Channel Deepening (Facilitation) Act 2004
Act No.
table of provisions
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Part 1—Preliminary
1.Purposes
2.Commencement
3.Definitions
4.Construction of Act
5.The project
6.Binding the Crown
Part 2—Functions, Powers and other Provisions Relating to the Project
Division 1—Functions and Powers of the Port of Melbourne Corporation
7.Functions of the Port of Melbourne Corporation relating to the project
8.Powers of the Port of Melbourne Corporation relating to the project
Division 2—Restriction of Access to Certain Areas
9.Declaration of designated access areas
10.Orders to be tabled in Parliament
11.Amendment and revocation of Orders
12.Information about designated access areas
13.Powers of entry into designated access areas
14.Certificates of authorisation
15.Port of Melbourne Corporation may warn people to leave designated access area
16.Offence to enter any part of designated access area
17.Evidence as to area being designated
18.Interference with activities
19.Offence not to produce certificate on demand
20.Power to remove offenders
Division 3—Surrender of Interests in Unreserved Crown Land
21.Surrender of interests in unreserved Crown land
Division 4—Works Relating to Infrastructure
22.Works declaration
23.Functions and powers of Port of Melbourne Corporation in relation to a works declaration
24.Immunity from liability
25.Cost of works
Division 5—General
26.Certain decisions not reviewable
27.Agreements with infrastructure owners
28.Supreme Court—limitation of jurisdiction
29.Regulations
Part 3—EXPIRY of Act
30.Expiry of Act
Part 4—Amendments to the Port Services Act1995
31.Definitions
32.Repeal of certain prescribed services
33.Towage determinations
34.Disputes procedure
35.Substitution of Part heading
36.Insertion of new section 74
74.Wharfage fees
37.Substitution of section 75
75.Channel fees
38.Amendment of reference to charge in section 78
39.Amendment of reference to charge in section 79
40.Amendment of reference to charge in section 80
41.Amendment of reference to charge in section 81
42.Amendment of reference to charge in section 82
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Endnotes
INDEX27
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551207B.I2-9/12/2004BILL LA CIRCULATION 9/12/2004
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Initiated in Assembly 7 December 2004
A BILL
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551207B.I2-9/12/2004BILL LA CIRCULATION 9/12/2004
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to make provision for the carrying out of the deepening of channels providing shipping access to the port of Melbourne, to amend the Port Services Act 1995 and for related purposes.
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551207B.I2-9/12/2004BILL LA CIRCULATION 9/12/2004
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Channel Deepening (Facilitation) Act 2004
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551207B.I2-9/12/2004BILL LA CIRCULATION 9/12/2004
Act No.
Channel Deepening (Facilitation) Act 2004
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551207B.I2-9/12/2004BILL LA CIRCULATION 9/12/2004
Act No.
Channel Deepening (Facilitation) Act 2004
The Parliament of Victoria enacts as follows:
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551207B.I2-9/12/2004BILL LA CIRCULATION 9/12/2004
Part 4—Amendments to the Port Services Act1995
Channel Deepening (Facilitation) Act 2004
Act No.
Part 1—Preliminary
1.Purposes
The purposes of this Act are to—
(a)make provision for the carrying out of the deepening of channels providing shipping access to the port of Melbourne; and
(b)amend the Port Services Act 1995; and
(c)make other related provisions.
2.Commencement
s. 2
(1)Sections 1, 30 and this section come into operation on the day after the day on which this Act receives the Royal Assent.
(2)The remaining provisions of this Act come into operation on a day or days to be proclaimed.
3.Definitions
(1)In this Act—
"Central Plan Office" means the Central Plan Office of the Department of Sustainability and Environment;
"designated access area" means an area declared under section 9 to be a designated access area;
"infrastructure owner" means a person or body (other than the Crown) that owns infrastructure that is used in the provision of services in the nature of sewerage, oil, gas, electricity or other similar services;
"land" includes a stratum of land;
"works declaration" means a declaration under section 22(1).
(2)Unless inconsistent with the context or subject matter, words and expressions defined in the Port Services Act 1995 have the same meaning in this Act as in that Act.
4.Construction of Act
This Act must be read and construed as one with the Port Services Act 1995.
5.The project
s. 5
In this Act a reference to the project is a reference to the project for the deepening of channels providing shipping access to the port of Melbourne.
6.Binding the Crown
This Act binds the Crown in right of Victoria and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.
______
Part 2—Functions, Powers and other Provisions Relating to the Project
Division 1—Functions and Powers of the Port of Melbourne Corporation
7.Functions of the Port of Melbourne Corporation relating to the project
s. 7
(1)In addition to the functions of the Port of Melbourne Corporation that are specified in the Port Services Act 1995 or in any other Act, the Port of Melbourne Corporation has the function of planning for, providing for or enabling provision for, managing, directing, controlling and carrying out the project.
(2)In performing its functions under this Act, the Port of Melbourne Corporation must take all reasonable steps to ensure that the project is completed in a timely manner.
8.Powers of the Port of Melbourne Corporation relating to the project
(1)In addition to the powers of the Port of Melbourne Corporation that are specified in the Port Services Act 1995 or in any other Act, the Port of Melbourne Corporation may do anything necessary or convenient for or in connection with, or incidental to, the performance of its functions under this Act.
(2)Without limiting sub-section (1) and despite anything to the contrary in the Land Act 1958, the Port of Melbourne Corporation may—
(a)place or dispose of dredged spoil resulting from the project; and
(b)undertake any works necessary to place or dispose of dredged spoil resulting from the project—
in port of Melbourne waters.
(3)Before exercising a power under sub-section (2), the Port of Melbourne Corporation must consult with the Minister administering section 12 of the Land Act 1958.
Division 2—Restriction of Access to Certain Areas
9.Declaration of designated access areas
s. 9
(1)Subject to sub-section (2), the Minister, on the recommendation of the Port of Melbourne Corporation, may, by Order published in the Government Gazette, declare (whether by reference to a map or otherwise) the whole or any part of the port of Melbourne waters or of the relevant port of Melbourne land to be a designated access area for the purposes of this Act.
(2)If a proposed designated access area or any part of a proposed designated access area is land which is reserved or deemed to be reserved under the Crown Land (Reserves) Act 1978, the Minister must consult with the Minister administering the Crown Land (Reserves) Act 1978 before making a designated access area Order in respect of that land.
(3)In this section, "relevant port of Melbourne land" means land that is in the municipal district of the Melbourne City Council, Maribyrnong City Council, Hobsons Bay City Council or Port Phillip City Council or any land in Port Phillip Bay adjoining one or more of those municipal districts, being land an interest in which (being an interest that is in the nature of a freehold or leasehold interest) is held by the Port of Melbourne Corporation.
10.Orders to be tabled in Parliament
s. 10
The Minister must cause an Order made under this Division to be laid before each House of Parliament within 7 sitting days of that House after the Order is published in the Government Gazette.
11.Amendment and revocation of Orders
(1)The Minister, by Order published in the Government Gazette, may amend or revoke an Order made under this Division.
(2)This Division applies to the amendment or revocation of an Order made under this Division in the same way as it does to the making of an Order.
12.Information about designated access areas
If an Order has been made under section 9 declaring a designated access area, the Port of Melbourne Corporation must publish the Order—
(a)in a newspaper circulating generally throughout Victoria; and
(b)in a manner that makes it readily accessible to a person likely to enter that area.
13.Powers of entry into designated access areas
s. 13
The Port of Melbourne Corporation may authorise—
(a)any of its officers, employees or contractors; or
(b)any workers, vehicles, vessels or equipment that the Port of Melbourne Corporation or any officer, employee or contractor of the Port of Melbourne Corporation deems necessary—
to enter and remain on any part of a designated access area for the purposes of the project.
14.Certificates of authorisation
(1)The Port of Melbourne Corporation may issue a certificate in writing authorising the holder to enter and remain on any part of a designated access area to any of the following—
(a)an employee of the Crown or any public authority;
(b)any other person requiring entry to the area for the purposes of the project.
(2)A certificate under sub-section (1)—
(a)is issued for the period specified in the certificate; and
(b)is subject to the conditions specified in the certificate; and
(c)may be amended or revoked at any time by the Port of Melbourne Corporation.
15.Port of Melbourne Corporation may warn people to leave designated access area
s. 15
(1)The Port of Melbourne Corporation may warn any person to leave any part of a designated access area.
(2)For the purposes of section 9(1) of the Summary Offences Act 1966, the Port of Melbourne Corporation is deemed to be the occupier of the land concerned in exercising a power under sub-section (1).
16.Offence to enter any part of designated access area
(1)A person must not enter into or remain in any part of a designated access area unless the person—
(a)is authorised to do so under section 13; or
(b)has a certificate of authorisation issued under section 14; or
(c)is a member of the police force; or
(d)is—
(i)an employee in the public service within the meaning of the PublicAdministration Act 2004; or
(ii)an officer or employee of a public body—
acting in the performance of his or her duties under this Act.
Penalty:10 penalty units.
(2)It is a defence to a charge brought under sub-section (1) against a person to prove that the person has a reasonable excuse for entering into or remaining in the area.
17.Evidence as to area being designated
s. 17
In any proceedings under this Act, a certificate, signed by the Port of Melbourne Corporation, certifying that an area is or has been a designated access area is evidence of the facts stated in the certificate.
18.Interference with activities
(1)A person must not in any way intentionally—
(a)interfere with or hinder; or
(b)cause any other person to interfere with or hinder—
the carrying out of any works in a designated access area for the purposes of the project.
Penalty:10 penalty units.
(2)A person must not in any way intentionally—
(a)interfere with or hinder; or
(b)cause any other person to interfere with or hinder—
the entry into a designated access area by a person authorised under section 13 or section 14 to do so.
Penalty:10 penalty units.
19.Offence not to produce certificate on demand
A person who is in a designated access area, when asked to do so by a member of the police force, must—
(a)produce a certificate of authorisation issued under section 14; or
(b)give his or her name and address.
Penalty:5 penalty units.
20.Power to remove offenders
s. 20
(1)If a member of the police force believes, on reasonable grounds, that—
(a)an assembly is being carried on in any part of a designated access area; and
(b)the assembly is being carried on in a manner involving unlawful physical violence to persons or unlawful damage to property; and
(c)because of the number of persons involved in the assembly, it is not practicable to preserve or restore public order by arresting a person or persons involved in the assembly who is, or who are, committing an offence involving unlawful physical violence to persons or unlawful damage to property—
the member of the police force may remove that person or those persons from the designated access area.
(2)A member of the police force may, in order to remove a person from a designated access area, use such force as is reasonable in the circumstances.
(3)Nothing in this section limits any powers of arrest that a member of the police force has under any other law.
(4)Any action taken under this section does not prevent the institution of proceedings in respect of an offence.
Division 3—Surrender of Interests in Unreserved Crown Land
21.Surrender of interests in unreserved Crown land
s. 21
(1)The Minister, after consulting with the Minister administering section 12 of the Land Act 1958, may recommend to the Governor in Council that—
(a)the interests (if any) in any unreserved Crown land; and
(b)the prescribed contractual rights (if any) relating to any unreserved Crown land—
that is part of the area of land shown bordered red on plans numbered LEGL./04–488 and LEGL./04–489 and lodged in the Central Plan Office be surrendered to the Crown or extinguished.
(2)The Minister may make a recommendation under sub-section (1) on—
(a)receiving a plan of the land signed by the Surveyor-General; and
(b)being satisfied that the land shown on the plan represents the land—
(i)the interests (if any) in which are to be surrendered to the Crown; and
(ii)in relation to which the prescribed contractual rights (if any) are to be extinguished.
(3)On receiving the Minister's recommendation, the Governor in Council may, by Order published in the Government Gazette, declare that—
(a)the interests (if any) in the land shown on the plan are surrendered to the Crown; and
(b)the prescribed contractual rights (if any) relating to the land shown on the plan are extinguished.
(4)On the publication of an Order under sub-section(3) in the Government Gazette—
(a)the land is deemed to be unalienated land of the Crown, freed and discharged from all trusts, limitations, reservations, restrictions, encumbrances, estates and interests; and
(b)all prescribed contractual rights (if any) relating to the land are extinguished; and
(c)if any part of the land is the bed, soil and banks of a river or is seabed, all rights, easements and privileges existing or claimed in that part of the land either in the public or by any body or person as incident to any express or implied grant or past dedication or supposed dedication or by user or operation of law or otherwise, cease.
s. 21
(5)In this section—
"prescribed contractual right" means a right (other than an interest in land) created under an agreement in writing entered into between the Crown or another public body and another person (not being the Crown);
"unreserved Crown land" means Crown land that is not reserved under the Crown Land (Reserves) Act 1978.
Division 4—Works Relating to Infrastructure
22.Works declaration
s. 22
(1)If the Minister is satisfied that—
(a)there is, in the area of land shown bordered red on plans numbered LEGL./04–488 and LEGL./04–489 and lodged in the Central Plan Office, substantial infrastructure owned by an infrastructure owner; and
(b)for the purposes of the project it is necessary that substantial works be carried out on that land in respect of that infrastructure; and
(c)the infrastructure owner is unable to agree with the Port of Melbourne Corporation on the carrying out of the necessary works; and
(d)the Port of Melbourne Corporation has undertaken reasonable negotiations with the infrastructure owner to reach agreement on the carrying out of the necessary works—
the Minister may make a declaration specifying that the works are to be carried out.
(2)For the purposes of any declaration made under sub-section (1), the Port of Melbourne Corporation is the person responsible for ensuring that the works are carried out.
(3)A declaration under sub-section (1) must specify—
(a)the nature of the works that are to be carried out; and
(b)the land in which the works are to be carried out; and
(c)the nature of the infrastructure in respect of which the works are to be carried out; and
(d)the reason for which the declaration has been made.
(4)A declaration under sub-section (1)—
(a)must be in writing; and
(b)must be served on the person or body with whom agreement has not been reached within 14 days after the day on which the Minister makes the declaration.
(5)A declaration under sub-section (1) may be revoked or amended by the Minister.
23.Functions and powers of Port of Melbourne Corporation in relation to a works declaration
s. 23
(1)If a works declaration has been made, the Port of Melbourne Corporation, for the purposes of carrying out the works specified in the declaration, has—
(a)the same functions, powers and duties as the infrastructure owner would have if that person or body were carrying out the works; and
(b)all other functions and powers that are necessary to enable the works to be carried out.
(2)Without limiting sub-section (1), the Port of Melbourne Corporation may enter into a contract for the carrying out by another person or body of the whole or any part of the works.
24.Immunity from liability
s. 24
(1)A director of the Port of Melbourne Corporation is not liable for anything done or omitted to be done in good faith—
(a)in the exercise of a power or the discharge of a duty under a works declaration; or
(b)in the reasonable belief that the act or omission was in the exercise of a power or the discharge of a duty under a works declaration.
(2)Any liability resulting from an act or omission that would, but for sub-section (1), attach to a director of the Port of Melbourne Corporation attaches to the Corporation.
(3)A person who is an officer or employee of the Port of Melbourne Corporation is not liable for anything done or omitted to be done in good faith—
(a)in the exercise of a power or the discharge of a duty under a works declaration; or
(b)in the reasonable belief that the act or omission was in the exercise of a power or the discharge of a duty under a works declaration.
(4)Any liability resulting from an act or omission that would, but for sub-section (3), attach to a person who is an officer or employee of the Port of Melbourne Corporation attaches to the Corporation.
25.Cost of works
s. 25
(1)The Port of Melbourne Corporation must bear the cost of carrying out any works under a works declaration.
(2)Despite sub-section (1), if the works carried out under a works declaration are—
(a)of a higher standard than; or
(b)extend the life of—
the works that have been replaced, the value attributable to the higher standard or extended life is payable by the person or body on whom the declaration was served under section 22(4) to the Port of Melbourne Corporation as a debt due to the Corporation.
(3)Despite sub-section (1), if the person or body on whom a works declaration has been served under section 22(4) has not disclosed any information to the Port of Melbourne Corporation that is necessary to enable the works to be carried out, the person or body is responsible for any costs arising from the failure to disclose that information and any such costs are recoverable as a debt due to the Corporation.