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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Government Railways (Access) Amendment
Bill 2000
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
Part 2 -- Government Railways (Access)
Act 1998 amended
3. The Act amended 3
4. Long title amended 3
5. Section 3 amended 3
6. Part 3 Division 1 replaced 3
7. Heading to Part 3 Division 2 replaced 9
8. Section 20 replaced by sections 20, 20A, 20B, and
20C 9
9. Part 3 Divisions 3 to 5 inserted 12
Part 3 -- Consequential amendments
10. Constitution Acts Amendment Act 1899 amended 16
11. Financial Administration and Audit Act 1985
amended 16
12. Parliamentary Commissioner Act 1971 amended 17
page i
112--1
Western Australia
LEGISLATIVE ASSEMBLY
Government Railways (Access)
Amendment Bill 2000
A Bill for
An Act to amend the Government Railways (Access) Act 1998 and to
amend various other Acts as a consequence.
The Parliament of Western Australia enacts as follows:
page 1
Government Railways (Access) Amendment Bill 2000
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Government Railways (Access)
Amendment Act 2000.
5 2. Commencement
(1) This Act comes into operation on the day on which the
amendments to the Government Railways (Access) Act 1998
that are made by the Rail Freight System Act 2000 come into
operation.
10 (2) Sections 6 and 8 come into operation immediately after the
commencement of the provisions of the Rail Freight System
Act 2000 that amend sections 15 and 20 of the Government
Railways (Access) Act 1998.
page 2
Government Railways (Access) Amendment Bill 2000
Government Railways (Access) Act 1998 amended Part 2
s. 3
Part 2 -- Government Railways (Access)
Act 1998 amended
3. The Act amended
The amendments in this Part are to the Government Railways
5 (Access) Act 1998*.
[* Act No. 49 of 1998.]
4. Long title amended
The long title is amended by deleting "designating an official"
and inserting instead --
10 " establishing an office ".
5. Section 3 amended
Section 3 is amended by deleting the definition of "Regulator"
and inserting instead the following definition --
"
15 "Regulator" means the Regulator appointed under
section 13 and, except in sections 13(2), 15 and 19,
includes a person acting under section 19B.
".
6. Part 3 Division 1 replaced
20 Part 3 Division 1 is repealed and the following Division is
inserted instead --
"
Division 1 -- Office of Western Australian Independent
Rail Access Regulator
25 13. Western Australian Independent Rail Access
Regulator
(1) An office of the Western Australian Independent Rail
Access Regulator is established.
page 3
Government Railways (Access) Amendment Bill 2000
Part 2 Government Railways (Access) Act 1998 amended
s. 6
(2) The Regulator is to be appointed by the Governor.
(3) The office of Regulator is not an office in the Public
Service and is not to be included in the Senior
Executive Service provided for by the Public Sector
5 Management Act 1994.
(4) The Regulator is to be the chief employee under the
Public Sector Management Act 1994 of the entity that
includes the Regulator while it is a public sector body
under that Act.
10 14. Appointment of Regulator
(1) When there is a vacancy or impending vacancy in the
office of Regulator, the Minister is required to --
(a) inform the Commissioner of that vacancy or
impending vacancy; and
15 (b) request the Commissioner to act under this
section to enable the filling of that vacancy or
impending vacancy.
(2) On receiving the request, the Commissioner is to invite
the Minister to inform the Commissioner of any
20 matters that the Minister wishes the Commissioner to
take into account in nominating a person or persons
suitable for appointment to the office of Regulator.
(3) The Commissioner is to notify the vacancy or
impending vacancy in such manner as the
25 Commissioner thinks sufficient to enable suitably
qualified persons to apply for appointment.
(4) The Commissioner is to cause applicants to be
examined, but nothing in this section requires the
examination of all applicants.
30 (5) To assist in the examination of applicants, the
Commissioner is to form a selection panel that is to be
page 4
Government Railways (Access) Amendment Bill 2000
Government Railways (Access) Act 1998 amended Part 2
s. 6
chaired by the Director General of Transport and is to
include at least 2 other persons chosen by the
Commissioner.
(6) The Commissioner may seek advice from such sources
5 as the Commissioner considers relevant and may invite
such other persons as the Commissioner thinks fit to
assist him or her to decide on the person or persons
suitable for appointment to the office of Regulator, and
any person so invited may sit on the selection panel
10 when it is examining applicants and may take part in
the deliberations of the Commissioner on the matter.
(7) If the Commissioner decides on a person or persons
suitable for appointment to the office of Regulator, the
Commissioner is to nominate that person or those
15 persons and forward to the Minister the name or names
of the person or persons nominated, together with full
particulars of the qualifications of that person or those
persons.
(8) If the Minister accepts the person, or one of the
20 persons, nominated by the Commissioner, the Minister
is to recommend to the Governor that the person
accepted be appointed.
(9) If the Minister rejects the person, or both or all of the
persons, nominated by the Commissioner, the Minister
25 may request the nomination of another person by the
Commissioner and is to deal with any further
nomination as if it were made under subsection (7).
(10) If the Commissioner does not nominate any person
suitable for appointment or a nomination or further
30 nomination by the Commissioner is rejected, the
Minister --
(a) may recommend to the Governor that --
(i) in the absence of a nomination by the
Commissioner, a named person; or
page 5
Government Railways (Access) Amendment Bill 2000
Part 2 Government Railways (Access) Act 1998 amended
s. 6
(ii) a named person other than a person
nominated by the Commissioner,
as the case requires, be appointed to the office
of Regulator; and
5 (b) is to cause notice of the making of that
recommendation, together with the reasons for
recommending the named person, to be
published in the Gazette as soon as practicable.
(11) In this section --
10 "Commissioner" means the Commissioner for Public
Sector Standards under the Public Sector
Management Act 1994;
"Director General of Transport" means the
Director General of Transport under the Transport
15 Co-ordination Act 1966.
15. Term of office
The Regulator is to be appointed for a term of office of
not less than 3 years and not more than 5 years and is,
on the expiration of a term of office, eligible for
20 reappointment.
16. Resignation
(1) The Regulator may resign from office by a signed
notice of resignation addressed to the Minister.
(2) A resignation takes effect on the day on which notice is
25 received by the Minister or on a later day specified in
the notice.
17. Suspension of Regulator
(1) If the Governor is satisfied that the Regulator --
(a) is physically or mentally incapable of
30 performing the functions of office;
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Government Railways (Access) Amendment Bill 2000
Government Railways (Access) Act 1998 amended Part 2
s. 6
(b) has shown incompetence or neglect in
performing those functions; or
(c) has been guilty of misbehaviour,
the Governor may suspend the Regulator from office.
5 (2) In subsection (1)(c) --
"misbehaviour" includes conduct that renders the
Regulator unfit to hold office as Regulator whether
or not the conduct relates to any function of the
office.
10 18. Removal of Regulator
(1) After being suspended from office under section 17 the
Regulator is entitled to be restored to office unless --
(a) a statement of the grounds of suspension is laid
before each House of Parliament during the
15 first 7 sitting days of that House following the
suspension; and
(b) each House of Parliament, during the session in
which the statement is so laid, and within
30 days of it being so laid, passes an address
20 praying for the removal of the Regulator from
office.
(2) If the Regulator --
(a) is suspended from office under section 17; and
(b) is not restored to office under subsection (1),
25 the office of Regulator becomes vacant.
19. Remuneration and conditions of office
(1) The remuneration and allowances and, subject to this
Part, the other conditions of office of the Regulator are
to be determined by the Governor.
page 7
Government Railways (Access) Amendment Bill 2000
Part 2 Government Railways (Access) Act 1998 amended
s. 6
(2) Subsection (1) has effect subject to the Salaries and
Allowances Act 1975 if that Act applies to the
Regulator.
(3) The remuneration and allowances and conditions of
5 office of the Regulator must not be varied while the
Regulator is in office so as to become less favourable
to the Regulator.
19A. Oath of office
(1) Before beginning to perform the functions of office, the
10 Regulator is to take an oath or make an affirmation that
he or she will perform those functions faithfully and
impartially.
(2) The oath or affirmation is to be administered by a
Judge.
15 19B. Acting Regulator
(1) The Governor may appoint a person to act in the office
of Regulator under this section and a person so
appointed has, while so acting, all the functions of the
Regulator.
20 (2) A person appointed under subsection (1) may act in the
office of the Regulator --
(a) if the Regulator is temporarily unable to
perform official duties;
(b) if the Regulator is suspended from office under
25 section 17;
(c) if the office of the Regulator is temporarily
vacant; or
(d) in relation to a particular matter, if the
Regulator is disqualified from acting in relation
30 to that matter.
page 8
Government Railways (Access) Amendment Bill 2000
Government Railways (Access) Act 1998 amended Part 2
s. 7.
(3) Subject to this Part, the terms and conditions of
appointment of the person appointed under
subsection (1) are to be as determined from time to
time by the Governor.
5 (4) A person acting under subsection (1) for the reason
mentioned in subsection (2)(d) may perform functions
of the Regulator in relation to the matter for which he
or she is appointed even though the Regulator is at the
same time performing other functions of the office.
10 (5) An act or omission of a person acting under
subsection (1) is not to be questioned on the ground
that the occasion for his or her acting had not arisen or
had ceased.
".
15 7. Heading to Part 3 Division 2 replaced
The heading to Part 3 Division 2 is deleted and the following
heading is inserted instead --
" Division 2 -- Functions ".
8. Section 20 replaced by sections 20, 20A, 20B, and 20C
20 Section 20 is repealed and the following sections are inserted
instead --
"
20. Functions of Regulator
(1) The Regulator --
25 (a) is responsible for monitoring and enforcing
compliance by railway owners with this Act
and the Code; and
(b) also has the functions given by particular
provisions of this Act and the Code.
page 9
Government Railways (Access) Amendment Bill 2000
Part 2 Government Railways (Access) Act 1998 amended
s. 8.
(2) The Regulator may exercise the powers given by this
Part for the purpose of performing his or her functions
under this Act and the Code, and may do all things that
are necessary or convenient to be done for or in
5 connection with the performance of those functions.
(3) Without limiting subsection (2), the powers given by
this Division extend to financial information relating to
a railway owner's own use of railway infrastructure to
which the Code applies.
10 (4) In performing functions under this Act or the Code, the
Regulator is to take into account --
(a) the railway owner's legitimate business
interests and investment in railway
infrastructure;
15 (b) the railway owner's costs of providing access,
including any costs of extending or expanding
the railway infrastructure, but not including
costs associated with losses arising from
increased competition in upstream or
20 downstream markets;
(c) the economic value to the railway owner of any
additional investment that a person seeking
access or the railway owner has agreed to
undertake;
25 (d) the interests of all persons holding contracts for
the use of the railway infrastructure;
(e) firm and binding contractual obligations of the
railway owner and any other person already
using the railway infrastructure;
30 (f) the operational and technical requirements
necessary for the safe and reliable use of the
railway infrastructure;
page 10
Government Railways (Access) Amendment Bill 2000
Government Railways (Access) Act 1998 amended Part 2
s. 8.
(g) the economically efficient use of the railway
infrastructure; and
(h) the benefit to the public from having
competitive markets.
5 20A. Independence of Regulator
(1) Except as provided in subsection (2), the Regulator is
independent of direction or control by the Crown or
any Minister or officer of the Crown in the
performance of the Regulator's functions.
10 (2) The Minister may give directions in writing to the
Regulator to the extent allowed by subsection (3), and
the Regulator is to give effect to any such direction.
(3) Directions under subsection (2) may relate only to
general policies to be followed by the Regulator in
15 matters of administration, including financial
administration.
(4) Nothing in this section affects the operation of
section 8(2) of the Public Sector Management
Act 1994.
20 (5) Within 14 days after a direction is given under
subsection (2), the Regulator is to cause the text of the
direction to be published in the Gazette.
(6) The text of a direction given under subsection (2) is to
be tabled in both Houses of Parliament not later than
25 14 sitting days of the day on which the direction was
given and included in the annual report submitted by
the Regulator under section 66 of the Financial
Administration and Audit Act 1985.
20B. Delegation
30 The Regulator may by instrument delegate the
performance of any function, not including the power
page 11
Government Railways (Access) Amendment Bill 2000
Part 2 Government Railways (Access) Act 1998 amended
s. 9
given by this section, to a person who is, in the
Regulator's opinion, competent to perform that function.
20C. Conflict of interest
(1) The Regulator must inform the Minister in writing
5 of --
(a) any direct or indirect interest that the Regulator
has or acquires in any business, or in any body
corporate carrying on business, in Australia or
elsewhere; or
10 (b) any other direct or indirect interest that the
Regulator has or acquires that conflicts or may
conflict with the Regulator's duties.
Penalty: $10 000.
(2) The Minister may --
15 (a) direct the Regulator to resolve a conflict
between a direct or indirect interest and a duty
of the Regulator in relation to a particular
matter; and
(b) if the conflict is not resolved to the Minister's
20 satisfaction, disqualify the Regulator from
acting in relation to the matter.
".
9. Part 3 Divisions 3 to 5 inserted
After Part 3 Division 2 the following Divisions are inserted --
25 "
Division 3 -- Staff and consultants
23A. Staff
Public service officers are to be appointed or made
available under Part 3 of the Public Sector
30 Management Act 1994 to enable the Regulator to
perform his or her functions.
page 12
Government Railways (Access) Amendment Bill 2000
Government Railways (Access) Act 1998 amended Part 2
s. 9
23B. Consultants
The Regulator may engage persons under contracts for
services to provide such professional, technical or other
assistance as the Regulator considers necessary for the
5 performance of his or her functions.
23C. Use of government staff and facilities
(1) The Regulator may, by arrangement with the relevant
employer, make use, either full-time or part-time, of
the services of any officer or employee --
10 (a) in the Public Service;
(b) in a State agency or instrumentality; or
(c) otherwise in the service of the Crown in right of
the State,
other than an officer or employee of a party to an
15 access agreement.
(2) The Regulator may, by arrangement with the
department, agency or instrumentality, make use of any
facilities of --
(a) a department of the Public Service; or
20 (b) a State agency or instrumentality,
that is not a party to an access agreement.
(3) An arrangement under subsection (1) is to provide,
without limiting its other provisions, that while the
Regulator is making use of the services of an officer or
25 employee --
(a) the Regulator has authority to control and
supervise the officer to the exclusion of any
person who would normally have any such
authority; and
page 13
Government Railways (Access) Amendment Bill 2000
Part 2 Government Railways (Access) Act 1998 amended
s. 9
(b) the salary and allowances of the officer are to
be paid out of moneys available to the
Regulator for that purpose.
(4) Subject to subsection (3), an arrangement under
5 subsection (1) or (2) is to be made on such terms as are
agreed to by the parties to the arrangement.
Division 4 -- Financial provisions
23D. Bank account
(1) The Regulator is to have an account at a bank approved
10 by the Treasurer.
(2) The account is to be called the "Western Australian
Independent Rail Access Regulator Account".
(3) The account is to be --
(a) credited with all funds received by, made
15 available to, or payable to the Regulator,
including moneys appropriated by Parliament;
and
(b) charged with all expenditure incurred under this
Part to enable the functions of the Regulator to
20 be performed, including the remuneration and
allowances referred to in section 19.
23E. Borrowing from Treasurer
The Regulator may borrow from the Treasurer such
amounts as the Treasurer approves and on such terms
25 and conditions relating to repayment and payment of
interest as the Treasurer imposes.
23F. Application of Financial Administration and Audit
Act 1985
(1) The provisions of the Financial Administration and
30 Audit Act 1985 regulating the financial administration,
page 14
Government Railways (Access) Amendment Bill 2000
Government Railways (Access) Act 1998 amended Part 2
s. 9
audit and reporting of statutory authorities apply to and
in respect of the Regulator and the Regulator's
operations.
(2) Despite subsection (1), any requirement under the
5 Treasurer's Instructions (issued under section 58 of the
Financial Administration and Audit Act 1985) that the
Regulator prepare performance indicators is to be
limited to the Regulator's management functions
(including financial management).
10 (3) Despite subsection (1), section 42 of the Financial
Administration and Audit Act 1985 does not apply in
respect of the Regulator, but the expenditure that may
be incurred under this Part in any one financial year is
limited to the amount specified by the Minister under
15 this subsection for that year.
Division 5 -- General
23G. Immunity
(1) No personal liability attaches to --
(a) the Regulator;
20 (b) a person acting under section 19B;
(c) a delegate of the Regulator; or
(d) a person acting under the direction or authority
of the Regulator,
for an act or omission in good faith in the performance,
25 or purported performance, of official functions.
(2) A liability that would, but for subsection (1), lie against
a person, lies instead against the Crown.
".
page 15
Government Railways (Access) Amendment Bill 2000
Part 3 Consequential amendments
s. 10
Part 3 -- Consequential amendments
10. Constitution Acts Amendment Act 1899 amended
Schedule V to the Constitution Acts Amendment Act 1899* is
amended in Part 1 Division 2 by inserting after the item relating
5 to the Western Australian Independent Gas Pipelines Access
Regulator the following item --
"
Western Australian Independent Rail Access Regulator
appointed under section 13 of the Railways (Access)
10 Act 1998.
".
[* Reprinted as at 15 April 1999.
For subsequent amendments see 1999 Index to Legislation
of Western Australia, Table 1, pp. 49-50.]
15 11. Financial Administration and Audit Act 1985 amended
Schedule 1 to the Financial Administration and Audit Act 1985*
is amended by inserting in the appropriate alphabetical position
the following --
" Western Australian Independent Rail Access Regulator ".
20 [* Reprinted as at 9 July 1999.
For subsequent amendments see 1999 Index to Legislation
of Western Australia, Table 1, p. 89.]
page 16
Government Railways (Access) Amendment Bill 2000
Consequential amendments Part 3
s. 12
12. Parliamentary Commissioner Act 1971 amended
Schedule 1 to the Parliamentary Commissioner Act 1971* is
amended by inserting in the appropriate alphabetical position
the following --
5 "
The Western Australian Independent Rail Access Regulator
appointed under section 13 of the Railways (Access)
Act 1998.
".
10 [* Reprinted as at 20 January 1997.
For subsequent amendments see 1999 Index to Legislation
of Western Australia, Table 1, p. 181.]
page 17
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