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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Port Authorities Bill 1998
CONTENTS
Part 1 -- Preliminary
1. Short title 11
2. Commencement 11
3. Definitions 11
Part 2 -- Port authorities: establishment and
administration
Division 1 -- Establishment of port authorities
4. Port authorities established 11
5. Port authorities are not agents of the Crown 11
6. Port authority and officers not part of public sector 11
Division 2 -- Boards of directors
7. Port authority to have a board of directors 11
8. The role of boards 11
9. Provisions about the constitution and proceedings
of boards 11
10 . Remuneration of directors 11
11 . Conflict of duties 11
12 . Disclosure of material personal interests 11
page i
158 -- 1
Port Authorities Bill 1998
13 . Committees 11
Division 3 -- Staff
14 . Chief executive officer 11
15 . Role of CEO 11
16 . Staff 11
17 . Minimum standards for staff management 11
18 . Reports to Commissioner for Public Sector
Standards 11
19 . Superannuation 11
Division 4 -- Conduct and integrity of staff
20 . Duties of CEO and staff 11
21 . Codes of conduct 11
22 . Reports to Commissioner for Public Sector
Standards 11
23 . Reports to Minister 11
Part 3 -- Port areas and property of port
authorities
24 . Port areas 11
25 . Property of a port authority 11
26 . Port property may be taken back by the Crown 11
27 . Restrictions on power to sell land 11
28 . Creating and dealing with interests in vested land 11
29 . Disputes between a port authority and Crown 11
Part 4 -- Functions and powers
Division 1 -- Functions, powers and related provisions
30 . Functions 11
31 . Port authorities can act at their discretion 11
32 . Control of the port 11
33 . Duty to act in accordance with policy instruments 11
34 . Duty to act on commercial principles 11
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Port Authorities Bill 1998
35 . Powers generally 11
36 . Extended powers relating to facilities and services 11
37 . Power to levy fees and charges 11
38 . How planning and building requirements apply to
port authorities 11
39 . Subsidiaries 11
40 . Transactions that require Ministerial approval 11
41 . Exemptions from section 40 11
42 . Meaning of "transaction" 11
43 . Minister to be consulted on major initiatives 11
44 . Delegation 11
Division 2 -- Protection of people dealing with port
authorities
45 . People dealing with port authorities may make
assumptions 11
46 . Third parties may make assumptions 11
47 . Assumptions that may be made 11
48 . Exception to sections 45 and 46 11
Part 5 -- Provisions about accountability
Division 1 -- Strategic development plans
49 . Draft strategic development plan to be submitted to
Minister 11
50 . Period to which strategic development plan relates 11
51 . Matters to be included in strategic development
plan 11
52 . Strategic development plan to be agreed if possible 11
53 . Minister's powers in relation to draft strategic
development plan 11
54 . Strategic development plan pending agreement 11
55 . Minister's agreement to draft strategic development
plan 11
56 . Modifications of strategic development plan 11
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Port Authorities Bill 1998
57 . Concurrence of Treasurer 11
Division 2 -- Statement of corporate intent
58 . Draft statement of corporate intent to be submitted
to Minister 11
59 . Period to which statement of corporate intent relates 11
60 . Matters to be included in statement of corporate
intent 11
61 . Statement of corporate intent to be agreed if
possible 11
62 . Minister's powers in relation to draft statement of
corporate intent 11
63 . Statement of corporate intent pending agreement 11
64 . Minister's agreement to draft statement of corporate
intent 11
65 . Modifications of statement of corporate intent 11
66 . Concurrence of Treasurer 11
Division 3 -- Reporting requirements
67 . Half-yearly reports 11
68 . Annual reports 11
69 . Contents of annual reports 11
70 . Deletion of commercially sensitive matters from
reports 11
Division 4 -- Ministerial directions, general provisions
71 . Directions to port authority 11
72 . Minister may give directions 11
73 . When directions take effect 11
Division 5 -- Consultation and provision of information
74 . Consultation 11
75 . Minister to have access to information 11
76 . Minister to be kept informed 11
77 . Notice of financial difficulty 11
Division 6 -- Protection from liability
78 . No liability for things done under this Part 11
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Port Authorities Bill 1998
Part 6 -- Financial provisions
Division 1 -- General
79 . Bank account 11
80 . Investment 11
81 . Exemption from rates 11
Division 2 -- Payments to State
82 . Payment of amount in lieu of rates 11
83 . Determination of amounts under section 82 11
84 . Dividends 11
Division 3 -- Borrowing
85 . Borrowing 11
86 . Borrowing limits 11
87 . Hedging transactions 11
Division 4 -- Guarantees
88 . Guarantees 11
89 . Charges for guarantee 11
Division 5 -- Financial administration and audit
90 . Limited application of Financial Administration
and Audit Act 1985 11
91 . Financial administration and audit 11
Division 6 -- Financial targets
92 . Annual financial targets 11
Part 7 -- Navigation and port matters
Division 1 -- Navigational aids
93 . Port authority may provide navigational aids 11
94 . Interference with navigational aids 11
Division 2 -- Pilotage
95 . Interpretation and application of this Division 11
96 . Port authority to approve pilots and ensure that
pilotage services are available 11
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Port Authorities Bill 1998
97 . Pilotage compulsory in ports 11
98 . Pilot under authority of master 11
99 . Liability of owner or master of a vessel 11
100 . Immunity from liability for pilot's negligence 11
Division 3 -- Harbour masters
101 . Port includes other declared areas 11
102 . Appointment 11
103 . Principal and other functions 11
104 . Directions to masters etc. 11
105 . Directions as to dangerous things 11
106 . Limit on power to order removal of vessels or
dangerous things 11
107 . Removal of ownerless vessels or dangerous things 11
108 . Offence of not obeying direction 11
109 . Powers if direction not obeyed 11
110 . Recovery of costs 11
111 . Immunity from liability for acts under this Division 11
112 . Offence of hindering 11
Division 4 -- Damage in a port caused by vessels etc.
113 . Responsibility for damage to port facilities or
property 11
Division 5 -- Port safety
114 . Marine safety plans 11
Part 8 -- Port charges
115 . Interpretation and application 11
116 . Liability to pay port charges in respect of vessels 11
117 . Liability to pay port charges in respect of goods 11
118 . Recovery of port charges by a port authority 11
119 . Collectors of port charges 11
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Port Authorities Bill 1998
Part 9 -- Proceedings for offences
Division 1 -- General
120 . Who can take proceedings for offences 11
121 . Time limit on taking proceedings 11
122 . Averment in respect of port 11
Division 2 -- Infringement notices
123 . Meaning of "authorized person" 11
124 . Giving of notice 11
125 . Content of notice 11
126 . Extension of time 11
127 . Withdrawal of notice 11
128 . Benefit of paying modified penalty 11
129 . Application of penalties collected 11
130 . Appointment of authorized persons 11
Part 10 -- Miscellaneous
131 . Miscellaneous offences 11
132 . Provisions for particular port authorities 11
133 . Supplementary provision about laying documents
before Parliament 11
134 . Execution of documents 11
135 . Contract formalities 11
136 . Interest on overdue amounts 11
137 . Recovery of expenses 11
138 . Government Agreements Act 1979 not affected 11
Part 11 -- Regulations
139 . General power to make regulations 11
140 . Offences against regulations 11
141 . Adoption of other laws, codes etc. 11
142 . References to other approvals or decisions 11
143 . Licensing 11
page vii
Port Authorities Bill 1998
Part 12 -- Review of Act
144 . Minister to review and report on Act 11
Schedule 1 -- Ports and port authorities
Schedule 2 -- Provisions about the constitution
and proceedings of boards
1. Term of office 11
2. Resignation and removal 11
3. Chairperson and deputy chairperson 11
4. Alternate directors 11
5. Meetings 11
6. Telephone and video meetings 11
7. Resolution may be passed without meeting 11
8. Voting by interested directors 11
9. Minutes of meetings etc. 11
10 . Leave of absence 11
11 . Board to determine own procedures 11
Schedule 3 -- Provisions about duties of CEO
and staff
Division 1 -- General duties of CEO
1. Duties of CEO 11
Division 2 -- Particular duties stated
2. Interpretation 11
3. Duty to act honestly 11
4. Duty to exercise reasonable care and diligence 11
5. Duty not to make improper use of information 11
6. Duty not to make improper use of position 11
Division 3 -- Compensation
7. Payment of compensation may be ordered 11
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Port Authorities Bill 1998
8. Civil proceedings for recovery 11
Division 4 -- Relief from liability
9. Relief from liability 11
10 . Application for relief 11
11 . Case may be withdrawn from jury 11
12 . Compliance with directions 11
Division 5 -- Restrictions on indemnities and exemptions
13 . Indemnification and exemption of CEO and
executive officers 11
14 . Insurance premiums for certain liabilities of CEO
and executive officers 11
15 . Certain indemnities, exemptions, payments and
agreements not authorized and certain documents
void 11
Schedule 4 -- Provisions to be included in
articles of association of subsidiaries
1. Disposal of shares 11
2. Directors 11
3. Further shares 11
4. Subsidiaries of subsidiary 11
Schedule 5 -- Financial administration and
audit
Division 1 -- Preliminary
1. Interpretation 11
Division 2 -- Accounting standards
2. Application of accounting standards -- general
(cf. s. 284 Corporations Law) 11
3. Application of accounting standards -- financial
years (cf. s. 285 Corporations Law) 11
page ix
Port Authorities Bill 1998
4. Interpreting accounting standards (cf. s. 286
Corporations Law) 11
5. Severing invalid provisions (cf. s. 286A
Corporations Law) 11
6. Evidence of text of accounting standard (cf. s. 286B
Corporations Law) 11
Division 3 -- Accounting records
7. Accounting records (cf. s. 289 Corporations Law) 11
Division 4 -- Financial years of a port authority and
the entities it controls
8. Synchronization (cf. s. 290 Corporations Law) 11
Division 5 -- Accounts of a port authority
9. Profit and loss account (cf. s. 292 Corporations
Law) 11
10 . Balance sheet (cf. s. 293 Corporations Law) 11
11 . Steps to be taken before accounts made out
(cf. s. 294 Corporations Law) 11
Division 6 -- Consolidated accounts of a port authority and
the entities it controls
12 . Entities, parent entities, economic entities and
reporting entities (cf. s. 294A Corporations Law) 11
13 . When one entity controls another (cf. s. 294B
Corporations Law) 11
14 . Application of Division (cf. s. 295 Corporations
Law) 11
15 . Consolidated profit and loss account (cf. s. 295A
Corporations Law) 11
16 . Consolidated balance sheet (cf. s. 295B
Corporations Law) 11
Division 7 -- Requirements for financial statements
17 . Audit of financial statements (cf. s. 296
Corporations Law) 11
page x
Port Authorities Bill 1998
18 . Financial statements to comply with Corporations
Law Regulations (cf. s. 297 Corporations Law) 11
19 . Financial statements to comply with applicable
accounting standards (cf. s. 298 Corporations Law) 11
20 . Additional information to give a true and fair view
(cf. s. 299 Corporations Law) 11
21 . Inclusion of comparative amounts for items
required by accounting standards (cf. s. 300
Corporations Law) 11
Division 8 -- Directors' statements
22 . Statement to be attached to accounts (cf. s. 301
Corporations Law) 11
23 . Statement to be attached to consolidated accounts
(cf. s. 302 Corporations Law) 11
24 . Statements under this Division (cf. s. 303
Corporations Law) 11
Division 9 -- Directors' reports
25 . Report on a port authority where it is not a chief
entity (cf. s. 304 Corporations Law) 11
26 . Report on port authority where it is a chief entity
(cf. s. 305 Corporations Law) 11
27 . Report may omit prejudicial information (cf. s. 306
Corporations Law) 11
28 . Additional information required in report (cf. s. 307
Corporations Law) 11
29 . Benefits under contracts with directors (cf. s. 309
Corporations Law) 11
30 . Reports generally (cf. s. 310 Corporations Law) 11
Division 10 -- Financial statements and directors' reports
31 . Rounding off amounts (cf. s. 311 Corporations
Law) 11
32 . Where port authority is a chief entity, board to
obtain all necessary information (cf. s. 312
Corporations Law) 11
page xi
Port Authorities Bill 1998
33 . Relief from requirements as to accounts and reports
(cf. s. 313 Corporations Law) 11
34 . Minister to receive a copy of the annual report
(cf. s. 315 Corporations Law) 11
35 . Minister entitled to financial statements and reports
(cf. s. 316 Corporations Law) 11
36 . Contravention (cf. s. 318 Corporations Law) 11
37 . Audit 11
38 . Auditor General must report (cf. s. 331A
Corporations Law) 11
39 . Report to state whether financial statements
properly drawn up (cf. s. 331B Corporations Law) 11
40 . Matters affecting consolidated accounts (cf. s. 331C
Corporations Law) 11
41 . Defects, irregularities and omissions (cf. s. 331D
Corporations Law) 11
42 . Auditor General's report to cover adequacy of
information (cf. s. 331E Corporations Law) 11
43 . Minister entitled to inspect auditor's report
(cf. s. 331F Corporations Law) 11
44 . Powers and duties of Auditor General as to reports
on accounts (cf. s. 332 Corporations Law) 11
45 . Extension of time 11
Schedule 6 -- Provisions for particular port
authorities
Division 1 -- Dampier Port Authority
1.1. Application 11
1.2. Definitions 11
1.3. Act does not affect State agreements 11
1.4. Membership of port authority 11
1.5. Alternate members 11
1.6. Disclosure by directors 11
page xii
Port Authorities Bill 1998
1.7. Quorum 11
1.8. Property 11
1.9. Cost recovery 11
1.10. Duties of companies and joint venturers 11
1.11. Pilotage services agreements 11
Division 2 -- Port Hedland Port Authority
2.1. Application 11
2.2. Definitions 11
2.3. Act does not affect State agreements 11
2.4. Membership of port authority 11
2.5. Alternate members 11
2.6. Disclosure by directors 11
2.7. Quorum 11
2.8. Port includes pilotage area for some purposes 11
Schedule 7 -- Purposes for which, or matters
about which, regulations may be made
page xiii
Western Australia
LEGISLATIVE ASSEMBLY
Port Authorities Bill 1998
A Bill for
An Act about port authorities, their functions, the areas that they are
to control and manage, the way in which they are to operate, and
related matters.
The Parliament of Western Australia enacts as follows:
5
page 1
Port Authorities Bill 1998
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Port Authorities Act 1998.
2. Commencement
5 The provisions of this Act come into operation on such day as
is, or days as are respectively, fixed by proclamation.
3. Definitions
(1) In this Act, unless the contrary intention appears --
"board" means the board of directors of a port authority
10 provided for by section 7;
"CEO" means the person holding the office of chief executive
officer of a port authority created under section 14(1) and
includes an acting chief executive officer under
section 14(6);
15 "channel" includes a swinging basin, turning circle, area
alongside a jetty, fairway or anchorage;
"Commissioner for Public Sector Standards" means the
person holding or acting in the office created by
section 16(1) of the Public Sector Management Act 1994;
20 "control", when used in the sense of being in control of a
vessel, means to be in charge or command of, or to have
the management of, the vessel;
"Crown land" has the same meaning as it has in the Land
Administration Act 1997;
25 "damage" includes alter, destroy or remove;
"dangerous thing" means --
(a) a vessel or part of a vessel;
page 2
Port Authorities Bill 1998
Preliminary Part 1
s. 3
(b) a wreck and any cargo, fuel or other thing on or in it;
or
(c) any other thing,
that is likely to be a danger to navigation or to port
5 facilities or harmful to the environment;
"director" means a director appointed under section 7;
"executive officer" means a member of the staff of a port
authority designated under section 20(2) as an executive
officer;
10 "goods" includes --
(a) merchandise, wares, chattels and other articles,
whether manufactured or of any other kind;
(b) minerals and mineral products;
(c) petroleum and hydrocarbon products;
15 (d) forestry and agricultural products; and
(e) livestock;
"harbour master" means a person appointed under section 102
as the harbour master or acting harbour master of a port or
authorized under that section to perform the harbour
20 master's functions;
"jetty" includes --
(a) a pier, wharf, quay, grid, slipway, landing place,
stage, platform or similar structure, whether fixed or
floating, erected or placed, wholly or in part, in, on,
25 over or alongside any waters; and
(b) a ramp that is or may be used for the purpose of
launching or landing a vessel,
but does not include a vessel;
page 3
Port Authorities Bill 1998
Part 1 Preliminary
s. 3
"management", in relation to staff, includes recruitment,
selection, appointment, transfer, secondment, performance
management, redeployment, discipline and termination of
employment;
5 "maritime structure" means --
(a) a jetty;
(b) a breakwater, groyne or seawall;
(c) a dredged channel;
(d) a boat pen or vessel mooring;
10 (e) a navigational aid; or
(f) a pipeline over, under or discharging into navigable
waters (but not a pipeline discharging material from a
dredging vessel);
"master" includes a person, other than an approved pilot
15 provided under section 96(5), having control of a vessel for
the time being;
"member of staff" means a person engaged under section 16;
"mooring" includes anchoring and berthing;
"movement", in relation to --
20 (a) goods, includes loading and unloading;
(b) passengers, includes boarding and going ashore;
"navigational aid" means an apparatus, device, mark or
structure that --
(a) is or is intended to be an aid to marine navigation; or
25 (b) emits or transmits a light, sound, radio, electronic or
other signal that is or is intended to be an aid to
marine navigation;
page 4
Port Authorities Bill 1998
Preliminary Part 1
s. 3
"owner", in relation to --
(a) property of any kind, includes a person who is an
owner jointly or in common with another person;
(b) goods, includes a consignor, consignee, shipper or
5 agent for sale or custody, loading or unloading of the
goods concerned;
(c) a vessel, includes a charterer of the vessel;
"port" means a port named in Schedule 1 and "the port" or
"its port", in relation to a port authority, means the port for
10 which the port authority is established;
"port activities" has the meaning given by section 35;
"port authority" means a body established by section 4;
"port charges" has the meaning given by section 114;
"port facilities" means facilities provided for or in relation to
15 port activities or the administration of the port and
includes --
(a) maritime structures and other buildings, structures
and enclosures;
(b) railways; and
20 (c) machinery, equipment, vessels, vehicles and aircraft;
"port land" means vested land or land acquired by a port
authority;
"port services" has the meaning given by section 35;
"port works" has the meaning given by section 35;
25 "subsidiary" means --
(a) a body that would be a subsidiary of a port authority
within the meaning of the Corporations Law if the
port authority were a body corporate to which the
Corporations Law applies; and
page 5
Port Authorities Bill 1998
Part 1 Preliminary
s. 3
(b)
an interest or other rights of a port authority in a unit
trust, joint venture or partnership where the interest
or other rights of the port authority in connection
with the unit trust, joint venture or partnership entitle
5 the port authority to --
(i) control the composition of the governing body
of the unit trust, joint venture or partnership;
(ii) cast, or control the casting of, more than
one-half of the maximum number of votes
10 that might be cast at a general meeting of the
unit trust, joint venture or partnership; or
(iii) control the business affairs of the unit trust,
joint venture or partnership;
"Treasurer" means the Treasurer of the State;
15 "vessel" has the meaning given by subsections (2) and (3);
"vested", in relation to land or other property, means vested in a
port authority under this Act.
(2) A reference in this Act to a vessel is a reference to a thing used,
or capable of being used, in navigation by water, and includes a
20 reference to --
(a) an air-cushion vehicle, seaplane or other similar craft; or
(b) a barge, lighter or other floating structure used for
commercial purposes other than a structure of a class or
kind prescribed for the purposes of this paragraph.
25 (3) A thing can be a vessel for the purposes of this Act --
(a) no matter how it is moved or propelled; and
(b) even if it is normally stationary.
page 6
Port Authorities Bill 1998
Port authorities: establishment and administration Part 2
Establishment of port authorities Division 1
s. 4
Part 2 -- Port authorities: establishment and
administration
Division 1 -- Establishment of port authorities
4. Port authorities established
5 (1) The port authorities named in Schedule 1 are established for the
ports named in that Schedule.
(2) A port authority is a body corporate with perpetual succession.
(3) Proceedings may be taken by or against a port authority in its
corporate name.
10 (4) A port authority may use, and operate under, one or more
trading names approved by the Minister.
(5) A trading name can be --
(a) an abbreviation or adaptation of the port authority's
corporate name; or
15 (b) a name other than the port authority's corporate name.
5. Port authorities are not agents of the Crown
A port authority is not an agent of the Crown and does not have
the status, immunities and privileges of the Crown.
6. Port authority and officers not part of public sector
20 (1) A port authority is not, and is not to become, a public sector
body under the Public Sector Management Act 1994.
(2) Neither the CEO nor any member of staff is to be included in
the Senior Executive Service provided for by the Public Sector
Management Act 1994.
page 7
Port Authorities Bill 1998
Part 2 Port authorities: establishment and administration
Division 2 Boards of directors
s. 7
Division 2 -- Boards of directors
7. Port authority to have a board of directors
(1) A port authority is to have a board of directors comprising
5 persons appointed in writing by the Minister.
5 (2) A member of staff is not eligible to be appointed as, or be, a
director.
(3) Without limiting section 132, if a Division of Schedule 6 applies
to a port authority any provisions of that Division in relation to
the appointment of directors of the port authority have effect
10 despite anything in this section.
8. The role of boards
(1) The board of a port authority is its governing body.
(2) The board, in the name of the port authority, is to perform the
functions, determine the policies and control the affairs of the
15 port authority.
9. Provisions about the constitution and proceedings of boards
Schedule 2 has effect with respect to directors and boards.
10. Remuneration of directors
(1) A director is to be paid out of the funds of the port authority
20 such remuneration and allowances as are determined in the case
of that director by the Minister.
(2) Remuneration is not to be paid to a director who holds a
full-time office or position that is remunerated out of moneys
appropriated by Parliament.
page 8
Port Authorities Bill 1998
Port authorities: establishment and administration Part 2
Boards of directors Division 2
s. 11
11. Conflict of duties
(1) If a person is both a public service officer and a director --
(a) the person's duties as a director are to prevail if a
conflict arises between those duties and the person's
5 other duties as a public service officer; and
(b) the person does not have any immunity of the Crown in
respect of the duties and liabilities imposed on directors
by this Act.
(2) In this section --
10 "public service officer" means a person who is employed in
the Public Service under Part 3 of the Public Sector
Management Act 1994.
12. Disclosure of material personal interests
(1) A director of a port authority who has a notifiable interest in a
15 matter involving the port authority must, as soon as possible
after the relevant facts have come to the director's knowledge,
disclose the nature of the interest at a meeting of the board of
the port authority.
Penalty: $5 000.
20 (2) A disclosure under subsection (1) is to be recorded in the
minutes of the meeting.
(3) In subsection (1) --
"notifiable interest" means an interest in the matter that will,
under Schedule 2, clause 8(1), disqualify the director from
25 voting on the matter at a meeting of the board unless
allowed to do so by a resolution under clause 8(3) or a
declaration under clause 8(6).
page 9
Port Authorities Bill 1998
Part 2 Port authorities: establishment and administration
Division 3 Staff
s. 13
13. Committees
(1) A board may --
(a) appoint committees of directors or other persons; and
(b) discharge, alter or reconstitute any committee.
5 (2) A committee is to comply with any direction or requirement of
the board.
(3) A committee may, with the approval of the board, invite any
person, including a member of staff, to participate in a meeting
of the committee but such a person cannot vote on any
10 resolution before the committee.
(4) Subject to subsection (2), a committee may determine its own
procedures.
Division 3 -- Staff
14. Chief executive officer
15 (1) A port authority is to have a chief executive officer.
(2) The powers --
(a) to appoint and remove the chief executive officer; and
(b) subject to the Salaries and Allowances Act 1975, to fix
and alter the terms and conditions of service of the chief
20 executive officer,
are vested in the board.
(3) The board must get the Minister's approval before it exercises
any of the powers conferred by subsection (2).
(4) The chief executive officer of a port authority may resign from
25 office by giving notice in writing to the board.
page 10
Port Authorities Bill 1998
Port authorities: establishment and administration Part 2
Staff Division 3
s. 15
(5) If the chief executive officer's terms and conditions of service
deal with the matter of resignation, the right to resign under
subsection (4) can only be exercised in accordance with those
terms and conditions.
5 (6) The board may appoint a person to act in the office of chief
executive officer during any period when the chief executive
officer is, or is expected to be, absent from the State or on leave
or unable for any other reason to carry out the duties of the
office.
10 15. Role of CEO
Subject to the control of the board, the CEO of a port authority
is responsible for, and has all the powers needed to administer,
the day to day operations of the port authority.
16. Staff
15 (1) The power to engage and manage the staff of a port authority is
vested in its board.
(2) The power conferred by subsection (1) --
(a) includes powers to determine remuneration and other
terms and conditions of service of staff, to remove,
20 suspend and discipline staff and to terminate the
employment of staff; and
(b) does not preclude the delegation of any matter under
section 44.
(3) The remuneration of and other terms and conditions of
25 employment of staff are not to be less favourable than is
provided for in --
(a) an applicable award, order or agreement under the
Industrial Relations Act 1979; or
(b) the Minimum Conditions of Employment Act 1993.
page 11
Port Authorities Bill 1998
Part 2 Port authorities: establishment and administration
Division 3 Staff
s. 17
(4) There are excluded from the operation of sections 41, 41A and
43 of the Industrial Relations Act 1979 and of Part 3 of the
Workplace Agreements Act 1993 --
(a) any matters dealt with by an instrument issued under
5 section 17, except --
(i) rates of remuneration;
(ii) leave;
(iii) hours of duty; and
(iv) matters that are similar to matters prescribed for
10 the purposes of section 99(a)(iv) of the Public
Sector Management Act 1994;
and
(b) matters concerning the management of the staff that are
similar to matters prescribed for the purposes of
15 section 99(c) of the Public Sector Management
Act 1994.
(5) Nothing in this section other than subsection (4) affects the
operation of the Workplace Agreements Act 1993.
17. Minimum standards for staff management
20 (1) The board of a port authority must, after consultation with the
Commissioner for Public Sector Standards, prepare and issue an
instrument setting out minimum standards of merit, equity and
probity applicable to the management of the staff of the port
authority.
25 (2) In complying with subsection (1) a board is to have regard to
the principles set out in section 8 of the Public Sector
Management Act 1994.
(3) Section 14(3) is not affected by the requirements of
subsection (2).
page 12
Port Authorities Bill 1998
Port authorities: establishment and administration Part 2
Staff Division 3
s. 18
(4) The Commissioner for Public Sector Standards may at any time
recommend to a board any amendment that the Commissioner
thinks should be made to an instrument issued under this
section.
5 (5) A board may --
(a) amend an instrument issued under this section; or
(b) revoke it and substitute a new instrument,
but, except where subsection (4) applies, is to do so only after
consultation with the Commissioner for Public Sector
10 Standards.
18. Reports to Commissioner for Public Sector Standards
(1) The Commissioner for Public Sector Standards may in writing
direct a board --
(a) to report to the Commissioner on the observance of the
15 minimum standards in force under section 17; and
(b) to make the reports at such times, but not more often
than half-yearly,
as the Commissioner may specify.
(2) A board must comply with a direction given to it made under
20 subsection (1).
(3) The Commissioner for Public Sector Standards may at any time
report to the Minister on the content or observance of the
minimum standards in force under section 17.
19. Superannuation
25 (1) A port authority may grant, or make provision for the grant of,
retirement benefits to members and former members of staff and
their dependants and for that purpose may, subject to
page 13
Port Authorities Bill 1998
Part 2 Port authorities: establishment and administration
Division 4 Conduct and integrity of staff
s. 20
section 56A of the Government Employees Superannuation
Act 1987--
(a) establish, manage and control; or
(b) enter into an arrangement with any body for the
5 establishment, management and control by that body
either alone or jointly with the port authority of,
any fund or scheme for the purpose of providing for such
retirement benefits.
(2) A port authority may make contributions to any fund or scheme
10 referred to in subsection (1).
(3) In subsection (1) --
"members of staff " includes the CEO.
(4) Nothing in this section affects the operation of the
Superannuation and Family Benefits Act 1938 or the
15 Government Employees Superannuation Act 1987 in relation to
a port authority or members or former members of staff or their
dependants.
Division 4 -- Conduct and integrity of staff
20. Duties of CEO and staff
20 (1) Schedule 3 has effect in relation to the CEO, former CEOs,
members of staff and former members of staff.
(2) For the purposes of Schedule 3, the board of a port authority
may designate a member of staff as an executive officer by
resolution --
25 (a) passed by the board; and
(b) notified in writing to the member of staff,
and may in the same manner revoke such a designation.
page 14
Port Authorities Bill 1998
Port authorities: establishment and administration Part 2
Conduct and integrity of staff Division 4
s. 21
21. Codes of conduct
(1) The board of a port authority must, after consultation with the
Commissioner for Public Sector Standards, prepare and issue a
code or codes of conduct setting out minimum standards of
5 conduct and integrity to be observed by members of staff.
(2) In complying with subsection (1) a board is to have regard to
the principles set out in section 9 of the Public Sector
Management Act 1994.
(3) A board may, after consultation with the Commissioner for
10 Public Sector Standards, amend any code of conduct in force
under subsection (1) or revoke it and substitute a new code of
conduct.
(4) In this section and in sections 22 and 23 --
"members of staff " includes the CEO.
15 22. Reports to Commissioner for Public Sector Standards
(1) The Commissioner for Public Sector Standards may in writing
direct a board --
(a) to report to the Commissioner on the observance by
members of staff of any code of conduct in force under
20 section 21; and
(b) to make the reports at such times, but not more often
than half-yearly,
as the Commissioner may specify.
(2) A board must comply with a direction given to it under
25 subsection (1).
(3) The Commissioner for Public Sector Standards may at any time
report to the Minister on any matter relating to the observance
by members of staff of a port authority of a code of conduct in
page 15
Port Authorities Bill 1998
Part 2 Port authorities: establishment and administration
Division 4 Conduct and integrity of staff
s. 23
force under section 21 that the Commissioner thinks should be
brought to the Minister's attention.
23. Reports to Minister
(1) A board, when it delivers to the Minister its annual report under
5 section 68, is also to deliver to the Minister a separate report on
the observance by members of staff of any code of conduct in
force under section 21.
(2) A board is to give to the Commissioner for Public Sector
Standards a copy of each report under subsection (1).
page 16
Port Authorities Bill 1998
Port areas and property of port authorities Part 3
s. 24
Part 3 -- Port areas and property of port authorities
24. Port areas
(1) A port consists of the area or areas described in relation to that
port by order made by the Governor and published in the
5 Gazette.
(2) The Governor may, by order published in the Gazette, amend
the description of a port so as to --
(a) include an area in, or exclude an area from, that
description; or
10 (b) correct any error in that description.
(3) In this section --
"area" means an area of land, water or seabed.
25. Property of a port authority
(1) The following property is vested in a port authority for the
15 purposes of this Act --
(a) all Crown land in the port, including the seabed and
shores;
(b) all navigational aids in the port, or used in connection
with navigation into or out of the port, that belong to the
20 State;
(c) all fixtures on land in the port that belong to the State.
(2) The property of a port authority also includes the following --
(a) any improvements effected on vested land leased to
another person that have been acquired on the
25 termination of the lease concerned;
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Port Authorities Bill 1998
Part 3 Port areas and property of port authorities
s. 26
(b) any real or personal property (other than property
referred to in paragraph (a)) acquired by the port
authority or vested in the port authority by the Governor
for the purposes of this Act.
5 26. Port property may be taken back by the Crown
(1) For the purposes of this Act, the Governor may by order
withdraw any vested real or personal property, or any property
referred to in section 25(2)(a), from a port authority and vest or
revest that property in the Crown.
10 (2) If as a result of an order under subsection (1) a port authority
will lose the use of improvements that it has effected on land in
performing its functions, the port authority is entitled to
compensation from the State for the depreciated value of those
improvements.
15 27. Restrictions on power to sell land
(1) The power of a port authority to sell port land does not extend to
Crown land.
(2) A port authority must get the Minister's approval before it sells
port land.
20 (3) In this subsection --
"sell" means dispose of, convey and transfer, in fee simple or
for a lesser estate, for consideration or by way of exchange,
and includes grant an option to purchase or a right of first
refusal to purchase.
25 28. Creating and dealing with interests in vested land
(1) A port authority must get the Minister's approval before it
grants an easement, lease or licence in respect of vested land.
page 18
Port Authorities Bill 1998
Port areas and property of port authorities Part 3
s. 29
(2) Subsection (1) does not apply if the easement, lease or licence
meets the prescribed criteria.
(3) The period for which a lease or licence of vested land is granted
cannot exceed 50 years.
5 (4) For the purposes of this section and any prescribed criteria, the
period for which an easement, lease or licence is granted
includes any period for which the easement, lease or licence is
renewable pursuant to an option to renew.
(5) A port authority does not have to get approval under section 18
10 of the Land Administration Act 1997 in order to create or deal
with an interest in respect of vested land.
29. Disputes between a port authority and Crown
(1) If there is a dispute between a port authority and any
department, instrumentality or agency of the State with respect
15 to any port land or any other property of the port authority, the
parties to that dispute are to refer it to the Minister, and the
Minister's decision on it is final and binding on the parties.
(2) This section does not apply to a dispute relating to the proposed
acquisition by a port authority of freehold title to Crown land.
page 19
Port Authorities Bill 1998
Part 4 Functions and powers
Division 1 Functions, powers and related provisions
s. 30
Part 4 -- Functions and powers
Division 1 -- Functions, powers and related provisions
30. Functions
(1) The functions of a port authority are --
5 (a) to facilitate trade within and through the port and plan
for future growth and development of the port;
(b) to undertake or arrange for activities that will encourage
and facilitate the development of trade and commerce
generally for the economic benefit of the State through
10 the use of the port and related facilities;
(c) to control business and other activities in the port or in
connection with the operation of the port;
(d) to be responsible for the safe and efficient operation of
the port; and
15 (e) to be responsible for the maintenance and preservation
of vested property and other property held by it.
(2) It is also a function of a port authority --
(a) to do things that its board determines to be conducive or
incidental to the performance of a function referred to in
20 subsection (1); or
(b) to do things that it is authorized to do by any other
written law.
(3) A port authority may perform any of its functions in the State or
elsewhere.
25 31. Port authorities can act at their discretion
The fact that a port authority has a function given to it by
section 30 does not impose a duty on it to do any particular
page 20
Port Authorities Bill 1998
Functions and powers Part 4
Functions, powers and related provisions Division 1
s. 32
thing and, subject to this Act and any direction given to the port
authority by the Minister, it has a discretion as to how and when
it performs the function.
32. Control of the port
5 Subject to any direction given by the Minister, a port authority
has exclusive control of the port.
33. Duty to act in accordance with policy instruments
A port authority is to perform its functions in accordance with
its strategic development plan and its statement of corporate
10 intent as existing from time to time.
34. Duty to act on commercial principles
A port authority in performing its functions must --
(a) act in accordance with prudent commercial principles;
and
15 (b) endeavour to make a profit.
35. Powers generally
(1) A port authority has all the powers it needs to perform its
functions under this Act or any other written law.
(2) A port authority may for the purpose of performing a function
20 mentioned in subsection (1) --
(a) subject to Part 3, acquire, hold and dispose of real or
personal property;
(b) manage, improve and develop real or personal property
vested in it or acquired by it or arrange for property to
25 be managed, improved or developed;
(c) carry out port works or arrange for port works to be
carried out;
page 21
Port Authorities Bill 1998
Part 4 Functions and powers
Division 1 Functions, powers and related provisions
s. 35
(d) provide, manage and operate port facilities or arrange
for port facilities to be provided, managed and operated;
(e) provide port services or arrange for port services to be
provided;
5 (f) enter into any contract or arrangement including a
contract or arrangement with any person for the
performance of the function by that person on behalf of
the port authority;
(g) apply for the grant of any licence or other authority
10 required by the port authority;
(h) acquire, establish and operate --
(i) any undertaking necessary or convenient for the
performance of the function; and
(ii) any associated undertaking;
15 (i) produce and deal in any equipment, facilities or system
associated with, the performance of the function;
(j) appoint agents or engage persons under contracts for
services to provide professional, technical or other
assistance to the port authority;
20 (k) subject to sections 39 and 40, participate in any business
arrangement and acquire, hold and dispose of shares,
units or other interests in, or relating to, a business
arrangement;
(l) carry out any investigation, survey, exploration or
25 feasibility study;
(m) collaborate in, carry out, or procure the carrying out of,
research and publish information that results from the
research;
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Port Authorities Bill 1998
Functions and powers Part 4
Functions, powers and related provisions Division 1
s. 35
(n) develop and turn to account any technology, software or
other intellectual property that relates to the function
and, for that purpose, apply for, hold, exploit and
dispose of any patent, patent rights, copyright or similar
5 rights;
(o) issue licences and administer licensing schemes for
activities and things in accordance with the regulations;
and
(p) promote and market the port authority and its activities.
10 (3) Subsection (2) does not limit subsection (1) or the other powers
of a port authority under this Act or any other written law.
(4) A port authority must get the Minister's approval before it
issues a licence giving a person an exclusive right to provide
port services of a particular kind.
15 (5) The Minister is not to give approval under subsection (4) unless
the Minister considers that the public benefits of exclusivity
exceed the public costs.
(6) A port authority may --
(a) make gifts for charitable purposes or for other purposes
20 of benefit to the community or a section of the
community;
(b) make any ex gratia payment that the board considers to
be in the port authority's interest;
(c) accept any gift, devise or bequest if it is absolute, or
25 subject to conditions that are within the functions of the
port authority.
(7) For the purposes of port works and port facilities, a port
authority is a local authority within the meaning of the Public
Works Act 1902.
page 23
Port Authorities Bill 1998
Part 4 Functions and powers
Division 1 Functions, powers and related provisions
s. 35
(8) In this section --
"business arrangement" means a company, a partnership, a
trust, a joint venture, or an arrangement for sharing profits;
"participate" includes form, promote, establish, enter, manage,
5 dissolve, wind up, and do things incidental to participating
in a business arrangement;
"port activities" means --
(a) the movement, mooring, hauling out, maintenance
and launching of vessels;
10 (b) the movement of, and provision of services to,
passengers of vessels; and
(c) the movement, handling and storage of goods;
"port services" means --
(a) carrying out port activities;
15 (b) dredging, engineering, marine civil construction,
pollution management, security, pilotage, towage,
vessel movement control, emergency response, shore
stabilization and waste management services;
(c) supplying provisions or equipment to vessels;
20 (d) providing for the use or hire of port facilities;
(e) providing labour for any purpose; and
(f) any other services prescribed by regulation for the
purposes of this definition;
"port works" means works for port purposes and includes --
25 (a) designing, constructing, extending, maintaining,
removing or demolishing --
(i) maritime structures and other buildings,
structures and enclosures; and
page 24
Port Authorities Bill 1998
Functions and powers Part 4
Functions, powers and related provisions Division 1
s. 36
(ii) railways, roads, bridges, dams and
embankments;
and
(b) reclaiming land from the sea or a river.
5 36. Extended powers relating to facilities and services
A port authority's powers under section 35(2)(d) and (e) extend
to --
(a) providing, managing or operating port facilities outside
the port;
10 (b) providing port services outside the port; and
(c) providing a port service other than for or in connection
with the operation of the port as a port if doing so does
not adversely affect the provision of that service for or
in connection with the operation of the port as a port.
15 37. Power to levy fees and charges
(1) A port authority may levy and collect, in relation to its functions
under this Act or any other written law, such fees for licences
and approvals as are provided for in the regulations and such
port charges as the port authority determines.
20 (2) Port charges are to be determined by the port authority in
accordance with prudent commercial principles and may allow
for --
(a) the making of a profit; and
(b) depreciation of assets.
page 25
Port Authorities Bill 1998
Part 4 Functions and powers
Division 1 Functions, powers and related provisions
s. 38
38. How planning and building requirements apply to port
authorities
(1) In this section --
"Building Code" means the latest edition of the Building Code
5 of Australia published from time to time by, or on behalf
of, the Australian Building Codes Board, as amended from
time to time, but not including explanatory information
published with that Code;
"performance requirements" means the provisions of the
10 Building Code that set out the technical requirements in
accordance with which buildings must be built;
"port authority" includes --
(a) a lessee or tenant of a port authority; and
(b) a person acting on behalf of a port authority under an
15 arrangement under section 35(2);
"responsible Minister" means --
(a) in relation to a town planning matter, the Minister
administering the Town Planning and Development
Act 1928;
20 (b) in relation to a building matter, the Minister
administering the Local Government (Miscellaneous
Provisions) Act 1960.
(2) For the purposes of port works and port facilities --
(a) section 32 of the Town Planning and Development
25 Act 1928; and
(b) section 373(3) of the Local Government (Miscellaneous
Provisions) Act 1960,
apply to a port authority as if it were an agency of the Crown in
right of the State.
page 26
Port Authorities Bill 1998
Functions and powers Part 4
Functions, powers and related provisions Division 1
s. 39
(3) Subsection (2)(b) does not prevent the application of the
performance requirements of the Building Code to a building or
building work to which they would otherwise apply.
(4) A port authority is to consult with the relevant local government
5 before and during the carrying out of building work to ensure
that the performance requirements of the Building Code are
applied in accordance with subsection (3).
(5) If there is a dispute between a port authority and a local
government with respect to a town planning or building matter
10 relating to port works or port facilities, the parties to the dispute
are to refer it to the Minister.
(6) The Minister may, after consulting the responsible Minister,
make a decision on the dispute and that decision is final and
binding on the parties.
15 39. Subsidiaries
(1) A port authority must obtain the approval of the Minister before
it acquires a subsidiary or enters into any transaction that will
result in the acquisition of a subsidiary.
(2) The Minister is not to give approval under subsection (1) except
20 with the Treasurer's concurrence.
(3) A port authority must ensure that the memorandum and articles
of association of every subsidiary of the port authority that
under a written law is required to have a memorandum and
articles of association --
25 (a) contain provisions to the effect of those required by
Schedule 4;
(b) are consistent with this Act; and
(c) are not amended in a way that is inconsistent with this
Act.
page 27
Port Authorities Bill 1998
Part 4 Functions and powers
Division 1 Functions, powers and related provisions
s. 40
(4) A port authority must, to the maximum extent practicable,
ensure that every subsidiary of the port authority complies with
its memorandum and articles of association and with this Act.
(5) The provisions of this Act prevail to the extent of any
5 inconsistency with the articles of association of any subsidiary
of a port authority.
40. Transactions that require Ministerial approval
(1) Despite sections 30 and 35, a port authority must get the
Minister's approval before it enters into a transaction to which
10 this section applies.
(2) The Minister is not to give approval under subsection (1) except
with the Treasurer's concurrence.
(3) This section applies to a transaction if --
(a) it is to be entered into by a port authority or a subsidiary
15 of a port authority;
(b) it is not exempt under section 41; and
(c) the port authority's liability exceeds the prescribed
amount.
(4) For the purposes of subsection (3)(c) a port authority's liability
20 is the amount or value of the consideration or the amount to be
paid or received by the port authority or a subsidiary,
ascertained as at the time when the transaction is entered into.
41. Exemptions from section 40
(1) The Minister, with the Treasurer's concurrence, may by order
25 exempt a transaction or class of transaction from the operation
of section 40 either unconditionally or on specified conditions.
(2) An order under subsection (1) may be revoked or amended by
the Minister with the Treasurer's concurrence.
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Port Authorities Bill 1998
Functions and powers Part 4
Functions, powers and related provisions Division 1
s. 42
(3) An order under subsection (1) or (2) is to show sufficient
particulars of the transactions or class of transaction to which it
relates to enable the transaction or class to be identified.
(4) The Minister must, within 14 days after an order under
5 subsection (1) or (2) is made, cause it to be laid before each
House of Parliament or dealt with in accordance with
section 133.
42. Meaning of "transaction"
In sections 40 and 41 --
10 "transaction"--
(a) includes a contract or other arrangement or any
exercise of the power conferred by section 35(2)(k);
and
(b) does not include any acquisition or transaction
15 referred to in section 39(1) or any transaction under
section 85 or 87.
43. Minister to be consulted on major initiatives
A port authority must consult the Minister before it enters upon
a course of action that in its opinion --
20 (a) amounts to a major initiative; or
(b) is likely to be of significant public interest,
whether or not the course of action involves a transaction to
which section 40 applies.
44. Delegation
25 (1) A port authority may, by instrument in writing, delegate the
performance of any of its functions, except this power of
delegation.
page 29
Port Authorities Bill 1998
Part 4 Functions and powers
Division 2 Protection of people dealing with port authorities
s. 45
(2) A delegation under subsection (1) may be made to --
(a) a director or directors;
(b) the CEO;
(c) a member of staff;
5 (d) a committee established under section 13; or
(e) any other person.
(3) A delegate cannot subdelegate the performance of any function
unless the delegate is expressly authorized by the instrument of
delegation to do so.
10 (4) A function performed by a delegate of a port authority is to be
taken to be performed by the port authority.
(5) A delegate performing a function under this section is to be
taken to do so in accordance with the terms of the delegation
unless the contrary is shown.
15 (6) Nothing in this section is to be read as limiting the ability of a
port authority to act through its officers and agents in the normal
course of business.
(7) This section does not apply to the execution of documents but
authority to execute documents on behalf of a port authority can
20 be given under section 134.
Division 2 -- Protection of people dealing with port authorities
45. People dealing with port authorities may make assumptions
(1) A person having dealings with a port authority is entitled to
make the assumptions mentioned in section 47.
25 (2) In any proceedings in relation to the dealings, any assertion by
the port authority that the matters that the person is entitled to
assume were not correct must be disregarded.
page 30
Port Authorities Bill 1998
Functions and powers Part 4
Protection of people dealing with port authorities Division 2
s. 46
46. Third parties may make assumptions
(1) A person ("the third party") having dealings with a person
("the new owner") who has acquired, or purports to have
acquired, title to property from a port authority (whether
5 directly or indirectly) is entitled to make the assumptions
mentioned in section 47.
(2) In any proceedings in relation to the dealings, any assertion by
the port authority or the new owner that the matters that the
third party is entitled to assume were not correct must be
10 disregarded.
47. Assumptions that may be made
The assumptions that a person is, because of section 45 or 46,
entitled to make are --
(a) that, at all relevant times, this Act has been complied
15 with;
(b) that a person who is held out by a port authority to be a
director, the CEO, an executive officer, a member of
staff or an agent of a particular kind --
(i) has been properly appointed; and
20 (ii) has authority to perform the functions
customarily performed by a director, the CEO,
an executive officer, a member of staff or an
agent of that kind, as the case may require;
(c) that a member of staff or agent of a port authority who
25 has authority to issue a document on behalf of the port
authority has authority to warrant that the document is
genuine;
page 31
Port Authorities Bill 1998
Part 4 Functions and powers
Division 2 Protection of people dealing with port authorities
s. 48
(d) that a member of staff or agent of a port authority who
has authority to issue a certified copy of a document on
behalf of the port authority has authority to warrant that
the copy is a true copy;
5 (e) that a document has been properly sealed by a port
authority if --
(i) it bears what appears to be an imprint of the port
authority's seal; and
(ii) the sealing of the document appears to comply
10 with section 134;
and
(f) that the directors, CEO, members of staff and agents of a
port authority have properly performed their duties to
the port authority.
15 48. Exception to sections 45 and 46
(1) Despite sections 45 and 46, a person is not entitled to assume a
matter mentioned in section 47 if --
(a) the person has actual knowledge that the assumption
would be incorrect; or
20 (b) because of the person's connection or relationship with
the port authority, the person ought to know that the
assumption would be incorrect.
(2) If, because of subsection (1), a person is not entitled to make a
particular assumption in relation to dealings with the port
25 authority, section 45(2) does not apply to any assertion by the
port authority in relation to the assumption.
page 32
Port Authorities Bill 1998
Functions and powers Part 4
Protection of people dealing with port authorities Division 2
s. 48
(3) If, because of subsection (1), a person is not entitled to make a
particular assumption in relation to an acquisition or purported
acquisition from the port authority of title to property,
section 46(2) does not apply to any assertion by the port
5 authority or another person in relation to the assumption.
page 33
Port Authorities Bill 1998
Part 5 Provisions about accountability
Division 1 Strategic development plans
s. 49
Part 5 -- Provisions about accountability
Division 1 -- Strategic development plans
49. Draft strategic development plan to be submitted to
Minister
5 (1) The board of a port authority must in each year prepare, and
submit to the Minister for the Minister's agreement, a draft
strategic development plan for the port authority and any
subsidiary.
(2) Each draft strategic development plan is to be submitted not
10 later than 3 months before the start of the next financial year.
50. Period to which strategic development plan relates
A strategic development plan is to cover a forecast period of
5 years or a lesser period agreed with the Minister.
51. Matters to be included in strategic development plan
15 (1) A strategic development plan must set out the port authority's
medium to long term objectives (including economic and
financial objectives) and operational targets and how those
objectives and targets will be achieved.
(2) The matters that are to be considered by a board in the
20 preparation of a strategic development plan include --
(a) competitive strategies, pricing, service efficiency and
effectiveness, strategies for land use and infrastructure
maintenance, financial requirements, capital
expenditure, investment strategy, customer service
25 arrangements, relevant government policy, personnel
requirements, trade projections, trade facilitation; and
page 34
Port Authorities Bill 1998
Provisions about accountability Part 5
Strategic development plans Division 1
s. 52
(b) any other matters that the Minister and the board agree
should be considered.
52. Strategic development plan to be agreed if possible
A board and the Minister must try to reach agreement on a draft
5 strategic development plan as soon as possible, and in any event
not later than one month before the start of the next financial
year.
53. Minister's powers in relation to draft strategic development
plan
10 (1) The Minister may return a draft strategic development plan to a
board and request it to --
(a) consider or further consider any matter and deal with the
matter in the draft plan; and
(b) revise the draft plan in the light of its consideration or
15 further consideration.
(2) A board must comply with a request under subsection (1) as
soon as is practicable.
(3) If a board and the Minister have not reached agreement on a
draft strategic development plan by one month before the start
20 of the next financial year, the Minister may, by written notice,
direct the board --
(a) to take specified steps in relation to the draft plan; or
(b) to make specified modifications to the draft plan.
(4) A board must comply with a direction under subsection (3) as
25 soon as is practicable.
(5) The Minister must within 14 days after a direction is given
cause a copy of it to be laid before each House of Parliament or
dealt with in accordance with section 133.
page 35
Port Authorities Bill 1998
Part 5 Provisions about accountability
Division 1 Strategic development plans
s. 54
54. Strategic development plan pending agreement
(1) If the board of a port authority and the Minister have not
reached agreement on a draft strategic development plan before
the start of a financial year, the latest draft plan is to be the
5 strategic development plan for the port authority and any
subsidiary until a draft strategic development plan is agreed to
under section 55.
(2) In subsection (1) --
"latest draft plan" means the draft strategic development plan
10 submitted, or last submitted, by the board to the Minister
before the start of the financial year with any modifications
made by the board, whether before or after that time, at the
direction of the Minister.
55. Minister's agreement to draft strategic development plan
15 When a board and the Minister reach agreement on a draft
strategic development plan, it becomes the strategic
development plan for the relevant financial year or the
remainder of the year, as the case may be.
56. Modifications of strategic development plan
20 (1) A strategic development plan may be modified by a board with
the agreement of the Minister.
(2) The Minister may, by written notice, direct a board to modify a
strategic development plan and the board must comply with any
such direction.
25 (3) Before giving a direction to a board under subsection (2) the
Minister must consult with the board and take its views into
account.
page 36
Port Authorities Bill 1998
Provisions about accountability Part 5
Statement of corporate intent Division 2
s. 57
(4) The Minister must within 14 days after a direction is given
cause a copy of it to be laid before each House of Parliament or
dealt with in accordance with section 133.
57. Concurrence of Treasurer
5 The Minister is not to --
(a) agree to a draft strategic development plan under
section 55; or
(b) agree to or direct any modification of a strategic
development plan under section 56,
10 except with the Treasurer's concurrence.
Division 2 -- Statement of corporate intent
58. Draft statement of corporate intent to be submitted to
Minister
(1) The board of a port authority must in each year prepare, and
15 submit to the Minister for the Minister's agreement, a draft
statement of corporate intent for the port authority and any
subsidiary.
(2) Each draft statement of corporate intent is to be submitted not
later than 3 months before the start of the next financial year.
20 59. Period to which statement of corporate intent relates
A statement of corporate intent is to cover a financial year.
60. Matters to be included in statement of corporate intent
(1) A statement of corporate intent must be consistent with the
strategic development plan under Division 1 for the port
25 authority and any subsidiary.
page 37
Port Authorities Bill 1998
Part 5 Provisions about accountability
Division 2 Statement of corporate intent
s. 60
(2) A statement of corporate intent for a port authority and any
subsidiary must specify --
(a) an outline of the port authority's objectives;
(b) an outline of major planned achievements;
5 (c) proposed arrangements to facilitate trade;
(d) estimates of operating revenue and expenditure;
(e) an outline of capital expenditure and borrowing
requirements;
(f) proposed pricing arrangements;
10 (g) proposed provisions for dividends;
(h) the performance targets and other measures by which
performances may be judged and related to objectives;
(i) accounting policies that apply to the preparation of
accounts;
15 (j) the type of information to be given to the Minister,
including information to be given in half-yearly and
annual reports;
(k) the nature and extent of community service obligations
that are to be performed;
20 (l) the costings of, funding for, or other arrangements to
make adjustments relating to, community service
obligations;
(m) the ways in which, and the extent to which,
compensation will be made for performing community
25 service obligations; and
(n) such other matters as may be agreed on by the Minister
and the board of the port authority.
(3) The Minister may exempt a port authority from including any
matter, or any aspect of a matter, mentioned in subsection (2) in
30 the statement of corporate intent.
page 38
Port Authorities Bill 1998
Provisions about accountability Part 5
Statement of corporate intent Division 2
s. 61
(4) A community service obligation arises for the purposes of
subsection (2) if --
(a) the Minister specifically requires a port authority to do
something;
5 (b) for commercial reasons, the port authority would not do
the thing if it did not have to; and
(c) the Government does not require things of that kind to
be done by businesses in the public or private sector
generally.
10 61. Statement of corporate intent to be agreed if possible
A board and the Minister must try to reach agreement on a
statement of corporate intent as soon as possible and, in any
event not later than the start of the next financial year.
62. Minister's powers in relation to draft statement of corporate
15 intent
(1) The Minister may return a draft statement of corporate intent to
a board and request it to --
(a) consider or further consider any matter and deal with the
matter in the draft statement; and
20 (b) revise the draft statement in the light of its consideration
or further consideration.
(2) A board must comply with a request under subsection (1) as
soon as is practicable.
(3) If a board and the Minister have not reached agreement on a
25 draft statement of corporate intent by one month before the start
of the financial year, the Minister may, by written notice, direct
the board --
(a) to take specified steps in relation to the draft statement; or
(b) to make specified modifications to the draft statement.
page 39
Port Authorities Bill 1998
Part 5 Provisions about accountability
Division 2 Statement of corporate intent
s. 63
(4) A board must comply with a direction under subsection (3) as
soon as is practicable.
(5) The Minister must within 14 days after a direction is given
cause a copy of it to be laid before each House of Parliament or
5 dealt with in accordance with section 133.
63. Statement of corporate intent pending agreement
(1) If the board of a port authority and the Minister have not
reached agreement on a draft statement of corporate intent
before the start of a financial year, the latest draft statement is to
10 be the statement of corporate intent for the port authority and
any subsidiary until a draft statement of corporate intent is
agreed to under section 64.
(2) In subsection (1) --
"latest draft statement" means the draft statement of corporate
15 intent submitted, or last submitted, by the board to the
Minister before the start of the financial year with any
modifications made by the board, whether before or after
that time, at the direction of the Minister.
64. Minister's agreement to draft statement of corporate intent
20 (1) When a board and the Minister reach agreement on a draft
statement of corporate intent, it becomes the statement of
corporate intent for the relevant financial year or the remainder
of the year as the case may be.
(2) The Minister must within 14 days after agreeing to a draft
25 statement of corporate intent under subsection (1) cause a copy
of it to be laid before each House of Parliament or dealt with in
accordance with section 133.
page 40
Port Authorities Bill 1998
Provisions about accountability Part 5
Statement of corporate intent Division 2
s. 65
(3) A board may request the Minister to delete from the copy of a
statement of corporate intent that is to be laid before Parliament
a matter that is of a commercially sensitive nature, and the
Minister may, despite subsection (2), comply with the request.
5 65. Modifications of statement of corporate intent
(1) A statement of corporate intent may be modified by a board
with the agreement of the Minister.
(2) The Minister may, by written notice, direct a board to modify
the statement of corporate intent, and the board must comply
10 with any such direction.
(3) Before giving a direction to a board under subsection (2), the
Minister must consult with the board and take its views into
account.
(4) The Minister must within 14 days after a direction is given
15 cause a copy of it to be laid before each House of Parliament or
dealt with in accordance with section 133.
66. Concurrence of Treasurer
The Minister is not to --
(a) agree to a draft statement of corporate intent under
20 section 64; or
(b) agree to or direct any modification of a statement of
corporate intent under section 65,
except with the Treasurer's concurrence.
page 41
Port Authorities Bill 1998
Part 5 Provisions about accountability
Division 3 Reporting requirements
s. 67
Division 3 -- Reporting requirements
67. Half-yearly reports
(1) A port authority must, for the first half of a financial year, give
to the Minister a report on the operations of the port authority
5 and of each subsidiary.
(2) A half-yearly report is to be prepared on a consolidated basis.
(3) A half-yearly report must be given to the Minister --
(a) within 2 months after the end of the reporting period; or
(b) if another period after the end of the reporting period is
10 agreed between the board and the Minister, within the
agreed period.
(4) The port authority must give a copy of each half-yearly report to
the Treasurer.
(5) A half-yearly report must include the information required to be
15 given in the report by a relevant statement of corporate intent
under Division 2.
68. Annual reports
(1) A port authority must prepare and deliver to the Minister in each
year separate annual reports on the operations of the port
20 authority and of each subsidiary in accordance with Schedule 5,
clauses 34 and 35.
(2) All of the reports under subsection (1) are to be sent to the
Minister at the same time.
(3) The Minister must within 21 days after the day on which a copy
25 of an annual report of a port authority is delivered to the
Minister cause a copy of the report to be laid before each House
of Parliament or dealt with in accordance with section 133.
page 42
Port Authorities Bill 1998
Provisions about accountability Part 5
Reporting requirements Division 3
s. 69
(4) An annual report on the operations of a subsidiary is not
required to be laid before Parliament or dealt with under
section 133.
69. Contents of annual reports
5 (1) The annual report in respect of a port authority or a subsidiary
must --
(a) contain such information as is required to be included in
the report by the Minister to enable an informed
assessment to be made of the operations of the port
10 authority or the subsidiary;
(b) include a commentary on any significant issues relating
to the performance of the port authority or the subsidiary
that were raised in any relevant statement of corporate
intent;
15 (c) include particulars of any directions given by the
Minister under section 53(3), 56(2), 62(3), 65(2), 72(1)
or 84(3) that --
(i) apply to the port authority or the subsidiary; and
(ii) were given during the relevant financial year, or
20 at any other time to the extent that they
continued to be material during that year; and
(d) include particulars of the impact on the financial
position, profits and losses and prospects of the port
authority or the subsidiary of any directions that were
25 given by the Minister under section 72(1) during the
relevant financial year.
(2) The requirements of this section are in addition to Schedule 5,
clauses 34 and 35.
page 43
Port Authorities Bill 1998
Part 5 Provisions about accountability
Division 4 Ministerial directions, general provisions
s. 70
70. Deletion of commercially sensitive matters from reports
(1) A board may request the Minister to delete from the copies of a
report (and accompanying documents) that are to be made
public, a matter that is of a commercially sensitive nature.
5 (2) The Minister may comply with a request under subsection (1)
unless the matter is one that is required under Schedule 5,
clause 35 to be included in the report.
(3) If the Minister complies with a request under subsection (1) the
copies of the report are to include a statement that a matter of a
10 commercially sensitive nature has been deleted from it.
Division 4 -- Ministerial directions, general provisions
71. Directions to port authority
Except as provided by this Act or any other written law, a port
authority is not required to comply with any direction or
15 administrative request given or made by or on behalf of the
Government.
72. Minister may give directions
(1) The Minister may give directions in writing to a port authority
with respect to the performance of its functions, either generally
20 or in relation to a particular matter, and, subject to section 73,
the port authority is to give effect to any such direction.
(2) The Minister must cause the text of any direction under
subsection (1) to be laid before each House of Parliament or
dealt with under section 133 --
25 (a) within 14 days after the direction is given; or
page 44
Port Authorities Bill 1998
Provisions about accountability Part 5
Consultation and provision of information Division 5
s. 73
(b) if the direction is the subject of a notice under section 17
of the Statutory Corporations (Liability of Directors)
Act 1996, within 14 days after it is confirmed under that
section.
5 73. When directions take effect
(1) A direction under section 72(1) becomes effective --
(a) on the expiry of 7 days after its receipt by a board or of
such longer period as the Minister may, at the request of
the board, determine; or
10 (b) if it is the subject of a notice under section 17 of the
Statutory Corporations (Liability of Directors)
Act 1996, on its being confirmed under that section.
(2) If a board asks the Minister to extend the 7 day period under
subsection (1), the Minister must decide whether or not to agree
15 to the request and notify the board of that decision before the
7 day period has expired.
Division 5 -- Consultation and provision of information
74. Consultation
The board of a port authority and the Minister, at the request of
20 either, are to consult together, either personally or through
appropriate representatives, in relation to any aspect of the
operations of the port authority.
75. Minister to have access to information
(1) The Minister is entitled --
25 (a) to have information in the possession of a port authority
and any subsidiary; and
(b) where the information is in or on a document, to have,
and make and retain copies of, that document.
page 45
Port Authorities Bill 1998
Part 5 Provisions about accountability
Division 5 Consultation and provision of information
s. 75
(2) For the purposes of subsection (1) the Minister may --
(a) request the CEO or the board of the port authority to
furnish information to the Minister;
(b) request the CEO or the board of the port authority to
5 give the Minister access to information;
(c) for the purposes of paragraph (b) make use of the staff
of the port authority and any subsidiary to obtain the
information and furnish it to the Minister.
(3) The CEO or the board of a port authority is to --
10 (a) comply with a request under subsection (2); and
(b) make staff and facilities available to the Minister for the
purposes of subsection (2)(c).
(4) Where the CEO or the board of a port authority furnishes or
gives access to information to the Minister, the Minister is to be
15 advised whether or not in the opinion of the CEO or the board
the public disclosure of the information would adversely affect
the commercial interests of the port authority or any subsidiary
or of any other person.
(5) In this section --
20 "document" includes any tape, disc or other device or medium
on which information is recorded or stored mechanically,
photographically, electronically or otherwise;
"information" means information specified, or of a description
specified, by the Minister that relates to the functions of the
25 port authority.
page 46
Port Authorities Bill 1998
Provisions about accountability Part 5
Consultation and provision of information Division 5
s. 76
76. Minister to be kept informed
A port authority must --
(a) keep the Minister reasonably informed of the operations,
financial performance and financial position of the port
5 authority and its subsidiaries, including the assets and
liabilities, profits and losses and prospects of the port
authority and its subsidiaries;
(b) give the Minister reports and information that the
Minister requires for the making of informed
10 assessments of matters mentioned in paragraph (a); and
(c) if matters arise that in the opinion of the board of the
port authority may prevent, or significantly affect,
achievement of the port authority's --
(i) objectives outlined in its statement of corporate
15 intent; or
(ii) targets under its strategic development plan,
promptly inform the Minister of the matters and its
opinion in relation to them.
77. Notice of financial difficulty
20 (1) The board of a port authority must notify the Minister if the board
forms the opinion that the port authority or a subsidiary is unable
to, or will be unlikely to be able to, satisfy any financial obligation,
of the port authority or the subsidiary from the financial resources
available or likely to be available to the port authority or the
25 subsidiary at the time the financial obligation is due.
(2) The notice must --
(a) be in writing;
(b) provide the reasons for the board's opinion; and
page 47
Port Authorities Bill 1998
Part 5 Provisions about accountability
Division 6 Protection from liability
s. 78
(c) provide such other information as the board considers
relevant.
(3) Within 7 days of receipt of the notice, the Minister must --
(a) confer with the Treasurer and the board for the purpose
5 of determining what action is required to ensure that the
port authority or subsidiary is able to satisfy the relevant
financial obligation when it is due; and
(b) initiate such action as is required to ensure that the port
authority or subsidiary is able to satisfy the relevant
10 financial obligation when it is due.
(4) For the purposes of subsection (3) the Minister may give a port
authority a direction under section 72 requiring the port
authority or any subsidiary to cease or limit the performance of
any function.
15 (5) In giving effect to a direction under subsection (4) a board must
ensure that it is complied with in relation to any relevant
subsidiary.
Division 6 -- Protection from liability
78. No liability for things done under this Part
20 (1) A port authority, a subsidiary of a port authority or a person
performing functions under this Act is not liable --
(a) in respect of any claim arising as a consequence of the
disclosure of information or documents under
section 67, 68, 74, 75, 76 or 77; or
25 (b) for the fact of having done or omitted a thing that is
required to be done or omitted by a direction given
under section 53(3), 56(2), 62(3), 65(2), 72(1) or 84(3).
page 48
Port Authorities Bill 1998
Provisions about accountability Part 5
Protection from liability Division 6
s. 78
(2) Subsection (1) does not extend to the manner in which a thing is
done or omitted if it is done or omitted contrary to section 9 or
10 of the Statutory Corporations (Liability of Directors)
Act 1996 or Schedule 3, clause 3 or 4.
page 49
Port Authorities Bill 1998
Part 6 Financial provisions
Division 1 General
s. 79
Part 6 -- Financial provisions
Division 1 -- General
79. Bank account
(1) In this section --
5 "account" means an account --
(a) at the Treasury; or
(b) at a bank as defined in section 3(1) of the Financial
Administration and Audit Act 1985.
(2) A port authority is to maintain one or more accounts.
10 (3) An account at the Treasury is to form part of the Trust Fund
constituted under section 9 of the Financial Administration and
Audit Act 1985.
(4) Money received by and expenditure of a port authority is to be
credited to or paid from an account.
15 80. Investment
Funds of a port authority that are not in an account at the
Treasury and are not being used for the performance of the port
authority's functions may be invested in such investments as the
board of the port authority determines.
20 81. Exemption from rates
(1) Subject to subsection (2), port land, or land under the
management and control of a port authority, is not rateable land
for the purposes of the Local Government Act 1995.
page 50
Port Authorities Bill 1998
Financial provisions Part 6
Payments to State Division 2
s. 82
(2) If a port authority leases or lets port land, or land under its
management and control, the land is by reason of the lease or
tenancy rateable land for the purposes of the Local Government
Act 1995 in the hands of the lessee or tenant.
5 Division 2 -- Payments to State
82. Payment of amount in lieu of rates
(1) A port authority is to pay to the Treasurer in respect of a
financial year an amount equal to the sum of all local
government rates and charges that, but for --
10 (a) section 81(1); and
(b) section 6.26(2)(a)(i) of the Local Government Act 1995,
the port authority would have been liable to pay in respect of
that financial year.
(2) Subsection (1) does not apply in relation to --
15 (a) land that is rateable under section 81(2);
(b) land used or reserved for a purpose prescribed for the
purposes of this section; or
(c) an area of land prescribed for the purposes of this
section.
20 83. Determination of amounts under section 82
Amounts payable under section 82 --
(a) are to be determined in accordance with such principles;
and
(b) are to be paid at such time or times,
25 as the Treasurer may direct.
page 51
Port Authorities Bill 1998
Part 6 Financial provisions
Division 2 Payments to State
s. 84
84. Dividends
(1) A dividend under this section is to be --
(a) calculated with respect to the net profits of a port
authority for a financial year after first taking into
5 account --
(i) any amounts payable to the Treasurer under
section 82 and the State Enterprises
(Commonwealth Tax Equivalents) Act 1996; and
(ii) any formula for calculation agreed between the
10 Minister and the Treasurer;
and
(b) paid to the Treasurer, in accordance with subsection (4).
(2) The board of a port authority, as soon as practicable after the
end of each financial year, is to make a recommendation to the
15 Minister as to the amount of the dividend (if any) that the board
recommends as appropriate for that financial year.
(3) The Minister, with the Treasurer's concurrence --
(a) may accept a recommendation under subsection (2); or
(b) after consultation with the board, is to direct that the
20 amount of the dividend is to be some other amount.
(4) A port authority is to pay the dividend --
(a) as soon as practicable after the amount is fixed under
subsection (3); and
(b) in any case not later than --
25 (i) 6 months after the end of the financial year to
which the dividend relates; or
(ii) such other time as may be agreed between the
Treasurer and the board.
page 52
Port Authorities Bill 1998
Financial provisions Part 6
Borrowing Division 3
s. 85
(5) The Minister must within 14 days after a direction is given
under subsection (3) cause a copy of it to be laid before each
House of Parliament or dealt with in accordance with
section 133.
5 Division 3 -- Borrowing
85. Borrowing
(1) A port authority may, subject to section 86 --
(a) borrow or re-borrow moneys;
(b) obtain credit;
10 (c) issue, acquire, hold or dispose of debt paper;
(d) create and issue capital instruments; or
(e) otherwise arrange for financial accommodation to be
extended to the port authority.
(2) Capital instruments under subsection (1)(d) are to be created
15 and issued on such terms as a port authority determines and the
Minister approves.
(3) A port authority is to keep such registers for the purposes of this
section as may be prescribed.
(4) In subsection (1) --
20 "debt paper" means inscribed stock, bonds, debentures with
coupons annexed, bills of exchange, promissory notes or
bearer securities, or other similar instruments evidencing
indebtedness.
page 53
Port Authorities Bill 1998
Part 6 Financial provisions
Division 3 Borrowing
s. 86
86. Borrowing limits
(1) The Minister, with the Treasurer's concurrence and in
accordance with subsections (2), (3) and (4), may, by notice to a
port authority, impose monetary limits on the exercise of the
5 powers conferred by section 85.
(2) The monetary limit is to be determined for the exercise of those
powers in a financial year specified by the Minister and may
relate to --
(a) the total amount that can be outstanding at any one time
10 during that year as a result of the exercise of those
powers; or
(b) the total liabilities that can be incurred during that year
as a result of the exercise of those powers.
(3) A limit for the time being in force may be varied for a
15 subsequent financial year.
(4) A limit for the time being in force continues to apply until it is
so varied.
(5) A port authority must comply with any limit for the time being
in force in relation to it.
20 (6) A liability of a port authority is not unenforceable or in any way
affected by a failure of the port authority to comply with this
section.
(7) No person dealing with a port authority is bound or concerned
to enquire whether the port authority has complied or is
25 complying with this section.
page 54
Port Authorities Bill 1998
Financial provisions Part 6
Borrowing Division 3
s. 87
87. Hedging transactions
(1) A port authority may, for the purpose of managing, limiting or
reducing perceived risks or anticipated costs in connection with
the exercise of any power conferred by section 85 --
5 (a) enter into an agreement or arrangement to effect any of
the following transactions --
(i) a foreign exchange transaction;
(ii) a forward foreign exchange transaction;
(iii) a currency swap;
10 (iv) a forward currency swap;
(v) a foreign currency cap, a foreign currency collar
or a foreign currency floor;
(vi) a forward interest rate agreement;
(vii) an interest rate swap;
15 (viii) a forward interest rate swap;
(ix) an interest rate cap, an interest rate collar or an
interest rate floor;
(x) an option for interest rate or currency
management purposes;
20 (xi) a futures contract or a futures option within the
meaning of the Corporations Law; or
(xii) a transaction of such other class as is approved in
writing by the Minister, with the Treasurer's
concurrence, as a class of transactions to which
25 this paragraph applies;
or
page 55
Port Authorities Bill 1998
Part 6 Financial provisions
Division 4 Guarantees
s. 88
(b) enter into an agreement or arrangement to effect any
transaction which is a combination of --
(i) 2 or more transactions permitted under
paragraph (a); or
5 (ii) one or more transactions permitted under
paragraph (a) and one or more transactions
permitted under section 85.
(2) In subsection (1)(a) --
"interest rate" includes coupon rate, discount rate and yield.
10 Division 4 -- Guarantees
88. Guarantees
(1) The Treasurer, with the Minister's concurrence, may, in the
name and on behalf of the State, guarantee the performance by a
port authority, in the State or elsewhere, of any financial
15 obligation of the port authority arising under section 85.
(2) A guarantee is to be in such form and subject to such terms and
conditions as the Treasurer determines.
(3) The due payment of moneys payable by the Treasurer under a
guarantee --
20 (a) is by this subsection guaranteed by the State; and
(b) is to be made by the Treasurer and charged to the
Consolidated Fund, and this subsection appropriates that
Fund accordingly.
(4) The Treasurer is to cause any amounts received or recovered
25 from a port authority or otherwise in respect of any payment
made by the Treasurer under a guarantee to be credited to the
Consolidated Fund.
page 56
Port Authorities Bill 1998
Financial provisions Part 6
Financial administration and audit Division 5
s. 89
89. Charges for guarantee
(1) The Treasurer may, after consultation with the board of a port
authority, fix charges to be paid by the port authority to the
Treasurer for the benefit of the Consolidated Fund in respect of
5 a guarantee given under section 88.
(2) Payments by a port authority to the Treasurer in respect of any
such charges are required to be made at such times, and in such
instalments, as the Treasurer determines.
Division 5 -- Financial administration and audit
10 90. Limited application of Financial Administration and Audit
Act 1985
Despite anything in the Financial Administration and Audit
Act 1985 that Act, other than the provisions referred to in
Schedule 5, clauses 37(2) and 44(4), does not apply to a port
15 authority or any person performing functions under this Act.
91. Financial administration and audit
(1) Schedule 5 has effect in relation to the financial administration
and audit of a port authority.
(2) That Schedule may be amended by regulations made by the
20 Governor in accordance with subsections (3) and (4).
(3) Where --
(a) a provision of the Corporations Law the substance of
which is contained in Schedule 5 is amended or
repealed; or
page 57
Port Authorities Bill 1998
Part 6 Financial provisions
Division 6 Financial targets
s. 92
(b) the Corporations Law is amended by the insertion of a
new provision relating to a matter provided for by
Schedule 5,
the Minister may recommend to the Governor, as soon as is
5 practicable after the amendment or repeal comes into force, that
regulations making equivalent provisions be made under
subsection (2).
(4) The reference to equivalent provisions in subsection (3) is to
regulations in such form that Schedule 5 as amended will in the
10 opinion of the Minister be substantially the same as the
corresponding provisions of the Corporations Law but with such
modifications as are consistent with the policy of this Act.
Division 6 -- Financial targets
92. Annual financial targets
15 (1) The Minister, with the Treasurer's concurrence, may, by written
notice given to a port authority on or before 31 December
preceding the start of a financial year, determine a financial
target for the port authority for that financial year.
(2) If a port authority has a financial target for a financial year
20 under subsection (1), the port authority must pursue a policy
aimed at attaining the target, or the target as varied under
subsection (4), during that financial year.
(3) A notice under subsection (1) has to describe the procedure to
be used to ascertain whether or not the financial target will be,
25 or has been attained.
page 58
Port Authorities Bill 1998
Financial provisions Part 6
Financial targets Division 6
s. 92
(4) If a port authority has a financial target for a financial year
under subsection (1), and during that financial year, economic
conditions beyond the control of the port authority are such that
it is --
5 (a) unlikely that the port authority will attain the target; or
(b) likely that the port authority will exceed the target,
the Minister may, with the Treasurer's concurrence, vary the
target by written notice given to the port authority.
page 59
Port Authorities Bill 1998
Part 7 Navigation and port matters
Division 1 Navigational aids
s. 93
Part 7 -- Navigation and port matters
Division 1 -- Navigational aids
93. Port authority may provide navigational aids
(1) A port authority may --
5 (a) provide navigational aids for the port;
(b) agree to take over the control of a navigational aid for
the port;
(c) maintain, move, remove, discontinue or replace any
navigational aid provided by or under the control of the
10 port authority; or
(d) vary the character of, or the mode of display or
operation of, any navigational aid provided by or under
the control of the port authority.
(2) If a port authority enters into an agreement under
15 subsection (1)(b), provision is to be made in the agreement for
the payment from time to time of the expense incurred in the
exercise of the powers conferred by subsection (1)(c) or (d).
(3) A person to whom this subsection applies is not liable for any
loss or damage resulting from --
20 (a) a thing done or omitted to be done in good faith in
relation to a navigational aid for a port; or
(b) any defect in, or in the placing or operation of, a
navigational aid for a port.
(4) Subsection (3) applies to --
25 (a) the State;
(b) the port authority;
(c) the CEO and members of staff of the port authority; and
page 60
Port Authorities Bill 1998
Navigation and port matters Part 7
Navigational aids Division 1
s. 94
(d) if the control of the navigational aid has been taken over
by the port authority under an agreement under
subsection (1)(b), a person who is or was the owner,
lessee or bailee of the navigational aid.
5 94. Interference with navigational aids
(1) A person must not, without lawful excuse (proof of which lies
on the person) do any of the following things in relation to a
navigational aid for a port --
(a) damage it;
10 (b) make a vessel fast to it or otherwise use a vessel in a
way that might damage it;
(c) obstruct or interfere with its display or operation;
(d) obstruct or interfere with any emission or transmission
from it.
15 Penalty: $20 000 or imprisonment for 20 months.
(2) A person who is convicted of an offence under subsection (1)(a)
is liable, in addition to suffering any penalty imposed in respect
of that offence, to pay to the port authority for the port all
expenses reasonably incurred by the port authority in making
20 good the damage and the port authority may recover those
expenses from that person in a court of competent jurisdiction
as a debt due to the port authority.
(3) Subsection (2) does not affect the operation of section 113 in
relation to damage to which that section applies.
page 61
Port Authorities Bill 1998
Part 7 Navigation and port matters
Division 2 Pilotage
s. 95
Division 2 -- Pilotage
95. Interpretation and application of this Division
(1) In this Division --
"approved", in relation to a pilot, means approved under
5 section 96;
"under compulsory pilotage", in relation to a vessel, means
under the control of a pilot as required by section 97.
(2) A reference in this Division to a port includes a reference to any
area that is outside the port and is declared by the regulations to
10 be associated with the port and to be an area in which pilotage
services are to be used.
(3) This Division applies to vessels --
(a) moving in a port in the course of entering or leaving the
port; or
15 (b) moving between places in a port.
96. Port authority to approve pilots and ensure that pilotage
services are available
(1) A port authority may approve a competent and suitably
qualified person as a pilot for the port and is to ensure that there
20 is at all times at least one approved pilot for the port.
(2) An approval under subsection (1) has effect for the period set
out in the approval unless it is revoked by the port authority
before that period ends.
(3) An approval under subsection (1), or any revocation of such an
25 approval, is to be in writing.
page 62
Port Authorities Bill 1998
Navigation and port matters Part 7
Pilotage Division 2
s. 97
(4) No person is to act as a pilot in a port unless the person is
approved as a pilot for the port.
Penalty: $10 000.
(5) A port authority is responsible for ensuring that pilotage
5 services, provided by it or other persons, are available to the
extent required in the port.
97. Pilotage compulsory in ports
(1) Except as otherwise provided by the regulations, a vessel
moving in a port must use pilotage services.
10 (2) A person who moves a vessel in a port without it being under
the control of a person approved as a pilot for the port commits
an offence unless under the regulations --
(a) the vessel does not have to have an approved pilot; or
(b) the person is permitted to do so.
15 Penalty: $10 000.
(3) If a vessel is being moved in a port without it being under the
control of a person approved as a pilot for the port, neither the
State nor the port authority is liable for --
(a) any loss or damage caused by the vessel; or
20 (b) the loss of, or damage to, the vessel or a thing in or on
the vessel,
while the vessel is being so moved, whether or not it is being so
moved by reason of an exemption under the regulations.
98. Pilot under authority of master
25 An approved pilot who as pilot has control of a vessel in a port
is subject to the authority of the master of the vessel, and the
master is not relieved from responsibility for the conduct and
navigation of the vessel by reason only of those circumstances.
page 63
Port Authorities Bill 1998
Part 7 Navigation and port matters
Division 3 Harbour masters
s. 99
99. Liability of owner or master of a vessel
The owner or master of a vessel moving under compulsory
pilotage in a port is liable for any loss or damage caused by the
vessel, or by a fault in the conduct or navigation of the vessel, in
5 the same manner as the owner or master would be liable if
pilotage were not compulsory.
100. Immunity from liability for pilot's negligence
(1) Neither the State nor the port authority is liable for any loss or
damage resulting from an act or omission by a person approved
10 as a pilot by a port authority in the conduct or navigation of a
vessel of which the person is the pilot.
(2) An approved pilot is not personally liable for any loss or
damage resulting from an act or omission by him or her in the
conduct or navigation of a vessel of which he or she is the pilot.
15 (3) The employer of a person who is an approved pilot is not liable
for any loss or damage resulting from an act or omission by the
person in the conduct or navigation of a vessel of which the
person is the pilot.
Division 3 -- Harbour masters
20 101. Port includes other declared areas
A reference in this Division to a port includes a reference to --
(a) any area that is outside, but contiguous with, a port and
is declared by the regulations to be an adjacent area in
relation to the port; and
25 (b) any area that is declared under section 95(2) in relation
to the port.
page 64
Port Authorities Bill 1998
Navigation and port matters Part 7
Harbour masters Division 3
s. 102
102. Appointment
(1) In this section --
"eligible person" means --
(a) the CEO;
5 (b) a member of staff who is competent and suitably
qualified; or
(c) any other person who is competent and suitably
qualified.
(2) The board of a port authority is to appoint an eligible person as
10 the harbour master of the port.
(3) The board of a port authority may appoint an eligible person as
the deputy harbour master of the port.
(4) Subject to subsection (5), the deputy harbour master may
perform the functions of the harbour master if the harbour
15 master is absent from the port or on leave, or unable for any
other reason to perform those functions.
(5) The board of a port authority may appoint an eligible person to
act in the office of harbour master of the port if the harbour
master is, or is expected to be, absent from the port, or on leave,
20 or unable for any other reason to perform the functions of the
office.
(6) If there is no person appointed under subsection (2), (3) or (5)
who is able to perform the functions of the harbour master,
those functions may be performed by a person determined by
25 the board of the port authority.
(7) The harbour master may, in writing, delegate any of his or her
functions, other than this power of delegation, to a member of
staff.
page 65
Port Authorities Bill 1998
Part 7 Navigation and port matters
Division 3 Harbour masters
s. 103
103. Principal and other functions
(1) The principal functions of a harbour master are --
(a) to control the movement and mooring of vessels in the
port;
5 (b) to ensure the port is kept free of obstructions or possible
obstructions to vessels using the port;
(c) to ensure that the safety of people and property in the
port is not endangered by vessels or dangerous things;
and
10 (d) to ensure that the operations of the port in relation to
vessels are conducted safely and efficiently.
(2) A harbour master has such other functions as the port authority
determines.
(3) The fact that a harbour master is a member of staff does not
15 affect the powers of the CEO in relation to that member of staff.
(4) If a harbour master is a person referred to in section 102(1)(c),
the CEO may give directions to the harbour master as to the
performance of his or her functions and the harbour master is to
comply with those directions.
20 104. Directions to masters etc.
(1) For the purpose of performing his or her principal functions a
harbour master may direct the owner, master, or person in
charge of a vessel to do any or all of the following --
(a) to ensure that the vessel does not enter the port;
25 (b) to navigate the vessel in a specified manner while it is in
the port;
(c) to moor the vessel in the port at a specified place and in
a specified manner;
page 66
Port Authorities Bill 1998
Navigation and port matters Part 7
Harbour masters Division 3
s. 105
(d) to move the vessel out of the port or to another place in
it;
(e) to take any action specified by the harbour master in
relation to the means by which the vessel is moored in
5 the port.
(2) When the safety of people or valuable property is in danger
from a vessel in a port and no other direction is reasonable in
the circumstances, the harbour master may direct the owner,
master, or person in charge of the vessel to scuttle it
10 immediately.
105. Directions as to dangerous things
(1) In this section --
"owner", in relation to --
(a) a vessel or part of a vessel, means the owner
15 immediately prior to the time of the loss or
abandonment of the vessel or part of the vessel;
(b) a thing in the water that was in or on a vessel, means
the owner of the vessel.
(2) For the purpose of performing his or her principal functions a
20 harbour master may direct the owner of a dangerous thing in the
port to do any or all of the following --
(a) to move the dangerous thing out of the port or to another
place within it;
(b) to destroy the dangerous thing;
25 (c) to sink the dangerous thing.
page 67
Port Authorities Bill 1998
Part 7 Navigation and port matters
Division 3 Harbour masters
s. 106
106. Limit on power to order removal of vessels or dangerous
things
A harbour master must not direct that a vessel or dangerous
thing be moved out of a port unless satisfied that there is no
5 other place in the port where the vessel or dangerous thing can
lie without --
(a) obstructing other vessels;
(b) hindering the efficiency of the operations of the port;
(c) endangering the safety of people or property; or
10 (d) polluting the waters of the port.
107. Removal of ownerless vessels or dangerous things
For the purpose of performing his or her principal functions a
harbour master may remove from the waters of the port,
destroy, or sink any vessel or dangerous thing the owner of
15 which cannot, after reasonable enquiries, be ascertained or
found.
108. Offence of not obeying direction
A person who without reasonable excuse (proof of which lies on
that person) does not comply with a direction under section 104
20 or 105 commits an offence.
Penalty: $20 000.
109. Powers if direction not obeyed
(1) If a person does not comply with a direction under
section 104(1)(c), (d) or (e) or (2) or section 105 within a
25 reasonable time after being given it, the harbour master may
cause the direction to be complied with using such means as the
harbour master thinks fit.
page 68
Port Authorities Bill 1998
Navigation and port matters Part 7
Harbour masters Division 3
s. 110
(2) When causing a vessel to be moved under subsection (1) the
harbour master may cause the vessel to be made fast to another
vessel that is moored in the port.
(3) Subsection (2) does not prevent the owner or master of a vessel
5 to which another vessel is made fast under that subsection from
recovering from the owner or master of that other vessel
damages for loss or damage occasioned by that making fast.
110. Recovery of costs
(1) A port authority may recover --
10 (a) the costs of exercising the powers in section 107 from
the owner of the vessel or dangerous thing; or
(b) the cost of exercising the powers in section 109 from the
owner, master, or person in charge, of the vessel or the
owner of the dangerous thing,
15 in a court of competent jurisdiction as a debt due to the port
authority.
(2) A port authority may recover the costs of exercising the powers
in section 107 by selling the vessel or dangerous thing.
(3) The proceeds of a sale are to be applied --
20 (a) first to the expenses of the sale; and
(b) second to the costs of exercising the powers in
section 107,
and the balance, if any, is to be paid to the owner of the vessel
or dangerous thing but, if the identity or whereabouts, or both,
25 of the owner cannot be ascertained, that balance is to be paid to
the Treasurer.
(4) The powers in subsections (1) and (2) may be exercised
together.
page 69
Port Authorities Bill 1998
Part 7 Navigation and port matters
Division 4 Damage in a port caused by vessels etc.
s. 111
111. Immunity from liability for acts under this Division
Neither the State, the port authority, the harbour master, nor any
person acting under the direction of the harbour master, is liable
for any loss or damage occasioned by --
5 (a) complying with a direction under section 104 or 105
given in good faith; or
(b) the exercise in good faith of the powers in section 107,
109 or 110(2).
112. Offence of hindering
10 A person who hinders a harbour master, or a person acting
under the direction of a harbour master, in the exercise of the
powers in section 107 or 109 commits an offence.
Penalty: $10 000.
Division 4 -- Damage in a port caused by vessels etc.
15 113. Responsibility for damage to port facilities or property
(1) This section applies if any port facility or other property of a
port authority is damaged by --
(a) a vessel or its equipment or cargo;
(b) any floating object;
20 (c) any material; or
(d) any person employed in, on or in relation to, a thing
referred to in paragraph (a), (b) or (c).
(2) If this section applies, the owner of the vessel, floating object or
material is answerable in damages to the port authority for the
25 whole of the damage whether or not the damage is caused
through a person's wilful or negligent act or omission.
page 70
Port Authorities Bill 1998
Navigation and port matters Part 7
Damage in a port caused by vessels etc. Division 4
s. 113
(3) If the damage is caused through the wilful or negligent act or
omission of the master of the vessel or of the person having
charge of the floating object or the material, that master or
person (as well as the owner) is answerable in damages to the
5 port authority for the whole of the damage.
(4) Neither the port authority nor any other person is entitled under
this section to recover more than once for the same cause of
action.
(5) If the owner of any vessel, floating object or material --
10 (a) pays any money in respect of any damage to which this
section applies caused through the wilful or negligent
act or omission of a master or other person referred to in
subsection (3); or
(b) pays any fine by reason of any act or omission of a
15 master or other person referred to in subsection (3),
the owner may recover the money or fine so paid, with costs,
from that master or other person in a court of competent
jurisdiction as a debt due to the owner.
(6) In an action under this section the damages recoverable are to be
20 determined on the basis of --
(a) the actual cost incurred in repairing or replacing the
damaged port facility or property without taking into
account any betterment or depreciation; and
(b) any economic loss suffered by the port authority as a
25 result of the damage.
page 71
Port Authorities Bill 1998
Part 7 Navigation and port matters
Division 5 Port safety
s. 114
Division 5 -- Port safety
114. Marine safety plans
(1) In this section --
"Director General" has the same meaning as it has in the
5 Transport Co-ordination Act 1966;
"marine safety plan" means a plan prepared by a port authority
and approved by the Director General setting out the
arrangements for marine safety at the port.
(2) A port authority is to have, maintain and implement a marine
10 safety plan for its port.
(3) The Director General is to monitor the maintenance of a port
authority's marine safety plan and may --
(a) give directions to the port authority as to the
maintenance of the plan; and
15 (b) direct the port authority to review the plan from time to
time and submit modifications of it to the Director
General for approval.
(4) The port authority is to give effect to any direction under
subsection (3).
20
page 72
Port Authorities Bill 1998
Port charges Part 8
s. 115
Part 8 -- Port charges
115. Interpretation and application
(1) In this Part --
"port charges" means --
5 (a) port dues and wharfage, berthage, tonnage and access
charges;
(b) port improvement rates; or
(c) charges for port services or navigational aids
provided by or under the control of a port authority.
10 (2) This Part applies to the payment and recovery of port charges
levied by a port authority.
116. Liability to pay port charges in respect of vessels
The following people are jointly and severally liable to pay port
charges payable in respect of a vessel --
15 (a) the owner of the vessel;
(b) the master of the vessel;
(c) each person who is --
(i) a consignee, consignor or shipper of goods
carried on the vessel; or
20 (ii) an agent of the vessel,
and has paid or undertaken to pay any charge on account
of the vessel.
117. Liability to pay port charges in respect of goods
The following people are jointly and severally liable to pay port
25 charges payable in respect of goods carried on a vessel --
(a) the owner of the goods;
page 73
Port Authorities Bill 1998
Part 8 Port charges
s. 118
(b) the owner of the vessel;
(c) each consignor, consignee or shipper of the goods;
(d) each agent for the sale of or custody of the goods;
(e) each person entitled, either as the owner of the goods or
5 on behalf of that owner, to the possession of the goods.
118. Recovery of port charges by a port authority
A port authority may recover any port charges payable to it in a
court of competent jurisdiction as a debt due to the port
authority.
10 119. Collectors of port charges
A port authority may, in writing --
(a) authorize an officer or employee or any other person to
collect port charges on its behalf; or
(b) revoke an authorization made under this section.
page 74
Port Authorities Bill 1998
Proceedings for offences Part 9
General Division 1
s. 120
Part 9 -- Proceedings for offences
Division 1 -- General
120. Who can take proceedings for offences
(1) Proceedings for an offence against this Act may be taken --
5 (a) by a person authorized to do so by the port authority for
the port within or in relation to which the offence is
alleged to have been committed; or
(b) by a police officer.
(2) An authorization under subsection (1)(a) may be given
10 generally or in relation to a specified offence or specified
offences.
(3) If a complaint alleging an offence under this Act purports to be
made or sworn by a person authorized by a port authority to
take proceedings for offences of that kind, it is to be presumed,
15 in the absence of proof to the contrary, that the complaint was
made or sworn by such a person.
121. Time limit on taking proceedings
Proceedings for an offence against this Act cannot be
commenced more than 2 years after the offence is committed.
20 122. Averment in respect of port
(1) In proceedings for an offence under this Act, an averment that
that offence was committed in a port is sufficient proof that the
act or omission alleged to constitute that offence occurred in the
port, unless the contrary is proved.
25 (2) Where appropriate, a reference in subsection (1) to a port
includes a reference to any area declared under section 95(2) or
101(a) in relation to the port.
page 75
Port Authorities Bill 1998
Part 9 Proceedings for offences
Division 2 Infringement notices
s. 123
Division 2 -- Infringement notices
123. Meaning of "authorized person"
In this Division --
"authorized person" in section 124, 125, 126 or 127 means a
5 person appointed under section 130(1) by the port authority
to be an authorized person for the purposes of the section in
which the term is used;
"port authority" means the port authority for the port where
the offence is alleged to have been committed.
10 124. Giving of notice
An authorized person who has reason to believe that a person
has committed a prescribed offence under this Act may, within
21 days after the alleged offence is believed to have been
committed, give an infringement notice to the alleged offender.
15 125. Content of notice
(1) An infringement notice is to be in the prescribed form and is
to --
(a) contain a description of the alleged offence;
(b) advise that if the alleged offender does not wish to have
20 a complaint of the alleged offence heard and determined
by a court, the amount of money specified in the notice
as being the modified penalty for the offence may be
paid to an authorized person within a period of 28 days
after the giving of the notice; and
25 (c) inform the alleged offender as to who are authorized
persons for the purposes of receiving payment of
modified penalties.
page 76
Port Authorities Bill 1998
Proceedings for offences Part 9
Infringement notices Division 2
s. 126
(2) In an infringement notice the amount specified as being the
modified penalty for the offence referred to in the notice is to be
the amount that was the prescribed modified penalty at the time
the alleged offence is believed to have been committed.
5 (3) The modified penalty that may be prescribed for an offence is
not to exceed 20% of the maximum penalty that could be
imposed for that offence by a court.
126. Extension of time
An authorized person may, in a particular case, extend the
10 period of 28 days within which the modified penalty may be
paid and the extension may be allowed whether or not the
period of 28 days has elapsed.
127. Withdrawal of notice
(1) Within 28 days after the giving of an infringement notice, an
15 authorized person may, whether or not the modified penalty has
been paid, withdraw the infringement notice by sending to the
alleged offender a notice in the prescribed form stating that the
infringement notice has been withdrawn.
(2) Where an infringement notice is withdrawn after the modified
20 penalty has been paid, the amount is to be refunded.
128. Benefit of paying modified penalty
(1) Subsection (2) applies if the modified penalty specified in an
infringement notice has been paid within 28 days or such further
time as is allowed and the notice has not been withdrawn.
25 (2) If this subsection applies it prevents the bringing of proceedings
and the imposition of penalties to the same extent that they
would be prevented if the alleged offender had been convicted
by a court of, and punished for, the alleged offence.
page 77
Port Authorities Bill 1998
Part 9 Proceedings for offences
Division 2 Infringement notices
s. 129
(3) Payment of a modified penalty is not to be regarded as an
admission for the purposes of any proceedings, whether civil or
criminal.
129. Application of penalties collected
5 An amount paid as a modified penalty for an offence is, subject
to section 127(2), to be dealt with as if it were a fine imposed by
a court as a penalty for that offence.
130. Appointment of authorized persons
(1) A port authority may, in writing, appoint persons or classes of
10 persons to be authorized persons for the purposes of
section 124, 125, 126 or 127 or for the purposes of 2 or more of
those sections, but a person who is authorized to give
infringement notices under section 124 is not eligible to be an
authorized person for the purposes of any of the other sections.
15 (2) The port authority is to issue to each person who is authorized
to give infringement notices under this Division a certificate
stating that the person is so authorized, and the authorized
person is to produce the certificate whenever required to do so
by a person to whom an infringement notice has been or is
20 about to be given.
page 78
Port Authorities Bill 1998
Miscellaneous Part 10
s. 131
Part 10 -- Miscellaneous
131. Miscellaneous offences
(1) A person who hinders the operation of this Act commits an
offence.
5 Penalty: $5 000.
(2) A person hinders the operation of this Act if the person --
(a) obstructs, impedes or interferes with the doing of, a
thing required or authorized to be done by or under this
Act; or
10 (b) uses any threatening language to --
(i) the CEO or a member of staff of a port authority;
or
(ii) the harbour master of a port,
who is acting in the performance of functions under this
15 Act.
132. Provisions for particular port authorities
If a Division of Schedule 6 applies to a port authority, the
provisions of that Division have effect in relation to that port
authority and its port even though they override, are inconsistent
20 with, or are additional to, other provisions of this Act.
133. Supplementary provision about laying documents before
Parliament
(1) If --
(a) at the commencement of a period referred to in
25 section 41(4), 53(5), 56(4), 62(5), 64(2), 65(4), 72(2) or
84(5) or Schedule 2, clause 2(3) or 8(7) in respect of a
document a House of Parliament is not sitting; and
page 79
Port Authorities Bill 1998
Part 10 Miscellaneous
s. 134
(b) the Minister is of the opinion that that House will not sit
during that period,
the Minister is to transmit a copy of the document to the Clerk
of that House.
5 (2) A copy of a document transmitted to the Clerk of a House is to
be --
(a) taken to have been laid before that House; and
(b) taken to be a document published by order or under the
authority of that House.
10 (3) The laying of a copy of a document that is taken to have
occurred under subsection (2)(a) is to be recorded in the
Minutes, or Votes and Proceedings, of the House on the first
sitting day of the House after the receipt of the copy by the
Clerk.
15 134. Execution of documents
(1) A port authority is to have a common seal.
(2) A document is duly executed by a port authority if --
(a) the common seal of the port authority is affixed to it in
the presence of 2 directors or of a director and the CEO;
20 or
(b) it is signed on behalf of the port authority by a person or
persons referred to in subsection (4).
(3) The common seal of a port authority is not to be affixed to a
document except in accordance with this section.
25 (4) A port authority may, by writing under its common seal,
authorize a director, the CEO, a member of staff or other agent
of the port authority to execute documents on its behalf.
page 80
Port Authorities Bill 1998
Miscellaneous Part 10
s. 135
(5) An authorization under subsection (4) --
(a) may be given --
(i) either generally or in respect of a specified
matter or specified matters; and
5 (ii) so as to authorize 2 or more persons to execute
documents jointly;
and
(b) may be presumed by a person dealing with the port
authority to continue --
10 (i) during any period for which it is conferred; or
(ii) if subparagraph (i) does not apply, until notice of
termination of the authority is given to the person
so dealing.
(6) A document purporting to be executed in accordance with this
15 section is to be taken to be duly executed until the contrary is
shown.
135. Contract formalities
(1) In so far as the formalities of making, varying or discharging a
contract are concerned, a person acting under the authority of a
20 port authority may make, vary or discharge a contract in the
name of or on behalf of the port authority in the same manner as
if that contract were made, varied or discharged by a natural
person.
(2) The making, variation or discharge of a contract in accordance
25 with subsection (1) is effectual in law and binds the port
authority and other parties to the contract.
(3) Subsection (1) does not prevent a port authority from making,
varying or discharging a contract under its common seal.
page 81
Port Authorities Bill 1998
Part 10 Miscellaneous
s. 136
136. Interest on overdue amounts
(1) If money due to a port authority is not paid in full by the time
when it is due, or such time after then as the port authority may
allow, interest on the amount outstanding at the rate prescribed
5 by regulations is to be paid to the port authority.
(2) Interest under subsection (1) may be recovered by a port
authority in the same way as the money due to it may be
recovered.
(3) Unless the context requires otherwise, a reference in this Act to
10 port charges is to be taken as including a reference to interest
under subsection (1) payable on those port charges if they are
overdue.
(4) Subsection (1) does not apply in respect of money due under a
written agreement where the rate of interest to be paid is
15 specified in the agreement.
137. Recovery of expenses
Without affecting the operation of section 94(2) or 113, a person
who is convicted of an offence under this Act is liable, in
addition to suffering any penalty imposed in respect of that
20 offence, to pay to a port authority all expenses incurred by the
port authority by reason of the commission of that offence, and
the port authority may recover those expenses from that person
in a court of competent jurisdiction as a debt due to the port
authority.
25 138. Government Agreements Act 1979 not affected
The mention of particular agreements in Schedule 6, clauses 1.3
and 2.3 does not limit or otherwise affect the operation of the
Government Agreements Act 1979 in relation to this Act.
page 82
Port Authorities Bill 1998
Regulations Part 11
s. 139
Part 11 -- Regulations
139. General power to make regulations
(1) The Governor may make regulations prescribing all matters that
are required or permitted by this Act to be prescribed or are
5 necessary or convenient to be prescribed for giving effect to the
purposes of this Act.
(2) Without limiting subsection (1) regulations may be made for all
or any of the purposes, or about all or any of the matters, set out
in Schedule 7.
10 140. Offences against regulations
Regulations may create offences and provide, in respect of an
offence so created, for the imposition of a penalty not exceeding
a fine of $12 000 with or without imprisonment for a term not
exceeding 12 months.
15 141. Adoption of other laws, codes etc.
(1) Regulations may adopt, either wholly or in part or with
modifications --
(a) any rules, regulations, codes, instructions or other
subsidiary legislation made, determined or issued under
20 any other Act or under any Imperial Act or
Commonwealth Act; or
(b) any of the standards, rules, codes or specifications of the
bodies known as the Standards Association of Australia,
the British Standards Institution or The Association of
25 Australian Port and Marine Authorities or of any other
like body that is specified in those regulations.
page 83
Port Authorities Bill 1998
Part 11 Regulations
s. 142
(2) If regulations adopt any subsidiary legislation, standard, rule,
code or specification under subsection (1), it is adopted as in
force from time to time unless those regulations specify that a
particular text is adopted.
5 (3) Regulations may provide that if by reason of unavailability of
materials or for any other reason that a port authority considers
valid any requirement of any subsidiary legislation or standard,
rule, code or specification adopted by those regulations in
accordance with subsection (1) cannot be conformed to, a port
10 authority may approve such use of materials or other matters as
it considers to be consistent with the achievement of the objects
of those regulations.
142. References to other approvals or decisions
Regulations may be made so as to apply according to an
15 approval or other administrative decision of a person or body
specified in those regulations even if that approval or other
decision may not have been, or may not have been primarily,
given or made for the purposes of this Act.
143. Licensing
20 (1) Regulations may control an activity or thing by prohibiting it
from being carried out or done in a port except under a licence
issued by the port authority.
(2) Regulations may provide for the following --
(a) the calling of applications or tenders for licences;
25 (b) the method of applying or tendering for licences;
(c) the issue, duration, renewal, suspension or cancellation
of licences;
(d) the imposition of conditions or restrictions on licences.
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Regulations Part 11
s. 143
(3) Neither the port authority, nor a person acting on its behalf,
needs a licence referred to in this section.
(4) This section does not limit the methods by which the regulations
may control an activity or thing.
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Port Authorities Bill 1998
Part 12 Review of Act
s. 144
Part 12 -- Review of Act
144. Minister to review and report on Act
(1) The Minister is to carry out a review of the operation and
effectiveness of this Act as soon as is practicable after the
5 expiry of 5 years from the commencement of section 4.
(2) The Minister is to prepare a report based on the review and, as
soon as is practicable after the report is prepared, is to cause the
report to be laid before each House of Parliament.
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Port Authorities Bill 1998
Ports and port authorities Schedule 1
Schedule 1 -- Ports and port authorities
[s. 4]
Item Name of Port Name of Port Authority
1 Port of Albany Albany Port Authority
2 Port of Broome Broome Port Authority
3 Port of Bunbury Bunbury Port Authority
4 Port of Dampier Dampier Port Authority
5 Port of Esperance Esperance Port Authority
6 Port of Fremantle Fremantle Port Authority
7 Port of Geraldton Geraldton Port Authority
8 Port of Port Hedland Port Hedland Port Authority
page 87
Port Authorities Bill 1998
Schedule 2 Provisions about the constitution and proceedings of boards
Schedule 2 -- Provisions about the constitution and
proceedings of boards
[s. 9]
1. Term of office
5 (1) Subject to clause 2, a director holds office for such period, not
exceeding 3 years, as is specified in the instrument appointing the
director, and is eligible for reappointment.
(2) A director's duties are not required to be performed on a full-time
basis.
10 (3) Periods of appointment are to be fixed in a way that results in
approximately one third of the directors retiring each year.
(4) Despite subclause (1), if the period of office of a director expires by
effluxion of time without a person having been appointed to fill the
vacancy, the director continues in office until --
15 (a) a person is appointed to fill the vacancy; or
(b) a period of 3 months elapses after the expiry of the period of
office,
whichever occurs first.
2. Resignation and removal
20 (1) A director may resign from office by notice in writing delivered to the
Minister.
(2) The Minister may at any time remove a director from office and is not
required to give any reason for doing so.
(3) The Minister must within 14 days after a director is removed from
25 office under subclause (2) cause a statement of the reason for the
removal to be laid before each House of Parliament or to be dealt with
under section 133.
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Provisions about the constitution and proceedings of boards Schedule 2
(4) This clause extends to a director whose period of office is prolonged
under clause 1(4).
3. Chairperson and deputy chairperson
(1) The Minister is to appoint a director to be chairperson of a board and
5 another to be deputy chairperson.
(2) Where the chairperson is unable to act because of sickness, absence or
other cause, the deputy chairperson is to act in the chairperson's
place.
(3) Where the deputy chairperson is acting in place of the chairperson at a
10 meeting, clause 4(1) applies as if the deputy chairperson were absent
from the meeting.
4. Alternate directors
(1) If a director is unable to act because of sickness, absence or other
cause, the Minister may appoint another person as an alternate
15 director to act temporarily in the director's place, and while so acting
according to the tenor of the appointment that alternate director is to
be taken to be a director and is entitled to remuneration under
section 10.
(2) No act or omission of an alternate director acting in place of a director
20 under this clause may be questioned on the ground that the occasion
for the appointment or acting had not arisen or had ceased.
5. Meetings
(1) The first meeting of a board is to be convened by the chairperson and,
subject to subclause (2), subsequent meetings are to be held at such
25 times and places as the board determines.
(2) A special meeting of a board may at any time be convened by the
chairperson or any 2 directors.
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Schedule 2 Provisions about the constitution and proceedings of boards
(3) The chairperson, or the deputy chairperson acting under clause 3(2), is
to preside at all meetings of the board at or in which he or she is
present, or participating under clause 6.
(4) If both the chairperson and the deputy chairperson are not present or
5 participating, the directors present or participating are to appoint a
director to preside.
(5) At any meeting of the board --
(a) 3 directors constitute a quorum; and
(b) in the case of an equality of votes the person presiding has a
10 casting vote in addition to a deliberative vote.
6. Telephone and video meetings
Despite anything in this Schedule, a communication between directors
constituting a quorum under clause 5(5)(a) by telephone or
audio-visual means is a valid meeting of directors, but only if each
15 participating director is able to communicate with every other
participating director instantaneously at all times while participating
in the proceedings.
7. Resolution may be passed without meeting
(1) If a document containing a statement to the effect that an act, matter
20 or thing has been done or resolution has been passed is sent or given
to all directors of a port authority and is assented to by not less than
3 directors that act, matter, thing or resolution is to be taken as having
been done at or passed by a meeting of the board of the port authority.
(2) For the purposes of subclause (1) --
25 (a) the meeting is to be taken as having been held --
(i) if the directors assented to the document on the same
day, on the day on which the document was assented
to and at the time at which the document was last
assented to by a director; or
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Provisions about the constitution and proceedings of boards Schedule 2
(ii) if the directors assented to the document on different
days, on the day on which, and at the time at which,
the document was last assented to by a director;
(b) 2 or more separate documents in identical terms each of
5 which is assented to by one or more directors are to be taken
to constitute one document; and
(c) a director may signify assent to a document by signing the
document or by notifying the port authority of the director's
assent in person or by post, facsimile, telephone or other
10 method of written, audio or audio-visual communication.
(3) Where a director of a port authority signifies assent to a document
otherwise than by signing the document, the director must by way of
confirmation sign the document at the next meeting of the board of
the port authority attended by that director, but failure to do so does
15 not invalidate the act, matter, thing or resolution to which the
document relates.
(4) Where a document is assented to in accordance with subclause (1), the
document is to be taken as a minute of a meeting of the board.
8. Voting by interested directors
20 (1) A director of a port authority who has a material personal interest in a
matter that is being considered by the board of the port authority --
(a) must not vote whether at a meeting or otherwise --
(i) on the matter; or
(ii) in relation to a proposed resolution under
25 subclause (3) in relation to the matter, whether in
relation to that or a different director;
and
(b) must not be present while --
(i) the matter; or
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Schedule 2 Provisions about the constitution and proceedings of boards
(ii) a proposed resolution of the kind referred to in
paragraph (a)(ii),
is being considered at a meeting.
(2) For the purpose of subclause (1), a director does not have an interest
5 in a matter relating to an existing or proposed contract of insurance
merely because the contract insures, or would insure, the director
against a liability incurred by the director in his or her capacity as a
director. This subclause does not apply if the port authority is the
insurer.
10 (3) Subclause (1) does not apply if the board has at any time passed a
resolution that --
(a) specifies the director, the interest and the matter; and
(b) states that the directors voting for the resolution are satisfied
that the interest should not disqualify the director from
15 considering or voting on the matter.
(4) Despite clause 5(5), if a director of a port authority is disqualified
under subclause (1) in relation to a matter, a quorum is present during
the consideration of that matter if at least 2 directors are present who
are entitled to vote on any motion that may be moved at the meeting
20 in relation to that matter.
(5) The Minister may deal with a matter in so far as a board cannot deal
with it because of subclause (4).
(6) The Minister may by writing declare that subclauses (1) and (4) do
not apply in relation to a specified matter either generally or in voting
25 on particular resolutions.
(7) The Minister must within 14 days after a declaration under
subclause (6) is made cause a copy of the declaration to be laid before
each House of Parliament or to be dealt with under section 133.
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Provisions about the constitution and proceedings of boards Schedule 2
9. Minutes of meetings etc.
A board is to ensure that an accurate record is kept and preserved of
the proceedings at each meeting of the board and of each resolution
passed under clause 7.
5 10. Leave of absence
A board may, on such terms and conditions as it thinks fit, grant to a
director leave of absence from a meeting, including the meeting at
which it is intended to grant the leave.
11. Board to determine own procedures
10 Subject to this Act, a board may determine its own procedures.
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Port Authorities Bill 1998
Schedule 3 Provisions about duties of CEO and staff
Schedule 3 -- Provisions about duties of CEO and staff
[s. 20]
Division 1 -- General duties of CEO
1. Duties of CEO
5 (1) It is declared that the CEO of a port authority has --
(a) the same fiduciary relationship with the port authority; and
(b) the same duties to the port authority to act with loyalty and in
good faith,
as a director of a company incorporated under the Corporations Law
10 has with and to the company.
(2) The duties referred to in subclause (1) are enforceable by the board of
the port authority and not otherwise.
Division 2 -- Particular duties stated
2. Interpretation
15 (1) In this Division --
"officer" means --
(a) the CEO of a port authority; or
(b) an executive officer or other member of staff of a port
authority;
20 "summary conviction penalty", in relation to a crime, has the same
meaning as in section 5 of The Criminal Code.
(2) A person who attempts (within the meaning in section 4 of The
Criminal Code) to commit an offence against a provision of this
Division is guilty of that offence.
25 (3) For the CEO of a port authority, the duties provided for by this
Division are in addition to those in clause 1.
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Provisions about duties of CEO and staff Schedule 3
3. Duty to act honestly
(1) The CEO or an executive officer of a port authority must at all times
act honestly in the performance of the functions of his or her office,
whether within or outside the State.
5 (2) A person who contravenes subclause (1) --
(a) with intent to deceive or defraud --
(i) the port authority; or
(ii) creditors of the port authority or of any other person;
or
10 (b) for any other fraudulent purpose,
is guilty of a crime and is liable to a fine of $20 000 or imprisonment
for 5 years, or both.
Summary conviction penalty: A fine of $12 000 or imprisonment for
3 years, or both.
15 (3) If subclause (2) does not apply a person who contravenes
subclause (1) is liable to a fine of $5 000.
4. Duty to exercise reasonable care and diligence
The CEO or an executive officer of a port authority must at all times
exercise the degree of care and diligence in the performance of the
20 functions of his or her office, whether within or outside the State, that
a reasonable person in that position would reasonably be expected to
exercise in the port authority's circumstances.
Penalty: $5 000.
5. Duty not to make improper use of information
25 (1) An officer or a former officer of a port authority must not, whether
within or outside the State, make improper use of information
acquired by virtue of his or her position as such to gain, directly or
indirectly, an advantage for himself or herself or for any other person
or to cause detriment to the port authority.
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Schedule 3 Provisions about duties of CEO and staff
(2) A person who contravenes subclause (1) is guilty of a crime and is
liable to a fine of $20 000 or imprisonment for 5 years, or both.
Summary conviction penalty: A fine of $12 000 or imprisonment for
3 years, or both.
5 6. Duty not to make improper use of position
(1) An officer of a port authority must not, whether within or outside the
State, make improper use of his or her position as such to gain,
directly or indirectly, an advantage for himself or herself or for any
other person or to cause detriment to the port authority.
10 (2) A person who contravenes subclause (1) is guilty of a crime and is
liable to a fine of $20 000 or imprisonment for 5 years, or both.
Summary conviction penalty: A fine of $12 000 or imprisonment for
3 years, or both.
Division 3 -- Compensation
15 7. Payment of compensation may be ordered
(1) Where --
(a) a person is convicted of an offence for a contravention of
clause 3, 4, 5 or 6; and
(b) the court is satisfied that the port authority has suffered loss
20 or damage as a result of the act or omission that constituted
the offence,
the court by which the person is convicted may, in addition to
imposing a penalty, order the convicted person to pay compensation
to the port authority of such amount as the court specifies.
25 (2) Any such order may be enforced as if it were a judgment of the court.
8. Civil proceedings for recovery
Where a person contravenes clause 3, 4, 5 or 6, the port authority
may, whether or not the person has been convicted of an offence in
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Provisions about duties of CEO and staff Schedule 3
respect of that contravention, recover from the person as a debt due to
the port authority by action in any court of competent jurisdiction --
(a) if that person or any other person made a profit as a result of
the contravention, an amount equal to that profit; and
5 (b) if the port authority has suffered loss or damage as a result of
the contravention, an amount equal to that loss or damage.
Division 4 -- Relief from liability
9. Relief from liability
For the purposes of clause 1, 7 or 8, if it appears to the court that a
10 person --
(a) is, or may be, liable under that section;
(b) has acted honestly; and
(c) ought fairly to be excused having regard to all the
circumstances of the case, including those connected with the
15 person's appointment,
the court may relieve the person either wholly or partly from liability
on such terms as the court thinks fit.
10. Application for relief
(1) Where a person has reason to believe that any claim will or might be
20 made against him or her under clause 1, 7 or 8, the person may apply
to the Supreme Court for relief.
(2) On an application under subclause (1) the Supreme Court has the
same power to relieve the person as it would have had under clause 9
if it had been a court exercising jurisdiction under clause 1, 7 or 8.
25 11. Case may be withdrawn from jury
Where a case to which clause 9 applies is being tried by a judge with
a jury, the judge after hearing the evidence may, if he or she is
satisfied that the person ought under that section to be relieved either
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Schedule 3 Provisions about duties of CEO and staff
wholly or partly from liability sought to be enforced against the
person --
(a) withdraw the case in whole or in part from the jury; and
(b) direct judgment to be entered for the person on such terms as
5 to costs or otherwise as the judge thinks proper.
12. Compliance with directions
(1) A person does not contravene clause 1, 3 or 4 by doing or omitting to
do anything in compliance with a direction received in the course of
the person's employment.
10 (2) Subclause (1) does not extend to the manner in which a thing is done
or omitted if it is done or omitted in a manner that is contrary to
clause 3 or 4 and the direction did not require that it be done in that
manner.
Division 5 -- Restrictions on indemnities and exemptions
15 13. Indemnification and exemption of CEO and executive officers
(1) A port authority or a subsidiary must not exempt a person (whether
directly or through an interposed entity) from a liability to the port
authority incurred as the CEO or an executive officer of the port
authority.
20 (2) A port authority or a subsidiary must not indemnify a person (whether
by agreement or by making a payment and whether directly or
through an interposed entity) against any of the following liabilities
incurred as the CEO or an executive officer of the port authority --
(a) a liability owed to the port authority or a subsidiary; or
25 (b) a liability that is owed to someone other than the port
authority or a subsidiary and did not arise out of conduct in
good faith.
(3) Subclause (2) does not apply to a liability for legal costs.
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Provisions about duties of CEO and staff Schedule 3
(4) A port authority or a subsidiary must not indemnify a person (whether
by agreement or by making a payment and whether directly or
through an interposed entity) against legal costs incurred in defending
an action for a liability incurred as the CEO or an executive officer of
5 the port authority if the costs are incurred --
(a) in defending or resisting a proceeding in which the person is
found to have a liability for which the person could not be
indemnified under subclause (2);
(b) in defending or resisting criminal proceedings in which the
10 person is found guilty; or
(c) in connection with proceedings for relief under clause 9 or 10
in which the Supreme Court denies the relief.
(5) In determining the outcome of proceedings for the purposes of
subclause (4), the result of any appeal in relation to the proceedings is
15 to be taken into account.
14. Insurance premiums for certain liabilities of CEO and executive
officers
(1) A port authority or a subsidiary must not pay, or agree to pay, a
premium for a contract insuring the CEO or an executive officer of
20 the port authority against a liability (other than one for legal costs)
arising out of --
(a) conduct involving a wilful breach of duty in relation to the
port authority; or
(b) a contravention of clause 5 or 6;
25 (2) Subclause (1) applies to a premium whether it is paid directly or
through an interposed entity.
15. Certain indemnities, exemptions, payments and agreements not
authorized and certain documents void
(1) Clauses 13 and 14 do not authorize anything that would otherwise be
30 unlawful.
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Schedule 3 Provisions about duties of CEO and staff
(2) Anything that purports to indemnify or insure a person against a
liability or exempt a person from a liability is void to the extent that it
contravenes clause 13 or 14.
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Port Authorities Bill 1998
Provisions to be included in articles of association of subsidiaries Schedule 4
Schedule 4 -- Provisions to be included in articles of
association of subsidiaries
[s. 39]
1. Disposal of shares
5 (1) The port authority is not to sell or otherwise dispose of shares in the
subsidiary other than as approved by the Minister.
(2) The Minister is empowered to execute a transfer of any shares in the
subsidiary held by the port authority.
2. Directors
10 (1) The directors of the subsidiary are to be appointed by the port
authority, but no such director may be appointed except with the prior
written approval of the Minister.
(2) All decisions relating to the operation of the subsidiary are to be made
by or under the authority of the board of the subsidiary in accordance
15 with the statement of corporate intent of the port authority and the
subsidiary.
(3) The board of the subsidiary is accountable to the Minister in the
manner set out in Part 5 and in the memorandum and articles of
association of the subsidiary.
20 3. Further shares
Shares may not be issued or transferred except with the prior written
approval of the Minister.
4. Subsidiaries of subsidiary
(1) The subsidiary may not form, participate in the formation of, or
25 acquire any subsidiary without the prior written approval of the
Minister given with the Treasurer's concurrence.
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Schedule 4 Provisions to be included in articles of association of subsidiaries
(2) The subsidiary must ensure that the memorandum and articles of
association of each of its subsidiaries at all times comply with this
Act.
(3) The subsidiary must, to the maximum extent practicable, ensure that
5 each of its subsidiaries complies with its memorandum and articles of
association and with the requirements of this Act.
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Port Authorities Bill 1998
Financial administration and audit Schedule 5
Schedule 5 -- Financial administration and audit
[s. 91(1)]
Division 1 -- Preliminary
1. Interpretation
5 (1) In this Schedule, unless the contrary intention appears --
"accounts" means profit and loss accounts and balance sheets and
includes statements, reports and notes, other than auditors'
reports and directors' reports, attached to or intended to be read
with any of those profit and loss accounts or balance sheets;
10 "Board" means the Australian Accounting Standards Board
established under Part 12 of the Australian Securities
Commission Act 1989 of the Commonwealth;
"chief entity" has the meaning given by clause 14(2);
"Commission" means the Australian Securities Commission
15 established under Part 2 of the Australian Securities Commission
Act 1989 of the Commonwealth;
"consolidated accounts", in relation to a port authority, means all of
the following --
(a) a consolidated profit and loss account that clause 15
20 requires to be made out in relation to a financial year of
the port authority;
(b) a consolidated balance sheet that clause 16 requires to be
made out in relation to that financial year;
(c) statements, reports and notes, other than a director's report
25 or an auditor's report, attached to, or intended to be read
with, that consolidated profit and loss account or
consolidated balance sheet;
"control", in relation to an entity, has the meaning given by
clause 13;
30 "economic entity" has the meaning given by clause 12;
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Schedule 5 Financial administration and audit
"entity" has the meaning given by clause 12;
"financial statements", in relation to a financial year of a port
authority, means the accounts and consolidated accounts (if any)
of the port authority required by this Schedule to be made out in
5 relation to that financial year;
"financial year" means the 12 month period ending on 30 June but
where this Act applies to a port authority on and from a day
other than the commencement of a financial year the period of
the first financial year for that port authority is the period
10 commencing on that day and ending on 30 June;
"parent entity" has the meaning given by clause 12;
"profit and loss" means --
(a) in relation to a port authority, the profit and loss resulting
from operations of the port authority;
15 (b) in relation to an entity, the profit and loss resulting from
operations of the entity; and
(c) in relation to 2 or more entities, or in relation to an
economic entity, constituted by 2 or more such entities,
the profit or loss resulting from the operations of those
20 entities;
"regulations" means regulations made under the Corporations Law;
"reporting entity" has the meaning given by clause 12.
(2) In this Schedule, unless the contrary intention appears, expressions
(including the expressions "accounting records", "accounting
25 standard", "applicable accounting standards", "company", and
"corporation") have the respective meanings given to them by
Part 1.2 of the Corporations Law.
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Financial administration and audit Schedule 5
Division 2 -- Accounting standards
2. Application of accounting standards -- general
(cf. s. 284 Corporations Law)
The accounting standards as applied from time to time to listed
5 companies pursuant to the Corporations Law apply to a port authority.
3. Application of accounting standards -- financial years
(cf. s. 285 Corporations Law)
(1) Except so far as the contrary intention appears in an accounting
standard, an accounting standard applies to --
10 (a) the first financial year of a port authority that ends after the
commencement of the last-mentioned accounting standard;
and
(b) later financial years of the port authority.
(2) Despite anything in an accounting standard, but subject to
15 subclause (4), an accounting standard does not apply to a financial
year of a port authority ending before the commencement of the
last-mentioned accounting standard.
(3) A port authority may elect in writing that an accounting standard that,
apart from subclause (4), does not apply to a particular financial year
20 of the port authority will apply to that financial year.
(4) An election under subclause (3) has effect accordingly.
4. Interpreting accounting standards
(cf. s. 286 Corporations Law)
(1) An expression has in an accounting standard the same meaning as it
25 has in this Schedule.
(2) Part 1.2 of the Corporations Law applies in relation to an accounting
standard as if the accounting standard's provisions were provisions of
this Schedule.
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Schedule 5 Financial administration and audit
(3) This clause has effect except so far as the contrary intention appears
in an accounting standard.
5. Severing invalid provisions
(cf. s. 286A Corporations Law)
5 (1) An accounting standard is to be interpreted subject to the
Corporations Law.
(2) It is intended that where, but for this clause, an accounting standard
would have been interpreted as being inconsistent with the
Corporations Law, the accounting standard is nevertheless to be valid
10 insofar as it is not so inconsistent.
6. Evidence of text of accounting standard
(cf. s. 286B Corporations Law)
A document that purports --
(a) to be issued or published by or on behalf of the Board or the
15 Commission; and
(b) to set out the text of --
(i) a specified instrument as in force at a specified time
under section 32 of the Corporations Act 1989 of the
Commonwealth; or
20 (ii) a specified provision of such an instrument,
or a copy of such a document, is, in proceedings under this Act, prima
facie evidence that --
(c) the specified instrument was in force at that time under that
section; and
25 (d) the text set out in the document is the text referred to in
paragraph (b).
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Financial administration and audit Schedule 5
Division 3 -- Accounting records
7. Accounting records
(cf. s. 289 Corporations Law)
(1) A port authority must --
5 (a) keep such accounting records as correctly record and explain
its transactions (including any transactions as trustee) and
financial position; and
(b) so keep its accounting records that --
(i) true and fair accounts of the port authority can be
10 prepared from time to time; and
(ii) its accounts can be conveniently and properly audited
or reviewed.
(2) A port authority must retain the accounting records kept by it under
this clause for 7 years after the completion of the transactions to
15 which they relate.
(3) A port authority must keep its accounting records at such place or
places as the board thinks fit.
(4) The Minister may by writing require a port authority to produce --
(a) at a specified place within Australia that is reasonable in the
20 circumstances; and
(b) within a specified period of at least 14 days,
specified accounting records of the port authority that are kept outside
Australia.
(5) Where accounting records of a port authority are kept outside
25 Australia, the port authority must keep at a place within Australia
determined by the board such statements and records with respect to
the matters dealt with in the records kept outside Australia as would
enable true and fair accounts, and any documents required by this
Schedule to be attached to the accounts, to be prepared.
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Schedule 5 Financial administration and audit
(6) A port authority must lodge written notice with the Treasurer of the
place in Australia where statements and records kept under
subclause (3) are kept, unless the statements and records are kept at
the principal place of business of the port authority.
5 (7) The Supreme Court may, on application by a director of a port
authority, make an order authorizing a registered company auditor
acting for the director to inspect the accounting records of the port
authority.
(8) Where a registered company auditor inspects the accounting records
10 pursuant to an order of the Supreme Court under subclause (7), he or
she must not disclose to a person other than the director on whose
application the order was made any information acquired by him or
her in the course of his or her inspection.
Division 4 -- Financial years of a port authority and
15 the entities it controls
8. Synchronization
(cf. s. 290 Corporations Law)
(1) Subject to this clause, the board must do whatever is necessary to
ensure that the financial year of each entity that a port authority
20 controls coincides with the financial year of the port authority.
(2) Subclause (1) must be complied with in relation to a particular entity
within 12 months after the port authority began to control the entity.
(3) Subject to any order of the Minister under this clause, where the
financial year of a port authority coincides with the financial year of
25 an entity that the port authority controls, the board must do whatever
is necessary to prevent either financial year from being changed in
such a way that those financial years no longer coincide.
(4) Where the board of a port authority is of the opinion that there is good
reason why the financial year of an entity that the port authority
30 controls should not coincide with the financial year of the port
authority they may apply in writing to the Minister for an order
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authorizing the entity to continue to have or to adopt (as the case
requires) a financial year that does not coincide with that of the port
authority.
(5) The application must be supported by a statement in writing made in
5 accordance with a resolution of the board signed by not less than
2 directors and stating the reasons for seeking the order.
(6) The Minister may require the directors making the application to
supply such information relating to the operations of the port
authority, and of any entity that the port authority controls or has
10 controlled during a financial year, as the Minister thinks necessary for
the purpose of determining the application.
(7) The Minister may engage a registered company auditor to investigate
and report to him or her on the application.
(8) The Minister may make an order granting or refusing the application
15 or granting the application subject to such limitations, terms or
conditions as he or she thinks fit, and is to serve a copy of the order
on the port authority.
(9) Where an application is made under subclause (4) in relation to an
entity --
20 (a) subclause (1) does not apply in relation to the entity until the
day on which the Minister's order on the application is served
on the port authority; and
(b) subject to subclause (10), the period within which the board is
required to comply with subclause (1) in relation to the entity
25 is the period of 12 months beginning on that day.
(10) Where an order is made under this clause authorizing an entity
controlled by a port authority to have, or to adopt, a financial year that
does not coincide with that of the port authority, compliance with the
order (including any limitations, terms or conditions set out in it) are
30 to be taken to be compliance with subclause (1) in relation to the
entity.
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(11) Where an application is made under subclause (4) in relation to an
entity, another application cannot be made under that subclause in
relation to the entity within 3 years after the date of the
first-mentioned application unless --
5 (a) the first-mentioned application resulted in the making of an
order granting the application or granting it subject to
limitations, terms or conditions; or
(b) the Minister is satisfied that there has been a substantial
change in the relevant facts or circumstances since that day.
10 Division 5 -- Accounts of a port authority
9. Profit and loss account
(cf. s. 292 Corporations Law)
The board of a port authority must, before 30 September in each year,
cause to be made out a profit and loss account for the immediately
15 preceding financial year that gives a true and fair view of the port
authority's profit or loss for that financial year.
10. Balance sheet
(cf. s. 293 Corporations Law)
The board of a port authority must, before 30 September in each year,
20 cause to be made out a balance sheet as at the end of the immediately
preceding financial year that gives a true and fair view of the port
authority's state of affairs as at the end of that financial year.
11. Steps to be taken before accounts made out
(cf. s. 294 Corporations Law)
25 (1) This clause has to be complied with before a port authority's accounts
are made out under clauses 9 and 10 in relation to a financial year.
(2) The board must take reasonable steps --
(a) to find out what has been done about writing off bad debts
and making provision for doubtful debts; and
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(b) to cause all known bad debts to be written off and adequate
provision to be made for doubtful debts.
(3) The board must take reasonable steps to find out whether any current
assets, other than bad or doubtful debts, are unlikely to realize
5 (whether directly or indirectly) in the ordinary course of business their
value as shown in the port authority's accounting records and, if so, to
cause --
(a) the value of those assets to be written down to an amount that
they might be expected so to realize; or
10 (b) adequate provision to be made for the difference between
their value as so shown and the amount that they might be
expected to realize.
(4) The board must take reasonable steps --
(a) to find out whether the value of any non-current asset is
15 shown in the port authority's accounting records at an amount
that, having regard to the asset's value to the port authority as
a going concern, exceeds the amount that it would have been
reasonable for the port authority to spend to acquire the asset
as at the end of the financial year; and
20 (b) unless adequate provision for writing down the value of that
asset is made, to cause to be included in the accounts such
information and explanations as will prevent the accounts
from being misleading because of the overstatement of the
value of that asset.
25 Division 6 -- Consolidated accounts of a port authority and
the entities it controls
12. Entities, parent entities, economic entities and reporting entities
(cf. s. 294A Corporations Law)
(1) Where regulations define the expression "entity", "parent entity",
30 "economic entity", or "reporting entity", those definitions apply for
the purposes of this Schedule in relation to a port authority in relation
to prescribed financial years.
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(2) Regulations in force because of subclause (1) have effect in relation to
this Schedule accordingly.
(3) Subject to subclause (2), where an accounting standard --
(a) deals with the making out of consolidated accounts by
5 companies;
(b) applies to a financial year of a company; and
(c) defines the expression "entity", "parent entity", "economic
entity" or "reporting entity",
the definition in the accounting standard also has effect for the
10 purposes of this Schedule as it applies in relation to a port authority in
relation to that financial year.
(4) Despite subclauses (2) and (3), each of the following is an entity for
the purposes of this Schedule --
(a) a company;
15 (b) a recognized company;
(c) any other corporation;
(d) a partnership;
(e) an unincorporated body;
(f) a person in a capacity as trustee of a trust that has only one
20 trustee.
(5) Despite subclauses (2) and (3), where a trust has 2 or more trustees,
those trustees, in their capacity as such, together constitute an entity.
13. When one entity controls another
(cf. s. 294B Corporations Law)
25 (1) Where regulations make provision for or in relation to determining, as
they apply in relation to a company in relation to prescribed financial
years, whether or not an entity controls another entity, those
regulations apply for the purposes of this Schedule.
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(2) Regulations in force because of subclause (1) have effect in relation to
this Schedule accordingly.
(3) Subject to subclause (2), where, because of a provision of an
accounting standard that --
5 (a) deals with the making out of consolidated accounts by
companies; and
(b) applies to a financial year of a company,
an entity is taken for the purposes of that accounting standard to
control another entity, the first-mentioned entity is also taken to
10 control the other entity for the purposes of this Schedule as it applies
in relation to a port authority in relation to that financial year.
14. Application of Division
(cf. s. 295 Corporations Law)
(1) The later provisions of this Division apply where a port authority --
15 (a) controlled another entity during all or part of a financial year
of the port authority; or
(b) controls another entity at the end of a financial year of the
port authority,
and, for the purposes of this Schedule as it applies in relation to the
20 port authority in relation to that financial year, the port authority is the
parent entity in an economic entity that is a reporting entity.
(2) A port authority is a chief entity in relation to that financial year for
the purposes of this Schedule.
15. Consolidated profit and loss account
25 (cf. s. 295A Corporations Law)
(1) The board of a port authority must cause to be made out, before
3 September in each year immediately following the relevant financial
year, a consolidated profit and loss account that gives a true and fair
view of the profit or loss, for that financial year, of the economic
30 entity constituted by the port authority and the entities it controlled
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from time to time during that financial year (even if the port authority
did not control the same entities throughout that financial year).
(2) To avoid doubt, if the port authority did not control a particular entity
throughout that financial year, the consolidated profit and loss account
5 must relate to the entity's profit or loss for each part of that financial
year throughout which the port authority controlled the entity, but not
to the entity's profit or loss for any other part.
16. Consolidated balance sheet
(cf. s. 295B Corporations Law)
10 The board of a port authority must cause to be made out, before
30 September in each year immediately following the relevant
financial year, a consolidated balance sheet, as at the year's end, that
gives a true and fair view of the state of affairs, as at the year's end, of
the economic entity constituted by the port authority and the entities
15 that it controls at the year's end.
Division 7 -- Requirements for financial statements
17. Audit of financial statements
(cf. s. 296 Corporations Law)
(1) The board of a port authority must take reasonable steps to ensure that
20 the port authority's financial statements for a financial year are
audited by the Auditor General as required by this Schedule before
30 September in each year immediately following the relevant
financial year.
(2) The board must cause to be attached to or endorsed on the port
25 authority's financial statements for a financial year the Auditor
General's report on those financial statements.
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18. Financial statements to comply with Corporations Law
Regulations
(cf. s. 297 Corporations Law)
The board of a port authority must ensure that the port authority's
5 financial statements for a financial year comply with such of the
requirements as are prescribed from time to time for a company under
the Corporations Law and as are relevant to the financial statements.
19. Financial statements to comply with applicable accounting
standards
10 (cf. s. 298 Corporations Law)
Subject to clause 18 the board of a port authority must ensure that the
port authority's financial statements for a financial year are made out
in accordance with applicable accounting standards.
20. Additional information to give a true and fair view
15 (cf. s. 299 Corporations Law)
(1) If a port authority's financial statements for a financial year, as
prepared in accordance with clauses 18 and 19, would not otherwise
give a true and fair view of the matters with which this Schedule
requires them to deal, the board must add such information and
20 explanations as will give a true and fair view of those matters.
(2) Nothing in subclause (1), or in clause 18 or 19, limits the generality of
a provision of this Division or of Division 5 or 6, other than this
clause or clause 18 or 19.
21. Inclusion of comparative amounts for items required by
25 accounting standards
(cf. s. 300 Corporations Law)
(1) Where --
(a) clause 19 requires a port authority's financial statements for a
financial year to specify a particular amount (in this subclause
30 called the "current year amount"); and
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(b) that clause required the port authority's financial statements
for the previous financial year to specify an amount that,
within the meaning of an applicable accounting standard, is a
corresponding amount in relation to the current year amount,
5 the board must ensure that the first-mentioned financial statements --
(c) set out the corresponding amount in such a way as to allow
easy comparison between the current year amount and the
corresponding amount; and
(d) if the current year amount has been determined on a different
10 basis from the corresponding amount --
(i) include a note to that effect; and
(ii) set out the corresponding amount in such a way as to
draw attention to the note.
(2) For the purposes of this clause, clause 19 requires a port authority's
15 financial statements for a financial year to specify an amount if, and
only if, the board --
(a) is required to ensure that the financial statements included an
amount relating to the matter to which the first-mentioned
amount relates; and
20 (b) would not have been so required if that clause had not applied
in relation to the financial year.
Division 8 -- Directors' statements
22. Statement to be attached to accounts
(cf. s. 301 Corporations Law)
25 (1) The board of a port authority must cause to be attached to the port
authority's accounts that are or are included in the port authority's
financial statements for a financial year a statement complying with
this clause and clause 24(2).
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(2) The statement has to state whether or not, in the board's opinion --
(a) the profit and loss account gives a true and fair view of the
port authority's profit or loss for the financial year; and
(b) the balance sheet gives a true and fair view of the port
5 authority's state of affairs as at the end of the financial year.
(3) In forming its opinion for the purposes of subclause (2), the board
must have regard to circumstances that have arisen, and information
that has become available, since the end of the financial year and that
would, if the accounts had been made out when the statement is made,
10 have affected the determination of an amount or particular in them.
(4) If adjustments have not been made in the accounts to reflect
circumstances or information of a kind referred to in subclause (3)
that are or is relevant to understanding the accounts or an amount or
particular in them, the statement has to include such information and
15 explanations as will prevent the accounts, or that amount or particular,
from being misleading because adjustments have not been so made.
(5) The statement has to state whether or not, in the board's opinion, there
are, when the statement is made, reasonable grounds to believe that
the port authority will be able to pay its debts as and when they fall
20 due.
(6) If the applicable accounting standards in relation to the accounts
include accounting standards that apply to the financial year because
of an election under clause 3 the statement has to specify those
accounting standards and state that they so apply.
25 23. Statement to be attached to consolidated accounts
(cf. s. 302 Corporations Law)
(1) Where Division 6 requires consolidated accounts to be made out in
relation to a financial year of a port authority, the board must cause to
be attached to them a statement that complies with this clause and
30 clause 24(2).
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(2) The statement has to state whether or not, in the board's opinion, the
consolidated accounts --
(a) have been made out in accordance with Divisions 6 and 7;
and
5 (b) in particular, give a true and fair view of the matters with
which they deal.
(3) In forming their opinion for the purposes of subclause (2), the board
must have regard to circumstances that have arisen, and information
that has become available, since the end of that financial year and that
10 would, if the consolidated accounts had been made out when the
statement is made, have affected the determination of an amount or a
particular in them.
(4) If adjustments have not been made in the consolidated accounts to
reflect circumstances or information of a kind referred to in
15 subclause (3) that are or is relevant to understanding the consolidated
accounts or an amount or particular in them, the statement has to
include such information and explanations as will prevent the
consolidated accounts, or that amount or particular, from being
misleading because adjustments have not been so made.
20 (5) If the applicable accounting standards include in relation to the
consolidated accounts accounting standards that apply to the financial
year because of an election made under clause 3, the statement has to
specify those accounting standards and state they so apply.
24. Statements under this Division
25 (cf. s. 303 Corporations Law)
(1) The board of a port authority must comply with clause 22, or
clauses 22 and 23, as the case requires, in relation to a financial year
before 30 September in each year immediately following the relevant
financial year.
30 (2) A statement required by clause 22 or 23 in relation to a financial year
of a port authority has to --
(a) be made in accordance with a resolution of the board;
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(b) be made out not later than 30 September in each year in
respect of the immediately preceding financial year;
(c) specify the day on which it was made; and
(d) be signed by at least 2 directors.
5 Division 9 -- Directors' reports
25. Report on a port authority where it is not a chief entity
(cf. s. 304 Corporations Law)
(1) If a port authority is not a chief entity in relation to a particular
financial year the board must cause to be made out a report complying
10 with this Division other than clause 26.
(2) The report has to state the names of the directors in office on the day
the report is made out.
(3) The report has to state the port authority's principal activities in the
course of the financial year and any significant change in the nature of
15 those activities that occurred during the financial year.
(4) The report has to state the net amount of the port authority's profit or
loss for the financial year after provision for amounts paid or payable
in lieu of Commonwealth income tax under the State Enterprises
(Commonwealth Tax Equivalents) Act 1996.
20 (5) The report has to state the amount (if any) that the board recommends
should be paid by way of dividend under section 84.
(6) The report has to contain a review of the port authority's operations
during the financial year and of the results of those operations.
(7) The report has to give particulars of any significant change in the port
25 authority's state of affairs that occurred during the financial year.
(8) The report has to give particulars of any matter or circumstance that
has arisen since the end of the financial year and has significantly
affected, or may significantly affect --
(a) the port authority's operations;
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(b) the results of those operations; or
(c) the port authority's state of affairs,
in financial years after the financial year.
(9) The report has to refer to --
5 (a) likely developments in the port authority's operations; and
(b) the expected results of those operations,
in financial years after the financial year.
26. Report on port authority where it is a chief entity
(cf. s. 305 Corporations Law)
10 (1) If a port authority is a chief entity in relation to a particular financial
year the board must cause to be made out a report complying with this
Division, other than clause 25.
(2) The report has to state the names of the directors in office on the day
the report is made out.
15 (3) The report has to state --
(a) the principal activities, during the financial year, of the
economic entity constituted by the port authority and the
entities it controlled from time to time during the financial
year (even if the port authority did not control the same
20 entities throughout the financial year); and
(b) any significant change in the nature of those activities that
occurred during the financial year.
(4) The report has to state the net amount of the consolidated profit or
loss, for the financial year, of the economic entity referred to in
25 subclause (3), after --
(a) provision for income tax and amounts paid or payable in lieu
of Commonwealth income tax under the State Enterprises
(Commonwealth Tax Equivalents) Act 1996; and
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(b) deducting any amounts that should properly be attributed to
an entity that is neither the port authority nor an entity that
the port authority controlled at the relevant time.
(5) The report has to state the amount (if any) that the board recommends
5 should be paid by way of dividend under section 84.
(6) The report has to contain a review of --
(a) the operations, during the financial year, of the economic
entity constituted by the port authority and the entities it
controlled from time to time during the financial year (even if
10 the port authority did not control the same entities throughout
the year); and
(b) the results of those operations.
(7) The report has to give particulars of any significant change in the state
of affairs of the economic entity referred to in subclause (3)(a) that
15 occurred during the financial year.
(8) To avoid doubt, if the port authority controlled a particular entity
throughout some, but not all, of the financial year, the report need not
relate to the entity's activities, operations or state of affairs during a
period throughout which the port authority did not control the entity,
20 or to the results of such operations.
(9) The report has to give particulars of any matters or circumstance that
have arisen since the end of the financial year and have significantly
affected, or may significantly affect --
(a) the operations, in financial years after the financial year, of
25 the economic entity constituted by the port authority and the
entities it controls from time to time; or
(b) the results of those operations; or
(c) the state of affairs, in financial years after the financial year,
of that economic entity.
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(10) The report has to refer to --
(a) likely developments in the operations referred to in
subclause (9)(a); and
(b) the expected results of those operations.
5 27. Report may omit prejudicial information
(cf. s. 306 Corporations Law)
If the board of a port authority believes on reasonable grounds that to
include in the report particular information clause 25(9) or 26(10)
requires would be likely to result in unreasonable prejudice to the port
10 authority --
(a) the first-mentioned information need not be so included; and
(b) if it is not so included, the report has to state that some or all,
as the case requires, of the information required by that
subclause has not been so included.
15 28. Additional information required in report
(cf. s. 307 Corporations Law)
(1) The report has to contain, or have attached to it, a statement that, in
relation to each of the directors, sets out, as at the day the report is
made out --
20 (a) particulars of the director's qualifications, experience and
special responsibilities (if any); and
(b) particulars of any interest which the director has disclosed --
(i) in accordance with section 12; and
(ii) since the date of the last report made out in relation to
25 the port authority under this Division.
(2) The report has to also contain, or have attached to it, a statement that
sets out --
(a) how many meetings of the board (including meetings of
committees of directors) were held during a financial year, or
30 would have been held if a quorum had been present; and
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(b) in relation to each person who was a director of the port
authority throughout the financial year, how many of the
meetings referred to in paragraph (a) the person attended; and
(c) in relation to each person who was such a director during
5 some but not all of the financial year --
(i) how many of the meetings referred to in
paragraph (a) were held while the person was such a
director; and
(ii) how many of the meetings referred to in
10 paragraph (a) the person attended while he or she was
such a director.
29. Benefits under contracts with directors
(cf. s. 309 Corporations Law)
(1) The report has to set out whether or not, during or since the financial
15 year, a director has received, or has become entitled to receive, a
benefit because of a contract that --
(a) the director; or
(b) a firm of which the director is a member; or
(c) an entity in which the director has a substantial financial
20 interest,
has made (during that or any other financial year) with --
(d) the port authority; or
(e) an entity that the port authority controlled, or a body
corporate that was related to the port authority, when the
25 contract was made or when the director received, or became
entitled to receive, the benefit (if any).
(2) If so, the report has to set out the general nature of each such benefit
that a director has so received or to which a director has so become
entitled.
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(3) Subclauses (1) and (2) do not apply to --
(a) a benefit included in the aggregate amount of emoluments
received, or due and receivable, by directors shown, in
accordance with the regulations in force for the purposes of
5 clause 18, in the port authority's financial statements for the
financial year; or
(b) the fixed salary of a full-time employee of --
(i) the port authority; or
(ii) an entity that controlled, or a body corporate that was
10 related to the port authority, at a relevant time.
30. Reports generally
(cf. s. 310 Corporations Law)
(1) The board of a port authority must comply with this Division in
relation to a financial year before 30 September in each year
15 immediately following the relevant financial year.
(2) A report that this Division requires in relation to a financial year has
to --
(a) be made out in accordance with a resolution of the board;
(b) be made out not later than 30 September in each year
20 immediately following the relevant financial year;
(c) specify the day on which it was made out; and
(d) be signed by at least 2 directors.
Division 10 -- Financial statements and directors' reports
31. Rounding off amounts
25 (cf. s. 311 Corporations Law)
Regulations made under section 139 may permit a port authority
subject to such conditions, exceptions or qualifications (if any) as are
specified in the regulations, to insert in any accounts or report under
this Schedule in substitution for an amount that the port authority
30 would, but for this clause, be required or permitted to set out in the
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accounts or report an amount that is ascertained in accordance with
the regulations and is not more than $500 greater or less than the
first-mentioned amount.
32. Where port authority is a chief entity, board to obtain all
5 necessary information
(cf. s. 312 Corporations Law)
(1) Subject to subclause (3), where a port authority is a chief entity in
relation to a particular financial year, the board must not cause to be
made out the consolidated accounts referred to in Division 6, the
10 statement referred to in clause 23 or the report referred to in clause 26
unless it has available to it sufficient information, about each entity
that the port authority controlled during all or part of, or at the end of
the financial year, to enable it to ensure --
(a) that the consolidated accounts --
15 (i) will be made out in accordance with Divisions 6 and
7; and
(ii) in particular, will give a true and fair view of the
matters with which they must deal;
and
20 (b) that neither the statement nor the report will be false or
misleading in a material particular.
(2) Reporting officers of an entity that a port authority controlled during
all or part of, or at the end of, a particular financial year of the port
authority must, at the request of the board, supply to the port authority
25 all the information that is required by the board for the preparation of
the consolidated accounts, the statement and the report referred to in
subclause (1).
(3) Where the board, having taken all such steps as are reasonably
available to it, is unable to obtain from the reporting officers of an
30 entity the information required by the board for the preparation of the
consolidated accounts, the statement and the report referred to in
subclause (1) within the period by which those consolidated accounts,
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that statement and that report are respectively required, by the
provisions referred to in that subclause, to be prepared --
(a) the board must cause to be made out those consolidated
accounts, that statement and that report without incorporating
5 in, or including with, those consolidated accounts, or
incorporating in that statement or report, as the case requires,
the information relating to the entity but --
(i) it must include in those consolidated accounts, that
statement or that report, as the case requires, a
10 description of the nature of the information that has
not been obtained, and must include in those
consolidated accounts, that statement and that report
such qualifications and explanations as are necessary
to prevent those consolidated accounts, that statement
15 and that report from being misleading; and
(ii) it may qualify accordingly that part of that statement
that is made under clause 23(2);
and
(b) where the board has caused to be made out those consolidated
20 accounts, that statement and that report in accordance with
paragraph (a), it must, within one month after receiving any
of that information from the reporting officers of the entity
lodge with the Minister a statement setting out or
summarizing the information and containing such
25 qualifications and explanations, by the board, of those
consolidated accounts, that statement or that report as are
necessary having regard to the information received from
those reporting officers of the entity.
(4) In this clause --
30 "reporting officers", in relation to an entity, means --
(a) in the case of a port authority, the port authority's
directors; or
(b) otherwise, the entity's officers.
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33. Relief from requirements as to accounts and reports
(cf. s. 313 Corporations Law)
(1) The board of a port authority may apply to the Treasurer for an order
relieving it or relieving the port authority from compliance with
5 specified requirements of this Schedule relating to accounts or
consolidated accounts or to the report required by Division 9.
(2) On an application under subclause (1), the Treasurer may make an
order relieving the board or the port authority from compliance with
all or any of the specified requirements either unconditionally or on
10 condition that the board or the port authority complies with such other
requirements relating to the accounts or consolidated accounts or to
the report as the Treasurer imposes.
(3) An application under subclause (1) has to be in writing supported by a
statement in writing made in accordance with a resolution of the
15 board, signed by not less than 2 directors and stating the reasons for
seeking an order.
(4) If the board of a port authority makes an application under
subclause (1), the Treasurer may require it to supply such information
relating to the operations of the port authority and of any entity which
20 the port authority controls or has controlled during a financial year, as
the Treasurer thinks necessary for the purpose of determining the
application.
(5) A reference in subclause (2) to requirements of this Schedule relating
to accounts or consolidated accounts does not include a reference to
25 the requirements of clause 7.
(6) Where the Treasurer makes an order under subclause (2) --
(a) the Treasurer is to cause the text of the order to be laid before
each House of Parliament within 14 days after the order is
made;
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(b) if at the commencement of the period referred to in
paragraph (a) a House of Parliament is not sitting and the
Treasurer is of the opinion that that House will not sit during
that period, the Treasurer is to transmit a copy of the order to
5 the Clerk of that House and the copy of the order so
transmitted is to be --
(i) taken to have been laid before that House; and
(ii) taken to be a document published by order or under
the authority of that House;
10 and
(c) the laying of a copy of a document that is taken to have
occurred under paragraph (b) is to be recorded in the Minutes,
or Votes and Proceedings, of the House on the first sitting
day of the House after the receipt of the copy by the Clerk.
15 (7) The Treasurer is not to make an order in relation to a port authority
unless in relation to each requirement of this Schedule that is
specified in the order, the Treasurer is of the opinion that compliance
with the requirement --
(a) would render accounts or consolidated accounts, or a report
20 required by Division 9 misleading;
(b) would be inappropriate to the circumstances of the port
authority; or
(c) would impose unreasonable burdens on the port authority or
an officer of the port authority.
25 (8) The reference in subclause (7) to an order in relation to the port
authority is a reference to an order under subclause (2) relieving the
board or the port authority from compliance with specified
requirements of this Schedule.
(9) The Treasurer may make an order under subclause (2) that is limited
30 to a specified period and may from time to time either on application
by the board, or without any such application, revoke or suspend the
operation of the order.
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(10) The revocation or suspension under subclause (8) of an order does not
take effect until notice of the revocation or suspension is served on the
port authority.
34. Minister to receive a copy of the annual report
5 (cf. s. 315 Corporations Law)
(1) A port authority must as soon as practicable but not later than the
close of business on the prescribed day in each year send to the
Minister a copy of the annual report required by section 68.
(2) In subclause (1) --
10 "the prescribed day" is the 10th working day after receipt by the
port authority under clause 38(2) of the Auditor General's report.
35. Minister entitled to financial statements and reports
(cf. s. 316 Corporations Law)
The annual report of a port authority required by section 68 has to
15 contain the following documents relevant to the financial year to
which the report relates --
(a) a copy of the port authority's financial statements for that
financial year;
(b) a copy of each statement that Division 8 requires in relation
20 to that financial year;
(c) a copy of each statement that Division 9 requires in relation
to that financial year;
(d) a copy of the Auditor General's report on the financial
statements; and
25 (e) a copy of any order of the Treasurer under clause 33.
36. Contravention
(cf. s. 318 Corporations Law)
(1) Subject to this clause, if a director fails to take all reasonable steps to
comply with, or to secure compliance with, or has knowingly been the
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cause of any default under, any of the provisions of this Schedule
other than Divisions 2 and 3, the director contravenes this subclause.
(2) The penalty applicable to a contravention of subclause (1) is --
(a) in a case to which paragraph (b) does not apply, $5 000; or
5 (b) if the offence was committed with intent to deceive or
defraud the Minister or the Treasurer or creditors of the port
authority, $20 000 or imprisonment for 5 years or both.
(3) In any proceedings against a person for failure to take all reasonable
steps to comply with, or to secure compliance with, the provisions of
10 this Schedule relating to the form and content of the accounts or
consolidated accounts of a port authority by reason of an omission
from the accounts or consolidated accounts, it is a defence if it is
proved that the information omitted was immaterial and did not affect
the giving of a true and fair view of the matters required by
15 Divisions 5 and 6 to be dealt with in the accounts or consolidated
accounts, as the case may be.
(4) After the end of the period within which Division 5, 6, 7 or 8 requires
the board of a port authority to cause a document to be made out, the
Minister may require the board to produce the document on a
20 specified day, at a specified place, to a specified person.
(5) A request under subclause (4) must be made by written notice given
to each of the directors.
(6) In a proceeding for a contravention of Division 5, 6, 8 or 9, proof of
contravention of a requirement made under subclause (4) is prima
25 facie evidence that the document was not made out within the period
referred to in that subclause.
37. Audit
(1) If the Auditor General cannot complete the audit of a port authority by
30 September in any year he or she is to submit an interim report to
30 the Minister setting out the reasons for the inability to complete the
audit by that date, and the Minister is to cause copies of the report to
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Financial administration and audit Schedule 5
be laid before both Houses of Parliament, within 7 sitting days of
receiving that report.
(2) Section 92 of the Financial Administration and Audit Act 1985
applies to the audit of a port authority.
5 38. Auditor General must report
(cf. s. 331A Corporations Law)
(1) The Auditor General is to send a report to the Minister on --
(a) a port authority's financial statements required for the
purposes of clause 36; and
10 (b) a port authority's accounting records and other records
relating to those financial statements.
(2) The Auditor General is to give the report to the directors as soon as is
practicable after it has been given to the Minister under subclause (1).
39. Report to state whether financial statements properly drawn up
15 (cf. s. 331B Corporations Law)
(1) The report has to state whether or not, in the Auditor General's
opinion, the financial statements are properly drawn up --
(a) so as to give a true and fair view of the matters with which
Divisions 5, 6 and 7 require them to deal;
20 (b) in accordance with this Schedule; and
(c) in accordance with applicable accounting standards.
(2) If, in the Auditor General's opinion, the financial statements are not
drawn up in accordance with a particular applicable accounting
standard, the report has to give particulars of the quantified financial
25 effect on the financial statements of failing to draw them up in
accordance with that accounting standard.
(3) If the Auditor General is not satisfied about a matter referred to in
subclause (1) or (2), the report has to state why not.
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40. Matters affecting consolidated accounts
(cf. s. 331C Corporations Law)
(1) If the financial statements include consolidated accounts, the report
must specify each entity that the port authority controlled during all or
5 a part of, or at the end of, the financial year, but of which the Auditor
General has not acted as auditor.
(2) If --
(a) the financial statements include consolidated accounts
prepared on the basis of information derived from accounts of
10 an entity of the kind referred to in subclause (1); and
(b) the Auditor General has not examined those accounts and the
auditor's report (if any) on those accounts,
the report on the financial statements must specify that entity.
(3) If --
15 (a) the financial statements include consolidated accounts
prepared on the basis of information derived from accounts of
an entity that the port authority controlled during all or part
of, or at the end of, the financial year; and
(b) the Auditor General's report on those accounts was made
20 subject to any qualification, or included any comment made
under clause 42,
the report on the financial statements has to --
(c) specify the entity; and
(d) give particulars of the qualification or comment.
25 41. Defects, irregularities and omissions
(cf. s. 331D Corporations Law)
The report must describe --
(a) any defect or irregularity in the financial statements; and
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(b) any matter that the financial statements do not set out and to
which one must have regard in order to obtain a true and fair
view of the matters with which the financial statements deal.
42. Auditor General's report to cover adequacy of information
5 (cf. s. 331E Corporations Law)
(1) It is the Auditor General's duty to form an opinion about each of the
matters set out in subclause (2), and the report must set out particulars
of any deficiency, failure or shortcoming in respect of any of those
matters.
10 (2) These are the matters --
(a) whether the Auditor General has obtained all the information
and explanations he or she needed;
(b) whether a port authority has kept proper accounting records,
and other records (including registers), as required by this
15 Schedule;
(c) if a port authority is a chief entity in relation to the financial
year concerned --
(i) whether the accounts of entities that were used in
preparing the consolidated accounts of the port
20 authority in relation to the financial year are in form
and content appropriate and proper for such use;
(ii) whether the Auditor General has received satisfactory
information and explanations as required by the
Auditor General for the purposes of forming an
25 opinion about the matter referred to in
subparagraph (i);
(iii) whether the procedures and methods used in arriving
at the amounts taken into the consolidated accounts
were appropriate to the circumstances of preparing
30 the consolidated accounts.
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Schedule 5 Financial administration and audit
43. Minister entitled to inspect auditor's report
(cf. s. 331F Corporations Law)
The Minister is entitled to inspect the report at any reasonable time.
44. Powers and duties of Auditor General as to reports on accounts
5 (cf. s. 332 Corporations Law)
(1) Where Division 6 requires consolidated accounts to be made out in
relation to a financial year of a port authority --
(a) the Auditor General has a right of access at all reasonable
times to the accounting records and other records, including
10 registers, of each entity that the port authority controlled
during all or part of, or at the end of, that financial year, even
if the port authority no longer controls the entity; and
(b) the Auditor General is entitled to require from any officer or
auditor of such an entity (at the port authority's expense),
15 such information and explanations about the entity's affairs
as the Auditor General needs in order to report on the
consolidated accounts.
(2) The Auditor General has a right of access at all reasonable times to
the accounting records and other records, including registers of a port
20 authority, and is entitled to require from any officer of a port authority
such information and explanations as the Auditor General desires for
the purposes of audit.
(3) If the Auditor General in the course of the performance of duties as
auditor of a port authority and its subsidiaries, is satisfied that --
25 (a) there has been a contravention of any provision of this
Schedule; and
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Financial administration and audit Schedule 5
(b) the circumstances are such that in the Auditor General's
opinion the matter has not been or will not be adequately
dealt with by comment in the Auditor General's report on the
financial statements or by bringing the matter to the notice of
5 the board of the port authority,
the Auditor General is to report the matter to the Minister, in writing,
as soon as is practicable.
(4) The provisions of sections 78 to 91 (inclusive) and section 95 of the
Financial Administration and Audit Act 1985 apply to a port authority
10 as if it were a statutory authority named in Schedule 1 to that Act.
45. Extension of time
(1) Where any provision of this Schedule requires any act or thing to be
observed or performed by a certain date or within a specified time by
a person, other than the Auditor General, the Minister may on
15 application by that person extend the date of, or the time for
observance or performance of such act or thing to such date or time as
the Minister thinks appropriate.
(2) Where the Minister grants an extension of time under subclause (1),
the provisions of clause 33(6) apply (with all necessary changes) to
20 the memorandum evidencing the extension as if it were an order
under clause 33(2).
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Schedule 6 Provisions for particular port authorities
Schedule 6 -- Provisions for particular port authorities
[s. 132]
Division 1 -- Dampier Port Authority
1.1. Application
5 This Division applies to the Dampier Port Authority and the Port of
Dampier.
1.2. Definitions
In this Division --
"Company appointee" means the director --
10 (a) appointed under clause 1.4(1)(a); or
(b) appointed under clause 1.4(3) in default of a nomination
for appointment as the Company appointee by the
Company;
"Dampier Solar Salt Industry Agreement" means the agreement a
15 copy of which is set forth in the First Schedule to the Dampier
Solar Salt Industry Agreement Act 1967, as that agreement is
amended from time to time;
"Iron Ore (Hamersley Range) Agreement" means the agreement a
copy of which is set forth in the First Schedule to the Iron Ore
20 (Hamersley Range) Agreement Act 1963, as that agreement is
amended from time to time;
"Joint Venturers appointee" means the director --
(a) appointed under clause 1.4(1)(b); or
(b) appointed under clause 1.4(4) in default of a nomination
25 for appointment as the Joint Venturers appointee by the
Joint Venturers;
"Ministerial appointee" means a director appointed under
clause 1.4(1)(c);
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"North West Gas Development (Woodside) Agreement" means the
agreement a copy of which is set forth in the Schedule to the
North West Gas Development (Woodside) Agreement Act 1979,
as that agreement is amended from time to time;
5 "the Company" has the meaning given by the Iron Ore (Hamersley
Range) Agreement;
"the Joint Venturers" has the meaning given by the North West Gas
Development (Woodside) Agreement;
"the Salt Company" means the Company within the meaning of the
10 Dampier Solar Salt Industry Agreement.
1.3. Act does not affect State agreements
This Act does not prejudice or in any way affect --
(a) any right or obligation of a party to the Dampier Solar Salt
Industry Agreement;
15 (b) any right or obligation of a party to the Iron Ore (Hamersley
Range) Agreement; or
(c) any right or obligation of a party to the North West Gas
Development (Woodside) Agreement.
1.4. Membership of port authority
20 (1) The board of the port authority is to comprise --
(a) one director appointed by the Minister on the nomination in
writing of the Company;
(b) one director appointed by the Minister on the nomination in
writing of the Joint Venturers; and
25 (c) 3 other directors appointed by the Minister.
(2) The Minister is to appoint one of the Ministerial appointees to be
chairperson of the board.
(3) If the Company does not nominate a person for appointment as the
Company appointee within 30 days after being requested in writing by
30 the Minister to do so, the Minister may without any such nomination
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Schedule 6 Provisions for particular port authorities
by the Company appoint a person who is otherwise eligible for
appointment as a director to be the Company appointee.
(4) If the Joint Venturers do not nominate a person for appointment as the
Joint Venturers appointee within 30 days after being requested in
5 writing by the Minister to do so, the Minister may without any such
nomination by the Joint Venturers appoint a person who is otherwise
eligible for appointment as a director to be the Joint Venturers
appointee.
(5) A person appointed by the Minister under subclause (3) or (4) is to be
10 regarded as having been duly nominated and appointed as the
Company appointee or the Joint Venturers appointee, as the case
requires.
(6) The Company appointee ceases to hold office as a director if the
Company by instrument in writing served on the Minister so requests.
15 (7) The Joint Venturers appointee ceases to hold office as a director if the
Joint Venturers by instrument in writing served on the Minister so
request.
1.5. Alternate members
(1) Schedule 2, clause 4 does not apply to the port authority.
20 (2) The Minister may appoint a person as an alternate director for a
director.
(3) A person cannot be appointed as an alternate director for more than
one director.
(4) Clauses 1.4(1)(a) and (b), and (3) to (7) and 1.6 apply (with any
25 necessary changes) in relation to alternate directors for the Company
appointee and the Joint Venturers appointee.
(5) If a person is nominated by the Company or the Joint Venturers
(whether at the Minister's request or not) for appointment as an
alternate director for the Company appointee or the Joint Venturers
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appointee, as the case may be, the Minister is to appoint the person as
an alternate director.
(6) When a director is unable to act because of sickness, absence or other
cause, the alternate director for that director may act in the director's
5 place, and while so acting that alternate director is to be taken to be a
director and is entitled to remuneration under section 10.
(7) No act or omission of an alternate director acting in place of a director
under this clause may be questioned on the ground that the occasion
for acting had not arisen or had ceased.
10 1.6. Disclosure by directors
Section 12 and Schedule 2, clause 8 do not apply --
(a) to the Company appointee in respect of a material personal
interest that consists only of being an employee of the
Company; or
15 (b) to the Joint Venturers appointee in respect of a material
personal interest that consists only of being an employee of
one of the Joint Venturers.
1.7. Quorum
At a meeting of the port authority, 3 directors --
20 (a) one of whom is the company appointee or the Joint Venturers
appointee; and
(b) one of whom is a Ministerial appointee,
constitute a quorum.
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1.8. Property
Except with the consent of the port authority, an order is not to be
made under section 26(1) in respect of any real or personal
property --
5 (a) which is a facility improved or expanded, or an additional
facility provided, under an agreement with the port authority,
the capital cost of which improvement or expansion or
provision has been wholly met by payments made under that
agreement;
10 (b) which has been vested free of cost in the port authority; or
(c) which has been acquired or constructed by the port authority
with moneys provided,
by the Company, the Salt Company or the Joint Venturers or any 2 or
all 3 of them.
15 1.9. Cost recovery
The functions of the port authority include recovering as far as
possible, the cost of the facilities and services provided by the port
authority from the users of those facilities and services.
1.10. Duties of companies and joint venturers
20 (1) Despite anything in section 30 --
(a) the Company, for its own requirements under the Iron Ore
(Hamersley Range) Agreement;
(b) the Salt Company, for its own requirements under the
Dampier Solar Salt Industry Agreement; and
25 (c) the Joint Venturers, for their own requirements under the
North West Gas Development (Woodside) Agreement,
are to maintain and keep in repair and proper working order all
necessary dredged channels, berthing basins and navigational aids
required and used by the Company, the Salt Company or the Joint
30 Venturers, as the case requires.
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(2) Despite anything in section 30, the port authority may from time to
time direct the Salt Company, the Company or the Joint Venturers or
any 2 or all 3 of them --
(a) to provide, maintain and keep in repair and proper working
5 order all dredged channels, berthing basins and navigational
aids required and used by it or them in its or their operations
under the Dampier Solar Salt Industry Agreement, the Iron
Ore (Hamersley Range) Agreement or the North West Gas
Development (Woodside) Agreement, as the case requires;
10 and
(b) for the purpose of determining whether or not any dredged
channels, berthing basins and navigational aids referred to in
paragraph (a) are being maintained and kept in repair and
proper working order, to provide the port authority at its or
15 their cost with such information, reports and hydrographic
surveys as are specified in that direction.
(3) The Salt Company, the Company or the Joint Venturers must, without
delay, comply with any direction given to it or them, as the case
requires, by the port authority under subclause (2).
20 (4) If the Salt Company, the Company or the Joint Venturers does not or
do not comply with --
(a) subclause (1), the port authority is to cause the requisite
works to be undertaken and the cost of those works is to be
borne by the person which has not complied with that
25 subclause; or
(b) a direction given under subclause (2), the port authority is to
cause --
(i) the requisite work to be undertaken; or
(ii) the requisite information, reports or hydrographic
30 surveys to be provided,
and the cost of those works or the cost of that provision be
borne by the person which has not complied with that
direction.
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1.11. Pilotage services agreements
Having entered into a business or other arrangement with the port
authority under section 35(2) for the provision of pilotage services --
(a) the Company may for its own requirements under the Iron
5 Ore (Hamersley Range) Agreement;
(b) the Salt Company may for its own requirements under the
Dampier Solar Salt Industry Agreement; or
(c) the Joint Venturers may for their own requirements under the
North West Gas Development (Woodside) Agreement,
10 provide its own or their own pilotage services in the port in
accordance with that agreement.
Division 2 -- Port Hedland Port Authority
2.1. Application
This Division applies to the Port Hedland Port Authority and the Port
15 of Port Hedland.
2.2. Definitions
In this Division --
"first lessee" means the registered lessee or registered lessees, for the
time being, of the land the subject of lease number 3116/3445 or
20 any lease in substitution for it issued under the Land Act 1933,
and the Iron Ore (Mount Goldsworthy) Agreement Act 1964;
"first lessee appointee" means the director --
(a) appointed under clause 2.4(1)(a); or
(b) appointed under clause 2.4(3) in default of a nomination
25 for appointment as the first lessee appointee by the first
lessee;
"Ministerial appointee" means a director appointed under
clause 2.4(1)(c);
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"second lessee" means the registered lessee or the registered lessees,
for the time being, of the land the subject of lease number
3116/3692 or any lease in substitution for it issued under the
Land Act 1933, and the Iron Ore (Mount Newman) Agreement
5 Act 1964;
"second lessee appointee" means the director --
(a) appointed under clause 2.4(1)(b); or
(b) appointed under clause 2.4(4) in default of a nomination
for appointment as the second lessee appointee by the
10 second lessee.
2.3. Act does not affect State agreements
This Act does not prejudice or in any way affect --
(a) any right of the persons entitled to them to receive the
payments referred to in clause 20(1) of the agreement a copy
15 of which is set forth in the Schedule to the Leslie Solar Salt
Industry Agreement Act 1966, as that agreement is amended
from time to time;
(b) any right or obligation of a party to the agreement a copy of
which is set forth in the First Schedule to the Iron Ore
20 (Mount Goldsworthy) Agreement Act 1964, as that agreement
is amended from time to time;
(c) any right or obligation of a party to the agreement a copy of
which is set forth in the First Schedule to the Iron Ore
(Mount Newman) Agreement Act 1964, as that agreement is
25 amended from time to time.
2.4. Membership of port authority
(1) The board of the port authority is to comprise --
(a) one director appointed by the Minister on the nomination in
writing of the first lessee;
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(b) one director appointed by the Minister on the nomination in
writing of the second lessee; and
(c) not more than 5 other directors appointed by the Minister.
(2) The Minister is to appoint one of the Ministerial appointees to be
5 chairperson of the board.
(3) If the first lessee does not nominate a person for appointment as the
first lessee appointee within 30 days after being requested in writing
by the Minister to do so, the Minister may without any such
nomination by the first lessee appoint a person who is otherwise
10 eligible for appointment as a director to be the first lessee appointee.
(4) If the second lessee does not nominate a person for appointment as the
second lessee appointee within 30 days after being requested in
writing by the Minister to do so, the Minister may without any such
nomination by the second lessee appoint a person who is otherwise
15 eligible for appointment as a director to be the second lessee
appointee.
(5) A person appointed by the Minister under subclause (3) or (4) is to be
regarded as having been duly nominated and appointed as the first
lessee appointee or the second lessee appointee, as the case requires.
20 (6) The first lessee appointee ceases to hold office as a director if --
(a) the person or persons who nominated him or her ceases or
cease to be the registered lessee or registered lessees of the
land referred to in the definition of "first lessee" in clause 2.2;
or
25 (b) the first lessee by instrument in writing served on the
Minister so requests.
(7) The second lessee appointee ceases to hold office as a director if --
(a) the person or persons who nominated him or her ceases or
cease to be the registered lessee or registered lessees of the
30 land referred to in the definition of "second lessee" in
clause 2.2; or
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(b) the second lessee by instrument in writing served on the
Minister so requests.
2.5. Alternate members
(1) Schedule 2, clause 4 does not apply to the port authority.
5 (2) The Minister may appoint a person as an alternate director for a
director.
(3) A person cannot be appointed as an alternate director for more than
one director.
(4) Clauses 2.4(1)(a) and (b), and (3) to (7) and 2.6 apply (with any
10 necessary changes) in relation to alternate directors for the first lessee
appointee and the second lessee appointee.
(5) If a person is nominated by the first lessee or the second lessee
(whether at the Minister's request or not) for appointment as an
alternate director for the first lessee appointee or the second lessee
15 appointee, as the case may be, the Minister is to appoint the person as
an alternate director.
(6) When a director is unable to act because of sickness, absence or other
cause, the alternate director for that director may act in the director's
place, and while so acting that alternate director is to be taken to be a
20 director and is entitled to remuneration under section 10.
(7) No act or omission of an alternate director acting in place of a director
under this clause may be questioned on the ground that the occasion
for acting had not arisen or had ceased.
2.6. Disclosure by directors
25 Section 12 and Schedule 2, clause 8 do not apply --
(a) to the first lessee appointee in respect of a material personal
interest that consists only of being an employee of the first
lessee; or
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Schedule 6 Provisions for particular port authorities
(b) to the second lessee appointee in respect of a material
personal interest that consists only of being an employee of
one of the second lessees.
2.7. Quorum
5 At a meeting of the port authority, a number of directors equal to at
least half the number of directors in office constitutes a quorum.
2.8. Port includes pilotage area for some purposes
A reference in Part 7, Divisions 2 and 3 and, where appropriate, in
section 122(1) to "the port" includes a reference to the pilotage area
10 set out below:
The Pilotage Area
All that area of the sea beyond the boundaries of the Port of Port
Hedland that is within a radius of 20 nautical miles, or such greater
distance as may be prescribed by regulations, from the Hunt Point
15 Beacon.
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Purposes for which, or matters about which, regulations may be Schedule 7
made
Schedule 7 -- Purposes for which, or matters about which,
regulations may be made
[s. 139(2)]
1. The control, duties, supervision and guidance of the CEO and
5 members of staff of a port authority.
2. The control or prohibition of --
(a) entry into or presence in a port or any specified part or parts
of a port by or of a person or class of persons or by or of a
thing or class of things; or
10 (b) doing or omitting to do a thing or class of things in a port or
any specified part or parts of a port.
3. All matters relating to the protection of life and property and safe
navigation in a port.
4. The use of tide signals and other signals in a port.
15 5. Prevention of overloading or overcrowding of vessels.
6. The powers, duties and obligations of the harbour master of a port in
respect of the matters referred to in item 5 and the rights and liabilities
of persons affected by the exercise of such a power or connected with
a vessel in respect of which such a power is exercised.
20 7. (1) The landing, shipping, trans-shipping, unshipping, warehousing,
stowing, depositing, removal or keeping of explosives and dangerous
goods as respectively defined by the Explosives and Dangerous
Goods Act 1961 and of such other substances as the Minister may
specify as being dangerous goods for the purposes of the regulations.
25 (2) The landing, shipping, trans-shipping, unshipping, warehousing,
stowing, depositing, removal or keeping of goods other than those
substances referred to in subitem (1).
8. The movement, mooring, loading and unloading of vessels.
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Port Authorities Bill 1998
Schedule 7 Purposes for which, or matters about which, regulations may be
made
9. The control of the provision, at or in relation to a port, of --
(a) pilotage services;
(b) towage services;
(c) stevedoring services; or
5 (d) port services of any other kind.
10. The taking on and landing of passengers.
11. The taking in, management and discharge or delivery of ballast.
12. The use, cleaning, repair, maintenance and effective preservation of
jetties and wharf loading areas.
10 13. Traffic in a port.
14. The powers of a port authority to --
(a) move; or
(b) remove from the port,
vehicles or other things that are obstructing, or may obstruct, traffic in
15 the port.
15. Parking of vehicles in a port.
16. The powers of a port authority to deal with or sell or otherwise
dispose of goods that have remained in the port for longer than a
prescribed period or are affecting or may affect any property of the
20 port authority or any other goods in the port, and --
(a) the liability of persons for any charges imposed or expenses
incurred by the port authority in the exercise of its powers
under regulations made under this item; and
(b) the manner in which the proceeds of goods sold by a port
25 authority under its powers under regulations made under this
item may be applied.
17. Regulation of the duties and conduct of persons in a port.
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Port Authorities Bill 1998
Purposes for which, or matters about which, regulations may be Schedule 7
made
18. The control and management of ferries operating for hire at jetties or
public thoroughfares.
19. The control of the operation of vessels operating for hire either for
goods or passengers in a port.
5 20. The control of the operation of machinery on jetties and wharf loading
areas.
21. The conduct of persons operating vessels or machinery referred to in
item 19 or 20.
22. The control of the installation and use of moorings.
10 23. The calculation or ascertainment of port charges and the powers of a
collector of port charges, either alone or with other persons, to enter a
vessel in order to calculate or ascertain the port charges payable in
respect of the vessel or of goods on the vessel.
24. To require the master of every vessel to give notice of arrival at a port
15 within a specified time before arrival.
25. To require the master of every vessel to produce the certificate of
registry or other national papers of that vessel to a collector of port
charges or to any other member of staff on demand.
26. To require the master of a vessel to give documentation or
20 information in such form as may be required by a port authority of all
goods to be loaded or unloaded on to or from the vessel at the port.
27. To require the master of a vessel to obtain permission to load or
unload goods at a port before doing so.
28. To require the shippers of goods to furnish information as to the
25 goods intended to be shipped.
29. To give binding effect to --
(a) descriptions of and statements about goods (including as to
value) in bills of lading, manifests or receipts; and
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Port Authorities Bill 1998
Schedule 7 Purposes for which, or matters about which, regulations may be
made
(b) the terms and conditions of bills of lading, manifests or
receipts.
30. Pilotage matters generally and, in particular --
(a) procedures for and matters relating to the approval of persons
5 as pilots for a port;
(b) vessels that do not have to have an approved pilot; and
(c) procedures for and matters relating to pilotage exemption
certificates.
31. The speed of vessels in a port.
10 32. The recovery of expenses incurred by a port authority in exercising
powers under the regulations.
33. Limitation of the liability of a port authority for damage or loss either
generally or in circumstances specified in the regulations.
34. Exemption of a port authority from liability for damage or loss in
15 circumstances specified in the regulations.
35. Limitation of the time for making a claim against a port authority for
loss or damage.
36. Conditions to be inserted in a lease granted under this Act.
37. The powers of members of staff and police officers in relation to
20 persons who are committing or have committed or are believed to be
committing, or to have committed, offences under this Act.
38. The deposit of litter, rubbish or waste substances of any kind and the
abandonment or neglect of vessels or other material --
(a) in a port; or
25 (b) outside a port so as to affect or potentially affect, a port.
39. The --
(a) protection of;
(b) prevention of obstruction of or interference with; or
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Port Authorities Bill 1998
Purposes for which, or matters about which, regulations may be Schedule 7
made
(c) prevention of obstruction of or interference with the operation
of,
port facilities or other property of a port authority.
40. Liability for loss or damage occurring because of obstruction of or
5 interference with the operation of a navigational aid.
41. The protection of the environment of a port.
42. Any other matters relating to --
(a) the convenience of shipping, or of operations to do with the
storage, loading or unloading of cargo, or of the public, in a
10 port; or
(b) the performance of the functions imposed on a port authority
by this Act.
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