Maritime Services (Access) Act 2000

This

Act may be cited as the Maritime

Services (Access) Act 2000.

The objects of this Act are—

to provide access to maritime services on fair commercial terms; and

to facilitate competitive markets in the provision of maritime services through the promotion of the economically efficient use and operation of, and investment in, those services; and

to protect the interests of users of essential maritime services by ensuring that regulated prices are fair and reasonable having regard to the level of competition in, and efficiency of, the regulated industry; and

to ensure that disputes about access are subject to an appropriate dispute resolution process.

In this Act, unless the contrary intention appears—

associate—see subsection (2);

Commission means the Essential Services Commission established under the

Essential

Services Commission Act 2002;

customer means a person who seeks the provision of a maritime service;

essential maritime industry means an industry of providing an essential maritime service or essential maritime services;

essential maritime service means a maritime service consisting of—

providing or allowing for access of vessels to a proclaimed port; or

providing port facilities for loading or unloading vessels at a proclaimed port; or

providing berths for vessels at a proclaimed port;

interested third party—see section 14;

maritime industry means an industry of providing a maritime service or maritime services;

maritime service means a service provided on a commercial basis of any of the following kinds:

providing or allowing for access of vessels to a proclaimed port;

a pilotage service facilitating access to a proclaimed port;

providing berths for vessels at a proclaimed port;

providing port facilities for loading or unloading vessels at a proclaimed port;

providing for the storage of goods at a proclaimed port;

providing access to land in connection with the provision of services of any of the kinds mentioned above, but does not include any of the following:

a towage service for facilitating access to a proclaimed port;

a bunkering service provided at a proclaimed port;

a service for the provisioning of vessels (including the supply of electricity and water) within a proclaimed port;

a service for the removal of waste from vessels at a proclaimed port;

port facility means buildings, wharves and jetties, plant and equipment (but not stevedoring plant and equipment) at a proclaimed port for carrying on a business of providing a maritime service and includes natural and artificial elements or aspects of a harbour on which a proclaimed port is established that are relevant to such a business;

pricing determination means a determination under the Essential

Services Commission Act 2002 regulating prices, conditions relating to prices and price-fixing factors for goods and services;

proclaimed port means a port declared by proclamation to be subject to this Act;

regulated operator or operator means a person who is subject to the access regime prescribed by this Act;

regulated services means services declared by proclamation to be regulated services under section 10.

Two persons are associates of each other if—

they are related bodies corporate within the meaning of the Corporations

Law;

or

one is a body corporate and the other is a director or secretary of the body corporate; or

they are members of the same partnership or joint venture; or

one is a trustee and the other is a beneficiary of the same trust; or

there is an agreement, arrangement or understanding (whether enforceable or not) under which—

one acts in accordance with the directions, instructions or wishes of the other; or

if one or both are bodies corporate—a majority of the directors of one act in accordance with the directions, instructions or wishes of the other, (other than an agreement, arrangement or understanding entered into in the ordinary course of business for the supply of goods or services); or

the regulations declare them to be associates for the purposes of this

Act; or

a chain of associations can (by applying any one or more of the above provisions) be traced between them through another person or other persons.

The

Governor may, by proclamation, declare any one or more of the following ports to be subject to this Act:

Port

Adelaide;

Port

Giles;

Wallaroo;

Port

Pirie;

Port

Lincoln;

Thevenard;

any other port declared by regulation to be capable of being brought within the application of this Act.

A proclamation under this section may define the boundaries of the proclaimed port.

Essential maritime industries are regulated industries for the purposes of the

Essential

Services Commission Act 2002.

The

Commission is authorised to make a price determination under Part 3 of the Essential

Services Commission Act 2002 relating to essential maritime industries.

A price determination authorised by subsection (2) must specify an expiry date that is not later than the date on which the prescribed period in which the determination takes effect ends.

For the purposes of the Essential

Services Commission Act 2002 a person to whom the control and management of a port is assigned by a port operating agreement under the Harbors and Navigation Act 1993 will be regarded as a licensed entity.

The

Commission's powers and responsibilities are not affected by this section except to the extent expressly provided.

In this section—

prescribed period means—

the period ending 30 October 2012; and

each successive period of 5 years thereafter.

A person who carries on a business involving the provision of pilotage services in relation to a proclaimed port must—

maintain a schedule of current pilotage charges; and

provide, at the request of a member of the public, a copy of the current

schedule.

Maximum penalty: $2 500.

Before a person who carries on business involving the provision of pilotage services changes pilotage charges, the person must give the

Commission—

a copy of the proposed new schedule of pilotage charges; and

a description of the changes and the reasons for them.

Maximum penalty: $2 500.

The

Commission has the function of monitoring and enforcing compliance with this Act.

The

Commission must keep maritime industries under review with a view to determining whether regulation (or further regulation) is required under the Essential

Services Commission Act 2002.

The

Commission may—

develop and issue standards to be complied with in the provision of a maritime service; and

revise standards issued under this section from time to time.

A standard issued by the Commission under this section is for the guidance of those engaged in maritime industries and does not have the force of law.

However, if such a standard is promulgated as a regulation it has the force of law and contravention of the standard attracts a penalty fixed in the regulations.

A person (a regulated operator) is subject to the access regime prescribed by this Act if the person carries on a business of providing maritime services at a proclaimed port that are declared by proclamation to be regulated services.

A regulated operator must provide regulated services on terms—

agreed between the operator and the customer; or

if they do not agree, on fair commercial terms determined by arbitration under this Act.

A term as to the price at which regulated services are to be provided will be regarded as a fair commercial term if the price is regulated by a pricing determination under the Essential

Services Commission Act 2002 and the term is consistent with that determination.

A regulated operator must, at the request of a person who intends to ask the operator to provide a regulated service (the intending proponent), provide the intending proponent with—

information reasonably requested about—

the extent to which the regulated operator's port facilities subject to the access regime are currently being utilised; and

technical requirements that have to be complied with by persons for whom the operator provides regulated services; and

the rules with which the intending proponent would be required to comply; and

the information about the price of regulated services provided by the operator that is required to be provided under guidelines issued by the Commission.

If the operator requires, an intending proponent must pay a reasonable charge fixed by the operator for the supply of information requested under this section.

A person who wants a regulated service (the proponent) may make a written proposal to a regulated operator setting out proposed terms and conditions for the provision of the maritime service.

A proposal may provide for—

the modification of port facilities on land occupied by the operator for the purpose of providing the relevant service; or

the establishment of additional port facilities on land occupied by the operator for the purpose of providing the relevant service.

If the operator requires, a proponent must provide further information about the proponent's proposal that the operator reasonably requires in order to give the information for which the proponent has asked.

The operator must, within one month after the relevant day—

give written notice of the proposal to—

the

Commission; and

any person (an affected third party) whose rights would be affected by implementation of the proposal;

and

notify the proponent of the name and address of any affected third party and give the proponent a preliminary indication about—

whether the operator is prepared to provide the regulated service sought in the proposal and, if so, on what terms and conditions; and

if some alteration of, or addition to, existing facilities would be necessary to provide the services, whether the operator would agree to the alteration or addition and, if so, on what terms.

The

relevant day is the day on which the written proposal is made to the operator, or if the operator requires further information under subsection (3), the day on which that information is provided.

Notice of an access proposal may be given to affected third parties by publishing a notice in a newspaper circulating generally in the

State stating—

the name of the proponent and an address at which the proponent may be contacted; and

the name of the operator and an address at which the operator may be contacted; and

the general nature of the access proposal.

A regulated operator may recover the reasonable costs of giving notice under this section, as a debt, from the proponent.