Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016

Part 1—Preliminary

1 Purposes

The main purposes of this Act are—

(a) to authorise and facilitate transactions under which land in the port of Melbourne is leased, and assets of the Port of Melbourne Corporation are disposed of, to a private sector entity; and

(b) to establish the Victorian Transport Fund into which the proceeds of transactions referred to in paragraph (a) are to be paid; and

(c) to guarantee the employment entitlements of employees of the Port of Melbourne Corporation who become employees of a private sector entity in connection with the transactions referred to in paragraph (a); and

(d) to amend the Transport Integration Act 2010 and the Port Management Act 1995 to revise the Port of Melbourne Corporation's functions and powers to reflect the port of Melbourne's operation by the private sector entity and the Port of Melbourne Corporation's continuing role in relation to the port; and

(e) to amend the Port Management Act 1995 and the Essential Services Commission Act 2001 to establish a new licensing and economic regulatory framework to apply to the private sector entity that will be providing services at the port of Melbourne through its operation of the port; and

(f) to amend the Marine Safety Act 2010 to ensure that the private sector entity operating the port of Melbourne, when carrying out activities at the port, is subject to marine safety duties; and

(g) to make consequential amendments to other Acts.

2 Commencement

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

(2) If a provision of this Act does not come into operation before 30 June 2017, it comes into operation on that day.

3 Definitions

In this Act—

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

associated assets means any assets, rights and liabilities designated under section 7 as associated assets;

authorised transaction means a transfer of port assets authorised by Part 2;

Crown land includes a stratum of Crown land;

exercise, in relation to a function, includes perform a duty;

function includes power, authority or duty;

lease includes—

(a) concurrent lease; and

(b) sublease, sublease of a sublease or any further sublease; and

(c) concurrent sublease, concurrent sublease of a concurrent sublease or any further concurrent sublease of a concurrent sublease;

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

licence includes sublicence, sublicence of a sublicence or any further sublicence;

port assets has the meaning given by section 4;

S. 3 def. of Port Corporation amended by Nos 10/2016 s. 178, 19/2022 s. 87(a).

Port Corporation means Ports Victoria within the meaning of the Transport Integration Act 2010;

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

port of Melbourne seabed means the Crown land comprising the area of waters that are port of Melbourne waters and, to avoid doubt, includes any stratum of that land;

port of Melbourne waters has the same meaning as in the Port Management Act 1995;

private sector entity means any person other than a public sector entity;

S. 3 def. of public sector entity amended by No. 19/2022 s. 87(b)(c).

public sector entity means any of the following—

(a) the State;

(b) the Minister;

(c) the Port Corporation;

(d) the Port of Hastings Corporation within the meaning of the Transport Integration Act 2010;

(f) a public entity within the meaning of the Public Administration Act 2004;

(g) any other person acting on behalf of the State;

(h) a corporation established under section 22;

(i) a company established in accordance with section 23, but only while all the shares in the company are held by or on behalf of an entity referred to in paragraphs (a) to (h);

(j) a wholly-owned subsidiary of an entity referred to in paragraphs (c) to (i);

S. 3 def. of relevant land Ministers amended by No. 26/2018 s. 91(1).

relevant land Ministers means—

(a) in sections 51 and 52, the Minister administering the Crown Land (Reserves) Act 1978, the Minister administering the Marine and Coastal Act 2018 and the Minister administering Part IX of the Land Act 1958; and

(b) in section 55, the Minister administering the Marine and Coastal Act 2018 and the Minister administering Part IX of the Land Act 1958;

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

transaction arrangement means a transaction, agreement or other arrangement entered into by or on behalf of a public sector entity for the purposes of an authorised transaction;

transaction entity means—

(a) a corporation established under section 22; or

(b) a company established in accordance with section 23; or

(c) a company designated under section 24;

transaction proceeds means the proceeds of the transfer of port assets to a private sector entity under an authorised transaction;

transfer, in relation to port assets, has the meaning given by section 5;

transfer date means the date of coming into effect of a transfer order;

transfer order means an order made under Division 1 of Part 4;

transferee means the person or body in whom any assets, rights and liabilities are vested by a transfer order;

transferor means the person or body from whom any assets, rights or liabilities are divested by a transfer order;

vehicle has the same meaning as in the Road Safety Act 1986;

Victorian Transport Fund means the Fund established under section 13.

4 Meaning of *port assets*

(1) Port assets are the following—

(a) the assets, rights and liabilities of the Port Corporation;

(b) associated assets.

(2) Port assets include assets, rights and liabilities vested in a public sector entity that were port assets before their transfer to a public sector entity for the purposes of an authorised transaction.

(3) However, assets, rights and liabilities cease to be port assets when they are transferred (other than under a lease or licence) to a private sector entity for the purposes of an authorised transaction.

5 Meaning of *transfer*

(1) A transfer, in relation to port assets, includes the sale, lease or licensing of port assets, and the creation and transfer of any interest in port assets.

(2) To avoid doubt, for the purposes of subsection (1) each of the following is a creation and transfer of an interest in port assets—

(a) a declaration of trust relating to port assets the specification of which forms part of the declaration of trust or part of the transaction constituted by the declaration of trust;

(b) a surrender of an interest in port assets;

(c) a change in the beneficial ownership of port assets.

(3) In this section—

beneficial ownership includes, but is not limited to, ownership of assets by a person as trustee of a trust;

change in beneficial ownership includes, but is not limited to the following—

(a) the creation of an asset;

(b) the extinguishment of an asset;

(c) a change in equitable interests in an asset;

(d) an asset becoming the subject of a trust;

(e) an asset ceasing to be the subject of a trust;

declaration of trust means any declaration (other than by a will or testamentary instrument) that any identified asset vested or to be vested in the person making the declaration is or is to be held in trust for the person or persons, or the purpose or purposes, mentioned in the declaration although the beneficial owner of the asset, or the person entitled to appoint the asset, may not have joined in or assented to the declaration.

6 Words and expressions defined in Corporations Act

In this Act the following words and expressions have the same meanings respectively as they have in section 9 of the Corporations Act unless the context or subject-matter otherwise requires—

(a) associated entity;

(b) company;

(c) director;

(d) dispose;

(e) issue;

(f) officer;

(g) related body corporate;

(h) securities;

(i) subsidiary;

(j) wholly-owned subsidiary.

7 Associated assets

The Premier, by order, may designate any assets, rights or liabilities of a public sector entity that relate to, or are connected with, the port of Melbourne to be associated assets for the purposes of this Act.

8 Functions for the purposes of an authorised transaction

For the purposes of this Act, any act, matter or thing is done or has effect for the purposes of an authorised transaction if—

(a) it is done or has effect for the purpose of effecting or facilitating an authorised transaction; or

(b) it is done or has effect for any purpose that is ancillary or incidental to or consequential on an authorised transaction; or

(c) it is done or has effect for any purpose connected with the vesting of port assets in, or the transfer of staff of the Port Corporation to, a public sector entity at any time after completion of an authorised transaction.

9 Act to bind the Crown

This Act binds the Crown in right of Victoria, and so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

10 Extraterritorial operation of Act

It is the intention of the Parliament that the operation of this Act is, as far as possible, to include operation in relation to the following—

(a) things situated in or outside the territorial limits of Victoria;

(b) acts, transactions and matters done, entered into or occurring in or outside the territorial limits of Victoria;

(c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Act, be governed or otherwise affected by the law of another jurisdiction.

Part 2—Authorised transactions

Division 1—Transfer of port assets

11 Authorised transfer of port assets

(1) This Act authorises the transfer of port assets to a private sector entity, or a public sector entity, subject to the following limitations—

(a) land comprising port assets may be leased or licensed to a private sector entity but the ownership of the freehold title to that land must remain with a public sector entity;

(b) in the case where one lease or licence of land comprising port assets is granted to a private sector entity, the maximum period for that lease or licence must not exceed the period specified in subsection (2);

(c) in the case where a lease or licence of land comprising port assets is granted to a private sector entity and any further lease or licence of those port assets is granted, the maximum period for all of the leases or licences granted to a private sector entity must not exceed, in aggregate, the period specified in subsection (2).

(2) For the purposes of subsection (1)(b) and (c), the specified period is—

(a) 50 years; or

(b) if the Premier makes an order under subsection (3), the period determined under that order.

(3) The Premier, by order, may, for the purposes of subsection (2)(b), determine the period of a lease or licence of land comprising port assets to be granted to a private sector entity.

(4) The period determined under an order under subsection (3) must not exceed 50 years and 30 days.

(5) Port assets may be transferred for the purposes of an authorised transaction in any manner.

(6) Without limiting subsection (5), port assets of a body corporate (the port assets holder) may be transferred to another body corporate by the port assets holder becoming a wholly-owned subsidiary of the other body corporate.

12 Proceeds of transaction

(1) The proceeds of the transfer of port assets to a private sector entity under an authorised transaction belong to and are payable directly to the State.

(2) The transaction proceeds include any payment to a public sector entity that is a premium or periodic payment under or related to a lease or licence of port assets to a private sector entity or grant of other rights that is authorised by this Act that, but for subsection (1), would be payable to another public sector entity.

(3) The transaction proceeds paid to the State are to be paid into the Victorian Transport Fund.

(4) The following deductions are authorised to be made from the transaction proceeds—

(a) deduction of amounts approved by the Premier to repay debt and satisfy other liabilities of a public sector entity in relation to port assets transferred for the purposes of an authorised transaction;

(b) deduction of amounts approved by the Premier—

(i) to reimburse a public sector entity for payments made by the entity in relation to any tax, duty, fee or charge imposed on the public sector entity by any Act or law of the State or any other jurisdiction in connection with a transaction arrangement; or

(ii) to pay on behalf of a public sector entity any tax, duty, fee or charge referred to in subparagraph (i) payable by the public sector entity in connection with a transaction arrangement;

(c) deduction of amounts approved by the Premier to satisfy any liability of a public sector entity arising under or in connection with a transaction arrangement;

(d) deduction of amounts approved by the Premier to meet expenses reasonably incurred by a public sector entity for the purposes of an authorised transaction;

(e) deduction of amounts approved by the Premier—

(i) to satisfy the liabilities of a public sector entity arising under or in connection with a project that is approved by the Premier as a port‑related project; or

(ii) to reimburse a public sector entity for payments made by it to satisfy the liabilities it incurs for or in connection with a project that is approved by the Premier as a port-related project.

(5) The transaction proceeds do not include any amount certified by the Premier to have been paid to a public sector entity as a tax, duty, fee or charge imposed by any Act or law of the State in connection with a transaction arrangement.

(6) The deductions authorised to be made from the transaction proceeds may be made—

(a) before payment of the transaction proceeds into the Victorian Transport Fund; or

(b) by payment from the Victorian Transport Fund.

(7) The requirements of this section do not affect the validity of a transaction arrangement.

Division 2—The Victorian Transport Fund

13 Victorian Transport Fund

There must be established in the Public Account as part of the Trust Fund an account to be known as the Victorian Transport Fund.

14 Payments into the Fund

There must be paid into the Victorian Transport Fund—

(a) all money that is appropriated by the Parliament for the purposes of the Fund; and

(b) all money that is received from the investment of money in the Fund; and

(c) all money directed or authorised to be paid into the Fund by or under this or any other Act.

Note

The transaction proceeds are money that this Act directs to be paid into the Fund—see section 12(3).

15 Payments out of the Fund

(1) There must be paid out of the Victorian Transport Fund—

(a) amounts authorised by the Treasurer to fund the cost of all or any part of the development of—

(i) the Level Crossing Removal Program; and

(ii) infrastructure projects for or in relation to public transport, roads, rail, the movement of freight, ports or other infrastructure (including regional infrastructure); and

(iii) rail infrastructure projects for improving rail access, including any rail infrastructure project for improving access identified as an option in a Rail Access Strategy prepared under Part 6C of the Port Management Act 1995; and

(b) all money directed or authorised to be paid out of the Fund by or under this or any other Act.

Note

For example, see section 12(6)(b).

(2) The amounts authorised by the Treasurer to be paid out of the Victorian Transport Fund to fund the cost of all or any part of the development of regional infrastructure projects must equate to, in aggregate, at least 10% of the net transaction proceeds.

(3) In addition, the amounts authorised by the Treasurer to be paid out of the Victorian Transport Fund under subsection (1)(a) must, in any relevant period, include amounts to fund the cost of all or any part of the development of regional infrastructure projects that equate to, in aggregate, at least 10% of the amounts so authorised.

(4) However, subsection (3) ceases to apply when amounts authorised by the Treasurer to be paid out of the Victorian Transport Fund to fund the cost of all or any part of the development of regional infrastructure projects equate to, in aggregate, 10% of the net transaction proceeds.

(5) There must be paid out of the Victorian Transport Fund amounts authorised by the Treasurer for the payment of costs and expenses incurred in—

(a) administering this Division; and

(b) monitoring and reporting on the financial operations and financial position of the Fund.

(6) In this section—

development includes plan, implement and deliver;

net transaction proceeds means the transaction proceeds paid into the Victorian Transport Fund under section 12(3) less any deductions made from the transaction proceeds under section 12(4);

regional, in relation to infrastructure, means a geographic area of Victoria that is within a municipal district of a Council or an alpine resort within the meaning of the Alpine Resorts Act 1983 that is defined as rural or regional Victoria under the Regional Development Victoria Act 2002;

relevant period means any of the following—

(a) the period of 4 years commencing on 1 July after the first lease or licence of land comprising port assets is granted to a private sector entity under section 11;

(b) each 4 years commencing on each subsequent 1 July.

16 Delegation of power to authorise payments

The Treasurer, by instrument, may delegate the Treasurer's power to authorise payments under section 15 to the Secretary to the Department of Treasury and Finance.

Part 3—Facilitating authorised transactions

Division 1—Premier's functions

17 Premier's functions

(1) The Premier has and may exercise all the functions that are necessary or convenient for the purposes of an authorised transaction.

(2) In addition, the Premier may act for or on behalf of the Port Corporation or a transaction entity in the exercise of any of its functions for the purposes of an authorised transaction while it is a public sector entity.

(3) The functions conferred on the Premier by any other provision of this Act do not limit the Premier's functions under this section.

18 Manner of effecting authorised transaction

(1) An authorised transaction is to be effected as directed by the Premier and may be effected in any manner the Premier considers appropriate.

(2) There are no limitations as to the kinds of transactions or arrangements that may be entered into or used for the purposes of an authorised transaction.

Example

An ownership structure involving a trust could be used for the purposes of an authorised transaction.

Division 2—Functions of the Port Corporation

19 Additional functions of the Port Corporation

(1) The Port Corporation has and may exercise all the functions that are necessary or convenient for the purposes of an authorised transaction.

(2) The functions conferred by this section are in addition to any other functions that the Port Corporation has apart from this section and those other functions do not prevent or otherwise limit the exercise of the additional functions conferred by this section.

Note

See also section 17(2).

20 Direction and control of the Port Corporation

(1) The Port Corporation is subject to the direction and control of the Premier in the exercise of any of its functions for the purposes of an authorised transaction.

(2) The Premier may give directions for the purposes of an authorised transaction to the Port Corporation and to the directors and other officers of the Port Corporation.

(3) The Port Corporation must comply with a direction given to it under subsection (2).

(4) A director or officer of the Port Corporation must comply with a direction given to the director or officer under subsection (2).

(5) The power to give a direction under subsection (2) extends to a direction relating to the way in which the Port Corporation is to carry out its functions.

(6) An action taken by the Port Corporation to comply with a direction of the Premier under subsection (2) does not require the approval of any other Minister.

21 Immunity of directors and officers of the Port Corporation

(1) A director or officer of the Port Corporation is not personally liable for anything done or omitted to be done—

(a) in complying with a direction given by the Premier under this Act; or

(b) in the reasonable belief that the act or omission was in compliance with a direction given by the Premier under this Act.

(2) Any liability resulting from an act or omission that would but for subsection (1) attach to a director or officer of the Port Corporation attaches instead to the State.

Division 3—Transaction entities

22 Establishment of statutory corporations as transaction entities

(1) The Governor in Council, on the recommendation of the Premier, may, by Order published in the Government Gazette, establish a statutory corporation by the name stated in the Order.

(2) An Order under subsection (1) may establish a corporation sole, constituted by the holder for the time being of an office or position in the public sector stated in the Order.

(3) An Order under subsection (1)—

(a) must state the particular purpose of establishing the corporation; and

(b) must state the functions of the corporation; and

(c) if the corporation is to be a subsidiary of a statutory corporation, must state that fact and the name of the particular statutory corporation; and

(d) if the corporation is to have a share capital, must state particulars of the share capital; and

(e) if the corporation is to have a board—

(i) must state the particulars of the constitution of the board; and

(ii) may include provision for the appointment of directors by the Governor in Council; and

(f) may include any other particulars relating to the establishment or operation of the corporation that the Governor in Council determines.

(4) A statutory corporation established under this section is a transaction entity for the purposes of this Act.

(5) A statutory corporation established under this section—

(a) is a body corporate with perpetual succession; and

(b) must have an official seal; and

(c) may sue and be sued; and

(d) may acquire, hold and dispose of real and personal property; and

(e) may do and suffer all things that a body corporate may by law do and suffer.

(6) All courts must take judicial notice of the seal
of a statutory corporation established under this section affixed to a document and, until the contrary is proved, must presume that it was duly affixed.

(7) The official seal must be kept in the custody that the statutory corporation directs and must not be used except as authorised by the statutory corporation.

(8) Shares in a statutory corporation must not be issued or dealt with except in accordance with an Order under this section.

23 Establishment of companies as transaction entities

(1) The Premier may, for the purposes of an authorised transaction, establish, or direct the establishment of, companies as transaction entities in any of the following ways—

(a) the formation or acquisition, or participation in the formation or acquisition, by or on behalf of the State or the Port Corporation of a company limited by shares, so that all the issued shares in the company are held by or on behalf of the State or the Port Corporation (or both);

(b) the formation or acquisition of a company as a wholly-owned subsidiary company of a transaction entity.

(2) A company established in accordance with this section is a transaction entity for the purposes of this Act.

24 Designation of subsidiary company of the Port Corporation as transaction entity

(1) The Premier, by notice published in the Government Gazette, may designate a subsidiary company of the Port Corporation to be a transaction entity for the purposes of this Act.

(2) A company designated under this section is a transaction entity for the purposes of this Act.

25 Transaction entity does not represent the State

Unless the Premier otherwise determines—

(a) a transaction entity is not and does not represent the State; and

(b) the debts, liabilities and obligations of a transaction entity are not guaranteed by the State.

26 Functions of transaction entities

(1) A transaction entity has and may exercise all the functions that are necessary or convenient for the purposes of an authorised transaction.

(2) The functions conferred by this section are in addition to any other functions that a transaction entity has apart from this section and those other functions do not prevent or otherwise limit the exercise of the additional functions conferred by this section.

Note

See also section 17(2).

27 Direction and control of transaction entities

(1) A transaction entity is subject to the direction and control of the Premier in the exercise of any of its functions for the purposes of an authorised transaction while it is a public sector entity.

(2) The Premier may give directions for the purposes of an authorised transaction to a transaction entity, and to the directors and other officers of a transaction entity.

(3) A transaction entity must comply with a direction given to it under subsection (2).

(4) A director or officer of a transaction entity must comply with a direction given to the director or officer under subsection (2).

(5) The power to give a direction under subsection (2) extends to a direction relating to the way in which the transaction entity is to carry out its functions or conduct its business or other affairs.

(6) A direction under subsection (2) can only be given to a transaction entity or its directors and other officers and is only required to be complied with while the transaction entity is a public sector entity.

(7) Action taken by a transaction entity to comply with a direction of the Premier under subsection (2) does not require the approval
of the voting shareholders of the entity or of any other Minister.

(8) The provisions of this section are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act in relation to the Corporations legislation.

Note

Section 5G of the Corporations Act provides that if a State law declares a provision of a State law to be a Corporations legislation displacement provision for the purposes of that section, any provision of the Corporations legislation with which the State provision would otherwise be inconsistent does not operate to the extent necessary to avoid the inconsistency.

28 Immunity of directors and officers of transaction entity

(1) A director or officer of a transaction entity is not personally liable for anything done or omitted to be done—

(a) in complying with a direction given by the Premier under this Act; or

(b) in the reasonable belief that the act or omission was in compliance with a direction given by the Premier under this Act.

(2) Any liability resulting from an act or omission that would, but for subsection (1), attach to a director or officer of a transaction entity attaches instead to the State.

Part 4—Arrangements for transfer of port assets

Division 1—Transfer orders

29 Making of transfer orders

The Premier, by order, may do either or both of the following—

(a) vest assets, rights and liabilities comprising port assets in a person specified in the order as the transferee for the purposes of an authorised transaction;

(b) divest assets, rights and liabilities comprising port assets from a public sector entity for the purpose of vesting those assets, rights and liabilities under a transfer order.

30 Vesting of assets, rights and liabilities in transferee

(1) When any assets, rights or liabilities are vested by a transfer order, the following provisions have effect (subject to the transfer order)—

(a) the assets vest in the transferee by virtue of this section and without the need for any conveyance, transfer, assignment or assurance;

(b) the rights and liabilities become, by virtue of this section, the rights and liabilities of the transferee;

(c) all proceedings relating to the assets, rights or liabilities pending by or against the transferor are taken to be proceedings pending by or against the transferee;

(d) the transferee has all the entitlements and obligations of the transferor in relation to the assets, rights and liabilities that the transferor would have had but for the order;

(e) any act, matter or thing done or omitted to be done in relation to the assets, rights or liabilities by, to or in relation to the transferor is (to the extent that the act, matter or thing has any force or effect) taken to have been done or omitted by, to or in relation to the transferee;

(f) a reference in any Act, in any instrument made under any Act or in any document of any kind to the transferor or a predecessor of the transferor is (to the extent that it relates to those assets, rights or liabilities but subject to the regulations) to be read as, or as including, a reference to the transferee.

(2) No attornment to the transferee by a lessee from the transferor is required.

31 Terms and conditions of transfer order

A transfer order may be made on the terms and conditions specified in the order.

32 Consideration for vesting

A transfer order may specify the consideration for which a vesting to which it applies is made and the value or values at which assets, rights and liabilities are vested.

33 Transfer subject to encumbrances

Unless the transfer order otherwise provides, if under the transfer order assets and rights vest in the transferee or liabilities become liabilities of the transferee—

(a) the assets and rights vested are subject to the encumbrances (if any) to which they were subject immediately before being vested; and

(b) the rights to which the transferor was entitled in relation to those liabilities immediately before they ceased to be liabilities of the transferor vest in the transferee.

34 Substitution of party to agreement

(1) This section applies if, under a transfer order, the rights and liabilities of the transferor under an agreement are transferred to the transferee.

(2) On the transfer date, the transferee becomes a party to the agreement in place of the transferor unless the transfer order requires otherwise.

35 Transfer of interests in land

(1) This section applies to the vesting under a transfer order of an interest in land under the Transfer of Land Act 1958.

(2) If, immediately before the vesting of the interest in land, the transferor was the registered proprietor of the interest under the Transfer of Land Act 1958, then on and after the transfer date—

(a) the transferee is taken to be the registered proprietor of that interest in land; and

(b) the transferee has the same rights and remedies in relation to that interest that the transferor had.

(3) This section applies despite anything to the contrary in any other Act or law (other than the Charter of Human Rights and Responsibilities).

(4) This section does not limit the generality of this Division.

36 Transfer of rights and interests in vehicles and recreational vessels

(1) This section applies to the vesting under a transfer order of the ownership or management of—

(a) a vehicle; or

(b) a recreational vessel.

(2) If, immediately before the vesting of the ownership or management of the vehicle or recreational vessel, the transferor was the owner or manager of that vehicle or recreational vessel, then on and after the transfer date—

(a) the transferee is taken to be the owner or manager of that vehicle or recreational vessel (as the case requires); and

(b) the transferee has the same rights and remedies in relation to that vehicle or recreational vessel that the transferor had.

(3) This section applies despite anything to the contrary in any other Act or law (other than the Charter of Human Rights and Responsibilities).

(4) This section does not limit the generality of this Division.

37 Confirmation of vesting

(1) The Premier, by order, may confirm a vesting or divesting of particular assets, rights and liabilities by operation of this Division.

(2) An order under subsection (1) is evidence of the vesting or divesting of the assets, rights or liabilities to which it applies.

38 Determinations by Premier

(1) The Premier may determine whether or not particular assets, rights or liabilities comprise port assets for the purposes of a transfer order.

(2) A determination under subsection (1) is evidence, and, in the absence of evidence to the contrary, proof, of the matters determined.

39 Amendment of Land Titles Register

(1) The Registrar of Titles, on being requested to do so and on delivery of any relevant certificate of title or instrument and any relevant transfer order, must make any amendments in the Register that are necessary because of the operation of this Division.

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

S. 40 (Heading) amended by No. 49/2019 s. 186(Sch. 4 item 11.1).

40 Amendment of vehicles register

S. 40(1) amended by Nos 49/2019 s. 186(Sch. 4 item 11.2), 25/2025 s. 106(Sch. 1 item 11).

(1) The Secretary to the Department of Transport and Planning, on being requested to do so, must make any recordings in the register in relation to any transferred vehicle that are necessary because of the operation of a provision of this Division.

S. 40(2) amended by Nos 49/2019 s. 186(Sch. 4 item 11.3), 25/2025 s. 106(Sch. 1 item 11).

(2) A current certificate of roadworthiness is not required to be obtained and given to the Secretary to the Department of Transport and Planning for a transferred vehicle for the purposes of subsection (1).

(3) In this section—

the register has the same meaning as in the Road Safety Act 1986;

transferred vehicle means a vehicle to which a transfer order applies and which is eligible to be registered under the Road Safety Act 1986.

41 Evidence

Documentary or other evidence that would have been admissible for or against the interests of the transferor in relation to assets, rights or liabilities transferred to the transferee is admissible for or against the interests of the transferee.

Division 2—Grant of relevant authorisations

42 Grant of relevant authorisations

(1) The Premier may give a direction to a public sector entity in relation to the grant of any relevant authorisation to a person who becomes or will become the new operator of any port assets under an authorised transaction.

(2) A direction under subsection (1) may include a direction for or in relation to any of the following—

(a) requiring the grant of a relevant authorisation without the need to make or determine an application;

(b) the conditions or endorsements subject to which any relevant authorisation is to be granted or that are to be attached to any relevant authorisation.

(3) A direction under subsection (1) may only be given under that subsection for the grant of a relevant authorisation that—

(a) operates to transfer or replace an existing relevant authorisation that is currently in force; and

(b) is subject to terms, conditions or endorsements that are the same (or to substantially the same effect) as those to which the relevant authorisation is subject.

(4) Before giving a direction to the public sector entity under subsection (1), the Premier must consult with—

(a) the Minister administering the Act under which the relevant authorisation is to be granted; and

(b) the public sector entity.

(5) A public sector entity under a relevant law must comply with a direction given to it under subsection (1).

(6) Anything done by a public sector entity (as the grantee of a relevant authorisation) in compliance with a term, condition or endorsement of a relevant authorisation in relation to port assets of which a person is the new operator is taken to have been done by the new operator for the purposes of any corresponding term, condition or endorsement of a relevant authorisation granted to the new operator as a result of a direction given under subsection (1).

(7) In this section—

grant includes give, issue and transfer;

new operator of port assets means—

(a) a public sector entity to which any port assets are transferred for the purposes of an authorised transaction; or

(b) a person (or the nominee of a person) in whom port assets are vested, or to whom port assets are transferred, pursuant to an authorised transaction;

relevant authorisation means a licence, permit, consent, entitlement, accreditation, approval, exemption or other authorisation under a relevant law;

S. 42(7) def. of relevant law amended by Nos 7/2017 s. 300, 26/2018 s. 91(2).

relevant law means any of the following Acts or provisions of Acts—

(a) the Marine and Coastal Act 2018;

(b) the Fisheries Act 1995;

(c) the Flora and Fauna Guarantee Act 1988;

(d) the Heritage Act 2017;

(e) section 27 of the National Parks Act 1975;

(f) the Planning and Environment Act 1987;

(g) the Port Management Act 1995;

(h) the Water Act 1989;

(i) the Wildlife Act 1975.

Part 5—Arrangements relating to transfer of Port Corporation staff

43 Definitions

In this Part—

casual employee means an employee of the Port Corporation whose employment is in a category of employment that is described in or classified under a relevant award as casual employment or who is otherwise engaged as a casual employee;

designated private sector employer means a private sector entity designated under an order under section 45;

employee of a public sector entity means a person employed by the public sector entity whether under Part 3 of the Public Administration Act 2004 or otherwise;

employment guarantee period, for a transferred employee who is a permanent employee or temporary employee, has the meaning given by section 44;

executive employee means an employee employed under an individual contract in an executive position within the Port Corporation;

permanent employee means an employee of the Port Corporation whose employment is of indefinite duration and who is not a casual employee, temporary employee or executive employee;

relevant award means any award, agreement or other industrial instrument (under a law of the State or the Commonwealth) that provides for the terms and conditions of employment of employees;

temporary employee means an employee of the Port Corporation (other than a casual employee or executive employee) whose employment is in a category of employment that is described in or classified under a relevant award as temporary employment or whose employment is, under the terms of the employee's employment, for a limited period;

transfer date means—

(a) in relation to an executive employee to whom an order under section 47 applies, the date on which the employment of the employee is transferred under that section to a designated private sector employer; and

(b) in relation to a permanent employee, temporary employee or executive employee who accepts an offer of employment with a designated private sector employer, the day on which the employee commences employment with that designated private sector employer;

transferred employee means—

(a) an executive employee to whom an order under section 47 applies; or

(b) a permanent employee, temporary employee or executive employee who is offered and accepts employment with a designated private sector employer in connection with an authorised transaction.

44 Meaning of *employment guarantee period*

The employment guarantee period for a transferred employee who is a permanent employee or temporary employee is as follows—

(a) for a permanent employee, a period of 2 years after the transfer date;

(b) for a temporary employee, a period that is the remainder of the employee's current term of employment (as specified in the arrangements under which the employee was engaged as a temporary employee) immediately before the transfer date or a period of 2 years after the transfer date, whichever period ends first.

45 Designation of a private sector employer

(1) The Premier, for the purposes of this Part, may, by order, designate a private sector entity as a designated private sector employer.

(2) The Premier must not make an order under subsection (1) unless the Premier is satisfied that the private sector entity will offer employment to a permanent employee, temporary employee or executive employee on terms and conditions no less favourable than those that apply to the employee as an employee of the Port Corporation.

46 Temporary transfers (secondments)

(1) The Premier, for the purposes of an authorised transaction, may, by order, temporarily transfer an employee of a public sector entity—

(a) to the service of another public sector entity; or

(b) to the service of a designated private sector employer.

(2) A person may be temporarily transferred under this section at the person's existing level of remuneration or at a higher level of remuneration.

(3) A person who is temporarily transferred under this section remains an employee of the public sector entity concerned (unless and until the person's employment is transferred under another provision of this Part or the person ceases to be an employee of the public sector entity).

47 Transfers to private sector employment of Port Corporation executive employees

(1) The Premier, for the purposes of an authorised transaction, may, by order, transfer the employment of an executive employee to the employment of a designated private sector employer.

(2) The Premier must not make an order under subsection (1) unless the Premier is satisfied that the designated private sector employer has offered employment to the executive employee on terms and conditions that are no less favourable than those that apply to the executive employee as an employee of the Port Corporation.

(3) On the transfer date, an executive employee specified in an order under subsection (1) is taken to be an employee of the designated private sector employer on the terms and conditions contained in the offer of employment by the designated private sector employer.

48 Limitation on changes to terms and conditions of transferred employees

(1) This section applies if—

(a) a permanent employee, temporary employee or executive employee is offered employment by a designated private sector employer; and

(b) the Premier is satisfied that the offer of employment with the designated private sector employer will be on terms and conditions that are no less favourable than those that apply to the employee
as an employee of the Port Corporation immediately before the transfer date; and

(c) the permanent employee, temporary employee or executive employee accepts that offer of employment.

(2) On the transfer date, the transferred employee's employment with the designated private sector employer is taken to be subject to the requirements under subsections (3) to (5).

(3) The terms and conditions of employment of a transferred employee who is a permanent employee or temporary employee cannot be varied during any employment guarantee period for the transferred employee except—

(a) by agreement entered into by or on behalf of the transferred employee; or

(b) following the proper application of reasonable disciplinary procedures.

(4) The terms and conditions of employment of a transferred employee who is an executive employee cannot be varied except by agreement entered into by or on behalf of the transferred employee.

(5) The employment of a permanent employee or temporary employee with the designated private sector employer cannot be terminated by the designated private sector employer during any employment guarantee period for the transferred employee, except—

(a) for serious misconduct pursuant to the proper application of reasonable disciplinary procedures; or

(b) by agreement with the employee.

49 Continuity of entitlements of transferred employees

(1) On and after the transfer date, the following provisions have effect—

(a) a transferred employee is entitled to continue as a contributor, member or employee for the purposes of any superannuation scheme in respect of which the employee was a contributor, member or employee (as an employee of the Port Corporation) immediately before the transfer date and remains so entitled subject to any variation to that entitlement made either by agreement or otherwise in accordance with law;

(b) a designated private sector employer who is a transferred employee's employer is taken to be an employer for the purposes of any superannuation scheme in respect of which the transferred employee continues as a contributor, member or employee pursuant to an entitlement under this section;

(c) the continuity of a transferred employee's contract of employment is taken not to have been broken by the employee ceasing to be an employee of the Port Corporation and commencing employment with a designated private sector employer and service of the employee with the Port Corporation (including service deemed to be service with the Port Corporation) that is continuous service up to the transfer date is taken for all purposes to be service with the designated private sector employer;

(d) a transferred employee retains any rights to sick leave, annual leave or long service leave accrued or accruing immediately before the transfer date (except accrued leave for which the employee has, on ceasing to be an employee of the Port Corporation, been paid the monetary value in pursuance of any other entitlement of the transferred employee).

S. 49(2) amended by No. 12/2018 s. 59.

(2) Nothing in the Long Service Leave Act 2018 prevents payment in connection with the commencement of employment of an employee of the Port Corporation with a designated private sector employer to which this Part applies of the monetary value of long service leave in lieu of an entitlement to that leave accrued as an employee of the Port Corporation before that commencement.

Part 6—Crown land for the purposes of authorised transactions

Division 1—Application of Part

50 Land Acts and certain land provisions do not apply

This Part applies despite anything to the contrary in the Land Act 1958, the Crown Land (Reserves) Act 1978, Part 4 of the Port Management Act 1995 or any other Act.

Division 2—Removal of reservations on land

51 Revocation of reservations

(1) If any Crown land permanently or temporarily reserved under the Crown Land (Reserves) Act 1978 is entirely within the port of Melbourne, the Premier, after consultation with the relevant land Ministers, may recommend to the Governor in Council that the reservation of that land be revoked in its entirety.

(2) On receiving the Premier's recommendation, the Governor in Council, by Order published in the Government Gazette, may revoke the following—

(a) any Order in Council reserving the land;

(b) any Crown grant, certificate of title or folio of the Register issued or created with respect to the land.

52 Revocation of reservations—part of reservation

(1) If any Crown land permanently or temporarily reserved under the Crown Land (Reserves) Act 1978 is entirely within the port of Melbourne, and if only part of the reservation of that land is to be revoked, the Premier—

(a) on receiving a plan of land signed by the Surveyor-General; and

(b) on being satisfied that the land shown on the plan represents that part of the reservation to be revoked; and

(c) after consultation with the relevant land Ministers—

may recommend to the Governor in Council that that part of the reservation be revoked.

(2) On receiving the Premier's recommendation, the Governor in Council, by Order published in the Government Gazette, may revoke the following—

(a) any Order in Council reserving the land;

(b) any Crown grant, certificate of title or folio of the Register issued or created with respect to the land—

to the extent that the Order in Council, Crown grant, certificate of title or folio relates to the land shown on the plan.

53 Effect of revocation of reservation

(1) This section applies to land referred to in an Order under section 51 or 52, on the publication of that Order in the Government Gazette.

(2) Subject to section 54, the land is taken to be unalienated land of the Crown and is freed and discharged from all trusts, limitations, reservations, restrictions, encumbrances, estates and interests.

(3) The appointment of any committee of management is revoked in so far as it applies to the land.

(4) Any regulations made under section 13 of the Crown Land (Reserves) Act 1978 are revoked in so far as they apply to the land.

54 Preservation of leases and licences

(1) Section 53 does not affect the status or continuity of any lease or licence of affected land existing immediately before the commencement of an Order under section 51 or 52 applying to that affected land and that lease or licence has effect—

(a) as the case requires, as a lease or licence between the Minister administering the Land Act 1958 as lessor or licensor and the lessee or licensee for the time being under the lease or licence, as if the lease or licence had been assigned to the Minister; and

(b) as if it referred to the Minister instead of to the lessor or licensor (however described).

(2) Section 53 does not affect the status or continuity of any sublease or sublicence existing over affected land at the date of commencement of an Order under section 51 or 52 applying to that affected land.

(3) Subject to subsection (4), the issue of a Crown grant of any land affected by a lease or licence and existing immediately before the date of issue of the Crown grant does not affect the status or continuity of the lease or licence of that land and that lease or licence has effect on and after the issue of the Crown grant—

(a) as the case requires, as a lease or licence between the person to whom the Crown grant is made as lessor or licensor and the lessee or licensee for the time being under the lease or licence, as if the lease or licence had been assigned to the person to whom the Crown grant is made; and

(b) as if the lease or licence referred to the person to whom the Crown grant is made instead of to the lessor or licensor (however described).

(4) If more than one Crown grant is issued of any land affected by a lease or licence and existing immediately before the date of issue of the Crown grants, the issue of the Crown grants does not affect the status or continuity of the lease or licence of that land and that lease or licence has effect on and after the issue of the Crown grants—

(a) as the case requires, as a lease or licence between the persons to whom the respective Crown grants are made as joint lessors or licensors and the lessees or licensees for the time being under the lease or licence, as if it had been assigned jointly to the persons to whom the respective Crown grants are made; and

(b) as if the lease or licence referred to the persons to whom the respective Crown grants are made instead of to the lessors or licensors (however described).

(5) The issue of a Crown grant in respect of any land affected by a lease or licence and existing immediately before the date of issue of the Crown grant does not affect the status or continuity of any sublease or sublicence existing over that land at the time of the issue of the Crown grant in respect of that land.

(6) This section has effect despite anything to the contrary in any Act or law or in a Crown grant of the land.

(7) In this section—

Act does not include the Charter of Human Rights and Responsibilities;

affected land means land to which an Order under section 51 or 52 applies;

lease includes an agreement or other interest arising under or in relation to a lease whether or not the lease has expired and an interest in the nature of a lease and sublease has a corresponding meaning;

licence includes an agreement or other interest arising under or in relation to a licence whether or not the licence has expired and an interest in the nature of a licence and sublicence has a corresponding meaning.

Division 3—Leasing and licensing of Crown land

55 Grant of lease or licence of Crown land for the purposes of an authorised transaction

(1) The Governor in Council, on behalf of the Crown, and on the recommendation of the Premier and the relevant land Ministers—

(a) may grant a lease of Crown land (other than a stratum of the port of Melbourne seabed) or a licence of any Crown land to a private sector entity or a public sector entity for the purposes of an authorised transaction; and

(b) may impose any conditions on the lease or licence; and

(c) may ratify or give effect to any partial surrender of a lease or licence by the lessee or licensee, if the lessee or licensee has the consent of any mortgagee and the holder of any charge over the lease or licence.

(2) The Governor in Council, on behalf of the Crown, and on the recommendation of the Premier after consultation with the relevant land Ministers—

(a) may grant a lease of a stratum of the whole, or a part, of that part of the port of Melbourne seabed identified in a determination under subsection (8) to a private sector entity or a public sector entity for the purposes of an authorised transaction; and

(b) may impose any conditions on the lease; and

(c) may ratify or give effect to any partial surrender of a lease by the lessee, if the lessee has the consent of any mortgagee and the holder of any charge over the lease.

(3) In imposing conditions on a lease or licence of a stratum of land under subsection (1) or (2), the Governor in Council must have regard to the following matters—

(a) if the land is not part of the port of Melbourne seabed—

(i) that reasonable access to and use of the stratum and other land be provided for; and

(ii) that the rights of the registered proprietor, lessee or licensee of other land not be interfered with; and

(iii) that the rights of support of the stratum or of other land or of any building or structure erected or to be erected on those lands be provided for;

(b) in all cases—

(i) that the making or maintenance of improvements by the lessee or licensee be provided for; and

(ii) that any necessary rights for the passage or provision of services (including drainage, sewerage or the supply of water, gas, electricity or telephone) to or through the stratum, where those rights are necessary for the reasonable enjoyment of the stratum or of other land be provided for.

(4) The granting of a lease or licence under this section of a stratum of land is conclusive proof of compliance with subsection (3)(a) and (b) with respect to the lease or licence.

(5) To avoid doubt, the partial surrender of a lease or licence ratified or given effect to under subsection (1)(c) or (2)(c) does not constitute the surrender in full of that lease or licence and does not affect the operation of the lease or licence in relation to any part of the leased or licensed land that is not surrendered.

(6) The term of a lease or licence granted to a private sector entity under this section, or if more than one lease or licence is granted to a private sector entity under this section, the aggregate period of the terms of those leases or licences, must not exceed the maximum period specified in section 11(2) in relation to a lease or licence granted to the private sector entity to which that section applies.

(7) A lease or licence granted under this section may be amended at any time with the consent of the lessee or licensee.

(8) The Premier, after consultation with the relevant land Ministers, may make a determination identifying a part of the port of Melbourne seabed for the purposes of subsection (2)(a).

Part 7—General

Division 1—General matters relating to authorised transactions

56 Severance of fixtures

(1) The Premier, by order, may, for the purposes
of an authorised transaction, direct that fixtures designated under this section are severed from the land on which they are situated.

(2) The effect of an order under subsection (1) is that the fixtures concerned are taken to be severed from the land on which they are situated and may be dealt with as personal property separate from the land for the purposes of an authorised transaction.

(3) The severance of a fixture from land under this section does not affect—

(a) the right to have the fixture continue to be situated on the land; or

(b) any right to drain water or sewage from the fixture across and through the land; or

(c) the right to use any means of drainage of water or sewage from the fixture across and through the land.

(4) The Premier, by order, may designate for the purposes of this section fixtures that are—

(a) port assets; and

(b) owned by the Port Corporation or another public sector entity; and

(c) situated on land owned by the Port Corporation or another public sector entity.

57 Protection of contractual and other obligations

(1) This section applies to the following—

(a) the operation of this Act (including any order under this Act and anything done or omitted to be done under or for the purposes of this Act);

(b) the vesting of port assets by a transfer order for the purposes of an authorised transaction;

(c) the entering into or performance of obligations under a transaction arrangement by a public sector entity;

(d) the disclosure of information by, or on behalf of, or with the consent of a public sector entity for the purposes of an authorised transaction.

(2) None of the matters or things to which this section applies—

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

(b) is to be regarded as placing any person in breach of or as constituting a default under, or as requiring any act to be done under, any Act or other law or obligation or any provision in any agreement, arrangement or understanding including, but not limited to, any provision or obligation prohibiting, restricting or regulating—

(i) the assignment, transfer, sale or disposal of any assets, rights or liabilities; or

(ii) the disclosure of any information; or

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

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

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

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

(g) releases a surety or other obligor wholly or partly from an obligation.

(3) In this section—

Act does not include the Charter of Human Rights and Responsibilities.

58 Compensation not payable

(1) Compensation is not payable by the State because of—

(a) the enactment or operation of this Act, or for any consequence of that enactment or operation; or

(b) any statement or conduct relating to the enactment of this Act.

(2) This section does not extend to compensation payable under a transaction arrangement in connection with the performance of obligations under the arrangement.

(3) In this section—

compensation includes damages or any other form of monetary compensation;

conduct includes any act or omission, whether unconscionable, misleading, deceptive or otherwise;

operation of this Act includes the operation of any order or direction under this Act and any agreement entered into under and for the purposes of this Act;

statement includes a representation of any kind—

(a) whether made verbally or in writing; and

(b) whether negligent, false, misleading or otherwise;

the State means the Crown and includes a public sector entity and an officer, employee or agent of the Crown or a public sector entity.

59 Port of Melbourne leases

(1) A provision of a port of Melbourne lease (or of any agreement or arrangement entered into in connection with a port of Melbourne lease) dealing with a matter set out in subsection (2) has effect according to its terms despite any law or rule to the contrary.

(2) The matters are—

(a) the payment of any amount by way of premium under the lease and the retention of any such amount by the lessor or the State; and

(b) the circumstances or conditions under which the lease may be terminated by the lessor or lessee (including a provision of a lease to the effect that it is only terminable in accordance with its terms and not at will); and

(c) the application of section 139, 144 or 146(2) or (4) of the Property Law Act 1958 to or in relation to the lease (or any lease under the lease); and

(d) the entitlement to, or the retention or application of, a security provided in relation to the lease; and

(e) the payment of a sum that is in the nature of a penalty; and

(f) the ownership of, or the vesting or forfeiture of ownership of, or a right or option to acquire, any real or personal property on termination of the lease or on the occurrence of some other specified event or other thing; and

(g) the pre-payment of amounts payable by way of rent under the lease and the retention of any such amounts by the lessor or the State; and

(h) the continuance of the lease despite the occurrence of unintended or unforeseen circumstances; and

(i) the continuance of the obligation to pay rent despite the occurrence of unintended or unforeseen circumstances; and

(j) the amount payable, or the non-payment of an amount, in consequence of a breach or early termination of the lease; and

(k) the liability of the lessor or lessee in relation to the leased assets; and

(l) the non-refundability of any payment made on account of rent, a premium, an option fee, outgoings, a security deposit or otherwise in relation to the lease; and

(m) the operation of any set-off.

(3) A port of Melbourne lease may include provision for the removal by the lessee of any fixture severable from the land leased.

(4) The Premier, by order, may designate a lease or licence of port assets as a port of Melbourne lease for the purposes of this section.

(5) In this section—

port of Melbourne lease means—

(a) a lease or licence of port assets entered into for the purposes of an authorised transaction; or

(b) a lease or licence of all or a part of the port of Melbourne seabed entered into for the purposes of an authorised transaction; or

(c) a lease or licence of port assets designated under subsection (4)—

and lessor and lessee have corresponding meanings.

Division 2—Compensation payments under authorised transaction related
agreements or deeds

Subdivision 1—Preliminary

60 Definitions

In this Division—

anchorage has the same meaning as in the Port Management Act 1995;

capacity expansion proposal means a proposal for a port or terminal capacity expansion;

Commission means the Essential Services Commission established under the Essential Services Commission Act 2001;

Dedicated Channels has the meaning given by section 45 of the Port Management Act 1995;

ESC Minister means the Minister administering Part 2 of the Essential Services Commission Act 2001;

existing port or terminal capacity means—

(a) infrastructure at the port of Melbourne, as at the commencement of this section, used to handle international containers; and

(b) infrastructure constructed at the port of Melbourne to handle international containers as part of the development declared in the nomination order under the Project Development and Construction Management Act 1994, dated 4 September 2012 and published in the Government Gazette on 7 September 2012;

handling, in relation to a container, includes loading, unloading, transporting or storing;

least cost capacity expansion principles Order means an Order made under section 72;

Port Growth Regime payment provision has the meaning given by section 61;

Port Growth Regime waiver provision has the meaning given by section 62;

port lessee means a lessee under a port of Melbourne lease;

port of Melbourne land has the same meaning as in the Port Management Act 1995;

port of Melbourne lease has the same meaning as in section 59;

port of Melbourne operator has the same meaning as in the Port Management Act 1995;

port or terminal capacity expansion means an expansion in the capacity of infrastructure, or development of new infrastructure, at the port of Melbourne to handle international containers;

Ports Minister means the Minister administering Part 6B of the Port Management Act 1995;

provision of channels has the same meaning as in the Port Management Act 1995;

relevant services means any of the following—

(a) the provision of channels (except anchorages) for use by shipping in port of Melbourne waters, including the Shared Channels used by vessels bound either for the port of Melbourne or for the port of Geelong and the Dedicated Channels used by vessels bound for the port of Melbourne;

(b) the provision of berths, buoys or dolphins in connection with the berthing of vessels in the port of Melbourne;

(c) the provision of short-term storage or cargo marshalling facilities in connection with the loading or unloading of vessels at berths, buoys or dolphins in the port of Melbourne;

(d) the provision of access to, or allowing the use of, places or infrastructure (including wharves, slipways, gangways, roads and rail infrastructure) on port of Melbourne land for the provision of services to port users;

Examples

Tanker, wharf and water inspection services, and security services, are kinds of services that are provided to port users on port of Melbourne land.

Shared Channels has the same meaning as in section 45 of the Port Management Act 1995;

State sponsored port has the same meaning as in section 49R of the Port Management Act 1995;

vessel has the same meaning as in the Marine Safety Act 2010.

61 Meaning of *Port Growth Regime payment provision*

(1) A Port Growth Regime payment provision is a provision that—

(a) is contained in an agreement or deed connected with an authorised transaction; and

(b) requires a public sector entity to make a payment (including a payment of damages or a lump sum) to an entity specified in subsection (2)—

(i) in relation to, or because of, or calculated by reference to the handling of international containers at a port in Victoria other than the port of Melbourne; or

(ii) in relation to, or because of, or calculated by reference to a factor that is a proxy for the handling of international containers at a port in Victoria other than the port of Melbourne; or

(iii) in relation to the development, or an announcement by the State of the proposed development, of international container facilities at a port in Victoria other than the Port of Melbourne.

Note

A public sector entity includes the State—see section 3.

(2) For the purposes of subsection (1), a specified entity is—

(a) the port of Melbourne operator; or

(b) an associated entity of the port of Melbourne operator; or

(c) any other person but only to the extent that the person receives the payment for the benefit of the port of Melbourne operator or an associated entity of the port of Melbourne operator.

62 Meaning of *Port Growth Regime waiver provision*

(1) A Port Growth Regime waiver provision is a provision that—

(a) is contained in an agreement or deed connected with an authorised transaction; and

(b) requires a public sector entity to waive a right to receive a payment, or forgo a payment, that would be otherwise payable to that entity by an entity specified in subsection (2)—

(i) in relation to, or because of, or calculated by reference to the handling of international containers at a port in Victoria other than the port of Melbourne; or

(ii) in relation to, or because of, or calculated by reference to a factor that is a proxy for the handling of international containers at a port in Victoria other than the port of Melbourne; or

(iii) in relation to the development, or an announcement by the State of the proposed development, of international container facilities at a port in Victoria other than the Port of Melbourne.

Note

A public sector entity includes the State—see section 3.

(2) For the purposes of subsection (1), a specified entity is—

(a) the port of Melbourne operator; or

(b) an associated entity of the port of Melbourne operator.

63 Relevant legislation for the purposes of the Essential Services Commission Act 2001

This Division is relevant legislation for the purposes of the Essential Services Commission Act 2001.

64 Ministerial guidelines about capacity expansion proposals

(1) The Ports Minister may issue guidelines about the form and content of a capacity expansion proposal.

(2) The guidelines must be published in the Government Gazette and made available for inspection free of charge at the office of the Ports Minister.

Subdivision 2—Restriction on compensation payments

65 Compensation not payable or capped in certain cases

(1) This section applies despite anything to the contrary in a Port Growth Regime payment provision or Port Growth Regime waiver provision or under any rule of, or principle at, law.

(2) A public sector entity must not make any payment under a Port Growth Regime payment provision, or waive a right to receive a payment, or forgo a payment, that would be otherwise payable to it under a Port Growth Regime waiver provision, in respect of any period unless—

(a) international containers are handled at a port in Victoria other than the port of Melbourne during the period—

(i) commencing on the commencement of this section; and

(ii) ending on the day that is 15 years after the day on which the first lease or licence of land comprising port assets is granted to a private sector entity under section 11; and

(b) the Port Growth Regime payment provision or Port Growth Regime waiver provision is expressed to apply to, or to be in respect of, the handling of international containers at a port in Victoria other than the port of Melbourne during the period referred to in paragraph (a).

(3) In addition but subject to subsection (4), a public sector entity must not make a payment under a Port Growth Regime payment provision, or waive a right to receive a payment, or forgo a payment, that would be otherwise payable to it under a Port Growth Regime waiver provision, other than in respect of—

(a) existing port or terminal capacity; or

(b) a port or terminal capacity expansion the proposal for which has been approved under section 66 or certified under section 68.

(4) A public sector entity must not pay any amount in respect of any payment under a Port Growth Regime payment provision, or waive the right to any amount, or forgo any amount, that would be otherwise payable to it under a Port Growth Regime waiver provision, as permitted under subsection (2) or (3), the values of which, in aggregate, exceed the capped amount.

(5) A public sector entity is not to be regarded as breaching or being in default of, or repudiating or terminating, an agreement or deed connected with an authorised transaction by relying on this section and—

(a) not making a payment under a Port Growth Regime payment provision; or

(b) not waiving the right to any amount, or forgoing any amount, that would be otherwise payable to it under a Port Growth Regime waiver provision.

(6) To avoid doubt, subsection (4) does not affect any obligation a public sector entity has to make a payment of an amount under a Port Growth Regime payment provision, or waive the right to any amount, or forgo any amount, that would be otherwise payable to it under a Port Growth Regime waiver provision, if the value of any amounts in aggregate, are less than or equal to the capped amount.

(7) In this section—

capped amount means—

(a) for the first financial year in respect of which the first payment under a Port Growth Regime payment provision is due, or the first financial year in respect of which the right to the payment of an amount has been waived, or a payment has been forgone, under a Port Growth Regime waiver provision, as permitted under subsection (2) or (3)—the amount equating to 15% of all revenue earned by the port of Melbourne operator by providing relevant services in the financial year immediately preceding that year; and

(b) for each subsequent financial year, the amount determined in accordance with the following formula—

View image in the official source

where—

A is the capped amount for the financial year;

B is the CPI number published for the quarter ending immediately before 1 July of the financial year;

C is the CPI number published for the quarter ending immediately before 1 July of the previous financial year;

D is—

(a) for the first financial year after the financial year to which paragraph (a) applies, the capped amount referred to in that paragraph; and

(b) for each subsequent financial year, the amount determined in accordance with this formula for the previous financial year;

CPI number means the Consumer Price Index (All Groups Index Number weighted average of eight capital cities) published by the Australian Bureau of Statistics (or any other index published in substitution for that index).

Subdivision 3—Approval of capacity expansion proposals by Minister

66 Approval of material increases in capacity for the handling of international containers at the port of Melbourne

(1) Subject to this section, a port lessee or the port of Melbourne operator (a proponent) may submit a capacity expansion proposal to the Ports Minister.

(2) A capacity expansion proposal that is submitted under subsection (1) must only be for a material port or terminal capacity expansion.

(3) A capacity expansion proposal cannot be submitted under subsection (1) for a port or terminal capacity expansion in respect of which works have commenced.

(4) If there are guidelines in effect under section 64 in respect of the form and content of a capacity expansion proposal, the proponent must submit a capacity expansion proposal under subsection (1) that accords with the guidelines.

(5) On receiving a capacity expansion proposal, the Ports Minister may approve or refuse to approve the proposal.

(6) The Ports Minister must make a decision under subsection (5) within 6 months after receiving the capacity expansion proposal.

(7) The Ports Minister must—

(a) notify, in writing, the proponent of the Minister's decision under subsection (5) and give the proponent the Minister's written reasons for the decision; and

(b) as soon as practicable after that, publish—

(i) notice of the making of a decision under subsection (5) in the Government Gazette and on the Department's Internet site; and

(ii) a decision under subsection (5) (including the reasons for the decision) on the Department's Internet site.

(8) An approval of a capacity expansion proposal under this section is not to be regarded as—

(a) authorising or approving, or not authorising or approving, works for the port or terminal capacity expansion to which the proposal relates; or

(b) requiring any person to commence works for a port or terminal capacity expansion to which the proposal relates.

Subdivision 4—Certification of capacity expansion proposals by Commission

67 Application

This Subdivision applies if the Ports Minister—

(a) refuses to approve a capacity expansion proposal under section 66; or

(b) fails to make a decision under that section within the time required by that section.

68 Application for certification

S. 68(1) substituted by No. 41/2021 s. 123.

(1) The person who submitted the capacity expansion proposal to the Ports Minister (the applicant) may apply to the Commission for it to certify the proposal if—

(a) the Minister has refused to approve the proposal; or

(b) the Minister has failed to make a decision under section 66 within the time required by that section.

S. 68(1A) inserted by No. 41/2021 s. 123.

(1A) An application under subsection (1) must be made—

(a) if the Ports Minister has refused to approve the proposal, within 3 months after the refusal; or

(b) if the Ports Minister has failed to make a decision under section 66, within 3 months after the time the Minister was required to make the decision by that section.

(2) An application must attach a copy of the capacity expansion proposal.

(3) If there are guidelines in effect under section 64 in respect of the form and content of a capacity expansion proposal, the capacity expansion proposal that the applicant attaches to the application must accord with the guidelines.

69 Decision on certification by Commission

S. 69(1) amended by No. 41/2021 s. 124.

(1) Subject to this section, the Commission must, not later than 3 months after receiving an application under section 68, decide whether to certify the proposal.

(2) In deciding whether to certify a capacity expansion proposal, the Commission must apply the principles specified in the least cost capacity expansion principles Order.

(3) If the Commission is satisfied that the capacity expansion proposal is the least cost means of expanding the capacity of infrastructure, or developing new infrastructure, to handle international containers at a port in Port Phillip Bay or Western Port Bay, the Commission must certify the proposal.

(4) Section 35(1) to (3) and (5) of the Essential Services Commission Act 2001 applies to a decision of the Commission under this section as if the decision were a determination to which section 35 applies.

(5) The Commission must also give a copy of its decision to the Ports Minister.

(6) A decision to certify a capacity expansion proposal under this section is not to be regarded as—

(a) authorising or approving, or not authorising or approving, works for the port or terminal capacity expansion to which the proposal relates; or

(b) requiring any person to commence works for a port or terminal capacity expansion to which the proposal relates.

(7) The Commission is not subject to the direction or control of the ESC Minister in respect of any decision it makes under this section.

70 Inquiries for the purposes of decisions on certification

(1) For the purpose of making a decision under section 69, the Commission must conduct and complete an inquiry into the capacity expansion proposal.

(2) Before commencing an inquiry, the Commission must notify the Ports Minister that it will be conducting an inquiry under this section.

S. 70(3) substituted by No. 41/2021 s. 125.

(3) Part 4 (other than sections 37, 39 and 39B), Part 4A and sections 43 (other than subsections (4)(a) and (6)(b) of that section), 60C and 60D of the Essential Services Commission Act 2001 apply to an inquiry under this section.

71 Draft report to be provided to applicant

The Commission must—

(a) provide a draft of a report on an inquiry under this Subdivision to the applicant; and

(b) give the applicant an opportunity to make a written submission to the Commission on that draft report before the Commission makes its decision under section 69.

Subdivision 5—Least cost capacity expansion principles Order

72 Least cost capacity expansion principles Order

The Governor in Council, by Order published in the Government Gazette, may specify principles for the purposes of Subdivision 4.

73 When a least cost capacity expansion principles Order takes effect

A least cost capacity expansion principles Order takes effect—

(a) on the day the Order is published in the Government Gazette; or

(b) if a later day is specified in the Order, on that day.

74 Limitation on amending or revoking a least cost capacity expansion principles Order

A least cost capacity expansion principles Order cannot be amended or revoked except in accordance with this Subdivision.

75 Circumstances in which a least cost capacity expansion principles Order may be amended

Subject to section 76, a least cost capacity expansion principles Order may only be amended with the agreement of the port lessee.

76 Circumstances in which a least cost capacity expansion principles Order may be wholly revoked

A least cost capacity expansion principles Order may be wholly revoked by an Order made under section 72—

(a) if the port lessee agrees to the revocation; or

(b) after the first lease of land comprising port assets granted to a private sector entity under section 11 ends.

Division 3—Operation of other laws

77 Excluded matter for Corporations Act

Anything done by the Premier under this Act is declared to be an excluded matter for the purposes of section 5F of the Corporations Act in relation to Chapter 2D of the Corporations Act.

Note

This section ensures that Chapter 2D of the Corporations Act will not apply to anything done by the Premier. Section 5F of the Corporations Act provides that if a State law declares a matter to be an excluded matter in relation to specified provisions of the Corporations legislation, then those provisions will not apply to that matter in the State concerned.

78 State taxes and fees

(1) A State tax or fee is not chargeable or applicable in relation to a relevant matter if that relevant matter—

(a) relates only to a public sector entity; or

(b) is a matter to which only public sector entities are parties.

(2) A State tax or fee is not payable by a person or body (other than a public sector entity) in relation to a relevant matter to the extent (if any) that the Premier, by order, directs, either generally or in a particular case.

(3) An order may be made under subsection (2) before or after the liability to pay the State tax or fee concerned accrues.

(4) An order under subsection (2) may specify the date of completion of an authorised transaction.

(5) The Premier must give a copy of an order under subsection (2) to the Commissioner of State Revenue or other person or entity to whom the State tax or fee would be payable but for the order.

(6) The Premier may certify, in writing, any of the following things as a relevant matter—

(a) a thing that the Premier considers has been done in consequence of a vesting of assets, rights or liabilities by virtue of Part 4;

(b) a transaction occurring within 6 months after the designated date of completion of an authorised transaction that the Premier considers has been entered into in connection with the transfer of port assets to a private sector entity pursuant to the authorised transaction.

(7) In this section—

relevant matter means any of the following—

(a) an authorised transaction;

(b) a transaction arrangement;

(c) the issue, disposal or purchase of shares, units in a unit trust or other securities in or issued by a company for the purposes of an authorised transaction;

(d) a vesting of assets, rights or liabilities by virtue of Part 4;

(e) a thing certified by the Premier under subsection (6);

(f) any other matter for the purposes of an authorised transaction that is prescribed by the regulations;

State tax or fee means duty under the Duties Act 2000 or any other tax, duty, fee or charge imposed by or under any other Act.

79 Application of Borrowing and Investment Powers Act 1987

The Borrowing and Investment Powers Act 1987 does not apply to an authorised transaction.

80 Operation of Public Administration Act 2004

Nothing in this Act affects the operation of the Public Administration Act 2004.

81 Operation of State Owned Enterprises Act 1992

Nothing in this Act affects the operation of the State Owned Enterprises Act 1992.

82 Operation of Transport Integration Act 2010

Nothing in the Transport Integration Act 2010 operates to prevent, restrict or otherwise limit the carrying out of a transaction arrangement or the exercise of any function for the purposes of an authorised transaction.

83 No land tax is payable

No land tax is payable under the Land Tax Act 2005 in respect of Crown land that is the subject of a lease entered into for the purposes ofan authorised transaction.

84 Rates under Local Government Act 1989

Crown land that is the subject of a lease entered into for the purposes of an authorised transaction is not rateable land within the meaning of section 154 of the Local Government Act 1989.

85 Inconsistency with prescribed legislation

(1) In the event of any inconsistency between the provisions of this Act or the regulations and a provision of any other Act or a regulation under any other Act that is prescribed by the regulations as an inconsistent provision for the purposes of this section, the provisions of this Act or the regulations (as the case may be) prevail to the extent of the inconsistency.

(2) In this section—

Act does not include the Charter of Human Rights and Responsibilities.

Division 4—Miscellaneous

86 Delegation

The Premier, by instrument, may delegate any of the Premier's functions under this Act, except this power of delegation, to any of the following persons—

(a) the Special Minister for State;

(b) the Secretary to the Department of Premier and Cabinet;

(c) a person (other than the Secretary) employed under Part 3 of the Public Administration Act 2004 in the Department of Premier and Cabinet as an executive within the meaning of that Act.

87 Orders

(1) An order made by the Premier under this Act must be in writing.

(2) An order made by the Premier under this Act takes effect on the day on which it is made or if it specifies a later day, that day.

(3) A document purporting to be an order made by the Premier under a provision of this Act is, unless the contrary is established, taken to be such an order and to have been properly made.

Division 5—Regulations

88 Regulations

(1) The Governor in Council may make regulations for or with respect to any matter required or permitted by this Act to be prescribed or necessary or convenient to be prescribed to give effect to this Act.

(2) The regulations may—

(a) be of general or limited application; and

(b) differ according to differences in time, place or circumstances; and

(c) confer a discretionary authority or impose a duty on a specified person or a specified class of person.

Pt 8
(Headings and ss 89–174) repealed by No. 10/2016 s. 174.

Pt 9 (Headings and ss
175–180) repealed by No. 10/2016 s. 180.

Sch. 1 repealed by No. 10/2016 s. 180.

═══════════════

Endnotes

1 General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

Minister's second reading speech—

Legislative Assembly: 27 May 2015

Legislative Council: 25 June 2015

The long title for the Bill for this Act was "A Bill for an Act to authorise and facilitate the leasing of land in the port of Melbourne and disposal of assets of the Port of Melbourne Corporation to a private sector entity, to establish the Victorian Transport Fund, to make related amendments to the Transport Integration Act 2010, the Port Management Act 1995, the Marine Safety Act 2010, the Essential Services Commission Act 2001 and consequential amendments to other Acts and for other purposes."

The Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 was assented to on 22 March 2016 and came into operation as follows:

Parts 1–7 (sections 1–88) on 5 April 2016: Special Gazette (No. 86) 5 April 2016 page 1; sections 94(1)(b)(2), 95–98, 103–122, 131–153, 155–174 on 7 June 2016: Special Gazette (No. 177) 7 June 2016 page 1; sections 94(1)(a), 99–102, 123–130, 154 on 1 July 2016: Special Gazette (No. 177) 7 June 2016 page 1; Part 8 Division 1 (sections 89–93) on 31 October 2016: Special Gazette (No. 325) 25 October 2016 page 1; Part 9 (sections 175–180) and Schedule 1 on 1 November 2016: Special Gazette (No. 325) 25 October 2016 page 1.

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

• Headings

All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).

• Examples, diagrams or notes

All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).

• Punctuation

All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).

• Provision numbers

All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).

• Location of "legislative items"

A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.

• Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act.
See section 36(3)(3D)(3E).

2 Table of Amendments

This publication incorporates amendments made to the Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016, No. 10/2016

Heritage Act 2017, No. 7/2017

Long Service Leave Act 2018, No. 12/2018

Marine and Coastal Act 2018, No. 26/2018

Transport Legislation Amendment Act 2019, No. 49/2019

Essential Services Commission (Compliance and Enforcement Powers) Amendment Act 2021, No. 41/2021

Transport Legislation Amendment (Port Reforms and Other Matters) Act 2022, No. 19/2022

Roads and Ports Legislation Amendment (Road Safety and Other Matters) Act 2025, No. 25/2025

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

3 Explanatory details

No entries at date of publication.