Part 5Harbors and ports

Part 5—Harbors and ports Division A1—Declaration and constitution of harbors and ports 27A—Declaration of harbor over area in private ownership (1) Subject to this section, a harbor may be declared in respect of a place, land or waters that is wholly or partly in private ownership. (2) No regulation declaring a harbor or part of a harbor over a place, land or waters that are wholly or partly in private ownership may be made unless the Minister has obtained the agreement of the private owner of the place, land or waters. 27B—Constitution of port comprising land or waters in private ownership (1) Subject to this section, land and waters constituted as a port may comprise land or waters that are wholly or partly in private ownership. (2) No regulation constituting a port comprising land or waters that are wholly or partly in private ownership may be made unless the Minister has obtained the agreement of the private owner of the land or waters. Division 1—Control and management of harbors and ports 28—Control and management of harbors Subject to this Part, the Minister has the control and management of all harbors in the State. 28A—Power to assign control and management of ports (1) The Minister may, by agreement, confer on another (the proprietor) the right to carry on the business of operating a particular port. (2) The proprietor must then enter into an agreement (a port operating agreement) under which the Minister assigns the control and management of the port to the proprietor or a nominee of the proprietor unless— (a) the Minister and the proprietor enter into an agreement under which the Minister is to continue to have the control and management of the port; or (b) the proprietor has committed a serious breach of a port operating agreement and the Minister has cancelled or refused to renew the agreement on that ground. (3) If the Minister has the control and management of a port, the Minister may, subject to the terms of any agreement between the Minister and the proprietor, recover the costs of operating the port from the proprietor. 28B—Port operating agreements (1) A port operating agreement is an agreement providing for the control and management of the port to which the agreement relates by the person (the port operator) to whom the control and management of the port is assigned under the agreement. (2) A port operating agreement— (a) must require the port operator to have appropriate resources (including appropriate contingency plans and trained staff and equipment to carry the plans into action) to deal with emergencies; and (b) must require the port operator— (i) to maintain the waters of the port to a specified navigable standard; and (ii) to provide or maintain (or provide and maintain) navigational aids; and (iii) to direct and control vessel movement in port waters; and (c) may require the port operator to enter into and maintain in operation an agreement with the Royal Australian Navy about access to the port and port facilities by naval vessels; and (d) may require the port operator to provide access to the port and port facilities for commercial fishing vessels on specified terms and conditions; and (e) may require the port operator to maintain and make available navigational charts and other information relating to the port; and (f) may regulate the performance of statutory powers by the port operator; and (g) may provide for the payment of an annual fee to the Minister (fixed by the Minister having regard to the cost of providing government supervision of the activities conducted under the agreement); and (h) may deal with any other matter relevant to the control and management of the port. 28C—General responsibility of port operator (1) A port operator is responsible for the safe operation of the port. 28D—Variation of port operating agreement The Minister may, by agreement with the port operator, vary a port operating agreement. 28E—Agreements to be tabled in Parliament The Minister must, as soon as practicable after entering into a port operating agreement or an agreement for the variation of a port operating agreement, have copies of the agreement laid before both Houses of Parliament. 28F—Power to deal with non-compliance (1) The Minister may take disciplinary action against a port operator for non-compliance with a port operating agreement or this Act. (2) The disciplinary action may consist of— (a) a reprimand; or (b) a fine not exceeding a limit fixed in the port operating agreement; or (c) cancellation of the port operating agreement. (3) Before the Minister takes disciplinary action against a port operator under this section, the Minister must give written notice to the port operator— (a) specifying the non-compliance; and (b) stating the disciplinary action the Minister proposes to take in respect of the non-compliance; and (c) allowing the port operator a reasonable opportunity to make written representations. (4) After considering the port operator's representations, the Minister may— (a) refrain from taking disciplinary action; or (b) by written notice to the port operator— (i) administer a reprimand; or (ii) impose a fine (to be recoverable as a debt due to the Crown) of an amount stated in the earlier notice or of a lesser amount; or (iii) if cancellation of the port operating agreement was proposed in the earlier notice— (A) impose a fine not exceeding the maximum permissible under the port operating agreement; or (B) cancel the port operating agreement. (5) A port operator may apply to the Tribunal under section 34 of the South Australian Civil and Administrative Tribunal Act 2013 for a review of a decision of the Minister to take disciplinary action against the port operator under this section. (5a) For the purposes of proceedings before the Tribunal under this section, a panel of assessors must be established under section 22 of the South Australian Civil and Administrative Tribunal Act 2013 consisting of persons with expertise that would be of value to the Tribunal in relation to the proceedings. (5b) In any proceedings under this section, the Tribunal may, if the President of the Tribunal so determines, sit with 1 or more assessors. (5c) Section 37(1)(c)(ii) of the South Australian Civil and Administrative Tribunal Act 2013 does not apply in relation to a review of a decision of the Minister to take disciplinary action against a port operator under this section. (7) The port operating agreement may contain provisions governing the exercise of the Minister's powers under this section. 28G—Power to appoint manager (1) If— (a) a port operator is seriously in breach of its obligations under a port operating agreement; or (b) a port operating agreement is cancelled or expires without renewal, the Minister may appoint an official manager to operate the port. (2) If a port operator— (a) becomes insolvent; or (b) goes into liquidation, the Minister may appoint an official manager to operate the port. (3) An appointment under subsection (1) or (2) may be terminated at any time by the Minister. (4) The port operating agreement may contain provisions governing the exercise of the Minister's powers under this section. (5) In this section, becoming insolvent has the same meaning as in the prescribed provision under the Corporations Act 2001 of the Commonwealth. 28H—Powers of the manager (1) The official manager— (a) is to assume the control and management of the port; and (b) is entitled to possession and control of property of the port operator (or former port operator)— (i) used for the purpose of operating the port; and (ii) defined in the port operating agreement as property subject to the application of this paragraph; and (c) is, while the appointment continues in force, taken to be the port operator. (2) Any proceeds of the business while under official management are to be applied as follows: (a) first, the proceeds are to be applied towards the costs of official management (including the official manager's remuneration); and (b) secondly, a reasonable rental for the property over which the manager has assumed control is to be paid out of the proceeds while the property remains in the manager's possession; and (c) thirdly, any remaining balance is to be paid into the Consolidated Account. (3) A port operating agreement may exclude or modify the provisions of subsection (1) or (2). (4) The regulations may confer powers and impose duties on official managers and regulate official management in other ways. Division 2—Port management officers 29—Port management officers (1) A port operator may appoint officers or employees of the operator to be port management officers. (2) The port operator must issue to each port management officer appointed by it an identity card— (a) containing a photograph of the officer; and (b) stating the name of the port for which the officer is appointed; and (c) stating any conditions of appointment limiting the officer's authority. (3) A port management officer must, at the request of any person in relation to whom the officer is exercising or about to exercise powers under this Act, produce the officer's identity card for inspection by that person. Division 2AA—Harbor rules 29AA—Harbor rules (1) The Minister may, by notice in the Gazette, issue rules (the harbor rules) in relation to the operation of a relevant harbor. (2) The harbor rules may address the following matters: (a) activities that may or may not be undertaken by persons or vessels; (b) the priority and safety of movement of vessels; (c) maximum size limits for vessels; (d) minimum keel clearances for vessels; (e) requirements for anchoring and berthing of vessels; (f) competence and training rules for operators of vessels; (g) limits on operating vessels in specified weather conditions; (h) requirements for communication equipment on vessels; (i) requirements for communication with a relevant person; (j) the keeping of records by operators of vessels; (k) requirements for providing specified documents to a relevant person at a specified time, or in a specified manner; (l) the reporting of incidents and hazards; (m) the removal of vessels or any other thing from a relevant harbor on the request of the Minister or an authorised person; (n) any other matter the Minister thinks relevant to the operation of a relevant harbor. (3) The Minister may, by subsequent notice in the Gazette, amend or repeal a notice under this section. (4) A provision of the harbor rules— (a) may be of general, limited or varied application according to the class of person or vessel, the relevant harbor, the circumstances or any other specified factor to which the provision is expressed to apply; and (b) may provide that a matter or thing in respect of which a rule may be made is to be determined according to the discretion of the Minister or an authorised person. (5) A harbor rule applies despite any other provision in a by‑law made by a council under section 18A (and, to avoid doubt, if there is an inconsistency between a provision in a harbor rule and a provision in a by‑law, the provision in the harbor rule will prevail to the extent of the inconsistency). (6) The Minister must cause the harbor rules to be made publicly available on a website maintained by the Minister. (7) A person who contravenes a harbor rule is guilty of an offence. (8) In this section— relevant harbor means— (a) a harbor that is not a port; or (b) a part of a harbor that is not within a port; or (c) a harbor or part of a harbor that is not subject to a port operating agreement; or (d) a harbor that is under the care, control and management of the Minister; relevant person means 1 or any of the following: (a) the CE; (b) the department; (c) an authorised person; (d) a port operator; (e) the operator of a vessel; (f) any other person the Minister thinks relevant to the operation of a relevant harbor.