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Transport Legislation Amendment (Port Reforms and Other Matters)
Bill 2022
Introduction Print
EXPLANATORY MEMORANDUM
General
The Transport Legislation Amendment (Port Reforms and Other Matters) Bill 2022 provides for the continuation of Ports Victoria, a sector transport agency and Transport Corporation under the Transport Integration Act 2010, revises Ports Victoria's objects and functions, and makes a number of other port-related and miscellaneous amendments to that Act, the Port Management Act 1995 and the Marine Safety Act 2010. It also amends the Rail Management Act 1996, the Tourist and Heritage Railway Act 2010 and other Acts.
Clause Notes
Part 1—Preliminary
Part 1 sets out the main purposes of the Bill and contains the commencement provision.
Clause 1 sets out the main purposes of the Bill. The main purposes are—
to amend the Transport Integration Act 2010—
to provide for the establishment of Ports Victoria and the abolition of the Victorian Ports Corporation (Melbourne) and the Victorian Regional Channels Authority; and
to confer functions and powers, and impose duties, on Ports Victoria under transport legislation that were previously functions,
591322 BILL LA INTRODUCTION 22/3/2022
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powers and duties of the Victorian Ports Corporation (Melbourne) and the Victorian Regional Channels Authority; and
to make further provision in relation to Transport Restructuring Orders; and
to amend the Port Management Act 1995—
to make amendments that relate, or are consequential, to the establishment of Ports Victoria, including the conferral, on Ports Victoria, of functions and powers under that Act that were previously functions and powers of the Victorian Ports Corporation (Melbourne) and the Victorian Regional Channels Authority; and
to provide for the licensing of the provision of towage services and pilotage services; and
to make further provision in relation to the powers of port manager; and
to amend the Marine Safety Act 2010—
to make amendments relating to harbour masters that are consequential to the establishment of Ports Victoria and its new functions and powers; and
to make amendments relating to pilotage services providers that are consequential to the licensing of the provision of pilotage services under the Port Management Act 1995; and
to amend the Rail Management Act 1996 to make miscellaneous amendments to improve the operation of that Act; and
to amend the Tourist and Heritage Railway Act 2010 to enable fees to be prescribed for the processing of applications by tourist and heritage railway operators to be included in the Tourist and Heritage Railway Group Register; and
to make amendments to other Acts that relate, or are consequential, to the establishment of Ports Victoria.
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Clause 2 is the commencement provision, which provides that a number of provisions commence on the day after the day on which the Bill receives the Royal Assent. These are Divisions 4 and 5 of Part 2, Parts 5 and 6, Division 2 of Part 8 and Part 9.
The remaining provisions of the Bill come into operation on a day or days to be proclaimed, or on 1 March 2023 if not proclaimed to commence before that date.
Part 2—Amendment of Transport Integration Act 2010
Part 2 provides for the continuation of Ports Victoria, including its constitution, objects and functions. Ports Victoria was established by the Transport Restructuring Order (Establishment of Ports Victoria) No. 1/2021 (the TRO) as a sector transport agency within the meaning of the Transport Integration Act 2010.
The TRO (made under Division 1 of Part 4B of the Transport Integration Act 2010) conferred on Ports Victoria all of the duties, functions and powers of the Victorian Ports Corporation (Melbourne) (VPCM) and the Victorian Regional Channels Authority (VRCA) under transport legislation, which VPCM and VRCA were divested of as a result of the TRO. Section 65A(3)(b) of the Transport Integration Act 2010 provides that a Transport Restructuring Order has the like force and effect as if it were expressly enacted in the Transport Integration Act 2010.
The TRO provided for Ports Victoria's membership and constitution as a Transport Corporation with a board (Transport Corporation is a defined term in the Transport Integration Act 2010) and amended the constitutions and membership of VPCM and VRCA so that they each became single member corporations.
The TRO also applied, varied or modified various provisions of the Transport Integration Act 2010 and other legislation to give effect to the TRO and contained provisions of savings, transitional and consequential nature.
The Bill continues Ports Victoria as a sector transport agency and a Transport Corporation with a board and modifies its existing constitution, objects and functions to support further reforms to the Victorian ports system. The Bill also abolishes VPCM and VRCA.
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Division 1—Ports Victoria amendments
Clause 3 defines various words and expressions used in the Bill.
Subclause (1) inserts a number of key definitions in section 3 of the Transport Integration Act 2010. These are—
local port, which has the same meaning that it has in the Port Management Act 1995;
port land which encompasses port of Melbourne land (as defined in the Port Management Act 1995) and land declared to be port land of a particular port under section 5 of that Act. The definition is needed in connection with the definition of the Victorian ports system (port waters is also used in that expression; port waters is defined in section 3 of the Transport Integration Act 2010 and has the same meaning as in the Port Management Act 1995);
Ports Victoria which means the body corporate continued under new section 133B;
regional port waters, which is defined in section 141I of the Transport Integration Act 2010, was adopted for the purpose of the TRO. It is required for certain Ports Victoria-related provisions and is inserted in section 3 of the Transport Integration Act 2010 because Division 3B of Part 6 of that Act, which contains the definition, is repealed by the Bill;
Victorian ports system is used in relation to the port reforms in the Bill generally and means all of the components that make up Victoria's system of commercial trading ports and port waters, including—
port land and port waters; and
the physical components of the system such as transport networks and ways including channels and shipping lanes, waterways, roads and railways; freight, port and inter-modal transfer facilities; vessels and vehicles; and control, communication and navigation systems; and
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the management components including operational matters required to operate the Victorian ports system; and
the labour components including harbour masters, pilots and pilotage services providers, towage services providers and all persons involved in vessel, water and landside operations and managing the physical and management components of the system; and
the services components including passenger, freight and any other transport services to move people and goods.
The expression commercial trading port is defined in the Transport Integration Act 2010 to have the same meaning as in the Port Management Act 1995 and comprises 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 of the Port Management Act 1995.
Clause 3(2) to (7) make further amendments to definitions in section 3 of the Transport Integration Act 2010.
Clause 3(2) amends the definition of sector transport agency to include Ports Victoria in new paragraph (e) of that definition.
Clause 3(3) also amends the definition of sector transport agency to repeal paragraphs (f) and (g), which relate to VPCM and VRCA which are abolished by the Bill.
Clause 3(4) amends the definition of transport body to substitute Ports Victoria for VPCM in paragraph (p) of that definition, and to repeal paragraph (r) which relates to VRCA. The effect of this amendment is that Ports Victoria must have regard to the transport system objectives set out in Division 2 of Part 2 of the Transport Integration Act 2010 in exercising its powers and performing its functions under any transport legislation, and to the decision making principles set out in Division 3 of Part 2 of that Act in making decisions under any transport legislation (see sections 24(1) and (2) of the Transport Integration Act 2010). The references to VPCM and VRCA are removed because VPCM and VRCA are abolished by the Bill.
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Clause 3(5) amends the definition of Transport Corporation to substitute Ports Victoria for VPCM. The effect is to apply provisions generally applicable to Transport Corporations in Division 4 of Part 6 of the Transport Integration Act 2010 to Ports Victoria. The purpose of applying the provisions to Ports Victoria includes (but is not limited to) conferring on Ports Victoria the constitution and membership provisions that apply to Transport Corporations, as modified by the Bill. Ports Victoria has the powers and duties of a Transport Corporation in Division 4 of Part 6, and may do and suffer all acts and things that a body corporate may by law do and suffer.
Clause 3(6) amends the definition of Transport Corporation to repeal paragraph (e). Paragraph (e) relates to VRCA, which is abolished by the Bill.
Clause 3(7) repeals the definitions of Victorian Ports Corporation (Melbourne) and Victorian Regional Channels Authority as those bodies are abolished by the Bill.
Clause 4 repeals Divisions 3A and 3B of Part 6 of the Transport Integration Act 2010. Those Divisions relate to VPCM and VRCA. The effect of the amendment is that those bodies will no longer have any duties or functions. As explained, all of VPCM and VRCA's duties, functions and powers under transport legislation were conferred on Ports Victoria by the TRO which took effect on 1 July 2021, and VPCM and VRCA were divested of all such duties, functions and powers on that day. The amendment gives statutory effect to the TRO.
Clause 5 inserts new Division 3 of Part 6 into the Transport Integration Act 2010. The new Division continues Ports Victoria as a sector transport agency and Transport Corporation under the Transport Integration Act 2010 and provides, among other things, for its main objects and functions.
New section 133A contains definitions relevant to the new Division. A key definition is TRO No. 1/2021, which means the Transport Restructuring Order known as the Transport Restructuring Order (Establishment of Ports Victoria) No. 1/2021 dated 16 June 2021 and published in the Government Gazette on 17 June 2021.
New section 133B continues Ports Victoria under the Transport Integration Act 2010.
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New section 133C provides that Ports Victoria is a public entity but does not represent the Crown.
New section 133D sets out the main objects of Ports Victoria.
New section 133D(1) provides that the main objects of Ports Victoria are to manage, and support the management, of port of Melbourne waters, channels in port of Melbourne waters, regional port waters (defined in the Bill) and channels in regional port waters for use on a fair, safe and efficient basis consistent with the Transport Integration Act 2010 vision statement and the transport system objectives. The Transport Integration Act 2010 defines vision statement to mean the statement set out in section 6, and transport system objectives to mean the objectives specified in Division 2 of Part 2 of that Act.
New section 133D(2) provides that, without limiting new section 133D(1), the objects of Ports Victoria include promoting and facilitating trade through commercial trading ports and local ports, supporting the strategic planning and development of the Victorian ports system, participating in emergency management at State level, undertaking operational activities including asset and project management and providing technical and consultancy services in relation to the Victorian ports system. In relation to emergency management, Ports Victoria is a control agency and a support agency under the Emergency Management Act 2013.
New section 133E sets out Ports Victoria's functions.
New section 133E(1) provides that these are—
to establish, provide, and maintain port systems and infrastructure for port land and port waters for which Ports Victoria is responsible (the reference to port land and waters for which Ports Victoria is responsible takes account of the responsibilities of other port bodies including the port of Melbourne operator within the meaning of the Port Management Act 1995); and
to manage and develop, or enable and control the management and development of, port land and infrastructure for which Ports Victoria is responsible; and
to provide navigational control and safety services in State waters other than port waters; and
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to establish and manage channels in the port waters of commercial trading ports; and
to dredge and maintain, in accordance with standards determined under section 199 of the Marine Safety Act 2010, channels in the port waters of commercial trading ports; and
to provide and maintain, in accordance with standards determined under section 199 of the Marine Safety Act 2010, navigation aids in connection with navigation in port land and port waters for which Ports Victoria is responsible; and
to provide and maintain marine safety infrastructure in connection with port land and port waters for which Ports Victoria is responsible; and
to generally direct and control the movement of vessels in port of Melbourne waters and regional port waters in accordance with the Marine Safety Act 2010; and
to provide advice and information to port managers in relation to the integrated planning, development, management and promotion activities for ports; and
to provide advice, guidance and expertise in relation to port and maritime issues to local port managers and waterway managers; and
to engage harbour masters in accordance with the Marine Safety Act 2010; and
to develop standards and codes for navigational safety in relation to the Victorian ports system; and
to promote the sustainable growth of trade carried out through the Victorian ports system; and
to develop and facilitate the development of the cruise ship industry in Victoria; and
any other function conferred on Ports Victoria by the Transport Integration Act 2010 or any other Act.
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New section 133E(2) requires Ports Victoria to publish any code developed for the purposes of its function to develop standards and codes for navigational safety in relation to the Victorian ports system on an Intranet website maintained by Ports Victoria.
New section 133E(3) provides that it is not a function of Ports Victoria to develop strategic or regulatory policy.
New section 133E(4)(a) requires Ports Victoria to carry out its functions consistently with State policies and strategies for the development of the Victorian port and freight networks.
New section 133E(4)(b) requires Ports Victoria to act in a commercially sound manner, to the extent it is possible to do so consistently with new section 133E(4)(a), having regard to a number of matters including: the benefits of increased competition between persons and bodies that provide services related to the operation of the port of Melbourne and regional port waters or State waters in relation to which Ports Victoria is carrying out its functions; the persons living or working in the immediate neighbourhood of the port of Melbourne; the need to conduct research and collect information relating to its performance; and the need to deal efficiently with any complaints relating to its performance.
New section 133E(5) provides that Ports Victoria may perform a function described in new section 133E(1)(d), (e), (f) or (g) in relation to a commercial trading port or channels in the port waters of a commercial trading port by arranging for the port manager of the commercial trading port or another person: to establish and manage and, in accordance with standards developed under section 199 of the Marine Safety Act 2010, to dredge and maintain channels in the port waters of that port; to provide and maintain navigation aids in those waters or channels in accordance with standards determined under that section; and to direct and control the movement of vessels in those waters or channels in accordance with the Marine Safety Act 2010.
New section 133E(6) provides that Ports Victoria may enter into an agreement with a person other than a port manager of a local port or a waterway manager to provide a port, navigation or marine service for a fee or charge. Port managers of local ports and waterway managers are excluded because new section 133G provides for the circumstances where services may be provided
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to those bodies either without a fee or charge, or for a fee or charge that does not exceed the cost of providing the service.
New section 133E(7) provides that Ports Victoria may only enter into an agreement described in new section 133E(6) after consultation with the Secretary to the Department of Transport (the Secretary) and with the approval of the Minister if the service, or a relevant class of service, is to be provided outside Victoria.
New section 133F(1) provides that the Minister, with the approval of the Treasurer, may direct the board of Ports Victoria to perform functions that the Minister considers to be in the public interest but which may cause Ports Victoria financial detriment, to cease to perform such a function or to cease to perform a function that the Minister considers not to be in the public interest.
New section 133F(2) requires the board of Ports Victoria to comply with such a direction.
New section 133F(3) provides that if Ports Victoria satisfies the Treasurer that it has suffered financial detriment as a result of complying with a direction, the Treasurer may determine an amount for which Ports Victoria may be reimbursed by the State, and the Consolidated Fund is appropriated to the extent necessary.
New section 133F(4) provides that "suffering financial detriment" includes a reference to incurring net costs that are greater than would have been incurred if the direction were not complied with.
New section 133G provides that Ports Victoria may provide a prescribed service, or part of a prescribed service, to the port manager of a local port or waterway manager without a fee or charge or, in prescribed circumstances, for a fee or charge that does not exceed the cost of providing the service.
Clause 6 substitutes references to VPCM and VRCA in section 158(6) of the Transport Integration Act 2010 with references to Ports Victoria, and the reference to the Port of Hastings Development Authority to the Port of Hastings Corporation. This is because Ports Victoria is continued in the Transport Integration Act 2010 by the Bill, which also abolishes VPCM and VRCA, and changes the name of the Port of Hastings Development
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Authority to the Port of Hastings Corporation. Section 158 deals with the determination of initial capital of a Transport Corporation.
Clause 7 substitutes references to VPCM and VRCA in section 159(2) of the Transport Integration Act 2010 with references to Ports Victoria, and the reference to the Port of Hastings Development Authority to the Port of Hastings Corporation, for the reasons explained above in relation to clause 6. Section 159 deals with the determination of capital of a Transport Corporation.
Clause 8 substitutes references to VPCM and VRCA in section 160(3) of the Transport Integration Act 2010 with references to Ports Victoria, and the reference to the Port of Hastings Development Authority to the Port of Hastings Corporation, for the reasons explained above in relation to clause 6. Section 160 deals with the repayment of capital to the State by a Transport Corporation.
Clause 9 contains amendments relating to annual reporting requirements applicable to Transport Corporations.
Clause 9(1)(a) substitutes the reference to VPCM in section 164(2) of the Transport Integration Act 2010 with Ports Victoria. This is because VPCM is abolished by the Bill, which continues Ports Victoria. Paragraph (b) substitutes the reference to "section 141H" in section 164(2) with "section 133F" to update the requirement to include a copy of any Ministerial direction relating to public interest functions and a statement of the recipient's response in its annual report (see clause 6).
Clause 9(2) repeals section 164(3), which relates to VRCA, which is abolished by the Bill.
Clause 9(3) amends section 164(4) to substitute the reference to the Port of Hastings Development Authority for the Port of Hastings Corporation which is consequential to the change of that body's name made by the Bill.
Clause 10 contains amendments relating to corporate plan requirements applicable to Transport Corporations. The clause amends section 165(13) of the Transport Integration Act 2010 to substitute Ports Victoria for VPCM and VRCA, for the reasons explained above in relation to clause 6. The effect of the amendment is to apply the modifications to corporate plan provisions in section 165 so that, for example, references to the
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requirement for the board of a Transport Corporation to provide its proposed corporate plan to the Minister are taken to be references to the provision of its plan to the Treasurer and the Minister (the requirements previously applied to VPCM and VRCA). Because Ports Victoria is a sector transport agency, section 165(14) then treats references to the Minister to be references to the Secretary. The clause also substitutes Port of Hastings Corporation for the reference to the Port of Hastings Development Authority which is consequential to the change of that body's name made by the Bill.
Clause 11 contains amendments relating to requirements to follow a Transport Corporation's corporate plan. The clause amends section 167(3) of the Transport Integration Act 2010 to substitute Ports Victoria for VPCM and VRCA, for the reasons explained above in relation to clause 6. The effect of the amendment is to apply the modifications to corporate plan provisions in section 167 so that the requirement for the board of a Transport Corporation to obtain the written approval of the Minister before acting in a manner contrary to the its corporate plan is taken to be a reference to obtaining the written approval of the Treasurer and the Minister (the requirements previously applied to VPCM and VRCA). Because Ports Victoria is a sector transport agency, section 167(4) then treats reference to the Minister to be references to the Secretary. The clause also substitutes Port of Hastings Corporation for the reference to the Port of Hastings Development Authority which is consequential to the change of that body's name made by the Bill.
Clause 12 contains amendments relating to requirements for the board of directors of a Transport Corporation to give notice of significant events. The clause amends section 169(3) of the Transport Integration Act 2010 to substitute Ports Victoria for VPCM and VRCA, for the reasons explained above in relation to clause 6. The effect of the amendment is to apply the modifications in section 169(3) to Ports Victoria, so that the requirement for the board of a Transport Corporation to give such notice to the Minister is taken to be a reference to giving notice to the Treasurer and the Minister (the requirements previously applied to VPCM and VRCA). Because Ports Victoria is a sector transport agency, section 169(4) then treats the reference to the Minister as a reference to the Secretary. The clause also substitutes Port of Hastings Corporation for the reference to the
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Port of Hastings Development Authority which is consequential to the change of that body's name made by the Bill.
Clause 13 inserts a new Part 13 (Transport Legislation Amendment (Ports Reform and Other Matters) Act 2022) into the Transport Integration Act 2010. New Part 13 contains a number of referential and transitional provisions relating to the transition from VPCM and VRCA to Ports Victoria (given initial effect to in the TRO) and makes further Ports Victoria-related amendments.
New section 327 defines amending Act to mean the Bill, and commencement day to mean the day on which Division 1 of Part 2 of the Bill comes into operation.
New section 327 also defines the Victorian Ports Corporation (Melbourne) to mean the body corporate continued under section 141B of the Transport Integration Act 2010 as in force immediately before the commencement day, and Victorian Regional Channels Authority to mean the body corporate continued under section 141J of the Transport Integration Act 2010 as in force immediately before the commencement day.
New section 328(1) provides that on the commencement day VPCM is abolished and the person appointed as Chief Executive of VPCM goes out of office.
The note under new section 328(1) explains that under the TRO, VPCM was restructured so that VPCM consists of one member appointed as Chief Executive of that Corporation.
New section 328(2) provides that on and from the commencement day—
any rights, property and assets that immediately before the commencement day were vested in VPCM are taken to be vested in Ports Victoria; and
any debts, liabilities and obligations of VPCM that existed immediately before that time are taken to be debts, liabilities and obligations of Ports Victoria; and
Ports Victoria is substituted as a party to any proceedings pending in any court to which VPCM was a party immediately before that time; and
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Ports Victoria is substituted as a party to any arrangement or contract entered into by or on behalf of VPCM; and
any reference to VPCM in any Act, subordinate instrument or other document, so far as it relates to any period after that time (and if not inconsistent with the context or subject matter) must be construed as a reference to Ports Victoria.
New section 329(1) provides that on the commencement day VRCA is abolished and the person appointed as Chief Executive of VRCA goes out of office.
The note under new section 329(1) explains that under the TRO, VRCA was restructured so that VRCA consists of one member appointed as Chief Executive of that Corporation.
New section 329(2) provides that on and from the commencement day—
any rights, property and assets that immediately before the commencement day were vested in VRCA are taken to be vested in Ports Victoria; and
any debts, liabilities and obligations of VRCA that existed immediately before that time are taken to be debts, liabilities and obligations of Ports Victoria; and
Ports Victoria is substituted as a party to any proceedings pending in any court to which VRCA was a party immediately before that time; and
Ports Victoria is substituted as a party to any arrangement or contract entered into by or on behalf of VRCA; and
any reference to VRCA in any Act, subordinate instrument or other document, so far as it relates to any period after that time (and if not inconsistent with the context or subject matter) must be construed as a reference to Ports Victoria.
New section 330 provides that, without limiting new sections 328 and 329, on and from the commencement day, any reference to VPCM or VRCA in any instrument of delegation made before that day under section 31, 39 or 64R of the Transport
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Integration Act 2010 is taken to be a reference to Ports Victoria. Section 31 contains the Minister's power of delegation, section 39 contains the Secretary's power of delegation and section 64R contains the Head, Transport for Victoria's power of delegation.
New section 331(1) provides that, without limiting new sections 328 and 329, on and from the commencement day any direction given to VPCM or VRCA by the Secretary under section 38A of the Transport Integration Act 2010 (written directions to sector transport agencies) is taken to be a direction given to Ports Victoria.
New section 331(2) provides that, without limiting sections new 328 and 329, on and from the commencement day any direction given to VPCM or VRCA by the Minister, with the approval of the Treasurer, under section 163 of the Transport Integration Act 2010 before that day is taken to be a direction given to Ports Victoria.
New section 332 provides that, without limiting new sections 328 and 329, on and from the commencement day, any requirement to provide a report or information given to the board of directors of VPCM or VRCA by the Minister or the Treasurer under section 162 of the Transport Integration Act 2010 is taken to be a requirement given to Ports Victoria.
New section 333 provides that, without limiting new sections 328 and 329, on and from the commencement day, any instrument made by VPCM or VRCA or a sub-delegate of those bodies under section 170 of the Transport Integration Act 2010 (which contains the power of a Transport Corporation to delegate) is taken to be made by Ports Victoria.
Division 2—Further Ports Victoria amendments
Clause 14 inserts new section 133E(1)(la) into the Transport Integration Act 2010 which contains an additional function of Ports Victoria, to license pilotage services providers in accordance with the Port Management Act 1995. This provision is intended to commence after the main body of Ports Victoria-related amendments (including provisions containing Ports Victoria's functions) because this function relates to other provisions in the Bill which will be proclaimed to commence at a later date than other Ports Victoria amendments.
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Clause 15 inserts new section 133E(1)(na) into the Transport Integration Act 2010 which contains an additional function of Ports Victoria, to license towage services providers in accordance with the Port Management Act 1995. This provision is intended to commence after the main body of Ports Victoria-related amendments (including provisions containing Ports Victoria's functions) because this function relates to other provisions in the Bill which will be proclaimed to commence at a later date than other Ports Victoria amendments.
Division 3—Port reform amendments
Clause 16 amends the definitions of Port of Hastings Development Authority, sector transport agency, transport body, and Transport Corporation in section 3 of the Transport Integration Act 2010 with the effect that references to the Port of Hastings Development Authority are taken to be references to the Port of Hastings Corporation, reflecting the change of name made by the Bill.
Clause 17 amends the heading to Division 3C of Part 6 of the Transport Integration Act 2010 (which contains provisions relating to the Port of Hastings Development Authority) with the effect that the reference to the Port of Hastings Development Authority is taken to be a reference to the Port of Hastings Corporation, reflecting the change of name made by the Bill.
Clause 18 amends section 141Q of the Transport Integration Act 2010 (which establishes the Port of Hastings Development Authority) so that references to the Port of Hastings Development Authority are taken to be a reference to the Port of Hastings Corporation, reflecting the change of name made by the Bill.
Clause 19 amends section 141R of the Transport Integration Act 2010 (which provides that the Port of Hastings Development Authority does not represent the Crown) so that references to the Port of Hastings Development Authority are taken to be a reference to the Port of Hastings Corporation, reflecting the change of name made by the Bill.
Clause 20 amends section 141S of the Transport Integration Act 2010 (which contains the object of the Port of Hastings Development Authority) so that references to the Port of Hastings Development Authority are taken to be a reference to the Port of Hastings
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Corporation, reflecting the change of name made by the Bill. Clause 20(2) also amends the object of that entity, so that the primary object of the Port of Hastings Corporation is to manage, develop and operate the port of Hastings consistently with the vision statement and the transport system objectives.
Clause 21 amends section 141T of the Transport Integration Act 2010 (which contains the functions of the Port of Hastings Development Authority) so that references to the Port of Hastings Development Authority are taken to be a reference to the Port of Hastings Corporation, reflecting the change of name made by the Bill.
Clause 22 amends section 141U of the Transport Integration Act 2010 (which contains the requirement that the Port of Hastings Development Authority must consult with the Secretary and obtain the approval of the Minister the before acquiring or disposing of land) so that the reference to the Port of Hastings Development Authority is taken to be a reference to the Port of Hastings Corporation, reflecting the change of name made by the Bill.
Clause 23 amends section 141V of the Transport Integration Act 2010 (which contains provisions relating to public interest functions and related matters) so that references to the Port of Hastings Development Authority are taken to be a reference to the Port of Hastings Corporation, reflecting the change of name made by the Bill. The effect of the provision is that the Minister, with the approval of the Treasurer, may direct the board of the Port of Hastings Corporation to perform functions that the Minister considers to be in the public interest but which may cause the Port of Hastings Corporation financial detriment, to cease to perform such a function or to cease to perform a function that the Minister considers not to be in the public interest. Section 141V requires the board of the Port of Hastings Corporation to comply with such a direction and includes provisions that apply if the Port of Hastings Corporation suffers financial detriment as a result of complying with a direction.
Division 4—Restructuring Orders
Division 4 of Part 2 of the Bill contains provisions relating to Transport Restructuring Orders. Transport Restructuring Orders are made under Division 1 of Part 4B of the Transport Integration Act 2010 and must
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specify certain matters. They may, among other things, confer all of the duties, functions and powers under transport legislation (as defined in the Transport Integration Act 2010) of a sector transport agency on the Secretary or another sector transport agency. If all of the agency's duties, functions and powers under transport legislation are so conferred, the first sector transport agency is divested of those duties, functions and powers but continues to exist until abolished by legislation.
Clause 24 amends section 65A of the Transport Integration Act 2010.
Clause 24(1) substitutes section 65A(1)(c). That section currently provides that a Transport Restructuring Order must state if a Transfer Order is required in relation to any proposed restructuring, specifying the property, rights and liabilities to be transferred and whether the transfer of any employees will be necessary. The amendment clarifies that it is instead necessary for a Transport Restructuring Order to state whether a Transfer Order is required in relation to any proposed restructuring and whether the transfer of any employees will be necessary. Transfer Orders must specify the property rights and liabilities to be transferred under Division 2 of Part 4B of the Transport Integration Act 2010 in any event.
Clause 24(2) clarifies section 65A(4)(d) by inserting a reference to functions as well as powers and duties in connection with a Transport Restructuring Order. Section 65A(4) contains provisions relating to what a Transport Restructuring Order may provide for. The amendment aligns with other provisions in Division 1 of Part 4B of the Transport Integration Act 2010 relating to the conferral of functions, powers and duties.
Clause 25 inserts new section 65DA into the Transport Integration Act 2010 and expands the class of functions that may be conferred on a sector transport agency that is divested of all its duties, functions and powers under transport legislation, as explained above, and reimposes certain duties on that agency.
New section 65DA provides that where a Transport Restructuring Order imposes duties and confers functions or powers under transport legislation on a sector transport agency, and provides that those duties, functions and powers are only to be performed or exercised by that sector transport agency on an ongoing basis, and those duties, functions and powers were all of the duties imposed and functions and powers conferred on another sector transport agency ,and that transport sector agency continues to
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exist (which matters are set out in new section 65DA(1)) then, on and after day the day on which the Transport Restructuring Order comes into operation, that transport sector agency is taken to have the functions, powers and duties specified in new section 65DA(2).
These are—
the duty to comply with any direction given to it by the Minister or Secretary under the Transport Integration Act 2010;
the function of providing any support or assistance that the Minister, Secretary and any other transport sector agency requires to enable them to give effect to the Transport Restructuring Order;
the power to do all things that are necessary or convenient to be done for or in connection with, or as incidental to, the performance of the duty to comply with Ministerial and Secretary directions and the function to provide support or assistance to the Minister, Secretary or another sector transport agency; and
the duty to have regard to the transport system objectives in exercising its powers and performing the function described above, which would otherwise apply other than for the divesting of all duties under transport legislation.
Clause 26 makes a statute law revision to section 66N(2) of the Transport Integration Act 2010 to change the words "the another" to "another". Section 66N provides for the transfer of employees who are not employed under Part 3 the Public Administration Act 2004 in relation to a restructure under Part 4B of the Transport Integration Act 2010. The amendment removes a redundant word.
Division 5—Other amendments
Division 5 makes a number of miscellaneous amendments to the Transport Integration Act 2010.
Clause 27 amends section 37(6) and (7) of the Transport Integration Act 2010 in relation to powers of the Secretary to enter land for investigative purposes.
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The clause substitutes section 37(6) and (7) of the Transport Integration Act 2010, which provide for compensation requirements relating to the Secretary's power to enter land and do all things necessary and convenient for investigative purposes to determine whether land should be compulsorily acquired.
New section 37(6) provides that the Secretary is liable to pay compensation (other than rent) to a person with an interest in the land entered under section 37 if, as a direct, natural and reasonable consequence of the entry, the person has either sustained pecuniary loss, or has incurred any expense.
New section 37(7) specifies that such compensation must be claimed and dealt with as if it were a claim under section 47(1) of the Land Acquisition and Compensation Act 1986 (LACA). This new section applies the time limits, procedures and processes for making and determining compensation claims that are relevant to section 47(1) of the LACA (other than rent) to a claim arising from new section 37(6).
The amendment aligns compensation requirements under section 37 of the Transport Integration Act 2010 with compensation requirements applicable to the Suburban Rail Loop Authority relating to similar land entry powers in section 56 of the Suburban Rail Loop Act 2021. The amendment enables a compensation claim to be made in relation to expenses incurred, as well as damages, as it is foreseeable that an owner or other person with an interest in land may be financially impacted by an entry under section 37, even if the land is not damaged by the activities undertaken.
Clause 28 amends section 64L(6) and (7) of the Transport Integration Act 2010 in relation to powers of the Head, Transport for Victoria to enter land for investigative purposes.
The clause substitutes sections 64L(6) and (7) of the Transport Integration Act 2010, which currently provide for compensation requirements relating to the Head, Transport for Victoria's power to enter land and do all things necessary and convenient for investigative purposes, to determine whether land should be compulsorily acquired.
New section 64L(6) provides that the Head, Transport for Victoria is liable to pay compensation (other than rent) to a person with an interest in the land entered under section 64L if, as a direct, natural and reasonable consequence of the entry, the
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person has either sustained pecuniary loss, or has incurred any expense.
New section 64L(7) specifies that such compensation must be claimed and dealt with as if it were a claim under section 47(1) of the LACA. This new section applies the time limits, procedures and processes for making and determining compensation claims that are relevant to section 47(1) of the LACA (other than rent) to a claim arising from new section 37(6).
The amendment aligns compensation requirements under section 64L of the Transport Integration Act 2010 with compensation requirements applicable to the Suburban Rail Loop Authority in relation to similar land entry powers in section 56 of the Suburban Rail Loop Act 2021. The amendment enables a compensation claim to be made in relation to expenses incurred, as well as damages, as it is foreseeable that an owner or other person with an interest in land may be financially impacted by an entry under section 64L, even if the land is not damaged by the activities undertaken.
Clause 29 amends section 125(1)(e) of the Transport Integration Act 2010 which contains provisions enabling Victorian Rail Track (VicTrack) to deal and land and interests in land. The amendment enables VicTrack to grant licences as well as leases over temporarily or permanently reserved Crown land. An express provision is needed to facilitate this because section 8 of the Crown Land (Reserves) Act 1978 provides that any land which has been reserved either temporarily or permanently under section 4 of that Act shall not (except as authorised by the that Act or any other Act) be sold, leased or licensed unless the reservation of that land has been revoked.
Clause 30 amends section 178(1) of the Transport Integration Act 2010 to enable the Director, Transport Safety to delegate any power, duty or function conferred or imposed by or under the Transport Integration Act 2010, the Marine Safety Act 2010, the Bus Safety Act 2009, the Transport (Safety Schemes Compliance and Enforcement) Act 2014 or any other Act to any person. The provision is currently limited by reference to classes of people who may be delegates. The wider power of delegation is needed to enable the Director, Transport Safety to give delegations to people who are engaged by third parties, for example in relation to registration of vessels. The power, while
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wide, is nevertheless limited in scope because of the nature of the Director, Transport Safety's functions and powers.
Clause 31 amends section 3 of the Transport Integration Act 2010 to make a statute law revision to the definition of commercial passenger vehicle. The definition currently provides that the expression has the same meaning as in section 86(1) the Transport (Compliance and Miscellaneous) Act 1983, however the definition is now situated in the Commercial Passenger Vehicle Industry Act 2017.
Part 3—Amendment of Port Management Act 1995
Part 3 provides for amendments to the Port Management Act 1995 in relation to towage, pilotage, local ports and harbour masters. In relation to towage, Division 1 of Part 3 of the Bill replaces the current notification scheme with a new licensing scheme, applicable to all commercial trading ports, which requires towage services providers to be licensed by Ports Victoria before they can provide towage services. In relation to pilotage, Division 2 of Part 3 of the Bill introduces a licensing scheme which requires pilotage services providers to be licensed by Ports Victoria before they can be registered as pilotage services providers under the Marine Safety Act 2010.
Division 3 of Part 3 of the Bill amends the Port Management Act 1995 to make a number of consequential amendments arising from the substantive Ports Victoria related amendments made by the Bill.
Division 4 of Part 3 of the Bill makes other port reform amendments including allowing port managers to undertake activities outside their own port lands and waters. The Division also deals with transitional matters.
Division 1—Towage reforms
Clause 32 substitutes a new Part 4A of the Port Management Act 1995 which replaces the current notification scheme with a new licensing scheme, applicable to all commercial trading ports in Victoria.
Division 1 of new Part 4A deals with preliminary matters, namely definitions applicable to Part 4A.
New section 73A inserts definitions for the purposes of the licensing scheme and the disciplinary provisions relevant to it, including disciplinary action, licence holder, towage service determination, towage service licence and towage vessel
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Division 2 of new Part 4A deals with the new towage service determination.
New section 73B(1) provides that Ports Victoria may make a determination that sets out the requirements and standards applicable to the provision of a towage service in a commercial trading port.
New section 73B(2) sets out the matters that a determination may specify, namely—
the time period for which the determination provisions operate; and
the commercial trading port in which a towage service is to be provided; and
the minimum number of towage vessels; and
the minimum towing and pushing capacity; and
the minimum emergency response capability of such vessels and any specified standards applicable to such capabilities; and
the minimum requirements necessary for such vessels to be fit to provide the service; and
the availability required for such vessels to provide the service; and
the availability required of such vessels that have emergency response capabilities.
New section 73B(3) provides that a determination under subsection (1) may—
be of general or limited application;
differ according to differences in time, place or circumstances;
provide in a specified case or class of case for the exemption of persons or things from any of the provisions of the determination—
whether unconditionally or on specified conditions; and
either wholly or to any extent that is specified.
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The amendment provides Ports Victoria with flexibility in relation to determinations. For example, the provision enables Ports Victoria to make a determination that relates to only part of a port, or to make a determination that sets out differing requirements and standards applicable to different areas of a port.
New section 73B(4) makes provision in relation to the determination period that is determined under new subsection (2)(a), which includes the requirement that the period must not commence until 2 months after the day on which the determination is published in the Government Gazette.
New section 73B(5) provides that a standard specified for the emergency response capabilities for a towage vessel in a determination, must meet or exceed the relevant standard under section 202B of the Marine Safety Act 2010.
New section 73B(6) requires Ports Victoria, in making a towage service determination, to have regard to the requirements necessary for the safe and efficient operation of the applicable commercial trading port and any submissions made in relation to the proposed determination and also requires that Ports Victoria must not make a determination that has greater requirements as to the number, capacity and availability of vessels than those set out in the notice of a proposal to make a determination under new section 73C.
New section 73B(7) provides that a towage service determination must be published in the Government Gazette, that it has effect from the date of publication and operates for the determination period.
New section 73C sets out the process for making a towage service determination. New subsection (1) requires Ports Victoria to publish a notice of a proposal to make a towage service determination in the Government Gazette prior to making the determination.
New section 73C(2) requires Ports Victoria to consult the port manager of the commercial trading port in relation to the towage service determination that will apply to a towage service in the port at least 30 days before publishing a notice under subsection (1).
New section 73C(3) requires the notice to be published at least one month before the determination is made.
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New section 73C(4) requires the notice to set out the proposed form and content of the proposed towage service determination, the fact that written submissions may be made on the proposed determination to Ports Victoria and the time within which they may be made.
New section 73D allows persons likely to be affected by a proposed towage service determination to make written submissions to Ports Victoria about the determination within the time specified in the notice.
Division 3 of new Part 4A deals with the licence required to provide towage services.
New section 73E sets out what a towage service licence authorises. A towage service licences authorises the licence holder to provide the towage service specified in the licence in a commercial trading port specified in the licence. Subsection (2) of new section 73E provides that the authority is subject to any other provisions of the Act and the conditions specified in the Act and in the towage service licence.
New section 73F provides that a person must not provide a towage service in a commercial trading port in respect of which there is a towage service determination in effect unless the person holds a towage service licence that authorises them to provide the towage service specified in the licence in that commercial trading port and is in force. The maximum penalty for this offence is 60 penalty units.
Division 4 of new Part 4A deals with the licensing process, including the requirements for an application for a towage services licence and licence conditions.
New section 73G(1) provides that a person who proposes to provide a towage service in a commercial trading port may apply to Ports Victoria for the issue of a towage service licence.
New section 73G(2) requires an application to—
be in the form determined by Ports Victoria; and
be accompanied by any prescribed fee; and
describe the towage service proposed to be provided; and
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specify the commercial trading port in which the towage service is proposed to be provided; and
contain any other information required by Ports Victoria.
New section 73G(3) allows Ports Victoria to require an applicant to provide further information or material and to require that the information or material be verified.
New section 73H(1) provides that Ports Victoria may, on receiving an application, approve the application and issue a towage service licence, or refuse the application.
New section 73H(2) provides that, in making a decision under new section 73H(1), Ports Victoria must have regard to whether the proposed towage service meets requirements and standards set out in the towage service determination applicable to the provision of the towage service in the relevant commercial trading port and that Ports Victoria may have regard to any other matter that Ports Victoria considers relevant.
New section 73I(1) provides that a towage service licence is subject to any conditions that Ports Victoria thinks fit and specifies in the licence.
New section 73I(2) provides that, without limiting new section 73I(1), Ports Victoria may make a towage service licence subject to a condition that—
the licence holder must provide the towage service specified in the licence in the commercial trading port specified in the licence in a way that meets the requirements and standards set out in the towage service determination that apply to the provision of a towage service in the specified commercial trading port; or
the licence holder must provide the towage service specified in the licence in the commercial trading port specified in the licence that departs, in a specified way, from the requirements and standards set out in the towage service determination that apply to the provision of a towage service in the specified commercial trading port.
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New section 73J provides that a licence holder must comply with the conditions to which the towage service licence is subject. The maximum penalty for this offence is 240 penalty units.
New section 73K provides that a towage service licence takes effect on the day the licence is issued and remains in effect for 5 years, unless it is suspended, cancelled or surrendered. New section 73K also provides that a towage service licence may be renewed under Division 5.
Division 5 of new Part 4A deals with the renewal of a towage services licence.
New section 73L(1) provides that a licence holder may apply to Ports Victoria for the renewal of the towage service licence before the licence expires. New section 73L(2) requires an application to—
be in the form determined by Ports Victoria; and
be accompanied by any prescribed fee; and
describe the towage service proposed to be provided; and
specify the commercial trading port in which the towage service is proposed to be provided; and
contain any other information required by Ports Victoria.
New section 73L(3) allows Ports Victoria to require an applicant to provide further information or material and to require that the information or material be verified.
New section 73M(1) provides that Ports Victoria, on receiving a towage service licence renewal application, may approve the application and renew the licence, or refuse the application.
New section 73M(2) provides that, in making a decision under section 73M(1), Ports Victoria must have regard to whether the proposed towage service described in the application meets requirements and standards set out in the towage service determination, and may also have regard to any other matter that Ports Victoria considers relevant.
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New section 73M(3) provides that, if Ports Victoria approves a licence renewal application, it may amend or remove any condition of the renewed towage service licence or impose a new condition on that licence.
New section 73N provides that a towage service licence may be renewed more than once.
Division 6 of new Part 4A deals with the amendment of conditions on a towage service licence.
New section 73O(1) provides that Ports Victoria may, on its own initiative or on the written application of the licence holder, amend or remove a condition or impose a new condition on a towage service licence.
New section 73O(2) requires Ports Victoria, before taking action on its own initiative, to give written notice to the licence holder of the proposed action and the reasons for it and allow the licence holder to make written representations about the proposed action within 10 business days after being notified or any other period agreed between Ports Victoria and the licence holder.
New section 73O(3) requires Ports Victoria to give written notice of the action taken as soon as practicable after taking the action.
New section 73O(4) requires a notice to include a statement of reasons for the action taken and inform the licence holder of the right to seek review of the decision to take the action under new Division 9. New Division 9 sets an internal review process for certain decisions of Ports Victoria under the Part and also provides for VCAT review of those decisions.
Division 7 of new Part 4A deals with the surrender of a towage service licence.
New section 73P provides that a licence holder may surrender their towage service licence to Ports Victoria.
Division 8 of new Part 4A deals with the disciplinary action that Ports Victoria may take in relation to a licence holder.
New section 73Q provides that Ports Victoria may take disciplinary action against a licence holder if it has reason to believe that—
a licence holder has contravened or is contravening a licence condition; or
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a licence holder has contravened or is contravening Part 4A of the Port Management Act 1995; or
the licence holder obtained the licence because of false or misleading information.
New section 73R provides that Ports Victoria may take disciplinary action against a licence holder by cancelling or suspending the licence.
New section 73S(1) provides that section 73S applies if Ports Victoria proposes to take disciplinary action.
New section 73S(2) requires Ports Victoria to serve a show cause notice on the licence holder that—
specifies the proposed disciplinary action; and
specifies the grounds for the action; and
outlines the facts and circumstances forming the basis for the grounds for the action; and
invites the licence holder to make a written submission within a specified period as to why the action should not be taken; and
states the consequences for the licence holder of not responding to the notice.
New section 73S(3) provides that the period for the licence holder to make a written submission must be at least 20 business days after the day the show cause notice is served on the licence holder.
New section 73T(1) allows the licence holder to request an extension of time in which to make a submission in response to a show cause notice.
New section 73T(2) requires the request to be in writing and set out the reasons for the request.
New section 73T(3) allows Ports Victoria, on receiving a request, to extend the time within which the holder may make a submission.
New section 73T(4) provides that a notice under subsection (3) must state the new date by which the licence holder may make the submission.
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New section 73U(1) provides that if Ports Victoria is satisfied that grounds for taking disciplinary action have been established, it may take any disciplinary action specified in the show cause notice or action that is less severe.
New section 73U(2) requires Ports Victoria to consider any submission made by the licence holder in deciding whether to take disciplinary action.
New section 73U(3) requires Ports Victoria, as soon as practicable, to service written notice on the licence holder of the decision with respect to taking or not taking disciplinary action.
New section 73U(4) provides that if the decision is to take disciplinary action, the written notice must set out the action being taken, the reasons for the decision and the date on which any cancellation or suspension takes effect.
New section 73U(5) requires that the date in the written notice must not be earlier than 5 business days after the day on which the notice under subsection (3) is served.
New section 73V(1) provides that this section applies if a licence holder's towage service licence is suspended.
New section 73V(2) provides that during the period of suspension, the licence is taken not to be in effect, the person is taken not to be a licence holder, and the person is disqualified from applying for a towage services licence.
Division 9 of new Part 4A provides for internal and VCAT review of decisions.
Subdivision 1 provides for the interpretive provisions relating to the review of decisions.
New section 73W(1) sets out the decisions made under new Part 4A that are reviewable and identifies who is eligible to apply for review of a reviewable decision.
New section 73W(2) provides that a reviewable decision does not include a decision that was affirmed, varied or substituted for another decision under new section 73Z.
Subdivision 2 relates to applications for internal review.
New section 73X(1) provides that an eligible person may apply to Ports Victoria for review of a reviewable decision.
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The note at the foot of section 73X(1) states that new Subdivision 3 provides for review by VCAT of a reviewable decision.
New section 73X(2) provides that an application under subsection (1) must be made within—
20 business days after the day on which the decision first came to the eligible person's notice; or
such longer period as Ports Victoria allows.
New section 73X(3) provides that an application under subsection (1) must be made in the manner and form determined by Ports Victoria.
New section 73Y(1) provides that an application under new section 73X for internal review does not affect the operation of the reviewable decision or prevent the taking of any action to implement it unless Ports Victoria stays the operation of the decision pending the determination of the internal review—
on Ports Victoria's own initiative; or
on the application of the applicant for review.
New section 73Y(2) requires Ports Victoria to make a decision on a stay application within 2 business days after the making of that application.
New section 73Y(3) provides that if Ports Victoria has not made a decision in accordance with subsection (2), it is taken to have made a decision to grant a stay.
New section 73Y(4) allows Ports Victoria to attach any conditions to a stay of the operation of a reviewable decision that it considers appropriate.
New section 73Z(1) provides that on receiving an application made in accordance with new section 73X, Ports Victoria must make a fresh decision—
that affirms or varies the reviewable decision; or
that sets aside the reviewable decision and substitutes another decision that it considers appropriate.
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New section 73Z(2) provides that Ports Victoria must give a written notice to the applicant setting out—
its decision under subsection (1) and the reasons for the decision; and
the findings on material questions of fact that led to the decision, referring to the evidence or other material on which those findings were based.
New section 73Z(3) requires Ports Victoria to give a decision notice to the applicant within 20 business days after the application is made.
New section 73Z(4) provides that if Ports Victoria does not comply with subsection (3), it is taken to have made a decision to affirm the reviewable decision.
Subdivision 3 provides for VCAT review of decisions.
New section 73ZA(1) provides that an eligible person may apply to VCAT for review of a decision referred to in the table in new section 73W(1) made by Ports Victoria under new section 73Z, or otherwise.
New section 73ZA(2) requires an application under subsection (1) to be made within 28 days after the later of—
the day on which Ports Victoria's decision was made; or
if, under the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given.
Division 10 deals with miscellaneous matters, namely the register of towage service licences.
New section 73ZB(1) requires Ports Victoria to keep and maintain a register of licence holders.
New section 73ZB(2) provides that the register must set out—
the name and address of each licence holder; and
the date of issue of each towage service licence held by a licence holder; and
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any other information that Ports Victoria determines should be included in the register.
Division 2—Pilotage related amendments
Clause 33 inserts new Part 4B into the Port Management Act 1995. New Part 4B establishes a new licensing scheme for pilotage services providers in pilot required waters.
Division 1 of new Part 4B provides for preliminary matters in relation to the scheme, namely definitions.
New section 73ZC provides new definitions for the purposes of the new licensing scheme, including applicable standards, business day, licence holder, pilotage services licence and pilotage services standards.
New section 73ZD provides that applicable standards are the pilotage services standards and any standards that are prescribed for or with respect to the provision of pilotage services in pilot required waters.
Division 2 of new Part 4B deals with the licence required to provide pilotage services.
New section 73ZE provides that (subject to the Act) a pilotage services licence authorises the licence holder to provide pilotage services specified in the licence in pilot required waters specified in the licence.
New section 73ZF provides that a person must not provide pilotage services in pilot required waters unless the person holds a pilotage services licence that authorises them to provide the pilotage services specified in the licence in those pilot required waters that is in force. The maximum penalty for this offence if committed by a natural person is 20 penalty units and 60 penalty units if committed by a body corporate.
Division 3 of new Part 4B deals with the licensing process in relation to a pilotage services licence.
New section 73ZG(1) provides that a person who proposes to provide pilotage services in pilot required waters may apply to Ports Victoria for the issue of a pilotage services licence.
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New section 73ZG(2) requires an application under subsection (1) to—
be in the form determined by Ports Victoria; and
be accompanied by any prescribed fee; and
describe the pilotage services proposed to be provided; and
specify the pilot required waters in which the pilotage services are proposed to be provided; and
contain any other information required by Ports Victoria.
New section 73ZG(3) allows Ports Victoria to require an applicant to provide further information or material and to require that the information or material be verified.
New section 73ZH(1) requires Ports Victoria, on receiving an application under section 73QE, to approve the application and issue a pilotage services licence if it is satisfied that the pilotage services described in the application meet the applicable standards for the pilotage services that are proposed to be provided or, if it is not so satisfied, refuse the application.
New section 73ZH(2) provides that a pilotage services licence takes effect on the day it is issued and remains in effect unless suspended, cancelled or surrendered.
New section 73ZI(1) provides that the section applies if the Safety Director notifies Ports Victoria under section 171A of the Marine Safety Act 2010 of the cancellation and suspension of a registration of a pilotage services provider under that Act. (New section 171A of the Marine Safety Act 2010 requires the Safety Director to notify Ports Victoria without delay if the Safety Director cancels or suspends a person's registration as a pilotage services provider under Chapter 7 of that Act.)
New section 73ZI(2) requires Ports Victoria, in the case of a notification of the cancellation of registration of the pilotage services provider who is a licence holder, to without delay cancel the pilotage services licence held by that provider.
New section 73ZI(3) requires Ports Victoria, in the case of a notification of the suspension of registration of the pilotage services provider who is a licence holder, to without delay
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suspend the pilotage services licence held by that provider until the day the suspension of registration ends.
New section 73ZJ provides that a licence holder may surrender their licence to Ports Victoria.
Division 4 of new Part 4B deals with pilotage services standards.
New section 73ZK(1) provides that Ports Victoria may determine standards for or with respect to the provision of pilotage services.
New section 73ZK(2) provides that, without limiting subsection (1), standards may do either or both of the following—
require a specified level of knowledge of, or skills and expertise in using, Victorian port navigation systems to ensure pilotage services are provided safely; and
require a specified level of knowledge and understanding of harbour master directions that apply in pilot required waters to ensure pilotage services are provided safely.
New section 73QH(3) provides that standards determined under subsection (1) may—
be of general or limited application;
differ according to differences in time, place or circumstances.
New section 73QH(4) requires Ports Victoria to publish standards it determines under subsection (1) on its internet site.
Division 5 of new Part 4B deals with internal and VCAT review of decisions.
Subdivision 1 provides for the interpretive provisions relating to the review of decisions.
New section 73ZL(1) sets out decisions made under new Part 4B that are reviewable and identifies who is eligible to apply for review of that reviewable decision.
New section 73ZL(2) provides that a reviewable decision does not include a decision that was affirmed, varied or substituted for another decision under new section 73ZO.
Subdivision 2 relates to applications for internal review.
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New section 73ZM(1) provides that an eligible person may apply to Ports Victoria for review of a reviewable decision.
The note at the foot of section 73ZM(1) states that new Subdivision 3 provides for review by VCAT of a reviewable decision.
New section 73ZM(2) provides that an application under subsection (1) must be made within—
20 business days after the day on which the decision first came to the eligible person's notice; or
such longer period as Ports Victoria allows.
New section 73ZM(3) provides that an application under subsection (1) must be made in the manner and form determined by Ports Victoria.
New section 73ZN(1) provides that an application under new section 73ZM for internal review does not affect the operation of the reviewable decision or prevent the taking of any action to implement it unless Ports Victoria stays the operation of the decision pending the determination of the internal review—
on Ports Victoria's own initiative; or
on the application of the applicant for review.
New section 73ZN(2) requires Ports Victoria to make a decision on a stay application within 2 business days after the making of that application.
New section 73ZN(3) provides that if Ports Victoria has not made a decision in accordance with subsection (2), it is taken to have made a decision to grant a stay.
New section 73ZN(4) allows Ports Victoria to attach any conditions to a stay of the operation of a reviewable decision that it considers appropriate.
New section 73ZO(1) provides that on receiving an application made in accordance with new section 73ZM, Ports Victoria must make a fresh decision—
that affirms or varies the reviewable decision; or
that sets aside the reviewable decision and substitutes another decision that it considers appropriate.
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New section 73ZO(2) provides that Ports Victoria must give a written notice to the applicant setting out—
its decision under subsection (1) and the reasons for the decision; and
the findings on material questions of fact that led to the decision, referring to the evidence or other material on which those findings were based.
New section 73ZO(3) requires Ports Victoria to give a decision notice to the applicant within 20 business days after the application is made.
New section 73ZO(4) provides that if Ports Victoria does not comply with subsection (3), it is taken to have made a decision to affirm the reviewable decision.
Subdivision 3 provides for VCAT review of decisions.
New section 73ZP(1) provides that an eligible person may apply to VCAT for review of a decision referred to in the table in new section 73ZL(1) made by Ports Victoria under new section 73ZO, or otherwise.
New section 73ZP(2) requires an application under subsection (1) to be made within 28 days after the later of—
the day on which Ports Victoria's decision was made; or
if, under the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given.
Division 6 deals with miscellaneous matters, namely the register of holders of pilotage services licences.
New section 73ZQ(1) requires Ports Victoria to keep and maintain a register of licence holders.
New section 73ZQ(2) provides that the register must set out—
the name and address of each licence holder; and
the date of issue of each pilotage services licence held by a licence holder; and
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any other information that Ports Victoria determines should be included in the register.
Division 3—Ports Victoria related amendments
Division 3 contains a number of consequential amendments arising from the substantive Ports Victoria-related amendments made by the Bill.
Clause 34 amends section 3(1) of the Port Management Act 1995 to substitute references to VPCM and VRCA (as the case requires) with references to Ports Victoria and to make related amendments.
Clause 34(1)(a) substitutes the reference to VPCM with Ports Victoria in the definition of channel operator and clause 34(1)(b) substitutes the reference to VRCA with Ports Victoria in the definition of port corporation. The effect of the amendments is that Ports Victoria is a channel operator in respect of channels for port of Melbourne waters. In the case of any other port waters, the channel operator is the person who manages channels in those waters under an agreement with Ports Victoria. Ports Victoria (along with the Port of Hastings Corporation, as renamed by the Bill) is defined as a port corporation. The effect of this is to apply Part 2 of the Port Management Act 1995, which contains provisions relating to port corporations, to Ports Victoria, as relevant. An example is the application of provisions requiring a person to pay damages to a channel operator if the person damages property of the channel operator.
Clause 34(1)(c) repeals the definitions of Victorian Ports Corporation (Melbourne) and VRCA which are abolished by the Bill.
Clause 34(1)(d) inserts a definition of Ports Victoria in section 3(1) of the Port Management Act 1995 and gives the expression the same meaning that it has in section 3 of the Transport Integration Act 2010.
Clause 34(2) inserts a new definition of harbour master licence in section 3(1) of the Port Management Act 1995 for the purpose of the harbour master licence amendments made by the Bill. Harbour master licence is defined to have the same meaning that it has in the Marine Safety Act 2010.
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Clause 35 omits the reference to VPCM and substitutes the reference to VRCA with a reference to Ports Victoria in section 4(2)(b) of the Port Management Act 1995. Section 4 sets out what a reference to the owner of a vessel in the Port Management Act 1995 includes for the purposes of that Act. The effect of the amendment is that "owner of a vessel" includes a person who represents to Ports Victoria (among other people) that the person is exercising any of the functions of the owner of the vessel or cargo in question.
Clause 36 substitutes references to VPCM or VRCA with references to Ports Victoria in section 7 of the Port Management Act 1995. The effect of the amendment is that whether an entity is a subsidiary of Ports Victoria is to be determined as if Ports Victoria were a Corporations Act company and the question were determined under that Act.
Clause 37 substitutes references to VRCA with references to Ports Victoria in section 23 of the Port Management Act 1995. The effect of the amendment is that a person who causes damage or economic loss to Ports Victoria is liable to pay damages in respect of that damage or loss.
Clause 38 substitutes a reference to VRCA with a reference to Ports Victoria in section 24 of the Port Management Act 1995. The effect of the amendment is that an owner, master or agent in relation to a vessel may recover the sum paid in damages under section 23 of that Act from a third party whose negligence caused the damage or loss.
Clause 39 substitutes a reference to VPCM with a reference to Ports Victoria in section 49(2)(b) of the Port Management Act 1995. The effect of the amendment is that certain services provided by Ports Victoria are not prescribed services to which price regulation provisions in Part 3 of the Essential Services Commission Act 2001 apply.
Clause 40 substitutes a reference to VPCM with a reference to Ports Victoria in section 63B(a) of the Port Management Act 1995. The effect of the amendment is that Ports Victoria is exempt from the need to obtain a licence in respect of the provision of prescribed services.
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Clause 41 substitutes a reference to VPCM with a reference to Ports Victoria in section 64(4)(c) of the Port Management Act 1995. The effect of the amendment is that Ports Victoria is deemed to be a committee of management of certain temporarily reserved land.
Clause 42 substitutes a reference to VPCM with a reference to Ports Victoria in section 65(b) of the Port Management Act 1995. The effect of the amendment is that Ports Victoria is deemed to be a committee of management of Station Pier land (which is defined in the Port Management Act 1995).
Clause 43 substitutes various references to VPCM in section 66(1), (2), (3) and (4) of the Port Management Act 1995, and in the heading to that section, with references to Ports Victoria. The effect of the amendment is that Ports Victoria is given certain powers in relation to reserved Crown land in respect of which Ports Victoria is the committee of management. An example is the power to grant a lease or licence over that land.
Clause 44 substitutes references to VPCM with references to Ports Victoria in the definition of designated State port entity in section 74AA of the Port Management Act 1995 which contains definitions for the purpose of Part 5 of that Act. The effect of the amendment is to apply provisions in Part 5 of the Port Management Act 1995 relating to port fees to Ports Victoria.
Clause 45 substitutes references to VPCM with references to Ports Victoria in section 74AB of the Port Management Act 1995, and in the note at the foot of paragraph (c) of that section. The effect of the amendment is to apply provisions relating to wharfage fees (being a type of port fee) to Ports Victoria.
Clause 46 substitutes references to VPCM or VRCA (as the case requires) with references to Ports Victoria in section 75(1)(a), (2)(c)(i), (3A) and (4) of the Port Management Act 1995 and in the notes at the foot of section 75(1)(b)(ii) and (3A). The effect of the amendment is to apply provisions relating to the determination of channel fees (being a type of port fee) to Ports Victoria.
Clause 47 substitutes references to VRCA with references to Ports Victoria in section 78(1), (2) and (3) of the Port Management Act 1995. The effect of the amendment is to apply provisions relating to the
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payment of wharfage and channel fees (being types of port fee) to Ports Victoria.
Clause 48 substitutes a reference to VRCA with a reference to Ports Victoria in section 79(1) of the Port Management Act 1995. The effect of the amendment is to apply provisions relating to interest on overdue payments of wharfage and channel fees to Ports Victoria.
Clause 49 substitutes references to VRCA with references to Ports Victoria in section 80(1), (2), (3), (4) and (5) of the Port Management Act 1995. The effect of the amendment is to apply provisions relating to security for payment of wharfage and channel fees to Ports Victoria.
Clause 50 substitutes a reference to VRCA with a reference to Ports Victoria in section 81(1) of the Port Management Act 1995. The effect of the amendment is to apply provisions relating to liability of current owners and agents of vessels to pay channel fees to Ports Victoria.
Clause 51 substitutes a reference to VRCA with a reference to Ports Victoria in section 82 of the Port Management Act 1995. The effect of the amendment is to apply provisions relating to the waiver or refund of wharfage and channel fees to Ports Victoria.
Clause 52 substitutes references to VRCA with references to Ports Victoria in the definition of port waters in section 83 of the Port Management Act 1995, and for references to VPCM or VRCA in the definition of recommending authority. Paragraph (b) of that definition, which relates to VRCA, is omitted. The effect of the amendment is to apply provisions relating to powers to restrict access to certain port areas to Ports Victoria. A consequential amendment to substitute "Division 3 of Part 6" for "Division 3B of Part 6" is also made.
Clause 53 amends section 84(1), (2) and (7) of the Port Management Act 1995 to substitute references to VPCM and VRCA with references to Ports Victoria. Section 84 enables the Minister to declare certain areas of port of Melbourne land or within port of Melbourne waters, and certain other port waters of Ports Victoria, as an area to which access is restricted on the recommendation of the relevant port body. The effect of the amendment is to enable Ports Victoria to make such a recommendation in relation to port
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of Melbourne land, port of Melbourne waters and other port waters for which Ports Victoria is responsible. The Minister may make such a declaration on the recommendation of Ports Victoria. A consequential amendment to substitute "Division 3 of Part 6" for "Division 3B of Part 6" is also made.
Clause 54 amends section 88J of the Port Management Act 1995 to substitute references to VPCM with references to Ports Victoria in the heading and body of the section. Section 88J relates to pollution abatement and enables Ports Victoria to conduct a clean up or cause a clean up to be conducted as Ports Victoria considers necessary, including where pollutants have been or are being discharged, in the case of a pollution incident on port of Melbourne land or into port of Melbourne waters for which Ports Victoria is responsible or where any potentially hazardous substance appears to have been abandoned or dumped on, or is being handled in a manner which is likely to cause an environmental hazard on, that land or waters.
Clause 55 amends section 88K of the Port Management Act 1995 to substitute references to VPCM with references to Ports Victoria in the heading and body of the section. The effect of the amendment is to enable Ports Victoria to recover costs from the person who gave rise to the circumstances that gave rise to the need to conduct a clean up under section 88J of that Act.
Clause 56 amends section 88M(1) and (1A) of the Ports Management 1995 to substitute references to VPCM with references to Ports Victoria. The effect of the amendment is to require a person who proposes to carry out a hazardous port activity in port of Melbourne waters or on port of Melbourne land that is not leased port of Melbourne land, or a person who proposes to carry out a hazardous activity on leased port of Melbourne land, to give notice to Ports Victoria before doing so.
Clause 57 amends section 88AP of the Ports Management Act 1995 to substitute paragraph (a) of the definition of relevant port in order to include a reference to Ports Victoria, in respect of those parts of the port comprising port of Melbourne waters and port of Melbourne land that is not leased port of Melbourne land, and other commercial trading ports. The amendment also repeals paragraph (c) of that definition.
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The reason for making the amendment is so that paragraph (a) of the definition refers to Ports Victoria rather than VPCM, the provision relating to VRCA is omitted and a reference to commercial trading ports generally inserted. The other bodies to whom the provision applies, which are not affected by the amendment, are local port managers and the port of Melbourne operator in respect of part of the port comprising leased port of Melbourne land. The effect of the amendments is to provide Ports Victoria with certain power in relation to goods or things that are abandoned or unclaimed on port land or in port waters for which Ports Victoria is responsible.
Clause 58 amends section 88P(1) of the Ports Management Act 1995 to substitute the reference to VPCM with a reference to Ports Victoria. The effect is to make it an offence for a person to leave any thing unattended in port of Melbourne waters or on port of Melbourne land that is not leased port of Melbourne land for more than one month without the permission of Ports Victoria.
Clause 59 inserts a new Division heading— "Division 1—Offences and liability" into Part 6 of the Port Management Act 1995 before section 89 of that Act.
Clause 60 inserts new Division 2— "Division 2—Ports Victoria may request conditions on harbour master licences" into Part 6 of the Port Management Act 1995.
New section 91AA(1) enables Ports Victoria to at any time request that the Director, Transport Safety impose a condition on the licence of a harbour master engaged for port waters for which Ports Victoria is responsible that relates to one or more of a number of specified matters, which are—
marine incidents within the meaning of the Marine Safety Act 2010; and
operational safety performance; and
participation in training and safety development programmes; and
any prescribed matter.
Such a condition must limits or restrict a function of the harbour master who holds that licence.
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New section 91AA(2) provides that the Director, Transport Safety must not unreasonably refuse to consider a request under new section 91AA(1).
Clause 61 substitutes the reference to VPCM with Ports Victoria in section 97(1) of the Ports Management Act 1995. The effect is to enable Ports Victoria to authorise a person to commence proceedings for an offence against Part 4A or 5B or regulations made under section 98(1)(cb), (cc) or (cd) of that Act.
Division 4—Other port reform amendments
Clause 62 subclause (1) inserts new section 44B(1A) into the Port Management Act 1995 which authorises a port manager to do all things necessary or convenient to enable it to provide a service, or part of a service, that it is directed or authorised to provide under new section 44BA outside the port lands or waters of its local port. (New section 44BA allows the Minister to direct or authorise a port manager of a local port to provide a particular or class of port service or navigation or marine service outside the local port.)
Subclauses (2) and (3) amend section 44B(2) to insert new paragraphs (d) and (e). New paragraph (d) provides that a port manager may exercise its powers outside the port to the extent necessary or convenient to provide a service, or part of a service, that it is directed or authorised to provide under new section 44BA. New paragraph (e) provides that a port manager may exercise its powers outside the port to the extent necessary or convenient in an emergency or to avert an imminent threat of death or serious injury to persons or serious damage to the environment or property.
Clause 63 inserts new section 44BA into the Port Management Act 1995, which provides that the Minister may direct or authorise a port manager of a local port to provide a particular or class of port service or navigation or marine service outside the port lands or waters of its local port.
Clause 64 subclause (1) inserts new subsections (2A) and (2B) into section 44D of the Port Management Act 1995. New subsection (2A) allows the port manager of a local port to charge for carrying out a service, or part of a service, outside its local port, in accordance with a direction or an authorisation under section 44BA. New
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subsection (2B) allows the port manager to impose a charge under subsection (2A) on a commercial basis if directed or authorised under section 44BA.
Subclause (2) amends section 44D(3) of the Port Management Act 1995 to insert references to a service or a part of a service. The effect is that section 44D(3) will require that the amount of a charge imposed under section 44D in respect of a facility, service or part of a service must not exceed the maximum charge (if any) that the regulations state is to be the maximum amount that may be charged by a port manager for the use of such a facility or the provision of such a service or part of a service.
Subclause (3) inserts new subsection (3A) into section 44D of the Port Management Act 1995 that provides that section 44D(3) does not apply if a port manager is directed or authorised under section 44BA to impose a charge on a commercial basis. This means that an amount of a charge in respect of a facility, service or part of a service may exceed the maximum charge prescribed under the regulations if a port manager is directed or authorised by the Minister to impose a charge on a commercial basis.
Subclause (4) amends section 44D(4)(a) of the Port Management Act 1995 to insert a reference to the provision of a service. The effect is that a port manager, in imposing a charge under section 44D, may make allowance for differences in time, place or circumstances relating to the use of a facility or the provision of a service for which the charge is being imposed.
Subclause (5) amends section 44D(6) of the Port Management Act 1995 to insert a reference to receiving a service. The effect is that a port manager must ensure that it does not impose a charge on a person for using a facility or receiving a service unless it gave the person adequate notice of the charge before the person became liable to pay the charge.
Clause 65 substitutes paragraph (ba) of the definition of relevant port authority in section 91J of the Port Management Act 1995 to provide that relevant port authority includes, in the case of a commercial trading port in relation to which an Order under new section 91JA is in force, the entity declared to be the relevant port authority by that Order. The effect is that, if the Minister declares that a particular entity is the relevant port authority for a particular port other than the port of Melbourne and the port of Hastings (which are dealt with in paragraphs (a) and (b) of that
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definition), that declared entity must prepare a Port Development Strategy in accordance with Part 6B of the Port Management Act 1995 at intervals of 5 years. If no such entity is so declared, then the port land owner of the port must prepare the Port Development Strategy for the commercial trading port in question.
Clause 66 inserts new section 91JA into the Port Management Act 1995. New section 91JA(1) enables the Minister, by Order published in the Government Gazette, to declare that a specified entity is the relevant port authority for a specified commercial trading port. The effect is that the specified entity must prepare a Port Development Strategy in accordance with Part 6B of the Port Management Act 1995 at intervals of 5 years as the relevant port authority for the specified commercial trading port.
New section 91JA(2) is a transitional provision. New section 91JA(2) provides that, on and from the commencement of clause 66, Geelong Port Pty Ltd (whose ABN is 50 003 996 594) is taken to be the relevant port authority for the Port of Geelong and that Port of Portland Pty Ltd (whose ABN is 37 072 507 012) is taken to be the relevant port authority for the Port of Portland.
Clause 67 inserts new Part 18 (new sections 188 and 189) into the Port Management Act 1995 which deals with transitional matters arising out of the enactment of the Bill.
New section 188(1) provides that on commencement of section 57 of the Transport Legislation Amendment (Ports Reform and Other Matters) Act 2022, a pilotage services provider is taken to have been issued a pilotage services licence under new Part 4B. This means that pilotage services providers who are currently registered under the Marine Safety Act 2010 do not need to apply for a licence under the new licensing provisions inserted into the Port Management Act 1995 in order to continue providing pilotage services.
New section 188(2) provides that pilotage services provider in section 188 has the same meaning as in section 3(1) of the Marine Safety Act 2010. The effect is that pilotage services provider refers to a provider who is registered under section 241 of the Marine Safety Act 2010 to provide pilotage services.
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New section 189(1) provides that the Governor in Council may make regulations containing provisions of a transitional nature, including matters of an application or savings nature, arising from the result of the enactment of the Transport Legislation Amendment (Ports Reform and Other Matters) Act 2022, including any repeals and amendments made by or as a result of the enactment of that Act.
New section 189(2) provides that regulations made under new section 189 may—
have a retrospective effect to a day on or after a date not earlier than the day the Transport Legislation Amendment (Ports Reform and Other Matters) Act 2022 receives Royal Assent;
be of limited or general application;
differ according to differences in time, place or circumstances;
leave any matter or thing to be decided by a specified person or class of person.
New section 189(3) provides that to the extent that any provision of the regulations made under section 189 takes effect from a date that is earlier than the date of its making, the provision does not operate so as to—
affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its making; or
impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its making.
New section 189(4) provides that regulations made under section 189 have effect despite anything to the contrary in the Port Management Act 1995 or any other Act or subordinate instrument (other than the Transport Legislation Amendment (Ports Reform and Other Matters) Act 2022 or the Charter of Human Rights and Responsibilities Act 2006 which are specifically carved out to ensure that the Charter Act applies to any regulations made under new section 189).
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New section 189(5) provides that neither consultation under section 6, nor the preparation of a regulatory impact statement under section 7 of the Subordinate Legislation Act 1994, are required for any statutory rule proposed to be made under section 189.
New section 189(6) provides for the repeal of section 189 on the second anniversary of the day it comes into operation.
Part 4—Amendment of Marine Safety Act 2010
Part 4 provides for amendments to the Marine Safety Act 2010 in relation to harbour masters and pilotage services providers and for the purposes of conferring the duties, functions or powers that the Victorian Ports Corporation (Melbourne) and the Victorian Regional Channels Authority had under that Act on Ports Victoria.
Division 1—Harbour master and pilotage services amendments
Clause 68 inserts a new section 171A into the Marine Safety Act 2010. New section 171A(1) provides that the section applies if, under Part 4.6 of that Act, the Safety Director cancels or suspends a person's registration as a pilotage services provider under Chapter 7.
New section 171A(2) requires the Safety Director to without delay notify Ports Victoria of the cancellation or suspension of the person's registration.
New section 171A(3) provides that a notification must include the name of the person whose registration under Chapter 7 has been cancelled or suspended and, if the person's registration has been suspended, the dates between which the registration is suspended.
Clause 69 inserts new section 227(4) into the Marine Safety Act 2010 to provide that the Safety Director, having received a request from Ports Victoria under new section 91AA of the Port Management Act 1995 to impose a condition on a harbour master licence and having considered that request, may impose a condition on, or vary any condition of, the harbour master licence that is the subject of Ports Victoria's request. Before taking that action, the Safety Director must first consult the harbour master and the person or body that has engaged them.
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Clause 70 amends section 232 of the Marine Safety Act 2010 to allow harbour masters to give oral directions to pilots. Currently under section 232 of that Act, harbour masters are able to issue written or oral directions with respect to vessels. However, the amendments made by clause 70 confirm that harbour masters may give on the spot directions to pilots.
Subclause (1) substitutes section 232(1) of the Marine Safety Act 2010 with a new section 232(1) that, first, retains the current powers of harbour masters to give written directions for or with respect to vessels entering or within waters for which the harbour master has been engaged, and second, also specifies that harbour masters may give oral directions to pilots who have the conduct of vessels entering or are within pilot required waters. New section 232(1A) essentially repeats the list of non-exhaustive matters under current section 232(1) for which a harbour master may give directions.
Subclause (2) amends section 232(3) of the Marine Safety Act 2010 to ensure that the requirement to publish directions in a manner that makes them readily accessible to users of the port, applies only to the written directions of a harbour master given under new section 232(1)(a).
Subclause (3) amends section 232(4) of the Marine Safety Act 2010 to reflect gender neutral language by substituting the reference to "he or she" with "the harbour master".
Clause 71 inserts subsection (1A) into section 237 of the Marine Safety Act 2010 to create an offence for pilots who, without reasonable excuse, refuse or fail to comply with any direction given under section 232 by a harbour master. The maximum penalty for this offence is 120 penalty units.
Clause 72 amends section 240(1) of the Marine Safety Act 2010 to require persons who apply to be registered as registered pilotage services providers, to first hold a pilotage services licence under the Port Management Act 1995.
Division 2—Other amendments
Clause 73 amends the definition of port management body in section 3 of the Marine Safety Act 2010 to substitute references to VPCM and VRCA with references to Ports Victoria. Clause 73 also repeals the definitions of Victorian Ports Corporation
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(Melbourne) and Victorian Regional Channels Authority and inserts a definition for Ports Victoria which has the same meaning as in section 3 of the Transport Integration Act 2010.
Clause 74 amends section 220 of the Marine Safety Act 2010 to substitute a reference to VPCM with a reference to Ports Victoria, and to substitute references to VRCA with references to Ports Victoria. The effect of the amendment is to require Ports Victoria to ensure that a licensed harbour master is at all times engaged for the port of Melbourne waters, port of Hastings waters, port of Geelong waters and port of Portland waters.
Clause 75 amends section 229(1) of the Marine Safety Act 2010 to substitute the reference to VPCM with a reference to Ports Victoria. The effect of the amendment is to enable Ports Victoria to authorise a person to act as an assistant harbour master for the port of Melbourne waters following consultation with the harbour master for those waters and with the approval of the Safety Director.
Clause 76 amends item 28 of Schedule 1 to the Marine Safety Act 2010 to substitute the reference to VRCA with a reference to Ports Victoria. The effect of the amendment is to enable the Safety Director to develop standards for the dredging and maintenance of channels the navigation of which is under the control of Ports Victoria or a channel operator or any other port management body, local port manager or any waterway manager.
Part 5—Amendment of Rail Management Act 1996
Part 5 amends the Rail Management Act 1996 to clarify the operation of section 38J(1) and to make technical amendments.
Clause 77 paragraph (a) amends section 38J(1) by replacing the reference to "the first financial year after the commencement of the section (the initial financial year)" with "a financial year". Section 38J allows the Minister to specify maximum prices for declared rail transport services. The amendment provides that the Minister may specify maximum prices in any financial year following the commencement of section 38J. Paragraph (b) amends section 38J(3)(a)(ii) and (b) to omit "initial". This amendment is being made as a consequence of the amendment under paragraph (a) and serves to remove any suggestion that the Minister may only
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have specified maximum prices under section 38J in the first financial year following the commencement of that section.
Clause 78 amends section 38K(1) of the Rail Management Act 1996 as a consequence of the amendments to section 38J. It removes the reference to "first" to clarify that the Minister may specify maximum prices under section 38J in any financial year following the commencement of section 38J.
Clause 79 amends section 38M(6)(b) of the Rail Management Act 1996 by removing the reference to section 38J. This amendment is being made because the purpose of section 38M(6)(b) is to provide that new maximum prices specified by the Minister under subsection (4) may be superseded by a subsequent specification of prices. As the specification of maximum prices under section 38J can only occur prior to a specification under section 38M, prices specified under section 38M(4) can never be superseded by prices specified under section 38J.
Clause 80 amends the note at the foot of section 38O(2) of the Rail Management Act 1996 by inserting a reference to section 38K and section 38M(4). This amendment is being made because the purpose of the note is to identify the provisions under which the Minister may specify maximum prices. Currently the note only refers to section 38J. The amendment inserts the other two provisions under which the Minister may specify maximum prices, namely section 38K and section 38M(4).
Clause 81 amends section 38X(1) of the Rail Management Act 1996 to omit "initial". Section 38X(1) refers to the maximum prices specified by the Minister under section 38J as the "initial" maximum prices specified. The reference to "initial" is being omitted to remove any doubt that the Minister may specify maximum prices under section 38J in the first or subsequent financial years following the commencement of that section.
Part 6—Amendment of Tourist and Heritage Railway Act 2010
Part 6 of the Bill makes an amendment to the Tourist and Heritage Railway Act 2010 to clarify that an application made by a tourist and heritage railway operator to be included in the Tourist and Heritage Railway Group Register is only required to be accompanied by a prescribed fee if such a fee is actually prescribed.
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Clause 82 amends section 24(2) of the Tourist and Heritage Railways Act 2010 to split the existing provision and provide that a fee may not necessarily be prescribed to accompany an application by a tourist and heritage railway operator to be included in the Tourist and Heritage Railway Group Register.
Part 7—Amendment of Transport (Safety Schemes Compliance and Enforcement) Act 2014
Part 7 of the Bill amends the Transport (Safety Schemes Compliance and Enforcement) Act 2014 to make amendments consequential to provisions enabling Ports Victoria to request that the Safety Director impose a condition on the harbour master licence of a harbour master.
Clause 83 inserts a definition of harbour master licence into section 3 of the Transport (Safety Schemes Compliance and Enforcement) Act 2014 to support provisions relating to the imposition or variation of conditions on a harbour master licence by the Safety Director following a request from Ports Victoria in relation to the same. Harbour master licence has the same meaning as in the Marine Safety Act 2010.
Clause 84 inserts new section 120(3) into the Transport (Safety Schemes Compliance and Enforcement) Act 2014. This provides that a transport safety officer appointed under that Act has the following functions—
to provide information and advice about compliance with a harbour master licence;
to require compliance with a harbour master licence;
to investigate contraventions of a harbour master licence;
to assist in the prosecution of offences relating to the alleged contravention of a harbour master licence.
The purpose of the amendment is to ensure that transport safety officers are sufficiently empowered to enforce conditions imposed on a harbour master licence following a request to the Safety Director from Ports Victoria to do so, if the Safety Director determines that a condition should be imposed or varied.
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Part 8—Amendment of other Acts
Part 8 of the Bill provides for consequential amendments to other Acts due to the continuation of Ports Victoria and the change in name of the Port of Hastings Development Authority to Port of Hastings Corporation.
Division 1—Borrowing and Investment Powers Act 1987
Clause 85 amends Schedule 1 to the Borrowing and Investment Powers Act 1987 to insert new item 7C for Ports Victoria, making Ports Victoria an Authority for the purposes of that Act and enabling Ports Victoria to access borrowing and investment powers under specified sections of that Act, such as to obtain a financial benefit by way of overdraft of account having obtained the prior approval of the Treasurer. Clause 85 also consequentially updates a reference in item 7B of Schedule 1 to the Port of Hastings Development Authority to instead refer to Port of Hastings Corporation, and repeals items 7A and 20A, which relate to VPCM and VRCA.
Division 2—Conservation, Forests and Lands Act 1987
Clause 86 inserts new paragraph (f) into section 11(1) of the Conservation, Forests and Lands Act 1987 to clarify that the Minister administering the Fisheries Act 1995 may delegate various functions and powers to the Victorian Fisheries Authority or the Chief Executive Officer of that Authority.
Division 3—Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016
Clause 87 amends the definition of Port Corporation in section 3 of the Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 to substitute the reference to VPCM with reference to Ports Victoria, and repeals paragraph (e) of the definition of public sector entity, which relates to VRCA. The Port Corporation is a public sector entity for the purposes of that Act and Ports Victoria takes the place of VPCM and VRCA as a consequence of the amendment.
Clause 87 also updates the reference to the Port of Hastings Development Authority in paragraph (d) of the definition of public sector entity to instead refer to the Port of Hastings Corporation.
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Division 4—Docklands Act 1991
Clause 88 inserts a definition of Ports Victoria in section 3 of the Docklands Act 1991 and provides that the term has the same meaning as in section 3 of the Transport Integration Act 2010.
Clause 89 amends section 28(2) of the Docklands Act 1991 to omit reference to VPCM, and to substitute a reference to VRCA with reference to Ports Victoria. The reference to "Corporation, Authority" is also omitted because it is no longer necessary following the preceding amendments. The effect of the changes is that Development Victoria must consult Ports Victoria (among others) before taking certain actions in relation to transport and port assets under section 28(1) of that Act.
Clause 90 amends section 32(1)(a) of the Docklands Act 1991 so that instead of referring to land divested from VPCM and VRCA revesting in "that Authority or Corporation", the paragraph instead refers to such land vesting in Ports Victoria. The effect is that the Governor in Council may by Order published in the Government Gazette declare that land divested under that Act from VPCM or VRCA vests in Ports Victoria.
Subclause (2) also inserts a new paragraph (b) in section 32(1) of the Docklands Act 1991 to provide that the Governor in Council may by Order published in the Government Gazette declare that land divested under that Act from Ports Victoria revests in Ports Victoria.
Subclause (3) inserts a new section 32(3) into the Docklands Act 1991 to provide for definitions of VPCM and VRCA for the purposes of section 32 of that Act. VPCM and VRCA are defined to have the same meaning as each of those terms in section 3 of the Transport Integration Act 2010 as in force immediately before the commencement of section 5 of the Transport Legislation Amendment (Ports Reform and Other Matters) Act 2022.
Division 5—Fire Rescue Victoria Act 1958
Clause 91 amends section 32B(5) of the Fire Rescue Victoria Act 1958 to substitute a reference to VPCM with a reference to Ports Victoria. The reference to "that Corporation" is also amended to instead refer to Ports Victoria. The effect of the changes is that the senior member of operational staff must so far as practicable
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consult with a designated officer of Ports Victoria in certain circumstances when an alarm of fire is received.
Division 6—Land Act 1958
Clause 92 amends section 385(2) of the Land Act 1958 to substitute a reference to VPCM with a reference to Ports Victoria, and to repeal paragraph (f) of that section which relates to VRCA. The effect of the changes is that although section 385(1) provides that the bed and banks of certain watercourses remain, and must be taken always to have remained, the property of the Crown despite the alienation of the land, section 385(1) does not affect any right of Ports Victoria in the bed and banks and soil of the River Yarra and of all other public rivers, creeks and watercourses within the metropolis.
Division 7—Marine (Drug, Alcohol and Pollution Control) Act 1988
Clause 93 amends section 3 of the Marine (Drug, Alcohol and Pollution Control) Act 1988 to substitute a reference to Ports Victoria for a reference to VPCM in paragraph (a) of the definition of port management body and to substitute a reference to Ports Victoria for a reference to VRCA in paragraph (b)(i), (ii) and (iii) of that definition. The definitions of VPCM and VRCA are repealed, and a definition of Ports Victoria is inserted. Ports Victoria has the same meaning as in section 3 of the Transport Integration Act 2010. The effect is to apply certain provisions of the Act to Ports Victoria, such as the power of the Secretary to direct a specified person or body (defined to include a port management body) to participate in the Victorian Marine Pollution Contingency Plan by preparing and planning for marine pollution incidents (including by providing and maintaining equipment and training personnel) as specified in the direction.
Division 8—Suburban Rail Loop Act 2021
Clause 94 amends section 56 of the Suburban Rail Loop Act 2021 to make a statue law revision. The clause substitutes section 56(9) of the Suburban Rail Loop Act 2021 with a new section 56(9) which removes a duplicated reference to the words "as a consequence of the entry".
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Division 9—Transport (Compliance and Miscellaneous) Act 1983
Clause 95 amends section 230L(1)(b) of the Transport (Compliance and Miscellaneous) Act 1983 to substitute a reference to Ports Victoria for a reference to VPCM. The effect is to enable the Secretary to appoint a person employed by Ports Victoria as a port safety officer for the port of Melbourne.
Division 10—Treasury Corporation of Victoria Act 1992
Clause 96 amends section 36A of the Treasury Corporation of Victoria Act 1992 to substitute a reference to Ports Victoria for a reference to VRCA in the definition of public authority which applies in Part 3A of that Act, and to omit reference to VPCM from that definition. The effect is to apply provisions relating to financial obligations of public authorities to Ports Victoria. It also consequentially updates a reference to the Port of Hastings Development Authority in the definition of public authority to instead refer to the Port of Hastings Corporation.
Clause 97 amends Schedule 1 to the Treasury Corporation of Victoria Act 1992, which specifies the constituting Act (as defined in section 36A of that Act) for each public authority that Part 3A of that Act applies to, to update certain references. The updates to references include amendments to a reference to the Port of Hastings Development Authority to instead refer to the Port of Hastings Corporation, to omit references to VPCM and VRCA and to insert a reference to Ports Victoria and its constituting Act, being the Transport Integration Act 2010.
Part 9—Repeal of this Act
Part 9 of the Bill provides for the repeal of the amending Act.
Clause 98 provides for the automatic repeal of the amending Act on 1 March 2024. The repeal of the amending Act does not affect in any way the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).