Thursday, 12 May 2022

Transport Legislation Amendment (Port Reforms and Other Matters) Bill 2022

Second reading

Debate resumed on motion of Ms PULFORD:

That the bill be now read a second time.

Motion agreed to.

Read second time.

Instruction to committee

The PRESIDENT (17:14): I have considered the amendments proposed by Mr Davis, set DD104C, and in my view these amendments are not within the scope of the bill. Therefore an instruction motion pursuant to standing order 15.07 is required.

Mr DAVIS (Southern Metropolitan—Leader of the Opposition) (17:15): I move:

That it be an instruction to the committee that they have power to consider a new clause to amend the Transport Integration Act 2010 in relation to laying before each house of Parliament the transport plan prepared under the act.

House divided on motion:

Motion agreed to.

Committed.

Committee

Clauses 1 to 4 agreed to.

Clause 5 (17:24)

Mr RICH-PHILLIPS: I move:

1. Clause 5, page 9, line 13, omit “system.” and insert “system;”.

2. Clause 5, page 9, after line 13 insert—

“(f) to ensure that the development of the Victorian ports system is prudent and efficient and is carried out consistently with any relevant transport legislation and any standards and codes developed under relevant transport legislation.”.

3. Clause 5, page 9, after line 24 insert—

“(ba) to monitor proposals relating to the development of the capacity of port land and port waters for which Ports Victoria is responsible; and

(bb) to monitor and provide advice, guidance and expertise to the Minister on any emerging trends relating to the Victorian ports system, including but not limited to trends relating to the capacity of port land and port waters; and”.

4. Clause 5, page 10, after line 25 insert—

“(ja) to provide advice, guidance and expertise to port managers of commercial trading ports in relation to the preparation of Port Development Strategies in accordance with the Port Management Act 1995; and”.

5. Clause 5, page 13, after line 16 insert—

“(8) In this section—

Port Development Strategy has the same meaning as it has in section 91J of the Port Management Act 1995.”.

Clause 5, section 133E, which clause 5 seeks to insert in the Transport Integration Act 2010, sets out a range of functions for Ports Victoria. The substantive purpose of these amendments is to insert four additional purposes: to reflect an obligation on Ports Victoria to oversee the development of ports in a way which is prudent and efficient; to oversee the development of port capacity and to monitor the development of port capacity; to provide advice, guidance and expertise to the minister on any issues and trends which are emerging in the Victorian ports system; and to provide advice, guidance and expertise to port managers of commercial trading ports in respect of preparation of port development strategies pursuant to the Port Management Act 1995. In addition to the existing functions of Ports Victoria contained in the bill, the purpose of these amendments is to add those additional functions I have just outlined.

Ms PULFORD: I thank Mr Rich-Phillips for his comments and explanation of the objectives of these. I note Dr Bach also had some involvement in their drafting; I think the earlier version I have has his name on them. But thank you, Mr Rich-Phillips.

In response to the amendments, for a bit of context I want to run through the consultation that has underpinned these reforms. It has been very extensive. There was an independent review of the Victorian ports system in 2020. There were 40 targeted stakeholder sessions with 80 individual stakeholders represented. Sessions were held across the state. In July 2020 the review’s discussion paper was released. There were over 70 written submissions received after that point, which informed the final report. Then in February 2021 the initial government response to the review was publicly released at a ports industry round table, at which point the announcement of the establishment of Ports Victoria was made. And then in August 2021 the full government response was publicly released. For context, in speaking on and outlining the government’s opposition to the amendments, I just wanted to provide that background. The reforms in the bill are very much about greater accountability and transparency in our ports system, and they certainly have been developed through a process of deep engagement and consultation with stakeholders.

On the specific question before us, these clause 5 amendments, the government does not support them. I would like to provide some detail as to why we have come to that view. In part the proposal of the opposition is to add an amendment that requires compliance with transport legislation and any standards and codes developed under relevant transport legislation. This amendment is unnecessary. Ports Victoria is already required to comply with these.

The other part of the proposed new object is to ensure the development of the Victorian ports system in a prudent and efficient manner. That is an objective that Ports Victoria cannot deliver because it cannot ensure the development of the whole Victorian ports system is efficient, because it does not have nor can it exercise the level of control required to ensure—‘ensure’ being the most active word in that new object—that efficient and prudent decisions are made by independent, commercially focused corporate entities. So the amendment is seeking Ports Victoria to have a role and responsibility for something that it does not have control of in terms of the way in which those decisions are made. Ports Victoria’s role is not to regulate or second-guess the roles and functions that are being fulfilled by commercial ports managers. Ports Victoria will support port managers’ strategic planning activities and provide the channels, navigation systems and other forms of marine infrastructure that are necessary to promote and enable trade. Providing Ports Victoria with such an object does not enable that objective to be fulfilled, for the reasons that I have outlined.

The amendment to monitor proposals relating to the development of the capacity of port land and port waters is, we believe, unnecessary because the bill already prescribes the following functions to Ports Victoria:

(b) to manage and develop, or enable and control the management and development of, port land and infrastructure for which Ports Victoria is responsible; and

…

(i) to provide advice and information to port managers in relation to the integrated planning, development, management and promotion activities for ports …

The amendment around emerging trends, similarly, we believe is unnecessary. It is already covered by the bill, which states that Ports Victoria’s objects include:

to support the strategic planning and development of the Victorian ports system;

…

to provide technical and consultancy services in relation to the Victorian ports system.

This is also inconsistent with the Transport Integration Act 2010. It is the role of the secretary to provide advice to the minister. However, the minister can give a direction and provide a statement of expectation to Ports Victoria regarding provision of advice. Similarly, the amendment around advice, guidance and expertise—this function is already covered.

There are aspects of these amendments that are impractical, and there are aspects to these amendments that would be unnecessarily duplicative of functions that are already required elsewhere.

Committee divided on amendments:

Amendments negatived.

Clause agreed to; clauses 6 to 27 agreed to.

New clause (17:38)

Mr RICH-PHILLIPS: This amendment is the subject of the earlier instruction motion to allow the committee to consider this amendment, which would require that the transport plan under the Transport Integration Act 2010 be laid before both houses of Parliament. The purpose of this amendment is to in fact ensure that that plan is actually made, implemented and made public. It is a simple amendment requiring that the plan be laid before each house of Parliament within 120 days of the plan being received from the secretary, and I accordingly move that amendment:

1. After clause 27 insert—

‘27A Transport Plan

For section 63(4) of the Transport Integration Act 2010 substitute—

“(4) The Minister must ensure that a copy of the transport plan is laid before each House of the Parliament within 120 days after receiving the plan from the Secretary.”.’.

Committee divided on new clause:

New clause negatived.

Clauses 28 to 31 agreed to.

Clause 32 (17:46)

Mr RICH-PHILLIPS: I move:

6. Clause 32, page 35, line 10, omit “provided; and” and insert “provided.”.

7. Clause 32, page 35, lines 11 and 12, omit all words and expressions on these lines.

8. Clause 32, page 36, after line 2 insert—

“(3) In determining whether to make a towage service licence subject to a condition under this section, Ports Victoria must be satisfied that the condition would not have an unreasonable adverse impact on the licence holder, having regard to the conditions to which similar towage service licences are subject.”.

9. Clause 32, page 38, after line 6 insert—

“(4) In determining whether to amend, remove or impose a condition of a towage service licence under this section, Ports Victoria must consider whether the proposed amendment, removal or imposition of the condition would have an unreasonable adverse impact on the licence holder, having regard to the conditions to which similar towage service licences are subject.”.

10. Clause 32, page 39, after line 11 insert—

“(5) In determining whether to amend, remove or impose a condition of a towage service licence under this section, Ports Victoria must consider whether the proposed amendment, removal or imposition of the condition would have an unreasonable adverse impact on the licence holder, having regard to the conditions to which similar towage service licences are subject.”.

The purpose of this set of amendments is to insert a reasonableness test with respect to decisions made by Ports Victoria on the conditions on towage service licences. It is basically to ensure that Ports Victoria, in imposing conditions on a towage service licence, has regard to any adverse impacts that conditions on those licences may have on licence-holders, including those relevant to other towage service licence holders.

Ms PULFORD: The government will not be supporting these amendments. The amendments propose to remove the discretion of Ports Victoria to ‘have regard to any other matter that Ports Victoria considers relevant’ when deciding to grant or not grant a towage licence. Towage, pilotage and harbourmaster services are the backbone of navigational safety in any port, and it is standard legislative practice to make provision for unforeseen events or conditions. Removing the ability of Ports Victoria to respond to things unforeseen that might impact safe navigation we believe is irresponsible. I encourage people to think about an unforeseen event occurring to which everyone would reasonably expect Ports Victoria to be able to respond or consider but they could not because the legislation was too prescriptive and they were limited in their ability to ensure the safety of those involved. The level of discretion that the bill provides we do believe is necessary. The checks and balances on the use of that discretion are the review rights that the bill provides.

The other part of the amendments to clause 32 that the coalition is proposing adds considerations that Ports Victoria must make when determining whether licence conditions should be applied. Linking the requirement to consideration of adverse impacts to conditions to which similar towage service licences are subject will be difficult, if not impossible, to reconcile with subsection (2), which explicitly provides scope to vary the conditions that apply to a licence-holder from those that apply to other licence-holders in the same specified port. I would again draw members attention to the review rights that the bill provides and encourage everyone to reflect on the extensive consultation over 2020–‍21, where industry were very closely involved in the development of this policy and this reform, and so I would encourage people to oppose these amendments.

Committee divided on amendments:

Amendments negatived.

Clause agreed to.

Clause 33 (17:52)

Mr RICH-PHILLIPS: I move:

11. Clause 33, page 52, after line 20 insert—

“(2A) Without limiting subsection (1), standards determined under that subsection must provide for continuity of pilotage services, including but not limited to—

(a) the hours during which pilotage services must be provided; and

(b) the prevention or minimisation of threats to the continuity of pilotage services, including threats (whether temporary or permanent) to the availability of physical or labour resources required for the service.”.

This is the final amendment. This seeks to make an amendment with respect to determination of pilotage service standards to provide that continuity of service and regard to minimum disruption of pilotage services be criteria in making determinations with respect to pilotage services.

Ms PULFORD: I thank Mr Rich-Phillips. The government will not be supporting the amendment to clause 33. We fear that this amendment would only serve to create confusion. A standard cannot provide for continuity of pilotage services. Providing for continuity is a responsibility that can be allocated to a party. Put simply, you cannot use a permission to operate, like a licence, to require services to be available and/or provided. Indeed provision of service is a contractual matter to be determined between the parties that are procuring pilotage services and the pilot service providers. The role and function of the state here is to ensure the services provided are safe and fit for purpose, and that is the purpose of the scheme included in the bill. So for those reasons we will not be supporting this amendment.

Committee divided on amendment:

Amendment negatived.

Clause agreed to; clauses 34 to 98 agreed to.

Reported to house without amendment.

Ms PULFORD (Western Victoria—Minister for Employment, Minister for Innovation, Medical Research and the Digital Economy, Minister for Small Business, Minister for Resources) (17:59:099:): I move:

That the report be now adopted.

Motion agreed to.

Report adopted.

Third reading

Ms PULFORD (Western Victoria—Minister for Employment, Minister for Innovation, Medical Research and the Digital Economy, Minister for Small Business, Minister for Resources) (17:59:189:): I move:

That the bill be now read a third time.

Motion agreed to.

Read third time.

The PRESIDENT: Pursuant to standing order 14.27, the bill will be returned to the Assembly with a message informing them that the Council have agreed to the bill without amendment.