VersionNo. 005
Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act2016
No. 10 of 2016
Version incorporating amendments as at
1 November 2016
TABLE OF PROVISIONS
SectionPage
1
SectionPage
Part 1—Preliminary
1Purposes
2Commencement
3Definitions
4Meaning of port assets
5Meaning of transfer
6Words and expressions defined in Corporations Act
7Associated assets
8Functions for the purposes of an authorised transaction
9Act to bind the Crown
10Extraterritorial operation of Act
Part 2—Authorised transactions
Division 1—Transfer of port assets
11Authorised transfer of port assets
12Proceeds of transaction
Division 2—The Victorian Transport Fund
13Victorian Transport Fund
14Payments into the Fund
15Payments out of the Fund
16Delegation of power to authorise payments
Part 3—Facilitating authorised transactions
Division 1—Premier's functions
17Premier's functions
18Manner of effecting authorised transaction
Division 2—Functions of the Port Corporation
19Additional functions of the Port Corporation
20Direction and control of the Port Corporation
21Immunity of directors and officers of the Port Corporation
Division 3—Transaction entities
22Establishment of statutory corporations as transaction entities
23Establishment of companies as transaction entities
24Designation of subsidiary company of the Port Corporation as transaction entity
25Transaction entity does not represent the State
26Functions of transaction entities
27Direction and control of transaction entities
28Immunity of directors and officers of transaction entity
Part 4—Arrangements for transfer of portassets
Division 1—Transfer orders
29Making of transfer orders
30Vesting of assets, rights and liabilities in transferee
31Terms and conditions of transfer order
32Consideration for vesting
33Transfer subject to encumbrances
34Substitution of party to agreement
35Transfer of interests in land
36Transfer of rights and interests in vehicles and recreational vessels
37Confirmation of vesting
38Determinations by Premier
39Amendment of Land Titles Register
40Amendment of VicRoads vehicles register
41Evidence
Division 2—Grant of relevant authorisations
42Grant of relevant authorisations
Part 5—Arrangements relating to transfer of Port Corporation staff
43Definitions
44Meaning of employment guarantee period
45Designation of a private sector employer
46Temporary transfers (secondments)
47Transfers to private sector employment of Port Corporation executive employees
48Limitation on changes to terms and conditions of transferred employees
49Continuity of entitlements of transferred employees
Part 6—Crown land for the purposes of authorised transactions
Division 1—Application of Part
50Land Acts and certain land provisions do not apply
Division 2—Removal of reservations on land
51Revocation of reservations
52Revocation of reservations—part of reservation
53Effect of revocation of reservation
54Preservation of leases and licences
Division 3—Leasing and licensing of Crown land
55Grant of lease or licence of Crown land for the purposes of an authorised transaction
Part 7—General
Division 1—General matters relating to authorised transactions
56Severance of fixtures
57Protection of contractual and other obligations
58Compensation not payable
59Port of Melbourne leases
Division 2—Compensation payments underauthorised transaction related agreements or deeds
Subdivision 1—Preliminary
60Definitions
61Meaning of Port Growth Regime payment provision
62Meaning of Port Growth Regime waiver provision
63Relevant legislation for the purposes of the Essential Services Commission Act 2001
64Ministerial guidelines about capacity expansion proposals
Subdivision 2—Restriction on compensation payments
65Compensation not payable or capped in certain cases
Subdivision 3—Approval of capacity expansion proposals by Minister
66Approval of material increases in capacity for the handling of international containers at the port of Melbourne
Subdivision 4—Certification of capacity expansion proposals by Commission
67Application
68Application for certification
69Decision on certification by Commission
70Inquiries for the purposes of decisions on certification
71Draft report to be provided to applicant
Subdivision 5—Least cost capacity expansion principles Order
72Least cost capacity expansion principles Order
73When a least cost capacity expansion principles Order takes effect
74Limitation on amending or revoking a least cost capacity expansion principles Order
75Circumstances in which a least cost capacity expansion principles Order may be amended
76Circumstances in which a least cost capacity expansion principles Order may be wholly revoked
Division 3—Operation of other laws
77Excluded matter for Corporations Act
78State taxes and fees
79Application of Borrowing and Investment Powers Act 1987
80Operation of Public Administration Act 2004
81Operation of State Owned Enterprises Act 1992
82Operation of Transport Integration Act 2010
83No land tax is payable
84Rates under Local Government Act 1989
85Inconsistency with prescribed legislation
Division 4—Miscellaneous
86Delegation
87Orders
Division 5—Regulations
88Regulations
Part 8—Transaction-related amendments
Division 1—Amendment of Transport Integration Act 2010
89Definition
90Object of Port of Melbourne Corporation
91Functions of Port of Melbourne Corporation
92New section 141EA inserted
93Dredging by Port of Melbourne Corporation
Division 2—Amendment of Port Management Act1995
94Definitions
95Owner of vessel or cargo
96New section 4A inserted
97Accountability for damage
98Liability of certain persons
99New section 44H substituted and new sections 44HAA and44HA inserted
100Notice of annual licence fee
101Method of payment of annual licence fee
102New sections 44M and 44N inserted
103Definitions
104Application of Part
105New section 48 substituted and new section 48A inserted
106Price regulation—prescribed services
107New Division 2 of Part 3 inserted
108New Divisions 2A to 2D of Part 3 inserted
109New Division 3 heading substituted
110New section 53 substituted
111General power to make determinations
112New Division heading inserted
113New section 54A inserted
114Standards and conditions of service and supply
115New Division heading inserted
116Division 5 of Part 3 substituted
117New Division 6 of Part 3 inserted
118Towage requirements determination
119Process for making a towage requirements determination
120Determination of towage conditions
121Limitation on making towage conditions determinations
122Process for making towage conditions determination
123New sections 74AA and 74AB inserted
124Wharfage fees—port of Melbourne
125Channel fees
126Payment of wharfage and channel fees
127Interest on overdue payments
128Security for payment of wharfage and channel fees
129Liability of current owners and agents
130Waiver or refund of wharfage or channel fees
131Definitions for the purposes of Part 5A
132Making a declaration of restricted access area
133Effect of declaration
134Pollution abatement by Port of Melbourne Corporation
135New section 88JA inserted
136Recovery of costs of clean up by Port of Melbourne Corporation
137New section 88KA inserted
138Hazardous port activity notice
139New section 88P substituted
140Removal of things
141Powers when moving things
142Requirement to make enquiries as to owner of thing
143Disposal of thing
144Recovery of costs
145Payment of compensation
146Proceeds of disposal where owner not located
147New Part 5C inserted
148New section 91BA inserted
149Port manager's responsibilities for management plans
150Safety and environment management plans
151Audits of compliance
152Ministerial directions
153Reporting
154Definitions for the purposes of Part 6B
155Port Development Strategy
156New Part 6C inserted
157Regulations
Division 3—Amendment of Marine Safety Act 2010
158Definitions
159Principle of shared responsibility
160New Part 2.2A inserted
161New section 200 substituted
162Offence to fail to comply with standard determined under this Part
163New Part 5.2A inserted
164Provision or maintenance of navigation aids by Safety Director
165Recovery of costs
166Acquisition of land
Division 4—Amendment of Marine (Drug, Alcohol and Pollution Control) Act 1988
167Definitions
Division 5—Amendment of Essential Services Commission Act2001
168Definitions
169Order declaring a regulated industry
170Right of appeal
171Appeal panel
Division 6—Amendment of Land Act 1958
172Definitions for the purposes of Part XII
173Crown property in beds and banks of certain watercourses
Division 7—Repeal of amending Part
174Repeal of amending Part
Part 9—Port of Melbourne Corporation name change amendments
Division 1—Amendment of Transport Integration Act 2010
175Definitions
176Division heading substituted
177Port of Melbourne Corporation name change to Victorian Ports Corporation (Melbourne)
Division 2—Consequential amendments
178Reference to Port of Melbourne Corporation
179Consequential amendments
Division 3—Repeal of amending Part andSchedule1
180Repeal of amending Part and Schedule 1
Schedule 1—Consequential amendments
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Endnotes
1General information
2Table of Amendments
3Amendments Not in Operation
4Explanatory details
1
VersionNo. 005
Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act2016
No. 10 of 2016
Version incorporating amendments as at
1 November 2016
1
Part 1—Preliminary
Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act2016
No. 10 of 2016
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purposes
The main purposes of this Act are—
(a)to authorise and facilitate transactions under which land in the port of Melbourne is leased, and assets of the Port of Melbourne Corporation are disposed of, to a private sector entity; and
(b)to establish the Victorian Transport Fund into which the proceeds of transactions referred to in paragraph (a) are to be paid; and
(c)to guarantee the employment entitlements of employees of the Port of Melbourne Corporation who become employees of a private sector entity in connection with the transactions referred to in paragraph (a); and
(d)to amend the Transport Integration Act2010 and the Port Management Act1995to revise the Port of Melbourne Corporation's functions and powers to reflect the port of Melbourne's operation by the private sector entity and the Port of Melbourne Corporation's continuing role in relation to the port; and
(e)to amend the Port Management Act 1995and the Essential Services Commission Act2001 to establish a new licensing and economic regulatory framework to apply to the private sector entity that will be providing services at the port of Melbourne through its operation of the port; and
(f)to amend the Marine Safety Act 2010to ensure that the private sector entity operating the port of Melbourne,when carrying out activities at the port, is subject to marine safety duties; and
(g)to make consequential amendments to other Acts.
2Commencement
(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.
(2)If a provision of this Act does not come into operation before 30 June 2017, it comes into operation on that day.
3Definitions
In this Act—
assets means any legal or equitable estate or interest (whether present or future, whether vested or contingent) in real or personal property of any description;
associated assetsmeans any assets, rights and liabilities designated under section7 as associated assets;
authorised transaction means a transfer of port assets authorised by Part 2;
Crown land includes a stratum of Crown land;
exercise, in relation to a function, includes perform a duty;
function includes power, authority or duty;
lease includes—
(a)concurrent lease; and
(b)sublease, sublease of a sublease or any further sublease; and
(c)concurrent sublease, concurrent sublease of a concurrent sublease or any further concurrent sublease of a concurrent sublease;
liabilities means all liabilities, duties and obligations, whether actual, contingent or prospective;
licence includes sublicence, sublicence of a sublicence or any further sublicence;
port assets has the meaning given by section4;
S.3 def. of Port Corporation amended by No.10/2016 s.178.
Port Corporation means the Victorian Ports Corporation (Melbourne) within the meaning of the Transport Integration Act 2010;
port of Melbourne has the same meaning as in the Port Management Act 1995;
port of Melbourne seabed means the Crown land comprising the area of waters that are port of Melbourne waters and, to avoid doubt,includes any stratum of that land;
port of Melbourne waters has the same meaning as in the Port Management Act 1995;
private sector entity means any person other than a public sector entity;
public sector entitymeans any of the following—
(a)the State;
(b)the Minister;
(c)the Port Corporation;
(d)the Port of Hastings Development Authority within the meaning of the Transport Integration Act 2010;
(e)the Victorian Regional Channels Authority within the meaning of the Transport Integration Act 2010;
(f)a public entity within the meaning of the Public Administration Act 2004;
(g)any other person acting on behalf of the State;
(h)a corporation established under section22;
(i)a company established in accordance with section23, but only while all the shares in the company are held by or on behalf of an entity referred to in paragraphs (a) to (h);
(j)a wholly-owned subsidiary of an entity referred to in paragraphs (c) to (i);
relevant land Ministers means—
(a)in sections 51 and 52, the Minister administering the Crown Land (Reserves) Act 1978, the Minister administering the Coastal Management Act 1995 and the Minister administering Part IX of the Land Act 1958; and
(b)in section 55, the Minister administering the Coastal Management Act 1995 and the Minister administering Part IX of the Land Act 1958;
rights means all rights, powers, privileges and immunities, whether actual, contingent or prospective;
transaction arrangement means a transaction, agreement or other arrangement entered into by or on behalf of a public sector entity for the purposes of an authorised transaction;
transaction entity means—
(a)a corporation established under section22; or
(b)a company established in accordance with section23; or
(c)a company designated under section 24;
transaction proceeds means the proceeds of the transfer of port assets to a private sector entity under an authorised transaction;
transfer, in relation to port assets, has the meaning given by section 5;
transfer date means the date of coming into effect of a transfer order;
transfer order means an order made under Division 1 of Part 4;
transferee means the person or body in whom any assets, rights and liabilities are vested by a transfer order;
transferor means the person or body from whom any assets, rights or liabilities are divested by a transfer order;
vehicle has the same meaning as in the Road Safety Act1986;
Victorian Transport Fund means the Fund established under section 13.
4Meaning of port assets
(1)Port assets are the following—
(a)the assets, rights and liabilities of the Port Corporation;
(b)associated assets.
(2)Port assets include assets, rights and liabilities vested in a public sector entity that were port assets before their transfer to a public sector entity for the purposes of an authorised transaction.
(3)However, assets, rights and liabilities cease to be port assets when they are transferred (other than under a lease or licence) to a private sector entity for the purposes of an authorised transaction.
5Meaning of transfer
(1)A transfer, in relation to port assets, includes the sale, lease or licensing of port assets, and the creation and transfer of any interest in port assets.
(2)To avoid doubt, for the purposes of subsection(1) each of the following is a creation and transfer of an interest in port assets—
(a)a declaration of trust relating to port assets the specification of which forms part of the declaration of trust or part of the transaction constituted by the declaration of trust;
(b)a surrender of an interest in port assets;
(c)a change in the beneficial ownership of port assets.
(3)In this section—
beneficial ownership includes, but is not limited to, ownership of assets by a person as trustee of a trust;
change in beneficial ownership includes, but is not limited to the following—
(a)the creation of an asset;
(b)the extinguishment of an asset;
(c)a change in equitable interests in an asset;
(d)an asset becoming the subject of a trust;
(e)an asset ceasing to be the subject of a trust;
declaration of trust means any declaration (otherthan by a will or testamentary instrument) that any identified asset vested or to be vested in the person making the declaration is or is to be held in trust for the person or persons, or the purpose or purposes, mentioned in the declaration although the beneficial owner of the asset, or the person entitled to appoint the asset, may not have joined in or assented to the declaration.
6Words and expressions defined in Corporations Act
In this Act the following words and expressions have the same meanings respectively as they have in section 9 of the Corporations Act unless the context or subject-matter otherwise requires—
(a)associated entity;
(b)company;
(c)director;
(d)dispose;
(e)issue;
(f)officer;
(g)related body corporate;
(h)securities;
(i)subsidiary;
(j)wholly-owned subsidiary.
7Associated assets
The Premier, by order, may designate any assets, rights or liabilities of a public sector entity that relate to, or are connected with, the port of Melbourne to be associated assets for the purposes of this Act.
8Functions for the purposes of an authorised transaction
For the purposes of this Act, any act, matter or thing is done or has effect for the purposes of an authorised transaction if—
(a)it is done or has effect for the purpose of effecting or facilitating an authorised transaction; or
(b)it is done or has effect for any purpose that is ancillary or incidental to or consequential on an authorised transaction; or
(c)it is done or has effect for any purpose connected with the vesting of port assets in, or the transfer of staff of thePort Corporation to, a public sector entity at any time after completion of an authorised transaction.
9Act to bind 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.
10Extraterritorial operation of Act
It is the intention of the Parliament that the operation of this Act is, as far as possible, to include operation in relation to the following—
(a)things situated in or outside the territorial limits of Victoria;
(b)acts, transactions and matters done, entered into or occurring in or outside the territorial limits of Victoria;
(c)things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Act, be governed or otherwise affected by the law of another jurisdiction.
Part 2—Authorised transactions
Division 1—Transfer of port assets
11Authorised transfer of port assets
(1)This Act authorises the transfer of port assets to a private sector entity, or a public sector entity, subject to the following limitations—
(a)land comprising port assets may be leased or licensed to a private sector entity but the ownership of the freehold title to that land must remain with a public sector entity;
(b)in the case where one lease or licence of land comprising port assets is granted to a private sector entity, the maximum period for that lease or licence must not exceed the period specified in subsection (2);
(c)in the case where a lease or licence of land comprising port assets is granted to a private sector entity and any further lease or licence of those port assets is granted, the maximum period for all of the leases or licences granted to a private sector entity must not exceed, in aggregate, the period specified in subsection(2).
(2)For the purposes of subsection (1)(b) and (c), the specified period is—
(a)50 years; or
(b)if the Premier makes an order under subsection (3), the period determined under that order.
(3)The Premier, by order, may, for the purposes of subsection (2)(b), determine the period of a lease or licence of land comprising port assets to be granted to a private sector entity.
(4)The period determined under an order under subsection (3) must not exceed 50 years and 30days.
(5)Port assets may be transferred for the purposes of an authorised transaction in any manner.
(6)Without limiting subsection (5), port assets of a body corporate (the port assets holder) may be transferred to another body corporate by the port assets holder becoming a wholly-owned subsidiary of the other body corporate.
12Proceeds of transaction
(1)The proceeds of the transfer of port assets to a private sector entity under an authorised transaction belong to and are payable directly to the State.
(2)The transaction proceeds include any payment to a public sector entity that is a premium or periodic payment under or related to a lease or licence of port assets to a private sector entity or grant of other rights that is authorised by this Act that, but for subsection (1), would be payable to another public sector entity.
(3)The transaction proceeds paid to the State are to be paid into the Victorian Transport Fund.
(4)The following deductions are authorised to be made from the transaction proceeds—
(a)deduction of amounts approved by the Premier to repay debt and satisfy other liabilities of a public sector entity in relationto port assets transferred for the purposes of an authorised transaction;
(b)deduction of amounts approved by the Premier—
(i)to reimburse a public sector entity for payments made by the entity in relation to any tax, duty, fee or charge imposed on the public sector entity by any Act or law of the State or any other jurisdiction in connection with a transaction arrangement; or