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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Rail Corporations (Amendment) Act 2002
Act No.
TABLE OF PROVISIONS
Clause Page
1. Purpose 1
2. Commencement 1
3. Definition 2
4. Access regime 2
5. New Division 3 inserted in Part 2A 5
Division 3--Information Provided by Access Seekers 5
38Q. What is information provided by an access seeker? 5
38QA. Determination that confidentiality requirements apply 5
38QB. Confidentiality requirements 7
38QC. Operators to have policies to ensure compliance with
confidentiality requirements 9
6. Division 4 heading inserted 10
7. New section 38RA inserted 10
38RA. Commission's power to obtain information and
documents 10
ENDNOTES 11
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PARLIAMENT OF VICTORIA
Initiated in Assembly 17 April 2002
A BILL
to amend the Rail Corporations Act 1996 in relation to the rail
access regime and for other purposes.
Rail Corporations (Amendment) Act
2002
The Parliament of Victoria enacts as follows:
1. Purpose
The purpose of this Act is to amend the Rail
Corporations Act 1996 to improve the rail access
regime in accordance with national competition
5 policy.
2. Commencement
This Act comes into operation on the day after the
day on which it receives the Royal Assent.
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Rail Corporations (Amendment) Act 2002
s. 3
Act No.
3. Definition
See:
In section 3(1) of the Rail Corporations Act Act No.
1996, after the definition of "rail transport service" 79/1996.
Reprint No. 2
insert-- as at
1 January
5 ' "related body corporate" has the same 2001
meaning as in section 9 of the Corporations and
amending
Act;'. Act Nos
44/2001,
54/2001 and
62/2001.
Law Today:
www.dms.
dpc.vic.
gov.au
4. Access regime
(1) In Part 2A of the Rail Corporations Act 1996--
10 (a) after the heading to the Part insert--
"Division 1--Introduction";
(b) after section 38D insert--
"Division 2--Seeking Access to Declared
Rail Transport Services".
15 (2) In section 38F of the Rail Corporations Act
1996, after sub-section (3) insert--
"(4) The making of a determination under this
section is not an arbitration for the purposes
of the Commercial Arbitration Act 1984.".
20 (3) In section 38H of the Rail Corporations Act
1996, for sub-section (1) substitute--
"(1) At any time after receiving an application
under section 38F, the Commission may give
notice in writing to the person making the
25 application or to any other person the
Commission has reason to believe has
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Rail Corporations (Amendment) Act 2002
s. 4
Act No.
information that may assist the Commission
in making a determination, specifying--
(a) any information that the Commission
requires the person to give the
5 Commission so that it can make a
determination; and
(b) a reasonable time within which the
information must be provided.".
(4) In section 38J of the Rail Corporations Act
10 1996--
(a) in sub-section (1), after paragraph (b)
insert--
"; and
(c) take into account, if relevant, the ability
15 of the access seeker to obtain access to
any other network.";
(b) in sub-section (2), for "the period of time
between the day on which notice is given
under section 38H" substitute "any period of
20 time between the day on which a notice is
given under section 38H(1)".
(5) In section 38J of the Rail Corporations Act
1996, after sub-section (3) insert--
'(4) If an access seeker also requires access to
25 any other network in order to provide a
passenger service or other transport service,
the Commission, before making the
determination, must if possible consult--
(a) the owner or operator of the other
30 network; and
(b) any person appointed to act as
arbitrator, mediator or conciliator (by
whatever name called) under any
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Rail Corporations (Amendment) Act 2002
s. 4
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access regime applying to the other
network.
(5) In this section--
"access seeker" means a person seeking
5 access to a declared rail transport
service in respect of which an
application has been made to the
Commission for a determination;
"other network" means rail infrastructure
10 or tram infrastructure (whether in or
outside Victoria) used to provide a
passenger service or other transport
service that is not the subject of the
application with which the Commission
15 is dealing.'.
(6) In section 38K(1) of the Rail Corporations Act
1996, for "this Part" substitute "this Division".
(7) In section 38O of the Rail Corporations Act
1996, sub-section (6) is repealed.
20 (8) In section 38P of the Rail Corporations Act
1996, for sub-section (1) substitute--
"(1) This section applies if information or a
document is given to the Commission--
(a) under section 38H(1); or
25 (b) under section 37 of the Essential
Services Commission Act 2001 to
assist the Commission in making a
determination under section 38F of this
Act--
30 and, at the time it is given, the person giving
it states that it is of a confidential or
commercially sensitive nature.".
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(9) In section 38P(2)(a)(ii) of the Rail Corporations
Act 1996, for "the objectives of this Part"
substitute "the Commission's objectives".
5. New Division 3 inserted in Part 2A
5 After section 38PA of the Rail Corporations Act
1996 insert--
'Division 3--Information Provided by Access
Seekers
38Q. What is information provided by an access
10 seeker?
In this Division, "information provided by
an access seeker" means any information
given to an operator of rail or tram
infrastructure by a person in the course of the
15 person seeking access to a declared rail
transport service, including, without
limitation, any information regarding--
(a) the train or tram paths sought by the
person;
20 (b) forecasts of the person's intended use of
the service;
(c) the person's customers or potential
customers;
(d) the person's business and operational
25 plans;
(e) the person's financial position.
38QA. Determination that confidentiality
requirements apply
(1) A person referred to in sub-section (2) may
30 apply in writing to the Commission for the
making of a determination in accordance
with section 34 of the Essential Services
Commission Act 2001 that an operator of
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Rail Corporations (Amendment) Act 2002
s. 5
Act No.
rail or tram infrastructure who provides a
declared rail transport service is required to
comply with this Division.
(2) The persons who may apply under sub-
5 section (1) are--
(a) the Director on behalf of the State; or
(b) a person seeking access, or proposing
to seek access, to the declared rail
transport service.
10 (3) On an application under sub-section (1) the
Commission may determine that the operator
is required to comply with this Division if--
(a) the Commission is satisfied that the
operator, or a related body corporate of
15 the operator, is substantially involved in
a business in competition with persons
who may seek access to the declared
rail transport service; and
(b) the Commission is satisfied--
20 (i) that requiring the operator to
comply with this Division would
not cause detriment to the
operator; or
(ii) that although requiring the
25 operator to comply with this
Division would cause detriment to
the operator, it would assist in
achieving the Commission's
objectives and the benefit of
30 achieving those objectives would
outweigh any detriment caused by
the requirement to comply with
this Division.
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(4) Subject to sub-section (5), the Commission
must endeavour to determine an application
under sub-section (1) within 30 days after
receiving it, excluding any period of time
5 between the time when the Commission
gives a person notice under section 37 of the
Essential Services Commission Act 2001
requiring them to give information to the
Commission in respect of the application and
10 the time when the required information is
received by the Commission.
(5) The Commission may refuse to make a
determination if the Commission considers
that the application is frivolous.
15 (6) An operator who is bound by a determination
may apply in writing to the Commission for
the revocation of the determination on the
ground that there has been a material change
in circumstances.
20 38QB. Confidentiality requirements
(1) An operator of rail or tram infrastructure
who is bound by a determination under
section 38QA, or an officer, employee or
contractor of that operator, must not disclose
25 information provided by an access seeker,
except as permitted by this section.
Penalty: 120 penalty units.
(2) An operator of rail or tram infrastructure
who is bound by a determination under
30 section 38QA, or an officer, employee or
contractor of that operator, must not use
information provided by an access seeker to
obtain directly or indirectly any pecuniary or
other advantage for the operator or for any
35 other person, except as permitted by this
section.
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Penalty: 1200 penalty units.
(3) An operator of rail or tram infrastructure, or
an officer, employee or contractor of that
operator, may disclose information provided
5 by an access seeker--
(a) to another person, other than a
restricted person, in connection with the
granting of access to the declared rail
transport service; or
10 (b) to the Commission.
(4) For the purposes of sub-section (3)(a), a
"restricted person" means a person who is
directly involved, on behalf of the operator
or a related body corporate of the operator, in
15 the promotion or marketing of rail freight or
passenger services, other than a person--
(a) who is a director of the operator; or
(b) whose involvement is limited to
strategic decision making, performing
20 general supervisory or executive
functions or providing technical,
administrative, accounting or other
support functions.
(5) A person may disclose or use information
25 provided by an access seeker if--
(a) the person has the consent of the person
who provided the information to
disclose or use it; or
(b) the disclosure or use is made in legal
30 proceedings at the direction of a court
or is otherwise required by law; or
(c) the information is in the public domain
at the time it is disclosed or used.
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(6) Sub-section (5) is not intended to interfere
with any rights another person may have
with regard to the disclosure or use of the
information.
5 (7) If an operator is bound by a determination
under section 38QA, this section applies to
the operator and its officers, employees and
contractors, while the determination has
effect, in respect of information provided by
10 an access seeker before or after the
determination took effect.
38QC. Operators to have policies to ensure
compliance with confidentiality
requirements
15 (1) An operator of rail or tram infrastructure
who is bound by a determination under
section 38QA must develop and maintain
written policies to ensure compliance by the
operator and its officers, employees and
20 contractors with section 38QB.
(2) The policies must be developed within a
reasonable period specified by the
Commission in the determination.
(3) An operator must give a copy of each
25 policy--
(a) to the Commission, as soon as
practicable after the policy is
developed; and
(b) to any other person on request.
30 (4) If the operator amends a policy, it must give
the Commission a copy of the amended
policy as soon as practicable after the
amendment is made.'.
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Rail Corporations (Amendment) Act 2002
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Act No.
6. Division 4 heading inserted
Before section 38R of the Rail Corporations Act
1996 insert--
"Division 4--General".
5 7. New section 38RA inserted
After section 38R of the Rail Corporations Act
1996 insert--
"38RA. Commission's power to obtain information
and documents
10 (1) Any power given by or under this Part to the
Commission to obtain information or
documents is in addition to the Commission's
powers under section 37 of the Essential
Services Commission Act 2001 to obtain
15 information or documents that may assist the
Commission in the performance of any of its
functions.
(2) Without limiting the application of sub-
section (1), the Commission may exercise
20 any of its powers under section 37 of the
Essential Services Commission Act 2001--
(a) to assist the Commission in
determining compliance with
section 38O by operators of declared
25 rail transport services;
(b) to assist the Commission in making a
determination under section 38QA;
(c) whether or not a person has applied to
the Commission for the making of a
30 determination under section 38F.".
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Rail Corporations (Amendment) Act 2002
Endnotes
Act No.
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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