Port Services Amendment Act 2007

Port Services Amendment Act 2007 No. 63 of 2007 TABLE OF PROVISIONS Section Page 1 Purpose 1 2 Commencement 2 3 Purposes of the Port Services Act 1995 2 4 Definitions 2 5 Dredging by Port of Melbourne Corporation 3 6 Dredging by VRCA 4 7 Prohibition on loans to partners of directors of port corporations 4 8 Price regulation for certain services repealed 4 9 Repeal of section 54(3) consequential on repeal of sections 49(c)(iv) and 49(c)(v) 4 10 Statute law revision amendment 5 11 Amendment of heading to Part 5 5 12 Substitution of section 74 5 74 Wharfage fees 5 13 Substitution of section 75 6 75 Channel fees 6 14 Insertion of new Part 5A 8 PART 5A—POWERS TO RESTRICT ACCESS TO AREAS 8 Division 1—Preliminary 8 83 Definitions 8 Division 2—Declaration of areas 10 84 Making a declaration of restricted access area 10 85 Effect of declaration 13 86 Provisions as to restricted access area declarations 14 87 Amendment or revocation of declaration 14 88 Publication of declaration 14 88A Operation of declaration where inconsistent with other powers 15 Division 3—Offences and other enforcement powers in relation to areas 15 88B Offence to enter restricted access area 15 88C Interference with activities 16 88D Offence not to give certain information to police when asked to do so 17 i -- 1 of 25 -- Section Page 88E Warning to leave area 17 88F Powers to move vessels from areas 18 88G Certificates of authorisation 18 88H Certificate as evidence of area 19 15 Offence not to audit management plans 19 16 Audits of compliance 19 17 Ministerial directions 19 18 Further amendment of the Port Services Act 1995 20 19 Repeal of Act 20 __________________ SCHEDULE—Consequential Amendment of the Port Services Act 1995 21 1 Payment and collection of fees 21 2 Interest on overdue payments 21 3 Security for payment of fees 21 4 Liability of current owners and agents 22 5 Waiver or refund of fees 22 ═══════════════ ENDNOTES 23 ii -- 2 of 25 -- Victoria Port Services Amendment Act 2007† No. 63 of 2007 [Assented to 4 December 2007] The Parliament of Victoria enacts: 1 Purpose The purpose of this Act is to amend the Port Services Act 1995 to— (a) make provision for further powers as to dredging; and (b) make further provision for port fees; and (c) make provision for powers to restrict access to certain port lands and waters; and (d) make provision for other matters. 1 -- 3 of 25 -- Port Services Amendment Act 2007 No. 63 of 2007 s. 2 2 Commencement (1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed. (2) If a provision of this Act does not come into operation before 1 July 2008, it comes into operation on that day. 3 Purposes of the Port Services Act 1995 In section 1(c) of the Port Services Act 1995, after "port charges" insert "or fees". See: Act No. 82/1995. Reprint No. 4 as at 1 July 2004 and amending Act Nos 75/2004, 107/2004, 108/2004, 110/2004 and 80/2006. LawToday: www. legislation. vic.gov.au 4 Definitions (1) Insert the following definitions in section 3 of the Port Services Act 1995— "channel fee means a fee under section 75; domestic partner of a person means a person to whom the person is not married but with whom the person is living as a couple on a genuine domestic basis (irrespective of gender); member of the police force has the same meaning as member of the force has in the Police Regulation Act 1958; partner of a person means the person's spouse or domestic partner; 2 -- 4 of 25 -- Port Services Amendment Act 2007 No. 63 of 2007 s. 5 restricted access area means an area that is the subject of a declaration under Division 2 of Part 5A; spouse of a person means a person to whom the person is married; wharfage fee means a fee under section 74;". (2) At the end of section 3 of the Port Services Act 1995 insert— "(2) For the purposes of the definition of domestic partner in subsection (1), in determining whether persons are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 275(2) of the Property Law Act 1958 as may be relevant in a particular case.". 5 Dredging by Port of Melbourne Corporation In section 14A of the Port Services Act 1995— (a) in paragraph (c), for "navigation." substitute "navigation;"; (b) after paragraph (c) insert— "(d) may— (i) place or dispose of excavated or dredged material resulting from the performance of any function under paragraph (a), (b) or (c) in port of Melbourne waters; or (ii) undertake, in port of Melbourne waters, any works necessary to place or dispose of excavated or dredged material resulting from the performance of any function under paragraph (a), (b) or (c).". 3 -- 5 of 25 -- Port Services Amendment Act 2007 No. 63 of 2007 s. 6 6 Dredging by VRCA In section 22 of the Port Services Act 1995— (a) in paragraph (c), for "navigation." substitute "navigation;"; (b) after paragraph (c) insert— "(d) may— (i) place or dispose of excavated or dredged material resulting from the performance of any function under paragraph (a), (b) or (c) in port waters in which the function is being performed; or (ii) undertake any works necessary to place or dispose of excavated or dredged material resulting from the performance of any function under paragraph (a), (b) or (c) in port waters in which the function is being performed.". 7 Prohibition on loans to partners of directors of port corporations In section 31(1) of the Port Services Act 1995, for "spouse" (wherever occurring) substitute "partner". 8 Price regulation for certain services repealed In section 49(c) of the Port Services Act 1995— (a) in subparagraph (iii), for "Hastings;" substitute "Hastings."; (b) subparagraphs (iv) and (v) are repealed. 9 Repeal of section 54(3) consequential on repeal of sections 49(c)(iv) and 49(c)(v) Section 54(3) of the Port Services Act 1995 is repealed. 4 -- 6 of 25 -- Port Services Amendment Act 2007 No. 63 of 2007 s. 10 10 Statute law revision amendment In section 60(8)(b)(ii) of the Port Services Act 1995, for "offered by" substitute "offered to". 11 Amendment of heading to Part 5 In the heading to Part 5 of the Port Services Act 1995, for "CHARGES" substitute "FEES". 12 Substitution of section 74 For section 74 of the Port Services Act 1995 substitute— "74 Wharfage fees (1) Subject to this Part, the Port of Melbourne Corporation 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) Subject to Part 3, a fee determined under subsection (1) may be calculated by reference to the quantity, volume, weight or value of cargo loaded or unloaded at the site. (3) Subject to this Act, different fees may be determined under subsection (1) in respect of a site or a class of site, or cargo or a class of cargo, or a vessel or a class of vessel or according to any other factors that the Port of Melbourne Corporation determines. (4) A fee determined under subsection (1) is payable to the Port of Melbourne Corporation— (a) in the case of cargo unloaded from a vessel at the site, by the person who, immediately after it is unloaded, is the owner of the cargo; and 5 -- 7 of 25 -- Port Services Amendment Act 2007 No. 63 of 2007 s. 13 (b) in the case of cargo loaded onto a vessel at the site, by the person who, immediately before it is loaded, is the owner of the cargo; and (c) in the case of the loading of an empty container onto a vessel or the unloading of an empty container from a vessel at the site, by the person who is the owner of the vessel. (5) If a fee determined under subsection (1), or any part of such a fee, is not paid by the person liable under subsection (4)(a) or (b) to pay it, that person and the person who, at the time payment is demanded by the Port of Melbourne Corporation, is the owner of the cargo are jointly and severally liable for the payment of the fee. (6) Nothing in this section affects a fee payable for services specified in subsection (1) in accordance with the terms of a contract.". 13 Substitution of section 75 For section 75 of the Port Services Act 1995 substitute— "75 Channel fees (1) Subject to this Part— (a) VRCA may determine fees for— (i) the provision of channels under this Act by VRCA in the port waters of VRCA for use by vessels, not being channels in the port waters of a channel operator; and (ii) any service related to the provision of the service described in subparagraph (i); and 6 -- 8 of 25 -- Port Services Amendment Act 2007 No. 63 of 2007 s. 13 (b) a channel operator may determine fees for— (i) the provision of channels under this Act by the channel operator in the port waters of the channel operator for use by vessels; and (ii) any service related to the provision of the service described in subparagraph (i). (2) A fee determined under subsection (1)— (a) may be calculated by reference to the tonnage of a vessel or in any other manner; and (b) may differ according the nature of any vessel or any cargo on any vessel; and (c) may differ according to the length of time vessels are in the port waters of a port serviced by VRCA or the channel operator (as the case requires). (3) A fee determined under subsection (1) is payable by the person or persons specified in the determination, who must be one or more of the following— (a) the owner of any vessel that has used, is using or proposes to use the channel; (b) the person who, immediately after any cargo is unloaded from a vessel that has used the channel, is the owner of the cargo; (c) the person who, immediately before cargo is loaded onto a vessel that proposes to use the channel, is the owner of the cargo. 7 -- 9 of 25 -- Port Services Amendment Act 2007 No. 63 of 2007 s. 14 (4) If a fee determined under subsection (1) is not paid by the person liable under the determination to pay it, that person and the person who is the owner of the cargo, at the time payment is demanded by VRCA or the channel operator, are jointly and severally liable for the payment of the fee. (5) Nothing in this section affects a fee payable for the services specified in subsection (1) in accordance with the terms of a contract.". 14 Insertion of new Part 5A After Part 5 of the Port Services Act 1995 insert— "PART 5A—POWERS TO RESTRICT ACCESS TO AREAS Division 1—Preliminary 83 Definitions In this Part— authorised person means a person— (a) acting under a certificate of authorisation under section 88G; or (b) who is a member of the police force, acting in the course of his or her duties as such a member; or (c) who is— (i) an employee in the public service within the meaning of the Public Administration Act 2004; or 8 -- 10 of 25 -- Port Services Amendment Act 2007 No. 63 of 2007 s. 14 (ii) an officer or employee of a public body— who is performing duties or functions under this Act, the Coastal Management Act 1995, the Conservation, Forests and Lands Act 1987, the Crown Land (Reserves) Act 1978, the Dangerous Goods Act 1985, the Emergency Management Act 1986, the Environment Protection Act 1970, the Fisheries Act 1995, the Flora and Fauna Guarantee Act 1988, the Land Act 1958, the Marine Act 1988, the National Parks Act 1975, the Occupational Health and Safety Act 2004, the Parks Victoria Act 1998, the Planning and Environment Act 1987, the Pollution of Waters by Oil and Noxious Substances Act 1986 or the Water Act 1989 or any regulations made under any one of those Acts; port waters, in relation to VRCA, means any waters in respect of which VRCA has functions under section 21; recommending authority— (a) in relation to an area, the declaration of which as a restricted access area is or may be recommended by the Port of Melbourne Corporation, means the Port of Melbourne Corporation; or 9 -- 11 of 25 -- Port Services Amendment Act 2007 No. 63 of 2007 s. 14 (b) in relation to an area, the declaration of which as a restricted access area is or may be recommended by VRCA, means VRCA; restricted access area declaration means a declaration made under section 84 (whether or not amended under Division 2). Division 2—Declaration of areas 84 Making a declaration of restricted access area (1) The Minister, on the recommendation of the Port of Melbourne Corporation may declare— (a) that any part of— (i) port of Melbourne waters; or (ii) 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; or (b) that, in relation to a vessel, while the vessel is in port of Melbourne waters, the area that is— (i) within a specified distance of the vessel (not being a distance of more than 1⋅4 kilometres); and (ii) within port of Melbourne waters or port of Melbourne land— is an area to which access is restricted. 10 -- 12 of 25 -- Port Services Amendment Act 2007 No. 63 of 2007 s. 14 (2) The Minister, on the recommendation of VRCA may declare— (a) that a part of any port waters of VRCA, that is specified in the declaration (not being more than 12 square kilometres, in area) is an area to which access is restricted; or (b) that, in relation to a vessel, while the vessel is in port waters of VRCA, the area that is— (i) within a specified distance of the vessel (not being a distance of more than 1⋅4 kilometres); and (ii) within port waters of VRCA— is an area to which access is restricted. (3) The Minister must not make a declaration under this section unless— (a) the Minister is satisfied that the declaration is necessary to enable the recommending authority to carry out its powers or functions and give effect to its objectives under this Act; and (b) if any area or part of an area that is to be declared under subsection (1) or (2)— (i) is reserved or deemed to be reserved under the Crown Land (Reserves) Act 1978; or (ii) is within 100 metres of land that is reserved or deemed to be reserved under the Crown Land (Reserves) Act 1978— the Minister has first consulted the Minister administering that Act. 11 -- 13 of 25 -- Port Services Amendment Act 2007 No. 63 of 2007 s. 14 (4) A park or a part of a park, within the meaning of the National Parks Act 1975, is not to be taken to be the subject of a declaration under this section, unless the Minister administering that Act consents to the application of the declaration to the park or the part of the park. (5) If any area or part of an area that is to be declared under subsection (1) or (2) is in port waters of a recommending authority, the recommending authority must not recommend the declaration of the area unless the authority has first consulted the Director of Marine Safety. (6) If any area or part of an area that is to be declared under subsection (1) or (2) is within 100 metres of a park or a part of a park, within the meaning of the National Parks Act 1975, the recommending authority must not recommend the declaration of the area unless the authority has first consulted the Secretary, within the meaning of that Act. (7) VRCA must not recommend the declaration of a restricted access area under subsection (2) in relation to port waters of VRCA in respect of which VRCA has delegated any of its functions under section 21, unless VRCA has first consulted with the person or body to whom VRCA has delegated the functions. 12 -- 14 of 25 -- Port Services Amendment Act 2007 No. 63 of 2007 s. 14 85 Effect of declaration The Minister may specify in a declaration under section 84(1) or 84(2) any of the following— (a) vessels or classes of vessels that may or may not have access to the area, and, in relation to vessels, any of the following— (i) purposes for which vessels may or may not have access to the area; (ii) times during which vessels may or may not have access to the area; (iii) activities that may or may not be carried out by vessels having access to the area; (b) persons or classes of persons that may or may not have access to the area, and, in relation to persons, any of the following— (i) purposes for which persons may or may not have access to the area; (ii) times during which persons may or may not have access to the area; (iii) activities that may or may not be carried out by persons having access to the area; (c) any conditions relating to access to the area. 13 -- 15 of 25 -- Port Services Amendment Act 2007 No. 63 of 2007 s. 14 86 Provisions as to restricted access area declarations (1) A restricted access area declaration— (a) must be made by instrument published in the Government Gazette; and (b) may describe an area by reference to a map, plan or otherwise. (2) A restricted access area declaration takes effect— (a) on the day that it is published in the Government Gazette; or (b) if a later day is specified in the declaration, on that day. (3) A restricted access area declaration remains in force, for the period specified in the declaration, unless the declaration is sooner revoked, but, in any case, for no more than 12 months. 87 Amendment or revocation of declaration The Minister may amend or revoke a restricted access area declaration in the same manner as that in which it is made. 88 Publication of declaration The recommending authority for a restricted access area declaration must— (a) publish the declaration in a newspaper circulating generally throughout Victoria; and (b) publish the declaration in a manner that makes it readily accessible to a person likely to enter the area; and (c) publish the declaration on the Internet. 14 -- 16 of 25 -- Port Services Amendment Act 2007 No. 63 of 2007 s. 14 88A Operation of declaration where inconsistent with other powers (1) In the case of any inconsistency between a power that may be exercised by the Director of Marine Safety or another person under a relevant law and a power that may be exercised in respect of a restricted access area, the power that may be exercised under the relevant law prevails. (2) In this section, relevant law means any provision of this Act (other than this Part), the Marine Act 1988, regulations made under this Act (other than in respect of this Part) or regulations made under the Marine Act 1988. Division 3—Offences and other enforcement powers in relation to areas 88B Offence to enter restricted access area (1) A person, who is not an authorised person, must not enter into or remain in a restricted access area, or cause a vessel to enter into or remain in a restricted access area, in contravention of the declaration of the area. Penalty: 10 penalty units. (2) In any proceedings for an offence against subsection (1), it is a defence if the person charged with the offence has a reasonable excuse for entering into or remaining in the area in respect of which the proceedings have been brought. 15 -- 17 of 25 -- Port Services Amendment Act 2007 No. 63 of 2007 s. 14 88C Interference with activities (1) A person, who is not an authorised person, must not, in contravention of a declaration of a restricted access area— (a) interfere with or hinder; or (b) cause any other person to interfere with or hinder— the carrying out of any activity in the area that is being carried out for the purpose of enabling the recommending authority for the area to carry out its powers or functions or give effect to its objectives under this Act. Penalty: 10 penalty units. (2) In any proceedings for an offence against subsection (1), it is a defence if the person charged with the offence has a reasonable excuse for— (a) interfering with or hindering; or (b) causing any other person to interfere with or hinder— the carrying out of the activity. (3) A person, who is not an authorised person, must not, in contravention of a declaration of a restricted access area— (a) interfere with or hinder; or (b) cause any other person to interfere with or hinder— the entry into a restricted access area by a person authorised by a certificate under section 88G to do so. Penalty: 10 penalty units. 16 -- 18 of 25 -- Port Services Amendment Act 2007 No. 63 of 2007 s. 14 (4) In any proceedings for an offence against subsection (3), it is a defence if the person charged with the offence has a reasonable excuse for— (a) interfering with or hindering; or (b) causing any other person to interfere with or hinder— the entry. 88D Offence not to give certain information to police when asked to do so (1) A person who is in a restricted access area must, if asked to do so by a member of the police force— (a) give his or her name and address; and (b) state the authority under which he or she is entitled to be in the area and provide evidence that the person has that relates to that authority. Penalty: 5 penalty units. (2) A person who is not entitled to enter or remain in a restricted access area without a certificate of authorisation under section 88G must, when asked to do so by a member of the police force, produce the certificate. Penalty: 5 penalty units. 88E Warning to leave area (1) The recommending authority for a restricted access area may warn any person to leave any part of the area. 17 -- 19 of 25 -- Port Services Amendment Act 2007 No. 63 of 2007 s. 14 (2) For the purposes of section 9(1) of the Summary Offences Act 1966, in exercising a power under subsection (1), the recommending authority is deemed to be the occupier of the land concerned. (3) A person exercising a power under this section must produce evidence of his or her authority to do so before exercising the power. 88F Powers to move vessels from areas If a person has, within sight of a member of the police force, committed an offence under this Part and that person is in charge of a vessel, the member of the police force may— (a) take charge of the vessel; and (b) move it to an appropriate place or direct another person to move it to an appropriate place. 88G Certificates of authorisation (1) The recommending authority for a restricted access area may issue a certificate in writing to any person authorising the person to enter and remain in any part of the restricted access area. (2) A certificate under subsection (1)— (a) subject to any amendment or revocation, remains in force for the period specified in the certificate; and (b) is subject to the conditions specified in the certificate; and (c) may be amended or revoked at any time by the recommending authority. 18 -- 20 of 25 -- Port Services Amendment Act 2007 No. 63 of 2007 s. 15 88H Certificate as evidence of area In any proceedings for an offence under this Part, a certificate, signed by the recommending authority for a restricted access area, certifying that, at the time of the alleged conduct that is the subject of the proceedings, an area was the restricted access area, is admissible evidence of the facts stated in it. __________________". 15 Offence not to audit management plans After section 91C(1) of the Port Services Act 1995 insert— "(1A) A port manager must ensure that— (a) the safety management plan; and (b) the environment management plan— for the port or the part of the port that the port manager manages, superintends or controls are audited in accordance with this Part. Penalty: 240 penalty units, in the case of a commercial or trading port and 60 penalty units in the case of a local port.". 16 Audits of compliance In section 91F(2) of the Port Services Act 1995, after "section 91E(6)" insert "or an environmental auditor appointed under section 53S of the Environment Protection Act 1970". 17 Ministerial directions In section 91H(4) of the Port Services Act 1995, omit "in addition". 19 -- 21 of 25 -- Port Services Amendment Act 2007 No. 63 of 2007 s. 18 18 Further amendment of the Port Services Act 1995 The Port Services Act 1995 is amended as set out in the Schedule. 19 Repeal of Act This Act is repealed on 1 July 2009. __________________ 20 -- 22 of 25 -- Port Services Amendment Act 2007 No. 63 of 2007 Sch. SCHEDULE CONSEQUENTIAL AMENDMENT OF THE PORT SERVICES ACT 1995 1 Payment and collection of fees (1) Insert the following heading to section 78— "Payment of wharfage and channel fees". (2) In section 78(1), for "wharfage charge or channel usage charge" substitute "wharfage fee or channel fee". (3) In section 78(2), for "wharfage or channel usage charges" substitute "wharfage fees or channel fees". (4) In section 78(3), for "wharfage or channel usage charge" substitute "wharfage fee or channel fee". (5) Section 78(4) is repealed. 2 Interest on overdue payments (1) In section 79(1), for "Wharfage charges and channel usage charges" substitute "Wharfage fees and channel fees". (2) In section 79(2), for "charges" substitute "fees". 3 Security for payment of fees (1) Insert the following heading to section 80— "Security for payment of wharfage and channel fees". (2) In section 80(1), for "wharfage charges or channel usage charges" substitute "wharfage fees or channel fees". 21 -- 23 of 25 -- Port Services Amendment Act 2007 No. 63 of 2007 Sch. 4 Liability of current owners and agents (1) In section 81(1)— (a) for "channel usage charge" substitute "channel fee"; (b) for "charge" (where secondly and thirdly occurring) substitute "fee". (2) In section 81(2), for "channel usage charges" substitute "channel fees". (3) In section 81(3), for "charges" substitute "fees". 5 Waiver or refund of fees (1) Insert the following heading to section 82— "Waiver or refund of wharfage or channel fees". (2) In section 82, for "wharfage charge or channel usage charge" substitute "wharfage fee or channel fee". ═══════════════ 22 -- 24 of 25 -- Port Services Amendment Act 2007 No. 63 of 2007 Endnotes ENDNOTES † Minister's second reading speech— Legislative Assembly: 11 October 2007 Legislative Council: 1 November 2007 The long title for the Bill for this Act was "A Bill for an Act to amend the Port Services Act 1995 and for other purposes." 23 -- 25 of 25 --