Port Services (Port of Melbourne Reform) Act 2003

i Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purposes 1 2. Commencement 2 PART 2—ESTABLISHMENT OF PORT OF MELBOURNE CORPORATION 3 3. Definitions 3 4. Orders in Council 4 5. Substitution of Division 1 of Part 2 4 Division 1—Port of Melbourne Corporation 4 10. Establishment 4 11. Port of Melbourne Corporation not to represent the Crown 5 12. Objectives 5 13. Functions 6 14. Powers of the Port of Melbourne Corporation 7 15. Acquisition or disposal of land by the Corporation to be approved by Minister 8 6. Directions by the Minister 8 7. Non-commercial functions 9 8. Amendment of heading to Part 4 9 9. Insertion of new Division 1 of Part 4 9 Division 1—Reservation of land for the purposes of the port of Melbourne 9 64. Power to reserve unalienated Crown land for the purposes of the port of Melbourne 9 10. Wharfage charge 11 11. Substitution of heading to Part 8 11 12. Insertion of definition of "port corporation" in section 99 12 13. Substitution of heading to Part 9 12 14. Insertion of definition of "port corporation" in section 117 12 -- 1 of 38 -- Section Page ii 15. Insertion of new Part 12 13 PART 12—TRANSITIONAL PROVISIONS— ESTABLISHMENT OF PORT OF MELBOURNE CORPORATION 13 162. Definitions 13 163. Transfer of property etc. from MPC to the new corporation 13 164. Staff to be transferred from the old corporation to the new corporation 14 16. Provisions applying to the Boards of port corporations 16 17. Consequential amendments 17 PART 3—TRANSFER OF VCA FUNCTIONS 18 18. Definitions 18 19. Objectives of the Port of Melbourne Corporation 19 20. Functions of the Port of Melbourne Corporation 19 21. Insertion of new section to follow section 14 19 14A. Dredging by Port of Melbourne Corporation 19 22. Definition of port waters for VCA 20 18AA. Definition 20 23. Amendment of definition of channel operator in Part 3 20 24. Insertion of new Part 13 21 PART 13—TRANSITIONAL PROVISIONS—TRANSFER OF CERTAIN VCA FUNCTIONS ETC. 21 Division 1—Definitions 21 165. Definitions 21 Division 2—Allocation of property etc. 22 166. Treasurer may direct transfer of property etc. 22 167. Property transferred to the new corporation 23 168. Allocation of property etc. subject to encumbrances 23 169. Substitution of party to agreement 24 170. VCA instruments 24 171. Taxes 24 172. Validity of things done under this Part 25 173. Payments in respect of financial obligations of VCA 26 Division 3—Staff and other matters 26 174. List of staff to be transferred from VCA to the new corporation 26 175. Terms of employment of staff transferred from VCA to the new corporation 27 176. Price determination 28 -- 2 of 38 -- Section Page iii PART 4—AMENDMENTS TO OTHER ACTS 30 25. Amendment of references in the Borrowing and Investment Powers Act 1987 30 26. Amendment of references in the Docklands Authority Act 1991 30 27. Amendment of references in the Land Act 1958 30 28. Amendment of references in the Metropolitan Fire Brigades Act 1958 31 29. Amendment of the Public Authorities (Dividends) Act 1983 31 30. Amendment of references in the Transport Act 1983 32 31. Amendment of references in the Treasury Corporation of Victoria Act 1992 32 __________________ SCHEDULE—Consequential Amendments to the Port Services Act 1995 33 ═══════════════ ENDNOTES 35 -- 3 of 38 -- 1 Port Services (Port of Melbourne Reform) Act 2003 † [Assented to 13 May 2003] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purposes The purposes of this Act are to— (a) amend the Port Services Act 1995 to provide for the abolition of the Melbourne Port Corporation and the establishment of the Port of Melbourne Corporation; and Victoria No. 23 of 2003 -- 4 of 38 -- Part 1—Preliminary Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 2 (b) make other amendments to the Port Services Act 1995; and (c) amend the Public Authorities (Dividends) Act 1983; and (d) make consequential amendments to other Acts. 2. Commencement (1) This Act (except Part 3 (other than section 24) and Part 4) comes into operation on 1 July 2003. (2) Subject to sub-section (3), the remaining provisions of Part 3 come into operation on a day, not earlier than 2 July 2003, to be proclaimed. (3) If the remaining provisions of Part 3 do not come into operation before 2 February 2004, they come into operation on that day. (4) Subject to sub-section (5), Part 4 comes into operation on a day or days to be proclaimed. (5) If a provision of Part 4 does not come into operation before 2 February 2004, it comes into operation on that day. __________________ s. 2 -- 5 of 38 -- Part 2—Establishment of Port of Melbourne Corporation Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 3 PART 2—ESTABLISHMENT OF PORT OF MELBOURNE CORPORATION 3. Definitions In section 3 of the Port Services Act 1995— (a) insert the following definitions— ' "port of Melbourne" means port of Melbourne land; "Port of Melbourne Corporation" means the corporation established under section 10; "port of Melbourne land" means land that is in the municipal district of the Melbourne City Council, Maribyrnong City Council, Hobsons Bay City Council or Port Phillip City Council or any land in Port Phillip Bay adjoining one or more of those municipal districts, being— (a) land— (i) an interest in which (being an interest that is in the nature of a freehold or leasehold interest or a licence) is held by the Port of Melbourne Corporation; and (ii) that is declared by the Order in Council under section 5(1A) to be port of Melbourne land; and (b) any land that is deemed to be temporarily reserved under the Crown Land (Reserves) Act 1978 for the purposes of the port See: Act No. 82/1995. Reprint No. 2 as at 1 June 2001 and amending Act Nos 44/2001, 62/2001 and 77/2001. LawToday: www.dms. dpc.vic. gov.au s. 3 -- 6 of 38 -- Part 2—Establishment of Port of Melbourne Corporation Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 4 of Melbourne by the operation of section 64;'; (b) the definitions of "managed land", "Melbourne port area", "MPC" and "PMA" are repealed; (c) in the definition of "port corporation", for "Melbourne Port Corporation" substitute "Port of Melbourne Corporation"; (d) in the definition of "port land"— (i) for paragraph (a) substitute— "(a) in the case of the port of Melbourne, the port of Melbourne land;"; (ii) in paragraph (b) for "in relation to" substitute "in the cases of". 4. Orders in Council After section 5(1) of the Port Services Act 1995 insert— "(1A) The Governor in Council may, from time to time, by Order published in the Government Gazette, declare any land, an interest in which (being an interest in the nature of a freehold or leasehold interest or a licence) is held by the Port of Melbourne Corporation, to be port of Melbourne land.". 5. Substitution of Division 1 of Part 2 For Division 1 of Part 2 of the Port Services Act 1995 substitute— 'Division 1—Port of Melbourne Corporation 10. Establishment (1) There is established a body to be known as the "Port of Melbourne Corporation". s. 4 -- 7 of 38 -- Part 2—Establishment of Port of Melbourne Corporation Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 5 (2) The Port of Melbourne Corporation— (a) is a body corporate with perpetual succession; and (b) has 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 acts and things that a body corporate may, by law, do and suffer. (3) All courts must take judicial notice of the seal of the Port of Melbourne Corporation affixed to a document and, until the contrary is proved, must presume that it was duly affixed. (4) The official seal of the Port of Melbourne Corporation must be kept in such custody as the Corporation directs and must not be used except as authorised by the Corporation. 11. Port of Melbourne Corporation not to represent the Crown The Port of Melbourne Corporation is a public authority but does not represent the Crown. 12. Objectives The objectives of the Port of Melbourne Corporation are— (a) to manage and develop the port of Melbourne in an economically, socially and environmentally sustainable manner; s. 5 -- 8 of 38 -- Part 2—Establishment of Port of Melbourne Corporation Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 6 (b) to ensure that essential port services of the port of Melbourne are available and cost effective; (c) to ensure, in co-operation with other relevant responsible bodies, that the port of Melbourne is effectively integrated with other systems of infrastructure in the State; (d) to facilitate, in co-operation with other relevant responsible bodies, the sustainable growth of trade through the port of Melbourne. 13. Functions (1) The functions of the Port of Melbourne Corporation are— (a) to plan for the development and operation of the port of Melbourne; (b) to provide land, waters and infrastructure necessary for the development and operation of the port of Melbourne; (c) to develop, or enable and control the development by others of, the whole or any part of the port of Melbourne; (d) to manage, or enable and control the management by others of, the whole or any part of the port of Melbourne; (e) to provide, or enable and control the provision by others of, services for the operation of the port of Melbourne; (f) to promote and market the port of Melbourne; s. 5 -- 9 of 38 -- Part 2—Establishment of Port of Melbourne Corporation Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 7 (g) to facilitate the integration of infrastructure and logistics systems in the port of Melbourne with relevant systems outside the port; (h) any other functions that are conferred on the Corporation by or under this or any other Act. (2) The Port of Melbourne Corporation must carry out its functions under sub-section (1) in a manner that— (a) is safe and secure; and (b) is environmentally sustainable; and (c) is effective and efficient; and (d) is commercially sound; and (e) has regard for the persons living or working in the immediate neighbourhood of the port of Melbourne. 14. Powers of the Port of Melbourne Corporation The Port of Melbourne Corporation— (a) subject to section 15, may acquire or dispose of real or personal property; (b) may enter into contracts, agreements, leases or licences; (c) may employ agents or contractors; (d) may act as an agent of another person; (e) may form, or participate in the formation of, or be a member of, companies; s. 5 -- 10 of 38 -- Part 2—Establishment of Port of Melbourne Corporation Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 8 (f) may form, participate in the formation of, and may participate in, partnerships, trusts, unincorporated joint ventures and other arrangements for sharing profits; (g) may act as trustee; (h) may engage in any business, undertaking or activity incidental to the performance of its functions; (i) may act as a committee of management under the Crown Land (Reserves) Act 1978; (j) may do all things necessary or convenient to be done for, or in connection with, the carrying out of its functions. 15. Acquisition or disposal of land by the Corporation to be approved by Minister The Port of Melbourne Corporation must obtain the approval of the Minister before acquiring or disposing of any interest in land.'. 6. Directions by the Minister (1) For section 30(1) of the Port Services Act 1995 substitute— "(1) Each port corporation is subject to the general direction and control of the Minister. (1A) Each port corporation is subject to any specific direction given to it by the Minister with the approval of the Treasurer.". (2) In section 30(2) of the Port Services Act 1995, for "Treasurer" substitute "Minister". (3) In section 30(3) of the Port Services Act 1995, for "Treasurer" substitute "Minister". s. 6 -- 11 of 38 -- Part 2—Establishment of Port of Melbourne Corporation Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 9 7. Non-commercial functions In section 38(1) of the Port Services Act 1995— (a) for "Treasurer" substitute "Minister"; (b) for "after consultation with the Minister" substitute "with the approval of the Treasurer"; (c) in paragraph (a), for "Treasurer" substitute "Minister"; (d) in paragraph (c), for "Treasurer" substitute "Minister". 8. Amendment of heading to Part 4 In the heading to Part 4 of the Port Services Act 1995, for "CROWN LAND" substitute "RESERVATION OF LAND". 9. Insertion of new Division 1 of Part 4 After the heading to Part 4 of the Port Services Act 1995 insert— "Division 1—Reservation of land for the purposes of the port of Melbourne 64. Power to reserve unalienated Crown land for the purposes of the port of Melbourne (1) The Minister, in consultation with the Minister administering section 4 of the Crown Land (Reserves) Act 1978, may recommend to the Governor in Council that any Crown land that is— (a) in the municipal district of the Melbourne City Council, Maribyrnong City Council, Hobsons Bay City Council or Port Phillip City Council or in Port Phillip Bay adjoining one or more of those municipal districts; and s. 7 -- 12 of 38 -- Part 2—Establishment of Port of Melbourne Corporation Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 10 (b) not reserved under the Crown Land (Reserves) Act 1978— be reserved for the purposes of the port of Melbourne. (2) The Minister must not make a recommendation under sub-section (1) unless the Minister— (a) has received a plan of the land signed by the Surveyor-General; and (b) is satisfied that the land, shown on the plan signed by the Surveyor-General, represents the land that is to be reserved for the purposes of the port of Melbourne. (3) On receiving a recommendation of the Minister under sub-section (1), the Governor in Council may, by Order published in the Government Gazette, declare that any interests over the land shown in the plan, other than those specified in the Order, are surrendered to the Crown. (4) On the publication of an Order under sub- section (3) in the Government Gazette— (a) the land is deemed to be unalienated land of the Crown, freed and discharged from all trusts, limitations, reservations, restrictions, encumbrances, estates and interests other than those specified in the Order; and s. 9 -- 13 of 38 -- Part 2—Establishment of Port of Melbourne Corporation Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 11 (b) the land is deemed to be temporarily reserved under section 4(1) of the Crown Land (Reserves) Act 1978 for the purposes of the port of Melbourne, and the reservation may be amended, revoked and otherwise dealt with in accordance with that Act; and (c) the Port of Melbourne Corporation is deemed to be the committee of management of the land.". 10. Wharfage charge (1) In section 74(1) of the Port Services Act 1995, for "MPC" substitute "the Port of Melbourne Corporation". (2) In section 74(3) of the Port Services Act 1995, for "MPC" substitute "the Port of Melbourne Corporation". (3) In section 74(4) of the Port Services Act 1995, for "MPC" substitute "the Port of Melbourne Corporation". (4) In section 74(5) of the Port Services Act 1995, for "MPC" substitute "the Port of Melbourne Corporation". (5) In section 74(6) of the Port Services Act 1995, for "MPC" substitute "the Port of Melbourne Corporation". 11. Substitution of heading to Part 8 For the heading to Part 8 of the Port Services Act 1995 substitute— "PART 8—TRANSFER OF PROPERTY BY PORT AUTHORITIES TO CERTAIN PORT CORPORATIONS". s. 10 -- 14 of 38 -- Part 2—Establishment of Port of Melbourne Corporation Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 12 12. Insertion of definition of "port corporation" in section 99 In section 99(1) of the Port Services Act 1995, insert the following definition— ' "port corporation" means— (a) Melbourne Port Corporation, within the meaning of this Act, as in force immediately before the commencement of section 5 of the Port Services (Port of Melbourne Reform) Act 2003; or (b) Hastings Port (Holding) Corporation; or (c) Victorian Channels Authority;'. 13. Substitution of heading to Part 9 For the heading to Part 9 of the Port Services Act 1995 substitute— "PART 9—STAFF OF PORT AUTHORITIES". 14. Insertion of definition of "port corporation" in section 117 In section 117 of the Port Services Act 1995, insert the following definition— ' "port corporation" means— (a) Melbourne Port Corporation, within the meaning of this Act, as in force immediately before the commencement of section 5 of the Port Services (Port of Melbourne Reform) Act 2003; or (b) Hastings Port (Holding) Corporation; or (c) Victorian Channels Authority;'. s. 12 -- 15 of 38 -- Part 2—Establishment of Port of Melbourne Corporation Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 13 15. Insertion of new Part 12 After Part 11 of the Port Services Act 1995 insert— 'PART 12—TRANSITIONAL PROVISIONS— ESTABLISHMENT OF PORT OF MELBOURNE CORPORATION 162. Definitions In this Part— "commencement day" means the day on which section 5 of the Port Services (Port of Melbourne Reform) Act 2003 comes into operation; "old corporation" means MPC, within the meaning of this Act, as in force immediately before the commencement day; "new corporation" means the Port of Melbourne Corporation, within the meaning of this Act, as in force on and from the commencement day. 163. Transfer of property etc. from MPC to the new corporation Except as otherwise provided in this Act, on and from the commencement day— (a) the old corporation is abolished and the directors go out of office; and (b) all rights, property and assets that, immediately before the commencement day were vested in the old corporation, vest in the new corporation; and (c) all debts, liabilities and obligations of the old corporation existing immediately before the commencement s. 15 -- 16 of 38 -- Part 2—Establishment of Port of Melbourne Corporation Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 14 day, become debts, liabilities and obligations of the new corporation; and (d) the new corporation is substituted as a party to any proceedings pending in any court or tribunal to which the old corporation was a party, immediately before the commencement day; and (e) the new corporation is substituted as a party to any contract or arrangement entered into by or on behalf of the old corporation and in force immediately before the commencement day; and (f) any reference to the old corporation in any Act or in any proclamation, Order in Council, rule, regulation, order, agreement, instrument, deed or other document, so far as it relates to any period after the commencement day, and if not inconsistent with the context or subject matter, must be construed as a reference to the new corporation. 164. Staff to be transferred from the old corporation to the new corporation (1) A person who was an employee of the old corporation immediately before the commencement day is deemed to be an employee of the new corporation. (2) A transferred employee is to be regarded as— (a) being employed in his or her new position with effect on and from the commencement day; and (b) having the same terms and conditions as those that applied to the person in relation to his or her employment with s. 15 -- 17 of 38 -- Part 2—Establishment of Port of Melbourne Corporation Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 15 the old corporation immediately before the commencement day; and (c) having accrued an entitlement to benefits in connection with the employment with the new corporation that is equivalent to the entitlement that the person had accrued, as an employee of the old corporation, immediately before the commencement day. (3) The service of a transferred employee with the new corporation is to be regarded for all purposes as having been continuous with the service of the transferred employee, immediately before the commencement day, as an employee of the old corporation. (4) A transferred employee is not entitled to receive any payment or other benefit by reason only of having ceased to be an employee of the old corporation because of the operation of this Division. (5) A certificate purporting to be signed by the chief executive officer of the new corporation certifying that the person named in the certificate was, with effect from the commencement day, employed, by virtue of this section, with the new corporation, is admissible in evidence in any proceedings and is conclusive proof of the matters stated in it. (6) The superannuation entitlements of any person who is a transferred employee are deemed not to be affected by that person becoming a transferred employee. (7) If a transferred employee was, immediately before the appointed day an officer within the meaning of the State Superannuation s. 15 -- 18 of 38 -- Part 2—Establishment of Port of Melbourne Corporation Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 16 Act 1988, he or she continues to be such an officer. (8) Nothing in this section prevents— (a) any of the terms and conditions of employment of a transferred employee from being altered by or under any law, award or agreement with effect from any time after the commencement day; or (b) a transferred employee from resigning or being dismissed at any time after the commencement day in accordance with the existing terms and conditions of his or her employment with the new corporation. (9) This section applies to the person occupying the position of chief executive officer of the Melbourne Port Corporation immediately before the commencement day, and the amendment to this Act by section 16(3) of the Port Services (Port of Melbourne Reform) Act 2003 does not apply to that person. (10) In this section, "transferred employee" means an employee of the old corporation who is deemed to be an employee of the new corporation by sub-section (1).'. 16. Provisions applying to the Boards of port corporations (1) In clause 1 of Schedule 1 to the Port Services Act 1995, for "Melbourne Port Corporation, 7" substitute "Port of Melbourne Corporation, 9". (2) In clause 3(1) of Schedule 1 to the Port Services Act 1995 after "the Governor in Council" insert ", on the recommendation of the Minister, after consultation with the Treasurer". s. 16 -- 19 of 38 -- Part 2—Establishment of Port of Melbourne Corporation Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 17 (3) In clause 6(1) of Schedule 1 to the Port Services Act 1995, for "the Treasurer after consultation with the Minister" substitute "the Minister, after consultation with the Treasurer". 17. Consequential amendments The Port Services Act 1995 is amended as set out in the Schedule. __________________ s. 17 -- 20 of 38 -- Part 3—Transfer of VCA Functions Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 18 PART 3—TRANSFER OF VCA FUNCTIONS 18. Definitions In section 3 of the Port Services Act 1995— (a) insert the following definitions— ' "Director of Marine Safety" has the same meaning as "Director" has in the Marine Act 1988; "port of Melbourne waters" means any waters that, by Order in Council made under section 5(2) are declared to be port of Melbourne waters;'; (b) for the definition of "channel operator" substitute— ' "channel operator" means— (a) in the case of port of Melbourne waters, the Port of Melbourne Corporation; (b) in the case of any other port waters, a person who manages channels in those waters under an agreement with VCA;'; (c) in the definition of "port of Melbourne", after "port of Melbourne land" insert "and port of Melbourne waters"; (d) in the definition of "port waters" for "in relation to the port of Melbourne," substitute "in the case of the port of Melbourne, the port of Melbourne waters, and in the cases of the port of". s. 18 -- 21 of 38 -- Part 3—Transfer of VCA Functions Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 19 19. Objectives of the Port of Melbourne Corporation In section 12 of the Port Services Act 1995— (a) in paragraph (d), for "Melbourne." substitute "Melbourne;"; (b) after paragraph (d) insert— "(e) to establish and manage channels in port of Melbourne waters for use on a fair and reasonable basis.". 20. Functions of the Port of Melbourne Corporation After section 13(1)(g) of the Port Services Act 1995, insert— "(ga) to manage and, in accordance with standards developed by the Director of Marine Safety, to dredge and maintain channels in port of Melbourne waters; (gb) to provide and maintain, in accordance with the standards developed by the Director of Marine Safety, navigation aids in connection with navigation in port of Melbourne waters; (gc) generally, to direct and control, in accordance with the Marine Act 1988, the movement of vessels in port of Melbourne waters;". 21. Insertion of new section to follow section 14 After section 14 of the Port Services Act 1995 insert— "14A. Dredging by Port of Melbourne Corporation Without limiting the generality of the powers conferred on it, but subject to obtaining any permit, consent or other authority required by or under any other Act, the Port of Melbourne Corporation, in connection with s. 19 -- 22 of 38 -- Part 3—Transfer of VCA Functions Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 20 carrying out its functions as a channel operator— (a) may alter, dredge, cleanse, scour, straighten and improve any channel in port of Melbourne waters; (b) may reduce or remove any banks or shoals within any such channel; (c) may abate and remove any impediments, obstructions and nuisances in any such channel that are injurious to the sea-bed or that obstruct or tend to obstruct navigation.". 22. Definition of port waters for VCA After the heading to Division 2 of Part 2 insert— '18AA. Definition In this Division "port waters" does not include port of Melbourne waters.'. 23. Amendment of definition of channel operator in Part 3 In the definition of "channel operator" in section 45 of the Port Services Act 1995, after "under an arrangement with VCA" insert "or the Port of Melbourne Corporation when acting in port of Melbourne waters". s. 22 -- 23 of 38 -- Part 3—Transfer of VCA Functions Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 21 24. Insertion of new Part 13 After Part 12 of the Port Services Act 1995 insert— 'PART 13—TRANSITIONAL PROVISIONS— TRANSFER OF CERTAIN VCA FUNCTIONS ETC. Division 1—Definitions 165. Definitions In this Division— "appointed day" means the day on which section 20 of the Port Services (Port of Melbourne Reform) Act 2003 comes into operation; "former VCA property" means property, rights or liabilities of VCA that, under this Part, have vested in or become property rights or liabilities of the new corporation; "instrument" includes a document and an oral agreement; "liabilities" means all liabilities, duties and obligations, whether actual, contingent or prospective; "property" means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description; "rights" means all rights, powers, privileges and immunities, whether actual, contingent or prospective; s. 24 -- 24 of 38 -- Part 3—Transfer of VCA Functions Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 22 "VCA instrument" means an instrument subsisting immediately before the relevant date— (a) to which VCA was a party; or (b) that was given in favour of VCA; or (c) that refers to VCA; or (d) under which— (i) money is or may become payable to or by VCA; or (ii) other property is to be or may become liable to be transferred to or by VCA. Division 2—Allocation of property etc. 166. Treasurer may direct transfer of property etc. (1) The Treasurer, after consultation with the Minister, may give a direction in writing to VCA directing it to transfer, in accordance with the direction, property, rights and liabilities of a specified kind to the new corporation. (2) Within 21 days after receiving a direction under sub-section (1), VCA must give to the Treasurer a statement approved by the Treasurer relating to the property, rights and liabilities of VCA to which the direction relates, as at a date specified by the Treasurer, for the purposes of this section. s. 24 -- 25 of 38 -- Part 3—Transfer of VCA Functions Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 23 (3) A statement under this section— (a) must allocate the property, rights and liabilities of VCA shown in the statement in accordance with the directions of the Treasurer; and (b) must be signed by the chief executive officer of VCA. (4) If a statement under this section is approved by the Treasurer and the Minister— (a) the Treasurer and the Minister must sign the statement; and (b) the statement is an allocation statement for the purposes of this Part. 167. Property transferred to the new corporation On the appointed day— (a) all property and rights of VCA that are allocated to the new corporation under the allocation statement, vest in the new corporation; and (b) all liabilities of VCA that are allocated to the new corporation under the allocation statement, become liabilities of the new corporation. 168. Allocation of property etc. subject to encumbrances Unless an allocation statement under this Part otherwise provides, where, under this Part property and rights vest in the new corporation or liabilities become liabilities of the new corporation— (a) the property and rights so vested are subject to the encumbrances (if any) to which they were subject immediately before so vesting; and s. 24 -- 26 of 38 -- Part 3—Transfer of VCA Functions Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 24 (b) the rights to which VCA was entitled in respect of those liabilities immediately before they ceased to be liabilities of VCA, vest in the new corporation. 169. Substitution of party to agreement If, under an allocation statement, the rights and liabilities of VCA under an agreement are allocated to the new corporation— (a) the new corporation becomes, on the appointed day, a party to the agreement in place of VCA; and (b) on and after the relevant date, the agreement has effect as if the new corporation had always been a party to the agreement. 170. VCA instruments Each VCA instrument relating to former VCA property continues to have effect according to its tenor on and after the relevant date as if a reference in the instrument to VCA were a reference to the new corporation. 171. Taxes No duty or other tax is chargeable under any Act in respect of anything done under this Division or in respect of any act or transaction connected with or necessary to be done by reason of this Division, including a transaction entered into or an instrument made, executed, lodged or given, for the purpose of, or connected with the transfer of property, rights or liabilities of VCA. s. 24 -- 27 of 38 -- Part 3—Transfer of VCA Functions Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 25 172. Validity of things done under this Part (1) Nothing effected by this Division or done or suffered by VCA, a Minister or the new corporation under this Division— (a) is to be regarded as placing VCA, a Minister or the new corporation in breach of contract or confidence or as otherwise making any of them guilty of a civil wrong; or (b) is to be regarded as placing any of them in breach of or as constituting a default under any Act or other law or any provision in any agreement, arrangement or understanding including, without limiting the generality of the foregoing, any provision prohibiting, restricting or regulating the assignment or transfer of any property or the disclosure of any information; or (c) is to be regarded as fulfilling any condition which allows a person to exercise a right or remedy in respect of or to terminate any agreement or obligation; or (d) releases any surety or other obligor wholly or in part from any obligation. (2) The validity of any act or transaction of VCA or the new corporation must not be called in question in any proceedings on the ground that any provision of this Division had not been complied with. s. 24 -- 28 of 38 -- Part 3—Transfer of VCA Functions Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 26 173. Payments in respect of financial obligations of VCA In the case of any obligations or rights of VCA under section 36D or 36E of the Treasury Corporation of Victoria Act 1992, that have been allocated under an allocation statement under this Division— (a) the new corporation must pay to the Treasury Corporation of Victoria such amounts, and at such times, as VCA would have been liable to pay in respect of those financial obligations, if the Order under section 36D or 36E (as the case requires) had not been made, except so far as the Treasury Corporation of Victoria and the new corporation otherwise agree; and (b) the Treasury Corporation of Victoria must pay to the new corporation those amounts, and at those times, as VCA would have been entitled to receive in respect of those financial obligations if the Order under section 36D or 36E (as the case requires) had not been made, except in so far as the Treasury Corporation of Victoria and the new corporation otherwise agree. Division 3—Staff and other matters 174. List of staff to be transferred from VCA to the new corporation The chief executive officer of VCA must list, in writing, the employees of VCA, employed by VCA immediately before the appointed day, who are to be employed by the new corporation. s. 24 -- 29 of 38 -- Part 3—Transfer of VCA Functions Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 27 175. Terms of employment of staff transferred from VCA to the new corporation (1) A transferred employee is to be regarded as— (a) being employed in his or her new position with effect on and from the appointed day; and (b) having the same terms and conditions as those that applied to the person in relation to his or her employment with the VCA immediately before the appointed day; and (c) having accrued an entitlement to benefits in connection with the employment with the new corporation that is equivalent to the entitlement that the person had accrued, as an employee of VCA, immediately before the appointed day. (2) The service of a transferred employee with the new corporation is to be regarded for all purposes as having been continuous with the service of the transferred employee, immediately before the appointed day, as an employee of VCA. (3) A transferred employee is not entitled to receive any payment or other benefit by reason only of having ceased to be an employee of VCA because of the operation of this Division. (4) A certificate purporting to be signed by the Chief Executive Officer of the new corporation certifying that the person named in the certificate was, with effect from the appointed day, employed, by virtue of this section, with the new corporation, is s. 24 -- 30 of 38 -- Part 3—Transfer of VCA Functions Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 28 admissible in evidence in any proceedings and is conclusive proof of the matters stated in it. (5) The superannuation entitlements of any person who is a transferred employee are deemed not to be affected by that person becoming a transferred employee. (6) If a transferred employee was, immediately before the appointed day an officer within the meaning of the State Superannuation Act 1988, he or she continues to be such an officer. (7) Nothing in this section prevents— (a) any of the terms and conditions of employment of a transferred employee from being altered by or under any law, award or agreement with effect from any time after the appointed day; or (b) a transferred employee from resigning or being dismissed at any time after the appointed day in accordance with the existing terms and conditions of his or her employment with the new corporation. (8) In this section, "transferred employee" means a person listed under section 174. 176. Price determination (1) On and from the appointed day— (a) a reference in the price determination to VCA, to the extent that that reference applies to the exercise by that body of functions or powers within the port of Melbourne, is deemed to be a reference to the Port of Melbourne Corporation; and s. 24 -- 31 of 38 -- Part 3—Transfer of VCA Functions Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 29 (b) any powers, functions, rights and liabilities of VCA under the price determination, to the extent that they relate to the port of Melbourne, become powers, functions, rights and liabilities of the Port of Melbourne Corporation. (2) In this section "price determination" means the Price Determination for the Channels of the Ports of Melbourne and Geelong, as in force immediately before the appointed day, being the price determination— (a) that was made by the Regulator- General under section 54 (as in force before the commencement of the Essential Services Commission Act 2001); and (b) notice of the making of which was given in Special Government Gazette Number S99; and (c) that came into operation on 3 July 2000; and (d) that was continued in force under Part 8 of the Essential Services Commission Act 2001.'. __________________ s. 24 -- 32 of 38 -- Part 4—Amendments to Other Acts Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 30 PART 4—AMENDMENTS TO OTHER ACTS 25. Amendment of references in the Borrowing and Investment Powers Act 1987 In Column 1 of item 7A of Schedule 1 of the Borrowing and Investment Powers Act 1987, for "Melbourne Port Corporation" substitute "Port of Melbourne Corporation". 26. Amendment of references in the Docklands Authority Act 1991 (1) In section 28(2) of the Docklands Authority Act 1991, for "Melbourne Port Corporation" substitute "Port of Melbourne Corporation". (2) In section 32(1)(a) of the Docklands Authority Act 1991, for "Melbourne Port Corporation" substitute "Port of Melbourne Corporation". 27. Amendment of references in the Land Act 1958 In section 385(2)(e) of the Land Act 1958, for "Melbourne Port Corporation" substitute "Port of Melbourne Corporation". See: Act No. 13/1987. Reprint No. 6 as at 1 July 2001 and amending Act Nos 66/2000, 81/2000 and 87/2001. LawToday: www.dms. dpc.vic. gov.au s. 25 See: Act No. 22/1991. Reprint No. 2 as at 1 July 1999 and amending Act Nos 45/1999, 30/2000, 74/2000, 11/2001 and 44/2001. LawToday: www.dms. dpc.vic. gov.au See: Act No. 6284. Reprint No. 10 as at 20 September 2001 and amending Act No. 11/2002. LawToday: www.dms. dpc.vic. gov.au -- 33 of 38 -- Part 4—Amendments to Other Acts Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 31 28. Amendment of references in the Metropolitan Fire Brigades Act 1958 (1) In section 4(2) of the Metropolitan Fire Brigades Act 1958— (a) in paragraph (a), for "Melbourne port area" substitute "port of Melbourne"; (b) in paragraph (ab), for "Melbourne Port Corporation" substitute "Port of Melbourne Corporation". (2) In section 32B(5) of the Metropolitan Fire Brigades Act 1958, for "Melbourne Port Corporation" established by Division 1 of Part 2 of the" substitute "Port of Melbourne Corporation established by the". 29. Amendment of the Public Authorities (Dividends) Act 1983 In the definition of "public authority" in section 4(1) of the Public Authorities (Dividends) Act 1983, paragraph (c) is repealed. See: Act No. 6315. Reprint No. 8 as at 25 March 1999 and amending Act Nos 50/1989, 86/1998, 48/2000, 9/2002 and 49/2002. LawToday: www.dms. dpc.vic. gov.au s. 28 See: Act No. 10003. Reprint No. 2 as at 8 August 1997 and amending Act No. 91/1997. LawToday: www.dms. dpc.vic. gov.au -- 34 of 38 -- Part 4—Amendments to Other Acts Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 32 30. Amendment of references in the Transport Act 1983 In clause 26 of Schedule 5 to the Transport Act 1983, for "Port of Melbourne Authority" (wherever occurring) substitute "Port of Melbourne Corporation". 31. Amendment of references in the Treasury Corporation of Victoria Act 1992 (1) In the definition of "public authority" in section 36A of the Treasury Corporation of Victoria Act 1992— (a) omit "the Port of Melbourne Authority"; (b) for "Melbourne Port Corporation" substitute "Port of Melbourne Corporation". (2) In column 1 of Schedule 1 to the Treasury Corporation of Victoria Act 1992, for "Melbourne Port Corporation" substitute "Port of Melbourne Corporation". __________________ See: Act No. 9921. Reprint No. 8 as at 13 June 2002 and amending Act Nos 81/2000, 54/2001, 94/2001, 32/2002, 35/2002, 37/2002 and 54/2002. LawToday: www.dms. dpc.vic. gov.au s. 30 See: Act No. 80/1992. Reprint No. 2 as at 20 August 1998 and amending Act Nos 98/1998, 63/1999, 69/2000, 74/2000, 29/2001 and 32/2001. LawToday: www.dms. dpc.vic. gov.au -- 35 of 38 -- Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 33 SCHEDULE CONSEQUENTIAL AMENDMENTS TO THE PORT SERVICES ACT 1995 1. Amendment of section 4 In section 4(2)(b), for "MPC" substitute "the Port of Melbourne Corporation". 2. Amendment of section 7 In section 7, for "MPC" (wherever occurring) substitute "the Port of Melbourne Corporation". 3. Amendment of section 78 (1) In section 78(1), for "MPC" (wherever occurring) substitute "the Port of Melbourne Corporation". (2) In section 78(2), for "MPC" substitute "the Port of Melbourne Corporation". (3) In section 78(3), for "MPC" substitute "the Port of Melbourne Corporation". 4. Amendment of section 79 In section 79(1), for "MPC" substitute "the Port of Melbourne Corporation". 5. Amendment of section 80 (1) In section 80(1), for "MPC" substitute "the Port of Melbourne Corporation". (2) In section 80(2), for "MPC" (wherever occurring) substitute "the Port of Melbourne Corporation". (3) In section 80(3), for "MPC" substitute "The Port of Melbourne Corporation". (4) In section 80(4), for "MPC" substitute "the Port of Melbourne Corporation". (5) In section 80(5), for "MPC" substitute "the Port of Melbourne Corporation". Sch. -- 36 of 38 -- Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 34 6. Amendment of section 82 In section 82, for "MPC" substitute "The Port of Melbourne Corporation". ═══════════════ Sch. -- 37 of 38 -- Port Services (Port of Melbourne Reform) Act 2003 Act No. 23/2003 35 ENDNOTES † Minister's second reading speech— Legislative Assembly: 9 April 2003 Legislative Council: 6 May 2003 The long title for the Bill for this Act was "to amend the Port Services Act 1995 to abolish the Melbourne Port Corporation and to establish the Port of Melbourne Corporation, to make other amendments to that Act, to amend the Public Authorities (Dividends) Act 1983, to make consequential amendments to other Acts and for other purposes." Endnotes -- 38 of 38 --