DARWIN PORT CORPORATION LEGISLATION AMENDMENT BILL 2011 Explanatory Statement

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DARWIN PORT CORPORATION LEGISLATION AMENDMENT BILL 2011

DARWIN PORT CORPORATION AND OTHER LEGISLATION AMENDMENT BILL 2011

SERIAL NO. 153

LEGISLATIVE ASSEMBLY OF THE NORTHERN TERRITORY

TREASURER

EXPLANATORY STATEMENT

GENERAL OUTLINE

The Bill amends the Darwin Port Corporation Act and Marine Act.

The purpose of this Bill is to implement the recommendations of the Review of the Regulatory Framework for the Port of Darwin by specifying licensing criteria for stevedores and pilots, and establishing an appeals mechanism for stevedore and pilot licensing decisions, to enhance transparency in the licensing processes.

The Bill also establishes a single pilotage services provider regime at the Port of Darwin. Furthermore, the Bill establishes the office of the harbourmaster, who will be appointed by the Minister for a period of three years.

NOTES ON CLAUSES

PART 1 – PRELIMINARY MATTERS

Clause 1. Short title

This is the formal clause which provides for the citation of the Bill. When passed, the Bill may be cited as the Darwin Port Corporation and Other Legislation Amendment Act 2011.

Clause 2. Commencement

This clause provides for the Bill to commence on a date fixed by the Administrator by Gazette notice.

PART 2 – AMENDMENT OF DARWIN PORT CORPORATION ACT

Clause 3. Act amended

This clause specifies that the Act being amended is the Darwin Port Corporation Act.

Clause 4. Section 5 amended

This clause amends some of the definitions in section 5 of the Darwin Port Corporation Act and includes amendments of a grammatical nature.

Subclause (2) omits the current definition of “harbourmaster”.

Subclause (3) inserts new definition for “harbourmaster”, “pilotage services” and “Tribunal”.

Clause 5. Section 16 amended

This clause makes some minor grammatical amendments to provisions in subsections 16(1) and (2).

This clause also inserts additional words into the provisions of section 16(2)(a)(vi). This broadens the functions of the Darwin Port Corporation to include the pilotage services provision at the Port of Darwin if appointed by the Minister under Part 7, Division 4A of the Marine Act.

The clause also inserts a new subsection 16(3) that provides for regulations to be made that limit the functions of the Darwin Port Corporation in subsection 16(1) and (2) as well as related transitional arrangements to be made.

Clause 6. Part II, Division 4 replaced

This clause omits the current Part II, Division 4 and inserts a new Division 4.

The new section 25 provides for the Minister to appoint a Chief Executive Officer or public sector employee to be the harbourmaster by written notice, only if the Minister is satisfied of the person’s relevant qualifications and experience. The period of appointment can be three years or less as specified in the appointment. The harbourmaster can be reappointed before any existing appointment expires and more than once but only for three years on each appointment.

The new section 26 outlines the functions and powers of the harbourmaster. These include making technical and safety standards for pilotage and provision of pilotage services for the Port and other functions conferred on the harbourmaster by any Act.

The new section 26A provides that the harbourmaster must, by written notice, make technical and safety standards for pilotage and provision of pilotage services for the Port. These standards must be written having regard to Australian Maritime Safety Authority’s (AMSA) Marine Orders made under the Navigation Act 1912 (Cth) or Protection of the Sea (Prevention of Pollution from ships) Act 1983 (Cth). The harbourmaster must Gazette and publish these standards. A person must not contravene these standards and a penalty applies to any contravention.

The new section 26B requires the harbourmaster to provide annual reports to the Minister on his/her performance and exercise of his/her powers before the end of three months after a financial year. The Minister must table this report in the Legislative Assembly within six sitting days after receiving the report.

The new section 26C clarifies that if the harbourmaster is an employee of the Darwin Port Corporation, when conducting his/her statutory functions or exercising the powers of the harbourmaster, the harbourmaster is not subject to the direction of the Darwin Port Corporation, the Chief Executive Officer of the Darwin Port Corporation or any other person and must act independently, impartially and in the public interest.

The new section 26D provides instances when the office of the harbourmaster is considered to be vacated including when the appointment expires, or is terminated or when the harbourmaster resigns by written notice to the Minister.

The new section 26E allows the Minister to suspend or terminate the appointment of the harbourmaster which must be in writing. The Minister may suspend the harbourmaster if he/she reasonably believes that it is necessary pending a decision to terminate. This allows for an independent investigation to be carried out on the harbourmaster’s conduct. The Minister may terminate the appointment of the harbourmaster due to the harbourmaster’s inability, inefficiency, misbehaviour, physical or mental incapacity or absence otherwise than on leave granted by the Minister. However, the Minister must terminate the appointment if the harbourmaster becomes bankrupt; applies to take the benefit of a law for the relief of bankrupt or insolvent debtors; compounds with creditors or makes an assignment of his/her remuneration for their benefit; or is found guilty, by any court, of an offence that would be punishable, in the Territory, by imprisonment for 12 months or more.

The new section 26F provides for the appointment, by the Minister, of an acting harbourmaster for a period of no more than 12 months.

The new section 26G allows the harbourmaster to delegate his/her powers and functions to any person, except the power and function relating to making technical and safety standards.

Clause 7. Section 38 amended

This clause makes some minor grammatical amendments to subsection 38(2) and (3).

This clause also omits subsection 38(4) and inserts new subsections 38(4) – (7). These subsections set the criteria to be used by the Darwin Port Corporation in determining whether to grant or refuse an application for a stevedoring licence including the applicant’s suitability, experience, skill and ability, the standard of the applicant’s equipment and any other matter that relate to ensuring safety of anyone connected with the provision of the services. The new subsection 38(5) clarifies that the determination of the suitability of the applicant is to be based on criminal history checks and prior involvement in the management of companies. Where a decision is made to refuse an application, the Darwin Port Corporation must give written notice of its decision to the applicant including the reasons for the decision and that the applicant can appeal to the Marine Appeals Tribunal (the Tribunal). An appeal to the Tribunal may be made within 28 days after receiving the notice.

Clause 8. Section 39 amended

This clause amends various provisions in section 39.

Subclause (1) inserts “his” in subsection 39(1).

Subclauses (2) – (5) make minor amendments of a grammatical nature to subsections 39(2) – (4).

Subclause (6) omits subsection 39(5) and inserts new subsections 39(5) – (7). These subsections allow the Darwin Port Corporation to cancel or suspend a stevedore’s licence as well as vary or impose a condition on the licence. Where the Darwin Port Corporation takes any of these actions, it must give written notice of its decision to the applicant including the reasons for the decision and that the applicant can appeal to the Tribunal. Where a licence is cancelled, the stevedore must surrender the licence to the Darwin Port Corporation within the period specified in the notice. An appeal to the Tribunal may be made within 28 days after receiving the notice.

Clause 9. Section 49 replaced

This clause repeals and substitutes a new section 49. The new section 49 provides the Administrator with powers to make Regulations under the Act, which may include prescribing any fees in relation to provisions in the Act.

Clause 10. Part 7 inserted

This clause inserts new Part 7 after section 51 dealing with transitional matters.

New subsection 52(1) provides that the amending provisions in subsections 38(4) – (7) apply to a licence application made on or after the commencement of the amending Act.

New subsection 52(2) allows for the Darwin Port Corporation to take into account a matter mentioned in subsection 38(5) that occurred before the commencement of the amending Act.

New subsection 52(3) provides that the amending provisions in subsections 39(5) – (7) apply to a decision under that section made on or after the commencement of the amending Act.

New subsection 52(4) clarifies that the existing provisions of the Darwin Port Corporation Act (rather than the amending provisions) will apply to stevedore licence applications made, but not yet decided, before the commencement of the amending Act.

New subsection 52(5) defines “amending Act” and “commencement”.

Clause 11. Act further amended

Schedule 1 contains further minor amendments to the Darwin Port Corporation Act.

PART 3 – AMENDMENT OF MARINE ACT

Clause 12. Act amended

This clause specifies that the Act being amended is the Marine Act.

Clause 13. Section 7 amended

This clause amends some of the definitions in section 7 of the Marine Act.

This clause also inserts new definitions for “appointed pilotage services provider”, “Darwin Port Corporation”, “harbourmaster”, “pilotage services”, “pilotage services provider” and “Port of Darwin”.

Clause 14. Section 11 amended

This clause clarifies the powers of the Marine Appeals Tribunal (the Tribunal) under the Act by omitting subsection 11(2) and inserting subsections 11(2) – (8).

New subsection 11(2) gives the Tribunal the power to hear an appeal on the decision to refuse, cancel or suspend a stevedore licence or vary or impose conditions on the licence under the Darwin Port Corporation Act.

New subsection 11(3) specifies that the Tribunal has the power of the original decision maker under the Marine Act and the Darwin Port Corporation Act. The Tribunal must, in writing, affirm, vary, substitute or remit for reconsideration any decision under its jurisdiction.

New subsection 11(4) provides the Tribunal may only consider information before the original decision maker at the time the decision was made. However, the Tribunal can request additional information from the appellant or decision maker.

New subsection 11(5) requires the Tribunal to determine the appeal within six months. However, the six months time limit does not include any period when the Tribunal has requested additional information and this information is not made available to the Tribunal.

New subsection 11(6) specifies that an appeal does not affect the operation of the original decision.

New subsection 11(7) provides the Tribunal with powers to make an interim decision affecting the operation of the original decision.

New subsection 11(8) specifies that the interim decision is subject to the conditions set by the Tribunal. The interim decision has effect for either the period specified by the Tribunal or until the appeal is determined.

New subsection 11(9) requires the Tribunal to provide written notice specifying the reasons of its decision to the appellant.

Clause 15. Section 93 amended

This clause includes minor amendments to section 93 of a grammatical nature as well as clarifying the penalty provisions.

Clause 16. Section 141 amended

This clause includes minor amendments to section 141 of a grammatical nature.

Clause 17. Section 161 amended

This clause omits the current subsection 161(1) and inserts a new section that provides that the harbourmaster is the pilotage authority for the Port of Darwin. This clause also includes amendments of a grammatical nature.

Clause 18. Section 166 replaced

This clause repeals and inserts a new section 166 that clarifies the procedure on entering a pilotage area, for the master of a ship. The master of a ship must present the ship at a boarding ground in the compulsory pilotage area, receive on board a licensed pilot and any other persons and equipment required by the pilot or pilotage services provider, provide any reasonable assistance required and give pilotage charge of the ship to the pilot.

Clause 19. Section 171 replaced

This clause repeals and inserts a new section 171.

The new subsection 171(1) provides for the pilotage authority to issue or renew a pilotage licence or pilotage exemption certificate following an application, if satisfied the applicant meets the requirements under regulations.

The new subsection 171(2) provides that the pilotage authority may issue or renew a pilotage licence subject to specified conditions including the licence applies only to specified vessels or to a specified part of the pilotage area.

The new subsection 171(3) provides that the pilotage authority may issue or renew a pilotage exemption certificate subject to specified conditions including the certificate applies only to a specified vessel or vessels, specified hours during a day or to a specified part of the pilotage area.

The new subsection 171(4) clarifies that a pilotage exemption certificate cannot be issued or renewed if the applicant is not the master of a vessel to which the certificate relates to.

The new subsection 171(5) provides that subsections 171(2) and (3) do not limit the conditions imposed by the pilotage authority for a pilotage licence or exemption certificate.

The new subsection 171(6) allows for regulations to provide for matters that the pilotage authority would take into account including qualifications or requirements when issuing or renewing a pilotage licence or exemption certificate or varying conditions on the licence or certificate.

Clause 20. Section 172 amended

This clause includes minor amendments to subsection 172(1) of a grammatical nature.

This clause also omits subsection 172(2) and inserts new subsections 172(2) and (3) which specify that a pilotage licence has effect for a period of three years while a pilotage exemption certificate has effect for a period of two years.

Clause 21. Section 173 amended

This clause amends minor typographical errors in section 173.

Clause 22. Section 174 repealed

This clause repeals section 174 as these provisions are included in the new section 181.

Clause 23. Section 178 amended

This clause includes minor amendments to subsections 178(a) and (b) of a grammatical nature.

This clause also inserts a new ground for an inquiry (new subsection 178(c)), by a pilotage authority, into misconduct by the licensed pilot – repeated failure to comply with a request by the pilotage authority.

Clause 24. Section 181 replaced

This clause repeals and inserts a new section 181.

The new subsection 181(1) provides that the section applies to a decision of a pilotage authority to issue, renew, suspend or cancel a pilotage licence or pilotage exemption certificate or to specify or vary a condition of a licence or certificate.

The new subsection 181(2) provides that the pilotage authority must give written notice of its decision to the applicant including the reasons for the decision and that the applicant can appeal to the Tribunal. Where a licence or certificate is cancelled, the holder must surrender the licence or certificate to the pilotage authority within the period specified in the notice.

The new subsection 181(3) provides that a person must not contravene the notice to surrender the licence or certificate to the pilotage authority and provides a penalty for any such contravention.

The new subsection 181(4) provides that an appeal to the Tribunal may be made within 28 days after receiving the notice.

Clause 25. Part VII, Division 4A inserted

This clause inserts a new Division 4A in Part VII, which only applies to pilotage services at the Port of Darwin.

The new section 181A provides the definitions for “appointed pilotage services provider” and “pilotage services provider”.

The new section 181B allows the Minister to appoint a pilotage services provider for the Port of Darwin who will have the exclusive right to provide pilotage services, subject to the conditions of the appointment. However, the Minister must be satisfied that the applicant has the necessary capability to conduct pilotage, each licensed pilot employed or engaged in conducting pilotage will be under the control of the applicant, the applicant is a suitable person and any other matters prescribed by regulation. The new subsection 181B(4) clarifies that the determination of the suitability of the applicant is to be based on criminal history checks and prior involvement in the management of companies. The appointment is subject to the conditions specified in the appointment and for the term specified in the appointment unless the appointment is terminated under section 181F or the appointed person resigns by written notice to the Minister. However, termination of or resignation by the appointed person does not prevent that person from being reappointed. The Minister must give written notice of his/her decision to the applicant including the reasons for the decision and that the applicant can appeal to the Tribunal. An appeal to the Tribunal may be made within 28 days after receiving the notice. The section also provides for regulations to be made on the conditions of the appointment (including insurance coverage, capability, qualifications and provision of reports to the Minister about performance) and matters to be considered by the Minister when specifying conditions and any other matters arising from the section.

The new section 181C provides that the Darwin Port Corporation is to be the appointed pilotage services provider at the Port for a period of ten years from the commencement of the section. The appointment is subject to sections 181F and 181G, any conditions specified by the Minister (including technical competency, qualifications and experience of persons providing the pilotage services as well as reporting requirements on the Darwin Port Corporation’s performance as the pilotage services provider) and the operation of section 15 of the Darwin Port Corporation Act. The section makes it clear that it does not prevent the reappointment of the Darwin Port Corporation under section 181B after the ten year period. Regulations can be made for matters arising from this section.

The new section 181D makes it an offence for a person who is not the appointed pilotage services provider to provide pilotage services in the Port of Darwin. It is also an offence for the appointed pilotage services provider to contravene a condition of appointment. The section prescribes the penalties for these offences.

The new section 181E allows the appointed pilotage services provider, with the Minister’s written approval, and by Gazette notice, to fix the rate of charges for their service. The section makes the owner, agent or master of a ship liable to pay the charges. The appointed pilotage services provider may retain the charges payable and collected.

The new section 181F allows the Minister to terminate or suspend the appointment of the pilotage services provider if the Minister considers the person has contravened a condition of the appointment or, for a person other than the Darwin Port Corporation, no longer meets the requirements for the appointment. The Minister can vary a condition of the appointment if the variation is considered necessary to ensure compliance with the Act or other circumstances prescribed in regulation. The Minister must give written notice of his/her decision to terminate, suspend or vary a condition of the appointment including the reasons for the decision and that the applicant can appeal to the Tribunal. An appeal to the Tribunal may be made within 28 days after receiving the notice.

The new section 181G allows for regulations to be made for a matter arising from the appointment of a pilotage services provider.

Clause 26. Sections 184 and 185 replaced

This clause repeals sections 184 and 185 and inserts a new section 184.

The new subsection 184(1) provides that this section applies to a pilotage area other than the Port of Darwin.

The new subsection 184(2) allows the Minister to approve the provision of pilotage services by the pilotage authority.

The new subsection 184(3) provides that the pilotage authority may, with the Minister’s written approval, and by Gazette notice, fix the rate of charges for providing pilotage services.

The new subsection 184(4) makes the owner, agent or master of a ship liable to pay the charges fixed under subsection 184(4).

The new subsection 184(5) allows the pilotage authority to retain the charges payable and collected.

The new subsection 184(6) allows for regulations to be made prescribing matters arising from this section.

Clause 27. Section 189 amended

This clause inserts additional averments by the prosecutor that are to be taken as prima facie evidence of the matters averred. These include that the specified person was or was not: a licensed pilot or the holder of a pilotage certificate; the appointed pilotage services provider; and approved to provide pilotage services in a pilotage area. Other amendments are of a grammatical nature.

Clause 28. Section 191A amended

This clause omits and inserts new sections to the list of regulatory offences and includes other amendments of a grammatical nature.

Clause 29. Part 10 inserted

This clause inserts new Part 10 after section 211 dealing with transitional matters.

New subsection 212(1) provides that the amended section 11 applies to an appeal made under that section on or after the commencement of the amending Act.

New subsection 212(2) provides that the amended section 172 applies to a pilotage licence or pilotage exemption certificate issued on or after the commencement of the amending Act.

New subsection 212(3) provides that the amended section 181 applies to a decision of the pilotage authority made under that section on or after the commencement of the amending Act.

New subsection 212(4) provides that Part 7, Division 4A applies to the provision of pilotage services on or after the commencement of the amending Act.

New subsection 212(5) provides that subsection 212(4) does not prevent the Minister from taking into account a matter mentioned in subsection 181B(4) that occurred before the commencement of the amending Act.

New subsection 212(6) defines “amending Act” and “commencement”.

Clause 30. Act further amended

Schedule 2 contains further minor amendments to the Marine Act.

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