Port Companies Act 1988

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)
2: Interpretation
1: In this Act, unless the context otherwise requires,— council-controlled organisation Local Government Act 2002 debt security section 8 directorate equity security section 8 financial statements
a: group financial statements within the meaning of section 7 Financial Reporting Act 2013
b: if the port company does not have any subsidiaries, financial statements within the meaning of section 6 Financial Reporting Act 2013 generally accepted accounting practice section 8 Financial Reporting Act 2013 Harbour Board Schedule 1 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 Minister port company Companies Act 1955 section 4 Company Law Reform (Transitional Provisions) Act 1994 port company plan section 22 port related commercial undertaking
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), 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), 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 regional council Local Government Act 2002 rights subsidiary section 5 territorial authority 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 Section 2(1) council-controlled organisation inserted 1 July 2003 section 262 Local Government Act 2002 Section 2(1) debt security replaced 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 2(1) equity security replaced 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 2(1) financial statements inserted 1 April 2014 section 126 Financial Reporting (Amendments to Other Enactments) Act 2013 Section 2(1) generally accepted accounting practice inserted 1 April 2014 section 126 Financial Reporting (Amendments to Other Enactments) Act 2013 Section 2(1) local authority trading enterprise repealed 1 July 2003 section 262 Local Government Act 2002 Section 2(1) port company substituted 1 July 1994 section 2 Company Law Reform (Transitional Provisions) Act 1994 Section 2(1) regional council substituted 1 July 2003 section 262 Local Government Act 2002 Section 2(1) subsidiary replaced 5 December 2013 section 14 Companies Amendment Act 2013 Section 2(1) territorial authority substituted 1 July 2003 section 262 Local Government Act 2002 Section 2(2) added 31 August 1990 Port Companies Amendment Act 1990
2A: Special provisions where more than 1 regional council or territorial authority succeeds Harbour Board
1: Where any functions and powers of a Harbour Board have been transferred to more than 1 regional council or territorial authority pursuant to an Order in Council made under section 36
2: Where any duties of a Harbour Board have been transferred to more than 1 regional council or territorial authority pursuant to an Order in Council made under section 36
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
4: Where regional councils and territorial authorities are unable to reach any agreement pursuant to subsection (1) or subsection (2), any of them may refer the matter to the Local Government Commission for determination. Section 2A inserted 31 August 1990 Port Companies Amendment Act 1990
3: Act to bind Crown
This Act shall bind the Crown.
3A: Act is maritime Act
1: This Act is a maritime Act under section 2(1)
2: This has the effect that transport instruments may be made for the purposes of this Act under section 452B
3: This section is intended as a guide only and is not an exhaustive statement as to the effects of this Act being a maritime Act under that Act. Section 3A inserted 1 April 2021 section 58(2) Regulatory Systems (Transport) Amendment Act 2021
1: Port companies
4: Amendment of documents constituting port companies
No amendment shall be made to Section 4 substituted 1 July 1994 section 2 Company Law Reform (Transitional Provisions) Act 1994 Section 4 amended 5 December 2013 section 14 Companies Amendment Act 2013
4A: Harbour Board may hold securities in port company
In addition to the equity securities issued to the Harbour Board on the incorporation of a port company, a Harbour Board may subscribe for or have issued to it other equity securities or debt securities issued by the port company. Section 4A inserted 1 July 1994 section 2 Company Law Reform (Transitional Provisions) Act 1994
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
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
2: Subject to subsection (1), 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 1986 No 124 s 5 Section 6(1) amended 5 December 2013 section 14 Companies Amendment Act 2013 Section 6(1) amended 1 July 1994 section 2 Company Law Reform (Transitional Provisions) Act 1994 Section 6(1)﻿(b) amended 1 July 1994 section 2 Company Law Reform (Transitional Provisions) Act 1994
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) limits or prevents any other person from subscribing for, otherwise acquiring, holding, or disposing of, equity securities in port companies. Section 7 substituted 31 August 1990 Port Companies Amendment Act 1990
7A: Restrictions on holding equity securities
1: No port company shall have in its constitution section 7(1) section 4 of the Port Companies Amendment Act 1990
2: Where a port company does not comply with subsection (1), 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).
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), on which those alterations shall take effect.
5: Every alteration has effect as if it were an alteration to the constitution of the company made in accordance with the Companies Act 1993 Section 7A substituted 1 July 1994 section 2 Company Law Reform (Transitional Provisions) Act 1994 Section 7A(1) amended 5 December 2013 section 14 Companies Amendment Act 2013 Section 7A(5) replaced 5 December 2013 section 14 Companies Amendment Act 2013
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. 1986 No 124 s 14(1)
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. 1986 No 124 s 14(2)
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. 1986 No 124 s 14(3)
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: 1 month after the date on which the notice under paragraph (a) 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 paragraphs (a) to (h) of section 9
3: Before giving any notice under subsection (2), the shareholders shall—
a: have regard to sections 5 16
b: consult the directorate concerned as to the matters to be referred to in the notice. 1986 No 124 s 14(4)
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 quotation of the shares of a port company on a licensed market (within the meaning of section 6(1) sections 8 to 12 Section 13 amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013
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% 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
a: unless the port company otherwise elects, all of sections 4(2) 5 6 8 to 12 16 18 19
b: unless the company concerned otherwise elects, section 20
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% 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
a: direct that the port company need not prepare a statement of corporate intent under sections 8 9
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
4: A notice under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must publish it in the Gazette LA19 ss 73 74(1)﻿(a) cl 14 Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 14 substituted 31 August 1990 Port Companies Amendment Act 1990 Section 14(1) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 14(1) amended 1 July 2003 section 262 Local Government Act 2002 Section 14(2) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 14(2) amended 1 July 2003 section 262 Local Government Act 2002 Section 14(3) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 14(4) replaced 28 October 2021 section 3 Secondary Legislation Act 2021
15: Saving of certain transactions
A failure by a port company to comply with—
a: any provision of sections 5 to 12
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. 1986 No 124 s 21
16: Reports and
financial statements
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) 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 financial statements for that financial year prepared in accordance with generally accepted accounting practice; and
c: the auditor's report on those financial statements.
4: Every report under subsection (3)﻿(a) 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. 1986 No 124 ss 15 16 Section 16 heading amended 1 April 2014 section 126 Financial Reporting (Amendments to Other Enactments) Act 2013 Section 16(3)﻿(b) replaced 1 April 2014 section 126 Financial Reporting (Amendments to Other Enactments) Act 2013
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 1986 No 124 s 20
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
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 Schedule 1 section 36 1986 No 124 s 7 Section 18(3) added 31 August 1990 Port Companies Amendment Act 1990
19: Auditor-General to be auditor of port companies and subsidiaries
Despite sections 207P to 207V section 4 Section 19 substituted 1 July 2001 section 53 Public Audit Act 2001 Section 19 amended 1 April 2014 section 126 Financial Reporting (Amendments to Other Enactments) Act 2013
20: Application of Act to related and associated companies
1: Subject to subsection (2), sections 4 5 6 7 15 18
a: a related company (as defined in section 2(3)
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) 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) 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. Section 20 substituted 31 August 1990 Port Companies Amendment Act 1990 Section 20(1) amended 30 November 2022 section 88 Statutes Amendment Act 2022 Section 20(1)﻿(a) replaced 5 December 2013 section 14 Companies Amendment Act 2013
2: Establishment procedures
21: Establishment Units
1: Every Harbour Board shall, not later than 1 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), 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) to the Harbour Board and make the report available to the public not later than 1 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
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)
2: Not later than 1 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
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),—
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), 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), 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), 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), the provisions of subsection (5) 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), 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
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. 1986 No 124 s 23(3), (4)
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 sections 150 to 155 of the Harbours Act 1950 1986 No 124 s 23(6)
25: Transfer of reserves
Any land that is subject to the Reserves Act 1977
26: Modification of provisions of Public Works Act 1981
Nothing in sections 40 to 42 sections 40 and 41 1986 No 124 s 24(4)
27: Effect of registration under Land Transfer Act 1952
1: On registration under the Land Transfer Act 1952
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 section 5 of the Coal Mines Act 1979
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
28: Exclusion of Public Bodies Leases Act 1969
Notwithstanding section 144 of the Harbours Act 1950 Public Bodies Leases Act 1969
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 Section 29(5) added 31 August 1990 Port Companies Amendment Act 1990
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
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. 1986 No 129 s 6(g)
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) 1986 No 129 s 6(a), (b)
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) 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) is no longer required. Section 33(2)﻿(b) substituted 1 July 2003 section 262 Local Government Act 2002
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.
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), 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), 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).
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), 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) 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
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
2: For the purposes of the application of the Income Tax Act 1976 section 111 of the Income Tax Act 1976
2A: Subject to subsection (2D), except where subsection (2B) or subsection (2C) applies, for the purposes of section 188 of the Income Tax Act 1976 or after
2B: Subject to subsection (2D), where, at any time on or after 1 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
2C: Subject to subsection (2D), 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
2D: Subsections (2A), (2B), and (2C) 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
4: For the purposes of this section,—
a: the term port operator section YA 1
b: in relation to a port operator, the definition of the term port related commercial undertaking in section 2 Section 38(2A) inserted 28 March 1990 Income Tax Amendment Act 1990 Section 38(2A) amended 1 August 1990 Income Tax Amendment Act (No 2) 1990 Section 38(2B) inserted 28 March 1990 Income Tax Amendment Act 1990 Section 38(2C) inserted 28 March 1990 Income Tax Amendment Act 1990 Section 38(2D) inserted 28 March 1990 Income Tax Amendment Act 1990 Section 38(2D)﻿(a) substituted 1 August 1990 Income Tax Amendment Act (No 2) 1990 Section 38(2D)﻿(b) substituted 1 August 1990 Income Tax Amendment Act (No 2) 1990 Section 38(2D)﻿(c) substituted 1 August 1990 Income Tax Amendment Act (No 2) 1990 Section 38(4) added 28 March 1990 Income Tax Amendment Act 1990 Section 38(4)﻿(a) amended 1 April 2008 section ZA 2(1) Income Tax Act 2007
39: Designations under district schemes
Section 39 repealed 7 July 1993 Port Companies Amendment Act 1993
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:
2: Each Harbour Board to which this section applies shall forthwith conduct a review of its operations and finances to determine, not later than 1 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), 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 Schedule 1
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).
5: The Local Government Commission shall, as soon as practicable after receiving a request under subsection (3) or subsection (4), 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), 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) shall be given effect to by Order in Council, and the provisions of Part 1
11: Subsections (1) and (2) of section 35 sections 37C 37F Section 40(1)﻿(b) amended 1 July 1988 section 10(a) Wanganui Harbour Act 1988 Section 40(1)﻿(c) repealed 1 July 1988 section 10(b) Wanganui Harbour Act 1988
41: Repeal of New Zealand Ports Authority Act 1968
1: The New Zealand Ports Authority Act 1968
2: The enactments specified in Schedule 2
3: Every member of the New Zealand Ports Authority shall vacate office as from the commencement of 1 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 section 55A of the Harbours Act 1950
43: Amendment to Ministry of Transport Act 1968
Section 43 repealed 1 September 1990 section 5(2)﻿(i) Ministry of Transport Act Repeal Act 1990
44: Repeals
The enactments specified in Schedule 3
45: Repeals taking effect on 1 October 1988
1: The enactments specified in Schedule 4
2: This section and Schedule 4