Ports Management Regulations 2015 (NT)
NORTHERN TERRITORY OF AUSTRALIA
PORTS MANAGEMENT REGULATIONS 2015
As in force at 30 July 2020
NORTHERN TERRITORY OF AUSTRALIA
As in force at 30 July 2020
PORTS MANAGEMENT REGULATIONS 2015
Regulations under the Ports Management Act 2015
These Regulations may be cited as the
These Regulations commence on 1 July 2015.
In these Regulations:
(1) This regulation applies if:
(a) the master of a vessel approaching a compulsory pilotage area intends that the vessel will enter that area; or
(b) a vessel is at a boarding ground.
(2) The master of the vessel commits an offence if a licensed pilot is approaching the vessel and the master fails to ensure the vessel is made ready to take the licensed pilot on board by:
(a) creating a lee; and
(b) providing on the lee side, adequately lit at night, a pilot ladder, mechanical hoist or other safe means of access; and
(c) arranging for all scuppers, sanitary and other refuse outlets in the vicinity of the means of access to be closed.
Maximum penalty: 50 penalty units.
(3) An offence against subregulation (2) is an offence of strict liability.
(4) It is a defence to a prosecution for an offence against subregulation (2) if the defendant has a reasonable excuse.
For section 76(1) of the Act:
(a) the matters of which the port operator for a pilotage area within the Port of Darwin must be satisfied are:
(i) for an application for the issue or renewal of a pilotage licence – the matters relevant to those applications set out in the technical and safety standards made under section 67(1) of the Act for the pilotage area; and
(ii) for an application for the issue or renewal of a pilotage exemption certificate – the matters relevant to those applications set out in the standards mentioned in subparagraph (i); and
(b) the matters of which the port operator, for a pilotage area within any other designated port, or the pilotage authority for any other pilotage area, must be satisfied are:
(i) the physical and mental fitness of the applicant to carry out pilotage duties; and
(ii) the competence of the applicant to navigate a vessel, of the relevant size or kind, through the pilotage area.
6 Variation of conditions
(1) The holder of a pilotage licence or pilotage exemption certificate may apply in writing to the pilotage authority that issued the licence for the variation of a condition to which the licence or certificate is subject.
(2) The pilotage authority may, on an application under subregulation (1):
(a) approve the application by varying the condition; or
(b) refuse the application.
7 Fees (1) An application for the issue of a pilotage exemption certificate must be accompanied by a fee, payable to the Territory, of $1070.
(2) An application for the renewal of a pilotage exemption certificate must be accompanied by a fee, payable to the Territory, of $475.
(3) An application for the variation of a condition to which a pilotage exemption certificate is subject must be accompanied by a fee, payable to the Territory, of:
(a) if the condition relates to the vessel or vessels to which the certificate applies – $475; or
(b) if the condition relates to the part of the pilotage area to which the certificate applies – $545; or
(c) if the application relates to a condition of a kind mentioned in paragraphs (a) and (b) – $780.
Division 3 Licensed pilots
A pilotage authority may, at any time, require a licensed pilot to undergo a medical examination in order that the licensed pilot’s fitness to discharge the pilot’s duties may be determined.
A vessel employed in towing, or in any way moving or assisting, another vessel that is in pilotage charge of a licensed pilot is under the orders of the pilot in all matters connected with navigation.
The master of a vessel may make a complaint against a licensed pilot by giving written notice of the complaint to the pilotage authority that licensed the pilot.
(1) For section 3 of the Act, definition
prescribed services , paragraph (a), the following services provided by a private port operator are prescribed:(a) providing, or allowing for, access for vessels to the designated port;
(b) providing facilities for loading or unloading vessels at the designated port;
(c) providing berths for vessels at the designated port;
(d) providing, or facilitating the provision of, pilotage services in a pilotage area within the designated port;
(e) allowing entry of persons and vehicles to any land on which port facilities of the designated port are located.
(2) However, a service mentioned in subregulation (1) does not include any service provided under a lease granted by the private port operator.
(3) To avoid doubt, the following services provided by a private port operator are not prescribed services:
(a) a towage service for facilitating access to the designated port;
(b) a bunkering service at the designated port;
(c) a service for the provisioning of vessels (including the supply of electricity and water) at the designated port;
(d) a service for the removal of waste from vessels at the designated port.
13 Requirements in relation to access policies (1) For section 127(1)(b) of the Act, a private port operator must give its initial draft access policy to the Regulator no later than 4 months after the operator becomes a private port operator.
(2) For section 127(2)(a) of the Act, an access policy of a private port operator must:
(a) state the approach to be taken by the operator to providing, or allowing for, access for vessels to the designated port, including the factors that it takes into account in carrying out vessel scheduling; and
(ab) contain a commitment that the operator will, on request by a port user, give the user information about the following if it is reasonably required by the user to make an access request:
(i) the availability of a prescribed service;
(ii) the terms and conditions of access to a prescribed service; and
(ac) set out the process for making an access request including stating:
(i) whether or not an access request needs to be accompanied by a fee; and
(ii) if a fee is payable – that the amount of the fee will be a reasonable amount to meet the operator’s costs of assessing the request and will be disclosed to the port user before, or at the time, the access request is made; and
(ad) state the information that is required to be set out in an access request, which:
(i) may include the following:
(A) the approximate date on which access to the prescribed service is sought;
(B) the period for which access to the prescribed service is sought;
(C) the reason for which access to the prescribed service is sought; but
(ii) must not include information that is:
(A) not relevant to the provision of access to the prescribed service to the port user; or
(B) not within the reasonable capacity of the port user to provide; and
(ae) state the operator’s preferred form of access request but contain a commitment that the operator will accept an access request in an alternative written form if it contains the information required; and
(b) contain a commitment that the operator will respond to an access request within a specified period (which must be reasonable); and
(c) contain a commitment that the operator will provide access to a port user to any prescribed service on reasonable terms; and
(d) set out the basis on which the port operator will determine access to a prescribed service that is the subject of an access request if the demand for access from port users exceeds the capacity to provide access; and
(e) set out the terms on which access to a prescribed service will be provided; and
(ea) set out a process for negotiating access to a prescribed service that is the subject of an access request made by a port user that:
(i) requires the operator to undertake genuine negotiations with the port user with a view to agreeing on reasonable terms of access to the prescribed service; and
(ii) requires the operator and the port user to negotiate in good faith; and
(iii) requires the operator to accommodate, as far as practicable, the port user’s reasonable requirements and proposals, including a proposal that the operator alter or add to port facilities to enable the prescribed service to be provided to the port user; and
(iv) allows the operator to recover from the port user the reasonable costs associated with carrying out any alterations or additions to the port facilities proposed by the port user; and
(v) provides that if, after negotiating, the operator and port user cannot agree on terms of access to the prescribed service, then an access dispute arises and must be resolved in accordance with the relevant provisions in the access policy; and
(f) set out a process for the resolution of access disputes that are not frivolous or vexatious that:
(i) provides for a port user to give written notice of a dispute to the operator within a specified period; and
(ii) requires the operator to undertake genuine and good faith negotiations through discussion with the port user with a view to resolving the dispute as quickly as possible; and
(iii) if the dispute is not resolved through discussion – provides for the operator to arrangemediation or conciliation to resolve the dispute; and
(iv) if the dispute is not resolved through mediation or conciliation – provides for it to be referred to arbitration by an independent arbitrator appointed by the parties to the dispute; and
(v) specifies the method by which the independent arbitrator is to be appointed which may be, but is not required to be, requesting the Regulator to nominate a person for appointment as an independent arbitrator; and
(vi) requires that the arbitration be conducted in accordance with Part 5 of the
Commercial Arbitration (National Uniform Legislation) Act 2011 ; and(vii) sets out the powers and duties of the arbitrator in conducting the arbitration, including the following:
(A) a power for the arbitrator to order a party to the arbitration to produce information that is requested by the other party and reasonably necessary for the resolution of the dispute;
(B) a power for the arbitrator to make an order mentioned in subsubparagraph (A) subject to any conditions regarding the use and disclosure of the information that the arbitrator considers necessary to protect any confidential information that may be disclosed;
(C) for an arbitration of an access dispute that relates to the price of a prescribed service – a duty to make a decision that is consistent with any price determination made by the Regulator that is in force and applies to the operator; and
(viia) requires the arbitrator, in conducting the arbitration, to take into account the following:
(A) the object of Part 11 of the Act;
(B) the access and pricing principles set out in section 133 of the Act;
(C) the operator’s legitimate business interests and investment in the designated port and port facilities;
(D) the cost to the operator of providing access to the relevant prescribed service, including the cost of any required alterations or additions to port facilities, but not costs associated with losses arising from increased competition in upstream or downstream markets;
(E) firm and binding contractual obligations of the operator and of other persons already using any relevant port facility;
(F) the operational and technical requirements necessary for the safe and reliable provision of access to the relevant prescribed service;
(G) the economically efficient operation of any relevant port facility;
(H) the benefit to the public from having competitive markets; and
(viii) provides a mechanism for the apportionment of the costs of an arbitration; and
(ix) provides for the decision of the arbitrator to be treated as an award under the
Commercial Arbitration (National Uniform Legislation) Act 2011 ; and(ixa) requires the operator to give the Regulator a copy of the decision of the arbitrator, subject to any orders made by the arbitrator regarding the protection of confidential information contained in the decision; and
(x) requires the parties to an arbitration not to disclose its outcome to third parties, unless the disclosure is to the party’s insurers or legal or financial advisers or required by subparagraph (ixa) or any other law; and
(g) require the parties to an access dispute to keep confidential information provided during any access request negotiations or access dispute resolution process; and
(h) provide for the right of each party to an access dispute to request from the other party, within a specified period, information specified by the requesting party that, in the opinion of the requesting party, is reasonably necessary for the resolution of the dispute; and
(i) require a party to comply with a request of a kind mentioned in paragraph (h) within a specified period; and
(j) require the operator to give reasons for any decision made by the operator that affects a port user.
(3) A private port operator commits an offence if it does not publish a copy of its access policy on its website within 5 days after it is approved under section 127(4) of the Act.
Maximum penalty: 50 penalty units.
(4) An offence against subregulation (3) is an offence of strict liability.
(5) It is a defence to a prosecution for an offence against subregulation (3) if the defendant has a reasonable excuse.
For section 128(1) of the Act, the following are the matters about which guidelines must be issued in relation to annual reports under section 130(1) of the Act relating to access policies:
(a) the form of the report and how it must be made;
(b) what information must be included in the report about any material instance of non-compliance with an access policy including specified kinds of records, statistics, information and explanations.
(1) In making a price determination, without limiting section 21(2) of the
Utilities Commission Act 2000 , the Regulator must have regard to:(a) the cyclical nature of the economy of the Territory, including the volatility of demand for prescribed services and, where appropriate, the need to assess returns over a period longer than 1 year; and
(b) the desirability of price stability and the need to avoid price shocks.
(2) For section 132(2)(a) of the Act, a price determination:
(a) must use monitoring of the price levels of a prescribed service as the form of price regulation for the service; and
(b) must specify the basis on which, or the standard against which, the Regulator intends to monitor price levels; and
(c) must require each private port operator and private pilotage provider to whom the determination applies:
(i) to give the Regulator in the specified manner written notice, that complies with subregulation (3), of a proposed change in the operator’s or provider’s charges for the prescribed services at least 20 days before the change is proposed to be made; and
(ii) to publish in a prominent position on its website:
(A) the operator’s or provider’s standard charges for prescribed services; and
(C) notice of a proposed change in the operator’s or provider’s standard charges for prescribed services at least 10 days before the change is proposed to be made; and
(ca) must require each private port operator to whom the determination applies to publish in a prominent position on its website the standard rate of charges charged by the operator for, or in respect of, the use of port facilities of the designated port; and
(d) must not require a private port operator or private pilotage provider to whom the determination applies to publish on its website a negotiated charge for a prescribed service; and
(e) must require each private port operator and private pilotage provider to whom the determination applies to make an annual report to the Regulator containing the following information in respect of the year to which the report relates:
(i) a list of the types of charges for prescribed services charged by the operator or provider;
(ii) the amount of revenue received by the operator or provider from charges for prescribed services (showing the amount of revenue for each separate charge);
(iii) for a charge for a prescribed service payable on a unit basis (such as a unit of vessel cargo capacity or vessel gross tonnage) – the total number of units charged for, or in respect of, each separate charge;
(iv) if there was a change in the charge for a prescribed service – the amount of the change and the reason for it; and
(f) may require each private port operator and private pilotage provider to whom the determination applies to include in an annual report under paragraph (e) information on whether, during the year to which the report relates, the operator or provider entered into an agreement of a kind mentioned in section 110 of the Act or regulation 18 and, if so, the number of those agreements and their terms.
(3) A notice under subregulation (2)(c)(i) about a proposed change must:
(a) identify each separate charge to which the change relates; and
(b) provide the following information about each charge:
(i) the basis on which the amount of the charge is calculated including, for a charge payable on a unit basis (such as a unit of vessel cargo capacity or vessel gross tonnage), the unit on which the charge is imposed;
(ii) for a change in an existing charge or the removal of an existing charge, the reason for the change in the charge or removal;
(iii) if the charge is being fixed for the first time:
(A) the purpose and function of the charge; and
(B) the basis on which the amount of the charge is calculated; and
(C) the persons who will be required to pay the charge.
(4) A reference in subregulation (2) or (3) to a proposed change in a private port operator’s or private pilotage provider’s charges for prescribed services includes a change in an existing charge, the fixing for the first time of a charge and the removal of an existing charge.
(1) For section 132(2A) of the Act, at least 30 days before making a price determination, the Regulator must send a copy of a draft of the determination to, and invite a submission on it by a specified date from:
(a) the Minister; and
(b) each private port operator and private pilotage provider to which the determination would apply; and
(c) any other person the Regulator reasonably considers would likely be affected by the determination.
(2) The Regulator must consider each submission received by the specified date before making a price determination.
(3) The Regulator must make a price determination for a private port operator or private pilotage provider no later than 3 months after the operator or provider becomes a private port operator or private pilotage provider.
(4) As soon as practicable after making a price determination, the Regulator must:
(a) send a copy of the determination to any person to whom a draft was sent under subregulation (1); and
(b) publish the determination on the Regulator’s website.
18 Power to negotiate charges A private port operator or private pilotage provider may enter into an agreement with a person (including an agreement of a kind covered by section 110 of the Act) that fixes the charge payable by the person for a prescribed service to be provided to the person at an amount that is different to the standard charge for that service.
(1) An
infringement notice offence is an offence against a provision of the Act specified in the Schedule.(2) The
prescribed amount for an infringement notice offence is the amount equal to the monetary value of the number of penalty units specified for the offence in the Schedule.
If the regional harbourmaster or a port enforcement officer reasonably believes that a person has committed an infringement notice offence, the regional harbourmaster or port enforcement officer may give a notice (an
(1) The infringement notice must specify the following:
(a) the name and address of the person, if known;
(b) the date the infringement notice is given to the person;
(c) the date, time and place of the infringement notice offence;
(d) a description of the offence;
(e) the prescribed amount payable for the offence;
(f) the enforcement agency, as defined in the
Fines and Penalties (Recovery) Act 2001 , to whom the prescribed amount is payable.
(2) The infringement notice must include a statement to the effect of the following:
(a) the person may expiate the infringement notice offence and avoid any further action in relation to the offence by paying the prescribed amount to the specified enforcement agency within 28 days after the notice is given;
(b) the person may elect under section 21 of the
Fines and Penalties (Recovery) Act 2001 to have the matter dealt with by a court instead of under that Act by completing a statement of election and giving it to the specified enforcement agency;(c) if the person does nothing in response to the notice, enforcement action may be taken under the
Fines and Penalties (Recovery) Act 2001 , including (but not limited to) action for the following:(i) suspending the person’s licence to drive;
(ii) seizing personal property of the person;
(iii) deducting an amount from the person’s wages or salary;
(iv) registering a statutory charge on land owned by the person;
(v) making a community work order for the person and imprisonment of the person if the person breaches the order.
(3) Also, the infringement notice must include an appropriate form for making the statement of election mentioned in subregulation (2)(b).
If the person tenders a cheque in payment of the prescribed amount, the amount is not taken to have been paid unless the cheque is cleared on first presentation.
(1) The regional harbourmaster may withdraw an infringement notice given by the regional harbourmaster or a port enforcement officer to a person by written notice given to the person.
(2) The notice must be given:
(a) within 28 days after the infringement notice is given to the person; and
(b) before payment of the prescribed amount.
24 Application of this Part (1) This Part does not prejudice or affect the start or continuation of proceedings for an infringement notice offence for which an infringement notice has been given unless the offence is expiated.
(2) Also, this Part does not:
(a) require an infringement notice to be given; or
(b) affect the liability of a person to be prosecuted in a court for an offence for which an infringement notice has not been given; or
(c) prevent more than one infringement notice for the same offence being given to a person.
(3) If more than one infringement notice for the same offence has been given to a person, the person may expiate the offence by paying the prescribed amount in accordance with any of the notices.
(1) For the definition of
reportable incident in section 3 of the Act, subject to subregulation (2), events of the following kind are prescribed:(a) a collision of a vessel with another vessel;
(b) a collision by a vessel with an object;
(c) the grounding, sinking, flooding or capsizing of a vessel;
(d) a fire on board a vessel;
(e) a loss of stability of a vessel that affects the safety of the vessel;
(f) the structural failure of a vessel;
(g) a situation in which vessels pass each other, or a vessel passes another vessel, a person or an object, in such proximity that a reasonable person would conclude that in all the circumstances there was a risk of an imminent collision;
(h) an event that results in, or could have resulted in, a vessel becoming disabled and requiring assistance;
(i) the fouling or damaging by a vessel of:
(i) any pipeline or submarine cable; or
(ii) an aid;
(j) any other event that:
(i) is a reportable incident under section 50 of the
Marine Pollution Act 1999 ; or(ii) must be notified under section 14 of the
Waste Management and Pollution Control Act 1998 to the Northern Territory Environment Protection Authority.
(2) An event of a kind mentioned in subregulation (1) that only involves actual or potential loss of, or damage to, property is an event of a prescribed kind only if the value of the loss or damage is greater than $20 000.
(1) For sections 18(1) and (3) and 87(1) and (3) of the Act, the prescribed particulars of a reportable incident that are required to be kept or reported are details that are sufficient to describe the following:
(a) the nature of the incident and the circumstances surrounding it;
(b) the time and location of the incident;
(c) the persons involved in the incident;
(d) the vessels (if any) involved in the incident;
(e) the response of the port operator or pilotage services provider to the incident;
(f) for an event that involves actual or potential harm to the environment:
(i) how that harm occurred, is occurring or may occur; and
(ii) action taken to prevent, reduce, control or remove that harm.
(2) For sections 18(1) and 87(1) of the Act, records are kept in the prescribed manner if they are kept in writing.
(3) It is sufficient compliance with a reporting obligation under section 18(3) or 87(3) of the Act if the port operator or pilotage services provider (as the case requires) gives to the regional harbourmaster a copy of a report of a reportable incident made under another Act that contains the prescribed particulars mentioned in subregulation (1).
(4) For sections 18(3) and 87(3) of the Act, the prescribed period after the occurrence of a reportable incident is:
(a) 1 hour – if the reportable incident involves:
(i) the death of a person; or
(ii) an injury to a person that requires or results in immediate treatment for:
(A) the amputation of any part of the person’s body; or
(B) a serious head injury; or
(C) a serious eye injury; or
(D) a serious burn; or
(E) the separation of the person’s skin from an underlying tissue (such as degloving or scalping); or
(F) a spinal injury; or
(G) the loss of a bodily function; or
(H) serious lacerations; or
(iii) the loss of a vessel; or
(iv) the loss of a person from a vessel; or
(v) the loss of, or damage to, property to the value of $20 000 or more; or
(vi) actual or potential harm to the environment; or
(b) in any other case – 12 hours or, if the reportable incident is also required to be reported by the port operator or pilotage services provider under another Act within a shorter period, the shorter period.
27 Port management officers For section 22(7) of the Act:
(a) the prescribed circumstances are where the port operator of the designated port is a public sector entity; and
(b) the entity by which a person is employed or engaged is a public sector entity.
28 Pilotage services provider (1) For section 85(2)(b)(ii) of the Act:
(a) the prescribed circumstances are where the pilotage area is within a designated port of which the port operator is a public sector entity; and
(b) the entity by which a person is employed or engaged is a public sector entity.
(2) With reference to section 85(6)(d) of the Act, when considering an appointment under section 85(1), the Minister must take into account the potential effect of the appointment on each of the following:
(a) the safe and economically efficient operation of pilotage services within the pilotage area;
(b) the safe and economically efficient operation of vessels and port facilities in the vicinity of the pilotage area;
(c) competition in any relevant market given the ownership, operation or control of thepilotage services provider;
(d) the public interest in the ongoing long-term supply of pilotage services within thepilotage area
.
Schedule Infringement notice offences and prescribed amounts regulation 19(1) and (2)
sections 38(2), 40A(3), 40B(3), 41(6), 42(6), 43(6), 50(4), 51(5), 53(1), 79(1), 96(1), 97(3), 101(4) and 102(2) and (3) | 5 | |
sections 33(4), 50(3) and (8), 51(4) and (9), 100(1), 102(4) and 103(1) | 2 | |
1 KEY
Key to abbreviations
2 LIST OF LEGISLATION
Notified | 30 June 2015 |
Commenced | 1 July 2015 (r 2) |
Notified | 29 September 2015 |
Commenced | 29 September 2015 |
Notified | 16 March 2016 |
Commenced | 16 March 2016 |
Notified | 30 July 2020 |
Commenced | 30 July 2020 (r 2, s 2 |
3 GENERAL AMENDMENTS
General amendments of a formal nature (which are not referred to in the table of amendments to this reprint) are made by the
4 LIST OF AMENDMENTS
r 5 amd No. 6, 2016, r 3
r 10 rep No. 6, 2016, r 4
r 12 amd No. 23, 2020, r 4
r 13 amd No. 23, 2020, r 5
r 15 rep No. 23, 2020, r 6
r 16 amd No. 23, 2020, r 7
r 17 amd No. 23, 2020, r 8
r 18 amd No. 23, 2020, r 9
r 28 amd No. 22, 2015, r 3
sch amd No. 23, 2020, r 10
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