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This is a Bill, not an Act. For current law, see the Acts databases.
Ports Assets (Authorised
Transactions) Bill 2012
No , 2012
A Bill for
An Act to provide for the restructuring of arrangements for the operation and
regulation of certain ports assets of the State; and for other purposes.
Clause 1 Ports Assets (Authorised Transactions) Bill 2012
Part 1 Preliminary
The Legislature of New South Wales enacts: 1
Part 1 Preliminary 2
1 Name of Act 3
This Act is the Ports Assets (Authorised Transactions) Act 2012. 4
2 Commencement 5
This Act commences on the date of assent to this Act. 6
3 Interpretation--key definitions 7
Note. Schedule 1 contains other interpretative provisions. 8
In this Act: 9
associated port land means land (including an interest in land) at 10
Botany Bay or Port Kembla that is vested in any of the following public 11
sector agencies and designated by the Treasurer by order in writing as 12
associated port land for the purposes of this Act: 13
(a) Roads and Maritime Services, 14
(b) State Property Authority, 15
(c) any other public sector agency prescribed by the regulations for 16
the purposes of this definition. 17
authorised transaction means a transfer of ports assets authorised by 18
Part 2. 19
Port Botany land means land at Botany Bay that is ports assets. 20
Port Kembla land means land at Port Kembla that is ports assets. 21
port SOC means the Port Kembla Port Corporation or the Sydney Ports 22
Corporation. 23
ports assets means: 24
(a) the assets, rights and liabilities of a port SOC, and 25
(b) associated port land. 26
retained assets means ports assets that relate only to port operations in 27
Sydney Harbour, the port of Yamba or the port of Eden (and not to port 28
operations in any other port). 29
Note. For example, ports assets that relate to port operations in both Sydney 30
Harbour and Botany Bay are not retained assets. 31
Page 2
Ports Assets (Authorised Transactions) Bill 2012 Clause 4
Authorised transactions Part 2
Part 2 Authorised transactions 1
4 Authorised transfer of ports assets 2
(1) This Act authorises the transfer of ports assets to the private sector or to 3
any public sector agency, subject to the following limitations: 4
(a) Port Botany land, Port Kembla land and associated port land can 5
be leased to the private sector but the ownership of the freehold 6
title to that land must remain with a public sector agency, 7
(b) any lease of Port Botany land, Port Kembla land or associated 8
port land must not have a term that, together with the term of any 9
further lease that may be granted under an option in respect of it, 10
exceeds 99 years, 11
(c) this Act does not authorise the transfer of retained assets to the 12
private sector. 13
(2) No compensation is payable in connection with the transfer under this 14
Act of ports assets to a public sector agency (but this does not prevent 15
such a transfer being for consideration). 16
5 Proceeds of transaction 17
(1) The proceeds of the transfer of ports assets to the private sector pursuant 18
to an authorised transaction (the transaction proceeds) belong to and 19
are payable directly to the State. 20
(2) The transaction proceeds include any payment to a public sector agency 21
that is a periodic lease payment under a lease of ports assets to the 22
private sector pursuant to an authorised transaction. 23
(3) The transaction proceeds paid to the State are to be paid into the Restart 24
NSW Fund (the Fund) established under the Restart NSW Fund Act 25
2011. 26
(4) The following deductions are authorised to be made from the 27
transaction proceeds: 28
(a) deduction of such amounts as the Treasurer approves to repay 29
debt and satisfy other liabilities of a public sector agency in 30
respect of ports assets transferred for the purposes of an 31
authorised transaction, 32
(b) deduction of such amounts as the Treasurer approves to 33
reimburse public sector agencies for payments made by them in 34
respect of any tax, duty, fee or charge imposed by any Act or law 35
of the State or any other jurisdiction in connection with a 36
transaction arrangement, 37
Page 3
Clause 5 Ports Assets (Authorised Transactions) Bill 2012
Part 2 Authorised transactions
(c) deduction of such amounts as the Treasurer approves to satisfy 1
any liability of a public sector agency arising under or in 2
connection with a transaction arrangement, 3
(d) deduction of such amounts as the Treasurer approves to meet 4
expenses reasonably incurred by public sector agencies for the 5
purposes of an authorised transaction. 6
(5) The transaction proceeds do not include any amount certified by the 7
Treasurer to have been paid to a public sector agency as a tax, duty, fee 8
or charge imposed by any Act or law of the State in connection with a 9
transaction arrangement. 10
(6) The deductions authorised to be made from the transaction proceeds 11
may be made before payment of the transaction proceeds into the Fund 12
or may be made by payment from the Fund. 13
(7) The requirements of this section do not affect the validity of a 14
transaction arrangement. 15
Page 4
Ports Assets (Authorised Transactions) Bill 2012 Clause 6
Facilitating authorised transactions Part 3
Part 3 Facilitating authorised transactions 1
6 Treasurer's functions 2
The Treasurer has and may exercise all such functions as are necessary 3
or convenient for the purposes of an authorised transaction. The 4
functions conferred on the Treasurer by any other provision of this Act 5
do not limit the Treasurer's functions under this section. 6
7 Manner of effecting authorised transaction 7
(1) An authorised transaction is to be effected as directed by the Treasurer 8
and can be effected in any manner considered appropriate by the 9
Treasurer. 10
(2) There are no limitations as to the nature of the transactions or 11
arrangements that can be entered into or used for the purposes of an 12
authorised transaction. 13
Note. For example, an ownership structure involving a unit trust could be used 14
for the purposes of an authorised transaction. 15
(3) The provisions of this Act for the establishment of various kinds of 16
transaction entity do not limit the nature of the legal entities or 17
arrangements that can be used for the purposes of an authorised 18
transaction. 19
8 Transaction SOCs 20
(1) A statutory State owned corporation may be established under this Act 21
as a transaction SOC for the purposes of an authorised transaction. 22
(2) The Governor may by order published in the Gazette: 23
(a) create a corporation under a corporate name specified in the 24
order, and 25
(b) specify the functions of the corporation, and 26
(c) direct that the corporation is established as a statutory State 27
owned corporation and as a transaction SOC. 28
(3) On the day on which the order takes effect: 29
(a) a corporation is constituted with the corporate name and 30
functions specified in the order, and 31
(b) the State Owned Corporations Act 1989 is amended by inserting 32
in Schedule 5 the corporate name specified in the order (to 33
establish the corporation as a statutory State owned corporation 34
under that Act), and 35
(c) the State owned corporation thereby established is a transaction 36
SOC for the purposes of this Act. 37
Page 5
Clause 9 Ports Assets (Authorised Transactions) Bill 2012
Part 3 Facilitating authorised transactions
(4) The portfolio Minister of a SOC established under this section is the 1
Minister administering the Ports and Maritime Administration Act 2
1995. 3
(5) Schedule 2 has effect with respect to a transaction SOC. The provisions 4
of that Schedule are in addition to and (except to the extent to which that 5
Schedule otherwise provides) do not derogate from the provisions of the 6
State Owned Corporations Act 1989. 7
9 Transaction companies 8
(1) The Treasurer may for the purposes of an authorised transaction 9
establish, or direct the establishment of, companies as transaction 10
companies in any of the following ways: 11
(a) the formation or acquisition by or on behalf of the State or a SOC 12
of a company limited by shares, so that all the issued shares in the 13
company are held by or on behalf of the State or a SOC (or both), 14
(b) the formation or acquisition of a company as a wholly owned 15
subsidiary company of a transaction company, 16
(c) the conversion of a port SOC or transaction SOC into a company 17
limited by shares as provided by Schedule 3. 18
(2) A transaction company that is a public sector agency may be converted 19
from one kind of company to any other kind of company. 20
(3) Except by express agreement with the Treasurer: 21
(a) a transaction company is not and does not represent the State, and 22
(b) the debts, liabilities and obligations of a transaction company are 23
not guaranteed by the State. 24
(4) The Treasurer may act for or on behalf of the State, a SOC or a 25
transaction company that is a public sector agency in connection with 26
the rights, privileges and benefits, and the duties, liabilities and 27
obligations, of the State, a SOC or a transaction company as the holder 28
of shares or other securities in or issued by a transaction company. 29
(5) Shares and other securities in or issued by a transaction company that is 30
a public sector agency may be issued, sold or transferred in accordance 31
with the directions of the Treasurer. The Treasurer may on behalf of the 32
State, a SOC or a transaction company that is a public sector agency, 33
enter into and carry out transaction arrangements for the issue, sale or 34
transfer of shares and other securities in or issued by a transaction 35
company. 36
(6) If a port SOC becomes a transaction company by being converted into 37
a company under this section, a reference in this Act to the port SOC 38
includes a reference to that transaction company. 39
Page 6
Ports Assets (Authorised Transactions) Bill 2012 Clause 10
Facilitating authorised transactions Part 3
10 Additional functions of port SOCs and transaction entities 1
(1) Each port SOC and transaction entity has and may exercise all such 2
functions as are necessary or convenient for the purposes of an 3
authorised transaction. 4
(2) The functions conferred by this section are in addition to any other 5
functions that a port SOC or a transaction entity has apart from this 6
section and those other functions do not prevent or otherwise limit the 7
exercise of the additional functions conferred by this section. 8
(3) The Treasurer may act for or on behalf of a port SOC or a transaction 9
entity in the exercise of any of its functions for the purposes of an 10
authorised transaction while it is a public sector agency. 11
11 Direction and control of port SOCs and transaction entities 12
(1) Each port SOC and transaction entity is subject to the direction and 13
control of the Treasurer in the exercise of any of its functions for the 14
purposes of an authorised transaction while it is a public sector agency. 15
(2) The Treasurer may give directions for the purposes of an authorised 16
transaction to a port SOC or transaction entity, and to the directors and 17
other officers of a port SOC or transaction entity. Any such directions 18
must be complied with by the port SOC, the transaction entity or the 19
directors or other officers concerned. 20
(3) Directions to a transaction entity (or its directors and other officers) can 21
only be given and are only required to be complied with while the 22
transaction entity is a public sector agency. 23
(4) The power to give directions under this section extends to directions 24
with respect to the way in which a port SOC or transaction entity is to 25
conduct its business and other affairs. 26
(5) Action taken by a port SOC or transaction SOC to comply with a 27
direction of the Treasurer under this Act does not require the approval 28
of the voting shareholders or portfolio Minister of the corporation. 29
(6) Anything done or omitted to be done by a director or other officer of a 30
port SOC or transaction entity in complying with a direction given by 31
the Treasurer under this Act does not subject the director or officer 32
personally to any action, liability, claim or demand. 33
(7) The provisions of this section are declared to be Corporations 34
legislation displacement provisions for the purposes of section 5G of the 35
Corporations Act in relation to the provisions of the Corporations 36
legislation generally. 37
Page 7
Clause 12 Ports Assets (Authorised Transactions) Bill 2012
Part 3 Facilitating authorised transactions
12 Exercise of port SOC functions through subsidiaries 1
(1) If ports assets are transferred to a subsidiary of a port SOC for the 2
purposes of an authorised transaction, the functions of the port SOC in 3
respect of those ports assets become either retained functions or shared 4
functions, as follows: 5
(a) retained functions are all functions of the port SOC except those 6
that are shared functions, 7
(b) shared functions are the functions of the port SOC under Part 5 8
(Port charges) of the Ports and Maritime Administration Act 9
1995 but only in respect of charges of a kind that can be fixed 10
under that Part by the port operator of a private port. 11
(2) In the case of retained functions: 12
(a) the port SOC continues to have and may exercise retained 13
functions as if the ports assets had remained vested in the port 14
SOC, and 15
(b) the subsidiary is authorised to exercise retained functions on 16
behalf of the port SOC (with the exception of any function or 17
class of functions that is reserved to the port SOC by a direction 18
of the port SOC to the subsidiary), and 19
(c) the subsidiary is subject to the direction and control of the port 20
SOC in the exercise of retained functions on behalf of the port 21
SOC, and 22
(d) any retained functions exercised by the subsidiary under this 23
section are deemed to have been exercised by the port SOC. 24
(3) In the case of shared functions: 25
(a) both the port SOC and the subsidiary have and may exercise 26
shared functions, and 27
(b) the subsidiary has and may exercise shared functions as if the 28
subsidiary were the port SOC, and 29
(c) Part 6 (Price monitoring scheme) of the Ports and Maritime 30
Administration Act 1995 applies to the subsidiary in respect of 31
port charges charged by the subsidiary in the exercise of shared 32
functions as if it were the port operator, and 33
(d) the subsidiary exercises shared functions on its own account, and 34
(e) any charges collected by the subsidiary in the exercise of shared 35
functions are for its own use and benefit. 36
(4) The regulations may prescribe additional functions of a port SOC as 37
shared functions for the purposes of this section. 38
Page 8
Ports Assets (Authorised Transactions) Bill 2012 Clause 13
Facilitating authorised transactions Part 3
(5) This section operates only while the subsidiary in which ports assets are 1
vested is a public sector agency. 2
13 Establishment of Ports Assets Ministerial Holding Corporation 3
(1) There is constituted by this Act a corporation with the corporate name 4
of the Ports Assets Ministerial Holding Corporation. 5
(2) The Corporation is a statutory body representing the Crown. 6
(3) The affairs of the Corporation are to be managed by the Treasurer who 7
may authorise another Minister to exercise functions in relation to 8
particular assets, rights and liabilities. 9
(4) Any act, matter or thing done in the name of, or on behalf of, the 10
Corporation by the Treasurer or a Minister authorised by the Treasurer, 11
or with the authority of the Treasurer or any such Minister, is taken to 12
have been done by the Corporation. 13
(5) The Corporation has the functions conferred or imposed on it by or 14
under this or any other Act. 15
(6) The functions of the Corporation are: 16
(a) to hold, on behalf of the Crown, ports assets acquired by it or 17
transferred to it, and 18
(b) to carry on any activities or business that relate to any ports assets 19
held by it, including demanding, collecting and receiving 20
charges, levies, rates and fees, and 21
(c) such other functions for the purposes of an authorised transaction 22
as may be prescribed by the regulations. 23
Page 9
Clause 14 Ports Assets (Authorised Transactions) Bill 2012
Part 4 Arrangements for transfer of staff
Part 4 Arrangements for transfer of staff 1
14 Transfers within public sector 2
(1) The Treasurer may, for the purposes of an authorised transaction, by 3
order in writing transfer the employment of an employee of a port SOC 4
(a transferred employee) to the employment of another public sector 5
agency. 6
(2) A transferred employee is (until other provision is duly made under any 7
Act or law) to be employed in accordance with any relevant statutory 8
provisions, awards, agreements and determinations that would have 9
applied to the employee had the employee remained an employee of the 10
port SOC concerned. 11
(3) The Treasurer may negotiate and enter into agreements or industrial 12
instruments concerning workplace relations for or on behalf of a public 13
sector agency in connection with the operation of this section. 14
15 Temporary transfers (secondments) 15
(1) The Treasurer may, for the purposes of an authorised transaction, by 16
order in writing temporarily transfer an employee of a port SOC to the 17
service of another public sector agency or to the service of an employer 18
in the private sector. 19
(2) A person may be temporarily transferred under this section at the 20
person's existing level of remuneration or at a higher level of 21
remuneration. 22
(3) A person who is temporarily transferred under this section remains an 23
employee of the port SOC concerned (unless and until the person's 24
employment is transferred under another provision of this Part). 25
16 Transfers to private sector employment 26
(1) The Treasurer may, for the purposes of an authorised transaction, by 27
order in writing transfer the employment of an employee of a port SOC 28
or transaction entity (a transferred employee) to the employment of an 29
employer in the private sector (the new employer). 30
(2) The transfer of the employment of an employee under this section 31
requires the consent of the employee unless the employee is a contract 32
employee (in which case the employee's employment can be transferred 33
with or without the employee's consent). 34
(3) The employment of a transferred employee with the new employer is to 35
be on the same terms and conditions as applied to the employee as an 36
employee of the relevant port SOC or transaction entity immediately 37
before the transfer date. 38
Page 10
Ports Assets (Authorised Transactions) Bill 2012 Clause 16
Arrangements for transfer of staff Part 4
(4) Those terms and conditions cannot be varied during any employment 1
guarantee period for the transferred employee except by agreement 2
entered into by or on behalf of the transferred employee. 3
(5) The employment of a transferred employee with the new employer 4
cannot be terminated by the new employer during any employment 5
guarantee period for the transferred employee, except: 6
(a) for serious misconduct, or 7
(b) pursuant to the proper application of reasonable disciplinary 8
procedures, or 9
(c) by agreement with the employee. 10
(6) There is an employment guarantee period for transferred employees 11
who are permanent or temporary employees, as follows: 12
(a) for permanent employees the employment guarantee period is 13
2 years after the transfer date, 14
(b) for temporary employees the employment guarantee period is the 15
remainder of the employee's current term of employment (as 16
specified in the arrangements under which the employee was 17
engaged as a temporary employee) immediately before the 18
transfer date or the period of 2 years after the transfer date, 19
whichever period ends first. 20
Note. There is no employment guarantee period for contract employees or 21
casual employees. The employment of a transferred employee who is a 22
contract employee remains governed by the contract of employment. 23
(7) In this section: 24
casual employee means an employee whose employment is in a 25
category of employment that is described in or classified under a 26
relevant award as casual employment or who is otherwise engaged as a 27
casual employee. 28
contract employee means an employee whose terms and conditions of 29
employment are provided by an individual contract and not by a 30
relevant award. 31
permanent employee means an employee whose employment is of 32
indefinite duration and who is not a casual employee, temporary 33
employee or contract employee. 34
relevant award means any award, agreement or other industrial 35
instrument (under a law of the State or the Commonwealth) that 36
provides for the terms and conditions of employment of employees. 37
temporary employee means an employee (other than a casual employee 38
or contract employee) whose employment is in a category of 39
employment that is described in or classified under a relevant award as 40
Page 11
Clause 17 Ports Assets (Authorised Transactions) Bill 2012
Part 4 Arrangements for transfer of staff
temporary employment or whose employment is, under the terms of his 1
or her employment, for a limited period. 2
transfer date means the date on which the employment of a transferred 3
employee is transferred under this section to the new employer. 4
17 Continuity of entitlements of transferred employees 5
(1) On the transfer by order under this Part of an employee's employment 6
from one employer (the current employer) to another employer (the 7
new employer) the following provisions have effect: 8
(a) the employee is entitled to continue as a contributor, member or 9
employee for the purposes of any superannuation scheme in 10
respect of which he or she was a contributor, member or 11
employee (as an employee of the current employer) immediately 12
before the transfer of employment and remains so entitled subject 13
to any variation to that entitlement made either by agreement or 14
otherwise in accordance with law, 15
(b) the new employer is taken to be an employer for the purposes of 16
any superannuation scheme in respect of which the employee 17
continues as a contributor, member or employee pursuant to an 18
entitlement under this section, 19
(c) the continuity of the employee's contract of employment is taken 20
not to have been broken by the transfer of employment, and 21
service of the employee with the current employer (including 22
service deemed to be service with the current employer) that is 23
continuous service up to the time of transfer is taken for all 24
purposes to be service with the new employer, 25
(d) the employee retains any rights to sick leave, annual leave or long 26
service leave accrued or accruing immediately before the transfer 27
(except accrued leave for which the employee has, on ceasing to 28
be an employee of the current employer, been paid the monetary 29
value in pursuance of any other entitlement of the employee). 30
(2) Nothing in the Long Service Leave Act 1955 prevents payment in 31
connection with the transfer under this Part of the employment of an 32
employee of a port SOC to the employment of an employer in the 33
private sector of the monetary value of long service leave in lieu of an 34
entitlement to that leave accrued as an employee of a port SOC before 35
the transfer of the employee's employment. 36
18 Payments to employees leaving public sector employment 37
(1) The Treasurer or another public sector agency may enter into 38
agreements or other arrangements with respect to the making of transfer 39
payments to employees of a port SOC in connection with the transfer of 40
employment of those employees to employment in the private sector as 41
Page 12
Ports Assets (Authorised Transactions) Bill 2012 Clause 18
Arrangements for transfer of staff Part 4
a result of a transaction arrangement or as a result of an order under this 1
Part. 2
(2) A transfer payment is not to exceed an amount equivalent to 30 weeks 3
of pay at the rate of an employee's base salary (that is, salary less any 4
allowances). 5
(3) Without affecting any entitlement to a transfer payment under this 6
section, an employee of a port SOC is not entitled to receive any 7
payment or other benefit (including in the nature of severance pay or 8
redundancy compensation) merely because the employee ceased to be 9
an employee of a public sector agency as a result of a transaction 10
arrangement or as a result of an order under this Part. 11
Page 13
Clause 19 Ports Assets (Authorised Transactions) Bill 2012
Part 5 Arrangements for transfer of assets and functions
Part 5 Arrangements for transfer of assets and 1
functions 2
19 Vesting orders 3
The Treasurer may make vesting orders under Schedule 4 for the 4
purposes of an authorised transaction. 5
20 Severance of fixtures 6
(1) The Treasurer may by order in writing for the purposes of an authorised 7
transaction direct that specified fixtures to which this section applies are 8
severed from the land on which they are situated. 9
(2) The effect of such an order is that the fixtures concerned are deemed to 10
be severed from the land on which they are situated and may be dealt 11
with as personal property separate from the land for the purposes of an 12
authorised transaction. 13
(3) This section applies to the following fixtures: 14
(a) rail infrastructure facilities owned by a port SOC and situated on 15
land owned by a port SOC or another public sector agency, 16
(b) other fixtures designated by the Treasurer by order in writing to 17
be fixtures to which this section applies that are owned by a port 18
SOC and situated on land owned by a port SOC or another public 19
sector agency. 20
(4) The severance of a fixture from land under this section does not affect 21
the right of the fixture to be situated on that land and does not affect any 22
right to drain water or sewage from the fixture across and through the 23
land or to use any means of drainage of water or sewage from the fixture 24
across and through the land. 25
(5) In this section, rail infrastructure facilities includes railway track, 26
associated track structures, over track structures, cuttings, drainage 27
works, track support earthworks and fences, tunnels, bridges, level 28
crossings, service roads, signalling systems, train control systems, 29
communication systems, overhead power supply systems, power and 30
communication cables, and associated works, buildings, plant, 31
machinery and equipment. 32
21 Grant of relevant authorisations 33
(1) The Treasurer may give directions to a public sector agency for or with 34
respect to the grant of any relevant authorisation to a person who 35
becomes or who it is proposed will become the new operator of any 36
ports assets pursuant to an authorised transaction, including directions 37
for or with respect to any of the following: 38
Page 14
Ports Assets (Authorised Transactions) Bill 2012 Clause 21
Arrangements for transfer of assets and functions Part 5
(a) requiring the grant of any such relevant authorisation without the 1
necessity for the making or determination of any application, 2
(b) the displacement or modification of any provision of a relevant 3
law in its application to the grant of any such relevant 4
authorisation, 5
(c) the conditions or endorsements subject to which any such 6
relevant authorisation is to be granted or that are to be attached to 7
any such relevant authorisation. 8
(2) A direction may only be given under this section for the grant of a 9
relevant authorisation that: 10
(a) operates to transfer or replace an existing relevant authorisation 11
that is currently in force, and 12
(b) is subject to terms, conditions or endorsements that are the same 13
(or to substantially the same effect) as those to which that existing 14
relevant authorisation is subject. 15
(3) The Treasurer must consult with a public sector agency before giving a 16
direction to the public sector agency under this section. 17
(4) A public sector agency exercising functions under a relevant law must 18
comply with a direction of the Treasurer under this section. 19
(5) Anything done by a port SOC in compliance with a condition or 20
endorsement of a relevant authorisation in relation to ports assets of 21
which a person is the new operator is taken to have been done by the 22
new operator for the purposes of any corresponding condition or 23
endorsement of a relevant authorisation granted to the new operator 24
pursuant to a direction under this section. 25
(6) A relevant authorisation granted to a port SOC or to the new operator of 26
ports assets may not be suspended or cancelled on the ground of the 27
conversion of the port SOC or new operator to a company or on the 28
ground of any change that has occurred in the officers or shareholders 29
of the company as a result of that conversion or pursuant to a transaction 30
arrangement. 31
(7) In this section: 32
grant includes issue and transfer. 33
new operator of ports assets means: 34
(a) a public sector agency to which any ports assets are transferred 35
for the purposes of an authorised transaction, or 36
(b) a person (or the nominee of a person) in whom ports assets are 37
vested, or to whom ports assets are transferred, pursuant to an 38
authorised transaction. 39
Page 15
Clause 22 Ports Assets (Authorised Transactions) Bill 2012
Part 5 Arrangements for transfer of assets and functions
relevant authorisation means a licence, permit, consent, entitlement, 1
accreditation, exemption or other authorisation under a relevant law. 2
relevant law means any of the following Acts and any regulations or 3
instruments under those Acts: 4
Explosives Act 2003 5
Fisheries Management Act 1994 6
State Emergency and Rescue Management Act 1989 7
Water Management Act 2000 8
Work Health and Safety Act 2011 9
22 Acquisition of land by Ports Assets Ministerial Holding Corporation 10
(1) The Ports Assets Ministerial Holding Corporation may, for the purposes 11
of an authorised transaction, acquire land (including an interest in land) 12
by agreement or by compulsory process in accordance with the Land 13
Acquisition (Just Terms Compensation) Act 1991 that the Corporation 14
determines to be: 15
(a) land on which ports assets of a port SOC were situated on the date 16
of assent to this Act and continue to be situated, or 17
(b) land that on the date of assent to this Act was used or occupied by 18
a port SOC for or in connection with the exercise of any function 19
of the port SOC and that continues to be so used or occupied. 20
(2) In the case of land used (but not occupied) by a port SOC for or in 21
connection with the exercise of any function of the port SOC, such as 22
land used for the purposes of access, the power conferred by this section 23
to acquire the land is limited to a power to acquire an interest in the land 24
sufficient to allow that use of the land to continue. 25
(3) A public sector agency is not entitled to compensation under the Land 26
Acquisition (Just Terms Compensation) Act 1991 as the owner of land 27
acquired pursuant to this section. 28
(4) Land acquired by the Corporation pursuant to this section is deemed to 29
be an asset of a port SOC for the purposes of this Act and the 30
Corporation is deemed to be a port SOC for the purposes of this Act 31
while it holds the land. 32
Note. Land acquired pursuant to this section is a ports asset for the purposes 33
of an authorised transaction (whether or not it was a ports asset before it was 34
acquired). 35
Page 16
Ports Assets (Authorised Transactions) Bill 2012 Clause 23
Arrangements for transfer of assets and functions Part 5
23 Adjustment of port SOC objectives and functions 1
(1) The Treasurer may by direction in writing to a port SOC adjust the 2
objectives and functions of the port SOC in such manner as the 3
Treasurer considers appropriate to ensure that the objectives and 4
functions of the port SOC remain appropriate, having regard to: 5
(a) the capacity of the port SOC to give effect to or exercise its 6
existing objectives and functions following the transfer of any of 7
its ports assets for the purposes of an authorised transaction, and 8
(b) the objectives and functions that would be appropriate for any 9
remaining ports assets of the port SOC. 10
(2) The objectives and functions of a port SOC may be adjusted under this 11
section by being limited or dispensed with but not by being broadened. 12
Page 17
Clause 24 Ports Assets (Authorised Transactions) Bill 2012
Part 6 Operation of other laws
Part 6 Operation of other laws 1
24 State taxes 2
(1) In this section: 3
relevant matter means any of the following: 4
(a) any transaction arrangement, 5
(b) a vesting of assets, rights or liabilities by operation of Schedule 4 6
(Vesting of assets, rights and liabilities) and anything certified by 7
the Treasurer as having been done in consequence of such a 8
vesting (for example, the transfer or registration of an interest in 9
land), 10
(c) the issue, disposal or purchase of shares or other securities in or 11
issued by a company for the purposes of an authorised 12
transaction, 13
(d) any matter connected with the corporate conversion of a port 14
SOC or transaction SOC for the purposes of an authorised 15
transaction, 16
(e) such other matters for the purposes of an authorised transaction 17
as may be prescribed by the regulations, 18
(f) any transaction occurring within 6 months after completion of an 19
authorised transaction and certified by the Treasurer to be a 20
transaction entered into in connection with the transfer of ports 21
assets to the private sector pursuant to the authorised transaction. 22
State tax means application or registration fees, duty under the Duties 23
Act 1997 or any other tax, duty, fee or charge imposed by any Act or law 24
of the State. 25
(2) State tax is not payable by a public sector agency in relation to a relevant 26
matter. 27
(3) State tax is not payable by a person or body (other than a public sector 28
agency) in relation to a relevant matter to such extent (if any) as the 29
Treasurer may direct by order in writing, either generally or in a 30
particular case. 31
(4) An order may be made by the Treasurer under this section before or 32
after the liability to pay the State tax concerned accrues. 33
(5) The Treasurer must give a copy of an order under this section to the 34
Chief Commissioner of State Revenue. 35
Page 18
Ports Assets (Authorised Transactions) Bill 2012 Clause 25
Operation of other laws Part 6
25 General relationship of Act with other State legislation 1
(1) None of the following provisions operate to prevent, restrict or 2
otherwise limit the carrying out of a transaction arrangement or the 3
exercise of a function for the purposes of an authorised transaction: 4
(a) any provision of the State Owned Corporations Act 1989, 5
(b) any provision of the constitution of a statutory SOC or a 6
subsidiary of a statutory SOC. 7
(2) In the event of any inconsistency between the provisions of this Act or 8
the regulations and a provision of any other State legislation that is 9
prescribed by the regulations as an inconsistent provision for the 10
purposes of this section, the provisions of this Act or the regulations (as 11
the case may be) prevail to the extent of the inconsistency. 12
(3) The requirements of any other Act (whether enacted before or after this 13
Act) for the approval by resolution of either or both Houses of 14
Parliament (or by Act) of any act that constitutes the transfer of ports 15
assets for the purposes of an authorised transaction is satisfied by the 16
enactment of this Act. 17
26 Public Authorities (Financial Arrangements) Act 18
The Public Authorities (Financial Arrangements) Act 1987 does not 19
apply to any transaction arrangement. 20
27 Release of information by Auditor-General 21
Section 38 (Secrecy) of the Public Finance and Audit Act 1983 does not 22
apply to or in respect of a report or communication that the Treasurer 23
authorises the Auditor-General to make to a person for the purposes of 24
an authorised transaction or for the purposes of the audit (before or after 25
the completion of an authorised transaction) of records relating to ports 26
assets transferred pursuant to an authorised transaction. 27
28 Contracts for sale of land 28
Section 52A (Contracts for sale of land) of the Conveyancing Act 1919 29
does not apply to a contract for the sale of land that is entered into for 30
the purposes of an authorised transaction. 31
29 Protection of contractual and other obligations 32
(1) This section applies to the following: 33
(a) the operation of this Act (including any order under this Act and 34
anything done or omitted to be done under or for the purposes of 35
this Act), 36
Page 19
Clause 30 Ports Assets (Authorised Transactions) Bill 2012
Part 6 Operation of other laws
(b) the transfer of ports assets for the purposes of an authorised 1
transaction, 2
(c) the entering into or performance of obligations under a 3
transaction arrangement by a public sector agency, 4
(d) a disclosure of information by, on behalf of or with the consent 5
of a public sector agency for the purposes of an authorised 6
transaction. 7
(2) None of the matters or things to which this section applies are to be 8
regarded as: 9
(a) a breach of contract or confidence or otherwise as a civil wrong, 10
or 11
(b) a breach of any instrument (including, without limitation, any 12
provision prohibiting, restricting or regulating the assignment or 13
transfer of assets, rights or liabilities) or as requiring any act to be 14
done under an instrument, or 15
(c) giving rise to any right or remedy by a party to a contract or other 16
instrument, or as causing or permitting the termination of, or 17
exercise of rights under, any contract or other instrument, or 18
(d) an event of default under any contract or other instrument, or 19
(e) giving rise to a breach of or an offence against a provision of an 20
Act that prohibits or restricts the disclosure of information, or 21
(f) releasing a surety or other obligee wholly or in part from an 22
obligation. 23
(3) This section does not affect the rights and obligations of the parties to a 24
transaction arrangement in respect of the performance of obligations 25
under the transaction arrangement. 26
(4) In this section: 27
instrument means an instrument (other than an instrument made under 28
this Act) or any other document that creates, modifies or extinguishes 29
rights or liabilities (or would do so if lodged, filed or registered in 30
accordance with any law), and includes any judgment, order, process or 31
other instrument issued by a court or tribunal. 32
30 Compensation not payable 33
(1) Compensation is not payable by or on behalf of the State: 34
(a) because of the enactment or operation of this Act, or for any 35
consequence of that enactment or operation, or 36
(b) because of any statement or conduct relating to the enactment of 37
this Act. 38
Page 20
Ports Assets (Authorised Transactions) Bill 2012 Clause 31
Operation of other laws Part 6
(2) This section does not extend to compensation payable under a 1
transaction arrangement to a party to the transaction arrangement in 2
connection with the performance of obligations under the transaction 3
arrangement. 4
(3) In this section: 5
compensation includes damages or any other form of monetary 6
compensation. 7
conduct includes any act or omission, whether unconscionable, 8
misleading, deceptive or otherwise. 9
operation of this Act includes the operation of any notice or order under 10
this Act and any agreement entered into under or for the purposes of this 11
Act. 12
statement includes a representation of any kind: 13
(a) whether made verbally or in writing, and 14
(b) whether negligent, false, misleading or otherwise. 15
the State means the Crown within the meaning of the Crown 16
Proceedings Act 1988, and includes a public sector agency and an 17
officer, employee or agent of the Crown or a public sector agency. 18
31 Leases of ports assets 19
(1) The provisions of a ports assets lease (or of any agreement or 20
arrangement entered into in connection with such a lease) dealing with 21
the following matters have effect according to their terms despite any 22
law or rule to the contrary: 23
(a) the payment of any amount by way of premium under the lease 24
and the retention of any such amount by the lessor or the State, 25
(b) the circumstances or conditions under which the lease may be 26
terminated by the lessor or lessee, 27
(c) the application or operation of section 122, 130 or 133B of the 28
Conveyancing Act 1919 to or in respect of the lease (or any lease 29
under the lease), 30
(d) the application of a security provided in relation to the lease, 31
(e) the payment of a sum that is in the nature of a penalty, 32
(f) the ownership of, or the vesting or forfeiture of ownership of, any 33
real or personal property on termination of the lease or on the 34
occurrence of some other specified event or other thing, 35
(g) the pre-payment of amounts payable by way of rent under the 36
lease and the retention of any such amounts by the lessor or the 37
State, 38
Page 21
Clause 32 Ports Assets (Authorised Transactions) Bill 2012
Part 6 Operation of other laws
(h) the continuance of the lease despite the occurrence of unintended 1
or unforeseen circumstances, 2
(i) the continuance of the obligation to pay rent despite the 3
occurrence of unintended or unforeseen circumstances, 4
(j) the amount payable in consequence of a breach or early 5
termination of the lease, 6
(k) the liability of the lessor or lessee in relation to the leased assets, 7
(l) the non-refundability of any payment made on account of rent, 8
premium, option fee, outgoings, security deposit or otherwise, 9
(m) the operation of any set-off. 10
(2) A ports assets lease may include provision for the removal by the lessee 11
of any fixture severable from the land leased. 12
(3) A scheme of arrangement, receivership, winding up or other external 13
administration of a company is to be carried out in a manner that gives 14
effect to the provisions of a lease or agreement referred to in subsection 15
(1). 16
(4) A variation of lease that operates to vary the land to which a lease relates 17
can be registered under the Real Property Act 1900 (despite section 55A 18
(4) of that Act) if the Treasurer certifies that: 19
(a) the lease is a ports assets lease, and 20
(b) the variation is for the purpose of including, as land to which that 21
lease relates, land that is the subject of a lease of ports assets 22
entered into after completion of an authorised transaction 23
pursuant to an agreement for lease entered into before completion 24
of the authorised transaction. 25
(5) In this section: 26
ports assets includes assets that were ports assets before their transfer to 27
the private sector for the purposes of an authorised transaction. 28
ports assets lease means: 29
(a) a lease of ports assets entered into for the purposes of an 30
authorised transaction, or 31
(b) a lease of ports assets that the Treasurer designates by order in 32
writing as a ports assets lease for the purposes of this section. 33
32 No cargo throughput limits for Port Botany 34
(1) A planning control is of no effect to the extent that it would operate to 35
impose a cargo throughput limit for Port Botany. 36
Page 22
Ports Assets (Authorised Transactions) Bill 2012 Clause 32
Operation of other laws Part 6
(2) A cargo throughput limit for Port Botany is any direct or indirect limit 1
or other restriction on the amount of cargo that can be received or 2
handled at or transported from Port Botany and includes (without 3
limitation) the following: 4
(a) a limit or other restriction on the number of cargo containers that 5
can be received or handled at or transported from Port Botany, 6
(b) a limit or other restriction on the nature, number or frequency of 7
transport movements to or from Port Botany, 8
(c) a limit of the kind imposed by condition A1.4 (Port Throughput 9
Capacity Limits) of the planning approval for the construction 10
and operation of a new container terminal and associated 11
infrastructure at Port Botany as granted on 13 October 2005. 12
(3) The following provisions apply to the operation of this section: 13
(a) this section does not apply to a planning control until the planning 14
control has been imposed, so that it limits the effect of the 15
planning control once imposed but does not prevent the planning 16
control from being imposed, 17
(b) this section does not invalidate a planning control or any planning 18
approval that imposes a planning control, 19
(c) this section does not prevent planning approval being granted 20
merely because a planning control to be imposed by the planning 21
approval will be rendered wholly or partially ineffective by this 22
section. 23
(4) In this section: 24
Planning Act means the Environmental Planning and Assessment Act 25
1979 and the regulations under that Act. 26
planning approval means a consent, approval, permission or other 27
authority under the Planning Act and includes any condition of or the 28
terms of any such consent, approval, permission or other authority. 29
planning control means any requirement or other control imposed 30
(before or after the commencement of this section) by or under: 31
(a) the Planning Act, or 32
(b) an environmental planning instrument under the Planning Act, or 33
(c) a planning approval. 34
Port Botany means land in the local government areas of the City of 35
Botany Bay and the City of Randwick (including land covered by 36
water) leased to the private sector for the purposes of an authorised 37
transaction. 38
Page 23
Clause 33 Ports Assets (Authorised Transactions) Bill 2012
Part 7 Miscellaneous
Part 7 Miscellaneous 1
33 Delegation 2
The Treasurer may delegate to the Secretary of the Treasury, or to any 3
other officer of the Government Service prescribed by the regulations, 4
any function of the Treasurer under this Act except this power of 5
delegation. 6
34 Act to bind State and other jurisdictions 7
(1) This Act binds the State and, in so far as the legislative power of the 8
Parliament of New South Wales permits, the other States, the Territories 9
and the Commonwealth. 10
(2) Without limiting subsection (1), this Act has effect despite any privilege 11
or immunity of the Crown in any of its capacities. 12
(3) This Act does not make any State or Territory, the Commonwealth, or 13
the Crown in any of its capacities, liable to be prosecuted for an offence. 14
(4) A reference in this section to a State, Territory or the Commonwealth 15
includes a reference to the Government of the State, Territory or 16
Commonwealth. 17
35 Extraterritorial operation of Act 18
(1) It is the intention of the Parliament of New South Wales that the 19
operation of this Act should, as far as possible, include operation in 20
relation to the following: 21
(a) things situated in or outside the territorial limits of the State, 22
(b) acts, transactions and matters done, entered into or occurring in 23
or outside the territorial limits of the State, 24
(c) things, acts, transactions and matters (wherever situated, done, 25
entered into or occurring) that would, apart from this Act, be 26
governed or otherwise affected by the law of another State, a 27
Territory, the Commonwealth or a foreign country. 28
(2) Without limiting subsection (1), it is the intention of the Parliament of 29
New South Wales that the provisions of this Act have an operation in 30
relation to the things, acts, transactions and matters referred to in that 31
subsection even if the rules of private international law (whether at 32
general law or as provided by legislation) would require the application 33
of a law other than this Act instead of the provisions of this Act. 34
Page 24
Ports Assets (Authorised Transactions) Bill 2012 Clause 36
Miscellaneous Part 7
36 Construction of Act and instruments so as not to exceed legislative 1
power 2
(1) Unless a contrary intention appears, if a provision of this Act or an 3
instrument made under this Act: 4
(a) would, apart from this section, have an invalid application, but 5
(b) also has at least one valid application, 6
it is the intention of the Parliament of New South Wales that the 7
provision is not to have the invalid application, but is to have every valid 8
application. 9
(2) Despite subsection (1), the provision is not to have a particular valid 10
application if: 11
(a) apart from this section, it is clear, taking into account the 12
provision's context and the purposes or objects underlying this 13
Act, that the provision was intended to have that valid application 14
only if every invalid application, or a particular invalid 15
application, of the provision had also been within the legislative 16
power of the Parliament of New South Wales, or 17
(b) the provision's operation in relation to that valid application 18
would be different in a substantial respect from what would have 19
been its operation in relation to that valid application if every 20
invalid application, or a particular invalid application, of the 21
provision had been within the legislative power of the Parliament 22
of New South Wales. 23
(3) Subsection (2) does not limit the cases in which a contrary intention 24
may be taken to appear for the purposes of subsection (1). 25
(4) This section is in addition to, and not in derogation of, section 31 of the 26
Interpretation Act 1987. 27
(5) In this section: 28
application means an application in relation to: 29
(a) one or more particular persons, things, matters, places, 30
circumstances or cases, or 31
(b) one or more classes (however defined or determined) of persons, 32
things, matters, places, circumstances or cases. 33
invalid application, in relation to a provision, means an application 34
because of which the provision exceeds the legislative power of the 35
Parliament of New South Wales. 36
valid application, in relation to a provision, means an application 37
which, if it were the provision's only application, would be within the 38
legislative power of the Parliament of New South Wales. 39
Page 25
Clause 37 Ports Assets (Authorised Transactions) Bill 2012
Part 7 Miscellaneous
37 Orders 1
(1) An order made under a provision of this Act takes effect at the 2
beginning of the day on which it is made, unless the order otherwise 3
provides. 4
(2) An order cannot provide for the order to take effect earlier than the 5
beginning of the day on which it is made (but can provide for the order 6
to take effect at a time on the day on which it is made that is earlier than 7
the time at which it is made). 8
(3) A document purporting to be an order made under a provision of this 9
Act is, unless the contrary is established, taken to be such an order and 10
to have been properly made. 11
(4) A certificate purporting to be signed by the Treasurer or an officer 12
prescribed by the regulations certifying that an order specified or 13
referred to in the certificate is an order made under a specified provision 14
of this Act is admissible in evidence in any legal proceedings and is 15
evidence of the matters certified. 16
(5) A provision of another Act that results from an amendment made by this 17
Act and that provides for the making of an order is deemed for the 18
purposes of this section to be a provision of this Act (and the order is 19
deemed to be an order made under a provision of this Act). 20
38 Service or giving of documents 21
(1) A document that is authorised or required by this Act or the regulations 22
to be served on or given to any person may be served or given: 23
(a) in the case of a natural person: 24
(i) by delivering it to the person personally, or 25
(ii) by sending it by post to the address specified by the person 26
for the giving or service of documents or, if no such 27
address is specified, the residential or business address of 28
the person last known to the person giving or serving the 29
document, or 30
(iii) by sending it by facsimile transmission to the facsimile 31
number of the person, or 32
(b) in the case of a body corporate: 33
(i) by leaving it with a person apparently of or above the age 34
of 16 years at, or by sending it by post to, the head office, 35
a registered office or a principal office of the body 36
corporate or to an address specified by the body corporate 37
for the giving or service of documents, or 38
(ii) by sending it by facsimile transmission to the facsimile 39
number of the body corporate. 40
Page 26
Ports Assets (Authorised Transactions) Bill 2012 Clause 39
Miscellaneous Part 7
(2) Nothing in this section affects the operation of any provision of a law or 1
of the rules of a court authorising a document to be served on a person 2
in any other manner. 3
39 Regulations 4
The Governor may make regulations, not inconsistent with this Act, for 5
or with respect to any matter that by this Act is required or permitted to 6
be prescribed or that is necessary or convenient to be prescribed for 7
carrying out or giving effect to this Act. 8
Page 27
Ports Assets (Authorised Transactions) Bill 2012
Schedule 1 Interpretative provisions
Schedule 1 Interpretative provisions 1
1 Definitions 2
In this Act: 3
assets means any legal or equitable estate or interest (whether present or 4
future, whether vested or contingent and whether personal or 5
assignable) in real or personal property of any description (including 6
money), and includes securities, choses in action and documents. 7
associated port land--see section 3. 8
authorised transaction--see section 3. 9
completion of an authorised transaction occurs on such date as may be 10
designated by the Treasurer by order in writing as the date of 11
completion of the authorised transaction. 12
corporate conversion, in relation to a port SOC or a transaction SOC, 13
means the registration of the corporation as a company under the 14
Corporations Act. 15
Corporations Act means the Corporations Act 2001 of the 16
Commonwealth. 17
Corporations legislation means the Corporations legislation to which 18
Part 1.1A of the Corporations Act applies. 19
function includes a power, authority or duty, and exercise a function 20
includes perform a duty. 21
general law means the common law and equity (as modified from time 22
to time by legislation). 23
lease includes concurrent lease and any subletting (or concurrent 24
subletting). 25
legislation includes: 26
(a) any statute of a legislature (whether enacted or made in Australia 27
or elsewhere), and 28
(b) any proclamation, regulation, rule, by-law, order or any other 29
kind of subordinate legislation (however described) made under 30
the authority of a statute (whether enacted or made in Australia 31
or elsewhere). 32
liabilities means any liabilities, debts or obligations (whether present or 33
future, whether vested or contingent and whether personal or 34
assignable). 35
modification includes addition, exception, omission or substitution. 36
Port Botany land--see section 3. 37
Port Kembla land--see section 3. 38
port SOC--see section 3. 39
Page 28
Ports Assets (Authorised Transactions) Bill 2012
Interpretative provisions Schedule 1
ports assets--see section 3. 1
Ports Assets Ministerial Holding Corporation or the Corporation 2
means the Ports Assets Ministerial Holding Corporation constituted by 3
this Act. 4
private sector means any person other than a public sector agency. 5
Note. A person who is a public sector agency of another jurisdiction is a private 6
sector person for the purposes of this Act. 7
public sector agency means any of the following: 8
(a) the State (including the Crown in right of the State), 9
(b) a Minister, 10
(c) the Ministerial Holding Corporation constituted by the State 11
Owned Corporations Act 1989, 12
(d) the Ports Assets Ministerial Holding Corporation, 13
(e) a SOC, 14
(f) a public authority of the State, 15
(g) any other person acting on behalf of the State (or the Crown in 16
right of the State), 17
(h) a transaction company, but only while all the shares in the 18
transaction company are held by or on behalf of the State or a 19
SOC or the transaction company is the subsidiary of another 20
transaction company all the shares in which are held by or on 21
behalf of the State or a SOC, 22
(i) a wholly owned subsidiary of a public sector agency. 23
retained assets--see section 3. 24
rights means any rights, powers, privileges or immunities (whether 25
present or future, whether vested or contingent and whether personal or 26
assignable). 27
SOC means a State owned corporation within the meaning of the State 28
Owned Corporations Act 1989. 29
State legislation means any legislation of the State. 30
the State means the State of New South Wales. 31
transaction arrangement means a transaction, agreement or other 32
arrangement entered into by or on behalf of a public sector agency for 33
the purposes of an authorised transaction. 34
transaction company means a company established as a transaction 35
company pursuant to this Act. 36
transaction entity means a transaction SOC or a transaction company. 37
transaction SOC means a SOC established as a transaction SOC 38
pursuant to this Act. 39
Page 29
Ports Assets (Authorised Transactions) Bill 2012
Schedule 1 Interpretative provisions
transfer of ports assets includes the sale or lease of ports assets and the 1
creation and transfer of any interest in ports assets. 2
2 Ports assets 3
In this Act, ports assets includes assets, rights and liabilities vested in a 4
public sector agency that were ports assets before their transfer to a 5
public sector agency for the purposes of an authorised transaction. 6
Assets, rights and liabilities cease to be ports assets when they are 7
transferred to the private sector for the purposes of an authorised 8
transaction. 9
3 Functions for the purposes of an authorised transaction 10
For the purposes of this Act, any act, matter or thing is done or has effect 11
for the purposes of an authorised transaction if: 12
(a) it is done or has effect for the purpose of effecting or facilitating 13
an authorised transaction, or 14
(b) it is done or has effect for any purpose that is ancillary or 15
incidental to or consequential on an authorised transaction, or 16
(c) it is done or has effect for any purpose connected with the vesting 17
of ports assets in, or the transfer of staff of a port SOC to, a public 18
sector agency at any time after completion of an authorised 19
transaction. 20
4 Transfer and acquisition of assets, rights and liabilities 21
(1) The assets, rights and liabilities of a body corporate include the assets, 22
rights and liabilities of a wholly owned subsidiary of the body corporate 23
and accordingly the following principles apply in the interpretation of 24
this Act: 25
(a) assets, rights and liabilities of a body corporate can be transferred 26
to another person (the transferee) by a transfer of shares or any 27
other transaction that results in the body corporate becoming a 28
wholly owned subsidiary of the transferee, 29
(b) assets, rights and liabilities of a body corporate are acquired by 30
(and become assets, rights and liabilities of) a transferee when the 31
body corporate becomes a wholly owned subsidiary of the 32
transferee. 33
(2) This clause does not limit the ways in which assets, rights and liabilities 34
can be transferred for the purposes of an authorised transaction and does 35
not prevent the direct transfer of assets, rights and liabilities to a 36
transferee. 37
Page 30
Ports Assets (Authorised Transactions) Bill 2012
Interpretative provisions Schedule 1
5 Employees of port SOC 1
If a transaction company is established by the conversion of a port 2
SOC into a company, a reference in a provision of this Act to an 3
employee of a port SOC includes a reference to an employee of the 4
transaction company and a reference in the provision to the port SOC is 5
to be read as a reference to the transaction company. 6
6 Words and expressions defined in Corporations Act 7
Words and expressions used in this Act that are defined in section 9 of 8
the Corporations Act have the same meanings as in that section, except 9
in so far as they are defined differently in this Act or the context or 10
subject-matter otherwise indicates or requires. 11
7 When events occur 12
If this Act provides for an event or other thing to occur on a particular 13
day, that event or thing is taken to occur at the beginning of that day. 14
8 Notes 15
Notes included in this Act do not form part of this Act. 16
Page 31
Ports Assets (Authorised Transactions) Bill 2012
Schedule 2 Provisions concerning transaction SOCs
Schedule 2 Provisions concerning transaction SOCs 1
(Section 8) 2
1 Board of directors 3
(1) Each transaction SOC is to have a board of directors. 4
(2) The board is to consist of: 5
(a) the chief executive officer, and 6
(b) at least 3 and not more than 5 other directors appointed by the 7
voting shareholders. 8
(3) Of the directors appointed under subclause (2) (b), one is (in and by the 9
director's instrument of appointment as director or in and by another 10
instrument executed by the voting shareholders) to be appointed as 11
Chairperson of the Board. 12
(4) The board is accountable to the voting shareholders in the manner set 13
out in Part 4 of the State Owned Corporations Act 1989 and in the 14
constitution of the transaction SOC. 15
(5) The voting shareholders may remove a director, or the chairperson, 16
from office at any time for any or no reason and without notice and, in 17
that event, the office of the director or chairperson is taken to have 18
become vacant for the purposes of Schedule 8 to the State Owned 19
Corporations Act 1989. 20
(6) Except as provided by this clause, Schedule 8 to the State Owned 21
Corporations Act 1989 has effect with respect to the constitution and 22
procedure of the board. 23
(7) The provisions of section 20J of the State Owned Corporations Act 24
1989, and of clauses 2 (1) and (2), 4 and 7 (1) (d) and (2) of Schedule 8 25
to that Act, do not apply to a transaction SOC or to the chairperson. 26
(8) The provisions of clause 6 of Schedule 8 to the State Owned 27
Corporations Act 1989 do not apply to the chief executive officer, and 28
the chief executive officer is not entitled to remuneration under that 29
clause, in his or her capacity as a director. 30
2 Chief executive officer 31
(1) The chief executive officer of a transaction SOC is to be appointed by 32
the board after consultation with the voting shareholders. 33
(2) The board may remove a person from office as chief executive officer, 34
at any time, for any or no reason and without notice, but only after 35
consultation with the voting shareholders. 36
Page 32
Ports Assets (Authorised Transactions) Bill 2012
Provisions concerning transaction SOCs Schedule 2
(3) The chief executive officer is entitled to be paid such remuneration 1
(including travelling and subsistence allowances) as the board may 2
determine. 3
(4) The board may, after consultation with the voting shareholders, fix the 4
conditions of employment of the chief executive officer in so far as they 5
are not fixed by or under any other Act or law. 6
(5) The Public Sector Employment and Management Act 2002 (Chapter 5 7
included) does not apply to the chief executive officer. 8
(6) Subject to subclause (7), Schedule 9 to the State Owned Corporations 9
Act 1989 has effect with respect to the chief executive officer. 10
(7) The provisions of section 20K of the State Owned Corporations Act 11
1989, and of clauses 2, 3 and 6 of Schedule 9 to that Act, do not apply 12
to the chief executive officer. 13
3 Acting chief executive officer 14
(1) The board may, from time to time, appoint a person to act in the office 15
of chief executive officer during the illness or absence of the chief 16
executive officer. 17
(2) The board may remove a person from office as acting chief executive 18
officer, at any time, for any or no reason and without notice. 19
(3) A person, while acting in the office of chief executive officer: 20
(a) has all the functions of the chief executive officer and is taken to 21
be the chief executive officer, and 22
(b) is entitled to be paid such remuneration (including travelling and 23
subsistence allowances) as the board may determine. 24
(4) For the purposes of this clause, a vacancy in the office of chief executive 25
officer is regarded as an absence from office. 26
(5) Clause 5 of Schedule 9 to the State Owned Corporations Act 1989 does 27
not apply to an acting chief executive officer of a transaction SOC. 28
4 Dividends 29
(1) The voting shareholders of a transaction SOC, in consultation with the 30
board, are to determine the corporation's share dividends scheme. 31
(2) The dividends to be paid by a transaction SOC are to be declared by the 32
board in accordance with the share dividends scheme so determined. 33
(3) The provisions of section 20S (1) of the State Owned Corporations Act 34
1989 do not apply to a transaction SOC. 35
Page 33
Ports Assets (Authorised Transactions) Bill 2012
Schedule 2 Provisions concerning transaction SOCs
5 Supply of information to portfolio Minister 1
The provisions of section 29 (2) of the State Owned Corporations Act 2
1989 do not apply to a transaction SOC. 3
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Ports Assets (Authorised Transactions) Bill 2012
Corporate conversion of port SOCs and transaction SOCs Schedule 3
Schedule 3 Corporate conversion of port SOCs and 1
transaction SOCs 2
(Section 9) 3
1 Direction for corporate conversion of port SOCs and transaction SOCs 4
(1) The Treasurer may direct by order in writing (a corporate conversion 5
direction) that a port SOC or a transaction SOC be converted into a 6
company limited by shares of a specified type. 7
(2) A port SOC cannot be the subject of a corporate conversion direction 8
unless it is a port SOC on the date of assent to this Act or is a transaction 9
SOC. 10
2 Application for conversion to company 11
(1) A port SOC to which a corporate conversion direction has been given is 12
authorised to apply to be registered under Part 5B.1 of the Corporations 13
Act as a company limited by shares of the type specified in the direction. 14
(2) That application can only be made if the Treasurer has issued a 15
certificate to the corporation that certifies that the Treasurer is satisfied 16
that the provisions of this Act have been complied with concerning the 17
transfer of its incorporation to the Corporations Act. 18
(3) A certificate issued by the Treasurer for the purposes of this clause: 19
(a) cannot be challenged, reviewed or called into question in 20
proceedings before any court or tribunal, and 21
(b) is conclusive evidence in any proceedings before a court or 22
tribunal that all the requirements of this Act have been complied 23
with concerning the transfer of the incorporation of the 24
corporation to the Corporations Act. 25
3 Effect of conversion 26
(1) The following provisions are taken to have had effect immediately 27
before a port SOC to which a corporate conversion direction has been 28
given is registered as a company under the Corporations Act: 29
(a) the corporation ceases to be a statutory State owned corporation 30
for the purposes of the State Owned Corporations Act 1989 or 31
any other State legislation, 32
(b) the corporation ceases to be a Port Corporation under the Ports 33
and Maritime Administration Act 1995 unless the regulations 34
provide otherwise, 35
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Ports Assets (Authorised Transactions) Bill 2012
Schedule 3 Corporate conversion of port SOCs and transaction SOCs
(c) the voting shareholders (within the meaning of the State Owned 1
Corporations Act 1989) of the corporation cease to be members 2
of the corporation, 3
(d) the board of directors of the corporation is dissolved and each 4
member (including any acting member) of the board ceases to 5
hold office as such, 6
(e) any person who holds a statutory office of the corporation ceases 7
to hold that office, 8
(f) any person who ceases to be a member of the corporation or to 9
hold an office because of the operation of this subclause is not 10
entitled to any compensation for the loss of that membership or 11
office. 12
(2) Nothing in this clause prevents any person from becoming an officer of 13
the company into which the corporation is being converted in 14
accordance with its constitution and the provisions of the Corporations 15
Act. 16
(3) A port SOC to which a corporate conversion direction has been given 17
becomes a transaction company for the purposes of this Act only when 18
it is registered as a company under the Corporations Act. 19
Page 36
Ports Assets (Authorised Transactions) Bill 2012
Vesting of assets, rights and liabilities Schedule 4
Schedule 4 Vesting of assets, rights and liabilities 1
(Section 19) 2
1 Definitions 3
In this Schedule: 4
transferee means the person or body in whom any assets, rights or 5
liabilities are vested by a vesting order. 6
transferor means the person or body from whom any assets, rights or 7
liabilities are divested by a vesting order. 8
vesting order means a vesting order under this Schedule. 9
2 Making of vesting order 10
The Treasurer may, by order in writing (a vesting order), vest assets, 11
rights and liabilities comprising ports assets in a person specified in the 12
order as the transferee. 13
3 Vesting of assets, rights and liabilities in transferee 14
(1) When any assets, rights or liabilities are vested by a vesting order, the 15
following provisions have effect (subject to the vesting order): 16
(a) the assets vest in the transferee by virtue of this clause and 17
without the need for any conveyance, transfer, assignment or 18
assurance, 19
(b) the rights and liabilities become, by virtue of this clause, the 20
rights and liabilities of the transferee, 21
(c) all proceedings relating to the assets, rights or liabilities pending 22
by or against the transferor are taken to be proceedings pending 23
by or against the transferee, 24
(d) the transferee has all the entitlements and obligations of the 25
transferor in relation to the assets, rights and liabilities that the 26
transferor would have had but for the order, whether or not those 27
entitlements and obligations were actual or potential at the time 28
the order took effect, 29
(e) any act, matter or thing done or omitted to be done in relation to 30
the assets, rights or liabilities by, to or in respect of the transferor 31
is (to the extent that the act, matter or thing has any force or 32
effect) taken to have been done or omitted by, to or in respect of 33
the transferee, 34
(f) a reference in any Act, in any instrument made under any Act or 35
in any document of any kind to the transferor or a predecessor of 36
the transferor is (to the extent that it relates to those assets or 37
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Ports Assets (Authorised Transactions) Bill 2012
Schedule 4 Vesting of assets, rights and liabilities
liabilities but subject to the regulations) to be read as, or as 1
including, a reference to the transferee. 2
(2) No attornment to the transferee by a lessee from the transferor is 3
required. 4
4 Terms and conditions of vesting 5
A vesting order may be made on such terms and conditions as are 6
specified in the order. 7
5 Consideration for vesting 8
A vesting order may specify the consideration for which a vesting to 9
which it applies is made and the value or values at which assets, rights 10
or liabilities are vested. 11
6 Vesting of interests in land 12
(1) A vesting order may vest an interest in respect of land vested in the 13
transferor without vesting the whole of the interests of the transferor in 14
that land. 15
(2) If the interest vested is not a separate interest, the order operates to 16
create the interest vested in such terms as are specified in the order. 17
(3) This clause does not limit any other provision of this Schedule. 18
7 Confirmation of vesting 19
(1) The Treasurer may by order in writing confirm a vesting of particular 20
assets, rights or liabilities by operation of this Schedule. 21
(2) Such an order is evidence of that vesting. 22
8 Determinations by Treasurer 23
For the purposes of the making of a vesting order, the Treasurer may 24
determine whether or not particular assets, rights or liabilities comprise 25
ports assets, and such a determination is conclusive as to the matters 26
determined. 27
9 Certification to registration authorities 28
(1) In this clause: 29
registration authority means a person or body that has functions under 30
any law in connection with the keeping of a register in respect of assets, 31
rights or liabilities. 32
(2) A public sector agency that is the transferee or transferor under a vesting 33
order may lodge with a registration authority a certificate certifying as 34
to such information as may reasonably be required by the registration 35
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Ports Assets (Authorised Transactions) Bill 2012
Vesting of assets, rights and liabilities Schedule 4
authority to enable the registration authority to exercise any function of 1
the authority arising in connection with the vesting of any asset, right or 2
liability pursuant to the vesting order. 3
(3) Such a certificate is to be accepted and acted upon by the registration 4
authority and, despite any other law, the registration authority is not 5
entitled to require that the information concerned be provided to it in 6
any particular form or in any particular manner. 7
(4) No fee or charge is payable by the transferee to a registration authority 8
for or in respect of the exercise of any function by the registration 9
authority in connection with the vesting of an asset, right or liability by 10
a vesting order. 11
(5) A document purporting to be a certificate given under this clause is, 12
unless the contrary is established, taken to be such a certificate and to 13
have been properly given. 14
10 Public sector accounting policies 15
The Treasurer may give directions to public sector agencies for or with 16
respect to accounting policies to be applied by public sector agencies in 17
connection with the transfer between public sector agencies of assets, 18
rights and liabilities comprising ports assets for the purposes of an 19
authorised transaction (in place of public sector accounting policies that 20
would otherwise be applicable in respect of any such transfer). 21
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Ports Assets (Authorised Transactions) Bill 2012
Schedule 5 Savings, transitional and other provisions
Schedule 5 Savings, transitional and other 1
provisions 2
Part 1 General 3
1 Regulations 4
(1) The regulations may contain provisions of a savings or transitional 5
nature consequent on the enactment of this Act or any Act that amends 6
this Act. 7
(2) Any such provision may, if the regulations so provide, take effect from 8
the date of assent to the Act concerned or a later date. 9
(3) To the extent to which any such provision takes effect from a date that 10
is earlier than the date of its publication on the NSW legislation website, 11
the provision does not operate so as: 12
(a) to affect, in a manner prejudicial to any person (other than a 13
public sector agency), the rights of that person existing before the 14
date of its publication, or 15
(b) to impose liabilities on any person (other than a public sector 16
agency) in respect of anything done or omitted to be done before 17
the date of its publication. 18
Part 2 Provisions consequent on enactment of this 19
Act 20
2 Change of name of Port Corporation 21
The Governor may, by regulation, change the name of the Port Kembla 22
Port Corporation or the Sydney Ports Corporation. 23
3 Dissolution of Port Corporations 24
(1) The Governor may, by proclamation, dissolve the Port Kembla Port 25
Corporation or the Sydney Ports Corporation. 26
(2) On the day on which a proclamation under this clause takes effect: 27
(a) the Port Corporation concerned is dissolved, and 28
(b) the State Owned Corporations Act 1989 is amended by omitting 29
the name of that Port Corporation from Schedule 5. 30
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Ports Assets (Authorised Transactions) Bill 2012
Savings, transitional and other provisions Schedule 5
4 Reference to dissolved or converted port SOC 1
The regulations may provide that a reference in a specified provision of 2
an Act to a port SOC that has been dissolved or converted into a 3
company is to be read as a reference to a specified public sector agency. 4
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Ports Assets (Authorised Transactions) Bill 2012
Schedule 6 Amendment of Acts and regulations
Schedule 6 Amendment of Acts and regulations 1
6.1 Fire Brigades Act 1989 No 192 2
Section 20A Hazardous material incidents outside area to which Act 3
applies 4
Insert at the end of the definition of port authority in section 20A (4): 5
, or 6
(c) the port operator of a private port under the Ports and 7
Maritime Administration Act 1995. 8
6.2 Marine Safety Act 1998 No 121 9
Section 96 Appointment of authorised officers (other than harbour 10
masters and police officers) 11
Insert at the end of section 96 (1): 12
(f) an officer, employee or agent of the port operator of a 13
private port under the Ports and Maritime Administration 14
Act 1995. 15
6.3 Ports and Maritime Administration Act 1995 No 13 16
[1] Section 3 Definitions 17
Insert in alphabetical order in section 3 (1): 18
lease includes concurrent lease and any subletting (or concurrent 19
subletting). 20
port charge means a charge imposed under Part 5. 21
port operator: 22
(a) of a private port means the person declared to be the port 23
operator of the private port by the Minister by order in 24
writing, or 25
(b) of any other port means the port corporation that manages 26
and operates the port facilities and services of the port 27
concerned. 28
private port--means the ports of Botany Bay and Port Kembla. 29
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Ports Assets (Authorised Transactions) Bill 2012
Amendment of Acts and regulations Schedule 6
[2] Section 10B Regulations to promote competition and productivity at 1
ports 2
Insert after section 10B (1): 3
(1A) The object of this section is to promote the economically efficient 4
operation of, use of and investment in land-based port facilities 5
and port-related supply chain facilities. 6
[3] Section 10B (2A) and (2B) 7
Insert after section 10B (2): 8
(2A) A regulation may not be made under this section unless the 9
Minister has certified that the Minister is satisfied that: 10
(a) the regulation will promote the object of this section, and 11
(b) the regulation will not operate to constrain or otherwise 12
regulate the exercise of the port operator functions of the 13
port operator of a private port. 14
(2B) The port operator functions of the port operator of a private port 15
are: 16
(a) the fixing and collection of port charges under Part 5, and 17
(b) the fixing and collection of charges (for example, rent) 18
under a lease or licence, and 19
(c) any other function of the port operator as the lessor or 20
licensor under a lease or licence. 21
[4] Section 27 Delegation of functions by Minister 22
Insert "(or a person seconded to the staff)" after "member of the staff" 23
wherever occurring in section 27 (3) (a) and (b). 24
[5] Part 3A 25
Insert after Part 3: 26
Part 3A Private ports 27
Division 1 Preliminary 28
35 Application 29
This Part applies only to and in respect of a private port. 30
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Ports Assets (Authorised Transactions) Bill 2012
Schedule 6 Amendment of Acts and regulations
36 Definitions 1
In this Part: 2
authorised officer has the same meaning as in the Marine Safety 3
Act 1998. 4
port operator directions means port operator directions given 5
under Division 2. 6
Division 2 Regulation of activities--port operator 7
directions 8
37 Directions to maintain or improve safety and security 9
(1) The port operator of a private port may, for the purpose of 10
maintaining or improving safety and security at the port, give 11
directions (referred to in this Division as port operator 12
directions) that regulate any of the following activities in the 13
landside port precinct at the port: 14
(a) the driving, stopping and parking of vehicles, 15
(b) the movement, handling or storage of goods, 16
(c) any activity that may pose a risk to safety or security at the 17
port. 18
(2) The power to regulate an activity includes the power to prohibit 19
the activity. 20
(3) A port operator direction may be of general application or may be 21
limited in its application to specified persons or a specified class 22
of persons. 23
(4) In this section: 24
landside port precinct at a port means: 25
(a) land at the port that is not covered by water and that is the 26
subject of a relevant port lease, and 27
(b) any wharf or other structure built at the port on or over land 28
covered by water that is adjacent to land referred to in 29
paragraph (a), and 30
(c) land leased to the port operator that is contiguous with land 31
referred to in paragraph (a). 32
relevant port lease means: 33
(a) for Botany Bay-- a lease to the port operator of land in the 34
Cities of Botany Bay and Randwick that comprised ports 35
assets under the Ports Assets (Authorised Transactions) 36
Act 2012 before being leased to the private sector for the 37
purposes of an authorised transaction under that Act, or 38
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Ports Assets (Authorised Transactions) Bill 2012
Amendment of Acts and regulations Schedule 6
(b) for Port Kembla--a lease to the port operator of land at 1
Port Kembla that comprised ports assets under the Ports 2
Assets (Authorised Transactions) Act 2012 before being 3
leased to the private sector for the purposes of an 4
authorised transaction under that Act. 5
(5) Land is contiguous with other land if it adjoins the other land (or 6
would adjoin the other land were it not separated from the other 7
land by a road, rail corridor or easement) or it is in close 8
proximity to the other land. 9
(6) A certificate issued by the Minister or by the port operator of a 10
private port certifying that specified land is or is not part of the 11
landside port precinct at a port is evidence of the matter certified. 12
38 How port operator directions are given 13
(1) A port operator direction may be given in any of the following 14
ways: 15
(a) by notice displayed in the area at the port where the 16
direction applies, 17
(b) by notice published on the port operator's website, 18
(c) by notice served on the person or persons to whom the 19
direction applies. 20
(2) A port operator direction given by notice published on the port 21
operator's website is of no effect until a copy of the notice has 22
been published in the Gazette. 23
(3) Before a port operator direction is given, not less than 2 weeks 24
advance notice of the proposed direction must be given: 25
(a) to the harbour master for the port, and 26
(b) to the Minister administering Part 11 (Special 27
requirements relating to ports) of the Dangerous Goods 28
(General) Regulation 1999 if the direction relates to 29
dangerous goods to which that Part applies. 30
(4) Advance notice of a proposed port operator direction is 31
sufficiently given to a harbour master or the Minister by being 32
delivered or sent by post to the office of the harbour master or the 33
Minister, as appropriate. 34
(5) Advance notice of a proposed port operator direction is not 35
required if the direction is given in an emergency or is necessary 36
to avert an imminent threat of death or serious injury to persons 37
or serious damage to property. In such a case, notice of the work 38
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Ports Assets (Authorised Transactions) Bill 2012
Schedule 6 Amendment of Acts and regulations
being undertaken must be given as soon as reasonably practicable 1
in the circumstances. 2
39 Enforcement of port operator directions 3
(1) Port operator directions must be complied with (except to the 4
extent that compliance would result in the contravention of a 5
requirement imposed by or under an Act). 6
(2) The port operator may enforce compliance with a port operator 7
direction in any of the following ways: 8
(a) by removing from the port any person who is contravening 9
the direction, 10
(b) by removing from the port or moving within the port any 11
vehicle that is stopped or parked in contravention of the 12
direction, 13
(c) by removing from the port or moving within the port any 14
goods stored in contravention of the direction, 15
(d) by carrying out any work at the port that a person has failed 16
to carry out in contravention of the direction or that is 17
reasonably required to be carried out to remedy a 18
contravention of the direction. 19
(3) The power to remove or move a vehicle or goods from or within 20
the port includes the power to place the vehicle or goods in secure 21
storage pending return of the vehicle or goods to their owner. 22
(4) The port operator is entitled to recover as a debt the reasonable 23
costs incurred by the port operator in enforcing compliance with 24
a port operator direction. Those costs are recoverable from the 25
person whose contravention of the direction resulted in those 26
costs being incurred. 27
(5) A certificate issued by the port operator certifying as to the 28
reasonable costs incurred by the port operator in enforcing 29
compliance with a port operator direction is evidence of the 30
matters certified. 31
(6) Anything done by or on behalf of a port operator reasonably and 32
in good faith to enforce compliance with a port operator direction 33
as permitted by this Division does not subject the port operator or 34
any other person to any action, liability, claim or demand. 35
40 Advance notice of proposed work 36
(1) The port operator is not authorised to enforce compliance with a 37
port operator direction by carrying out work that a person has 38
failed to carry out in contravention of the direction or that is 39
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Ports Assets (Authorised Transactions) Bill 2012
Amendment of Acts and regulations Schedule 6
reasonably required to be carried out to remedy a contravention 1
by a person of the direction unless the port operator has given the 2
person advance notice of the proposed work. 3
(2) Advance notice of proposed work must be given no less than 7 4
days before the work commences, must be given in writing and 5
must give details of the alleged contravention concerned. 6
(3) Advance notice of proposed work is not required in an 7
emergency or where the proposed work is necessary to avert an 8
imminent threat of death or serious injury to persons or serious 9
damage to property. 10
40A Power of entry 11
The port operator may enter any land or premises at the port at 12
any time for the purpose of: 13
(a) ascertaining whether port operator directions are being 14
complied with or have been contravened, or 15
(b) doing anything that the port operator is authorised to do to 16
enforce compliance with a port operator direction. 17
40B Functions exercisable by authorised officers 18
(1) The functions of a port operator under this Division can be 19
exercised on behalf of the port operator by an authorised officer 20
who is an officer, employee or agent of the port operator. 21
(2) Accordingly, a reference in this section to a port operator 22
direction includes such a direction given by an authorised officer 23
on behalf of the port operator. 24
(3) An authorised officer who enters land or premises under the 25
authority of this Division may be accompanied by any person 26
believed by the authorised officer to be capable of providing 27
assistance in the exercise of the authorised officer's functions 28
under this Division. 29
(4) An authorised officer may request the assistance of any police 30
officer if the authorised officer reasonably believes that the 31
exercise of the authorised officer's functions under this Division 32
will be obstructed or otherwise interfered with. 33
40C Obstruction of authorised officer 34
A person must not obstruct or otherwise interfere with an 35
authorised officer in the exercise of any function of the 36
authorised officer under this Division. 37
Maximum penalty: 50 penalty units. 38
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Ports Assets (Authorised Transactions) Bill 2012
Schedule 6 Amendment of Acts and regulations
40D Monitoring of port operator directions 1
(1) The port operator of a private port must within 3 months after the 2
end of each 6 month period ending on 30 June or 31 December in 3
a year (beginning with the year 2013) provide details to the 4
Minister of such of the following matters (reportable matters) as 5
occurred in the period concerned: 6
(a) the giving of a port operator direction by the port operator, 7
(b) any port operator direction given by the port operator 8
ceasing to have effect, 9
(c) any contravention of which the port operator is aware of a 10
port operator direction given by the port operator, 11
(d) any exercise by the port operator of the power under 12
section 40A to enter land or premises, 13
(e) any action taken by the port operator to enforce 14
compliance with a port operator direction (being action 15
authorised to be taken under this Part). 16
(2) The port operator must also provide details of reportable matters 17
to the Minister as and when directed to do so by the Minister by 18
notice in writing to the port operator. The notice must allow not 19
less than 21 days for compliance with the direction. 20
(3) Information required to be provided by or under this section must 21
be provided in such manner and form as the Minister may from 22
time to time direct by notice in writing to the port operator. 23
(4) The Minister may from time to time publish reports and 24
statements, based on information provided to the Minister under 25
this section about reportable matters, subject to the following 26
requirements: 27
(a) any such report or statement must not include information 28
that identifies a person (or is likely to lead to the 29
identification of a person) as a person who has contravened 30
a port operator direction, 31
(b) the Minister must provide the port operator with a copy of 32
the proposed report or statement at least 14 days before it 33
is published. 34
(5) No liability (including liability in defamation) is incurred for 35
publishing in good faith a report or statement under this section 36
or a fair report or summary of such a report or statement. 37
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Ports Assets (Authorised Transactions) Bill 2012
Amendment of Acts and regulations Schedule 6
Division 3 Information gathering by port operators 1
40E Power to require information to be provided 2
(1) The port operator of a private port may by direction in writing (an 3
information direction) require any of the following persons to 4
provide relevant information to the port operator: 5
(a) the master of any ship that berths at the port or adjacent 6
port facilities, 7
(b) a shipping agent for goods shipped to, from or within the 8
port or adjacent port facilities, 9
(c) a consignor or consignee of goods shipped to, from or 10
within the port or adjacent port facilities, 11
(d) an operator of stevedoring or other facilities at the port or 12
adjacent port facilities. 13
(2) Information is relevant information if it is information that the 14
port operator reasonably requires for any of the following 15
allowable purposes: 16
(a) monitoring compliance with port operator directions, 17
(b) determining liability for and the amount of, and facilitating 18
the collection of, port charges, 19
(c) compiling statistics that the port operator is authorised or 20
required to compile, 21
(d) co-ordinating communication at the port, 22
(e) any purpose prescribed by the regulations in connection 23
with the operation and management of the port. 24
(3) An information direction must allow a reasonable period of not 25
less than 14 days for compliance with the direction unless the 26
direction is given in response to an emergency or to avert an 27
imminent threat of death or serious injury to persons or serious 28
damage to property (in which case compliance is required as soon 29
as reasonably practicable). 30
(4) In this section, adjacent port facilities means any wharf adjacent 31
to the waters of a private port. 32
40F Use and disclosure of information collected 33
A port operator is authorised to use and disclose information 34
provided to the port operator in compliance with an information 35
direction for any allowable purpose for which the port operator is 36
authorised to require the information. 37
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Ports Assets (Authorised Transactions) Bill 2012
Schedule 6 Amendment of Acts and regulations
40G Compliance with information direction 1
(1) A person must not without reasonable excuse fail to comply with 2
an information direction given to the person. 3
Maximum penalty: 500 penalty units in the case of a corporation 4
and 100 penalty units in any other case. 5
(2) A person must not in purported compliance with an information 6
direction given to the person provide information that the person 7
knows is false or misleading in a material particular. 8
Maximum penalty: 500 penalty units in the case of a corporation 9
and 100 penalty units in any other case. 10
(3) Compliance with an information direction is required even if 11
compliance would breach a duty of confidentiality. A duty of 12
confidentiality is not a reasonable excuse for failure to comply 13
with an information direction. 14
(4) The provision of information that would otherwise constitute a 15
breach of a duty of confidentiality does not constitute such a 16
breach if the information is provided in compliance with an 17
information direction. 18
[6] Section 47 Definitions generally 19
Insert in alphabetical order in section 47 (1): 20
appropriate public agency for a port means the Minister or a port 21
corporation designated by the Minister by order in writing as the 22
appropriate public agency for the port. 23
[7] Section 47 (1), definition of "relevant port authority" 24
Insert after paragraph (a) of the definition: 25
(a1) in relation to a navigation service charge for Port 26
Kembla--each of the port operator of Port Kembla and the 27
appropriate public agency for Port Kembla, or 28
[8] Section 47 (1), definition of "relevant port authority" 29
Insert after paragraph (e) of the definition: 30
(e1) in relation to site occupation and wharfage charges for 31
sites at a private port--each of the port operator of the port 32
and the appropriate public agency for the port, or 33
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Ports Assets (Authorised Transactions) Bill 2012
Amendment of Acts and regulations Schedule 6
[9] Section 47 (1), definition of "relevant port authority" 1
Insert at the end of paragraph (f) of the definition: 2
, or 3
(g) in relation to port infrastructure charges for a private 4
port--each of the port operator of the port and the 5
appropriate public agency for the port, or 6
(h) in relation to port infrastructure charges for any other 7
port--the appropriate public agency for the port. 8
[10] Section 47 (2) and (2A) 9
Insert after section 47 (1): 10
(2) A reference in this Part to anything owned or operated by the 11
Minister includes a reference to anything owned or operated by 12
the Authority. 13
(2A) If the relevant port authority in relation to a charge is each of the 14
port operator of a private port and the appropriate public agency 15
for the port, the port charge can be fixed and collected by either 16
or both of the port operator and the appropriate public agency. 17
[11] Section 51 Fixing of navigation service charges 18
Omit "with the approval of the Minister and" from section 51 (2). 19
[12] Section 54 Fixing of pilotage charges 20
Omit "with the approval of the Minister and" from section 54 (2). 21
[13] Section 58 Application of Division 22
Omit "sites owned or operated by a Port Corporation, the Minister or the 23
Authority". 24
Insert instead "sites owned or operated by a Port Corporation or the Minister, 25
or leased to the port operator of a private port". 26
[14] Section 59 27
Omit the section. Insert instead: 28
59 Meaning of "site" 29
(1) For the purposes of this Division, a site is: 30
(a) an area designated by the Minister under this Division and 31
defined on a map kept at the office of the relevant port 32
authority, or 33
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Ports Assets (Authorised Transactions) Bill 2012
Schedule 6 Amendment of Acts and regulations
(b) in the case of a site at a private port--an area designated 1
under this Division by the relevant port authority and 2
defined on a map kept at the office of the relevant port 3
authority. 4
(2) An area cannot be designated as a site unless it is owned or 5
operated by, or leased to, a relevant port authority and it consists 6
of: 7
(a) an area of water surrounding or adjacent to a wharf, buoy 8
or dolphin, and 9
(b) in the case of a wharf or a dolphin--the whole or part of 10
the area of the wharf or dolphin. 11
The designated site includes any stratum of the air space above, 12
or of the land or water below, an area so designated. 13
(3) In this section, wharf includes any land adjacent to it. 14
(4) For the purposes of this section, an area of water is deemed to be 15
owned or operated by the relevant port authority if the bed of the 16
water is owned or leased by the State or the Authority and: 17
(a) the area surrounds or is adjacent to a wharf, buoy or 18
dolphin owned or operated by, or leased to, the relevant 19
port authority, or 20
(b) the area is burdened by an easement that benefits an area 21
of land owned or operated by, or leased to, the relevant 22
port authority, or 23
(c) the area surrounds or is adjacent to an area referred to in 24
paragraph (b), or 25
(d) the Minister approves of that area of water being included 26
in a site operated by the relevant port authority. 27
(5) The relevant port authority is to keep at its office a copy of a map 28
defining each site it owns, operates or leases. 29
(6) A map or a copy of a map referred to in this section may be 30
inspected, without charge, by any person during business hours 31
at the office at which it is kept. 32
(7) For the purposes of any legal proceedings, it is to be presumed 33
(unless the contrary is established) that an area has been duly 34
designated as a site under this Division if the area is defined as 35
such on a map kept at the office of the Minister or (in the case of 36
a site at a private port) at the office of the port operator of the 37
private port. 38
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Ports Assets (Authorised Transactions) Bill 2012
Amendment of Acts and regulations Schedule 6
(8) An area that, immediately before the repeal of the Marine Port 1
Charges Act 1989, was a site within the meaning of that Act and 2
is owned or operated by a relevant port authority is (subject to 3
this section) a site for the purposes of this Division. 4
(9) An area at a private port that was a site immediately before the 5
substitution of this section by the Ports Assets (Authorised 6
Transactions) Act 2012 is deemed to be a site for the purposes of 7
this Division. 8
[15] Section 60 Site occupation charge 9
Insert ", unless the site is a site at a private port" after "lessor" in section 60 (4). 10
[16] Section 62 Fixing of charges under this Division 11
Omit section 62 (2). 12
[17] Section 64 Application of Division 13
Omit "or the Authority". 14
[18] Part 5, Division 6A 15
Insert after Division 6 of Part 5: 16
Division 6A Port infrastructure charges 17
66A Application of Division 18
(1) This Division applies to the following persons (referred to in this 19
Division as port users): 20
(a) the owners of cargo loaded or unloaded in the course of 21
stevedoring operations at a designated port, 22
(b) the owners of vessels that berth at a wharf, buoy or dolphin 23
at a designated port, 24
(c) persons liable to pay a site occupation charge at a 25
designated port, 26
(d) persons who operate road or rail cargo transport services as 27
part of the port-related supply chain. 28
(2) Unless the regulations otherwise provide, owners of the 29
following vessels are not port users for the purposes of this 30
Division: 31
(a) vessels owned or operated by the State or its agents, 32
(b) vessels owned or operated by the Commonwealth or its 33
agents, 34
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Ports Assets (Authorised Transactions) Bill 2012
Schedule 6 Amendment of Acts and regulations
(c) police or emergency services vehicles, 1
(d) fishing vessels other than those used for commercial 2
purposes, 3
(e) recreational or pleasure vessels including sailing craft and 4
personal watercraft, other than those used for commercial 5
purposes. 6
66B Port infrastructure charges 7
Port infrastructure charges are payable by port users to fund 8
investment (and return on investment) in port infrastructure 9
projects, being the acquisition or development of land or the 10
provision of services and facilities by the port operator, either: 11
(a) at the port in connection with the operation of the port, or 12
(b) outside the port in connection with the transport of cargo 13
to or from the port or the storage, handling or distribution 14
of cargo transported to or from the port. 15
66C Fixing of port infrastructure charges 16
(1) The relevant port authority may fix port infrastructure charges. 17
(2) Different charges may be fixed in respect of different port users, 18
or according to such other factors as the relevant port authority 19
thinks fit. 20
[19] Section 67 Agreements in respect of charges 21
Omit ", with the approval of the Minister," from section 67 (1). 22
[20] Section 74 Waiver or refund of charges 23
Omit ", with the approval of the Minister,". 24
[21] Part 6 25
Insert after Part 5: 26
Part 6 Price monitoring scheme 27
77 Scheme objective 28
The objective of the price monitoring scheme established by this 29
Part (the scheme objective) is to promote the economically 30
efficient operation of, use of and investment in major port 31
facilities in the State by monitoring the prices port operators 32
charge users of those facilities, so as to promote a competitive 33
commercial environment in port operations. 34
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Ports Assets (Authorised Transactions) Bill 2012
Amendment of Acts and regulations Schedule 6
78 Ports to which Part applies 1
This Part applies to and in respect of the following ports: 2
(a) Botany Bay, 3
(b) Sydney Harbour, 4
(c) Port Kembla, 5
(d) Port of Newcastle, 6
(e) Port of Eden, 7
(f) Port of Yamba. 8
79 Publication of charges 9
(1) The port operator of a port to which this Part applies must publish 10
a list of the following charges (service charges): 11
(a) the port charges charged by the port operator, and 12
(b) the standard rate of other charges charged by the port 13
operator for or in respect of the use of facilities at the port. 14
(2) Rent and any other amount payable under a lease is not a service 15
charge for the purposes of this Part. 16
(3) The list of service charges must be published on the port 17
operator's website in a prominent position in a publicly 18
accessible part of the website. 19
(4) Charges that are the subject of an agreement under section 67 20
(Agreements in respect of charges) are not service charges for the 21
purposes of this Part. 22
80 Notice of increase in service charges 23
(1) The port operator of a port must give notice of any proposed 24
change in the port operator's service charges (whether the change 25
is a variation of an existing charge, the imposition of a new 26
charge or the removal of an existing charge). 27
(2) The notice of a proposed change in service charges must be given 28
in the following manner and at the following times: 29
(a) notice of the change must be given to the Minister in 30
writing at least 20 business days before the change is 31
proposed to be made, 32
(b) notice of the change must be published on the port 33
operator's website in a prominent position in a publicly 34
accessible part of the website at least 10 business days 35
before the change is proposed to be made. 36
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Ports Assets (Authorised Transactions) Bill 2012
Schedule 6 Amendment of Acts and regulations
(3) The notice of a proposed change in a service charge must 1
separately identify each charge to which the change relates and 2
provide the following information about the charge: 3
(a) the basis on which the amount of the charge is calculated 4
including (in the case of a charge payable on a unit basis 5
such as a unit of vessel cargo capacity or vessel gross 6
tonnage) the unit on which the charge is imposed, 7
(b) the reason for the change (in the case of a variation of an 8
existing charge), 9
(c) if the change is the imposition of a new charge--the 10
information required for a new charge under this section. 11
(4) The information required for a new charge (other than a port 12
infrastructure charge under Division 6A of Part 5) is as follows: 13
(a) the purpose and function of the charge, 14
(b) the basis on which the amount of the charge has been 15
calculated, 16
(c) the persons who will be required to pay the charge. 17
(5) The information required for a new charge that is a port 18
infrastructure charge under Division 6A of Part 5 is as follows: 19
(a) details of the port infrastructure project to which the 20
proposed charge relates, 21
(b) the basis on which the amount of the charge has been 22
calculated, 23
(c) the persons who will be required to pay the charge, 24
(d) the period of time for which the charge is proposed to be 25
imposed. 26
81 Annual reporting of charges to the Minister 27
The port operator of a port to which this Part applies must before 28
1 October 2013 and before 1 October in each subsequent year 29
provide the following information to the Minister in respect of 30
the financial year ending on the previous 30 June: 31
(a) a list of the types of service charges charged by the port 32
operator during that financial year, 33
(b) the revenue received by the operator during the financial 34
year from service charges (showing the amount of revenue 35
for each separate charge), 36
(c) in the case of a service charge payable on the basis of the 37
number of chargeable units (such as a unit of vessel cargo 38
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Ports Assets (Authorised Transactions) Bill 2012
Amendment of Acts and regulations Schedule 6
capacity or vessel gross tonnage)--the total number of 1
units charged for or in respect of each separate charge, 2
(d) if the amount of a charge was varied during the financial 3
year--the amount of the variation and the reason for it. 4
82 Power of Minister to require information 5
(1) The Minister may by direction in writing given to the port 6
operator of a port to which this Part applies require the port 7
operator to provide the Minister with specified information about 8
any of the following in respect of service charges charged or 9
proposed to be charged by the port operator: 10
(a) the amount of a particular charge, 11
(b) the purpose and function of a particular charge, 12
(c) the administration of a particular charge. 13
(2) A direction under this section is not to be given unless the 14
Minister is satisfied that: 15
(a) provision of the information is reasonably necessary for 16
achieving the scheme objective, and 17
(b) the likely cost to the port operator of complying with the 18
direction is not disproportionate to the benefit that 19
provision of the information will provide for achieving the 20
scheme objective. 21
(3) A direction under this section must be in writing and specify: 22
(a) the manner and form in which the required information is 23
to be provided, and 24
(b) a reasonable time within which the required information is 25
to be provided. 26
(4) Compliance with a direction under this section is required even if 27
compliance would breach a duty of confidentiality. 28
(5) The provision of information that would otherwise constitute a 29
breach of a duty of confidentiality does not constitute such a 30
breach if the information is provided in compliance with a 31
direction under this section. 32
83 Confidential information 33
(1) A port operator may, when providing information pursuant to a 34
direction of the Minister under this Part, claim that the 35
information is confidential if there are sufficient grounds for such 36
a claim. 37
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Ports Assets (Authorised Transactions) Bill 2012
Schedule 6 Amendment of Acts and regulations
(2) There are sufficient grounds for a claim that information is 1
confidential only if it appears that disclosure of the information: 2
(a) could adversely affect the competitive position of the port 3
operator or any other person, or 4
(b) would result in the port operator being in breach of a duty 5
of confidentiality owed to another person. 6
(3) A claim that information is confidential must be accompanied by 7
a detailed statement of the reasons in support of the claim and is 8
not duly made unless accompanied by such a statement. 9
(4) The Minister must take all reasonable steps to prevent the 10
disclosure of information that is claimed to be confidential unless 11
the disclosure is authorised by this section. 12
(5) The disclosure of information that is claimed to be confidential is 13
authorised if: 14
(a) the disclosure is for the purposes of the administration of 15
this Act to a person engaged in the administration of this 16
Act, or 17
(b) the disclosure is made with the consent of the person who 18
provided the information and (if disclosure could 19
adversely affect the competitive position of another 20
person) that other person, or 21
(c) the disclosure is authorised or required under any other Act 22
or law, or 23
(d) the disclosure is authorised or required by a court, or 24
(e) the disclosure is, in the opinion of the Minister, in the 25
public interest and the Minister is of the opinion that the 26
public benefit in disclosing the information outweighs any 27
detriment that might be suffered by a person as a result of 28
the disclosure. 29
(6) This section does not prevent the disclosure of information that is 30
claimed to be confidential if the Minister is of the opinion that 31
there are insufficient grounds for the claim and the Minister has 32
notified the Minister's opinion to the person who provided the 33
information. 34
(7) A disclosure of information authorised by this section does not 35
constitute a breach of any duty of confidentiality (either by the 36
person making the disclosure or by the port operator). 37
Page 58
Ports Assets (Authorised Transactions) Bill 2012
Amendment of Acts and regulations Schedule 6
84 Reports and statements by Minister 1
(1) The Minister may from time to time publish reports and 2
statements, based on information provided or obtained under this 3
Part, about the service charges charged at any one or more of the 4
ports to which this Part applies. 5
(2) No liability (including liability in defamation) is incurred for 6
publishing in good faith a report or statement under this section 7
or a fair report or summary of such a report or statement. 8
85 Part extends to port corporation as appropriate public agency 9
A reference in this Part to the port operator of a port includes a 10
reference to a port corporation designated under Part 5 as the 11
appropriate public agency for the port. 12
[22] Schedule 5 Savings, transitional and other provisions 13
Insert after Part 4: 14
Part 5 Provisions consequent on Ports Assets 15
(Authorised Transactions) Act 2012 16
22 Definitions 17
In this Part: 18
relevant port corporation for a port means the port corporation 19
that manages and operates the port facilities and services of the 20
port. 21
settlement day means the day designated by the Treasurer by 22
order in writing as settlement day for the purposes of this Part 23
(and for that purpose different settlement days may be designated 24
for Botany Bay and Port Kembla). 25
23 Provisions delayed until operational commencement 26
(1) The operation of the following provisions is delayed until 27
operational commencement: 28
(a) Part 6 (Price monitoring scheme) of this Act, 29
(b) the amendments made to sections 51, 54, 62, 67 and 74 by 30
the Ports Assets (Authorised Transactions) Act 2012 (to 31
remove the requirement for the approval of the Minister 32
under those sections), 33
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Ports Assets (Authorised Transactions) Bill 2012
Schedule 6 Amendment of Acts and regulations
(c) such other amendments made to this Act by the Ports 1
Assets (Authorised Transactions) Act 2012 as the 2
Treasurer may direct by order in writing made before 3
operational commencement. 4
(2) For the purposes of this clause, operational commencement is 5
the beginning of 1 January 2013 or the beginning of such later 6
day as the Treasurer may by order in writing made before 7
1 January 2013 designate as operational commencement. 8
24 Operation of Parts 3A, 5 and 6 9
(1) Until settlement day, Part 3A (Private ports), Part 5 (Port 10
charges) and Part 6 (Price monitoring scheme) of this Act operate 11
in respect of a private port as if the relevant port corporation for 12
the port were the port operator of the port. 13
(2) Accordingly, the relevant port corporation has and may exercise 14
all the functions of the port operator of a private port under those 15
Parts until settlement day. 16
(3) Section 12 (Exercise of port SOC functions through subsidiaries) 17
of the Ports Assets (Authorised Transactions) Act 2012 extends 18
to any such function. 19
(4) For the purposes of the operation of Part 3A of this Act under this 20
clause, the landside port precinct at a port is: 21
(a) land at the port that is not covered by water and that 22
comprises ports assets under the Ports Assets (Authorised 23
Transactions) Act 2012, and 24
(b) any wharf or other structure built at the port on or over land 25
covered by water that is adjacent to land referred to in 26
paragraph (a). 27
(5) For the purposes of the operation of Part 5 of this Act under this 28
clause, a site at a port leased to a subsidiary of the relevant port 29
corporation for the port is deemed to be leased to that port 30
corporation. 31
Page 60
Ports Assets (Authorised Transactions) Bill 2012
Amendment of Acts and regulations Schedule 6
6.4 Ports and Maritime Administration Regulation 2012 1
[1] Clause 5 Definitions 2
Insert at the end of the definition of officer of a relevant port authority in 3
clause 5 (1): 4
, or 5
(c) if the relevant port authority is the port operator of a 6
private port--an officer, employee or agent of the port 7
operator appointed by the port operator as an officer for the 8
purposes of this Part. 9
[2] Clause 5 (1A) 10
Insert after clause 5 (1): 11
(1A) If there is more than one relevant port authority in relation to port 12
charges at a port, a requirement of this Part to furnish particulars 13
or give a manifest to the relevant port authority in connection 14
with the charge is a requirement to furnish the particulars or give 15
the manifest to each of those relevant port authorities. 16
[3] Clause 21A 17
Insert after clause 21: 18
21A Requirement for industry consultation before setting mandatory 19
standards 20
(1) Before setting or amending a mandatory standard, the Minister is 21
to cause the proposed standard or amendment to be the subject of 22
appropriate industry consultation. 23
(2) Appropriate industry consultation is such consultation as the 24
Minister considers appropriate with representative bodies and 25
organisations of people likely to be affected by the proposed 26
standard or amendment. 27
(3) The consultation must provide the bodies and organisations that 28
are consulted with an adequate opportunity to comment on the 29
proposed standard or amendment. 30
[4] Clause 39A 31
Insert after clause 39: 32
39A Confidentiality of information 33
(1) A person may, when providing information pursuant to a 34
requirement imposed by or under this Part, claim that the 35
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Ports Assets (Authorised Transactions) Bill 2012
Schedule 6 Amendment of Acts and regulations
information is confidential if there are sufficient grounds for such 1
a claim. 2
(2) There are sufficient grounds for a claim that information is 3
confidential only if it appears that disclosure of the information: 4
(a) could adversely affect the competitive position of the 5
person or any other person, or 6
(b) would result in the person being in breach of a duty of 7
confidentiality owed to another person. 8
(3) A claim that information is confidential must be accompanied by 9
a detailed statement of the reasons in support of the claim and is 10
not duly made unless accompanied by such a statement. 11
(4) The Minister or the port corporation to which information is 12
provided must take all reasonable steps to prevent the disclosure 13
of information that is claimed to be confidential unless the 14
disclosure is authorised by this clause. 15
(5) The disclosure of information that is claimed to be confidential is 16
authorised if: 17
(a) the disclosure is for the purposes of the administration of 18
the Act to a person engaged in the administration of the 19
Act, or 20
(b) the disclosure is made with the consent of the person who 21
provided the information and (if disclosure could 22
adversely affect the competitive position of another 23
person) that other person, or 24
(c) the disclosure is authorised or required under any Act or 25
law, or 26
(d) the disclosure is authorised or required by a court, or 27
(e) the disclosure is, in the opinion of the Minister, in the 28
public interest and the Minister is of the opinion that the 29
public benefit in disclosing the information outweighs any 30
detriment that might be suffered by a person as a result of 31
the disclosure. 32
(6) This clause does not prevent the disclosure of information that is 33
claimed to be confidential if the Minister or the port corporation 34
concerned is of the opinion that there are insufficient grounds for 35
the claim and the Minister or the port corporation has notified the 36
Minister's or port corporation's opinion to the person who 37
provided the information. 38
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Ports Assets (Authorised Transactions) Bill 2012
Amendment of Acts and regulations Schedule 6
(7) A disclosure of information authorised by this clause does not 1
constitute a breach of any duty of confidentiality (either by the 2
person making the disclosure or by the person who provided the 3
information). 4
6.5 State Owned Corporations Act 1989 No 134 5
Section 20B Change or removal of name of statutory SOC 6
Insert after section 20B (1A): 7
(1B) On the day on which a regulation under clause 2 of Schedule 5 to 8
the Ports Assets (Authorised Transactions) Act 2012 takes effect, 9
this Act is amended by omitting from Schedule 5 the name of the 10
Port Corporation whose name is being changed and by inserting 11
instead the corporation's name as changed. 12
6.6 Subordinate Legislation Act 1989 No 146 13
Schedule 4 Excluded instruments 14
Insert at the end of the Schedule (with appropriate item number): 15
Regulations under the Ports Assets (Authorised Transactions) 16
Act 2012. 17
6.7 Sydney Harbour Tunnel (Private Joint Venture) Act 1987 18
No 49 19
Schedule 4 The ancillary sites 20
Insert at the end of the Schedule: 21
Land that is the subject of a lease (including a concurrent lease) 22
to the private sector under the Ports Assets (Authorised 23
Transactions) Act 2012 is excluded from this Schedule. 24
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Ports Assets (Authorised Transactions) Bill 2012
Schedule 6 Amendment of Acts and regulations
6.8 Work Health and Safety Regulation 2011 1
Schedule 18B Savings and transitional provisions 2
Insert at the end of clause 63: 3
(4) An officer, employee or agent of a Port Corporation (within the 4
meaning of the Ports and Maritime Administration Act 1995) to 5
whom the Port Corporation has issued written authorisation for 6
the purposes of the Dangerous Goods (General) Regulation 1999 7
has and may exercise the functions of an inspector under section 8
31 of the Dangerous Goods Act 1975 (as in force immediately 9
before its repeal) in relation to: 10
(a) dangerous goods in an area where the Port Corporation 11
exercises port safety functions to which an operating 12
licence held by it under that Act applies, and 13
(b) a contravention or suspected contravention of a provision 14
of Part 11 of the Dangerous Goods (General) Regulation 15
1999 in such an area. 16
Page 64
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