Ports and Maritime Administration Act 1995 (NSW)

Ports and Maritime Administration Act 1995 No 13 An Act to establish statutory State owned corporations to operate the State's port facilities in the major ports; to transfer waterways management and other marine safety functions to the Minister; to enable Transport for NSW to exercise those waterways management functions; to provide for port charges, pilotage and other marine matters; to dissolve the Maritime Services Board and its subsidiaries; to repeal certain existing marine legislation and to amend other legislation; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Ports and Maritime Administration Act 1995. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 2A Objectives of Act (1) The objectives of this Act are as follows— (a) to establish a statutory State owned corporation and provide a framework for the responsible and effective operation of port facilities in the State by the corporation, (b) to provide a framework for the responsible and effective operation of port facilities in the State by private port operators, (c) to promote competition and productivity in— (i) the operation of ports in the State, and (ii) the port-related supply chain, (d) to ensure the responsible and effective management of wharves, moorings and port facilities generally, (e) to ensure the safety, and the responsible and effective management, of waterways and waterways infrastructure, (f) to promote responsible approaches to the protection of the environment in connection with the operation and management of port facilities, wharves, moorings, maritime infrastructure and property, waterways and waterways infrastructure. (2) The objectives are also to be achieved by regulating the operation of ports in the State, waterways, waterways infrastructure and the port-related supply chain, including by establishing regulatory frameworks for— (a) port charges and a price monitoring scheme, and (b) safety and security at ports, including at private ports, and (c) managing wharves, moorings, and port facilities and infrastructure, and (d) managing maritime property and infrastructure, and (e) managing waterways and waterways infrastructure. 3 Definitions (1) In this Act— assets 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 (including money), and includes securities, choses in action and documents. authorised officer has the same meaning as in the Marine Safety Act 1998. commercial vessel has the same meaning as in the Marine Safety Act 1998. exercise a function includes perform a duty. foreign vessel has the same meaning as in the Navigation Act 2012 of the Commonwealth. function includes a power, authority or duty. harbour master means a person appointed or acting as harbour master under the Marine Safety Act 1998. lease includes concurrent lease and any subletting (or concurrent subletting). liabilities means any liabilities, debts and obligations (whether present or future and whether vested or contingent). marine legislation means any of the following Acts (and the regulations and other instruments made under any of those Acts)— this Act Marine Safety Act 1998 Marine Pollution Act 2012 Any other Act prescribed by the regulations. master of a vessel means the person having the command or charge of the vessel, but does not include a pilot. MSB means the Maritime Services Board constituted under Part 2 of the Marine Administration Act 1989. MSB subsidiary means— (a) any MSB subsidiary ports authority (being the MSB Hunter Ports Authority, the MSB Illawarra Ports Authority or the MSB Sydney Ports Authority, constituted under Part 3 of the Marine Administration Act 1989), or (b) the MSB Waterways Authority constituted under Part 3 of the Marine Administration Act 1989. National law has the same meaning as in the Marine Safety Act 1998. navigable waters means all waters (whether or not in the State) that are from time to time capable of navigation and are open to or used by the public for navigation, whether on payment of a fee or otherwise, but does not include flood waters that have temporarily flowed over the established bank of a watercourse. navigation aid means any device used for the safety of navigation (such as a beacon, buoy or marine mark), but does not include a device on board a vessel. operating licence of the Port Corporation means an operating licence issued to the Port Corporation by the Minister under Division 3 of Part 2. owner of a vessel or cargo—see section 48. pilot of a vessel means the person who has the conduct of the vessel but who does not belong to the vessel. pilotage has the same meaning as in the Marine Safety Act 1998, Part 6. pilotage port has the same meaning as in the Marine Safety Act 1998, Part 6. port includes any of following waters (or any part of those waters)— (a) any harbour or haven, whether natural or artificial, (b) any estuary, channel, river, creek or roadstead, (c) any navigable water in which vessels may lie for shelter or for the transfer of cargo or passengers. Port Authority of New South Wales means the Newcastle Port Corporation established under this Act. port charge means a charge imposed under Part 5. Port Corporation means the Newcastle Port Corporation established under section 6 (known as the Port Authority of New South Wales). port operator— (a) of a private port means the person declared to be the port operator of the private port by the Minister by order in writing, or (b) of any other port means the port corporation that manages and operates the port facilities and services of the port concerned. port operator direction—see section 37(1). port-related supply chain means land-based services and facilities provided or operated in connection with cargo transport, handling and storage operations (and the co-ordination of those operations) at a port or supply chain facility, or between a port and a supply chain facility. private port—means the ports of Botany Bay, Newcastle and Port Kembla. recreational vessel means a vessel other than a commercial vessel. regulated Australian vessel has the same meaning as in the Navigation Act 2012 of the Commonwealth. rights means all rights, powers, privileges and immunities (whether present or future or whether vested or contingent). safety direction—see section 43E(2). subsidiary, in relation to the Port Corporation, means a body corporate that would be a subsidiary (as determined by the Corporations Act 2001 of the Commonwealth) of the Port Corporation if the Port Corporation were a company. supply chain facility means a public-access facility provided for the storage, handling and distribution of cargo in connection with its transport to or from a port, including facilities for the storage and handling of empty cargo containers and facilities for the staging and exchange of cargo between different modes of transport (such as an intermodal terminal). Transport for NSW or TfNSW means Transport for NSW constituted under the Transport Administration Act 1988. vessel—see section 4. Note. The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes in the text of this Act do not form part of this Act. 4 Meaning of "vessel" (1) In this Act, vessel includes water craft of any description used or capable of being used as a means of transportation on water. (2) Without limiting the above, a vessel includes— (a) any non-displacement craft, and (b) a seaplane, but only while it is on water, and (c) anything used on water that is declared by the regulations to be a vessel. (3) However, a vessel does not include anything that is declared by the regulations not to be a vessel. 5 (Repealed) Part 2 Newcastle Port Corporation Division 1 Establishment of Port Corporation as statutory State owned corporation 6 Establishment of Newcastle Port Corporation as statutory SOC (1) There is constituted by this Act a corporation with the corporate name of the Newcastle Port Corporation (known as the Port Authority of New South Wales). (2) (Repealed) 7, 8 (Repealed) Division 2 Objectives and functions of Port Corporation 9 Objectives of Port Corporation The principal objectives of the Port Corporation are— (a) to be a successful business and, to this end— (i) to operate at least as efficiently as any comparable businesses, and (ii) to maximise the net worth of the State's investment in the Port Corporation, and (iii) to exhibit a sense of social responsibility by having regard to the interests of the community in which it operates and by endeavouring to accommodate these when able to do so, and (b) to promote and facilitate trade through its port facilities, and (c) to ensure that its port safety functions are carried out properly, and (d) to promote and facilitate a competitive commercial environment in port operations, and (e) to improve productivity and efficiency in its ports and the port-related supply chain. 10 Functions of Port Corporation (1) The Port Corporation has the functions conferred or imposed on it by or under this or any other Act or law. (2) The principal functions of the Port Corporation are— (a) to establish, manage and operate port facilities and services in its ports, and (b) to exercise the port safety functions for which it is licensed in accordance with its operating licence, and (c) to facilitate and co-ordinate improvements in the efficiency of the port-related supply chain. (3) The Port Corporation may— (a) provide facilities or services that are ancillary or incidental to its principal functions, and (b) conduct any business (whether or not related to its principal functions) that it considers will further its objectives. (4) This section does not limit the functions of the Port Corporation apart from this section, but is subject to the provisions of the State Owned Corporations Act 1989, the marine legislation and any other Act or law. 10AA Minister may approve additional Port Corporation activities (1) The Port Corporation may, with the written approval of the Minister, provide facilities or services or conduct businesses, other than those provided or conducted under section 10, that are complementary to the Port Corporation's— (a) principal objectives, or (b) principal functions. (2) The Minister may approve the provision of the facility or service, or the conduct of the business, by the Port Corporation only if the Minister is satisfied the provision of the facility or service, or the conduct of the business, by the Port Corporation is complementary to, and will not detract from, the Port Corporation's principal objectives or principal functions. (3) The Minister may give an approval subject to conditions the Minister considers appropriate. (4) The Minister may, at any time by written notice given to the Port Corporation, do any of the following— (a) impose conditions on an approval, (b) vary or remove a condition of an approval, (c) revoke an approval. (5) To avoid doubt, an approval under this section is required in addition to any other approval, licence, permit or other authority the Port Corporation must obtain or hold, whether under this Act or another Act or law, to provide the facility or service or conduct the business. 10A Ministerial directions to Port Corporation—competition and productivity (1) The Minister may, by written notice, give the Port Corporation directions in relation to the following— (a) the exercise of the Port Corporation's functions in connection with the Port Corporation's principal objectives under section 9(d) and (e), (b) the provision of a facility or service, or the conduct of a business, by the Port Corporation under an approval given by the Minister under section 10AA. (2) The Minister is to advise the voting shareholders of the Port Corporation of the giving and the terms of any such direction. (3) The Port Corporation is required to comply with a direction under this section. (4) If the Port Corporation considers that complying with any such direction may cause a significant variation in its approved financial outcomes, the Corporation must request the Minister to review the direction. (5) A request for a review must be made within 7 days after the direction is given or within such other reasonable period as the Minister determines. (6) If the Port Corporation requests such a review— (a) the Corporation may request the Minister to provide it with a written record of the direction if it was not given in writing, and (b) the Corporation is not to comply with the direction until notified of the Minister's decision following the review. (7) Following the review, the Minister may confirm or revoke the direction but the Minister is not to confirm the direction unless— (a) the Minister has estimated the variation in the approved financial outcomes from the information supplied by the Port Corporation, and (b) the Minister has referred the matter to the Treasurer, and (c) the Treasurer has approved the direction. (8) The Minister's power to give directions to the Port Corporation under this section is in addition to the power of the Minister to give directions under section 20N, 20O or 20P of the State Owned Corporations Act 1989. Those sections of that Act do not apply to a direction of the Minister if the direction states that it is being given under this section. 10B (Renumbered as sec 111) Division 3 Operating licence for port safety functions of Port Corporation 11 Meaning of "port safety functions" In this Division, port safety functions means any or all of the following functions of the Minister— (a) the function of providing or arranging for the provision of safety services in respect of ports (such as the installation and maintenance of navigation aids, vessel traffic control, pilotage services, the dredging and maintenance of navigation channels and hydrographic services), (b) the function of providing or arranging for the provision of emergency environment protection services for dealing with pollution incidents in relevant waters, (c) the function of carrying out investigations into marine accidents or incidents, (d) any other function determined by the Minister and specified in an operating licence under this Division. 12 Exercise of port safety functions under operating licence (1) The port safety functions exercisable by the Port Corporation are to be determined by the Minister. (2) Any such port safety functions may only be exercised by the Port Corporation in accordance with an operating licence issued to the Port Corporation by the Minister. (3) While the Port Corporation holds an operating licence, the Port Corporation must exercise the port safety functions to which it applies and must do so in accordance with the licence, the marine legislation and any other relevant Act or law. (4) This Division does not limit the functions that may be delegated to the Port Corporation under this Act. This Division also does not limit the exercise of port safety functions by the Minister or their delegation under the marine legislation to others. 13 Performance standards and quality assurance programs for services under operating licence (1) An operating licence is to set out performance standards, and provide for quality assurance programs, for services to be provided by the Port Corporation in exercising port safety functions under the licence. (2) The Minister may vary an operating licence by omitting a port safety function from the licence if satisfied that the Port Corporation has failed to perform the service concerned to the standard required under the licence. 14 Fee for operating licence and other financial provisions (1) An operating licence is to make provision for the payment to the Minister by the Port Corporation of a periodic licence fee. (2) An operating licence may make provision for the fixing and collection by, and payment to, the Port Corporation of navigation service charges in accordance with Part 5. The licence may provide for the remittance of any part of the amount collected to the Minister. 15 Other provisions relating to operating licence (1) An operating licence may impose conditions and restrictions on the exercise of port safety functions under the licence. (2) The initial term of an operating licence is to be for a maximum of 5 years, as determined by the Minister. After the initial term, the Minister may renew an operating licence for a maximum of 5 years at a time (even if its term has expired). (3) An operating licence may be varied by the Minister during its term by notice served on the Port Corporation. (4) The Minister may cancel an operating licence for a contravention of the licence or in any other circumstances authorised by the licence. Division 4 Transfer of assets, rights and liabilities 16 (Repealed) 17 Port safety assets, rights and liabilities (1) The Minister may direct, by order in writing, that such port safety assets, rights and liabilities of the Port Corporation, as are specified or referred to in the order, be transferred to Transport for NSW or to any other person on behalf of the State. (2) The port safety assets, rights and liabilities are those designated as such when transferred to the Port Corporation by order of the Minister under this Act or any other assets, rights and liabilities that relate to the port safety functions of the Port Corporation and are designated as such in the most recent statement of corporate intent of the Port Corporation. (3) An order under this section may be made on such terms and conditions as are specified or referred to in the order. (4) Schedule 1 applies to an order under this section. Division 5 Miscellaneous 18 (Repealed) 19 Restriction on sale or disposal of transferred land For the purposes of section 20Y of the State Owned Corporations Act 1989, the main undertaking of the Port Corporation includes land transferred to the Port Corporation by order under this Part. Note. Section 20Y of that Act prohibits the sale or disposal of any of the main undertakings of a statutory SOC (as described in its statement of corporate intent) without the prior written approval of the voting shareholders. 20 Foundation charter of Port Corporation for purposes of SOC Act For the purposes of the State Owned Corporations Act 1989, the foundation charter of the Port Corporation is this Part of this Act (but not the remainder of this Act). Note. Section 3 of that Act defines the foundation charter of a statutory SOC as the whole of the Act by which a SOC is established for the purposes of the SOC Act, in particular for the purpose of provisions relating to the legal capacity of statutory SOCs and assumptions that they have complied with that Act and their foundation charter. 21 Consultation with Minister on appointment of directors of Port Corporation and on statement of corporate intent (1) The voting shareholders of the Port Corporation are to consult the Minister about any proposed recommendation of the voting shareholders to appoint directors of the Port Corporation under section 20J of the State Owned Corporations Act 1989. (2) The voting shareholders of the Port Corporation are also to consult the Minister about any proposed action of the voting shareholders concerning the preparation, completion or modification of the statement of corporate intent of the Port Corporation under section 21 of that Act. 21A Payment of penalties to Port Corporation (1) All penalties for offences against the marine legislation recovered in prosecutions brought by, or under penalty notices issued by, the Port Corporation or members of staff of the Port Corporation are payable to the Port Corporation. (2) Penalties paid to the Port Corporation under this section become the property of the Port Corporation. 22 Interpretation of this Part Words and expressions used in this Part and also in the State Owned Corporations Act 1989 have the same meanings in this Part as they have in that Act. Part 3 Marine safety and other functions of Minister 23 Functions under marine legislation The Minister has such functions as are conferred or imposed on the Minister by or under the marine legislation. 24 Minister's marine safety and amenity functions generally (1) The Minister has general responsibility for marine safety and amenity, including— (a) the safe operation of recreational and commercial vessels, and (b) the safety of navigation in ports and other navigable waters, and (c) the protection of the environment in connection with the use of vessels in State waters, and (d) the maintenance and improvement of the amenity of navigable waters. (2) In this section— State waters has the same meaning as in the Marine Pollution Act 2012. 25 Minister's particular marine safety and amenity functions (1) Without limiting the functions of the Minister under section 24, the Minister has the following particular marine safety and amenity functions— (a) to provide and maintain marine safety infrastructure and services, (b) to provide and maintain other infrastructure and services— (i) for use by vessels and maritime-related industries, or (ii) that otherwise contribute to the amenity of navigable waters, (c) to investigate marine accidents and incidents, (d) to provide and maintain emergency environment protection services for dealing with pollution incidents in State waters. (2) The following are examples of the infrastructure and services that may be provided under this section— (a) the installation and maintenance of navigation aids, (b) vessel traffic control within ports, (c) pilotage services within ports, (d) the dredging and maintenance of navigation channels, (e) the removal of debris from Sydney Harbour and other waterways, (f) the maintenance of waterways infrastructure, including river entrance management infrastructure, river training walls and vessel maintenance facilities, (g) hydrographic services, (h) moorings for vessels, (i) wharves, piers, jetties and boat ramps, (j) waste pump-out facilities for vessels, (k) firefighting and rescue services relating to vessels and navigable waters. (3) The exercise of a function under this section is subject to applicable provisions of the marine legislation and other legislation. (4) In this section— State waters has the same meaning as in the Marine Pollution Act 2012. 26 Management of trading ports not managed by Port Corporation (1) The Minister has the function of managing, or arranging for the management of, the commercial port facilities of the State that are not managed by the Port Corporation. (2) Those commercial port facilities comprise the port facilities that are vested in Transport for NSW. They also comprise any port facilities that are vested in another State authority and that the Minister has undertaken to manage with the agreement of that other State authority. (3) The Minister may establish committees to advise it on the management of those facilities. (4) The Minister may, by order in writing, direct that such assets, rights and liabilities of any commercial port facilities managed by the Minister under this section as are specified or referred to in the order be transferred to the Port Corporation so specified. Schedule 1 applies to such an order. (5) Assets, rights or liabilities may not be transferred under this section to the Port Corporation unless the Port Corporation is a statutory State owned corporation. (6) Section 20C of the State Owned Corporations Act 1989 does not apply to the transfer of assets, rights or liabilities under this section. 26A Minister may enter into contract for provision of pilotage services not provided by Port Corporation (1) The Minister may enter into a contract with a person (a contractor) for the provision by that person of pilotage services at any port. Contracts may be entered into with different persons for the provision of pilotage services at different ports. (2) This section does not apply to pilotage services that are provided by the Port Corporation under an operating licence (whether directly or by way of a subsidiary). (3) The Minister is required to call public tenders for a contract under this section. (4) A contract under this section must include such provisions as the Minister thinks necessary or desirable to be included for ensuring compliance with the marine legislation or the National law and the provision of the pilotage services required in the port concerned. (5) Without limiting subsection (1), such a contract is to— (a) specify the level of pilotage services to be provided under the contract, and (b) set out performance standards, and quality assurance programs, for pilotage services to be provided under the contract, and (c) provide for the fixing and collection by, and payment to, the contractor of pilotage charges in accordance with Part 5, and (d) specify the amount of consideration to be paid to the Minister by the contractor under the contract (such an amount may be calculated on the basis of a proportion of the pilotage charges payable to the contractor for the provision of pilotage services), and (e) require the contractor to keep records of the pilotage services provided by the contractor and the amounts charged and paid in respect of those services, and (f) empower the Minister and any person authorised by the Minister to inspect those records, and (g) require the contractor to provide information, as and when the Minister requires, as to the costs incurred by the contractor in providing pilotage services at a port concerned, and (h) empower the Minister to terminate or suspend the contract on the ground that the contractor is unable to provide pilotage services at the level referred to in paragraph (a) or has contravened the marine legislation or the National law, or on any other specified ground. 27 Delegation of functions by Minister (1) The Minister may delegate to an authorised person any of the following functions, other than this power of delegation— (a) any function of the Minister under the marine legislation, (b) any function conferred by or under any Act on the Minister in his or her capacity as the Minister administering this Act. (2) A delegate may sub-delegate to an authorised person any function delegated by the Minister if the delegate is authorised in writing to do so by the Minister. (3) In this section, authorised person means— (a) Transport for NSW or a member of the staff (or a person seconded to the staff) of Transport for NSW, or (b) the Port Corporation or a member of the staff (or a person seconded to the staff) of the Port Corporation, or (c) a harbour master or acting harbour master, or (d) a Public Service employee, or (e) any person of a class prescribed by the regulations. 28 Minister may contract for supply of services (1) The Minister may enter into contracts for the supply of services required to be provided by the Minister in the exercise of the functions of the Minister referred to in this Division. (2) This section does not affect any other power of the Minister to enter into a contract for the supply of services. 29–32 (Repealed) 33 Acquisition of land by Minister (1) The Minister may, for the purposes of the marine legislation, acquire land (including an interest in land) by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991. (2) Without limiting subsection (1), land may be so acquired for the purposes of the Minister under the marine legislation, Transport for NSW or the Port Corporation. (2A) Land so acquired for the purposes of Transport for NSW may be transferred to Transport for NSW, but only if Transport for NSW makes provision to the satisfaction of the Minister for the payment of the purchase price or of compensation for compulsory acquisition (together with all necessary charges and expenses incidental to the acquisition). (3) Land so acquired for the purposes of the Port Corporation may be transferred to the Port Corporation or a subsidiary of the Port Corporation, but only if the Port Corporation or subsidiary makes provision to the satisfaction of the Minister for the payment of the purchase price or of compensation for compulsory acquisition (together with all necessary charges and expenses incidental to the acquisition). (4) For the purposes of the Public Works Act 1912, any such acquisition of land is taken to be for an authorised work and the Minister is, in relation to that authorised work, taken to be the Constructing Authority. (5) Sections 34, 35, 36 and 37 of the Public Works Act 1912 do not apply in respect of works constructed under this Act. 34 Maritime Advisory Council (1) The Minister may, subject to and in accordance with the regulations, establish a Maritime Advisory Council. (2) The members of the Maritime Advisory Council are to be appointed by the Minister in accordance with the regulations, and must include— (a) a union representative for port workers, and (b) a union representative for crew of vessels operating in NSW ports. (3) The regulations may make provision for or with respect to the membership and procedure of the Maritime Advisory Council. (4) The Maritime Advisory Council has the following functions— (a) to advise the Minister on any matter that is referred to it by the Minister in connection with the operation of the marine legislation or the National law, (b) to advise, and make recommendations to, the Minister on the following— (i) maritime safety, (ii) expenditure priorities for the exercise of TfNSW's functions in connection with maritime infrastructure, maritime property and maritime research. Part 3A Private ports Division 1 Preliminary 35 Application This Part applies only to and in respect of a private port. 36 Definition In this Part— port operator directions means port operator directions given under Division 2. Division 2 Regulation of activities—port operator directions 37 Directions to maintain or improve safety and security (1) The port operator of a private port may, for the purpose of maintaining or improving safety and security at the port, give directions under this section (port operator directions) that regulate any of the following activities in the landside port precinct at the port— (a) the driving, stopping and parking of vehicles, (b) the movement, handling or storage of goods, (c) any activity that may pose a r