PORTS MANAGEMENT REGULATIONS 2015 (Northern Territory)

These Regulations implement detailed operational, procedural and reporting rules under the Ports Management Act 2015 by prescribing pilotage, port access and price-monitoring requirements, a civil infringement notice regime, and miscellaneous obligations for incident reporting and record keeping. Mechanically, the instrument:

Prescribes duties of a vessel master in relation to taking a licensed pilot on board and makes failure to prepare the vessel an offence with a maximum penalty of 50 penalty units (reg 4(2), (2)-(4)).
Sets out the matters to be taken into account by port operators or pilotage authorities when issuing or renewing pilotage licences and pilotage exemption certificates, and prescribes fees for applications and variations (reg 5; reg 7).
Identifies the services provided by private port operators that count as "prescribed services" for the Act’s access and pricing provisions (reg 12), and specifies detailed content and process requirements for private port operators’ access policies, including steps for negotiation, mediation and arbitration of access disputes (reg 13).
Establishes the form of price regulation as monitoring, not rate-setting, and prescribes consultation, notice and disclosure obligations when private port operators or private pilotage providers change charges. It obliges reporting by operators and providers and requires the Utilities Regulator to have regard to cyclical demand and price stability when making price determinations (reg 16; reg 17).
Creates an infringement notice regime for certain contraventions of the Ports Management Act specified in the Schedule, describes who may issue notices, required contents of notices, payment mechanics and withdrawal, and links the recovery consequences to the Fines and Penalties (Recovery) Act 2001 (regs 19-24; Schedule).

NORTHERN TERRITORY OF AUSTRALIA PORTS MANAGEMENT REGULATIONS 2015 As in force at 30 July 2020 Table of provisions Part 1 Preliminary matters 1 Citation ............................................................................................ 1 2 Commencement .............................................................................. 1 3 Definitions ........................................................................................ 1 Part 2 Pilotage Division 1 Duties of master 4 Taking pilot on board ....................................................................... 2 Division 2 Pilotage licences and pilotage exemption certificates 5 Issue and renewal of pilotage licence or exemption certificate ........ 2 6 Variation of conditions ..................................................................... 3 7 Fees ................................................................................................ 3 Division 3 Licensed pilots 8 Medical fitness of licensed pilot ....................................................... 4 9 Tugs under pilot's orders ................................................................. 4 11 Complaints against licensed pilots................................................... 4 Part 3 Port access and price monitoring 12 Prescribed services ......................................................................... 4 13 Requirements in relation to access policies ..................................... 5 14 Guidelines on reporting in relation to access policies .................... 10 16 Price determinations ...................................................................... 10 17 Procedure on making a price determination .................................. 12 18 Power to negotiate charges ........................................................... 13 Part 4 Infringement notice offences 19 Infringement notice offence and prescribed amount payable ........ 13 20 When infringement notice may be given ........................................ 13 21 Contents of infringement notice ..................................................... 13 22 Payment by cheque ....................................................................... 14 23 Withdrawal of infringement notice.................................................. 14

Ports Management Regulations 2015 ii 24 Application of this Part ................................................................... 15 Part 5 Miscellaneous matters 25 Reportable incidents ...................................................................... 15 26 Record-keeping and reporting obligations ..................................... 16 27 Port management officers.............................................................. 18 28 Pilotage services provider ............................................................. 18 Schedule Infringement notice offences and prescribed amounts ENDNOTES

NORTHERN TERRITORY OF AUSTRALIA

As in force at 30 July 2020

PORTS MANAGEMENT REGULATIONS 2015 Regulations under the Ports Management Act 2015 Part 1 Preliminary matters 1 Citation These Regulations may be cited as the Ports Management Regulations 2015. 2 Commencement These Regulations commence on 1 July 2015. 3 Definitions In these Regulations: access dispute means a dispute between a private port operator and a port user relating to access by the port user to a prescribed service at the designated port of the operator, including a dispute as to the price at which, or other terms on which, access will be provided. access request means a written request by a port user made in accordance with a private port operator's access policy for access to any prescribed service at the designated port of the operator, including a request to alter or add to port facilities. aid, see section 93 of the Act. infringement notice, see regulation 20. infringement notice offence, see regulation 19(1). prescribed amount, see regulation 19(2). price determination, see section 132(1) of the Act. vessel, see section 63 of the Act.

Part 2 Pilotage Division 2 Pilotage licences and pilotage exemption certificates Ports Management Regulations 2015 2 Part 2 Pilotage Division 1 Duties of master 4 Taking pilot on board (1) This regulation applies if: (a) the master of a vessel approaching a compulsory pilotage area intends that the vessel will enter that area; or (b) a vessel is at a boarding ground. (2) The master of the vessel commits an offence if a licensed pilot is approaching the vessel and the master fails to ensure the vessel is made ready to take the licensed pilot on board by: (a) creating a lee; and (b) providing on the lee side, adequately lit at night, a pilot ladder, mechanical hoist or other safe means of access; and (c) arranging for all scuppers, sanitary and other refuse outlets in the vicinity of the means of access to be closed. Maximum penalty: 50 penalty units. (3) An offence against subregulation (2) is an offence of strict liability. (4) It is a defence to a prosecution for an offence against subregulation (2) if the defendant has a reasonable excuse. Division 2 Pilotage licences and pilotage exemption certificates 5 Issue and renewal of pilotage licence or exemption certificate For section 76(1) of the Act: (a) the matters of which the port operator for a pilotage area within the Port of Darwin must be satisfied are: (i) for an application for the issue or renewal of a pilotage licence – the matters relevant to those applications set out in the technical and safety standards made under section 67(1) of the Act for the pilotage area; and

Part 2 Pilotage Division 2 Pilotage licences and pilotage exemption certificates Ports Management Regulations 2015 3 (ii) for an application for the issue or renewal of a pilotage exemption certificate – the matters relevant to those applications set out in the standards mentioned in subparagraph (i); and (b) the matters of which the port operator, for a pilotage area within any other designated port, or the pilotage authority for any other pilotage area, must be satisfied are: (i) the physical and mental fitness of the applicant to carry out pilotage duties; and (ii) the competence of the applicant to navigate a vessel, of the relevant size or kind, through the pilotage area. 6 Variation of conditions (1) The holder of a pilotage licence or pilotage exemption certificate may apply in writing to the pilotage authority that issued the licence for the variation of a condition to which the licence or certificate is subject. (2) The pilotage authority may, on an application under subregulation (1): (a) approve the application by varying the condition; or (b) refuse the application. 7 Fees (1) An application for the issue of a pilotage exemption certificate must be accompanied by a fee, payable to the Territory, of $1070. (2) An application for the renewal of a pilotage exemption certificate must be accompanied by a fee, payable to the Territory, of $475. (3) An application for the variation of a condition to which a pilotage exemption certificate is subject must be accompanied by a fee, payable to the Territory, of: (a) if the condition relates to the vessel or vessels to which the certificate applies – $475; or (b) if the condition relates to the part of the pilotage area to which the certificate applies – $545; or (c) if the application relates to a condition of a kind mentioned in paragraphs (a) and (b) – $780.

Part 3 Port access and price monitoring Ports Management Regulations 2015 4 Division 3 Licensed pilots 8 Medical fitness of licensed pilot A pilotage authority may, at any time, require a licensed pilot to undergo a medical examination in order that the licensed pilot's fitness to discharge the pilot's duties may be determined. 9 Tugs under pilot's orders A vessel employed in towing, or in any way moving or assisting, another vessel that is in pilotage charge of a licensed pilot is under the orders of the pilot in all matters connected with navigation. 11 Complaints against licensed pilots The master of a vessel may make a complaint against a licensed pilot by giving written notice of the complaint to the pilotage authority that licensed the pilot. Part 3 Port access and price monitoring 12 Prescribed services (1) For section 3 of the Act, definition prescribed services, paragraph (a), the following services provided by a private port operator are prescribed: (a) providing, or allowing for, access for vessels to the designated port; (b) providing facilities for loading or unloading vessels at the designated port; (c) providing berths for vessels at the designated port; (d) providing, or facilitating the provision of, pilotage services in a pilotage area within the designated port; (e) allowing entry of persons and vehicles to any land on which port facilities of the designated port are located. (2) However, a service mentioned in subregulation (1) does not include any service provided under a lease granted by the private port operator.

Part 3 Port access and price monitoring Ports Management Regulations 2015 5 (3) To avoid doubt, the following services provided by a private port operator are not prescribed services: (a) a towage service for facilitating access to the designated port; (b) a bunkering service at the designated port; (c) a service for the provisioning of vessels (including the supply of electricity and water) at the designated port; (d) a service for the removal of waste from vessels at the designated port. 13 Requirements in relation to access policies (1) For section 127(1)(b) of the Act, a private port operator must give its initial draft access policy to the Regulator no later than 4 months after the operator becomes a private port operator. (2) For section 127(2)(a) of the Act, an access policy of a private port operator must: (a) state the approach to be taken by the operator to providing, or allowing for, access for vessels to the designated port, including the factors that it takes into account in carrying out vessel scheduling; and (ab) contain a commitment that the operator will, on request by a port user, give the user information about the following if it is reasonably required by the user to make an access request: (i) the availability of a prescribed service; (ii) the terms and conditions of access to a prescribed service; and (ac) set out the process for making an access request including stating: (i) whether or not an access request needs to be accompanied by a fee; and (ii) if a fee is payable – that the amount of the fee will be a reasonable amount to meet the operator's costs of assessing the request and will be disclosed to the port user before, or at the time, the access request is made; and (ad) state the information that is required to be set out in an access request, which:

Part 3 Port access and price monitoring Ports Management Regulations 2015 6 (i) may include the following: (A) the approximate date on which access to the prescribed service is sought; (B) the period for which access to the prescribed service is sought; (C) the reason for which access to the prescribed service is sought; but (ii) must not include information that is: (A) not relevant to the provision of access to the prescribed service to the port user; or (B) not within the reasonable capacity of the port user to provide; and (ae) state the operator's preferred form of access request but contain a commitment that the operator will accept an access request in an alternative written form if it contains the information required; and (b) contain a commitment that the operator will respond to an access request within a specified period (which must be reasonable); and (c) contain a commitment that the operator will provide access to a port user to any prescribed service on reasonable terms; and (d) set out the basis on which the port operator will determine access to a prescribed service that is the subject of an access request if the demand for access from port users exceeds the capacity to provide access; and (e) set out the terms on which access to a prescribed service will be provided; and (ea) set out a process for negotiating access to a prescribed service that is the subject of an access request made by a port user that: (i) requires the operator to undertake genuine negotiations with the port user with a view to agreeing on reasonable terms of access to the prescribed service; and (ii) requires the operator and the port user to negotiate in good faith; and

Part 3 Port access and price monitoring Ports Management Regulations 2015 7 (iii) requires the operator to accommodate, as far as practicable, the port user's reasonable requirements and proposals, including a proposal that the operator alter or add to port facilities to enable the prescribed service to be provided to the port user; and (iv) allows the operator to recover from the port user the reasonable costs associated with carrying out any alterations or additions to the port facilities proposed by the port user; and (v) provides that if, after negotiating, the operator and port user cannot agree on terms of access to the prescribed service, then an access dispute arises and must be resolved in accordance with the relevant provisions in the access policy; and (f) set out a process for the resolution of access disputes that are not frivolous or vexatious that: (i) provides for a port user to give written notice of a dispute to the operator within a specified period; and (ii) requires the operator to undertake genuine and good faith negotiations through discussion with the port user with a view to resolving the dispute as quickly as possible; and (iii) if the dispute is not resolved through discussion – provides for the operator to arrange mediation or conciliation to resolve the dispute; and (iv) if the dispute is not resolved through mediation or conciliation – provides for it to be referred to arbitration by an independent arbitrator appointed by the parties to the dispute; and (v) specifies the method by which the independent arbitrator is to be appointed which may be, but is not required to be, requesting the Regulator to nominate a person for appointment as an independent arbitrator; and (vi) requires that the arbitration be conducted in accordance with Part 5 of the Commercial Arbitration (National Uniform Legislation) Act 2011; and

Part 3 Port access and price monitoring Ports Management Regulations 2015 8 (vii) sets out the powers and duties of the arbitrator in conducting the arbitration, including the following: (A) a power for the arbitrator to order a party to the arbitration to produce information that is requested by the other party and reasonably necessary for the resolution of the dispute; (B) a power for the arbitrator to make an order mentioned in subsubparagraph (A) subject to any conditions regarding the use and disclosure of the information that the arbitrator considers necessary to protect any confidential information that may be disclosed; (C) for an arbitration of an access dispute that relates to the price of a prescribed service – a duty to make a decision that is consistent with any price determination made by the Regulator that is in force and applies to the operator; and (viia) requires the arbitrator, in conducting the arbitration, to take into account the following: (A) the object of Part 11 of the Act; (B) the access and pricing principles set out in section 133 of the Act; (C) the operator's legitimate business interests and investment in the designated port and port facilities; (D) the cost to the operator of providing access to the relevant prescribed service, including the cost of any required alterations or additions to port facilities, but not costs associated with losses arising from increased competition in upstream or downstream markets; (E) firm and binding contractual obligations of the operator and of other persons already using any relevant port facility; (F) the operational and technical requirements necessary for the safe and reliable provision of access to the relevant prescribed service; (G) the economically efficient operation of any relevant port facility;

Part 3 Port access and price monitoring Ports Management Regulations 2015 9 (H) the benefit to the public from having competitive markets; and (viii) provides a mechanism for the apportionment of the costs of an arbitration; and (ix) provides for the decision of the arbitrator to be treated as an award under the Commercial Arbitration (National Uniform Legislation) Act 2011; and (ixa) requires the operator to give the Regulator a copy of the decision of the arbitrator, subject to any orders made by the arbitrator regarding the protection of confidential information contained in the decision; and (x) requires the parties to an arbitration not to disclose its outcome to third parties, unless the disclosure is to the party's insurers or legal or financial advisers or required by subparagraph (ixa) or any other law; and (g) require the parties to an access dispute to keep confidential information provided during any access request negotiations or access dispute resolution process; and (h) provide for the right of each party to an access dispute to request from the other party, within a specified period, information specified by the requesting party that, in the opinion of the requesting party, is reasonably necessary for the resolution of the dispute; and (i) require a party to comply with a request of a kind mentioned in paragraph (h) within a specified period; and (j) require the operator to give reasons for any decision made by the operator that affects a port user. (3) A private port operator commits an offence if it does not publish a copy of its access policy on its website within 5 days after it is approved under section 127(4) of the Act. Maximum penalty: 50 penalty units. (4) An offence against subregulation (3) is an offence of strict liability. (5) It is a defence to a prosecution for an offence against subregulation (3) if the defendant has a reasonable excuse.

Part 3 Port access and price monitoring Ports Management Regulations 2015 10 14 Guidelines on reporting in relation to access policies For section 128(1) of the Act, the following are the matters about which guidelines must be issued in relation to annual reports under section 130(1) of the Act relating to access policies: (a) the form of the report and how it must be made; (b) what information must be included in the report about any material instance of non-compliance with an access policy including specified kinds of records, statistics, information and explanations. 16 Price determinations (1) In making a price determination, without limiting section 21(2) of the Utilities Commission Act 2000, the Regulator must have regard to: (a) the cyclical nature of the economy of the Territory, including the volatility of demand for prescribed services and, where appropriate, the need to assess returns over a period longer than 1 year; and (b) the desirability of price stability and the need to avoid price shocks. (2) For section 132(2)(a) of the Act, a price determination: (a) must use monitoring of the price levels of a prescribed service as the form of price regulation for the service; and (b) must specify the basis on which, or the standard against which, the Regulator intends to monitor price levels; and (c) must require each private port operator and private pilotage provider to whom the determination applies: (i) to give the Regulator in the specified manner written notice, that complies with subregulation (3), of a proposed change in the operator's or provider's charges for the prescribed services at least 20 days before the change is proposed to be made; and (ii) to publish in a prominent position on its website: (A) the operator's or provider's standard charges for prescribed services; and

Part 3 Port access and price monitoring Ports Management Regulations 2015 11 (C) notice of a proposed change in the operator's or provider's standard charges for prescribed services at least 10 days before the change is proposed to be made; and (ca) must require each private port operator to whom the determination applies to publish in a prominent position on its website the standard rate of charges charged by the operator for, or in respect of, the use of port facilities of the designated port; and (d) must not require a private port operator or private pilotage provider to whom the determination applies to publish on its website a negotiated charge for a prescribed service; and (e) must require each private port operator and private pilotage provider to whom the determination applies to make an annual report to the Regulator containing the following information in respect of the year to which the report relates: (i) a list of the types of charges for prescribed services charged by the operator or provider; (ii) the amount of revenue received by the operator or provider from charges for prescribed services (showing the amount of revenue for each separate charge); (iii) for a charge for a prescribed service payable on a unit basis (such as a unit of vessel cargo capacity or vessel gross tonnage) – the total number of units charged for, or in respect of, each separate charge; (iv) if there was a change in the charge for a prescribed service – the amount of the change and the reason for it; and (f) may require each private port operator and private pilotage provider to whom the determination applies to include in an annual report under paragraph (e) information on whether, during the year to which the report relates, the operator or provider entered into an agreement of a kind mentioned in section 110 of the Act or regulation 18 and, if so, the number of those agreements and their terms. (3) A notice under subregulation (2)(c)(i) about a proposed change must: (a) identify each separate charge to which the change relates; and

Part 3 Port access and price monitoring Ports Management Regulations 2015 12 (b) provide the following information about each charge: (i) the basis on which the amount of the charge is calculated including, for a charge payable on a unit basis (such as a unit of vessel cargo capacity or vessel gross tonnage), the unit on which the charge is imposed; (ii) for a change in an existing charge or the removal of an existing charge, the reason for the change in the charge or removal; (iii) if the charge is being fixed for the first time: (A) the purpose and function of the charge; and (B) the basis on which the amount of the charge is calculated; and (C) the persons who will be required to pay the charge. (4) A reference in subregulation (2) or (3) to a proposed change in a private port operator's or private pilotage provider's charges for prescribed services includes a change in an existing charge, the fixing for the first time of a charge and the removal of an existing charge. 17 Procedure on making a price determination (1) For section 132(2A) of the Act, at least 30 days before making a price determination, the Regulator must send a copy of a draft of the determination to, and invite a submission on it by a specified date from: (a) the Minister; and (b) each private port operator and private pilotage provider to which the determination would apply; and (c) any other person the Regulator reasonably considers would likely be affected by the determination. (2) The Regulator must consider each submission received by the specified date before making a price determination. (3) The Regulator must make a price determination for a private port operator or private pilotage provider no later than 3 months after the operator or provider becomes a private port operator or private pilotage provider.

Part 4 Infringement notice offences Ports Management Regulations 2015 13 (4) As soon as practicable after making a price determination, the Regulator must: (a) send a copy of the determination to any person to whom a draft was sent under subregulation (1); and (b) publish the determination on the Regulator's website. 18 Power to negotiate charges A private port operator or private pilotage provider may enter into an agreement with a person (including an agreement of a kind covered by section 110 of the Act) that fixes the charge payable by the person for a prescribed service to be provided to the person at an amount that is different to the standard charge for that service. Part 4 Infringement notice offences 19 Infringement notice offence and prescribed amount payable (1) An infringement notice offence is an offence against a provision of the Act specified in the Schedule. (2) The prescribed amount for an infringement notice offence is the amount equal to the monetary value of the number of penalty units specified for the offence in the Schedule. 20 When infringement notice may be given If the regional harbourmaster or a port enforcement officer reasonably believes that a person has committed an infringement notice offence, the regional harbourmaster or port enforcement officer may give a notice (an infringement notice) to the person. 21 Contents of infringement notice (1) The infringement notice must specify the following: (a) the name and address of the person, if known; (b) the date the infringement notice is given to the person; (c) the date, time and place of the infringement notice offence; (d) a description of the offence; (e) the prescribed amount payable for the offence;

Part 4 Infringement notice offences Ports Management Regulations 2015 14 (f) the enforcement agency, as defined in the Fines and Penalties (Recovery) Act 2001, to whom the prescribed amount is payable. (2) The infringement notice must include a statement to the effect of the following: (a) the person may expiate the infringement notice offence and avoid any further action in relation to the offence by paying the prescribed amount to the specified enforcement agency within 28 days after the notice is given; (b) the person may elect under section 21 of the Fines and Penalties (Recovery) Act 2001 to have the matter dealt with by a court instead of under that Act by completing a statement of election and giving it to the specified enforcement agency; (c) if the person does nothing in response to the notice, enforcement action may be taken under the Fines and Penalties (Recovery) Act 2001, including (but not limited to) action for the following: (i) suspending the person's licence to drive; (ii) seizing personal property of the person; (iii) deducting an amount from the person's wages or salary; (iv) registering a statutory charge on land owned by the person; (v) making a community work order for the person and imprisonment of the person if the person breaches the order. (3) Also, the infringement notice must include an appropriate form for making the statement of election mentioned in subregulation (2)(b). 22 Payment by cheque If the person tenders a cheque in payment of the prescribed amount, the amount is not taken to have been paid unless the cheque is cleared on first presentation. 23 Withdrawal of infringement notice (1) The regional harbourmaster may withdraw an infringement notice given by the regional harbourmaster or a port enforcement officer to a person by written notice given to the person.

Part 5 Miscellaneous matters Ports Management Regulations 2015 15 (2) The notice must be given: (a) within 28 days after the infringement notice is given to the person; and (b) before payment of the prescribed amount. 24 Application of this Part (1) This Part does not prejudice or affect the start or continuation of proceedings for an infringement notice offence for which an infringement notice has been given unless the offence is expiated. (2) Also, this Part does not: (a) require an infringement notice to be given; or (b) affect the liability of a person to be prosecuted in a court for an offence for which an infringement notice has not been given; or (c) prevent more than one infringement notice for the same offence being given to a person. (3) If more than one infringement notice for the same offence has been given to a person, the person may expiate the offence by paying the prescribed amount in accordance with any of the notices. Part 5 Miscellaneous matters 25 Reportable incidents (1) For the definition of reportable incident in section 3 of the Act, subject to subregulation (2), events of the following kind are prescribed: (a) a collision of a vessel with another vessel; (b) a collision by a vessel with an object; (c) the grounding, sinking, flooding or capsizing of a vessel; (d) a fire on board a vessel; (e) a loss of stability of a vessel that affects the safety of the vessel; (f) the structural failure of a vessel;

Part 5 Miscellaneous matters Ports Management Regulations 2015 16 (g) a situation in which vessels pass each other, or a vessel passes another vessel, a person or an object, in such proximity that a reasonable person would conclude that in all the circumstances there was a risk of an imminent collision; (h) an event that results in, or could have resulted in, a vessel becoming disabled and requiring assistance; (i) the fouling or damaging by a vessel of: (i) any pipeline or submarine cable; or (ii) an aid; (j) any other event that: (i) is a reportable incident under section 50 of the Marine Pollution Act 1999; or (ii) must be notified under section 14 of the Waste Management and Pollution Control Act 1998 to the Northern Territory Environment Protection Authority. (2) An event of a kind mentioned in subregulation (1) that only involves actual or potential loss of, or damage to, property is an event of a prescribed kind only if the value of the loss or damage is greater than $20 000. 26 Record-keeping and reporting obligations (1) For sections 18(1) and (3) and 87(1) and (3) of the Act, the prescribed particulars of a reportable incident that are required to be kept or reported are details that are sufficient to describe the following: (a) the nature of the incident and the circumstances surrounding it; (b) the time and location of the incident; (c) the persons involved in the incident; (d) the vessels (if any) involved in the incident; (e) the response of the port operator or pilotage services provider to the incident; (f) for an event that involves actual or potential harm to the environment: (i) how that harm occurred, is occurring or may occur; and

Part 5 Miscellaneous matters Ports Management Regulations 2015 17 (ii) action taken to prevent, reduce, control or remove that harm. (2) For sections 18(1) and 87(1) of the Act, records are kept in the prescribed manner if they are kept in writing. (3) It is sufficient compliance with a reporting obligation under section 18(3) or 87(3) of the Act if the port operator or pilotage services provider (as the case requires) gives to the regional harbourmaster a copy of a report of a reportable incident made under another Act that contains the prescribed particulars mentioned in subregulation (1). (4) For sections 18(3) and 87(3) of the Act, the prescribed period after the occurrence of a reportable incident is: (a) 1 hour – if the reportable incident involves: (i) the death of a person; or (ii) an injury to a person that requires or results in immediate treatment for: (A) the amputation of any part of the person's body; or (B) a serious head injury; or (C) a serious eye injury; or (D) a serious burn; or (E) the separation of the person's skin from an underlying tissue (such as degloving or scalping); or (F) a spinal injury; or (G) the loss of a bodily function; or (H) serious lacerations; or (iii) the loss of a vessel; or (iv) the loss of a person from a vessel; or (v) the loss of, or damage to, property to the value of $20 000 or more; or (vi) actual or potential harm to the environment; or

Part 5 Miscellaneous matters Ports Management Regulations 2015 18 (b) in any other case – 12 hours or, if the reportable incident is also required to be reported by the port operator or pilotage services provider under another Act within a shorter period, the shorter period. 27 Port management officers For section 22(7) of the Act: (a) the prescribed circumstances are where the port operator of the designated port is a public sector entity; and (b) the entity by which a person is employed or engaged is a public sector entity. 28 Pilotage services provider (1) For section 85(2)(b)(ii) of the Act: (a) the prescribed circumstances are where the pilotage area is within a designated port of which the port operator is a public sector entity; and (b) the entity by which a person is employed or engaged is a public sector entity. (2) With reference to section 85(6)(d) of the Act, when considering an appointment under section 85(1), the Minister must take into account the potential effect of the appointment on each of the following: (a) the safe and economically efficient operation of pilotage services within the pilotage area; (b) the safe and economically efficient operation of vessels and port facilities in the vicinity of the pilotage area; (c) competition in any relevant market given the ownership, operation or control of the pilotage services provider; (d) the public interest in the ongoing long-term supply of pilotage services within the pilotage area.

Schedule Infringement notice offences and prescribed amounts Ports Management Regulations 2015 19 Schedule Infringement notice offences and prescribed amounts regulation 19(1) and (2) Provision Prescribed amount in penalty units Ports Management Act 2015 sections 38(2), 40A(3), 40B(3), 41(6), 42(6), 43(6), 50(4), 51(5), 53(1), 79(1), 96(1), 97(3), 101(4) and 102(2) and (3) 5 sections 33(4), 50(3) and (8), 51(4) and (9), 100(1), 102(4) and 103(1) 2

ENDNOTES Ports Management Regulations 2015 20 ENDNOTES 1 KEY Key to abbreviations amd = amended od = order app = appendix om = omitted bl = by-law pt = Part ch = Chapter r = regulation/rule cl = clause rem = remainder div = Division renum = renumbered exp = expires/expired rep = repealed f = forms s = section Gaz = Gazette sch = Schedule hdg = heading sdiv = Subdivision ins = inserted SL = Subordinate Legislation lt = long title sub = substituted nc = not commenced 2 LIST OF LEGISLATION Ports Management Regulations (SL No. 13, 2015) Notified 30 June 2015 Commenced 1 July 2015 (r 2) Ports Management Amendment Regulations 2015 (SL No. 22, 2015) Notified 29 September 2015 Commenced 29 September 2015 Ports Management Amendment Regulations 2016 (SL No. 6, 2016) Notified 16 March 2016 Commenced 16 March 2016 Ports Management Amendment Regulations 2020 (SL No. 23, 2020) Notified 30 July 2020 Commenced 30 July 2020 (r 2, s 2 Ports Legislation Amendment Act 2020 (Act No. 20, 2020) and Gaz G30, 29 July 2020, p 1) 3 GENERAL AMENDMENTS General amendments of a formal nature (which are not referred to in the table of amendments to this reprint) are made by the Interpretation Legislation Amendment Act 2018 (Act No. 22, 2018) to: rr 1, 13, 16, 21 and 25 and sch. 4 LIST OF AMENDMENTS r 5 amd No. 6, 2016, r 3 r 10 rep No. 6, 2016, r 4 r 12 amd No. 23, 2020, r 4 r 13 amd No. 23, 2020, r 5 r 15 rep No. 23, 2020, r 6 r 16 amd No. 23, 2020, r 7 r 17 amd No. 23, 2020, r 8

ENDNOTES Ports Management Regulations 2015 21 r 18 amd No. 23, 2020, r 9 r 28 amd No. 22, 2015, r 3 sch amd No. 23, 2020, r 10

1 PORTS MANAGEMENT REGULATIONS 2015

The instrument revolves around a relatively small set of regulatory concepts that determine obligations and rights in ports: prescribed services, access policies and dispute resolution, price monitoring, pilotage licensing and exemptions, infringement notices, and reportable incidents and records.

Prescribed services (reg 12). The Regulations specify which services provided by a private port operator are treated as prescribed services under the Act. These include providing access for vessels to the designated port, berths, loading and unloading facilities, pilotage services in a pilotage area within the port, and entry to land on which port facilities are located (reg 12(1)(a)-(e)). The Regulations also limit the scope by excluding services provided under a lease granted by the private operator (reg 12(2)) and expressly list services that are not prescribed services, including towage for access, bunkering, provisioning (including electricity and water) and waste removal from vessels (reg 12(3)(a)-(d)). This delineation determines what falls within the statutory access and pricing regime and what remains outside it.

Access policy content and process (reg 13). Private port operators must prepare access policies meeting detailed content requirements. The policy must set out approach to vessel access and scheduling, information commitments on availability and terms (reg 13(2)(a), (ab)), the process for making an access request and what information may be required from a port user while excluding irrelevant or onerous requirements (reg 13(2)(ac)-(ad)), timeframes for responses and commitments to provide access on reasonable terms (reg 13(2)(b), (c)), procedures for allocating access where demand exceeds capacity (reg 13(2)(d)), terms of access (reg 13(2)(e)), and an explicit negotiation process that mandates genuine negotiations, good faith, accommodation of reasonable user proposals (including for facility alterations), cost recovery for such alterations, and escalation to mediation and arbitration where agreement cannot be reached (reg 13(2)(ea), (ea)(i)-(v)).

Arbitration and confidentiality. The access policy must include a dispute-resolution procedure that allows escalation to arbitration under the Commercial Arbitration (National Uniform Legislation) Act 2011 if mediation fails (reg 13(2)(f)(iv)-(vi)). It prescribes powers for the arbitrator to order production of information with confidentiality safeguards (reg 13(2)(f)(vii)(A)-(B)), requires the arbitrator to have regard to specific factors including the Act’s access and pricing principles, legitimate business interests and investment, and the cost to the operator of providing access but excluding costs from losses due to increased competition in upstream or downstream markets (reg 13(2)(f)(viia)(A)-(H), (vii)(D)). The policy must require confidentiality of negotiation materials and restrict disclosure of arbitration outcomes except to advisers, insurers or as required by law, and require the operator to provide the Regulator with a copy of an arbitration decision subject to confidentiality orders (reg 13(2)(g), (ix), (ixa), (x)).

Price monitoring (reg 16-17). The Regulations specify that price determinations must use monitoring of price levels rather than administratively fixing prices (reg 16(2)(a)). Price determinations must state the basis or standard for monitoring, impose notice obligations on operators and providers for proposed changes to charges (20 days’ written notice with prescribed contents, reg 16(2)(c)(i) and reg 16(3)), require publication of standard charges and proposed changes on operator websites (reg 16(2)(c)(ii), (C), (ca)), and demand an annual report to the Regulator detailing types of charges, revenue by charge, volumes for unit charges, and details and reasons for changes (reg 16(2)(e)). The Regulator must consult on draft price determinations (30 days notice) and make a determination within three months of an operator becoming private (reg 17).

Pilotage licensing and duties (regs 5-9). The Regulations set the matters that must satisfy the port operator or pilotage authority when issuing or renewing pilotage licences or exemption certificates (reg 5), allow variation of licence conditions on application (reg 6), prescribe fees for exemption certificate applications and renewals (reg 7), permit medical examinations of licensed pilots at any time to determine fitness (reg 8), and declare that vessels employed in towing or assisting a vessel in pilotage under a licensed pilot are under that pilot’s orders in navigation matters (reg 9). The Regulations also provide a mechanism for masters to lodge complaints against licensed pilots (reg 11).

Infringement notice scheme (regs 19-24; Schedule). The Regulations designate specific contraventions of the Ports Management Act as infringement notice offences (reg 19 and Schedule), set who may issue notices (regional harbourmaster or port enforcement officer, reg 20), prescribe notice contents and explain payment, election to go to court and enforcement consequences under the Fines and Penalties (Recovery) Act (reg 21), allow cheque-payment rules (reg 22), and provide for withdrawal of notices (reg 23) subject to time limits (reg 23(2)).

Reportable incidents and records (regs 25-26). The Regulations prescribe the kinds of events that must be reported as reportable incidents (collisions, grounding, fire, structural failure, fouling of pipelines or aids, events reportable under other Acts) and set a monetary threshold ($20,000) for property-only loss events to be reportable (reg 25). They specify the particulars to be kept and reported (nature, time, persons, vessels, response, environmental harm and remedial action), require records to be kept in writing, and set tight notification timeframes for certain incidents (1 hour for serious injury, death, loss of vessel or person, property damage over $20,000, or environmental harm; 12 hours for other reportable incidents) with allowance for a shorter period if another Act requires it (reg 26).

Taken together, these concepts structure contractual negotiations, disclosure, safety reporting and regulatory oversight in designated ports. Each concept is implemented through concrete obligations, time limits and procedural steps in the Regulations.

The Regulations allocate duties and reporting obligations across a set of specified actors. The principal affected parties are:

Private port operators. They are primarily regulated through the access policy and price-monitoring rules. The Regulations prescribe which services they must treat as prescribed services (reg 12) and compel private port operators to prepare, disclose and operate under access policies with detailed content (reg 13). They must publish approved access policies on their websites within five days (reg 13(3)), respond to access requests in specified timeframes, negotiate in good faith, accommodate reasonable user proposals for facility alterations, disclose standard charges and proposed changes on their websites (reg 16(2)(c)(ii), (C), (ca)), and make annual reports to the Regulator about charges and revenue (reg 16(2)(e)). Failure to publish an access policy on the website is a strict liability offence with a 50 penalty unit maximum (reg 13(3)-(5)).
Port users (including shipping companies, agents and cargo owners). Port users gain rights under the access policy framework to request access to prescribed services, to obtain information reasonably required to make an access request (reg 13(2)(ab)), to require operators to undertake genuine negotiations and good-faith mediation/arbitration (reg 13(2)(ea), (f)), and to seek confidentiality and information disclosure during disputes with safeguards (reg 13(2)(g), (h), (i), (f)(vii)). Port users also face procedural obligations to provide only relevant information in access requests (reg 13(2)(ad)).
Private pilotage providers and licensed pilots. Pilotage matters concern both the holders of pilotage licences and those seeking exemptions. Pilotage authorities and port operators must be satisfied as to fitness and competence when issuing or renewing licences or exemption certificates (reg 5). Pilotage providers to whom price determinations apply must comply with monitoring and reporting obligations like private port operators (reg 16(2)(c), (e)). Licensed pilots can be required to undergo medical fitness examinations at any time by the pilotage authority (reg 8). Masters may lodge complaints against licensed pilots to the licensing authority (reg 11).
Masters of vessels and vessel operators. Masters approaching compulsory pilotage areas must ensure vessels are made ready to take licensed pilots on board by creating a lee, providing a lit pilot ladder or safe access and closing nearby scuppers and refuse outlets (reg 4(2)). Failure to comply is a strict liability offence (reg 4(2)-(4)). Masters also participate as port users in access requests and disputes.
Regional harbourmaster and port enforcement officers. These officials may issue infringement notices when they reasonably believe an infringement offence has occurred (reg 20), they can withdraw notices under defined timing constraints (reg 23), and they are recipients of reportable-incident reports and records (see regs 26 and references to the regional harbourmaster in reg 26(3)). The Regulations explicitly give these officers enforcement powers within the infringement notice scheme (regs 19-24).
The Regulator and the Minister. The Regulator (the Utilities Commission or equivalent, referenced through the term Regulator) makes price determinations, must consult on drafts (reg 17), and receives annual reports and notices of proposed charge changes (reg 16(2)(c)(i), (e), (3)). The Minister is part of the consultation list for draft price determinations (reg 17(1)(a)) and is the decision-maker to appoint pilotage services providers subject to factors the Minister must consider (reg 28(2)).
Public sector entities. Where a designated port is operated by a public sector entity, the Regulations specify that port management officers and pilotage services providers may be employed or engaged by a public sector entity and that certain appointment circumstances are prescribed (regs 27-28).

Financial and administrative burdens fall primarily on private port operators and private pilotage providers: fees for pilotage exemption certificates are payable to the Territory (reg 7), website publication and reporting duties create administrative work, and the arbitration and dispute-resolution processes require resource allocation to negotiate, mediate and, if necessary, arbitrate disputes (reg 13(2)(ea), (f)). Masters and vessel operators face compliance costs to ensure vessels meet pilot transfer standards (reg 4). The Regulator and enforcement agencies gain information but incur processing costs for consultation, monitoring and enforcement.

The Regulations impose concrete duties and create specific rights for the actors identified.

Duties of masters. A master who intends to enter a compulsory pilotage area or is at a boarding ground must ensure readiness to take a licensed pilot on board by creating a lee, providing a lit pilot ladder or other safe access on the lee side, and closing scuppers and refuse outlets in the vicinity (reg 4(1)-(2)). Failure to do so is a strict liability offence subject to a maximum penalty of 50 penalty units, but a defendant can rely on a reasonable excuse defence (reg 4(2)-(4)).

Pilotage licensing and variation. The Regulations specify matters that must satisfy the relevant port operator or pilotage authority when issuing or renewing pilotage licences or pilotage exemption certificates. For the Port of Darwin, references are to technical and safety standards under section 67(1) of the Act (reg 5(a)(i)-(ii)); for other ports, authorities must be satisfied about physical and mental fitness and competence to navigate vessels of the relevant size or kind (reg 5(b)(i)-(ii)). Licence holders may apply to vary conditions and the authority may approve or refuse (reg 6).

Medical fitness and orders. A pilotage authority may require a licensed pilot to undergo a medical exam at any time to determine fitness to discharge duties (reg 8). Tugs employed in towing or assisting a vessel in pilotage with a licensed pilot are under the pilot’s orders in navigation matters (reg 9). Masters can lodge written complaints against licensed pilots with the pilotage authority that licensed the pilot (reg 11).

Access policy and negotiation duties. Private port operators must produce and make available access policies meeting detailed content requirements (reg 13(2)). Core duties include providing information to port users on availability and terms when reasonably required to make an access request (reg 13(2)(ab)), responding to access requests within reasonable specified periods (reg 13(2)(b)), providing access on reasonable terms (reg 13(2)(c)), and negotiating genuine and good-faith settlements when a port user makes an access request seeking a prescribed service (reg 13(2)(ea)(i)-(iii)). Operators may recover reasonable costs for agreed facility alterations proposed by port users (reg 13(2)(ea)(iv)).

Access dispute resolution rights and duties. An access policy must provide a staged dispute-resolution path: notice by the port user, good-faith negotiations, mediation or conciliation, and arbitration by an independent arbitrator under the Commercial Arbitration (National Uniform Legislation) Act 2011 if unresolved (reg 13(2)(f)(i)-(vi)). The arbitrator has powers to order production of information and to protect confidentiality; the arbitrator must take into account the Act’s object, access and pricing principles, the operator’s legitimate interests and investment, cost of providing access (excluding costs arising from competition losses), contractual obligations, safety and efficiency, and the public benefit from competition (reg 13(2)(f)(vii)-(viia)). The policy must specify how arbitration costs are apportioned and provide that arbitral awards are treated as awards under the Commercial Arbitration Act (reg 13(2)(f)(viii)-(ix)).

Price monitoring and notice duties. Price determinations must adopt price monitoring as the regulatory mechanism (reg 16(2)(a)). When price determinations apply, operators and providers must give the Regulator written notice of proposed charge changes at least 20 days before the change, and publish standard charges and notice of proposed changes on their websites at least 10 days before changes (reg 16(2)(c)(i), (ii), (C); reg 16(3) sets the information the notice must include). Operators must make annual reports to the Regulator listing charge types, revenue by charge, unit volumes where applicable, amounts and reasons for any charge changes, and may be required to disclose whether they entered into certain agreements (reg 16(2)(e)-(f)).

Infringement notices, payment and election. Where the regional harbourmaster or a port enforcement officer reasonably believes an infringement offence under the Act has been committed, they may issue an infringement notice (reg 20). The notice must include prescribed particulars and a statement that the person can expiate by paying the prescribed amount within 28 days, or elect to have the matter dealt with by a court under the Fines and Penalties (Recovery) Act 2001 (reg 21(1)-(2)). Payment by cheque counts only if the cheque clears on first presentation (reg 22).

Reportable incident duties and records. For events prescribed in reg 25, port operators and pilotage services providers must keep and report particulars sufficient to describe the incident, time, persons, vessels, response, and environmental harm and action taken (reg 26(1)). Records must be kept in writing (reg 26(2)). Immediate reporting deadlines are tight: one hour for very serious incidents and loss events, 12 hours for other incidents unless a shorter period is required by another Act (reg 26(4)). Reports under other Acts may satisfy these requirements if they contain the prescribed particulars (reg 26(3)).

Rights: arbitration, confidentiality and negotiation. Port users gain the right to seek arbitration under the operator’s access policy if negotiation and mediation fail (reg 13(2)(f)). Parties to disputes have the right to confidentiality over negotiation materials and arbitral outcomes with limited exceptions (reg 13(2)(g), (x)). Operators maintain the right to enter negotiated contracts that fix charges different to standard charges (reg 18), and price determinations must not compel publication of negotiated charges (reg 16(2)(d)).

Overall, the Regulations distribute operational duties to operators and masters, procedural obligations to providers and users, investigative and enforcement powers to harbourmasters and enforcement officers, and monitoring and consultative duties to the Regulator and Minister.

The Regulations create offences with specified penalties, and they establish an administrative infringement notice route that ties into the Territory’s fines recovery framework.

Specified offences and penalties. Two explicit maximum penalties appear in the Regulations. A master who does not ensure a vessel is made ready to receive a licensed pilot commits an offence with a maximum penalty of 50 penalty units (reg 4(2)). A private port operator that fails to publish its access policy on its website within five days after approval commits a strict liability offence also carrying a maximum penalty of 50 penalty units (reg 13(3)-(5)). The Schedule cross-references a range of provisions in the Ports Management Act 2015 that are treated as infringement notice offences under these Regulations and sets the prescribed penalty units (Schedule, headnote and table). The Schedule lists certain sections of the Ports Management Act that attract either five penalty units or two penalty units when treated as infringement offences under regulation 19(1) and (2). The Regulations therefore convert particular Act offences into infringements with specified monetary equivalents.

Infringement notice scheme mechanics. Regulation 19 declares that an infringement notice offence is an offence against a provision of the Act specified in the Schedule and sets the prescribed amount for an infringement as the monetary value of the penalty units specified in the Schedule (reg 19(1)-(2)). A regional harbourmaster or a port enforcement officer may issue an infringement notice where they reasonably believe a person has committed an infringement offence (reg 20). The content requirements for an infringement notice are detailed: name and address, date notice is given, date/time/place of alleged offence, description, prescribed amount, and the enforcement agency to which payment is payable (reg 21(1)(a)-(f)). The notice must also advise of the option to expiate by paying the prescribed amount within 28 days, the option to elect court action under section 21 of the Fines and Penalties (Recovery) Act 2001, and the consequences of inaction including enforcement measures available under that Act (suspension of driving licence, seizure of property, wage deductions, statutory charges on land, community work orders, and imprisonment for breaches of community work orders) (reg 21(2)(a)-(c)).

Payment and cheque rules. Payment of the prescribed amount expiates the offence if made within the 28-day window. Cheque payment is not taken to be payment unless the cheque clears on first presentation (reg 22). This ties monetary expiation to actual receipt of funds.

Withdrawal and multiple notices. The regional harbourmaster may withdraw an infringement notice given by them or a port enforcement officer within 28 days after service and before payment of the prescribed amount (reg 23(1)-(2)). The Regulations preserve prosecutorial discretion: giving an infringement notice does not prevent criminal proceedings for that offence unless the offence is expiated, and the Regulations do not require issuing infringement notices (reg 24(1)-(2)). Multiple infringement notices for the same offence may be given; a person may expiate by complying with any of them (reg 24(3)).

Enforcement linkages. The infringement notice framework links to the Fines and Penalties (Recovery) Act 2001 for enforcement machinery and to the enforcement agency designated in the notice (reg 21(1)(f); reg 21(2)(c)). That Act provides mechanisms for collection and enforcement, such as vehicle licence suspensions and seizure mechanisms. The Schedule determines the monetary amounts; the Regulations rely on the statutory penalty unit value to calculate payments.

Operational enforcement authorities. The regional harbourmaster and port enforcement officers are given the power to issue notices (reg 20), to receive reports under the incident and record-keeping provisions (reg 26 references to giving reports to the regional harbourmaster), and to withdraw notices (reg 23). The Regulator acts in a monitoring and consultative role for price determinations and receives notices and annual reports from operators (reg 16(2)(c)(i), (e); reg 17).

Strict liability and defences. Several offences are designated strict liability by the Regulations. The master’s failure to prepare the vessel to take a pilot (reg 4(3)) and the offence of not publishing an access policy within five days (reg 13(4)) are both strict liability offences. In both cases the defendant has a statutory defence of reasonable excuse (reg 4(4); reg 13(5)). Strict liability reduces the prosecution’s need to prove mens rea, increasing enforcement efficiency but also raising potential for contested defences grounded on the "reasonable excuse" standard.

In aggregate, enforcement is a hybrid of criminal penalties, administrative expiation via infringement notices with recovery enforcement under the Fines and Penalties Act, and compliance oversight through the Regulator’s monitoring and reporting functions. The allocation of administrative issuance powers to harbourmasters and port enforcement officers centralises on-water enforcement while financial recovery flows through established fines-recovery channels.

The Regulations are implementation instruments under the Ports Management Act 2015 and explicitly cross-reference and interact with several Territory and national statutes, creating dependencies and interaction points that practitioners must account for.

Ports Management Act 2015. The Regulations operationalise multiple provisions of the Ports Management Act. For example, reg 5 is expressly "For section 76(1) of the Act" and prescribes matters for licensing and exemption decisions. Reg 12 ties into section 3 of the Act by defining which services are "prescribed services". Reg 16 implements section 132(1) and (2) of the Act by specifying how price determinations should be made and the monitoring approach. The Regulations therefore must be read in tandem with the Act, as they supply the procedural and substantive details that the Act leaves to subordinate legislation.

Utilities Commission Act 2000. When making a price determination the Regulator must have regard to section 21(2) of the Utilities Commission Act 2000, and reg 16(1) specifically cross-references that Act by noting the Regulator must consider cyclical economy factors and the desirability of price stability. Thus, the Utilities Commission Act's decision-making framework and powers are relevant to price determinations for ports.

Commercial Arbitration (National Uniform Legislation) Act 2011. The access policy’s required arbitration procedures must be conducted under Part 5 of the Commercial Arbitration (National Uniform Legislation) Act 2011 (reg 13(2)(f)(vi)), and arbitral decisions are to be treated as awards under that Act (reg 13(2)(f)(ix)). This embeds national arbitration rules and enforcement mechanisms into access disputes, including the recognition and enforcement of arbitral awards.

Fines and Penalties (Recovery) Act 2001. The infringement notice mechanism is explicitly tied to the enforcement tools in the Fines and Penalties (Recovery) Act 2001. An infringement notice must identify the enforcement agency as defined in that Act, and the notice must inform recipients of enforcement measures that can be used under that Act, such as licence suspension, seizure of property, wage garnishee and statutory charges on land (reg 21(1)(f); reg 21(2)(c)). Payment or election procedures under the infringement scheme interface with the recovery and enforcement pathways in the Fines and Penalties Act.

Marine Pollution Act 1999 and Waste Management and Pollution Control Act 1998. The list of reportable incidents in reg 25(1)(j) incorporates incidents that are reportable under section 50 of the Marine Pollution Act 1999 or that must be notified under section 14 of the Waste Management and Pollution Control Act 1998 to the Northern Territory Environment Protection Authority. Reg 26(3) permits reliance on reports prepared under other Acts if they contain the prescribed particulars, creating an overlap and practical consolidation point for reporting obligations across statutes.

Ports Legislation Amendment Act 2020 and related subordinate instruments. The endnotes show the Regulations have been amended by subordinate instruments and amendment Regulations in 2015, 2016 and 2020 (ENDNOTES 2 and 4). These amendments modify provisions such as reg 12, 13, 16, 17 and the Schedule. Practitioners must consult both the Act and the up-to-date Regulations, and the endnotes point to the consolidated text in force at the date in the instrument.

Other Commonwealth or Territory obligations. Although not enumerated in the Regulations, the interplay with occupational safety laws, maritime pollution laws and local development or land-use planning laws is implicit where access requests involve altering or adding port facilities or where environmental incidents are reportable. The Regulations expressly allow port operators and pilotage providers to rely on reports made under other Acts for compliance with reg 26(3), which can reduce duplication but requires cross-checking between statutory reporting formats.

In practice, compliance requires reading the Regulations alongside the Ports Management Act and the other statutes named. For instance, a private port operator with a dispute that goes to arbitration must follow the Commercial Arbitration Act process while also ensuring its access policy complies with reg 13, and when a reportable incident also triggers obligations under the Marine Pollution Act the operator can supply that report to the regional harbourmaster if it contains the prescribed particulars (reg 26(3)). The Regulations therefore function as a node tying the Ports Management Act into wider statutory frameworks for utilities, arbitration, fines recovery and environmental reporting.

The Regulations were made as the Ports Management Regulations 2015 and commenced on 1 July 2015 (reg 2; ENDNOTES 2). The endnotes list subordinate legislation and amendment instruments that altered the Regulations after initial enactment. The key elements of the documented amendment history in the text are:

Original instrument: Ports Management Regulations (SL No. 13, 2015), notified 30 June 2015 and commenced 1 July 2015 (ENDNOTES 2).
Ports Management Amendment Regulations 2015 (SL No. 22, 2015), notified 29 September 2015 and commenced 29 September 2015 (ENDNOTES 2; ENDNOTES 4 indicates r 28 amended by No. 22, 2015).
Ports Management Amendment Regulations 2016 (SL No. 6, 2016), notified 16 March 2016 and commenced 16 March 2016. The endnotes specifically identify amendments to r 5 and r 10 by the 2016 instrument (ENDNOTES 4: "r 5 amd No. 6, 2016, r 3" and "r 10 rep No. 6, 2016, r 4").
Ports Management Amendment Regulations 2020 (SL No. 23, 2020), notified 30 July 2020 and commenced 30 July 2020 (ENDNOTES 2). The endnotes and list of amendments indicate multiple parts of the Regulations were amended by the 2020 instrument. Specifically, the endnotes list amendments to rr 12, 13, 15 (repealed), 16, 17, 18, and the Schedule, as effected by SL No. 23, 2020 (ENDNOTES 4: "r 12 amd No. 23, 2020, r 4", "r 13 amd No. 23, 2020, r 5", "r 15 rep No. 23, 2020, r 6", "r 16 amd No. 23, 2020, r 7", "r 17 amd No. 23, 2020, r 8", "r 18 amd No. 23, 2020, r 9", "sch amd No. 23, 2020, r 10").

General amendments of a formal nature were made by the Interpretation Legislation Amendment Act 2018 to several regulations and the Schedule (ENDNOTES 3). The endnotes provide a key to the abbreviations used and specify where amendments applied.

The reprint’s list of amendments (ENDNOTES 4) notes the specific rules that were amended or repealed by the listed instruments. For practitioners relying on the Regulations, this history signals that provisions relevant to access policies, price monitoring and the Schedule have been refined since 2015. The endnotes identify the statutory instruments and dates, which should be consulted for precise amendment texts and transition details.

No further amendment chronology is contained in the Regulations beyond the endnotes. Users should consult the Northern Territory Legislation Register for subsequent instruments after the reprint date (the Regulations are reproduced "As in force at 30 July 2020") to determine whether further amendments have been made since that date.

The Regulations’ text and endnotes do not record any litigation decisions or judicial interpretations relating to these Regulations. The instrument itself names no cases and the endnotes do not cite decisions. As a subordinate instrument, any litigation affecting interpretation would appear in external case law and administrative decisions rather than within the Regulations’ text.

Consequently, within the source provided there is no litigation history to summarise. Practitioners seeking precedential guidance on topics such as the reasonable excuse defence for strict liability offences in reg 4 or reg 13, the scope of the Regulator’s discretion in price determinations under reg 16 and reg 17, or the enforceability of arbitration awards under the access policy requirements should search Northern Territory superior court decisions, tribunal determinations and the published decisions of the Utilities Regulator and arbitration awards arising from these provisions. None are cited in the instrument as at the reprint date.

Where statutory provisions cross into national legislation (for example the Commercial Arbitration (National Uniform Legislation) Act 2011), federal and state case law on arbitration procedure and enforcement may be relevant. Similarly, enforcement under the Fines and Penalties (Recovery) Act 2001 could engage judicial review or appellate decisions concerning recovery measures. But locating and relying on such cases requires external legal research beyond the Regulations themselves.

This Regulations text contains several practical traps and technical details where compliance or misunderstanding can produce material consequences. Below are concrete "watch points" grounded in the text.

Strict liability offences and reasonable-excuse defences. Two offences are strict liability: failure by a master to ready a vessel for a pilot (reg 4(3)) and failure by a private port operator to publish an access policy on its website within five days (reg 13(4)). Strict liability lowers the prosecution’s burden on mens rea, so defenders must be prepared to assert and prove a "reasonable excuse" under reg 4(4) or reg 13(5). The instrument does not define "reasonable excuse"; this will require factual evidence in each case. Strict liability increases enforcement risk for routine operational failures.

Short timelines for documents and notices. The Regulations prescribe tight deadlines. Private port operators must provide an initial draft access policy to the Regulator within four months of becoming a private port operator (reg 13(1)), and must publish the approved access policy on their website within five days (reg 13(3)). For proposed changes to charges, operators and providers must notify the Regulator at least 20 days before the change and publish notice on their websites at least 10 days before the change (reg 16(2)(c)(i), (ii), (C); reg 16(3) prescribes contents). The Regulator must consult by sending a draft price determination at least 30 days before making it (reg 17(1)). Non-compliance with notification timeframes can trigger contravention exposure or regulatory scrutiny.

Reporting windows for incidents. Reportable incidents that involve death, serious injury as defined in reg 26(4)(a)(ii), loss of vessel, loss of person, property damage above $20,000, or actual/potential environmental harm must be reported within one hour after occurrence (reg 26(4)(a)). Other reportable incidents require reporting within 12 hours, or the shorter period required by another Act (reg 26(4)(b)). Practically, this demands pre-planned on-call reporting procedures and clear operational definitions so personnel can identify reportable incidents rapidly.

Ambiguities over "prescribed services" scope. Reg 12 lists prescribed services but excludes services provided under lease by the private port operator (reg 12(2)). It also carves out bunkering, provisioning, waste removal and towage for facilitating access as not prescribed (reg 12(3)). Ports and operators must map commercial arrangements to the reg 12 definitions to determine whether specific services are within the access and pricing regime. Misclassification could lead to unnecessary access requests, incorrect reporting, or missed regulatory protections.

Arbitration constraints and evidentiary access. Access policies must provide arbitration rights and give arbitrators power to order production of information, subject to confidentiality safeguards (reg 13(2)(f)(vii)(A)-(B)). However, the arbitrator must also make a price-related access decision consistent with any price determination in force (reg 13(2)(f)(vii)(C)). The arbitrator must consider specified factors and exclude costs related to losses from increased competition in upstream or downstream markets when determining the cost of providing access (reg 13(2)(f)(vii)(D)). Parties should structure evidence and commercial proposals carefully, because an arbitrator’s cost apportionment and admissibility of confidential materials are worked out within the arbitration process.

Publication obligations and negotiated charges. The Regulations require publication of standard charges and the standard rate for use of port facilities on operator websites (reg 16(2)(c)(ii), (C); reg 16(2)(ca)), but expressly prohibit requiring publication of negotiated charges (reg 16(2)(d)). Operators need systems to distinguish and keep records of standard published charges and any separately negotiated rates, ensuring confidentiality obligations are observed while meeting transparency requirements.

Costs for facility alterations. Access policies must require the operator to accommodate, as far as practicable, a port user’s reasonable proposal to alter or add facilities, but can recover reasonable costs associated with carrying out any such alterations or additions (reg 13(2)(ea)(iii)-(iv)). This allocates capital cost recovery to the user who requests change, potentially shifting investment decisions and negotiation leverage. Operators should document cost bases carefully to avoid disputes over "reasonable" recoveries.

Pilotage exemption fees and variation fees. Application fees for pilotage exemption certificates are fixed in the Regulations (reg 7). The initial issue fee is $1,070, renewal $475, and variations attract fees depending on the nature of the variation (reg 7(1)-(3)). These monetary thresholds may deter some applications and should be budgeted into operational costs.

Interplay with other statutory reports. Reg 26(3) allows compliance with reporting under other Acts to satisfy reg 26(1) if the alternate report contains prescribed particulars. Operators must therefore ensure that any marine pollution or waste reports contain the particulars reg 26(1) specifies. Failure to do so could result in duplicate reporting or non-compliance.

Withdrawal window for infringement notices. The regional harbourmaster may withdraw an infringement notice only within 28 days after the notice and before payment (reg 23(1)-(2)). Once payment is made the matter is expiated and withdrawal is irrelevant. Parties should consider the risk-reward of paying to avoid enforcement measures versus electing court process within the 28-day window.

Ministerial discretion and public-sector appointments. Where ports are publicly operated, regs 27 and 28 prescribe circumstances for port management officers and pilotage services providers being public sector employees and require the Minister to consider the effect of appointments on safe and economically efficient operations, competition and long-term supply (reg 28(1)-(2)). This embeds public interest considerations and competition assessment into appointment choices, with attendant political and administrative dimensions.

In short, tight timeframes, strict liability offences, confidentiality and arbitration constraints, distinctions between standard and negotiated charges, cost-allocation rules for facility changes and specific fee schedules create multiple operational "gotchas" that commercial actors and advisers should map into internal compliance and commercial decision-making processes.

The Regulations create a set of specific, actionable compliance requirements for the various regulated parties. Below are practical steps, framed by the text, that parties should follow to meet regulatory obligations.

Private port operators

Prepare and submit an access policy. Draft the initial access policy promptly upon becoming a private port operator and provide a draft to the Regulator within four months (reg 13(1)). Ensure the policy addresses all mandatory content in reg 13(2): approach to vessel access and scheduling, commitments to provide port users required information (reg 13(2)(a), (ab)), the access request process and acceptable contents (reg 13(2)(ac)-(ad)), timing commitments, allocation mechanisms where demand exceeds capacity (reg 13(2)(b), (d)), negotiation and dispute resolution steps (reg 13(2)(ea), (f)), confidentiality measures (reg 13(2)(g), (x)), and obligations to give reasons for decisions affecting port users (reg 13(2)(j)). Submit the draft so the Regulator can consider and approve the policy, and be ready to publish on the operator’s website within five days after approval to avoid the strict liability offence in reg 13(3)-(5).
Establish internal processes to respond to access requests. Set a reasonable response timeframe and ensure staff can identify and handle access requests, collect only the permitted information, and provide the information required by port users (reg 13(2)(ac), (ad), (ab), (b)). Implement record-keeping of access requests and negotiations to support dispute resolution and reporting.
Negotiate in good faith and document proposals to alter facilities. When a port user requests alterations or additions, operators must undertake genuine negotiations, accommodate reasonable proposals as far as practicable, and may recover reasonable costs for any agreed works (reg 13(2)(ea)(i)-(iv)). Maintain clear costing methodologies and documentation for any costs charged to port users.
Implement the dispute-resolution ladder. Provide mediation and arbitration options in the access policy and ensure access to an independent arbitrator consistent with reg 13(2)(f). Develop procedures to manage confidential exchange of materials and to comply with arbitrator orders for production subject to confidentiality conditions (reg 13(2)(f)(vii)(A)-(B)).
Publish standard charges and proposed changes. Maintain a current, prominent webpage with the operator’s standard charges and the standard rate for use of port facilities (reg 16(2)(c)(ii), (C); reg 16(2)(ca)). Implement systems to capture and publish notice of proposed changes at least 10 days before the change and to send the Regulator written notice at least 20 days before a proposed change with the prescribed information (reg 16(2)(c)(i)-(ii), (C); reg 16(3)).
Prepare annual reporting. Produce annual reports for the Regulator per reg 16(2)(e) with a list of types of charges, revenue per charge, unit volumes for unit-based charges, amounts and reasons for changes, and optionally details of agreements per reg 16(2)(f). Keep records in writing for verification (reg 26(2)).
Incident reporting and record-keeping. Implement immediate incident detection and reporting systems to meet the one-hour or 12-hour reporting windows in reg 26(4). Ensure incident reports contain the prescribed particulars in reg 26(1). Where other Acts require reporting, ensure those reports include the specifics required by reg 26(1) to avoid duplicate filings (reg 26(3)).

Private pilotage providers and licensed pilots

Licensing and exemption compliance. For applications and renewals, follow the matters in reg 5; Port of Darwin references technical and safety standards under s 67(1) of the Act (reg 5(a)). Budget for the prescribed fees for exemption certificates and variations (reg 7).
Prepare for medical fitness checks. Licensed pilots may be required to undergo medical examinations at any time by the pilotage authority (reg 8). Establish medical records and fitness-for-duty processes.
Understand operational control. Pilots exercising pilotage charge have orders over tugs assisting a vessel in pilotage operations on navigation matters (reg 9). Providers should ensure contractual clarity with tug operators and vessel masters.

Masters and vessel operators

Pilot transfer preparedness. Masters must ensure vessels are made ready for pilot boarding by creating a lee, providing an adequately lit pilot ladder or other safe access on the lee side, and closing scuppers and refuse outlets near the access point (reg 4(2)). Train bridge and deck crews to these standards and maintain equipment and lighting. Document maintenance and readiness checks to defend against strict liability prosecutions using a reasonable excuse defence (reg 4(3)-(4)).
Understand access request rights. Vessel operators as port users can request information and begin access requests under operators’ policies (reg 13(2)(ab), (ac), (ad)). Prepare to supply only relevant information and to negotiate in good faith where necessary.

Regulator and Minister

Consult and publish price determinations. The Regulator must send drafts at least 30 days before making price determinations and consider submissions received by the specified date (reg 17(1)-(2)). Ensure resource allocation for timely consultation and publication within the three-month limit after an operator becomes private (reg 17(3)-(4)).

Enforcement preparedness

Infringement notice response protocols. Entities should track potential exposure to infringement notice offences listed in the Schedule and set legal and administrative protocols to respond within 28 days either by paying (expiation) or by electing court resolution (reg 21(2)(a)-(b)). Maintain funds for payment or evidence to mount a contest.
Cheque payment rules. If relying on cheque payments to expiate infringement offences or other liabilities, confirm clearing on first presentation per reg 22.

Documentation and audit trails

Keep written records. Reg 26(2) prescribes that records are kept in writing. Maintain digital or physical records with timestamps to evidence compliance with notice periods, access requests, negotiations, arbitration steps, proposed charge notices, publication on websites and incident reports.
Website publication records. Archive web pages showing the access policy and standard charges with publication dates to show compliance with the five day and 10 day publication windows (reg 13(3); reg 16(2)(c)(ii), (C)).

Commercial contracting and negotiation

Contracts and negotiated charges. Private port operators and pilotage providers may enter into agreements that fix charges at amounts different to standard charges (reg 18). Ensure negotiated charges are confidential where intended, and record terms to distinguish them from published standard charges, because price determinations must not require publication of negotiated charges (reg 16(2)(d)).
Cost apportionment and facility alteration agreements. When negotiating facility alterations, document cost bases and recovery mechanisms to support subsequent disputes or arbitration under the access policy (reg 13(2)(ea)(iv)).

Insurance and risk management

Insure for reportable incidents and defend against fines. Given the tight reporting windows and the potential for enforcement under the Fines and Penalties (Recovery) Act, ensure insurance covers liabilities arising from incidents as well as costs related to arbitration and regulatory compliance.

Legal and governance

Legal review of access policy and arbitration clauses. Obtain legal review of access policies and arbitration procedures to ensure consistency with the Commercial Arbitration (National Uniform Legislation) Act 2011 and the Regulator’s expected consultation processes (reg 13(2)(f)(vi), reg 17).
Governance oversight. Board and senior management should be briefed on regulatory obligations, deadlines and the operational changes required to meet reporting and publication duties.

Following the above practical steps, anchored in the specific provisions cited, will materially reduce regulatory risk and position operators, pilots and port users to meet the Regulations’ procedural and substantive requirements.

PORTS MANAGEMENT REGULATIONS 2015

Plain English Summary

Deep Dive

What it does

Current sections

PORTS MANAGEMENT REGULATIONS 2015

Source text: opening excerpt

1 PORTS MANAGEMENT REGULATIONS 2015

Main concepts

Who it affects

Key duties and rights

Penalties and enforcement

How it interacts with other laws

Amendment history

Litigation history

Gotchas

How to comply