Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016

Authorised by the Chief Parliamentary Counsel Authorised Version i Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 TABLE OF PROVISIONS Section Page Part 1—Preliminary 1 1 Purposes 1 2 Commencement 2 3 Definitions 3 4 Meaning of port assets 6 5 Meaning of transfer 6 6 Words and expressions defined in Corporations Act 8 7 Associated assets 8 8 Functions for the purposes of an authorised transaction 8 9 Act to bind the Crown 9 10 Extraterritorial operation of Act 9 Part 2—Authorised transactions 10 Division 1—Transfer of port assets 10 11 Authorised transfer of port assets 10 12 Proceeds of transaction 11 Division 2—The Victorian Transport Fund 13 13 Victorian Transport Fund 13 14 Payments into the Fund 13 15 Payments out of the Fund 14 16 Delegation of power to authorise payments 16 Part 3—Facilitating authorised transactions 17 Division 1—Premier's functions 17 17 Premier's functions 17 18 Manner of effecting authorised transaction 17 Division 2—Functions of the Port Corporation 17 19 Additional functions of the Port Corporation 17 20 Direction and control of the Port Corporation 18 21 Immunity of directors and officers of the Port Corporation 18 -- 1 of 198 -- Section Page ii Authorised by the Chief Parliamentary Counsel Division 3—Transaction entities 19 22 Establishment of statutory corporations as transaction entities 19 23 Establishment of companies as transaction entities 21 24 Designation of subsidiary company of the Port Corporation as transaction entity 21 25 Transaction entity does not represent the State 22 26 Functions of transaction entities 22 27 Direction and control of transaction entities 22 28 Immunity of directors and officers of transaction entity 23 Part 4—Arrangements for transfer of port assets 25 Division 1—Transfer orders 25 29 Making of transfer orders 25 30 Vesting of assets, rights and liabilities in transferee 25 31 Terms and conditions of transfer order 26 32 Consideration for vesting 26 33 Transfer subject to encumbrances 26 34 Substitution of party to agreement 27 35 Transfer of interests in land 27 36 Transfer of rights and interests in vehicles and recreational vessels 28 37 Confirmation of vesting 28 38 Determinations by Premier 28 39 Amendment of Land Titles Register 29 40 Amendment of VicRoads vehicles register 29 41 Evidence 30 Division 2—Grant of relevant authorisations 30 42 Grant of relevant authorisations 30 Part 5—Arrangements relating to transfer of Port Corporation staff 33 43 Definitions 33 44 Meaning of employment guarantee period 35 45 Designation of a private sector employer 35 46 Temporary transfers (secondments) 35 47 Transfers to private sector employment of Port Corporation executive employees 36 48 Limitation on changes to terms and conditions of transferred employees 36 49 Continuity of entitlements of transferred employees 38 Part 6—Crown land for the purposes of authorised transactions 40 Division 1—Application of Part 40 50 Land Acts and certain land provisions do not apply 40 -- 2 of 198 -- Section Page iii Authorised by the Chief Parliamentary Counsel Division 2—Removal of reservations on land 40 51 Revocation of reservations 40 52 Revocation of reservations—part of reservation 40 53 Effect of revocation of reservation 41 54 Preservation of leases and licences 42 Division 3—Leasing and licensing of Crown land 44 55 Grant of lease or licence of Crown land for the purposes of an authorised transaction 44 Part 7—General 47 Division 1—General matters relating to authorised transactions 47 56 Severance of fixtures 47 57 Protection of contractual and other obligations 48 58 Compensation not payable 49 59 Port of Melbourne leases 50 Division 2—Compensation payments under authorised transaction related agreements or deeds 53 Subdivision 1—Preliminary 53 60 Definitions 53 61 Meaning of Port Growth Regime payment provision 56 62 Meaning of Port Growth Regime waiver provision 57 63 Relevant legislation for the purposes of the Essential Services Commission Act 2001 58 64 Ministerial guidelines about capacity expansion proposals 58 Subdivision 2—Restriction on compensation payments 58 65 Compensation not payable or capped in certain cases 58 Subdivision 3—Approval of capacity expansion proposals by Minister 62 66 Approval of material increases in capacity for the handling of international containers at the port of Melbourne 62 Subdivision 4—Certification of capacity expansion proposals by Commission 63 67 Application 63 68 Application for certification 63 69 Decision on certification by Commission 64 70 Inquiries for the purposes of decisions on certification 65 71 Draft report to be provided to applicant 65 -- 3 of 198 -- Section Page iv Authorised by the Chief Parliamentary Counsel Subdivision 5—Least cost capacity expansion principles Order 65 72 Least cost capacity expansion principles Order 65 73 When a least cost capacity expansion principles Order takes effect 66 74 Limitation on amending or revoking a least cost capacity expansion principles Order 66 75 Circumstances in which a least cost capacity expansion principles Order may be amended 66 76 Circumstances in which a least cost capacity expansion principles Order may be wholly revoked 66 Division 3—Operation of other laws 67 77 Excluded matter for Corporations Act 67 78 State taxes and fees 67 79 Application of Borrowing and Investment Powers Act 1987 69 80 Operation of Public Administration Act 2004 69 81 Operation of State Owned Enterprises Act 1992 69 82 Operation of Transport Integration Act 2010 69 83 No land tax is payable 69 84 Rates under Local Government Act 1989 69 85 Inconsistency with prescribed legislation 69 Division 4—Miscellaneous 70 86 Delegation 70 87 Orders 70 Division 5—Regulations 71 88 Regulations 71 Part 8—Transaction-related amendments 72 Division 1—Amendment of Transport Integration Act 2010 72 89 Definition 72 90 Object of Port of Melbourne Corporation 72 91 Functions of Port of Melbourne Corporation 73 92 New section 141EA inserted 76 93 Dredging by Port of Melbourne Corporation 76 Division 2—Amendment of Port Management Act 1995 76 94 Definitions 76 95 Owner of vessel or cargo 78 96 New section 4A inserted 78 97 Accountability for damage 78 98 Liability of certain persons 79 99 New section 44H substituted and new sections 44HAA and 44HA inserted 79 100 Notice of annual licence fee 81 -- 4 of 198 -- Section Page v Authorised by the Chief Parliamentary Counsel 101 Method of payment of annual licence fee 82 102 New sections 44M and 44N inserted 82 103 Definitions 84 104 Application of Part 87 105 New section 48 substituted and new section 48A inserted 88 106 Price regulation—prescribed services 89 107 New Division 2 of Part 3 inserted 91 108 New Divisions 2A to 2D of Part 3 inserted 96 109 New Division 3 heading substituted 120 110 New section 53 substituted 120 111 General power to make determinations 123 112 New Division heading inserted 124 113 New section 54A inserted 124 114 Standards and conditions of service and supply 124 115 New Division heading inserted 125 116 Division 5 of Part 3 substituted 125 117 New Division 6 of Part 3 inserted 131 118 Towage requirements determination 131 119 Process for making a towage requirements determination 132 120 Determination of towage conditions 132 121 Limitation on making towage conditions determinations 133 122 Process for making towage conditions determination 133 123 New sections 74AA and 74AB inserted 134 124 Wharfage fees—port of Melbourne 135 125 Channel fees 136 126 Payment of wharfage and channel fees 138 127 Interest on overdue payments 138 128 Security for payment of wharfage and channel fees 139 129 Liability of current owners and agents 139 130 Waiver or refund of wharfage or channel fees 139 131 Definitions for the purposes of Part 5A 139 132 Making a declaration of restricted access area 139 133 Effect of declaration 140 134 Pollution abatement by Port of Melbourne Corporation 140 135 New section 88JA inserted 140 136 Recovery of costs of clean up by Port of Melbourne Corporation 141 137 New section 88KA inserted 141 138 Hazardous port activity notice 142 139 New section 88P substituted 142 140 Removal of things 143 141 Powers when moving things 143 142 Requirement to make enquiries as to owner of thing 143 143 Disposal of thing 144 144 Recovery of costs 144 145 Payment of compensation 145 146 Proceeds of disposal where owner not located 145 -- 5 of 198 -- Section Page vi Authorised by the Chief Parliamentary Counsel 147 New Part 5C inserted 145 148 New section 91BA inserted 158 149 Port manager's responsibilities for management plans 158 150 Safety and environment management plans 158 151 Audits of compliance 159 152 Ministerial directions 159 153 Reporting 159 154 Definitions for the purposes of Part 6B 160 155 Port Development Strategy 160 156 New Part 6C inserted 160 157 Regulations 166 Division 3—Amendment of Marine Safety Act 2010 166 158 Definitions 166 159 Principle of shared responsibility 167 160 New Part 2.2A inserted 167 161 New section 200 substituted 168 162 Offence to fail to comply with standard determined under this Part 168 163 New Part 5.2A inserted 169 164 Provision or maintenance of navigation aids by Safety Director 171 165 Recovery of costs 171 166 Acquisition of land 171 Division 4—Amendment of Marine (Drug, Alcohol and Pollution Control) Act 1988 172 167 Definitions 172 Division 5—Amendment of Essential Services Commission Act 2001 172 168 Definitions 172 169 Order declaring a regulated industry 173 170 Right of appeal 173 171 Appeal panel 176 Division 6—Amendment of Land Act 1958 178 172 Definitions for the purposes of Part XII 178 173 Crown property in beds and banks of certain watercourses 178 Division 7—Repeal of amending Part 179 174 Repeal of amending Part 179 -- 6 of 198 -- Section Page vii Authorised by the Chief Parliamentary Counsel Part 9—Port of Melbourne Corporation name change amendments 180 Division 1—Amendment of Transport Integration Act 2010 180 175 Definitions 180 176 Division heading substituted 180 177 Port of Melbourne Corporation name change to Victorian Ports Corporation (Melbourne) 181 Division 2—Consequential amendments 181 178 Reference to Port of Melbourne Corporation 181 179 Consequential amendments 182 Division 3—Repeal of amending Part and Schedule 1 182 180 Repeal of amending Part and Schedule 1 182 Schedule 1—Consequential amendments 183 1 Borrowing and Investment Powers Act 1987 183 2 Docklands Act 1991 183 3 Land Act 1958 183 4 Marine Safety Act 2010 183 5 Marine (Drug, Alcohol and Pollution Control) Act 1988 184 6 Metropolitan Fire Brigades Act 1958 184 7 Port Management Act 1995 184 8 Transport Integration Act 2010 188 9 Transport (Compliance and Miscellaneous) Act 1983 190 10 Treasury Corporation of Victoria Act 1992 190 ═══════════════ Endnotes 191 1 General information 191 -- 7 of 198 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016† No. 10 of 2016 [Assented to 22 March 2016] The Parliament of Victoria enacts: Part 1—Preliminary 1 Purposes The main purposes of this Act are— (a) to authorise and facilitate transactions under which land in the port of Melbourne is leased, and assets of the Port of Melbourne Corporation are disposed of, to a private sector entity; and Victoria -- 8 of 198 -- Part 1—Preliminary Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 2 Authorised by the Chief Parliamentary Counsel (b) to establish the Victorian Transport Fund into which the proceeds of transactions referred to in paragraph (a) are to be paid; and (c) to guarantee the employment entitlements of employees of the Port of Melbourne Corporation who become employees of a private sector entity in connection with the transactions referred to in paragraph (a); and (d) to amend the Transport Integration Act 2010 and the Port Management Act 1995 to revise the Port of Melbourne Corporation's functions and powers to reflect the port of Melbourne's operation by the private sector entity and the Port of Melbourne Corporation's continuing role in relation to the port; and (e) to amend the Port Management Act 1995 and the Essential Services Commission Act 2001 to establish a new licensing and economic regulatory framework to apply to the private sector entity that will be providing services at the port of Melbourne through its operation of the port; and (f) to amend the Marine Safety Act 2010 to ensure that the private sector entity operating the port of Melbourne, when carrying out activities at the port, is subject to marine safety duties; and (g) to make consequential amendments to other Acts. 2 Commencement (1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed. -- 9 of 198 -- Part 1—Preliminary Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 3 Authorised by the Chief Parliamentary Counsel (2) If a provision of this Act does not come into operation before 30 June 2017, it comes into operation on that day. 3 Definitions In this Act— assets means any legal or equitable estate or interest (whether present or future, whether vested or contingent) in real or personal property of any description; associated assets means any assets, rights and liabilities designated under section 7 as associated assets; authorised transaction means a transfer of port assets authorised by Part 2; Crown land includes a stratum of Crown land; exercise, in relation to a function, includes perform a duty; function includes power, authority or duty; lease includes— (a) concurrent lease; and (b) sublease, sublease of a sublease or any further sublease; and (c) concurrent sublease, concurrent sublease of a concurrent sublease or any further concurrent sublease of a concurrent sublease; liabilities means all liabilities, duties and obligations, whether actual, contingent or prospective; licence includes sublicence, sublicence of a sublicence or any further sublicence; port assets has the meaning given by section 4; -- 10 of 198 -- Part 1—Preliminary Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 4 Authorised by the Chief Parliamentary Counsel Port Corporation means the Port of Melbourne Corporation within the meaning of the Transport Integration Act 2010; port of Melbourne has the same meaning as in the Port Management Act 1995; port of Melbourne seabed means the Crown land comprising the area of waters that are port of Melbourne waters and, to avoid doubt, includes any stratum of that land; port of Melbourne waters has the same meaning as in the Port Management Act 1995; private sector entity means any person other than a public sector entity; public sector entity means any of the following— (a) the State; (b) the Minister; (c) the Port Corporation; (d) the Port of Hastings Development Authority within the meaning of the Transport Integration Act 2010; (e) the Victorian Regional Channels Authority within the meaning of the Transport Integration Act 2010; (f) a public entity within the meaning of the Public Administration Act 2004; (g) any other person acting on behalf of the State; (h) a corporation established under section 22; (i) a company established in accordance with section 23, but only while all the shares in the company are held by or on -- 11 of 198 -- Part 1—Preliminary Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 5 Authorised by the Chief Parliamentary Counsel behalf of an entity referred to in paragraphs (a) to (h); (j) a wholly-owned subsidiary of an entity referred to in paragraphs (c) to (i); relevant land Ministers means— (a) in sections 51 and 52, the Minister administering the Crown Land (Reserves) Act 1978, the Minister administering the Coastal Management Act 1995 and the Minister administering Part IX of the Land Act 1958; and (b) in section 55, the Minister administering the Coastal Management Act 1995 and the Minister administering Part IX of the Land Act 1958; rights means all rights, powers, privileges and immunities, whether actual, contingent or prospective; transaction arrangement means a transaction, agreement or other arrangement entered into by or on behalf of a public sector entity for the purposes of an authorised transaction; transaction entity means— (a) a corporation established under section 22; or (b) a company established in accordance with section 23; or (c) a company designated under section 24; transaction proceeds means the proceeds of the transfer of port assets to a private sector entity under an authorised transaction; -- 12 of 198 -- Part 1—Preliminary Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 6 Authorised by the Chief Parliamentary Counsel transfer, in relation to port assets, has the meaning given by section 5; transfer date means the date of coming into effect of a transfer order; transfer order means an order made under Division 1 of Part 4; transferee means the person or body in whom any assets, rights and liabilities are vested by a transfer order; transferor means the person or body from whom any assets, rights or liabilities are divested by a transfer order; vehicle has the same meaning as in the Road Safety Act 1986; Victorian Transport Fund means the Fund established under section 13. 4 Meaning of port assets (1) Port assets are the following— (a) the assets, rights and liabilities of the Port Corporation; (b) associated assets. (2) Port assets include assets, rights and liabilities vested in a public sector entity that were port assets before their transfer to a public sector entity for the purposes of an authorised transaction. (3) However, assets, rights and liabilities cease to be port assets when they are transferred (other than under a lease or licence) to a private sector entity for the purposes of an authorised transaction. 5 Meaning of transfer (1) A transfer, in relation to port assets, includes the sale, lease or licensing of port assets, and the creation and transfer of any interest in port assets. -- 13 of 198 -- Part 1—Preliminary Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 7 Authorised by the Chief Parliamentary Counsel (2) To avoid doubt, for the purposes of subsection (1) each of the following is a creation and transfer of an interest in port assets— (a) a declaration of trust relating to port assets the specification of which forms part of the declaration of trust or part of the transaction constituted by the declaration of trust; (b) a surrender of an interest in port assets; (c) a change in the beneficial ownership of port assets. (3) In this section— beneficial ownership includes, but is not limited to, ownership of assets by a person as trustee of a trust; change in beneficial ownership includes, but is not limited to the following— (a) the creation of an asset; (b) the extinguishment of an asset; (c) a change in equitable interests in an asset; (d) an asset becoming the subject of a trust; (e) an asset ceasing to be the subject of a trust; declaration of trust means any declaration (other than by a will or testamentary instrument) that any identified asset vested or to be vested in the person making the declaration is or is to be held in trust for the person or persons, or the purpose or purposes, mentioned in the declaration although the beneficial owner of the asset, or the person entitled to appoint the asset, may not have joined in or assented to the declaration. -- 14 of 198 -- Part 1—Preliminary Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 8 Authorised by the Chief Parliamentary Counsel 6 Words and expressions defined in Corporations Act In this Act the following words and expressions have the same meanings respectively as they have in section 9 of the Corporations Act unless the context or subject-matter otherwise requires— (a) associated entity; (b) company; (c) director; (d) dispose; (e) issue; (f) officer; (g) related body corporate; (h) securities; (i) subsidiary; (j) wholly-owned subsidiary. 7 Associated assets The Premier, by order, may designate any assets, rights or liabilities of a public sector entity that relate to, or are connected with, the port of Melbourne to be associated assets for the purposes of this Act. 8 Functions for the purposes of an authorised transaction For the purposes of this Act, any act, matter or thing is done or has effect for the purposes of an authorised transaction if— (a) it is done or has effect for the purpose of effecting or facilitating an authorised transaction; or (b) it is done or has effect for any purpose that is ancillary or incidental to or consequential on an authorised transaction; or -- 15 of 198 -- Part 1—Preliminary Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 9 Authorised by the Chief Parliamentary Counsel (c) it is done or has effect for any purpose connected with the vesting of port assets in, or the transfer of staff of the Port Corporation to, a public sector entity at any time after completion of an authorised transaction. 9 Act to bind the Crown This Act binds the Crown in right of Victoria, and so far as the legislative power of the Parliament permits, the Crown in all its other capacities. 10 Extraterritorial operation of Act It is the intention of the Parliament that the operation of this Act is, as far as possible, to include operation in relation to the following— (a) things situated in or outside the territorial limits of Victoria; (b) acts, transactions and matters done, entered into or occurring in or outside the territorial limits of Victoria; (c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Act, be governed or otherwise affected by the law of another jurisdiction. -- 16 of 198 -- Part 2—Authorised transactions Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 10 Authorised by the Chief Parliamentary Counsel Part 2—Authorised transactions Division 1—Transfer of port assets 11 Authorised transfer of port assets (1) This Act authorises the transfer of port assets to a private sector entity, or a public sector entity, subject to the following limitations— (a) land comprising port assets may be leased or licensed to a private sector entity but the ownership of the freehold title to that land must remain with a public sector entity; (b) in the case where one lease or licence of land comprising port assets is granted to a private sector entity, the maximum period for that lease or licence must not exceed the period specified in subsection (2); (c) in the case where a lease or licence of land comprising port assets is granted to a private sector entity and any further lease or licence of those port assets is granted, the maximum period for all of the leases or licences granted to a private sector entity must not exceed, in aggregate, the period specified in subsection (2). (2) For the purposes of subsection (1)(b) and (c), the specified period is— (a) 50 years; or (b) if the Premier makes an order under subsection (3), the period determined under that order. (3) The Premier, by order, may, for the purposes of subsection (2)(b), determine the period of a lease or licence of land comprising port assets to be granted to a private sector entity. -- 17 of 198 -- Part 2—Authorised transactions Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 11 Authorised by the Chief Parliamentary Counsel (4) The period determined under an order under subsection (3) must not exceed 50 years and 30 days. (5) Port assets may be transferred for the purposes of an authorised transaction in any manner. (6) Without limiting subsection (5), port assets of a body corporate (the port assets holder) may be transferred to another body corporate by the port assets holder becoming a wholly-owned subsidiary of the other body corporate. 12 Proceeds of transaction (1) The proceeds of the transfer of port assets to a private sector entity under an authorised transaction belong to and are payable directly to the State. (2) The transaction proceeds include any payment to a public sector entity that is a premium or periodic payment under or related to a lease or licence of port assets to a private sector entity or grant of other rights that is authorised by this Act that, but for subsection (1), would be payable to another public sector entity. (3) The transaction proceeds paid to the State are to be paid into the Victorian Transport Fund. (4) The following deductions are authorised to be made from the transaction proceeds— (a) deduction of amounts approved by the Premier to repay debt and satisfy other liabilities of a public sector entity in relation to port assets transferred for the purposes of an authorised transaction; -- 18 of 198 -- Part 2—Authorised transactions Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 12 Authorised by the Chief Parliamentary Counsel (b) deduction of amounts approved by the Premier— (i) to reimburse a public sector entity for payments made by the entity in relation to any tax, duty, fee or charge imposed on the public sector entity by any Act or law of the State or any other jurisdiction in connection with a transaction arrangement; or (ii) to pay on behalf of a public sector entity any tax, duty, fee or charge referred to in subparagraph (i) payable by the public sector entity in connection with a transaction arrangement; (c) deduction of amounts approved by the Premier to satisfy any liability of a public sector entity arising under or in connection with a transaction arrangement; (d) deduction of amounts approved by the Premier to meet expenses reasonably incurred by a public sector entity for the purposes of an authorised transaction; (e) deduction of amounts approved by the Premier— (i) to satisfy the liabilities of a public sector entity arising under or in connection with a project that is approved by the Premier as a port-related project; or (ii) to reimburse a public sector entity for payments made by it to satisfy the liabilities it incurs for or in connection with a project that is approved by the Premier as a port-related project. -- 19 of 198 -- Part 2—Authorised transactions Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 13 Authorised by the Chief Parliamentary Counsel (5) The transaction proceeds do not include any amount certified by the Premier to have been paid to a public sector entity as a tax, duty, fee or charge imposed by any Act or law of the State in connection with a transaction arrangement. (6) The deductions authorised to be made from the transaction proceeds may be made— (a) before payment of the transaction proceeds into the Victorian Transport Fund; or (b) by payment from the Victorian Transport Fund. (7) The requirements of this section do not affect the validity of a transaction arrangement. Division 2—The Victorian Transport Fund 13 Victorian Transport Fund There must be established in the Public Account as part of the Trust Fund an account to be known as the Victorian Transport Fund. 14 Payments into the Fund There must be paid into the Victorian Transport Fund— (a) all money that is appropriated by the Parliament for the purposes of the Fund; and (b) all money that is received from the investment of money in the Fund; and (c) all money directed or authorised to be paid into the Fund by or under this or any other Act. Note The transaction proceeds are money that this Act directs to be paid into the Fund—see section 12(3). -- 20 of 198 -- Part 2—Authorised transactions Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 14 Authorised by the Chief Parliamentary Counsel 15 Payments out of the Fund (1) There must be paid out of the Victorian Transport Fund— (a) amounts authorised by the Treasurer to fund the cost of all or any part of the development of— (i) the Level Crossing Removal Program; and (ii) infrastructure projects for or in relation to public transport, roads, rail, the movement of freight, ports or other infrastructure (including regional infrastructure); and (iii) rail infrastructure projects for improving rail access, including any rail infrastructure project for improving access identified as an option in a Rail Access Strategy prepared under Part 6C of the Port Management Act 1995; and (b) all money directed or authorised to be paid out of the Fund by or under this or any other Act. Note For example, see section 12(6)(b). (2) The amounts authorised by the Treasurer to be paid out of the Victorian Transport Fund to fund the cost of all or any part of the development of regional infrastructure projects must equate to, in aggregate, at least 10% of the net transaction proceeds. -- 21 of 198 -- Part 2—Authorised transactions Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 15 Authorised by the Chief Parliamentary Counsel (3) In addition, the amounts authorised by the Treasurer to be paid out of the Victorian Transport Fund under subsection (1)(a) must, in any relevant period, include amounts to fund the cost of all or any part of the development of regional infrastructure projects that equate to, in aggregate, at least 10% of the amounts so authorised. (4) However, subsection (3) ceases to apply when amounts authorised by the Treasurer to be paid out of the Victorian Transport Fund to fund the cost of all or any part of the development of regional infrastructure projects equate to, in aggregate, 10% of the net transaction proceeds. (5) There must be paid out of the Victorian Transport Fund amounts authorised by the Treasurer for the payment of costs and expenses incurred in— (a) administering this Division; and (b) monitoring and reporting on the financial operations and financial position of the Fund. (6) In this section— development includes plan, implement and deliver; net transaction proceeds means the transaction proceeds paid into the Victorian Transport Fund under section 12(3) less any deductions made from the transaction proceeds under section 12(4); regional, in relation to infrastructure, means a geographic area of Victoria that is within a municipal district of a Council or an alpine resort within the meaning of the Alpine Resorts Act 1983 that is defined as rural or regional Victoria under the Regional Development Victoria Act 2002; -- 22 of 198 -- Part 2—Authorised transactions Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 16 Authorised by the Chief Parliamentary Counsel relevant period means any of the following— (a) the period of 4 years commencing on 1 July after the first lease or licence of land comprising port assets is granted to a private sector entity under section 11; (b) each 4 years commencing on each subsequent 1 July. 16 Delegation of power to authorise payments The Treasurer, by instrument, may delegate the Treasurer's power to authorise payments under section 15 to the Secretary to the Department of Treasury and Finance. -- 23 of 198 -- Part 3—Facilitating authorised transactions Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 17 Authorised by the Chief Parliamentary Counsel Part 3—Facilitating authorised transactions Division 1—Premier's functions 17 Premier's functions (1) The Premier has and may exercise all the functions that are necessary or convenient for the purposes of an authorised transaction. (2) In addition, the Premier may act for or on behalf of the Port Corporation or a transaction entity in the exercise of any of its functions for the purposes of an authorised transaction while it is a public sector entity. (3) The functions conferred on the Premier by any other provision of this Act do not limit the Premier's functions under this section. 18 Manner of effecting authorised transaction (1) An authorised transaction is to be effected as directed by the Premier and may be effected in any manner the Premier considers appropriate. (2) There are no limitations as to the kinds of transactions or arrangements that may be entered into or used for the purposes of an authorised transaction. Example An ownership structure involving a trust could be used for the purposes of an authorised transaction. Division 2—Functions of the Port Corporation 19 Additional functions of the Port Corporation (1) The Port Corporation has and may exercise all the functions that are necessary or convenient for the purposes of an authorised transaction. -- 24 of 198 -- Part 3—Facilitating authorised transactions Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 18 Authorised by the Chief Parliamentary Counsel (2) The functions conferred by this section are in addition to any other functions that the Port Corporation has apart from this section and those other functions do not prevent or otherwise limit the exercise of the additional functions conferred by this section. Note See also section 17(2). 20 Direction and control of the Port Corporation (1) The Port Corporation is subject to the direction and control of the Premier in the exercise of any of its functions for the purposes of an authorised transaction. (2) The Premier may give directions for the purposes of an authorised transaction to the Port Corporation and to the directors and other officers of the Port Corporation. (3) The Port Corporation must comply with a direction given to it under subsection (2). (4) A director or officer of the Port Corporation must comply with a direction given to the director or officer under subsection (2). (5) The power to give a direction under subsection (2) extends to a direction relating to the way in which the Port Corporation is to carry out its functions. (6) An action taken by the Port Corporation to comply with a direction of the Premier under subsection (2) does not require the approval of any other Minister. 21 Immunity of directors and officers of the Port Corporation (1) A director or officer of the Port Corporation is not personally liable for anything done or omitted to be done— -- 25 of 198 -- Part 3—Facilitating authorised transactions Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 19 Authorised by the Chief Parliamentary Counsel (a) in complying with a direction given by the Premier under this Act; or (b) in the reasonable belief that the act or omission was in compliance with a direction given by the Premier under this Act. (2) Any liability resulting from an act or omission that would but for subsection (1) attach to a director or officer of the Port Corporation attaches instead to the State. Division 3—Transaction entities 22 Establishment of statutory corporations as transaction entities (1) The Governor in Council, on the recommendation of the Premier, may, by Order published in the Government Gazette, establish a statutory corporation by the name stated in the Order. (2) An Order under subsection (1) may establish a corporation sole, constituted by the holder for the time being of an office or position in the public sector stated in the Order. (3) An Order under subsection (1)— (a) must state the particular purpose of establishing the corporation; and (b) must state the functions of the corporation; and (c) if the corporation is to be a subsidiary of a statutory corporation, must state that fact and the name of the particular statutory corporation; and (d) if the corporation is to have a share capital, must state particulars of the share capital; and -- 26 of 198 -- Part 3—Facilitating authorised transactions Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 20 Authorised by the Chief Parliamentary Counsel (e) if the corporation is to have a board— (i) must state the particulars of the constitution of the board; and (ii) may include provision for the appointment of directors by the Governor in Council; and (f) may include any other particulars relating to the establishment or operation of the corporation that the Governor in Council determines. (4) A statutory corporation established under this section is a transaction entity for the purposes of this Act. (5) A statutory corporation established under this section— (a) is a body corporate with perpetual succession; and (b) must have an official seal; and (c) may sue and be sued; and (d) may acquire, hold and dispose of real and personal property; and (e) may do and suffer all things that a body corporate may by law do and suffer. (6) All courts must take judicial notice of the seal of a statutory corporation established under this section affixed to a document and, until the contrary is proved, must presume that it was duly affixed. (7) The official seal must be kept in the custody that the statutory corporation directs and must not be used except as authorised by the statutory corporation. -- 27 of 198 -- Part 3—Facilitating authorised transactions Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 21 Authorised by the Chief Parliamentary Counsel (8) Shares in a statutory corporation must not be issued or dealt with except in accordance with an Order under this section. 23 Establishment of companies as transaction entities (1) The Premier may, for the purposes of an authorised transaction, establish, or direct the establishment of, companies as transaction entities in any of the following ways— (a) the formation or acquisition, or participation in the formation or acquisition, by or on behalf of the State or the Port Corporation of a company limited by shares, so that all the issued shares in the company are held by or on behalf of the State or the Port Corporation (or both); (b) the formation or acquisition of a company as a wholly-owned subsidiary company of a transaction entity. (2) A company established in accordance with this section is a transaction entity for the purposes of this Act. 24 Designation of subsidiary company of the Port Corporation as transaction entity (1) The Premier, by notice published in the Government Gazette, may designate a subsidiary company of the Port Corporation to be a transaction entity for the purposes of this Act. (2) A company designated under this section is a transaction entity for the purposes of this Act. -- 28 of 198 -- Part 3—Facilitating authorised transactions Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 22 Authorised by the Chief Parliamentary Counsel 25 Transaction entity does not represent the State Unless the Premier otherwise determines— (a) a transaction entity is not and does not represent the State; and (b) the debts, liabilities and obligations of a transaction entity are not guaranteed by the State. 26 Functions of transaction entities (1) A transaction entity has and may exercise all the functions that are necessary or convenient for the purposes of an authorised transaction. (2) The functions conferred by this section are in addition to any other functions that a transaction entity has apart from this section and those other functions do not prevent or otherwise limit the exercise of the additional functions conferred by this section. Note See also section 17(2). 27 Direction and control of transaction entities (1) A transaction entity is subject to the direction and control of the Premier in the exercise of any of its functions for the purposes of an authorised transaction while it is a public sector entity. (2) The Premier may give directions for the purposes of an authorised transaction to a transaction entity, and to the directors and other officers of a transaction entity. (3) A transaction entity must comply with a direction given to it under subsection (2). (4) A director or officer of a transaction entity must comply with a direction given to the director or officer under subsection (2). -- 29 of 198 -- Part 3—Facilitating authorised transactions Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 23 Authorised by the Chief Parliamentary Counsel (5) The power to give a direction under subsection (2) extends to a direction relating to the way in which the transaction entity is to carry out its functions or conduct its business or other affairs. (6) A direction under subsection (2) can only be given to a transaction entity or its directors and other officers and is only required to be complied with while the transaction entity is a public sector entity. (7) Action taken by a transaction entity to comply with a direction of the Premier under subsection (2) does not require the approval of the voting shareholders of the entity or of any other Minister. (8) The provisions of this section are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act in relation to the Corporations legislation. Note Section 5G of the Corporations Act provides that if a State law declares a provision of a State law to be a Corporations legislation displacement provision for the purposes of that section, any provision of the Corporations legislation with which the State provision would otherwise be inconsistent does not operate to the extent necessary to avoid the inconsistency. 28 Immunity of directors and officers of transaction entity (1) A director or officer of a transaction entity is not personally liable for anything done or omitted to be done— (a) in complying with a direction given by the Premier under this Act; or (b) in the reasonable belief that the act or omission was in compliance with a direction given by the Premier under this Act. -- 30 of 198 -- Part 3—Facilitating authorised transactions Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 24 Authorised by the Chief Parliamentary Counsel (2) Any liability resulting from an act or omission that would, but for subsection (1), attach to a director or officer of a transaction entity attaches instead to the State. -- 31 of 198 -- Part 4—Arrangements for transfer of port assets Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 25 Authorised by the Chief Parliamentary Counsel Part 4—Arrangements for transfer of port assets Division 1—Transfer orders 29 Making of transfer orders The Premier, by order, may do either or both of the following— (a) vest assets, rights and liabilities comprising port assets in a person specified in the order as the transferee for the purposes of an authorised transaction; (b) divest assets, rights and liabilities comprising port assets from a public sector entity for the purpose of vesting those assets, rights and liabilities under a transfer order. 30 Vesting of assets, rights and liabilities in transferee (1) When any assets, rights or liabilities are vested by a transfer order, the following provisions have effect (subject to the transfer order)— (a) the assets vest in the transferee by virtue of this section and without the need for any conveyance, transfer, assignment or assurance; (b) the rights and liabilities become, by virtue of this section, the rights and liabilities of the transferee; (c) all proceedings relating to the assets, rights or liabilities pending by or against the transferor are taken to be proceedings pending by or against the transferee; (d) the transferee has all the entitlements and obligations of the transferor in relation to the assets, rights and liabilities that the transferor would have had but for the order; -- 32 of 198 -- Part 4—Arrangements for transfer of port assets Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 26 Authorised by the Chief Parliamentary Counsel (e) any act, matter or thing done or omitted to be done in relation to the assets, rights or liabilities by, to or in relation to the transferor is (to the extent that the act, matter or thing has any force or effect) taken to have been done or omitted by, to or in relation to the transferee; (f) a reference in any Act, in any instrument made under any Act or in any document of any kind to the transferor or a predecessor of the transferor is (to the extent that it relates to those assets, rights or liabilities but subject to the regulations) to be read as, or as including, a reference to the transferee. (2) No attornment to the transferee by a lessee from the transferor is required. 31 Terms and conditions of transfer order A transfer order may be made on the terms and conditions specified in the order. 32 Consideration for vesting A transfer order may specify the consideration for which a vesting to which it applies is made and the value or values at which assets, rights and liabilities are vested. 33 Transfer subject to encumbrances Unless the transfer order otherwise provides, if under the transfer order assets and rights vest in the transferee or liabilities become liabilities of the transferee— (a) the assets and rights vested are subject to the encumbrances (if any) to which they were subject immediately before being vested; and -- 33 of 198 -- Part 4—Arrangements for transfer of port assets Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 27 Authorised by the Chief Parliamentary Counsel (b) the rights to which the transferor was entitled in relation to those liabilities immediately before they ceased to be liabilities of the transferor vest in the transferee. 34 Substitution of party to agreement (1) This section applies if, under a transfer order, the rights and liabilities of the transferor under an agreement are transferred to the transferee. (2) On the transfer date, the transferee becomes a party to the agreement in place of the transferor unless the transfer order requires otherwise. 35 Transfer of interests in land (1) This section applies to the vesting under a transfer order of an interest in land under the Transfer of Land Act 1958. (2) If, immediately before the vesting of the interest in land, the transferor was the registered proprietor of the interest under the Transfer of Land Act 1958, then on and after the transfer date— (a) the transferee is taken to be the registered proprietor of that interest in land; and (b) the transferee has the same rights and remedies in relation to that interest that the transferor had. (3) This section applies despite anything to the contrary in any other Act or law (other than the Charter of Human Rights and Responsibilities). (4) This section does not limit the generality of this Division. -- 34 of 198 -- Part 4—Arrangements for transfer of port assets Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 28 Authorised by the Chief Parliamentary Counsel 36 Transfer of rights and interests in vehicles and recreational vessels (1) This section applies to the vesting under a transfer order of the ownership or management of— (a) a vehicle; or (b) a recreational vessel. (2) If, immediately before the vesting of the ownership or management of the vehicle or recreational vessel, the transferor was the owner or manager of that vehicle or recreational vessel, then on and after the transfer date— (a) the transferee is taken to be the owner or manager of that vehicle or recreational vessel (as the case requires); and (b) the transferee has the same rights and remedies in relation to that vehicle or recreational vessel that the transferor had. (3) This section applies despite anything to the contrary in any other Act or law (other than the Charter of Human Rights and Responsibilities). (4) This section does not limit the generality of this Division. 37 Confirmation of vesting (1) The Premier, by order, may confirm a vesting or divesting of particular assets, rights and liabilities by operation of this Division. (2) An order under subsection (1) is evidence of the vesting or divesting of the assets, rights or liabilities to which it applies. 38 Determinations by Premier (1) The Premier may determine whether or not particular assets, rights or liabilities comprise port assets for the purposes of a transfer order. -- 35 of 198 -- Part 4—Arrangements for transfer of port assets Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 29 Authorised by the Chief Parliamentary Counsel (2) A determination under subsection (1) is evidence, and, in the absence of evidence to the contrary, proof, of the matters determined. 39 Amendment of Land Titles Register (1) The Registrar of Titles, on being requested to do so and on delivery of any relevant certificate of title or instrument and any relevant transfer order, must make any amendments in the Register that are necessary because of the operation of this Division. (2) Despite subsection (1), it is not necessary to produce a certificate of title in the case of a request for amendment of the Register in relation to property that is an easement registered under the Transfer of Land Act 1958. 40 Amendment of VicRoads vehicles register (1) VicRoads, on being requested to do so, must make any recordings in the register in relation to any transferred vehicle that are necessary because of the operation of a provision of this Division. (2) A current certificate of roadworthiness is not required to be obtained and given to VicRoads for a transferred vehicle for the purposes of subsection (1). (3) In this section— the register has the same meaning as in the Road Safety Act 1986; transferred vehicle means a vehicle to which a transfer order applies and which is eligible to be registered under the Road Safety Act 1986. -- 36 of 198 -- Part 4—Arrangements for transfer of port assets Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 30 Authorised by the Chief Parliamentary Counsel 41 Evidence Documentary or other evidence that would have been admissible for or against the interests of the transferor in relation to assets, rights or liabilities transferred to the transferee is admissible for or against the interests of the transferee. Division 2—Grant of relevant authorisations 42 Grant of relevant authorisations (1) The Premier may give a direction to a public sector entity in relation to the grant of any relevant authorisation to a person who becomes or will become the new operator of any port assets under an authorised transaction. (2) A direction under subsection (1) may include a direction for or in relation to any of the following— (a) requiring the grant of a relevant authorisation without the need to make or determine an application; (b) the conditions or endorsements subject to which any relevant authorisation is to be granted or that are to be attached to any relevant authorisation. (3) A direction under subsection (1) may only be given under that subsection for the grant of a relevant authorisation that— (a) operates to transfer or replace an existing relevant authorisation that is currently in force; and (b) is subject to terms, conditions or endorsements that are the same (or to substantially the same effect) as those to which the relevant authorisation is subject. -- 37 of 198 -- Part 4—Arrangements for transfer of port assets Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 31 Authorised by the Chief Parliamentary Counsel (4) Before giving a direction to the public sector entity under subsection (1), the Premier must consult with— (a) the Minister administering the Act under which the relevant authorisation is to be granted; and (b) the public sector entity. (5) A public sector entity under a relevant law must comply with a direction given to it under subsection (1). (6) Anything done by a public sector entity (as the grantee of a relevant authorisation) in compliance with a term, condition or endorsement of a relevant authorisation in relation to port assets of which a person is the new operator is taken to have been done by the new operator for the purposes of any corresponding term, condition or endorsement of a relevant authorisation granted to the new operator as a result of a direction given under subsection (1). (7) In this section— grant includes give, issue and transfer; new operator of port assets means— (a) a public sector entity to which any port assets are transferred for the purposes of an authorised transaction; or (b) a person (or the nominee of a person) in whom port assets are vested, or to whom port assets are transferred, pursuant to an authorised transaction; relevant authorisation means a licence, permit, consent, entitlement, accreditation, approval, exemption or other authorisation under a relevant law; -- 38 of 198 -- Part 4—Arrangements for transfer of port assets Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 32 Authorised by the Chief Parliamentary Counsel relevant law means any of the following Acts or provisions of Acts— (a) the Coastal Management Act 1995; (b) the Fisheries Act 1995; (c) the Flora and Fauna Guarantee Act 1988; (d) the Heritage Act 1995; (e) section 27 of the National Parks Act 1975; (f) the Planning and Environment Act 1987; (g) the Port Management Act 1995; (h) the Water Act 1989; (i) the Wildlife Act 1975. -- 39 of 198 -- Part 5—Arrangements relating to transfer of Port Corporation staff Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 33 Authorised by the Chief Parliamentary Counsel Part 5—Arrangements relating to transfer of Port Corporation staff 43 Definitions In this Part— casual employee means an employee of the Port Corporation whose employment is in a category of employment that is described in or classified under a relevant award as casual employment or who is otherwise engaged as a casual employee; designated private sector employer means a private sector entity designated under an order under section 45; employee of a public sector entity means a person employed by the public sector entity whether under Part 3 of the Public Administration Act 2004 or otherwise; employment guarantee period, for a transferred employee who is a permanent employee or temporary employee, has the meaning given by section 44; executive employee means an employee employed under an individual contract in an executive position within the Port Corporation; permanent employee means an employee of the Port Corporation whose employment is of indefinite duration and who is not a casual employee, temporary employee or executive employee; relevant award means any award, agreement or other industrial instrument (under a law of the State or the Commonwealth) that provides for the terms and conditions of employment of employees; -- 40 of 198 -- Part 5—Arrangements relating to transfer of Port Corporation staff Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 34 Authorised by the Chief Parliamentary Counsel temporary employee means an employee of the Port Corporation (other than a casual employee or executive employee) whose employment is in a category of employment that is described in or classified under a relevant award as temporary employment or whose employment is, under the terms of the employee's employment, for a limited period; transfer date means— (a) in relation to an executive employee to whom an order under section 47 applies, the date on which the employment of the employee is transferred under that section to a designated private sector employer; and (b) in relation to a permanent employee, temporary employee or executive employee who accepts an offer of employment with a designated private sector employer, the day on which the employee commences employment with that designated private sector employer; transferred employee means— (a) an executive employee to whom an order under section 47 applies; or (b) a permanent employee, temporary employee or executive employee who is offered and accepts employment with a designated private sector employer in connection with an authorised transaction. -- 41 of 198 -- Part 5—Arrangements relating to transfer of Port Corporation staff Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 35 Authorised by the Chief Parliamentary Counsel 44 Meaning of employment guarantee period The employment guarantee period for a transferred employee who is a permanent employee or temporary employee is as follows— (a) for a permanent employee, a period of 2 years after the transfer date; (b) for a temporary employee, a period that is the remainder of the employee's current term of employment (as specified in the arrangements under which the employee was engaged as a temporary employee) immediately before the transfer date or a period of 2 years after the transfer date, whichever period ends first. 45 Designation of a private sector employer (1) The Premier, for the purposes of this Part, may, by order, designate a private sector entity as a designated private sector employer. (2) The Premier must not make an order under subsection (1) unless the Premier is satisfied that the private sector entity will offer employment to a permanent employee, temporary employee or executive employee on terms and conditions no less favourable than those that apply to the employee as an employee of the Port Corporation. 46 Temporary transfers (secondments) (1) The Premier, for the purposes of an authorised transaction, may, by order, temporarily transfer an employee of a public sector entity— (a) to the service of another public sector entity; or (b) to the service of a designated private sector employer. -- 42 of 198 -- Part 5—Arrangements relating to transfer of Port Corporation staff Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 36 Authorised by the Chief Parliamentary Counsel (2) A person may be temporarily transferred under this section at the person's existing level of remuneration or at a higher level of remuneration. (3) A person who is temporarily transferred under this section remains an employee of the public sector entity concerned (unless and until the person's employment is transferred under another provision of this Part or the person ceases to be an employee of the public sector entity). 47 Transfers to private sector employment of Port Corporation executive employees (1) The Premier, for the purposes of an authorised transaction, may, by order, transfer the employment of an executive employee to the employment of a designated private sector employer. (2) The Premier must not make an order under subsection (1) unless the Premier is satisfied that the designated private sector employer has offered employment to the executive employee on terms and conditions that are no less favourable than those that apply to the executive employee as an employee of the Port Corporation. (3) On the transfer date, an executive employee specified in an order under subsection (1) is taken to be an employee of the designated private sector employer on the terms and conditions contained in the offer of employment by the designated private sector employer. 48 Limitation on changes to terms and conditions of transferred employees (1) This section applies if— (a) a permanent employee, temporary employee or executive employee is offered employment by a designated private sector employer; and -- 43 of 198 -- Part 5—Arrangements relating to transfer of Port Corporation staff Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 37 Authorised by the Chief Parliamentary Counsel (b) the Premier is satisfied that the offer of employment with the designated private sector employer will be on terms and conditions that are no less favourable than those that apply to the employee as an employee of the Port Corporation immediately before the transfer date; and (c) the permanent employee, temporary employee or executive employee accepts that offer of employment. (2) On the transfer date, the transferred employee's employment with the designated private sector employer is taken to be subject to the requirements under subsections (3) to (5). (3) The terms and conditions of employment of a transferred employee who is a permanent employee or temporary employee cannot be varied during any employment guarantee period for the transferred employee except— (a) by agreement entered into by or on behalf of the transferred employee; or (b) following the proper application of reasonable disciplinary procedures. (4) The terms and conditions of employment of a transferred employee who is an executive employee cannot be varied except by agreement entered into by or on behalf of the transferred employee. (5) The employment of a permanent employee or temporary employee with the designated private sector employer cannot be terminated by the designated private sector employer during any employment guarantee period for the transferred employee, except— -- 44 of 198 -- Part 5—Arrangements relating to transfer of Port Corporation staff Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 38 Authorised by the Chief Parliamentary Counsel (a) for serious misconduct pursuant to the proper application of reasonable disciplinary procedures; or (b) by agreement with the employee. 49 Continuity of entitlements of transferred employees (1) On and after the transfer date, the following provisions have effect— (a) a transferred employee is entitled to continue as a contributor, member or employee for the purposes of any superannuation scheme in respect of which the employee was a contributor, member or employee (as an employee of the Port Corporation) immediately before the transfer date and remains so entitled subject to any variation to that entitlement made either by agreement or otherwise in accordance with law; (b) a designated private sector employer who is a transferred employee's employer is taken to be an employer for the purposes of any superannuation scheme in respect of which the transferred employee continues as a contributor, member or employee pursuant to an entitlement under this section; (c) the continuity of a transferred employee's contract of employment is taken not to have been broken by the employee ceasing to be an employee of the Port Corporation and commencing employment with a designated private sector employer and service of the employee with the Port Corporation (including service deemed to be service with the Port Corporation) that is continuous service up to the transfer date is taken for all purposes to be service with the designated private sector employer; -- 45 of 198 -- Part 5—Arrangements relating to transfer of Port Corporation staff Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 39 Authorised by the Chief Parliamentary Counsel (d) a transferred employee retains any rights to sick leave, annual leave or long service leave accrued or accruing immediately before the transfer date (except accrued leave for which the employee has, on ceasing to be an employee of the Port Corporation, been paid the monetary value in pursuance of any other entitlement of the transferred employee). (2) Nothing in the Long Service Leave Act 1992 prevents payment in connection with the commencement of employment of an employee of the Port Corporation with a designated private sector employer to which this Part applies of the monetary value of long service leave in lieu of an entitlement to that leave accrued as an employee of the Port Corporation before that commencement. -- 46 of 198 -- Part 6—Crown land for the purposes of authorised transactions Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 40 Authorised by the Chief Parliamentary Counsel Part 6—Crown land for the purposes of authorised transactions Division 1—Application of Part 50 Land Acts and certain land provisions do not apply This Part applies despite anything to the contrary in the Land Act 1958, the Crown Land (Reserves) Act 1978, Part 4 of the Port Management Act 1995 or any other Act. Division 2—Removal of reservations on land 51 Revocation of reservations (1) If any Crown land permanently or temporarily reserved under the Crown Land (Reserves) Act 1978 is entirely within the port of Melbourne, the Premier, after consultation with the relevant land Ministers, may recommend to the Governor in Council that the reservation of that land be revoked in its entirety. (2) On receiving the Premier's recommendation, the Governor in Council, by Order published in the Government Gazette, may revoke the following— (a) any Order in Council reserving the land; (b) any Crown grant, certificate of title or folio of the Register issued or created with respect to the land. 52 Revocation of reservations—part of reservation (1) If any Crown land permanently or temporarily reserved under the Crown Land (Reserves) Act 1978 is entirely within the port of Melbourne, and if only part of the reservation of that land is to be revoked, the Premier— (a) on receiving a plan of land signed by the Surveyor-General; and -- 47 of 198 -- Part 6—Crown land for the purposes of authorised transactions Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 41 Authorised by the Chief Parliamentary Counsel (b) on being satisfied that the land shown on the plan represents that part of the reservation to be revoked; and (c) after consultation with the relevant land Ministers— may recommend to the Governor in Council that that part of the reservation be revoked. (2) On receiving the Premier's recommendation, the Governor in Council, by Order published in the Government Gazette, may revoke the following— (a) any Order in Council reserving the land; (b) any Crown grant, certificate of title or folio of the Register issued or created with respect to the land— to the extent that the Order in Council, Crown grant, certificate of title or folio relates to the land shown on the plan. 53 Effect of revocation of reservation (1) This section applies to land referred to in an Order under section 51 or 52, on the publication of that Order in the Government Gazette. (2) Subject to section 54, the land is taken to be unalienated land of the Crown and is freed and discharged from all trusts, limitations, reservations, restrictions, encumbrances, estates and interests. (3) The appointment of any committee of management is revoked in so far as it applies to the land. (4) Any regulations made under section 13 of the Crown Land (Reserves) Act 1978 are revoked in so far as they apply to the land. -- 48 of 198 -- Part 6—Crown land for the purposes of authorised transactions Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 42 Authorised by the Chief Parliamentary Counsel 54 Preservation of leases and licences (1) Section 53 does not affect the status or continuity of any lease or licence of affected land existing immediately before the commencement of an Order under section 51 or 52 applying to that affected land and that lease or licence has effect— (a) as the case requires, as a lease or licence between the Minister administering the Land Act 1958 as lessor or licensor and the lessee or licensee for the time being under the lease or licence, as if the lease or licence had been assigned to the Minister; and (b) as if it referred to the Minister instead of to the lessor or licensor (however described). (2) Section 53 does not affect the status or continuity of any sublease or sublicence existing over affected land at the date of commencement of an Order under section 51 or 52 applying to that affected land. (3) Subject to subsection (4), the issue of a Crown grant of any land affected by a lease or licence and existing immediately before the date of issue of the Crown grant does not affect the status or continuity of the lease or licence of that land and that lease or licence has effect on and after the issue of the Crown grant— (a) as the case requires, as a lease or licence between the person to whom the Crown grant is made as lessor or licensor and the lessee or licensee for the time being under the lease or licence, as if the lease or licence had been assigned to the person to whom the Crown grant is made; and -- 49 of 198 -- Part 6—Crown land for the purposes of authorised transactions Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 43 Authorised by the Chief Parliamentary Counsel (b) as if the lease or licence referred to the person to whom the Crown grant is made instead of to the lessor or licensor (however described). (4) If more than one Crown grant is issued of any land affected by a lease or licence and existing immediately before the date of issue of the Crown grants, the issue of the Crown grants does not affect the status or continuity of the lease or licence of that land and that lease or licence has effect on and after the issue of the Crown grants— (a) as the case requires, as a lease or licence between the persons to whom the respective Crown grants are made as joint lessors or licensors and the lessees or licensees for the time being under the lease or licence, as if it had been assigned jointly to the persons to whom the respective Crown grants are made; and (b) as if the lease or licence referred to the persons to whom the respective Crown grants are made instead of to the lessors or licensors (however described). (5) The issue of a Crown grant in respect of any land affected by a lease or licence and existing immediately before the date of issue of the Crown grant does not affect the status or continuity of any sublease or sublicence existing over that land at the time of the issue of the Crown grant in respect of that land. (6) This section has effect despite anything to the contrary in any Act or law or in a Crown grant of the land. -- 50 of 198 -- Part 6—Crown land for the purposes of authorised transactions Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 44 Authorised by the Chief Parliamentary Counsel (7) In this section— Act does not include the Charter of Human Rights and Responsibilities; affected land means land to which an Order under section 51 or 52 applies; lease includes an agreement or other interest arising under or in relation to a lease whether or not the lease has expired and an interest in the nature of a lease and sublease has a corresponding meaning; licence includes an agreement or other interest arising under or in relation to a licence whether or not the licence has expired and an interest in the nature of a licence and sublicence has a corresponding meaning. Division 3—Leasing and licensing of Crown land 55 Grant of lease or licence of Crown land for the purposes of an authorised transaction (1) The Governor in Council, on behalf of the Crown, and on the recommendation of the Premier and the relevant land Ministers— (a) may grant a lease of Crown land (other than a stratum of the port of Melbourne seabed) or a licence of any Crown land to a private sector entity or a public sector entity for the purposes of an authorised transaction; and (b) may impose any conditions on the lease or licence; and (c) may ratify or give effect to any partial surrender of a lease or licence by the lessee or licensee, if the lessee or licensee has the consent of any mortgagee and the holder of any charge over the lease or licence. -- 51 of 198 -- Part 6—Crown land for the purposes of authorised transactions Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 45 Authorised by the Chief Parliamentary Counsel (2) The Governor in Council, on behalf of the Crown, and on the recommendation of the Premier after consultation with the relevant land Ministers— (a) may grant a lease of a stratum of the whole, or a part, of that part of the port of Melbourne seabed identified in a determination under subsection (8) to a private sector entity or a public sector entity for the purposes of an authorised transaction; and (b) may impose any conditions on the lease; and (c) may ratify or give effect to any partial surrender of a lease by the lessee, if the lessee has the consent of any mortgagee and the holder of any charge over the lease. (3) In imposing conditions on a lease or licence of a stratum of land under subsection (1) or (2), the Governor in Council must have regard to the following matters— (a) if the land is not part of the port of Melbourne seabed— (i) that reasonable access to and use of the stratum and other land be provided for; and (ii) that the rights of the registered proprietor, lessee or licensee of other land not be interfered with; and (iii) that the rights of support of the stratum or of other land or of any building or structure erected or to be erected on those lands be provided for; (b) in all cases— (i) that the making or maintenance of improvements by the lessee or licensee be provided for; and -- 52 of 198 -- Part 6—Crown land for the purposes of authorised transactions Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 46 Authorised by the Chief Parliamentary Counsel (ii) that any necessary rights for the passage or provision of services (including drainage, sewerage or the supply of water, gas, electricity or telephone) to or through the stratum, where those rights are necessary for the reasonable enjoyment of the stratum or of other land be provided for. (4) The granting of a lease or licence under this section of a stratum of land is conclusive proof of compliance with subsection (3)(a) and (b) with respect to the lease or licence. (5) To avoid doubt, the partial surrender of a lease or licence ratified or given effect to under subsection (1)(c) or (2)(c) does not constitute the surrender in full of that lease or licence and does not affect the operation of the lease or licence in relation to any part of the leased or licensed land that is not surrendered. (6) The term of a lease or licence granted to a private sector entity under this section, or if more than one lease or licence is granted to a private sector entity under this section, the aggregate period of the terms of those leases or licences, must not exceed the maximum period specified in section 11(2) in relation to a lease or licence granted to the private sector entity to which that section applies. (7) A lease or licence granted under this section may be amended at any time with the consent of the lessee or licensee. (8) The Premier, after consultation with the relevant land Ministers, may make a determination identifying a part of the port of Melbourne seabed for the purposes of subsection (2)(a). -- 53 of 198 -- Part 7—General Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 47 Authorised by the Chief Parliamentary Counsel Part 7—General Division 1—General matters relating to authorised transactions 56 Severance of fixtures (1) The Premier, by order, may, for the purposes of an authorised transaction, direct that fixtures designated under this section are severed from the land on which they are situated. (2) The effect of an order under subsection (1) is that the fixtures concerned are taken to be severed from the land on which they are situated and may be dealt with as personal property separate from the land for the purposes of an authorised transaction. (3) The severance of a fixture from land under this section does not affect— (a) the right to have the fixture continue to be situated on the land; or (b) any right to drain water or sewage from the fixture across and through the land; or (c) the right to use any means of drainage of water or sewage from the fixture across and through the land. (4) The Premier, by order, may designate for the purposes of this section fixtures that are— (a) port assets; and (b) owned by the Port Corporation or another public sector entity; and (c) situated on land owned by the Port Corporation or another public sector entity. -- 54 of 198 -- Part 7—General Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 48 Authorised by the Chief Parliamentary Counsel 57 Protection of contractual and other obligations (1) This section applies to the following— (a) the operation of this Act (including any order under this Act and anything done or omitted to be done under or for the purposes of this Act); (b) the vesting of port assets by a transfer order for the purposes of an authorised transaction; (c) the entering into or performance of obligations under a transaction arrangement by a public sector entity; (d) the disclosure of information by, or on behalf of, or with the consent of a public sector entity for the purposes of an authorised transaction. (2) None of the matters or things to which this section applies— (a) is to be regarded as placing any person in breach of contract or confidence, in breach of a professional code or otherwise making the person guilty of a civil wrong; or (b) is to be regarded as placing any person in breach of or as constituting a default under, or as requiring any act to be done under, any Act or other law or obligation or any provision in any agreement, arrangement or understanding including, but not limited to, any provision or obligation prohibiting, restricting or regulating— (i) the assignment, transfer, sale or disposal of any assets, rights or liabilities; or (ii) the disclosure of any information; or -- 55 of 198 -- Part 7—General Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 49 Authorised by the Chief Parliamentary Counsel (c) is to be regarded as fulfilling any condition that allows a person to exercise a power, right or remedy in relation to or to terminate any agreement or obligation; or (d) is to be regarded as giving rise to any remedy for a party to a contract or an instrument or as causing or permitting the termination of any contract or instrument; or (e) is to be regarded as causing any contract or instrument to be void or otherwise unenforceable; or (f) is to be regarded as frustrating any contract; or (g) releases a surety or other obligor wholly or partly from an obligation. (3) In this section— Act does not include the Charter of Human Rights and Responsibilities. 58 Compensation not payable (1) Compensation is not payable by the State because of— (a) the enactment or operation of this Act, or for any consequence of that enactment or operation; or (b) any statement or conduct relating to the enactment of this Act. (2) This section does not extend to compensation payable under a transaction arrangement in connection with the performance of obligations under the arrangement. -- 56 of 198 -- Part 7—General Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 50 Authorised by the Chief Parliamentary Counsel (3) In this section— compensation includes damages or any other form of monetary compensation; conduct includes any act or omission, whether unconscionable, misleading, deceptive or otherwise; operation of this Act includes the operation of any order or direction under this Act and any agreement entered into under and for the purposes of this Act; statement includes a representation of any kind— (a) whether made verbally or in writing; and (b) whether negligent, false, misleading or otherwise; the State means the Crown and includes a public sector entity and an officer, employee or agent of the Crown or a public sector entity. 59 Port of Melbourne leases (1) A provision of a port of Melbourne lease (or of any agreement or arrangement entered into in connection with a port of Melbourne lease) dealing with a matter set out in subsection (2) has effect according to its terms despite any law or rule to the contrary. (2) The matters are— (a) the payment of any amount by way of premium under the lease and the retention of any such amount by the lessor or the State; and -- 57 of 198 -- Part 7—General Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 51 Authorised by the Chief Parliamentary Counsel (b) the circumstances or conditions under which the lease may be terminated by the lessor or lessee (including a provision of a lease to the effect that it is only terminable in accordance with its terms and not at will); and (c) the application of section 139, 144 or 146(2) or (4) of the Property Law Act 1958 to or in relation to the lease (or any lease under the lease); and (d) the entitlement to, or the retention or application of, a security provided in relation to the lease; and (e) the payment of a sum that is in the nature of a penalty; and (f) the ownership of, or the vesting or forfeiture of ownership of, or a right or option to acquire, any real or personal property on termination of the lease or on the occurrence of some other specified event or other thing; and (g) the pre-payment of amounts payable by way of rent under the lease and the retention of any such amounts by the lessor or the State; and (h) the continuance of the lease despite the occurrence of unintended or unforeseen circumstances; and (i) the continuance of the obligation to pay rent despite the occurrence of unintended or unforeseen circumstances; and (j) the amount payable, or the non-payment of an amount, in consequence of a breach or early termination of the lease; and (k) the liability of the lessor or lessee in relation to the leased assets; and -- 58 of 198 -- Part 7—General Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 52 Authorised by the Chief Parliamentary Counsel (l) the non-refundability of any payment made on account of rent, a premium, an option fee, outgoings, a security deposit or otherwise in relation to the lease; and (m) the operation of any set-off. (3) A port of Melbourne lease may include provision for the removal by the lessee of any fixture severable from the land leased. (4) The Premier, by order, may designate a lease or licence of port assets as a port of Melbourne lease for the purposes of this section. (5) In this section— port of Melbourne lease means— (a) a lease or licence of port assets entered into for the purposes of an authorised transaction; or (b) a lease or licence of all or a part of the port of Melbourne seabed entered into for the purposes of an authorised transaction; or (c) a lease or licence of port assets designated under subsection (4)— and lessor and lessee have corresponding meanings. -- 59 of 198 -- Part 7—General Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 53 Authorised by the Chief Parliamentary Counsel Division 2—Compensation payments under authorised transaction related agreements or deeds Subdivision 1—Preliminary 60 Definitions In this Division— anchorage has the same meaning as in the Port Management Act 1995; capacity expansion proposal means a proposal for a port or terminal capacity expansion; Commission means the Essential Services Commission established under the Essential Services Commission Act 2001; Dedicated Channels has the meaning given by section 45 of the Port Management Act 1995; ESC Minister means the Minister administering Part 2 of the Essential Services Commission Act 2001; existing port or terminal capacity means— (a) infrastructure at the port of Melbourne, as at the commencement of this section, used to handle international containers; and (b) infrastructure constructed at the port of Melbourne to handle international containers as part of the development declared in the nomination order under the Project Development and Construction Management Act 1994, dated 4 September 2012 and published in the Government Gazette on 7 September 2012; -- 60 of 198 -- Part 7—General Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 54 Authorised by the Chief Parliamentary Counsel handling, in relation to a container, includes loading, unloading, transporting or storing; least cost capacity expansion principles Order means an Order made under section 72; Port Growth Regime payment provision has the meaning given by section 61; Port Growth Regime waiver provision has the meaning given by section 62; port lessee means a lessee under a port of Melbourne lease; port of Melbourne land has the same meaning as in the Port Management Act 1995; port of Melbourne lease has the same meaning as in section 59; port of Melbourne operator has the same meaning as in the Port Management Act 1995; port or terminal capacity expansion means an expansion in the capacity of infrastructure, or development of new infrastructure, at the port of Melbourne to handle international containers; Ports Minister means the Minister administering Part 6B of the Port Management Act 1995; provision of channels has the same meaning as in the Port Management Act 1995; relevant services means any of the following— (a) the provision of channels (except anchorages) for use by shipping in port of Melbourne waters, including the Shared Channels used by vessels bound either for the port of Melbourne or for the port of Geelong and the Dedicated Channels used by -- 61 of 198 -- Part 7—General Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 55 Authorised by the Chief Parliamentary Counsel vessels bound for the port of Melbourne; (b) the provision of berths, buoys or dolphins in connection with the berthing of vessels in the port of Melbourne; (c) the provision of short-term storage or cargo marshalling facilities in connection with the loading or unloading of vessels at berths, buoys or dolphins in the port of Melbourne; (d) the provision of access to, or allowing the use of, places or infrastructure (including wharves, slipways, gangways, roads and rail infrastructure) on port of Melbourne land for the provision of services to port users; Examples Tanker, wharf and water inspection services, and security services, are kinds of services that are provided to port users on port of Melbourne land. Shared Channels has the same meaning as in section 45 of the Port Management Act 1995; State sponsored port has the same meaning as in section 49R of the Port Management Act 1995; vessel has the same meaning as in the Marine Safety Act 2010. -- 62 of 198 -- Part 7—General Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 56 Authorised by the Chief Parliamentary Counsel 61 Meaning of Port Growth Regime payment provision (1) A Port Growth Regime payment provision is a provision that— (a) is contained in an agreement or deed connected with an authorised transaction; and (b) requires a public sector entity to make a payment (including a payment of damages or a lump sum) to an entity specified in subsection (2)— (i) in relation to, or because of, or calculated by reference to the handling of international containers at a port in Victoria other than the port of Melbourne; or (ii) in relation to, or because of, or calculated by reference to a factor that is a proxy for the handling of international containers at a port in Victoria other than the port of Melbourne; or (iii) in relation to the development, or an announcement by the State of the proposed development, of international container facilities at a port in Victoria other than the Port of Melbourne. Note A public sector entity includes the State—see section 3. (2) For the purposes of subsection (1), a specified entity is— (a) the port of Melbourne operator; or (b) an associated entity of the port of Melbourne operator; or -- 63 of 198 -- Part 7—General Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 57 Authorised by the Chief Parliamentary Counsel (c) any other person but only to the extent that the person receives the payment for the benefit of the port of Melbourne operator or an associated entity of the port of Melbourne operator. 62 Meaning of Port Growth Regime waiver provision (1) A Port Growth Regime waiver provision is a provision that— (a) is contained in an agreement or deed connected with an authorised transaction; and (b) requires a public sector entity to waive a right to receive a payment, or forgo a payment, that would be otherwise payable to that entity by an entity specified in subsection (2)— (i) in relation to, or because of, or calculated by reference to the handling of international containers at a port in Victoria other than the port of Melbourne; or (ii) in relation to, or because of, or calculated by reference to a factor that is a proxy for the handling of international containers at a port in Victoria other than the port of Melbourne; or (iii) in relation to the development, or an announcement by the State of the proposed development, of international container facilities at a port in Victoria other than the Port of Melbourne. Note A public sector entity includes the State—see section 3. -- 64 of 198 -- Part 7—General Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 58 Authorised by the Chief Parliamentary Counsel (2) For the purposes of subsection (1), a specified entity is— (a) the port of Melbourne operator; or (b) an associated entity of the port of Melbourne operator. 63 Relevant legislation for the purposes of the Essential Services Commission Act 2001 This Division is relevant legislation for the purposes of the Essential Services Commission Act 2001. 64 Ministerial guidelines about capacity expansion proposals (1) The Ports Minister may issue guidelines about the form and content of a capacity expansion proposal. (2) The guidelines must be published in the Government Gazette and made available for inspection free of charge at the office of the Ports Minister. Subdivision 2—Restriction on compensation payments 65 Compensation not payable or capped in certain cases (1) This section applies despite anything to the contrary in a Port Growth Regime payment provision or Port Growth Regime waiver provision or under any rule of, or principle at, law. (2) A public sector entity must not make any payment under a Port Growth Regime payment provision, or waive a right to receive a payment, or forgo a payment, that would be otherwise payable to it under a Port Growth Regime waiver provision, in respect of any period unless— -- 65 of 198 -- Part 7—General Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 59 Authorised by the Chief Parliamentary Counsel (a) international containers are handled at a port in Victoria other than the port of Melbourne during the period— (i) commencing on the commencement of this section; and (ii) ending on the day that is 15 years after the day on which the first lease or licence of land comprising port assets is granted to a private sector entity under section 11; and (b) the Port Growth Regime payment provision or Port Growth Regime waiver provision is expressed to apply to, or to be in respect of, the handling of international containers at a port in Victoria other than the port of Melbourne during the period referred to in paragraph (a). (3) In addition but subject to subsection (4), a public sector entity must not make a payment under a Port Growth Regime payment provision, or waive a right to receive a payment, or forgo a payment, that would be otherwise payable to it under a Port Growth Regime waiver provision, other than in respect of— (a) existing port or terminal capacity; or (b) a port or terminal capacity expansion the proposal for which has been approved under section 66 or certified under section 68. (4) A public sector entity must not pay any amount in respect of any payment under a Port Growth Regime payment provision, or waive the right to any amount, or forgo any amount, that would be otherwise payable to it under a Port Growth Regime waiver provision, as permitted under -- 66 of 198 -- Part 7—General Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 60 Authorised by the Chief Parliamentary Counsel subsection (2) or (3), the values of which, in aggregate, exceed the capped amount. (5) A public sector entity is not to be regarded as breaching or being in default of, or repudiating or terminating, an agreement or deed connected with an authorised transaction by relying on this section and— (a) not making a payment under a Port Growth Regime payment provision; or (b) not waiving the right to any amount, or forgoing any amount, that would be otherwise payable to it under a Port Growth Regime waiver provision. (6) To avoid doubt, subsection (4) does not affect any obligation a public sector entity has to make a payment of an amount under a Port Growth Regime payment provision, or waive the right to any amount, or forgo any amount, that would be otherwise payable to it under a Port Growth Regime waiver provision, if the value of any amounts in aggregate, are less than or equal to the capped amount. (7) In this section— capped amount means— (a) for the first financial year in respect of which the first payment under a Port Growth Regime payment provision is due, or the first financial year in respect of which the right to the payment of an amount has been waived, or a payment has been forgone, under a Port Growth Regime waiver provision, as permitted under subsection (2) or (3)—the amount equating to 15% of all revenue earned by the port of Melbourne operator by providing relevant services -- 67 of 198 -- Part 7—General Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 61 Authorised by the Chief Parliamentary Counsel in the financial year immediately preceding that year; and (b) for each subsequent financial year, the amount determined in accordance with the following formula— B A D C = × where— A is the capped amount for the financial year; B is the CPI number published for the quarter ending immediately before 1 July of the financial year; C is the CPI number published for the quarter ending immediately before 1 July of the previous financial year; D is— (a) for the first financial year after the financial year to which paragraph (a) applies, the capped amount referred to in that paragraph; and (b) for each subsequent financial year, the amount determined in accordance with this formula for the previous financial year; CPI number means the Consumer Price Index (All Groups Index Number weighted average of eight capital cities) published by the Australian Bureau of Statistics (or any other index published in substitution for that index). -- 68 of 198 -- Part 7—General Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 62 Authorised by the Chief Parliamentary Counsel Subdivision 3—Approval of capacity expansion proposals by Minister 66 Approval of material increases in capacity for the handling of international containers at the port of Melbourne (1) Subject to this section, a port lessee or the port of Melbourne operator (a proponent) may submit a capacity expansion proposal to the Ports Minister. (2) A capacity expansion proposal that is submitted under subsection (1) must only be for a material port or terminal capacity expansion. (3) A capacity expansion proposal cannot be submitted under subsection (1) for a port or terminal capacity expansion in respect of which works have commenced. (4) If there are guidelines in effect under section 64 in respect of the form and content of a capacity expansion proposal, the proponent must submit a capacity expansion proposal under subsection (1) that accords with the guidelines. (5) On receiving a capacity expansion proposal, the Ports Minister may approve or refuse to approve the proposal. (6) The Ports Minister must make a decision under subsection (5) within 6 months after receiving the capacity expansion proposal. (7) The Ports Minister must— (a) notify, in writing, the proponent of the Minister's decision under subsection (5) and give the proponent the Minister's written reasons for the decision; and -- 69 of 198 -- Part 7—General Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 63 Authorised by the Chief Parliamentary Counsel (b) as soon as practicable after that, publish— (i) notice of the making of a decision under subsection (5) in the Government Gazette and on the Department's Internet site; and (ii) a decision under subsection (5) (including the reasons for the decision) on the Department's Internet site. (8) An approval of a capacity expansion proposal under this section is not to be regarded as— (a) authorising or approving, or not authorising or approving, works for the port or terminal capacity expansion to which the proposal relates; or (b) requiring any person to commence works for a port or terminal capacity expansion to which the proposal relates. Subdivision 4—Certification of capacity expansion proposals by Commission 67 Application This Subdivision applies if the Ports Minister— (a) refuses to approve a capacity expansion proposal under section 66; or (b) fails to make a decision under that section within the time required by that section. 68 Application for certification (1) The person who submitted the capacity expansion proposal to the Ports Minister (the applicant) may, within 3 months after the Ports Minister has refused to approve the proposal, apply to the Commission for it to certify the proposal. (2) An application must attach a copy of the capacity expansion proposal. -- 70 of 198 -- Part 7—General Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 64 Authorised by the Chief Parliamentary Counsel (3) If there are guidelines in effect under section 64 in respect of the form and content of a capacity expansion proposal, the capacity expansion proposal that the applicant attaches to the application must accord with the guidelines. 69 Decision on certification by Commission (1) Subject to this section, the Commission must not later than 3 months after receiving an application under section 68 decide whether to certify the proposal. (2) In deciding whether to certify a capacity expansion proposal, the Commission must apply the principles specified in the least cost capacity expansion principles Order. (3) If the Commission is satisfied that the capacity expansion proposal is the least cost means of expanding the capacity of infrastructure, or developing new infrastructure, to handle international containers at a port in Port Phillip Bay or Western Port Bay, the Commission must certify the proposal. (4) Section 35(1) to (3) and (5) of the Essential Services Commission Act 2001 applies to a decision of the Commission under this section as if the decision were a determination to which section 35 applies. (5) The Commission must also give a copy of its decision to the Ports Minister. (6) A decision to certify a capacity expansion proposal under this section is not to be regarded as— (a) authorising or approving, or not authorising or approving, works for the port or terminal capacity expansion to which the proposal relates; or -- 71 of 198 -- Part 7—General Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 65 Authorised by the Chief Parliamentary Counsel (b) requiring any person to commence works for a port or terminal capacity expansion to which the proposal relates. (7) The Commission is not subject to the direction or control of the ESC Minister in respect of any decision it makes under this section. 70 Inquiries for the purposes of decisions on certification (1) For the purpose of making a decision under section 69, the Commission must conduct and complete an inquiry into the capacity expansion proposal. (2) Before commencing an inquiry, the Commission must notify the Ports Minister that it will be conducting an inquiry under this section. (3) Part 4 and section 43 (other than subsections (4)(a) and (6)(b) of that section) of the Essential Services Commission Act 2001 apply to an inquiry under this section. 71 Draft report to be provided to applicant The Commission must— (a) provide a draft of a report on an inquiry under this Subdivision to the applicant; and (b) give the applicant an opportunity to make a written submission to the Commission on that draft report before the Commission makes its decision under section 69. Subdivision 5—Least cost capacity expansion principles Order 72 Least cost capacity expansion principles Order The Governor in Council, by Order published in the Government Gazette, may specify principles for the purposes of Subdivision 4. -- 72 of 198 -- Part 7—General Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 66 Authorised by the Chief Parliamentary Counsel 73 When a least cost capacity expansion principles Order takes effect A least cost capacity expansion principles Order takes effect— (a) on the day the Order is published in the Government Gazette; or (b) if a later day is specified in the Order, on that day. 74 Limitation on amending or revoking a least cost capacity expansion principles Order A least cost capacity expansion principles Order cannot be amended or revoked except in accordance with this Subdivision. 75 Circumstances in which a least cost capacity expansion principles Order may be amended Subject to section 76, a least cost capacity expansion principles Order may only be amended with the agreement of the port lessee. 76 Circumstances in which a least cost capacity expansion principles Order may be wholly revoked A least cost capacity expansion principles Order may be wholly revoked by an Order made under section 72— (a) if the port lessee agrees to the revocation; or (b) after the first lease of land comprising port assets granted to a private sector entity under section 11 ends. -- 73 of 198 -- Part 7—General Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 67 Authorised by the Chief Parliamentary Counsel Division 3—Operation of other laws 77 Excluded matter for Corporations Act Anything done by the Premier under this Act is declared to be an excluded matter for the purposes of section 5F of the Corporations Act in relation to Chapter 2D of the Corporations Act. Note This section ensures that Chapter 2D of the Corporations Act will not apply to anything done by the Premier. Section 5F of the Corporations Act provides that if a State law declares a matter to be an excluded matter in relation to specified provisions of the Corporations legislation, then those provisions will not apply to that matter in the State concerned. 78 State taxes and fees (1) A State tax or fee is not chargeable or applicable in relation to a relevant matter if that relevant matter— (a) relates only to a public sector entity; or (b) is a matter to which only public sector entities are parties. (2) A State tax or fee is not payable by a person or body (other than a public sector entity) in relation to a relevant matter to the extent (if any) that the Premier, by order, directs, either generally or in a particular case. (3) An order may be made under subsection (2) before or after the liability to pay the State tax or fee concerned accrues. (4) An order under subsection (2) may specify the date of completion of an authorised transaction. (5) The Premier must give a copy of an order under subsection (2) to the Commissioner of State Revenue or other person or entity to whom the State tax or fee would be payable but for the order. -- 74 of 198 -- Part 7—General Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 68 Authorised by the Chief Parliamentary Counsel (6) The Premier may certify, in writing, any of the following things as a relevant matter— (a) a thing that the Premier considers has been done in consequence of a vesting of assets, rights or liabilities by virtue of Part 4; (b) a transaction occurring within 6 months after the designated date of completion of an authorised transaction that the Premier considers has been entered into in connection with the transfer of port assets to a private sector entity pursuant to the authorised transaction. (7) In this section— relevant matter means any of the following— (a) an authorised transaction; (b) a transaction arrangement; (c) the issue, disposal or purchase of shares, units in a unit trust or other securities in or issued by a company for the purposes of an authorised transaction; (d) a vesting of assets, rights or liabilities by virtue of Part 4; (e) a thing certified by the Premier under subsection (6); (f) any other matter for the purposes of an authorised transaction that is prescribed by the regulations; State tax or fee means duty under the Duties Act 2000 or any other tax, duty, fee or charge imposed by or under any other Act. -- 75 of 198 -- Part 7—General Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 69 Authorised by the Chief Parliamentary Counsel 79 Application of Borrowing and Investment Powers Act 1987 The Borrowing and Investment Powers Act 1987 does not apply to an authorised transaction. 80 Operation of Public Administration Act 2004 Nothing in this Act affects the operation of the Public Administration Act 2004. 81 Operation of State Owned Enterprises Act 1992 Nothing in this Act affects the operation of the State Owned Enterprises Act 1992. 82 Operation of Transport Integration Act 2010 Nothing in the Transport Integration Act 2010 operates to prevent, restrict or otherwise limit the carrying out of a transaction arrangement or the exercise of any function for the purposes of an authorised transaction. 83 No land tax is payable No land tax is payable under the Land Tax Act 2005 in respect of Crown land that is the subject of a lease entered into for the purposes of an authorised transaction. 84 Rates under Local Government Act 1989 Crown land that is the subject of a lease entered into for the purposes of an authorised transaction is not rateable land within the meaning of section 154 of the Local Government Act 1989. 85 Inconsistency with prescribed legislation (1) In the event of any inconsistency between the provisions of this Act or the regulations and a provision of any other Act or a regulation under any other Act that is prescribed by the regulations as an inconsistent provision for the purposes of -- 76 of 198 -- Part 7—General Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 70 Authorised by the Chief Parliamentary Counsel this section, the provisions of this Act or the regulations (as the case may be) prevail to the extent of the inconsistency. (2) In this section— Act does not include the Charter of Human Rights and Responsibilities. Division 4—Miscellaneous 86 Delegation The Premier, by instrument, may delegate any of the Premier's functions under this Act, except this power of delegation, to any of the following persons— (a) the Special Minister for State; (b) the Secretary to the Department of Premier and Cabinet; (c) a person (other than the Secretary) employed under Part 3 of the Public Administration Act 2004 in the Department of Premier and Cabinet as an executive within the meaning of that Act. 87 Orders (1) An order made by the Premier under this Act must be in writing. (2) An order made by the Premier under this Act takes effect on the day on which it is made or if it specifies a later day, that day. (3) A document purporting to be an order made by the Premier under a provision of this Act is, unless the contrary is established, taken to be such an order and to have been properly made. -- 77 of 198 -- Part 7—General Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 71 Authorised by the Chief Parliamentary Counsel Division 5—Regulations 88 Regulations (1) The Governor in Council may make regulations for or with respect to any matter required or permitted by this Act to be prescribed or necessary or convenient to be prescribed to give effect to this Act. (2) The regulations may— (a) be of general or limited application; and (b) differ according to differences in time, place or circumstances; and (c) confer a discretionary authority or impose a duty on a specified person or a specified class of person. -- 78 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 72 Authorised by the Chief Parliamentary Counsel Part 8—Transaction-related amendments Division 1—Amendment of Transport Integration Act 2010 89 Definition In section 3 of the Transport Integration Act 2010 insert the following definition— "Port Capacity Project part of the port of Melbourne means that part of the port of Melbourne at which the development declared in the nomination order under the Project Development and Construction Management Act 1994, dated 4 September 2012 and published in the Government Gazette on 7 September 2012, is being carried out;". 90 Object of Port of Melbourne Corporation (1) For section 141D(1) of the Transport Integration Act 2010 substitute— "(1) The main objects of the Port of Melbourne Corporation are— (a) to ensure that port of Melbourne waters and channels in port of Melbourne waters are managed for use on a fair and reasonable basis consistent with the vision statement and the transport system objectives; and (b) to manage and develop Station Pier and West Finger Pier consistent with the vision statement and the transport system objectives; and -- 79 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 73 Authorised by the Chief Parliamentary Counsel (c) if authorised under section 141EA, to manage and develop the Port Capacity Project part of the port of Melbourne consistent with the vision statement and the transport system objectives; and (d) if the Port of Melbourne Corporation is a designated State port entity (as defined in section 74AA of the Port Management Act 1995), to manage a site in the port of Melbourne at which stevedoring operations are carried out consistent with the vision statement and the transport system objectives.". (2) In section 141D(2) of the Transport Integration Act 2010— (a) for "primary object includes" substitute "main objects include"; (b) in paragraph (a), for "port of Melbourne is" substitute "port of Melbourne waters, Station Pier and West Finger Pier are"; (c) paragraphs (b) and (c) are repealed. 91 Functions of Port of Melbourne Corporation (1) For section 141E(1)(a) and (b) of the Transport Integration Act 2010 substitute— "(a) if authorised under section 141EA— (i) to plan for the development of the Port Capacity Project part of the port of Melbourne; (ii) to provide infrastructure necessary for the development and operation of the Port Capacity Project part of the port of Melbourne; -- 80 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 74 Authorised by the Chief Parliamentary Counsel (iii) to develop, or enable and control the development by others of, the Port Capacity Project part of the port of Melbourne; (b) if the Port of Melbourne Corporation is a designated State port entity (as defined in section 74AA of the Port Management Act 1995)— (i) to manage, or enable and control the management by others of, a site in the port of Melbourne for the carrying out of stevedoring operations; (ii) to provide, or enable and control the provision by others of, services at a site in the port of Melbourne it manages and at which stevedoring operations are carried out;". (2) Section 141E(1)(c) to (e) and (g) of the Transport Integration Act 2010 are repealed. (3) At the foot of section 141E(1)(f) of the Transport Integration Act 2010 insert— "Note Station Pier and West Finger Pier are part of the port of Melbourne—see the definition of port of Melbourne in section 3(1) of the Port Management Act 1995 and section 65 of that Act.". (4) In section 141E(1)(h) of the Transport Integration Act 2010, before "manage" insert "establish and". (5) After section 141E(1)(i) of the Transport Integration Act 2010 insert— "(ia) to publish information about the depths and configurations of channels and berths in port of Melbourne waters; -- 81 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 75 Authorised by the Chief Parliamentary Counsel (ib) to provide or maintain systems related to navigation in port of Melbourne waters, including systems for— (i) managing vessel traffic and vessel communications in those waters; (ii) the scheduling and allocation of vessels to berths in those waters and in the port of Melbourne;". (6) After section 141E(1)(j) of the Transport Integration Act 2010 insert— "(ja) to perform functions under Part 4A of the Port Management Act 1995 (Regulation of towage services); (jb) in relation to Station Pier and West Finger Pier— (i) to plan for the development and operation of the piers; (ii) to provide land, waters and infrastructure necessary for the development and operation of the piers; (iii) to develop, or enable and control the development by others of, the whole or any part of the piers; (iv) to manage, or enable and control the management by others of, the whole or any part of the piers; (v) to provide, or enable and control the provision by others of, services for the operation of the piers; (vi) to facilitate the integration of infrastructure and logistics systems in the piers with the transport system and other relevant systems outside the piers;". -- 82 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 76 Authorised by the Chief Parliamentary Counsel 92 New section 141EA inserted After section 141E of the Transport Integration Act 2010 insert— "141EA Minister may authorise Port of Melbourne Corporation to perform certain functions The Minister may, in writing, authorise the Port of Melbourne Corporation to perform a function specified in section 141E(1)(a).". 93 Dredging by Port of Melbourne Corporation In section 141F of the Transport Integration Act 2010, for "carrying out its functions as a channel operator" substitute "performing its functions under section 141E(1)(h)". Division 2—Amendment of Port Management Act 1995 94 Definitions (1) In section 3(1) of the Port Management Act 1995— (a) for the definition of port licence fee substitute— "port licence fee means the fee payable by the port licence holder under Part 2B;"; (b) in the definition of port of Melbourne land, in paragraph (a)(i), for "the Port of Melbourne Corporation" substitute "a public sector entity or the port of Melbourne operator". (2) In section 3(1) of the Port Management Act 1995 insert the following definitions— "anchorage means a place in port waters where vessels may anchor; -- 83 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 77 Authorised by the Chief Parliamentary Counsel channel-dredging activities means any of the following activities to enable use of a channel by vessels— (a) altering, dredging, cleansing, scouring, straightening and improving a channel; (b) reducing or removing any banks or shoals within a channel; (c) abating and removing any impediments, obstructions and nuisances in a channel that are injurious to the seabed or that obstruct or tend to obstruct navigation; (d) placing or disposing of excavated or dredged material resulting from the carrying out of an activity referred to in paragraph (a), (b) or (c); (e) undertaking any works necessary to place or dispose of excavated or dredged material resulting from the carrying out of an activity referred to in paragraph (a), (b) or (c); leased port of Melbourne land means port of Melbourne land in respect of which the port of Melbourne operator holds a leasehold interest; port licence means a licence granted under Division 5 of Part 3; port licence holder means the holder of a port licence; port of Melbourne operator means a person declared under section 4A to be the port of Melbourne operator; provision of channels includes carrying out channel-dredging activities; -- 84 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 78 Authorised by the Chief Parliamentary Counsel public entity has the same meaning as in the Public Administration Act 2004; public sector entity has the same meaning as in the Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016;". 95 Owner of vessel or cargo In section 4(2)(b) of the Port Management Act 1995, after "Corporation," insert "the port of Melbourne operator,". 96 New section 4A inserted After section 4 of the Port Management Act 1995 insert— "4A Declaration of port of Melbourne operator The Minister, by Order published in the Government Gazette, may declare that a person specified in the Order is on and after a date specified in the Order the port of Melbourne operator.". 97 Accountability for damage (1) In section 23(1) of the Port Management Act 1995— (a) after paragraph (a)(i) insert— "(ia) any property (whether real or personal) of the port of Melbourne operator (being property used by the port of Melbourne operator in connection with the provision of channels by it); or"; (b) in paragraph (b), for "or a channel operator as channel operator," substitute "a channel operator as channel operator or the port of Melbourne operator"; -- 85 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 79 Authorised by the Chief Parliamentary Counsel (c) for "or the channel operator" substitute ", the channel operator or the port of Melbourne operator (as the case requires)". (2) In section 23(2) of the Port Management Act 1995, for "or the channel operator" substitute ", the channel operator or the port of Melbourne operator". (3) In section 23(2A) and (3) of the Port Management Act 1995, for "or a channel operator" substitute ", a channel operator or the port of Melbourne operator". 98 Liability of certain persons In section 24(1) of the Port Management Act 1995, for "or a channel operator" substitute ", a channel operator or the port of Melbourne operator". 99 New section 44H substituted and new sections 44HAA and 44HA inserted For section 44H of the Port Management Act 1995 substitute— "44HAA Definitions In this Part— annual licence fee means the port licence fee payable under section 44H; upfront licence fee means the port licence fee payable under section 44HA; Victorian Transport Fund means the Fund established under section 13 of the Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016. -- 86 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 80 Authorised by the Chief Parliamentary Counsel 44H Liability to pay port licence fee (1) The port licence holder is liable to pay a port licence fee in respect of the port licence the port licence holder holds. (2) The port licence fee is payable for each financial year the port licence is in force on and after 1 July 2015 (an annual licence fee). (3) The amount of the annual licence fee is the amount calculated in accordance with this Part. (4) The amount of the annual licence fee that is payable is not to be adjusted even if the obligation to pay the fee arises after the beginning of the financial year in respect of which the fee is payable. (5) No amount of an annual licence fee that has been paid is to be refunded if the port licence ceases to be in force before the end of the financial year in respect of which that fee has been paid. 44HA Treasurer may require a one-off upfront licence fee for a period of up to 15 years instead of annual fees for that period (1) Despite section 44H, the Treasurer, in respect of a period of up to 15 years ending on or before 1 July 2032, may require the port licence holder to pay to the Treasurer, before that period commences, a fee determined by the Treasurer in relation to all of the financial years encompassed by that period in which the port licence will be in force (an upfront licence fee) instead of the annual licence fees that would otherwise be payable under section 44H for those financial years. -- 87 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 81 Authorised by the Chief Parliamentary Counsel (2) In determining an upfront licence fee, the Treasurer may have regard to the way section 44J would otherwise apply to determine the annual licence fee for each financial year encompassed by the period to which the upfront licence fee relates. (3) Subsection (2) does not limit how the Treasurer may determine an upfront licence fee. (4) The payment of an upfront licence fee satisfies any obligation a port licence holder has to pay an annual licence fee for a financial year that would otherwise arise under section 44H if that upfront licence fee relates to a period that encompasses that financial year. (5) No upfront licence fee, and no part of an upfront licence fee, that is paid in accordance with this section is to be refunded to the port licence holder except as provided under section 44N.". 100 Notice of annual licence fee (1) In the heading to section 44K of the Port Management Act 1995, for "port" substitute "annual". (2) In section 44K(1) of the Port Management Act 1995— (a) for "a port" substitute "an annual"; (b) for "the port" substitute "the annual". (3) In section 44K(2) of the Port Management Act 1995— (a) for "Port of Melbourne Corporation" substitute "port licence holder"; (b) for "port" substitute "annual". -- 88 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 82 Authorised by the Chief Parliamentary Counsel 101 Method of payment of annual licence fee (1) In the heading to section 44L of the Port Management Act 1995, for "port" substitute "annual". (2) In section 44L(1) of the Port Management Act 1995— (a) for "port" substitute "annual"; (b) for "Port of Melbourne Corporation" substitute "port licence holder". (3) In section 44L(2) of the Port Management Act 1995— (a) for "Port of Melbourne Corporation" substitute "port licence holder"; (b) for "port" substitute "annual". (4) In section 44L(3) of the Port Management Act 1995— (a) for "Port of Melbourne Corporation" substitute "port licence holder"; (b) for "State" substitute "Minister". 102 New sections 44M and 44N inserted After section 44L of the Port Management Act 1995 insert— "44M Where are port licence fees to be paid? (1) An annual licence fee (including an instalment amount of an annual licence fee) is to be paid into the Consolidated Fund. (2) An upfront licence fee is to be paid into the Victorian Transport Fund unless the Treasurer directs that the fee is to be paid into the Consolidated Fund. -- 89 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 83 Authorised by the Chief Parliamentary Counsel 44N Refund of upfront licence fee (1) This section applies if— (a) the port licence holder has paid an upfront licence fee; and (b) before the period for which the port licence holder has paid that fee ends, the Minister revokes the holder's port licence under section 63J on a ground specified in the licence as a ground on which a refund of an upfront licence or part of an upfront licence fee is payable. (2) There must be paid to the previous port licence holder an amount (the refund amount) that is attributable to the financial years that have not passed and are encompassed by the period to which the upfront licence relates. (3) The refund amount must be paid as follows— (a) if the upfront licence fee was paid into the Victorian Transport Fund and there are sufficient funds in that Fund for that payment, from that Fund; (b) if the upfront licence fee was paid into the Victorian Transport Fund but there are insufficient funds in that Fund for that payment, from— (i) that Fund; and (ii) the Consolidated Fund in respect of any part of the amount that cannot be met by funds in the Victorian Transport Fund; -- 90 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 84 Authorised by the Chief Parliamentary Counsel (c) if the upfront licence fee was paid into the Consolidated Fund, from the Consolidated Fund. (4) The Consolidated Fund is appropriated to the extent necessary for the purposes of a payment of a refund amount under subsection (3)(b)(ii) or (c). (5) In this section— previous port licence holder means the person who held the port licence that has been revoked under section 63J and to which this section applies.". 103 Definitions In section 45 of the Port Management Act 1995— (a) insert the following definitions— 'adverse compliance report, in relation to a provider of prescribed services, means a final published report in which the Commission has found that the provider has not complied with a Pricing Order in a significant and sustained manner; associated entity has the same meaning as in the Corporations Act; authorised transaction has the same meaning as in the Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016; Dedicated Channels means that part of port of Melbourne waters that are north of Fawkner Beacon; enforceable provision means a provision of a Pricing Order that is prescribed; -- 91 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 85 Authorised by the Chief Parliamentary Counsel ESC Minister means the Minister administering the Essential Services Commission Act 2001; ESC Price Monitoring Determination means— (a) the determination of the Commission under Part 3 of the Essential Services Commission Act 2001 titled the "Price Monitoring Determination for Victorian Ports 2010" made on 4 May 2010, as amended from time to time; (b) any determination under Part 3 of the Essential Services Commission Act 2001 made by the Commission that revokes and substitutes, or supersedes, the determination referred to in paragraph (a), as amended from time to time; final published report means a report on an inquiry under section 49I laid before each House of the Parliament or made available for public inspection in accordance with section 45 of the Essential Services Commission Act 2001; port assets has the same meaning as in the Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016; Pricing Order means an Order in Council made under section 49A; Pricing Order transition period means the period specified under a Pricing Order; -- 92 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 86 Authorised by the Chief Parliamentary Counsel protected provision means— (a) a provision of a Pricing Order that specifies the initial values of assets used by a provider of prescribed services to provide those services, including the Shared Channels used by vessels bound either for the port of Melbourne or for the port of Geelong; or (b) a provision of a Pricing Order that specifies the economic life of an asset used by a provider of prescribed services to provide those services for amortisation and depreciation purposes; or (c) a provision of a Pricing Order specified under a Pricing Order as a protected provision; re-regulation recommendation means a recommendation of the ESC Minister to the Governor in Council to make an Order under section 49A that amends or revokes provisions of a Pricing Order to make Division 3 apply in relation to the provision of prescribed services; seaward limit means the line constituting the arc of a circle with a radius of 3 nautical miles centred on position 38°17'.52' S144°36'.84"E (Point Lonsdale Signal Station); Shared Channels means that part of port of Melbourne waters extending from the seaward limit to Point Richards in the direction of Geelong and Fawkner Beacon in the direction of Melbourne, -- 93 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 87 Authorised by the Chief Parliamentary Counsel including the channels known as the Great Ship Channel and adjacent channels and the South Channel; show cause notice means a notice under section 49K(1).'; (b) in the definition of prescribed prices, for "section 49(b)" substitute "section 49(1)(b)"; (c) in the definition of prescribed services, for "section 49(c)" substitute "section 49(1)(c)"; (d) in the definition of regulated industry, for "section 49(a)." substitute "section 49(1)(a);"; (e) the definitions of channel operator, Competition Principles Agreement and prescribed channel are repealed. 104 Application of Part (1) In section 47 of the Port Management Act 1995, for "This" substitute "Subject to this section, this". (2) At the end of section 47 of the Port Management Act 1995 insert— "(2) Division 3 applies (and Divisions 2A and 2B do not apply) in relation to the provision of prescribed services if a Pricing Order declares that— (a) Division 3 applies in relation to the provision of prescribed services; and (b) the Pricing Order (other than the protected provisions) does not apply in relation to the provision of prescribed services. -- 94 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 88 Authorised by the Chief Parliamentary Counsel (3) To avoid doubt, Divisions 2A and 2B do not apply, and Division 3 applies, to the provision of prescribed services if there is no Pricing Order in effect.". 105 New section 48 substituted and new section 48A inserted For section 48 of the Port Management Act 1995 substitute— "48 Objectives of this Part (1) The objectives of this Part are— (a) to promote efficient use of, and investment in, the provision of prescribed services for the long-term interests of users and Victorian consumers; and (b) to protect the interests of users of prescribed services by ensuring that prescribed prices are fair and reasonable whilst having regard to the level of competition in, and efficiency of, the regulated industry; and (c) to allow a provider of prescribed services a reasonable opportunity to recover the efficient costs of providing prescribed services, including a return commensurate with the risks involved; and (d) to facilitate and promote competition— (i) between ports; and (ii) between shippers; and (iii) between other persons conducting other commercial activities in ports; and -- 95 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 89 Authorised by the Chief Parliamentary Counsel (e) to eliminate resource allocation distortions by prohibiting a State sponsored port operator from providing a relevant service at a price lower than the competitively neutral price for that service. (2) In this section, competitively neutral price, State sponsored port operator and relevant services each have the meaning given to them by section 49R. 48A Commission must have regard to objectives of this Part In addition to the objectives under section 8 of the Essential Services Commission Act 2001 (but subject to section 5(2) of that Act), the Commission must have regard to the objectives set out in section 48 when performing its functions or exercising its powers in relation to the regulated industry.". 106 Price regulation—prescribed services (1) For section 49(c)(i), (ii) and (iii) of the Port Management Act 1995 substitute— "(i) the provision of channels (except anchorages) for use by shipping in port of Melbourne waters, including the Shared Channels used by vessels bound either for the port of Melbourne or for the port of Geelong and the Dedicated Channels used by vessels bound for the port of Melbourne; (ii) the provision of berths, buoys or dolphins in connection with the berthing of vessels in the port of Melbourne; (iii) the provision of short-term storage or cargo marshalling facilities in connection with the loading or unloading of vessels at berths, buoys or dolphins in the port of Melbourne; -- 96 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 90 Authorised by the Chief Parliamentary Counsel (iv) the provision of access to, or allowing the use of, places or infrastructure (including wharves, slipways, gangways, roads and rail infrastructure) on port of Melbourne land for the provision of services to port users; Examples Tanker, wharf and water inspection services, and security services, are kinds of services that are provided to port users on port of Melbourne land. (v) any other service that is prescribed by the regulations.". (2) At the end of section 49 of the Port Management Act 1995 insert— "(2) For the purposes of Part 3 of the Essential Services Commission Act 2001— (a) a granting of a lease or sublease by the port of Melbourne operator pursuant to which a person is permitted to provide any of the following in the port of Melbourne to other persons is not a prescribed service— (i) container terminal or stevedoring operations; (ii) automotive terminal or stevedoring operations; (iii) dry-bulk terminal or stevedoring operations; (iv) liquid-bulk terminal or stevedoring operations; (v) break-bulk terminal or stevedoring operations; (vi) an activity or operations specified in the regulations; and -- 97 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 91 Authorised by the Chief Parliamentary Counsel (b) the services described in subparagraphs (i) to (v) of subsection (1)(c) are not prescribed services if the Port of Melbourne Corporation provides those services.". 107 New Division 2 of Part 3 inserted After Division 1 of Part 3 of the Port Management Act 1995 insert— "Division 2—Port of Melbourne Pricing Order 49A Pricing Order (1) The Governor in Council, on the recommendation of the ESC Minister, may make an Order— (a) for or with respect to the provision of prescribed services; and (b) for the regulation, in such manner as the Governor in Council thinks fit, of the prices for the provision of prescribed services. (2) Without limiting the generality of subsection (1)(a), an Order under subsection (1) may— (a) declare whether Division 2A, 2B or 3, or the Order, applies in relation to the provision of prescribed services; and Note See also section 47(2). (b) specify a provision of the Order as a protected provision; and (c) specify a period commencing on the day the Pricing Order takes effect as the Pricing Order transition period; and -- 98 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 92 Authorised by the Chief Parliamentary Counsel (d) specify procedures to enable monitoring of compliance with the Order; and (e) specify how specified information is to be recorded and kept; and (f) require persons to prepare and give reports to the Commission about specified information or specified matters. (3) Without limiting the generality of subsection (1)(b), the manner may include any one or more of the following— (a) monitoring the level of prices for prescribed services or any component of prescribed services; (b) specifying pricing policies or principles; (c) specifying cost measurement and allocation principles; (d) specifying initial values of assets used by the port of Melbourne operator to provide prescribed services, including the initial values of the Shared Channels used by vessels bound either for the port of Melbourne or for the port of Geelong; (e) specifying the treatment of capital expenditure; (f) fixing the price or the rate of increase or decrease in a price; (g) fixing a maximum price or maximum rate of increase or minimum rate of decrease in the maximum price; -- 99 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 93 Authorised by the Chief Parliamentary Counsel (h) fixing an average price for prescribed services or any component of prescribed services, or an average rate of increase or decrease in the average price; (i) specifying an amount determined by reference to a general price index, the cost of production, a rate of return on assets employed or any other specified factor; (j) specifying an amount determined by reference to quantity, location, period or other specified factor relevant to the rate or supply of prescribed services or any component of prescribed services; (k) fixing a maximum revenue or maximum rate of increase or minimum rate of decrease in the maximum revenue in relation to prescribed services or any component of prescribed services; (l) providing for a return on, or return of, capital— (i) before any relevant capital expenditure is incurred; or (ii) over a period that is shorter than the projected economic life of the relevant asset; or (iii) if the provider of prescribed services to whom the Order applies or any associated entity of the provider is a private sector entity who has been granted a lease of port assets for the purposes of an authorised transaction, on an uneven basis -- 100 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 94 Authorised by the Chief Parliamentary Counsel during the period that equates to the term of that lease. 49B General powers in relation to a Pricing Order A Pricing Order may— (a) confer functions and powers on, or leave any matter to be decided by, the Commission; and (b) be of general or limited application; and (c) differ according to differences in time, place or circumstances. 49C Pricing Order must be published in the Government Gazette A Pricing Order must be published in the Government Gazette. 49D When Pricing Order takes effect A Pricing Order takes effect— (a) on the day the Order is published in the Government Gazette; or (b) if a later day is specified in the Order, on that day. 49E Limitation on amending or revoking a Pricing Order A Pricing Order cannot be amended or revoked except in accordance with this Division. 49F Circumstances in which a Pricing Order may be amended (1) Subject to sections 49G and 49H, a Pricing Order may only be amended by an Order made under section 49A as follows— -- 101 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 95 Authorised by the Chief Parliamentary Counsel (a) to revoke a provision that declares that Division 3 does not apply in relation to the provision of prescribed services; Note See also section 47(2). (b) to revoke a provision because of the commencement of port operations at a new container port in Victoria; (c) to make consequential amendments to the Order as a result of a revocation of the kind provided under paragraph (a) or (b); (d) with the agreement of the provider of prescribed services to whom the Order applies. (2) A Pricing Order may only be amended as provided under subsection (1)(a) if the ESC Minister decides to make a re-regulation recommendation. Note See also section 49L. 49G Circumstances in which a Pricing Order may be wholly revoked A Pricing Order may be wholly revoked by an Order made under section 49A if— (a) the provider of prescribed services to whom the Order applies is a public entity; or (b) the provider of prescribed services to whom the Order applies agrees to the revocation. -- 102 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 96 Authorised by the Chief Parliamentary Counsel 49H Protected provisions cannot be revoked or amended etc. (1) A protected provision that is in effect cannot be amended by another Order made under section 49A except with the agreement of the provider of prescribed services to whom the Order applies. (2) In addition, the effect of a protected provision that is in effect cannot be altered or varied by another Order made under section 49A except with the agreement of the provider of prescribed services to whom the Order applies. (3) A protected provision cannot be revoked except— (a) when the Pricing Order is wholly revoked because of the circumstances set out in section 49G; or (b) with the agreement of the provider of prescribed services to whom the Order applies.". 108 New Divisions 2A to 2D of Part 3 inserted After Division 2 of Part 3 of the Port Management Act 1995 insert— "Division 2A—Monitoring compliance with Pricing Order 49I Conduct of reviews into compliance with Pricing Order (1) The Commission must, not later than 6 months after a review period, conduct and complete an inquiry under the Essential Services Commission Act 2001 and report to the ESC Minister— -- 103 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 97 Authorised by the Chief Parliamentary Counsel (a) as to whether a provider of prescribed services to whom a Pricing Order applies has complied with the Order during the review period; and (b) if there was non-compliance with the Pricing Order, whether that non- compliance was, in the Commission's view, non-compliance in a significant and sustained manner. (2) Subject to this Division, an inquiry under this section must be conducted in accordance with Part 5 of the Essential Services Commission Act 2001 but sections 40 and 46 of that Act do not apply in respect of that inquiry. (3) As part of an inquiry under this section the Commission may take into account— (a) any findings it has made in reports on previous inquiries under this section; and (b) the nature and details of any instance of non-compliance with a Pricing Order by a provider of prescribed services that is the subject of a report on a previous inquiry under this section. (4) Without limiting Part 5 of the Essential Services Commission Act 2001, a final report on an inquiry under this section must include— (a) the Commission's findings as to whether there has been non-compliance with a Pricing Order by a provider of prescribed services that is non- compliance in a significant and sustained manner; and -- 104 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 98 Authorised by the Chief Parliamentary Counsel (b) the Commission's reasons for those findings. (5) In this section— review period means— (a) the period commencing on the day on which the first Pricing Order made under section 49A takes effect and ending 5 years after that day; and (b) every subsequent period of 5 years commencing on the day after the day on which the previous period ends. 49J Draft report to be provided to provider of prescribed services The Commission must— (a) provide a draft of a report on an inquiry under section 49I to the provider of prescribed services who is the subject of the inquiry; and (b) give the provider an opportunity to make a written submission to the Commission on that draft report before the Commission prepares its final report on the inquiry. 49K Giving of show cause notice to non- compliant provider of prescribed services (1) If the ESC Minister, having regard to an adverse compliance report and after consultation with the Minister, considers that the provider of prescribed services who is the subject of the report has not complied with a Pricing Order in a significant and sustained manner, the ESC Minister may give the -- 105 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 99 Authorised by the Chief Parliamentary Counsel provider a written notice (a show cause notice). (2) A show cause notice must— (a) state that the ESC Minister considers that the provider of prescribed services has not complied with the Pricing Order in a significant and sustained manner and that the ESC Minister is considering making a re-regulation recommendation; and (b) set out the nature and details of non-compliance with the Pricing Order that the ESC Minister considers constitute non-compliance in a significant and sustained manner; and (c) specify any actions that the ESC Minister considers the provider may take to remedy that non-compliance or to prevent non-compliance, including the giving of an undertaking under section 49M; and (d) state that the provider may make written submissions to the ESC Minister, in the time specified in the show cause notice, as to why, in the provider's view, the ESC Minister should not make a re-regulation recommendation. (3) The time specified in a show cause notice for the purposes of subsection (2)(d) must not be less than 60 days after the notice is given to the provider. (4) After receiving a written submission in response to a show cause notice, the ESC Minister, by written notice, may request further information from the provider of -- 106 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 100 Authorised by the Chief Parliamentary Counsel prescribed services within the period specified in that notice. (5) The ESC Minister must not give a show cause notice until any appeal under section 55 of the Essential Services Commission Act 2001 relating to the adverse compliance report is finally heard and determined by the appeal panel under section 56 of that Act. (6) The ESC Minister must cause to be published a show cause notice and a notice under subsection (4) on the Department's Internet site. 49L Re-regulation recommendation (1) Subject to this section, after the giving of a show cause notice to a provider of prescribed services, the ESC Minister must decide whether to make a re-regulation recommendation. (2) Before making a decision under subsection (1), the ESC Minister must consult with the Minister. (3) In deciding whether to make a re-regulation recommendation, the ESC Minister must have regard to— (a) any written submission of the provider of prescribed services in response to the show cause notice that the Minister receives within the time specified in the notice, including any undertakings the provider proposes to give under section 49M; and (b) any further information the provider gives to the Minister on a request under section 49K(4); and -- 107 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 101 Authorised by the Chief Parliamentary Counsel (c) whether the provider has breached any undertaking given under section 49N; and (d) whether it is in the public interest that Division 3 apply in relation to the provision of prescribed services. (4) In having regard to the matter in subsection (3)(d), the ESC Minister must have regard to the objectives of this Part. (5) The ESC Minister must decide whether to make a re-regulation recommendation within 90 days after the later of— (a) the date specified in the show cause notice as the date by which the provider of prescribed services must make a submission; or (b) the date on which the provider must provide the information requested under section 49K(4) to the ESC Minister. 49M Undertakings (1) The ESC Minister may accept a written undertaking given by a provider of prescribed services who is the subject of an adverse compliance report in relation to the provider's non-compliance with a Pricing Order if the ESC Minister is satisfied that— (a) the terms of the undertaking offered by the provider are appropriate to adequately address the provider's non- compliance with a Pricing Order; and (b) the provider is reasonably likely to comply with the terms of the undertaking. -- 108 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 102 Authorised by the Chief Parliamentary Counsel (2) Before accepting an undertaking under subsection (1), the ESC Minister must consult with the Minister. (3) The provider of prescribed services may withdraw or vary the undertaking at any time, but only with the consent of the ESC Minister. (4) The ESC Minister must cause to be published a copy of an undertaking accepted under subsection (1) on the Department's Internet site. 49N Enforcement of undertakings (1) This section applies if the ESC Minister considers that a provider of prescribed services whose undertaking has been accepted under section 49M has breached any of its terms. (2) The ESC Minister may apply to the Supreme Court for an order under subsection (4). (3) Before making an application under subsection (2), the ESC Minister must consult with the Minister. (4) If, on an application under subsection (2), the Supreme Court is satisfied that the provider of prescribed services has breached a term of the undertaking, the Court may make all or any of the following orders— (a) an order directing the provider to comply with that term of the undertaking; (b) an order directing the provider to pay to the State an amount up to the amount of any financial benefit that the provider has obtained directly or indirectly and -- 109 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 103 Authorised by the Chief Parliamentary Counsel that is reasonably attributable to the breach; (c) any order that the Court considers appropriate directing the provider to compensate any other person who has suffered loss or damage as a result of the breach; (d) any other order that the Court considers appropriate. Division 2B—Transitional enforcement regime for port of Melbourne operator 49O Application of Division (1) This Division applies during the Pricing Order transition period. (2) This Division does not limit Division 2A. 49P Enforcement of Pricing Order during Pricing Order transition period If the Supreme Court is satisfied, on the application of the ESC Minister, that a provider of prescribed services has engaged, is engaging, or is proposing to engage in conduct that constitutes a contravention of an enforceable provision, the Court may make all or any of the following orders— (a) an order granting an injunction on such terms as the Court thinks appropriate— (i) restraining the provider from engaging in the conduct; or (ii) if the conduct involves refusing or failing to do something, requiring the provider to do that thing; -- 110 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 104 Authorised by the Chief Parliamentary Counsel (b) an order directing the provider to pay to the State an amount up to the amount of any financial benefit that the provider has obtained directly or indirectly and that is reasonably attributable to the contravention; (c) an order directing the provider to compensate any other person who has suffered loss or damage as a result of the contravention; (d) any other order that the Court thinks appropriate. Division 2C—Complaints in relation to provision of prescribed services 49Q Person provided prescribed services may complain to ESC in relation to the provision of such services (1) This section applies if a person who is provided prescribed services considers that the provider of those services has not, in providing the services, complied with the Pricing Order which applies to those services. (2) The person may complain to the Commission about the non-compliance with the Pricing Order. (3) On receiving a complaint under subsection (2), the Commission may investigate the complaint. (4) In investigating the complaint, the Commission may have regard to any matter raised or considered in— (a) the Commission's most recent final published report; and -- 111 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 105 Authorised by the Chief Parliamentary Counsel (b) any application to the Supreme Court under section 49P. Note The Commission must also have regard to the objectives of this Part and the objectives under section 8 of the Essential Services Commission Act 2001 when investigating a complaint—see section 48A. (5) The Commission must inform the person of the outcome of its investigation of the person's complaint. (6) If the Commission considers that the issues raised in the complaint have not been considered or dealt with under a Pricing Order or Division 2A or 2B, the Commission may refer the complaint to the ESC Minister. Division 2D—Competitive neutrality pricing Subdivision 1—Preliminary 49R Definitions In this Division— accrual building block methodology—see section 49S; competitively neutral price, for a relevant service, means the price, determined through the application of the competitively neutral pricing principles, that is the lower of— (a) the price which is likely to enable the recovery of the efficient costs attributable to any State cost contribution and any private cost contribution in providing the relevant service; and -- 112 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 106 Authorised by the Chief Parliamentary Counsel (b) the price at which the port of Melbourne operator provides a service that is economically substitutable for the relevant service, having regard to any material differences between the quality or scope of the relevant service and the quality or scope of the economically substitutable service; competitively neutral pricing principles means the principles specified in an Order under section 49ZC; handling, in relation to a container, includes loading, unloading, transporting or storing; private cost contribution means the amount of any capital invested by a private sector entity in, or expenses incurred by a private sector entity in operating, a State sponsored port; private sector entity has the same meaning as in the Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016; relevant service means any of the following services provided at a State sponsored port for the purpose of enabling the handling, at that port, of containers that are being transported from, or are to be transported to, a destination outside of Australia— (a) the provision of channels used by vessels to access the State sponsored port; -- 113 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 107 Authorised by the Chief Parliamentary Counsel (b) the provision of berths, buoys or dolphins in connection with the berthing of vessels carrying container cargoes in the State sponsored port; (c) the provision of short term storage or cargo marshalling facilities in connection with the loading or unloading of vessels carrying container cargoes at berths, buoys or dolphins in the State sponsored port; (d) a service that is prescribed; State cost contribution means an amount reflecting the net competitive advantage conferred on or given to a State sponsored port operator and includes— (a) an exemption from a requirement to pay a State tax or charge; and (b) an exemption under a law of the State; and (c) an explicit or implicit guarantee of debt executed or otherwise given by the State or by a Minister on behalf of the State; and (d) a concessional interest rate on a loan given by a public sector entity; and (e) an exemption from a requirement to account for depreciation expenses; and (f) an exemption from a requirement to earn a commercial rate of return on assets; and -- 114 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 108 Authorised by the Chief Parliamentary Counsel (g) a matter or thing referred to in section 49T(2); State sponsored port—see section 49T; State sponsored port operator means an operator of a State sponsored port. 49S Meaning of accrual building block methodology (1) An accrual building block methodology is a methodology that— (a) provides for an allowance to recover— (i) a return on assets used by a State sponsored port operator to provide relevant services (the capital base of a State sponsored port operator); and (ii) a return of the capital base of a State sponsored port operator through depreciation; and (iii) the forecast efficient operating expenditure that would be incurred by a State sponsored port operator acting prudently in the provision of relevant services; and (b) requires that— (i) an initial capital base of a State sponsored port operator be established utilising the depreciated optimised replacement cost approach; and (ii) the value of that capital base be updated on an annual basis by applying a roll forward principle that takes the opening value at the start of a financial year, adds in -- 115 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 109 Authorised by the Chief Parliamentary Counsel capital expenditure when incurred or to be incurred and deducts an amount for the return of capital; and (iii) the value of any assets transferred from a public sector entity to a private sector entity that form part of a private cost contribution for a State sponsored port be included in the capital base of a State sponsored port operator of that port at a value calculated using the depreciated optimised replacement cost approach; and (c) requires costs incurred by a State sponsored port operator be allocated between different types of relevant services, and other services (if any), on the basis that— (i) costs that are directly attributable to a service are to be allocated to that service; and (ii) costs that are not directly attributable to a service are to be allocated on the basis of the expected revenue share of that service to expected total services revenue; and (d) provides for the establishment of an aggregate revenue requirement that provides a State sponsored port operator with a reasonable opportunity to recover the allowances referred to in subsection (1)(a); and -- 116 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 110 Authorised by the Chief Parliamentary Counsel (e) requires the aggregate revenue requirement to be used to establish the prices for relevant services that, if paid, would provide a State sponsored port operator a reasonable opportunity to recover its aggregate revenue requirement. (2) For the purposes of subsection (1)(a)(i), an accrual building block methodology must provide for the recovery of a return on assets to be determined— (a) by reference to that which would be required by a benchmark efficient entity providing services with a similar degree of risk and (b) using an appropriate method that distinguishes between the cost of equity and debt so that a weighted average cost of capital can be derived. (3) An accrual building block methodology must not, for the purposes of subsection (1)(c), allow for the inclusion, in the capital base of a State sponsored port operator, of any value attributable to rail, road or other landside infrastructure at a place that is outside a State sponsored port operated by that operator. 49T Meaning of State sponsored port (1) A State sponsored port is a port located in Port Phillip Bay (other than the port of Melbourne) or in Western Port Bay— (a) the main purpose of which is to handle international containers and at which containers may be handled; and -- 117 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 111 Authorised by the Chief Parliamentary Counsel (b) to which a matter or thing set out in subsection (2) applies. (2) The following are matters or things which apply for the purposes of subsection (1)— (a) the port has been partially or fully constructed or is being operated by— (i) a public sector entity; or (ii) a private sector entity using financial support in the form of a grant from a public sector entity; (b) any equity funding for construction of the port has been or is provided by or on behalf of a public sector entity on materially better terms than would be available to the operator of that port from a private sector entity; (c) any debt funding for the construction of the port has been or is provided by or on behalf of a public sector entity on materially better terms than would be available to the operator of that port from a private sector entity; (d) a public sector entity provides financial support or a financial concession in respect of the port that has the effect of materially reducing the cost of capital for or operating costs of the port (including the operating costs of users of the port) and that support or concession or a similar support or concession is not available to the port of Melbourne operator; -- 118 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 112 Authorised by the Chief Parliamentary Counsel (e) a public sector entity provides financial support or a financial concession in respect of the costs of the transport of containers to or from the port that has the effect of materially reducing the operating costs of the transport of containers to or from the port and that support or concession, or a similar support or concession, is not available in respect of the transport of containers to or from the port of Melbourne; (f) a public sector entity provides financial support or a financial concession to users of or tenants at or prospective users of or tenants at the port such that their cost of being or becoming a user or tenant of the port is materially reduced and that support or concession, or a similar support or concession, is not available to users of or tenants at or prospective users of or tenants at the port of Melbourne. 49U Application (1) This Division applies on and after the day on which the first lease of land comprising port assets is granted to a private sector entity under section 11 of the Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016. (2) This Division ceases to apply on the day on which the lease referred to in subsection (1) ends. Note The Pricing Order made under Division 2, the ongoing monitoring regime under Division 2A and the transitional enforcement regime under Division 2B apply to the port of Melbourne operator. -- 119 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 113 Authorised by the Chief Parliamentary Counsel Subdivision 2—Competitive neutrality pricing obligations 49V State sponsored port operator must provide services at not less than competitively neutral prices (1) A State sponsored port operator must not provide a relevant service at a price that is lower than the competitively neutral price for the relevant service. (2) For the purposes of complying with subsection (1), a State sponsored port operator must apply the competitively neutral pricing principles. 49W State sponsored port operator must publish relevant service prices A State sponsored port operator must on or before 31 May every year (the publication date)— (a) publish all prices for every relevant service it will provide in the financial year after the publication date; and (b) give a copy of those prices to the Commission. 49X State sponsored port operator must keep records of relevant service prices (1) A State sponsored port operator must keep records (including financial and business records) relating to the prices for relevant services the operator provides in accordance with guidelines prepared under subsection (3). (2) A State sponsored port operator must keep records (including financial and business records) relating to the prices for relevant -- 120 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 114 Authorised by the Chief Parliamentary Counsel services the operator provides in a manner that is consistent with guidelines prepared under subsection (3). (3) The Commission must prepare guidelines for the purposes of subsection (1) and (2). Subdivision 3—Investigation and enforcement of competitive neutrality pricing obligations 49Y Commission may be requested to inquire into relevant service prices (1) This section applies if the ESC Minister or the port of Melbourne operator is of the view that a State sponsored port operator is providing, or is likely to provide, a relevant service at a price lower than the competitively neutral price for that service. (2) The ESC Minister or the port of Melbourne operator may request the Commission to conduct an inquiry into the price for the relevant service. (3) Before making a request, the ESC Minister must consult with the Minister. (4) A request must— (a) be in writing; and (b) set out the grounds on which the ESC Minister or port of Melbourne operator requests the Commission to investigate the price for the relevant service; and (c) include any relevant information or evidence in support of the grounds. -- 121 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 115 Authorised by the Chief Parliamentary Counsel 49Z Commission may conduct inquiry into relevant service prices (1) The Commission must, no later than 3 months after receiving a request under section 49Y— (a) conduct and complete an inquiry into the subject matter of the request; and (b) prepare a final report on the inquiry. (2) In the case of a request under section 49Y from the port of Melbourne operator, the Commission may refuse to act under subsection (1) if the Commission is of the view that the request— (a) is frivolous; or (b) is vexatious; or (c) is without substance; or (d) has been made in bad faith. (3) Part 4, and sections 42 to 46, of the Essential Services Commission Act 2001 apply in respect of an inquiry under this section. (4) A final report on an inquiry under this section must include— (a) the Commission's findings as to whether the State sponsored port operator has been providing, or is likely to provide, a relevant service at a price lower than the competitively neutral price for that service; and (b) the Commission's reasons for those findings. -- 122 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 116 Authorised by the Chief Parliamentary Counsel 49ZA Commission may determine minimum competitively neutral price for relevant service (1) This section applies if the Commission in a final report on an inquiry under section 49Z finds that the State sponsored port operator has been providing, or is likely to provide, a relevant service at a price lower than the competitively neutral price for that service. (2) The Commission may make a determination that specifies the minimum competitively neutral price for the provision of the relevant service. (3) In addition, a determination must specify a period (not exceeding 5 years from the date the determination takes effect) during which the minimum competitively neutral price will apply to the provision of the relevant service. (4) Section 35(1) to (3) and (5) of the Essential Services Commission Act 2001 applies to a determination of the Commission under this section as if the determination under this section were a determination under section 35 of that Act. 49ZB Enforcement of Commission determinations If the Supreme Court is satisfied, on the application of the ESC Minister or the port of Melbourne operator, that a State sponsored port operator has engaged, is engaging, or is proposing to engage in conduct that constitutes a contravention of a determination under section 49ZA, the Court may make all or any of the following orders— -- 123 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 117 Authorised by the Chief Parliamentary Counsel (a) if the applicant is the ESC Minister— (i) an order granting an injunction on such terms as the Court thinks appropriate— (A) restraining the State sponsored port operator from engaging in the conduct; or (B) if the conduct involves refusing or failing to do something, requiring the provider to do that thing; (ii) an order directing the State sponsored port operator to pay to the State an amount up to the amount of any financial benefit that the operator has obtained directly or indirectly and that is reasonably attributable to the contravention; (iii) an order directing the provider to compensate any other person who has suffered loss or damage as a result of the contravention; (b) if the applicant is the port of Melbourne operator, an order granting an injunction on such terms as the Court thinks appropriate— (i) restraining the State sponsored port operator from engaging in the conduct; or (ii) if the conduct involves refusing or failing to do something, requiring the provider to do that thing; (c) in all cases, any other order that the Court thinks appropriate. -- 124 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 118 Authorised by the Chief Parliamentary Counsel Subdivision 4—Competitively neutral pricing principles Order 49ZC Competitively neutral pricing principles Order (1) The Governor in Council, by Order published in the Government Gazette, may specify principles for the purposes of this Division. (2) An Order under this section— (a) must set out principles that provide for the determination of a competitively neutral price for the provision of a relevant service through the application of an accrual building block methodology; and (b) may specify other principles (which may include methodologies or procedures), that are not inconsistent with paragraph (a), for the determination of a competitively neutral price for the provision of a relevant service; and (c) may include any other matter or thing ancillary to, or not inconsistent with, a matter or thing referred to in paragraph (a) or (b). 49ZD General powers in relation competitively neutral pricing principles Order An Order under section 49ZC may— (a) confer functions and powers on, or leave any matter to be decided by, the Commission; and -- 125 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 119 Authorised by the Chief Parliamentary Counsel (b) be of general or limited application; and (c) differ according to differences in time, place or circumstances. 49ZE When a competitively neutral pricing principles Order takes effect An Order under section 49ZC takes effect— (a) on the day the Order is published in the Government Gazette; or (b) if a later day is specified in the Order, on that day. 49ZF Limitation on amending or revoking a competitively neutral pricing principles Order An Order under section 49ZC cannot be amended or revoked except in accordance with this Subdivision. 49ZG Circumstances in which a competitively neutral pricing principles Order may be amended Subject to section 49ZH, an Order under section 49ZC may only be amended with the agreement of the port of Melbourne operator. 49ZH Circumstances in which a competitively neutral pricing principles Order may be wholly revoked A Order under section 49ZC may be wholly revoked by an Order made under that section— (a) if the port of Melbourne operator agrees to the revocation; or (b) after the first lease of land comprising port assets granted to a private sector entity under section 11 of the -- 126 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 120 Authorised by the Chief Parliamentary Counsel Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 ends. 109 New Division 3 heading substituted For the heading to Division 3 of Part 3 of the Port Management Act 1995 substitute— "Division 3—General economic regulation powers". 110 New section 53 substituted For section 53 of the Port Management Act 1995 substitute— "53 Conduct of inquiries (1) The Commission must, not later than 6 months after the end of an inquiry period— (a) conduct and complete an inquiry into the following matters— (i) whether a port lessee or the port of Melbourne operator has power in the relevant market that it may exercise in relation to the process for the setting or reviewing of rents or associated payments (however described) payable by a tenant under an applicable lease; (ii) whether a port lessee or the port of Melbourne operator has exercised that power in a way that has the effect of causing material detriment to the long term interests of Victorian consumers (a misuse of market power); and -- 127 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 121 Authorised by the Chief Parliamentary Counsel (b) if and only if the Commission finds that there has been a misuse of market power, make recommendations to the ESC Minister about whether the provision of access to port of Melbourne land by means of an applicable lease should be subject to economic regulation, and, if so, the form of the economic regulation. (2) For the purposes of subsection (1)(b), the form of economic regulation may include a form of price regulation. (3) Without limiting subsection (1), in conducting an inquiry under this section the Commission must have regard to— (a) the processes used to establish or review rents or associated payments (however described) payable by a tenant under an applicable lease; and (b) a port lessee's or the port of Melbourne operator's compliance with any processes for setting and reviewing rents or associated payments (however described) payable by a tenant under an applicable lease required under— (i) a port of Melbourne lease; or (ii) any agreement or arrangement entered into by the port lessee or the port of Melbourne operator in connection with a port of Melbourne lease; and (c) the extent to which any rents or associated payments (however described) paid by a tenant under an applicable lease may be passed through -- 128 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 122 Authorised by the Chief Parliamentary Counsel by the tenant to users of services provided by the tenant, to those users' customers, and ultimately to Victorian consumers. (4) An inquiry under this section must be conducted in accordance with Part 5 of the Essential Services Commission Act 2001 but section 40 of that Act does not apply in respect of that inquiry. (5) In this section— applicable lease means a sublease, or a sublease of a sublease, of leased port of Melbourne land granted by a port lessee (other than to the port of Melbourne operator) or by the port of Melbourne operator; inquiry period means any of the following— (a) the period of 3 years commencing on the day on which the first lease of land comprising port assets is granted to a private sector entity under section 11 of the Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016; (b) the period of 5 years commencing on the day after the day on which the period referred to in paragraph (a) ends; (c) a period of 5 years commencing on the day after the day on which a previous 5 year period ends; port lessee means a lessee under a port of Melbourne lease; -- 129 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 123 Authorised by the Chief Parliamentary Counsel port of Melbourne lease has the same meaning as in section 59 of the Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016; relevant market means the market for access to leased port of Melbourne land by means of an applicable lease.". 111 General power to make determinations (1) For section 54(1) and (2) of the Port Management Act 1995 substitute— "(1) This section applies if— (a) there is no Pricing Order in effect and the ESC Minister determines that prescribed services are to be subject to price regulation; or (b) there is a Pricing Order in effect and that Order declares that this Division applies to the provision of prescribed services. (2) The Commission must make a determination in accordance with Part 3 of the Essential Services Commission Act 2001.". (2) After section 54(3) of the Port Management Act 1995 insert— "(3A) In addition, while a Pricing Order is in effect, the Commission must not make a determination under this section in relation to prescribed services provided in the port of Melbourne that does not give effect to, or has the effect of altering or varying, a protected provision.". (3) Section 54(5) of the Port Management Act 1995 is repealed. -- 130 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 124 Authorised by the Chief Parliamentary Counsel (4) After section 54(6) of the Port Management Act 1995 insert— "(7) To avoid doubt, a determination made by the Commission under this section in relation to prescribed services provided in the port of Melbourne does not cease to have effect only because a Pricing Order ceases to have effect.". 112 New Division heading inserted Insert the following heading after section 54 of the Port Management Act 1995— "Division 3A—Service quality monitoring". 113 New section 54A inserted Before section 55 of the Port Management Act 1995 insert— "54A ESC Minister may direct Commission in relation to exercise of powers relating to standards and conditions of service and supply (1) The ESC Minister may request, in writing, the Commission to exercise its powers under section 55(1). (2) A request under subsection (1) may specify the time within which the Commission is to exercise its powers under section 55(1). (3) The Commission must comply with a request it receives under subsection (1).". 114 Standards and conditions of service and supply (1) In section 55(2) of the Port Management Act 1995 omit ", other than a power relating to prescribed services referred to in section 49(c)(iii)". -- 131 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 125 Authorised by the Chief Parliamentary Counsel (2) Section 55(3), (4) and (5) of the Port Management Act 1995 are repealed. 115 New Division heading inserted Insert the following heading before section 56 of the Port Management Act 1995— "Division 3B—Information requirements and information disclosure restrictions". 116 Division 5 of Part 3 substituted For Division 5 of Part 3 of the Port Management Act 1995 substitute— "Division 5—Port licences 63A Provision of prescribed services without licence prohibited A person must not provide prescribed services unless the person— (a) is the holder of a licence authorising the provision of the relevant prescribed services; or (b) is exempted from the requirement to obtain a licence in respect of the provision of the relevant prescribed services. Penalty: 100 penalty units and 10 penalty units for each day after the day on which a notice of contravention of this section is served on the person by the Minister. -- 132 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 126 Authorised by the Chief Parliamentary Counsel 63B Exemptions for public sector entities that are not the port of Melbourne operator The following entities are exempted from the requirement to obtain a licence in respect of the provision of prescribed services— (a) the Port of Melbourne Corporation; (b) any other public sector entity if it is not the port of Melbourne operator. 63C Exemptions by Governor in Council (1) The Governor in Council, by Order in Council published in the Government Gazette, may exempt a person from the requirement to obtain a licence in respect of the provision of the prescribed services specified in the Order in Council. (2) An exemption may be of general or specific application. (3) An exemption is subject to such terms, conditions and limitations as are specified in the Order in Council. (4) An Order under subsection (1) may confer powers and functions on, and leave any matter to be decided by, the Minister. 63D Application for port licence (1) A person may apply to the Minister for the issue of a licence authorising the provision of the prescribed services specified in the application. (2) An application must be in a form approved by the Minister and be accompanied by such documents as may be required by the Minister. (3) An application must be accompanied by the application fee (if any) fixed by the Minister. -- 133 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 127 Authorised by the Chief Parliamentary Counsel 63E Grant or refusal of application (1) Subject to subsection (2), the Minister may grant or refuse an application for the issue of a licence for any reason the Minister considers appropriate. (2) Subject to this section, the Minister may decide the procedures that are to apply in respect of the issue of a licence. (3) The Minister must notify an applicant in writing of the Minister's decision to grant or refuse to grant the application and, in the case of a decision to refuse to grant the application, of the reasons for the Minister's decision. 63F Provisions relating to port licences (1) A licence is to be issued for such term (if any) as is decided by the Minister and is specified in the licence. (2) Subject to this section, a licence is subject to such conditions as are decided by the Minister. (3) Without limiting the generality of subsection (2), the conditions on a licence may include provisions— (a) requiring the port licence holder to be the port of Melbourne operator; or (b) requiring the port licence holder to comply with a requirement under Part 2B; or (c) specifying procedures for the variation of the licence; or (d) specifying grounds and procedures for the revocation of the licence. -- 134 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 128 Authorised by the Chief Parliamentary Counsel (4) The Minister must consult with the Treasurer before deciding conditions specifying— (a) procedures for the variation or revocation of the licence; or (b) any grounds for the revocation of the licence. (5) In addition, the Minister, in any conditions that the Minister decides that specify a procedure for the variation or revocation of the licence, must include a requirement that the Minister consult with the Treasurer before making any decision under that procedure. 63G Gazettal requirement in relation to grant of port licence (1) The Minister must ensure that notice of the grant of a port licence is published in the Government Gazette as soon as possible after the grant of a licence. (2) A notice under subsection (1) must include— (a) the name of the port licence holder; and (b) the term of the port licence; and (c) the place where a copy of the port licence may be inspected. 63H Compliance with conditions of port licence A port licence holder must comply with the conditions of the port licence the port licence holder holds. Penalty: 100 penalty units and 10 penalty units for each day after the day on which a notice of contravention of -- 135 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 129 Authorised by the Chief Parliamentary Counsel this section is served on the person by the Minister. 63I Variation of port licence A port licence or the licence conditions may be varied— (a) in accordance with the procedures specified in the licence conditions; or (b) by agreement between the Minister (after consultation with the Treasurer) and the port licence holder. 63J Revocation of port licence (1) The Minister may revoke a port licence on any ground specified in the licence conditions. (2) The procedure that applies to a revocation of a port licence under subsection (1) is the procedure specified in the licence conditions (if any). 63K Transfer of port licence—on application by port licence holder (1) A port licence holder may apply to the Minister for approval to transfer the port licence they hold. (2) An application must be in a form approved by the Minister and be accompanied by such documents as may be required by the Minister. (3) An application must be accompanied by the application fee (if any) fixed by the Minister. -- 136 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 130 Authorised by the Chief Parliamentary Counsel (4) Subject to this section, the Minister may approve, or refuse to approve, the application for any reason the Minister considers appropriate. (5) The Minister may, after consultation with the Treasurer, decide that, upon the transfer of the port licence under this section, the conditions to which the licence is subject are varied as decided by the Minister. (6) Subject to this section, the Minister may decide the procedures that are to apply in respect of the transfer of a port licence. (7) The Minister must notify an applicant in writing of the Minister's decision to approve or refuse to approve the application and, in the case of a decision to refuse to approve the application, of the reasons for the Minister's decision. 63L Transfer of port licence—on Minister's initiative (1) The Minister, with the consent of the port licence holder, may transfer the port licence the port licence holder holds to another person. (2) The Minister may, after consultation with the Treasurer, decide that, upon the transfer of the port licence under this section, the conditions to which the licence is subject are varied as decided by the Minister.". -- 137 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 131 Authorised by the Chief Parliamentary Counsel 117 New Division 6 of Part 3 inserted After Division 5 of Part 3 of the Port Management Act 1995 insert— "Division 6—Other matters 63M Revocation of ESC Price Monitoring Determination when Pricing Order takes effect Despite anything to the contrary in the Essential Services Commission Act 2001 or this Act, unless sooner revoked, the ESC Price Monitoring Determination is revoked on the day the first Pricing Order takes effect.". 118 Towage requirements determination (1) In section 73B(1) of the Port Management Act 1995— (a) in paragraph (c), after "minimum" insert "towing and pushing"; (b) after paragraph (c) insert— "(ca) the minimum emergency response capability (including minimum fire-fighting capabilities) of any such vessels or class of such vessels and any specified standards applicable to such capabilities; and"; (c) in paragraph (e), for "services." substitute "services; and"; (d) after paragraph (e) insert— "(f) the availability required for such vessels that have emergency response capabilities (including fire-fighting capabilities).". -- 138 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 132 Authorised by the Chief Parliamentary Counsel (2) After section 73B(3) of the Port Management Act 1995 insert— "(3A) A standard specified for the emergency response capabilities (including the fire- fighting capabilities) for a towage vessel, or a class of towage vessel, in a determination under subsection (1) must meet or exceed the relevant standard specified by the Director, Transport Safety under section 202B of the Marine Safety Act 2010.". 119 Process for making a towage requirements determination For section 73C(1) of the Port Management Act 1995 substitute— "(1) Subject to subsection (1A), the Port of Melbourne Corporation must publish notice of a proposal to make a towage requirements determination in the Government Gazette before making the determination. (1A) The Port of Melbourne Corporation must consult with the port of Melbourne operator on the proposal at least 30 days before publishing a notice under subsection (1).". 120 Determination of towage conditions In section 73J(2) of the Port Management Act 1995— (a) in paragraph (b), after "minimum" insert "towing and pushing"; (b) after paragraph (b) insert— "(ba) the minimum emergency response capability (including minimum fire-fighting capabilities) of any such vessels or class of such vessels and any specified standards applicable to such capabilities; and"; -- 139 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 133 Authorised by the Chief Parliamentary Counsel (c) in paragraph (d), for "services." substitute "services; and"; (d) after paragraph (d) insert— "(e) the availability required for such vessels that have emergency response capabilities (including fire-fighting capabilities).". 121 Limitation on making towage conditions determinations After section 73K(1)(b) of the Port Management Act 1995 insert— "(ba) must not make a determination that specifies a standard that is to apply to the emergency response capabilities (including the fire- fighting capabilities) of a towage vessel, or class of towage vessel, to be supplied by the notified towage services provider that does not meet or exceed the relevant standard specified by the Director, Transport Safety under section 202B of the Marine Safety Act 2010; and". 122 Process for making towage conditions determination For section 73N(1) of the Port Management Act 1995 substitute— "(1) The Port of Melbourne Corporation must not make a towage conditions determination unless the Corporation has first consulted with— (a) the Director, Transport Safety; and (b) the port of Melbourne operator.". -- 140 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 134 Authorised by the Chief Parliamentary Counsel 123 New sections 74AA and 74AB inserted Before section 74 of the Port Management Act 1995 insert— "74AA Definitions In this Part— anchorage fee means a channel fee for the provision of an anchorage; Note A channel includes anchorages—see the definition of channel in section 3(1). approved channel fee means a channel fee approved by Order in Council under section 74AB; approved wharfage fee means a wharfage fee approved by Order in Council under section 74AB; designated State port entity means any of the following entities designated by Order in Council under section 74AB— (a) the Port of Melbourne Corporation; (b) a public entity other than the Port of Melbourne Corporation. 74AB Designated State port entities and approved wharfage fees and channel fees The Governor in Council, by Order published in the Government Gazette, may do any one or more of the following— (a) designate the Port of Melbourne Corporation or another public entity as a designated State port entity; -- 141 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 135 Authorised by the Chief Parliamentary Counsel (b) approve a wharfage fee determined by a designated State port entity under section 74 as an approved wharfage fee; (c) approve a channel fee (other than an anchorage fee) determined by the Port of Melbourne Corporation under section 75 as an approved channel fee. Note The Port of Melbourne Corporation is the channel operator for port of Melbourne waters—see the definition of channel operator in section 3(1).". 124 Wharfage fees—port of Melbourne (1) For section 74(1) of the Port Management Act 1995 substitute— "(1) Subject to this Part— (a) the port of Melbourne operator may determine a wharfage fee in respect of the provision of a site in the port of Melbourne at which stevedoring operations may be carried out; and (b) a designated State port entity may determine a wharfage fee in respect of the provision of a site in the port of Melbourne at which stevedoring operations may be carried out.". (2) In section 74(2) of the Port Management Act 1995, for "Subject to Part 3, a fee" substitute "A fee". (3) After section 74(2) of the Port Management Act 1995 insert— "(2A) The calculation of a fee by the port of Melbourne operator as provided under subsection (2) is subject to Part 3.". -- 142 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 136 Authorised by the Chief Parliamentary Counsel (4) In section 74(3) of the Port Management Act 1995, for "Port of Melbourne Corporation" substitute "port of Melbourne operator or designated State port entity". (5) In section 74(4) of the Port Management Act 1995, for "subsection (1) is payable to the Port of Melbourne Corporation" substitute "subsection (1)(a) is payable to the port of Melbourne operator and a fee determined under subsection (1)(b) that is an approved wharfage fee is payable to the designated State port entity that determined it". (6) In section 74(5) of the Port Management Act 1995— (a) for "subsection (1)" substitute "subsection (1)(a) or an approved wharfage fee"; (b) for "Port of Melbourne Corporation" substitute "port of Melbourne operator or designated State port entity (as the case requires)". 125 Channel fees (1) In section 75(1) of the Port Management Act 1995— (a) in paragraph (a)(i) omit "under this Act"; (b) for paragraph (b) substitute— "(b) a channel operator may determine fees for— (i) the provision of channels by the channel operator in the port waters of the channel operator for use by vessels; and -- 143 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 137 Authorised by the Chief Parliamentary Counsel (ii) any service related to the provision of the service described in subparagraph (i); and Note The Port of Melbourne Corporation is the channel operator for port of Melbourne waters—see the definition of channel operator in section 3(1). (c) the port of Melbourne operator may determine fees for— (i) the provision of channels (other than anchorages) by the port of Melbourne operator in port of Melbourne waters for use by vessels; and (ii) any service related to the provision of the service described in subparagraph (i).". (2) For section 75(2)(c) of the Port Management Act 1995 substitute— "(c) may differ according to the length of time vessels are in— (i) if the fee is determined by the VRCA or the channel operator, the port waters of a port serviced by the VRCA or the channel operator (as the case requires); and (ii) if the fee is determined by the port of Melbourne operator, port of Melbourne waters.". (3) After section 75(2) of the Port Management Act 1995 insert— "(2A) A fee determined by the port of Melbourne operator as provided under subsection (2) is subject to Part 3.". -- 144 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 138 Authorised by the Chief Parliamentary Counsel (4) In section 75(3) of the Port Management Act 1995, for "A fee" substitute "Subject to subsection (3A), a fee". (5) After section 75(3) of the Port Management Act 1995 insert— "(3A) A fee determined under subsection (1) by the Port of Melbourne Corporation (other than an anchorage fee) is not payable under subsection (3) unless the fee is an approved channel fee. Note The Port of Melbourne Corporation is the channel operator for port of Melbourne waters—see the definition of channel operator in section 3(1).". (6) In section 75(4) of the Port Management Act 1995, for "or the channel operator" substitute ", the channel operator or the port of Melbourne operator (as the case requires)". 126 Payment of wharfage and channel fees (1) In section 78(1) of the Port Management Act 1995, for "Port of Melbourne Corporation" (where twice occurring) substitute "port of Melbourne operator, the designated State port entity". (2) In section 78(2) and (3) of the Port Management Act 1995, for "Port of Melbourne Corporation" substitute "port of Melbourne operator, the designated State port entity". 127 Interest on overdue payments In section 79(1) of the Port Management Act 1995, for "Port of Melbourne Corporation" substitute "port of Melbourne operator, the designated State port entity". -- 145 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 139 Authorised by the Chief Parliamentary Counsel 128 Security for payment of wharfage and channel fees (1) In section 80(1), (3), (4) and (5) of the Port Management Act 1995, for "Port of Melbourne Corporation" substitute "port of Melbourne operator, the designated State port entity". (2) In section 80(2) of the Port Management Act 1995, for "Port of Melbourne Corporation" (where twice occurring) substitute "port of Melbourne operator, the designated State port entity". 129 Liability of current owners and agents In section 81(1) of the Port Management Act 1995, for "or the channel operator" substitute ", the channel operator or the port of Melbourne operator". 130 Waiver or refund of wharfage or channel fees In section 82 of the Port Management Act 1995, for "Port of Melbourne Corporation" substitute "port of Melbourne operator, the designated State port entity". 131 Definitions for the purposes of Part 5A In section 83 of the Port Management Act 1995, in the definition of recommending authority, after paragraph (a) insert— "(ab) in relation to an area, the declaration of which as a restricted access area is or may be recommended by the port of Melbourne operator, means the port of Melbourne operator; or". 132 Making a declaration of restricted access area (1) In section 84(1)(a) of the Port Management Act 1995, after "land" insert ", that is not leased port of Melbourne land, ". -- 146 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 140 Authorised by the Chief Parliamentary Counsel (2) After section 84(1) of the Port Management Act 1995 insert— "(1AA) The Minister, on the recommendation of the port of Melbourne operator, may declare that any part of leased port of Melbourne land that is specified in the declaration (not being more than 12 square kilometres, in area) is an area to which access is restricted.". 133 Effect of declaration In section 85 of the Port Management Act 1995, for "or 84(2)" substitute ", (1AA), (1A) or (2)". 134 Pollution abatement by Port of Melbourne Corporation (1) In the heading to section 88J of the Port Management Act 1995, after "abatement" insert "by Port of Melbourne Corporation". (2) In section 88J of the Port Management Act 1995, after "land" (wherever occurring) insert ", that is not leased port of Melbourne land, ". 135 New section 88JA inserted After section 88J of the Port Management Act 1995 insert— "88JA Pollution abatement by port of Melbourne operator (1) This section applies if— (a) pollutants have been or are being discharged on leased port of Melbourne land; or (b) a condition of pollution is likely to arise on leased port of Melbourne land; or -- 147 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 141 Authorised by the Chief Parliamentary Counsel (c) any potentially hazardous substance appears to have been abandoned or dumped on leased port of Melbourne land; or (d) any potentially hazardous substance is being handled in a manner which is likely to cause an environmental hazard on leased port of Melbourne land. (2) The port of Melbourne operator may conduct a clean up or cause a clean up to be conducted as the port of Melbourne operator considers necessary.". 136 Recovery of costs of clean up by Port of Melbourne Corporation In the heading to section 88K of the Port Management Act 1995, after "up" insert "by Port of Melbourne Corporation". 137 New section 88KA inserted After section 88K of the Port Management Act 1995 insert— "88KA Recovery of costs of clean up by port of Melbourne operator (1) If the port of Melbourne operator conducts a clean up under section 88JA, the port of Melbourne operator may recover any reasonable costs incurred by it in conducting the clean up from the person who caused the circumstances that gave rise to the need for the clean up to be conducted. (2) The costs that may be recovered under subsection (1) include labour, administrative and overhead costs, determined on such basis as the port of Melbourne operator reasonably considers appropriate, incurred as a result of any action taken by it under subsection (1). -- 148 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 142 Authorised by the Chief Parliamentary Counsel (3) An amount payable under subsection (1) may be recovered in any court of competent jurisdiction as a debt due to the port of Melbourne operator.". 138 Hazardous port activity notice (1) In section 88M(1) of the Port Management Act 1995, after "land" insert "that is not leased port of Melbourne land". (2) After section 88M(1) of the Port Management Act 1995 insert— "(1A) A person who proposes to carry out a hazardous activity on leased port of Melbourne land must give notice to the Port of Melbourne Corporation and the port of Melbourne operator before doing so. Penalty: 20 penalty units.". (3) In section 88M(2) of the Port Management Act 1995, after "(1)" insert "or (1A)". 139 New section 88P substituted For section 88P of the Port Management Act 1995 substitute— "88P Offence to leave things in port waters or on port land (1) A person must not 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 the Port of Melbourne Corporation. Penalty: 60 penalty units. -- 149 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 143 Authorised by the Chief Parliamentary Counsel (2) A person must not leave any thing unattended on leased port of Melbourne land for more than one month without the permission of the port of Melbourne operator. Penalty: 60 penalty units.". 140 Removal of things (1) In section 88Q(1) of the Port Management Act 1995— (a) after "land" (where first occurring) insert ", that is not leased port of Melbourne land, and the port of Melbourne operator may move any thing or cause any thing to be moved from leased port of Melbourne land,"; (b) in paragraph (b), after "Port of Melbourne Corporation" insert "or port of Melbourne operator". (2) In section 88Q(2) of the Port Management Act 1995— (a) after "land" (where first occurring) insert ", that is not leased port of Melbourne land, and the port of Melbourne operator may immediately remove any thing from leased port of Melbourne land,"; (b) in paragraphs (a) and (b), after "Corporation" insert "or port of Melbourne operator". 141 Powers when moving things In section 88R(2) of the Port Management Act 1995, after "Corporation" (where twice occurring) insert "or port of Melbourne operator". 142 Requirement to make enquiries as to owner of thing In section 88S of the Port Management Act 1995, after "Corporation" (where twice occurring) insert "or port of Melbourne operator". -- 150 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 144 Authorised by the Chief Parliamentary Counsel 143 Disposal of thing (1) In section 88T(1) and (2) of the Port Management Act 1995, after "Corporation" (where twice occurring) insert "or port of Melbourne operator". (2) In section 88T(4) of the Port Management Act 1995— (a) after "Corporation" (where first and secondly occurring) insert "or port of Melbourne operator"; (b) after "Corporation" (where thirdly occurring) insert "or port of Melbourne operator (as the case requires)". (3) In section 88T(5) of the Port Management Act 1995— (a) for "Corporation" (where first occurring) substitute "Port of Melbourne Corporation or port of Melbourne operator"; (b) after "Corporation" (where secondly occurring) insert "or port of Melbourne operator"; (c) after "Corporation" (where thirdly occurring) insert "or port of Melbourne operator (as the case requires)". 144 Recovery of costs (1) In section 88U(1) of the Port Management Act 1995, after "Corporation" (where twice occurring) insert "or port of Melbourne operator". (2) In section 88U(2) of the Port Management Act 1995, after "Corporation" insert "or port of Melbourne operator (as the case requires)". -- 151 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 145 Authorised by the Chief Parliamentary Counsel 145 Payment of compensation (1) In section 88V(1) of the Port Management Act 1995, after "Corporation" insert "or port of Melbourne operator". (2) In section 88V(3)(b) of the Port Management Act 1995, after "Corporation" (where twice occurring) insert "or port of Melbourne operator". 146 Proceeds of disposal where owner not located In section 88W of the Port Management Act 1995— (a) in paragraph (a), after "Corporation" insert "or port of Melbourne operator"; (b) in paragraph (b), for "into the Consolidated Fund." substitute— "— (i) if the thing was disposed of by the Port of Melbourne Corporation, into the Consolidated Fund; and (ii) if the thing was disposed of by the port of Melbourne operator, to the State.". 147 New Part 5C inserted After Part 5B of the Port Management Act 1995 insert— "Part 5C—Regulation of activities in the port of Melbourne Division 1—Preliminary 88X Definitions In this Part— allowable purposes means the purposes set out in section 88ZI(2); -- 152 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 146 Authorised by the Chief Parliamentary Counsel authorised officer means a person appointed under section 88ZL; information direction means a direction given under 88ZI(1); port operator direction means a direction given under 88Y(1); reportable matter—see section 88ZG. Division 2—Port operator directions 88Y Directions to maintain or improve safety and security (1) The port of Melbourne operator, for the purpose of maintaining or improving safety and security on leased port of Melbourne land, may give directions that regulate or prohibit any of the following activities on that land— (a) the driving, stopping and parking of vehicles; (b) the movement, handling or storage of goods; (c) any activity that may pose a risk to safety or security on that land. (2) A port operator direction may be of general application or may be limited in its application to specified persons or a specified class of persons. 88Z How port operator directions are given (1) A port operator direction may be given in any of the following ways— (a) by notice displayed in the area of the leased port of Melbourne land where the direction applies; -- 153 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 147 Authorised by the Chief Parliamentary Counsel (b) by notice published on the port of Melbourne operator's Internet site; (c) by notice served on the person or persons to whom the direction applies. (2) A port operator direction given by notice published on the port of Melbourne operator's Internet site is of no effect until a copy of the notice has been published in the Government Gazette. (3) Before a port operator direction is given, not less than 2 weeks advance notice of the proposed direction must be given— (a) to the harbour master engaged for the port of Melbourne waters; and (b) to the Minister administering the Dangerous Goods Act 1985 if the direction relates to dangerous goods to which that Act applies. (4) Advance notice of a proposed port operator direction is sufficiently given to the harbour master engaged for the port of Melbourne waters or the Minister administering the Dangerous Goods Act 1985 by being delivered or sent by post to the office of the harbour master or that Minister, as appropriate. (5) Advance notice of a proposed port operator direction is not required if the direction is given in an emergency or is necessary to avert an imminent threat of death or serious injury to persons or serious damage to property. -- 154 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 148 Authorised by the Chief Parliamentary Counsel 88ZA Enforcement of port operator directions (1) A person to whom a port operator direction applies must comply with the direction unless compliance would result in the person contravening a requirement imposed by or under an Act. (2) The port of Melbourne operator may enforce compliance with a port operator direction in any of the following ways— (a) by removing from the leased port of Melbourne land any person who is contravening the direction; (b) by removing from the leased port of Melbourne land or moving within that land any vehicle that is stopped or parked in contravention of the direction; (c) by removing from the leased port of Melbourne land or moving within that land any goods stored in contravention of the direction; (d) by carrying out any work in the leased port of Melbourne land that a person has failed to carry out in contravention of the direction or that is reasonably required to be carried out to remedy a contravention of the direction. (3) The power to remove or move a vehicle or goods from or within leased port of Melbourne land includes the power to place the vehicle or goods in secure storage pending return of the vehicle or goods to their owner. -- 155 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 149 Authorised by the Chief Parliamentary Counsel (4) Anything done by or on behalf of the port of Melbourne operator reasonably and in good faith to enforce compliance with a port operator direction as permitted by this Division does not subject the port of Melbourne operator or any other person to any action, liability, claim or demand. 88ZB Recovery of costs (1) This section applies if— (a) a person fails to comply with a port operator direction; and (b) as a result, the port of Melbourne operator incurs costs in enforcing compliance with the port operator direction. (2) The port of Melbourne operator is entitled to recover from the person the reasonable costs incurred by it as a debt in a court of competent jurisdiction. (3) A certificate issued by the port of Melbourne operator certifying as to the reasonable costs incurred by it in enforcing compliance with a port operator direction is evidence of the matters certified. 88ZC Advance notice of proposed work (1) The port of Melbourne operator is not authorised to enforce compliance with a port operator direction by carrying out work that a person has failed to carry out in contravention of the direction, or that is reasonably required to be carried out to remedy a contravention by a person of the direction, unless the port of Melbourne operator has given the person advance notice of the proposed work. -- 156 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 150 Authorised by the Chief Parliamentary Counsel (2) Advance notice of proposed work must— (a) be given no less than 7 days before the work commences; and (b) be given in writing; and (c) give details of the alleged contravention concerned. (3) Advance notice of proposed work is not required in an emergency or if the proposed work is necessary to avert an imminent threat of death or serious injury to persons or serious damage to property. (4) In such a case, notice of the work being undertaken must be given as soon as reasonably practicable in the circumstances. 88ZD Power of entry The port of Melbourne operator may enter any premises on leased port of Melbourne land at any time for the purpose of— (a) ascertaining whether a port operator direction is being complied with or has been contravened; or (b) doing anything that the port of Melbourne operator is authorised to do to enforce compliance with a port operator direction. 88ZE Functions and powers may be performed or exercised by authorised officers (1) The functions and powers of the port of Melbourne operator under this Division may be performed or exercised on behalf of the port of Melbourne operator by an authorised officer. -- 157 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 151 Authorised by the Chief Parliamentary Counsel (2) Accordingly, a reference in this Division to a port operator direction includes such a direction given by an authorised officer on behalf of the port of Melbourne operator. (3) An authorised officer who enters land or premises under the authority of this Division may be accompanied by any person believed by the authorised officer to be capable of providing assistance in the performance or exercise of the authorised officer's functions or powers under this Division. (4) An authorised officer may request the assistance of any police officer if the authorised officer reasonably believes that the performance or exercise of the authorised officer's functions or powers under this Division will be obstructed or otherwise interfered with. 88ZF Obstruction of authorised officer A person must not obstruct or otherwise interfere with an authorised officer in the performance of any function, or exercise of any power, of the authorised officer under this Division. Penalty: 60 penalty units. 88ZG Monitoring of port operator directions (1) The port of Melbourne operator must within 3 months after the end of each 6 month period ending on 30 June or 31 December in a year (beginning with the year 2015) provide details to the Minister of such of the following matters (reportable matters) as occurred in the period concerned— (a) the giving of a port operator direction by the port of Melbourne operator; -- 158 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 152 Authorised by the Chief Parliamentary Counsel (b) any port operator direction given by the port of Melbourne operator ceasing to have effect; (c) any contravention of which the port of Melbourne operator is aware of a port operator direction given by the port of Melbourne operator; (d) any exercise by the port of Melbourne operator of the power under section 88ZD to enter premises; (e) any action taken by the port of Melbourne operator to enforce compliance with a port operator direction (being action authorised to be taken under this Part). (2) The port of Melbourne operator must also provide details of reportable matters to the Minister as and when directed to do so by the Minister by written notice given to the port of Melbourne operator. (3) A notice under subsection (2) must allow not less than 21 days for compliance with the direction. (4) Information required to be provided by or under this section must be provided in such manner and form as the Minister may direct by written notice given to the port of Melbourne operator. 88ZH Publication of reports about port operator directions (1) The Minister may publish reports and statements, based on information provided to the Minister under section 88ZG about reportable matters, subject to the following requirements— -- 159 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 153 Authorised by the Chief Parliamentary Counsel (a) any such report or statement must not include information that identifies a person (or is likely to lead to the identification of a person) as a person who has contravened a port operator direction; (b) the Minister must provide the port of Melbourne operator with a copy of the proposed report or statement at least 14 days before it is published. (2) No liability (including liability in defamation) is incurred for publishing in good faith a report or statement under this section or a fair report or summary of such a report or statement. Division 3—Information gathering by port of Melbourne operator 88ZI Power to require information to be provided (1) The port of Melbourne operator, by written direction (an information direction), may require any of the following persons to provide relevant information to the port of Melbourne operator— (a) the master of any vessel that berths in the port of Melbourne; (b) a shipping agent for goods shipped to, from or within the port of Melbourne; (c) a consignor or consignee of goods shipped to, from or within the port of Melbourne; (d) an operator of stevedoring or other facilities on leased port of Melbourne land. -- 160 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 154 Authorised by the Chief Parliamentary Counsel (2) Information is relevant information if it is information that the port of Melbourne operator reasonably requires for any of the following purposes— (a) monitoring compliance with port operator directions; (b) determining liability for and the amount of, and facilitating the collection of, wharfage fees and channel fees; (c) compiling statistics that the port of Melbourne operator is— (i) directed, in writing, by the Minister to compile; or (ii) required to compile by or under an Act or an agreement with the State or a public entity; (d) co-ordinating communication at the port; (e) any purpose prescribed by the regulations in connection with the operation and management of the port of Melbourne. (3) An information direction must allow a reasonable period of not less than 14 days for compliance with the direction unless the direction is given in response to an emergency or to avert an imminent threat of death or serious injury to persons or serious damage to property (in which case compliance is required as soon as reasonably practicable). -- 161 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 155 Authorised by the Chief Parliamentary Counsel 88ZJ Use and disclosure of information collected The port of Melbourne operator is authorised to use and disclose information provided to it in compliance with an information direction for any allowable purpose for which it is authorised to require the information. 88ZK Compliance with information direction (1) A person must not without reasonable excuse fail to comply with an information direction given to the person. Penalty: In the case of a natural person, 120 penalty units; In the case of a body corporate, 600 penalty units. (2) A duty of confidentiality is not a reasonable excuse for failure to comply with an information direction. (3) A person must not in purported compliance with an information direction given to the person provide information that the person knows, or ought reasonably to know, is false or misleading in a material particular. Penalty: In the case of a natural person, 120 penalty units; In the case of a body corporate, 600 penalty units. (4) The provision of information that would otherwise constitute a breach of a duty of confidentiality does not constitute such a breach if the information is provided in compliance with an information direction. -- 162 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 156 Authorised by the Chief Parliamentary Counsel Division 4—Authorised officers 88ZL Appointment (1) The chief executive officer of the port of Melbourne operator, by instrument, may appoint as an authorised officer any officer, employee or agent of the port of Melbourne operator who the chief executive officer considers is suitably qualified or trained to exercise the powers of an authorised officer under this Part. (2) An appointment under subsection (1) is for a term, and subject to the conditions, specified in the instrument of appointment. (3) The chief executive officer of the port of Melbourne operator, by instrument, may delegate the chief executive's power under subsection (1) to an officer or employee of the port of Melbourne operator. 88ZM Identity cards (1) The port of Melbourne operator must cause to be issued an identity card to an authorised officer appointed under section 88ZL. (2) An identity card must— (a) state the authorised officer's name and their appointment as an authorised officer; and (b) include any other matter that is prescribed. 88ZN Return of identity cards If a person to whom an identity card has been issued ceases to be an authorised -- 163 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 157 Authorised by the Chief Parliamentary Counsel officer, the person must return the identity card to the port of Melbourne operator as soon as practicable. Penalty: 60 penalty units. 88ZO Production of identity card (1) An authorised officer must produce the officer's identity card for inspection— (a) before exercising a power under this Part; or (b) if asked to do so by any person at any time during the exercise of a power under this Part. Penalty: 5 penalty units. (2) Subsection (1) does not apply if— (a) the authorised officer reasonably believes that the production of the officer's identity card would affect the safety or welfare of any person; or (b) the request to produce the identity card is made by a person to whom the authorised officer has already produced that identity card on the same day before exercising a power under this Part. (3) Any action taken or thing done by an authorised officer under this Part is not invalidated by the officer's failure to produce the officer's identity card.". -- 164 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 158 Authorised by the Chief Parliamentary Counsel 148 New section 91BA inserted After section 91B of the Port Management Act 1995 insert— "91BA Extended meaning of port manager (1) Without limiting the meaning of port manager in section 3(1), for the purposes of this Part, the port of Melbourne operator is also a port manager who manages, superintends or controls the operation of a part of the port of Melbourne when the operator is— (a) carrying out channel-dredging activities in port of Melbourne waters; or (b) establishing or maintaining navigational aids in connection with navigation in port of Melbourne waters. (2) To avoid doubt, the activities referred to in subsection (1)(a) and (b) are part of the operations of the port of Melbourne.". 149 Port manager's responsibilities for management plans (1) In section 91C(2)(a) and (b) of the Port Management Act 1995, after "port" insert "or part of the port". (2) In section 91C(4)(a) of the Port Management Act 1995, after "port" (where secondly occurring) insert "or part of the port". 150 Safety and environment management plans (1) In section 91D(1)(f) of the Port Management Act 1995, after "port" insert "or part of the port". (2) In section 91D(1)(h) of the Port Management Act 1995, after "port" (where secondly occurring) insert "or part of the port". -- 165 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 159 Authorised by the Chief Parliamentary Counsel (3) In section 91D(2) of the Port Management Act 1995— (a) after "a port" insert "or part of a port"; (b) after "the port" (where twice occurring) insert "or part of the port". (4) In section 91D(3) of the Port Management Act 1995, after "port" insert "or part of a port". 151 Audits of compliance In section 91E(1) and (2) of the Port Management Act 1995— (a) after "port" (where first occurring) insert "or a part of a commercial trading port"; (b) after "port" (where thirdly occurring) insert "or the part of the port". 152 Ministerial directions (1) In section 91H(1) of the Port Management Act 1995, after "the port" insert "or the part of the port". (2) In section 91H(3)(a) and (b) of the Port Management Act 1995, after "the port" insert "or the part of the port". (3) In section 91H(4) and (5) of the Port Management Act 1995, after "the port" (where secondly occurring) insert "or the part of the port". 153 Reporting In section 91HB(1) of the Port Management Act 1995, after "the port" insert "or the part of the port". -- 166 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 160 Authorised by the Chief Parliamentary Counsel 154 Definitions for the purposes of Part 6B In section 91J of the Port Management Act 1995, in the definition of relevant port authority, for paragraph (a) substitute— "(a) in the case of the port of Melbourne, the port of Melbourne operator;". 155 Port Development Strategy In section 91K(1) of the Port Management Act 1995, for "4 years" substitute "5 years". 156 New Part 6C inserted After Part 6B of the Port Management Act 1995 insert— "Part 6C—Port of Melbourne Rail Access Strategy 91O Definitions In this Part— direction means a direction given under section 91U or 91V; guidelines means guidelines made under section 91T; Port Development Strategy has the same meaning as in Part 6B; port rail shuttle—see section 91P; private sector entity has the same meaning as in the Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016; Rail Access Strategy—see section 91Q. -- 167 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 161 Authorised by the Chief Parliamentary Counsel 91P Meaning of port rail shuttle A port rail shuttle is a rail intermodal facility in, or in the vicinity of, the port of Melbourne that is connected to rail terminals outside the port, the purpose of which is to increase rail freight movements into and out of the port in order— (a) to provide an alternative to the movement of freight into and out of the port by means of road transport; and (b) to reduce traffic congestion on roads in and around the port caused by the movement of freight into and out of the port by means of road transport. 91Q Rail Access Strategy (1) The port of Melbourne operator must prepare a strategy (a Rail Access Strategy) in accordance with this Part. (2) The port of Melbourne operator must prepare— (a) the first Rail Access Strategy within 3 years after the first lease of land comprising port assets is granted to a private sector entity under section 11 of the Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016; and (b) every other Rail Access Strategy at the same time as it prepares a Port Development Strategy under Part 6B. (3) The port of Melbourne operator must prepare and submit a Rail Access Strategy to the Minister. -- 168 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 162 Authorised by the Chief Parliamentary Counsel (4) A Rail Access Strategy must set out— (a) options for rail infrastructure projects for improving rail access for the movement of freight into and out of the port of Melbourne; and (b) a commercial assessment of each identified option that— (i) in the case of the first Rail Access Strategy prepared under this Part, includes— (A) projections of trade through the port of Melbourne; and (B) current and projected transport infrastructure requirements for land and water in the port of Melbourne; and (ii) in the case of every other Rail Access Strategy prepared under this Part, is consistent with the applicable Port Development Strategy for the port of Melbourne; and (iii) in all cases, includes any other matter specified in the guidelines; and (c) the implementation timing for each identified option. (5) One of the options set out in the first Rail Access Strategy must be the development of a port rail shuttle. -- 169 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 163 Authorised by the Chief Parliamentary Counsel (6) Every rail infrastructure project identified as an option set out in a Rail Access Strategy must be capable of being implemented within 5 years after it has been submitted to the Minister in accordance with this section. (7) If there are guidelines in effect in respect of the form and content of a Rail Access Strategy, and the method and process for preparation of a Rail Access Strategy, the port of Melbourne operator must prepare and submit a Rail Access Strategy to the Minister in accordance with the guidelines. 91R Rail infrastructure project options in Rail Access Strategy are major infrastructure projects for the purposes of the Infrastructure Victoria Act 2015 A rail infrastructure project identified as an option in a Rail Access Strategy is a major infrastructure project for the purposes of section 44 of the Infrastructure Victoria Act 2015. 91S Consultation (1) In preparing a Rail Access Strategy, the port of Melbourne operator must consult with— (a) port of Melbourne users; and (b) owners and tenants of port of Melbourne land; and (c) licensees at the port of Melbourne; and (d) persons who wish to design, construct or operate rail infrastructure at the port of Melbourne; and (e) persons who wish to provide rail freight services at the port of Melbourne; and -- 170 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 164 Authorised by the Chief Parliamentary Counsel (f) relevant government agencies; and (g) any stakeholders specified in guidelines. (2) If there are guidelines in effect that set out a process for consultation with the persons and entities listed in subsection (1), the port of Melbourne operator must, in preparing a Rail Access Strategy, consult with those persons and entities in accordance with the guidelines. 91T Guidelines (1) The Minister may issue guidelines about any one or more of the following matters in relation to a Rail Access Strategy— (a) the form; (b) the content; (c) the method and process for preparation; (d) processes for consultation; (e) stakeholders for the purposes of section 91S(1)(g); (f) publication and availability. (2) The guidelines must be published in the Government Gazette and made available for inspection free of charge at the office of the Minister. 91U Ministerial directions if port of Melbourne operator fails to prepare and submit a Rail Access Strategy (1) This section applies if the port of Melbourne operator fails to prepare and submit a Rail Access Strategy in accordance with section 91Q. -- 171 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 165 Authorised by the Chief Parliamentary Counsel (2) The Minister, by written notice given to the port of Melbourne operator, may direct the operator to prepare and submit a Rail Access Strategy to the Minister by the date specified in the direction. (3) The date specified in a direction under subsection (2) must be at least 3 months after the date of the direction. (4) The port of Melbourne operator must comply with a direction given to it under subsection (2). Penalty: 240 penalty units. 91V Ministerial directions if Rail Access Strategy is non-compliant (1) This section applies if the Minister is of the opinion that a Rail Access Strategy submitted by the port of Melbourne operator— (a) has not been prepared in accordance with the guidelines, if any; or (b) does not set out the matters required to be set out under section 91Q. (2) The Minister, by written notice given to the port of Melbourne operator, may direct the operator to amend and resubmit the Rail Access Strategy to the Minister by the date specified in the direction. (3) The date specified in a direction under subsection (2) must be at least 3 months after the date of the direction. (4) The port of Melbourne operator must comply with a direction given to it under subsection (2). Penalty: 240 penalty units.". -- 172 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 166 Authorised by the Chief Parliamentary Counsel 157 Regulations (1) After section 98(1) of the Port Management Act 1995 insert— "(1A) In addition, the Governor in Council may make regulations for or with respect to any matter required or permitted by this Act to be prescribed or necessary or convenient to be prescribed to give effect to this Act.". (2) Before section 98(2)(a) of the Port Management Act 1995 insert— "(aa) so as to be of general or limited application; (aab) so as to differ according to differences in time, place or circumstances;". (3) Section 98(2)(a)(i) of the Port Management Act 1995 is repealed. Division 3—Amendment of Marine Safety Act 2010 158 Definitions In section 3(1) of the Marine Safety Act 2010— (a) insert the following definitions— "Emergency Management Commissioner has the same meaning as in the Emergency Management Act 2013; port of Melbourne operator has the same meaning as in the Port Management Act 1995;"; (b) in the definition of port management body, in paragraph (a), after "Corporation" insert "when it is performing functions and exercising powers in the port of Melbourne". -- 173 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 167 Authorised by the Chief Parliamentary Counsel 159 Principle of shared responsibility In section 15(1)(e) of the Marine Safety Act 2010, after "bodies" insert ", the port of Melbourne operator". 160 New Part 2.2A inserted After Part 2.2 of the Marine Safety Act 2010 insert— "Part 2.2A—Safety duty of port of Melbourne operator 25 Duty of port of Melbourne operator to ensure safety of marine safety infrastructure operations (1) The port of Melbourne operator must, so far as is reasonably practicable, ensure the safety of marine safety infrastructure operations carried out by it or supplied to it in the port of Melbourne. Penalty: In the case of a natural person, 1800 penalty units; In the case of a body corporate, 9000 penalty units. (2) Without limiting subsection (1), the port of Melbourne operator contravenes that subsection if the port of Melbourne operator fails to do any of the following— (a) provide or maintain marine safety infrastructure that is, so far as is reasonably practicable, safe; (b) provide or maintain systems of marine safety work that are, so far as is reasonably practicable, safe; (c) provide, so far as is reasonably practicable, such— -- 174 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 168 Authorised by the Chief Parliamentary Counsel (i) information, instruction, training or supervision to marine safety workers as is necessary to enable those workers to perform their marine safety work in a way that is safe; and (ii) information to persons (other than marine safety workers) at, or in the immediate area around, a place where marine safety work is being performed as is necessary to enable those persons to ensure their safety. (3) An offence against subsection (1) is an indictable offence.". 161 New section 200 substituted For section 200 of the Marine Safety Act 2010 substitute— "200 Consultation required before making a determination Before the Safety Director makes a determination under section 199, the Safety Director must consult with— (a) every port management body, local port manager or waterway manager that the Director considers will need to comply with the determination; and (b) the port of Melbourne operator if it will need to comply with the determination.". 162 Offence to fail to comply with standard determined under this Part In section 202 of the Marine Safety Act 2010, after "body" insert ", the port of Melbourne operator". -- 175 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 169 Authorised by the Chief Parliamentary Counsel 163 New Part 5.2A inserted After Part 5.2 of the Marine Safety Act 2010 insert— "Part 5.2A—Standards for emergency response capabilities of towage vessels in port waters 202A Definitions In this Part— commercial trading port has the same meaning as in the Port Management Act 1995; towage service has the meaning given by section 73A of the Port Management Act 1995; towage vessel has the meaning given by section 73A of the Port Management Act 1995. 202B Determination of the standards for emergency response capabilities of towage vessels (1) Subject to this Part, the Safety Director, by notice published in the Government Gazette, may determine standards for the emergency response capability (including fire-fighting capability) of a towage vessel or a class of towage vessel required to be provided at a commercial trading port as part of a towage service. (2) A determination under subsection (1) must set out the reasons for the making of a determination. -- 176 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 170 Authorised by the Chief Parliamentary Counsel 202C Consultation required before making a determination Before the Safety Director makes a determination under section 202B, the Safety Director must consult with— (a) the port management body in relation to the commercial trading port at which the towage vessels are to be provided; and (b) if the towage vessels are to be provided in the port of Melbourne, the port of Melbourne operator; and (c) the harbour master engaged for the waters of the commercial trading port at which the towage vessels are to be provided; and (d) each person who provides towage services in the commercial trading port at which the towage vessels are to be provided; and (e) the Emergency Management Commissioner; and (f) if the standard to be determined relates to the fire-fighting capabilities of a towage vessel or a class of towage vessel, the Metropolitan Fire and Emergency Services Board and the Country Fire Authority. 202D Matters that must be considered in making a determination In making a determination under section 202B, the Safety Director must have regard to— -- 177 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 171 Authorised by the Chief Parliamentary Counsel (a) the safety risk, or the nature and level of a safety risk, that the determination is intended to minimise or eliminate; and (b) whether there are alternative ways (legislative or otherwise) to address the matter to be addressed by the determination; and (c) the expected benefits and costs of the determination on those persons likely to be affected by the determination, if made; and (d) the requirements that are necessary for the safe and efficient operation of the relevant commercial trading port.". 164 Provision or maintenance of navigation aids by Safety Director In section 261(1) of the Marine Safety Act 2010— (a) after "port management body," (where first occurring) insert "the port of Melbourne operator,"; (b) in paragraphs (a) and (b), after "port management body," insert "the port of Melbourne operator, the". 165 Recovery of costs In section 263(a) of the Marine Safety Act 2010, after "port management body," insert "the port of Melbourne operator,". 166 Acquisition of land In section 271(1) of the Marine Safety Act 2010, after "port management body," insert "the port of Melbourne operator,". -- 178 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 172 Authorised by the Chief Parliamentary Counsel Division 4—Amendment of Marine (Drug, Alcohol and Pollution Control) Act 1988 167 Definitions In section 3(1) of the Marine (Drug, Alcohol and Pollution Control) Act 1988, in the definition of port management body, in paragraph (a), after "Corporation" insert "when it is performing functions and exercising powers in the port of Melbourne". Division 5—Amendment of Essential Services Commission Act 2001 168 Definitions In section 3 of the Essential Services Commission Act 2001— (a) in the definition of empowering instrument— (i) in paragraph (e), for "1994;" substitute "1994; or"; (ii) after paragraph (e) insert— "(f) a port Pricing Order;"; (b) insert the following definitions— "Commission port Pricing Order decision means a decision of the Commission made under a provision of a port Pricing Order that is prescribed; port Pricing Order means an Order made under section 49A of the Port Management Act 1995;". -- 179 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 173 Authorised by the Chief Parliamentary Counsel 169 Order declaring a regulated industry After section 4(8) of the Essential Services Commission Act 2001 insert— "(9) While a port Pricing Order is in effect, this section does not apply to— (a) the ports industry in the port of Melbourne within the meaning of the Port Management Act 1995; or (b) the Port Management Act 1995 in respect of the port of Melbourne.". 170 Right of appeal (1) In section 55(1) of the Essential Services Commission Act 2001— (a) in paragraph (c), for "Commission—" substitute "Commission; or"; (b) after paragraph (c) insert— "(d) a decision of the Commission contained in a final published report (as defined in section 45 of the Port Management Act 1995) that a provider of prescribed services (as defined in that section) has not complied with a port Pricing Order in a significant and sustained manner; or (e) a Commission port Pricing Order decision; or (f) a decision of the Commission under section 69 of the Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016; or -- 180 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 174 Authorised by the Chief Parliamentary Counsel (g) a determination of the Commission under section 49ZA of the Port Management Act 1995—". (2) In section 55(1A) of the Essential Services Commission Act 2001, after "subsection (1)" insert "as it applies to an appeal against a requirement, decision or determination contemplated by subsection (1)(a), (b) or (c)". (3) In section 55(2) of the Essential Services Commission Act 2001— (a) in paragraph (c)(ii), for "respect." substitute "respect;"; (b) after paragraph (c) insert— "(d) under subsection (1)(d) is that the decision— (i) was not made in accordance with the law; or (ii) is unreasonable having regard to all the relevant circumstances; (e) under subsection (1)(e) is that the decision— (i) was not made in accordance with the law; or (ii) is unreasonable having regard to all the relevant circumstances; (f) under subsection (1)(f) is that the decision— (i) was not made in accordance with the law; or (ii) is unreasonable having regard to all the relevant circumstances; -- 181 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 175 Authorised by the Chief Parliamentary Counsel (g) under subsection (1)(g) is that the decision— (i) was not made in accordance with the law; or (ii) is unreasonable having regard to all the relevant circumstances.". (4) In section 55(3) of the Essential Services Commission Act 2001— (a) in paragraph (b), for "published." substitute "published; or"; (b) after paragraph (b) insert— "(c) in the case of an appeal under subsection (1)(d), within 21 working days after the final report in which the decision is contained is laid before each House of the Parliament or a copy is made available for public inspection under section 45; or (d) in the case of an appeal under subsection (1)(e), within 14 working days after the Commission port Pricing Order decision is made; or (e) in the case of an appeal under subsection (1)(f), within 21 working days after the decision is made; or (f) in the case of an appeal under subsection (1)(g), within 21 working days after the determination is made.". (5) After section 55(6) of the Essential Services Commission Act 2001 insert— "(7) If a person lodges an appeal under subsection (1)(d), the decision of the Commission contained in a final published report (as defined in section 45 of the Port -- 182 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 176 Authorised by the Chief Parliamentary Counsel Management Act 1995) continues in effect until the appeal is determined. (8) If a person lodges an appeal under subsection (1)(e), the Commission port Pricing Order decision continues in effect until the appeal is determined. (9) If a person lodges an appeal under subsection (1)(f), the decision of the Commission under section 69 of the Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 continues in effect until the appeal is determined. (10) If a person lodges an appeal under subsection (1)(g), the determination of the Commission under section 49ZA of the Port Management Act 1995 continues in effect until the appeal is determined.". 171 Appeal panel (1) In section 56(4)(b) of the Essential Services Commission Act 2001, after "55(1)(c)," insert "55(1)(d) or 55(1)(e),". (2) In section 56(7) of the Essential Services Commission Act 2001— (a) in paragraph (d)(iii), for "panel." substitute "panel; and"; (b) after paragraph (d) insert— "(e) in the case of an appeal under section 55(1)(d), may in granting the appeal— (i) affirm the decision of the Commission; or (ii) vary the decision of the Commission; or -- 183 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 177 Authorised by the Chief Parliamentary Counsel (iii) set aside the decision of the Commission and remit it to the Commission for amendment of the decision and the final report which contains the decision in accordance with the decision and recommendations (if any) of the appeal panel; and (f) in the case of an appeal under section 55(1)(e), may in granting the appeal— (i) affirm the Commission port Pricing Order decision; or (ii) vary the Commission port Pricing Order decision; or (iii) set aside the Commission port Pricing Order decision and remit it to the Commission for amendment of the decision in accordance with the decision and recommendations (if any) of the appeal panel; and (g) in the case of an appeal under section 55(1)(f), may in granting the appeal— (i) affirm the decision of the Commission under section 69 of the Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016; or (ii) vary the decision; or (iii) set aside the decision and remit it to the Commission for amendment of the decision in accordance with the decision and recommendations (if any) of the appeal panel; and -- 184 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 178 Authorised by the Chief Parliamentary Counsel (h) in the case of an appeal under section 55(1)(g), may in granting the appeal— (i) affirm the determination of the Commission under section 49ZA of the Port Management Act 1995; or (ii) vary the determination; or (iii) set aside the determination and remit it to the Commission for amendment of the determination in accordance with the decision and recommendations (if any) of the appeal panel.". (3) In section 56(11) of the Essential Services Commission Act 2001, for "or 55(1)(b)" substitute ", 55(1)(b), 55(1)(d), 55(1)(e), 55(1)(f) or 55(1)(g)". Division 6—Amendment of Land Act 1958 172 Definitions for the purposes of Part XII In section 384(1) of the Land Act 1958 insert the following definition— "port of Melbourne operator has the same meaning as in the Port Management Act 1995;". 173 Crown property in beds and banks of certain watercourses In section 385(2) of the Land Act 1958— (a) in paragraph (f), after "Authority;" insert "or"; (b) after paragraph (f) insert— "(g) the port of Melbourne operator;". -- 185 of 198 -- Part 8—Transaction-related amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 179 Authorised by the Chief Parliamentary Counsel Division 7—Repeal of amending Part 174 Repeal of amending Part This Part is repealed on the first anniversary of the first day on which all of its provisions are in operation. Note The repeal of this Part does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). -- 186 of 198 -- Part 9—Port of Melbourne Corporation name change amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 180 Authorised by the Chief Parliamentary Counsel Part 9—Port of Melbourne Corporation name change amendments Division 1—Amendment of Transport Integration Act 2010 175 Definitions (1) Insert the following definition in section 3 of the Transport Integration Act 2010— "Victorian Ports Corporation (Melbourne) means the body corporate continued under section 141B;". (2) In section 3 of the Transport Integration Act 2010— (a) the definition of Port of Melbourne Corporation is repealed; (b) in the definition of transport body, for paragraph (p) substitute— "(p) the Victorian Ports Corporation (Melbourne);"; (c) in the definition of Transport Corporation, for paragraph (d) substitute— "(d) the Victorian Ports Corporation (Melbourne); or". 176 Division heading substituted For the heading to Division 3A of Part 6 of the Transport Integration Act 2010 substitute— "Division 3A—Victorian Ports Corporation (Melbourne)". -- 187 of 198 -- Part 9—Port of Melbourne Corporation name change amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 181 Authorised by the Chief Parliamentary Counsel 177 Port of Melbourne Corporation name change to Victorian Ports Corporation (Melbourne) (1) For the heading to section 141B of the Transport Integration Act 2010 substitute— "Victorian Ports Corporation (Melbourne)". (2) After section 141B(2) of the Transport Integration Act 2010 insert— "(3) The Victorian Ports Corporation (Melbourne) is the same body as the Port of Melbourne Corporation, despite the change to its name by Part 9 of the Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 and no act, matter or thing is to be affected because of that change of name. (4) On and after the commencement of section 177 of the Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016, any reference in any Act (other than this Act), regulation, instrument or other document whatsoever to the Port of Melbourne Corporation is to be construed as a reference to the Victorian Ports Corporation (Melbourne) unless the contrary intention appears.". Division 2—Consequential amendments 178 Reference to Port of Melbourne Corporation In section 3, in the definition of Port Corporation, for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". -- 188 of 198 -- Part 9—Port of Melbourne Corporation name change amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 182 Authorised by the Chief Parliamentary Counsel 179 Consequential amendments On the coming into operation of an item in Schedule 1, the Act specified in the heading to that item is amended as set out in the item. Division 3—Repeal of amending Part and Schedule 1 180 Repeal of amending Part and Schedule 1 This Part and Schedule 1 are repealed on the first anniversary of the first day on which all of the provisions of this Part are in operation. Note The repeal of this Part and Schedule 1 does not affect the continuing operation of the amendments made by this Part and that Schedule (see section 15(1) of the Interpretation of Legislation Act 1984). -- 189 of 198 -- Schedule 1—Consequential amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 183 Authorised by the Chief Parliamentary Counsel Schedule 1—Consequential amendments Section 179 1 Borrowing and Investment Powers Act 1987 1.1 In item 7A of Schedule 1, for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 2 Docklands Act 1991 2.1 In section 28(2), for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 2.2 In section 32(1)(a), for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 3 Land Act 1958 3.1 In section 385(2)(e), for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 4 Marine Safety Act 2010 4.1 In section 3(1)— (a) insert the following definition— "Victorian Ports Corporation (Melbourne) has the same meaning as in the Transport Integration Act 2010;"; (b) in paragraph (a) of the definition of port management body, for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)"; (c) the definition of Port of Melbourne Corporation is repealed. 4.2 In section 220(1), for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". -- 190 of 198 -- Schedule 1—Consequential amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 184 Authorised by the Chief Parliamentary Counsel 4.3 In section 229(1), for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 5 Marine (Drug, Alcohol and Pollution Control) Act 1988 5.1 In section 3(1)— (a) insert the following definition— "Victorian Ports Corporation (Melbourne) has the same meaning as in the Transport Integration Act 2010;"; (b) in paragraph (a) of the definition of port management body, for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)"; (c) the definition of Port of Melbourne Corporation is repealed. 6 Metropolitan Fire Brigades Act 1958 6.1 In section 32B(5), for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 7 Port Management Act 1995 7.1 In section 3(1)— (a) insert the following definition— "Victorian Ports Corporation (Melbourne) has the same meaning as in the Transport Integration Act 2010;"; (b) in paragraph (a) of the definition of channel operator, for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)"; -- 191 of 198 -- Schedule 1—Consequential amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 185 Authorised by the Chief Parliamentary Counsel (c) in the definition of port corporation, for "Port of Melbourne Corporation" substitute "the Victorian Ports Corporation (Melbourne)"; (d) the definition of Port of Melbourne Corporation is repealed. 7.2 In section 4(2)(b), for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 7.3 In section 7, for "Port of Melbourne Corporation" (where twice occurring) substitute "Victorian Ports Corporation (Melbourne)". 7.4 In section 49(2)(b), for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 7.5 In section 63B(a), for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 7.6 In sections 64(4)(c) and 65(b), for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 7.7 In the heading to section 66, for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 7.8 In section 66, for "Port of Melbourne Corporation" (where four times occurring) substitute "Victorian Ports Corporation (Melbourne)". 7.9 In section 73B, for "Port of Melbourne Corporation" (where twice occurring) substitute "Victorian Ports Corporation (Melbourne)". 7.10 In sections 73C(1), 73C(1A), 73D(1) and 73E(2), for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". -- 192 of 198 -- Schedule 1—Consequential amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 186 Authorised by the Chief Parliamentary Counsel 7.11 In section 73F, for "Port of Melbourne Corporation" (where three times occurring) substitute "Victorian Ports Corporation (Melbourne)". 7.12 In section 73G, for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 7.13 In sections 73H, 73I, 73J and 73K, for "Port of Melbourne Corporation" (where twice occurring) substitute "Victorian Ports Corporation (Melbourne)". 7.14 In section 73L, for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 7.15 In section 73N, for "Port of Melbourne Corporation" (where twice occurring) substitute "Victorian Ports Corporation (Melbourne)". 7.16 In sections 73O and 73P, for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 7.17 In section 74AA, in the definition of designated State port entity, for "Port of Melbourne Corporation" (where twice occurring) substitute "Victorian Ports Corporation (Melbourne)". 7.18 In section 74AB(a) and (c), for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 7.19 In the note at the foot of section 74AB, for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 7.20 In the note at the foot of section 75(1)(b), for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". -- 193 of 198 -- Schedule 1—Consequential amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 187 Authorised by the Chief Parliamentary Counsel 7.21 In section 75(3A), for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 7.22 In the note at the foot of section 75(3A), for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 7.23 In section 83, in paragraph (a) of the definition of recommending authority, for "Port of Melbourne Corporation" (where twice occurring) substitute "Victorian Ports Corporation (Melbourne)". 7.24 In section 84(1), for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 7.25 In the heading to section 88J, for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 7.26 In section 88J, for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 7.27 In the heading to section 88K, for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 7.28 In section 88K, for "Port of Melbourne Corporation" (where twice occurring) substitute "Victorian Ports Corporation (Melbourne)". 7.29 In section 88M, for "Port of Melbourne Corporation" (where twice occurring) substitute "Victorian Ports Corporation (Melbourne)". 7.30 In section 88P, for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 7.31 In section 88Q, for "Port of Melbourne Corporation" (where four times occurring) substitute "Victorian Ports Corporation (Melbourne)". -- 194 of 198 -- Schedule 1—Consequential amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 188 Authorised by the Chief Parliamentary Counsel 7.32 In sections 88R(2) and 88S, for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 7.33 In section 88T, for "Port of Melbourne Corporation" (wherever occurring) substitute "Victorian Ports Corporation (Melbourne)". 7.34 In sections 88U(1), 88V(1), 88W(a) and 88W(b)(i), for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 7.35 In section 97, for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 8 Transport Integration Act 2010 8.1 In the heading to section 141C, for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 8.2 In section 141C, for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 8.3 In the heading to section 141D, for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 8.4 In section 141D(1), for "Port of Melbourne Corporation" (where twice occurring) substitute "Victorian Ports Corporation (Melbourne)". 8.5 In the heading to section 141E, for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 8.6 In section 141E, for "Port of Melbourne Corporation" (wherever occurring) substitute "Victorian Ports Corporation (Melbourne)". -- 195 of 198 -- Schedule 1—Consequential amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 189 Authorised by the Chief Parliamentary Counsel 8.7 In the heading to section 141EA, for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 8.8 In section 141EA, for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation". 8.9 In the heading to section 141F, for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 8.10 In section 141F, for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 8.11 In the heading to section 141G, for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 8.12 In section 141G, for "Port of Melbourne Corporation" (where twice occurring) substitute "Victorian Ports Corporation (Melbourne)". 8.13 In section 141H, for "Port of Melbourne Corporation" (where five times occurring) substitute "Victorian Ports Corporation (Melbourne)". 8.14 In section 158(6), for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 8.15 In section 159(2), for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 8.16 In section 160(3), for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 8.17 In sections 164(2), 165(13), 166(2), 167(3) and 169(3), for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". -- 196 of 198 -- Schedule 1—Consequential amendments Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 190 Authorised by the Chief Parliamentary Counsel 9 Transport (Compliance and Miscellaneous) Act 1983 9.1 In section 230L(1)(b), for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 10 Treasury Corporation of Victoria Act 1992 10.1 In section 36A, in the definition of public authority, for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". 10.2 In Schedule 1, for "Port of Melbourne Corporation" substitute "Victorian Ports Corporation (Melbourne)". ═══════════════ -- 197 of 198 -- Endnotes Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 No. 10 of 2016 191 Authorised by the Chief Parliamentary Counsel Endnotes 1 General information See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information. † Minister's second reading speech— Legislative Assembly: 27 May 2015 Legislative Council: 25 June 2015 The long title for the Bill for this Act was "A Bill for an Act to authorise and facilitate the leasing of land in the port of Melbourne and disposal of assets of the Port of Melbourne Corporation to a private sector entity, to establish the Victorian Transport Fund, to make related amendments to the Transport Integration Act 2010, the Port Management Act 1995, the Marine Safety Act 2010, the Essential Services Commission Act 2001 and consequential amendments to other Acts and for other purposes." -- 198 of 198 --