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1.1 Port of Melbourne Department of Transport Regulatory Impact Statement of the proposed Port Services (Port of Melbourne Safety and Other Matters) Regulations 2010 Contents Executive summary 4 1 Background 10 1.1 Port of Melbourne 10 1.2 Port of Melbourne Corporation 11 1.3 Legislative amendments 12 1.4 Proposed regulations 14 1.5 This report 15 2 Nature and extent of the problem 15 2.1 Bunkering and transferring of non-cargo liquid substances 15 2.2 The extent of the problem 15 2.3 The market failure 15 2.4 Regulation in other jurisdictions 15 2.5 Case for government intervention 15 3 The objective of government action 15 4 Options that may achieve the objective 15 5 Assessment of the impacts 15 5.1 Data limitations 15 5.2 Multi criteria analysis 15 5.3 Breakeven analysis of the proposed regulations 15 5.4 Identification of preferred option 15 6 Implementation & evaluation strategy 15 6.1 Implementation and enforcement issues 15 6.2 Evaluation strategy 15 7 Statements of compliance 15 7.1 Impacts on small business 15 7.2 Assessment of competition impacts 15 7.3 Administrative Burden Statement 15 Appendix A – Comparison of the Act and proposed regulations 15 Department of Transport Page 2 of 57 Deloitte Appendix B – Stakeholder consultation 15 Appendix C – Other PoM regulators 15 Appendix D –Transport Integration Act 2010 15 Appendix E – Bibliography 15 Statement of responsibility This RIS was prepared by Deloitte for the Department of Transport. In preparing this Report Deloitte has relied on the accuracy and completeness of the information provided by the Department of Transport, stakeholders and from publicly available sources. The information has not been audited or otherwise verified for accuracy or completeness. Deloitte has not contemplated the requirements or circumstances of anyone other than the Department of Transport. The information contained in this document is general in nature and is not intended to be applied to anyone’s particular circumstances. This document may not be sufficient or appropriate for your purposes. It may not address or reflect matters in which you may be interested or which may be material to you. Events may have occurred since the preparation of this document which may impact on it and its conclusions. This document should not be relied upon by third parties. Deloitte does not accept or assume responsibility to anyone other than the Department of Transport in respect of this document. Liability limited by a scheme approved under Professional Standards Legislation. Department of Transport Page 3 of 57 Deloitte Executive summary Executive summary Introduction The Port of Melbourne (PoM) is Australia’s largest port by value, handling over $75 billion in international and coastal trade each year. 1 The Port of Melbourne Corporation (PoMC) is the statutory authority that owns and operates the PoM. The key legislation covering the PoM is the Port Services Act 1995 (the Act) (to be renamed the Port Management Act 1995 upon the commencement of the Transport Legislation Amendment (Ports Integration) Act 2010. The Act includes prescribed functions and responsibilities for the PoMC. In 2001, The Next Wave of Port Reform in Victoria identified that, as a consequence of the regulatory reforms in the ports sector since the mid-1990s, a range of environmental and safety risks at the PoM were unregulated. The unregulated risks included the transfer of liquid and dry cargo, hot works and abandoned property. The Act was accordingly amended to provide PoMC with enforcement powers to compel port users to comply with safety, security and environmental management requirements which arise from these activities. The Department of Transport (DoT) has prepared proposed regulations to support the Act. The proposed regulations aim to provide: • the PoMC with additional powers to manage bunkering2 and the transfer of other non-cargo liquids • clarity and certainty around the administrative detail for PoMC’s new powers resulting from the amendments to the Act. This Regulatory Impact Statement (RIS) focuses on the impact of the proposed new powers (i.e. regulating bunkering and the transfer of non-cargo liquids) as these powers have the potential to impose an appreciable burden. Providing clarity and certainty is likely to benefit port users, however, during consultation it was found that this benefit was marginal. In accordance with the requirements of the Victorian Guide to Regulation , this RIS assesses if there is a problem with the current management of bunkering and the transfer of other non-cargo liquids using the legally unenforceable guidelines developed by the PoMC that may require to be given force by government intervention. Further, it considers if the proposed regulations are the most effective and efficient approach to addressing the problem, if a problem is identified. Problem to be addressed This RIS found that under the current management of bunkering and the transfer of other non-cargo liquids not otherwise captured in the Act: • There are a number of incidents related to bunkering and the transfer of non-cargo liquid substances and bunker fuel within the PoM; there were 32 recorded bunker related spills in the PoM between 2005 and 2009, and 22 failure to comply were letters issued by the PoMC in 2008 and 2009. • There is evidence that some port users are not complying with the current PoMC standards and procedures dealing with bunkering and the transfer of non-cargo liquids. 1Ports Australia C.n.d., Trade Statistics 2008/09 viewed 21 February 2010, <http://www.portsaustralia.com.au/tradestats/>. 2 Bunkering means the transfer of liquid fuel to and from vessels and wharves in the port. Department of Transport Page 4 of 57 Deloitte Executive summary • Incidents related to the transfer of non-cargo liquid substances and bunker fuel can generate externalities for other port users and the local community. • The nature of the risks from these incidents is such that it is appropriate to consider additional government action. Objectives of government action The objective of government action through these regulations is to reduce the incidence and risk of spills, delays in port operations and environmental damage related to bunkering and the transfer of non-cargo liquids. Options considered The options considered within this RIS to address the problem are as follows: • Taking no further action – bunkering and the transfer of other non-cargo liquids continues to be managed by legally unenforceable guidelines. • The proposed regulations – bunkering and the transfer of other non-cargo liquids is regulated by subordinate legislation supporting the Act. • The application of contractual obligations – bunkering and the transfer of other non-cargo liquids is regulated by contractual obligations between the PoMC and individual port users. • An education campaign – a campaign is used to promote increased adoption of the PoMC Guidelines. Assessment of the options The multi-criteria analysis of the options assessed them against the incremental change in operation with respect to the base case considering the following criteria: benefit to stakeholders, cost and enforceability. These criteria were ranked between -5 (significant negative impact) and 5 (significant positive impact). A 40 per cent weighting was applied to the benefit to stakeholder criterion, while both the cost and enforceability criteria were equality weighted at 30 per cent. Based on this assessment, the proposed regulations are the preferred option. Table E.1: Summary assessment of options considered Proposed Application of Educational Criteria regulations contractual obligations campaign Benefit to stakeholders 1.2 1.2 0.4 Cost -0.6 -1.2 -0.3 Enforceability 1.2 0.6 0 Total 1.8 0.6 0.1 Preferred option A prima-facie assessment of the multi-criteria analysis suggests that the proposed regulations are the preferred option. This analysis is based, in part, on the assumption that the proposed regulations will encourage a measurable level of behavioural change that will in turn result in fewer incidences associated with the transfer of non-cargo liquids and bunkering. It is important, therefore, to assess if the level of behaviour change required to ensure that the regulations are not a net cost seems reasonable and achievable. Department of Transport Page 5 of 57 Deloitte Executive summary It was estimated that the quantifiable cost of the preferred option was between $54,300 and $163,100 over a ten year period using a discount rate of 3.5 per cent. The estimate of costs does not include additional compliance costs resulting from equipment that is judged unsafe or faulty or the costs of an education campaign that the PoMC may initiate following the introduction of the proposed regulations. On average, the preferred option would cost (based on the quantifiable costs) between $5,430 and $16,310 per annum. Box E.1: Sensitivity analysis Data that could have helped to estimate current compliance rates for parties that are not contractually obligated to comply with the guidelines—such as the number of notifications currently made these parties, or the numbers of non-compliant parties that are discovered through inspections as a proportion of all inspections—are not available. Therefore, for completeness, a further cost sensitivity has been calculated. For this calculation a 65 per cent voluntary compliance rate with the guidelines for parties operating in the PoM that are not contractually obligated to comply with the guidelines has been assumed. If the current compliance rate were 65 per cent, the total quantifiable cost of the proposed regulations is estimated to be $380,300 over the ten year period (using a 3.5 per cent discount rate). As indicated above, PoMC reports the likely compliance rate is between 85 and 95 per cent, as such we consider a 65 per cent compliance rate to be unlikely. For completeness, the cost of fulfilling the authorisation and notification requirements for hazardous port activities for PoM users is provided in the box below.
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