Thursday, 7 April 2022
Bills
Transport Legislation Amendment (Port Reforms and Other Matters) Bill 2022
Transport Legislation Amendment (Port Reforms and Other Matters) Bill 2022
Introduction and first reading
The PRESIDENT (18:14): I have another message from the Assembly:
The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to amend the Transport Integration Act 2010, the Port Management Act 1995, the Marine Safety Act 2010, the Rail Management Act 1996, the Tourist and Heritage Railways Act 2010 and to make related amendments to other Acts and for other purposes’.
That the bill be now read a first time.
Motion agreed to.
Read first time.
Ms PULFORD: I move, by leave:
That the second reading be taken forthwith.
Motion agreed to.
Statement of compatibility
Ms PULFORD (Western Victoria—Minister for Employment, Minister for Innovation, Medical Research and the Digital Economy, Minister for Small Business, Minister for Resources) (18:15): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:
In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (Charter), I make this Statement of Compatibility with respect to the Transport Legislation Amendment (Port Reforms and Other Matters) Bill 2022 (the Bill).
In my opinion, the Bill, as introduced to the Legislative Council, is compatible with human rights protected by the Charter. I base my opinion on the reasons outlined in this statement.
Overview of the Bill
The Bill makes amendments to the Transport Integration Act 2010 (TIA), Port Management Act 1995 (PMA) and the Marine Safety Act 2010 (MSA). The amendments to the TIA reflect and relate to the establishment of Ports Victoria, a sector transport agency established on 1 July 2021, and change the scope of compensation entitlements following exercise of the Secretary’s power to enter land for investigative purposes. The amendments to the PMA enable Ports Victoria to set standards and requirements relevant to towage services providers and provide for a non-exclusive licensing scheme for pilotage services in all commercial trading ports, to be administered by Ports Victoria. The amendments to the MSA empower harbour masters to give directions to pilots/vessels operating in pilot required waters.
The Bill also makes a number of amendments to other Acts; however, none of these amendments are relevant to this Statement of Compatibility.
Human rights issues
The amendments to the PMA which may engage Charter rights include new clauses to regulate towage services and pilotage services.
The amendments to the MSA which may engage Charter rights include provisions that empower harbour masters to give directions, whether written or oral, to pilots/vessels operating in pilot required waters.
Right to fair hearing
Section 24(1) of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
Decisions taken by Ports Victoria
Clause 32 (that substitutes a new Part 4A for the PMA) and clause 33 (that inserts a new Part 4B to the PMA) of the Bill allow Ports Victoria to make decisions in relation to the provision of towage services and pilotage services. The right to a fair hearing may be engaged by the interaction between the requirement in clause 5 and Ports Victoria’s licensing functions. Section 133E(4)(b) of clause 5 requires that Ports Victoria perform its functions in a commercially sound manner, to the extent it is possible with the functions conferred on it to act consistently with State policies and strategies for the development of the Victorian port and freight networks. Therefore, the question may arise as to whether Ports Victoria can be taken to be impartial in making the required decisions. However, the right of review is sufficiently broad in that any decisions taken by Ports Victoria are subject to an internal review and are reviewable by the Victorian Civil and Administrative Tribunal so that any lack of independence at the point of initial decision is “cured”. Consequently, section 24 of the Charter is not limited.
Right to freedom of movement
Section 12 of the Charter provides that every person lawfully within Victoria has the right to move freely within Victoria, to enter and leave Victoria, and to choose where to live in Victoria. The right extends, generally, to movement without unnecessary impediment throughout the State, and a right of access to places and services used by members of the public. The right is directed at restrictions that fall short of physical detention (restrictions amounting to physical detention fall within the right to liberty, protected under section 21 of the Charter).
Power of harbour masters to give directions
Clause 70 of the Bill substitutes a new provision for section 232(1) of the MSA and empowers harbour masters to give written and/or oral directions to vessels/pilots entering or within waters for which the harbour master has been engaged. The power to give directions is for the purposes of ensuring the safety, management and operation of the waters for which the harbour master has been engaged. Further, clause 71 inserts a new section after section 237(1) of the MSA that provides a ‘reasonable excuse’ defence for not complying with directions. On one view, clause 70 does not limit freedom of movement because the directions to be provided by the harbour master will be necessary on safety and management grounds (and therefore any impediment on freedom of movement will not fall within the scope of the right). In any event, if the right to freedom of movement is limited, the provision amounts to a reasonable limitation for the same reasons.
Presumption of innocence
Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. The right is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence.
‘Reasonable excuse’ defence for not complying with directions
Clause 71 of the Bill inserts a new section after section 237(1) of the MSA that creates an offence containing a ‘reasonable excuse’ exception, which may place an evidential burden on the accused. The relevant offences relate to the refusal or failure of a pilot who has the conduct of a vessel in pilot required waters to comply with a direction by a harbour master to the pilot under section 232 of the MSA. The penalty for the relevant offence is a pecuniary fine.
By creating a ‘reasonable excuse’ exception, these offences place an evidential burden on the accused, in that they require the accused to raise evidence of a reasonable excuse. However, in doing so, this offence does not transfer the legal burden of proof. Once the accused has pointed to evidence of a reasonable excuse, which will ordinarily be peculiarly within their knowledge, the burden shifts back to the prosecution to prove the essential elements of the offence. The imposition of these evidential burdens is necessary to ensure the management of the operation of the vessels in the waters for which the harbour master has been engaged. The presumption only requires a pilot to adduce evidence that is within their personal knowledge. In the circumstances, I do not consider that an evidential onus of this kind limits the right to be presumed innocent.
Right to property
Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. The right will not be limited where the law (whether legislation or the common law) authorising the deprivation of property is clear and precise, accessible to the public, and does not operate arbitrarily.
Power of harbour masters to give directions
Clause 70 of the Bill substitutes a new provision for section 232(1) of the MSA. The new provision empowers harbour masters to give directions for, or with respect to, vessels entering of within waters for which the harbour master has been engaged (or to pilots with conduct of such vessels). This includes the power to control and direct the time and manner of the taking in or discharging from any vessel of cargo, stores, fuel, fresh water and water ballast, and to control and direct the securing or removal of any vessel from the relevant waters (section 232(1A)).
The property rights protected in section 20 of the Charter are relevant to clause 70 because the directions of the harbour master may result in deprivation of property in some circumstances (e.g. If perishable cargo spoils prior as a result of a direction regarding the time of discharge). The right is only relevant where a human being might be deprived of their property (not, for example, a corporation).
In my view, clause 70 does not limit the right to property because any such deprivation would be ‘in accordance with law’. The harbour master’s discretion to issue directions is not at large. Rather, it is constrained by section 230(2) of the MSA, which provides that a harbour master must carry out their functions in a manner that ensures the safety of persons and the safe operation of vessels, and that minimises the effect of vessel operations on the environment. Therefore, any deprivation of property resulting from a lawful direction will not be arbitrary.
Right to privacy
Section 13(a) of the Charter provides that a person has the right not to have their privacy unlawfully or arbitrarily interfered with. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.
Ports Victoria may request conditions on harbour master licences
Clause 60 introduces a new provision (section 91AA) into the PMA that enables Ports Victoria to request that the Director, Transport Safety (N.B. Safety Director means the Director, Transport Safety within the meaning of section 3 of the TIA), impose or vary a condition of a harbour master licence of a harbour master engaged for port waters for which Ports Victoria is responsible for ensuring that a harbour master is engaged. A request must relate to a marine incident with the meaning of the MSA, operational safety performance, participation in training and safety development programmes, any prescribed matter, and that limits or restricts a function of the harbour master that holds that licence.
The privacy rights protected in section 13 may be relevant to clause 60 because the request made by Ports Victoria of the Safety Director may contain information that is personal in nature. For example, if Ports Victoria considers that a condition should be considered for imposition on a harbour master licence by the Safety Director, it would need to provide details of that harbour master. Other information that would be provided by Ports Victoria to the Safety Director in addition would depend on the reason for asking that a condition be considered.
However, in my view, clause 60 does not limit the right to privacy because any interference is permitted by a law (this Bill) which is precise and appropriately circumscribed and is not arbitrary because it is for a clear and legitimate purpose. The names of harbour masters are publicly known, and the Safety Director, who is also responsible for licencing harbour masters, would likely possess the personal information that would be provided by Ports Victoria. Further, harbour masters are unlikely to have an expectation of privacy with respect to the relevant information, as they are operating in a highly regulated industry and would expect such information to be shared in the context of licencing matters.
The Hon. Jaala Pulford MP
Minister for Employment
Second reading
That the second-reading speech be incorporated into Hansard.
Motion agreed to.
Ms PULFORD: I move:
That the bill be now read a second time.
Incorporated speech as follows:
Overview
Over $26 billion of exports pass through Victoria’s commercial ports annually. With freight volumes expected to more than double over the next thirty years, our ports’ safe and efficient operation remains key to our state’s economic growth.
The Government has recognised the importance of getting the governance and regulatory settings right. We have had an independent review. We have accepted all 63 recommendations and published our response. Importantly, we have already implemented the main recommendation—to establish Ports Victoria.
The main purpose of this Bill is to get on with the job of implementing other commitments the Government has made in its formal response.
Specifically, the Bill:
• Embeds the establishment of Ports Victoria in legislation and provides for the abolition of the Victorian Ports Corporation (Melbourne) and the Victorian Regional Channels Authority;
• Adapts the charter of Ports Victoria to implement specific recommendations made as an outcome of the review;
• Implements review recommendations in relation to local ports, Port Development Strategies and regulatory arrangements relating to harbour masters, towage and pilotage; and
• Changes the Port of Hastings Development Authority’s name and object to reflect its current role, and likely future function, in the Victorian port system.
I am very pleased to progress these matters promptly so that we make the Victorian port system agile and efficient—ready to play its part in supporting economic growth and recovery, and ready to adapt as circumstances change.
On behalf of the Minister for Roads and Road Safety and Public Transport, I am also pleased to use the Bill to support the implementation of other reforms in the transport portfolio.
The Bill makes improvements to transport restructuring order provisions and other matters in the Transport Integration Act 2010. The Bill also makes other minor and technical amendments, including amendments to the Tourist and Heritage Railways Act 2010 the Rail Management Act 1996 and the Conservation, Forests and Lands Act 1987.
Implementing port governance reforms
The Port of Melbourne is the largest port for containerised and general cargo in Australia, handling around 36 per cent of Australia’s container trade. The Port of Geelong is the sixth-largest Australian port by tonnage, responsible for approximately $7.8 billion of trade each year. The Port of Portland is the largest sustainable hardwood woodchip port in the world while the Port of Hastings is a key entry point for bulk liquid imports.
Victoria’s ports system has undergone significant changes in the past 30 years. The ports of Geelong and Portland were sold to private companies and the Port of Melbourne Authority was commercialised during the 1990s. These commercialisation processes culminated in the 50-year lease of the Port of Melbourne in 2016.
The complexity of these legacy arrangements prompted the review to examine whether port governance and regulatory requirements remain fit for purpose to deliver on the Government’s economic objectives.
The Review found that the high level of fragmentation that existed in 2020 impacted the State’s ability to plan and coordinate. It has also reduced confidence in the safe, efficient, and effective functioning of the ports system. Further, the disruptions and stresses placed on supply chain arrangements during the early stages of COVID-19 pandemic also highlighted some specific safety related challenges. It demonstrated some of the dangers associated with fragmentation of harbour master functions. It also highlighted that the Victorian Government had limited ability to influence or control the provision of key port operations functions, such as pilotage and towage.
The establishment of Ports Victoria is central to addressing fragmentation, delivering better operational coordination and supporting improvements in local ports and waterway management capability to more effectively support and enable the high economic and community value of local ports.
The Bill will embed the role and function of Ports Victoria in primary legislation and provide it with the tools it needs to implement improved coordination, resilience and agility in relation to the safe provision of essential port services.
Part 2, Division 1 of the Bill amends the Transport Integration Act 2010 to provide for the repeal of the provisions relating to the Victorian Ports Corporation Melbourne and the Victorian Regional Channels Authority, including all references to those entities in the Transport Integration Act.
Ports Victoria already exists as a legal entity following the making of a Transport Restructuring Order in 2021. The Bill therefore does not establish Ports Victoria, but instead, provides for its continued operation in accordance with the new charter that the Bill establishes.
The Bill defines, in very broad terms, the Victorian port system. It then links the objectives of Ports Victoria to this definition. The implications are that Ports Victoria responsibilities are to promote and facilitate trade; support strategic planning and development; undertake operational activities; and provide technical and consultancy services in relation to the whole of the Victorian ports system, not just the commercial trading ports. The Bill elaborates on the expectations for Ports Victoria by specifying the functions it is expected to fulfil in new section 133E (refer to Clause 5of the Bill).
New section 133F provides the Minister with a specific directions power that can be used to expand or limit the functions to be performed by Ports Victoria subject to consideration by the Minister as to what is in the public interest. If Ports Victoria suffers financial detriment due to a direction to perform or not perform a function, then Ports Victoria may be reimbursed by the state from the Consolidated Fund.
New Section 133G provides that when Ports Victoria provides a service to a port, local port or waterway manager, then Ports Victoria may do so without imposing a fee or charge. Ports Victoria may impose a fee that does not exceed the cost of providing the service in circumstances that are prescribed by the Government.
Part 2, Division 2 of the Bill specifies the additional functions that are to be performed by Ports Victoria in relation to licensing of towage and pilotage service providers. These functions are specified separately on expectation that new licensing requirements specified in the Bill will commence on proclamation after the commencement of Ports Victoria’s other functions. This will allow time for relevant standards and requirements to be developed before new licensing requirements commence.
Part 2, Division 3 of the Bill provides for the renaming of the Port of Hastings Development Authority to the Port of Hastings Corporation and the modification of its objects to reflect its current role, and likely future function, in the Victorian port system.
Improving the safety of essential port services
Pilotage and towage services are an essential part of port operations, which are delivered by a small number of highly qualified providers. While harbour masters have clear responsibility and powers to ensure navigational safety in their ports, the Review recommended that Ports Victoria should have greater influence and control over the provision of these essential port services in the interests of public safety.
Part 3 of the Bill makes amendments to the Port Management Act 1995 to provide for the establishment of the new towage and pilotage licensing schemes.
Part 3, Division 1 inserts into the Port Management Act a new Part 4A that provides for the licensing of towage service providers. New Part 4A makes it an offence to provide towage services without a licence. New Part 4A also:
• Specifies the process that Ports Victoria must follow when specifying requirements and standards that are to apply to the provision of a towage service in a commercial trading port;
• Provides power to Ports Victoria to specify licence conditions that apply to licence holders;
• Sets the licence period to 5 years;
• Specifies the application process for licences and renewal of licences;
• Specifies the processes by which licences may be suspended or cancelled by Ports Victoria if Ports Victoria has reason to believe that the licence holder is not complying with licence conditions or requirements; and
• Establishes review rights in relation to licensing decisions made by Ports Victoria.
The Bill provides that Ports Victoria may set different standards and requirements across different ports and port waters.
The new licensing scheme will come into effect after Ports Victoria has developed the standards and requirements that it wishes to apply across different ports and port waters.
Clause 67 of the Bill provides for transitional regulations to be made under new section 189 of the Port Management Act 1995. It is intended that a transitional period will be prescribed in regulations. Existing towage service providers will have the transitionary period to; comply with the standards and requirements set by Ports Victoria for specific port waters; and apply to be licensed to provide services in those port waters.
Part 3, Division 2 of the Bill inserts new Part 4B into the Port Management Act to provide for the licensing of pilotage service providers by Port Victoria. Consistent with the licensing scheme to be applied to towage service providers, new Part 4B makes it an offence to provide pilotage services without being licensed and then specifies the process by which licensing requirements are determined, how licences may be obtained, and the review rights that are available.
The Marine Safety Act 2010 requires masters of vessels to use the services of a licensed pilot in pilot required waters unless they are pilot exempt masters.
Transport Safety Victoria currently registers pilotage services providers, licenses pilots and develops appropriate standards for the training of pilots and pilot exempt masters. Transport Safety Victoria must register a person as a pilotage services provider if the Safety Director is satisfied that the person has the competence and capacity to carry out pilotage services safely. It is an offence to provide pilotage services if unregistered.
Transport Safety Victoria will retain responsibility for licensing individual pilots and registering pilotage service providers, however, the Bill provides that registration must follow the issue of a licence by Ports Victoria.
The issue of a licence by Ports Victoria effectively certifies the applicant as demonstrating to Ports Victoria that the applicant has sufficient knowledge, skills and expertise in relation to Victorian port navigation systems and harbour master directions etc; and that it has sufficient processes and procedures in place to instil that knowledge and expertise in the pilots it engages, so that it can provide pilotage services safely in port waters.
Ports Victoria will be required to cancel or suspend a pilotage services licence if notified by Transport Safety Victoria that it has cancelled or suspended the registration of a pilotage services provider. The Bill will also require Transport Safety Victoria to notify Ports Victoria if it cancels or suspends that registration.
Providers of pilotage services who are registered under the Marine Safety Act at the time the provisions commence are deemed to be licensed. Accordingly, there is no immediate impact of implementing the new licensing scheme on existing operators.
To complement the new licensing requirements and ensure that Ports Victoria has a level of operational control over the provision of pilotage services, the Bill also includes amendments to the Marine Safety Act 2010 in clauses 94 and 95 that specifically authorise harbour masters to give oral or written directions to pilots operating on the waters under the relevant harbour master’s control. This is the same directions power harbour masters have over the master of vessels that may be under pilotage. The amendments put it beyond doubt that pilots must comply with directions received from harbour masters for the purposes of navigational safety.
Harbour master governance and oversight
The Review found that, while our ports are being safely managed, there are some current oversight arrangements that are, at times, unclear across multiple governance bodies. The Review recommended some targeted reform to give Ports Victoria a specific role overseeing the operational performance of the State’s harbour masters to ensure their safety roles and functions will be reliably and consistently applied across Victoria’s commercial ports. Clause 60 of the Bill does this by giving Ports Victoria the power to request that Transport Safety Victoria impose or modify conditions on harbour master licences. Clause 74 of the Bill makes complementary changes to the Marine Safety Act 2010.
The expectation is that, unless the licence condition or limitation requested by Ports Victoria is unreasonable, then it should be implemented by Transport Safety Victoria. It is intended that licence conditions will be imposed to ensure that harbour masters not directly employed by Ports Victoria are required to participate in training and safety development programmes, report marine incidents and provide information when requested on operational safety performance.
Other Port reforms
The Port Management Act 1995 requires ports to prepare a Port Development Strategy. The Response indicated that all port managers will continue to prepare a Port Development Strategy, however, legislation will be amended so that the Minister may declare that a particular entity is responsible for preparing a port development strategy for a specified commercial trading port. Transitional provisions provide that the port of Geelong Port Development Strategy will be prepared by Geelong Port Pty Ltd and that Port of Portland Pty Ltd will be responsible for the Port Development Strategy for the port of Portland. Clauses 65 and 66 in the Bill gives effect to this recommendation.
The Response committed the Government to enable Ports Victoria to provide technical support to local port managers. It also provided that the functions and powers of local port managers be amended so that, with the approval of the Minister, a local port manager may apply its resources and services outside its declared port areas on a commercial basis or to provide assistance to other local port managers. Clauses 62, 63 and 64 implement this recommendation.
Amendments to other transport portfolio laws
The Bill makes the following changes to the Transport Integration Act 2010:
• Building on the experience of using transport restructuring orders to make changes to V/Line and establish Ports Victoria, Part 2 Division 4 of the Bill makes some changes to improve the content of orders and the effect of those orders on restructured entities.
• Clauses 27 and 28 change the scope of the compensation entitlement owed to landowners following the exercise of the Secretary’s or Head, Transport for Victoria’s power to enter land for investigative purposes so that there is alignment between these powers and those established under the Suburban Rail Loop Act 2021 and the Major Transport Project Facilitation Act 2009.
• Clause 29 provides VicTrack with the explicit power to licence (in addition to the power to lease) rail infrastructure that is located on Crown land under the control and management of VicTrack.
Part 6 of the Bill amends the Tourist and Heritage Railways Act 2010 to make it clear that it is not necessary to prescribe a fee to be paid by applicants for registration in the Tourist and Heritage Railway Group Register.
Part 5 of the Bill amends the Rail Management Act 1996 to avoid any doubt that it is up to the Government to determine when the Victorian Rail Access Regime commences.
Part 8, Division 2 of the Bill amends section 11 of the Conservation, Forests and Lands Act 1987 to put it beyond doubt that the powers and functions of the Minister under the Fisheries Act 1995 can be delegated to the Chief Executive Officer of the Victorian Fisheries Authority.
The Bill also makes a range of technical amendments.
Conclusion
The Bill is a significant step forward in implementing the Government’s response to independent review of the port system. Less than 12 months after establishing Ports Victoria, we are fulfilling our commitment to the sector to implement all of the recommendations of the review.
I commend the Bill to the house.
Mr FINN (Western Metropolitan) (18:15): I move, on behalf of Dr Bach:
That the bill be adjourned for one week.
Motion agreed to and debate adjourned for one week.