65Compensation not payable or capped in certain cases

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.