Location of port activities

The designation and establishment of new ports and the undertaking of port activities in Queensland is regulated through the Transport Infrastructure Act 1994 and Transport Infrastructure (Ports) Regulation 2016. Section 292(3) of the Transport Infrastructure Act 1994 provides that it is unlawful to carry on port activities of a ‘substantial nature’ outside of a declared port (unless those activities are otherwise authorised by the Governor in Council).

The Transport Infrastructure Act 1994 and Transport Infrastructure (Ports) Regulation 2016 provide for, inter alia:

• defining or amending the limits of a port
• giving a name to a port or changing the name of a port
• establishing a new port authority
• assigning or transferring the management of a defined port to a port authority, the state, or a local government
• identifying the functions and powers of port authorities, including the manner in which a port authority may control activities in its port area
• the Governor in Council to decide that port activities of a substantial nature may be carried on at a place that is not a port managed by a port authority, the State or a local government.

If a proponent intends to carry out ‘port activities’ which are of a ‘substantial nature’ outside of a declared port area, the proponent will need to either obtain a decision from the Governor in Council authorising those activities in accordance with section 291 of the Transport Infrastructure Act 1994 or seek to establish a new port where those activities are proposed to take place.

There is no specific guidance in the legislation as to what constitutes ‘port activities’ or ‘port activities of a substantial nature’ however in general terms, 'port activities' are activities that would typically be carried out at a port or be regulated at a port.

These activities include the movement of vessels to access shore-based facilities, cargo handling (including stevedoring, storage and stowage of goods), passenger handling, and other services associated with maritime transport.

Determining whether a port activity is of a 'substantial nature' would require an assessment of the size and scope of the proposed activity on a case-by-case basis.

Port activities may be assessed as substantial in nature because of the following:

• number and frequency of vessel visits
• volumes and type of cargo transferred, and passengers moved
• supply chain and logistics impacts
• volumes of land side storage and proposed infrastructure.

Port activities that are substantial in scope are those that are real or of substance and those that cause increased risk, including, for example:

• simultaneous and sequential movement of tide restricted vessels
• transhipping operations
• continuous and frequent cargo and passenger transfers
• handling and storage of dangerous goods, including commodities such as liquid hydrocarbon and liquid hydrogen fuel
• access for multiple and common users, now and in the future
• first port of entry arrival of international passenger vessels
• proximity to communities and centres of population
• proximity to environmentally sensitive receptors and areas where development is restricted.

The Queensland Government will determine whether a proposed activity is a port activity and whether it is of a substantial nature, at its discretion.

The declaration of ports is based on the consideration of the cumulative risks that the proposed port activity presents, and whether these risks would be better managed through the activity being controlled by an appropriate port authority.

Port activities of a substantial nature may require the declaration of a port and an appropriate port authority to be assigned to operate it and to exercise regulatory power to control and respond to safety, multi-user access and commercial risks of vessel movements and infrastructure use.

In addition to defining the limits of a port, a regulation under section 71 of the Transport Operations (Marine Safety) Act 1994 may also declare a pilotage area and that area, or part of it, may also be declared a compulsory pilotage area for which a port authority may be responsible.

Section 8 of the Maritime Safety Queensland Act 2002 details Maritime Safety Queensland as responsible for ensuring standards, regulations, auditing, and a host of services within a port including pilotage services and regulating port shipping movements and operations.

The making of regulations to establish a port under the Transport Infrastructure Act 1994 (and declaration of a pilotage area under the Transport Operations (Marine Safety) Act 1994, and port services under the Maritime Safety Queensland Act 2002) will require relevant approvals, and procedures for drafting and making subordinate legislation will need to be followed as set out in the Queensland Legislation Handbook.

The Sustainable Ports Development Act 2015 implemented key port-related actions of the 2015 Reef 2050 Long-Term Sustainability Plan, a joint Queensland and Australian government plan to manage the long-term protection of the Great Barrier Reef.

The Ports Act responds to the United Nations Educational, Science and Cultural Organization (UNESCO) World Heritage Committee recommendations on the reef, ensuring the Outstanding Universal Value of the Great Barrier Reef World Heritage Area is an intrinsic consideration in future port development.

The Sustainable Ports Development Act 2015:

• restricts new port development in the Great Barrier Reef World Heritage Area to within current port limits and outside the Commonwealth Great Barrier Reef Marine Park and the Queensland Great Barrier Reef Coast Marine Park.
• prohibits capital dredging for the development of new or expansion of existing port facilities in the Great Barrier Reef World Heritage Area outside the master planned areas of the priority ports of Gladstone, Townsville, Hay Point/Mackay, and Abbot Point (and the Port of Cairns in some limited circumstances)
• prohibits material generated from capital dredging (that is permissible under the Ports Act) from being deposited in the Great Barrier Reef World Heritage Area.

The Sustainable Ports Development Act 2015 also provides a master planning process for the sustainable development of Queensland's four designated priority ports – the ports of Gladstone, Townsville, Hay Point/Mackay, and Abbot Point. Master planning will assist the government to:

• concentrate development in the priority ports leading to more effective management of port development in the Great Barrier Reef World Heritage Area
• establish a long-term vision for future port development
• efficiently use existing port and supply chain infrastructure
• identify and protect land and infrastructure critical to the effective operation and future expansion of priority ports
• identify State interests affected, or likely to be affected by port operations and development
• facilitate economic development and job creation in regional areas.

The Environmental Protection Regulation 2019 requires an environmental authority be obtained to tranship in Queensland waters.

The Environmental Protection Regulation 2019 defines transhipping as the loading or unloading of minerals or bulk materials from one ship to another ship at a rate of 100 tonnes or more in a day.

An environmental authority will not be granted for the transhipping of bulk materials where it occurs:

• partly or wholly within the waters of the Great Barrier Reef Marine Park
• outside the Great Barrier Reef Marine Park, but within the Great Barrier Reef World Heritage Area, unless within port boundaries.