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PARLIAMENT OF VICTORIA
Transport Legislation (Further Amendment) Act
2005
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purposes 1
2. Commencement 2
PART 2--AMENDMENT OF RAIL CORPORATIONS ACT 1996 3
3. Definitions 3
4. New Division 1 of Part 2A substituted and Divisions 2 and 3 of
Part 2A repealed 5
Division 1--Introduction 5
38A. Definitions 5
38B. Associated rail infrastructure may be declared to be
rail infrastructure 13
38C. Tabling and disallowance of Orders under section 38B 13
38D. Declaration of persons to be access providers 14
38E. Application of Essential Services Commission
Act 2001 14
38F. Objectives of the Commission 15
38G. Meaning of "operate" 15
38H. Principle of passenger priority 16
38I. Declaration of rail transport services 16
38J. Pricing Principles Order 18
38K. Declaration of certain agreements to be relevant rail
infrastructure agreements 21
38L. Extra-territorial operation 21
5. New Divisions 2 and 3 of Part 2A inserted 22
Division 2--Commission Rules and Guidelines 22
38M. Definition 22
38N. Procedural requirements for the making of a
Commission instrument 22
38O. Commission instruments may incorporate documents
and other material 23
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551311B.I1-5/5/2005 BILL LA INTRODUCTION 5/5/2005
Clause Page
38P. General powers applicable to the making of a
Commission instrument 24
38Q. Commission instruments must be in force at all times 24
38R. Account keeping rules 25
38S. Ring fencing rules 26
38T. Capacity use rules 26
38U. Network management rules 28
38V. Negotiation guidelines 29
Division 3--Access Arrangements 31
38W. Submission of access arrangement to Commission for
approval 31
38X. Contents of proposed access arrangements 31
38Y. Notification by Commission of submission to it of
proposed access arrangement 33
38Z. Submission and comments in relation to proposed
access arrangement 34
38ZA. Consideration of submission or comments by
Commission 34
38ZB. Draft decision on whether proposed access
arrangement will be approved 35
38ZC. Access provider may submit revisions to proposed
access arrangement 38
38ZD. Submission and comments in relation to draft decision 39
38ZE. Consideration of submissions and comments on draft
decision 39
38ZF. Final decision on proposed access arrangement 39
38ZG. Time within Commission must make a final decision 41
38ZH. Giving and publishing a final decision 41
38ZI. Matters to be taken into account in making a final
decision 42
38ZJ. Commission to make proposed access arrangement in
certain cases 43
38ZK. Deemed access arrangement if Commission fails to
make a certain access arrangement 45
38ZL. Deemed access arrangements may be replaced in
certain circumstances 46
38ZM. Period of operation of access arrangement 47
38ZN. Effect of access arrangement approved under this
Division or made by the Commission 48
38ZO. Variation of a binding access arrangement on the
application of the access provider 48
38ZP. Variation of a binding access arrangement by
Commission 50
38ZQ. Substitution of access provider to a binding access
arrangement 51
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551311B.I1-5/5/2005 BILL LA INTRODUCTION 5/5/2005
Clause Page
38ZR. Renewal of access arrangement 52
38ZS. Appeals from Commission decisions under Division 3 54
6. New Division 4 of Part 2A substituted and new Divisions 5 to 9
of Part 2A inserted 55
Division 4--Interconnection of Railways 55
38ZT. Interconnection 55
Division 5--Dispute Resolution 57
38ZU. What is an access regime dispute? 57
38ZV. Notification of access regime dispute 58
38ZW. Withdrawal of notice of access regime dispute 59
38ZX. Commission must decide on access regime disputes 59
38ZY. Time within which Commission must make dispute
resolution decision 60
38ZZ. Minister may extend time within which Commission
may make decision 61
38ZZA. Commission may decide not to make dispute
resolution decision in certain cases 61
38ZZB. Matters to be taken into account in making decision 62
38ZZC. Decisions must not be inconsistent with principles
and rules 62
38ZZD. Decisions must not be inconsistent with an access
arrangement 63
38ZZE. Decisions must not interfere with certain directions
of the Secretary 63
38ZZF. Certain decisions must not be made without prior
consultation with Secretary and Director 63
38ZZG. Decisions in relation to extensions of rail
infrastructure 64
38ZZH. Hearings for the purposes of a dispute resolution
decision 65
38ZZI. Hearing to be in private 66
38ZZJ. Right to representation 66
38ZZK. Particular powers of the Commission for the
purposes of making a dispute resolution decision 67
38ZZL. Power to take evidence on oath or affirmation 68
38ZZM. Commission may give directions in relation to
negotiations 68
38ZZN. Two or more access regime disputes may be decided
together 69
38ZZO. Commission may make interim decision 69
38ZZP. Variation or revocation of dispute resolution
decisions 71
38ZZQ. Appeals from decisions of the Commission under
Division 5 72
38ZZR. Commission may recover its costs in certain cases 73
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551311B.I1-5/5/2005 BILL LA INTRODUCTION 5/5/2005
Clause Page
Division 6--Access Provider Obligations 74
38ZZS. Hindering or preventing access 74
38ZZT. Compliance with access arrangement 75
38ZZU. Compliance with account keeping rules 75
38ZZV. Compliance with ring fencing rules 75
38ZZW. Compliance with capacity use rules 76
38ZZX. Compliance with network management rules 76
38ZZY. Access provider obligation in relation to calculating
prices for declared rail transport services 76
Division 7--Confidential Information 77
38ZZZ. Access provider confidential information
obligations 77
38ZZZA. Access seeker and user confidential information
obligations 78
38ZZZB. Access provider system and business rules for the
handling of confidential information 79
Division 8--Enforcement and Other Proceedings 80
38ZZZC. Proceedings 80
38ZZZD. Criminal proceedings do not lie 81
38ZZZE. Proceedings for contraventions of penalty
provisions 81
38ZZZF. Pecuniary penalties to be paid into the
Consolidated Fund 83
38ZZZG. Injunctions 83
38ZZZH. Declaratory relief 85
38ZZZI. Enforcement of dispute resolution decisions 85
Division 9--Miscellaneous 87
38ZZZJ. Collection and use of information by Commission 87
7. Supreme Court--limitation of jurisdiction 87
8. Amendment of regulation making power 87
PART 3--AMENDMENT OF TRANSPORT ACT 1983 88
Division 1--Access Regime Related Amendments 88
9. Priority of passenger services 88
Division 2--Other Amendments 91
10. Applications for renewal of authorisation 91
11. Renewal of authorisation 91
12. Duration of accreditation 91
13. Application for renewal of accreditation 92
14. Renewal of accreditation 92
iv
551311B.I1-5/5/2005 BILL LA INTRODUCTION 5/5/2005
Clause Page
15. New Division 1B of Part VIII inserted 92
Division 1B--Validation 92
246CA. Definitions 92
246CB. Authorized officers for the purposes of sections 212
and 213 appointed by MTA and STA 93
246CC. Authorised officers for the purposes of Division 2
of Part VII appointed by PTC 94
246CD. Authorised officers for the purposes of section
Division 2 of Part VII appointed by Secretary 96
246CE. Authorized officer for the purposes of section 218
appointed by the MTA or STA 99
246CF. Authorized officer for the purposes of section 218
or 218B appointed by the PTC under
section 218(1) 100
246CG. Authorised officers for the purposes of
section 218B appointed by PTC under that
section 101
246CH. Authorised officers for the purposes of
section 218B by Secretary 102
246CI. Officers of the MTA and STA authorized for the
purposes of section 219(2) or (4) 104
246CJ. Officers of the PTC authorised for the purposes of
section 219(2), (4) or (7) 105
246CK. Officers of the PTC authorised for the purposes of
section 219A 107
246CL. Relevant employees and authorised officers for the
purposes of section 219 108
246CM. Authorised persons for the purposes of
section 219AA 111
246CN. Authorised persons, authorised officers and
relevant employees for the purposes of
section 220 113
246CO. Authorized persons for the purposes of section 221
authorized by MTA or STA 116
246CP. Authorized persons for the purposes of section 221
authorized by PTC 117
246CQ. Authorized persons for the purposes of section 221
authorised by the Secretary 118
246CR. Authorised officers for the purposes of
section 221AA 123
246CS. Examples of things validated 125
246CT. Accreditations under Division 4A of Part VII 126
246CU. Prosecutorial authorisations by the MTA or STA 128
246CV. Prosecutorial authorisations by the PTC 130
246CW. Prosecutorial authorisations by the Secretary 134
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551311B.I1-5/5/2005 BILL LA INTRODUCTION 5/5/2005
Clause Page
246CX. Only things done or purported to have been done
under a purported authorisation and appointment
validated 137
246CY. Evidence 138
246CZ. Delegations generally in relation to authorisations 139
246CZA. Delegations generally in relation to accreditations 142
246CZB. Incorrect delegations purportedly under section 6B 142
246CZC. No proceedings may be brought 144
246CZD. Preservation of rights only in certain proceedings 144
16. New section 255G inserted 145
255G. Supreme Court--limitation of jurisdiction 145
ENDNOTES 146
vi
551311B.I1-5/5/2005 BILL LA INTRODUCTION 5/5/2005
PARLIAMENT OF VICTORIA
A BILL
to amend the Rail Corporations Act 1996 and the Transport Act
1983 and for other purposes.
Transport Legislation (Further
Amendment) Act 2005
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purposes
The main purposes of this Act are--
(a) to amend the Rail Corporations Act 1996
to provide for a new access regime; and
5
1
551311B.I1-5/5/2005 BILL LA INTRODUCTION 5/5/2005
Transport Legislation (Further Amendment) Act 2005
Act No.
Part 1--Preliminary
s. 2
(b) to amend the Transport Act 1983 to--
(i) validate certain things done or
purported to have been done by certain
persons in relation to the administration
of Part VII of that Act, including the
5
investigation and prosecution of
offences under that Part; and
(ii) validate certain accreditations of
passenger transport companies and bus
companies under Division 4A of
10
Part VII of that Act that may not have
been validly given by the Secretary;
and
(iii) deem certain instruments of delegation
as validly and lawfully executed; and
15
(iv) validate certain exercises or purported
exercises of delegated powers to
authorise certain persons to do things in
relation to the administration of
Part VII of that Act, including the
20
investigation and prosecution of
offences under that Part.
2. Commencement
(1) This Act (except sections 5 and 9(7), (8) and (9))
comes into operation on the day it receives the
25
Royal Assent.
(2) Subject to sub-section (3), sections 5 and 9(7), (8)
and (9) come into operation on a day to be
proclaimed.
(3) If sections 5 and 9(7), (8) and (9) do not come into
30
operation before 1 January 2006, they come into
operation on that day.
__________________
2
551311B.I1-5/5/2005 BILL LA INTRODUCTION 5/5/2005
Transport Legislation (Further Amendment) Act 2005
Act No.
Part 2--Amendment of Rail Corporations Act 1996
s. 3
See:
PART 2--AMENDMENT OF RAIL CORPORATIONS
Act No.
ACT 1996 79/1996.
Reprint No. 3
as at
3. Definitions 15 July 2003
and
In section 3(1) of the Rail Corporations Act amending
1996--
5 Act Nos
73/2003,
(a) the definitions of "declared rail transport 12/2004,
49/2004,
service" and "rail transport service" are 108/2004 and
repealed; 110/2004.
LawToday:
www.dms.
(b) after the definition of "former relevant dpc.vic.
assets" insert--
10 gov.au
' "freight service" means a service for the
carrying of freight by railway;';
(c) for the definition of "rail infrastructure"
substitute--
' "rail infrastructure" means a facility that
15
is used to operate a railway and
includes--
(a) railway track, railway track
sidings, associated track structures
and works (such as cuttings,
20
tunnels, bridges, stations,
platforms, excavations, land fill,
track support earthworks and
drainage works), over-track
structures, under-track structures,
25
service roads, signalling systems,
rolling stock control systems,
communications systems, notices
and signs, overhead electrical
power supply systems and
30
associated buildings, depots,
yards, plant, machinery and
equipment; and
3
551311B.I1-5/5/2005 BILL LA INTRODUCTION 5/5/2005
Transport Legislation (Further Amendment) Act 2005
Act No.
Part 2--Amendment of Rail Corporations Act 1996
s. 3
(b) a facility or infrastructure not
referred to in paragraph (a) that is
used to operate a railway that is
prescribed to be rail
infrastructure--
5
but does not include associated rail
infrastructure;
Note: Associated rail infrastructure may be
declared to be rail infrastructure for the
10 purposes of Part 2A under an Order
made by the Governor in Council:
See section 38B.';
(d) insert the following definitions--
' "associated rail infrastructure" means--
(a) an office, building or house used
15
in the provision of rail transport
services;
(b) a workshop;
(c) a terminal;
(d) rolling stock;
20
"terminal" means a facility at which freight
is loaded or unloaded from rolling
stock, or stored, and includes hard
stands, equipment and other
infrastructure used for the loading or
25
unloading of freight from rolling stock
at the facility;'.
4
551311B.I1-5/5/2005 BILL LA INTRODUCTION 5/5/2005
Transport Legislation (Further Amendment) Act 2005
Act No.
Part 2--Amendment of Rail Corporations Act 1996
s. 4
4. New Division 1 of Part 2A substituted and
Divisions 2 and 3 of Part 2A repealed
For Divisions 1, 2 and 3 of Part 2A of the Rail
Corporations Act 1996 substitute--
'Division 1--Introduction
5
38A. Definitions
In this Part--
"access activity" means any of the
following activities carried out by an
access provider--
10
(a) the management or maintenance
of, or investment in, rail
infrastructure used in the
provision of declared rail transport
services;
15
(b) negotiation or management of
agreements for the provision of
declared rail transport services;
(c) the assessment, allocation and
management of capacity;
20
(d) the provision, scheduling and
management of train control
services;
(e) an activity that is incidental to an
activity referred to in
25
paragraphs (a) to (d);
"access arrangement" means--
(a) an access arrangement approved
in a final decision under section
38ZF; or
30
(b) an access arrangement made under
section 38ZJ or 38ZL; or
5
551311B.I1-5/5/2005 BILL LA INTRODUCTION 5/5/2005
Transport Legislation (Further Amendment) Act 2005
Act No.
Part 2--Amendment of Rail Corporations Act 1996
s. 4
(c) a proposed access arrangement
deemed to be an access
arrangement by operation of
section 38ZK;
"access arrangement information" means
5
information that an access seeker would
reasonably require to understand the
derivation of the elements of the access
arrangement so as to form an opinion as
to whether the access arrangement
10
complies with this Part;
"access provider" means any of the
following persons if they provide, or
are capable of providing, a declared rail
transport service--
15
(a) a person accredited under
Division 3 of Part VI of the
Transport Act 1983 to manage
rail infrastructure (as defined by
section 104(1) of that Act);
20
(b) a person who manages rail
infrastructure (as defined by
section 104(1) of the Transport
Act 1983) and is exempted from
the requirement to be accredited
25
under Division 3 of Part VI of that
Act by regulations made under
that Act;
(c) the Spencer Street Station
Authority;
30
(d) the Crown;
(e) a related body corporate of a
person referred to in
paragraphs (a) to (c);
6
551311B.I1-5/5/2005 BILL LA INTRODUCTION 5/5/2005
Transport Legislation (Further Amendment) Act 2005
Act No.
Part 2--Amendment of Rail Corporations Act 1996
s. 4
(f) any other person declared by
Order in Council under
section 38D to be an access
provider;
"access regime dispute" means--
5
(a) a dispute described in section
38ZU(1); or
(b) a belief of an access seeker or a
user of the kind described in
section 38ZU(2) that is taken to
10
give rise to an access regime
dispute by operation of that sub-
section;
"access seeker" means a person seeking to
be provided a declared rail transport
15
service by an access provider or
seeking interconnection;
"account keeping rules" means the rules
made under section 38R;
"binding access arrangement", in relation
20
to an access provider, means an access
arrangement with which the access
provider is, under this Part, bound to
comply;
"capacity", in relation to a rail network,
25
means the capability of the rail
network, when used, to provide
declared rail transport services;
"capacity use rules" means the rules made
under section 38T;
30
"declared rail transport service" means a
rail transport service declared by an
Order under section 38I;
7
551311B.I1-5/5/2005 BILL LA INTRODUCTION 5/5/2005
Transport Legislation (Further Amendment) Act 2005
Act No.
Part 2--Amendment of Rail Corporations Act 1996
s. 4
"dispute resolution decision" means a
decision of the Commission under
section 38ZX(1);
"draft decision" means a decision of the
Commission made under section 38ZB;
5
"final decision" means a decision of the
Commission made under section 38ZF;
"interconnection" means the connection of
an access seeker's railway track or
railway siding to an access provider's
10
relevant railway track as provided for
by section 38ZT;
"interested person" means a person whom
the Commission considers has a
sufficient interest in the approval of a
15
proposed access arrangement;
"internal transfer terms" means the terms
and conditions upon which, including
prices, an access provider provides a
declared rail transport service to itself
20
or a related body corporate;
"negotiation guidelines" means the
guidelines made under section 38V;
"network management rules" means the
rules made under section 38U;
25
"operate" has the meaning given to it by
section 38G;
"penalty provision" means section 38W(1),
38W(2), 38ZR(1), 38ZZK(2),
38ZZK(4), 38ZZM(3), 38ZZS, 38ZZT,
30
38ZZU(a) and (b), 38ZZV, 38ZZW,
38ZZX, 38ZZY(1), 38ZZZ(1),
38ZZZ(4), 38ZZZA(1), 38ZZZA(4)
or 38ZZZB(3);
8
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Transport Legislation (Further Amendment) Act 2005
Act No.
Part 2--Amendment of Rail Corporations Act 1996
s. 4
"pricing principles" means the principles
specified in the Pricing Principles
Order;
"Pricing Principles Order" means the
Order made under section 38J;
5
"principle of passenger priority" has the
meaning given to it by section 38H;
"proposed access arrangement" means an
access arrangement submitted to the
Commission for approval under
10
section 38W;
"rail network" means the rail infrastructure
used to provide declared rail transport
services;
"rail transport service" means--
15
(a) a service provided, or that may be
provided, to a user or an access
seeker by an access provider, or
by an access provider to itself or
to a related body corporate, by
20
means of rail infrastructure or
tram infrastructure owned or
operated by that access provider
that enables the user, access
seeker, that access provider, or a
25
related body corporate of that
access provider, to provide freight
services, passenger services or
other transport services, and
includes--
30
(i) the service of allowing a user
to use rail infrastructure or
tram infrastructure (as the
case requires);
9
551311B.I1-5/5/2005 BILL LA INTRODUCTION 5/5/2005
Transport Legislation (Further Amendment) Act 2005
Act No.
Part 2--Amendment of Rail Corporations Act 1996
s. 4
(ii) the service of assessing the
capacity of a rail network
owned or operated by the
access provider;
(iii) the service of allocating the
5
capacity of a rail network
owned or operated by the
access provider;
(iv) the service of allocating train
paths;
10
(v) the service of planning train
services;
(vi) the service of scheduling
train services;
(vii) the service of managing and
15
controlling train services,
including train traffic
management;
(viii) the service of managing and
controlling a rail network
20
owned or operated by the
access provider;
(ix) the service of maintaining a
rail network owned or
operated by the access
25
provider;
(x) the service of extending,
enhancing or expanding a
rail network owned or
operated by the access
30
provider;
10
551311B.I1-5/5/2005 BILL LA INTRODUCTION 5/5/2005
Transport Legislation (Further Amendment) Act 2005
Act No.
Part 2--Amendment of Rail Corporations Act 1996
s. 4
(b) a service provided, or that may be
provided, by an access provider
for, or associated with, the
connection of railway track or
tramway track owned or operated
5
by another person to railway track
or tramway track owned or
operated by that access provider;
(c) any service that is ancillary to a
service referred to in paragraph (a)
10
or (b);
"reference service" means a declared rail
transport service that--
(a) is provided by an access provider
to itself or a related body
15
corporate; or
(b) is likely to represent a significant
proportion of demand by access
seekers for declared rail transport
services; or
20
(c) is provided by means of a
terminal;
"relevant capacity allocation activity"
means--
(a) assessing the capacity of a rail
25
network;
(b) allocating the capacity of a rail
network;
(c) allocating train paths;
(d) any activity that is ancillary to an
30
activity referred to in paragraph
(a) to (c);
11
551311B.I1-5/5/2005 BILL LA INTRODUCTION 5/5/2005
Transport Legislation (Further Amendment) Act 2005
Act No.
Part 2--Amendment of Rail Corporations Act 1996
s. 4
"relevant rail network management
activity" means--
(a) scheduling and planning train
services;
(b) an activity carried out for the
5
provision of train control services,
including train traffic
management;
(c) the management of the interaction
of rail infrastructure and rolling
10
stock;
(d) the management of incidents that
affect or may affect the operation
or safe operation of a rail network;
(e) any activity that is ancillary to an
15
activity referred to in
paragraphs (a) to (d);
"ring fencing rules" means the rules made
under section 38S;
"train control services" means services
20
involving the giving of directions or the
granting of permission to operate
rolling stock on a rail network
consistent with the safe and efficient
operation of that rolling stock and that
25
rail network;
"train path" means a right (whether arising
under an agreement or otherwise) to
operate rolling stock between particular
locations on a railway at particular
30
times;
12
551311B.I1-5/5/2005 BILL LA INTRODUCTION 5/5/2005
Transport Legislation (Further Amendment) Act 2005
Act No.
Part 2--Amendment of Rail Corporations Act 1996
s. 4
"user" means a person who--
(a) is a party to an agreement under
which they acquire a declared rail
transport service; or
(b) has a right to be provided a
5
declared rail transport service
under a dispute resolution
decision.
38B. Associated rail infrastructure may be
declared to be rail infrastructure
10
Despite the definition of "rail infrastructure"
in section 3(1), the Governor in Council
may, on the recommendation of the Minister,
by Order published in the Government
Gazette, declare associated rail infrastructure
15
to be rail infrastructure for the purposes of
this Part.
38C. Tabling and disallowance of Orders under
section 38B
(1) On or before the 6th sitting day after an
20
Order under section 38B is published in the
Government Gazette, the Minister must
ensure that a copy of that Order is laid before
each House of the Parliament.
(2) A failure to comply with sub-section (1) does
25
not affect the operation or effect of the Order
but the Scrutiny of Acts and Regulations
Committee of the Parliament may report the
failure to each House of the Parliament.
(3) An Order under section 38B may be
30
disallowed in whole or in part by either
House of Parliament.
13
551311B.I1-5/5/2005 BILL LA INTRODUCTION 5/5/2005
Transport Legislation (Further Amendment) Act 2005
Act No.
Part 2--Amendment of Rail Corporations Act 1996
s. 4
(4) Part 5 of the Subordinate Legislation Act
1994 applies to an Order under section 38B
as if--
(a) a reference in that Part to a "statutory
rule" were a reference to an Order
5
under section 38B; and
(b) a reference in section 23(1)(c) of that
Act to "section 15(1)" were a reference
to sub-section (1).
(5) A reference to an Order under section 38B in
10
this section includes a reference to any
amendment to an Order under section 38B.
38D. Declaration of persons to be access
providers
The Governor in Council may, by Order
15
published in the Government Gazette,
declare a person who provides, or is capable
of providing, a rail transport service (other
than a person referred to in paragraphs (a)
to (d) of the definition of "access provider")
20
to be an access provider.
38E. Application of Essential Services
Commission Act 2001
(1) This Part is relevant legislation for the
purposes of the Essential Services
25
Commission Act 2001 (other than Part 3 of
that Act).
(2) For the purposes of the Essential Services
Commission Act 2001 (other than Part 3 of
that Act)--
30
(a) railways and rail infrastructure; and
(b) tramways and tram infrastructure--
are each a regulated industry.
14
551311B.I1-5/5/2005 BILL LA INTRODUCTION 5/5/2005
Transport Legislation (Further Amendment) Act 2005
Act No.
Part 2--Amendment of Rail Corporations Act 1996
s. 4
38F. Objectives of the Commission
The objectives of the Commission in relation
to each regulated industry are, in addition to
the objectives under section 8 of the
Essential Services Commission Act 2001
5
(but subject to section 5(2) of that Act)--
(a) to ensure access seekers, and any other
person the Commission considers may
want to be provided declared rail
transport services, have a fair and
10
reasonable opportunity to be provided
declared rail transport services; and
(b) to promote competition in rail transport
services to achieve an increase in the
use of, and efficient investment in, rail
15
infrastructure or tram infrastructure (as
the case requires).
38G. Meaning of "operate"
A person operates rail infrastructure or tram
infrastructure, or a rail network, for the
20
purposes of this Part if the person--
(a) owns or leases rail infrastructure or
tram infrastructure, or a rail network, or
has a right conferred by an Act or a
contract to manage rail infrastructure or
25
tram infrastructure, or a rail network;
and
(b) either--
(i) operates, or appoints an agent or
contractor to operate, the
30
signalling, rolling stock control
and communications facilities of
the railway or tramway, as the
case requires; or
15
551311B.I1-5/5/2005 BILL LA INTRODUCTION 5/5/2005
Transport Legislation (Further Amendment) Act 2005
Act No.
Part 2--Amendment of Rail Corporations Act 1996
s. 4
(ii) carries out, or appoints an agent or
contractor to carry out, on or
about the railway or tramway (as
the case requires), the
construction, maintenance, repair
5
or alteration of any of the rail
infrastructure or tram
infrastructure or rail network.
38H. Principle of passenger priority
(1) For the purposes of this Part, the principle of
10
passenger priority is the giving of priority to
the provision of declared rail transport
services to passenger service users over the
provision of declared rail transport services
to other users.
15
(2) In this section--
"other users" means users of declared rail
transport services who use those
services to provide freight services and
other transport services (other than
20
passenger services);
"passenger service users" means users of
declared rail transport services who use
those services to provide passenger
services.
25
38I. Declaration of rail transport services
(1) The Governor in Council on the
recommendation of the Minister may, by
Order published in the Government Gazette,
declare a rail transport service to be a
30
declared rail transport service for the
purposes of this Part until the date (if any)
for the expiry of the declaration specified in
the Order.
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(2) An Order under sub-section (1) must specify
whether a rail transport service is a declared
rail transport service in respect of passenger
services, freight services or other transport
services.
5
(3) An Order under sub-section (1) may--
(a) specify that a rail transport service is a
declared rail transport service in respect
of a person named in the Order;
(b) declare a rail transport service as a
10
declared rail transport service by
reference to--
(i) the person who owns or operates
the rail infrastructure used to
provide the rail transport service;
15
or
(ii) the location of the rail
infrastructure used to provide the
rail transport service; or
(iii) the type of rail infrastructure used
20
to provide the rail transport
service.
(4) The Minister may only make a
recommendation under sub-section (1) if he
or she is satisfied that it is necessary to do so
25
to promote competition or increase
efficiency or the level of services to the
public.
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38J. Pricing Principles Order
(1) The Governor in Council, on the
recommendation of the Minister, may, by
Order published in the Government
Gazette--
5
(a) specify the principles for the
calculation of prices that an access
provider may charge in respect of
declared rail transport services that it
may provide;
10
(b) authorise the Commission to determine
the methodology, in accordance with
the principles specified under
paragraph (a), for the calculation of
prices that--
15
(i) an access provider may charge in
respect of declared rail transport
services that the access provider
may provide;
(ii) the Commission may, in a
20
relevant decision, decide an access
provider may charge in respect of
declared rail transport services
provided by that access provider.
(2) To avoid doubt, the methodology determined
25
by the Commission under an Order under
this section for the calculation of prices that
may be charged in respect of declared rail
transport services is not a determination for
the purposes of the Essential Services
30
Commission Act 2001.
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(3) The pricing principles specified in an Order
under this section must not require, entitle or
allow a relevant access provider to recover
from a relevant user any capital expenses
incurred by that relevant access provider in
5
respect of relevant rail infrastructure other
than expenses that have been or are incurred
on or after 30 April 1999 for the purpose of
extending or replacing that infrastructure.
(4) Nothing in an Order under sub-section (1)
10
limits the capacity of an access provider to
agree to provide a declared rail transport
service to an access seeker at a price that is
inconsistent with anything specified in the
Order.
15
(5) In this section--
"PIL rail infrastructure" means rail
infrastructure that is "Railway
Infrastructure" as defined in the
Primary Infrastructure Lease;
20
"Primary Infrastructure Lease" means the
agreement entitled the "Primary
Infrastructure Lease", entered into
between the Director and Freight
Victoria Limited (ACN 075 295 644)
25
on or about 30 April 1999;
"relevant decision" means--
(a) a final decision;
(b) a final decision in respect of an
access arrangement made under
30
section 38ZJ(1) or 38ZL;
(c) a decision under section 38ZO
or 38ZP;
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(d) a final decision in respect of an
application for the renewal of an
access arrangement under
section 38ZR;
(e) a dispute resolution decision;
5
(f) an interim decision under
section 38ZZO;
(g) a decision under section 38ZZP
varying a dispute resolution
decision;
10
"relevant access provider" means an
access provider who owns, operates or
controls relevant rail infrastructure;
"relevant rail infrastructure agreement"
means--
15
(a) the Primary Infrastructure Lease;
(b) the agreement entitled the ''Dynon
Intermodal Terminal Lease",
entered into between Victorian
Rail Track and Freight Victoria
20
Limited (ACN 075 295 644) on or
about 29 April 1999;
(c) any agreement declared by the
Governor in Council under
section 38K;
25
"relevant rail infrastructure" means--
(a) PIL rail infrastructure; and
(b) rail infrastructure that is the
subject of a relevant rail
infrastructure agreement (other
30
than the Primary Infrastructure
Lease);
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"relevant user" means a user provided a
declared rail transport service by a
relevant access provider by means of
relevant rail infrastructure.
38K. Declaration of certain agreements to be
5
relevant rail infrastructure agreements
(1) The Minister may, by Order published in the
Government Gazette, declare an agreement
under which rail infrastructure is leased to be
a relevant rail infrastructure agreement for
10
the purposes of section 38J.
(2) In this section--
"relevant rail infrastructure agreement"
has the same meaning as in section
38J(5).
15
38L. Extra-territorial operation
It is the intention of the Parliament that the
operation of this Part should, so far as
possible, include operation in relation to--
(a) railways and rail infrastructure situated
20
outside Victoria;
(b) a rail transport service operating
outside Victoria.'.
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5. New Divisions 2 and 3 of Part 2A inserted
After section 38L of the Rail Corporations Act
1996 insert--
'Division 2--Commission Rules and Guidelines
38M. Definition
5
In this Division--
"Commission instrument" means--
(a) the account keeping rules; or
(b) the ring fencing rules; or
(c) the capacity use rules; or
10
(d) the network management rules; or
(e) the negotiation guidelines.
38N. Procedural requirements for the making
of a Commission instrument
(1) The Commission, before making a
15
Commission instrument, must--
(a) publish a draft of the Commission
instrument on its website; and
(b) make available for inspection at its
offices a draft of the Commission
20
instrument; and
(c) by notice published on its website and
in a newspaper circulating generally
throughout the State on the same day,
invite written submissions or comments
25
in relation to the draft of the
Commission instrument by the date
specified in the notice.
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(2) The date specified in a notice under sub-
section (1)(c) must not be a date that is less
than 21 days after the date the notice is
published.
(3) The Commission--
5
(a) must consider any written submissions
or comments it receives by the date
specified in the notice; and
(b) may, but need not, consider any written
submissions or comments received after
10
the date specified in the notice.
(4) The Commission must, as soon as
practicable after making a Commission
instrument, publish the Commission
instrument in the Government Gazette and
15
on its website.
(5) A Commission instrument does not have
effect for the purposes of this Part until it is
published in the Government Gazette.
38O. Commission instruments may incorporate
20
documents and other material
(1) A Commission instrument may apply, adopt
or incorporate any matter contained in any
document, code, standard, rule, specification
or method formulated, issued, prescribed or
25
published by any person, authority or body
whether--
(a) wholly or partially or as amended by
the Commission instrument; or
(b) as formulated, issued, prescribed or
30
published at the time the Commission
instrument is made or at any time
before the Commission instrument is
made; or
(c) as amended from time to time.
35
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(2) Section 32 of the Interpretation of
Legislation Act 1984 does not apply to a
Commission instrument.
38P. General powers applicable to the making
of a Commission instrument
5
A Commission instrument--
(a) may be of general or limited
application;
(b) may differ according to differences in
time, place or circumstance.
10
38Q. Commission instruments must be in force
at all times
(1) There must be in force, at all times, every
Commission instrument providing for the
matters or things specified in a relevant
15
provision.
(2) Sub-section (1) applies on and from the date
every Commission instrument is first made
under a relevant provision.
(3) In this section--
20
"relevant provision" means--
(a) in relation to the account keeping
rules, section 38R;
(b) in relation to the ring fencing
rules, section 38S;
25
(c) in relation to the capacity use
rules, section 38T(1);
(d) in relation to the network
management rules, section
38U(1);
30
(e) in relation to the negotiation
guidelines, section 38V(1).
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38R. Account keeping rules
(1) The Commission must make rules for or
with respect to requiring an access provider
to--
(a) prepare, maintain and keep accounting
5
records in relation to access activities
and other activities of the access
provider; and
(b) prepare, maintain and keep accounts in
relation to access activities and other
10
activities of the access provider; and
(c) provide the accounting records and
accounts referred to in paragraphs (a)
and (b) to the Commission.
(2) Without limiting sub-section (1), rules must
15
be made that--
(a) require an access provider to prepare,
maintain and keep records relating to
internal transfer terms; and
(b) require an access provider to prepare,
20
maintain and keep records that disclose
the allocation of the costs it incurs in
operating its business as between
activities carried out in operating that
business; and
25
(c) require an access provider to provide
the records referred to in paragraphs (a)
and (b) to the Commission; and
(d) specify accounting principles with
which an access provider must prepare
30
accounts in relation to access activities
and other activities of the access
provider.
Note: The procedure for the making of the account keeping
35 rules is set out in section 38N.
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38S. Ring fencing rules
The Commission must make rules for or
with respect to--
(a) requiring an access provider to separate
its access activities from its other
5
activities as if the access activities are
being carried out by a different entity;
and
(b) the manner in which the access
provider is to effect the separation of its
10
access activities from its other activities
as provided for by paragraph (a); and
(c) requiring an access provider that
provides declared rail transport services
to itself or related bodies corporate, to
15
provide those services on an arm's
length basis.
Note: The procedure for the making of the ring fencing
rules is set out in section 38N.
38T. Capacity use rules
20
(1) The Commission must make rules for or
with respect to the carrying out of a relevant
capacity allocation activity.
(2) Without limiting sub-section (1), rules must
be made that--
25
(a) require an access provider, or a related
body corporate of the access provider,
to surrender unutilised or under utilised
train paths allocated to that access
provider or that related body corporate
30
and the circumstances for the surrender;
and
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(b) require a user to surrender unutilised or
under utilised train paths allocated to
them under this Part and the
circumstances for that surrender; and
(c) require an access provider to report to
5
the Commission actual train path
utilisation and the method of that
reporting.
(3) The Commission may make rules--
(a) for or with respect to requiring an
10
access provider to prepare and maintain
protocols for the allocation of the
capacity of a rail network;
(b) for or with respect to requiring an
access provider to comply with
15
protocols referred to in paragraph (a);
(c) for or with respect to the method by
which an access provider must report to
the Commission actual train path
utilisation;
20
(d) that confer a function or power on, or
leave anything to be decided by, the
Commission in relation to any matter or
thing specified in sub-section (1), (2) or
this sub-section, including the power to
25
approve protocols referred to in
paragraph (a) consistent with the rules.
(4) Rules made under this section--
(a) must be consistent with the principle of
passenger priority; and
30
(b) must prohibit an access provider from,
while carrying out a relevant capacity
allocation activity, unreasonably
favouring itself or another person over
any other person.
35
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(5) In making rules under this section, the
Commission must have regard to the
desirability, where practicable, of reserving
train paths for access seekers who are not
related bodies corporate of an access
5
provider.
Note: The procedure for the making of the capacity use
rules is set out in section 38N.
38U. Network management rules
(1) The Commission must make rules for or
10
with respect to the carrying out of a relevant
rail network management activity.
(2) The Commission may make rules--
(a) for or with respect to requiring an
access provider to prepare and maintain
15
protocols for the management of a rail
network;
(b) for or with respect to requiring an
access provider to comply with
protocols referred to in paragraph (a);
20
(c) that confer a function or power on or
leave anything to be decided by the
Commission in relation to any matter or
thing specified in sub-section (1) or this
sub-section, including the power to
25
approve protocols referred to in
paragraph (a) consistent with the rules.
(3) Rules made under this section--
(a) must be consistent with the principle of
passenger priority; and
30
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(b) must prohibit an access provider from,
while carrying out a relevant network
management activity, unreasonably
favouring itself or another person over
any other person.
5
Note: The procedure for the making of the network
management rules is set out in section 38N.
38V. Negotiation guidelines
(1) The Commission must make guidelines for
or with respect to--
10
(a) the information an access provider must
provide to an access seeker, including
information that relates to--
(i) the management of the capacity of
a rail network; and
15
(ii) the availability of train paths; and
(iii) timetabling; and
(b) the procedure under which an access
seeker may make an application for the
provision of a declared rail transport
20
service to it by an access provider; and
(c) the procedure and method as to how an
access provider will assess and
determine applications referred to in
paragraph (b); and
25
(d) specifying a period of time within
which an access provider must assess
and determine applications referred to
in paragraph (b); and
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(e) prohibiting an access provider from
requiring or requesting the following
persons to identify a consignee--
(i) an access seeker seeking the
provision of declared rail transport
5
services for the purpose of
providing freight services; or
(ii) a user using declared rail transport
services for the purpose of
providing freight services.
10
(2) The Commission may make guidelines for or
with respect to--
(a) fees or levies that an access provider
may charge for assessing and
determining applications referred to in
15
sub-section (1)(b);
(b) fees or levies that an access provider
may charge an access seeker for
information relating to a declared rail
transport service;
20
(c) prohibiting fees or levies of the kind
referred to in paragraphs (a) and (b) if
those fees or levies exceed an amount
specified in the guidelines;
(d) interconnection.
25
Note: The procedure for the making of the negotiation
guidelines is set out in section 38N.
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Division 3--Access Arrangements
38W. Submission of access arrangement to
Commission for approval
(1) An access provider must submit to the
Commission for approval a proposed access
5
arrangement in relation to a declared rail
transport service provided by the access
provider or capable of being provided by the
access provider within 60 days of the
relevant declaration.
10
Note: Sub-section (1) is a penalty provision:
See the definition of "penalty provision" in
section 38A.
(2) An access provider must include in the
proposed access arrangement access
15
arrangement information.
Note: Sub-section (2) is a penalty provision:
See the definition of "penalty provision" in
section 38A.
(3) A proposed access arrangement submitted
20
for approval may relate to 2 or more declared
rail transport services.
38X. Contents of proposed access arrangements
(1) A proposed access arrangement must--
(a) in relation to every reference service to
25
which the arrangement relates,
include--
(i) a description of the service; and
(ii) information as to whether that
service is being provided by the
30
access provider to itself or a
related body corporate of the
access provider; and
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(iii) the terms and conditions for the
provision of that service; and
(iv) the price, or methodology for the
calculation of the price, to be
charged in respect of the provision
5
of that service; and
(b) include information in relation to the
availability and the indicative terms and
conditions, for the provision of declared
rail transport services that are not
10
reference services; and
(c) include a description of the information
that the access provider will make
available to an access seeker; and
(d) set out the procedure for the making of
15
an application by an access seeker for
the provision to them of a declared rail
transport service; and
(e) describe the procedure and method how
the access provider will assess and
20
determine an application for the
provision by them of a declared rail
transport service; and
(f) specify a date for the expiry of the
access arrangement, being a date that is
25
not less than 3 years, and not more than
5 years, after the date on which the
access arrangement may be approved
by the Commission under this Part in a
final decision.
30
(2) A proposed access arrangement may also
include any other matter that the access
provider considers relevant.
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(3) The price or methodology referred to in sub-
section (1)(a)(iv) must be consistent with the
pricing principles and any methodology for
the calculation of prices determined by the
Commission under the Pricing Principles
5
Order.
(4) Information referred to in sub-section (1)(c),
the procedure referred to in sub-section
(1)(d) and the procedure and method referred
to in sub-section (1)(e) must be consistent
10
with the negotiation guidelines.
(5) The proposed access arrangement must also
be consistent with--
(a) the account keeping rules; and
(b) the ring fencing rules; and
15
(c) the capacity use rules; and
(d) the network management rules.
38Y. Notification by Commission of submission
to it of proposed access arrangement
(1) As soon as practicable after receipt of a
20
proposed access arrangement, the
Commission must--
(a) notify, in writing, every interested
person of that receipt; and
(b) publish, on the same day, on its website
25
and in a newspaper circulating
generally throughout the State, a notice
that--
(i) states that a proposed access
arrangement has been received by
30
the Commission for approval and
the name of the access provider
who submitted the proposed
access arrangement; and
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(ii) specifies how copies of the
proposed access arrangement and
access arrangement information
may be obtained; and
(iii) requests written submissions or
5
comments in relation to the
proposed access arrangement on
or before the date specified in the
notice; and
(iv) contains the prescribed
10
information (if any).
(2) The date specified in a notice under sub-
section (1)(b)(iii) must not be a date that is
less than 21 days after the date the notice is
published.
15
38Z. Submission and comments in relation to
proposed access arrangement
Any person may make a written submission
or comment in relation to a proposed access
arrangement in accordance with a notice
20
referred to in section 38Y(1)(b).
38ZA. Consideration of submission or comments
by Commission
Before making a draft decision, the
Commission--
25
(a) must consider every written submission
or comment it receives on or before the
date specified in a notice referred to in
section 38Y(1)(b); and
(b) may, but need not, consider a written
30
submission or comment it receives after
the date specified in a notice referred to
in section 38Y(1)(b).
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38ZB. Draft decision on whether proposed access
arrangement will be approved
(1) The Commission must make a draft decision
as to whether it proposes to approve the
proposed access arrangement as an access
5
arrangement.
(2) The draft decision must--
(a) be consistent with--
(i) the account keeping rules; and
(ii) the ring fencing rules; and
10
(iii) the capacity use rules; and
(iv) the network management rules;
and
(v) the negotiation guidelines; and
(vi) the pricing principles and any
15
methodology for the calculation of
prices determined by the
Commission under the Pricing
Principles Order; and
(vii) the principle of passenger priority;
20
and
(b) set out the reasons of the Commission
as to whether or not it proposes to
approve the proposed access
arrangement, including the reasons of
25
the Commission taking into account the
matters specified in section 38ZI(a)
to (j); and
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(c) if the Commission proposes not to
approve the proposed access
arrangement, specify--
(i) any amendments (or the nature of
amendments) that the Commission
5
considers should be made to the
proposed access arrangement for
the Commission to approve it; and
(ii) any matters that the Commission
considers should be addressed for
10
the Commission to approve it.
(3) Without limiting sub-section (2)(c), the
Commission may specify amendments to
any price, or the methodology for the
calculation of any price, set out in the
15
proposed access arrangement in respect of
every declared rail transport service to which
the proposed access arrangement relates.
(4) Any amendment to a price, or the
methodology for the calculation of a price,
20
specified by the Commission must--
(a) be consistent with the pricing principles
and any methodology for the
calculation of prices determined by the
Commission under the Pricing
25
Principles Order; and
(b) not result in a price in respect of a
declared rail transport service or an
equivalent declared rail transport
service that is higher than the price
30
included in the access provider's
internal transfer terms.
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(5) As soon as practicable after making a draft
decision, the Commission--
(a) must give a copy of the draft decision
to--
(i) the access provider who submitted
5
the proposed access arrangement
to which the decision relates; and
(ii) every person who made a
submission or comment under
section 38Z on or before the date
10
specified in the notice referred to
in section 38Y(1)(b); and
(b) may give a copy of the draft decision to
a person who made a submission or
comment after the date specified in the
15
notice referred to in section 38Y(1)(b);
and
(c) must publish the draft decision on its
website and make it available for
inspection at its offices; and
20
(d) must request, by notice in writing, the
persons given a copy of the draft
decision in accordance with
paragraphs (a) and (b), to make a
written submission or comment in
25
relation to the draft decision on or
before a date specified in the notice.
(6) The date specified in a notice under sub-
section (5)(d) must not be a date that is less
than 14 days after the date the draft decision
30
is published and made available in
accordance with sub-section (5)(c).
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38ZC. Access provider may submit revisions to
proposed access arrangement
If, in a draft decision, the Commission
proposes not to approve the proposed access
arrangement, the access provider who
5
submitted the proposed access arrangement
may, within 14 days of being given a copy of
the draft decision in accordance with section
38ZB(5)(a)(i), submit to the Commission
revisions to the proposed access arrangement
10
that--
(a) incorporate or substantially
incorporate--
(i) the amendments specified in the
draft decision that the
15
Commission considers should be
made for it to approve the
proposed access arrangement; or
(ii) amendments that reflect the nature
of amendments specified in the
20
draft decision that the
Commission considers should be
made for it to approve the
proposed access arrangement; and
(b) otherwise address the matters specified
25
in the draft decision that the
Commission considers should be
addressed for it to approve the proposed
access arrangement.
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38ZD. Submission and comments in relation to
draft decision
A person who receives a copy of a draft
decision and notice in accordance with
section 38ZB(5) may make a written
5
submission or comment in relation to the
draft decision on or before the date specified
in the notice referred to in that sub-section.
38ZE. Consideration of submissions and
comments on draft decision
10
Before making a final decision, the
Commission--
(a) must consider any revisions to a
proposed access arrangement made by
an access provider in accordance with
15
section 38ZC; and
(b) must consider every written submission
or comment it receives on or before the
date specified in a notice referred to in
section 38ZB(5)(d); and
20
(c) may, but need not, consider a written
submission or comment it receives after
the date specified in a notice referred to
in section 38ZB(5)(d).
38ZF. Final decision on proposed access
25
arrangement
(1) The Commission must make a final decision
whether to approve a proposed access
arrangement as an access arrangement.
(2) The Commission must not make a final
30
decision approving a proposed access
arrangement as an access arrangement unless
it is satisfied the proposed access
arrangement--
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(a) provides for the matters required by
section 38X(1); and
(b) is consistent with--
(i) the account keeping rules; and
(ii) the ring fencing rules; and
5
(iii) the capacity use rules; and
(iv) the network management rules;
and
(v) the negotiation guidelines; and
(vi) the pricing principles and any
10
methodology for the calculation of
prices determined by the
Commission under the Pricing
Principles Order; and
(vii) the principle of passenger priority.
15
(3) In making a final decision in relation to a
proposed access arrangement in respect of
which the access provider has submitted
revisions to the proposed access arrangement
under section 38ZC, the Commission must
20
also be satisfied that the revisions--
(a) incorporate or substantially
incorporate--
(i) the amendments specified in the
draft decision that the
25
Commission considers should be
made for it to approve the
proposed access arrangement; or
(ii) amendments that reflect the nature
of amendments specified in the
30
draft decision that the
Commission considers should be
made for it to approve the
proposed access arrangement; and
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(b) otherwise address the matters specified
in the draft decision that the
Commission considers should be
addressed for it to approve the proposed
access arrangement.
5
(4) The Commission, in a final decision, must
set out the reasons of the Commission as to
whether or not it approves the proposed
access arrangement, including the reasons of
the Commission taking into account the
10
matters specified in section 38ZI.
38ZG. Time within Commission must make a
final decision
A final decision must be made within
90 days of receipt of the proposed access
15
arrangement for approval under
section 38W.
38ZH. Giving and publishing a final decision
The Commission must, as soon as
practicable after making a final decision--
20
(a) give a copy of the final decision to the
access provider and any person who
made a submission or comment under
section 38Z or 38ZD; and
(b) publish the final decision on its website
25
and make it available for inspection at
its offices.
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38ZI. Matters to be taken into account in
making a final decision
In making a final decision whether to
approve a proposed access arrangement as an
access arrangement under section 38ZF, the
5
Commission must take into account--
(a) whether the proposed access
arrangement is consistent with the
objectives referred to in section 38F;
and
10
(b) the access provider's legitimate
business interests and investment in the
rail network owned or operated by that
access provider; and
(c) the costs to the access provider of
15
providing access, including any costs of
extending the rail network owned or
operated by that access provider but not
including costs associated with losses
arising from increased competition in
20
upstream or downstream markets; and
(d) the economic value to the access
provider of any additional investment
that an access seeker or the access
provider has agreed to undertake; and
25
(e) the interests of users; and
(f) existing contractual obligations of the
access provider and users of the rail
network owned or operated by that
access provider; and
30
(g) the operational and technical
requirements necessary for the safe and
reliable operation of the rail network
owned or operated by the access
provider; and
35
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(h) the economically efficient operation of
the rail network owned or operated by
the access provider; and
(i) the benefit to the public in having
competitive markets; and
5
(j) any other matter that the Commission
considers relevant.
Note: The matters specified in paragraphs (b) to (i)
are consistent with the matters specified in
10 paragraph (i) of clause 6(4) of the Competition
Principles Agreement made on 11 April 1995
between the Commonwealth and all of the
States and Territories of the Commonwealth.
38ZJ. Commission to make proposed access
arrangement in certain cases
15
(1) The Commission must make an access
arrangement in relation to a declared rail
transport service if--
(a) in a final decision the Commission does
not approve a relevant proposed access
20
arrangement in relation to that service;
or
(b) an access provider does not submit a
proposed access arrangement for
approval under section 38W in relation
25
to that service; or
(c) an access provider does not submit an
application for the renewal of an access
arrangement under section 38ZR in
relation to that service.
30
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(2) In sub-section (1)(a)--
"relevant proposed access arrangement"
means the proposed access arrangement
submitted by the access provider for
approval under section 38W, or if the
5
proposed access arrangement has been
revised in accordance with section
38ZC, that revised proposed access
arrangement.
(3) Without limiting sub-section (1), the
10
Commission may, in an access arrangement
made under sub-section (1), specify a price,
or the methodology for the calculation of
prices, in respect of every declared rail
transport service to which the access
15
arrangement relates.
(4) A price, or the methodology for the
calculation of a price, specified in an access
arrangement made under sub-section (1)
must--
20
(a) be consistent with the pricing principles
and any methodology for the
calculation of prices determined by the
Commission under the Pricing
Principles Order; and
25
(b) not be, or result in, a price in respect of
a declared rail transport service or an
equivalent declared rail transport
service that is higher than the price
included in the access provider's
30
internal transfer terms.
(5) An access arrangement made in accordance
with sub-section (1) must be made--
(a) in the case of an access arrangement
made under sub-section (1)(a), within
35
30 days of the final decision;
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(b) in the case of an access arrangement
made under sub-section (1)(b), within
90 days of the day by which the
proposed access arrangement should
have been submitted for approval under
5
section 38W;
(c) in the case of an access arrangement
made under sub-section (1)(c), within
90 days of the day by which an
application for the renewal of an access
10
arrangement should have been made in
accordance with section 38ZR.
(6) Sections 38ZF to 38ZI apply to the making
of an access arrangement made under sub-
section (1)--
15
(a) with such alterations and modifications
as are necessary; and
(b) as if that access arrangement were a
proposed access arrangement submitted
for approval under section 38W.
20
38ZK. Deemed access arrangement if
Commission fails to make a certain access
arrangement
If the Commission does not make an access
arrangement as required by section
25
38ZJ(1)(a), the proposed access arrangement
submitted by the access provider for
approval under section 38W, or if the
proposed access arrangement has been
revised in accordance with section 38ZC,
30
that revised proposed access arrangement, is
deemed to have been approved by the
Commission under section 38ZF.
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38ZL. Deemed access arrangements may be
replaced in certain circumstances
(1) Subject to sub-sections (2) and (3), the
Commission may make an access
arrangement in relation to a declared rail
5
transport service to which a deemed access
arrangement relates.
(2) Subject to sub-section (3), the Commission
must obtain the consent of the Minister
before making an access arrangement under
10
sub-section (1).
(3) The Commission must obtain the consent of
the Minister and make the access
arrangement within 6 months after the date a
deemed access arrangement commences
15
operation.
(4) Without limiting sub-section (1), the
Commission may, in an access arrangement
made under this section, specify a price, or
the methodology for the calculation of
20
prices, in respect of every declared rail
transport service to which the access
arrangement relates.
(5) A price, or the methodology for the
calculation of a price, specified in an access
25
arrangement made under this section must--
(a) be consistent with the pricing principles
and any methodology for the
calculation of prices determined by the
Commission under the Pricing
30
Principles Order; and
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(b) not be, or result in, a price in respect of
a declared rail transport service or an
equivalent declared rail transport
service that is higher than the price
included in the access provider's
5
internal transfer terms.
(6) Sections 38ZF to 38ZI apply to the making
of an access arrangement made under this
section--
(a) with such alterations and modifications
10
as are necessary; and
(b) as if that access arrangement were a
proposed access arrangement submitted
for approval under section 38W.
(7) On the commencement of an access
15
arrangement made under this section the
deemed access arrangement ceases to have
effect.
Note: An access arrangement made under this
20 section commences on the date it is made:
See section 38ZM.
(8) In this section--
"deemed access arrangement" means a
proposed access arrangement deemed
to be an access arrangement by
25
operation of section 38ZK.
38ZM. Period of operation of access arrangement
(1) An access arrangement commences
operation on--
(a) the date it is approved by the
30
Commission in a final decision; or
(b) if the Commission makes an access
arrangement under section 38ZJ or
38ZL, the date of the final decision
made in respect of that arrangement; or
35
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(c) if the Commission does not make an
access arrangement as required by
section 38ZJ and a proposed access
arrangement is deemed to be an access
arrangement by operation of section
5
38ZK, the date that is 120 days after the
date on which that arrangement was
submitted for approval under
section 38W.
(2) An access arrangement expires on the date
10
specified in the final decision or in the access
arrangement (as the case requires).
38ZN. Effect of access arrangement approved
under this Division or made by the
Commission
15
An access arrangement is binding on the
access provider who provides, or is capable
of providing, the declared rail transport
service to which the access arrangement
relates.
20
38ZO. Variation of a binding access arrangement
on the application of the access provider
(1) An access provider may apply to the
Commission for a variation of a binding
access arrangement.
25
(2) An application for a variation must not relate
to the date of expiry of a binding access
arrangement.
(3) The proposed variation that is the subject of
the application must be consistent with--
30
(a) the account keeping rules; and
(b) the ring fencing rules; and
(c) the capacity use rules; and
(d) the network management rules; and
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(e) the negotiation guidelines; and
(f) the pricing principles and any
methodology for the calculation of
prices determined by the Commission
under the Pricing Principles Order; and
5
(g) the principle of passenger priority.
(4) An application must--
(a) be in writing; and
(b) include a description of the proposed
variation; and
10
(c) state the reasons for the proposed
variation.
(5) Subject to this section, on receipt of an
application for a variation of a binding
access arrangement, the Commission may
15
decide to vary that arrangement.
(6) If the Commission considers that the
variation that is the subject of the application
is a material variation, sections 38Y to 38ZI
apply to that variation--
20
(a) with such alterations and modifications
as are necessary; and
(b) as if--
(i) the proposed variation to be made
were a proposed access
25
arrangement submitted for
approval under section 38W; and
(ii) a decision under this section were
a final decision.
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(7) If the Commission decides to vary a binding
access arrangement under this section, the
variation takes effect, and is binding on the
access provider, on and from the date of the
decision.
5
38ZP. Variation of a binding access arrangement
by Commission
(1) Subject to this section, the Commission, on
its own initiative, may vary a binding access
arrangement.
10
(2) A proposed variation must not relate to the
date of expiry of a binding access
arrangement.
(3) A proposed variation must be consistent
with--
15
(a) the account keeping rules; and
(b) the ring fencing rules; and
(c) the capacity use rules; and
(d) the network management rules; and
(e) the negotiation guidelines; and
20
(f) the pricing principles and any
methodology for the calculation of
prices determined by the Commission
under the Pricing Principles Order; and
(g) the principle of passenger priority.
25
(4) On forming its intention to propose a
variation to a binding access arrangement,
the Commission must, without delay--
(a) notify, in writing, the access provider of
its intention to do so; and
30
(b) give the access provider its reasons, in
writing, for the proposed variation.
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(5) If the Commission considers that the
variation that it is intending to make is a
material variation, sections 38Y to 38ZI
apply to that variation--
(a) with such alterations and modifications
5
as are necessary; and
(b) as if--
(i) the proposed variation to be made
were a proposed access
arrangement submitted for
10
approval under section 38W; and
(ii) a decision under this section were
a final decision.
(6) If the Commission decides to vary a binding
access arrangement under this section, the
15
variation takes effect, and is binding on the
access provider, on and from the date of the
decision.
38ZQ. Substitution of access provider to a
binding access arrangement
20
(1) If before the expiry of a binding access
arrangement--
(a) the access provider will cease to own or
operate the rail infrastructure used to
provide, or that is capable of providing,
25
a declared rail transport service to
which a binding access arrangement
relates; and
(b) another access provider (the "new
access provider") will own or operate
30
that rail infrastructure--
the new access provider must apply to the
Commission for the substitution of them as
the access provider to whom the binding
access arrangement applies.
35
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(2) An application under sub-section (1) must
be--
(a) made at least 21 days before the new
access provider owns or operates the
rail infrastructure referred to in sub-
5
section (1)(a); and
(b) in writing; and
(c) accompanied by evidence, to the
reasonable satisfaction of the
Commission, that the new access
10
provider will own or operate the rail
infrastructure referred to in sub-section
(1)(a) at any time before the expiry of
the binding access arrangement.
(3) On receipt of an application under sub-
15
section (1), the Commission may agree to the
substitution of the new access provider as the
person to whom the binding access
arrangement applies.
(4) A substitution takes effect on and from the
20
day the Commission agrees to the
substitution and the relevant binding access
arrangement must varied accordingly.
38ZR. Renewal of access arrangement
(1) An access provider must, not less than
25
90 days before the expiry of a binding access
arrangement, apply to the Commission for
the renewal of that access arrangement.
Note: Sub-section (1) is a penalty provision:
30 See the definition of "penalty provision" in
section 38A.
(2) Sub-section (1) does not apply if the access
provider will not be, or be capable of,
providing a declared rail transport service to
which the binding access arrangement relates
35
after that expiry.
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(3) An application must be in writing.
(4) Despite anything to the contrary in a binding
access arrangement, or a final decision
approving a binding access arrangement, on
the making of an application under sub-
5
section (1) the binding access arrangement
continues in force until the Commission
approves or refuses to approve the renewal
of the arrangement.
(5) If following an application under sub-section
10
(1), the Commission approves the access
arrangement, it must be taken to have been
approved on the day the binding access
arrangement was due to expire.
(6) This Division applies to and in relation to--
15
(a) an application under this section for the
renewal of an access arrangement; and
(b) the approval of such an application; and
(c) the access arrangement that is
renewed--
20
as if the application for renewal were a
submission of a proposed access
arrangement for approval under section 38W
and the application has been made by a
person other than the access provider.
25
(7) To avoid doubt, an application for renewal of
an access arrangement may include terms
and conditions that differ from those
contained in the binding access arrangement
that is expiring.
30
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38ZS. Appeals from Commission decisions
under Division 3
(1) Section 55 of the Essential Services
Commission Act 2001 applies to a relevant
access arrangement decision as if the
5
decision were a determination made under
that Act.
(2) In this section--
"relevant access arrangement decision"
means--
10
(a) a final decision;
(b) a final decision in respect of an
access arrangement made under
section 38ZJ(1) or 38ZL;
(c) a decision under section 38ZO or
15
section 38ZP;
(d) a decision agreeing or disagreeing
to the substitution of an access
provider as a party to a binding
access arrangement under
20
section 38ZQ;
(e) a final decision in respect of an
application for the renewal of an
access arrangement under
section 38ZR.'.
25
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6. New Division 4 of Part 2A substituted and new
Divisions 5 to 9 of Part 2A inserted
For Division 4 of Part 2A of the Rail
Corporations Act 1996 substitute--
'Division 4--Interconnection of Railways
5
38ZT. Interconnection
(1) An access seeker who owns or operates a
railway track or railway siding, or intends to
own or operate a proposed railway track or
railway siding, may, in writing, notify an
10
access provider of its desire to connect that
railway track or railway siding, or proposed
railway track or railway siding, to the access
provider's relevant railway track.
(2) Subject to this section, on receipt of a
15
notification under sub-section (1), the access
provider must do all things reasonably
necessary to enable the access seeker to
connect the railway track or railway siding,
or proposed railway track or railway siding,
20
to the access provider's relevant railway
track.
(3) The access provider may refuse to connect a
railway track or railway siding owned or
operated by the access seeker, or a proposed
25
railway track or railway siding, to its
relevant railway track unless the access
seeker, within the time specified (if any) in
the negotiation guidelines--
(a) provides evidence, to the reasonable
30
satisfaction of the access provider, that
the access seeker has obtained every
relevant statutory approval for the
construction of the connection; and
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(b) by agreement, in writing, with the
access provider agrees--
(i) to pay the access provider's
reasonable costs to construct the
connection; and
5
(ii) with any reasonable requirements
of the access provider in relation
to the construction of the
connection.
(4) If the access seeker and access provider
10
cannot agree--
(a) as to the terms and conditions for the
connection, including the costs to be
paid by the access seeker; or
(b) the nature or content of the construction
15
requirements in relation to the
construction of the connection--
either the access seeker or the access
provider may, in accordance with the
negotiation guidelines, apply to the
20
Commission under Division 5 for a dispute
resolution decision.
(5) In this section--
"relevant railway track" means a railway
track owned or operated by an access
25
provider with which the access provider
provides declared rail transport
services;
"relevant statutory approval" means any
requirement, licence, permission or
30
consent required by or under an Act in
relation to the construction of a
connection to a railway track.
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Division 5--Dispute Resolution
38ZU. What is an access regime dispute?
(1) An access regime dispute is--
(a) a dispute between an access provider
and an access seeker where the access
5
provider and access seeker are unable
to agree as to the terms and conditions
(including price) for the provision of a
declared rail transport service to the
access seeker;
10
(b) a dispute between an access seeker and
an access provider in relation to
interconnection;
(c) a dispute between an access seeker and
an access provider in relation to an
15
extension to rail infrastructure used, or
capable of being used, to provide a
declared rail transport service.
(2) In addition, if--
(a) an access seeker reasonably believes
20
that the access provider has not
complied with--
(i) a binding access arrangement; or
(ii) the negotiation guidelines; or
(iii) the pricing principles; or
25
(iv) a provision of Division 6--
and, as a result, the access seeker has
not been provided a declared rail
transport service by the access
provider; or
30
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(b) a user reasonably believes that the
access provider, in providing a declared
rail transport service to them, has not
complied with--
(i) a binding access arrangement; or
5
(ii) the negotiation guidelines; or
(iii) the pricing principles; or
(iv) a provision of Division 6--
that belief is to be taken to give rise to an
access regime dispute.
10
38ZV. Notification of access regime dispute
(1) An access provider, an access seeker or a
user may notify the Commission, in writing,
of an access regime dispute.
(2) On receiving a notification under sub-
15
section (1), the Commission must notify, in
writing, of the access regime dispute--
(a) the access provider, if an access seeker
or a user notified the Commission of
the access regime dispute under sub-
20
section (1);
(b) the access seeker or user (as the case
requires), if the access provider notified
the Commission of the access regime
dispute under sub-section (1).
25
(3) The person notifying the Commission of an
access regime dispute under sub-section (1)
and the persons notified by the Commission
under sub-section (2) are the parties to the
access regime dispute.
30
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38ZW. Withdrawal of notice of access regime
dispute
(1) The person who notified the Commission of
an access regime dispute under section
38ZV(1) may withdraw that notification at
5
any time before the Commission makes a
dispute resolution decision in respect of that
access regime dispute.
(2) The notification must be withdrawn by
notice in writing.
10
(3) If the notification is withdrawn, it is taken
for the purposes of this Part never to have
been given.
38ZX. Commission must decide on access regime
disputes
15
(1) Subject to this Division, on receipt of a
notification under section 38ZV(1), the
Commission must make a decision in respect
of the access regime dispute.
(2) Without limiting sub-section (1), a dispute
20
resolution decision may--
(a) address or deal with any matter relating
to the provision of a declared rail
transport service to an access seeker or
user who is a party to the dispute,
25
including the terms and conditions for,
and price in respect of, the provision of
that service;
(b) require an access provider to extend, or
to permit the extension of, the rail
30
infrastructure that is used to provide a
declared rail transport service.
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(3) To avoid doubt, a dispute resolution decision
need not require an access provider to
provide a declared rail transport service to an
access seeker.
(4) Subject to sub-section (5), a dispute
5
resolution decision has effect--
(a) on and from the day it is made; or
(b) if the decision states a day that on and
from which it is to have effect, on and
from that day.
10
(5) A dispute resolution decision may have
effect from the day on which an access
seeker has requested, in accordance with an
access arrangement, the access provider to
provide to them a declared rail transport
15
service.
(6) A dispute resolution decision is binding on
the parties to the access regime dispute to
which the decision relates.
(7) A copy of a dispute resolution decision must
20
be given to the parties to the access regime
dispute without delay.
38ZY. Time within which Commission must
make dispute resolution decision
The Commission must make a dispute
25
resolution decision--
(a) within 45 days of receipt of a
notification under section 38ZV(1); or
(b) by the date specified by the Minister
under section 38ZZ.
30
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38ZZ. Minister may extend time within which
Commission may make decision
(1) The Commission may, at any time before the
expiry of the period specified in section
38ZY(a), request, in writing, the Minister for
5
an extension in the time within which it must
make a dispute resolution decision.
(2) On receipt of a request under sub-section (1),
the Minister may agree to the request.
(3) If the Minister agrees to a request under this
10
section, the Minister must specify the date by
which the Commission must make the
dispute resolution decision.
(4) The date specified by the Minister must be a
date within 6 months of the date on which
15
the Commission received the notification
under section 38ZV(1) in respect of the
access regime dispute.
38ZZA. Commission may decide not to make
dispute resolution decision in certain cases
20
The Commission may at any time decide not
to make a dispute resolution decision
(without making such a decision) if the
Commission considers that--
(a) the notification under section 38ZV(1)
25
was vexatious;
(b) the subject-matter of the access regime
dispute is trivial, misconceived or
lacking substance.
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38ZZB. Matters to be taken into account in
making decision
In making a dispute resolution decision, the
Commission--
(a) must take into account--
5
(i) the objectives referred to in
section 38F; and
(ii) the matters or things set out in
section 38ZI(b) to (i); and
(iii) information given to it in
10
accordance with Part 4 of the
Essential Services Commission
Act 2001 where that information
has been given to the Commission
within the time specified in a
15
written notice under section 37(2)
of that Act; and
(b) may take into account any other matter
that it considers relevant.
38ZZC. Decisions must not be inconsistent with
20
principles and rules
The Commission must not make a dispute
resolution decision that is inconsistent
with--
(a) the account keeping rules; and
25
(b) the ring fencing rules; and
(c) the capacity use rules; and
(d) the network management rules; and
(e) the pricing principles and any
methodology for the calculation of
30
prices determined by the Commission
under the Pricing Principles Order; and
(f) the principle of passenger priority.
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38ZZD. Decisions must not be inconsistent with an
access arrangement
(1) The Commission must not make a dispute
resolution decision that is inconsistent with a
binding access arrangement.
5
(2) Without limiting sub-section (1), the
Commission must not make a dispute
resolution decision in respect of an access
regime dispute about the terms and
conditions for the provision of a declared rail
10
transport service that sets a price for that
declared rail transport service or an
equivalent declared rail transport service that
is higher than the price included in the access
provider's internal transfer terms.
15
38ZZE. Decisions must not interfere with certain
directions of the Secretary
The Commission must not, without the
written consent of the Secretary, make a
dispute resolution decision that interferes
20
with or has the effect of interfering with a
direction of the Secretary made under
section 115B of the Transport Act 1983.
38ZZF. Certain decisions must not be made
without prior consultation with Secretary
25
and Director
(1) The Commission must not make a relevant
dispute resolution decision unless the
Commission--
(a) has given a notice, in writing to the
30
Secretary and Director at least 20 days
before making the decision informing
them that--
(i) it has received notification of that
dispute in accordance with section
35
38ZV(1); and
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(ii) they may make submissions to it
in relation to the dispute; and
(b) has considered any submission made by
the Secretary or the Director.
(2) In this section--
5
"relevant dispute resolution decision"
means a dispute resolution decision
that--
(a) requires or directs an access
provider to provide the declared
10
rail transport service the subject of
the access regime dispute;
(b) requires an access provider to
provide interconnection;
(c) requires an access provider to
15
extend, or permit the extension of,
rail infrastructure owned or
operated by the access provider to
provide a declared rail transport
service.
20
38ZZG. Decisions in relation to extensions of rail
infrastructure
The Commission must not make a decision
requiring an access provider to extend, or to
permit the extension of, the rail infrastructure
25
that is used to provide a declared rail
transport service--
(a) unless it is satisfied that--
(i) the extension is technically and
economically feasible and
30
consistent with the safe and
reliable operation of the relevant
rail infrastructure; and
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(ii) the access provider's legitimate
business interests in the rail
infrastructure are protected; or
(b) if to do so will require the access
provider to bear some or all of the costs
5
of extending that rail infrastructure or
maintaining that extension.
38ZZH. Hearings for the purposes of a dispute
resolution decision
(1) The Commission must conduct a hearing for
10
the purposes of making a dispute resolution
decision.
(2) In any hearing for the purposes of making a
dispute resolution decision, the
Commission--
15
(a) is not bound by technicalities, legal
forms or rules of evidence; and
(b) must act as speedily as a proper
consideration of the access regime
dispute allows, having regard to the
20
need to carefully and quickly inquire
into and investigate the access regime
dispute and all matters affecting the
merits, and fair settlement, of the access
regime dispute; and
25
(c) may inform itself of any matter relevant
to the access regime dispute in any way
it thinks appropriate.
(3) The Commission may decide the periods that
are reasonably necessary for the fair and
30
adequate presentation of the respective cases
of the parties to an access regime dispute,
and may require that the cases be presented
within those periods.
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(4) The Commission may require evidence or
argument to be presented in writing, and may
decide the matters on which it will hear oral
evidence or argument.
(5) The Commission may decide that a hearing
5
is to be conducted by--
(a) telephone; or
(b) closed circuit television; or
(c) any other means of communication.
38ZZI. Hearing to be in private
10
(1) Subject to sub-section (2), a hearing
conducted for the purposes of making a
dispute resolution decision is to be in private.
(2) If the parties agree, a hearing or part of a
hearing may be conducted in public.
15
(3) The Commissioner of the Commission who
is presiding at a hearing that is conducted in
private may give written directions as to the
persons who may be present.
(4) In giving directions under sub-section (3),
20
the Commissioner presiding must have
regard to the wishes of the parties and the
need for commercial confidentiality.
38ZZJ. Right to representation
In a hearing before the Commission under
25
this Division, a party may--
(a) appear in person; or
(b) be represented by someone else if the
Commission agrees.
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38ZZK. Particular powers of the Commission for
the purposes of making a dispute
resolution decision
(1) The Commission may do any of the
following things for the purpose of making a
5
dispute resolution decision--
(a) give a direction in the course of, or for
the purposes of, a hearing;
(b) sit at any place;
(c) adjourn to any time and place;
10
(d) refer any matter to an expert and accept
the expert's report as evidence;
(e) generally give all such directions, and
do all such things, as are necessary or
expedient for the speedy hearing and
15
making of a dispute resolution decision.
(2) A party to an access regime dispute must not
do any act or thing in relation to the hearing
of an access regime dispute that would be a
contempt of court if the Commission were a
20
court of record.
Note: Sub-section (2) is a penalty provision:
See the definition of "penalty provision" in
section 38A.
(3) The Commission may give an oral or written
25
direction to any party to an access regime
dispute not to divulge or communicate to
anyone else specified information that was
given to the party in the course of an access
regime dispute unless the party has the
30
Commission's permission.
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(4) A party to an access regime dispute must
comply with a direction under sub-
section (3).
Note: Sub-section (4) is a penalty provision:
5 See the definition of "penalty provision" in
section 38A.
38ZZL. Power to take evidence on oath or
affirmation
(1) The Commission may take evidence on oath
or affirmation and for that purpose a
10
Commissioner of the Commission may
administer an oath or affirmation.
(2) The power conferred under this section may
be exercised only for the purposes of making
a dispute resolution decision.
15
38ZZM. Commission may give directions in
relation to negotiations
(1) If the Commission considers that it would be
likely to facilitate negotiations relating to an
access regime dispute if a person who is or
20
was a party to the access regime dispute
were to be given a direction under this sub-
section, the Commission may, for the
purposes of facilitating those negotiations,
give the person a written procedural
25
direction requiring the person to do, or
refrain from doing, a specified act or thing
relating to the conduct of those negotiations.
(2) Without limiting sub-section (1), the
Commission may give a procedural direction
30
to the parties to negotiate in good faith to
settle an access regime dispute.
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(3) A person must not contravene a direction
given under sub-section (1).
Note: Sub-section (3) is a penalty provision:
See the definition of "penalty provision" in
5 section 38A.
38ZZN. Two or more access regime disputes may
be decided together
(1) The Commission may make a dispute
resolution decision in respect of 2 or more
access regime disputes in respect of which it
10
has received notifications under section
38ZV(1) if the same access provider is a
party to those access regime disputes.
(2) The Commission may, for the purposes of
sub-section (1), disclose or give information
15
in relation to one access regime dispute to a
party of another access regime dispute if it
considers it appropriate to do so.
(3) Section 38 of the Essential Services
Commission Act 2001 applies to the
20
information disclosed or given by the
Commission under sub-section (2) as if that
information had been given to the
Commission under section 37 of that Act.
38ZZO. Commission may make interim decision
25
(1) The Commission may make an interim
decision in respect of an access regime
dispute before making a dispute resolution
decision in respect of that dispute.
(2) The making of an interim decision does not
30
relieve the Commission from its duty to
make a dispute resolution decision.
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(3) Subject to this section, an interim decision
has effect--
(a) on and from the date specified in the
interim decision; and
(b) as if it were a dispute resolution
5
decision.
(4) In making an interim decision, the
Commission may take into account any
matter it considers relevant.
(5) Subject to this section, unless sooner
10
revoked, an interim decision is binding on
the parties to the access regime dispute and
remains in force until--
(a) the end of the period specified in the
interim decision; or
15
(b) until a dispute resolution decision is
made.
(6) The Commission may revoke an interim
decision.
(7) If--
20
(a) an interim decision is in force in
relation to an access regime dispute;
and
(b) the notification under section 38ZV(1)
is withdrawn under section 38ZW--
25
the interim decision is taken to have been
revoked when the withdrawal occurs.
(8) If an interim decision is made, a copy of the
decision must be given to the parties without
delay.
30
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38ZZP. Variation or revocation of dispute
resolution decisions
(1) A party to an access regime dispute in
respect of which the Commission has made a
dispute resolution decision may apply to the
5
Commission for the variation or revocation
of that decision.
(2) An application must--
(a) be in writing; and
(b) state the reasons for the proposed
10
variation or revocation (as the case
requires); and
(c) in the case of an application for a
variation include a description of the
proposed variation.
15
(3) On receipt of an application under sub-
section (1), the Commission must, without
delay--
(a) notify any other party bound by the
dispute resolution decision of the
20
application; and
(b) request submissions and comments
from those other parties by a date
specified by the Commission.
(4) The date specified in a notice under sub-
25
section (3) must not be a date that is less than
21 days after the date a party is notified in
accordance with that sub-section.
(5) In making a decision whether to vary or
revoke a dispute resolution decision as
30
requested, the Commission--
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(a) must consider every submission or
comment it receives on or before the
date specified by it in accordance with
sub-section (3)(b); and
(b) may, but need not, consider a
5
submission or comment it receives after
the date specified by it in accordance
with sub-section (3)(b).
(6) On receipt of an application under sub-
section (1), the Commission may, as the case
10
requires, decide whether to vary or revoke
the decision.
(7) Sections 38ZW to 38ZZG and sections
38ZZN and 38ZZO apply to an application
under this section--
15
(a) with such alterations and modifications
as are necessary; and
(b) as if--
(i) the application were a notification
under section 38ZV(1); and
20
(ii) the decision under this section
whether to vary or revoke the
dispute resolution decision were a
dispute resolution decision.
38ZZQ. Appeals from decisions of the Commission
25
under Division 5
Section 55 of the Essential Services
Commission Act 2001 applies to--
(a) a dispute resolution decision;
(b) an interim decision under
30
section 38ZZO;
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(c) a decision under section 38ZZP--
as if the decision were a determination made
under that Act.
38ZZR. Commission may recover its costs in
certain cases
5
(1) In this section--
"Commission's costs" means the total
amount of the costs and expenses of the
Commission that--
(a) are incurred or are likely to be
10
incurred by the Commission in the
exercise of powers for or in
connection with the making of a
relevant decision; or
(b) are incurred by the Commission in
15
the exercise of its powers for or in
connection with the making of a
dispute resolution decision after
the notification of an access
regime dispute under
20
section 38ZV and before the
withdrawal of that notification
under section 38ZW;
"relevant decision" means a dispute
resolution decision or a decision made
25
under section 38ZZA or 38ZZP.
(2) After making a relevant decision or on
receipt of a notification under section 38ZW
withdrawing a notification of an access
regime dispute, the Commission may make
30
any order as to the Commission's costs that it
considers appropriate.
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(3) An order for costs under sub-section (2) is
binding on--
(a) the party to the access regime dispute to
whom the order is directed; and
(b) if the access regime dispute is
5
withdrawn under section 38ZW, a
person who was a party to that dispute
before it was withdrawn and to whom
the order is directed.
(4) An order for costs under sub-section (2) is a
10
debt due to the Commission.
Division 6--Access Provider Obligations
38ZZS. Hindering or preventing access
An access provider must not engage in
conduct for the purpose of or having the
15
effect of hindering or preventing--
(a) access by an access seeker to a declared
rail transport service;
(b) an access seeker from entering into an
agreement for the provision of a
20
declared rail transport service;
(c) the provision of a declared rail transport
service to which a person is entitled
under an agreement or a dispute
resolution decision;
25
(d) interconnection.
Note: Section 38ZZS is a penalty provision:
See the definition of "penalty provision" in
section 38A.
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38ZZT. Compliance with access arrangement
An access provider must, in providing a
declared rail transport service, comply with
the terms and conditions of an access
arrangement in relation to that service.
5
Note: Section 38ZZT is a penalty provision:
See the definition of "penalty provision" in
section 38A.
38ZZU. Compliance with account keeping rules
An access provider must, in accordance with
10
the account keeping rules--
(a) prepare, maintain and keep accounting
records, accounts and other records
required to be prepared, maintained and
kept under those rules;
15
Note: Section 38ZZU(a) is a penalty provision:
See the definition of "penalty provision"
in section 38A.
(b) provide to the Commission accounting
records, accounts and other records
20
required to be prepared, maintained and
kept under those rules.
Note: Section 38ZZU(b) is a penalty
provision: See the definition of "penalty
25 provision" in section 38A.
38ZZV. Compliance with ring fencing rules
An access provider must comply with the
ring fencing rules.
Note: Section 38ZZX is a penalty provision:
30 See the definition of "penalty provision" in
section 38A.
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38ZZW. Compliance with capacity use rules
An access provider must, in carrying out a
relevant capacity allocation activity, carry
out that activity in accordance with the
capacity use rules.
5
Note: Section 38ZZW is a penalty provision:
See the definition of "penalty provision" in
section 38A.
38ZZX. Compliance with network management
rules
10
An access provider must, in carrying out a
relevant network management activity, carry
out that activity in accordance with the
network management rules.
15 Note: Section 38ZZX is a penalty provision:
See the definition of "penalty provision" in
section 38A.
38ZZY. Access provider obligation in relation to
calculating prices for declared rail
transport services
20
(1) Subject to any binding access arrangement or
dispute resolution decision, an access
provider must not, in respect of declared rail
transport services it will provide, calculate
different prices for the provision of those
25
services as between--
(a) different access seekers; or
(b) an access seeker and itself; or
(c) an access seeker and a related body
corporate of the access provider--
30
if the characteristics or nature of those
services are the same.
Note: Sub-section (1) is a penalty provision:
See the definition of "penalty provision" in
35 section 38A.
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(2) In determining whether the characteristics or
nature of declared rail transport services are
the same, regard must be had to all relevant
matters, including--
(a) the location, duration and quality of the
5
train path;
(b) the nature of the rolling stock;
(c) the duration of any agreement for the
provision of those declared rail
transport services;
10
(d) the arrival and departure times of trains.
Division 7--Confidential Information
38ZZZ. Access provider confidential information
obligations
(1) An access provider must not use information
15
given to them by an access seeker or a user
in confidence other than solely for a relevant
purpose.
Note: Sub-section (1) is a penalty provision:
20 See the definition of "penalty provision" in
section 38A.
(2) In sub-section (1)--
"relevant purpose" means the purpose of--
(a) assessing and responding to a
request by the access seeker for
25
the provision of a declared rail
transport service to the access
seeker;
(b) providing a declared rail transport
service to the user;
30
(c) assessing and responding to a
request by the access seeker for
interconnection.
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(3) Sub-section (1) does not apply if the access
provider has the written consent of the access
seeker or the user to use the information
given to them by the access seeker or the
user for another purpose.
5
(4) An access provider must not disclose
information given to them by an access
seeker or a user in confidence without the
written consent of the access seeker or the
user.
10
Note: Sub-section (4) is a penalty provision:
See the definition of "penalty provision" in
section 38A.
38ZZZA. Access seeker and user confidential
information obligations
15
(1) An access seeker or a user must not use
information given to them by an access
provider in confidence other than solely for a
relevant purpose.
20 Note: Sub-section (1) is a penalty provision:
See the definition of "penalty provision" in
section 38A.
(2) In sub-section (1)--
"relevant purpose" means the purpose of--
(a) seeking to be provided, or using, a
25
declared rail transport service
provided by the access provider;
or
(b) interconnection.
(3) Sub-section (1) does not apply if the access
30
seeker or user has the written consent of the
access provider to use the information given
to them by the access provider for another
purpose.
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(4) An access seeker or a user must not disclose
information given to them by an access
provider in confidence without the written
consent of the access provider.
5 Note: Sub-section (4) is a penalty provision:
See the definition of "penalty provision" in
section 38A.
38ZZZB. Access provider system and business rules
for the handling of confidential
information
10
(1) An access provider must, on the same day as
it submits a proposed access arrangement
under section 38W for approval, submit to
the Commission for approval, a system and
business rules for--
15
(a) the use or handling of information
supplied to the access provider in
confidence by an access seeker or a
user, including the use or handling of
that information by an officer,
20
employee or agent of the access
provider; and
(b) the disclosure of information supplied
to the access provider in confidence by
an access seeker or a user, including the
25
disclosure of that information by an
officer, employee or agent of the access
provider.
(2) The Commission's approval under sub-
section (1) may be subject to such conditions
30
as the Commission considers appropriate.
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(3) On the approval by the Commission of a
system and business rules under sub-
section (1)--
(a) the access provider, while the access
provides or is capable of providing
5
declared rail transport services, must at
all times have in place and maintain
that system and business rules; and
(b) that system and business rules must be
consistent with the conditions of the
10
approval (if any).
Note: Sub-section (3) is a penalty provision:
See the definition of "penalty provision" in
section 38A.
Division 8--Enforcement and Other
15
Proceedings
38ZZZC. Proceedings
(1) A person may not bring civil proceedings in
respect of a matter arising under this Part,
except in accordance with this Division.
20
(2) The Commission may, in accordance with
this Division, bring civil proceedings in
respect of a penalty provision.
(3) Nothing in this section affects the right of a
person to bring civil proceedings in respect
25
of any matter or thing, or seek any relief or
remedy, if the cause of action arises, or the
relief or remedy is sought, on grounds that
do not rely on this Part.
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38ZZZD. Criminal proceedings do not lie
(1) Criminal proceedings do not lie against a
person by reason only that the person--
(a) has contravened a provision of this
Part;
5
(b) has attempted to contravene such a
provision;
(c) has aided, abetted, counselled or
procured a person to contravene such a
provision;
10
(d) has induced, or attempted to induce, a
person, whether by threats or promises
or otherwise, to contravene such a
provision;
(e) has been in any way, directly or
15
indirectly, knowingly concerned in, or
party to, the contravention by a person
of such a provision; or
(f) has conspired with others to contravene
such a provision.
20
(2) Sub-section (1) does not apply in respect of a
provision of this Part for an offence against
which a penalty is prescribed by this Part.
38ZZZE. Proceedings for contraventions of penalty
provisions
25
(1) The Commission may apply to the Supreme
Court for an order under this Part in respect
of a contravention by a person of a penalty
provision or the doing by a person of any
other thing mentioned in sub-section (2).
30
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(2) If the Court is satisfied that a person--
(a) has contravened a penalty provision; or
(b) has attempted to contravene such a
provision; or
(c) has aided, abetted, counselled or
5
procured a person to contravene such a
provision; or
(d) has induced, or attempted to induce, a
person whether by threats or promises
or otherwise, to contravene such a
10
provision; or
(e) has been in any way, directly or
indirectly, knowingly concerned in, or
party to, the contravention by a person
of such a provision; or
15
(f) has conspired with others to contravene
such a provision--
the Court may order the person to pay a
pecuniary penalty to the Minister in respect
of each act or omission by the person to
20
which this section applies as the Court
determines to be appropriate, being an
amount not exceeding $1 000 000.
(3) In determining the amount of the pecuniary
penalty to be paid by the person, the Court
25
may have regard to all relevant matters
including--
(a) the nature and extent of the act or
omission and of any loss or damage
suffered as a result of the act or
30
omission; and
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(b) the circumstances in which the act or
omission took place; and
(c) whether the person has previously been
found by the Court in proceedings
under this Division to have contravened
5
a penalty provision.
38ZZZF. Pecuniary penalties to be paid into the
Consolidated Fund
Every pecuniary penalty received by the
Minister must be paid into the Consolidated
10
Fund.
38ZZZG. Injunctions
(1) If, on an application by the Commission, the
Supreme Court is satisfied that a person has
engaged, or is proposing to engage, in
15
conduct that constitutes or would
constitute--
(a) a contravention of a penalty provision;
or
(b) attempting to contravene a penalty
20
provision--
the Court may grant an injunction in such
terms as the Court determines to be
appropriate.
(2) If an application for an injunction under sub-
25
section (1) has been made the Court may, if
the Court determines it to be appropriate,
grant an injunction by consent of all the
parties to the proceedings, whether or not the
Court is satisfied that a person has engaged,
30
or is proposing to engage, in conduct of a
kind mentioned in sub-section (1).
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(3) If in the opinion of the Court it is desirable to
do so, the Court may grant an interim
injunction pending determination of an
application under sub-section (1).
(4) The Court may rescind or vary an injunction
5
granted under sub-section (1) or (2).
(5) The power of the Court to grant an
injunction restraining a person from
engaging in conduct may be exercised--
(a) whether or not it appears to the Court
10
that the person intends to engage again,
or to continue to engage, in conduct of
that kind; and
(b) whether or not the person has
previously engaged in conduct of that
15
kind.
(6) The power of the Court to grant an
injunction requiring a person to do an act or
thing may be exercised--
(a) whether or not it appears to the Court
20
that the person intends to refuse or fail
again, or to continue to refuse or fail, to
do that act or thing; and
(b) whether or not the person has
previously refused or failed to do that
25
act or thing.
(7) The Court shall not, in any application to the
Court for the grant of an injunction under
this section, require the Commission or any
other person to give any undertakings as to
30
damages as a condition of granting an
interim injunction.
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38ZZZH. Declaratory relief
(1) The Supreme Court, on an application by the
Commission may, by order, declare whether
or not the person to which the application
relates has contravened a penalty provision.
5
(2) If the order declares the person to have
contravened a penalty provision, the order
may include one or more of the following--
(a) a requirement that the person cease,
within a specified period, the act,
10
activity or practice constituting the
contravention;
(b) a requirement that the person take such
action, or adopt such practice, as the
Court requires for remedying the
15
contravention or preventing a
recurrence of the contravention.
38ZZZI. Enforcement of dispute resolution
decisions
(1) If the Supreme Court is satisfied, on the
20
application of a party to an access regime
dispute in respect of which the Commission
has made a dispute resolution decision, that
another party to that access regime dispute
engaged, is engaging, or is proposing to
25
engage in conduct that constitutes a
contravention of the dispute resolution
decision, the Court may make all or any of
the following orders--
(a) an order granting an injunction on such
30
terms as the Court thinks appropriate--
(i) restraining the other party from
engaging in the conduct; or
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(ii) if the conduct involves refusing or
failing to do something--
requiring the other party to do that
thing;
(b) an order directing the other party to
5
compensate the applicant for loss or
damage suffered as a result of the
contravention;
(c) any other order that the Court thinks
appropriate.
10
(2) If the Supreme Court has power under sub-
section (1) to grant an injunction restraining
a person from engaging in particular
conduct, or requiring a person to do
anything, the Court may make any other
15
orders (including granting an injunction) that
it thinks appropriate against any other person
who was involved in the contravention
concerned.
(3) A reference in this section to a person
20
involved in the contravention is a reference
to a person who has--
(a) aided, abetted, counselled or procured
the contravention; or
(b) induced the contravention, whether
25
through threats or promises or
otherwise; or
(c) been in any way (directly or indirectly)
knowingly concerned in or a party to
the contravention; or
30
(d) conspired with others to effect the
contravention.
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Division 9--Miscellaneous
38ZZZJ. Collection and use of information by
Commission
Despite section 36 of the Essential Services
Commission Act 2001--
5
(a) the Commission may perform or
exercise the functions or powers
conferred on it under Part 4 of that Act
for the purpose of performing or
exercising any of its functions or
10
powers under this Part; and
(b) Part 4 of that Act applies to or in
respect of any information or a
document given to the Commission
under this Part as if it were required to
15
be given to the Commission under
section 37 of that Act.'.
7. Supreme Court--limitation of jurisdiction
After section 105(2) of the Rail Corporations
Act 1996 insert--
20
"(3) It is the intention of section 38ZZZC to alter
or vary section 85 of the Constitution Act
1975.".
8. Amendment of regulation making power
At the end of section 106 of the Rail
25
Corporations Act 1996 insert--
"(2) Regulations made under this Act--
(a) may be of general or limited
application;
(b) may differ according to differences in
30
time, place or circumstance.".
__________________
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s. 9
See: PART 3--AMENDMENT OF TRANSPORT ACT 1983
Act No.
9921.
Reprint No. 10
Division 1--Access Regime Related Amendments
as at
1 July 2004
and
9. Priority of passenger services
amending
Act Nos
(1) In section 10(1) of the Transport Act 1983--
54/2002,
69/2003,
(a) in paragraph (c)--
5 94/2003,
101/2003,
(i) omit "access to or";
108/2004 and
110/2004.
(ii) omit "within the meaning of the Rail
LawToday:
www.dms.
Corporations Act 1996";
dpc.vic.
gov.au
(b) for paragraph (d) substitute--
"(d) the train operator is--
10
(i) a party to an agreement relating to
the provision of those rail
transport services or declared rail
transport services; or
(ii) an access provider bound by a
15
dispute resolution decision
relating to the provision of those
rail transport services or declared
rail transport services--";
(c) in paragraph (e), for "access to those services
20
as is" substitute "services as are".
(2) In section 10(2) of the Transport Act 1983--
(a) omit "provision of access to or";
(b) after "train operator" insert "of the rail
transport services and declared rail transport
25
services";
(c) in paragraph (b)--
(i) omit "access of";
(ii) after "person to" insert "use".
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(3) In section 10(3)(b) of the Transport Act 1983--
(a) omit "access of";
(b) after "train operator to" insert "use".
(4) For section 10(4) of the Transport Act 1983
substitute--
5
"(4) Nothing in sub-section (2) or (3) affects any
provision of an agreement or a dispute
resolution decision referred to in sub-section
(1)(d) relating to a right to use rail transport
services or declared rail transport services
10
referred to in sub-section (2)(b) or (3)(b)
which specifies the respective rights or
obligations of--
(a) in the case of an agreement, the parties
to the agreement; or
15
(b) in the case of a dispute resolution
decision, the parties bound by that
decision--
as a result of--
(c) any interference with an existing use or
20
right arising from the operation of this
section; or
(d) the Director requiring or approving a
timetable change in accordance with an
agreement referred to in sub-section
25
(1)(a).".
(5) For section 10(5) of the Transport Act 1983
substitute--
"(5) Subject to the terms of any agreement, or a
dispute resolution decision relating to a right
30
referred to in sub-section (2)(b), if the
operation of this section interferes with that
right, the rail infrastructure operator must use
all reasonable endeavours to provide
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alternative rail transport services or declared
rail transport services (as the case requires)
to the person whose right to use those
services is interfered with so as to minimise
that interference.".
5
(6) After section 10(6) of the Transport Act 1983
insert--
'(7) In this section "access provider", "access
seeker", "binding access arrangement",
"dispute resolution decision", "rail
10
transport service" and "declared rail
transport service" have the meanings given
to them under section 38A of the Rail
Corporations Act 1996.'.
(7) After section 10(1)(d)(i) of the Transport Act
15
1983 insert--
"(ia) an access provider bound by a binding access
arrangement relating to the provision of
those rail transport services or declared rail
transport services; or".
20
(8) In section 10(4) of the Transport Act 1983--
(a) after "agreement," (where first occurring)
insert "binding access arrangement,";
(b) after paragraph (a) insert--
"(ab) in the case of a binding access
25
arrangement, the access provider and
any access seeker; or".
(9) In section 10(5) of the Transport Act 1983 after
"agreement," insert "binding access agreement,".
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Division 2--Other Amendments
10. Applications for renewal of authorisation
(1) In section 221G(3) of the Transport Act 1983 for
"the prescribed number of" substitute "60".
(2) For section 221G(4) of the Transport Act 1983
5
substitute--
"(4) Despite sub-section (3), the Secretary may
consider a renewal application made later
than the time applying under sub-section (3).
(4A) If the regulations prescribe a late renewal
10
application fee, the Secretary may only
consider a renewal application made later
than the time for applying under sub-
section (3) if the applicant pays that fee.".
(3) In section 221G(5) of the Transport Act 1983 for
15
"the day prescribed for the purposes of this sub-
section" substitute "90 days before the expiry of
the authorisation".
11. Renewal of authorisation
In section 221H(4) of the Transport Act 1983 for
20
"the prescribed period" substitute "3 years".
12. Duration of accreditation
For section 228F(1) of the Transport Act 1983
substitute--
"(1) An accreditation remains in force for the
25
period specified by the Secretary.
(1A) The Secretary must not specify a period that
is greater than the maximum (if any)
specified by the regulations for the purposes
of this section.".
30
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13. Application for renewal of accreditation
(1) For section 228I(4) of the Transport Act 1983
for "the prescribed number of" substitute "60".
(2) For section 228I(5) of the Transport Act 1983
substitute--
5
"(5) Despite sub-section (4), the Secretary may
consider a renewal application made later
than the time applying under sub-section (4).
(5A) If the regulations prescribe a late renewal
application fee, the Secretary may only
10
consider a renewal application made later
than the time for applying under sub-
section (4) if the applicant pays that fee.".
(3) In section 228I(6) of the Transport Act 1983 for
"the day prescribed for the purposes of this sub-
15
section" substitute "90 days before the expiry of
the accreditation".
14. Renewal of accreditation
In section 228J(4) of the Transport Act 1983 for
"the prescribed period" substitute "5 years".
20
15. New Division 1B of Part VIII inserted
After section 246C of the Transport Act 1983
insert--
'Division 1B--Validation
246CA. Definitions
25
In this Division--
"MTA" means the Metropolitan Transit
Authority established under section 15
(as in force before 1 July 1989);
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"PTC" means the Public Transport
Corporation established under
section 13 (as substituted by section 9
of the Transport (Amendment) Act
1989 and in force before 30 June 2003);
5
"STA" means the State Transport Authority
established under section 13 (as in force
before 1 July 1989).
246CB. Authorized officers for the purposes of
sections 212 and 213 appointed by MTA
10
and STA
(1) Anything done or that is purported to have
been done by a relevant person under section
212 or 213 during the relevant period that
would have been validly or lawfully done
15
had that relevant person been validly
appointed as an authorized officer by the
Managing Director of the MTA or STA (as
the case requires) under section 212(2) has,
and is deemed always to have had, the same
20
force and effect as it would have had if that
relevant person had been so appointed.
(2) In addition, the relevant person is deemed to
have been validly appointed as an authorized
officer under section 212(2) during the
25
relevant period.
(3) In this section--
"relevant period" means the period
beginning on 1 July 1983 and ending
on 30 June 1989;
30
Note 1: 1 July 1983 is the day on which
section 212 came into operation.
See section 1(2)(c).
Note 2: 30 June 1989 is the day before the day
35 on which section 40 of and items 12, 13,
and 19.1 of Schedule 1 to, the
Transport (Amendment) Act 1989
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(No. 44/1989) came into operation.
Those provisions substituted references
to the PTC and the Chief Executive of
the PTC.
"relevant person" means an officer of the
5
MTA or STA whom the Managing
Director of the MTA or STA (as the
case requires) purportedly appointed to
be an authorized officer under section
212(2) during the relevant period.
10
246CC. Authorised officers for the purposes of
Division 2 of Part VII appointed by PTC
(1) Anything done or that is purported to have
been done by a relevant person under
section 212 or 213 during the relevant period
15
that would have been validly or lawfully
done had that relevant person been validly
appointed as an authorized officer by the
Chief Executive of the PTC under section
212(2) has, and is deemed always to have
20
had, the same force and effect as it would
have had if that relevant person had been so
appointed.
(2) In addition, the relevant person is deemed to
have been validly appointed as an authorized
25
officer under section 212(2) during the
relevant period.
(3) In sub-sections (1) and (2)--
"relevant period" means the period
beginning on 1 July 1989 and ending
30
on 7 August 1990;
Note 1: 1 July 1989 is the day on which
section 40 of and items 12, 13, and 19.1
of Schedule 1 to, the Transport
35 (Amendment) Act 1989 (No. 44/1989)
came into operation. Those provisions
substituted references to the PTC and the
Chief Executive of the PTC.
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Note 2: 7 August 1990 is the day before the day
on which section 42 of the Crimes
Legislation (Miscellaneous
Amendments) Act 1989 (No. 25/1989)
5 came into operation. That section
substituted new sections 211 to 215.
"relevant person" means an officer of the
PTC whom the Chief Executive of the
PTC purportedly appointed to be an
authorized officer under section 212(2)
10
during the relevant period.
(4) Anything done or that is purported to have
been done by a relevant person under
Division 2 of Part VII during the relevant
period that would have been validly or
15
lawfully done had that relevant person been
validly appointed as an authorised officer by
the Chief Executive of the PTC or the PTC
(as the case requires) under section 211 has,
and is deemed always to have had, the same
20
force and effect as it would have had if that
relevant person had been so appointed.
(5) In addition, the relevant person is deemed to
have been validly appointed as an authorised
officer under section 211 during the relevant
25
period.
(6) In sub-sections (4) and (5)--
"relevant period" means the period
beginning on 8 August 1990 and ending
on 30 May 2000;
30
Note 1: 8 August 1990 is the day on which
section 42 of the Crimes Legislation
(Miscellaneous Amendments) Act
1989 (No. 25/1989) came into operation.
35 That section inserted a new section 211
which contained a new definition of
"authorised officer".
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Note 2: 30 May 2000 is the day before the day
on which section 18 of the Transport
(Amendment) Act 2000 (No. 30/2000)
came into operation. That section
5 amended the definition of "authorised
officer" in section 211(1) to take out
references to the PTC.
"relevant person" means an officer of the
PTC whom the Chief Executive of the
PTC, or the PTC, (as the case requires)
10
purportedly appointed to be an
authorised officer under section 211
during the relevant period.
246CD. Authorised officers for the purposes of
section Division 2 of Part VII appointed
15
by Secretary
(1) Anything done or that is purported to have
been done by a relevant person under
Division 2 of Part VII during the relevant
period that would have been validly or
20
lawfully done had that relevant person been
validly appointed as an authorised officer by
the Secretary under section 211(1) has, and
is deemed always to have had, the same
force and effect as it would have had if that
25
relevant person had been so appointed.
(2) In addition, the relevant person is deemed to
have been validly appointed as an authorised
officer under section 211(1) during the
relevant period.
30
(3) In sub-sections (1) and (2)--
"relevant period" means the period
beginning on 23 November 1995 and
ending on 2 December 2003;
35 Note 1: 23 November 1995 is the day on which
section 45 of the Public Transport
Competition Act 1995 (No. 68/1995)
came into operation. That section
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amended the definition of "authorised
officer" to empower the Secretary to
appoint authorised officers.
Note 2: 2 December 2003 is the day before the
5 day on which section 15(2) of the
Transport (Rights and
Responsibilities) Act 2003
(No. 101/2003) came into operation.
That section repealed section 211 on
10 3 December 2003.
"relevant person" means a person whom
the Secretary purportedly appointed to
be an authorised officer under section
211(1) during the relevant period.
(4) Anything done or that is purported to have
15
been done by a relevant person under
section 212 or 213 during the relevant period
that would have been validly or lawfully
done had--
(a) that relevant person been validly
20
authorised to act as an authorised
officer by the Secretary under section
221A or 221AB (as the case requires)
for the purposes of Part VII; and
(b) in the case of a purported authorisation
25
under section 221AB, regulations been
in force under this Act during the
relevant period prescribing--
(i) a period for the purposes of each
of sections 221H(4), 228F(1) and
30
228J(4); and
(ii) a number of days for the purposes
of each of sections 221G(3) and
228I(4); and
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(iii) a late renewal application fee for
the purposes of section 228I(5)--
has, and is deemed always to have had, the
same force and effect as it would have had if
that relevant person had been so authorised,
5
and in the case of a purported authorisation
under section 221AB, such regulations had
been in force.
(5) In addition, the relevant person is deemed to
be, and have always been, validly authorised
10
to act as an authorised officer under section
221A or 221AB (as the case requires) for the
purposes of Part VII.
(6) In sub-sections (4) and (5)--
"relevant period" means the period
15
beginning on 3 December 2003 and
ending on the day section 15 of the
Transport Legislation (Further
Amendment) Act 2005 comes into
operation;
20
Note: 3 December 2003 is the day on which
section 15(1) of the Transport (Rights
and Responsibilities) Act 2003
(No. 101/2003) came into operation.
25 That section inserted a new definition of
"authorised officer" into section 208.
"relevant person" means a person whom
the Secretary purportedly authorised to,
during the relevant period, act as an
authorised officer under section 221A
30
or 221AB (as the case requires) for the
purposes of Part VII.
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246CE. Authorized officer for the purposes of
section 218 appointed by the MTA or STA
(1) Anything done or that is purported to have
been done by a relevant person under
section 218 during the relevant period that
5
would have been validly or lawfully done
had that relevant person been validly
appointed as an authorized officer by the
Managing Director of the MTA or STA, or
the MTA or STA, (as the case requires)
10
under section 218(1) has, and is deemed
always to have had, the same force and effect
as it would have had if that relevant person
had been so appointed.
(2) In addition, the relevant person is deemed to
15
have been validly appointed as an authorized
officer under section 218(1) during the
relevant period.
(3) In this section--
"relevant period" means the period
20
beginning on 1 July 1983 and ending
on 30 June 1989;
Note 1: 1 July 1983 is the day on which
section 218 came into operation.
25 See section 1(2)(c).
Note 2: 30 June 1989 is the day before the day
on which section 40 of, and item 23 of
Schedule 1 to, the Transport
(Amendment) Act 1989 (No. 44/1989)
30 came into operation. Those provisions
substituted a new section 218(1).
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"relevant person" means an officer of the
MTA or the STA whom the Managing
Director of the MTA or STA, or the
MTA or STA, (as the case requires)
purportedly appointed to be an
5
authorized officer under section 218(1)
during the relevant period.
246CF. Authorized officer for the purposes of
section 218 or 218B appointed by the PTC
under section 218(1)
10
(1) Anything done or that is purported to have
been done by a relevant person under section
218 or 218B during the relevant period that
would have been validly or lawfully done
had that relevant person been validly
15
appointed as an authorized officer by the
PTC under section 218(1) has, and is deemed
always to have had, the same force and effect
as it would have had if that relevant person
had been so appointed.
20
(2) In addition, the relevant person is deemed to
have been validly appointed as an authorized
officer under section 218(1) during the
relevant period.
(3) In this section--
25
"relevant period" means the period
beginning on 1 July 1989 and ending
on 30 May 2000;
Note 2: 1 July 1989 is the day on which
30 section 40 of, and item 23 of Schedule 1
to, the Transport (Amendment) Act
1989 (No. 44/1989) came into operation.
Those provisions substituted a new
section 218(1).
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Note 2: 30 May 2000 is the day before the day
on which section 19 of the Transport
(Amendment) Act 2000 (No. 30/2000)
came into operation. That section
5 repealed section 218.
"relevant person" means an officer of the
PTC whom the PTC purportedly
appointed to be an authorized officer
under section 218(1) during the
relevant period.
10
246CG. Authorised officers for the purposes of
section 218B appointed by PTC under
that section
(1) Anything done or that is purported to have
been done by a relevant person under
15
section 218B during the relevant period that
would have been validly or lawfully done
had that relevant person been validly
appointed as an authorized officer by the
PTC under section 218B(1), has, and is
20
deemed always to have had, the same force
and effect as it would have had if that
relevant person had been so appointed.
(2) In addition, the relevant person is deemed to
have been validly appointed as an authorized
25
officer under section 218B(1) during the
relevant period.
(3) In this section--
"relevant period" means the period
beginning on 7 December 1993 and
30
ending on 30 May 2000;
Note 1: 7 December 1993 is the day on which
section 67 of the Transport
(Amendment) Act 1993 (No. 120/1993)
35 came into operation. That section
inserted a new section 218B(1).
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Note 2: 30 May 2000 is the day before the day
on which section 19 of the Transport
(Amendment) Act 2000 (No. 30/2000)
came into operation. That section
5 repealed section 218.
"relevant person" means an officer of the
PTC whom the PTC purportedly
appointed to be an authorized officer
under section 218B(1) during the
relevant period.
10
246CH. Authorised officers for the purposes of
section 218B by Secretary
(1) Anything done or that is purported to have
been done by a relevant person under
section 218B during the relevant period that
15
would have been validly or lawfully done
had that relevant person been validly
appointed as an authorised officer by the
Secretary under section 218B(1) has, and is
deemed always to have had, the same force
20
and effect as it would have had if that
relevant person had been so appointed.
(2) In addition, the relevant person is deemed to
have been validly appointed as an authorised
officer under section 218B(1) during the
25
relevant period.
(3) In sub-sections (1) and (2)--
"relevant period" means the period
beginning on 23 November 1995 and
ending on 2 December 2003;
30
Note 1: 23 November 1995 is the day on which
section 46 of the Public Transport
Competition Act 1995 (No. 68/1995)
came into operation. That section
35 amended the definition of "authorised
officer" to empower the Secretary to
appoint authorised officers for the
purposes of the section.
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Note 2: 2 December 2003 is the day before the
day section 17(5) of the Transport
(Rights and Responsibilities) Act 2003
(No. 101/2003) came into operation.
5 That section repealed section 218B(1)
on 3 December 2003.
"relevant person" means a person whom
the Secretary purportedly appointed to
be an authorised officer under section
218B(1) during the relevant period.
10
(4) Anything done or that is purported to have
been done by a relevant person under section
218B during the relevant period that would
have been validly or lawfully done had--
(a) that relevant person been validly
15
authorised to act as an authorised
officer by the Secretary under section
221A or 221AB (as the case requires)
for the purposes of Part VII; and
(b) in the case of a purported authorisation
20
under section 221AB, regulations been
in force under this Act during the
relevant period prescribing--
(i) a period for the purposes of each
of sections 221H(4), 228F(1) and
25
228J(4); and
(ii) a number of days for the purposes
of each of sections 221G(3) and
228I(4); and
(iii) a late renewal application fee for
30
the purposes of section 228I(5)--
has, and is deemed always to have had, the
same force and effect as it would have had if
that relevant person had been so authorised,
and in the case of a purported authorisation
35
under section 221AB, such regulations had
been in force.
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(5) In addition, the relevant person is deemed to
be, and have always been, validly authorised
to act as an authorised officer under section
221A or 221AB (as the case requires) for the
purposes of Part VII.
5
(6) In sub-sections (4) and (5)--
"relevant period" means the period
beginning on 3 December 2003 and
ending on the day section 15 of the
Transport Legislation (Further
10
Amendment) Act 2005 comes into
operation;
Note: 3 December 2003 is the day on which
section 15(1) of the Transport (Rights
15 and Responsibilities) Act 2003
(No. 101/2003) came into operation.
That section inserted a new definition of
"authorised officer" into section 208.
"relevant person" means a person whom
the Secretary purportedly authorised to,
20
during the relevant period, act as an
authorised officer under section 221A
or 221AB (as the case requires) for the
purposes of Part VII.
246CI. Officers of the MTA and STA authorized
25
for the purposes of section 219(2) or (4)
(1) Anything done or that is purported to have
been done by a relevant person under section
219(2) or (4) during the relevant period that
would have been validly or lawfully done
30
had that person been validly authorized
under the relevant sub-section by the MTA
or STA to do the thing provided for by the
relevant sub-section, has, and is deemed
always to have had, the same force and effect
35
as it would have had if that officer had been
so authorized.
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(2) In addition, the relevant person is deemed to
have been validly authorized under section
219(2) or (4) (as the case requires) during the
relevant period.
(3) In this section--
5
"relevant period" means the period
beginning on 17 December 1986 and
ending on 30 June 1989;
Note 1: 17 December 1986 is the day on which
10 section 33(b) of the Transport
(Amendment) Act 1986 (No. 100/1986)
came into operation. That section
inserted section 219(2) and (4).
Note 2: 30 June 1989 is the day before the day
15 on which section 40 of, and items 18 and
19 of Schedule 1 to, the Transport
(Amendment) Act 1989 (No. 44/1989)
came into operation. Those provisions
substituted references to the PTC.
"relevant person" means an officer of the
20
MTA or STA whom the MTA or STA
(as the case requires) purportedly
authorized under section 219(2) or (4)
to do the thing provided for under the
relevant sub-section during the relevant
25
period.
246CJ. Officers of the PTC authorised for the
purposes of section 219(2), (4) or (7)
(1) Anything done or that is purported to have
been done by a relevant person under section
30
219(2) or (4) during the relevant period that
would have been validly or lawfully done
had that relevant person been validly
authorized under the relevant sub-section by
the PTC to do the thing provided for by the
35
relevant sub-section, has, and is deemed
always to have had, the same force and effect
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as it would have had if that person had been
so authorized.
(2) In addition, the relevant person is deemed to
have been validly authorized under section
219(2) or (4) (as the case requires) during the
5
relevant period.
(3) In sub-sections (1) and (2)--
"relevant period" means the period
beginning on 1 July 1989 and ending
on 31 December 1997;
10
Note 1: 1 July 1989 is the day on which
section 40 of, and items 18 and 19 of
Schedule 1 to, the Transport
(Amendment) Act 1989 (No. 44/1989)
15 came into operation. Those provisions
substituted references to the PTC.
Note 2: 31 December 1997 is the day before the
day on which section 10 of the
Transport (Rail Safety) Act 1996
20 (No. 28/1996) came into operation.
That section substituted a new
section 219.
"relevant person" means an officer of the
PTC whom the PTC purportedly
authorized under section 219(2) or (4)
25
to do the thing provided for under the
relevant sub-section during the relevant
period.
(4) Anything done or that is purported to have
been done by a relevant person under section
30
219(7) during the relevant period that would
have been validly or lawfully done had that
relevant person been validly authorised
under that sub-section by the PTC to do the
thing provided for by that sub-section, has,
35
and is deemed always to have had, the same
force and effect as it would have had if that
person had been so authorised.
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(5) In addition, the relevant person is deemed to
have been validly authorized under section
219(7) during the relevant period.
(6) In sub-sections (4) and (5)--
"relevant period" means the period
5
beginning on 1 January 1998 and
ending on 29 June 2003;
Note 1: 1 January 1998 is the day on which
section 10 of the Transport (Rail
10 Safety) Act 1996 (No. 28/1996) came
into operation. That section substituted
a new section 219.
Note 2: 29 June 2003 is the day before the day
on which section 19(2) of the Transport
15 (Further Amendment) Act 2001 (No.
54/2001) came into operation. That
section repealed section 219(7).
"relevant person" means an officer of the
PTC whom the PTC purportedly
authorised under section 219(7) to do
20
the thing provided for under that sub-
section during the relevant period.
246CK. Officers of the PTC authorised for the
purposes of section 219A
(1) Anything done or that is purported to have
25
been done by a relevant person under section
219A during the relevant period that would
have been validly or lawfully done had that
relevant person been validly authorised
under section 219A(2) by the PTC to do the
30
thing provided for by that section, has, and is
deemed always to have had, the same force
and effect as it would have had if that person
had been so authorised.
(2) In addition, the relevant person is deemed to
35
have been validly authorized under section
219A(2) during the relevant period.
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(3) In sub-sections (1) and (2)--
"relevant period" means the period
beginning on 1 January 1998 and
ending on 29 June 2003;
5 Note 1: 1 January 1998 is the day on which
section 10 of the Transport (Rail
Safety) Act 1996 (No. 28/1996) came
into operation. That section substituted
a new section 219A.
10 Note 2: 30 May 2000 is the day before the day
on which section 22 of the Transport
(Amendment) Act 2000 (No. 30/2000)
came into operation. That section
repealed section 219A.
"relevant person" means an officer of the
15
PTC whom the PTC purportedly
authorised under section 219A(2) to do
the thing provided for under that sub-
section during the relevant period.
246CL. Relevant employees and authorised
20
officers for the purposes of section 219
(1) Anything done or that is purported to have
been done by a relevant person under
section 219 during the relevant period that
would have been validly or lawfully done
25
had that relevant person been validly
authorised as a relevant employee by the
Secretary under section 219(1A)(b) for the
purposes of section 219 has, and is deemed
always to have had, the same force and effect
30
as it would have had if that relevant person
had been so authorised.
(2) In addition, the relevant person is deemed to
have been validly authorised as an authorised
officer under section 219(1A)(b) for the
35
purposes of section 219 during the relevant
period.
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(3) In sub-sections (1) and (2)--
"relevant period" means the period
beginning on 23 December 1999 and
ending on 3 December 2003;
5 Note 1: 23 December 1999 is the day on which
section 10 of the Rail Corporations
and Transport Acts (Miscellaneous
Amendments) Act 1999 (No. 63/1999)
came into operation. That section
10 inserted section 219(1A).
Note 2: 2 December 2003 is the day before the
day on which section 17(5) of the
Transport (Rights and
Responsibilities) Act 2003
15 (No. 101/2003) came into operation.
That section repealed section 219(1A).
"relevant person" means a person whom
the Secretary purportedly authorised to
be a relevant employee under section
219(1A)(b) during the relevant period.
20
(4) Anything done or that is purported to have
been done by a relevant person under
section 219 during the relevant period that
would have been validly or lawfully done
had--
25
(a) that relevant person been validly
authorised to act as an authorised
officer by the Secretary under section
221A or 221AB (as the case requires)
for the purposes of Part VII; and
30
(b) in the case of a purported authorisation
under section 221AB, regulations been
in force under this Act during the
relevant period prescribing--
(i) a period for the purposes of each
35
of sections 221H(4), 228F(1) and
228J(4); and
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(ii) a number of days for the purposes
of each of sections 221G(3) and
228I(4); and
(iii) a late renewal application fee for
the purposes of section 228I(5)--
5
has, and is deemed always to have had, the
same force and effect as it would have had if
that relevant person had been so authorised,
and in the case of a purported authorisation
under section 221AB, such regulations had
10
been in force.
(5) In addition, the relevant person is deemed to
be, and have always been, validly authorised
to act as an authorised officer under section
221A or 221AB (as the case requires) for the
15
purposes of Part VII.
(6) In sub-sections (4) and (5)--
"relevant period" means the period
beginning on 3 December 2003 and
ending on the day section 15 of the
20
Transport Legislation (Further
Amendment) Act 2005 comes into
operation;
Note: 3 December 2003 is the day on which
25 section 15(1) of the Transport (Rights
and Responsibilities) Act 2003
(No. 101/2003) came into operation.
That section inserted a new definition of
"authorised officer" into section 208.
"relevant person" means a person whom
30
the Secretary purportedly authorised to,
during the relevant period, act as an
authorised officer under section 221A
or 221AB (as the case requires) for the
purposes of Part VII.
35
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246CM. Authorised persons for the purposes of
section 219AA
(1) Anything done or that is purported to have
been done by a relevant person under
section 219AA during the relevant period
5
that would have been validly or lawfully
done had--
(a) that relevant person been--
(i) validly authorised as an authorised
person by the Secretary under
10
section 219AA(1) for the purposes
of section 219AA; and
(ii) given an authorisation by the
Secretary under Division 4AA of
Part VII for the purposes of
15
section 219AA; and
(b) regulations been in force under this Act
during the relevant period
prescribing--
(i) a period for the purposes of each
20
of sections 221C(1), 221H(4),
228F(1) and 228J(4); and
(ii) a number of days for the purposes
of each of sections 221G(3) and
228I(4); and
25
(iii) a late renewal application fee for
the purposes of section 228I(5)--
has, and is deemed always to have had, the
same force and effect as it would have had
if--
30
(c) that relevant person had been so
authorised and given such an
authorisation; and
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(d) such regulations had been in force; and
(e) the authorisation had been given for a
period that did not exceed the period
prescribed under section 221C(1).
(2) In addition, the relevant person is deemed to
5
have been validly authorised as an authorised
person under section 219AA(1) for the
purposes of section 219AA during the
relevant period.
(3) In this section--
10
"relevant period" means the period
beginning on 24 August 1999 and
ending on 2 December 2003;
Note 1: 24 August 1999 is the day on which
15 section 32 of the Rail Corporations
(Further Amendment) Act 1998
(No. 98/1998) came into operation.
That section inserted section 219AA.
Note 2: 2 December 2003 is the day before the
20 day section 17(8) of the Transport
(Rights and Responsibilities) Act 2003
(No. 101/2003) came into operation.
That section repealed section 219AA.
"relevant person" means a person--
(a) whom the Secretary purportedly
25
authorised to be an authorised
person under section 219AA(1)
for the purposes of section 219AA
during the relevant period; and
(b) to whom the Secretary purportedly
30
gave an authorisation under
Division 4AA of Part VII for the
purposes of section 219AA that
existed during the relevant period.
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246CN. Authorised persons, authorised officers
and relevant employees for the purposes
of section 220
(1) Anything done or that is purported to have
been done by a relevant person under
5
section 220 during the relevant period that
would have been validly or lawfully done
had--
(a) that relevant person been--
(i) validly authorised, as the case
10
requires, as an authorised person
or relevant employee by the
Secretary under section 220(1) for
the purposes of section 220; and
(ii) given an authorisation by the
15
Secretary under Division 4AA of
Part VII for the purposes of
section 220; and
(b) regulations been in force under this Act
during the relevant period
20
prescribing--
(i) a period for the purposes of each
of sections 221C(1), 221H(4),
228F(1) and 228J(4); and
(ii) a number of days for the purposes
25
of each of sections 221G(3) and
228I(4); and
(iii) a late renewal application fee for
the purposes of section 228I(5)--
has, and is deemed always to have had, the
30
same force and effect as it would have had
if--
(c) that relevant person had been so
authorised and given such an
authorisation; and
35
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(d) such regulations had been in force; and
(e) the authorisation had been given for a
period that did not exceed the period
prescribed under section 221C(1).
(2) In addition, the relevant person is deemed to
5
have been validly authorised as an authorised
person or relevant employee (as the case
requires) under section 220(1) for the
purposes of section 220 during the relevant
period.
10
(3) In sub-sections (1) and (2)--
"relevant period" means the period
beginning on 24 August 1999 and
ending on 2 December 2003;
15 Note 1: 24 August 1999 is the day on which
section 24(1) of the Rail Corporations
and Transport Acts (Amendment) Act
1999 (No. 45/1999) came into operation.
That section substituted a new
20 section 220(1).
Note 2: 2 December 2003 is the day before the
day section 17(9) of the Transport
(Rights and Responsibilities) Act 2003
(No. 101/2003) came into operation.
25 That section repealed section 220(1).
"relevant person" means a person--
(a) whom the Secretary purportedly
authorised to be, as the case
requires, an authorised person or
relevant employee under section
30
220(1) for the purposes of
section 220 during the relevant
period; and
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(b) to whom the Secretary purportedly
gave an authorisation under
Division 4AA of Part VII for the
purposes of section 220 that
existed during the relevant period.
5
(4) Anything done or that is purported to have
been done by a relevant person under
section 220 during the relevant period that
would have been validly or lawfully done
had--
10
(a) that relevant person been validly
authorised to act as an authorised
officer by the Secretary under section
221A or 221AB (as the case requires)
for the purposes of Part VII; and
15
(b) in the case of a purported authorisation
under section 221AB, regulations been
in force under this Act during the
relevant period prescribing--
(i) a period for the purposes of each
20
of sections 221H(4), 228F(1) and
228J(4); and
(ii) a number of days for the purposes
of each of sections 221G(3) and
228I(4); and
25
(iii) a late renewal application fee for
the purposes of section 228I(5)--
has, and is deemed always to have had, the
same force and effect as it would have had if
that relevant person had been so authorised,
30
and in the case of a purported authorisation
under section 221AB, such regulations had
been in force.
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(5) In addition, the relevant person is deemed to
be, and have always been, validly authorised
to act as an authorised officer under section
221A or 221AB (as the case requires) for the
purposes of Part VII.
5
(6) In sub-sections (4) and (5)--
"relevant period" means the period
beginning on 3 December 2003 and
ending on the day section 15 of the
Transport Legislation (Further
10
Amendment) Act 2005 comes into
operation;
Note: 3 December 2003 is the day on which
section 15(1) of the Transport (Rights
15 and Responsibilities) Act 2003
(No. 101/2003) came into operation.
That section inserted a new definition of
"authorised officer" into section 208.
"relevant person" means a person whom
the Secretary purportedly authorised to,
20
during the relevant period, act as an
authorised officer under section 221A
or 221AB (as the case requires) for the
purposes of Part VII.
246CO. Authorized persons for the purposes of
25
section 221 authorized by MTA or STA
(1) Anything done or that is purported to have
been done by a relevant person under
section 221 during the relevant period that
would have been validly or lawfully done
30
had that relevant person been validly
authorized as an authorized person by the
MTA or the STA (as the case requires) under
section 221(1)(c) has, and is deemed always
to have had, the same force and effect as it
35
would have had if that relevant person had
been so authorized.
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(2) In addition, the relevant person is deemed to
have been validly authorized as an
authorized person under section 221(1)(c)
during the relevant period.
(3) In this section--
5
"relevant period" means the period
beginning on 1 July 1983 and ending
on 30 June 1989;
Note 1: 1 July 1983 is the day on which
10 section 221 came into operation.
See section 1(2)(c).
Note 2: 30 June 1989 is the day before the day
on which section 40 of, and item 2.2 of
Schedule 1 to, the Transport
15 (Amendment) Act 1989 (No. 44/1989)
came into operation. Those provisions
substituted new references to the PTC.
"relevant person" means a person whom
the MTA or the STA purportedly
authorized to be an authorized person
20
under section 221(1)(c) during the
relevant period.
246CP. Authorized persons for the purposes of
section 221 authorized by PTC
(1) Anything done or that is purported to have
25
been done by a relevant person under
section 221 during the relevant period that
would have been validly or lawfully done
had that relevant person been validly
authorized as an authorized person by the
30
PTC under section 221(1)(c) has, and is
deemed always to have had, the same force
and effect as it would have had if that
relevant person had been so authorized.
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(2) In addition, the relevant person is deemed to
have been validly authorized as an
authorized person under section 221(1)(c)
during the relevant period.
(3) In this section--
5
"relevant period" means the period
beginning on 1 July 1989 and ending
on 30 May 2000;
Note 1: 1 July 1989 is the day on which
10 section 40 of, and item 2.2 of Schedule 1
to, the Transport (Amendment) Act
1989 (No. 44/1989) came into operation.
Those provisions substituted new
references to the PTC.
15 Note 2: 30 May 2000 is the day before the day
on which section 24 of the Transport
(Amendment) Act 2000 (No. 30/2000)
came into operation. That section
substituted section 221(1)(c).
"relevant person" means a person whom
20
the PTC purportedly authorized to be
an authorized person under section
221(1)(c) during the relevant period.
246CQ. Authorized persons for the purposes of
section 221 authorised by the Secretary
25
(1) Anything done or that is purported to have
been done by a relevant person under
section 221 during the relevant period that
would have been validly or lawfully done
had that relevant person been validly
30
authorised as an authorized person by the
Secretary under section 221(1)(c) has, and is
deemed always to have had, the same force
and effect as it would have had if that
relevant person had been so authorised.
35
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(2) In addition, the relevant person is deemed to
have been validly authorised as an
authorized person under section 221(1)(c)
during the relevant period.
(3) In this section--
5
"relevant period" means the period
beginning on 23 November 1995 and
ending on 23 August 1999;
Note 1: 23 November 1995 is the day on which
10 section 47(1) of the Public Transport
Competition Act 1995 (No. 68/1995)
came into operation. Section 47(1)
amended section 221(1)(c) to empower
the Secretary to authorise persons as
15 authorized persons for the purposes of
section 221.
Note 2: 23 August 1999 is the day before the day
on which section 37 of the Rail
Corporations (Amendment) Act 1997
20 (No. 104/1997) and section 27 of the
Rail Corporations and Transport Acts
(Amendment) Act 1999 (No. 45/1999)
came into operation. Those sections
inserted Divisions 4A and 4AA into
25 Part VII.
"relevant person" means a person whom
the Secretary purportedly authorised to
be an authorized person under section
221(1)(c) during the relevant period.
(4) Anything done or that is purported to have
30
been done by a relevant person under
section 221 during the relevant period that
would have been validly or lawfully done
had--
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(a) that relevant person been--
(i) validly authorised as an authorized
person by the Secretary under
section 221(1)(c) for the purposes
of section 221; and
5
(ii) given an authorisation by the
Secretary under Division 4AA of
Part VII for the purposes of
section 221; and
(b) regulations been in force under this Act
10
during the relevant period
prescribing--
(i) a period for the purposes of each
of sections 221C(1), 221H(4),
228F(1) and 228J(4); and
15
(ii) a number of days for the purposes
of each sections 221G(3) and
228I(4); and
(iii) a late renewal application fee for
the purposes of section 228I(5)--
20
has, and is deemed always to have had, the
same force and effect as it would have had
if--
(c) that relevant person had been so
authorised and given such an
25
authorisation; and
(d) such regulations had been in force; and
(e) the authorisation had been given for a
period that did not exceed the period
prescribed under section 221C(1).
30
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(5) In addition, the relevant person is deemed to
have been validly authorised as an
authorized person under section 221(1)(c) for
the purposes of section 221 during the
relevant period.
5
(6) In sub-sections (4) and (5)--
"relevant period" means the period
beginning on 24 August 1999 and
ending on 2 December 2003;
10 Note 1: 24 August 1999 is the day on which
section 37 of the Rail Corporations
(Amendment) Act 1997 (No. 104/1997)
and section 27 of the Rail Corporations
and Transport Acts (Amendment) Act
15 1999 (No. 45/1999) came into operation.
Those sections inserted Divisions 4A
and 4AA into Part VII.
Note 2: 2 December 2003 is the day before the
day section 17(10) of the Transport
20 (Rights and Responsibilities) Act 2003
(No. 101/2003) came into operation.
That section repealed section 221(1).
"relevant person" means a person--
(a) whom the Secretary purportedly
authorised to be an authorized
25
person under section 221(1)(c)
during the relevant period; and
(b) to whom the Secretary purportedly
gave an authorisation under
Division 4AA of Part VII for the
30
purposes of section 221 that
existed during the relevant period.
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(7) Anything done or that is purported to have
been done by a relevant person under
section 221 during the relevant period that
would have been validly or lawfully done
had--
5
(a) that relevant person been validly
authorised to act as an authorised
officer by the Secretary under section
221A or 221AB (as the case requires)
for the purposes of Part VII; and
10
(b) in the case of a purported authorisation
under section 221AB, regulations been
in force under this Act during the
relevant period prescribing--
(i) a period for the purposes of each
15
of sections 221H(4), 228F(1) and
228J(4); and
(ii) a number of days for the purposes
of each of sections 221G(3) and
228I(4); and
20
(iii) a late renewal application fee for
the purposes of section 228I(5)--
has, and is deemed always to have had, the
same force and effect as it would have had if
that relevant person had been so authorised,
25
and in the case of a purported authorisation
under section 221AB, such regulations had
been in force.
(8) In addition, the relevant person is deemed to
be, and have always been, validly authorised
30
to act as an authorised officer under section
221A or 221AB (as the case requires) for the
purposes of Part VII.
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(9) In sub-sections (7) and (8)--
"relevant period" means the period
beginning on 3 December 2003 and
ending on the day section 15 of the
Transport Legislation (Further
5
Amendment) Act 2005 comes into
operation;
Note: 3 December 2003 is the day on which
section 15(1) of the Transport (Rights
10 and Responsibilities) Act 2003
(No. 101/2003) came into operation.
That section inserted a new definition of
"authorised officer" into section 208.
"relevant person" means a person whom
the Secretary purportedly authorised to,
15
during the relevant period, act as an
authorised officer under section 221A
or 221AB (as the case requires) for the
purposes of Part VII.
246CR. Authorised officers for the purposes of
20
section 221AA
(1) Anything done or that is purported to have
been done by a relevant person under section
221AA during the relevant period that would
have been validly or lawfully done had--
25
(a) that relevant person been validly
authorised to act as an authorised
officer by the Secretary under section
221A or 221AB (as the case requires)
for the purposes of Part VII; and
30
(b) in the case of a purported authorisation
under section 221AB, regulations been
in force under this Act during the
relevant period prescribing--
(i) a period for the purposes of each
35
of sections 221H(4), 228F(1) and
228J(4); and
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(ii) a number of days for the purposes
of each of sections 221G(3) and
228I(4); and
(iii) a late renewal application fee for
the purposes of section 228I(5)--
5
has, and is deemed always to have had, the
same force and effect as it would have had if
that relevant person had been so authorised,
and in the case of a purported authorisation
under section 221AB, such regulations had
10
been in force.
(2) In addition, the relevant person is deemed to
be, and have always been, validly authorised
to act as an authorised officer under section
221A or 221AB (as the case requires) for the
15
purposes of Part VII.
(3) In this section--
"relevant period" means the period
beginning on 3 December 2003 and
ending on the day section 15 of the
20
Transport Legislation (Further
Amendment) Act 2005 comes into
operation;
Note: 3 December 2003 is the day section
25 15(1) of the Transport (Rights and
Responsibilities) Act 2003
(No. 101/2003) came into operation.
That section inserted a new definition of
"authorised officer" into section 208.
"relevant person" means a person whom
30
the Secretary purportedly authorised to,
during the relevant period, act as an
authorised officer under section 221A
or 221AB (as the case requires) for the
purposes of Part VII.
35
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246CS. Examples of things validated
Without limiting sections 246CB to 246CR,
those sections apply with respect to the
following--
(a) the issue and service of ticket and
5
transport infringement notices under
section 212 during the period beginning
on 24 August 1999 and ending on the
day section 15 of the Transport
Legislation (Further Amendment)
10
Act 2005 comes into operation;
(b) the request of a person to state his or
her name and address and the request of
a person to provide evidence of the
correctness of that name or address
15
under section 218B as in force from
time to time;
(c) the arrest without a warrant of a person
under section 219 as in force from time
to time;
20
(d) the detention of a person under section
219AA while that section was in force;
(e) the summary removal of persons and
their property (if any), under section
220 (as in force from time to time),
25
from--
(i) any vehicle owned or operated by
or on behalf of a passenger
transport company; or
(ii) any premises or property of a
30
passenger transport company;
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(f) the request, under section 221 (as in
force from time to time), of a person
who has made a journey in a carriage or
was on land or premises for which a
ticket was required to produce a ticket
5
that is valid for that journey or entry;
(g) the request, under section 221 (as in
force from time to time), of a person
who has made a journey in a carriage or
was on land or premises for which a
10
ticket was required to produce a ticket
that is valid for that journey or entry;
(h) the request, under section 221AA (as in
force from time to time), of a person
who has just left a carriage, or land or
15
premises for entry to which a ticket is
required, to produce for inspection the
ticket that the person used for the
journey, or to be on the land or
premises.
20
246CT. Accreditations under Division 4A of
Part VII
(1) An accreditation (other than a temporary
accreditation) that is given or purportedly
given by the Secretary under section 228C
25
during the relevant period that would have
been validly and lawfully given had
regulations been in force under this Act
prescribing a period for the purposes of
section 228F(1) has, and is deemed always to
30
have had, the same force and effect as it
would have had if such regulations had been
in force.
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(2) An accreditation renewed or purportedly
renewed by the Secretary under section 228J
during the relevant period that would have
been validly and lawfully renewed had
regulations been in force under this Act
5
prescribing--
(a) a period for the purposes of section
228J(4); and
(b) a number of days for the purposes of
section 228I(4); and
10
(c) a late renewal application fee for the
purposes of section 228I(5)--
has, and is deemed always to have had, the
same force and effect as it would have had if
such regulations had been in force.
15
(3) In this section--
"relevant period" means the period
beginning on 24 August 1999 and
ending on the day section 15 of the
Transport Legislation (Further
20
Amendment) Act 2005 comes into
operation.
Note : 24 August 1999 is the day on which
section 37 of the Rail Corporations
25 (Amendment) Act 1997 (No. 104/1997)
came into operation. That section
inserted Division 4A into Part VII.
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246CU. Prosecutorial authorisations by the MTA
or STA
(1) Anything done or that is purported to have
been done by a relevant person under section
229(1) or 229(1A) (as the case requires)
5
during the relevant period that would have
been validly or lawfully done had that
relevant person been validly authorized by
the MTA or STA, under section 229(1) has,
and is deemed always to have had, the same
10
force and effect as it would have had if that
relevant person had been so authorized.
(2) In addition, the relevant person is deemed to
have been validly authorized to do the thing
under section 229(1) or 229(1A) during the
15
relevant period.
(3) In this section--
"relevant period" means--
(a) in relation to anything done or that
is purported to have been done by
20
a relevant person under section
229(1), the period beginning on
1 July 1983 and ending on 30 June
1989;
25 Note 1: 1 July 1983 is the day on which
section 229 came into operation.
See section 1(2)(c).
Note 2: 30 June 1989 is the day before the
day on which section 40 of, and
30 item 2.1 of Schedule 1 to, the
Transport (Amendment) Act
1989 (No. 44/1989) came into
operation. Those provisions
substituted new references to the
35 PTC.
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(b) in relation to anything done or that
is purported to have been done by
a relevant person under section
229(1A), the period beginning on
12 January 1987 and ending on
5
30 June 1989;
Note 1: 12 January 1987 is the day on
which section 41(b) of the
Transport (Amendment) Act
10 1986 (No. 100/1986) came into
operation. That section inserted
section 229(1A).
Note 2: 30 June 1989 is the day before the
day on which section 40 of, and
15 item 2.1 of Schedule 1 to, the
Transport (Amendment) Act
1989 (No. 44/1989) came into
operation. Those provisions
substituted new references to the
20 PTC.
"relevant person" means--
(a) in relation to anything done or that
is purported to have been done
under section 229(1), a person
whom the MTA or STA
25
purportedly authorized under that
section to do the thing under that
sub-section during the relevant
period;
(b) in relation to anything done or that
30
is purported to have been done
under section 229(1A), an officer
of the MTA or STA whom the
MTA or STA (as the case
requires) purportedly authorized
35
under 229(1) to do the thing under
section 229(1A) during the
relevant period.
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246CV. Prosecutorial authorisations by the PTC
(1) Anything done or that is purported to have
been done by a relevant person under a
relevant prosecutorial provision during the
relevant period that would have been validly
5
or lawfully done had that relevant person
been validly authorised by the PTC, under
that provision, to do that thing has, and is
deemed always to have had, the same force
and effect as it would have had if that
10
relevant person had been so authorised.
(2) In addition, the relevant person is deemed to
have been validly authorised to do the thing
under the relevant prosecutorial provision
during the relevant period.
15
(3) In this section--
"relevant period" means--
(a) in relation to anything done or that
is purported to have been done
under section 229(1), the period
20
beginning on 1 July 1989 and
ending on 30 May 2000;
Note 1: 1 July 1989 is the day on which
section 40 of, and item 2.1 of
25 Schedule 1 to, the Transport
(Amendment) Act 1989
(No. 44/1989) came into
operation. Those provisions
substituted new references to the
30 PTC.
Note 2: 30 May 2000 is the day before the
day on which section 28(1) of the
Transport (Amendment) Act
2000 (No. 30/2000) came into
35 operation. That section removed
references to the PTC.
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(b) in relation to anything done or that
is purported to have been done
under section 229(1A), the period
beginning on 1 July 1989 and
ending on 30 May 2000;
5
Note 1: 1 July 1989 is the day on which
section 40 of, and item 2.1 of
Schedule 1 to, the Transport
(Amendment) Act 1989
10 (No. 44/1989) came into
operation. That section
substituted new references to the
PTC.
Note 2: 30 May 2000 is the day before the
15 day on which section 28(2) of the
Transport (Amendment) Act
2000 (No. 30/2000) came into
operation. That section removed
references to the PTC.
(c) in relation to anything done or that
20
is purported to have been done
under section 229(1B)(a), the
period beginning on 15 June 1994
and ending on 30 May 2000;
25 Note 1: 15 June 1994 is the day on which
section 26(1) of the Transport
(Further Amendment) Act 1994
(No. 60/1994) came into
operation. That section inserted
30 section 229(1B).
Note 2: 30 May 2000 is the day before the
day on which section 28(3) of the
Transport (Amendment) Act
2000 (No. 30/2000) came into
35 operation. That section removed
references to the PTC.
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"relevant person" means--
(a) in relation to anything done or that
is purported to have been done
under section 229(1), a person
whom the PTC purportedly
5
authorised under that sub-section
to do the thing under that sub-
section during the relevant period;
(b) in relation to anything done or that
is purported to have been done
10
under section 229(1A) during the
period beginning on 1 July 1989
and ending on 14 June 1994
within the relevant period, a
person whom the PTC purportedly
15
authorised under section 229 to do
the thing under section 229(1A)
during that period;
Note 1: 1 July 1989 is the day on which
20 section 40 of, and item 2.1 of
Schedule 1 to, the Transport
(Amendment) Act 1989
(No. 44/1989) came into
operation. That section
25 substituted new references to the
PTC.
Note 2: 14 June 1994 is the day before the
day on which section 26(1) of the
Transport (Further
30 Amendment) Act 1994
(No. 60/1994) came into
operation. That section
substituted a new section
229(1A).
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(c) in relation to anything done or that
is purported to have been done
under section 229(1A) during the
period beginning on 15 June 1994
and ending on 30 May 2000
5
within the relevant period, a
person whom the PTC purportedly
authorised under that sub-section
to do the thing under that sub-
section during that period;
10
Note 1: 15 June 1994 is the day on which
section 26(1) of the Transport
(Further Amendment) Act 1994
(No. 60/1994) came into
15 operation. That section
substituted a new section
229(1A).
Note 2: 30 May 2000 is the day before the
day on which section 28(3) of the
20 Transport (Amendment) Act
2000 (No. 30/2000) came into
operation. That section removed
references to the PTC.
(d) in relation to anything done or that
is purported to have been done
25
under section 229(1B), a person
whom the PTC purportedly
authorised under that sub-section
to do the thing under that section;
"relevant prosecutorial provision" means
30
section 229(1), 229(1A) or 229(1B)(a)
as in force from time to time during the
relevant period.
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246CW. Prosecutorial authorisations by the
Secretary
(1) Anything done or that is purported to have
been done by a relevant person under a
relevant prosecutorial provision during the
5
relevant period that would have been validly
or lawfully done had that relevant person
been validly authorised by the Secretary,
under that provision, to do that thing has, and
is deemed always to have had, the same
10
force and effect as it would have had if that
relevant person had been so authorised.
(2) In addition, the relevant person is deemed to
be, and always have been, validly authorised
to do the thing under the relevant
15
prosecutorial provision.
(3) In this section--
"relevant period" means--
(a) in relation to anything done or that
is purported to have been done
20
under section 229(1), the period
beginning on 15 June 1994 and
ending on the day section 15 of
the Transport Legislation
(Further Amendment) Act 2005
25
comes into operation;
Note: 15 June 1994 is the day on which
section 26(1) of the Transport
(Further Amendment) Act 1994
30 (No. 60/1994) came into
operation. That section
substituted section 229(1) and
empowered the Secretary to
authorise persons.
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(b) in relation to anything done or that
is purported to have been done
under section 229(1AA), the
period beginning on 24 August
1999 and ending on the day
5
section 15 of the Transport
Legislation (Further
Amendment) Act 2005 comes
into operation;
10 Note: 24 August 1999 is the day on
which section 36(1) of the Rail
Corporations (Further
Amendment) Act 1998
(No. 981998) came into operation.
15 That section inserted section
229(1AA).
(c) in relation to anything done or that
is purported to have been done
under section 229(1A), the period
beginning on 24 August 1999 and
20
ending on the day section 15 of
the Transport Legislation
(Further Amendment) Act 2005
comes into operation;
25 Note: 24 August 1999 is the day on
which section 30 of the Rail
Corporations and Transport
Acts (Amendment) Act 1999
(No. 45/1999) came into
30 operation. That section
substituted section 229(1A) and
empowered the Secretary to
authorise persons.
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(d) in relation to anything done or that
is purported to have been done
under section 229(1B)(a), the
period beginning on 15 June 1994
and ending on the day section 15
5
of the Transport Legislation
(Further Amendment) Act 2005
comes into operation;
Note: 15 June 1994 is the day on which
10 section 26(1) of the Transport
(Further Amendment) Act 1994
(No. 60/1994) came into
operation. That section inserted
section 229(1B).
"relevant prosecutorial provision" means
15
section 229(1), 229(1AA), 229(1A) or
229(1B) as in force from time to time
during the relevant period;
"relevant person" means--
(a) in relation to anything done or that
20
is purported to have been done
under section 229(1), a person
whom the Secretary purportedly
authorised under that sub-section
to do the thing under that sub-
25
section during the relevant period;
(b) in relation to anything done or that
is purported to have been done
under section 229(1AA), a person
who is employed or engaged by a
30
passenger transport company or a
bus company whom the Secretary
purportedly authorised under that
sub-section to do the thing under
that sub-section during the
35
relevant period;
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(c) in relation to anything done or that
is purported to have been done
under section 229(1A), a person
whom the Secretary purportedly
authorised under that sub-section
5
to do the thing under that sub-
section during the relevant period;
(d) in relation to anything done or that
is purported to have been done
under section 229(1B)(a), a person
10
whom the Secretary purportedly
authorised under that section to do
the thing under that sub-section
during the relevant period.
246CX. Only things done or purported to have
15
been done under a purported
authorisation and appointment validated
(1) Despite anything to the contrary in this
Division, sections 246CB to 246CR and
sections 246CU to 246CW are deemed to
20
only validate things done or purported to
have been done by a person under a
purported authorisation or appointment--
(a) during the period for which that person
was purportedly authorised or
25
appointed under the purported
authorisation or appointment; and
(b) that the purported authorisation or
appointment purported to authorise to
be done.
30
(2) In this section, "purported authorisation
or appointment" means an authorisation or
appointment referred to in sections 246CB to
246CR and sections 246CU to 246CW.
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246CY. Evidence
(1) Every relevant person who, during the
relevant period, was purported to be
authorised under section 230(4) (as in force
from time to time) by a relevant authority to
5
sign a notice, statement, certificate or other
document, is deemed to be, and always to
have been, validly authorised by the relevant
authority to sign that notice, statement,
certificate or other document.
10
(2) In this section--
"relevant authority" means--
(a) in relation to an officer of the
MTA or STA, the Managing
Director of that Authority;
15
(b) in relation to an officer of the
PTC, the Chief Executive of the
PTC;
(c) in the case of an officer of the
Department, the Secretary;
20
(d) in the case of a person who is
employed or engaged by a
passenger transport company, a
bus company, or a rail
corporation, the chief executive of
25
the passenger transport company,
bus company, or rail corporation
(as the case requires);
"relevant period" means the period
beginning on 1 July 1983 and ending
30
on the day section 15 of the Transport
Legislation (Further Amendment)
Act 2005 comes into operation;
Note : 1 July 1983 is the day on which
35 section 230 came into operation.
See section 1(2)(c).
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"relevant person" means--
(a) an officer of the MTA or STA;
(b) an officer of the PTC;
(c) an officer of the Department;
(d) a person who is employed or
5
engaged by a passenger transport
company, a bus company, or a rail
corporation.
246CZ. Delegations generally in relation to
authorisations
10
(1) Every exercise or purported exercise of a
power of authorisation under an instrument
of delegation executed under a relevant
delegation provision during the period
beginning on 1 July 1983 and ending on the
15
day section 15 of the Transport Legislation
(Further Amendment) Act 2005 comes into
operation is deemed to have, and always to
have had, the same force and effect as it
would have had if the exercise or purported
20
exercise of that power had been validly and
lawfully exercised by the relevant authority.
(2) In sub-section (1)--
"power of authorisation" means a power
conferred under a relevant authorisation
25
provision to, as the case requires--
(a) appoint or authorise a person or an
officer of the MTA, STA or PTC
to be an authorised officer or
authorized person under that
30
provision; or
(b) give an authorisation under that
provision;
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"relevant authorisation provision"
means--
(a) section 211(1), 212(2), 218(1),
218B(1), 219(1A), (2), (4) or (7),
219A(2), 219AA(1), 220(1) or
5
221(1)(c);
(b) 221A, 221AB, 221C(1) or 221H;
"relevant authority" means--
(a) in the case of section 211(1) (as in
force during the relevant periods
10
as defined in sections 246CC(6)
and 246CD(3)), the Chief
Executive of the PTC, the PTC or
the Secretary;
(b) in the case of section 212(2) (as in
15
force during the relevant periods
as defined in sections 246CB(3)
and 246CC(3)), the Managing
Director of the MTA or STA or
the Chief Executive of the PTC;
20
(c) in the case of section 218(1) (as in
force during the relevant periods
as defined in sections 246CE(3)
and 246CF(3)), the Managing
Director of the MTA, the
25
Managing Director of the STA,
the MTA, STA or the PTC;
(d) in the case of section 218B(1) (as
in force during the relevant
periods as defined in section
30
246CG(3) and 246CH(3)), the
PTC or the Secretary;
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(e) in the case of section 219(2), (4)
or (7) (as in force during the
relevant periods as defined in
section 246CI(3), 246CJ(3) and
(6)), the MTA, STA or PTC;
5
(f) in the case of section 219A(2) (as
in force during the relevant period
as defined in section 246CK(3)),
the PTC;
(g) in the case of section 219(1A) (as
10
in force during the relevant period
as defined in section 246CL(3)),
the Secretary;
(h) in the case of section 219AA(1)
(as in force during the relevant
15
period as defined in section
246CM(3)), the Secretary;
(i) in the case of section 220(1) (as in
force during the relevant period as
defined in section 246CN(3)), the
20
Secretary;
(j) in the case of section 221(1)(c) (as
in force during the relevant
periods as defined in sections
246CO(3), 246CP(3) and
25
246CQ(3) and (6)), the MTA,
STA, PTC or the Secretary;
(k) in the case of sections 221A,
221AB, 221C(1) and 221H (as in
force from time to time), the
30
Secretary;
"relevant delegation provision" means
section 6B or section 32(1A), (2), (3)
or (3A) (as in force from time to time
during the relevant period).
35
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246CZA. Delegations generally in relation to
accreditations
(1) Every exercise or purported exercise of a
power of accreditation under an instrument
of delegation executed under a relevant
5
delegation provision during the period
beginning on 24 August 1999 and ending on
the day section 15 of the Transport
Legislation (Further Amendment) Act
2005 comes into operation is deemed to
10
have, and always to have had, the same force
and effect as it would have had if the
exercise or purported exercise of that power
had been validly and lawfully exercised by
the Secretary.
15
(2) In sub-section (1)--
"power of accreditation" means a power
conferred under a relevant accreditation
provision;
"relevant accreditation provision" means
20
a provision of Division 4A of Part VII
which confers a function or power on
the Secretary;
"relevant delegation provision" means
section 6B or 32(1A).
25
246CZB. Incorrect delegations purportedly under
section 6B
(1) Every instrument of delegation executed by
the Secretary under section 6B during the
relevant period delegating or purportedly
30
delegating the Secretary's--
(a) power of authorisation under a relevant
authorisation provision; or
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(b) power of accreditation under a relevant
accreditation provision--
that would have been a valid and lawful
instrument had that instrument been executed
under section 32(1A) has and is deemed
5
always to have had the same force and effect
as it would have had if that instrument had
been validly and lawfully executed under
section 32(1A).
(2) In this section--
10
"relevant accreditation provision" means
a provision of Division 4A of Part VII
which confers a function or power on
the Secretary;
"relevant authorisation provision" means
15
any of the following provisions as in
force during the relevant period--
(a) section 211(1), 218(1),
219(1A)(b), 219(2), (4), (7),
219A(2), 219AA(1), 220(1),
20
221(1)(c) or 221C(1);
(b) section 221A, 221AB or 221H;
"relevant period" means the period
beginning on 1 September 1994 and
ending on the day section 15 of the
25
Transport Legislation (Further
Amendment) Act 2005 comes into
operation.
Note: 1 September 1994 is the day on which
30 section 6 of the Transport (Further
Amendment) Act 1994 (No. 60/1994)
came into operation. That section
inserted section 6B.
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246CZC. No proceedings may be brought
(1) Proceedings (whether criminal or civil) and
including proceedings--
(a) seeking damages or compensation; or
(b) seeking the grant of any relief or
5
remedy in the nature of certiorari,
prohibition, mandamus or quo
warranto, or the grant of a declaration
of right or an injunction; or
(c) seeking a writ of habeas corpus; or
10
(d) seeking any order under the
Administrative Law Act 1978--
may not be brought in respect of any matter
or thing that, by reason of the operation of
sections 246CA to 246CZB, is deemed to be
15
valid or lawful or to have been validly or
lawfully done.
(2) Despite sub-section (1), a criminal
proceeding may be brought that relies on a
matter or thing that, by reason of the
20
operation of sections 246CA to 246CZB, is
deemed to be valid or lawful or to have been
validly or lawfully done.
246CZD. Preservation of rights only in certain
proceedings
25
(1) Subject to sub-section (2), this Division
affects the rights of parties in any proceeding
(whether criminal or civil) commenced, and
not finally disposed of, before the day on
which section 15 of the Transport
30
Legislation (Further Amendment) Act
2005 comes into operation.
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(2) Nothing in this Division is to be taken to--
(a) affect the rights of the parties in the
proceeding known as Arachichi v Clark
heard and determined in the
Magistrates' Court at Melbourne on
5
14 February 2005; or
(b) the rights of the parties in the
proceeding known as Clark v National
Express Group Australia (Swanston
Trams) Pty Ltd (ABN 25 087 494 997)
10
(CI 03 70091 of 2003) in the County
Court.'.
16. New section 255G inserted
After section 255F of the Transport Act 1983
insert--
15
"255G. Supreme Court--limitation of jurisdiction
It is the intention of section 246CZC to alter
or vary section 85 of the Constitution Act
1975.".
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Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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