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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Ports Legislation Amendment Bill 2017
Contents
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
Part 2 -- Jetties Act 1926 amended
3. Act amended 3
4. Section 3 amended 3
5. Section 4 amended 3
6. Section 5 amended 3
7. Section 6 amended 4
8. Section 7AA inserted 4
7AA. Leases and licences cannot be granted in
respect of jetties in port authority ports 4
9. Section 8 amended 4
10. Section 8A amended 5
11. Section 9 amended 5
12. Section 10 amended 5
13. Section 11 amended 5
14. Section 12 amended 6
15. Sections 13 and 14 inserted 6
13. Transitional provision for Ports Legislation
Amendment Act 2017 6
14. Validation of prescribed instruments 15
Part 3 -- Lights (Navigation
Protection) Act 1938 amended
16. Act amended 17
17. Section 2 amended 17
18. Section 3 amended 18
19. Section 4 amended 18
20. Section 7 amended 18
52--2 page i
Ports Legislation Amendment Bill 2017
Contents
21. Sections 8 and 9 inserted 19
8. Delegation 19
9. Regulations 19
22. Various references to "port authority" replaced 20
Part 4 -- Marine and Harbours
Act 1981 amended
Division 1 -- Preliminary
23. Act amended 21
Division 2 -- General
24. Section 3 amended 21
25. Section 5 amended 21
26. Section 5A amended 23
27. Section 5B amended 23
28. Section 14 amended 23
29. Section 14A amended 24
30. Section 18A amended 24
31. Section 18B amended 25
32. Section 19 amended 25
33. Various references to "authorised officer" replaced 26
Division 3 -- Amendments related to Part 6
34. Section 5A deleted 27
35. Section 14A deleted 27
Part 5 -- Marine Navigational Aids
Act 1973 amended
36. Act amended 28
37. Section 2 amended 28
38. Section 3 amended 28
39. Section 3A amended 29
40. Section 5 amended 29
41. Sections 6 and 7 inserted 30
6. Delegation 30
7. Regulations 30
Part 6 -- Port Authorities
Act 1999 amended
42. Act amended 32
43. Section 3 amended 32
44. Section 25 amended 32
page ii
Ports Legislation Amendment Bill 2017
Contents
45. Section 31 amended 33
46. Section 40 amended 33
47. Section 60 amended 33
48. Section 96 amended 34
49. Section 138 amended 34
50. Schedule 1 amended 34
51. Schedule 8 Division 2 inserted 36
Division 2 -- Provisions for Ports Legislation
Amendment Act 2017
Subdivision 1 -- Preliminary
52. Terms used 36
Subdivision 2 -- Transfer of control and
management of some existing ports to port
authorities
53. Terms used 39
54. Port transfer: preliminary requirements 39
55. Port authority to implement and facilitate
port transfer 40
56. Cessation of responsibility for port 40
57. Vesting of land, seabed and water in port
authority 41
58. Minister may make transitional orders 41
59. Amending transitional order 43
60. Provisions as to assets and liabilities 45
61. Provisions as to agreements and
proceedings 47
62. Navigational aids 48
63. Harbour masters and deputy harbour
masters 48
64. Pilotage: existing licences 48
65. Pilotage: existing exemption certificates 50
66. Jetty licences 51
Subdivision 3 -- General provisions
67. Registration of documents 53
68. Exemption from State taxes 53
69. Transitional regulations 54
70. Saving 55
71. Effect of affecting provisions 55
72. No exclusion of operation of affecting
provisions 55
73. Effect of continued easements, leases and
licences 56
74. Government agreements not affected 56
75. Preservation of mining, petroleum and
other rights 56
76. Transitional provision for Schedule 9 57
page iii
Ports Legislation Amendment Bill 2017
Contents
52. Schedule 9 amended 57
Part 7 -- Shipping and Pilotage
Act 1967 amended
53. Act amended 59
54. Long title amended 59
55. Section 3 amended 59
56. Section 7B amended 59
57. Section 9A amended 59
58. Section 10 amended 60
59. Section 12 amended 60
60. Various references to "fishing boat harbour"
replaced 60
61. Various references to "Department" replaced 61
Part 8 -- Western Australian Marine
Act 1982 amended
62. Act amended 62
63. Section 118 amended 62
64. Section 132 amended 62
page iv
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in Committee)
Ports Legislation Amendment Bill 2017
A Bill for
An Act to amend --
the Jetties Act 1926; and
the Lights (Navigation Protection) Act 1938; and
the Marine and Harbours Act 1981; and
the Marine Navigational Aids Act 1973; and
the Port Authorities Act 1999; and
the Shipping and Pilotage Act 1967; and
the Western Australian Marine Act 1982.
The Parliament of Western Australia enacts as follows:
page 1
Ports Legislation Amendment Bill 2017
Part 1 Preliminary
s. 1
1 Part 1 -- Preliminary
2 1. Short title
3 This is the Ports Legislation Amendment Act 2017.
4 2. Commencement
5 This Act comes into operation as follows --
6 (a) Part 1 -- on the day on which this Act receives the
7 Royal Assent (assent day);
8 (b) Parts 2, 3, 4 (other than Division 3), 5, 6 (other than
9 section 50), 7 (other than section 56) and 8 -- on the
10 day after assent day;
11 (c) Part 4 Division 3 -- when section 50(3)(b) comes into
12 operation;
13 (d) section 56 --
14 (i) if the Shipping and Pilotage Amendment
15 Act 2006 section 8 (section 8) comes into
16 operation before the day on which section 60
17 comes into operation -- when section 60 comes
18 into operation; or
19 (ii) otherwise -- immediately after section 8 comes
20 into operation;
21 (e) the rest of the Act -- on a day fixed by proclamation,
22 and different days may be fixed for different provisions.
page 2
Ports Legislation Amendment Bill 2017
Jetties Act 1926 amended Part 2
s. 3
1 Part 2 -- Jetties Act 1926 amended
2 3. Act amended
3 This Part amends the Jetties Act 1926.
4 4. Section 3 amended
5 In section 3 insert in alphabetical order:
6
7 port authority means a port authority established under
8 the Port Authorities Act 1999;
9
10 5. Section 4 amended
11 (1) In section 4(5) delete "and preservation" and insert:
12
13 preservation, replacement and removal
14
15 (2) In section 4(15) delete "$500" and insert:
16
17 a fine of $12 000
18
19 6. Section 5 amended
20 (1) In section 5(1)(d):
21 (a) after "(13)," insert:
22
23 (13a),
24
25 (b) delete "jetties;" and insert:
26
27 jetties.
28
page 3
Ports Legislation Amendment Bill 2017
Part 2 Jetties Act 1926 amended
s. 7
1 (2) Delete section 5(1)(e).
2 7. Section 6 amended
3 (1) Delete section 6(1)(a).
4 (2) After section 6(2) insert:
5
6 (3) Subsection (1)(c) does not affect the operation of the
7 Marine and Harbours Act 1981.
8
9 Note: The heading to amended section 6 is to read:
10 Acquisition, lease, closure and removal of jetties
11 8. Section 7AA inserted
12 After section 7 insert:
13
14 7AA. Leases and licences cannot be granted in respect of
15 jetties in port authority ports
16 (1) This Act, other than sections 13 and 14, does not apply
17 to a jetty wholly or partly within the boundaries of a
18 port as defined in the Port Authorities Act 1999
19 section 3(1), and a lease or licence cannot be granted
20 under this Act in respect of such a jetty.
21 (2) Subsection (1) is enacted to avoid doubt and does not
22 limit the Port Authorities Act 1999 section 32.
23
24 9. Section 8 amended
25 In section 8 in the Penalty delete "$2 000." and insert:
26
27 a fine of $12 000.
28
page 4
Ports Legislation Amendment Bill 2017
Jetties Act 1926 amended Part 2
s. 10
1 10. Section 8A amended
2 Before section 8A(1) insert:
3
4 (1A) In this section --
5 materials includes fixtures and fittings.
6
7 11. Section 9 amended
8 In section 9:
9 (a) delete "$500" and insert:
10
11 a fine of $12 000
12
13 (b) delete "the commissioners of a harbour trust or members
14 of the harbour board." and insert:
15
16 a port authority.
17
18 12. Section 10 amended
19 In section 10 in the Penalty delete "$2 000." and insert:
20
21 a fine of $12 000.
22
23 13. Section 11 amended
24 In section 11 in the Penalty delete "$2 000." and insert:
25
26 a fine of $12 000.
27
page 5
Ports Legislation Amendment Bill 2017
Part 2 Jetties Act 1926 amended
s. 14
1 14. Section 12 amended
2 In section 12(2) delete "$500" and insert:
3
4 a fine of $12 000
5
6 15. Sections 13 and 14 inserted
7 After section 12 insert:
8
9 13. Transitional provision for Ports Legislation
10 Amendment Act 2017
11 (1) In this section --
12 Agreements Minister means the Minister administering
13 the Government Agreements Act 1979;
14 Government agreement means an agreement referred
15 to in paragraph (a) of the definition of Government
16 agreement in the Government Agreements Act 1979
17 section 2 and, if the agreement has been varied, means
18 the agreement as varied;
19 licence means a licence listed in the Table and, if any
20 such licence has been renewed or varied, includes the
21 licence as renewed or varied;
22 relevant port authority, in relation to a licence, means
23 the port authority mentioned in the item of the Table
24 that lists that licence;
25 renew a licence includes --
26 (a) grant an extension of its term; and
27 (b) grant a further licence to replace it;
28 specified means specified by the regulations made for
29 this section;
30 Table means the Table to subsection (2).
page 6
Ports Legislation Amendment Bill 2017
Jetties Act 1926 amended Part 2
s. 15
1 (2) The licences in the Table are listed for the purposes of
2 this section.
3 Table
Item Licence Port authority
1 LM4207 to Hamersley Pilbara Ports
Iron Pty Ltd relating Authority
to the ore loading
wharf at Parker Point,
Dampier
2 LM4149 to Hamersley Pilbara Ports
Iron Pty Ltd relating Authority
to the ore loading
wharf and layby berth
at East Intercourse
Island, Dampier
3 LM4151 to Hamersley Pilbara Ports
Iron Pty Ltd relating Authority
to the tug pens at East
Intercourse Island,
Dampier
4 LM0342 to Woodside Pilbara Ports
Petroleum Authority
Development Pty Ltd,
Woodside Oil Ltd,
Mid-Eastern Oil Ltd,
Shell Development
(Australia) Pty Ltd,
BHP Petroleum
(North West Shelf)
Pty Ltd, BP
Developments
Australia Limited,
page 7
Ports Legislation Amendment Bill 2017
Part 2 Jetties Act 1926 amended
s. 15
Item Licence Port authority
Chevron Asiatic
Limited and Japan
Australia LNG
(MIMI) Pty Ltd
relating to the jetty
(loading
facility-Withnell Bay)
at Burrup Peninsula,
Dampier
5 LM0342 to Woodside Pilbara Ports
Petroleum Authority
Development Pty Ltd,
Woodside Oil Ltd,
Mid-Eastern Oil Ltd,
Shell Development
(Australia) Pty Ltd,
BHP Petroleum
(North West Shelf)
Pty Ltd, BP
Developments
Australia Limited,
Chevron Asiatic
Limited and Japan
Australia LNG
(MIMI) Pty Ltd
relating to the jetty
(LPG product loading
facility) at Mermaid
Sound, Burrup
Peninsula, Dampier
6 LM0342 to Woodside Pilbara Ports
Petroleum Authority
Development Pty Ltd,
page 8
Ports Legislation Amendment Bill 2017
Jetties Act 1926 amended Part 2
s. 15
Item Licence Port authority
Woodside Oil Ltd,
Mid-Eastern Oil Ltd,
Shell Development
(Australia) Pty Ltd,
BHP Petroleum
(North West Shelf)
Pty Ltd, BP
Developments
Australia Limited,
Chevron Asiatic
Limited and Japan
Australia LNG
(MIMI) Pty Ltd
relating to the product
loading facility (LNG)
at Burrup Peninsula,
Dampier
7 LM0342 to Woodside Pilbara Ports
Petroleum Authority
Development Pty Ltd,
Woodside Oil Ltd,
Mid-Eastern Oil Ltd,
Shell Development
(Australia) Pty Ltd,
BHP Petroleum
(North West Shelf)
Pty Ltd, BP
Developments
Australia Limited,
Chevron Asiatic
Limited and Japan
Australia LNG
(MIMI) Pty Ltd
relating to the supply
page 9
Ports Legislation Amendment Bill 2017
Part 2 Jetties Act 1926 amended
s. 15
Item Licence Port authority
base refuelling facility
at King Bay, Burrup
Peninsula, Dampier
8 LM0342 to Woodside Pilbara Ports
Petroleum Authority
Development Pty Ltd,
Woodside Oil Ltd,
Mid-Eastern Oil Ltd,
Shell Development
(Australia) Pty Ltd,
BHP Petroleum
(North West Shelf)
Pty Ltd, BP
Developments
Australia Limited,
Chevron Asiatic
Limited and Japan
Australia LNG
(MIMI) Pty Ltd
relating to the small
boat landing facility at
King Bay, Burrup
Peninsula, Dampier
9 LM1484 to Dampier Pilbara Ports
Salt Limited relating Authority
to one loading wharf
and one service wharf
at Mistaken Island,
Dampier
10 LM1829 to BHP Pilbara Ports
Billiton Minerals Pty Authority
Ltd relating to the
page 10
Ports Legislation Amendment Bill 2017
Jetties Act 1926 amended Part 2
s. 15
Item Licence Port authority
barge loading pad and
slipway at Burgess
Point, Port Hedland
11 LM1912 to BHP Pilbara Ports
Minerals Limited, Authority
Mitsui-Itochu Iron Pty
Ltd and Itochu
Minerals and Energy
of Australia Pty Ltd
relating to the jetty
and wharf at Nelson
Point, Port Hedland
12 LM3893 to BHP Pilbara Ports
Billiton Minerals Pty Authority
Ltd, Mitsui-Itochu
Iron Pty Ltd and
Itochu Minerals and
Energy of Australia
Pty Ltd relating to the
wharf at Lot 1408
Nelson Point, Port
Hedland
13 LM1975 to Mermaid Pilbara Ports
Marine Australia Pty Authority
Ltd relating to the
jetty at King Bay
Groyne, Dampier
14 LM0219 to the Pilbara Ports
Hampton Harbour Authority
Boat and Sailing Club
Inc relating to
page 11
Ports Legislation Amendment Bill 2017
Part 2 Jetties Act 1926 amended
s. 15
Item Licence Port authority
4 pontoons, 5 ramps
and one berth at
Hampton Harbour,
Dampier
15 LM3771 to the Pilbara Ports
Hampton Harbour Authority
Boat and Sailing Club
Inc relating to the fuel
pipeline at Hampton
Harbour, Dampier
16 LM1289 to the City of Pilbara Ports
Karratha relating to Authority
4 lane boat ramp and
2 finger jetties at
Dampier
17 LM3910 to the Town Pilbara Ports
of Port Hedland Authority
relating to the boat
ramp at Lot 250
Oyster Point,
Reserve 30909,
Finucane Island,
Port Hedland
18 LM3191 to the Shire Kimberley Ports
of Broome relating to Authority
the boat ramp at Town
Beach Reserve,
Broome
page 12
Ports Legislation Amendment Bill 2017
Jetties Act 1926 amended Part 2
s. 15
Item Licence Port authority
19 LM4595 to the City of Mid West Ports
Greater Geraldton Authority
relating to the jetty
and 2 boat ramps
adjacent to Francis
Street, Geraldton
20 LM1902 to the City of Southern Ports
Albany relating to the Authority
boat launching ramp
and walkway at Little
Grove, Albany
21 LM2864 to the City of Southern Ports
Albany relating to the Authority
jetty at Ellen Cove,
Middleton Beach,
Albany
22 LM4602 to the City of Southern Ports
Albany relating to the Authority
swimming enclosure
at Ellen Cove,
Middleton Beach,
Albany
23 LM1270 to the Shire Southern Ports
of Esperance relating Authority
to the Tanker Jetty at
Esperance
page 13
Ports Legislation Amendment Bill 2017
Part 2 Jetties Act 1926 amended
s. 15
1 (3) On and from the day specified for this subsection in
2 respect of a licence the following provisions apply to
3 and in relation to that licence --
4 (a) any power exercisable by, or in relation to, the
5 grantor of the licence, whether --
6 (i) under the licence; or
7 (ii) under this Act in relation to the licence,
8 is exercisable by, or in relation to, the relevant
9 port authority instead of the grantor of the
10 licence;
11 (b) the functions of the relevant port authority are
12 to be taken to extend to the exercise of powers
13 for the purposes of this subsection;
14 (c) it is to be taken to be a condition of the licence
15 that the licensee must comply with any
16 direction given by the relevant port authority to
17 the extent that the direction is given to
18 facilitate --
19 (i) compliance by the relevant port
20 authority with a requirement under the
21 Port Authorities Act 1999; or
22 (ii) performance by the relevant port
23 authority of its functions;
24 (d) the rights and powers that the licensee had
25 under the licence before the specified day are
26 not adversely affected except to the extent (if
27 any) requested or agreed under paragraph (e);
28 (e) the power of the relevant port authority to
29 renew or vary the licence may only be
30 exercised at the request or with the agreement
31 of the licensee.
32 (4) This section does not prejudice or in any way affect
33 any right or obligation of a party to a Government
34 agreement.
page 14
Ports Legislation Amendment Bill 2017
Jetties Act 1926 amended Part 2
s. 15
1 (5) A day cannot be specified for subsection (3) in respect
2 of a licence listed in any of items 1 to 12 of the Table
3 except with the written concurrence of the Agreements
4 Minister.
5 14. Validation of prescribed instruments
6 (1) In this section --
7 instrument means a lease or licence granted, or
8 purporting to have been granted, under this Act in
9 respect of a jetty within or partly within the boundaries
10 of a port authority as defined in the Port Authorities
11 Act 1999 section 3(1) and, if any such lease or licence
12 has been renewed or varied, includes the lease or
13 licence as renewed or varied.
14 (2) On and from the day on which regulations prescribing
15 an instrument for the purposes of this section come into
16 operation --
17 (a) the instrument is to be taken to be, and since the
18 commencement of the instrument to have
19 always been, as valid and effective as if the
20 jetty to which the instrument relates is, and
21 since the commencement of the instrument has
22 always been, a jetty to which this Act applies;
23 and
24 (b) the rights, obligations and liabilities of all
25 persons under the instrument (including a right
26 to renew the instrument) are to be taken to be,
27 and since the commencement of the instrument
28 to have always been, the same as if the jetty to
29 which the instrument relates is, and since the
30 commencement of the instrument has always
31 been, a jetty to which this Act applies; and
32 (c) anything done, or purportedly done, before that
33 day as a result or consequence of, or in reliance
34 on or in relation to, the instrument (including a
page 15
Ports Legislation Amendment Bill 2017
Part 2 Jetties Act 1926 amended
s. 15
1 renewal, or purported renewal, of the
2 instrument) is to be taken to be, and to have
3 always been, as valid and effective as it would
4 have been if the jetty to which the instrument
5 relates were a jetty to which this Act applies
6 when the thing was done or purportedly done.
7 (3) In subsection (2)(c) a reference to the doing of
8 anything includes a reference to an omission to do
9 anything.
10
page 16
Ports Legislation Amendment Bill 2017
Lights (Navigation Protection) Act 1938 amended Part 3
s. 16
1 Part 3 -- Lights (Navigation Protection)
2 Act 1938 amended
3 16. Act amended
4 This Part amends the Lights (Navigation Protection) Act 1938.
5 17. Section 2 amended
6 (1) In section 2 delete the definitions of:
7 Port Authority
8 Port or Harbour
9 (2) In section 2 insert in alphabetical order:
10
11 chief executive officer means the chief executive
12 officer of the department;
13 department means the department of the Public Service
14 principally assisting the Minister in the administration
15 of this Act;
16 harbour includes a boat harbour declared under the
17 Shipping and Pilotage Act 1967 section 10(2);
18 port includes --
19 (a) a port declared under the Shipping and Pilotage
20 Act 1967 section 10(1); and
21 (b) a port as defined in the Port Authorities
22 Act 1999 section 3(1);
23 port manager means --
24 (a) in the case of a port under the control of a port
25 authority established under the Port Authorities
26 Act 1999 -- that port authority; or
27 (b) in the case of any other port or a harbour -- the
28 chief executive officer.
29
page 17
Ports Legislation Amendment Bill 2017
Part 3 Lights (Navigation Protection) Act 1938 amended
s. 18
1 18. Section 3 amended
2 In section 3(4) delete the Penalty and insert:
3
4 Penalty for this subsection: a fine of $12 000.
5 Daily penalty for this subsection: a fine of $600.
6
7 19. Section 4 amended
8 In section 4(3) delete the Penalty and insert:
9
10 Penalty for this subsection: a fine of $5 000.
11
12 Note: The heading to amended section 4 is to read:
13 Port manager may cause requisitions of notice to be carried out
14 20. Section 7 amended
15 In section 7:
16 (a) delete paragraph (a) and insert:
17
18 (a) in the case of a port under the control and
19 management of a port authority established
20 under the Port Authorities Act 1999 -- by a
21 person authorised to do so by the port authority;
22 or
23
24 (b) in paragraph (b) delete the passage that begins with
25 "officer" and ends with "1967." and insert:
26
27 officer.
28
page 18
Ports Legislation Amendment Bill 2017
Lights (Navigation Protection) Act 1938 amended Part 3
s. 21
1 21. Sections 8 and 9 inserted
2 After section 7 insert:
3
4 8. Delegation
5 (1) The chief executive officer may delegate to a person
6 any power or duty the chief executive officer has under
7 another provision of this Act.
8 (2) The delegation must be in writing signed by the chief
9 executive officer.
10 (3) A person to whom a power or duty is delegated under
11 this section cannot delegate that power or duty.
12 (4) A person exercising or performing a power or duty that
13 has been delegated to the person under this section, is
14 to be taken to do so in accordance with the terms of the
15 delegation unless the contrary is shown.
16 (5) Nothing in this section limits the ability of the chief
17 executive officer to perform a function through an
18 officer of the department or an agent.
19 9. Regulations
20 (1) The Governor may make regulations prescribing all
21 matters that are required or permitted by this Act to be
22 prescribed, or are necessary or convenient to be
23 prescribed for giving effect to the purposes of this Act.
24 (2) Without limiting subsection (1), the regulations may
25 provide that contravention of a regulation is an offence
26 and, for an offence against the regulations, provide for
27 a penalty not exceeding a fine of $12 000.
28
page 19
Ports Legislation Amendment Bill 2017
Part 3 Lights (Navigation Protection) Act 1938 amended
s. 22
1 22. Various references to "port authority" replaced
2 In the provisions listed in the Table:
3 (a) delete "port authority" (each occurrence) and insert:
4
5 port manager
6
7 (b) delete "port authority," (each occurrence) and insert:
8
9 port manager,
10
11 (c) delete "port authority." and insert:
12
13 port manager.
14
15 Table
s. 3(1) s. 4(1)
s. 4(2) s. 4(3)
s. 6
page 20
Ports Legislation Amendment Bill 2017
Marine and Harbours Act 1981 amended Part 4
Preliminary Division 1
s. 23
1 Part 4 -- Marine and Harbours Act 1981 amended
2 Division 1 -- Preliminary
3 23. Act amended
4 This Part amends the Marine and Harbours Act 1981.
5 Division 2 -- General
6 24. Section 3 amended
7 (1) In section 3 delete the definition of Port Authority.
8 (2) In section 3 insert in alphabetical order:
9
10 harbour includes a boat harbour declared under the
11 Shipping and Pilotage Act 1967 section 10(2);
12 inspector means an inspector designated under the
13 Western Australian Marine Act 1982 section 117;
14 port includes --
15 (a) a port declared under the Shipping and Pilotage
16 Act 1967 section 10(1); and
17 (b) a port as defined in the Port Authorities
18 Act 1999 section 3(1);
19 Port Authority means a port authority established
20 under the Port Authorities Act 1999.
21
22 25. Section 5 amended
23 (1) In section 5(1):
24 (a) in paragraph (h) delete "fishing boat harbours within the
25 State and to provide" and insert:
26
27 harbours within the State and to provide, control,
28 manage, operate and maintain
29
page 21
Ports Legislation Amendment Bill 2017
Part 4 Marine and Harbours Act 1981 amended
Division 2 General
s. 25
1 (b) after paragraph (h) insert:
2
3 (ha) to provide for the commercial development and
4 promotion of the harbours referred to in
5 paragraph (h); and
6
7 (c) in paragraph (i) delete "to construct, provide," and
8 insert:
9
10 subject to subsection (1A), to construct, provide,
11 control, manage, operate,
12
13 (d) in paragraph (i)(iv) delete "fishing industry" and insert:
14
15 boating
16
17 (e) after paragraph (i) insert:
18
19 (ia) to provide for the commercial development and
20 promotion of the facilities and services referred
21 to in paragraph (i); and
22
23 (f) in paragraph (j) delete "preserve and protect" and insert:
24
25 preserve, protect, control, manage, operate and maintain
26 any
27
28 (2) After section 5(1) insert:
29
30 (1A) Despite subsection (1), the Department cannot
31 construct, provide, control, manage, operate or
32 maintain port works in relation to a port (as defined in
33 the Port Authorities Act 1999 section 3(1)) without the
page 22
Ports Legislation Amendment Bill 2017
Marine and Harbours Act 1981 amended Part 4
General Division 2
s. 26
1 agreement of the Port Authority that controls and
2 manages that port.
3
4 (3) In section 5(1) after each of paragraphs (a) to (i) insert:
5
6 and
7
8 26. Section 5A amended
9 In section 5A(2) delete "ports of Broome and Wyndham as
10 ports." and insert:
11
12 port of Wyndham as a port.
13
14 Note: The heading to amended section 5A is to read:
15 Provision of services at Wyndham
16 27. Section 5B amended
17 In section 5B(3) delete the Penalty and insert:
18
19 Penalty for this subsection: a fine of $5 000.
20
21 28. Section 14 amended
22 In section 14(2) delete "trust accounts." and insert:
23
24 agency special purpose accounts.
25
page 23
Ports Legislation Amendment Bill 2017
Part 4 Marine and Harbours Act 1981 amended
Division 2 General
s. 29
1 29. Section 14A amended
2 In section 14A(1) delete "ports of Broome and" and insert:
3
4 port of
5
6 30. Section 18A amended
7 (1) In section 18A(1) delete "authorised officer is a reference to an
8 officer of the Department" and insert:
9
10 authorised person is a reference to a person
11
12 (2) In section 18A(2) after "18B," insert:
13
14 an inspector or
15
16 (3) In section 18A(11) and (12) delete "subsection (1)" and insert:
17
18 subsection (2)
19
20 (4) After section 18A(12) insert:
21
22 (13) An inspector is to produce the certificate issued to that
23 inspector under the Western Australian Marine
24 Act 1982 section 118 whenever required to do so by a
25 person to whom an infringement notice has been or is
26 about to be given.
27
page 24
Ports Legislation Amendment Bill 2017
Marine and Harbours Act 1981 amended Part 4
General Division 2
s. 31
1 31. Section 18B amended
2 (1) In section 18B(2):
3 (a) in paragraph (b)(i) after "identifies to" insert:
4
5 an inspector or
6
7 (b) in paragraph (b)(ii) after "satisfies" insert:
8
9 an inspector or
10
11 (2) In section 18B(3) delete the definition of authorised officer.
12 (3) In section 18B(3) insert in alphabetical order:
13
14 authorised person means an authorised person
15 appointed for the purposes of section 18A(2);
16
17 32. Section 19 amended
18 (1) In section 19(1):
19 (a) delete paragraph (g) and insert:
20
21 (g) prescribing the fees and charges to be paid for
22 the following --
23 (i) any use of a departmental area, or a
24 facility within it, including, but not
25 limited to, the mooring, berthing or
26 storing of vessels within the
27 departmental area;
28 (ii) services provided by the Department;
page 25
Ports Legislation Amendment Bill 2017
Part 4 Marine and Harbours Act 1981 amended
Division 2 General
s. 33
1 (iii) the parking of vehicles on departmental
2 land;
3 and
4
5 (b) in paragraph (h) delete "$500" and insert:
6
7 $12 000
8
9 (2) In section 19(1) after each of paragraphs (a) to (f) insert:
10
11 and
12
13 33. Various references to "authorised officer" replaced
14 In the provisions listed in the Table:
15 (a) delete "authorised officer" (each occurrence) and insert:
16
17 authorised person
18
19 (b) delete "authorised officers" (each occurrence) and
20 insert:
21
22 authorised persons
23
24 Table
s. 18A(1) s. 18A(2)
s. 18A(3)(b)(ii) s. 18A(3)(b)(iii)
s. 18A(5) s. 18A(7)
page 26
Ports Legislation Amendment Bill 2017
Marine and Harbours Act 1981 amended Part 4
Amendments related to Part 6 Division 3
s. 34
s. 18A(11) s. 18A(12)
s. 18B(2)(b)(i) s. 18B(2)(b)(ii)
1 Division 3 -- Amendments related to Part 6
2 34. Section 5A deleted
3 Delete section 5A.
4 35. Section 14A deleted
5 Delete section 14A.
page 27
Ports Legislation Amendment Bill 2017
Part 5 Marine Navigational Aids Act 1973 amended
s. 36
1 Part 5 -- Marine Navigational Aids Act 1973 amended
2 36. Act amended
3 This Part amends the Marine Navigational Aids Act 1973.
4 37. Section 2 amended
5 (1) In section 2 delete the definition of port authority.
6 (2) In section 2 insert in alphabetical order:
7
8 chief executive officer means the chief executive
9 officer of the department;
10 port authority means a port authority established under
11 the Port Authorities Act 1999.
12
13 38. Section 3 amended
14 (1) In section 3(1):
15 (a) delete the passage that begins with "The" and ends with
16 "thereto --" and insert:
17
18 The chief executive officer, and a port authority in
19 relation to the approaches to a port under its control and
20 management --
21
22 (b) delete paragraph (a) and insert:
23
24 (a) may, subject to subsection (1A), establish any
25 marine navigational aid; and
26
page 28
Ports Legislation Amendment Bill 2017
Marine Navigational Aids Act 1973 amended Part 5
s. 39
1 (2) After section 3(1) insert:
2
3 (1A) The chief executive officer cannot establish a
4 navigational aid within the boundaries of a port under
5 the control and management of a port authority without
6 the agreement of that port authority.
7
8 (3) In section 3(2) and (3) delete "department" and insert:
9
10 chief executive officer
11
12 (4) In section 3(1) after each of paragraphs (aa) and (b) insert:
13
14 and
15
16 39. Section 3A amended
17 In section 3A(1) after "control" insert:
18
19 and management
20
21 40. Section 5 amended
22 (1) In section 5(1) after "which" insert:
23
24 causes damage to or
25
26 (2) In section 5(1) delete the Penalty and insert:
27
28 Penalty for this subsection: a fine of $12 000.
29
page 29
Ports Legislation Amendment Bill 2017
Part 5 Marine Navigational Aids Act 1973 amended
s. 41
1 41. Sections 6 and 7 inserted
2 After section 5 insert:
3
4 6. Delegation
5 (1) The chief executive officer may delegate to an officer
6 of the department any power or duty the chief
7 executive officer has under another provision of
8 this Act.
9 (2) The delegation must be in writing signed by the chief
10 executive officer.
11 (3) A person to whom a power or duty is delegated under
12 this section cannot delegate that power or duty.
13 (4) A person exercising or performing a power or duty that
14 has been delegated to the person under this section, is
15 to be taken to do so in accordance with the terms of the
16 delegation unless the contrary is shown.
17 (5) Nothing in this section limits the ability of the chief
18 executive officer to perform a function through an
19 officer of the department or an agent.
20 7. Regulations
21 (1) The Governor may make regulations prescribing all
22 matters that are required or permitted by this Act to be
23 prescribed, or are necessary or convenient to be
24 prescribed for giving effect to the purposes of this Act.
25 (2) Without limiting subsection (1), the regulations may
26 provide for the following --
27 (a) require a person to report the details of an
28 incident that results in damage to a marine
29 navigational aid;
page 30
Ports Legislation Amendment Bill 2017
Marine Navigational Aids Act 1973 amended Part 5
s. 41
1 (b) prohibit a person from attaching or fastening a
2 vessel or any other thing to a marine
3 navigational aid;
4 (c) require a person, when directed to do so by an
5 inspector or an authorised person, to detach or
6 unfasten a vessel or any other thing attached or
7 fastened to a marine navigational aid;
8 (d) prohibit a person from using a vessel or any
9 other thing in a way that might damage a
10 marine navigational aid;
11 (e) provide that contravention of a regulation is an
12 offence and, for an offence against the
13 regulations, provide for a penalty not exceeding
14 a fine of $12 000;
15 (f) provide that a person convicted of an offence
16 against the regulations may be ordered to pay
17 the amount of the damage to a marine
18 navigational aid caused by the commission of
19 the offence, or the cost of repairing, replacing
20 or reinstating the aid.
21
page 31
Ports Legislation Amendment Bill 2017
Part 6 Port Authorities Act 1999 amended
s. 42
1 Part 6 -- Port Authorities Act 1999 amended
2 42. Act amended
3 This Part amends the Port Authorities Act 1999.
4 43. Section 3 amended
5 (1) In section 3(1) delete the definition of vested.
6 (2) In section 3(1) insert in alphabetical order:
7
8 vested means vested in a port authority under this Act;
9 vested land includes vested seabed and vested water.
10
11 (3) In section 3(1) in the definition of port land delete "land or land
12 acquired by a port authority;" and insert:
13
14 land, land acquired by a port authority or other land that
15 becomes the property of a port authority under this Act;
16
17 44. Section 25 amended
18 (1) Delete section 25(1)(b) and insert:
19
20 (b) in the case of a port that was named in
21 Schedule 1 before the coming into operation of
22 the Ports and Marine Legislation Amendment
23 Act 2003 section 4, all navigational aids that,
24 immediately before the coming into operation
25 of that section --
26 (i) were in the port, or used in connection
27 with navigation into or out of the port;
28 and
29 (ii) belonged to the State;
30
page 32
Ports Legislation Amendment Bill 2017
Port Authorities Act 1999 amended Part 6
s. 45
1 (2) Delete section 25(2)(b) and insert:
2
3 (b) any real or personal property (other than
4 property referred to in subsection (1) or
5 paragraph (a)) that --
6 (i) is acquired by the port authority; or
7 (ii) is vested in the port authority by the
8 Governor for the purposes of this Act;
9 or
10 (iii) is vested in, or becomes the property of,
11 the port authority under this Act.
12
13 45. Section 31 amended
14 In section 31(1) delete "section 30" and insert:
15
16 this Act or any other written law
17
18 46. Section 40 amended
19 After section 40(3) insert:
20
21 (3A) Regulations are not to be made for the purposes of
22 subsection (3)(c) except with the Treasurer's
23 concurrence.
24
25 47. Section 60 amended
26 Delete section 60(2)(ka).
page 33
Ports Legislation Amendment Bill 2017
Part 6 Port Authorities Act 1999 amended
s. 48
1 48. Section 96 amended
2 In section 96(4) delete "the port." and insert:
3
4 the port or acts under the authority of a pilotage exemption
5 certificate under the regulations.
6
7 49. Section 138 amended
8 In section 138(b) delete "45; or" and insert:
9
10 45 or 52; or
11
12 50. Schedule 1 amended
13 (1) In Schedule 1 item 5 column 3:
14 (a) insert in alphabetical order:
15
16 Port of Cape Cuvier
17
18 (b) insert in alphabetical order:
19
20 Port of Useless Loop
21
22 (2) In Schedule 1 item 7 column 3:
23 (a) insert in alphabetical order:
24
25 Port of Barrow Island
26
27 (b) insert in alphabetical order:
28
29 Port of Cape Preston
30
page 34
Ports Legislation Amendment Bill 2017
Port Authorities Act 1999 amended Part 6
s. 50
1 (c) insert in alphabetical order:
2
3 Port of Onslow
4
5 (d) insert in alphabetical order:
6
7 Port of Varanus Island
8
9 (e) insert in alphabetical order:
10
11 Port Walcott
12
13 (3) In Schedule 1 item 8 column 3:
14 (a) insert in alphabetical order:
15
16 Port of Derby
17
18 (b) insert in alphabetical order:
19
20 Port of Wyndham
21
22 (c) insert in alphabetical order:
23
24 Port of Yampi Sound
25
page 35
Ports Legislation Amendment Bill 2017
Part 6 Port Authorities Act 1999 amended
s. 51
1 51. Schedule 8 Division 2 inserted
2 At the end of Schedule 8 insert:
3
4 Division 2 -- Provisions for Ports Legislation Amendment
5 Act 2017
6 Subdivision 1 -- Preliminary
7 52. Terms used
8 (1) In this Division, unless the contrary intention appears --
9 affecting provisions means --
10 (a) the transfer provisions; and
11 (b) this Division and transitional regulations; and
12 (c) transitional orders and schedules referred to in
13 transitional orders;
14 amending Act means the Ports Legislation Amendment
15 Act 2017;
16 asset means any legal or equitable estate or interest (whether
17 present or future, whether vested or contingent and whether
18 personal or assignable) in real or personal property of any
19 description and includes any money, security, chose in
20 action or document;
21 asset of the State includes, but is not limited to, property
22 vested in or acquired by the Transport Minister for the
23 purposes of a Marine Act;
24 existing S&P Act port, in relation to a port named in a
25 transfer provision, means --
26 (a) in the case of a port named in section 50(1)(a) or (b)
27 of the amending Act -- the Port of Carnarvon as
28 declared before the transfer time under the Shipping
29 and Pilotage Act 1967 section 10(1); or
30 (b) in the case of a port named in any other transfer
31 provision -- the port with that name as declared
32 before the transfer time under the Shipping and
33 Pilotage Act 1967 section 10(1);
page 36
Ports Legislation Amendment Bill 2017
Port Authorities Act 1999 amended Part 6
s. 51
1 Government agreement means an agreement referred to in
2 paragraph (a) of the definition of Government agreement in
3 the Government Agreements Act 1979 section 2 and, if the
4 agreement has been varied, means the agreement as varied;
5 liability means any liability, duty or obligation whether
6 actual, contingent or prospective, liquidated or unliquidated,
7 or whether owed alone or jointly or jointly and severally
8 with any other person;
9 liability of the State includes, but is not limited to, a liability
10 incurred by the Transport Minister for the purposes of a
11 Marine Act;
12 Marine Act means the Jetties Act 1926, the Lights
13 (Navigation Protection) Act 1938, the Marine and Harbours
14 Act 1981, the Marine Navigational Aids Act 1973 or the
15 Shipping and Pilotage Act 1967;
16 port transfer or transfer, in relation to a port, means --
17 (a) the placement of the port under the control and
18 management of a port authority by the insertion of
19 the port in column 3 of an item in Schedule 1 by a
20 transfer provision; and
21 (b) the cessation of the existing S&P Act port as a port
22 for the administration and operation of which the
23 Transport Department is responsible by force of
24 clause 56;
25 relevant official means --
26 (a) the Registrar of Titles under the Transfer of Land
27 Act 1893; or
28 (b) the Registrar of Deeds and Transfers under the
29 Registration of Deeds Act 1856; or
30 (c) the Minister administering the Land Administration
31 Act 1997; or
32 (d) any other person authorised by a written law to
33 record and give effect to the registration of
34 documents relating to transactions affecting any
35 estate or interest in land or any other property;
page 37
Ports Legislation Amendment Bill 2017
Part 6 Port Authorities Act 1999 amended
s. 51
1 renew an easement, lease or licence includes --
2 (a) grant of an extension of its term; and
3 (b) grant a further easement, lease or licence to replace
4 it;
5 requirement under this Act means --
6 (a) a direction given by the Minister under section 72;
7 or
8 (b) any other obligation under this Act;
9 right means any right, power, privilege or immunity
10 whether actual, prospective or contingent;
11 transfer provision means section 50(1)(a) or (b), (2)(a), (b),
12 (c), (d) or (e) or (3)(a), (b) or (c) of the amending Act;
13 transfer time, in relation to a port transfer, means the time at
14 which the relevant transfer provision comes into operation;
15 transitional order means an order under clause 58;
16 transitional regulations has the meaning given in
17 clause 69(1);
18 Transport CEO means the chief executive officer of the
19 Transport Department and includes a delegate of that chief
20 executive officer under a Marine Act;
21 Transport Department means the department of the Public
22 Service principally assisting the Transport Minister in the
23 administration of the Marine Acts;
24 Transport Minister means the Minister administering the
25 Marine Acts and includes --
26 (a) that Minister as a body corporate under the Marine
27 and Harbours Act 1981 section 8; and
28 (b) a delegate of that Minister under a Marine Act.
29 (2) A reference in this Division to an agreement, instrument or
30 document does not include a reference to a Government
31 agreement.
page 38
Ports Legislation Amendment Bill 2017
Port Authorities Act 1999 amended Part 6
s. 51
1 Subdivision 2 -- Transfer of control and management of some
2 existing ports to port authorities
3 53. Terms used
4 (1) In this Subdivision, unless the contrary intention appears --
5 Agreements Minister means the Minister administering the
6 Government Agreements Act 1979;
7 port means the port named in a transfer provision;
8 port authority means the port authority under the control
9 and management of which a port is placed by a port transfer.
10 (2) A reference in another clause of this Subdivision to this
11 Subdivision includes a reference to --
12 (a) transitional regulations relating to a port transfer;
13 and
14 (b) transitional orders and schedules referred to in
15 transitional orders.
16 54. Port transfer: preliminary requirements
17 (1) Before the transfer time of a port transfer, an order is to be
18 made and published under section 24(1) describing the area
19 or areas of which the port is to consist.
20 (2) An area described in the order referred to in subclause (1)
21 may be --
22 (a) land; or
23 (b) land and water; or
24 (c) land and seabed; or
25 (d) land, water and seabed; or
26 (e) water; or
27 (f) water and seabed; or
28 (g) seabed.
29 (3) The area or areas described in the order referred to in
30 subclause (1) may be bounded by limits that differ from the
31 limits specified in relation to the existing S&P Act port by
page 39
Ports Legislation Amendment Bill 2017
Part 6 Port Authorities Act 1999 amended
s. 51
1 regulations mentioned in the Shipping and Pilotage
2 Act 1967 section 10(1a).
3 (4) The order referred to in subclause (1) comes into operation
4 at the transfer time.
5 (5) A proclamation cannot be made under section 2(e) of the
6 amending Act in relation to section 50(1)(a) or (b) or (2)(a),
7 (b), (c) or (e) of the amending Act unless the Agreements
8 Minister has given the Minister written notice that the
9 Agreements Minister agrees to the making of that
10 proclamation.
11 55. Port authority to implement and facilitate port transfer
12 (1) Before or after the transfer time of a port transfer, the port
13 authority may do anything that is prescribed by transitional
14 regulations, and anything else that may be necessary or
15 expedient to provide for, implement or facilitate the port
16 transfer.
17 (2) Until the transfer time of a port transfer the port authority
18 may do anything that it is authorised or required to do in
19 relation to the existing S&P Act port under a contract or
20 arrangement entered into with the Transport Minister under
21 the Marine and Harbours Act 1981 section 6 or 7.
22 (3) The functions conferred by this clause are in addition to any
23 other function that the port authority has.
24 56. Cessation of responsibility for port
25 At the transfer time of a port transfer the existing S&P Act
26 port ceases to be a port for the administration and operation
27 of which the Transport Minister and Transport Department
28 are responsible under the Marine and Harbours Act 1981.
page 40
Ports Legislation Amendment Bill 2017
Port Authorities Act 1999 amended Part 6
s. 51
1 57. Vesting of land, seabed and water in port authority
2 (1) At the transfer time of a port transfer the following are
3 vested in the port authority for the purposes of this Act --
4 (a) all land, seabed and water in the area or areas
5 described in the order made and published for the
6 port as required by clause 54(1);
7 (b) all fixtures on land or seabed referred to in
8 paragraph (a) that belong to the State.
9 (2) The operation of subclause (1) is subject to clauses 60(4)
10 and 62(1).
11 (3) Subclause (1) displaces the operation that section 25(1)
12 would otherwise have had in relation to the port transfer.
13 58. Minister may make transitional orders
14 (1) To provide for, implement or facilitate a port transfer, the
15 Minister may make and publish in the Gazette before the
16 transfer time of the port transfer one or more orders that --
17 (a) specify assets of the State that are to vest in, or
18 become the property of, the port authority in
19 addition to anything mentioned in clause 57(1); and
20 (b) specify liabilities of the State that are to become
21 liabilities of the port authority; and
22 (c) specify anything that is not to vest in the port
23 authority under clause 57(1); and
24 (d) specify any agreement or instrument in which the
25 port authority, or the CEO, is to be substituted, in
26 accordance with the order, for the State, the
27 Transport Minister or the Transport CEO as a party;
28 and
29 (e) specify any agreement, instrument or document that
30 is to have effect as if references to the port
31 authority, or the CEO or a member of staff, were
32 substituted, in accordance with the order, for
33 references in it to the State, the Transport Minister,
34 the Transport Department or the Transport CEO
35 (however expressed); and
page 41
Ports Legislation Amendment Bill 2017
Part 6 Port Authorities Act 1999 amended
s. 51
1 (f) specify any agreement, instrument or document that
2 is to have effect as if references to this Act or a
3 provision of this Act were substituted, in
4 accordance with the order, for references in it to
5 another enactment; and
6 (g) in the case of a port named in section 50(1)(a) or (b)
7 of the amending Act, specify any agreement,
8 instrument or document that is to have effect as if
9 references to the port were substituted, in
10 accordance with the order, for references in it to the
11 existing S&P Act port; and
12 (h) specify proceedings in which the port authority is to
13 be substituted, in accordance with the order, for the
14 State or the Transport Minister as a party.
15 (2) In a transitional order an asset of the State may be specified
16 under subclause (1)(a) if the Minister considers that the
17 asset --
18 (a) relates to, or was used in connection with, the
19 administration or operation of the existing S&P Act
20 port; and
21 (b) should vest in, or become the property of, the port
22 authority; and
23 (c) will not or might not otherwise be vested in the port
24 authority under clause 57(1).
25 (3) In a transitional order a liability of the State may be
26 specified under subclause (1)(b) if the Minister considers
27 that the liability --
28 (a) relates to, or arose in connection with, the
29 administration or operation of the existing S&P Act
30 port; and
31 (b) should become a liability of the port authority.
32 (4) A transitional order may --
33 (a) deal with incidental or supplementary matters; and
page 42
Ports Legislation Amendment Bill 2017
Port Authorities Act 1999 amended Part 6
s. 51
1 (b) clarify, or remove doubt as to, the operation of this
2 Subdivision in relation to any specified matter or
3 thing,
4 and has effect accordingly.
5 (5) A transitional order may specify things by reference to
6 schedules which --
7 (a) need not be published in the Gazette; but
8 (b) must be available for public inspection,
9 and anything specified in a schedule is to be taken to be
10 specified in the order.
11 (6) A thing may be specified in a transitional order by
12 describing the class to which it belongs.
13 (7) Before a transitional order is made, the Transport CEO is to
14 consult with the port authority as to the form and content of
15 the order and any schedule to which it refers.
16 (8) Before a transitional order is made specifying anything by
17 reference to a schedule, the Transport CEO is to consult
18 with the relevant officials as to the form and content of the
19 schedule.
20 (9) The Minister must obtain the written concurrence of the
21 Agreements Minister before making a transitional order
22 relating to a port named in section 50(1)(a) or (b) or (2)(a),
23 (b), (c) or (e) of the amending Act.
24 (10) The Minister is to cause a copy of each transitional order
25 and any schedule to which it refers to be delivered to the
26 port authority and each relevant official.
27 59. Amending transitional order
28 (1) The Minister may, by order published in the Gazette before
29 or after the transfer time, make any provision that the
30 Minister considers to be needed in order to --
31 (a) correct any error or omission in a transitional order
32 or a schedule to which a transitional order refers; or
page 43
Ports Legislation Amendment Bill 2017
Part 6 Port Authorities Act 1999 amended
s. 51
1 (b) clarify, or remove doubt as to, the operation of a
2 transitional order; or
3 (c) give proper effect to the purpose for which a
4 transitional order was made.
5 (2) The Minister may, by order published in the Gazette after
6 the transfer time, make provision for a matter that could
7 have been dealt with by a transitional order but was not.
8 (3) If an order under subclause (1) or (2) published in the
9 Gazette after the transfer time provides that a provision of
10 the order has effect from immediately before the transfer
11 time, the provision has effect accordingly.
12 (4) If an order under subclause (1) or (2) published in the
13 Gazette after the transfer time provides that a state of affairs
14 specified or described in the order is to be taken to have
15 existed, or not to have existed, at and from a time that is
16 earlier than the day on which the order is published in the
17 Gazette but not earlier than the transfer time, the provision
18 has effect according to its terms.
19 (5) To the extent that, under subclause (3) or (4), a provision of
20 an order has effect before the day of its publication in the
21 Gazette, this Subdivision does not, as a result of that
22 provision, operate so as --
23 (a) to affect, in a manner prejudicial to any person
24 (other than the State or a Minister, officer or agency
25 of the State), the rights of that person existing
26 before the day of publication; or
27 (b) to impose liabilities on any person (other than the
28 State or a Minister, officer or agency of the State) in
29 respect of anything done or omitted to be done
30 before the day of publication.
31 (6) Clause 58(5) to (10) apply, with any necessary
32 modifications, to an order under subclause (1) or (2).
page 44
Ports Legislation Amendment Bill 2017
Port Authorities Act 1999 amended Part 6
s. 51
1 60. Provisions as to assets and liabilities
2 (1) In this clause --
3 transferred assets, in relation to a port transfer, means --
4 (a) assets that vest in, or become the property of, the
5 port authority under subclause (3)(a); and
6 (b) anything vested in the port authority under
7 clause 57(1);
8 transferred liabilities, in relation to a port transfer, means
9 liabilities that become liabilities of the port authority under
10 subclause (3)(b).
11 (2) This clause applies if a transitional order is made in relation
12 to a port transfer.
13 (3) At the transfer time of the port transfer by force of this
14 clause --
15 (a) assets specified in the transitional order under
16 clause 58(1)(a) vest in, or become the property of,
17 the port authority in accordance with the order; and
18 (b) liabilities specified in the transitional order under
19 clause 58(1)(b) become liabilities of the port
20 authority.
21 (4) By force of this clause, anything specified in the transitional
22 order under clause 58(1)(c) does not vest in the port
23 authority under clause 57(1).
24 (5) At the transfer time of the port transfer any right of the State
25 in relation to transferred assets or transferred liabilities
26 becomes by force of this clause a right of the port authority.
27 (6) From the transfer time of the port transfer by force of this
28 clause --
29 (a) any proceedings or remedy that might have been
30 commenced by, or available against or to, the State
31 or the Transport Minister in relation to transferred
32 assets or transferred liabilities may be commenced
33 by, or are available against or to, the port authority;
34 and
page 45
Ports Legislation Amendment Bill 2017
Part 6 Port Authorities Act 1999 amended
s. 51
1 (b) anything commenced to be done before the transfer
2 time in relation to transferred assets or transferred
3 liabilities by the State, the Transport Minister or the
4 Transport Department may be continued by the port
5 authority; and
6 (c) anything done or omitted to be done in relation to
7 transferred assets or transferred liabilities before the
8 transfer time by, to or in respect of the State, the
9 Transport Minister or the Transport Department (to
10 the extent that that thing has any effect) is to be
11 taken to have been done or omitted by, to or in
12 respect of the port authority.
13 (7) In determining the net profits of the port authority for the
14 purposes of section 84, transferred assets are not to be
15 regarded as income.
16 (8) If at the transfer time of the port transfer a transferred asset
17 or transferred liability is not properly assigned to the port
18 authority by the operation of this Subdivision (whether
19 because the matter is governed otherwise than by the law of
20 the State or for any other reason) --
21 (a) the State is to be taken to continue to hold that
22 transferred asset or be liable for that transferred
23 liability until it is effectively assigned to the port
24 authority; and
25 (b) the Transport Department is to take all practicable
26 steps for the purpose of ensuring that the transferred
27 asset or transferred liability is effectively assigned
28 to the port authority.
29 (9) The fact that subclause (8)(a) applies to a transferred asset
30 or transferred liability does not affect a duty imposed by
31 section 90(2).
32 (10) By force of this clause, any previous vesting of a transferred
33 asset under another written law ceases to have effect at the
34 transfer time of the port transfer.
page 46
Ports Legislation Amendment Bill 2017
Port Authorities Act 1999 amended Part 6
s. 51
1 61. Provisions as to agreements and proceedings
2 (1) If a transitional order is made in relation to a port transfer
3 then, by force of this clause --
4 (a) at the transfer time of the port transfer the port
5 authority is substituted in accordance with the order
6 for the State or the Transport Minister as a party to
7 an agreement or instrument specified in the order
8 under clause 58(1)(d); and
9 (b) from the transfer time of the port transfer an
10 agreement, instrument or document specified in the
11 order under clause 58(1)(e) has effect as if
12 references to the port authority or the CEO or a
13 member of staff were, at the transfer time,
14 substituted in accordance with the order for
15 references in it to the State, the Transport Minister,
16 the Transport Department or the Transport CEO
17 (however expressed); and
18 (c) from the transfer time of the port transfer an
19 agreement, instrument or document specified in the
20 order under clause 58(1)(f) has effect as if
21 references to this Act or a provision of this Act
22 were, at the transfer time, substituted in accordance
23 with the order for references in it to another
24 enactment; and
25 (d) from the transfer time of the port transfer an
26 agreement, instrument or document specified in the
27 order under clause 58(1)(g) has effect as if
28 references to the port were, at the transfer time,
29 substituted in accordance with the order for
30 references in it to the existing S&P Act port; and
31 (e) at the transfer time of the port transfer the port
32 authority is substituted in accordance with the order
33 for the State or the Transport Minister as a party to
34 proceedings specified in the order under
35 clause 58(1)(h).
page 47
Ports Legislation Amendment Bill 2017
Part 6 Port Authorities Act 1999 amended
s. 51
1 (2) If subclause (1)(a) applies to an easement, lease or licence in
2 respect of land that becomes vested land at the transfer time
3 of the port transfer, from the transfer time the easement,
4 lease or licence is to be taken to have been granted under
5 this Act with any approval needed under this Act.
6 (3) Subclause (2) has effect even if a lease or licence was
7 granted for a period exceeding 50 years.
8 62. Navigational aids
9 (1) Clause 57(1) does not apply to navigational aids.
10 (2) Without limiting clause 58(2), a navigational aid in, or used
11 in connection with, the existing S&P Act port may be vested
12 in the port authority by a transitional order.
13 63. Harbour masters and deputy harbour masters
14 (1) In this clause --
15 deputy harbour master of the port means a person
16 appointed under the Shipping and Pilotage Act 1967
17 section 7A to be a deputy harbour master;
18 harbour master has the meaning given in paragraph (a)
19 or (b) of the definition of harbour master in the Shipping
20 and Pilotage Act 1967 section 3.
21 (2) At the transfer time the appointment of any person who was
22 the harbour master or a deputy harbour master of the
23 existing S&P Act port immediately before the transfer time
24 is revoked by force of this clause.
25 (3) This clause does not apply to the harbour master or a deputy
26 harbour master of the Port of Derby.
27 64. Pilotage: existing licences
28 (1) In this clause --
29 condition includes restriction;
30 controlled area has the meaning given in the Shipping and
31 Pilotage Act 1967 section 3.
page 48
Ports Legislation Amendment Bill 2017
Port Authorities Act 1999 amended Part 6
s. 51
1 (2) From the transfer time of a port transfer, a person who,
2 immediately before the transfer time, held a licence under
3 the Shipping and Pilotage Act 1967 to act as a pilot for the
4 existing S&P Act port (the licence) is to be taken to have the
5 approval of the port authority under section 96(1) as a pilot
6 for the port (the transitional approval).
7 (3) The effect that the transitional approval has by force of
8 subclause (2) extends to any place within the boundaries of
9 the port or within an area referred to in section 95(2) outside
10 the port as long as that place was, immediately before the
11 transfer time, within the boundaries of the existing S&P Act
12 port or within a controlled area outside the existing S&P Act
13 port.
14 (4) The effect that the transitional approval has by force of
15 subclause (2) is subject to any condition to which the licence
16 was subject immediately before the transfer time and to any
17 other condition imposed under the regulations.
18 (5) The transitional approval continues to have effect until --
19 (a) the period for which the licence would have had
20 effect ends; or
21 (b) the transitional approval is revoked under
22 section 96(2); or
23 (c) the person concerned is approved as a pilot for the
24 port under section 96(1); or
25 (d) the period of 2 years beginning at the transfer time
26 ends,
27 whichever occurs first.
28 (6) Without limiting clause 70(1), its provisions apply if a
29 transitional approval is revoked under section 96(2).
30 (7) This clause does not apply to a person if, before the transfer
31 time, the person is approved as a pilot for the port under
32 section 96(1) in accordance with clause 55(1) or the
33 Interpretation Act 1984 section 25.
page 49
Ports Legislation Amendment Bill 2017
Part 6 Port Authorities Act 1999 amended
s. 51
1 65. Pilotage: existing exemption certificates
2 (1) In this clause --
3 condition includes restriction;
4 controlled area has the meaning given in the Shipping and
5 Pilotage Act 1967 section 3;
6 S&P Act certificate means a pilotage exemption certificate
7 issued under the Shipping and Pilotage Act 1967.
8 (2) From the transfer time of a port transfer, an S&P Act
9 certificate for the existing S&P Act port in force
10 immediately before the transfer time (the existing
11 certificate) is to be taken to be a pilotage exemption
12 certificate in respect of the port issued under the regulations
13 (the transitional certificate).
14 (3) The effect that the transitional certificate has by force of
15 subclause (2) extends to any place within the boundaries of
16 the port or within an area referred to in section 95(2) outside
17 the port as long as that place was, immediately before the
18 transfer time, within the boundaries of the existing S&P Act
19 port or within a controlled area outside the existing S&P Act
20 port.
21 (4) The effect that the transitional certificate has by force of
22 subclause (2) is subject to any condition to which the
23 existing certificate was subject immediately before the
24 transfer time and to any other condition imposed under the
25 regulations.
26 (5) The transitional certificate continues to have effect until --
27 (a) the transitional certificate expires under the
28 regulations; or
29 (b) the transitional certificate is revoked under the
30 regulations; or
31 (c) a pilotage exemption certificate in respect of the
32 port is issued to the holder of the transitional
33 certificate under the regulations; or
page 50
Ports Legislation Amendment Bill 2017
Port Authorities Act 1999 amended Part 6
s. 51
1 (d) the period of 2 years beginning at the transfer time
2 ends,
3 whichever occurs first.
4 (6) Without limiting clause 70(1), its provisions apply if a
5 transitional certificate is revoked under the regulations.
6 (7) This clause does not apply to an S&P Act certificate if,
7 before the transfer time, a pilotage exemption certificate in
8 respect of the port is issued to the holder of the S&P Act
9 certificate under the regulations in accordance with
10 clause 55(1) or the Interpretation Act 1984 section 25.
11 66. Jetty licences
12 (1) In this clause --
13 continued licence means a jetty licence to which
14 subclause (9) applies;
15 converted licence means a jetty licence to which
16 subclause (5) applies;
17 existing jetty means a jetty that, immediately before the
18 transfer time of a port transfer, was wholly or partly within
19 the boundaries of the existing S&P Act port or was used in
20 connection with the operation of the existing S&P Act port;
21 jetty has the meaning given in the Jetties Act 1926 section 3;
22 jetty licence means a licence granted under the Jetties
23 Act 1926;
24 licensee includes sub-licensee.
25 (2) Subject to subclause (3) if --
26 (a) immediately before the transfer time of a port
27 transfer, an existing jetty was the subject of a jetty
28 licence; and
29 (b) from the transfer time the existing jetty is wholly on
30 port land,
31 subclause (5) applies to the jetty licence.
32 (3) If the port is a port named in section 50(1)(a) or (b)
33 or (2)(a), (b), (c) or (e) of the amending Act, subclause (5)
page 51
Ports Legislation Amendment Bill 2017
Part 6 Port Authorities Act 1999 amended
s. 51
1 does not apply to the jetty licence unless transitional
2 regulations provide that it does.
3 (4) Regulations cannot be made for subclause (3) except with
4 the written concurrence of the Agreements Minister.
5 (5) If this subclause applies to a jetty licence --
6 (a) at the transfer time the licence ceases to be a licence
7 under the Jetties Act 1926; and
8 (b) at the transfer time the port authority is substituted
9 for the Transport Minister or the Transport CEO (as
10 the case may be) as the grantor of the licence; and
11 (c) from the transfer time the licence is to be taken to
12 have been granted under this Act with any approval
13 needed under this Act even if the licence was
14 granted for a period exceeding 50 years.
15 (6) Subject to subclause (7) if, immediately before the transfer
16 time of a port transfer, an existing jetty was the subject of a
17 jetty licence, transitional regulations may prescribe that
18 subclause (9) applies to the jetty licence.
19 (7) If the port is a port named in section 50(1)(a) or (b)
20 or (2)(a), (b), (c) or (e) of the amending Act, transitional
21 regulations cannot be made for subclause (6) except with the
22 written concurrence of the Agreements Minister.
23 (8) Subclause (9) does not apply to a jetty licence if
24 subclause (5) applies to it.
25 (9) If this subclause applies to a jetty licence --
26 (a) the licence continues in force from the transfer time
27 as a licence under the Jetties Act 1926; and
28 (b) from the transfer time any power exercisable by, or
29 in relation to, the grantor of the licence, whether --
30 (i) under the licence; or
31 (ii) under the Jetties Act 1926 in relation to the
32 licence,
33 is exercisable by, or in relation to, the port authority
34 instead of the grantor of the licence; and
page 52
Ports Legislation Amendment Bill 2017
Port Authorities Act 1999 amended Part 6
s. 51
1 (c) after the transfer time the port authority may, at the
2 request or with the agreement of the holder of the
3 licence, renew or vary the licence under that Act;
4 and
5 (d) from the transfer time the functions of the port
6 authority are to be taken to extend to the exercise of
7 powers for the purposes of this subclause.
8 (10) From the transfer time it is to be taken to be a condition of a
9 converted licence or a continued licence that the licensee
10 must comply with any direction given by the port authority
11 to the extent that the direction is given to facilitate --
12 (a) compliance by the port authority with a requirement
13 under this Act; or
14 (b) performance by the port authority of its functions.
15 (11) Without limiting clause 58, an order may be made under
16 clause 58(1)(e), (f) or (g) or (4) in relation to a converted
17 licence or a continued licence.
18 Subdivision 3 -- General provisions
19 67. Registration of documents
20 The relevant officials are to take notice of the affecting
21 provisions and are to record and register in the appropriate
22 manner the documents necessary to show the effect of the
23 affecting provisions.
24 68. Exemption from State taxes
25 (1) In this clause --
26 State tax includes duty under the Duties Act 2008 and any
27 other tax under a written law.
28 (2) State tax is not payable in relation to --
29 (a) anything that occurs by force or because of the
30 affecting provisions; or
31 (b) anything done (including a transaction entered into
32 or an instrument or document of any kind made,
33 executed, lodged or given) under this Division, or to
page 53
Ports Legislation Amendment Bill 2017
Part 6 Port Authorities Act 1999 amended
s. 51
1 give effect to the affecting provisions, or for a
2 purpose connected with or arising out of giving
3 effect to the affecting provisions.
4 69. Transitional regulations
5 (1) Regulations (transitional regulations) may prescribe --
6 (a) things to be done by a Minister, the Transport
7 Department, the Transport CEO or a port authority,
8 to provide for, implement or facilitate a port
9 transfer; and
10 (b) anything necessary or expedient to be prescribed for
11 providing for a matter or issue of a transitional
12 nature that arises in relation to a port transfer.
13 (2) Transitional regulations may provide that specific provisions
14 of any written law --
15 (a) do not apply to or in relation to any matter; or
16 (b) apply with specific modifications to or in relation to
17 any matter.
18 (3) If transitional regulations relating to a port transfer provide
19 that a state of affairs specified or described in the
20 regulations is to be taken to have existed, or not to have
21 existed, at and from a time that is earlier than the day on
22 which the regulations are published in the Gazette but not
23 earlier than the transfer time, the regulations have effect
24 according to their terms.
25 (4) If transitional regulations contain a provision referred to in
26 subclause (3), the provision does not operate so as --
27 (a) to affect in a manner prejudicial to any person
28 (other than the State or an authority of the State) the
29 rights of that person existing before the day of
30 publication of those regulations; or
31 (b) to impose liabilities on any person (other than the
32 State or an authority of the State) in respect of
33 anything done or omitted to be done before the day
34 of publication of those regulations.
page 54
Ports Legislation Amendment Bill 2017
Port Authorities Act 1999 amended Part 6
s. 51
1 70. Saving
2 (1) The operation of any of the affecting provisions is not to be
3 regarded --
4 (a) as a breach of contract or confidence or otherwise
5 as a civil wrong; or
6 (b) as a breach of any contractual provision prohibiting,
7 restricting or regulating the assignment or transfer
8 of assets, rights or liabilities or the disclosure of
9 information; or
10 (c) as giving rise to any right to damages or
11 compensation; or
12 (d) as giving rise to any remedy by a party to an
13 instrument or as causing or permitting the
14 termination of any instrument, because of a change
15 in the beneficial or legal ownership of any asset,
16 right or liability; or
17 (e) as causing any contract or instrument to be void or
18 otherwise unenforceable; or
19 (f) as releasing or allowing the release of any surety.
20 (2) This Division and transitional regulations are additional to
21 any relevant provisions of the Interpretation Act 1984.
22 71. Effect of affecting provisions
23 Subject to clauses 74 and 75, the affecting provisions have
24 effect despite any provision of this Act or another written
25 law.
26 72. No exclusion of operation of affecting provisions
27 A provision of an agreement or instrument that purports to
28 in any way exclude the agreement or instrument from the
29 operation of future legislation has no effect in relation to the
30 affecting provisions.
page 55
Ports Legislation Amendment Bill 2017
Part 6 Port Authorities Act 1999 amended
s. 51
1 73. Effect of continued easements, leases and licences
2 (1) This clause applies if under clause 61(2) or 66(5) an
3 easement, lease or licence is to be taken, from the transfer
4 time of a port transfer, to have been granted under this Act.
5 (2) The rights and powers that the grantee, lessee or licensee
6 had under the easement, lease or licence before the transfer
7 time are not adversely affected except to the extent (if any)
8 requested or agreed under subclause (3).
9 (3) The port authority may, at the request or with the agreement
10 of the grantee, lessee or licensee, renew or vary the
11 easement, lease or licence under this Act.
12 (4) Subclause (2) does not affect the operation of clause 66(9)
13 or (10).
14 74. Government agreements not affected
15 The affecting provisions do not prejudice or in any way
16 affect any right or obligation of a party to a Government
17 agreement.
18 75. Preservation of mining, petroleum and other rights
19 (1) In this clause --
20 authorisation means --
21 (a) a mining tenement as defined in the Mining
22 Act 1978 section 8(1); or
23 (b) an authority to occupy or right of occupancy of any
24 land to which the Mining Act 1978 Second Schedule
25 clause 1(1) applies; or
26 (c) an exploration licence, retention licence, mining
27 licence, works licence, special purpose consent or
28 other right under the Offshore Minerals Act 2003; or
29 (d) a drilling reservation, lease, licence, permit, pipeline
30 licence, special prospecting authority, access
31 authority or other right under the Petroleum and
32 Geothermal Energy Resources Act 1967, the
page 56
Ports Legislation Amendment Bill 2017
Port Authorities Act 1999 amended Part 6
s. 52
1 Petroleum Pipelines Act 1969 or the Petroleum
2 (Submerged Lands) Act 1982; or
3 (e) any other authorisation of a kind provided for under
4 a written law and prescribed for this paragraph by
5 transitional regulations.
6 (2) Without limiting clause 74, the affecting provisions as they
7 apply to a port transfer do not --
8 (a) prejudice or in any way affect an authorisation in
9 effect before the transfer time; or
10 (b) prejudice or in any way affect any right or
11 obligation of a person under an authorisation in
12 effect before the transfer time; or
13 (c) prevent an application for an authorisation made but
14 not disposed of before the transfer time from being
15 dealt with after the transfer time; or
16 (d) prejudice or in any way affect the manner in which
17 an application mentioned in paragraph (c) is dealt
18 with after the transfer time.
19 76. Transitional provision for Schedule 9
20 If a transfer provision has not come into operation, the
21 reference in the definition of unassigned port in Schedule 9
22 clause 1 to a port named in Schedule 1 includes a reference
23 to the existing S&P Act port for the port named in that
24 transfer provision.
25
26 52. Schedule 9 amended
27 (1) In Schedule 9 clause 1 delete the definition of port.
28 (2) In Schedule 9 clause 1 insert in alphabetical order:
29
30 unassigned port means a port that --
31 (a) is not named in Schedule 1; and
page 57
Ports Legislation Amendment Bill 2017
Part 6 Port Authorities Act 1999 amended
s. 52
1 (b) has not been placed under the control and
2 management of a port authority by regulations in
3 accordance with this Schedule.
4
5 (3) In Schedule 9 clause 1 in the definition of port addition delete
6 "operation." and insert:
7
8 operation;
9
10 (4) In Schedule 9 clause 2(1) delete "place a" and insert:
11
12 place an unassigned
13
14 (5) After Schedule 9 clause 2(2) insert:
15
16 (3) Without limiting subclause (2) regulations may --
17 (a) vest land, seabed, water or other property in a port
18 authority or otherwise provide for the vesting of,
19 land, seabed, water or other property in a port
20 authority; and
21 (b) specify liabilities of the State that are to become
22 liabilities of a port authority or otherwise provide
23 for liabilities of the State to become liabilities of a
24 port authority; and
25 (c) displace the operation of section 25(1) in relation to
26 a port addition.
27
page 58
Ports Legislation Amendment Bill 2017
Shipping and Pilotage Act 1967 amended Part 7
s. 53
1 Part 7 -- Shipping and Pilotage Act 1967 amended
2 53. Act amended
3 This Part amends the Shipping and Pilotage Act 1967.
4 54. Long title amended
5 In the long title delete "fishing".
6 55. Section 3 amended
7 (1) In section 3 delete the definition of fishing boat harbour.
8 (2) In section 3 insert in alphabetical order:
9
10 boat harbour means any place declared for the time
11 being to be a boat harbour under section 10(2);
12
13 56. Section 7B amended
14 In section 7B(3)(c) delete "fishing".
15 57. Section 9A amended
16 In section 9A(1)(a) delete "each fishing" and insert:
17
18 each
19
20 Note: The heading to amended section 9A is to read:
21 Boat harbour dues and mooring charges
page 59
Ports Legislation Amendment Bill 2017
Part 7 Shipping and Pilotage Act 1967 amended
s. 58
1 58. Section 10 amended
2 In section 10(1b):
3 (a) delete "named in the Port Authorities Act 1999
4 Schedule 1" and insert:
5
6 as defined in the Port Authorities Act 1999 section 3(1)
7
8 (b) delete "a port so named." and insert:
9
10 such a port.
11
12 59. Section 12 amended
13 (1) In section 12(1)(b) delete "fishing".
14 (2) In section 12(2)(d) delete "responsible authority" (each
15 occurrence) and insert:
16
17 CEO
18
19 (3) In section 12(3) delete the definition of responsible authority.
20 60. Various references to "fishing boat harbour" replaced
21 In the provisions listed in the Table delete "fishing boat
22 harbour" (each occurrence) and insert:
23
24 boat harbour
25
page 60
Ports Legislation Amendment Bill 2017
Shipping and Pilotage Act 1967 amended Part 7
s. 61
1 Table
s. 3 def. of controlling s. 6A def. of declared area
authority
s. 9A(1)(a) s. 10(2)(a)
s. 10(2)(b) s. 10(2)(ba)
s. 11(b) s. 11(c)
s. 11A(3A)(b) s. 11A(3C)
2 61. Various references to "Department" replaced
3 In the provisions listed in the Table delete "Department" and
4 insert:
5
6 CEO
7
8 Table
s. 3 def. of controlling s. 6A(2)
authority
s. 10(2)(ba) s. 11A(3A)(b)
s. 12(1)(bb)
page 61
Ports Legislation Amendment Bill 2017
Part 8 Western Australian Marine Act 1982 amended
s. 62
1 Part 8 -- Western Australian Marine Act 1982 amended
2 62. Act amended
3 This Part amends the Western Australian Marine Act 1982.
4 63. Section 118 amended
5 (1) In section 118 delete "The chief " and insert:
6
7 (1) The chief
8
9 (2) At the end of section 118 insert:
10
11 (2) In the case of an inspector, the certificate issued under
12 subsection (1) is also to specify any functions that the
13 inspector has under other enactments by virtue of being
14 an inspector.
15
16 64. Section 132 amended
17 After section 132(5) insert:
18
19 (5A) An authorised person may not withdraw an
20 infringement notice under subsection (5) if the
21 authorised person served the infringement notice.
22
23
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