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Transport Legislation Amendment (Port of Hastings Development Authority) Act 2011

No. 38 of 2011

TABLE OF PROVISIONSSection Page

PART 1—PRELIMINARY 1

1 Purpose 12 Commencement 2

PART 2—AMENDMENT OF TRANSPORT INTEGRATION ACT 2010 3

3 Definitions 34 Definition—Division 3A of Part 6 35 Port of Melbourne Corporation 36 Object of Port of Melbourne Corporation 47 Functions of Port of Melbourne Corporation 48 Dredging by Port of Melbourne Corporation 49 Definition—Division 3B of Part 6 510 Functions of Victorian Regional Channels Authority 511 New division 3C of Part 6 inserted 5

Division 3C—Port of Hastings Development Authority 5

141Q Establishment of Port of Hastings Development Authority 5

141R Port of Hastings Development Authority not to represent the Crown 5

141S Object of Port of Hastings Development Authority 5141T Functions of Port of Hastings Development Authority 6141U Acquisition or disposal of land by Port of Hastings

Development Authority to be approved by Minister 8141V Public interest functions 9

12 Determination of initial capital 1013 Capital 1014 Repayment of capital 1015 Annual report 1016 Corporate plan 1017 Statement of corporate intent 1118 Corporate plan to be followed 1119 Board of directors to give notice of significant events 11

1

20 New section 201D inserted 11201D Substitution of parties to channel operating agreement—

Transport Legislation Amendment (Port of Hastings Development Authority) Act 2011 11

21 New Part 9 inserted 12

PART 9—TRANSPORT LEGISLATION AMENDMENT (PORT OF HASTINGS DEVELOPMENT AUTHORITY) ACT 20111 12

Division 1—Transfer of property and staff to the Port of Hastings Development Authority 12

207 Definitions—Division 1 12208 Minister may direct transfer of Port of Melbourne

Corporation property to Port of Hastings Development Authority 14

209 Property transferred in accordance with direction—Port of Hastings Development Authority 16

210 Allocation of property etc. subject to encumbrances—Port of Hastings Development Authority 16

211 Certificate of chief executive officer—Port of Hastings Development Authority 17

212 Value of transferred property—Port of Hastings Development Authority 18

213 Substitution of party to agreement—Port of Hastings Development Authority 18

214 Former Port of Melbourne Corporation instruments—Port of Hastings Development Authority 19

215 Proceedings—Port of Hastings Development Authority 19216 Interests in land—Port of Hastings Development

Authority 19217 Easements—Port of Hastings Development Authority 20218 Amendment of Register—Port of Hastings

Development Authority 20219 Taxes—Port of Hastings Development Authority 21220 Evidence—Port of Hastings Development Authority 21221 Validity of things done under this Division 21222 Minister may direct Port of Melbourne Corporation to

lease land to Port of Hastings Development Authority 23223 Transfer of staff from Port of Melbourne Corporation

to Port of Hastings Development Authority 23

Division 2—Transfer of property to Victorian Regional Channels Authority 25

224 Definitions—Division 2 25225 Minister may direct transfer of Port of Melbourne

Corporation property to Victorian Regional Channels Authority 27

226 Property transferred in accordance with direction—Victorian Regional Channels Authority 29

227 Allocation of property etc. subject to encumbrances—Victorian Regional Channels Authority 29

228 Certificate of chief executive officer—Victorian Regional Channels Authority 30

229 Value of transferred property—Victorian Regional Channels Authority 31

230 Substitution of party to agreement—Victorian Regional Channels Authority 31

231 Former Port of Melbourne Corporation instruments—Victorian Regional Channels Authority 31

232 Proceedings—Victorian Regional Channels Authority 32233 Interests in land—Victorian Regional Channels

Authority 32234 Easements—Victorian Regional Channels Authority 33235 Amendment of Register—Victorian Regional Channels

Authority 33236 Taxes—Victorian Regional Channels Authority 34237 Evidence—Victorian Regional Channels Authority 34238 Validity of things done under this Division 34239 Minister may direct Port of Melbourne Corporation to

lease land to Victorian Regional Channels Authority 36

PART 3—AMENDMENT OF PORT MANAGEMENT ACT 1995 37

22 Definitions 3723 Port operations 3724 Definitions—Part 3 3825 General power to make determinations 3826 Wharfage fees 3927 New section 74A inserted 39

74A Wharfage fees—Port of Hastings 3928 Payment of wharfage and channel fees 4029 Interest on overdue payments 4130 Security for payment of wharfage and channel fees 4131 Waiver or refund of wharfage or channel fees 4132 Definitions—Part 5A 4233 Making a declaration of restricted access area 4234 Definitions—Part 6B 43

PART 4—CONSEQUENTIAL AMENDMENTS 44

35 Schedule 1—Borrowing and Investment Powers Act 1987 4436 Definitions—Marine Act 1988 4437 Requirement to engage harbour master—Marine Act 1988 4438 Authorisation to act as a harbour master—Marine Act 1988 4539 Definitions—Marine Safety Act 2010 4540 Certain entities must engage harbour masters—Marine Safety

Act 2010 4541 Authorisation to act as assistant harbour master—Marine

Safety Act 2010 4642 Disclosure of information—Road Safety Act 1986 4643 Definitions—Treasury Corporation of Victoria Act 1992 4644 Schedule 1—Treasury Corporation of Victoria Act 1992 47

PART 5—REPEAL OF AMENDING ACT 48

45 Repeal of amending Act 48═══════════════

ENDNOTES 49

Transport Legislation Amendment (Port of Hastings Development

Authority) Act 2011†

No. 38 of 2011

[Assented to 23 August 2011]

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1 Purpose

The main purpose of this Act is to promote increased capacity and competition in the container ports sector by amending the Transport Integration Act 2010, the Port Management Act 1995 and other Acts to provide for—

Victoria

1

(a) the establishment of the Port of Hastings Development Authority;

(b) the transfer of functions relating to the port of Hastings from the Port of Melbourne Corporation to the Port of Hastings Development Authority;

(c) the transfer of functions relating to port of Hastings waters from the Port of Melbourne Corporation to the Victorian Regional Channels Authority;

(d) the making of consequential and transitional amendments.

2 Commencement

(1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2) If a provision of this Act does not come into operation by 1 January 2012, it comes into operation on that day.

__________________

Section Page

2

s. 2

PART 2—AMENDMENT OF TRANSPORT INTEGRATION ACT 2010

3 Definitionss. 3

See:Act No.6/2010.Reprint No. 1as at1 September 2010and amendingAct Nos13/2009, 6/2010, 54/2010, 65/2010 and 79/2010.LawToday:www.legislation.vic.gov.au

(1) In section 3 of the Transport Integration Act 2010, insert the following definition—

"Port of Hastings Development Authority means the body corporate established under section 141Q;".

(2) In section 3 of the Transport Integration Act 2010, after paragraph (p) of the definition of transport body insert—

"(q) the Port of Hastings Development Authority;".

(3) In the definition of Transport Corporation in section 3 of the Transport Integration Act 2010—

(a) in paragraph (e), for "Authority;" substitute "Authority; or";

(b) after paragraph (e) insert—

"(f) the Port of Hastings Development Authority;".

4 Definition—Division 3A of Part 6

Section 141A of the Transport Integration Act 2010 is repealed.

Part 5—Repeal of Amending Act


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5 Port of Melbourne Corporation

(1) Section 141B(3) of the Transport Integration Act 2010 is repealed.

(2) Section 141B(4) of the Transport Integration Act 2010 is repealed.

6 Object of Port of Melbourne Corporation

(1) In section 141D(1) of the Transport Integration Act 2010, for "PoMC ports" substitute "port of Melbourne".

(2) In section 141D(2) of the Transport Integration Act 2010—

(a) in paragraph (a), for "PoMC ports are" substitute "port of Melbourne is";

(b) in paragraphs (b) and (c), for "PoMC ports" (wherever occurring) substitute "port of Melbourne";

(c) in paragraph (d), omit "and port of Hastings waters".

7 Functions of Port of Melbourne Corporation

(1) In section 141E(1) of the Transport Integration Act 2010—

(a) for "PoMC ports" (wherever occurring) substitute "port of Melbourne";

(b) in paragraph (g), for "outside the ports" substitute "outside the port of Melbourne";

(c) in paragraphs (h), (i) and (j), omit "and port of Hastings waters" (wherever occurring);

(d) in paragraph (j), for "Marine Act 1988" substitute "Marine Safety Act 2010".

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(2) In section 141E(2) of the Transport Integration Act 2010, for "PoMC ports" (wherever occurring) substitute "port of Melbourne".

8 Dredging by Port of Melbourne Corporation

In section 141F of the Transport Integration Act 2010, omit "or port of Hastings waters" (wherever occurring).

9 Definition—Division 3B of Part 6

In the definition of regional port waters in section 141I of the Transport Integration Act 2010, paragraph (b) is repealed.

10 Functions of Victorian Regional Channels Authority

In section 141M(1)(a)(iii) of the Transport Integration Act 2010, for "Marine Act 1988" substitute "Marine Safety Act 2010".

11 New division 3C of Part 6 inserted

After Division 3B of Part 6 of the Transport Integration Act 2010, insert—

"Division 3C—Port of Hastings Development Authority

141Q Establishment of Port of Hastings Development Authority

The Port of Hastings Development Authority is established.

141R Port of Hastings Development Authority not to represent the Crown

The Port of Hastings Development Authority is a public entity, but does not represent the Crown.

141S Object of Port of Hastings Development Authority



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(1) The primary object of the Port of Hastings Development Authority is—

(a) to manage and operate the port of Hastings; and

(b) to facilitate the development of the port of Hastings as a viable alternative to the port of Melbourne as a container port in order to increase capacity and competition in the container ports sector to accommodate future growth in trade—

consistently with the vision statement and the transport system objectives.

(2) Without limiting the generality of subsection (1), the primary object includes the following—

(a) to seek to ensure, in collaboration with relevant responsible bodies, that appropriate transport infrastructure is provided to support the growth and development of the port of Hastings;

(b) to ensure, in collaboration with relevant responsible bodies, that the port of Hastings is effectively integrated with the transport system and other systems of infrastructure in the State;

(c) to facilitate, in collaboration with relevant responsible bodies, the sustainable growth of trade through the port of Hastings;

(d) to ensure that essential port services of the port of Hastings are available and cost effective.

141T Functions of Port of Hastings Development Authority



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(1) The functions of the Port of Hastings Development Authority are—

(a) to plan for the development and operation of the port of Hastings;

(b) to provide land, waters and infrastructure necessary for the development and operation of the port of Hastings;

(c) to develop, or enable and control the development by others of, the whole or any part of the port of Hastings;

(d) to manage, or enable and control the management by others of, the whole or any part of the port of Hastings;

(e) to provide, or enable and control the provision by others of, services for the operation of the port of Hastings;

(f) to promote and market the port of Hastings;

(g) to facilitate the integration of infrastructure and logistics systems in the port of Hastings with the transport system and other relevant systems outside the port;

(h) to perform functions in accordance with a direction given by the Minister under section 141V;

(i) to perform any other functions or duties conferred on the Port of Hastings Development Authority by any other Act or any regulations under any other Act.

(2) In performing the functions conferred on the Port of Hastings Development Authority, the

s. 11s. 11Part 5—Repeal of Amending Act


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Port of Hastings Development Authority must—

(a) carry out its functions consistently with State policies and strategies for the development of the Victorian port and freight networks; and

(b) to the extent that it is possible to do so consistently with paragraph (a), operate in a commercially sound manner having regard to—

(i) the benefits of increased competition between persons and bodies that provide services related to the operation of the port of Hastings;

(ii) the persons living or working in the immediate neighbourhood of the port of Hastings;

(iii) the need to conduct research and collect information relating to the performance of the functions and the operation of the port of Hastings so as to enable the Port of Hastings Development Authority to meet the primary object of the Port of Hastings Development Authority;

(iv) the need to deal efficiently with any complaints relating to the performance of its functions.

141U Acquisition or disposal of land by Port of Hastings Development Authority to be approved by Minister



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(1) The Port of Hastings Development Authority must obtain the approval of the Minister before acquiring or disposing of any interest in land.

(2) Subsection (1) does not apply to any interest in land or class of interest in land exempted by the Minister by notice in writing given to the Port of Hastings Development Authority.

141V Public interest functions

(1) The Minister, with the approval of the Treasurer, may direct the board of the Port of Hastings Development Authority—

(a) to perform certain functions that the Minister considers to be in the public interest but that may cause the Port of Hastings Development Authority to suffer financial detriment; or

(b) to cease to perform functions of a kind referred to in paragraph (a); or

(c) to cease to perform certain functions that the Minister considers not to be in the public interest.

(2) The board of the Port of Hastings Development Authority must comply with a direction given under subsection (1).

(3) If the Port of Hastings Development Authority satisfies the Treasurer that it has suffered financial detriment as a result of complying with a direction given under subsection (1), the Port of Hastings Development Authority may be reimbursed by the State an amount determined by the Treasurer and the Consolidated Fund is



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hereby appropriated to the necessary extent accordingly.

(4) The reference in this section to suffering financial detriment includes a reference to incurring net costs that are greater than would have been incurred if the direction were not complied with.".

12 Determination of initial capital

In section 158(6) of the Transport Integration Act 2010, after "Port of Melbourne Corporation" insert ", the Port of Hastings Development Authority".

13 Capital


14 Repayment of capital


15 Annual report

After section 164(3) of the Transport Integration Act 2010, insert—

"(4) The Port of Hastings Development Authority, in its annual report for a financial year under Part 7 of the Financial Management Act 1994, must include a copy of each direction given to it during that year



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under section 141V together with a statement of its response to that direction.".

16 Corporate plan


17 Statement of corporate intent


18 Corporate plan to be followed


19 Board of directors to give notice of significant events


20 New section 201D inserted

After section 201C of the Transport Integration Act 2010, insert—

"201D Substitution of parties to channel operating agreement—Transport Legislation Amendment (Port of Hastings Development Authority) Act 2011



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(1) In this section, channel operating agreement means the agreement commencing on 15 June 2007 (as from time to time amended, supplemented or novated) in relation to the operation and maintenance of channels in port of Hastings waters between—

(a) the Crown in right of the State of Victoria; and

(b) the Victorian Regional Channels Authority; and

(c) Toll Transport Pty Ltd (ABN 31 006 604 191).

(2) On and from the commencement of this section, the Victorian Regional Channels Authority is taken to be substituted for the Port of Melbourne Corporation as a party to the channel operating agreement.

(3) For the purposes of subsection (2), in the Port Management Act 1995 a reference to the channel operator for port of Hastings waters is taken to be a reference to—

(a) Toll Transport Pty Ltd (ABN 31 006 604 191); or

(b) if that person has assigned to another person the right, power or duty that is relevant to that reference, that other person.".

21 New Part 9 inserted

After Part 8 of the Transport Integration Act 2010 insert—



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"PART 9—TRANSPORT LEGISLATION AMENDMENT (PORT OF HASTINGS

DEVELOPMENT AUTHORITY) ACT 2011

Division 1—Transfer of property and staff to the Port of Hastings Development Authority

207 Definitions—Division 1

(1) In this Division—

allocation statement means an allocation statement given under section 208(3) and approved by the Minister under section 208(5) and includes a statement that has been amended under section 208(7) and (8);

former Port of Melbourne Corporation instrument means an instrument (including a legislative instrument other than this Act) or an oral agreement subsisting immediately before the relevant date—

(a) to which the Port of Melbourne Corporation was a party; or

(b) that was given to, or in favour of, the Port of Melbourne Corporation; or

(c) that refers to the Port of Melbourne Corporation; or

(d) under which—

(i) money is, or may become, payable to the Port of Melbourne Corporation; or

(ii) other property is to be, or may become liable to be, transferred to or by the Port of Melbourne Corporation;



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former Port of Melbourne Corporation property means property, rights or liabilities of the Port of Melbourne Corporation that, under this Division, have vested in, or become liabilities of, the Port of Hastings Development Authority;

instrument includes a document and an oral agreement;

liabilities means all liabilities, duties and obligations, whether actual, contingent or prospective;

property means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description;

relevant date, in relation to an allocation statement or property, rights or liabilities allocated under such a statement, means the date fixed by the Minister under subsection (2) for the purposes of that statement;

rights means all rights, powers, privileges and immunities, whether actual, contingent or prospective.

(2) The Minister, by notice published in the Government Gazette, may fix the relevant date for the purposes of an allocation statement.

208 Minister may direct transfer of Port of Melbourne Corporation property to Port of Hastings Development Authority

(1) The Minister may give a direction in writing to the Port of Melbourne Corporation



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directing it to transfer, in accordance with the direction, any property, rights and liabilities of a kind specified in the statement to the Port of Hastings Development Authority.

(2) A direction under subsection (1) may include directions as to the method of valuation to be used by the Port of Melbourne Corporation for the purposes of determining the value of property, rights and liabilities to be transferred.

(3) Within 45 days after receiving a direction under subsection (1), the Port of Melbourne Corporation must give to the Minister a statement containing the information required by the Minister relating to the property, rights and liabilities of the Port of Melbourne Corporation to which the direction relates, as at the date specified by the Minister for the purposes of this section.

(4) A statement under this section—

(a) must give the value of the property, rights and liabilities of the Port of Melbourne Corporation to be transferred; and

(b) must allocate the property, rights and liabilities of the Port of Melbourne Corporation shown in the statement in accordance with the directions of the Minister; and

(c) must be signed by the chief executive officer of the Port of Melbourne Corporation.



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(5) If a statement under this section is approved by the Minister—

(a) the Minister must sign the statement; and

(b) the statement is an allocation statement for the purposes of this Division.

(6) The Minister may at any time direct the Port of Melbourne Corporation to amend a statement given to him or her under this section as specified in the direction.

(7) An allocation statement under this section may be amended by writing signed by the Minister.

(8) An amendment under subsection (7) to an allocation statement made after the relevant date in relation to that statement may be made with effect from that relevant date if the Minister is satisfied that the amendment does not adversely affect any property, rights or liabilities of a person other than the Port of Melbourne Corporation or the Port of Hastings Development Authority in relation to that statement.

209 Property transferred in accordance with direction—Port of Hastings Development Authority

On the relevant date—

(a) all property and rights of the Port of Melbourne Corporation, wherever located, that are allocated under an allocation statement, vest in the Port of Hastings Development Authority in accordance with the statement;

(b) all liabilities of the Port of Melbourne Corporation, wherever located, that are



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allocated under an allocation statement, become liabilities of the Port of Hastings Development Authority in accordance with the statement.

210 Allocation of property etc. subject to encumbrances—Port of Hastings Development Authority

Unless an allocation statement otherwise provides, where, under this Division—

(a) property and rights vest in; or

(b) liabilities become liabilities of—

the Port of Hastings Development Authority in accordance with an allocation statement—

(c) the property and rights so vested are subject to the encumbrances (if any) to which they were subject immediately before so vesting; and

(d) the rights to which the Port of Melbourne Corporation was entitled in respect of those liabilities immediately before they ceased to be liabilities of the Port of Melbourne Corporation vest in the Port of Hastings Development Authority.

211 Certificate of chief executive officer—Port of Hastings Development Authority

(1) A certificate signed by the chief executive officer of the Port of Melbourne Corporation certifying that property, rights or liabilities of the Port of Melbourne specified in the certificate have been allocated under an allocation statement is, unless revoked under subsection (2), admissible in evidence in any proceedings and, in absence of evidence to the contrary is proof—



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(a) that the property, rights or liabilities so specified are the property rights and liabilities to which the allocation statement applies; and

(b) that the allocation statement is an allocation statement for the purposes of this Division.

(2) If the Minister so directs the chief executive officer of the Port of Melbourne Corporation in writing, the chief executive officer must revoke a certificate given under subsection (1) by issuing another certificate in place of the first certificate.

(3) The chief executive officer of the Port of Melbourne Corporation—

(a) must keep a register of certificates issued under this section; and

(b) must make the register reasonably available for inspection by the Port of Hastings Development Authority or other interested person.

212 Value of transferred property—Port of Hastings Development Authority

If the relevant allocation statement gives the value of property, rights or liabilities of the Port of Melbourne Corporation that are allocated to the Port of Hastings Development Authority, the value to the Port of Hastings Development Authority of the property, rights or liabilities is the value so given.

213 Substitution of party to agreement—Port of Hastings Development Authority

Where, under an allocation statement, the rights and liabilities of the Port of Melbourne



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Corporation under an agreement are allocated to the Port of Hastings Development Authority—

(a) the Port of Hastings Development Authority becomes, on the relevant date, a party to the agreement in place of the Port of Melbourne Corporation; and

(b) on and after the relevant date, the agreement has effect as if the Port of Hastings Development Authority had always been a party to the agreement.

214 Former Port of Melbourne Corporation instruments—Port of Hastings Development Authority

Each former Port of Melbourne Corporation instrument relating to former Port of Melbourne Corporation property continues to have effect according to its tenor on and after the relevant date in relation to that property as if a reference in the instrument to the Port of Melbourne Corporation were a reference to the Port of Hastings Development Authority.

215 Proceedings—Port of Hastings Development Authority

Unless an allocation statement otherwise provides, if, immediately before the relevant date, proceedings relating to former Port of Melbourne Corporation property (including arbitration proceedings) to which the Port of Melbourne Corporation was a party were pending or existing in any court or tribunal, then, on and after that date, the Port of Hastings Development Authority is substituted for the Port of Melbourne



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Corporation as a party to the proceedings and has the same rights in the proceedings as the Port of Melbourne Corporation had.

216 Interests in land—Port of Hastings Development Authority

Without limiting this Division and despite anything to the contrary in any other Act or law if, immediately before the relevant date, the Port of Melbourne Corporation is, in relation to former Port of Melbourne Corporation property, the registered proprietor of an interest in land under the Transfer of Land Act 1958, then on and after that date—

(a) the Port of Hastings Development Authority is to be taken to be the registered proprietor of that interest in land; and

(b) the Port of Hastings Development Authority has the same rights and remedies in respect of that interest as the Port of Melbourne Corporation had.

217 Easements—Port of Hastings Development Authority

If the Port of Hastings Development Authority acquires any right in the nature of an easement, that right must be taken to be an easement even though there is no land vested in the Port of Hastings Development Authority which is benefited or capable of being benefited by that right.

218 Amendment of Register—Port of Hastings Development Authority

(1) The Registrar of Titles, on being requested to do so and on delivery of any relevant



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certificate of title or instrument and certificate of the chief executive officer of the Port of Melbourne Corporation of former Port of Melbourne Corporation property, must make any amendments in the Register that are necessary because of the operation of this Division.

(2) Despite subsection (1), it is not necessary to produce a certificate of title in the case of a request for amendment of the Register in relation to property that is an easement registered under the Transfer of Land Act 1958.

219 Taxes—Port of Hastings Development Authority

No stamp duty or other tax is chargeable under any Act in respect of anything effected by or done under this Division or in respect of any act or transaction connected with or necessary to be done by reason of this Division, including a transaction entered into or an instrument made, executed, lodged or given, for the purpose of, or connected with the transfer of property, rights or liabilities of the Port of Melbourne Corporation.

220 Evidence—Port of Hastings Development Authority

(1) Documentary or other evidence that would have been admissible for or against the interests of the Port of Melbourne Corporation in relation to former Port of Melbourne Corporation property if this Division had not been enacted, is admissible for or against the interests of the Port of Hastings Development Authority.



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(2) The Evidence Act 2008 applies with respect to the books of account of the Port of Melbourne Corporation and to entries made in those books of account before the relevant date, whether or not they relate to former Port of Melbourne Corporation property, as if those books of account and entries were business records.

221 Validity of things done under this Division

(1) Nothing effected or to be effected by this Division or done or suffered under this Division—

(a) is to be regarded as placing any person in breach of contract or confidence or as otherwise making any person guilty of a civil wrong; or

(b) is to be regarded as placing any person in breach of, or as constituting a default under, any Act or other law or obligation or any provision in any agreement, arrangement or understanding including, but not limited to, any provision or obligation prohibiting, restricting or regulating the assignment, transfer, sale or disposal of any property or the disclosure of any information; or

(c) is to be regarded as fulfilling any condition that allows a person to exercise a power, right or remedy in respect of or to terminate any agreement or obligation; or

(d) is to be regarded as giving rise to any remedy for a party to a contract or an instrument or as causing or permitting



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the termination of any contract or instrument because of a change in the beneficial or legal ownership of any asset, right or liability; or

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

(f) is to be regarded as frustrating any contract; or

(g) releases any surety or other obligor wholly or in part from any obligation.

(2) In this section Act does not include the Charter of Human Rights and Responsibilities Act 2006.

222 Minister may direct Port of Melbourne Corporation to lease land to Port of Hastings Development Authority

The Minister, after consultation with the Minister administering Part II of the Transport (Compliance and Miscellaneous) Act 1983, may in writing direct the Port of Melbourne Corporation to lease any land vested in it to the Port of Hastings Development Authority, on the terms and conditions specified in the direction.

223 Transfer of staff from Port of Melbourne Corporation to Port of Hastings Development Authority

(1) In this section—

2011 Act means the Transport Legislation Amendment (Port of Hastings Development Authority) Act 2011;



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Port of Hastings commencement means the day on which sections 6, 7 and 11 of the 2011 Act come into operation.

(2) The Secretary must list in writing the employees and officers of the Port of Melbourne Corporation employed by the Port of Melbourne Corporation immediately before the Port of Hastings commencement who are to be employed by the Port of Hastings Development Authority.

(3) An employee or officer listed under subsection (2) is taken—

(a) to be employed by the Port of Hastings Development Authority with effect from the Port of Hastings commencement; and

(b) to be employed by the Port of Hastings Development Authority on the same terms and conditions as those that applied to the employee or officer, immediately before that commencement, as an employee or officer of the Port of Melbourne Corporation; and

(c) having accrued an entitlement to benefits in connection with that employment by the Port of Hastings Development Authority, that is equivalent to the entitlement that the employee or officer had accrued, as an employee or officer of the Port of Melbourne Corporation, immediately before that commencement.



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(4) The service of an employee or officer listed under subsection (2) is to be regarded for all purposes as having been continuous with the service of the employee or officer, immediately before the Port of Hastings commencement, as an employee or officer of the Port of Melbourne Corporation.

(5) An employee or officer listed under subsection (2) is not entitled to receive any payment or other benefit by reason only of having ceased to be an employee or officer of the Port of Melbourne Corporation because of the operation of this Division.

(6) The superannuation entitlements of any employee or officer listed under subsection (2) are taken not to be affected by that employee or officer becoming an employee or officer of the Port of Hastings Development Authority.

(7) Nothing in this section prevents—

(a) any of the terms and conditions of employment of an employee or officer listed under subsection (2) from being altered by or under any law, award or agreement with effect from any time after the Port of Hastings commencement; or

(b) an employee or officer listed under subsection (2) from resigning or being dismissed at any time after the Port of Hastings commencement in accordance with the then existing terms and conditions of that employee or officer's employment.

Division 2—Transfer of property to Victorian Regional Channels Authority



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224 Definitions—Division 2

(1) In this Division—

allocation statement means an allocation statement given under section 225(3) and approved by the Minister under section 225(5) and includes a statement that has been amended under section 225(7) and (8);

former Port of Melbourne Corporation instrument means an instrument (including a legislative instrument other than this Act) or an oral agreement subsisting immediately before the relevant date—

(a) to which the Port of Melbourne Corporation was a party; or

(b) that was given to, or in favour of, the Port of Melbourne Corporation; or

(c) that refers to the Port of Melbourne Corporation; or

(d) under which—

(i) money is, or may become, payable to the Port of Melbourne Corporation; or

(ii) other property is to be, or may become liable to be, transferred to or by the Port of Melbourne Corporation;

former Port of Melbourne Corporation property means property, rights or liabilities of the Port of Melbourne Corporation that, under this Division, have vested in, or become liabilities of,



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the Victorian Regional Channels Authority;

instrument includes a document and an oral agreement;

liabilities means all liabilities, duties and obligations, whether actual, contingent or prospective;

property means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description;

relevant date, in relation to an allocation statement or property, rights or liabilities allocated under such a statement, means the date fixed by the Minister under subsection (2) for the purposes of that statement;

rights means all rights, powers, privileges and immunities, whether actual, contingent or prospective.

(2) The Minister, by notice published in the Government Gazette, may fix the relevant date for the purposes of an allocation statement.

225 Minister may direct transfer of Port of Melbourne Corporation property to Victorian Regional Channels Authority

(1) The Minister may give a direction in writing to the Port of Melbourne Corporation directing it to transfer, in accordance with the direction, any property, rights and liabilities of a kind specified in the direction to the Victorian Regional Channels Authority.



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(2) A direction under subsection (1) may include directions as to the method of valuation to be used by the Port of Melbourne Corporation for the purposes of determining the value of property, rights and liabilities to be transferred.

(3) Within 45 days after receiving a direction under subsection (1), the Port of Melbourne Corporation must give to the Minister a statement containing the information required by the Minister relating to the property, rights and liabilities of the Port of Melbourne Corporation to which the direction relates, as at the date specified by the Minister for the purposes of this section.

(4) A statement under this section—

(a) must give the value of the property, rights and liabilities of the Port of Melbourne Corporation to be transferred; and

(b) must allocate the property, rights and liabilities of the Port of Melbourne Corporation shown in the statement in accordance with the directions of the Minister; and

(c) must be signed by the chief executive officer of the Port of Melbourne Corporation.

(5) If a statement under this section is approved by the Minister—

(a) the Minister must sign the statement; and

(b) the statement is an allocation statement for the purposes of this Division.



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(6) The Minister may at any time direct the Port of Melbourne Corporation to amend a statement given to him or her under this section as specified in the direction.

(7) An allocation statement under this section may be amended by writing signed by the Minister.

(8) An amendment under subsection (7) to an allocation statement made after the relevant date in relation to that statement may be made with effect from that relevant date if the Minister is satisfied that the amendment does not adversely affect any property, rights or liabilities of a person other than the Port of Melbourne Corporation or the Victorian Regional Channels Authority in relation to that statement.

226 Property transferred in accordance with direction—Victorian Regional Channels Authority

On the relevant date—

(a) all property and rights of the Port of Melbourne Corporation, wherever located, that are allocated under an allocation statement, vest in the Victorian Regional Channels Authority in accordance with the statement;

(b) all liabilities of the Port of Melbourne Corporation, wherever located, that are allocated under an allocation statement, become liabilities of the Victorian Regional Channels Authority in accordance with the statement.

227 Allocation of property etc. subject to encumbrances—Victorian Regional Channels Authority



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Unless an allocation statement otherwise provides, where, under this Division—

(a) property and rights vest in; or

(b) liabilities become liabilities of—

the Victorian Regional Channels Authority in accordance with an allocation statement—

(c) the property and rights so vested are subject to the encumbrances (if any) to which they were subject immediately before so vesting; and

(d) the rights to which the Port of Melbourne Corporation was entitled in respect of those liabilities immediately before they ceased to be liabilities of the Port of Melbourne Corporation vest in the Victorian Regional Channels Authority.

228 Certificate of chief executive officer—Victorian Regional Channels Authority

(1) A certificate signed by the chief executive officer of the Port of Melbourne Corporation certifying that property, rights or liabilities of the Port of Melbourne specified in the certificate have been allocated is, unless revoked under subsection (2), admissible in evidence and, in the absence of evidence to the contrary is proof—

(a) that the property, rights or liabilities so specified are the property rights and liabilities to which the allocation statement applies; and

(b) that the allocation statement is an allocation statement for the purposes of this Division.



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(2) If the Minister so directs the chief executive officer of the Port of Melbourne Corporation in writing, the chief executive officer must revoke a certificate given under subsection (1) by issuing another certificate in place of the first certificate.

(3) The chief executive officer of the Port of Melbourne Corporation—

(a) must keep a register of certificates issued under this section; and

(b) must make the register reasonably available for inspection by the Victorian Regional Channels Authority or other interested person.

229 Value of transferred property—Victorian Regional Channels Authority

If the relevant allocation statement gives the value of property, rights or liabilities of the Port of Melbourne Corporation that are allocated to the Victorian Regional Channels Authority, the value to the Victorian Regional Channels Authority of the property, rights or liabilities is the value so given.

230 Substitution of party to agreement—Victorian Regional Channels Authority

Where, under an allocation statement, the rights and liabilities of the Port of Melbourne Corporation under an agreement are allocated to the Victorian Regional Channels Authority—

(a) the Victorian Regional Channels Authority becomes, on the relevant date, a party to the agreement in place



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of the Port of Melbourne Corporation; and

(b) on and after the relevant date, the agreement has effect as if the Victorian Regional Channels Authority had always been a party to the agreement.

231 Former Port of Melbourne Corporation instruments—Victorian Regional Channels Authority

Each former Port of Melbourne Corporation instrument relating to former Port of Melbourne Corporation property continues to have effect according to its tenor on and after the relevant date in relation to that property as if a reference in the instrument to the Port of Melbourne Corporation were a reference to the Victorian Regional Channels Authority.

232 Proceedings—Victorian Regional Channels Authority

Unless an allocation statement otherwise provides, if, immediately before the relevant date, proceedings relating to former Port of Melbourne Corporation property (including arbitration proceedings) to which the Port of Melbourne Corporation was a party were pending or existing in any court or tribunal, then, on and after that date, the Victorian Regional Channels Authority is substituted for the Port of Melbourne Corporation as a party to the proceedings and has the same rights in the proceedings as the Port of Melbourne Corporation had.

233 Interests in land—Victorian Regional Channels Authority



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Without limiting this Division and despite anything to the contrary in any other Act or law if, immediately before the relevant date, the Port of Melbourne Corporation is, in relation to former Port of Melbourne Corporation property, the registered proprietor of an interest in land under the Transfer of Land Act 1958, then on and after that date—

(a) the Victorian Regional Channels Authority is to be taken to be the registered proprietor of that interest in land; and

(b) the Victorian Regional Channels Authority has the same rights and remedies in respect of that interest as the Port of Melbourne Corporation had.

234 Easements—Victorian Regional Channels Authority

If the Victorian Regional Channels Authority acquires any right in the nature of an easement (whether as a result of an allocation under this Division or otherwise), that right must be taken to be an easement even though there is no land vested in the Victorian Regional Channels Authority which is benefited or capable of being benefited by that right.

235 Amendment of Register—Victorian Regional Channels Authority

(1) The Registrar of Titles, on being requested to do so and on delivery of any relevant certificate of title or instrument and certificate of the chief executive officer of the Port of Melbourne Corporation of former Port of Melbourne Corporation property,



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must make any amendments in the Register that are necessary because of the operation of this Division.

(2) Despite subsection (1), it is not necessary to produce a certificate of title in the case of a request for amendment of the Register in relation to property that is an easement registered under the Transfer of Land Act 1958.

236 Taxes—Victorian Regional Channels Authority

No stamp duty or other tax is chargeable under any Act in respect of anything effected by or done under this Division or in respect of any act or transaction connected with or necessary to be done by reason of this Division, including a transaction entered into or an instrument made, executed, lodged or given, for the purpose of, or connected with the transfer of property, rights or liabilities of the Port of Melbourne Corporation.

237 Evidence—Victorian Regional Channels Authority

(1) Documentary or other evidence that would have been admissible for or against the interests of the Port of Melbourne Corporation in relation to former Port of Melbourne Corporation property if this Division had not been enacted is admissible for or against the interests of the Victorian Regional Channels Authority.



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(2) The Evidence Act 2008 applies with respect to the books of account of the Port of Melbourne Corporation and to entries made in those books of account before the relevant date, whether or not they relate to former Port of Melbourne Corporation property, as if those books of account and entries were business records.

238 Validity of things done under this Division

(1) Nothing effected or to be effected by this Division or done or suffered under this Division—

(a) is to be regarded as placing any person in breach of contract or confidence or as otherwise making any person guilty of a civil wrong; or

(b) is to be regarded as placing any person in breach of, or as constituting a default under, any Act or other law or obligation or any provision in any agreement, arrangement or understanding including, but not limited to, any provision or obligation prohibiting, restricting or regulating the assignment, transfer, sale or disposal of any property or the disclosure of any information; or

(c) is to be regarded as fulfilling any condition that allows a person to exercise a power, right or remedy in respect of or to terminate any agreement or obligation; or

(d) is to be regarded as giving rise to any remedy for a party to a contract or an instrument or as causing or permitting



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the termination of any contract or instrument because of a change in the beneficial or legal ownership of any asset, right or liability; or

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

(f) is to be regarded as frustrating any contract; or

(g) releases any surety or other obligor wholly or in part from any obligation.

(2) In this section Act does not include the Charter of Human Rights and Responsibilities Act 2006.

239 Minister may direct Port of Melbourne Corporation to lease land to Victorian Regional Channels Authority

The Minister, after consultation with the Minister administering Part II of the Transport (Compliance and Miscellaneous) Act 1983, may in writing direct the Port of Melbourne Corporation to lease any land vested in it to the Victorian Regional Channels Authority, on the terms and conditions specified in the direction.

__________________".

__________________



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PART 3—AMENDMENT OF PORT MANAGEMENT ACT 1995

22 Definitionss. 22

See:Act No.82/1995.Reprint No. 5as at31 July 2009and amendingAct Nos82/1995, 69/2009, 93/2009, 6/2010, 45/2010, 65/2010 and 74/2010.LawToday:www.legislation.vic.gov.au

(1) In section 3(1) of the Port Management Act 1995, in paragraph (a) of the definition of channel operator, omit "or port of Hastings waters".

(2) In section 3(1) of the Port Management Act 1995, in the definition of port corporation, after "Port of Melbourne Corporation" insert ", Port of Hastings Development Authority".

(3) In section 3(1) of the Port Management Act 1995, insert the following definition—

"Port of Hastings Development Authority has the same meaning as in the Transport Integration Act 2010;".

23 Port operations

(1) In section 17E(1) of the Port Management Act 1995, for "Port of Melbourne Corporation" substitute "Port of Hastings Development Authority".

(2) In section 17E(2) of the Port Management Act 1995—

(a) for "Port of Melbourne Corporation" substitute "Port of Hastings Development



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Authority";

(b) in paragraph (c), for "Corporation" substitute "Port of Hastings Development Authority".

(3) In section 17E(3) of the Port Management Act 1995, for "Port of Melbourne Corporation" substitute "Port of Hastings Development Authority".

24 Definitions—Part 3

In section 45 of the Port Management Act 1995, in the definition of channel operator, omit "or port of Hastings waters".

25 General power to make determinations

(1) In section 54(5) of the Port Management Act 1995, omit "or the port of Hastings".

(2) After section 54(5) of the Port Management Act 1995, insert—

"(6) Without limiting subsection (4), the Commission may, when making a determination in relation to prescribed services in the port of Hastings, have regard to a related service required to meet the Port of Hastings Development Authority's object under section 141S of the Transport Integration Act 2010 including the following services—

(a) the provision of rail and road infrastructure within the port that is necessary for moving cargo to or from berthing facilities or short term storage facilities or cargo marshalling facilities;

(b) the provision of land to satisfy safety, security, planning or environmental



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requirements;

(c) the provision of safety, security, emergency or environmental management services that are required by law or to meet the reasonable expectations that the community has of the Authority;

(d) the provision of strategic planning for the port;

(e) the facilitation of trade through the port.".

26 Wharfage fees

(1) For the heading to section 74 of the Port Management Act 1995, substitute—

"Wharfage fees—Port of Melbourne".

(2) In section 74(1) of the Port Management Act 1995, omit "or the port of Hastings".

27 New section 74A inserted

After section 74 of the Port Management Act 1995, insert—

"74A Wharfage fees—Port of Hastings

(1) Subject to this Part, the Port of Hastings Development Authority may determine a wharfage fee in respect of the provision of a site in the port of Hastings at which stevedoring operations may be carried out.

(2) Subject to Part 3, a fee determined under subsection (1) may be calculated by reference to the quantity, volume, weight or value of cargo loaded or unloaded at the site.



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(3) Subject to this Act, different fees may be determined under subsection (1) in respect of a site or a class of site, or cargo or a class of cargo, or a vessel or a class of vessel or according to any other factors that the Port of Hastings Development Authority determines.

(4) A fee determined under subsection (1) is payable to the Port of Hastings Development Authority—

(a) in the case of cargo unloaded from a vessel at the site, by the person who, immediately after it is unloaded, is the owner of the cargo; and

(b) in the case of cargo loaded onto a vessel at the site, by the person who, immediately before it is loaded, is the owner of the cargo; and

(c) in the case of the loading of an empty container onto a vessel or the unloading of an empty container from a vessel at the site, by the person who is the owner of the vessel.

(5) If a fee determined under subsection (1), or any part of such a fee, is not paid by the person liable under subsection (4)(a) or (b) to pay it, that person and the person who, at the time payment is demanded by the Port of Hastings Development Authority, is the owner of the cargo are jointly



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and severally liable for the payment of the fee.

(6) Nothing in this section affects a fee payable for services specified in subsection (1) in accordance with the terms of a contract.".

28 Payment of wharfage and channel fees

(1) In section 78(1) of the Port Management Act 1995 after "Port of Melbourne Corporation," (wherever occurring) insert "the Port of Hastings Development Authority,".

(2) In section 78(2) of the Port Management Act 1995, after "Port of Melbourne Corporation," insert "the Port of Hastings Development Authority,".


29 Interest on overdue payments

In section 79(1) of the Port Management Act 1995, after "Port of Melbourne Corporation," insert "the Port of Hastings Development Authority,".

30 Security for payment of wharfage and channel fees


(2) In section 80(2) of the Port Management Act 1995, after "Port of Melbourne Corporation," (wherever occurring) insert "the Port of Hastings Development Authority,".



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31 Waiver or refund of wharfage or channel fees

In section 82 of the Port Management Act 1995, after "Port of Melbourne Corporation," insert "the Port of Hastings Development Authority,".

32 Definitions—Part 5A

In the definition of recommending authority in section 83 of the Port Management Act 1995—

(a) in paragraph (b), for "means VRCA;" substitute "means VRCA; or";

(b) after paragraph (b) insert—

"(c) in relation to an area, the declaration of which as a restricted access area is or may be recommended by the Port of Hastings Development Authority, means the Port of Hastings Development Authority;".

33 Making a declaration of restricted access area

(1) For section 84(1)(a) of the Port Management Act 1995, substitute—

"(a) that any part of port of Melbourne waters or port of Melbourne land that is specified in the declaration (not being more than



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12 square kilometres, in area) is an area to which access is restricted; or".

(2) In section 84(1)(b) of the Port Management Act 1995—

(a) omit "or port of Hastings waters" (where first occurring);

(b) for subparagraph (ii), substitute—

"(ii) within port of Melbourne waters or port of Melbourne land—".

(3) After section 84(1) of the Port Management Act 1995, insert—

"(1A) The Minister, on the recommendation of the Port of Hastings Development Authority may declare that any part of port of Hastings land that is specified in the declaration (not being more than 12 square kilometres, in area) is an area to which access is restricted.".

34 Definitions—Part 6B

In section 91J of the Port Management Act 1995, in the definition of relevant port authority, for paragraph (a) substitute—

"(a) in the case of the port of Melbourne, the Port of Melbourne Corporation;

(b) in the case of the port of Hastings, the Port of Hastings Development Authority;".

__________________



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PART 4—CONSEQUENTIAL AMENDMENTS

35 Schedule 1—Borrowing and Investment Powers Act 1987

In Schedule 1 to the Borrowing and Investment Powers Act 1987, after item 7A insert—"7B. Port of Hastings

Development Authority5, 8, 10, 11, 11AA, 11AB, 13, 14, 14A, 15, 20, 20A and 21".

36 Definitions—Marine Act 1988

In section 3(1) of the Marine Act 1988, in the definition of port management body—

(a) in paragraph (a), omit "or the port of Hastings";

(b) in paragraph (b), for "Port Services Act 1995" (wherever occurring) substitute "Port Management Act 1995";

(c) in paragraph (b)(ii), for "operator;" substitute "operator; and";

(d) after paragraph (b)(ii), insert—

"(iii) port of Hastings waters, the Victorian Regional Channels Authority, or, if there is an agreement with a channel operator in relation to those waters, that channel operator;".

37 Requirement to engage harbour master—Marine Act 1988

In section 26A(4) of the Marine Act 1988, for "Port of Melbourne Corporation" substitute "Victorian Regional Channels Authority".



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38 Authorisation to act as a harbour master—Marine Act 1988

In section 26B(1A) of the Marine Act 1988, for "Port of Melbourne Corporation" substitute "Victorian Regional Channels Authority".

39 Definitions—Marine Safety Act 2010

(1) In section 3(1) of the Marine Safety Act 2010, insert the following definitions—

"port of Hastings has the same meaning as in the Port Management Act 1995;

port of Hastings waters has the same meaning as in the Port Management Act 1995;".

(2) In section 3(1) of the Marine Safety Act 2010, in paragraph (a) of the definition of port management body, omit "or the port of Hastings".

(3) In section 3(1) of the Marine Safety Act 2010, after paragraph (b)(ii) of the definition of port management body, insert—

"(iii) port of Hastings waters, the Victorian Regional Channels Authority, or, if there is an agreement with a channel operator in relation to those waters, that channel operator;".

40 Certain entities must engage harbour masters—Marine Safety Act 2010

(1) In section 220(1) of the Marine Safety Act 2010, omit "or port of Hastings waters".



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(2) After section 220(1) of the Marine Safety Act 2010, insert—

"(1A) The Victorian Regional Channels Authority must ensure that a licensed harbour master is at all times engaged for port of Hastings waters.

Penalty: 120 penalty units.".

41 Authorisation to act as assistant harbour master—Marine Safety Act 2010

(1) In section 229(1) of the Marine Safety Act 2010, omit "or port of Hastings waters" (wherever occurring).

(2) In section 229(2) of the Marine Safety Act 2010, before paragraph (a) insert—

"(aa) port of Hastings; or".

42 Disclosure of information—Road Safety Act 1986

In section 92(3)(cb) of the Road Safety Act 1986, omit "or the port of Hastings".

43 Definitions—Treasury Corporation of Victoria Act 1992

In section 36A of the Treasury Corporation of Victoria Act 1992, in the definition of public authority, after "Port of Melbourne Corporation," insert "the Port of Hastings Development Authority,".



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44 Schedule 1—Treasury Corporation of Victoria Act 1992

In the Table in Schedule 1 to the Treasury Corporation of Victoria Act 1992, after the entry relating to the Port of Melbourne Corporation insert—"Port of Hastings Development Authority

Transport Integration Act 2010".

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PART 5—REPEAL OF AMENDING ACT

45 Repeal of amending Act

This Act is repealed on 1 January 2013.Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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ENDNOTES

Endnotes


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† Minister's second reading speech—

Legislative Assembly: 1 June 2011

Legislative Council: 16 June 2011

The long title for the Bill for this Act was "A Bill for an Act to amend the Transport Integration Act 2010 to establish the Port of Hastings Development Authority, to amend the Port Management Act 1995, to make consequential and related amendments to other Acts and for other purposes."

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