Port Services Act 1995

Version No. 047

Port Services Act 1995

No. 82 of 1995

Version incorporating amendments as at 1 January 2008

table of provisions

SectionPage

1

SectionPage

Part 1—Preliminary

1Purpose

2Commencement

3Definitions

4Owner of vessel or cargo

5Orders in Council

6Ports

7Subsidiary

8Crown to be bound

9Extra-territorial operation

Part 2—Port Corporations

Division 1—Port of Melbourne Corporation

10Establishment

11Port of Melbourne Corporation not to represent the Crown

12Objectives

13Functions

14Powers of the Port of Melbourne Corporation

14ADredging by Port of Melbourne Corporation

15Acquisition or disposal of land by the Corporation to be approvedby Minister

16Transitional powers under leases

17Repealed

Division 1A—Port of Hastings Corporation

17AEstablishment

17BPort of Hastings Corporation not to represent the Crown

17CObjectives

17DFunctions

17EPort operations

17FPowers of the Port of Hastings Corporation

17GAcquisition or disposal of land by the Corporation to be approvedby Minister

Division 2—Victorian Regional Channels Authority

18AADivision not to apply to port of Melbourne waters

18Establishment of VRCA

19VRCA not to represent the Crown

20Objective

21Functions and powers

22Dredging

Division 3—General

23Accountability for damage

24Liability of certain persons

25Schedule 1

26Delegation

27Borrowing and investment by port corporations

28Duties of directors

29Port corporation or Minister may bring proceedings

30Directions

31Port corporation not to make loans to directors

32Indemnity

33Corporate plan

34Statement of corporate intent: contents

35Corporate plan to be followed

36Nothing void merely because of non-compliance

37Board to give notice of significant events

38Non-commercial functions

39Determination of initial capital

40Capital

41Repayment of capital

42Dividends

43Reports to Minister or Treasurer

44Annual report

Part 2A—Local Ports

44AAppointment of port managers of local ports

44BGeneral powers of port managers

44CDelegation

44DCharges

44EDredging

44FOther works

44GPort manager may act as harbour master if there is no harbour master

Part 3—Regulation of Port Services

Division 1—Preliminary

45Definitions

46Construction of Part

47Application of Part

48Objectives of the Commission

49Price regulation

Division 2—Repealed

50–52Repealed

Division 3—General powers

53Conduct of inquiries

54General power to make determinations

55Standards and conditions of service and supply

56Financial and business records

57Restriction on disclosure of confidential information

Division 4—Access

58Application of Division

59Obligations of channel operator

60Procedure if disputes arise

61Hindering access

62Inquiry about channels

63Application for general determination

63AAProcedures and powers of the Commission

63ABCommission may give directions in relation to a dispute

63ACConfidentiality agreements

63ADAppeals

Division 5—Licences

63AProhibition

63BExemptions

63CApplication for licence

63DGrant or refusal of application

63EProvisions relating to licences

63FSpecific licence conditions

63GDetermination of fees and charges

63HVariation or revocation of licence

63IGazettal requirement

63JTransfer of licence

63KRepealed73

Part 4—Reservation of Land

Division 1—Reservation of land for the purposes of the port of Melbourne

64Power to reserve unalienated Crown land for the purposes of theport of Melbourne

65Station Pier land deemed to be reserved land

66Powers of Port of Melbourne Corporation in relation to
reserved Crown land

Divisions 2, 3—Repealed

68–71Repealed

Division 4—General

72Registrar of Titles to amend records

73Exemption from stamp duty and other taxes

Part 5—Port Fees

74Wharfage fees

75Channel fees

76, 77Repealed80

78Payment of wharfage and channel fees

79Interest on overdue payments

80Security for payment of wharfage and channel fees

81Liability of current owners and agents

82Waiver or refund of wharfage or channel fees

Part 5A—Powers to Restrict Access to Areas

Division 1—Preliminary

83Definitions

Division 2—Declaration of areas

84Making a declaration of restricted access area

85Effect of declaration

86Provisions as to restricted access area declarations

87Amendment or revocation of declaration

88Publication of declaration

88AOperation of declaration where inconsistent with other
powers

Division 3—Offences and other enforcement powers in relation
to areas

88BOffence to enter restricted access area

88CInterference with activities

88DOffence not to give certain information to police when asked
to do so

88EWarning to leave area

88FPowers to move vessels from areas

88GCertificates of authorisation

88HCertificate as evidence of area

Part 6—Harbour Masters

89Offence to fail to comply with direction, or obstruct, harbour master

90Repealed

91Protection from liability

Part 6A—Port Management Plans

91ADefinition

91BApplication of other Acts

91CPort manager's responsibilities for management plans

91DSafety and environment management plans

91ECertification of plans

91FAudits of compliance

91GMinisterial guidelines

91HMinisterial directions

91ITransitional provisions—management plans

Part 7—General

92Port corporation may act under certain agreements and instruments

93Amendment of planning schemes

94Offences by bodies corporate

95Service of documents on port corporation

96Treasurer may give guarantee

97Repealed

98Regulations

Part 8—Transfer of Property by Port
Authorities to Certain Port Corporations

Division 1—Preliminary

99Definitions

Division 2—Transfer by operation of Act

100Transfer of certain port authority property to MPC

Division 3—Transfer by allocation

101Treasurer may direct transfer of property

102Property transferred in accordance with direction

103Allocation of property etc. subject to encumbrances

104Payments in respect of financial obligations

Division 4—General

105Certificate of chief executive officer

106Value of former port authority property

107Substitution of party to agreement

108Former port authority instruments

109Proceedings

110Interests in land

111Amendment of Register

112Taxes

113Evidence

114Validity of things done under this Part

Division 5—Rights as between transferees

115Interim arrangements

116Easements

Part 9—Staff of Port Authorities

117Definitions

118Rights of port authority staff

119Superannuation—continuing membership

120Superannuation—transfer to Local Authorities
Superannuation Fund—designated port employees

121Superannuation—change of employment—designated port employees

122Superannuation—contributions—designated port employees

123Superannuation—private sector employment—regional port employees

124Taxes

125Appropriation

Part 10—Repealed

126–152Repealed

Part 11—Abolition of Port Authorities

153Definitions

154Transfer of property to SEC and abolition of port authorities

155Substitution of party to agreement

156Port authority instruments

157Proceedings

158Interests in land

159Amendment of Register

160Taxes

161Evidence

Part 12—Transitional Provisions—
Establishment of Port of Melbourne
Corporation

162Definitions

163Transfer of property etc. from MPC to the new corporation

164Staff to be transferred from the old corporation to the new corporation

Part 13—Transitional Provisions—Transfer of Certain VCA Functions etc.

Division 1—Definitions

165Definitions

Division 2—Allocation of property etc.

166Treasurer may direct transfer of property etc.

167Property transferred to the new corporation

168Allocation of property etc. subject to encumbrances

169Substitution of party to agreement

170VCA instruments

171Taxes

172Validity of things done under this Part

173Payments in respect of financial obligations of VCA

Division 3—Staff and other matters

174List of staff to be transferred from VCA to the new
corporation

175Terms of employment of staff transferred from VCA to the newcorporation

176Price determination

176ASaving of port of Melbourne waters

Part 14—Transitional Provisions—
Establishment of Port of Hastings
Corporation

177Definitions

178Transfer of property etc. from HPHC to the new corporation

179Staff to be transferred from the old corporation to the new corporation

Part 15—Transitional Provisions—
Establishment of Victorian Regional
Channels Authority

180Definitions

181Transfer of property etc. from VCA to the new corporation

182Staff to be transferred from the old corporation to the new corporation

Part 16—Other Savings and Transitionals

183Savings for existing local authorities

184Provisions of Subordinate Legislation Act 1994 not to apply tocertain ports regulations

Part 17—Station Pier—Savings and Transitional

185Definitions

186Savings and transitional provisions for Station Pier

187Transfer of property etc. from old body to Port of Melbourne Corporation

188, 189Repealed

190–193Repealed

194–207Repealed

______

SCHEDULE 1—Provisions Applying to Port Corporations

1Board of directors

2Constitution of board

3Appointment of directors

4Terms and conditions of appointment

5Acting appointments

6Chief executive officer and other staff

7Vacancies, resignations, removal from office

8Validity of decisions

9Proceedings of board

10Resolutions without meetings

11Disclosure of interests

SCHEDULE 2

SCHEDULE 3—Table

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ENDNOTES

1. General Information

2. Table of Amendments

3. Explanatory Details

1

Version No. 047

Port Services Act 1995

No. 82 of 1995

Version incorporating amendments as at 1 January 2008

1

Port Services Act 1995
No. 82 of 1995

The Parliament of Victoria enacts as follows:

Part 1—Preliminary

1Purpose

The main purpose of this Act is—

S. 1(a) substitutedby No.85/2003 s.3.

(a)to establish bodies to manage and operate certain commercial trading ports in Victoria; and

S. 1(ab) insertedby No.85/2003 s.3.

(ab)to provide for the establishment, management and operation of commercial trading ports and local ports in Victoria; and

(b)to provide for the economic regulation of certain port services; and

S. 1(c) amendedby No.63/2007 s.3.

(c)to provide for the imposition of certain port charges or fees; and

(d)to require the engagement of licensed harbour masters in certain circumstances and set out their functions; and

(e)to provide for the transfer of property, rights and liabilities and the management of Crown land and to make provision with respect to the rights of staff; and

(f)to amend the Port of Melbourne Authority Act 1958, the Port of Geelong Authority Act 1958, the Port of Portland Authority Act 1958, the Marine Act 1988, the Pollution of Waters by Oil and Noxious Substances Act 1986 and the Dangerous Goods Act 1985.

2Commencement

s. 2

(1)This Part and section 189(7) and (8) come into operation on the day on which this Act receives the Royal Assent.

(2)Subject to subsection (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

S. 2(3) substituted by No. 51/1996 s.3.

(3)If a provision referred to in subsection (2) does not come into operation before 28 November 1998, it comes into operation on that day.

S. 3
amended by No. 63/2007 s.4(2) (ILA s.39B(1)).

3Definitions

(1)In this Act—

board,in relation to a port corporation, meansthe board of directors of the port corporation;

cargo includes any substance or article and any container or other item used to contain any substance or article;

S. 3 def. of Central Plan Office insertedby No. 110/2004 s.58(a).

Central Plan Office means the Central Plan Office of the Department of Sustainability and Environment;

channelincludes swinging basin, turning circle, an area alongside a berth or dock, fairway and anchorage;

S.3 def. of channel feeinsertedby No.63/2007 s.4(1).

channel fee means a fee under section 75;

S.3 def. ofchannel operator substitutedby No.23/2003 s.18(b), amendedby No. 85/2003 s.30(1)(a).

channel operator means—

(a)in the case of port of Melbourne waters, the Port of Melbourne Corporation;

(b)in the case of any other port waters, a person who manages channels in those waters under an agreement with VRCA;

coastal vested land means—

s. 3

(a)in relation to PGA, Crown land—

(i)that is vested in PGA and that was so vested by or under the Port of Geelong Authority Act 1958; and

(ii)that is coastal Crown land within the meaning of the Coastal Management Act 1995;

(b)in relation to PPA, Crown land—

(i)that is vested in PPA and that was so vested by or under the Port of Portland Authority Act 1958; and

(ii)that is coastal Crown land within the meaning of the Coastal Management Act 1995—

but does not include any land vested in PGA or PPA that is declared by Order in Council under section 5(4) not to be coastal vested land for the purposes of this Act;

S. 3 def. of commercial trading port insertedby No. 85/2003 s.28(a).

commercial trading port means the port of Melbourne, the port of Geelong, the port of Portland, the port of Hastings and any other port declared to be a commercial trading port by Order in Council under section 6;

developmentincludes—

s. 3

(a)the construction, extension, demolition or removal of a building or works;

(b)the decoration or alteration of the inside or outside of a building or the alteration of works;

(c)the subdivision or consolidation of land, airspace or buildings;

(d)the installation, provision or operation of facilities or services;

S.3 def. of Director of Marine Safety insertedby No.23/2003 s.18(a).

Director of Marine Safety has the same meaning as Director has in the Marine Act 1988;

S.3 def. of domestic partner insertedby No.63/2007 s.4(1).

domestic partner of a person means a person to whom the person is not married but with whom the person is living as a couple on a genuine domestic basis (irrespective of gender);

S. 3 def. of harbour master substitutedby No. 9/2004 s.26.

harbour master has the same meaning as in the Marine Act 1988;

S. 3 def. of HPHC inserted by No. 63/1997
s. 3, repealedby No.85/2003 s.29(a).

*****

s. 3

instrumentincludes a document and an oral agreement;

liabilitiesmeans all liabilities, duties and obligations, whether actual, contingent or prospective;

S. 3 def. of licensed harbour master amended by No. 77/2001 s.32(4)(a)(i).

licensed harbour mastermeans a harbour master licensed by the Director of Marine Safety under the Marine Act 1988;

S. 3 def. of local port insertedby No. 85/2003 s.28(a).

local port means a port declared to be a local port by Order in Council under section 6;

S. 3 def. of managed landrepealed by No. 23/2003 s.3(b).

*****

S. 3 def. of management plan insertedby No. 85/2003 s.27.

management plan means a safety management plan or an environment management plan required by section 91C;

S. 3 def. of Marine Board repealed by No. 77/2001 s.32(4)(a)(ii).

*****

S. 3 def. of Melbourne port area repealed by No. 23/2003 s.3(b).

*****

s. 3

S.3 def. of member of the police force insertedby No.63/2007 s.4(1).

member of the police force has the same meaning as member of the force has in the Police Regulation Act 1958;

S. 3 def. of MPCrepealedby No. 23/2003 s.3(b).

*****

navigation aidmeans a device used for the safety of navigation including a beacon, buoy or marine mark but not including a device on board a vessel;

s. 3

owner, in relation to a vessel or cargo, means owner within the meaning of section 4;

S.3 def. of partner insertedby No.63/2007 s.4(1).

partner of a person means the person's spouse or domestic partner;

PGA means Port of Geelong Authority;

S. 3 def. of PMArepealedby No. 23/2003 s.3(b).

*****

S. 3 def. of POHC inserted by No. 85/2003 s.29(b).

POHCmeans thePort of Hastings Corporation established by Division 1A of Part 2;

S. 3 def. of port insertedby No. 85/2003 s.28(a).

port means the port of Melbourne, the port of Geelong, the port of Portland, the port of Hastings and any other port declared under section 6 in relation to which port lands or port waters or both port lands and port waters have been declared under section 5;

S. 3 def. of Port Act inserted by No. 63/1997
s. 3.

Port Act means the Port of Geelong Authority Act 1958, the Port of Melbourne Authority Act 1958 or the Port of Portland Authority Act 1958;

s. 3

port authority means Port of Melbourne Authority, Port of Geelong Authority or Port of Portland Authority;

S. 3 def. of port authority abolition date insertedby No. 63/1997
s. 3.

port authority abolition date, in relation to a port authority, means the date fixed by the Governor in Council by Order under section 153(2) for the purposes of that port authority;

S. 3 def. of port corporation amended by Nos 51/1996 s.4, 63/1997
ss 5(1), 6(1), 23/2003 s.3(c), 85/2003 ss29(c), 30(1)(b).

port corporationmeans Port of Melbourne Corporation, Port of Hastings Corporation or Victorian Regional Channels Authority;

S. 3 def. of port land amendedby No.23/2003 s.3(d).

port landmeans—

(a)in the case of the port of Melbourne, the port of Melbourne land;

(b)in the cases of the port of Geelong, Portland or Hastings, the land declared by Order in Council made under section5(1) to be the port land of that port;

S. 3 def. of port manager insertedby No. 85/2003 s.28(a).

port manager means—

(a)in the case of a commercial trading port, the person or body who effectively manages, superintends or controls the operation of the port or part of the port, but does not include a tenant or occupier of part of the port unless the tenant or occupier has entered into a port management agreement to manage the operations of that part of the port; or

s. 3

(b)in the case of a local port, the person or body appointed under section 44A to be the port manager of the port;';

S. 3 def. of port of Melbourne inserted by No. 23/2003 s.3(a), amendedby No.23/2003 s.18(c).

port of Melbourne means port of Melbourne land and port of Melbourne waters;

S. 3 def. of Port of Melbourne Corporation insertedby No.23/2003 s.3(a).

Port of Melbourne Corporation means the corporation established under section 10;

S. 3 def. of port of Melbourne land insertedby No.23/2003 s.3(a), amendedby No. 110/2004 s.58(b).

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—

(a)land—

(i)an interest in which (being an interest that is in the nature of a freehold or leasehold interest or a licence) is held by the Port of Melbourne Corporation; and

(ii)that is declared by the Order in Council under section 5(1A) to be port of Melbourne land; and

(b)any land that is deemed to be temporarily reserved under the Crown Land (Reserves) Act 1978 for the purposes of the port of Melbourne by the operation of Part 4;

S.3 def. of port of Melbourne waters insertedby No.23/2003 s.18(a), substituted by No. 85/2003 s.4.

port of Melbourne watersmeans any waters which by Order in Council made under section 5(2) are declared to be port waters of the port of Melbourne;

s. 3

port operatormeans a person who owns the business of, or is responsible for the management and operations of, the port of Geelong, Portland or Hastings or a berth located in one of those ports but does not include a port authority;

S. 3 def. of port property inserted by No. 63/1997
s. 3.

port property, in relation to SEC, has the same meaning as in section 85(3) of the State Electricity Commission Act 1958;

S.3 def. of port waters amendedby No.23/2003 s.18(d), substitutedby No. 85/2003 s.28(b).

port waters, in relation to a port,means the waters declared by Order in Council under section5(2) to be port waters of the port;

s. 3

PPAmeans Port of Portland Authority;

property means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description;

S.3 def. of restricted access area insertedby No.63/2007 s.4(1).

restricted access area means an area that is the subject of a declaration under Division 2 of Part 5A;

rights means all rights, powers, privileges and immunities, whether actual, contingent or prospective;

S. 3 def. of SEC insertedby No. 63/1997
s. 3.

SEC means the State Electricity Commission of Victoria;

S.3 def. of spouse insertedby No.63/2007 s.4(1).

spouse of a person means a person to whom the person is married;

S. 3 def. of Station Pier land insertedby No. 110/2004 s.58(a).

Station Pier land means the land shown outlined in black on the plan lodged in the Central Plan Office and numbered OP119746—A;

s. 3

stevedoringmeans the loading or unloading of the cargo of a vessel and incidental activities such as the handling or storage of cargo or stevedoring equipment at the place at which the cargo is loaded or unloaded;

S. 3 def. of VCA substitutedby No. 85/2003 s.30(1)(c).

VCA means the Victorian Channels Authority as in force immediately before the commencement of section 10 of the Port Services (Port Management Reform) Act 2003;

S. 3 def. of VRCA insertedby No. 85/2003 s.30(1)(c).

VRCA means the Victorian Regional Channels Authority established by Division 2 of Part2;

vesselmeans any kind of vessel that is used, or capable of being used, in navigation by water, however propelled or moved, and includes—

(a)a barge, lighter, floating restaurant or other floating vessel; and

(b)an air-cushion vehicle, or other similar craft, that is used in navigation by water;

S.3 def. of wharfage fee insertedby No.63/2007 s.4(1).

wharfage fee means a fee under section 74;

worksincludes—

s. 3

(a)any change to the natural or existing condition or topography of land;

(b)the removal of vegetation or topsoil;

(c)land reclamation and land decontamination;

(d)the construction, demolition or substantial alteration of any structure in or on land;

(e)dredging.

S. 3(2) inserted by No. 63/2007 s.4(2).

(2)For the purposes of the definition of domestic partner in subsection (1), in determining whether persons are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 275(2) of the Property Law Act 1958 as may be relevant in a particular case.

4Owner of vessel or cargo

s. 4

(1)A reference in this Act to the owner of a vessel includes a reference to—

(a)a person to whom the vessel belongs; or

(b)a person who has chartered the vessel.

(2)A reference in this Act to the owner of a vessel or cargo includes a reference to any person who, whether on the person's own behalf or on behalf of another—

(a)exercises any of the functions of the owner of the vessel or cargo; or

S. 4(2)(b) amendedby Nos23/2003 s.17(Sch. item1), 85/2003 s.30(2).

(b)represents to the Port of Melbourne Corporation, VRCA or a port operator that the person has those functions or accepts the obligation to exercise those functions.

(3)For the purposes of this Act, a person does not cease to be an owner of a vessel because the vessel is mortgaged, chartered, leased or hired to another person.

5Orders in Council

S. 5(1) amendedby No. 85/2003 s.5(1).

(1)The Governor in Council may, by Order published in the Government Gazette, declare any lands, or 2or more areas of lands, to be the port land of the port of Geelong, the port of Portland, the port of Hastings or any other commercial trading port or a local port.

S. 5(1A) insertedby No.23/2003 s.4.

(1A)The Governor in Council may, from time to time, by Order published in the Government Gazette, declare any land, an interest in which (being an interest in the nature of a freehold or leasehold interest or a licence) is held by the Port of Melbourne Corporation, to be port of Melbourne land.

S. 5(2) amendedby No. 85/2003 s.5(1).

(2)The Governor in Council may, by Order published in the Government Gazette, declare any waters, or2 or more areas of waters, to be the port waters of the port of Melbourne, the port of Geelong, the port of Portland, the port of Hastings or any other commercial trading port or a local port.