PORTS (PRIVATISATION) ACT 1990

Ports (Privatization) LAWS OF MALAYSIA REPRINT Act 422 PORTS (PRIVATIZATION) ACT 1990 Incorporating all amendments up to 1 January 2006 PUBLISHED BY THE COMMISSIONER OF LAW REVISION, MALAYSIA UNDER THE AUTHORITY OF THE REVISION OF LAWS ACT 1968 IN COLLABORATION WITH PERCETAKAN NASIONAL MALAYSIA BHD 2006 1 2 PORTS (PRIVATIZATION) ACT 1990 Date of Royal Assent ... ... … … … … 8 February 1990 Date of publication in the Gazette … … … 22 February 1990 PREVIOUS REPRINT First Reprint ... ... ... ... ... 2001 3 LAWS OF MALAYSIA Act 422 PORTS (PRIVATIZATION) ACT 1990 ARRANGEMENT OF SECTIONS PART I PRELIMINARY Section 1. Short title and commencement 2. Interpretation 2A. Amendment of Schedule PART II TRANSFER OF PORT UNDERTAKINGS AND PORT PRIVATIZATION PLAN 3. Application 4. Transfer of port undertakings 5. Port privatization plan 6. Port undertakings to be transferred to licensed operator 7. Liabilities in respect of port undertakings 8. Powers, functions and duties of a port authority PART III LICENSING 9. Licensing of port operators 10. Suspension and revocation of licence 11. Engagement of any person by a port authority for the purpose of carrying out any duty of the licensed operator 4 Laws of Malaysia ACT 422 PART IV DUTIES OF LICENSED OPERATORS Section 12. General duties of licensed operators 13. Submission of reports, accounts, statistical information, etc. 14. Licensed operator to keep port authority informed of certain matters PART V BY-LAWS, GENERAL PENALTY, OFFENCE BY A BODY CORPORATE AND CONDUCT OF PROSECUTION 15. By-laws 16. General penalty 17. Offence committed by a body corporate 18. Conduct of prosecution PART VI MISCELLANEOUS 19. Licensed operator to employ officers or servants of the port authority 20. Imposition and variation of charges by a licensed operator 21. Inspectorial power 22. Special powers in emergency PART VII AMENDMENT AND TRANSITIONAL PROVISION 23. Consequential amendments to the principal Acts 24. Transitional provision SCHEDULE Ports (Privatization) 5 LAWS OF MALAYSIA Act 422 PORTS (PRIVATIZATION) ACT 1990 An Act to facilitate privatization of the port undertakings of any port authority and for matters connected therewith. [2 April 1990, P.U. (B) 198/1990] BE IT ENACTED by the Seri Paduka Baginda Yang di-Pertuan Agong with the advice and consent of the Dewan Negara and Dewan Rakyat in Parliament assembled, and by the authority of the same, as follows: PART I PRELIMINARY Short title and commencement 1. This Act may be cited as the Ports (Privatization) Act 1990 and shall come into force on such date as the Minister may, by notification in the Gazette, appoint. Interpretation 2. In this Act, unless the context otherwise requires— “licence” means a licence issued under subsection 9(3) of this Act; “licensed operator” means any person or body of persons licensed under Part III of this Act; “Minister” means the Minister for the time being charged with the responsibility for ports; “port authority” means a port authority or port commission specified in the Schedule to this Act; 6 Laws of Malaysia ACT 422 “port privatization plan” means a plan approved by the Minister under section 5 of this Act; “port undertakings”, in relation to any port authority, means the undertakings of the port authority that relate to the provision by the port authority of any facility or service of any description in connection with the exercise and performance of its powers and duties under any written law and includes any movable and immovable property and the rights of the port authority that relate to such facility or service; “principal Act”, in relation to a port authority, means the Act which established the port authority. Amendment of Schedule 2A. The Minister may, from time to a time by order published in the Gazette, add to or amend any of the provisions in the Schedule. PART II TRANSFER OF PORT UNDERTAKINGS AND PORT PRIVATIZATION PLAN Application 3. (1) This Act shall apply to any transfer or disposal by a port authority, whether by one transaction or by a series of transactions, of all or any part of its port undertakings. (2) No port undertakings of a port authority shall be transferred or disposed of to any person except pursuant to and in accordance with the provisions of this Act. Transfer of port undertakings 4. Notwithstanding the provisions of any written law to the contrary, a port authority shall, subject to section 5, have the power to transfer or dispose of all or any part of its port undertakings to any operator licensed under this Act. Ports (Privatization) 7 Port privatization plan 5. (1) Before exercising its power under section 4, the port authority shall prepare and submit to the Minister a port privatization plan for his approval. (2) The port privatization plan required by subsection (1) shall— (a) identify the port undertakings of the port authority; (b) state the estimated value of those port undertakings; (c) state the nature and extent of the liabilities, if any, to be transferred; (d) state the manner in which those port undertakings and liabilities are to be transferred or disposed of; (e) state the arrangement relating to the transfer of the relevant officers and servants from the port authority to a prospective operator; and (f) state such other matters as the port authority considers appropriate. (3) Where any matter is not included in the port privatization plan and the Minister considers that it should be so included, the Minister may direct the port authority to consider the matter and report to the Minister concerning its inclusion in the port privatization plan. (4) No port privatization plan shall be put into effect until it has been approved by the Minister. (5) Every port privatization plan shall be put into effect in the form approved by the Minister. (6) The Minister may grant approval of part of a port privatization plan if he considers it appropriate and this Act shall apply to that part as if it were a port privatization plan. (7) The Minister may, after consultation with the port authority as he considers appropriate or on the application of the port authority, amend any approved port privatization plan. 8 Laws of Malaysia ACT 422 Port undertakings to be transferred to licensed operator 6. The port undertakings of a port authority that are to be transferred to an operator in accordance with the port privatization plan shall be transferred as soon as practicable after— (a) the approval of the plan by the Minister under section 5; (b) the execution of any necessary agreement between the port authority and the operator; and (c) the issue of the licence to the operator under subsection 9(3). Liabilities in respect of port undertakings 7. (1) Where any port undertakings are to be transferred to a licensed operator the port authority shall identify its liabilities in relation to the same undertakings in the port privatization plan. (2) The liabilities so identified shall remain liabilities of the port authority except to the extent of any written agreement to the contrary between— (a) the port authority; (b) the licensed operator; (c) the person to whom the liability is owed; and (d) any guarantor of the liability. Powers, functions and duties of a port authority 8. The port authority shall, in addition to the powers conferred, and the functions and duties imposed upon it by any written law, exercise regulatory functions in respect of the conduct of the port activities and the running of port facilities and services in the port by licensed operators including the determination of their performance standards and standards of facilities and services provided by them and the enforcement thereof. Ports (Privatization) 9 PART III LICENSING Licensing of port operators 9. (1) No port undertakings included in any approved port privatization plan shall be transferred to or managed by any person other than a person licensed by the port authority under subsection (3). (2) Any application for the grant of a licence under this Part shall be made in writing and shall contain, or be accompanied by, such information and documents as may be specified by the port authority for the purposes of determining the application and the suitability of the applicant for the licence. (3) Upon receiving any application made in accordance with subsection (2), the port authority may— (a) subject to the provisions of subsection (4) and the payment of such fees as the port authority thinks fit, issue the licence to the applicant; or (b) refuse to issue the licence. (4) Every licence issued under subsection (3) shall set out the duration of the licence and shall further prescribe— (a) the types of services or facilities to be provided by the licensee; (b) the annual licence fee payable by the licensee; (c) the particular duties of the licensee in respect of the services or facilities provided by it; and (d) such other matters or conditions as the port authority thinks fit. (5) The issue of a licence to a port operator by a port authority under subsection (3) shall not impose any liability on the port authority for any loss or damage occasioned by any act, omission or default of such operator. 10 Laws of Malaysia ACT 422 Suspension and revocation of licence 10. (1) A port authority may at any time suspend or revoke any licence issued under section 9 upon the breach of any of the conditions of the licence or upon any failure to comply with any provision of this Act, the principal Act or any of the regulations or by-laws made thereunder. (2) A licensed operator may appeal to the Minister against the suspension or revocation of its licence by the port authority under subsection (1). (3) Every such appeal shall be made in writing within thirty days from the date on which the decision of the port authority is served on the licensed operator. (4) The decision of the Minister under this section shall be final and conclusive. (5) A decision of the port authority under subsection (1) shall be of immediate effect notwithstanding any appeal made under subsection (2). (6) Where a licence is suspended or revoked under subsection (1), the port authority may, if it considers that such suspension or revocation would materially affect the movement of cargoes or passengers at the port and with the consent of the Minister— (a) take temporary possession of any port undertaking; (b) operate any such port undertaking; and (c) engage any servant or employee, of the operator. Engagement of any person by a port authority for the purpose of carrying out any duty of the licensed operator 11. (1) Without prejudice to the provisions of subsection 10(1), if it appears to the port authority that a licensed operator has failed to carry out any of its duties under the licence, the port authority may give notice in writing to the licensed operator requiring it to perform such duties within the period prescribed in the notice. Ports (Privatization) 11 (2) If upon the expiry of the period prescribed in such notice the licensed operator fails to carry out the duties mentioned therein, the port authority may engage any other person to perform those duties and all costs and expenses incurred by the port authority in respect thereof shall on demand be immediately reimbursed by the licensed operator. (3) A person engaged by a port authority under subsection (2) may enter into any of the premises of the licensed operator and bring into the premises any equipment or machinery as may be necessary or proper for the purposes of carrying out those duties. (4) In every licence issued under section 9, there shall, in the absence of any express provision therein to the contrary, be the implied condition that any person engaged by a port authority under subsection (2) may in respect of the duties stated in the notice given by the port authority— (a) take temporary possession of and operate any equipmen