PORTS AND MARITIME ADMINISTRATION ACT 1995 - SCHEDULE 5
PORTS AND MARITIME ADMINISTRATION ACT 1995 - SCHEDULE 5
SCHEDULE 5 – Savings, transitional and other provisions
Part 1 - Regulations
1 Regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act or any Act that amends this Act.
(2) Any such savings or transitional provision may include the interpretation of references to the MSB or any MSB subsidiary, to any director or employee of the MSB or any MSB subsidiary or to an Act repealed by this Act or any provision of such an Act.
(3) Any such savings or transitional provision may, if the regulations so provide, take effect on the date of assent to the Act concerned or a later date.
(4) To the extent to which any such savings or transitional provision takes effect on a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State, a Port Corporation, the MSB, any MSB subsidiary or any authority of the State), the rights of that person existing before the date of its publication, or(b) to impose liabilities on any person (other than the State, a Port Corporation, the MSB, any MSB subsidiary or any authority of the State) in respect of anything done or omitted to be done before the date of its publication.
Part 2 - Provisions consequent on enactment of this Act
2 Directors and senior executives of MSB and its subsidiaries to vacate office
(1) A person who, immediately before the dissolution of the MSB, held office as a director of the MSB:(a) ceases to hold that office, and(b) is not entitled to any remuneration or compensation because of the loss of that office.
(2) A person who, immediately before the dissolution of any MSB subsidiary, held office as a director of the subsidiary:(a) ceases to hold that office, and(b) is not entitled to any remuneration or compensation because of the loss of that office.
(3) A person who, immediately before the dissolution of the MSB, was a member of staff of the MSB and held an executive position under Part 2A of the Public Sector Management Act 1988 (including the Chief Executive of the MSB or the Managing Director of any MSB subsidiary):(a) ceases to hold that position, and(b) except as provided by subclause (4), is not entitled to any remuneration or compensation because of the loss of that position.
(4) Part 2A of the Public Sector Management Act 1988 applies to a person who so ceases to hold an executive position as if the person had been removed from that position under section 42Q (1) of that Act. If the person is not immediately engaged in a Port Corporation, the Waterways Authority, the Public Service or a public sector agency, the person is taken to be an unattached officer in the Public Service under section 42Q (2) (a) of that Act until such time as the person is so engaged, the declaration is duly revoked under that Act, or the person's period of appointment with the MSB ends, whichever first occurs.
3 MSB or subsidiary as consent or concurring authority under planning instruments
(1) A reference in any environmental planning instrument or development consent or other instrument under the Environmental Planning and Assessment Act 1979 to the MSB or any MSB subsidiary as the consent authority, or as an authority whose approval or concurrence is to be obtained or as an authority which is to be consulted, in respect of any development is to be read as a reference to the Minister.
(2) This clause is subject to the regulations under clause 1.
4 Pending environmental impact statements
(1) If, before the commencement of this clause:(a) the Director of Planning has notified the MSB or any MSB subsidiary of requirements as to the form and content of a proposed environmental impact statement or any other matter to be attended to by or on behalf of the MSB or MSB subsidiary in accordance with Part 5 of the Environmental Planning and Assessment Act 1979 , or(b) the MSB or any MSB subsidiary, or a person on its behalf, has commenced the preparation of an environmental impact statement under that Part, or(c) an environmental impact statement has been prepared by or on behalf of the MSB or any MSB subsidiary under that Part,that Part applies in relation to the activity concerned as if the MSB or MSB subsidiary had continued in existence and the Minister were the MSB or MSB subsidiary.
(2) This clause is subject to the regulations under clause 1.
5 Abolition of Maritime Services Board Fund
(1) The Maritime Services Board Fund established under the Marine Administration Act 1989 is abolished on the dissolution of the MSB.
(2) Any money standing to the credit of that Fund that becomes an asset of the Waterways Authority by the operation of this Act is payable into the Waterways Authority Fund established under this Act.
6 Special provisions relating to MSB land in Sydney Harbour
(1) This clause applies to any land that, immediately before its transfer under this Act to the Ministerial Corporation, a Port Corporation or any other person or body, was vested in the MSB pursuant to the Sydney Harbour Trust Act 1900 .
(2) Land to which this clause applies is freed and discharged from any trusts, restrictions or other provisions affecting that land, or any part of it, arising under the Sydney Harbour Trust Act 1900 .
(3) In particular, the land is freed and discharged from:(a) the trust arising under section 27 of that Act that it is vested in the MSB upon trust for the purposes of that Act, and(b) the restriction arising under section 28 of that Act that land withdrawn from the MSB vests in the persons who would have been entitled to it as if that Act had not been passed.
9 Acting board of directors on establishment of Port Corporations
(1) This clause applies if, on the establishment of a Port Corporation, no directors of the board of the Port Corporation have been appointed in accordance with the State Owned Corporations Act 1989 .
(2) Until directors are first so appointed, the persons who were the appointed directors of the relevant MSB subsidiary ports authority are appointed by this clause to act as directors of the Port Corporation. While so acting they have all the functions of a director and are taken to be the directors of the Port Corporation.
(3) The Minister may remove any such acting director from office at any time.
(4) Any such acting directors cease to hold office when the first directors of the Port Corporation are appointed in accordance with the State Owned Corporations Act 1989 .
(5) For the purposes of this clause,
"the relevant MSB port authority" is:(a) in the case of Newcastle Port Corporation--the MSB Hunter Ports Authority, and(b) in the case of Port Kembla Port Corporation--the MSB Illawarra Ports Authority, and(c) in the case of Sydney Ports Corporation--the MSB Sydney Ports Authority.
10 Timetable for first statement of corporate intent
A period within which any matter is required to be done under section 21 of the State Owned Corporations Act 1989 in connection with the first statement of corporate intent of a Port Corporation may be extended by the voting shareholders of the Port Corporation.
11 Saving of contracts for pilotage services under Pilotage Act 1971
A contract under Part 4A of the Pilotage Act 1971 that is in force on the repeal of that Part is taken to be a contract under section 81 of this Act.
12 Port charges
(1) In any Act or statutory instrument and in any legal document:(a) a reference to harbour rates under the Port Rates Act 1975 (or wharfage charges under the Marine Port Charges Act 1989 ) is to be read as a reference to wharfage charges and port cargo access charges under this Act (or to one of those charges if the context or subject matter so requires), and(b) a reference to berthing charges under the Marine Port Charges Act 1989 is to be read as a reference to berthing charges under this Act, and(c) a reference to tonnage rates under the Port Rates Act 1975 (or site occupation charges under the Marine Port Charges Act 1989 ) is to be read as a reference to site occupation charges under this Act, and(d) a reference to harbour and light rates under the Pilotage Act 1971 (or navigation service charges under the Marine Port Charges Act 1989 ) is to be read as a reference to navigation service charges under this Act, and(e) a reference to pilotage rates under the Pilotage Act 1971 (or pilotage charges under the Marine Port Charges Act 1989 ) is to be read as a reference to pilotage charges under this Act.
(2) An agreement under section 18 of the Marine Port Charges Act 1989 between the MSB or an MSB subsidiary and a person liable to pay a charge under that Act is taken to be an agreement under Division 7 of Part 5 of this Act. The agreement is subject to such modifications as are required by subclause (1) or as are made by the relevant port authority, by notice served on the person, for the purpose of making any necessary adjustments as a consequence of the changes to port charges effected by Part 5 of this Act.
(3) Any purported agreement by MSB or an MSB subsidiary port authority (or a person purporting to act on their behalf) under which wharfage charges under section 7 of the Marine Port Charges Act 1989 at sites not operated by the MSB or an MSB subsidiary port authority are waived in a particular port for cargo generally or any class of cargo is void (and was always void). This subclause only applies to agreements notified in the Gazette by the Minister for the purposes of this clause. The wharfage charges concerned are payable even though the demand for payment is made after the commencement of this clause.
(4) A security lodged under section 20 of the Marine Port Charges Act 1989 by a person liable to pay a charge under that Act is taken to be a security lodged under section 71 of this Act.
(5) Without limiting the operation of any saving contained in the Interpretation Act 1987 , nothing in this Act affects the liability of any person to pay any rate or charge incurred under the Marine Port Charges Act 1989 . Subject to any regulation under clause 1 or Part 5 of this Act, the provisions of that Part apply to the payment of any such rate or charge to the successor of the MSB that acquires under this Act the right to that payment.
13 Continuation of certain port charges regulations and port boundaries regulations
(1) The Marine Port Charges Regulation 1990 made under the Marine Port Charges Act 1989 is (to the extent that it can lawfully be made under this Act) taken to be a regulation made under this Act (see section 76). A reference in that regulation to the MSB is taken to be a reference to the relevant port authority within the meaning of Part 5 of this Act.
(2) The Ports Boundaries Regulation 1978 made under the Maritime Services Act 1935 is (to the extent that it can lawfully be made under this Act) taken to be a regulation made under this Act (see section 105).
14 Saving of appointments of harbour masters
A person who, immediately before the repeal of section 36A of the Maritime Services Act 1935 , was duly appointed as a harbour master, or to act in the capacity of a harbour master, under the marine legislation is taken to have been so appointed under Part 7 of this Act.
15 General savings
(1) Anything done under an Act, provision of an Act or regulation repealed by this Act that has any force or effect immediately before its repeal, is taken to have been done under the corresponding provision of this Act.
(2) Anything done by the MSB under a provision of the marine legislation that is amended by this Act (being an amendment that changes references to the MSB with references to the Minister) and that has any force or effect immediately before its amendment is (subject to this Act) taken to have been done by the Minister.
Part 3 - Provisions consequent on enactment of Ports Corporatisation and Waterways Management Amendment Act 2006
16 Existing operating licences
An operating licence in force immediately before the amendment of section 12 by the Ports Corporatisation and Waterways Management Amendment Act 2006 is taken to have been issued under that section as so amended.
17 Provisions relating to certain instruments issued by Authority
(1) In this clause:
"delegation" includes purported delegation.
"maritime agency" means, in relation to the granting, giving or issuing of a relevant instrument, any government Department, government office or statutory authority for which the relevant Minister was responsible at the time of the granting, giving or issuing of the instrument.
"relevant instrument" means:(a) a development consent granted under the Environmental Planning and Assessment Act 1979 , or(b) a permit, authorisation, approval or notice granted, given or issued under the Rivers and Foreshores Improvement Act 1948 .
"relevant Minister" , in relation to a relevant instrument, means the Minister who has or had the function of granting, giving or issuing the instrument.
(2) Any relevant instrument purportedly granted, given or issued pursuant to a delegation made by the relevant Minister to the head of a maritime agency is not invalid (and is taken never to have been invalid) by reason only that:(a) there was no statutory authority for the delegation, or(b) the relevant instrument was not granted, given or issued in the name of the Minister, or(c) the relevant instrument was granted, given or issued by a member of staff of the maritime agency.
Part 4 - Provisions consequent on Transport Legislation Amendment Act 2011
18 Interpretation
In this Part:
"amending Act" means the Transport Legislation Amendment Act 2011 .
19 Abolition of Maritime Authority
(1) The Maritime Authority of NSW is abolished.
(2) A reference in any Act (other than this Act), in any instrument made under any Act or in any document of any kind to the Maritime Authority of NSW is to be construed as a reference to Roads and Maritime Services.
Note : Schedule 7 to the Transport Administration Act 1988 provides for the transfer of the assets, rights and liabilities of the Maritime Authority to Roads and Maritime Services.
20 Abolition of Maritime Authority of NSW Division
(1) The Maritime Authority of NSW Division of the Government Service is abolished as a Division of the Government Service.
(2) A person who was employed in the Maritime Authority of NSW Division immediately before the abolition of that Division becomes employed in the Roads and Maritime Services Division of the Government Service on the commencement of this clause.
(3) The terms and conditions on which a person becomes employed in the Roads and Maritime Services Division under this clause (including terms and conditions as to remuneration, allowances and duration of employment) are, until such time as provision is otherwise made under this Act or any other law, those on which the person was employed immediately before the commencement of this clause.
(4) Division 4 of Part 7 of the Transport Administration Act 1988 applies in relation to persons who become employed in the Roads and Maritime Services Division under this clause in the same way as that Division applies to persons who are transferred under that Division.
21 Transfer of Yamba and Eden ports staff
(1) The Minister may, by order in writing, provide that such members of staff of the Roads and Maritime Services Division as are employed at the ports of Yamba and Eden and as are specified or described in the order are transferred to a Port Corporation specified in the order.
(2) A person who is the subject of an order under this clause becomes an employee of the specified Port Corporation, in accordance with the terms of the order, on the day the order takes effect.
(3) A person whose employment is transferred to a Port Corporation under this clause is not entitled to receive any payment or other benefit merely because the person ceases to be a member of the staff of the Roads and Maritime Services Division and is not entitled to claim, both under this Act and under any other Act, dual benefits of the same kind for the same period of service.
(4) For the purposes of this clause,
"the ports of Yamba and Eden" are the commercial port facilities at Yamba and Eden that are vested in the Authority or another State authority and subject to the management of the Minister under section 26 of this Act.
Part 5 - Provisions consequent on Ports Assets (Authorised Transactions) Act 2012
22 Definitions
In this Part:
"relevant port corporation" for a port means the port corporation that manages
and operates the port facilities and services of the port.
"settlement day" means the day designated by the Treasurer by order in writing
as settlement day for the purposes of this Part (and for that purpose
different settlement days may be designated for Botany Bay, Port of Newcastle
and Port Kembla).
23 Provisions delayed until operational commencement
(1) The operation of the following provisions is delayed until operational commencement:(a) Part 6 (Price monitoring scheme) of this Act,(b) the amendments made to sections 51, 54, 62, 67 and 74 by the Ports Assets (Authorised Transactions) Act 2012 (to remove the requirement for the approval of the Minister under those sections),(c) such other amendments made to this Act by the Ports Assets (Authorised Transactions) Act 2012 as the Treasurer may direct by order in writing made before operational commencement.
(2) For the purposes of this clause,
"operational commencement" is the beginning of 1 January 2013 or the beginning of such later day as the Treasurer may by order in writing made before 1 January 2013 designate as operational commencement.
24 Operation of Parts 3A, 5 and 6
(1) Until settlement day, Part 3A (Private ports), Part 5 (Port charges) and Part 6 (Price monitoring scheme) of this Act operate in respect of a private port as if the relevant port corporation for the port were the port operator of the port.
(2) Accordingly, the relevant port corporation has and may exercise all the functions of the port operator of a private port under those Parts until settlement day.
(3) Section 12 (Exercise of port SOC functions through subsidiaries) of the Ports Assets (Authorised Transactions) Act 2012 extends to any such function.
(4) For the purposes of the operation of Part 3A of this Act under this clause, the
"landside port precinct" at a port is:(a) land at the port that is not covered by water and that comprises ports assets under the Ports Assets (Authorised Transactions) Act 2012 , and(b) any wharf or other structure built at the port on or over land covered by water that is adjacent to land referred to in paragraph (a).
(5) For the purposes of the operation of Part 5 of this Act under this clause, a site at a port leased to a subsidiary of the relevant port corporation for the port is deemed to be leased to that port corporation.