbourne Port Corporation" 74/2000,
substitute "Port of Melbourne Corporation". 11/2001 and
44/2001.
LawToday:

dpc.vic.
gov.au
See:

27. Amendment of references in the Land Act 1958 Act No.
6284.

In section 385(2)(e) of the Land Act 1958, for Reprint No. 10
"Melbourne Port Corporation" substitute "Port of as at
20 September

Melbourne Corporation".

2001 and
amending
Act No.
11/2002.
LawToday:

dpc.vic.
gov.au

Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

s. 28

Part 4—Amendments to Other Acts

28. Amendment of references in the Metropolitan Fire

See:
Act No.

6315. Brigades Act 1958

Reprint No. 8	(1) In section 4(2) of the Metropolitan Fire
as at
25 March	Brigades Act 1958—
1999
and	(a) in paragraph (a), for "Melbourne port area"
amending
Act Nos	substitute "port of Melbourne";
50/1989,

(b) in paragraph (ab), for "Melbourne Port

86/1998,
48/2000,

9/2002 and	Corporation" substitute "Port of Melbourne
49/2002.	Corporation".
LawToday: dpc.vic.	(2) In section 32B(5) of the Metropolitan Fire
gov.au	Brigades Act 1958, for "Melbourne Port Corporation" established by Division 1 of Part 2 of the" substitute "Port of Melbourne Corporation established by the".
See:	29. Amendment of the Public Authorities (Dividends) Act
Act No.

10003. 1983

Reprint No. 2

as at

In the definition of "public authority" in section

8 August 1997

and

4(1) of the Public Authorities (Dividends) Act

amending

1983, paragraph (c) is repealed.

Act No.

91/1997.

LawToday:

align="center"> Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

Part 4—Amendments to Other Acts s. 30

30. Amendment of references in the Transport Act 1983 See:
Act No.

In clause 26 of Schedule 5 to the Transport Act 9921.
Reprint No. 8
1983, for "Port of Melbourne Authority" as at
(wherever occurring) substitute "Port of 13 June 2002
and
Melbourne Corporation". amending
Act Nos

81/2000, 54/2001,

94/2001, 32/2002,
35/2002,
37/2002 and
54/2002.
LawToday:

dpc.vic.
gov.au
See:

31. Amendment of references in the Treasury Act No.

Corporation of Victoria Act 1992 80/1992.
Reprint No. 2
(1) In the definition of "public authority" in as at
20 August

section 36A of the Treasury Corporation of 1998
Victoria Act 1992— and
amending

(a) omit "the Port of Melbourne Authority";

Act Nos 98/1998, 63/1999,

(b) for "Melbourne Port Corporation" substitute "Port of Melbourne Corporation".

69/2000,
74/2000,
29/2001 and

(2) In column 1 of Schedule 1 to the Treasury Corporation of Victoria Act 1992, for

32/2001.
LawToday:

"Melbourne Port Corporation" substitute "Port of dpc.vic.
Melbourne Corporation". gov.au

__________________
Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

Sch.

SCHEDULE

CONSEQUENTIAL AMENDMENTS TO THE PORT

SERVICES ACT 1995

1. Amendment of section 4
In section 4(2)(b), for "MPC" substitute "the Port of
Melbourne Corporation".

2. Amendment of section 7
In section 7, for "MPC" (wherever occurring) substitute
"the Port of Melbourne Corporation".

3. Amendment of section 78

(1) In section 78(1), for "MPC" (wherever occurring) substitute
"the Port of Melbourne Corporation".
(2) In section 78(2), for "MPC" substitute "the Port of
Melbourne Corporation".
(3) In section 78(3), for "MPC" substitute "the Port of
Melbourne Corporation".

4. Amendment of section 79
In section 79(1), for "MPC" substitute "the Port of
Melbourne Corporation".

5. Amendment of section 80

(1) In section 80(1), for "MPC" substitute "the Port of
Melbourne Corporation".
(2) In section 80(2), for "MPC" (wherever occurring) substitute
"the Port of Melbourne Corporation".
(3) In section 80(3), for "MPC" substitute "The Port of
Melbourne Corporation".
(4) In section 80(4), for "MPC" substitute "the Port of
Melbourne Corporation".
(5) In section 80(5), for "MPC" substitute "the Port of
Melbourne Corporation".

Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

Sch.

6. Amendment of section 82
In section 82, for "MPC" substitute "The Port of Melbourne
Corporation".

═══════════════
Port Services (Port of Melbourne Reform) Act 2003

Act No. 23/2003

Endnotes

ENDNOTES

†
Minister's second reading speech—
Legislative Assembly: 9 April 2003
Legislative Council: 6 May 2003
The long title for the Bill for this Act was "to amend the Port Services
Act 1995 to abolish the Melbourne Port Corporation and to establish the
Port of Melbourne Corporation, to make other amendments to that Act, to
amend the Public Authorities (Dividends) Act 1983, to make
consequential amendments to other Acts and for other purposes."

Actions

Download as PDF Download as Word Document

Citations

Port Services (Port of Melbourne Reform) Act 2003 (Vic)

Cases Citing This Decision

Cases Cited

Statutory Material Cited

3.	Definitions	3
4.	Orders in Council	4
5.	Substitution of Division 1 of Part 2	4
Division 1—Port of Melbourne Corporation	4

10.	Establishment	4
11.	Port of Melbourne Corporation not to represent the
Crown	5
12.	Objectives	5
13.	Functions	6
14.	Powers of the Port of Melbourne Corporation	7
15.	Acquisition or disposal of land by the Corporation to
be approved by Minister	8

6.	Directions by the Minister	8
7.	Non-commercial functions	9
8.	Amendment of heading to Part 4	9
9.	Insertion of new Division 1 of Part 4	9
Division 1—Reservation of land for the purposes of the port
of Melbourne	9

10.	Wharfage charge	11
11.	Substitution of heading to Part 8	11
12.	Insertion of definition of "port corporation" in section 99	12
13.	Substitution of heading to Part 9	12
14.	Insertion of definition of "port corporation" in section 117	12

15.	Insertion of new Part 12	13
PART 12—TRANSITIONAL PROVISIONS—
ESTABLISHMENT OF PORT OF MELBOURNE
CORPORATION	13

162.	Definitions	13
163.	Transfer of property etc. from MPC to the new
corporation	13
164.	Staff to be transferred from the old corporation to the
new corporation	14

16.	Provisions applying to the Boards of port corporations	16
17.	Consequential amendments	17

18.	Definitions	18
19.	Objectives of the Port of Melbourne Corporation	19
20.	Functions of the Port of Melbourne Corporation	19
21.	Insertion of new section to follow section 14	19

22.	Definition of port waters for VCA	20
18AA. Definition	20
23.	Amendment of definition of channel operator in Part 3	20
24.	Insertion of new Part 13	21
PART 13—TRANSITIONAL PROVISIONS—TRANSFER
OF CERTAIN VCA FUNCTIONS ETC.	21
Division 1—Definitions	21

166.	Treasurer may direct transfer of property etc.	22
167.	Property transferred to the new corporation	23
168.	Allocation of property etc. subject to encumbrances	23
169.	Substitution of party to agreement	24
170.	VCA instruments	24
171.	Taxes	24
172.	Validity of things done under this Part	25
173.	Payments in respect of financial obligations of VCA	26

(b)	make other amendments to the Port Services Act 1995; and
(c)	amend the Public Authorities (Dividends) Act 1983; and
(d)	make consequential amendments to other Acts.

(d)	may acquire, hold and dispose of real and personal property; and
(e)	may do and suffer all acts and things that a body corporate may, by law, do and suffer.

(b)	to ensure that essential port services of the port of Melbourne are available and cost effective;
(c)	to ensure, in co-operation with other relevant responsible bodies, that the port of Melbourne is effectively
integrated with other systems of infrastructure in the State;
(d)	relevant responsible bodies, the

(a)	to plan for the development and operation of the port of Melbourne;
(b)	infrastructure necessary for the

(c)	to develop, or enable and control the development by others of, the whole or any part of the port of Melbourne;
(d)	to manage, or enable and control the management by others of, the whole or any part of the port of Melbourne;
(e)	to provide, or enable and control the provision by others of, services for the operation of the port of Melbourne;
(f)	to promote and market the port of Melbourne;

(a)	subject to section 15, may acquire or dispose of real or personal property;
(b)	may enter into contracts, agreements, leases or licences;

(b)	for "after consultation with the Minister" substitute "with the approval of the Treasurer";
(c)	in paragraph (a), for "Treasurer" substitute "Minister";
(d)	in paragraph (c), for "Treasurer" substitute "Minister".

(a)	has received a plan of the land signed by the Surveyor-General; and
(b)	is satisfied that the land, shown on the plan signed by the Surveyor-General, represents the land that is to be reserved
for the purposes of the port of Melbourne.

(b)	the land is deemed to be temporarily reserved under section 4(1) of the Crown Land (Reserves) Act 1978 for the purposes of the port of Melbourne, and the reservation may be amended, revoked and otherwise dealt with in accordance with that Act; and
(c)	the Port of Melbourne Corporation is deemed to be the committee of management of the land.".

(a)	the old corporation is abolished and the directors go out of office; and
(b)	immediately before the commencement

(d)	the new corporation is substituted as a party to any proceedings pending in any court or tribunal to which the old corporation was a party, immediately before the commencement day; and
(e)	the new corporation is substituted as a party to any contract or arrangement entered into by or on behalf of the old corporation and in force immediately before the commencement day; and
(f)	any reference to the old corporation in any Act or in any proclamation, Order in Council, rule, regulation, order,
agreement, instrument, deed or other document, so far as it relates to any period after the commencement day, and if not inconsistent with the context or subject matter, must be construed as a reference to the new corporation.

(a)	being employed in his or her new position with effect on and from the commencement day; and
(b)	having the same terms and conditions as those that applied to the person in relation to his or her employment with

(a)	any of the terms and conditions of employment of a transferred employee from being altered by or under any law, award or agreement with effect from any time after the commencement day; or
(b)	a transferred employee from resigning or being dismissed at any time after the commencement day in accordance with the existing terms and conditions of his or her employment with the new corporation.

(a)	in the case of port of Melbourne waters, the Port of Melbourne Corporation;
(b)	in the case of any other port waters, a person who manages channels in those waters under an agreement with VCA;';

(c)	in the definition of "port of Melbourne", after "port of Melbourne land" insert "and port of Melbourne waters";
(d)

(b)	may reduce or remove any banks or shoals within any such channel;
(c)	impediments, obstructions and

(a)	the Treasurer and the Minister must sign the statement; and
(b)	the statement is an allocation statement for the purposes of this Part.

Part 3—Transfer of VCA Functions	s. 24
(b)	the rights to which VCA was entitled in respect of those liabilities immediately before they ceased to be liabilities of

(a)	the new corporation becomes, on the appointed day, a party to the agreement in place of VCA; and
(b)	on and after the relevant date, the agreement has effect as if the new corporation had always been a party to

(a)	is to be regarded as placing VCA, a Minister or the new corporation in breach of contract or confidence or as otherwise making any of them guilty of a civil wrong; or
(b)	is to be regarded as placing any of them in breach of or as constituting a default under any Act or other law or any
provision in any agreement, arrangement or understanding including, without limiting the generality of the foregoing, any provision prohibiting, restricting or regulating the assignment or transfer of any property or the disclosure of any information; or
(c)	is to be regarded as fulfilling any condition which allows a person to exercise a right or remedy in respect of or to terminate any agreement or obligation; or
(d)	releases any surety or other obligor wholly or in part from any obligation.