On 23 September 2013, the Transport Legislation(Port Pilotage and Document Verification) Amendment Act 2013 (Qld) (Act) was enacted by Parliament.
This Act amends the Maritime Safety Queensland Act 2002 (Qld), the Transport Infrastructure Act 1994 (Qld), the Transport Operations (Marine Safety) Act 1994 (Qld) and the Transport Operations (Road Use Management) Act 1995 (Qld) for the purpose of facilitating the transfer of port pilotage services from Maritime Safety Queensland (MSQ) to the port authorities, through a managed transition process.
The new regime will bring Queensland into alignment with other jurisdictions.
Pilotage is a compulsory service for most ships which are 50 metres or more in length and which enter Queensland ports. Pilotage aims to reduce the risk of damage to the marine environment and port infrastructure associated with ship movements in ports.
The port authorities are responsible for the establishment, management and operation of port facilities and services within their own ports. They are also responsible for making land available for port facilities and port services, providing for ancillary services or works, maintaining security and providing other services to enhance the usage of their port.
Prior to 2002, port authorities also had responsibility for providing, or arranging for the provision and delivery of, port pilotage services. In 2002, this was transferred to MSQ with the introduction of the Maritime Safety Queensland Act 2002 (Qld) (MSQ Act).
MSQ currently provides port pilotage services in all Queensland port pilotage areas, except Brisbane where they are contracted to Brisbane Marine Pilots Pty Ltd.
Pilots (and their general employers) are immune from any civil liability for damage or loss caused by an act of omission of the pilot. This is based on the established maritime law principle that a pilot takes conduct of a ship for the purpose of navigation during pilotage, however, the ship’s master retains command of the ship and responsibility for any loss or damage that occurs while the ship is under compulsory pilotage.
The MSQ fund receives pilotage fees and other revenue for services provided by MSQ. Amounts are payable from the MSQ fund for the purposes of the MSQ Act (which is primarily for the provision of MSQ’s statutory functions). The Government, through MSQ, controls pricing through state-wide pricing arrangements. These arrangements allow the more profitable ports to cross subsidise the less profitable ports.
Approved exemptions from pilotage licences are available in certain circumstances.
Transfer of port pilotage services, by transfer notice
It is intended that responsibility for port pilotage services (along with employees, leases, assets and liabilities necessary to undertake the port pilotage services) will be transferred to the Gladstone Ports Corporation, Far North Queensland Ports Corporation, the Port of Townsville and North Queensland Bulk Ports Corporation.
Transfer will take place by way of a gazette (or transfer) notice issued by the Minister. A transfer notice may be subject to conditions and will operate despite any other laws and where consent or approval would normally be necessary, such consent or approval will be deemed to have been given.Strictly speaking, the Act does not provide for the devolvement of MSQ’s responsibility for the provision of port pilotage services. This function remains unamended in the MSQ Act. What the Act does do, is to provide a mechanism by which the Minister may transfer the responsibility for port pilotage services to a port authority (or port authorities), by way of, and only to the extent expressly mandated by, a transfer notice.
Port pilotage services in Brisbane and Abbot Point
MSQ will maintain responsibility for its general safety functions and will continue to provide port pilotage services in Brisbane, Southport and Abbot Point.
Brisbane Marine Pilots will continue to provide port pilotage services in the Port of Brisbane until December 2017. Any future contract will need to be consistent with any future state-wide pricing arrangements.The Department of Transport and Main Roads will retain responsibility for Abbot Point but it is envisaged that the Port of Townsville may, for a short period, take over this responsibility whilst it works together with the Department to determine the best pilotage delivery regime in Abbot Point.
Expanded immunity for pilots
The general immunity for pilots and MSQ will be expanded to include new employers of pilots (which will be the relevant port authorities). What this means is that pilots and their employers will continue to enjoy immunity from civil liability for any loss or damage that occurs while the ship is under compulsory pilotage.
New offence provisions
Penalties will be imposed on port authorities who fail to (1) provide port pilotage services in a safe way (2) employ appropriately licenced pilots or (3) adhere to a direction given by a harbour master (who are employees or officers of MSQ) to provide the port pilotage services in a specified way so as to ensure safety.
MSQ fund and pricing arrangements
The MSQ fund will continue to receive pilotage fees and other revenue received for services provided by MSQ. Amounts are still payable from the MSQ fund for the purposes of the MSQ Act and are now also payable to port authorities for providing port pilotage services. No further details on funding are known at this stage.
During the transition process, MSQ will retain responsibility for and control of pricing of the port pilotage services. However, it is intended that the state-wide pricing arrangements will be reviewed during the transition process (but after the service delivery methods are reviewed) to determine the best pricing mechanism.
No changes to pilot exemptions
The Act does not propose any changes to the pilot licensing exemptions. All exemptions granted under the current regime will continue to apply under the new regime.
Rationale for the changes
The Minister for Transport and Main Roads, Scott Emerson, says that these changes will make Queensland’s major trading ports better able to meet the demands of increased shipping volume and vessel movements and more responsive to supply chain pressures.
The changes introduced by the Act will mean that port authorities will be able to make their own decisions, without having to wait for confirmation from MSQ (who are based in Brisbane). This will provide port authorities with greater control and flexibility to make decisions promptly and which are safe for the industry and the environment.
The Act is intended to be an improvement on the pre-2002 regime which encountered problems in terms of uncertainty on pricing mechanisms and a mismatch between service delivery and pricing. The Act will separate pricing and service delivery. It is intended that this separation will enable the Government to settle service delivery before pricing is reviewed, to minimise any conflict between the two issues.
The review of the pricing arrangements will likely take place during the second stage of the transition process, once the port authorities have been able to better gauge the costs involved in providing the port pilotage services. It is intended that each port authority will be required to develop a proposed pricing model based on their own best practice and which addresses their own port specific issues as well as the wider Queensland financial management and access issues. These pricing models will need to be in line with the Government’s policy on pricing and will require endorsement from interested Ministers and Cabinet prior to implementation.
No further details of the pricing review and what it will entail are known at this stage. However, we anticipate that each port authorities’ schedule of fees will be different depending on its market conditions and commercial requirements.
Impacts of the Act
It is likely that the Gladstone Ports Corporation, Far North Queensland Ports Corporation, the Port of Townsville and North Queensland Bulk Ports Corporation will begin to feel the impact of the Act on their day to day operations, when they start to take on responsibility for port pilotage services.
However, the true impact of the Act on port authorities (as well as major exporters, major shipping companies and ship’s agents) is yet to be realised. This is particularly so given that the fiscal changes for the new regime have not yet been discussed.
Nonetheless, the introduction of this Act brings with it the potential for variation in the cost of port pilotage services across Queensland.