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Melbourne City Link Bill

EXPLANATORY MEMORANDUM

OUTLINE

The main purposes of the Bill are-

to ratify the Agreement between the State and Tran~urban relating to the construction and operation of the Melbourne City Link;

to give the Melbourne City Link Authority ("MCLA") certain powers in relation to land affected by the Project;

to give the Link Corporation referred to in clause 11 of the Bill certain powers in relation to the construction, maintenance, management and operation of roads in the Project area; and

to empower the fixing, charging and collection of tolls in relation to the use of vehicles on toll zones.

The Bill consists of six Parts and three Schedules.

Part 1 of the Bill deals with preliminary matters. It contains statements of the Bill's purpose and objects, provides definitions of terms, defines the Project area and authorises variations to the Project area, contains other interpretation provisions, provides for certain delegations by the Link corporation and provides that the Bill is to bind the Crown.

Part 2 provides for the ratification of the Agreement between the State and Transurban, which is set out in Schedule 1 to the Bill. It provides for enforcement of the Agreement and for the future variation of the Agreement, subject to disallowance by the Parliament.

Part 3 contains provisions relating to land. It contains ten Divisions:

Division 1 contains provisions relating to planning schemes and entitlements to compensation under the Planning and Environment Act 1987.

Division 2 deals with the powers to obtain land for the purposes of the Project through surrender. It deals with the land of existing freeways, the surrender of interests in unreserved Crown land, the revocation of Crown land reservations affected by the Project, the acquisition of strata of underground land for the purposes of the Domain and Bumley Tunnels, the surrender of public authority land and the closure of Council roads.

Division 3 provides for the compensation of interests in land acquired for the Project, for persons whose land is substantially affected by road closures and for certain expenses incurred by local Councils. It also provides that no compensation is payable for certain matters.

1-6--8-[4251-900i2"1 L95--951858-{Rev. No. 3) (921) (922) 1

Division 4 deals with the acquisition of land by the MCLA by compulsory process under the Land Acquisition and Compensation Act 1986. It also provides for a modified application of that Act for the purposes of the Project.

Division 5 deals with powers of entry and temporary occupation of land under the Land Acquisition and Compensation Act 1986.

Division 6 provides for arrangements with respect to interests and works of public bodies affected by the Project to be made by agreement with those bodies or, if agreement cannot be reached, by determination of the relevant Ministers or arbitration.

Division 7 deals with roads other than the Link road, freeways and Council roads.

Division 8 deals with the management of Project land. Land acquired for the purposes of the Project will be temporarily reserved under the Crown Land (Reserves) Act 1978 and the MCLA will be the committee of management of that land. The MCLA will issue licences for the use of the reserved Project land for the construction of the Link and related purposes. Upon completion of construction of sections of the Link road, Crown leases of the relevant land will be granted in accordance with the Agreement. The Division also deals with road operation and management powers and the disposal of surplus project land.

Division 9 exempts the Project or Project land from the operation of certain Acts and Division 10 contains provisions of a machinery nature.

Part 4 deals with the fixing and collection of tolls for the use of vehicles on toll zones. It deals with the powers and functions of the Link corporation and of the Roads Corporation as the enforcement agency for the purposes of the Bill. The tolling system to be used on the Link road will be fully automated and Part 4 contains provisions dealing with the operation of this system. Part 4 creates offences in relation to toll evasion. It also contains provisions to protect the privacy of road users.

Part 5 deals with miscellaneous matters relating to the Project or the operation of the Link road, including the liability of the Link corporation, emergency powers, taxation arrangements, security of construction sites, regulation making powers and evidentiary provisions.

Part 6 contains amendments and repeals of other Acts.

Schedule 1 contains the Agreement with Transurban, the main part of which is known as the Concession Deed.

Schedule 2 provides for restrictions on acquisitions of units in the City Link Unit Trust (see notes on clause 20).

Schedule 3 deals with the partial revocation of the Melbourne and Olympic Parks reservation.

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NOTES ON CLAUSES

PART I-PRELIMINARY

Clause 1 sets out the main purposes of the Bill.

Clause 2 provides for the commencement of the Act. Parts 1 and 2 and Schedules 1 and 2 will come into operation on the day on which the Bill receives Royal Assent. These provisions include the ratification of the Agreement with Transurban. The remaining provisions will come into operation on dates to be fixed by proclamation. If any part is not proclaimed within 12 months from Royal Assent, it will come into operation on the first day after that 12 month period.

Clause 3 sets out definitions for the Bill. Key definitions include:

"enforcement agency" is the agency exercising functions under the Bill in respect of tolls. The Roads Corporation will be the enforcement agency unless otherwise provided by the regulations.

"Link control site" describes the land at the South West corner of Grant and Dodds Streets, South Melbourne which is to be the site for a Link control building.

"Link corporation" which is the company appointed as the Link corporation under clause 10.

''public body" which includes not only public authorities of the State but certain other bodies exercising statutory functions in relation to land and works, such as municipal Councils and privatised utilities.

''the Agreement", being the Agreement between the State and Transurban set out in Schedule 1 to the Bill and the Exhibits to that Agreement. The main part of the Agreement is called the Concession Deed.

Clause 4 sets out the objects of the Act, namely-

to authorise and facilitate construction of the Melbourne City Link;

to authorise and facilitate the operation and management of the Link road and the tolling of vehicles on the Link road by the Link corporation;

to grant a concession to Transurban City Link Limited A.C.N. 070 810 678 in accordance with the Agreement.

Clause 5 modifies the application of the Crown Land (Reserves) Act 1978 in relation to the Bill so that, in that Act, the terms "land" and "Crown land" have the same meaning as in this Bill. This is necessary because, under clause 3 of this Bill, those terms include strata of such land.

Clause 6 defines the Melbourne City Link Project for the purposes of the Bill. The definition applies the description of the Project in the Agreement.

Clause 7 describes the Project area for the purposes of the Bill. A number of powers, functions and duties to be conferred or imposed by the Bill are defined by reference to this Project area. The Project area is defined on plans lodged with the Central Plan Office of the Department of Treasury and Finance.' In some of the areas required for the Domain and Burnley Tunnels, the Project area is defined as strata of underground land.

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Clause 8 allows for changes in the Project area to be made by Order of the Governor in Council published in the Government Gazette. Such Orders must be tabled in each House of Parliament and are subject to disallowance in the same manner as statutory rules.

Clause 9 requires that the 28 detailed plans defining the Project area must be read as if they were one plan in accordance with the index plan, Plan No. LEGL. /95-89.

Clause 10 provides that Transurban City Link Limited A.C.N. 070 810 678 is the Link corporation for the purposes of the Bill. A number of provisions of the Bill confer powers, duties and functions on the Link corporation as the body managing and operating the Link on behalf of the Transurban joint venture. -

Sub-clause (2) provides for the appointment of another person as Link corporation by the Governor in Council by agreement with the current Link corporation.

Sub-clause (3) empowers the Minister administering the Bill to appoint another person as Link corporation where that person is entitled to appointment under the terms of the Master Security Deed. The Master Security Deed is an Exhibit to the Agreement. The Master Security Deed provides for an approval mechanism in relation to the appointment of a substitute Link corporation in certain circumstances. Once the requirements of this process are completed, the Agreement requires the appointment of the relevant body as the new Link corporation. Sub-clause (3) provides the necessary power for the Minister to act in accordance with this requirement.

Sub-clause (4) empowers the Governor in Council to terminate the appointment of a Link corporation and appoint a new Link corporation in its place if the Agreement is terminated.

Sub-clause (5) provides that the Link corporation is not to be regarded as a public authority for the purposes of any other legislation merely because it is the Link corporation.

Clause 11 provides that Translink Operations Pty Ltd A.C.N. 069 691 514 is the Link operator for the purposes of the Bill. The Link operator may perform road management functions under delegation from the Link corporation. The clause also provides for the termination of appointment of the Link operator and the appointment of a new Link operator in a similar manner to the Link corporation.

Clause 12 authorises the Link corporation to delegate certain of its powers and functions to the Link operator, namely-

• road management powers under clause 62;

• powers in relation to tolls under Part 4 of the Bill, other than the power to fix tolls;

• any powers and functions conferred under regulations under section 56 of the Transport Act 1983;

• powers and functions under section 224 of the Transport Act 1983;

To ensure that the fact of a delegation is placed on public record, notice of a delegation must be published in the Government Gazette. The usual provisions of the Interpretation of Legislation Act 1984 relating to delegations, in particular sections 42 and 42A, will

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apply to these delegations. As with all delegations, the Link corporation as principal will retain responsibility for the proper exercise of the delegated power or function.

Clause 13 provides that the Bill will bind the Crown in the right of the State and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

PART 2-RATIFICATION OF AGREEMENT

Clause 14 ratifies the Agreement and provides that it is to take effect as if it were enacted in the Bill. The clause also authorises the Minister for Roads and Ports to enter into any "Project Document" (as defined by the Agreement), with the Treasurer's approval being required for documents executed after the enactment of the Bill. "Project Documents" are certain subordinate agreements contemplated by the Agreement. State agencies are required to facilitate the Agreement, and sub-clause (4) appropriates the Consolidated Fund to the extent necessary to pay any amount the State is required to pay under the Agreement or a Project Document.

Clause 15 facilitates the variation of the Agreement by agreement between the parties. An agreement to vary the Agreement must be tabled in both Houses of Parliament and is subject to revocation, in whole or part, by either House within 6 sitting days after tabling. If not revoked in that period, an agreement will come into force at the end of that period.

Clause 16 provides that the provisions of the Agreement will prevail over the provisions of the Bill to the extent of inconsistency, except for the ratification provisions (clause 14) and emergency powers (clauses 97 and 98).

Clause 17 provides that the provisions of the Agreement will prevail over the provisions of Victorian legislation and other laws to the extent of inconsistency.

Clause 18 deals with the enforceability of the Agreement. Sub-clause (1) provides that the Agreement may only be enforced by a party to the Agreement. Sub-clause (2) provides that the State and its public authorities are not liable for the acts or omissions of any other party to the Agreement or of a licensee in relation to the Project. Note that clause 117 (b) proposes to vary or amend section 85 of the Constitution Act 1975 in relation to clause 18 (2).

Clause 19 declares that the Parliament intends that section 23 (1) of the Crown Proceedings Act 1958 will authorise the granting and enforcement of a decree of specific performance against the Crown in respect of the obligations of the State under the Agreement.

Clause 20 provides that Schedule 2 applies in respect of units in the Trust constituted under the Unit Trust Deed entered into on 19 October 1995.

This is a technical provision and the reason for it is as follows. Investors in the City Link will be able to purchase shares in the Link corporation and units in the Trust created by the Unit Trust Deed. Shares and trust units will be "stapled", that is, they may be traded only as one unit and not separately. As part of the terms on which the City Link Project was proposed, the State required that no single investor may hold more than 20% of the shares/units without the State's consent. Part 51 ofthe Unit Trust Deed is designed to give effect to this requirement. However, to make the Deed fully effective in this respect, it requires the legislative force provided by clause 20.

Schedule 2 replicates the relevant part of the Unit Trust Deed.

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PART 3-PROVISIONS RELATING TO LAND

Division I-Planning provisions

Clause 21 authorises the amendment of planning schemes applying to land in the Project area so as to facilitate the Project. Amendments will be made by the Minister for Planning and Environment on the recommendation of the Minister for Roads and Ports.

Sub-clause (2) sets out additional matters which such a planning scheme amendment may include.

The remaining sub-clauses modify the application of the Planning and Environment Act 1987 in relation to planning scheme amendments made under this clause for the purposes of the Project.

Note that clause 117 (a) proposes to alter or vary section 85 of the Constitution Act 1975 in relation to clause 21.

Clause 22 provides that the Melbourne City Link Authority is deemed to be a referral authority in each planning scheme to the extent that it applies to the Project area in relation to matters which affect land in the Project area.

Clause 23 provides that planning schemes do not prevent a use of or works on land in the Project area or a temporary construction site as authorised under the Bill. However, this exemption will not apply to the Link control site in South Melbourne.

Clause 24 provides that Part 5 of the Planning and Environment Act 1987 applies to the Project area as if it had been reserved for a public purpose under a planning scheme and that the MCLA is liable to pay any compensation which is payable in consequence. Until the reservation of land in the Project area is revoked, the obligation of the MCLA to pay compensation will supersede that of other bodies which would otherwise have been liable to pay compensation. Note that clause 117 (c) proposes to alter or vary section 85 of the Constitution Act 1975 in respect of the jurisdiction of the Supreme Court in these matters.

Division 2-Powers to obtain land-surrender and divesting

Clause 25 removes all existing interests and encumbrances from the land on which the existing Tullamarine Freeway and the South Eastern Arterial operate and temporarily reserves the land for the purposes of the Project. Despite this, the relevant land is deemed to be a freeway under the Transport Act 1983 until the date of termination of a licence over the land.

Clause 26 empowers the Governor in Council, on the recommendation of the Minister, to declare that interests in specified land, being unreserved Crown land, are surrendered to the Crown. Upon the revocation taking effect, the land is freed from all encumbrances and interests and becomes temporarily reserved for the purposes of the Project. Sub-clause (4) makes it clear that sub-clause (3) also applies to the bed, soil and banks of rivers and other waterways notwithstanding section 175A of the Water Industry Act 1994 or any other Act.

Clause 27 revokes part of the Melbourne and Olympic Parks Reservation. The land affected is shown hatched green on plan LEGL./95-1 09 lodged in the Central Plan Office.

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Upon the revocation taking effect, the land is freed from all encumbrances and interests and becomes temporarily reserved for the purposes of the Project.

Clause 28 empowers the Governor in Council to revoke the whole of any Crown land reservation within the Project area. Upon the revocation taking effect, the land is freed from all encumbrances and interests and becomes temporarily reserved for the purposes of the Project.

Clause 29 empowers the Governor in Council to revoke part of any Crown land reservation within the Project area. Upon the revocation taking effect, the land is freed from all encumbrances and interests and becomes temporarily reserved for the purposes of the Project.

Clause 30 deals with the part of the Project area which consists of strata of underground land required for the purposes of the construction of the Domain and Burnley Tunnels. These strata are shown hatched blue or purple on plans lodged in the Central Plan Office numbered LEGL.l95-108 to LEGL.l95-111. When clause 30 comes into operation, all interests in that land below specified depths will be surrendered to the Crown, except for any land which has been removed from the Project area in accordance with clause 8. Sub-clause (3) temporarily reserves the acquired strata for the purposes of the Project.

Clause 30 specifies the depths of the acquired strata as follows:

private land: 15·24 metres (or 50 feet). This is the standard depth of modem land titles. Thus, modem titles in the area are not affected. The effect of the acquisition is to bring some older titles into line with the modem standard depth.

Barkly Gardens, South Richmond: 5 metres. This is the area referred to in sub-clause (2). The gradient of the Burnley tunnel will be descending as it passes under the Eastern edge of the Barkly Gardens.

other Crown land: 10 metres. The tunnels' gradients will be descending as they pass under the relevant Crown land boundaries.

Clause 31 empowers the Governor in Council to make an Order requiring public authorities to surrender land in the Project area required for the purposes of the Project. On surrender, the land becomes temporarily reserved for the purposes of the Project.

Clause 32 empowers the Governor in Council to close roads vested in local Councils in the Project area. The relevant land becomes temporarily reserved for the purposes of the Project.

Division 3-Compensation for surrendered or divested land

Clause 33 creates a right to compensation in respect of interests in the public land acquired by operation of clauses 25 to 32. However, compensation is available for formal private property rights only. Further, local Councils cannot claim for the value of the public land they administer (but see notes on clause 36). Note that clause 117 (c) proposes to alter or vary section 85 of the Constitution Act 1975 in respect of the jurisdiction of the Supreme Court in these matters.

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The Land Acquisition and Compensation Act 1986 will apply in determining the amount of compensation payable, on the application of the person whose interest is acquired.

Under sub-clause (4), the suitability of land for the purposes of the Project is to be excluded as a factor in determining the value of that land for the purposes of compensation. This sub-clause also applies to clause 34.

Clause 34 creates a right to compensation in respect of private land if it is affected by the acquisition of underground strata by clause 30. The Land Acquisition and Compensation Act 1986 will apply in determining the amount of compensation payable, on the application of the land holder.

Clause 35 creates a right to compensation for the owners of property substantially affected by closure of a road under Division 2. Subject to the usual requirements of administrative law, the MCLA will have a discretion to cap the amount of compensation having regard to the extent to which the land holder is likely to be affected by the road closure.

Clause 36 creates a right for local Councils to be compensated for actual losses or expenses incurred as a direct consequence of the acquisition of public land administered by the Council.

Clause 37 provides that no compensation is payable by the Crown in respect of the operation of the acquisition provisions in Division 2, other than the compensation provided for in Division 3. This has the effect of excluding, among other things, private claims arising out of the removal of public rights in Crown land. Note that clause 117 (c) proposes to alter or vary section 85 of the Constitution Act 1975 in respect of the jurisdiction of the Supreme Court in these matters.

Division 4--Powers to obtain land-acquisition

Clause 38 authorises the MCLA to acquire land, including strata of land, in accordance with the Land Acquisition and Compensation Act 1986.

Clause 39 contains some general provisions relating to land acquisitions. Under sub-clause (2), where all interests in a parcel of land are acquired, that land is deemed to be temporarily reserved for the purposes of the Project.

Clause 40 modifies the application of the Land Acquisition and Compensation Act 1986 in relation to acquisitions by the MCLA. Under sub-clause (1), land acquired by the MCLA will not vest in it but will become unalienated Crown land. Under sub-clause (5), the suitability of land for the purposes of the Project is to be excluded as a factor in determining the value of that land for the purposes of compensation.

Clause 41 allows the Authority to elect to acquire land in the Project area by using the procedures set out in clauses 42 and 43. These modify the acquisition procedures under the Land Acquisition and Compensation Act 1986.

Clause 42 sets out procedures for giving notice of intention to acquire land in respect of which an election has been made under clause 41. Notice of intention to acquire is to be published in the Government Gazette. In addition, a copy of the notice must be served on

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persons who hold interests of the kind revealed by the usual title searches, as set out in sub-clause (2).

Clause 43 further modifies the application of certain provisions of the Land Acquisition and Compensation Act 1986 to the acquisition of land in respect of which an election has been made under clause 41.

Sub-clause (2) (a) to (e) modify Part 2 of the Land Acquisition and Compensation Act 1986 to reflect the fact that the notice of intention to acquire land will be given generally through publication in the Government Gazette.

Sub-clause (2) (j) modifies the Land Acquisition and Compensation Act 1986 in relation to the effectof a notice of acquisition. It sets out provisions which are deemed to apply in substitution for section 24 of that Act. Under these provisions, all interests in the relevant land are acquired when the notice of acquisition is published in the Government Gazette, including the interests of public statutory authorities.

Sub-clause (3) allows for service of documents by leaving them with persons over the age of 16 at the person's usual or last known place of residence or business, and for documents intended for the occupier of premises to be so addressed.

Sub-clause (4) modifies the application of regulations under the Land Acquisition and Compensation Act 1986 to reflect the modifications to the application of that Act.

Division 5-Powers of Entry and Temporary Occupation of Land

Clause 44 modifies the application of Part 9 of the Land Acquisition and Compensation Act 1986 in relation to the Project. That Part sets out the powers of acquiring authorities in respect of the entry and temporary occupation of land. Paragraph (a) provides that section 75 (6) of the Land Acquisition and Compensation Act 1986 does not apply. This maintains consistency between the MCLA and the Roads Corporation (see section 42 (2) of the Transport Act 1983). Paragraph (b) allows the MCLA to specify the terms and conditions on which land is to be temporarily occupied, in particular the imposition of conditions designed to minimise harm and inconvenience.

Division 6-Agreements with public bodies

Clause 45 provides definitions for the purposes of Division 6.

Clause 46 requires the MCLA to publish a notice in the Government Gazette of a proposal to issue a licence for the use of Project land for construction of the Link. The notice must request all public bodies to give the MCLA notice of any of their interests, works or functions which may be affected. Public bodies must notify the MCLA accordingly.

Clause 47 requires the MCLA, the Link corporation, the person who is entitled to the issue of a licence and the public body to make all reasonable efforts to reach a written agreement about notified public body interests. The agreement can deal with any matter necessary to give effect to the Agreement set out in Schedule 1 to the Bill, including the acquisition of a public body's interests, the creation of new interests, the temporary or permanent diversion or replacement of works and compensation arrangements. These

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agreements will have effect despite the provisions of the Acts relating to the powers and functions of the public bodies.

Clause 48 provides that, if agreement cannot be reached under clause 47, the Minister for Roads and Ports and the Minister responsible for the public body may jointly determine the matters under negotiation or refer the whole or part of those matters to an arbitrator. The determination of the Ministers or an arbitrator will have effect despite the provisions of the Acts relating to the powers and functions of the public body.

Clause 49 allows new agreements or further agreements to be made at any time. The consent of the relevant Ministers is required to vary matters already determined by the Ministers or by an arbitrator.

Clause 50 provides that, if the MCLA has complied with clauses 46 to 48, the licensee may act under the licence despite Acts or laws under which public bodies exercise powers or functions.

Clause 51 requires public bodies to obtain the consent of the licensee before exercising any power affecting licensed land, except in accordance with an agreement or in the exercise of an emergency power or a power to use a vehicle on the licensed land. If the licensee refuses consent or imposes unacceptable conditions, the matter may be decided by the Minister for Roads and Ports.

Division 7-Further powers over roads

Clause 52 defines "road" for the purposes of the Division. It applies to public rights of way, other than the Link road and the existing Tullamarine Freeway and South Eastern Arterial.

Clause 53 authorises the MCLA, for the purposes of the Project, to construct, realign, relocate, open or close any road in the Project area and to carry out related works. The MCLA is required to make adequate provision with respect to affected pipes and cables and similar works. The clause also provides (in similar terms to clause 35) for the payment of compensation to the owners of property substantially affected by a road closure.

Clause 54 requires notice of a road closure to be published in the Government Gazette and in a newspaper circulating in the affected area. The clause also authorises the MCLA to close a road temporarily for the purposes of construction works on the road or neighbouring land.

Division 8-Management of Project Land

Clause 55 appoints the MCLA as the committee of management of the land reserved for the purposes of the Project. The Crown Land (Reserves) Act 1978 provisions dealing with the powers of committees of management will apply with certain modifications. The clause also confers on the MCLA as a committee of management all the powers necessary to give effect to this Bill.

Clause 56 empowers the MCLA to issue a licence of reserved project land in accordance with the Agreement. This licence will provide the statutory authority for the

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persons entitled to licences under the Agreement to construct the Link and its related structures and to carry out associated works on the land.

Sub-clause (1) (b) provides that the MCLA may impose appropriate conditions, subject to the Agreement, on the licence of a stratum of land, having regard to the rights of other land owners.

Sub-clause (3) provides that a licensee may only mortgage or otherwise encumber the licence in accordance with the Agreement.

Sub-clauses (4) to (6) provide that the term of the licence must be in accordance with the Agreement, and may be amended by agreement or terminated or renewed in accordance with the Agreement.

Clause 57 provides that permits are not required from State government authorities, privatised utilities or local Councils for the carrying out of Project works, except for-

compliance with the requirements of an agreement or determination under Division 6,

Environment Protection Authority permits, and

licences or authorisations from the MCLA.

This does not affect any construction or safety standards.

Clause 58 provides for the exercise by the licensee of road maintenance and traffic management functions with respect to roads on licensed land, in accordance with the Agreement.

Clause 59 empowers the Governor in Council to revoke a temporary reservation of project land with effect from the termination of the licence over that land. Upon revocation of the reservation, the land becomes unalienated Crown land.

Clause 60 empowers the Governor in Council to grant a Crown lease over part of the land which had formerly been licensed. A lease may be granted over the part of the land required for managing the Link road, ancillary works and other related persons. A lease may only be granted to the person entitled to it under the Agreement and subject to and in accordance with the Agreement.

Sub-clause (1) (b) provides that the MCLA may impose appropriate conditions, subject to the Agreement, on the lease of a stratum of land, having regard to the rights of other land owners.

Sub-clause (3) requires that the lease specify the part of the leased land which is a road.

Sub-clause (4) provides that a lessee may only mortgage or otherwise encumber its interest in accordance with the Agreement.

Sub-clauses (5) to (7) provide that the term of the lease must be in accordance with the Agreement, and may be amended by agreement or terminated or renewed in accordance with the Agreement.

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Clause 61 provides that the land specified in the lease as a road is open for vehicular use by the public and that the relevant provisions of the Transport Act 1983 and the Road Safety Act 1986 apply. This will not affect the grant or operation of the lease.

Clause 62 provides for the exercise by the Link corporation of road operation and maintenance and traffic management functions with respect to roads on leased land, in accordance with the Agreement.

Clause 63 confers on the MCLA certain powers under Division 2 of Part 9 of the Planning and Environment 1987, with modifications, in relation to the use and development of surplus Project land after completion of construction.

Division 9-Other provisions relating to bulldings and land

Clause 64 excludes certain Acts from applying to licensed land and leased land.

Clause 65 empowers the Minister administering the Historic Bulldings Act 1981 to exempt land or buildings in the Project area from the operation of that Act. The Minister may impose conditions on an exemption, and it will be an offence to fail to comply with such conditions.

Clause 66 exempts acquisitions of land for the Project from section 3 of the Cultural and Recreational Lands Act 1963.

Division 1O-General Provisions

Clause 67 authorises the Registrar-General and the Registrar of Titles to make the necessary entries in land title registers.

Clause 68 provides that the temporary reservation of a stratum of land as reserved project land does not affect reservations or interests in other strata of land.

PART 4-TOLLS

Clause 69 defines the term "owner" in relation to a motor vehicle for the purposes of Part 4.

Clause 70 authorises the Link corporation to fix, charge and collect tolls, but only in accordance with the Agreement.

Clause 71 deals with the mechanism for fixing tolls. The Link corporation may publish a notice in the Government Gazette specifying toll zones and the tolls for those zones.

Clause 72 provides that the driver of a vehicle on a toll zone is liable to pay the toll. The owner of the vehicle is deemed to be the driver and liable to pay the toll unless he or she nominates the actual driver or unless the vehicle was stolen.

Clause 73 makes it an offence to use a vehicle on a toll zone without paying the toll. It is a defence against a charge under this clause for the driver to prove that he or she believed, on reasonable grounds, the trip was not in breach of tolling requirements.

Clause 74 creates an offence of tampering with a prescribed tolling device so that it does not function or~docs not function properly.

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Clause 75 makes it an offence to avoid payment of a toll by fraudulent or collusive means or false representation.

Clause 76 provides that if a Court finds that a charge against a person under clause 73 is proven, the Court must order that person to pay the Link corporation the unpaid toll and the costs fixed by the regulations.

Clause 77 allows the Link corporation, at its discretion, to report non-payment of tolls to the enforcement agency and to request it to mail a notice of non-payment, to issue an infringement notice or to commence proceedings for a tolling offence.

Clause 78 authorises the enforcement agency to send notices of non-payment, if requested to do so by the Link corporation, together with information about dispute resolution processes. Infringement notices and proceedings for tolling offences cannot be initiated while a dispute resolution process is in progress.

Clause 79 allows the enforcement agency to appoint enforcement officers.

Clause 80 authorises an enforcement officer to issue an infringement notice for apparent failure to pay a toll in breach of clause 73.

Clause 81 sets out the information which must be included in an infringement notice.

Clause 82 fixes the penalty for an infringement notice at one penalty unit ($100).

Clause 83 allows an enforcement officer to withdraw an infringement notice. If this occurs, any penalty, toll and costs already paid must be refunded.

Clause 84 provides that if a person pays the penalty, toll and costs shown on an infringement notice, no further proceedings may be taken. The clause also prescribes how the money collected must be applied.

Clause 85 provides that, even though an infringement notice is issued, Court proceedings may be taken if the penalty, toll and costs are not paid on time or if the notice is withdrawn.

Clause 86 applies the PERIN ("Penalty Enforcement by Registration of Infringement Notice") procedure to infringement notices for tolling offences.

Clause 87 provides that "owner onus" applies to toll evasion offences under clause 73 which are detected by prescribed tolling devices. However, an owner is not liable if he or she nominates the actual driver of the vehicle.

Clause 88 provides for the use of information produced by prescribed tolling devices as evidence in proceedings for the recovery of a debt or for an offence under section 73.

Clause 89 provides for certificates based on the records of the enforcement agency, the Roads Corporation, inter-State motor registries and the Link corporation to be used in legal proceedings as evidence of certain matters.

Clause 90 authorises the Roads Corporation to use information about vehicle registration and ownership in performing its role as the enforcement agency.

Clause 91 makes it an offence for the Link corporation, or its employees or agents, to divulge from tolling records certain categories of information which may infringe

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personal privacy or to use that information except for authorised purposes. A penalty of up to 100 penalty units ($10,000) is prescribed for this offence.

Clause 92 requires the Link corporation to maintain proper tolling records and to allow a person authorised by the Minister to inspect these records. Breach of these requirements will be offences, with penalties of up to 100 penalty units ($10,000).

Clause 93 requires the Link corporation to destroy records of non-payment of tolls (other than records which do not identify a particular person or vehicle) within 2 years from their creation. Breach of this requirement will be an offence, with a penalty of up to 100 penalty units ($10,000).

PART S-GENERAL

Clause 94 confers on the Link corporation, a licensee and a lessee the same protections and immunities as the Roads Corporations has under the Transport Act 1983 and at common law in relation to the construction, operation, maintenance, management and control of highways. The Link corporation, licensees and lessees only have these protections and immunities in the carrying out of their functions under the Agreement, the Bill and the other legislation specified.

Sub-clause (2) provides that the Link operator also has these protections and immunities when acting under delegation from the Link corporation.

Note that clause 117 (b) proposes to alter or vary section 85 of the Constitution Act 1975 to limit the jurisdiction of the Supreme Court in relation to matters dealt with by this clause.

Clause 95 provides that no action lies against the Link corporation, a licensee or a lessee for the obstruction of navigation of a river by the Link road and its related structures or by construction works.

Note that clause 117 (b) proposes to alter or vary section 85 of the Constitution Act 1975 to limit the jurisdiction of the Supreme Court in relation to matters dealt with by this clause.

Clause 96 provides for full or partial exemption of the Project from certain taxes, charges and rates. The clause also appropriates the Consolidated Fund to the extent necessary to pay any amount the State is required to pay under an indemnity under clause 11.5 of the Agreement.

Clause 97 confers certain emergency powers in relation to construction works on the Independent Reviewer appointed in accordance with the Agreement. The Independent Reviewer may issue emergency orders if he or she considers that this is necessary because of a danger to life or property. It will be an offence to fail to comply with an emergency order, with penalties of up to 50 penalty units ($5,000) for individuals and 500 penalty units ($50,000) for corporations.

Clause 98 deems the Link corporation to be a government agency for the purposes of the provisions of the Emergency Management Act 1986 relating to a declared state of disaster. The main effect of this is that, during a declared state of disaster, the Link corporation is subject to the direction of the Minister administering that Act. This does not affect rights to compensation under that Act.

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Clause 99 requires public bodies to obtain the consent of the Link corporation before exercising any power affecting leased land, except in the exercise of an emergency power or a power to use a vehicle on the Link road. If the Link corporation refuses consent or imposes unacceptable conditions, the matter may be decided by the Minister for Roads and Ports.

Clause 100 confers powers on Ministers, public statutory authorities and local Councils to comply with the Bill's requirements and to do other things for the purposes of the Project.

Clause 101 empowers the Governor in Council to require Government Departments, public statutory authorities and local Councils to carry out their functions in relation to the Project area or to carry out those functions within a specified period.

Clause 102 empowers the Governor in Council to make binding determinations to resolve disputes between Government Departments, public statutory authorities and local Councils about the performance of statutory functions in relation to the Project.

Clause 103 provides that local Councils may not exercise certain road and traffic management powers in relation to the licensed land or leased land, or inconsistently with the functions of the Link corporation.

Clause 104 provides that Councils may not make local laws with respect to the use of the Link road or the carrying out of Project works. Any existing local laws which do this, or which are inconsistent with powers or functions under the Bill, will be inoperative to that extent. The relevant Ministers may jointly declare local laws which restrict access to construction areas or which hinder or disrupt performance of the Agreement to be inoperative to that extent.

Clause 105 deals with the appointment of authorised officers.

Clause 106 confers power on the MCLA to mark off licensed land or temporary construction sites as restricted access areas.

Clause 107 authorises the MCLA to issue certificates authorising access to restricted access areas.

Clause 108 confers power on members of the MCLA and authorised officers to warn persons to leave licensed land or a temporary construction site.

Clause 109 makes it an offence to enter or remain in a restricted access area without authority or reasonable excuse.

Clause 110 allows for averments of police officers and authorised officers and for certificates of the MCLA to be admitted as evidence in legal proceedings in relation to the existence and boundaries of restricted access areas.

Clause 111 prohibits intentional interference with Project works or with entry into restricted access areas by authorised persons.

Clause 112 requires a person in a restricted access area to produce his or her certificate of authorisation or to give his or her name or address when asked by a police officer or an authorised officer.

Clause 113 makes it an offence for a person to pretend to be an authorised officer.

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Clause 114 authorises police officers to remove persons in a restricted access area without authority. It also authorises removal of persons trespassing on licensed land or a temporary construction site who refuse to leave when warned to do so, in breach of the Summary Offences Act 1966.

Clause 115 provides for certain certificates issued by the Chief Executive Officer of the MCLA to be admitted as evidence in legal proceedings.

Clause 116 provides that proceedings for offences may be brought only by police officers, enforcement officers (tolling offences) or persons prescribed by regulations (non-tolling offences).

Clause 117 alters or varies section 85 of the Constitution Act 1975 to limit the jurisdiction of the Supreme Court in relation to certain matters.

Clause 118 confers power to make regulations for the purposes of the Bill.

PART 6-AMENDMENT AND REPEAL OF CERTAIN ACTS

Clause 119 amends the Melbourne City Link Authority Act 1994 to extend the term of its Chief Executive Officer and to make repeals and amendments of a consequential nature.

Clause 120 amends the Melbourne City Link Authority Act 1994 to allow MCLA members to participate in MCLA meetings by teleconferencing.

Clause 121 inserts new definitions in section 3 of the Transport Act 1983.

Clause 122 inserts a new section 56A in the Transport Act 1983. This provision will amend the application of certain provisions of that Act in relation to the Link road, and amends regulation making powers in relation to road operation and management matters.

Clause 123 amends section 207F of the Local Government Act 1989 so that damages may not be recovered under that section in relation to the operation or effect of freeways, declared roads or the Link road. Note that clause 117 (d) proposes to vary or amend section 85 of the Constitution Act 1975 in relation to clause 123.

Clause 124 amends the Port of Melbourne Authority Act 1958 to provide that land surrendered under clause 31 of this Bill ceases to form part of the port.

Clause 125 amends the Docklands Authority Act 1991 to provide that land surrendered under clause 31 of this Bill ceases to form part of the Docklands area.

Clause 126 amends the Melbourne Exhibition Centre Act 1994 to provide that land surrendered under clause 31 of this Bill ceases to form part of the Melbourne Exhibition Centre land.

Clause 127 amends the Port Services Act 1995 to provide that land surrendered under clause 31 of this Bill ceases to be land to which section 65 of that Act applies.

Clause 128 repeals the Melbourne and Richmond Lands Act 1959, the Richmond (South-Eastern Freeway) Lands Act 1967 and the Thllamarine Freeway Lands Act 1967.

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SCHEDULEl

AGREEMENT FOR THE MELBOURNE CITY LINK

Article 1 contains the definitions of terms used in the Concession Deed and provisions relating to the interpretation and operation of the Concession Deed. It also sets out the Trustee's obligations and the capacity in which the Trustee enters into the Concession Deed.

Article 2 sets out the objectives of the Project and the intentions of the parties in relation to the Project. It also provides for the grant of the concession, the State making changes to the transport network, the implementation and removal of traffic management measures, the relationships between the Link and transport policy, action to be taken and the remedies to be adopted if an event causes a Material Adverse Effect and the obligations of the Company and the Trustee. Each event described in the Appendix is capable of having a Material Adverse Effect.

Article 3 provides for the payment of a concession fee (and in certain circumstances the payment of additional concession fees in accordance with Schedule 4), rent under the Leases and other amounts. It also provides for the grant of licences of the tolling system technology, the requirements to obtain and maintain approvals and the terms for the surrender of the Link on expiry, or termination, of the Concession Period.

Article 4 deals with Project Land and the grant of Leases to the Company and Trustee. It sets out the obligation of the State to make available land, the procedures for making land available and the grant of, and terms of, Leases to the Company and Trustee. Article 4 also outlines the obligations of the Company and the Trustee in relation to Project Land, the terms on which they accept the land and the obligations of the Company and Trustee in relation to Services.

Article 5 sets out the obligations of the State, Company and Trustee in relation to Planning Scheme Amendments. It also outlines the Company's and Trustee's obligations to comply with clean-up or similar notices issued in relation to the environment.

Article 6 governs the role, functions and obligations of the Independent Reviewer and the circumstances of, and process for, his or her removal and replacement.

Article 7 deals with the design and construction of the Link. It sets out the risk allocation for design of the Link, the Company's and Trustee's obligations to prepare design programs and Design Documentation (including matters listed as State Design Considerations in Schedule 5 in respect of which a set procedure must be adhered to) and the process for reviewing and amending the design documentation by the Independent Reviewer. Article 7 also provides for the construction obligations of the Company and Trustee, review of construction, consequence of non-compliance with design or construction requirements, inspection of the Project Land, Lay Down Areas and Off-Site Areas by the State and variations as well as licences of Property Documentation.

Article 8 deals with the construction program's progress. It requires the Company and the Trustee to provide a Construction Program and sets out the contents of such a program as well as the procedure for amending the Construction Program. Additionally, the Article sets out the time for Completion and provides procedures for extending the time frames for completion on the happening of certain events (the Extension Events set out in Schedule 2), and dealing with delays. It also sets out the requirement that the company

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and Trustee achieve Construction Milestones set out in Schedule 1. It further sets out the process for assessing and certifying completion of Sections of the Link.

Article 9 deals with the Company's obligations in relation to the operation of the Link and Tolling System. It also provides for the application of laws to the Link, the rights of the State in risk situations and the rights of the Company to erect and display signs. Article 9 requires the Company to levy tolls in accordance with the Toll Calculation Schedule (Schedule 3) and sets out the procedure for the levying and varying of tolls and the process for opening a Section of the Link for public use. Article 9 also governs the continued operation of the Link.

Article 10 deals with the Company's obligations to maintain and repair the Link. The Company must maintain and repair the Link to agreed standards and must provide a six monthly report detailing the maintenance and repair work carried out by the Company in the previous six months. Further, the Company is required to inspect each Section of the Link monthly and report to the State any material damage, defects or disrepair of a Section, any serious accidents and actions proposed to remedy material damage, defects or disrepair. The Company may subcontract the performance of its obligations under this Article.

Article 11 provides for the establishment and maintenance of the Maintenance and Repair Account and the Insurance Proceeds Account. Article 11 provides that the Company and Trustee must pay certain taxes levied on them or referable to them by reason of the ownership or occupation of the Project Land. Article 11 also sets out the Company's the Trustee's and the State's respective liabilities for the payment of stamp duty. Article 11 makes provision for the payment of interest by the Company, the Trustee and the State on amounts owing under Project Documents and provides for the Company and Trustee to provide a letter of credit to the State.

Article 12 sets out the risks which are accepted by the Company and Trustee in relation to the Project and the matters in respect of which the Company and Trustee agree to indemnify the State and Victorian Government Agencies. The State in turn indemnifies the Company and Trustee in respect of local government rates imposed on the Company and Trustee in reference to the Project Land, water and sewerage rates and (in certain circumstances) the reasonable costs of action taken to comply with clean-up notices which have been or are likely to be issued. The State bears the risk of differences in interest rates between 29 June 1995 and Financial Closing. Article 12 also provides for the State accepting some risk in relation to the operation of and changes to Victorian and Commonwealth Law.

Article 13 allocates the risks of destruction or damage to the Link. The State is released from and indemnified against claims, demand, damage, expense, loss or liability in respect of the loss, destruction or damage of property, injury, disease or death, which arises out of the Project. It further provides for the Company and Trustee to effect and maintain certain insurance policies prior to and after Completion of a Section of the Link. Article 13 also deals with the Company's and Trustee's obligations to reinstate a damaged or destroyed portion of the Link and sets out the circumstances in which the State may terminate the Concession Deed for a failure to reinstate.

Article 14 sets 'out the State's representations and warranties as well as the Company's and Trustee's representations, warranties and undertakings. Article 14 lists certain

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assumptions to be made when assessing or determining matters relating to Project Debt and also requires the Company and Trustee to satisfy certain commitments regarding equity. Article 14 provides for the process by which the State may withhold its consent to a person becoming a Substantial Holder. Finally, Article 14 sets out the consequences if an Environmental Impact Statement is, or will be, required in relation to the Project.

Article 15 sets out the grounds for which the State or the Company and Trustee may terminate the Concession Deed. Article 15 also specifies the amounts payable upon termination and provides for the suspension (and relief from liability) of the Company's and Trustee's obligations where the obligations cannot be performed because of certain "relevant" events.

Article 16 sets out the dispute resolution procedure in respect of disputes under clauses identified in the Dispute Resolution Schedule or disputes to which Article 16 otherwise expressly applies. Disputes may be referred for expert determination or for conciliation and arbitration. Article 16 sets out the process for selecting experts and the rules that apply to expert determination. The decision of the expert, delivered in writing, is binding upon the parties unless a party notifies the other within 14 days of its intention to appeal the decision in which case it goes to arbitration under clause 16.

Article 16 also provides for conciliation and sets out certain procedures pertaining to such conciliation.

In the case of an appeal from the decision of the expert, or in the event that conciliation is not successful, Article 16 provides for resolution of the dispute by means of arbitration and sets out the rules of conduct for arbitration. Submissions may be made both to the expert and the Institute of Arbitrators Australia by the Construction Contractor.

Article 17 sets out the Company's and Trustee's accounting and reporting obligations. The Company and Trustee are obliged to keep books of account and all other records relating to the Project. The accounts must be audited. The accounts and Company's and Trustee's financial statements must be made available to the State, even where the Concession Deed is terminated. Article 17 further provides that, until Completion of all the Sections, the Company and Trustee must provide to the State the same information which is required to be given to the Lenders in relation to the costs to complete construction of the Project or the Works. Article 17 also requires the Company and Trustee to supply the State each year with a copy of the Financial Model and the Traffic Model showing the actual performance of the project in the previous years and projections for the remaining years of the Concession Period. The Company and Trustee must also provide information relating to traffic figures and other specified information.

Article 18 restricts the assignment of, and other dealings with, interests in or obligations arising under the Project Documents or Transaction Documents. Other than the sub-lease of Trust land to the Company, an assignment or dealing may only be effected with the State's prior consent. Where the State has given its approval to an assignment or dealing, the Company and Trustee must provide the State with a certified copy of any agreements relating to the assignment or dealing. The Company and Trustee may mortgage or charge their interests under the Project Documents and Transaction Documents after execution of the Master Security Deed to secure their obligation to any Lender under the Lending Documents for as long as the Lender is a party to the Master

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Security Deed. Article 18 also restricts the State's right to assign and otherwise deal with its interest in, or obligations under, the Project Documents without first obtaining the Company and Trustee's approval. The State may, in certain circumstances, assign any of its rights under the Project Documents to receive revenue.

Article 19 provides that notices and approvals must be made in writing and sets out the circumstances in which they are deemed to be duly given. Article 19 further sets out when such notices and approvals are deemed to be received. Article 19 sets out the obligations of the Company and Trustee and the State not to disclose confidential or unpublished information. Finally, Article 19 sets out each party's obligation to do all things reasonably required to give full effect to the Concession Deed and the rights and obligations of the parties to it.

Schedules

Schedule 1 lists the Construction Milestones in accordance with Article 8 of the Concession Deed and sets out the relevant date for each Milestone.

Schedule 2 lists the Extension Events provided for in Article 8.

Schedule 3 contains the Toll Calculation Schedule in accordance with Article 9.

Schedule 4 contains the table setting out additional concession fee payments pursuant to Article 3.

Schedule 5 lists the State Design Considerations pursuant to Article 7.

Appendix

The Appendix contains a table setting out applicable Events, the Material Adverse Effect, Negotiations and the applicable Outcome in relation to each.

Exhibits

There are a number of Exhibits which are referred to throughout the Agreement. These are not printed as part of the Bill, but the definition of "the Agreement" in clause 3 of the Bill includes the Exhibits to the Agreement. Copies of the Exhibits are available for inspection in the Parliamentary Library and at the offices of the MCLA.

The Exhibits are:

• Exhibit A: Traffic Management Measures

• Exhibit B: Independent Review's Certificate

• Exhibit C: Certificate of Completion

• ExhibitD.l: Company Lease

• Exhibit D.2: Trust Lease

• Exhibit D.3: Trust Concurrent Lease

• Exhibit E: Confidentiality and Disclaimer Deed

• Exhibit F: Contractor's Deed of Novation

• Exhibit G: Deed of Charge

Exhibit H: Deed of Guarantee and Indemnity

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Exhibit I: Project Scope and Technical Requirements

Exhibit J: Major Transport Network Changes

Exhibit K: Master Security Deed

Exhibit L: Off-Site Areas Schedule

Exhibit M: Operator Support Instrument

Exhibit N: Financial Enhancements and Hedging

Exhibit 0: Planning Scheme Amendments

Exhibit P: Absolute Prevention

Exhibit Q: Exclusiveintellectual Property Rights

Exhibit R: Plan of the South Eastern Arterial

Exhibit S: Plan of the Southern Link

Exhibit T: Tullamarine Freeway upgrade

Exhibit U: Western Link Section 1

Exhibit V: Western Link Section 2.

SCHEDULE 2

UNIT TRUST

This Schedule replicates in legislative form certain provisions of the "Transurban City Link Unit Trust Deed" entered into on 19 October 1995 between Perpetual Trustee Company Limited A.C.N. 000 001 007, City Link Management Limited A.C.N. 071 292647 and Transurban City Link Limited A.C.N. 070 810 678.

See notes on clause 20 for explanation of the purpose of these provisions.

SCHEDULE 3

MELBOURNE AND OLYMPIC PARK LAND

This schedule specifies the Order in Council which reserved Melbourne and Olympic Parks land and which is partially revoked by clause 27 of the Bill.

By Authority. Victorian Government Printer

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