Victorian Numbered Acts Victorian Numbered Acts(1) This section applies despite anything to the contrary in a Port Growth Regime payment provision or Port Growth Regime waiver provision or under any rule of, or principle at, law.
(2) A public sector entity must not make any payment under a Port Growth Regime payment provision, or waive a right to receive a payment, or forgo a payment, that would be otherwise payable to it under a Port Growth Regime waiver provision, in respect of any period unless—
(a) international containers are handled at a port in Victoria other than the port of Melbourne during the period—
(i) commencing on the commencement of this section; and
(ii) ending on the day that is 15 years after the day on which the first lease or licence of land comprising port assets is granted to a private sector entity under section 11; and
(b) the Port Growth Regime payment provision or Port Growth Regime waiver provision is expressed to apply to, or to be in respect of, the handling of international containers at a port in Victoria other than the port of Melbourne during the period referred to in paragraph (a).
(3) In addition but subject to subsection (4), a public sector entity must not make a payment under a Port Growth Regime payment provision, or waive a right to receive a payment, or forgo a payment, that would be otherwise payable to it under a Port Growth Regime waiver provision, other than in respect of—
(a) existing port or terminal capacity; or
(b) a port or terminal capacity expansion the proposal for which has been approved under section 66 or certified under section 68.
(4) A public sector entity must not pay any amount
in respect of any payment under a Port Growth Regime payment provision, or
waive the right to any amount, or forgo any amount, that would be otherwise
payable to it under a Port Growth Regime waiver provision, as permitted under
subsection (2) or (3), the values of which, in aggregate, exceed the
capped amount.
(5) A public sector entity is not to be regarded as breaching or being in default of, or repudiating or terminating, an agreement or deed connected with an authorised transaction by relying on this section and—
(a) not making a payment under a Port Growth Regime payment provision; or
(b) not waiving the right to any amount, or forgoing any amount, that would be otherwise payable to it under a Port Growth Regime waiver provision.
(6) To avoid doubt, subsection (4) does not affect any obligation a public sector entity has to make a payment of an amount under a Port Growth Regime payment provision, or waive the right to any amount, or forgo any amount, that would be otherwise payable to it under a Port Growth Regime waiver provision, if the value of any amounts in aggregate, are less than or equal to the capped amount.
(7) In this section—
"capped amount" means—
(a) for the first financial year in respect of which the first payment under a Port Growth Regime payment provision is due, or the first financial year in respect of which the right to the payment of an amount has been waived, or a payment has been forgone, under a Port Growth Regime waiver provision, as permitted under subsection (2) or (3)—the amount equating to 15% of all revenue earned by the port of Melbourne operator by providing relevant services in the financial year immediately preceding that year; and
(b) for each subsequent financial year, the amount determined in accordance with the following formula—
where—
A is the capped amount for the financial year;
B is the CPI number published for the quarter ending immediately before 1 July of the financial year;
C is the CPI number published for the quarter ending immediately before 1 July of the previous financial year;
D is—
(a) for the first financial year after the financial year to which paragraph (a) applies, the capped amount referred to in that paragraph; and
(b) for each subsequent financial year, the amount determined in accordance with this formula for the previous financial year;
"CPI number" means the Consumer Price Index (All Groups Index Number weighted average of eight capital cities) published by the Australian Bureau of Statistics (or any other index published in substitution for that index).
Subdivision 3—Approval of capacity expansion proposals by Minister