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Division 2—Repealed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.