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This is a Bill, not an Act. For current law, see the Acts databases.
Clause Page
Rail Corporations Act 1996
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purpose 1
2. Commencement 2
3. Definitions 2
PART 2--RAIL CORPORATIONS 4
Division 1--V/Line Freight 4
4. Establishment 4
5. V/Line Freight not to represent the Crown 4
6. Objective 4
7. Functions and powers 5
Division 2--Victorian Rail Track 6
8. Establishment 6
9. Rail Track not to represent the Crown 6
10. Objective 6
11. Functions and powers 7
12. Clearance of trees etc 8
13. No obligation to fence 9
14. Application of Office of the Regulator-General Act 1994 9
15. Objective of the Office of the Regulator-General 9
16. Declaration of railway services 9
17. Obligations of Rail Track in relation to declared railway services 10
18. Procedure if disputes arise 10
Division 3--Rail corporations generally 12
19. Schedule 1 12
20. Extra-territoriality 12
21. Delegation 12
22. Borrowing and investment by rail corporations 13
23. Duties of directors 13
24. Rail corporation or Minister may bring proceedings 14
25. Rail corporation not to make loans to directors 14
26. Indemnity 15
27. Corporate plan 15
28. Statement of corporate intent: contents 16
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29. Corporate plan to be followed 17
30. Nothing void merely because of non-compliance 17
31. Board to give notice of significant events 18
32. Non-commercial functions 18
33. Determination of initial capital 19
34. Capital 19
35. Repayment of capital 20
36. Dividends 20
37. Reports to Minister 20
38. Annual report 20
PART 3--TRANSFER OF PROPERTY 21
39. Definitions 21
40. Minister may direct transfer of PTC property to rail corporation 23
41. Minister may direct transfer of rail corporation property to other
persons 24
42. Property transferred in accordance with direction 26
43. Allocation of property etc. subject to encumbrances 26
44. Payments in respect of financial obligations 27
45. Certificate of chief executive or CEO 28
46. Value of transferred property 29
47. Substitution of party to agreement 29
48. Former PTC and rail corporation instruments 29
49. Proceedings 29
50. Interests in land 30
51. Easements 30
52. Amendment of Register 31
53. Taxes 32
54. Evidence 32
55. Validity of things done under this Part 33
56. Minister may direct PTC to lease land to Rail Track 34
PART 4--AMENDMENT OF OTHER ACTS 35
57. Borrowing and Investment Powers Act 1987 35
58. Transport Act 1983 35
59. Treasury Corporation of Victoria Act 1992 35
_______________
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SCHEDULE 1 35
NOTES 41
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531063B.I1-29/10/96 BILL LA INTRODUCTION 29/10/96
A BILL
to establish V/Line Freight and Victorian Rail Track, to amend the
Borrowing and Investment Powers Act 1987, the Transport Act
1983 and the Treasury Corporation of Victoria Act 1992 and for
other purposes.
Rail Corporations Act 1996
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purpose
The main purpose of this Act is to establish
V/Line Freight and Victorian Rail Track and to
provide for the transfer of property, rights and
5
liabilities to them.
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s. 2
Act No.
2. Commencement
(1) This Part comes into operation on the day on
which this Act receives the Royal Assent.
(2) Subject to sub-section (3), the remaining
provisions of this Act come into operation on a
5
day or days to be proclaimed.
(3) If a provision referred to in sub-section (2) does
not come into operation before 1 January 1998, it
comes into operation on that day.
3. Definitions
10
(1) In this Act--
"declared railway service" means a railway
service declared by an Order under section
16;
"liabilities" means all liabilities, duties and
15
obligations, whether actual, contingent or
prospective;
"Office" means Office of the Regulator-General
established under the Office of the
Regulator-General Act 1994;
20
"property" means any legal or equitable estate or
interest (whether present or future and
whether vested or contingent) in real or
personal property of any description;
"railway" does not include a railway on which
25
rolling stock is propelled by electricity from
an overhead power supply, other than such a
railway declared under sub-section (2) to be
a railway for the purposes of this Act;
"rail corporation" means V/Line Freight or Rail
30
Track;
"rail infrastructure" means the facilities that are
used to operate a railway and includes, but is
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s. 3 Act No.
not limited to, railway track, associated track
structures and works (such as cuttings,
tunnels, bridges, stations, platforms,
excavations, land fill, track support
earthworks and drainage works), over-track
5
structures, under-track structures, service
roads, signalling systems, rolling stock
control systems, communications systems,
notices and signs, overhead electrical power
supply systems and associated buildings,
10
workshops, depots, yards, plant, machinery
and equipment, but does not include rolling
stock;
"Rail Track" means Victorian Rail Track
established by Division 2 of Part 2;
15
"rights" means all rights, powers, privileges and
immunities, whether actual, contingent or
prospective;
"rolling stock" means a vehicle that operates on
or uses a railway track, and includes a
20
locomotive, carriage, rail car, rail motor,
train, road/rail vehicle, trolley, wagon or
monorail vehicle.
(2) The Governor-in-Council, by Order published in
the Government Gazette, may declare a railway
25
on which rolling stock is propelled by electricity
from an overhead power supply to be a railway for
the purposes of this Act.
_______________
30
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s. 4
Act No.
PART 2--RAIL CORPORATIONS
Division 1--V/Line Freight
4. Establishment
(1) V/Line Freight is established.
(2) V/Line Freight--
5
(a) is a body corporate with perpetual
succession;
(b) has an official seal;
(c) may sue and be sued;
(d) may acquire, hold and dispose of real and
10
personal property;
(e) may do and suffer all acts and things that a
body corporate may by law do and suffer.
(2) All courts must take judicial notice of the seal of
V/Line Freight affixed to a document and, until
15
the contrary is proved, must presume that it was
duly affixed.
(3) The official seal of V/Line Freight must be kept in
such custody as V/Line Freight directs and must
not be used except as authorised by V/Line
20
Freight.
5. V/Line Freight not to represent the Crown
V/Line Freight is a public authority but does not
represent the Crown.
6. Objective
25
The principal objective of V/Line Freight is to
perform its functions in an efficient and
commercial manner.
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s. 7 Act No.
7. Functions and powers
(1) The functions of V/Line Freight are--
(a) to operate rail freight services;
(b) to operate services ancillary or incidental to
its rail freight services;
5
(c) any other functions conferred on V/Line
Freight by this or any other Act.
(2) V/Line Freight--
(a) may enter into contracts, agreements, leases
and licences for the carrying out of its
10
functions;
(b) may engage agents or consultants;
(c) may act as agent of another person;
(d) may do all things necessary or convenient to
be done for, or in connection with, carrying
15
out its functions or achieving its objectives.
(3) Without limiting the generality of the functions
and powers conferred on it, V/Line Freight--
(a) may form, or participate in the formation of,
or be a member of companies;
20
(b) may form, or participate in the formation of,
and may participate in, partnerships, trusts,
unincorporated joint ventures and other
arrangements for the sharing of profits;
(c) may act as trustee;
25
(d) may engage in any business, undertaking or
activity incidental to the performance of its
functions;
(e) may make its staff and property vested in or
managed by it available for engagement or
30
use by other service providers, including
providers of rail passenger services.
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Division 2--Victorian Rail Track
8. Establishment
(1) Victorian Rail Track is established.
(2) Rail Track--
(a) is a body corporate with perpetual
5
succession;
(b) has an official seal;
(c) may sue and be sued;
(d) may acquire, hold and dispose of real and
personal property;
10
(e) may do and suffer all acts and things that a
body corporate may by law do and suffer.
(2) All courts must take judicial notice of the seal of
Rail Track affixed to a document and, until the
contrary is proved, must presume that it was duly
15
affixed.
(3) The official seal of Rail Track must be kept in
such custody as Rail Track directs and must not
be used except as authorised by Rail Track.
9. Rail Track not to represent the Crown
20
Rail Track is a public authority but does not
represent the Crown.
10. Objective
The principal objective of Rail Track is to perform
its functions in an efficient and commercial
25
manner.
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s. 11 Act No.
11. Functions and powers
(1) The functions of Rail Track are--
(a) to establish, manage and maintain railways
and rail infrastructure;
(b) to direct, control and charge for access to,
5
and movement of rolling stock on, railways;
(c) any other functions conferred on Rail Track
by this or any other Act.
(2) Rail Track--
(a) may enter into contracts, agreements, leases
10
and licences for the carrying out of its
functions;
(b) may acquire and operate rolling stock for the
purpose of carrying out its functions;
(c) may engage agents or consultants;
15
(d) may act as agent of another person;
(e) may do all things necessary or convenient to
be done for, or in connection with, carrying
out its functions or achieving its objectives.
(3) Without limiting the generality of the functions
20
and powers conferred on it, Rail Track--
(a) may form, or participate in the formation of,
or be a member of companies;
(b) may form, or participate in the formation of,
and may participate in, partnerships, trusts,
25
unincorporated joint ventures and other
arrangements for the sharing of profits;
(c) may act as trustee;
(d) may engage in any business, undertaking or
activity incidental to the performance of its
30
functions;
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s. 12
Act No.
(e) may make land and other property vested in
or managed by it available for use by other
persons.
12. Clearance of trees etc
(1) Rail Track, by written notice, may require the
5
owner or occupier of any land to fell and remove
any tree or wood on that land that is within 60
metres of a railway track and that could obstruct
or endanger the railway track or obstruct a view of
a signal box from any portion of the railway track.
10
(2) Notice under sub-section (1) may be served on an
owner or occupier--
(a) personally; or
(b) by sending it by post to the owner or
occupier at that person's usual or last known
15
residential or business address; or
(c) by leaving it at the usual or last known
residential or business address of the owner
or occupier with a person on the premises
who is apparently at least 16 years old and
20
apparently residing or employed there; or
(d) in a manner prescribed by any other Act or
law for service on a person or class of
persons of the same type as the owner or
occupier; or
25
(e) if the identity or address of the owner or
occupier is not known--
(i) by displaying it on the land; and
(ii) by publishing a copy of it and a
description of the land in a newspaper
30
circulating generally in Victoria.
(3) If the owner or occupier of the land does not
comply with the notice within the time specified
in the notice, Rail Track may--
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s. 13
16 Act No.
(a) enter the land at any reasonable time and
carry out the work specified in the notice;
and
(b) recover the cost of carrying out the work
from the owner or occupier as a debt.
5
13. No obligation to fence
(1) Despite any Act or rule of law to the contrary,
Rail Track--
(a) is not required to fence or contribute to the
fencing of any portion of a railway; and
10
(b) is not liable for any damage that may be
caused by reason of any railway not being
fenced in or fenced off.
(2) Rail Track may, but is not obliged to, erect and
maintain such fences in connection with a railway
15
as it thinks proper.
14. Application of Office of the Regulator-General Act
1994
(1) This Division is relevant legislation for the
purposes of the Office of the Regulator-General
20
Act 1994.
(2) For the purposes of Part 3 of the Office of the
Regulator-General Act 1994 the railways and
rail infrastructure managed by Rail Track are a
regulated industry.
25
15. Objective of the Office of the Regulator-General
The objective of the Office in relation to the
regulated industry is, in addition to the objectives
under section 7 of the Office of the Regulator-
General Act 1994 (but subject to section 4(2) of
30
that Act), to ensure users have fair and reasonable
access to declared railway services.
16. Declaration of railway services
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(1) The Governor in Council on the recommendation
of the Minister, by Order published in the
Government Gazette, may declare a railway
service to be a declared railway service for the
purposes of this Act.
5
(2) The Minister may make a recommendation under
sub-section (1) in relation to a railway service
only if he or she is satisfied that it is necessary to
do so to promote competition in relation to that
service.
10
17. Obligations of Rail Track in relation to declared
railway services
(1) Rail Track must provide access to declared
railway services on fair and reasonable terms and
conditions.
15
(2) Rail Track must--
(a) use all reasonable endeavours to meet the
requirements of a person seeking access to
declared railway services; and
(b) make a formal proposal of terms and
20
conditions for access within 30 days after
receiving a request or within such longer
period as is allowed by the Office.
(3) The terms and conditions of access may vary
according to the actual and opportunity costs to
25
Rail Track, but must not vary simply because of
the identity of the person seeking access.
18. Procedure if disputes arise
(1) If Rail Track has not made a formal proposal in
accordance with section 17(2)(b), the person
30
seeking access to a declared railway service may
apply in writing to the Office for the making of a
determination in accordance with section 26 of the
Office of the Regulator-General Act 1994
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specifying the terms and conditions, including the
price, on which access is to be provided.
(2) If Rail Track and a person seeking access cannot
agree on the terms and conditions on which access
is to be provided, Rail Track or the person seeking
5
access may apply in writing to the Office for the
making of a determination in accordance with
section 26 of the Office of the Regulator-
General Act 1994 specifying the terms and
conditions, including the price, on which access is
10
to be provided.
(3) Within 20 days after receiving an application
under sub-section (1) or (2), the Office must give
notice in writing to the person making the
application or to any other person from whom the
15
Office is entitled to require information under the
Office of the Regulator-General Act 1994
specifying--
(a) any information that the Office requires the
person to give so that the Office can make a
20
determination; and
(b) a reasonable time within which the
information must be provided.
(4) The Office must not make a determination if the
Office considers that the making of the
25
determination would substantially impede the
existing right of access of another person unless
that person has been given an opportunity to make
a submission to the Office in respect of the
application.
30
(5) In making a determination the Office must
consider the matters specified in paragraphs (i)
and (j) of clause 6(4) of the Competition
Principles Agreement made on 11 April 1995
between the Commonwealth and all of the States
35
and Territories of the Commonwealth.
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(6) A person who is bound by a determination may
apply in writing to the Office for the amendment
or revocation of the determination on the ground
that there has been a material change in
circumstances.
5
(7) Subject to sub-section (8), the Office must
determine an application under this section within
90 days after receiving it, excluding the period of
time between the day on which notice is given
under sub-section (3) and the day on which the
10
required information is received by the Office.
(8) The Office may refuse to make a determination
under this section if the Office considers that the
dispute is vexatious.
(9) The costs of the Office in making a determination
15
under this section are to be paid equally by Rail
Track and the person seeking access.
Division 3--Rail corporations generally
19. Schedule 1
Schedule 1 applies to each rail corporation.
20
20. Extra-territoriality
A rail corporation may carry out its functions and
exercise its powers within or outside Victoria and
outside Australia.
21. Delegation
25
(1) A rail corporation, by instrument under its official
seal, may delegate to 2 or more directors of the
corporation, to an officer or employee of the
corporation or, with the consent of the Minister, to
another person any function or power of the
30
corporation, other than--
(a) this power of delegation; and
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s. 22 Act No.
(b) any other power that is prescribed for the
purposes of this section.
(2) The Governor in Council may make regulations
prescribing powers for the purpose of sub-section
(1)(b).
5
22. Borrowing and investment by rail corporations
A rail corporation has the powers conferred on it
by the Borrowing and Investment Powers Act
1987.
23. Duties of directors
10
(1) A director of a rail corporation must at all times
act honestly in the performance of the functions of
his or her office.
(2) A director of a rail corporation must at all times
exercise a reasonable degree of care and diligence
15
in the performance of his or her functions.
(3) A director, or former director, of a rail corporation
must not make improper use of information
acquired by virtue of his or her position as a
director to gain, directly or indirectly, an
20
advantage for himself or herself or for any other
person or to cause detriment to the rail
corporation.
(4) A director of a rail corporation must not make
improper use of his or her position as a director to
25
gain, directly or indirectly, an advantage for
himself or herself or for any other person or to
cause detriment to the rail corporation.
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Act No.
(5) This section has effect in addition to, and not in
derogation of, any Act or law relating to the
criminal or civil liability of a member of the
governing body of a corporation and does not
prevent the institution of any criminal or civil
5
proceedings in respect of such a liability.
24. Rail corporation or Minister may bring proceedings
If a person contravenes section 23 in relation to a
rail corporation, the rail corporation or the
Minister, in the name of the rail corporation, may
10
recover from the person as a debt due to the rail
corporation by action in a court of competent
jurisdiction either or both of the following--
(a) if that person, or any other person, made a
profit as a result of the contravention, an
15
amount equal to that profit;
(b) if the rail corporation has suffered loss or
damage as a result of the contravention, an
amount equal to that loss or damage.
25. Rail corporation not to make loans to directors
20
(1) The powers of a rail corporation do not include a
power, whether directly or indirectly--
(a) to make a loan to a director of the rail
corporation, a spouse of such a director, or a
relative (as defined in the Corporations Law)
25
of such a director or spouse; or
(b) to give a guarantee or provide security in
connection with a loan made or to be made
by another person to a director, spouse or
relative referred to in paragraph (a).
30
(2) Nothing in sub-section (1) prohibits a rail
corporation entering into an agreement or
arrangement with a person referred to in sub-
section (1) if similar agreements or arrangements
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s. 26 Act No.
are entered into by the rail corporation with
members of the public on the same terms and
conditions.
26. Indemnity
The powers of a rail corporation do not include a
5
power to exempt, whether directly or indirectly, a
director of a rail corporation from, or to indemnify
(whether by paying a premium in respect of a
contract of insurance or otherwise) a director of
the rail corporation against, any liability that by
10
law would otherwise attach to the director in
respect of a wilful breach of duty or breach of
trust of which the director may be guilty in
relation to the rail corporation.
27. Corporate plan
15
(1) The board of each rail corporation must prepare a
corporate plan for each financial year.
(2) The board must give a copy of the proposed plan
to the Minister on or before 31 May in each year.
(3) The proposed corporate plan must be in or to the
20
effect of a form approved by the Minister and
must include--
(a) a statement of corporate intent in accordance
with section 28;
(b) a business plan and financial statements
25
containing such information as the Minister
requires.
(4) The board must consider any comments on the
proposed plan that are made to it by the Minister
within 2 months after the plan was submitted to
30
the Minister.
(5) The board must consult in good faith with the
Minister following communication to it of the
comments, must make such changes to the plan as
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Act No.
are agreed between the Minister and the board and
must deliver the completed plan to the Minister
within 2 months after the commencement of the
financial year.
(6) The plan, or any part of the plan, must not be
5
published or made available except for the
purposes of this Part without the prior approval of
the board and the Minister.
(7) The plan may be modified at any time by the
board with the agreement of the Minister.
10
(8) If the board, by written notice to the Minister,
proposes a modification to the plan, the board may
make the modification unless the Minister, by
written notice within 14 days, directs the board
not to make it.
15
(9) From time to time, the Minister, by written notice,
may direct the board to include in, or omit from, a
statement of corporate intent, a business plan or a
financial statement of a specified kind, any
specified matters.
20
(10) Before giving a direction under this section, the
Minister must consult with the board as to the
matters referred to in the notice.
(11) The board must comply with a direction under this
section.
25
(12) At any particular time, the statement of corporate
intent, the business plan or the financial
statements for a rail corporation are the statements
and plan last completed, with any modifications or
deletions made in accordance with this Part.
30
28. Statement of corporate intent: contents
Each statement of corporate intent must specify
for the rail corporation and its subsidiaries (if
any), in respect of the financial year to which it
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s. 29 Act No.
relates and each of the 2 following financial years,
the following information--
(a) the business objectives of the rail
corporation and of its subsidiaries;
(b) the main undertakings of the rail corporation
5
and of its subsidiaries;
(c) the nature and scope of the activities to be
undertaken by the rail corporation and its
subsidiaries;
(d) the accounting policies to be applied in the
10
accounts;
(e) the performance targets and other measures
by which the performance of the rail
corporation and of its subsidiaries may be
judged in relation to their stated business
15
objectives;
(f) the kind of information to be provided to the
Minister by the rail corporation during the
course of those financial years;
(g) such other matters as may be agreed on by
20
the Minister and the board of the rail
corporation from time to time.
29. Corporate plan to be followed
A rail corporation must act only in accordance
with its corporate plan, as existing from time to
25
time, unless it has first obtained the written
approval of the Minister to do otherwise.
30. Nothing void merely because of non-compliance
Nothing done by a rail corporation is void or
unenforceable merely because the rail corporation
30
has failed to comply with section 27, 28 or 29.
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s. 31
Act No.
31. Board to give notice of significant events
If the board of a rail corporation forms the opinion
that matters have arisen--
(a) that may prevent, or significantly affect,
achievement of the business objectives of the
5
rail corporation and its subsidiaries (if any)
under the corporate plan; or
(b) that may prevent, or significantly affect,
achievement of the targets under the plan--
the board must immediately notify the Minister of
10
its opinion and the reasons for the opinion.
32. Non-commercial functions
(1) The Minister, with the approval of the Treasurer,
may direct the board of a rail corporation--
(a) to perform certain functions that the Minister
15
considers to be in the public interest but that
may cause the rail corporation to suffer
financial detriment; or
(b) to cease to perform functions of a kind
referred to in paragraph (a); or
20
(c) to cease to perform certain functions that the
Minister considers not to be in the public
interest.
(2) The board of the rail corporation must comply
with a direction given under sub-section (1).
25
(3) If the rail corporation satisfies the Minister that it
has suffered financial detriment as a result of
complying with a direction given under sub-
section (1), the rail corporation may be
reimbursed by the State an amount determined by
30
the Minister, with the approval of the Treasurer,
and the Consolidated Fund is appropriated to the
necessary extent accordingly.
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(4) The reference in this section to suffering financial
detriment includes a reference to incurring net
costs that are greater than would have been
incurred if the direction were not complied with.
33. Determination of initial capital
5
(1) The Minister must determine the amount of initial
capital of each rail corporation.
(2) In making the determination, the Minister must
have regard to any relevant advice that the board
of the rail corporation has given to the Minister.
10
(3) The determination must be in writing.
(4) The value of the capital is the value specified in
the determination or, if the Minister and the board
of the rail corporation agree that the value so
specified does not correctly represent the value,
15
the value agreed by the Minister and the board.
34. Capital
The capital of each rail corporation is equal to the
sum of--
(a) the amount of the rail corporation's initial
20
capital under this Act in accordance with
section 33(1); and
(b) any part of the rail corporation's liabilities
that is converted into capital at the direction
of the Minister; and
25
(c) any amounts paid to the rail corporation out
of money appropriated by the Parliament for
the purpose of providing capital; and
(d) any part of the rail corporation's reserves that
is converted into capital at the direction of
30
the Minister after consultation with the
board--
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less any amount of capital repaid under section
35.
35. Repayment of capital
(1) The capital of a rail corporation is repayable to the
State at such times, and in such amounts, as the
5
Minister directs in writing after consultation with
the board of the rail corporation.
(2) In giving such a direction, the Minister must have
regard to any advice that the board of the rail
corporation has given to the Minister in relation to
10
the rail corporation's affairs.
36. Dividends
A rail corporation must pay to the State such
amounts, at such times and in such manner, as are
determined by the Treasurer after consultation
15
with the board of the rail corporation and the
Minister.
37. Reports to Minister
The Minister may, in writing, require the board of
a rail corporation to give the Minister such
20
information as he or she requires.
38. Annual report
A rail corporation, in its annual report for a
financial year under Part 7 of the Financial
Management Act 1994, must include--
25
(a) a copy of each direction given to it during
that year under section 32 together with a
statement of its response to that direction;
and
(b) a copy of the statement of corporate intent
30
last completed.
_______________
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s. 39 Act No.
PART 3--TRANSFER OF PROPERTY
39. Definitions
(1) In this Part--
"former PTC instrument" means an instrument
(including a legislative instrument other than
5
this Act) or an oral agreement subsisting
immediately before the relevant date--
(a) to which the PTC was a party; or
(b) that was given to, or in favour of, the
PTC; or
10
(c) that refers to the PTC; or
(d) under which--
(i) money is, or may become,
payable to the PTC; or
(ii) other property is to be, or may
15
become liable to be, transferred to
or by the PTC;
"former PTC property" means property, rights
or liabilities of the PTC that, under this Part,
have vested in, or become liabilities of, a rail
20
corporation;
"former rail corporation instrument" means an
instrument (including a legislative
instrument other than this Act) or an oral
agreement subsisting immediately before the
25
relevant date--
(a) to which a rail corporation was a party;
or
(b) that was given to, or in favour of, a rail
corporation; or
30
(c) that refers to a rail corporation; or
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Act No.
(d) under which--
(i) money is, or may become,
payable to a rail corporation; or
(ii) other property is to be, or may
become liable to be, transferred to
5
or by a rail corporation;
"former rail corporation property" means
property, rights or liabilities of a rail
corporation that, under this Part, have vested
in, or become liabilities of, another person;
10
"PTC" means Public Transport Corporation
established under Part II of the Transport
Act 1983;
"relevant date", in relation to an allocation
statement under section 40 or 41 or property,
15
rights or liabilities allocated under such a
statement, means the date fixed by the
Minister under sub-section (2) for the
purposes of that statement;
"transferee" means a person to whom property is
20
allocated under an allocation statement under
section 40 or 41;
"transferor" means the PTC or rail corporation
from which property is transferred under an
allocation statement under section 40 or 41.
25
(2) The Minister, by notice published in the
Government Gazette, may fix the relevant date for
the purposes of an allocation statement under
section 40 or 41.
(3) Nothing in this Part enables the transfer of any
30
Crown land.
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s. 40 Act No.
40. Minister may direct transfer of PTC property to rail
corporation
(1) The Minister may give a direction in writing to
the PTC directing it to transfer, in accordance
with the direction, property, rights and liabilities
5
of a specified kind to a rail corporation.
(2) A direction under sub-section (1) may include
directions as to the method of valuation to be used
by the PTC for the purposes of determining the
value of property, rights and liabilities to be
10
transferred.
(3) Within 45 days after receiving a direction under
sub-section (1), the PTC must give to the Minister
a statement containing the information required by
the Minister relating to the property, rights and
15
liabilities of the PTC to which the direction
relates, as at the date specified by the Minister for
the purposes of this section.
(4) A statement under this section--
(a) must identify and give the value of the
20
property, rights and liabilities of the PTC to
be transferred; and
(b) must allocate the property, rights and
liabilities of the PTC shown in the statement
in accordance with the directions of the
25
Minister; and
(c) must be signed by the chief executive of the
PTC.
(5) If a statement under this section is approved by
the Minister--
30
(a) the Minister must sign the statement; and
(b) the statement is an allocation statement for
the purposes of this Part.
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(6) The Minister may at any time direct the PTC to
amend a statement given to him or her under this
section as specified in the direction.
(7) An allocation statement under this section may be
amended by writing signed by the Minister.
5
(8) An amendment under sub-section (7) to an
allocation statement made after the relevant date
in relation to that statement may be made with
effect from that relevant date if the Minister is
satisfied that the amendment does not adversely
10
affect any property, rights or liabilities of a person
other than the transferor or the transferee in
relation to that statement.
(9) In this section, "statement" and "allocation
statement" include a statement or allocation
15
statement amended in accordance with this
section.
41. Minister may direct transfer of rail corporation
property to other persons
(1) The Minister may give a direction in writing to a
20
rail corporation directing it to transfer, in
accordance with the direction, property, rights and
liabilities of a specified kind to a person or
persons nominated by the Minister.
(2) A direction under sub-section (1) may include
25
directions as to the method of valuation to be used
by the rail corporation for the purposes of
determining the value of property, rights and
liabilities to be transferred.
(3) Within 45 days after receiving a direction under
30
sub-section (1), the rail corporation must give to
the Minister a statement containing the
information required by the Minister relating to
the property, rights and liabilities of the rail
corporation to which the direction relates, as at the
35
24
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s. 41 Act No.
date specified by the Minister for the purposes of
this section.
(4) A statement under this section--
(a) must identify and give the value of the
property, rights and liabilities of the rail
5
corporation to be transferred; and
(b) must allocate the property, rights and
liabilities of the rail corporation shown in the
statement in accordance with the directions
of the Minister; and
10
(c) must be signed by the chief executive officer
of the rail corporation.
(5) If a statement under this section is approved by
the Minister--
(a) the Minister must sign the statement; and
15
(b) the statement is an allocation statement for
the purposes of this Part.
(6) The Minister may at any time direct a rail
corporation to amend a statement given to him or
her under this section as specified in the direction.
20
(7) An allocation statement under this section may be
amended by writing signed by the Minister.
(8) An amendment under sub-section (7) to an
allocation statement made after the relevant date
in relation to that statement may be made with
25
effect from that relevant date if the Minister is
satisfied that the amendment does not adversely
affect any property, rights or liabilities of a person
other than the transferor or the transferee in
relation to that statement.
30
(9) In this section, "statement" and "allocation
statement" include a statement or allocation
statement amended in accordance with this
section.
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42. Property transferred in accordance with direction
On the relevant date--
(a) all property and rights of the PTC, wherever
located, that are allocated under an allocation
statement in accordance with a direction of
5
the Minister under section 40, vest in a rail
corporation in accordance with the
statement;
(b) all liabilities of the PTC, wherever located,
that are allocated under an allocation
10
statement in accordance with a direction of
the Minister under section 40, become
liabilities of a rail corporation in accordance
with the statement;
(c) all property and rights of a rail corporation,
15
wherever located, that are allocated under an
allocation statement in accordance with a
direction of the Minister under section 41,
vest in a person or persons in accordance
with the statement;
20
(d) all liabilities of a rail corporation, wherever
located, that are allocated under an allocation
statement in accordance with a direction of
the Minister under section 41, become
liabilities of a person or persons in
25
accordance with the statement.
43. Allocation of property etc. subject to encumbrances
Unless an allocation statement under this Part
otherwise provides, where, under this Part--
(a) property and rights vest in; or
30
(b) liabilities become liabilities of--
a transferee in accordance with a direction under
section 40 or 41--
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(c) the property and rights so vested are subject
to the encumbrances (if any) to which they
were subject immediately before so vesting;
and
(d) the rights to which the transferor was entitled
5
in respect of those liabilities immediately
before they ceased to be liabilities of the
transferor vest in the transferee.
44. Payments in respect of financial obligations
(1) If--
10
(a) an Order has been made under section
36D(1) or 36E(1) of the Treasury
Corporation of Victoria Act 1992 relating
to financial obligations of a rail corporation;
and
15
(b) responsibility for those financial obligations
has become the responsibility of a transferee
under an allocation statement under section
41--
then--
20
(c) the transferee must pay to the Treasury
Corporation of Victoria such amounts, and at
such times, as the rail corporation would
have been liable to pay in respect of those
financial obligations if the Order had not
25
been made, except in so far as the
Corporation and the transferee agree; and
(d) the Corporation must pay to the transferee
such amounts, and at such times, as the rail
corporation would have been entitled to
30
receive in respect of those financial
obligations if the Order had not been made,
except in so far as the Corporation and the
transferee otherwise agree.
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(2) An amount payable under sub-section (1) may be
recovered in a court of competent jurisdiction as a
debt due to the Treasury Corporation of Victoria
or the transferee, as the case requires.
45. Certificate of chief executive or CEO
5
(1) A certificate signed by the chief executive of the
PTC or the chief executive officer of a rail
corporation that is a transferor certifying that
property, rights or liabilities of the transferor
specified in the certificate have been allocated
10
under an allocation statement in accordance with
section 40 or 41 (as the case may be) is, unless
revoked under sub-section (2), conclusive
evidence--
(a) that the property, rights or liabilities have
15
been so allocated; and
(b) that the property, rights or liabilities vested
in, or become the property, rights or
liabilities of, the transferee on the relevant
date.
20
(2) If the Minister so directs the chief executive or
chief executive officer in writing, the chief
executive or chief executive officer must revoke a
certificate given under sub-section (1) by issuing
another certificate in place of the first certificate.
25
(3) The chief executive or chief executive officer of a
transferor--
(a) must keep a register of certificates issued
under this section; and
(b) must make the register reasonably available
30
for inspection by a transferee or other
interested person.
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46. Value of transferred property
The value to a transferee as at the relevant date of
property, rights and liabilities of the transferor that
are allocated to it under an allocation statement is
the value shown in the relevant allocation
5
statement.
47. Substitution of party to agreement
Where, under an allocation statement, the rights
and liabilities of a transferor under an agreement
are allocated to a transferee in accordance with a
10
direction under section 40 or 41--
(a) the transferee becomes, on the relevant date,
a party to the agreement in place of the
transferor; and
(b) on and after the relevant date, the agreement
15
has effect as if the transferee had always
been a party to the agreement.
48. Former PTC and rail corporation instruments
(1) Each former PTC instrument relating to former
PTC property continues to have effect according
20
to its tenor on and after the relevant date in
relation to that property as if a reference in the
instrument to the PTC were a reference to the
transferee.
(2) Each former rail corporation instrument relating to
25
former rail corporation property continues to have
effect according to its tenor on and after the
relevant date in relation to that property as if a
reference in the instrument to the rail corporation
were a reference to the transferee.
30
49. Proceedings
If, immediately before the relevant date,
proceedings relating to former PTC property or
former rail corporation property (including
29
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Act No.
arbitration proceedings) to which a transferor was
a party were pending or existing in any court or
tribunal, then, on and after that date, the transferee
is substituted for the transferor as a party to the
proceedings and has the same rights in the
5
proceedings as the transferor had.
50. Interests in land
Without prejudice to the generality of this Part
and despite anything to the contrary in any other
Act or law if, immediately before the relevant
10
date, a transferor is, in relation to former PTC
property or former rail corporation property, the
registered proprietor of an interest in land under
the Transfer of Land Act 1958, then on and after
that date--
15
(a) the transferee is to be taken to be the
registered proprietor of that interest in land;
and
(b) the transferee has the same rights and
remedies in respect of that interest as the
20
transferor had.
51. Easements
(1) If a rail corporation acquires any right in the
nature of an easement (whether as a result of an
allocation under this Part or otherwise), that right
25
must be taken to be an easement even though
there is no land vested in the rail corporation
which is benefited or capable of being benefited
by that right.
(2) If a transferee other than a rail corporation
30
acquires any right in the nature of an easement as
a result of an allocation under this Part, that right
must be taken to be an easement even though
there is no land vested in the transferee which is
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benefited or capable of being benefited by that
right.
(3) A transferee may, subject to and in accordance
with any agreement entered into with another
transferee, exercise such rights in respect of
5
easements to which the other transferee is entitled
as are reasonably necessary to enable the first-
mentioned transferee to carry out its functions in a
manner similar to the manner in which the
transferor carried out corresponding functions
10
before the relevant date.
(4) A transferee must pay such reasonable charges for
the exercise of rights under sub-section (3) in
respect of easements to which another transferee
is entitled as are determined by the other
15
transferee and agreed by the first-mentioned
transferee or, if there is no agreement, as are
determined by the Minister.
52. Amendment of Register
(1) The Registrar of Titles, on being requested to do
20
so and on delivery of any relevant certificate of
title or instrument and certificate of the chief
executive or chief executive officer of the
transferor of former PTC property or former rail
corporation property, must make any amendments
25
in the Register that are necessary because of the
operation of this Part.
(2) The Registrar-General must make all entries on
the records of enrolment of any Crown grant and
on any memorial relating to land that are
30
necessary because of the operation of this Part.
(3) If any land allocated under an allocation statement
under this Part is not under the operation of the
Transfer of Land Act 1958, the transferee of the
former PTC property or former rail corporation
35
property (as the case may be) must, as soon as
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Act No.
practicable after the land vests in accordance with
the allocation statement, cause a memorial of the
certificate of the chief executive or chief
executive officer of the transferor (that complies
with Part I of the Property Law Act 1958) to be
5
delivered to the office of the Registrar-General
and, for the purposes of that Part, that certificate
must be taken to be an instrument affecting land.
53. Taxes
No stamp duty or other tax is chargeable under
10
any Act in respect of anything effected by or done
under this Part or in respect of any act or
transaction connected with or necessary to be
done by reason of this Part, including a
transaction entered into or an instrument made,
15
executed, lodged or given, for the purpose of, or
connected with--
(a) the transfer of property, rights or liabilities
of the PTC or a rail corporation; or
(b) a lease entered into between the PTC and
20
Rail Track in accordance with a direction
under section 56.
54. Evidence
(1) Documentary or other evidence that would have
been admissible for or against the interests of a
25
transferor in relation to former PTC property or
former rail corporation property if this Part had
not been enacted is admissible for or against the
interests of the transferee.
(2) Division 3A of Part III of the Evidence Act 1958
30
continues to apply with respect to the books of
account of the PTC or a rail corporation and to
entries made in those books of account before the
relevant date, whether or not they relate to former
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s. 55 Act No.
PTC property or former rail corporation property
(as the case may be).
55. Validity of things done under this Part
Nothing effected or to be effected by this Part or
done or suffered under this Part--
5
(a) is to be regarded as placing any person in
breach of contract or confidence or as
otherwise making any person guilty of a civil
wrong; or
(b) is to be regarded as placing any person in
10
breach of, or as constituting a default under,
any Act or other law or obligation or any
provision in any agreement, arrangement or
understanding including, but not limited to,
any provision or obligation prohibiting,
15
restricting or regulating the assignment,
transfer, sale or disposal of any property or
the disclosure of any information; or
(c) is to be regarded as fulfilling any condition
that allows a person to exercise a power,
20
right or remedy in respect of or to terminate
any agreement or obligation; or
(d) is to be regarded as giving rise to any
remedy for a party to a contract or an
instrument or as causing or permitting the
25
termination of any contract or instrument
because of a change in the beneficial or legal
ownership of any asset, right or liability; or
(e) is to be regarded as causing any contract or
instrument to be void or otherwise
30
unenforceable; or
(f) is to be regarded as frustrating any contract;
or
(g) releases any surety or other obligee wholly
or in part from any obligation.
35
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56. Minister may direct PTC to lease land to Rail Track
The Minister, after consultation with the Minister
administering Part II of the Transport Act 1983,
may in writing direct the PTC to lease any land
vested in it to Rail Track, on the terms and
5
conditions specified in the direction.
_______________
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Sch.
s. 57 1 Act No.
PART 4--AMENDMENT OF OTHER ACTS
No. 13/1987. 57. Borrowing and Investment Powers Act 1987
Reprinted to
No. 106/1995
(1) In Schedule 1 to the Borrowing and Investment
and
Powers Act 1987 after item 23 insert--
subsequently
amended by "23AA. Victorian Rail Track 5, 8, 10, 11, 11AA,
Nos 4/1996
11AB, 13, 14, 14A,
and 11/1996.
15, 20, 20A and 21.".
(2) In Schedule 1 to the Borrowing and Investment
5
Powers Act 1987 after item 23A insert--
"23B. V/Line Freight 5, 8, 10, 11, 11AA,
11AB, 13, 14, 14A,
15, 20, 20A and 21.".
No. 9921. 58. Transport Act 1983
Reprinted to
No. 107/1995.
(1) In section 47(2)(b) of the Transport Act 1983,
after "National Rail Corporation Limited" insert
"or a rail corporation (within the meaning of the
10
Rail Corporations Act 1996)".
(2) In section 82(3)(aa) of the Transport Act 1983,
after "public statutory authority" insert "(other
than a rail corporation (within the meaning of the
Rail Corporations Act 1996))".
15
No. 80/1992. 59. Treasury Corporation of Victoria Act 1992
Reprinted to
No. 100/1995.
(1) In section 36A of the Treasury Corporation of
Victoria Act 1992, in the definition of "public
authority", after "Victorian Channels Authority,"
insert "Victorian Rail Track, V/Line Freight,".
20
(2) At the end of Schedule 1 to the Treasury
Corporation of Victoria Act 1992 insert--
"Victorian Rail Track Rail Corporations Act 1996
V/Line Freight Rail Corporations Act 1996".
_______________
SCHEDULE 1
25 Section 19
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Sch. 1
Act No.
PROVISIONS APPLYING TO RAIL CORPORATIONS
1. Board of directors
(1) Each rail corporation must have a board of directors
consisting of not less than 3, and not more than 5, directors
5 appointed in accordance with this Schedule.
(2) The board of directors of a rail corporation--
(a) is responsible for the management of the affairs of the
rail corporation; and
(b) may exercise the powers of the rail corporation.
10 2. Constitution of board
The board of a rail corporation consists of--
(a) a chairperson;
(b) a deputy chairperson;
(c) subject to clause 1, such number of other directors as
15 are appointed by the Governor in Council in
accordance with this Schedule.
3. Appointment of directors
(1) The chairperson, deputy chairperson and other directors of a
rail corporation shall be appointed by the Governor in
20 Council.
(2) The Public Sector Management Act 1992 does not apply
to a director of a rail corporation in respect of the office of
director.
4. Terms and conditions of appointment
25 A director of a rail corporation holds office, subject to this
Act--
(a) for such term, not exceeding 3 years as is specified in
the instrument of appointment, but is eligible for re-
appointment; and
30 (b) on such terms and conditions as are determined by the
Minister.
5. Acting appointments
(1) When--
(a) the office of chairperson of the board of a rail
35 corporation is vacant; or
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(b) the chairperson is absent from Victoria or is, for any
other reason, unable to attend meetings of the board
or otherwise unable to perform the duties of the
office--
5 the deputy chairperson of the board must act as chairperson.
(2) While the deputy chairperson is acting as chairperson, the
deputy chairperson has and may exercise all the powers, and
must perform all the duties, of the chairperson.
(3) The Minister may appoint a director of a rail corporation to
10 act as deputy chairperson--
(a) during a vacancy in the office of deputy chairperson;
or
(b) during any period, or during all periods, when the
deputy chairperson is acting as chairperson or is
15 unable, for any reason, to attend meetings of the
board.
(4) The Minister may appoint a person to act as a director (other
than the chairperson or deputy chairperson) of a rail
corporation--
20 (a) during a vacancy in the office of a director; or
(b) during any period, or during all periods, when a
director is acting as deputy chairperson or is unable,
for any reason, to attend meetings of the board.
6. Chief executive officer and other staff
25 (1) The board of a rail corporation, with the approval of the
Minister, may appoint a person as the chief executive officer
of the rail corporation.
(2) The chief executive officer holds office, subject to this Act,
on a full-time basis and on such terms and conditions as are
30 determined by the Minister and specified in the instrument
of appointment.
(3) The chief executive officer may be a director of the rail
corporation but may not be the chairperson.
(4) The board of a rail corporation may employ such other
35 officers and employees as are necessary for the performance
of its functions.
7. Vacancies, resignations, removal from office
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(1) The office of a director of a rail corporation becomes vacant
if the director--
(a) without the board's approval, fails to attend 3
consecutive meetings of the board; or
5 (b) becomes bankrupt, applies to take the benefit of any
law for the relief of bankrupt or insolvent debtors,
compounds with his or her creditors or makes an
assignment of his or her remuneration for their
benefit; or
10 (c) is convicted of an indictable offence or an offence
that, if committed in Victoria, would be an indictable
offence.
(2) A director may resign by writing delivered to the Minister.
(3) The Governor in Council may remove a director, or all
15 directors, from office.
(4) If a director--
(a) is convicted of an offence relating to his or her duties
as a director; or
(b) fails, without reasonable excuse, to comply with
20 clause 11--
the director must be removed from office by the Governor
in Council.
8. Validity of acts or decisions
(1) An act or decision of the board of a rail corporation is not
25 invalid merely because of--
(a) a defect or irregularity in, or in connection with, the
appointment of a director; or
(b) a vacancy in the membership of the board, including a
vacancy arising from the failure to appoint an original
30 director.
(2) Anything done by or in relation to a person purporting to act
as chairperson, deputy chairperson or as a director is not
invalid merely because--
(a) there was a defect or irregularity in relation to the
35 acting appointment; or
(b) the occasion for the person to act had not arisen or
had ceased.
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9. Proceedings of board
(1) Subject to sub-clause (2), meetings of the board of a rail
corporation shall be held at such times and places as the
board determines.
5 (2) The chairperson may at any time convene a meeting, but
must do so when requested by a director to do so.
(3) A majority of the directors of the board for the time being
constitutes a quorum of the board.
(4) A question arising at a meeting is determined by a majority
10 of votes and the person presiding has a deliberative vote
and, in the case of an equality of votes, a second or casting
vote.
(5) The board must ensure that accurate minutes are kept of its
meetings.
15 (6) The board may permit members to participate in a particular
meeting, or all meetings, by telephone, closed circuit
television or other means of communication that does not
require the physical presence of each member in the same
place.
20 (7) Subject to this Act, the board may regulate its own
proceedings.
10. Resolutions without meetings
(1) If the directors for the time being of a rail corporation (other
than a director who is absent from Australia when the other
25 directors sign) sign a document containing a statement that
they are in favour of a resolution in the terms set out in the
document, a resolution in those terms is deemed to have
been passed at a meeting of the board held on the day on
which the document is signed or, if the directors do not sign
30 it on the same day, on the day on which the last director to
sign signs the document.
(2) If a resolution is, under sub-clause (1), deemed to have been
passed at a meeting of the board, each director must be
advised as soon as practicable and given a copy of the terms
35 of the resolution.
(3) For the purposes of sub-clause (1), 2 or more separate
documents containing a statement in identical terms, each of
which is signed by one or more directors, are deemed to
constitute one document.
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(4) In sub-clause (1), "director", in relation to a resolution,
does not include a director who, because of clause 11, is not
permitted to take part in the making of the resolution.
11. Disclosure of interests
5 (1) If--
(a) a director of a rail corporation has a direct or indirect
pecuniary interest in a matter being considered, or
about to be considered, by the board; and
(b) the interest could conflict with the proper
10 performance of the director's duties in relation to the
consideration of the matter--
the director, as soon as practicable after becoming aware of
the relevant facts, must disclose the nature of the interest at
a meeting of the board.
15 (2) A disclosure under sub-clause (1) must be recorded in the
minutes of the meeting and, unless the Minister or the board
otherwise determines, the director--
(a) must not be present during any deliberation of the
board in relation to the matter; and
20 (b) must not take part in any decision of the board in
relation to the matter.
(3) For the purpose of the making of a determination of the
board under sub-clause (2) in relation to a director who has
made a disclosure under sub-clause (1), a director who has a
25 direct or indirect pecuniary interest in the matter to which
the disclosure relates--
(a) must not be present during any deliberation of the
board in relation to the matter; and
(b) must not take part in any decision of the board in
30 relation to the matter.
(4) Sub-clauses (1) and (2) do not apply in relation to a matter
relating to the supply of goods or services to the director if
the goods or services are, or are to be, available to members
of the public on the same terms and conditions.
35
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Rail Corporations Act 1996
Notes Act No.
NOTES
By Authority. Government Printer for the State of Victoria.
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