The problem with ports: A potted history of ports and port legislation in NSW, the evolution of legislative port charges, the position following the port privatisations in NSW and the case for legislative reform

<p dir="ltr">Ports in NSW have been of vital importance since the establishment of the new colony in Sydney Cove over 230 years ago. However, ports need to be constructed and maintained. Wharves need to be built. Channels need to be dredged. Navigations aids need to be put in place. Constant maintenance and repairs need to be carried out in the harsh marine environment. Pilots need to be available to guide ships. Naturally, all of this has to be paid for somehow.</p><p dir="ltr">Government expenditure in relation to a port has historically been recouped through the imposition of legislative port charges. These typically apply to the users of ports and initially in NSW often reflected the historical practice in various parts of England (such as at the wharves on the River Thames in London). A number of these legislative port charges are still applied today, with some still having the same name as was used centuries ago in England.</p><p dir="ltr">Both public and private sector investment in our ports has been commonplace since the early days of the new colony in Sydney Cove. Indeed, without private sector investment the development of early port infrastructure (and indirectly, Sydney itself) would not have been possible. Indeed, public and private sector investment in our ports has continued until the present.</p><p dir="ltr">A review of the evolution of legislative port charges in NSW is necessary to properly understand how we ended up where we have. Amongst other things, this review shows that certain challenges (which legislative port charges attempt to address) are timeless. This includes how to recoup expenditure on port infrastructure on an equitable basis, particularly given the private ownership of certain port infrastructure (commonly wharves). Historically, Government carried out various “wharf privatisations” where a leasehold interest in a wharf (together with either the legal right or practical ability to impose legislative port charges) was auctioned to the private sector.</p><p dir="ltr">However, the privatisation of an entire port was something that did not occur until more recent times and in 2013 and 2014 the three major ports in NSW (Port Botany, Port Kembla and Port of Newcastle) were privatised. As will be seen from the review of historical port charges legislation, the relevant port charges legislation in place at the time was not well suited to such port privatisations. In fact, even without the port privatisations this legislation was unclear in various important ways. Unfortunately, the port privatisations (and the amendments to the legislation that occurred in the lead up to the port privatisations) did not fix the existing legislative problems. In fact, the amendments made the problems worse.</p><p dir="ltr">These legislative problems exist within a certain geographical, logistical and economic context in NSW which in turn exacerbates some of those problems. This thesis examines the problem with ports from a historical perspective and shows why legislative reform is required.</p>