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Port Services Amendment Bill 2007
Introduction Print
EXPLANATORY MEMORANDUM
General
The Bill will amend the Port Services Act 1995 to make provision for
powers to restrict access to certain port lands and waters and for other
purposes.
Clause Notes
Clause 1 sets out of the purpose of the Bill which is to amend the Port
Services Act 1995 to make provision for further powers as to
dredging, make further provision for port fees, make provision
for powers to restrict access to certain port lands and waters, and
make provision for other matters.
Clause 2 provides for the Bill to come onto operation on a day to be
proclaimed and provides a default commencement date of
1 July 2008.
Clause 3 amends the purposes set out in section 1(c) of the Port Services
Act 1995 by inserting "or fees" after "port charges" to reflect that
further provision is being made for the determination of fees for
certain services provided under the Port Services Act 1995.
Clause 4 sets out definitions for a number of terms adopted by the Bill.
Clause 5 paragraph (a) is consequential on the amendment inserted by
paragraph (b).
Paragraph (b) amends section 14A of the Port Services Act 1995
by inserting a new paragraph (d) to confirm that Port of
Melbourne Corporation may place or dispose of excavated
material in performing its functions and undertake works
necessary for this purpose. These activities may occur in port of
Melbourne waters.
561049 1 BILL LA INTRODUCTION 10/10/2007
Clause 6 paragraph (a) is consequential on the amendment made by
paragraph (b).
Paragraph (b) amends section 22 of the Port Services Act 1995
by inserting a new paragraph (d) to confirm that Victorian
Regional Channels Authority may place or dispose of excavated
material in performing its functions and undertake works
necessary for this purpose. These activities may occur in port
waters where it is performing its functions.
Clause 7 amends section 31(1) of the Port Services Act 1995 by replacing
the word "spouse" with "partner" to broaden the operation of the
provision (which is a prohibition on the making of loans to
directors of port corporations) to include "domestic partner".
This is to better accord with the Charter of Human Rights and
Responsibilities Act 2006 and the right to recognition and
equality before the Law.
Clause 8 paragraph (a) substitutes "Hastings." for "Hastings;" for
consistency.
Paragraph (b) repeals sections 49(c)(iv) and (v) of the Port
Services Act 1995.
These paragraphs respectively specify "the connection of water
or electricity to berthed vessels in Geelong and Portland" and
"towage in the ports of Geelong, Portland and Hastings" as being
among the services subject to price control of the Essential
Services Commission.
The repeal of these provisions gives effect to a recommendation
made by the Commission in its Final Report on the Review of
Port Services 2004 which noted that there was little evidence of
market power in non-infrastructure prescribed services.
Clause 9 repeals section 54(3) of the Port Services Act 1995 as a
consequence of the proposed repeal of sections 49(c)(iv) and (v)
of that Act.
Section 54(3) requires the Essential Services Commission, in
making a determination relating to towage in the ports of
Geelong, Portland and Hastings, to have regard to any criteria
applied at the time by the Australian Competition and Consumer
commission.
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Clause 10 makes a statute law revision amendment to section 60(8)(b)(ii) of
the Port Services Act 1995.
As enacted, this provision refers to the terms and conditions
being offered by a person seeking channel access.
The effect of the amendment is to correct the error by referring to
the terms and conditions being offered "to" the person by the
channel operator.
Clause 11 substitutes "fees" for "charges" in the heading to Part 5 of the
Port Services Act 1995.
Clause 12 substitutes a new section 74 of the Port Services Act 1995.
The new section changes the terminology from "wharfage
charges" to "wharfage fees". This change clarifies that the fee to
be charged is a fee for the provision of the service of wharfage.
The Port of Melbourne Corporation will be able to determine a
wharfage fee with respect of any site in the port at which
stevedoring operations may be carried out.
This will remove the leasing requirement that previously existed
in section 74.
This amendment also gives Port of Melbourne Corporation an
additional ground for charging wharfage fees. Under this
amendment, fees will be payable by the owner of a vessel where
there is an empty container unloaded from or loaded onto a
vessel.
Clause 13 substitutes a new section 75 of the Port Services Act 1995.
The new section changes the terminology from "channel usage
charges" to "channel fees". This change clarifies that the fee to
be charged is a fee for the service of providing the channel.
The new section will allow the fee to be recovered from either
the owner of the vessel or the cargo owner. Under the section,
any determination made in relation to fees for the provision of
channels must specify who is liable to pay the fee.
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Clause 14 inserts a new Part 5A into the Port Services Act 1995.
PART 5A--POWERS TO RESTRICT ACCESS TO
CERTAIN AREAS
New section 83 sets out a number of definitions that apply to
Part 5A.
In particular, authorised person is defined to mean--
· a person who has a certificate of authorisation under
section 88H (the Port of Melbourne Corporation or the
Victorian Regional Channels Authority as
recommending authorities, can issue certificates of
authorization under proposed section 88G);
· a member of the police force in the course of police
duties; and
· employees under the Public Administration Act 2004
or officers/employees of public bodies, performing
duties under specified legislation. The intent is that
employees of certain public bodies performing statutory
functions should be permitted to perform those statutory
functions in restricted access areas declared under
Part 5A.
New section 84(1) empowers the Minister on the
recommendation of the Port of Melbourne Corporation to declare
by Order published in the Government Gazette that any part of
port of Melbourne waters or land is to be an area to which access
is restricted.
The restricted access area may be a fixed area of not more than
12 square kilometers. The restricted access area may also be an
area within a specified distance of a vessel, not being a distance
of more than 14 kilometers.
New section 84(2) empowers the Minister on the
recommendation of the Victorian Regional Channels Authority to
declare by Order published in the Government Gazette that any
part of port waters of that Authority is to be an area to which
access is restricted.
The restricted access area may be a fixed area of not more than
12 square kilometers. The restricted access area may also be an
area within a specified distance of a vessel, not being a distance
of more than 14 kilometers.
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New section 84(3) provides conditions on the Minister's power to
make a declaration. Subclause (3)(a) provides that the Minister
must not make a declaration unless satisfied that it is necessary to
enable the recommending authority to carry out its powers or
functions or give effect to its objectives under the Port Services
Act 1995.
Subclause (3)(b) provides that if any part of the area is reserved
or deemed to be reserved Crown land under the Crown Land
(Reserves) Act 1978 or within 100 meters of such land, the
Minister must consult with the Minister administering the Crown
Land (Reserves) Act 1978 before making the declaration.
New section 84(4) provides that, if any part of the area is a park
or part of a park, within the meaning of the National Parks Act
1975, the park or the part of the park is not subject to the
declaration unless the Minister administering that Act consents to
it.
New sections 84(5), 84(6) and 84(7) set out conditions on the
making of a recommendation by a recommending authority.
New section 84(5) provides that where the area to be declared is
over port waters of a recommending authority, the recommending
authority must first consult with the Director of Marine Safety.
The Director of Marine Safety has specific powers and functions
in relation to State waters, which includes port waters of the Port
of Melbourne Corporation and the Victorian Regional Channels
Authority. In particular, the Director of Marine Safety may
regulate vessels and bathers affecting boating activity on waters,
including those of the recommending authorities.
New section 84(6) provides that that, if any part of the area is
within 100 metres of a park or part of a park within the meaning
of the National Parks Act 1975, the recommending authority
must first consult with the Secretary within the meaning of the
National Parks Act 1975 before making a recommendation for a
restricted access area.
New section 84(7) provides that the Victorian Regional Channels
Authority must not make a recommendation for a restricted
access area where it has delegated its functions under section 21
unless it first consults with the person or body it has delegated its
functions to. Section 21(2) of the Port Services Act 1995
provides that the Victorian Regional Channels Authority may
carry out its functions in relation to a commercial trading port by
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arranging for a port manager or another person to carry out those
functions.
New section 85 provides that the Minister's declaration of a
restricted access area may contain conditions relating to the
access area. In addition, the declaration may identify vessels or
classes of vessels or persons or classes of persons that may or
may not have access to the area and identify conditions relating
to the purpose and times of access and activities that may or may
not be carried out in the area.
New section 86 requires that a declaration must be published in
the Government Gazette and identifies how an area may be
referred to. It also provides when it takes effect.
Subclause (3) provides that the declaration remains in force for
the period specified in the declaration, but in any case, for no
more than 12 months.
New section 87 empowers the Minister to revoke a declaration in
the same way that the declaration is made.
New section 88 requires that a declaration be published in a
newspaper and in a way readily accessible to persons likely to
enter the area. The declaration must also be published on the
internet.
New section 88A provides that if there is an inconsistency
between on the one hand, a power that may be exercised by the
Director of Marine Safety or another person under the Marine
Act 1988 or the Port Services Act 1995 or regulations made
under those Acts, and on the other hand, powers that may be
exercised in respect of a restricted access area, the powers of the
Director of Marine Safety and others under the Marine Act 1988
and the Port Services Act 1995 and regulations made under
those Acts, prevail.
New section 88B makes it an offence for an unauthorized person
to enter or remain in a restricted access area or to cause a vessel
to enter or remain there in contravention of a declaration.
The offence has a penalty of 10 penalty units.
It is a defence to show reasonable excuse for entering into or
remaining in the area.
New section 88C creates two offences relating to interference
with activities.
First, it is an offence to interfere with or hinder or cause another
person to interfere with or hinder the carrying out of works in a
restricted access area.
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Secondly, it is an offence to interfere with or hinder or cause
another person to interfere with or hinder the entry of an
authorised person into a designated access area.
Each offence attracts a penalty of 10 penalty units.
In relation to each of the offences, it is a defence to show
reasonable excuse for interfering or hindering.
New section 88D creates two offences relating to the provision of
information requested by a member of the police force.
First, it is an offence for a person in a restricted access area not to
give his or her name and address, and not to state the authority
for being in the area and not to provide evidence relating to that
authority, when requested to do so by a member of the police
force.
Secondly, it is an offence for a person who is required to have a
certificate of authorisation issued under section 88G not to
produce this when required by a member of the police force.
Each offence attracts a penalty of 10 penalty units.
New section 88E gives the Port of Melbourne Corporation and
the Victorian Regional Channels Authority the ability to warn a
person to leave any part of a restricted access area and deems the
recommending authority to be the occupier of land for the
purposes of section 9(1) of the Summary Offences Act 1966.
A person giving a warning must produce evidence of his or her
authority to do so before giving the warning.
New section 88F empowers a member of the police force to take
charge of a vessel and move or direct that another person moves
the vessel to an appropriate place, when a person in charge of a
vessel commits an offence under Part 5A within sight of the
member of the police force.
New section 88G empowers the Port of Melbourne Corporation
and the Victorian Regional Channels Authority to issue written
certificates to persons authorising their entry into a restricted
access area.
New section 88H is an evidentiary provision and provides that a
certificate signed by a recommending authority certifying that an
area was a restricted access area is admissible evidence of the
facts stated in the certificate.
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Clause 15 makes it an offence for a port manager not to ensure that safety
management plans and environment management plans are
audited in accordance with Part 6A of the Port Services
Act 1995.
Clause 16 amends section 91F(2) of the Port Services Act 1995 so that
port managers of a local port can engage environmental auditors
to review and audit environment management plans in
accordance with section 91E(6) of the Port Services Act 1995.
Currently, local ports can only engage auditors approved by the
Minister for this purpose.
Clause 17 deletes the words "in addition" with effect that the Minister may
vary the time for commercial and local ports undertaking audits
of environment management plans and safety management plans
to be undertaken in accordance with Part 6A of the Port Services
Act 1995.
Clause 18 provides for the schedule to the Bill to have effect.
Clause 19 provides for the automatic repeal of this amending Act on
1 July 2009. As recommended by the Scruitiny of Acts and
Regulations Committee, all amending Acts now contain an
automatic repeal provision, which will save the time and expense
of having to repeal amending Acts in statute law revision Bills.
The repeal of this Act does affect not in any way the operation of
the amendments made by this Act (see section 15(1) of the
Interpretation of Legislation Act 1984).
SCHEDULE
The Schedule makes a number of consequential amendments to
the Port Services Act 1995. The terminology is changed from
"channel usage charge" and "wharfage charge" to "channel fee"
and "wharfage fee" and consistent headings are also inserted.
Subclause 78(4) of the Act is repealed as it is redundant.
Subclause 78(4) provides that if more than one person is liable to
pay a wharfage charge or a channel usage charge, that those
persons are jointly and severally liable to pay the charge.
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