1Short title
This Act may be cited as the Port of Darwin Act 2015.
Bills and explanatory statements from legislation.nt.gov.au; second reading speeches from the NT Parliamentary Record (Territory Stories). Links open the official source in a new tab.
Bill homepage (legislation.nt.gov.au)This Act may be cited as the Port of Darwin Act 2015.
This Act commences on the day fixed by the Administrator by Gazette notice.
In this Act:
assets means any legal or equitable estate or interest (whether present or future, vested or contingent or personal or assignable) in real or personal property of any description and includes money, securities, choses in action and documents.
authorised transaction means a transfer of port assets authorised by section 7(1).
Darwin Port Corporation means the Darwin Port Corporation established by section 6 of the Darwin Port Corporation Act 1983 before its repeal.
designated port, see section 3 of the Ports Management Act 2015.
entity includes a person and an unincorporated body.
exercise, a function, includes perform a duty.
function includes power, authority and duty.
GOC means a Government owned corporation as defined in section 3 of the Government Owned Corporations Act 2001.
land includes land covered by water.
Land Development Corporation means the Land Development Corporation established under section 4 of the Land Development Corporation Act 2003.
lease includes concurrent lease and any subletting (or concurrent subletting).
liabilities means any liabilities, duties or obligations (whether present or future, vested or contingent or personal or assignable).
modification includes addition, exception, omission and substitution.
new port operator means the entity that, as a result of a declaration made under section 8 of the Ports Management Act 2015, is or will be the operator of the Port of Darwin.
port assets, see section 4.
Port of Darwin means:
(a) until the making of a declaration in respect of it as a designated port under section 7 of the Ports Management Act 2015 – the area of water and land comprised within the boundaries as declared from time to time under section 43A of the Darwin Port Corporation Act 1983; and
(b) on and from the making of a declaration in respect of it as a designated port under section 7 of the Ports Management Act 2015 – the area of water and land comprised within the boundaries as declared from time to time under that section.
Note for definition Port of Darwin
See Gazette No. G19 of 17 May 2000 at page 3 for the declaration made under section 43A of the Darwin Port Corporation Act 1983 on 26 April 2000.
Port of Darwin land means land that is a port asset.
private sector entity means an entity other than a public sector entity.
public sector entity means any of the following:
the Territory (including the Crown in right of the Territory);
a minister of the Territory;
an Agency;
a GOC;
a public authority of the Territory;
(f) a person holding or occupying an office established by a law of the Territory;
(g) a transaction company all of the issued shares in which are held by, or on behalf of, a public sector entity mentioned in any other paragraph;
(h) an entity that is wholly owned by an entity that is a public sector entity mentioned in any other paragraph.
relevant authorisation means a licence, permit, consent, approval, entitlement, accreditation, exemption or other authorisation under an Act.
rights means any rights, powers, privileges or immunities (whether present or future, vested or contingent or personal or assignable).
transaction arrangement means an agreement or other arrangement entered into by or on behalf of a public sector entity for the purposes of an authorised transaction.
transaction company means a body corporate established as a transaction company under section 11.
transfer, of port assets, includes the sale, lease or licence of port assets and the creation and transfer of any interest in port assets.
transferee, for Part 4, see section 16.
transferor, for Part 4, see section 16.
vesting order, see section 17(1).
(2) Words and expressions used in this Act that are defined in section 9 of the Corporations Act 2001 have the same meanings as in that section, except in so far as they are defined differently in this Act or the context or subject matter otherwise indicates or requires.
(3) An act, matter or thing is done, or has effect, for the purposes of an authorised transaction if it is done or has effect:
(a) for the purpose of effecting or facilitating an authorised transaction; or
(b) for any purpose that is ancillary or incidental to, or consequential on, an authorised transaction; or
(c) for any purpose connected with the vesting of port assets in a public sector entity at any time after completion of an authorised transaction.
(4) The assets, rights and liabilities of a body corporate include the assets, rights and liabilities of a wholly-owned subsidiary of the body corporate.
(5) If this Act provides for an event or other thing to occur on a particular day, that event or thing is taken to occur at the beginning of that day.
Port assets means any of the following:
(a) the assets, rights and liabilities of the Darwin Port Corporation;
(b) any assets, rights and liabilities of any other public sector entity that:
relate to, or are connected with, the Port of Darwin; and
(ii) are designated by the Chief Minister under section 9(2) as port assets for this Act.
(2) Assets, rights and liabilities transferred to a public sector entity for the purposes of an authorised transaction that were port assets immediately before their transfer continue to be port assets after that transfer.
(3) Assets, rights and liabilities cease to be port assets when they are transferred (otherwise than under a lease or licence) to a private sector entity for the purposes of an authorised transaction.
This Act binds the Crown in right of the Territory and, to the extent the legislative power of the Legislative Assembly permits, the
Crown in all its other capacities.
This Act does not render the Crown in any of its capacities liable to be prosecuted for an offence.
It is the intention of the Legislative Assembly that the operation of this Act should, so far as possible, include operation in relation to the following:
things situated outside the Territory, whether in or outside
Australia;
acts, omissions, transactions and matters done, made, entered into or occurring outside the Territory, whether in or outside
Australia;
things, acts, omissions, transactions and matters (wherever situated, done, made, entered into or occurring) that would, apart from this Act, be governed or otherwise affected by the law of the
Commonwealth, another Territory, a State or a foreign country.
This section does not limit the operation of any other provision of this Act.
(1) The transfer of port assets from the Darwin Port Corporation or any other public sector entity to either a private sector entity or a public sector entity is authorised subject to the following limitations:
(a) Port of Darwin land can be leased or licensed to a private sector entity but the ownership of the freehold title to that land must remain with a public sector entity;
(b) a lease or licence of Port of Darwin land granted to a private sector entity cannot have a term that exceeds 99 years.
(2) For subsection (1)(b), the period of 99 years begins from and includes the day on which the lease or licence is first granted to a private sector entity after the commencement of this Act and includes the term of any further lease or licence that may be granted to a private sector entity under an option.
(3) There are no limitations on the nature of the entities that can be used, or on the kind of transaction arrangements that can be entered into, for the purposes of an authorised transaction.
Examples for subsection (3)
An ownership structure involving a unit trust could be used. A transaction arrangement involving the grant of an easement could be entered into.
(4) Port assets can be transferred for the purposes of an authorised transaction in any manner.
(5) Without limiting subsection (4), port assets of a body corporate (the port assets holder) can be transferred to another body corporate by the port assets holder becoming a wholly-owned subsidiary of the other body corporate.
(6) No compensation is payable in connection with the transfer of port assets to a public sector entity under an authorised transaction, but this does not prevent the transfer being for consideration.
To avoid doubt, subsection (3) is not limited by section 11.
The proceeds of any transfer of port assets to a private sector entity under an authorised transaction (the transaction proceeds) belong to, and are payable directly to, the
Territory.
The transaction proceeds include any payment to a public sector entity:
that is a premium or periodic payment under a lease or licence of port assets granted, or payable in respect of the grant of any other right, to the private sector entity; and
in respect of a tax, duty, fee or charge imposed by any law of the Territory in connection with a transaction arrangement.
This section does not affect the validity or enforceability of any transaction arrangement, including one the validity of which is dependent on the provision of valuable consideration.
The Chief Minister has, and may exercise:
(a) any functions that are necessary or convenient for the purposes of an authorised transaction; and
(b) any other function conferred on the Chief Minister under this Act.
(2) The Chief Minister may, by written order, designate any assets, rights or liabilities of a public sector entity as port assets for this Act.
Example for subsection (2)
Land within, or in the vicinity of, the Port of Darwin that is vested in a public sector entity.
(3) The Chief Minister may, by written order, designate a lease or licence of port assets as a port assets instrument for section 23.
(4) The Chief Minister may, by written order, confirm that a specified thing done after the completion of an authorised transaction was done for the purposes of that transaction.
(5) An order under subsection (2), (3) or (4) is conclusive as to the matters specified in it.
An authorised transaction must be effected as directed by the Chief
Minister and can be effected in any manner considered appropriate by the Chief Minister.
(1) For the purposes of an authorised transaction, the Chief Minister may, by written order, direct that a body corporate be established as a transaction company in any way mentioned in subsection (2).
The ways are:
(a) the formation or acquisition by, or on behalf of, one or more public sector entities of a body corporate limited by shares, so that all the issued shares in the body corporate are held by, or on behalf of, the public sector entity or entities; or
(b) the formation or acquisition of a body corporate as a wholly‑owned subsidiary of a transaction company.
(3) A body corporate established in accordance with a direction of the Chief Minister under subsection (1) is a transaction company for this Act.
(4) A transaction company that is a public sector entity may be converted from one kind of body corporate to another.
Except with the written agreement of the Chief Minister:
(a) a transaction company is not, and does not represent, the Territory; and
(b) the liabilities of a transaction company are not guaranteed by the Territory.
(6) The Chief Minister may act for, or on behalf of, a public sector entity (including a transaction company that is a public sector entity) in connection with the rights and liabilities of the public sector entity as the holder of shares or other securities in, or issued by, a transaction company.
(7) Shares and other securities in, or issued by, a transaction company that is a public sector entity must not be issued, sold or transferred except:
(a) in accordance with a direction of the Chief Minister under section 13; or
(b) by the Chief Minister on behalf of the transaction company under subsection (8).
(8) The Chief Minister may, on behalf of a public sector entity (including a transaction company that is a public sector entity), enter into and carry out a transaction arrangement for the issue, sale or transfer of shares or other securities in, or issued by, a transaction company.
The Darwin Port Corporation and each transaction company has, and may exercise, any functions that are necessary or convenient for the purposes of an authorised transaction.
The Chief Minister may act for, or on behalf of, the Darwin Port
Corporation, or a transaction company that is a public sector entity, in the exercise of any of its functions for the purposes of an authorised transaction.
The functions conferred by this section are in addition to any other functions that the Darwin Port Corporation or the transaction company has apart from this section and those other functions do not prevent or otherwise limit the exercise of the additional functions conferred by this section.
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