Ports Management Regulations 2015

(a) the master of a vessel approaching a compulsory pilotage area intends that the vessel will enter that area; or

(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:

(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.

(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):

(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;

(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.

(3) To avoid doubt, the following services provided by a private port operator are not prescribed services:

(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.

(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:

(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:

(A) the approximate date on which access to the prescribed service is sought;

(C) the reason for which access to the prescribed service is sought; but

(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

(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

(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:

(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;

(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.