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1
Transport Infrastructure and Other Legislation
Amendment Bill 2005
Transport Infrastructure and Other
Legislation Amendment Bill 2005
Explanatory Notes
Short Title of the Bill
Transport Infrastructure and Other Legislation Amendment Bill 2005
Policy Objectives of the Legislation
To amend the Transport Infrastructure Act 1994 to provide for the
continuation of appropriate controls over port operations with the
impending expiry of the Transport Infrastructure (Ports) Regulation 1994
and the Transport Infrastructure (Airport Management) Regulation 1994.
To amend the Transport Operations (Marine Safety) Act 1994 (TOMSA) to
extend its heads of power to manage the operation and activities of ships
for other than safety reasons. For the purposes of TOMSA, a ship is any
kind of boat or other vessel which is used in navigation by water, regardless
of its size or how it is propelled or moved.
To amend the Maritime Safety Queensland Act 2002 to make it a function
of Maritime Safety Queensland (MSQ) to manage the operation and
activities of ships in Queensland waters for other than safety reasons.
Reason for the Bill
Transport Infrastructure Act 1994
Under the provisions of Section 54(1) of the Statutory Instruments Act
1992, all subordinate legislation expires on 1 September first occurring
after the 10th anniversary of the day of its making. Under this legislation,
the Transport Infrastructure (Ports) Regulation 1994 and the Transport
Infrastructure (Airport Management) Regulation 1994 are scheduled to
expire on 31 August 2005 following an extension under 56A (1) of the
Statutory Instruments Act 1992. The current regulations provide sufficient
authority for Queensland port authorities to effectively and efficiently
manage their ports on a day-to-day basis.
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Transport Infrastructure and Other Legislation
Amendment Bill 2005
A review of the 1994 regulations covering Queensland port and airport
operations has confirmed that the powers and controls over port and airport
operations are more appropriate for inclusion in the Transport
Infrastructure Act 1994, to ensure alignment with best legislative practice.
Transport Operations (Maritime Safety) Act 1994
MSQ currently manages the safe operation of ships on water under
TOMSA. The objectives of this Act are limited to protecting and preserving
marine safety and supporting the effectiveness and efficiency of the marine
industry.
In many cases, the predominant issue surrounding the operation of a type
of ship or activity is not that of safety but of amenity and nuisance caused
by the ship interacting with other waterways users and waterside residents.
For this reason, it is proposed to extend the objectives and regulation
making powers of TOMSA to enable effective regulation of the operation
and activities of ships on water for other than safety reasons.
As a consequence, it is also necessary to amend the functions of MSQ
described in the Maritime Safety Queensland Act 2002 to reflect that the
objectives and regulation making powers of TOMSA have been extended.
Achieving the Objectives
The provisions of the current Transport Infrastructure (Ports) Regulation
1994 and the Transport Infrastructure (Airport Management) Regulation
1994 are to be transferred into the Transport Infrastructure Act 1994 except
for the port limits and other minor matters which will be remade in a
regulation.
Provisions to be inserted into the Transport Infrastructure Act 1994 include
determining who is liable for port charges and expenses in relation to ships
utilising port facilities, aircraft at airports including goods being transferred
to and from ships and aircraft and passengers on the ships and aircraft.
Cairns International Airport and Mackay Airport are the only relevant
airports for this legislation.
The current regulations provide the detention and sale powers of ships,
aircraft and goods by port authorities to cover overdue charges without
having to gain prior approval of the Court. This was a breach of
fundamental legislative principles. These detention and sale powers have
not been included in these provisions. Instead, provisions allow a port
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Transport Infrastructure and Other Legislation
Amendment Bill 2005
authority the option to request a security deposit from persons liable for
port charges for the use of port facilities to cover existing or potential
liabilities.
Provisions to provide for port notices to control port and airport activities
on strategic port land, port facilities and other areas of the port are to be
included in the Transport Infrastructure Act 1994. Port notices may also
control the movement and mooring of ships, the parking of aircraft and
vehicles, the movement, handling and storage of goods at ports and airports
and the movement of persons and railway rolling stock at these facilities.
Furthermore, provisions allow the appointment of authorised officers for a
port authority to enforce provisions for the safe, secure and efficient
operation of the port and airport.
Under the existing Section 287 of the Act "strategic port land" is not
subject to a planning scheme under the Integrated Planning Act 1997. The
new provisions amend the requirements for port authorities to prepare land
use plans to reflect the procedural requirements specified in the Integrated
Planning Act 1997.
Administrative Costs
It is not anticipated that the proposed amendments will incur any additional
administrative costs.
Fundamental Legislative Principles
The principles relating to legislation that underlie a parliamentary
democracy based on the rule of law are the fundamental legislative
principles. Examples of those principles are set out in the Legislative
Standards Act 1992, sections 4(3) to (5).
Some aspects of the Bill may impact on the fundamental legislative
principles.
New sections 283A and 283B provide powers to authorised officers
without a warrant to inspect documents and goods including entering ships,
aircraft, vehicles and railway rolling stock in a port area, to determine
charges. The power to inspect these facilities is restricted to determining
whether port charges are payable or the amount of the charges. The entry
power is limited to entering these conveyances within a port area. This
power is considered essential to determine that correct charges are being
paid by port and airport users and continues the essential components of the
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Transport Infrastructure and Other Legislation
Amendment Bill 2005
current provisions outlined in the Transport Infrastructure (Ports)
Regulation 1994.
New sections 280 to 281B, 281D and 281E determine who is liable for port
authority charges and damage to port facilities. This includes making
another person responsible for the actions of another. Ships are often
owned by complicated company structures with companies resident in
different foreign countries. A ship may be registered under "a flag of
convenience". Likewise, aircraft are often leased or chartered and the
owner has little or no control where the aircraft is operating. Ships and
aircraft can quickly exit Australian territorial waters and airspace. This
requirement to impose liability on other persons for outstanding charges for
the use of port and airport facilities is an accepted practice. It is part of
commercial reality when these persons enter into these arrangements.
New section 285 sets out the purposes for which strategic port land, is used
or may be used (land in current approved land use plan is strategic port
land). Subparagraph (1) (b) (vii) allows for other purposes of a port
authority, prescribed under a regulation, to be added. Currently, section
275(1) (g) provides for additional functions, conferred under Transport
Infrastructure Act 1994 or another Act or prescribed by a regulation, to be
added to the functions of a port authority. Subparagraph 285(1) (b) (vii) is
required so there is flexibility for a port authority's land use plan to reflect,
if needed, a purpose that corresponds to an additional function conferred or
prescribed under paragraph 275(1)(g).
The other provisions of the Transport Infrastructure and Other Legislation
Amendment Bill 2005 are consistent with the fundamental legislative
principles provided for under the Legislative Standards Act 1992.
Consultation
The proposed amendments to port and airport provisions have been
supported by key stakeholders. A Discussion Paper was released in August
2004 to all Queensland port authorities, shipping interests and key State
government agencies. A key outcome from submissions to the Discussion
Paper was that continuing a strong legislative platform to control port and
airport operations in Queensland was essential to ensure safe, efficient and
effective port operations at Queensland ports and Cairns International
Airport and Mackay Airport.
The proposal to amend the TOMSA to extend its heads of power to enable
the effective regulation of ships for other than safety reasons was canvassed
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Transport Infrastructure and Other Legislation
Amendment Bill 2005
in the government's Jet Ski Management Plan, released for public comment
on 6 December 2004.
Extensive consultation has been undertaken with the Local Government
Association of Queensland, individual local councils, boating industry
groups and the general public, with the majority of stakeholders supporting
the proposed legislative amendments.
The single biggest issue arising from consultation on both the initial
Discussion Paper and the Jet Ski Management Plan was the issue of zones.
Jet ski operators and their representative organisations expressed strong
concerns about any proposal to blanket ban the use of jet skis from entire
areas, similar to action taken in Sydney Harbour by the NSW Maritime
Authority.
To a lesser but still considerable extent, respondents expressed concerns
about the creation of exclusion zones at all for jet skis. In particular,
respondents were concerned that local and state authorities would be
arbitrary in their decision making regarding where such exclusion zones
would be created. Other issues raised included the inequity of excluding
one class of boat from an area but not others.
Conversely, local councils, community groups and individual waterside
residents, are strongly in favour of the creation of legislation that would
enable government to restrict or limit the use of jet skis or other nuisance
craft in a particular area.
To ensure a high degree of consistency and transparency in decision
making on these matters, MSQ is working with the Local Government
Association of Queensland and local councils to establish a set of
assessment criteria to be applied in cases where a local council wishes to
propose the establishment of a zone. One of the key criteria will be that the
council undertakes full public consultation before a zone is approved and
regulated.
In discussions with councils to date, a range of assessment criteria have
been considered. These include considerations of safety, environmental
protection, accessibility and suitability (for example, the availability of
boat ramps and facilities in other, non-restricted areas), amenity, noise,
enforceability and equity issues. Further work will be done with councils
over the assessment criteria and any other outstanding issues in May 2005.
Broadly, it is envisaged that the role of councils will encompass
consultation with their communities over proposed zones to limit or restrict
jet ski activities (in accordance with the agreed assessment criteria),
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Transport Infrastructure and Other Legislation
Amendment Bill 2005
education and awareness raising about local jet ski provisions, and land-
based enforcement through council officers who will be authorised under
legislation administered by MSQ.
Recommendations for zones to limit or restrict activity will be made to the
Minister for Transport and Main Roads. If approved, these areas will
subsequently be created by Gazette Notice.
Consultation on the draft Bill has also been undertaken with government
agencies.
Notes on Provisions
Part 1- Preliminary
Short Title
Clause 1 states the short title of the Act is to be the Transport Infrastructure
and Other Legislation Amendment Act 2005.
Commencement
Clause 2 states that Part 3 of the Bill commences on proclamation. The
remainder of the Bill commences on assent.
Part 2 - Amendment of the Maritime
Safety Queensland Act 2002
Clause 3 states that this part amends the Maritime Safety Queensland Act
2002.
Clause 4 amends section 8 (Functions and powers of MSQ) to make it clear
that it is a function of MSQ to manage the operation and activities of ships
in Queensland waters for reasons other than safety.
Queensland waters are defined as all waters within the limits of the State
and coastal waters of the State.
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Transport Infrastructure and Other Legislation
Amendment Bill 2005
Part 3- Amendment of the Transport
Infrastructure Act 1994
Clause 5 states that this part amends the Transport Infrastructure Act 1994.
Clause 6 omits the definition of "train controller" from section 188. Clause
17 inserts the definition in Schedule 6 (Dictionary).
Clause 7 amends the heading of Chapter 8 to "Port Infrastructure and other
matters".
Clause 8 adds definitions in Chapter 8 (Port Infrastructure and other
matters) for "airport", "port area" and "requirement".
Clause 9 inserts new section 267A which defines port facilities as facilities
that are port authority owned or controlled and land that is used in the
operation or strategic management of the port. By definition, Cairns
International Airport and Mackay Airport are ports of the Cairns Port
Authority and Mackay Port Authority respectively.
Clause 10 inserts subsection 275(3) that reflects old section 281 with
reference to old section 279 omitted. It requires a port authority whose
functions have been extended by a regulation under section 275(1) (g), to
have a copy of a document, detailing the function, to be available for
inspection and purchase during business hours at the port authority's
nearest office to which the function applies.
Clause 11 omits existing provisions of sections 279 to 283 and inserts new
provisions.
Omitted sections 279, 282 and 283 provided power to make regulations on
certain specified matters. This Bill includes provisions on these specified
matters.
New part heading "Part 3A Liability for, and recovery of, charges and
expenses" is inserted.
New section 279 reflects old section 280 and allows a port authority to
impose a charge for the use of its port area.
New section 280 details who is jointly and severally liable where a charge
is payable for a ship.
New section 281 specifies who is jointly and severally liable where a
charge is payable for an aircraft.
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Transport Infrastructure and Other Legislation
Amendment Bill 2005
New section 281A determines who is jointly and severally liable where a
charge is payable for goods.
New section 281B details who is jointly and severally liable where a charge
is payable for passengers.
New section 281C reflects old section 293 and allows a port authority to
determine the time when a charge has to be paid by. If the charge remains
unpaid by this date, the port authority may charge interest on the unpaid
amount at a rate determined by the port authority.
A regulation may exempt the payment of a charge. Furthermore, a port
authority may exempt or partly exempt a person from payment of a charge
by the port authority.
New section 281D provides that where an authorised officer has had a ship,
aircraft, a vehicle, goods or rolling stock moved and a reasonable expense
has been incurred by the port authority, the expense is a debt owing to the
port authority. The person who would be liable for a charge payable for the
ship, aircraft or goods is as applicable under sections 280, 281 and 281A.
Where a vehicle or rolling stock is moved, the owner or driver of the
vehicle or rolling stock is liable for the charge.
New section 281E details who is jointly and severally liable for damage to
a port authority's work or infrastructure where damage is caused by a ship,
an aircraft or floating or submerged material.
New section 281F allows a port authority, if it desires to request a security
deposit as security for payment of a charge that has been or may be
incurred by the person under sections 280 to 281D. The security deposit
may also be security to cover damage or potential damage to port facilities
by a ship or aircraft under section 281E.
The port authority determines the form of the security deposit and the
amount of the security that has to be reasonable for the circumstances. The
form of the security deposit can be cash, a guarantee from a financial
institution or another form decided by the port authority.
If the depositor of the security deposit does not meet its liability for the
charge or damage by the due date, the port authority may appropriate the
security deposit to meet this liability.
The port authority may require the person to lodge a further security
deposit if the security deposit has been appropriated or partly appropriated.
Likewise, the port authority may require the person to lodge a security
deposit in a greater amount, or in a different form, or both, if the port
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Transport Infrastructure and Other Legislation
Amendment Bill 2005
authority believes that the depositor's potential liability under this part
should be more adequate guaranteed.
New part heading "Part 3B Control of activities at ports" and division
heading "Division 1 Port Notices" are inserted.
New section 282 provides for where activities may affect port operations or
cause damage to strategic port land or the environment, for port notices to
be displayed or published by a port authority to control activities or
conduct, on its port area which includes Cairns International Airport and
Mackay Airport.
New section 282A allows a port authority to issue or erect a port notice to
control the movement or mooring of a ship at its port facilities or its port
area including activities on ships if the activities may affect the port's
operation.
New section 282B authorises the Cairns Port Authority or Mackay Port
Authority to issue a port notice to control parking of aircraft at its airport.
Commonwealth legislation applies to most movements of aircraft within
the airports.
New section 282C provides power for a port authority to issue or erect a
port notice to control the movement, handling or storage of goods at or on
its port facilities including Cairns Port Authority and Mackay Port
Authority at their airports.
New section 282D authorises a port authority to issue or erect a port notice
to control the movement of persons on or using port facilities including at
Cairns International Airport and Mackay Airport.
New section 282E allows a port authority to issue or erect a port notice to
control the stopping and parking of vehicles on or at port facilities or
strategic port land including at Cairns International Airport and Mackay
Airport. However, the port authority's control is subject to the chief
executive under Transport Operations (Road Use Management) Act 1995
installing an official traffic sign.
New section 282F provides power for a port authority to issue or erect a
port notice to control the movement, stopping or parking of railway rolling
stock on or at port facilities.
New section 282G states that for a port notice to be effective it must be
displayed on or near the item to which the notice relates. Alternatively
there is provision for a port notice to be displayed on the port authority's
web site. However, before displaying the port notice on the web site, the
port authority must publish the details of the port notice twice in a
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Transport Infrastructure and Other Legislation
Amendment Bill 2005
newspaper distributed in the port's locality. A copy of a port notice has to
be available for inspection or purchase at the port authority's nearest office
during normal business hours.
New section 282H allows a port notice to refer to a document held by a port
authority. The document may be a standard issued by Standards Australia,
Civil Aviation Safety Authority or by a listed international organisation.
Alternatively if the document is not a standard, the document has to be
available free of charge at the nearest office of the port authority during
normal business hours.
New section 282I requires a port notice to indicate the area to which the
notice applies and if non compliance with the notice is an offence, indicate
the maximum penalty for the offence.
New section 282J makes non compliance with a port notice an offence
unless the person has a reasonable excuse for not complying with the port
notice. The maximum penalties for non compliance are based upon the
maximum penalties for non compliance in the existing regulations.
New division heading "Division 2 Authorised officers" is inserted.
New section 282K provides for the port authority to appoint a person as an
authorised officer for the port authority. However, before appointing a
person, the port authority must be satisfied the person has the necessary
expertise or experience.
New section 282L specifies the different ways that conditions can apply to
the appointment of an authorised officer and how the authorised officer's
powers may be limited.
New section 282M requires the port authority to issue an identity card to
each authorised officer and details what information the identity card is to
contain.
New section 282N details the circumstances when an authorised officer
must show the identity card to ensure that persons with whom the officer
deals knows he or she is an authorised officer.
New section 282O identifies ways in which an authorised officer ceases to
hold office.
New section 282P requires a person to return the identity card if they cease
to be an authorised officer. Unless there is a reasonable excuse, it is an
offence if the card is not returned within 21 days of ceasing office.
New division heading "Division 3 Directions" is inserted.
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Amendment Bill 2005
New section 282Q allows an authorised officer to verbally direct a person
on the port authority's port area if the person's activities may affect the
port's operation or the safety or security of the port, or the port users or the
port authority's employees may be affected.
The provision allows an authorised officer to direct a person to leave port
facilities if the authorised officer finds a person committing an offence
against section 283G, or suspects on reasonable grounds that the person has
just committed an offence against section 283G.
A person may also be directed to leave if the authorised officer reasonably
believes the person's presence may pose a threat to the safety or security of
the port facilities or to the port users or the port authority's employees. The
direction may include a direction not to re-enter the port facility or part of
the port facilities for 24 hours.
New section 282R applies if the person does not comply with the verbal
direction, given under section 282Q. The authorised officer may give the
person a written direction. If it is not possible or practicable to give the
written direction to the person at that time, a further verbal direction may
be given with the written direction to be given as soon as it is possible or
practicable to do so.
When the authorised officer gives the written direction (or further verbal
direction), the authorised officer must warn the person that the person may
commit an offence if the person does not comply with the direction within
the stated time in the direction.
New section 282S makes non compliance with a direction within the time
stated in a written direction under section 282R (1) or with further verbal
direction under section 282R(2) by an authorised person, an offence unless
the person has a reasonable excuse for not complying with the direction.
The maximum penalties for non compliance generally reflect the
maximum penalties for non compliance in the existing regulations.
However, an additional offence with a maximum penalty of 200 penalty
units has been added where not complying with a direction results in a
significant delay to port operation.
New division heading "Division 4 Moving contravening property" is
inserted.
New section 282T defines "contravening property" as a ship, an aircraft, a
vehicle, goods or railway rolling stock that is moored, parked or left in a
port including Cairns International Airport or Mackay Airport or at a port
facility breaching the requirements of a port notice or a direction of an
authorised officer.
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Transport Infrastructure and Other Legislation
Amendment Bill 2005
The provision allows an authorised officer, who reasonably believes that a
ship, an aircraft, a vehicle, goods or railway rolling stock in a port or at a
port facility is contravening property, to take steps that are necessary and
reasonable to have the contravening property moved. However, before
taking action, the authorised officer must believe the contravening property
may affect efficient operation of the port or that the safety or security of the
port, or the port users or the port authority's employees may be affected.
Furthermore, before the authorised officer can move the rolling stock, the
authorised officer must check with the train controller employed by the
railway manager for the railway that it is safe to move the rolling stock.
New division heading "Division 5 Other powers and offences" is inserted.
New section 283 provides for an authorised officer in certain circumstances
to ask a person in a port area to state their name and address and if the
authorised officer suspects that a false name or address has been given, ask
for proof.
New section 283A provides power for an authorised officer to require a
person who is or may be liable to pay a charge to the port authority, to
produce documents under the person's control that would be relevant in
determining if the person is liable to pay the charge or determining the
amount of the charge.
The person must comply with the requirement unless the person has a
reasonable excuse.
New section 283B applies only to the extent necessary for an authorised
officer to determine if a charge is payable for a ship, an aircraft or goods or
determine the amount of the charge.
A person in charge of a ship, aircraft, vehicle or rolling stock in a port area
must allow an authorised officer to inspect the conveyance, or enter and
inspect goods on or in the conveyance.
New section 283C makes it an offence to obstruct an authorised officer in
exercising their powers in a port authority's port area.
New section 283D makes it an offence to give a false or misleading
statement to an authorised officer.
New section 283E makes it an offence to give a false or misleading
document to an authorised officer, unless the person tells the authorised
officer where the document is false or misleading to the best of the person's
knowledge and, if known, gives the correct information.
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New section 283F makes it an offence to pretend to be an authorised
officer.
New section 283G makes disorderly behaviour or creating a disturbance at
port facilities, an offence.
New section 283H makes it an offence to remove or damage or interfere
with a port notice displayed in a port authority's port area.
Clause 12 omits existing sections 284 and 285 and inserts new sections 284
to 285D.
Under existing section 287, "strategic port land" is not subject to a planning
scheme under the Integrated Planning Act 1997. These amendments add
Integrated Planning Act 1997 type procedural requirements to the existing
requirements to determine or amend the land use plans which detail the
port authority's "strategic port land".
New section 284 inserts definitions for Division 1.
New section 285 states that this section applies to land that a port authority
owns or holds directly from the State and is used or may be used for the
listed uses. Other than for an airport, the strategic port land has to be on or
close to the interface of the land and the waters within the port limits of the
port and used for port-related purposes.
The section requires a land use plan for this land to be prepared by the port
authority at least every 8 years. In addition, the Minister may direct that the
port authority prepare a new or amend an existing land use plan for
approval by the Minister (or the Governor in Council in certain
circumstances) under section 286.
The section also specifies the details the land use plan must contain.
New section 285A requires a port authority to prepare a statement of
proposal when preparing a new or amending an existing land use plan. The
section specifies the information to be included in each statement. The
statement has to be supplied to each local government whose area the port
authority's port area is in or adjoins.
However, a statement of proposal is not required where the amendment of a
land use plan is to remove land from that land use plan or for land that is
already strategic port land if the land use is not to change.
Land removed from the land use plan falls under the local authority's
planning control. An example of where the land use plan is amended but
its use does not change is when a lot of strategic port land is reconfigured
and the use of a lot does not change.
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New section 285B requires a port authority, after consulting on a statement
of proposals under sections 285A and 285C, to take appropriate account of
the issues raised by the public consultation and prepare a draft land use
plan or a draft amendment of the existing land use plan. This draft land use
plan or draft amendment must be supplied to the local governments whose
area the port authority's port area is in or adjoins.
New section 285C sets out the procedures for public consultation to be
carried out, after a statement of proposal has been prepared under section
285A or a draft land use plan or draft amendment has been produced under
section 285B.
New section 285D allows the Minister to return a draft land use plan for
amendment as directed by the Minister for Transport. This direction must
be gazetted within 21 days.
Clause 13 amends subsection 286(1) to add an additional provision, that
State interests will not be adversely affected by the draft land use plan or
amendment. Existing provisions that the Minister has to be satisfied that
the port authority has taken appropriate account of issues raised in the
public consultation process and that no local government has a substantial
objection to the proposed plan or amendment have been retained.
Subsection (2) applies where the Minister believes that requirements (a),
(b) and (d) in subsection 1 have been met but a local government has a
substantial objection to the draft land use plan and allows Governor in
Council to approve the plan.
In addition, new subsection (6) requires a port authority's current approved
land use plan to be published on the port authority's web site.
Clause 14 inserts into Chapter 8 new parts "Part 4A Port approvals" and
"Part 4B Disposal of abandoned property".
New part heading "Part 4A Port approvals" is inserted.
New section 289A states that Part 4A only applies if a port authority
decides to regulate a controlled activity and has issued a port notice to that
effect under section 282. A controlled activity is defined in new section
289B and means operating a tug service, a refuelling facility in a port or in
relation to a ship, the activities of burning, welding, riveting, refuelling,
spray painting or sand blasting.
New section 289B inserts definitions in the part for "approval" and
"controlled activity".
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New section 289C allows a person to apply to a port authority for an
approval to carry out a controlled activity. The section specifies the details
to be included in the application.
New section 289D allows the port authority to approve the application with
or without conditions or to refuse the application.
An approval may or may not give an exclusive right to the holder to operate
a tug service in the port area.
New section 289E gives a port authority the power to revoke, suspend or
impose or change a condition on, an approval having regard to the efficient
operation of the port or the safety or security of the port, port user and port
authority's employees.
New section 289F requires where the port authority decides to refuse,
suspend or revoke an approval, or imposes or changes a condition on an
approval, for the port authority to advise the applicant or approval holder in
writing, the decision, the reason for the decision, that the person can
request that decision be reviewed and a reviewed decision be appealed
under section 289G, and the person may apply for the decision or reviewed
decision to be stayed.
New section 289G provides for a person, whose interests are affected by a
decision, to which section 289F applies, to request the port authority to
review the decision.
If a port authority confirms or amends the original decision or substitutes
another decision and the person is still not satisfied, the person may appeal
to a Magistrates Court against the confirmed, amended or substituted
decision.
The procedures for the review and appeal are as per Transport Planning
and Coordination Act 1994, Part 5, Divisions 2 and 3 respectively with
references to the chief executive to be read as references to the chief
executive of the port authority.
New part heading "Part 4B Disposal of abandoned property" is inserted.
New section 289H defines "abandoned property" and "insufficient value
property" for the part.
New section 289I requires the port authority if it finds abandoned property
at its port facilities to take reasonable steps to locate the owner and have the
property moved to an appropriate place. However, these requirements do
not apply to abandoned property of nil or insufficient value to justify its
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Transport Infrastructure and Other Legislation
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sale or property that is perishable and it is impracticable for the authority to
keep the perishable property having regard to its nature and condition.
If the owner is located, within 28 days of finding the property, the port
authority by written notice to the owner, must describe the property, state it
has been found, how it may be recovered and advise that it may be sold or
disposed of if it is not recovered.
If the owner is not located within 28 days of finding the property, the port
authority must publish the notice in a newspaper circulating generally in
the State.
New section 289J requires the port authority to return the abandoned
property to a person if the person claims the property within 28 days of the
notice under section 289I is given or published. However, before returning
the property, the person is to pay the expenses reasonably incurred by the
port authority in dealing with the property under this part and the port
authority must be satisfied that the person is the owner of the property.
New section 289K applies if the abandoned property is not claimed within
28 days of the notice under section 289I is given or published. The port
authority may sell property.
New section 289L allows a port authority to sell perishable abandoned
property if it is impracticable for the port authority to keep it having regard
to its nature and condition.
New section 289M sets out the order in which the proceeds from the sale of
abandoned property are to be applied. The listed expenses of the port
authority are to be met first with the balance of the proceeds to be paid to
the owner. If the listed expenses of the port authority are not covered by
the sale of the abandoned property, the difference is a debt owing to the
port authority by the owner.
In addition, compensation is not payable by a port authority for a payment
under this section.
New section 289N allows a port authority to dispose of the abandoned
property in the way it considers appropriate if the port authority considers
the property is of nil or insufficient value to justify its sale.
Clause 15 omits section 293 (Payment of charges and interest on unpaid
charges). Clause 11 inserts the provisions of that section as new section
281C.
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Amendment Bill 2005
Clause 16 inserts new part "Part 5 Transitional provisions for the Transport
Infrastructure and Other Legislation Amendment Act 2005" in Chapter 18
"Further Transitional Provisions".
New section 532 inserts the definitions for "Part 5 Transitional provisions
for the Transport Infrastructure and Other Legislation Amendment Act
2005" for "commencement" and "repealed regulation".
New section 533 provides for written approval for an activity under the
repealed Transport Infrastructure (Ports) Regulation 1994, now defined in
clause 14 as a "controlled activity", in force at commencement, to remain
in force for six months after commencement or to expire prior to that date
when a port authority issues a new approval to the person for the controlled
activity under the provisions of clause 13.
New section 534 provides for the continuation of proceedings by or against
a port authority under a repealed regulation, underway at the
commencement of this section, under the provisions of the repealed
regulation.
New section 535 provides where consultation for a new land use plan or
amendment to an existing land use plan had commenced but the Minister
had not approved the new land use plan or amendment at the
commencement of the section, the process to continue under the provisions
as they existed prior to the commencement of this section.
New section 536 provides that where a ship, an aircraft, goods, a vehicle or
a train is being detained immediately before commencement for non
payment of a charge owing to a port authority, the port authority may
continue to deal with the property under the provisions of the repealed
regulation.
New section 537 provides for where a port or airport notice in the form of
an official traffic notice was at commencement, erected or displayed under
a repealed regulation, the port or airport notice is deemed to be an official
traffic notice under the Transport Operations (Road Use Management) Act
1995. This section expires 1 year after it commences.
New section 538 provides for subject provisions of new sections 533 to
537, where a thing was in force immediately before commencement under
a provision of a repealed regulation and there is a similar provision in this
Bill, the thing continues to have effect.
Clause 17 amends Schedule 6 (Dictionary) and alters the defined terms of
"approval", "authorised officer" and "commencement" to incorporate new
cross references from these amendments. It provides a cross reference for
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Transport Infrastructure and Other Legislation
Amendment Bill 2005
the defined terms "abandoned property", "airport", "controlled activities",
"draft plan", "insufficient value property", "port area", "port notice", "port
facilities", "repealed regulation", "requirement" and "statement of
proposal". The definition of "train controller" is moved from section
188(6).
The reference to Gladstone Port Authority in the definition of "port
authority" is amended to the Central Queensland Ports Authority to refect
its name change under the Government Owned Corporations Act 1993
when it amalgamated with the Rockhampton Port Authority.
Part 4 - Amendment of the Transport
Operations (Marine Safety) Act
1994
Clause 18 states that this part amends the Transport Operations (Marine
Safety) Act 1994.
Clause 19 extends the objectives of the Act from being strictly related to
safety or promoting the effectiveness and efficiency of the maritime
industry, to include the management of the operation and activities of ships
for reasons other than safety.
Clause 20 amends section 29(1) to make it clear that the Act, while
primarily about safety, is not limited to dealing with issues only for safety.
Clause 21 amends section 197(2) (b) where it first appears, by renumbering
it to section 197(2) (a). This is an administrative amendment to address a
section numbering anomaly.
Clause 22 amends section 218 to establish a new power to make regulations
regarding the operation and activities of ships for reasons other than safety
and provides examples of instances where this power could apply.
� State of Queensland 2005