PORT COMPANIES ACT 1988
PORT COMPANIES ACT 1988
1988 No 91
An Act to promote and improve efficiency, economy, and performance in the management and operation of the commercial aspects of ports and, to this end,-
(a) To provide for the formation of port companies to carry out port related commercial activities and control the ownership thereof; and
(b) To establish requirements concerning the accountability and ownership of such companies and the responsibilities of Harbour Boards; and
(c) To repeal the New Zealand Ports Authority Act 1968 and certain other enactments relating to ports and harbours
BE IT ENACTED by the Parliament of New Zealand as follows:
1 Short Title and commencement
(1) This Act may be cited as the Port Companies Act 1988.
(2) Except as provided in section 45(2) of this Act, this Act shall come into force on the 1st day of May 1988.
2 Interpretation
(1) In this Act, unless the context otherwise requires,-
Council-controlled organisation means a council-controlled organisation within the meaning of the Local Government Act 2002
Debt security has the same meaning as in the Securities Act 1978:
Directorate, in relation to any port company, means the board of directors of the port company:
Equity security has the same meaning as in the Securities Act 1978:
Harbour Board means a Harbour Board specified in the First Schedule to this Act; and, in relation to any port company, means the Harbour Board in respect of whose port related commercial undertakings the port company is established:
Instrument-
(a) Includes-
(i) Any instrument of any form or kind that creates, evidences, modifies, or extinguishes rights, interests, or liabilities, or would do so if it or a copy of it were lodged, filed, or registered under any Act; and
(ii) Any judgment, order, or process of a Court; but
(b) Does not include any Act of Parliament:
Liabilities means liabilities, debts, charges, duties, and obligations of every description (whether present or future, actual or contingent, and whether payable or to be observed or performed in New Zealand or elsewhere):
Local authority trading enterprise [Repealed by the Local Government Act 2002]:
Minister means the Minister of Transport:
Port company means a company formed and registered under the Companies Act 1955 as a port company in accordance with section 4 of this Act (as in force before the commencement of the Company Law Reform (Transitional Provisions) Act 1994):
Port company plan means a plan approved or determined by the Minister under section 22 of this Act:
Port related commercial undertaking, in relation to any Harbour Board,-
(a) Means the property and rights of the Harbour Board that-
(i) Relate to the activities of commercial ships and other commercial vessels, and commercial hovercraft and commercial aircraft, or to the operation of facilities on a commercial basis for ships, vessels, hovercraft, and aircraft of any kind; or
(ii) Facilitate the shipping or unshipping of goods or passengers; and
(b) Without limiting the generality of paragraph (a) of this definition, includes-
(i) The provision by a Harbour Board of any building or facility wherever situated for use in connection with the handling, packing, or unpacking of goods for shipping or unshipping through any port; and
(ii) Items such as breakwaters and dredges and other items that, although they may not themselves be revenue producing and may have a number of purposes or uses, are nevertheless related to the operation of the port on a commercial basis; but
(c) Does not include any undertaking that is a statutory function or duty of the Harbour Board relating to safety or good navigation:
Property-
(a) Means property of every kind whether tangible or intangible, real or personal, corporeal or incorporeal; and
(b) Without limiting the generality of paragraph (a) of this definition, includes-
(i) Choses in action and money; and
(ii) Goodwill; and
(iii) Rights, interests, and claims of every kind in or to property, whether arising from, accruing under, created or evidenced by, or the subject of, an instrument or otherwise and whether liquidated or unliquidated, actual, contingent, or prospective; and
(iv) To the extent specified in the port company plan approved by the Minister under section 22 of this Act, any right conferred by a designation under an operative district scheme applying to land transferred from the Harbour Board to the port company:
Regional council means a regional council within the meaning of the Local Government Act 2002:
Rights means all rights, powers, privileges, and immunities, whether actual, contingent, or prospective:
Subsidiary has the same meaning as in sections 158 and 158A of the Companies Act 1955 or sections 5 and 6 of the Companies Act 1993, as the case may be.
Territorial authority means a territorial authority within the meaning of the Local Government Act 2002.
(2) Every reference in this Act to the expression "Harbour Board" shall be construed as including a reference to a regional council or a territorial authority to which any property, rights, liabilities, functions, duties, or powers of a Harbour Board have been transferred pursuant to any Order in Council made under section 36 of the Local Government Act 1974.
2A Special provisions where more than one regional council or territorial authority succeeds Harbour Board
(1) Where any functions and powers of a Harbour Board have been transferred to more than one regional council or territorial authority pursuant to an Order in Council made under section 36 of the Local Government Act 1974, the regional councils and territorial authorities shall determine by agreement between them which of them is to have the functions and powers of the Harbour Board under this Act.
(2) Where any duties of a Harbour Board have been transferred to more than one regional council or territorial authority pursuant to an Order in Council made under section 36 of the Local Government Act 1974, then, except as provided in subsection (3) of this section, every duty of a Harbour Board under this Act shall be the duty of each of the regional councils and territorial authorities; but the regional councils and territorial authorities may determine by agreement between them which of them is to perform the duty.
(3) Where any property, rights, or liabilities of a Harbour Board are vested in a regional council or territorial authority (or any combination of them) pursuant to any Order in Council made under section 36 of the Local Government Act 1974, every duty of the Harbour Board under this Act in respect of that property, right, or liability shall be the duty of the regional council or territorial authority (or combination of them) concerned.
(4) Where regional councils and territorial authorities are unable to reach any agreement pursuant to subsection (1) or subsection (2) of this section, any of them may refer the matter to the Local Government Commission for determination.
3 Act to bind Crown
This Act shall bind the Crown.
Part 1 - Port Companies
4 Amendment of documents constituting port companies
No amendment shall be made to the memorandum or articles or the constitution of a port company at any time without the prior written approval of the Minister.
5 Principal objective to be successful business
The principal objective of every port company shall be to operate as a successful business.
6 Directors of port companies
(1) The articles of association or constitution of every port company shall provide-
(a) That there shall be no fewer than 6 directors of the port company; and
(b) That not more than 2 members or employees of the Harbour Board or any other Harbour Board, territorial authority, regional council or united council that holds any equity securities in the company of any class that confer rights to vote at any meeting of the company may be directors of the port company.
(2) Subject to subsection (1) of this section, the directors of each port company shall be persons who, in the opinion of those appointing them, will assist the port company to achieve its principal objective.
(3) All decisions relating to the operation of the port company shall be made by or pursuant to the authority of the directorate of the company in accordance with the statement of corporate intent (if any).
(4) For the avoidance of doubt it is hereby declared that no director of a port company is, by virtue of holding that office, a statutory officer within the meaning of the Local Government Official Information and Meetings Act 1987.
7 Shareholding of port companies
(1) Harbour Boards, regional councils, and territorial authorities are hereby authorised to subscribe for, otherwise acquire, hold, or dispose of, equity securities in port companies.
(2) Nothing in subsection (1) of this section limits or prevents any other person from subscribing for, otherwise acquiring, holding, or disposing of, equity securities in port companies.
7A Restrictions on holding equity securities
(1) No port company shall have in its memorandum or articles of association or in its constitution, as the case may be, any provision providing for the class of shares referred to in section 7(1) of this Act (as repealed by section 4 of the Port Companies Amendment Act 1990), or any provisions permitted by subsection (2) of that section (as so repealed).
(2) Where a port company does not comply with subsection (1) of this section, the Minister may, in accordance with this section, make such alterations to the memorandum of association and articles of association or the constitution of the port company as the Minister considers appropriate in order to achieve the purpose of subsection (1) of this section.
(3) The Minister shall give notice of all alterations to the port company and to every holder of equity securities in the company at the address of that person as shown in the share register of the company or otherwise known to the Minister.
(4) The Minister shall specify a date, which shall be not earlier than 14 days after the sending of the last of the notices referred to in subsection (3) of this section, on which those alterations shall take effect.
(5) Every alteration shall have effect as if it was an alteration to-
(a) The memorandum of association or articles of association of the company made in accordance with the Companies Act 1955; or
(b) The constitution of the company made in accordance with the Companies Act 1993,-
as the case may be, and, for the purposes of those Acts, the notice of the alteration given to the port company by the Minister under subsection (3) of this section shall be deemed to be a special resolution of the port company concerned made on the date on which the last of the notices was sent under the subsection.
8 Statement of corporate intent
The directorate of every port company-
(a) Shall deliver to its shareholders; and
(b) Make available to the public,-
a draft statement of corporate intent not later than 1 month after the commencement of each financial year of the port company.
9 Contents of statement of corporate intent
Each statement of corporate intent shall specify for the group comprising the port company and its subsidiaries (if any), and in respect of the financial year in which it is delivered and each of the immediately following 2 financial years, the following information:
(a) The objectives of the group:
(b) The nature and scope of the activities to be undertaken:
(c) The ratio of consolidated shareholders' funds to total assets, and definitions of those terms:
(d) The accounting policies:
(e) The performance targets and other measures by which the performance of the group may be judged in relation to its objectives:
(f) An estimate of the amount or proportion of accumulated profits and capital reserves that is intended to be distributed to the shareholders:
(g) The kind of information to be provided to the shareholders by the port company during the course of those financial years, including the information to be included in each half-yearly report:
(h) The procedures to be followed before any member of the group subscribes for, purchases, or otherwise acquires shares in any company or other organisation:
(i) Any activities for which the directorate seeks compensation from the Harbour Board (whether or not the Harbour Board has agreed to provide such compensation):
(j) The directorate's estimate of the commercial value of the shareholders' investment in the group and the manner in which, and the times at which, this value is to be reassessed:
(k) Such other matters as are agreed by the shareholders and the directorate.
10 Completion of statement of corporate intent
The directorate shall consider any comments on the draft statement of corporate intent that are made to it within 2 months of the commencement of the financial year by the shareholders or any of them, and shall deliver the completed statement of corporate intent to the shareholders within 3 months of the commencement of the financial year.
11 Modifications of statement of corporate intent
(1) A statement of corporate intent for a port company may be modified at any time by written notice from the directorate of the port company, so long as the directorate has first-
(a) Given written notice to the shareholders of the proposed modification; and
(b) Considered any comments made on the proposed modification by the shareholders or any of them within-
(i) One month after the date on which the notice under paragraph (a) of this subsection was given; or
(ii) Such shorter period as the shareholders may agree.
(2) Notwithstanding any other provision of this Act or of the memorandum of association or articles of association of any port company, but subject to section 14 of this Act, the shareholders may from time to time, by resolution, require the directorate of the port company to modify the statement of corporate intent for that company by including or omitting any provision or provisions of a kind referred to in paragraphs (a) to (h) of section 9 of this Act; and any directorate to whom such a notice is given shall comply with the notice.
(3) Before giving any notice under subsection (2) of this section, the shareholders shall-
(a) Have regard to sections 5 and 16 of this Act; and
(b) Consult the directorate concerned as to the matters to be referred to in the notice.
12 Obligation to make statement of corporate intent available
Every completed statement of corporate intent and every modification that is adopted to a statement of corporate intent shall be made available to the public by the directorate of the port company within 1 month after the date on which it is delivered to the shareholders or adopted, as the case may be.
13 Circumstances in which statement of corporate intent not required
Upon the listing of the shares of a port company on a registered exchange's market (within the meaning of section 2(1) of the Securities Markets Act 1988), the port company shall no longer be required to comply with sections 8 to 12 of this Act and the current statement of corporate intent shall cease to be of continuing effect.
14 Power of Minister to direct certain provisions not to apply
(1) In any case where the Minister is satisfied that, on and from a specified date, at least 50 percent of the equity securities of the port company that confer rights to vote at a general meeting of the company will be held or beneficially owned by persons other than Harbour Boards, regional councils, territorial authorities, or council-controlled organisations, or a combination of them, the Minister may, by notice in the Gazette, direct that-
(a) Unless the port company otherwise elects, all of sections 4(2), 5, 6, 8 to 12, 16, 18, and 19 of this Act are not to apply in respect of that port company from that date; and
(b) Unless the company concerned otherwise elects, section 20 of this Act shall not apply to-
(i) A company that is a related company to the port company; or
(ii) A company that consists substantially of the same shareholders as the port company, or is under the control of the same persons,-
and any such direction may contain such transitional provisions as the Minister thinks fit.
(2) In any case where not more than 49 percent of the equity securities of a port company that confer rights to vote at a general meeting of the port company are held or beneficially owned by persons other than Harbour Boards, regional councils, territorial authorities, or council-controlled organisations, or a combination of them, the Minister may, by notice in the Gazette,-
(a) Direct that the port company need not prepare a statement of corporate intent under sections 8 and 9 of this Act; and
(b) Inform the company that it may regard its current statement of corporate intent as ceasing to be of continuing effect.
(3) Any direction under this section may be revoked at any time by the Minister, by notice in the Gazette, if the Minister is satisfied that the circumstances that led to the giving of the direction no longer exist.
15 Saving of certain transactions
A failure by a port company to comply with-
(a) Any provision of sections 5 to 12 of this Act; or
(b) Any provision contained in any statement of corporate intent,-
shall not affect the validity or enforceability of any deed, agreement, right, or obligation entered into, obtained, or incurred by a port company.
16 Reports and accounts
(1) Within 2 months after the end of the first half of each financial year of a port company, the directorate of the port company shall deliver to the shareholders and the Minister a report of its operations during that half-year.
(2) Each report required by subsection (1) of this section shall include the information required by the statement of corporate intent to be included therein.
(3) Within 3 months after the end of each financial year of a port company or such longer period as the Minister may allow, the directorate of the port company shall deliver to the shareholders and the Minister-
(a) A report of the operations of the port company and those of its subsidiaries during that financial year; and
(b) Audited consolidated financial statements for that financial year consisting of-
(i) Statements of financial position, profit and loss, and cash flows; and
(ii) Such other statements as may be necessary to show the financial position of the port company and its subsidiaries and the financial results of their operations during that financial year; and
(c) The auditor's report on those financial statements.
(4) Every report under subsection (3)(a) of this section shall-
(a) Contain such information as is necessary to enable an informed assessment of the operations of the port company and its subsidiaries, including a comparison of the performance of the port company and subsidiaries with any relevant statement of corporate intent; and
(b) State the maximum dividend (if any) recommended to be payable by the port company in respect of its equity securities (other than fixed interest securities) for the financial year to which the report relates.
17 Protection from disclosure of sensitive information
Nothing in this Act shall be construed as requiring the inclusion in any statement of corporate intent, annual report, financial statement, or half-yearly report required to be produced under this Act of any information that could be properly withheld if the Local Government Official Information and Meetings Act 1987 applied to port companies and a request for that information were made under that Act.
18 Non-commercial activities
(1) Where the Harbour Board wishes the port company to provide or make available goods or services to assist the Harbour Board in the exercise of any statutory function, duty, or power, the Harbour Board and the port company shall enter into an agreement under which the port company will provide or make available the goods or services in return for the payment by the Harbour Board of the whole or part of the price thereof.
(2) Where-
(a) The Harbour Board wishes the port company to provide or make available goods or services to assist the Harbour Board in the exercise of any statutory function, duty, or power; and
(b) The Harbour Board and the port company cannot agree as to-
(i) The provision or making available of the goods or services; or
(ii) The conditions on which the goods or services are to be provided or made available,-
the matter shall be referred to arbitration under the Arbitration Act 1908 with one arbitrator to be appointed by each party and an umpire to be appointed by those arbitrators before entering upon their reference.
(3) This section applies to a Harbour Board that is a regional council or a territorial authority only in relation to statutory functions, duties, or powers transferred from a Harbour Board specified in the First Schedule to this Act to that regional council or territorial authority pursuant to an Order in Council made under section 36 of the Local Government Act 1974.
19 Auditor-General to be auditor of port companies and subsidiaries
Despite sections 196 to 203 of the Companies Act 1993, every port company and every subsidiary of every port company is a public entity as defined in section 4 of the Public Audit Act 2001 and, in accordance with that Act, the Auditor-General is its auditor.
20 Application of Act to related and associated companies
(1) Subject to subsection (2) of this section, sections 4 (except subsections (1), (3), (6), and (7) ), 5, 6, 7, 15, and 18 of this Act shall apply to every company that is-
(a) A related company (as defined in section 2(5) of the Companies Act 1955 or section 2(3) of the Companies Act 1993, as the case may be,) to a port company; or
(b) A company that consists substantially of the same shareholders as the port company, or is under the control of the same persons-
as if that company were a port company within the meaning of this Act.
(2) Nothing in subsection (1) of this section applies in relation to a company that the Minister notifies in writing is exempt from the provisions of that subsection.
(3) The Minister shall not exempt a company from the application of subsection (1) of this section unless the Minister is satisfied that the company does not carry on activities that if carried on by a Harbour Board would constitute a port-related commercial undertaking or would otherwise be likely to be carried on by a port company.
Part 2 - Establishment Procedures
21 Establishment Units
(1) Every Harbour Board shall, not later than the 1st day of June 1988 or such later date as the Minister in any particular case may allow, constitute and adequately fund an Establishment Unit, which shall comprise such persons as the Harbour Board considers appropriate, having regard to the functions of the Establishment Unit.
(2) The function of each Establishment Unit shall be to prepare and agree upon a port company plan with the Harbour Board, and, in so doing,-
(a) To identify the port related commercial undertakings of the Harbour Board:
(b) To value those undertakings:
(c) To determine the price that should be paid by the port company for those undertakings and the extent to which the price should be met by the issue of equity securities and debt securities to the Harbour Board from which the undertakings are to be transferred:
(d) To prepare in draft form a memorandum of association, articles of association, and statement of corporate intent for the port company:
(e) To determine the best manner in which, and time within which, the port related commercial undertakings of the Harbour Board should be transferred to the port company:
(f) To determine a fair and equitable system for the transfer of appropriate employees from the Harbour Board to the port company (but without making determinations in respect of individual employees):
(g) To determine the responsibilities to be met and equipment and facilities to be provided by the Harbour Board or the port company or both in respect of the Marine Pollution Act 1974:
(h) Such other functions as are conferred upon it by this Act or as are necessary for the proper establishment of an efficient port company.
(3) In the exercise of its function under subsection (2) of this section, the Establishment Unit shall seek the views of the Department of Conservation as to any relevant conservation matters.
(4) The Establishment Unit shall report on the matters specified in subsection (2) of this section to the Harbour Board and make the report available to the public not later than the 1st day of July 1988 or such later date as the Minister in any particular case may allow, and shall similarly make available any subsequent reports of the Establishment Unit on those matters.
(5) The Local Government Official Information and Meetings Act 1987 shall apply in respect of every Establishment Unit as if it were a Harbour Board.
(6) Each Harbour Board is hereby authorised, and deemed always to have been authorised, to constitute, reconstitute, fund, and, after the approval of the port company plan, to dissolve, an Establishment Unit.
(7) Where any Harbour Board has not constituted an Establishment Unit within the time required by this section, the Minister may constitute an Establishment Unit in respect of that Harbour Board, and determine the funding to be provided by the Harbour Board in respect of the Establishment Unit.
22 Determination of port company plan and port related commercial undertakings to be transferred
(1) The Harbour Board and the Establishment Unit shall each use their best endeavours to agree upon the matters specified in section 21(2) of this Act.
(2) Not later than the 1st day of August 1988 or such later date as the Minister in any particular case may allow, the Harbour Board and the Establishment Unit shall report to the Minister as to the extent of their agreement and any disagreement relating to-
(a) The identification and valuation of the port related commercial undertakings of the Harbour Board:
(b) The price that should be paid by the port company for those undertakings and the extent to which the price is to be met by the issue of equity securities and debt securities to the Harbour Board:
(c) The debt securities required to be issued by section 29 of this Act:
(d) The manner in which and time within which the port related commercial undertakings of the Harbour Board are to be transferred to the port company:
(e) The system for the transfer of appropriate employees from the Harbour Board to the port company (but without making determinations in respect of individual employees):
(f) The responsibilities to be met and equipment and facilities to be provided by the Harbour Board or the port company or both in respect of the Marine Pollution Act 1974:
(g) Any other matter within the functions of the Establishment Unit-
and in each case shall give full details.
(3) Where there is disagreement on any matter referred to in subsection (2) of this section,-
(a) The Harbour Board and the Establishment Unit shall report separately to the Minister and to each other setting out all the matters that each considers relevant and the solution proposed by each; and
(b) The disagreement shall be resolved by the written determination of the Minister.
(4) Notwithstanding that the Harbour Board and the Establishment Unit may have agreed on any matter referred to in subsection (2) of this section, the Minister may determine the matter on a different basis if the Minister is satisfied that, having regard to the interests of the Harbour Board and the port company, and, if appropriate, the interests of other Harbour Boards and port companies, it is fair and equitable to do so, and, in so doing, the Minister may exclude from the port company plan any port related commercial undertaking that the Minister does not consider ought to be transferred to the port company or vary the manner in which any undertaking is to be transferred to the port company.
(5) Before making any determination under subsection (4) of this section, the Minister shall advise the Harbour Board and the Establishment Unit of the Minister's intention to do so, and give a reasonable opportunity for each to make submissions on the matter.
(6) Where any matter is to be determined by the Minister under subsection (3) or subsection (4) of this section, the Minister may, instead of determining the matter personally, direct that the matter be determined by arbitration or in some other manner, and, where the Minister so directs in relation to a matter to be determined under subsection (4) of this section, the provisions of subsection (5) of this section shall apply in relation to the persons directed to make the determination as if those persons were the Minister.
(7) Where any matter is not included in a port company plan and the Minister considers that it should be so included, the Minister may direct the Harbour Board and the Establishment Unit to consider the matter and report to the Minister concerning its inclusion in the port company plan.
(8) The Minister may, on the application of a Harbour Board, Establishment Unit, or port company, and after consultation with such of them as the Minister considers appropriate, amend any approved port company plan.
(9) The Minister may, on the application of a Harbour Board, made with the approval of the Establishment Unit or port company, include in any port company plan, as part of the approval of the plan or by way of amendment to an approved port company plan, any undertaking of the Harbour Board, notwithstanding that it is not a port related commercial undertaking.
(10) Where any undertaking is included in a port company plan pursuant to subsection (9) of this section, this Act shall apply in all respects as if that undertaking were a port related commercial undertaking.
(11) No port company plan shall be put into effect until it has been approved by the Minister; and every port company plan shall be put into effect in the form approved by the Minister. The Minister may grant approval of part of a port company plan if the Minister considers it appropriate, and this Act shall apply to that part as if it were a port company plan.
23 Port related commercial undertakings to be transferred to port company
(1) The port related commercial undertakings of each Harbour Board that are to be transferred to a port company in accordance with the port company plan shall be transferred as soon as practicable after the plan has been approved by the Minister under section 22 of this Act.
(2) Where the port company plan so provides, the Harbour Board may grant to the port company leases, licences, easements, permits, or rights of any kind in relation to the port related commercial undertakings of the Harbour Board for such consideration and on such terms and conditions as are provided for or contemplated by the port company plan.
(3) Property that is fixed to, or under or over, any land may be transferred to a port company pursuant to this Act whether or not any interest in the land is also transferred. Where any such property is so transferred, the property and the land shall be regarded as separate property each capable of separate ownership.
(4) Any port related commercial undertaking of a Harbour Board may be transferred to a port company pursuant to this Act whether or not any Act or agreement relating to the undertaking prohibits any such transfer or requires any consent to or in any way restricts any such transfer.
24 Abrogation of restrictions on transfer
(1) No provision in any other Act or in any instrument-
(a) Limiting the Harbour Board's right to sell or dispose of any property to any person; or
(b) Prohibiting the sale or disposition of any property to any person; or
(c) Determining the consideration for the sale of any property; or
(d) Obliging the Harbour Board to account to any person for the whole or part of the proceeds of sale by the Harbour Board of any property; or
(e) Obliging the Harbour Board to pay a greater price than otherwise by reason of or as a consequence of the sale of any property to third parties,-
shall have any application or effect in respect of any agreement or transfer entered into or effected pursuant to or under this Act.
(2) Nothing in this section shall apply in respect of the sale of any area to which section 150 of the Harbours Act 1950 applies; but any such area may be leased to a port company by a Harbour Board for a period not exceeding 21 years, and sections 150 to 155 of the Harbours Act 1950 shall not apply in respect of any such lease.
25 Transfer of reserves
Any land that is subject to the Reserves Act 1977 and is identified in an approved port company plan as being all or part of a port related commercial undertaking may be transferred to a port company pursuant to this Act as if it were not subject to the Reserves Act 1977 and shall cease to be subject to that Act from the registration of the transfer.
26 Modification of provisions of Public Works Act 1981
Nothing in sections 40 to 42 of the Public Works Act 1981 shall apply to the transfer of land to a port company pursuant to this Act, but sections 40 and 41 of that Act shall, after the transfer, apply to that land as if the port company were a Harbour Board and the land had not been transferred pursuant to this Act.
27 Effect of registration under Land Transfer Act 1952
(1) On registration under the Land Transfer Act 1952 of a memorandum of transfer to a port company pursuant to a port company plan of land formerly vested in a Harbour Board in fee simple or held by it on lease-
(a) The land shall vest in the port company for an estate in fee simple or be held by it on lease, as the case may require, subject to all leases, licences, easements, liens, and encumbrances existing in respect of the land immediately before the registration of the memorandum of transfer but otherwise freed and discharged from all trusts, reservations, and restrictions then affecting the land (other than the reservations and restrictions imposed by section 8 of the Mining Act 1971 and section 5 of the Coal Mines Act 1979); and
(b) Such of the land which previously was vested in the Harbour Board as an endowment shall be deemed to be no longer set apart as an endowment.
(2) The District Land Registrar for the district is authorised and directed on receipt for registration of a transfer to a port company and on completion of such surveys and deposit of such plans as the District Land Registrar may require, to issue such certificates of title and make such entries in the register and do all such things as may be necessary to implement sections 23 to 26 of this Act.
28 Exclusion of Public Bodies Leases Act 1969
Notwithstanding section 144 of the Harbours Act 1950, nothing in the Public Bodies Leases Act 1969 shall apply to any lease granted by a Harbour Board to a port company pursuant to a port company plan before the 1st day of October 1989 or such later date as the Minister in any particular case may allow.
29 Liabilities in respect of Port related commercial undertakings
(1) Where any port related commercial undertaking is to be transferred to a port company, the Establishment Unit shall identify the liabilities of the Harbour Board that relate to that undertaking.
(2) The liabilities so identified shall remain liabilities of the Harbour Board except to the extent of any written agreement to the contrary between-
(a) The Harbour Board; and
(b) The Establishment Unit or port company; and
(c) The person or persons to whom the liability is owed; and
(d) Any guarantor of the liability.
(3) No such agreement shall be of any effect until it has been included in an approved port company plan.
(4) The port company plan shall include provision for such debt securities to be issued by the port company to the Harbour Board as will ensure that the Harbour Board receives from the port company funds sufficient to meet the liabilities that it is to retain and that relate to the port related commercial undertakings to be transferred to the port company.
(5) The Minister may, by notice in the Gazette, direct that the port company plan of the Taranaki Harbours Board, or the Taranaki Regional Council or any territorial authority as the successor to the obligations of that Board, as the case may be, to the extent specified in the notice, is not required to comply with the requirements of subsection (4) of this section. Any such direction shall have effect according to its tenor.
30 Certain matters not affected by transfer of undertakings to port company
No transfer of any port related commercial undertaking of a Harbour Board to a port company pursuant to a port company plan approved by the Minister under section 22 of this Act-
(a) Shall be regarded as placing the Harbour Board, or the port company, or any other person in breach of contract or confidence or as otherwise making any of them guilty of a civil wrong; or
(b) Shall be regarded as giving rise to a right for any person to terminate or cancel any contract or arrangement or to accelerate the performance of any obligation; or
(c) Shall be regarded as placing the Harbour Board, or the port company, or any other person in breach of any enactment or rule of law or contractual provision prohibiting, restricting, or regulating the assignment or transfer of any property or the disclosure of any information; or
(d) Shall release any surety wholly or in part from all or any obligation; or
(e) Shall invalidate or discharge any contract or security.
31 Consequential provisions on transfer of port related commercial undertakings to port company
(1) Where any port related commercial undertaking is transferred from a Harbour Board to a port company pursuant to a port company plan, thenceforth-
(a) A reference (express or implied) to the Harbour Board in any Act or instrument relating to the port related commercial undertaking shall be read and construed as a reference to the port company:
(b) All contracts, agreements, conveyances, deeds, leases, licences, and other instruments, undertakings, and notices, (whether or not in writing) relating to the port commercial undertaking, entered into by, made with, given to or by, or addressed to the Harbour Board (whether alone or with any other person) subsisting immediately before the transfer shall, to the extent that they were previously binding on and enforceable by, against, or in favour of the Harbour Board, be binding on and enforceable by, against, or in favour of the port company as fully and effectually in every respect as if, instead of the Harbour Board, the port company had been the person by whom they were entered into, with whom they were made or to or by whom they were given or addressed, as the case may be.
(2) For the purposes of this section, an Act, instrument, contract, agreement, conveyance, deed, lease, licence, or other instrument or undertaking or notice shall be deemed to be related to the port related commercial undertaking if it is identified or referred to as being so related in the port company plan or acknowledged by both the Harbour Board and the port company as being so related.
(3) Nothing in this section shall apply in respect of the liabilities of the Harbour Board in relation to any port related commercial undertaking except as may be necessary to give effect to any agreement referred to in section 29(2) of this Act.
32 Employment deemed to be continuous
Where any person who is an employee of the Harbour Board becomes an employee of the port company pursuant to or as contemplated by an approved port company plan-
(a) For the purposes of every enactment, law, award, determination, contract, and agreement relating to the employment of each such employee, the contract of employment of that employee shall be deemed to have been unbroken and the period of service with the Harbour Board shall be deemed to have been a period of service with the company:
(b) The terms and conditions of employment of each such employee shall, until varied, be identical with the terms and conditions of that employee's employment with the Harbour Board immediately before that employment ceases:
(c) No such employee shall be entitled to receive any payment or other benefit by reason of that employee ceasing to be an employee of the Harbour Board.
33 Duty to act in furtherance of objects of Act
(1) Every Harbour Board shall at all times do everything in its power to achieve the objectives of this Act and for that purpose, but without limitation, shall do everything in its power-
(a) To preserve and maintain all port related commercial undertakings of the Harbour Board pending the transfer of those undertakings to the port company:
(b) To assist the Establishment Unit in the exercise of its functions:
(c) To enable the port company to assume the undertakings that are to be transferred to it:
(d) To assist in the transfer of employees to the port company.
(2) No Harbour Board shall, without the prior written consent of the Minister,-
(a) Dispose of or charge any of its undertakings:
(b) borrow any money (whether on overdraft or otherwise):
(c) Enter into or grant any lease, licence, concession or other franchise agreement or arrangement of more than 12 months duration relating to any of its undertakings:
(d) Extend the term of any lease, licence, concession or other franchise agreement or arrangement relating to any of its undertakings for a period exceeding 12 months.
(3) Nothing in subsection (2) of this section shall apply in respect of-
(a) Any action taken by the Wellington Harbour Board pursuant to the Wellington Harbour Board and Wellington City Council Vesting and Empowering Act 1987:
(b) Any undertaking or class of undertaking that the Minister has informed the Harbour Board in writing is not to be subject to this section.
(4) The Minister shall, upon being satisfied that all the undertakings of the Harbour Board that are to be transferred to the port company have been so transferred, advise the Board in writing that the consent of the Minister to any action referred to in subsection (2) of this section is no longer required.
34 Supply of information
The Minister and the Establishment Unit each may, from time to time, for the purposes of this Act, require the Harbour Board to make available to the Minister or the Establishment Unit, as the case may be, information in its possession or over which it has control relating to its undertakings, operations, and procedures; and the Harbour Board shall make that information available in a form in which it may be readily understood.
Part 3 - Miscellaneous Provisions
35 Public availability of documents
Where any Harbour Board or port company is required under this Act to make any document available to the public, it shall-
(a) Make sufficient copies of that document available for public inspection, free of charge; and
(b) Make sufficient copies of that document available for purchase at a reasonable price during normal office hours at the principal office of the Harbour Board or port company, or both, as the case may require; and
(c) Notify by advertisement in a newspaper circulating in every district of a local authority whose electors are electors of the Harbour Board to which or to whose port company the document relates, the fact that copies are so available.
36 Power of other persons to operate ports
(1) Nothing in this Act shall prevent any person operating any port, whether as a private facility or as a publicly available facility.
(2) Notwithstanding subsection (1) of this section, no Harbour Board shall operate any port related commercial undertaking at any port without the consent of the Minister, which may be conditional and which shall be given only if the Minister is satisfied that at the time of giving the consent there is no port company or other person willing and able to operate the undertaking.
(3) For the purposes of subsection (2) of this section, in determining whether or not any port company or other person is able to operate any port related commercial undertaking the Minister shall be entitled to assume that the Harbour Board will make available to that port company or other person on a reasonable commercial basis any part of the undertaking of the Harbour Board that reasonably ought to be made available by the Harbour Board to the port company or other person if the Minister were to decline to give consent under subsection (2) of this section.
(4) Without prejudice to any other remedies available against any Harbour Board or its members, or against any other body or person, in respect of any contravention of subsection (2) of this section, or in respect of any failure to comply with any condition to which any consent under that subsection is for the time being subject, the provisions of subsection (2) of this section and of that condition shall be enforceable by civil proceedings by the Attorney-General for an injunction or for any other appropriate relief.
37 Stamp duty exemption
No stamp duty shall be payable under the Stamp and Cheque Duties Act 1971 in respect of any instrument of conveyance of property from a Harbour Board to a port company or any lease between those parties which, in each case, is executed pursuant to a port company plan and which is so executed before the 1st day of October 1989, or such later date in any particular case as the Minister, after consultation with the Minister of Finance, may allow.
38 Application of Income Tax Act 1976 and Goods and Services Tax Act 1985
(1) Nothing in section 67, section 117, or section 129 of the Income Tax Act 1976 shall apply in respect of any land or asset disposed of by a Harbour Board to a port company pursuant to a port company plan before the 1st day of October 1989, or such later date in any particular case as the Minister, after consultation with the Minister of Finance, may allow.
(2) For the purposes of the application of the Income Tax Act 1976 in relation to any property transferred to a port company pursuant to a port company plan before the 1st day of October 1989, or such later date in any particular case as the Minister, after consultation with the Minister of Finance, may allow, the property shall be deemed to have been acquired by the port company at the price attributed to that property in the port company plan, and nothing in section 111 of the Income Tax Act 1976 shall apply in respect of any such property.
(2A) Subject to subsection (2D) of this section, except where subsection (2B) or subsection (2C) of this section applies, for the purposes of section 188 of the Income Tax Act 1976 any loss incurred by a harbour board, in relation to a port related commercial undertaking before or after that undertaking is transferred to a port company shall be deemed to have been incurred by that port company.
(2B) Subject to subsection (2D) of this section, where, at any time on or after the 1st day of November 1989, port related commercial undertakings in respect of any port are carried on by a port operator, for the purposes of section 188 of the Income Tax Act 1976 any loss incurred by a harbour board in relation to port related commercial undertakings at that port prior to the 1st day of November 1989 shall be deemed to have been incurred by the port operator.
(2C) Subject to subsection (2D) of this section, where any port related commercial undertakings carried on by a port operator are subsequently transferred to a port company, for the purposes of section 188 of the Income Tax Act 1976 any loss incurred by the port operator in respect of those undertakings shall be deemed to have been incurred by the port company.
(2D) Subsections (2A), (2B), and (2C) of this section shall not apply to any loss that results from the transfer of property-
(a) From a harbour board to a port company that operates at the same port; or
(b) From a harbour board to a port operator that operates at the same port; or
(c) From a port operator to a port company that operates at the same port.
(3) For the purposes of the Goods and Services Tax Act 1985, every transfer of an undertaking from a Harbour Board to a port company pursuant to a port company plan before the 1st day of October 1989, or such later date in any particular case as the Minister, after consultation with the Minister of Finance, may allow, shall be deemed to be the transfer of a part of a taxable activity as a going concern that is capable of separate operation.
(4) For the purposes of this section,-
(a) The term port operator means any local authority (as defined in section 2 of the Income Tax Act 1976) which operates a port related commercial undertaking; but does not include a port company or a local authority (as so defined) to the extent that it operates a port related commercial undertaking through a port company; and
(b) In relation to a port operator, the definition of the term "port related commercial undertaking" in section 2 of this Act shall apply as if the references in that definition to a Harbour Board were references to the port operator.
39 Designations under district schemes
[Repealed]
40 Special provision in relation to Gisborne, Greymouth, and Wanganui Harbour Boards
(1) This section applies to-
(a) The Gisborne Harbour Board; and
(b) The Greymouth Harbour Board.
(c) [Repealed]
(2) Each Harbour Board to which this section applies shall forthwith conduct a review of its operations and finances to determine, not later than the 1st day of June 1988 or such later date as the Minister in any particular case may allow, whether or not it is appropriate that its port related commercial undertakings should be transferred to a port company.
(3) Where a Harbour Board to which this section applies resolves that it is appropriate that its port related commercial undertakings be transferred to a port company, it shall forthwith advise the Minister accordingly, together with details supporting the reasons for that view and, unless the Minister, within 21 days after receiving that advice, requests the Local Government Commission to issue a proposal under subsection (5) of this section, the provisions of this Act shall apply in respect of that Harbour Board in the same manner as if that Harbour Board were a Harbour Board specified in the First Schedule to this Act.
(4) Where a Harbour Board to which this section applies resolves that it is not appropriate that its port related commercial undertakings should be transferred to a port company, the Harbour Board shall forthwith request the Local Government Commission to issue a proposal under subsection (5) of this section.
(5) The Local Government Commission shall, as soon as practicable after receiving a request under subsection (3) or subsection (4) of this section, issue a proposal for the dissolution or abolition of the Harbour Board and the transfer of all the functions of the Harbour Board to another local authority or local authorities.
(6) When issuing a proposal under subsection (5) of this section, the Local Government Commission-
(a) Shall give such public notice of that proposal as it considers appropriate; and
(b) Shall invite interested persons and organisations to make submissions on the proposal within 2 months after the first public notice of the proposal.
(7) The Local Government Commission shall, as soon as practicable, consider all such submissions and may make such further inquiries as it considers necessary or desirable.
(8) The Local Government Commission shall, as soon as practicable after the submissions on the proposal have been considered and any further inquiries have been made, approve the proposal as publicly notified or as modified as a result of the consideration of the submissions or the Commission's further inquiries.
(9) The proposal, as approved by the Commission,-
(a) Shall be issued as a determination of the Commission; and
(b) Shall be submitted to the Minister of Transport; and
(c) Shall be made available by the Minister of Transport to the public.
(10) Every determination issued under subsection (5) of this section shall be given effect to by Order in Council, and the provisions of Part 1 of the Local Government Act 1974 shall apply in respect of every such Order in Council as if it had been made pursuant to that Part of that Act.
(11) Subsections (1) and (2) of section 35, and sections 37C and 37F of the Local Government Act 1974 shall apply, with any necessary modifications, to any proposal or determination for the dissolution or abolition of a Harbour Board issued under this section as if the proposal or determination were a reorganisation scheme.
41 Repeal of New Zealand Ports Authority Act 1968
(1) The New Zealand Ports Authority Act 1968 is hereby repealed.
(2) The enactments specified in the Second Schedule to this Act are hereby repealed.
(3) Every member of the New Zealand Ports Authority shall vacate office as from the commencement of the 1st day of May 1988; and no such member shall be entitled to any compensation in respect of loss of office.
42 Transitional provision in respect of applications before Ports Authority
Where, at the commencement of this Act, any application is before the New Zealand Ports Authority for its approval under section 13 of the New Zealand Ports Authority Act 1968, the application shall lapse; but the application may, if appropriate, be made to the Minister under section 55A of the Harbours Act 1950.
43 Amendment to Ministry of Transport Act 1968
[Repealed]
44 Repeals
The enactments specified in the Third Schedule to this Act are hereby repealed.
45 Repeals taking effect on 1 October 1988
(1) The enactments specified in the Fourth Schedule to this Act are hereby repealed.
(2) This section and the Fourth Schedule to this Act shall come into force on the 1st day of October 1988.
First Schedule
Section 2
SPECIFIED HARBOUR BOARDS
Auckland Harbour Board.
Bay of Plenty Harbour Board.
Hawke's Bay Harbour Board.
Lyttelton Harbour Board.
Marlborough Harbour Board.
Nelson Harbour Board.
Northland Harbour Board.
Otago Harbour Board.
Southland Harbour Board.
Taranaki Harbours Board.
Timaru Harbour Board.
Wellington Harbour Board.
Second Schedule
Section 41(1)
ENACTMENTS REPEALED
1968 No 39 - The Ministry of Transport Act 1968: So much of the First Schedule (as substituted by section 3(1) of the Ministry of Transport Amendment Act 1973) as relates to the New Zealand Ports Authority Act 1968.
1969 No 100 - The New Zealand Ports Authority Amendment Act 1969.
1970 No 95 - The New Zealand Ports Authority Amendment Act 1970.
1972 No 4 - The Ministry of Transport Amendment Act 1972: So much of the First Schedule as relates to the New Zealand Ports Authority Act 1968.
1978 No 12 - The Zealand Ports Authority Amendment Act 1978.
1982 No 156 - The Official Information Act 1982: So much of the First Schedule (as substituted by section 23(1) of the Official Information Amendment Act 1987) as relates to the New Zealand Ports Authority.
Third Schedule
Section 44
ENACTMENTS REPEALED
1882 No 26 (Local) - The Bluff Harbour Foreshore Reclamation Act 1882.
1897 No 13 (Local) - The Southland Harbour Board Empowering Act 1897.
1902 No 28 (Local) - The Bluff Harbour Foreshore Reclamation and Leasing and Borrowing Act 1902.
1909 No 37 (Local) - The Southland Harbour Board Empowering Act 1909.
1910 No 8 (Local) - The New Zealand Portland Cement Company (Limited) Reclamation and Empowering Act 1910.
1913 No 6 (Local) - The Southland Harbour Board Empowering Act 1913.
1915 No 10 (Local) - The Bluff Harbour Improvements Act 1915.
1929 No 7 (Local) - The Bluff Harbour Reclamation and Leasing and Empowering Act 1929: Sections 4 and 5 and the Second Schedule.
1931 No 43- The Local Legislation Act 1931: Section 30.
1949 No 3 (Local) - The Southland Harbour Board Empowering Act 1949.
1952 No 14 (Local) - The Bluff Harbour Improvement Act 1952: Section 10.
1958 No 6 (Local) - The Southland Harbour Board Act 1958: Sections 5 to 7 and the Schedule.
1959 No 12 (Local) - The Timaru Harbour Board Loan and Empowering Act 1959: Section 15.
1961 No 4 (Local) - The Southland Harbour Board Empowering Act 1961.
1961 No 14 (Local) - The Southland Harbour Board Empowering Act (No 2) 1961.
1965 No 5 (Local) - The Southland Harbour Board Empowering Act 1965.
Fourth Schedule
Section 45
ENACTMENTS REPEALED ON 1 OCTOBER 1988
1955 No 5 (Local) - The Lyttelton Harbour Board Loan and Empowering Act 1955: Section 7.
1956 No 4 (Local) - The Taranaki Harbours Board Empowering Amendment Act 1956: Section 4.
1958 No 6 (Local) - The Southland Harbour Board Act 1958: Section 8.
1959 No 12 (Local) - The Timaru Harbour Board Loan and Empowering Act 1959: Section 15.
1959 No 16 (Local) - The Bay of Plenty Harbour Board Loan and Empowering Act 1959: Section 10.
1966 No 16 (Local) - The Timaru Harbour Board Loan and Empowering Act 1966: Sections 7 and 8.
1967 No 15 (Local) - The Wellington Harbour Board Loan and Empowering Act 1967: Section 12.