PORT AUTHORITIES ACT 1999

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PORT AUTHORITIES ACT 1999 - SCHEDULE 8

[s. 139A]

[Heading inserted: No. 9 of 2014 s. 35.]

Division 1 — Provisions for Ports Legislation Amendment Act 2014

[Heading inserted: No. 9 of 2014 s. 35.]

Subdivision 1 — Preliminary

[Heading inserted: No. 9 of 2014 s. 35.]

1 . Terms used

In this Division —

agreement includes a Government agreement;

amending Act means the Ports Legislation Amendment Act 2014 ;

asset means any legal or equitable estate or interest (whether present or future, whether vested or contingent and whether personal or assignable) in real or personal property of any description and includes any money, security, chose in action or document;

Government agreement means an agreement referred to in paragraph (a) of the definition of Government agreement in the Government Agreements Act 1979 section 2 and, if the agreement has been varied, means the agreement as varied;

liability means any liability, duty or obligation whether actual, contingent or prospective, liquidated or unliquidated, or whether owed alone or jointly or jointly and severally with any other person;

right means any right, power, privilege or immunity whether actual, prospective or contingent.

[Clause 1 inserted: No. 9 of 2014 s. 35.]

Subdivision 2 — Provisions for the Southern Ports Authority

[Heading inserted: No. 9 of 2014 s. 35.]

2 . Terms used

In this Subdivision —

continuing authority means the Bunbury Port Authority;

merger means —

(a) the actions effected by the coming into operation of section 31(1) of the amending Act; and

(b) the merging of the Albany Port Authority and the Esperance Port Authority into the SPA under clause 3(1);

merger time means the time at which section 31(1) of the amending Act comes into operation;

merging authority means the Albany Port Authority or the Esperance Port Authority;

new board means the board of directors established under clause 4(3);

SPA means the continuing authority as renamed as the Southern Ports Authority by operation of section 31(1)(a) of the amending Act;

transitional regulations has the meaning given in clause 15(1).

[Clause 2 inserted: No. 9 of 2014 s. 35.]

3 . Merger of Albany Port Authority and Esperance Port Authority into Southern Ports Authority

(1) At the merger time the Albany Port Authority and the Esperance Port Authority cease to be port authorities under this Act and merge into the SPA.

(2) From the merger time the SPA is a continuation of each of the merging authorities.

[Clause 3 inserted: No. 9 of 2014 s. 35.]

4 . Directors and former directors

(1) Immediately before the merger time a person then holding office as a director of a merging authority or the continuing authority ceases to hold that office.

(2) From the merger time —

(a) a former director of a merging authority is to be taken to be a former director of the SPA for the purposes of the Statutory Corporations (Liability of Directors) Act 1996 ; and

(b) a former director of the continuing authority is a former director of the SPA for the purposes of the Statutory Corporations (Liability of Directors) Act 1996 .

(3) The board of directors of the SPA may be established by the appointment of directors before the merger time.

(4) For the purposes of Schedule 2 clause 1 the term of office of a director appointed under subclause (3) does not begin until the merger time.

(5) Nothing in this Schedule prevents a person who is a director of an existing port authority from being appointed under subclause (3).

[Clause 4 inserted: No. 9 of 2014 s. 35.]

5 . Powers of new board in anticipation of merger

(1) The new board may —

(a) perform the functions of the board of directors of a port authority for the purpose of providing for, implementing or facilitating the merger; and

(b) do anything that is prescribed by transitional regulations and anything else that may be necessary or expedient to provide for, implement or facilitate the merger.

(2) The matters that the new board can deal with in performing its functions under subclause (1)(a) include, but are not limited to, matters set out in clause 48.

(3) For the purposes of subclause (1) the new board may incur costs for which the continuing authority is liable.

[Clause 5 inserted: No. 9 of 2014 s. 35.]

6 . CEOs and members of staff

(1) Immediately before the merger time a person then holding office as the CEO of the continuing authority or a merging authority ceases to hold that office.

(2) At the merger time, a person who was —

(a) the CEO of the continuing authority; or

(b) the CEO or a member of staff of a merging authority,

immediately before the merger time becomes a member of staff of the SPA.

(3) The operation of subclause (1) or (2) does not constitute a retrenchment or redundancy.

(4) Before the merger time the continuing authority or a merging authority may, by negotiation with its CEO or a member of its staff and in consultation with the new board —

(a) terminate the contract of employment of the CEO or member of staff; or

(b) arrange for and accept the resignation of the CEO or member of staff.

(5) The powers of the new board under clause 5 include the power to appoint a person as the CEO of the SPA before the merger time.

(6) Until the merger time a person appointed under subclause (5) may, as CEO of the SPA, perform any function of a CEO of a port authority for the purpose of providing for, implementing or facilitating the merger.

[Clause 6 inserted: No. 9 of 2014 s. 35.]

7 . Preservation of rights

(1) Except as otherwise agreed by the relevant CEO or member of staff, the operation of clause 6(1) or (2) does not —

(a) affect his or her remuneration; or

(b) affect his or her existing or accruing rights in respect of annual leave, long service leave, sick leave or any other leave; or

(d) interrupt the continuity of his or her service.

(2) For the purposes of subclause (1)(d), the service of a CEO or member of staff with a merging authority is to be taken to have been with the SPA.

(3) If a person who is the CEO or a member of staff of the continuing authority or a merging authority is appointed under clause 6(5), the appointment does not —

(a) affect his or her existing or accruing rights in respect of annual leave, long service leave, sick leave or any other leave; or

(b) affect any rights under a superannuation scheme; or

and, if the person was the CEO or a member of staff of a merging authority, his or her service with the merging authority is to be taken, for the purposes of paragraph (c), to have been with the SPA.

(4) Nothing in clause 6 or this clause prevents the exercise by the SPA of its powers in relation to the management of members of staff.

[Clause 7 inserted: No. 9 of 2014 s. 35.]

8 . Devolution of assets, liabilities, proceedings, remedies and immunities

(1) At the merger time —

(a) the assets and rights of a merging authority that were immediately before that time vested in or the property of the merging authority vest in or become the property of the SPA by force of this clause; and

(b) the liabilities of a merging authority immediately before that time become, by force of this clause, the liabilities of the SPA.

(2) For the purposes of section 26, property referred to in section 25(2)(a) that becomes the property of the SPA by force of subclause (1)(a) continues to be regarded as property referred to in section 25(2)(a).

(3) In determining the net profits of the SPA for the purposes of section 84, assets that become the property of the SPA by force of subclause (1)(a) are not to be regarded as income.

(4) From the merger time, any proceedings or remedy that, immediately before that time, might have been brought or continued by or available against or to a merging authority may be brought or continued by, and are or is available against or to, the SPA.

(5) Where a merging authority had the benefit of any immunity in respect of an act, matter or thing done or omitted before the merger time, that immunity continues in that respect for the benefit of the SPA.

(6) As soon as is practicable after the merger time, all papers, documents, minutes, books of account and other records (however compiled, recorded or stored) relating to the operations of a merging authority are to be delivered to the SPA.

[Clause 8 inserted: No. 9 of 2014 s. 35.]

9 . Completion of things commenced

Anything commenced to be done by a merging authority before the merger time may be continued by the SPA.

[Clause 9 inserted: No. 9 of 2014 s. 35.]

10 . Continuing effect of things done

(1) In this clause —

relevant act means an act, matter or thing done or omitted to be done before the merger time by, to or in respect of a merging authority.

(2) To the extent that a relevant act has force or significance at the merger time it is to be taken, from the merger time, to have been done or omitted by, to or in respect of the SPA so far as the act, matter or thing is relevant to the SPA.

(3) This clause does not affect the operation of any other provision of this Schedule.

[Clause 10 inserted: No. 9 of 2014 s. 35.]

11 . Agreements, instruments and documents

(1) In this clause —

former name means “Bunbury Port Authority”;

new name means “Southern Ports Authority”;

subsisting , in relation to an agreement, instrument or document, means subsisting immediately before the merger time.

(2) A subsisting agreement, instrument or document that contains a reference to the SPA by its former name has effect from the merger time as if that reference were amended to be a reference to the SPA by its new name.

(3) Subclause (2) does not apply to an agreement or instrument to which the continuing authority was a party.

(4) If the continuing authority was a party to a subsisting agreement or instrument then, from the merger time —

(a) the SPA is a party to the agreement or instrument under its new name; and

(b) the agreement or instrument has effect as if a reference in it to the SPA by its former name were amended to be a reference to the SPA by its new name.

(5) A subsisting agreement, instrument or document that contains a reference to a merging authority has effect from the merger time as if that reference were amended to be or include a reference to the SPA.

(6) Subclause (5) does not apply to an agreement or instrument to which a merging authority was a party.

(7) A subsisting agreement or instrument to which a merging authority was a party has effect from the merger time as if —

(a) the SPA were substituted for the merging authority as a party to the agreement or instrument; and

(b) a reference to the merging authority in the agreement or instrument were amended to be a reference to the SPA.

(8) Subclause (2), (4)(b), (5) or (7)(b) does not apply to a reference if —

(a) transitional regulations provide otherwise; or

(b) that application would be inappropriate in the context in which the reference occurs.

[Clause 11 inserted: No. 9 of 2014 s. 35.]

12 . Port authorities to implement or facilitate merger and share costs

(1) A port authority is to do anything that is prescribed by transitional regulations and anything else that may be necessary or expedient to provide for, implement or facilitate the merger.

(2) Subclause (1) applies —

(a) before the merger time — to the merging authorities and the continuing authority; and

(b) after the merger time — to the SPA.

(3) The function conferred by subclause (1) is in addition to any other function that a port authority has.

(4) The following amounts payable before the merger time are to be paid out of the funds of the continuing authority —

(a) any remuneration or allowances payable to a director appointed under clause 4(3);

(b) any remuneration payable to a person appointed under clause 6(5);

(d) any other costs incurred by the new board under clause 5.

(5) Each of the merging authorities is to make a contribution to the continuing authority of one-third (or such other proportion as is agreed) of the amounts paid by the continuing authority in respect of —

(a) remuneration or costs mentioned in subclause (4)(a) to (c); and

(b) costs mentioned in subclause (4)(d) to the extent that they were reasonably incurred.

(6) Any dispute as to —

(a) a contribution to be made under subclause (5); or

(b) the relevance or amount of a cost mentioned in subclause (4)(d),

may be referred to the Minister whose determination on the matter is final and the continuing authority and merging authorities are to have regard and give effect to the determination.

[Clause 12 inserted: No. 9 of 2014 s. 35.]

13 . Financial reporting

(1) In this clause —

former directors of a merging authority means the persons holding office as directors of the merging authority immediately before the merger time;

reporting board , in relation to a merging authority, means the reporting board constituted for the merging authority under subclause (2);

reporting provisions means sections 68 and 69, Schedule 5 Division 3 Subdivision 1 and Schedule 5 clauses 34 and 35.

(2) A reporting board is constituted by force of this clause to perform the duties set out in this clause in respect of a merging authority.

(3) The constitution of a reporting board under subclause (2) has effect for a period of 3 months commencing at the merger time but that period may be extended by the Minister if the Minister considers that the extension is needed in order to enable the reporting board to perform its duties under this clause.

(4) If the merger time coincides with the end of a financial year of a merging authority, the reporting board for the merging authority is to comply with the reporting provisions in respect of the merging authority for that financial year.

(5) If the merger time is after the end of a financial year of a merging authority (the last financial year ), the reporting board for the merging authority is to —

(a) comply with the reporting provisions in respect of the merging authority to the extent that those provisions have not been complied with for the last financial year; and

(b) comply with the reporting provisions in respect of the merging authority for the period starting from the end of the last financial year and ending at the merger time as if that period were a financial year.

(6) A reporting board must comply with any written directions given to it by the Minister as to the performance of its duties under this clause.

(7) In order to enable a reporting board to perform its duties under this clause the reporting provisions apply with —

(a) any modifications prescribed by transitional regulations; or

(b) any other appropriate modifications.

(8) For the purposes of this clause, a reporting board —

(a) is entitled to be provided with reasonable assistance and facilities and to have full and free access at all reasonable times to all accounts, and any other information, documents and records, that the reporting board considers necessary for those purposes; and

(b) may make copies of, or take extracts from, any of those accounts, documents or records or make a record of any of that information.

(9) A person who has possession of any accounts, information, documents or records of the kind referred to in subclause (8)(a) must at any reasonable time, on the request of the reporting board, produce any of those accounts, documents or records, or any of that information, specified in the request.

Penalty: a fine of $10 000.

(10) Subject to subclauses (11) to (13), the provisions of this Act that apply to the board of directors of a port authority and those directors (other than sections 7(1) and 8 and Schedule 2 clause 1(1), (3) and (4)) apply, with any modifications that may be necessary or appropriate, to a reporting board and its members.

(11) The former directors of a merging authority are to hold office as members of the reporting board of the merging authority for as long as the reporting board remains constituted under subclause (2).

(12) If the office of a member of a reporting board becomes vacant the Minister may appoint a replacement member to hold office for as long as the reporting board remains constituted under subclause (2).

(13) Any remuneration or allowances payable to a member of a reporting board are to be paid from the funds of the SPA.

(14) A member of a reporting board is to be taken to be a director of the SPA for the purposes of the Statutory Corporations (Liability of Directors) Act 1996 .

[Clause 13 inserted: No. 9 of 2014 s. 35.]

14 . Dividends

(1) In this clause —

dividend function means a function of a port authority or its board under section 84.

(2) If immediately before the merger time a dividend function has yet to be performed by a merging authority or its board, the SPA or its board is to perform the function after the merger time as if the SPA were the merging authority.

(3) If the merger time coincides with the end of a financial year of a merging authority, the SPA or its board is to perform the dividend functions in relation to that financial year as if the SPA were the merging authority.

(4) Any amount that has to be paid to the Treasurer in accordance with subclause (2) or (3) is to be paid from the funds of the SPA.

[Clause 14 inserted: No. 9 of 2014 s. 35.]

15 . Transitional regulations

(1) Regulations ( transitional regulations ) may prescribe —

(a) things to be done by a port authority, or the new board, to provide for, implement or facilitate the merger; and

(b) anything necessary or expedient to be prescribed for providing for a matter or issue of a transitional nature that arises in relation to the merger.

(2) Transitional regulations may provide that specific provisions of any written law —

(a) do not apply to or in relation to any matter; or

(b) apply with specific modifications to or in relation to any matter.

(3) If transitional regulations provide that a state of affairs specified or described in the regulations is to be taken to have existed, or not to have existed, at and from a time that is earlier than the day on which the regulations are published in the Gazette but not earlier than the merger time, the regulations have effect according to their terms.

[Clause 15 inserted: No. 9 of 2014 s. 35.]

Subdivision 3 — Provisions for the Mid West Ports Authority

[Heading inserted: No. 9 of 2014 s. 35.]

16 . Terms used

In this Subdivision, unless the contrary intention appears —

MWPA means the port authority as renamed as the Mid West Ports Authority by operation of section 31(2) of the amending Act;

new board means the board of directors established under clause 17(3);

port authority means the Geraldton Port Authority;

renaming means the action effected by the coming into operation of section 31(2) of the amending Act;

renaming time means the time at which section 31(2) of the amending Act comes into operation;

transitional regulations has the meaning given in clause 22(1).

[Clause 16 inserted: No. 9 of 2014 s. 35.]

17 . Directors and former directors

(1) Immediately before the renaming time a person then holding office as a director of the port authority ceases to hold that office.

(2) From the renaming time a former director of the port authority is a former director of the MWPA for the purposes of the Statutory Corporations (Liability of Directors) Act 1996 .

(3) The board of directors of the MWPA may be established by the appointment of directors before the renaming time.

(4) For the purposes of Schedule 2 clause 1, the term of office of a director appointed under subclause (3) does not begin until the renaming time.

(5) Nothing in this Schedule prevents a person who is a director of an existing port authority from being appointed under subclause (3).

[Clause 17 inserted: No. 9 of 2014 s. 35.]

18 . Powers of new board in anticipation of renaming

(1) The new board may —

(a) perform the functions of the board of directors of a port authority for the purpose of providing for, implementing or facilitating the renaming; and

(b) do anything that is prescribed by transitional regulations and anything else that may be necessary or expedient to provide for, implement or facilitate the renaming.

(2) The matters that the new board can deal with in performing its functions under subclause (1)(a) include, but are not limited to, matters set out in clause 48 to the extent that they are relevant to the renaming.

(3) For the purposes of subclause (1) the new board may incur costs for which the port authority is liable.

[Clause 18 inserted: No. 9 of 2014 s. 35.]

19 . CEO and staff

(1) Immediately before the renaming time a person then holding office as the CEO of the port authority ceases to hold that office.

(2) At the renaming time, a person who was the CEO of the port authority immediately before the renaming time becomes a member of staff of the MWPA.

(3) The operation of subclause (1) or (2) does not constitute a retrenchment or redundancy.

(4) Before the renaming time the port authority may, by negotiation with its CEO or a member of its staff and in consultation with the new board —

(a) terminate the contract of employment of the CEO or member of staff; or

(b) arrange for and accept the resignation of the CEO or member of staff.

(5) The powers of the new board under clause 18 include the power to appoint a person as the CEO of the MWPA before the renaming time.

(6) Until the renaming time a person appointed under subclause (5) may, as CEO of the MWPA, perform any function of a CEO of a port authority for the purpose of providing for, implementing or facilitating the renaming.

(7) If a person who is the CEO or a member of staff of the port authority is appointed under subclause (5) the appointment does not —

(a) affect his or her existing or accruing rights in respect of annual leave, long service leave, sick leave or any other leave; or

(b) affect any rights under a superannuation scheme; or

[Clause 19 inserted: No. 9 of 2014 s. 35.]

20 . Agreements, instruments and documents

(1) In this clause —

former name means “Geraldton Port Authority”;

new name means “Mid West Ports Authority”.

(2) A subsisting agreement, instrument or document that contains a reference to the MWPA by its former name has effect from the renaming time as if that reference were amended to be a reference to the MWPA by its new name.

(3) Subclause (2) does not apply to an agreement or instrument to which the port authority was a party.

(4) If the port authority was a party to a subsisting agreement or instrument then, from the renaming time —

(a) the MWPA is a party to the agreement or instrument under its new name; and

(b) the agreement or instrument has effect as if a reference in it to the MWPA by its former name were amended to be a reference to the MWPA by its new name.

(5) Subclause (2) or (4)(b) does not apply to a reference if —

(a) transitional regulations provide otherwise; or

(b) that application would be inappropriate in the context in which the reference occurs.

[Clause 20 inserted: No. 9 of 2014 s. 35.]

21 . Port authority to implement or facilitate renaming

(1) Anything that is prescribed by transitional regulations, and anything else that may be necessary or expedient to provide for, implement or facilitate the renaming, is to be done —

(a) before the renaming time — by the port authority; and

(b) after the renaming time — by the MWPA.

(2) The function conferred by subclause (1) is in addition to any other function that a port authority has.

(3) The following amounts payable before the renaming time are to be paid out of the funds of the port authority —

(a) any remuneration or allowances payable to a director appointed under clause 17(3);

(b) any remuneration payable to a person appointed under clause 19(5);

(d) any other costs incurred by the new board under clause 18.

[Clause 21 inserted: No. 9 of 2014 s. 35.]

22 . Transitional regulations

(1) Regulations ( transitional regulations ) may prescribe —

(a) things to be done by the port authority, the new board or the MWPA to provide for, implement or facilitate the renaming; and

(b) anything necessary or expedient to be prescribed for providing for a matter or issue of a transitional nature that arises in relation to the renaming.

(2) Transitional regulations may provide that specific provisions of any written law —

(a) do not apply to or in relation to any matter; or

(b) apply with specific modifications to or in relation to any matter.

(3) If transitional regulations provide that a state of affairs specified or described in the regulations is to be taken to have existed, or not to have existed, at and from a time that is earlier than the day on which the regulations are published in the Gazette but not earlier than the renaming time, the regulations have effect according to their terms.

[Clause 22 inserted: No. 9 of 2014 s. 35.]

Subdivision 4 — Provisions for the Pilbara Ports Authority

[Heading inserted: No. 9 of 2014 s. 35.]

23 . Terms used

In this Subdivision —

continuing authority means the Port Hedland Port Authority;

merger means —

(a) the actions effected by the coming into operation of section 31(3) of the amending Act; and

(b) the merging of the Dampier Port Authority into the PPA under clause 24(1);

merger time means the time at which section 31(3) of the amending Act comes into operation;

merging authority means the Dampier Port Authority;

new board means the board of directors established under clause 25(3);

PPA means the continuing authority as renamed as the Pilbara Ports Authority by operation of section 31(3)(b) of the amending Act;

transitional regulations has the meaning given in clause 36(1).

[Clause 23 inserted: No. 9 of 2014 s. 35.]

24 . Merger of Dampier Port Authority into Pilbara Ports Authority

(1) At the merger time the Dampier Port Authority ceases to be a port authority under this Act and merges into the PPA.

(2) From the merger time the PPA is a continuation of the merging authority.

[Clause 24 inserted: No. 9 of 2014 s. 35.]

25 . Directors and former directors

(1) Immediately before the merger time a person then holding office as a director of the merging authority or the continuing authority ceases to hold that office.

(2) From the merger time —

(a) a former director of the merging authority is to be taken to be a former director of the PPA for the purposes of the Statutory Corporations (Liability of Directors) Act 1996 ; and

(b) a former director of the continuing authority is a former director of the PPA for the purposes of the Statutory Corporations (Liability of Directors) Act 1996 .

(3) The board of directors of the PPA may be established by the appointment of directors before the merger time.

(4) For the purposes of Schedule 2 clause 1, the term of office of a director appointed under subclause (3) does not begin until the merger time.

(5) Nothing in this Schedule prevents a person who is a director of an existing port authority from being appointed under subclause (3).

[Clause 25 inserted: No. 9 of 2014 s. 35.]

26 . Powers of new board in anticipation of merger

(1) The new board may —

(a) perform the functions of the board of directors of a port authority for the purpose of providing for, implementing or facilitating the merger; and

(b) do anything that is prescribed by transitional regulations and anything else that may be necessary or expedient to provide for, implement or facilitate the merger.

(2) The matters that the new board can deal with in performing its functions under subclause (1)(a) include, but are not limited to, matters set out in clause 48.

(3) For the purposes of subclause (1) the new board may incur costs for which the continuing authority is liable.

[Clause 26 inserted: No. 9 of 2014 s. 35.]

27 . CEOs and members of staff

(1) Immediately before the merger time a person then holding office as the CEO of the continuing authority or the merging authority ceases to hold that office.

(2) At the merger time, a person who was —

(a) the CEO of the continuing authority; or

(b) the CEO or a member of staff of the merging authority,

immediately before the merger time becomes a member of staff of the PPA.

(3) The operation of subclause (1) or (2) does not constitute a retrenchment or redundancy.

(4) Before the merger time the continuing authority or the merging authority may, by negotiation with its CEO or a member of its staff and in consultation with the new board —

(a) terminate the contract of employment of the CEO or member of staff; or

(b) arrange for and accept the resignation of the CEO or member of staff.

(5) The powers of the new board under clause 26 include the power to appoint a person as the CEO of the PPA before the merger time.

(6) Until the merger time a person appointed under subclause (5) may, as CEO of the PPA, perform any function of a CEO of a port authority for the purpose of providing for, implementing or facilitating the merger.

[Clause 27 inserted: No. 9 of 2014 s. 35.]

28 . Preservation of rights

(1) Except as otherwise agreed by the relevant CEO or member of staff, the operation of clause 27(1) or (2) does not —

(a) affect his or her remuneration; or

(b) affect his or her existing or accruing rights in respect of annual leave, long service leave, sick leave or any other leave; or

(d) interrupt the continuity of his or her service.

(2) For the purposes of subclause (1)(d), the service of a CEO or member of staff with the merging authority is to be taken to have been with the PPA.

(3) If a person who is the CEO or a member of staff of the continuing authority or the merging authority is appointed under clause 27(5), the appointment does not —

(a) affect his or her existing or accruing rights in respect of annual leave, long service leave, sick leave or any other leave; or

(b) affect any rights under a superannuation scheme; or

and, if the person was the CEO or a member of staff of the merging authority, his or her service with the merging authority is to be taken, for the purposes of paragraph (c), to have been with the PPA.

(4) Nothing in clause 27 or this clause prevents the exercise by the PPA of its powers in relation to the management of members of staff.

[Clause 28 inserted: No. 9 of 2014 s. 35.]

29 . Devolution of assets, liabilities, proceedings, remedies and immunities

(1) At the merger time —

(a) the assets and rights of the merging authority that were immediately before that time vested in or the property of the merging authority vest in or become the property of the PPA by force of this clause; and

(b) the liabilities of the merging authority immediately before that time become, by force of this clause, the liabilities of the PPA.

(2) For the purposes of section 26, property referred to in section 25(2)(a) that becomes the property of the PPA by force of subclause (1)(a) continues to be regarded as property referred to in section 25(2)(a).

(3) In determining the net profits of the PPA for the purposes of section 84, assets that become the property of the PPA by force of subclause (1)(a) are not to be regarded as income.

(4) From the merger time, any proceedings or remedy that, immediately before that time, might have been brought or continued by or available against or to the merging authority may be brought or continued by, and are or is available against or to, the PPA.

(5) Where the merging authority had the benefit of any immunity in respect of an act, matter or thing done or omitted before the merger time, that immunity continues in that respect for the benefit of the PPA.

(6) As soon as is practicable after the merger time, all papers, documents, minutes, books of account and other records (however compiled, recorded or stored) relating to the operations of the merging authority are to be delivered to the PPA.

[Clause 29 inserted: No. 9 of 2014 s. 35.]

30 . Completion of things commenced

Anything commenced to be done by the merging authority before the merger time may be continued by the PPA.

[Clause 30 inserted: No. 9 of 2014 s. 35.]

31 . Continuing effect of things done

(1) In this clause —

relevant act means an act, matter or thing done or omitted to be done before the merger time by, to or in respect of the merging authority.

(2) To the extent that a relevant act has force or significance at the merger time it is to be taken, from the merger time, to have been done or omitted by, to or in respect of the PPA so far as the act, matter or thing is relevant to the PPA.

(3) This clause does not affect the operation of any other provision of this Schedule.

[Clause 31 inserted: No. 9 of 2014 s. 35.]

32 . Agreements, instruments and documents

(1) In this clause —

former name means “Port Hedland Port Authority”;

new name means “Pilbara Ports Authority”;

subsisting , in relation to an agreement, instrument or document, means subsisting immediately before the merger time.

(2) A subsisting agreement, instrument or document that contains a reference to the PPA by its former name has effect from the merger time as if that reference were amended to be a reference to the PPA by its new name.

(3) Subclause (2) does not apply to an agreement or instrument to which the continuing authority was a party.

(4) If the continuing authority was a party to a subsisting agreement or instrument then, from the merger time —

(a) the PPA is a party to the agreement or instrument under its new name; and

(b) the agreement or instrument has effect as if a reference in it to the PPA by its former name were amended to be a reference to the PPA by its new name.

(5) A subsisting agreement, instrument or document that contains a reference to the merging authority has effect from the merger time as if that reference were amended to be or include a reference to the PPA.

(6) Subclause (5) does not apply to an agreement or instrument to which the merging authority was a party.

(7) A subsisting agreement or instrument to which the merging authority was a party has effect from the merger time as if —

(a) the PPA were substituted for the merging authority as a party to the agreement or instrument; and

(b) a reference to the merging authority in the agreement or instrument were amended to be a reference to the PPA.

(8) Subclause (2), (4)(b), (5) or (7)(b) does not apply to a reference if —

(a) transitional regulations provide otherwise; or

(b) that application would be inappropriate in the context in which the reference occurs.

[Clause 32 inserted: No. 9 of 2014 s. 35.]

33 . Port authorities to implement or facilitate merger and share costs

(1) A port authority is to do anything that is prescribed by transitional regulations and anything else that may be necessary or expedient to provide for, implement or facilitate the merger.

(2) Subclause (1) applies —

(a) before the merger time — to the merging authority and the continuing authority; and

(b) after the merger time — to the PPA.

(3) The function conferred by subclause (1) is in addition to any other function that a port authority has.

(4) The following amounts payable before the merger time are to be paid out of the funds of the continuing authority —

(a) any remuneration or allowances payable to a director appointed under clause 25(3);

(b) any remuneration payable to a person appointed under clause 27(5);

(d) any other costs incurred by the new board under clause 26.

(5) The merging authority is to make a contribution to the continuing authority of one-half (or such other proportion as is agreed) of the amounts paid by the continuing authority in respect of —

(a) remuneration or costs mentioned in subclause (4)(a) to (c); and

(b) costs mentioned in subclause (4)(d) to the extent that they were reasonably incurred.

(6) Any dispute as to —

(a) a contribution to be made under subclause (5); or

(b) the relevance or amount of a cost mentioned in subclause (4)(d),

may be referred to the Minister whose determination on the matter is final and the continuing authority and merging authority are to have regard and give effect to the determination.

[Clause 33 inserted: No. 9 of 2014 s. 35.]

34 . Financial reporting

(1) In this clause —

former directors of the merging authority means the persons holding office as directors of the merging authority immediately before the merger time;

reporting board means the reporting board constituted for the merging authority under subclause (2);

reporting provisions means sections 68 and 69, Schedule 5 Division 3 Subdivision 1 and Schedule 5 clauses 34 and 35.

(2) A reporting board is constituted by force of this clause to perform the duties set out in this clause in respect of the merging authority.

(3) The constitution of the reporting board under subclause (2) has effect for a period of 3 months commencing at the merger time but that period may be extended by the Minister if the Minister considers that the extension is needed in order to enable the reporting board to perform its duties under this clause.

(4) If the merger time coincides with the end of a financial year of the merging authority, the reporting board is to comply with the reporting provisions in respect of the merging authority for that financial year.

(5) If the merger time is after the end of a financial year of the merging authority (the last financial year ), the reporting board is to —

(a) comply with the reporting provisions in respect of the merging authority to the extent that those provisions have not been complied with for the last financial year; and

(6) The reporting board must comply with any written directions given to it by the Minister as to the performance of its duties under this clause.

(7) In order to enable the reporting board to perform its duties under this clause the reporting provisions apply with —

(a) any modifications prescribed by transitional regulations; or

(b) any other appropriate modifications.

(8) For the purposes of this clause, the reporting board —

(b) may make copies of, or take extracts from, any of those accounts, documents or records or make a record of any of that information.

Penalty: a fine of $10 000.

(11) The former directors of the merging authority are to hold office as members of the reporting board for as long as the reporting board remains constituted under subclause (2).

(12) If the office of a member of the reporting board becomes vacant the Minister may appoint a replacement member to hold office for as long as the reporting board remains constituted under subclause (2).

(13) Any remuneration or allowances payable to a member of the reporting board are to be paid from the funds of the PPA.

(14) A member of the reporting board is to be taken to be a director of the PPA for the purposes of the Statutory Corporations (Liability of Directors) Act 1996 .

[Clause 34 inserted: No. 9 of 2014 s. 35.]

35 . Dividends

(1) In this clause —

dividend function means a function of a port authority or its board under section 84.

(2) If immediately before the merger time a dividend function has yet to be performed by the merging authority or its board, the PPA or its board is to perform the function after the merger time as if the PPA were the merging authority.

(3) If the merger time coincides with the end of a financial year of the merging authority, the PPA or its board is to perform the dividend functions in relation to that financial year as if the PPA were the merging authority.

(4) Any amount that has to be paid to the Treasurer in accordance with subclause (2) or (3) is to be paid from the funds of the PPA.

[Clause 35 inserted: No. 9 of 2014 s. 35.]

36 . Transitional regulations

(1) Regulations ( transitional regulations ) may prescribe —

(a) things to be done by a port authority, or the new board, to provide for, implement or facilitate the merger; and

(b) anything necessary or expedient to be prescribed for providing for a matter or issue of a transitional nature that arises in relation to the merger.

(2) Transitional regulations may provide that specific provisions of any written law —

(a) do not apply to or in relation to any matter; or

(b) apply with specific modifications to or in relation to any matter.

[Clause 36 inserted: No. 9 of 2014 s. 35.]

Subdivision 5 — Provisions for the Kimberley Ports Authority

[Heading inserted: No. 9 of 2014 s. 35.]

37 . Terms used

In this Subdivision —

KPA means the port authority as renamed as the Kimberley Ports Authority by operation of section 31(4) of the amending Act;

new board means the board of directors established under clause 38(3);

port authority means the Broome Port Authority;

renaming means the action effected by the coming into operation of section 31(4) of the amending Act;

renaming time means the time at which section 31(4) of the amending Act comes into operation;

transitional regulations has the meaning given in clause 43(1).

[Clause 37 inserted: No. 9 of 2014 s. 35.]

38 . Directors and former directors

(1) Immediately before the renaming time a person then holding office as a director of the port authority ceases to hold that office.

(2) From the renaming time a former director of the port authority is a former director of the KPA for the purposes of the Statutory Corporations (Liability of Directors) Act 1996 .

(3) The board of directors of the KPA may be established by the appointment of directors before the renaming time.

(4) For the purposes of Schedule 2 clause 1 the term of office of a director appointed under subclause (3) does not begin until the renaming time.

(5) Nothing in this Schedule prevents a person who is a director of an existing port authority from being appointed under subclause (3).

[Clause 38 inserted: No. 9 of 2014 s. 35.]

39 . Powers of new board in anticipation of renaming

(1) The new board may —

(a) perform the functions of the board of directors of a port authority for the purpose of providing for, implementing or facilitating the renaming; and

(b) do anything that is prescribed by transitional regulations and anything else that may be necessary or expedient to provide for, implement or facilitate the renaming.

(3) For the purposes of subclause (1) the new board may incur costs for which the port authority is liable.

[Clause 39 inserted: No. 9 of 2014 s. 35.]

40 . CEO and staff

(1) Immediately before the renaming time a person then holding office as the CEO of the port authority ceases to hold that office.

(2) At the renaming time, a person who was the CEO of the port authority immediately before the renaming time becomes a member of staff of the KPA.

(3) The operation of subclause (1) or (2) does not constitute a retrenchment or redundancy.

(4) Before the renaming time the port authority may, by negotiation with its CEO or a member of its staff and in consultation with the new board —

(a) terminate the contract of employment of the CEO or member of staff; or

(b) arrange for and accept the resignation of the CEO or member of staff.

(5) The powers of the new board under clause 39 include the power to appoint a person as the CEO of the KPA before the renaming time.

(6) Until the renaming time a person appointed under subclause (5) may, as CEO of the KPA, perform any function of a CEO of a port authority for the purpose of providing for, implementing or facilitating the renaming.

(7) If a person who is the CEO or a member of staff of the port authority is appointed under subclause (5) the appointment does not —

(a) affect his or her existing or accruing rights in respect of annual leave, long service leave, sick leave or any other leave; or

(b) affect any rights under a superannuation scheme; or

[Clause 40 inserted: No. 9 of 2014 s. 35.]

41 . Agreements, instruments and documents

(1) In this clause —

former name means “Broome Port Authority”;

new name means “Kimberley Ports Authority”.

(2) A subsisting agreement, instrument or document that contains a reference to the KPA by its former name has effect from the renaming time as if that reference were amended to be a reference to the KPA by its new name.

(3) Subclause (2) does not apply to an agreement or instrument to which the port authority was a party.

(4) If the port authority was a party to a subsisting agreement or instrument then, from the renaming time —

(a) the KPA is a party to the agreement or instrument under its new name; and

(b) the agreement or instrument has effect as if a reference in it to the KPA by its former name were amended to be a reference to the KPA by its new name.

(5) Subclause (2) or (4)(b) does not apply to a reference if —

(a) transitional regulations provide otherwise; or

(b) that application would be inappropriate in the context in which the reference occurs.

[Clause 41 inserted: No. 9 of 2014 s. 35.]

42 . Port authority to implement or facilitate renaming

(1) Anything that is prescribed by transitional regulations, and anything else that may be necessary or expedient to provide for, implement or facilitate the renaming, is to be done —

(a) before the renaming time — by the port authority; and

(b) after the renaming time — by the KPA.

(2) The function conferred by subclause (1) is in addition to any other function that a port authority has.

(3) The following amounts payable before the renaming time are to be paid out of the funds of the port authority —

(a) any remuneration or allowances payable to a director appointed under clause 38(3);

(b) any remuneration payable to a person appointed under clause 40(5);

(d) any other costs incurred by the new board under clause 39.

[Clause 42 inserted: No. 9 of 2014 s. 35.]

43 . Transitional regulations

(1) Regulations ( transitional regulations ) may prescribe —

(a) things to be done by the port authority, the new board or the KPA to provide for, implement or facilitate the renaming; and

(b) anything necessary or expedient to be prescribed for providing for a matter or issue of a transitional nature that arises in relation to the renaming.

(2) Transitional regulations may provide that specific provisions of any written law —

(a) do not apply to or in relation to any matter; or

(b) apply with specific modifications to or in relation to any matter.

(3) If transitional regulations provide that a state of affairs specified or described in the regulations is to be taken to have existed, or not to have existed, at and from a time that is earlier than the day on which the regulations are published in the Gazette but not earlier than the renaming time, the regulations have effect according to their terms.

[Clause 43 inserted: No. 9 of 2014 s. 35.]

Subdivision 6 — Provisions for certain directors

[Heading inserted: No. 9 of 2014 s. 35.]

44 . Certain directors to cease to hold office

(1) In this clause —

commencement means the coming into operation of section 33 of the amending Act.

(2) On commencement —

(a) the Company appointee and the Joint Venturers appointee, as defined in Schedule 6 clause 1.2 as enacted before commencement, cease to be directors of the Dampier Port Authority; and

(b) the first lessee appointee and the second lessee appointee, as defined in Schedule 6 clause 2.2 as enacted before commencement, cease to be directors of the Port Hedland Port Authority.

[Clause 44 inserted: No. 9 of 2014 s. 35.]

Subdivision 7 — General provisions

[Heading inserted: No. 9 of 2014 s. 35.]

45 . Terms used

In this Subdivision —

affecting provisions means —

(a) section 31 of the amending Act; and

(b) this Division and transitional regulations;

new board has the meaning given in clause 2, 16, 23 or 37;

relevant officials means —

(a) the Registrar of Titles under the Transfer of Land Act 1893 ; or

(b) the Registrar of Deeds and Transfers under the Registration of Deeds Act 1856 ; or

(d) any other person authorised by a written law to record and give effect to the registration of documents relating to transactions affecting any estate or interest in land or any other property;

State tax includes duty under the Duties Act 2008 and any other tax under a written law;

transitional regulations has the meaning given in clause 15(1), 22(1), 36(1) or 43(1).

[Clause 45 inserted: No. 9 of 2014 s. 35.]

46 . Exemption from State taxes

State tax is not payable in relation to —

(a) anything that occurs by the operation of the affecting provisions; or

(b) anything done (including a transaction entered into or an instrument or document of any kind made, executed, lodged or given) under this Division, or to give effect to the affecting provisions, or for a purpose connected with or arising out of giving effect to the affecting provisions.

[Clause 46 inserted: No. 9 of 2014 s. 35.]

47 . Registration of documents

The relevant officials are to take notice of the affecting provisions and are to record and register in the appropriate manner the documents necessary to show the effect of the affecting provisions.

[Clause 47 inserted: No. 9 of 2014 s. 35.]

48 . Matters that a new board can deal with

The matters referred to in clauses 5(2), 18(2), 26(2) and 39(2) are —

(a) staff issues including organisational structure, reporting accountabilities and employee roles and responsibilities;

(b) preparation for staff transfer including confirmation of employee details and entitlements;

(d) identification and assessment of issues relating to —

(i) port boundaries;

(ii) agreements affecting the port;

(iii) mining tenements over port areas;

(iv) contaminated sites;

(v) waters in the port reserved under the Conservation and Land Management Act 1984 Part II Division 3;

(vi) native title issues;

(vii) operating and maintenance costs;

(viii) community service obligations;

(ix) leases, licences and permits;

(x) port fees and charges;

(xi) existing legal and commercial disputes and contingent liabilities;

(xii) long term commitments,

and resolution of those issues so far as that is within the new board’s powers;

(e) review, and if necessary modification, of the existing port operating model;

(f) harmonisation of internal policies, standards, procedures, processes and reporting requirements on services and systems including —

(i) operating activities;

(ii) administrative functions;

(iii) pricing and marketing principles and practices;

(iv) financial and accounting systems, including the chart of accounts;

(v) human resource services;

(vi) information and communication activities;

(g) development of a draft strategic development plan, a draft statement of corporate intent, a draft income and cash flow statement and a draft statement of financial position;

(h) development of any other plans that a port authority is required to have under any written law;

(i) budgetary matters;

(j) matters relating to the transfer of assets and liabilities including —

(i) asset and liability inventories;

(ii) valuation of assets and liabilities;

(iii) processes for transfer;

(k) employment or engagement of persons to provide management, financial, legal or other services or advice.

[Clause 48 inserted: No. 9 of 2014 s. 35.]

49 . Operation of transitional regulations

If transitional regulations contain a provision referred to in clause 15(3), 22(3), 36(3) or 43(3), the provision does not operate so as —

(a) to affect in a manner prejudicial to any person (other than the State or an authority of the State) the rights of that person existing before the day of publication of those regulations; or

(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the day of publication of those regulations.

[Clause 49 inserted: No. 9 of 2014 s. 35.]

50 . Saving

(1) The operation of any of the affecting provisions is not to be regarded —

(a) as a breach of contract or confidence or otherwise as a civil wrong; or

(b) as a breach of any contractual provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities or the disclosure of information; or

(d) as giving rise to any remedy by a party to an instrument or as causing or permitting the termination of any instrument, because of a change in the beneficial or legal ownership of any asset, right or liability; or

(e) as causing any contract or instrument to be void or otherwise unenforceable; or

(f) as releasing or allowing the release of any surety.

(2) This Division and transitional regulations are additional to any relevant provisions of the Interpretation Act 1984 .

[Clause 50 inserted: No. 9 of 2014 s. 35.]

51 . Government agreements not affected

(1) The affecting provisions do not prejudice or in any way affect any right or obligation of a party to a Government agreement.

(2) This clause does not limit or otherwise affect the operation of Schedule 6 clauses 1.3 and 2.3.

[Clause 51 inserted: No. 9 of 2014 s. 35.]

Division 2 — Provisions for Ports Legislation Amendment Act 2019

[Heading inserted: No. 2 of 2019 s. 51.]

Subdivision 1 — Preliminary

[Heading inserted: No. 2 of 2019 s. 51.]

52 . Terms used

(1) In this Division, unless the contrary intention appears —

affecting provisions means —

(a) the transfer provisions; and

(b) this Division and transitional regulations; and

amending Act means the Ports Legislation Amendment Act 2019 ;

asset of the State includes, but is not limited to, property vested in or acquired by the Transport Minister for the purposes of a Marine Act;

existing S&P Act port , in relation to a port named in a transfer provision, means —

(a) in the case of a port named in section 50(1)(a) or (b) of the amending Act — the Port of Carnarvon as declared before the transfer time under the Shipping and Pilotage Act 1967 section 10(1); or

(b) in the case of a port named in any other transfer provision — the port with that name as declared before the transfer time under the Shipping and Pilotage Act 1967 section 10(1);

liability of the State includes, but is not limited to, a liability incurred by the Transport Minister for the purposes of a Marine Act;

Marine Act means the Jetties Act 1926 , the Lights (Navigation Protection) Act 1938 , the Marine and Harbours Act 1981 , the Marine Navigational Aids Act 1973 or the Shipping and Pilotage Act 1967 ;

port transfer or transfer , in relation to a port, means —

(a) the placement of the port under the control and management of a port authority by the insertion of the port in column 3 of an item in Schedule 1 by a transfer provision; and

(b) the cessation of the existing S&P Act port as a port for the administration and operation of which the Transport Department is responsible by force of clause 56;

relevant official means —

(a) the Registrar of Titles under the Transfer of Land Act 1893 ; or

(b) the Registrar of Deeds and Transfers under the Registration of Deeds Act 1856 ; or

(d) any other person authorised by a written law to record and give effect to the registration of documents relating to transactions affecting any estate or interest in land or any other property;

renew an easement, lease or licence includes —

(a) grant of an extension of its term; and

(b) grant a further easement, lease or licence to replace it;

requirement under this Act means —

(a) a direction given by the Minister under section 72; or

(b) any other obligation under this Act;

right means any right, power, privilege or immunity whether actual, prospective or contingent;

transfer provision means section 50(1)(a) or (b), (2)(a), (b), (c), (d) or (e) or (3)(a), (b) or (c) of the amending Act;

transfer time , in relation to a port transfer, means the time at which the relevant transfer provision comes into operation;

transitional order means an order under clause 58;

transitional regulations has the meaning given in clause 69(1);

Transport CEO means the chief executive officer of the Transport Department and includes a delegate of that chief executive officer under a Marine Act;

Transport Department means the department of the Public Service principally assisting the Transport Minister in the administration of the Marine Acts;

Transport Minister means the Minister administering the Marine Acts and includes —

(a) that Minister as a body corporate under the Marine and Harbours Act 1981 section 8; and

(b) a delegate of that Minister under a Marine Act.

(2) A reference in this Division to an agreement, instrument or document does not include a reference to a Government agreement.

[Clause 52 inserted: No. 2 of 2019 s. 51.]

Subdivision 2 — Transfer of control and management of some existing ports to port authorities

[Heading inserted: No. 2 of 2019 s. 51.]

53 . Terms used

(1) In this Subdivision, unless the contrary intention appears —

Agreements Minister means the Minister administering the Government Agreements Act 1979 ;

port means the port named in a transfer provision;

port authority means the port authority under the control and management of which a port is placed by a port transfer.

(2) A reference in another clause of this Subdivision to this Subdivision includes a reference to —

(a) transitional regulations relating to a port transfer; and

(b) transitional orders and schedules referred to in transitional orders.

[Clause 53 inserted: No. 2 of 2019 s. 51.]

54 . Port transfer: preliminary requirements

(1) Before the transfer time of a port transfer, an order is to be made and published under section 24(1) describing the area or areas of which the port is to consist.

(2) An area described in the order referred to in subclause (1) may be —

(a) land; or

(b) land and water; or

(d) land, water and seabed; or

(e) water; or

(f) water and seabed; or

(g) seabed.

(3) The area or areas described in the order referred to in subclause (1) may be bounded by limits that differ from the limits specified in relation to the existing S&P Act port by regulations mentioned in the Shipping and Pilotage Act 1967 section 10(1a).

(4) The order referred to in subclause (1) comes into operation at the transfer time.

(5) A proclamation cannot be made under section 2(e) of the amending Act in relation to section 50(1)(a) or (b) or (2)(a), (b), (c) or (e) of the amending Act unless the Agreements Minister has given the Minister written notice that the Agreements Minister agrees to the making of that proclamation.

[Clause 54 inserted: No. 2 of 2019 s. 51.]

55 . Port authority to implement and facilitate port transfer

(1) Before or after the transfer time of a port transfer, the port authority may do anything that is prescribed by transitional regulations, and anything else that may be necessary or expedient to provide for, implement or facilitate the port transfer.

(2) Until the transfer time of a port transfer the port authority may do anything that it is authorised or required to do in relation to the existing S&P Act port under a contract or arrangement entered into with the Transport Minister under the Marine and Harbours Act 1981 section 6 or 7.

(3) The functions conferred by this clause are in addition to any other function that the port authority has.

[Clause 55 inserted: No. 2 of 2019 s. 51.]

56 . Cessation of responsibility for port

At the transfer time of a port transfer the existing S&P Act port ceases to be a port for the administration and operation of which the Transport Minister and Transport Department are responsible under the Marine and Harbours Act 1981 .

[Clause 56 inserted: No. 2 of 2019 s. 51.]

57 . Vesting of land, seabed and water in port authority

(1) At the transfer time of a port transfer the following are vested in the port authority for the purposes of this Act —

(a) all land, seabed and water in the area or areas described in the order made and published for the port as required by clause 54(1);

(b) all fixtures on land or seabed referred to in paragraph (a) that belong to the State.

(2) The operation of subclause (1) is subject to clauses 60(4) and 62(1).

(3) Subclause (1) displaces the operation that section 25(1) would otherwise have had in relation to the port transfer.

[Clause 57 inserted: No. 2 of 2019 s. 51.]

58 . Minister may make transitional orders

(1) To provide for, implement or facilitate a port transfer, the Minister may make and publish in the Gazette before the transfer time of the port transfer one or more orders that —

(a) specify assets of the State that are to vest in, or become the property of, the port authority in addition to anything mentioned in clause 57(1); and

(b) specify liabilities of the State that are to become liabilities of the port authority; and

(d) specify any agreement or instrument in which the port authority, or the CEO, is to be substituted, in accordance with the order, for the State, the Transport Minister or the Transport CEO as a party; and

(e) specify any agreement, instrument or document that is to have effect as if references to the port authority, or the CEO or a member of staff, were substituted, in accordance with the order, for references in it to the State, the Transport Minister, the Transport Department or the Transport CEO (however expressed); and

(f) specify any agreement, instrument or document that is to have effect as if references to this Act or a provision of this Act were substituted, in accordance with the order, for references in it to another enactment; and

(g) in the case of a port named in section 50(1)(a) or (b) of the amending Act, specify any agreement, instrument or document that is to have effect as if references to the port were substituted, in accordance with the order, for references in it to the existing S&P Act port; and

(h) specify proceedings in which the port authority is to be substituted, in accordance with the order, for the State or the Transport Minister as a party.

(2) In a transitional order an asset of the State may be specified under subclause (1)(a) if the Minister considers that the asset —

(a) relates to, or was used in connection with, the administration or operation of the existing S&P Act port; and

(b) should vest in, or become the property of, the port authority; and

(3) In a transitional order a liability of the State may be specified under subclause (1)(b) if the Minister considers that the liability —

(a) relates to, or arose in connection with, the administration or operation of the existing S&P Act port; and

(b) should become a liability of the port authority.

(4) A transitional order may —

(a) deal with incidental or supplementary matters; and

(b) clarify, or remove doubt as to, the operation of this Subdivision in relation to any specified matter or thing,

and has effect accordingly.

(5) A transitional order may specify things by reference to schedules which —

(a) need not be published in the Gazette ; but

(b) must be available for public inspection,

and anything specified in a schedule is to be taken to be specified in the order.

(6) A thing may be specified in a transitional order by describing the class to which it belongs.

(7) Before a transitional order is made, the Transport CEO is to consult with the port authority as to the form and content of the order and any schedule to which it refers.

(8) Before a transitional order is made specifying anything by reference to a schedule, the Transport CEO is to consult with the relevant officials as to the form and content of the schedule.

(9) The Minister must obtain the written concurrence of the Agreements Minister before making a transitional order relating to a port named in section 50(1)(a) or (b) or (2)(a), (b), (c) or (e) of the amending Act.

(10) The Minister is to cause a copy of each transitional order and any schedule to which it refers to be delivered to the port authority and each relevant official.

[Clause 58 inserted: No. 2 of 2019 s. 51.]

59 . Amending transitional order

(1) The Minister may, by order published in the Gazette before or after the transfer time, make any provision that the Minister considers to be needed in order to —

(a) correct any error or omission in a transitional order or a schedule to which a transitional order refers; or

(b) clarify, or remove doubt as to, the operation of a transitional order; or

(2) The Minister may, by order published in the Gazette after the transfer time, make provision for a matter that could have been dealt with by a transitional order but was not.

(3) If an order under subclause (1) or (2) published in the Gazette after the transfer time provides that a provision of the order has effect from immediately before the transfer time, the provision has effect accordingly.

(4) If an order under subclause (1) or (2) published in the Gazette after the transfer time provides that a state of affairs specified or described in the order is to be taken to have existed, or not to have existed, at and from a time that is earlier than the day on which the order is published in the Gazette but not earlier than the transfer time, the provision has effect according to its terms.

(5) To the extent that, under subclause (3) or (4), a provision of an order has effect before the day of its publication in the Gazette , this Subdivision does not, as a result of that provision, operate so as —

(a) to affect, in a manner prejudicial to any person (other than the State or a Minister, officer or agency of the State), the rights of that person existing before the day of publication; or

(b) to impose liabilities on any person (other than the State or a Minister, officer or agency of the State) in respect of anything done or omitted to be done before the day of publication.

(6) Clause 58(5) to (10) apply, with any necessary modifications, to an order under subclause (1) or (2).

[Clause 59 inserted: No. 2 of 2019 s. 51.]

60 . Provisions as to assets and liabilities

(1) In this clause —

transferred assets , in relation to a port transfer, means —

(a) assets that vest in, or become the property of, the port authority under subclause (3)(a); and

(b) anything vested in the port authority under clause 57(1);

transferred liabilities , in relation to a port transfer, means liabilities that become liabilities of the port authority under subclause (3)(b).

(2) This clause applies if a transitional order is made in relation to a port transfer.

(3) At the transfer time of the port transfer by force of this clause —

(a) assets specified in the transitional order under clause 58(1)(a) vest in, or become the property of, the port authority in accordance with the order; and

(b) liabilities specified in the transitional order under clause 58(1)(b) become liabilities of the port authority.

(4) By force of this clause, anything specified in the transitional order under clause 58(1)(c) does not vest in the port authority under clause 57(1).

(5) At the transfer time of the port transfer any right of the State in relation to transferred assets or transferred liabilities becomes by force of this clause a right of the port authority.

(6) From the transfer time of the port transfer by force of this clause —

(a) any proceedings or remedy that might have been commenced by, or available against or to, the State or the Transport Minister in relation to transferred assets or transferred liabilities may be commenced by, or are available against or to, the port authority; and

(b) anything commenced to be done before the transfer time in relation to transferred assets or transferred liabilities by the State, the Transport Minister or the Transport Department may be continued by the port authority; and

(c) anything done or omitted to be done in relation to transferred assets or transferred liabilities before the transfer time by, to or in respect of the State, the Transport Minister or the Transport Department (to the extent that that thing has any effect) is to be taken to have been done or omitted by, to or in respect of the port authority.

(7) In determining the net profits of the port authority for the purposes of section 84, transferred assets are not to be regarded as income.

(8) If at the transfer time of the port transfer a transferred asset or transferred liability is not properly assigned to the port authority by the operation of this Subdivision (whether because the matter is governed otherwise than by the law of the State or for any other reason) —

(a) the State is to be taken to continue to hold that transferred asset or be liable for that transferred liability until it is effectively assigned to the port authority; and

(b) the Transport Department is to take all practicable steps for the purpose of ensuring that the transferred asset or transferred liability is effectively assigned to the port authority.

(9) The fact that subclause (8)(a) applies to a transferred asset or transferred liability does not affect a duty imposed by section 90(2).

(10) By force of this clause, any previous vesting of a transferred asset under another written law ceases to have effect at the transfer time of the port transfer.

[Clause 60 inserted: No. 2 of 2019 s. 51.]

61 . Provisions as to agreements and proceedings

(1) If a transitional order is made in relation to a port transfer then, by force of this clause —

(a) at the transfer time of the port transfer the port authority is substituted in accordance with the order for the State or the Transport Minister as a party to an agreement or instrument specified in the order under clause 58(1)(d); and

(b) from the transfer time of the port transfer an agreement, instrument or document specified in the order under clause 58(1)(e) has effect as if references to the port authority or the CEO or a member of staff were, at the transfer time, substituted in accordance with the order for references in it to the State, the Transport Minister, the Transport Department or the Transport CEO (however expressed); and

(c) from the transfer time of the port transfer an agreement, instrument or document specified in the order under clause 58(1)(f) has effect as if references to this Act or a provision of this Act were, at the transfer time, substituted in accordance with the order for references in it to another enactment; and

(d) from the transfer time of the port transfer an agreement, instrument or document specified in the order under clause 58(1)(g) has effect as if references to the port were, at the transfer time, substituted in accordance with the order for references in it to the existing S&P Act port; and

(e) at the transfer time of the port transfer the port authority is substituted in accordance with the order for the State or the Transport Minister as a party to proceedings specified in the order under clause 58(1)(h).

(2) If subclause (1)(a) applies to an easement, lease or licence in respect of land that becomes vested land at the transfer time of the port transfer, from the transfer time the easement, lease or licence is to be taken to have been granted under this Act with any approval needed under this Act.

(3) Subclause (2) has effect even if a lease or licence was granted for a period exceeding 50 years.

[Clause 61 inserted: No. 2 of 2019 s. 51.]

62 . Navigational aids

(1) Clause 57(1) does not apply to navigational aids.

(2) Without limiting clause 58(2), a navigational aid in, or used in connection with, the existing S&P Act port may be vested in the port authority by a transitional order.

[Clause 62 inserted: No. 2 of 2019 s. 51.]

63 . Harbour masters and deputy harbour masters

(1) In this clause —

deputy harbour master of the port means a person appointed under the Shipping and Pilotage Act 1967 section 7A to be a deputy harbour master;

harbour master has the meaning given in paragraph (a) or (b) of the definition of harbour master in the Shipping and Pilotage Act 1967 section 3.

(2) At the transfer time the appointment of any person who was the harbour master or a deputy harbour master of the existing S&P Act port immediately before the transfer time is revoked by force of this clause.

(3) This clause does not apply to the harbour master or a deputy harbour master of the Port of Derby.

[Clause 63 inserted: No. 2 of 2019 s. 51.]

64 . Pilotage: existing licences

(1) In this clause —

condition includes restriction;

controlled area has the meaning given in the Shipping and Pilotage Act 1967 section 3.

(2) From the transfer time of a port transfer, a person who, immediately before the transfer time, held a licence under the Shipping and Pilotage Act 1967 to act as a pilot for the existing S&P Act port (the licence ) is to be taken to have the approval of the port authority under section 96(1) as a pilot for the port (the transitional approval ).

(3) The effect that the transitional approval has by force of subclause (2) extends to any place within the boundaries of the port or within an area referred to in section 95(2) outside the port as long as that place was, immediately before the transfer time, within the boundaries of the existing S&P Act port or within a controlled area outside the existing S&P Act port.

(4) The effect that the transitional approval has by force of subclause (2) is subject to any condition to which the licence was subject immediately before the transfer time and to any other condition imposed under the regulations.

(5) The transitional approval continues to have effect until —

(a) the period for which the licence would have had effect ends; or

(b) the transitional approval is revoked under section 96(2); or

(d) the period of 2 years beginning at the transfer time ends,

whichever occurs first.

(6) Without limiting clause 70(1), its provisions apply if a transitional approval is revoked under section 96(2).

(7) This clause does not apply to a person if, before the transfer time, the person is approved as a pilot for the port under section 96(1) in accordance with clause 55(1) or the Interpretation Act 1984 section 25.

[Clause 64 inserted: No. 2 of 2019 s. 51.]

65 . Pilotage: existing exemption certificates

(1) In this clause —

condition includes restriction;

controlled area has the meaning given in the Shipping and Pilotage Act 1967 section 3;

S&P Act certificate means a pilotage exemption certificate issued under the Shipping and Pilotage Act 1967 .

(2) From the transfer time of a port transfer, an S&P Act certificate for the existing S&P Act port in force immediately before the transfer time (the existing certificate ) is to be taken to be a pilotage exemption certificate in respect of the port issued under the regulations (the transitional certificate ).

(3) The effect that the transitional certificate has by force of subclause (2) extends to any place within the boundaries of the port or within an area referred to in section 95(2) outside the port as long as that place was, immediately before the transfer time, within the boundaries of the existing S&P Act port or within a controlled area outside the existing S&P Act port.

(4) The effect that the transitional certificate has by force of subclause (2) is subject to any condition to which the existing certificate was subject immediately before the transfer time and to any other condition imposed under the regulations.

(5) The transitional certificate continues to have effect until —

(a) the transitional certificate expires under the regulations; or

(b) the transitional certificate is revoked under the regulations; or

(c) a pilotage exemption certificate in respect of the port is issued to the holder of the transitional certificate under the regulations; or

(d) the period of 2 years beginning at the transfer time ends,

whichever occurs first.

(6) Without limiting clause 70(1), its provisions apply if a transitional certificate is revoked under the regulations.

(7) This clause does not apply to an S&P Act certificate if, before the transfer time, a pilotage exemption certificate in respect of the port is issued to the holder of the S&P Act certificate under the regulations in accordance with clause 55(1) or the Interpretation Act 1984 section 25.

[Clause 65 inserted: No. 2 of 2019 s. 51.]

66 . Jetty licences

(1) In this clause —

continued licence means a jetty licence to which subclause (9) applies;

converted licence means a jetty licence to which subclause (5) applies;

existing jetty means a jetty that, immediately before the transfer time of a port transfer, was wholly or partly within the boundaries of the existing S&P Act port or was used in connection with the operation of the existing S&P Act port;

jetty has the meaning given in the Jetties Act 1926 section 3;

jetty licence means a licence granted under the Jetties Act 1926 ;

licensee includes sub-licensee.

(2) Subject to subclause (3) if —

(a) immediately before the transfer time of a port transfer, an existing jetty was the subject of a jetty licence; and

(b) from the transfer time the existing jetty is wholly on port land,

subclause (5) applies to the jetty licence.

(3) If the port is a port named in section 50(1)(a) or (b) or (2)(a), (b), (c) or (e) of the amending Act, subclause (5) does not apply to the jetty licence unless transitional regulations provide that it does.

(4) Regulations cannot be made for subclause (3) except with the written concurrence of the Agreements Minister.

(5) If this subclause applies to a jetty licence —

(a) at the transfer time the licence ceases to be a licence under the Jetties Act 1926 ; and

(b) at the transfer time the port authority is substituted for the Transport Minister or the Transport CEO (as the case may be) as the grantor of the licence; and

(c) from the transfer time the licence is to be taken to have been granted under this Act with any approval needed under this Act even if the licence was granted for a period exceeding 50 years.

(6) Subject to subclause (7) if, immediately before the transfer time of a port transfer, an existing jetty was the subject of a jetty licence, transitional regulations may prescribe that subclause (9) applies to the jetty licence.

(7) If the port is a port named in section 50(1)(a) or (b) or (2)(a), (b), (c) or (e) of the amending Act, transitional regulations cannot be made for subclause (6) except with the written concurrence of the Agreements Minister.

(8) Subclause (9) does not apply to a jetty licence if subclause (5) applies to it.

(9) If this subclause applies to a jetty licence —

(a) the licence continues in force from the transfer time as a licence under the Jetties Act 1926 ; and

(b) from the transfer time any power exercisable by, or in relation to, the grantor of the licence, whether —

(i) under the licence; or

(ii) under the Jetties Act 1926 in relation to the licence,

is exercisable by, or in relation to, the port authority instead of the grantor of the licence; and

(c) after the transfer time the port authority may, at the request or with the agreement of the holder of the licence, renew or vary the licence under that Act; and

(d) from the transfer time the functions of the port authority are to be taken to extend to the exercise of powers for the purposes of this subclause.

(10) From the transfer time it is to be taken to be a condition of a converted licence or a continued licence that the licensee must comply with any direction given by the port authority to the extent that the direction is given to facilitate —

(a) compliance by the port authority with a requirement under this Act; or

(b) performance by the port authority of its functions.

(11) Without limiting clause 58, an order may be made under clause 58(1)(e), (f) or (g) or (4) in relation to a converted licence or a continued licence.

[Clause 66 inserted: No. 2 of 2019 s. 51.]

Subdivision 3 — General provisions

[Heading inserted: No. 2 of 2019 s. 51.]

67 . Registration of documents

The relevant officials are to take notice of the affecting provisions and are to record and register in the appropriate manner the documents necessary to show the effect of the affecting provisions.

[Clause 67 inserted: No. 2 of 2019 s. 51.]

68 . Exemption from State taxes

(1) In this clause —

State tax includes duty under the Duties Act 2008 and any other tax under a written law.

(2) State tax is not payable in relation to —

(a) anything that occurs by force or because of the affecting provisions; or

[Clause 68 inserted: No. 2 of 2019 s. 51.]

69 . Transitional regulations

(1) Regulations ( transitional regulations ) may prescribe —

(a) things to be done by a Minister, the Transport Department, the Transport CEO or a port authority, to provide for, implement or facilitate a port transfer; and

(b) anything necessary or expedient to be prescribed for providing for a matter or issue of a transitional nature that arises in relation to a port transfer.

(2) Transitional regulations may provide that specific provisions of any written law —

(a) do not apply to or in relation to any matter; or

(b) apply with specific modifications to or in relation to any matter.

(3) If transitional regulations relating to a port transfer provide that a state of affairs specified or described in the regulations is to be taken to have existed, or not to have existed, at and from a time that is earlier than the day on which the regulations are published in the Gazette but not earlier than the transfer time, the regulations have effect according to their terms.

(4) If transitional regulations contain a provision referred to in subclause (3), the provision does not operate so as —

(a) to affect in a manner prejudicial to any person (other than the State or an authority of the State) the rights of that person existing before the day of publication of those regulations; or

(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the day of publication of those regulations.

[Clause 69 inserted: No. 2 of 2019 s. 51.]

70 . Saving

(1) The operation of any of the affecting provisions is not to be regarded —

(a) as a breach of contract or confidence or otherwise as a civil wrong; or

(b) as a breach of any contractual provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities or the disclosure of information; or

(e) as causing any contract or instrument to be void or otherwise unenforceable; or

(f) as releasing or allowing the release of any surety.

(2) This Division and transitional regulations are additional to any relevant provisions of the Interpretation Act 1984 .

[Clause 70 inserted: No. 2 of 2019 s. 51.]

71 . Effect of affecting provisions

Subject to clauses 74 and 75, the affecting provisions have effect despite any provision of this Act or another written law.

[Clause 71 inserted: No. 2 of 2019 s. 51.]

72 . No exclusion of operation of affecting provisions

A provision of an agreement or instrument that purports to in any way exclude the agreement or instrument from the operation of future legislation has no effect in relation to the affecting provisions.

[Clause 72 inserted: No. 2 of 2019 s. 51.]

73 . Effect of continued easements, leases and licences

(1) This clause applies if under clause 61(2) or 66(5) an easement, lease or licence is to be taken, from the transfer time of a port transfer, to have been granted under this Act.

(2) The rights and powers that the grantee, lessee or licensee had under the easement, lease or licence before the transfer time are not adversely affected except to the extent (if any) requested or agreed under subclause (3).

(3) The port authority may, at the request or with the agreement of the grantee, lessee or licensee, renew or vary the easement, lease or licence under this Act.

(4) Subclause (2) does not affect the operation of clause 66(9) or (10).

[Clause 73 inserted: No. 2 of 2019 s. 51.]

74 . Government agreements not affected

The affecting provisions do not prejudice or in any way affect any right or obligation of a party to a Government agreement.

[Clause 74 inserted: No. 2 of 2019 s. 51.]

75 . Preservation of mining, petroleum and other rights

(1) In this clause —

authorisation means —

(a) a mining tenement as defined in the Mining Act 1978 section 8(1); or

(b) an authority to occupy or right of occupancy of any land to which the Mining Act 1978 Second Schedule clause 1(1) applies; or

(c) an exploration licence, retention licence, mining licence, works licence, special purpose consent or other right under the Offshore Minerals Act 2003 ; or

(d) a drilling reservation, lease, licence, permit, pipeline licence, special prospecting authority, access authority or other right under the Petroleum and Geothermal Energy Resources Act 1967 , the Petroleum Pipelines Act 1969 or the Petroleum (Submerged Lands) Act 1982 ; or

(e) any other authorisation of a kind provided for under a written law and prescribed for this paragraph by transitional regulations.

(2) Without limiting clause 74, the affecting provisions as they apply to a port transfer do not —

(a) prejudice or in any way affect an authorisation in effect before the transfer time; or

(b) prejudice or in any way affect any right or obligation of a person under an authorisation in effect before the transfer time; or

(c) prevent an application for an authorisation made but not disposed of before the transfer time from being dealt with after the transfer time; or

(d) prejudice or in any way affect the manner in which an application mentioned in paragraph (c) is dealt with after the transfer time.

[Clause 75 inserted: No. 2 of 2019 s. 51.]

76 . Transitional provision for Schedule 9

If a transfer provision has not come into operation, the reference in the definition of unassigned port in Schedule 9 clause 1 to a port named in Schedule 1 includes a reference to the existing S&P Act port for the port named in that transfer provision.

[Clause 76 inserted: No. 2 of 2019 s. 51.]

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