2014
LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY
CHIEF MINISTER
Port of Darwin Bill 2014
SERIAL NO. 111
EXPLANATORY STATEMENT
GENERAL OUTLINE
The object of this Bill is to facilitate the NT Government seeking private investment opportunities in the Port of Darwin. 
The Bill authorises and facilitates the transfer of certain assets, rights and liabilities relating to, or connected with, the Port of Darwin to a private investor, subject to the restriction that land comprising port assets may be leased to a private sector entity for a term of no longer than 99 years, but must remain in the ownership of the Northern Territory. 
Ongoing Territory ownership of land at Port of Darwin will provide the Northern Territory with rights and powers necessary to ensure the good, proper and safe operation of port operations into the future, and to facilitate the return of key port infrastructure to the Northern Territory at the end of the lease period.
Part 1	Preliminary matters
Clause 1.	Short Title
This is a standard clause which provides for the citation of the Bill. The Bill, when passed, may be cited as the Port of Darwin Act 2014.
Clause 2.	Commencement
This is a standard clause which provides that the Act will commence on the day fixed by the Administrator by notice published in the Government Gazette.

Clause 3.	Interpretation
Sub-clause (1) defines various words and expressions used in the Act.
Sub-clause (2) provides that any terms used in the Act that are defined in section 9 of the Corporations Act 2001 (Cth) have the same meanings as in that section, unless the Act defines them differently or the context requires otherwise.
Sub-clause (3) clarifies that matters ancillary or incidental to or consequential on an authorised transaction, or done for any purpose connected with the vesting of port assets in a public sector entity at any time after completion of an authorised transaction, is done for the purposes of an authorised transaction for the purposes of the Act.
Sub-clause (4) clarifies that assets, rights and liabilities of a body corporate include those assets, rights and liabilities of any 
wholly-owned subsidiary of the body corporate. 
Sub-clause (5) clarifies that if this Act provides for something to occur on a particular day, the thing is taken to occur at the beginning of that day. 
Clause 4.	Meaning of port assets
Sub-clause (1) defines the term port assets.
Sub-clause (2) provides that 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.
Sub-clause (3) provides that if port assets are transferred (other than under a lease or licence) to a private sector entity for the purposes of an authorised transaction, they cease to be port assets.

Clause 5.		Act binds Crown
Sub-clause (1) is a standard clause that provides that the Act binds the Crown in right of the Territory and, to the extent that the legislative power of the Legislative Assembly permits, the Crown in all its other capacities.
Sub-clause (2) clarifies that nothing in the Act renders the Crown liable to be prosecuted for an offence.
Clause 6.		Extraterritorial operation of Act
Sub-clause (1) confirms that the Act is intended to apply, so far as possible, outside of the Territory.
Sub-clause (2) clarifies that this clause does not limit the operation of any other provision of the Act.
Part 2			Authorised transactions
Clause 7.		Authorised transactions
The purpose of this clause is to create statutory authority for the transfer of port assets within the public sector or to the private sector (except that freehold title to any port asset comprising land must remain owned by a public sector entity) and to make provision for the way in which an authorised transaction may be carried out. 
Sub-clause (1) authorises the transfer of port assets from the Darwin Port Corporation or any other public sector entity to another entity in either the public or private sector, provided that any freehold title to Port of Darwin land remains with a public sector entity and that any term of a lease or licence granted to a private sector entity does not exceed 99 years.
Sub-clause (2) clarifies that the 99 year lease or licence period referred to in sub-clause (1) begins from and includes the day the lease or licence is first granted to a private sector entity after the commencement of the Act and includes any further term that may be granted to a private sector entity under an option.
Sub-clause (3) provides that an authorised transaction may involve, without limitation, entities of any nature and transaction arrangements of any kind.
Sub-clause (4) provides that port assets can be transferred in any manner for the purposes of an authorised transaction.
Sub-clause (5) defines a body corporate that holds port assets as a port assets holder, and provides that port assets of a 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. This sub-clause does not limit sub-clause (4)
Sub-clause (6) provides that no compensation is payable in connection with the transfer of port assets to a public sector entity under an authorised transaction (but the transfer may still be for consideration).
Sub-clause (7) clarifies that clause 11 (which gives the Chief Minister the power to establish transaction companies for the purposes of an authorised transaction) does not limit sub-clause (3).
Clause 8.		Proceeds of authorised transaction
The purpose of this clause is to require the proceeds of the transfer of ports assets to a private sector entity pursuant to an authorised transaction to be paid to the Territory.
Sub-clause (1) provides that the proceeds of any transfer of port assets to a private sector entity are payable to the Territory.
Sub-clause (2) clarifies that transaction proceeds include payments under a lease or licence of port assets granted, or in respect of the grant of any other right, to the private sector entity, and payments in respect of any tax, duty, fee or charge imposed by a law of the Territory in connection with a transaction arrangement.
Sub-clause (3) clarifies that this clause 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. 
Part 3			Facilitating authorised transactions
Clause 9.		Chief Minister’s functions
The purpose of this clause is to grant the Chief Minister broad powers for the purposes of giving effect to an authorised transaction and to set out some of the specific powers of the Chief Minister under the Act to facilitate an authorised transaction. 
Sub-clause (1) grants the Chief Minister the power to exercise all functions necessary or convenient for the purposes of an authorised transaction and any other function conferred on the Chief Minister under the Act.
Sub-clause (2) grants the Chief Minister the power to designate as port assets under the Act, by written order, any assets, rights or liabilities of a public sector entity.
Sub-clause (3) grants the Chief Minister the power to designate, by written order, a lease or licence of port assets as a port assets instrument for the purposes of clause 23 of the Act.
Sub-clause (4) provides that the Chief Minister may confirm that a specified thing done after the completion of an authorised transaction was done for the purposes of that transaction.
Sub-clause (5) provides that an order under subsection (2), (3) or (4) is conclusive as to the matters specified in it.
Clause 10.		Manner of effecting authorised transaction
This clause provides that an authorised transaction must be effected as directed by the Chief Minister.
Clause 11.		Transaction companies
The purpose of this clause is to grant the Chief Minister a power to establish bodies corporate for the purposes of an authorised transaction, which are then subject to the Act as 'transaction companies'. 
Sub-clause (1) grants the Chief Minister the power to direct, by written order, that a body corporate be established as a transaction company for the purposes of an authorised transaction in any way mentioned in sub-clause (2).
Sub-clause (2) provides that the ways in which a transaction company may be established are the formation or acquisition by or on behalf of one or more public sector entities of a body corporate limited by shares, or the formation or acquisition of a body corporate as a wholly-owned subsidiary of a transaction company.
Sub-clause (3) provides that a body corporate established under the direction of the Chief Minister is a transaction company under the Act.
Sub-clause (4) provides that if it is a public sector entity, a transaction company may be converted from one kind of body corporate to another.
Sub-clause (5) provides that unless the Chief Minister agrees in writing to the contrary, a transaction company is not, and does not represent, the Territory and the transaction company’s liabilities are not guaranteed by the Territory.
Sub-clause (6) grants the Chief Minister the power to act for or on behalf of a public sector entity (including a transaction company that is a public sector entity) in connection with any rights and liabilities arising out of its capacity as holder of shares or other securities in a transaction company.
Sub-clause (7) provides that if a transaction company is a public sector entity, its shares and other securities must not be issued, sold or transferred except as directed by the Chief Minister under clause 13 or pursuant to sub-clause (8).
Sub-clause (8) grants the Chief Minister the power to enter into and carry out arrangements for the issue, sale or transfer of shares or other securities in a transaction company for or on behalf of a public sector entity (including a transaction company that is a public sector entity).
Clause 12.		Functions of Darwin Port Corporation and transaction companies
The purpose of this clause is to grant the Darwin Port Corporation and any transaction company power to exercise any functions that are necessary or convenient for the purposes of an authorised transaction, and to grant the Chief Minister the power to act, where necessary, on behalf of the Darwin Port Corporation and any transaction company for the purposes of an authorised transaction.
Sub-clause (1) grants the Darwin Port Corporation and any transaction company the power to exercise all functions that are necessary or convenient for the purposes of an authorised transaction.

Sub-clause (2) grants the Chief Minister the power to 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 functions for the purposes of an authorised transaction.
Sub-clause (3) clarifies that any functions conferred by this clause are in addition to any other functions of the Darwin Port Corporation or a transaction company and that those other functions do not prevent or limit the exercise of the additional functions conferred under this section.
Clause 13.	Direction and control of public sector entities
The purpose of this clause is to grant the Chief Minister powers to, as necessary, direct and control public sector entities in the exercise of their functions for the purposes of an authorised transaction. 
Sub-clause (1) provides that a public sector entity is subject to the direction and control of the Chief Minister in the exercise of any of its functions for the purposes of an authorised transaction.
Sub-clause (2) grants the Chief Minister the power, for the purposes of an authorised transaction, to give a written direction to a public sector entity, its directors or other officers.
Sub-clause (3) provides that without limiting sub-clauses (1) or (2), the Chief Minister may give directions under this clause specifying how the public sector entity is to conduct its business or other affairs, requiring the entity to allow a transaction company to use the services of any employee of the entity for a specified period or until the occurrence of a specified event, or requiring the entity to do or refrain from doing something that would not otherwise be lawful.
Sub-clause (4) requires public sector entities and their directors and other officers to comply with a direction under this clause.
Sub-clause (5) clarifies that the Chief Minister’s power to give directions to a transaction company or its directors and officers under this clause, and a transaction company’s (and its directors’ and officers’) obligation to comply with such direction, only exists while the transaction company is a public sector entity.

Sub-clause (6) provides that any action taken to comply with a direction under this clause does not require approval of any other minister, public sector entity or public sector employee or officer, despite anything to the contrary in any Act.
Sub-clause (7) provides that if any other Act specifies a procedure to be followed in relation to a direction given by the Chief Minister or another minister to a public sector entity (or to a director or other officer of a public sector entity), that provision does not apply to a direction under this clause.
Sub-clause (8) clarifies that this clause does not affect the ability of a minister to give directions to a Government Owned Corporation under the Government Owned Corporations Act or to the Land Development Corporation under section 8(1) of the Land Development Corporation Act.
Sub-clause (9) provides that if there is an inconsistency between a direction of the Chief Minister under this clause and a direction mentioned in sub-clause (10) (whether given before or after the Chief Minister's direction), the direction under this clause prevails to the extent of the inconsistency.
Sub-clause (10) refers to a direction mentioned in subsection (8) and a direction given under section 15 of the Darwin Port Corporation Act.
Clause 14.		Immunity of directors and other officers
The purpose of this clause is to seek to protect directors and officers from personal liability for acts or omissions done in good faith to comply with a Chief Minister's direction. 
Sub-clause (1) provides that any director or officer of a public sector entity is not personally liable for anything done or omitted to be done by the director or officer in good faith for the purpose of complying with a direction of the Chief Minister under clause 13, or in the reasonable belief that it was for the purpose of complying with such a direction.
Sub-clause (2) clarifies that sub-clause (1) does not affect the liability that the Territory would, apart from that sub-clause, have for the act or omission.

Clause 15.		Interaction between this Part and the Corporations Act 2001
The main purpose of this clause is to invoke section 5G of the Corporations Act 2001 (Cth) so that the Corporations legislation does not prevent the Chief Minister from giving a direction under this Act, prohibit a director or officer of a public sector agency from complying with the direction, or impose liability (whether civil or criminal) on a director for complying with the direction.
Sub-clause (1) declares that provisions of Part 3 are Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act 2001 in relation to Corporations legislation generally.
Sub-clause (2) defines the term Corporations legislation for the purposes of this clause.
Part 4		Vesting orders
Clause 16.		Definitions
This clause defines the terms transferee and transferor for the purposes of this Part.  
Clause 17.		Making of vesting order
The purpose of this clause is to authorise the Chief Minister to make vesting orders for the purposes of an authorised transaction.
Sub-clause (1) authorises the Chief Minister, for the purposes of an authorised transaction, to make vesting orders that vest port assets in the transferee specified in the order. 
Sub-clause (2) clarifies that a vesting order may be made in respect of port assets that were vested in the transferor by an earlier vesting order, or after the completion of an authorised transaction. 
Clause 18.		Vesting of port assets in transferee
The purpose of this clause is to provide for the effect of a vesting of port assets by vesting order.
Sub-clause (1) specifies the effect of a vesting of port assets by a vesting order in relation to various matters, including rights and liabilities comprised in the port assets, proceedings relating to the port assets, and entitlements and obligations in relation to the port assets.  
Sub-clause (2) provides that the vesting of land that is subject to a lease is valid without an attornment by the lessee. 
Sub-clause (3) provides that the clause is subject to any provision made by the vesting order.  
Clause 19.		Terms and conditions
The purpose of this clause is to make it clear that a vesting order may be made on specified terms as determined by the Chief Minister.
Sub-clause (1) provides that a vesting order may be made on any terms and conditions that are specified in the order.
Sub-clause (2) notes by way of example that a vesting order may specify the consideration for which the vesting is made or may vest an interest in land without vesting the whole of the interest of the transferor in that land.  The examples in sub-clause 19(2) are not exhaustive and do not limit sub-clause (1). 
Sub-clause (3) provides that if an interest in land vested under a vesting order is not a separate interest, the vesting order operates to create the vested interest in the terms specified in the vesting order.
Sub-clause (4) provides that the clause does not limit any other provision of the Part.
Clause 20.		Certification to registration authorities
The purpose of this clause is to facilitate the efficient and prompt registration by the relevant registration authority of any transfer by vesting order of a registrable port asset (such as an interest in land, motor vehicles, vessels).
Sub-clause (1) provides that a transferee or transferor may lodge a certificate with a registration authority (as defined in sub-clause (6)), certifying any information that may reasonably be required by the registration authority to enable it to exercise its functions in relation to the transfer of a port asset by vesting order. 
Sub-clause (2) compels the registration authority to accept and act on the certificate. 
Sub-clause (3) prohibits the registration authority from requiring that information certified in the certificate be provided in any particular form or manner, despite any other law to the contrary. 
Sub-clause (4) provides that no fee or charge is payable to the registration authority in relation to the exercise of its functions under sub-clause (1). 
Sub-clause (6) defines the term registration authority for the purposes of this clause. 
Clause 21.		Confirmation of vesting
The purpose of this clause is to provide a mechanism for the Chief Minister to confirm that a particular port asset has vested in a specified person.
Sub-clause (1) provides that the Chief Minister may, by written order, confirm a vesting of port assets.
Sub-clause (2) provides that the written order is evidence of the vesting. 
Clause 22.		Access to vesting orders
The purpose of this clause is to provide a mechanism for persons with a proper interest in relation to a vesting of port assets to have access to so much of the vesting order as relates to the person's interest.
Clause 22 provides that where the Chief Minister is satisfied that a person who requests access to a copy of a vesting order has a proper interest in such access, the Chief Minister must give the person a copy of so much of the vesting order as relates to the person’s interest. 
Part 5 		Other arrangements related to authorised transactions
Clause 23.	Effect of certain provisions of port assets instruments
The purpose of this clause is to ensure that certain key provisions of a lease or licence of port assets granted to a private sector entity for the purposes of an authorised transaction have the force of law. Examples of the types of provisions in such a lease or licence that the clause gives the force of law are provisions dealing with the non-refundability of any premium, the payment of a sum in the nature of a penalty and termination rights. 

Sub-clause (1) provides that a provision of a port assets instrument (as defined in sub-clause (2)) dealing with any of the particular matters specified within the sub-clause (such as payment of an amount by way of premium or the payment of a sum in the nature of a penalty) has effect as if it were a provision of the Act, despite anything to the contrary in any law. 
Clause 24.	Direction to grant, issue or transfer relevant authorisation
The purpose of this clause is to provide a statutory mechanism to facilitate the prompt and efficient grant, issue or transfer of relevant authorisations to the new port operator as may be required by the new port operator to conduct its operations. 
Sub-clause (1) grants the Chief Minister the power to give a direction to a public sector entity in relation to the grant, issue or transfer of a relevant authorisation, as defined in sub-clause (7), to a new port operator, also defined in sub-clause (7).
Sub-clauses (2) and (3) provide examples of the types of directions that may be made by the Chief Minister under this clause, but are not exhaustive and do not limit sub-clause (1). 
Sub-clause (4) requires the Chief Minister to consult with a public sector entity before giving a direction to it under this clause. 
Sub-clause (5) requires a public sector entity exercising functions under a relevant law, as defined in sub-clause (7), to comply with a direction given to it under this clause. 
Sub-clause (6) clarifies that this clause does not prevent a relevant authorisation being vested in a new port operator under a vesting order. 
Sub-clause (7) defines the term relevant law for the purposes of this clause. 

Clause 25.	Provisions relating to grant, issue or transfer of relevant authorisation 
The purpose of this clause is to clarify that the conversion of certain entities into a different kind of entity is not a ground for suspension or cancellation of a relevant authorisation held by the entity, and also to clarify that anything done by the Darwin Port Corporation in compliance with a term, condition or endorsement of a relevant authorisation held by it is (in relevant circumstances) to be taken to have been done by a new port operator in relation to a corresponding authorisation held by it.
Sub-clause (1) provides that a relevant authorisation granted, issued or transferred to the Darwin Port Corporation or a new port operator may not be suspended or cancelled on the ground of the conversion of the entity into a different kind of entity, or any change in the officers or shareholders of the entity resulting from that conversion or under a transaction arrangement. 
Sub-clauses (2) and (3) provide that anything done by the Darwin Port Corporation in relation to port assets in compliance with a term, condition or endorsement of a relevant authorisation is to be taken to have been done by a new port operator for the purposes of any corresponding term, condition or endorsement of a relevant authorisation issued, granted or transferred to the new port operator under this clause.
Clause 26.	Severance of fixtures
The purpose of this clause is to enable the severance of a port asset that is a fixture from the land on which it is situated, such that the port asset may be dealt with separately from the land. The provisions enable the vesting of the severed port asset, without a transfer of any interest in the land on which the port asset is situated. 
Sub-clauses (1) and (2) grant the Chief Minister the power to direct by written order, for the purposes of an authorised transaction, that a fixture owned by and situated on land owned by the Darwin Port Corporation or another public sector entity is severed from that land. 
Sub-clause (3) explains that the effect of an order under sub-clause (2) is that the fixtures are severed from the land and may be dealt with as personal property separate from the land, for the purposes of an authorised transaction.
Sub-clause (4) provides flexibility for an order under sub-clause (2) to provide for ongoing rights relating to the severed fixture and the land on which the severed fixture is situated. 
Clause 27.	No relief against forfeiture
The purpose of this clause is to ensure that a sublease granted to a private sector entity for the purposes of an authorised transaction does not have the benefit of relief against forfeiture laws where the headlease granted to an associated private sector entity is terminated by the government landlord.
This clause provides that there is no relief against forfeiture (under sections 138 or 139 of the Law of Property Act or otherwise) of a sublease of port assets granted for the purposes of an authorised transaction, if the sublease is terminated as a consequence of the lawful termination of the headlease. 
Clause 28.	Crown Lands Act not to apply to lease or licence
The purpose of this clause is to provide that a licence of Crown land granted for the purposes of an authorised transaction is not restricted by the statutory provisions governing the maximum period and required form of Crown land licences. Clause 28 provides that the Crown Lands Act does not apply to a licence of port assets entered into for the purposes of an authorised transaction. 
Part 6	Miscellaneous matters
Clause 29.	Excluded matter for Corporations Act 2001
The purpose of this clause is to provide that Chapter 2D (Officers and Employees) of the Corporations Act 2001 (Cth) does not apply to any act or omission of the Chief Minister under this Act. This provision protects the Chief Minister from certain potential liabilities under Chapter 2D that may arise by virtue of the exercise of the Chief Minister's powers under this Act.
This clause declares any act or omission of the Chief Minister under this Act to be an excluded matter for the purposes of section 5F of the Corporations Act 2001 in relation to Chapter 2D of that Act. 

Clause 30. 	General relationship of Act with other provisions
Sub-clause (1) provides that the provisions of specified Acts do not prevent, restrict or otherwise limit the carrying out of a transaction arrangement or exercise of a function for the purposes of an authorised transaction. 
Sub-clause (2) provides that the Information Act does not apply to anything done for the purposes of an authorised transaction that is or involves a disposal (as defined in the Information Act) of a record to a transaction company. 
Sub-clause (3) provides that, to the extent of any inconsistency, this Act and any regulations made under it will prevail over any law of the Territory that may be prescribed by the regulations as an inconsistent provision for the purposes of this clause. 
Clause 31.	Compensation not payable
Sub-clause (1) provides that compensation is not payable by or on behalf of the Crown, a public sector entity or an officer, employee or agent of the Crown or of a public sector entity, for matters arising out of or in connection with the enactment, commencement or operation of this Act or any statutory instrument made under it.
Sub-clause (2) specifies that this clause does not extend to compensation payable under a transaction arrangement to a party to the arrangement in connection with the performance of obligations under it.
Sub-clause (3) defines the terms compensation, conduct, Crown, operation of this Act and statement for the purposes of this clause. 
Clause 32.	Effect of things done under Act
This clause prevents the enactment, commencement and operation of the Act (or of any statutory instruments made under it) and the various arrangements and actions that they authorise from constituting a breach of various civil obligations.

Clause 33.		Delegation
This clause provides that the Chief Minister may delegate any of his or her functions under this Act to the Treasurer or any other minister.  
Clause 34.		Orders
This clause provides for when orders take effect and for evidence of and presumptions about orders.

Clause 35.		Regulations
This clause grants the Administrator the power to make regulations under the Act.
Clause 36.		Amendment or modification of operation of Act by regulation
Sub-clause (1) provides that the Administrator may make regulations amending or modifying the operation of this Act in relation to matters arising from or connected with or consequential on an authorised transaction. 
Sub-clause (2)  enables a regulation made under sub-clause (1) to take effect prior to the day on which it is made, provided that day is not earlier than the day on which this clause commences. 
Sub-clause (3) provides that the Administrator may only make a regulation under sub-clause (1) before the completion of the authorised transaction.