Western Australian Bills Western Australian Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Government Railways (Access) Bill 1998
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Definitions 2
Part 2 -- Establishment of Code
4. Minister to establish Code 4
5. Criteria to be considered in applying Code to
particular routes 4
6. Other matters for which Code may make provision 6
7. Code does not affect existing agreements 6
8. Code is subject to Rail Safety Act 1998 7
9. Code is subsidiary legislation 7
10 . Public comment on amendment or replacement of
Code 7
11 . Exception to section 10 8
12 . Three-yearly review of Code 8
page i
150 - 1
Government Railways (Access) Bill 1998
Part 3 -- The Regulator
Division 1 -- Office and functions
13 . Definition 10
14 . Who performs functions of Regulator 10
15 . Functions of Regulator 10
16 . Staff and resources 11
17 . Financial administration etc. 11
18 . Delegation 11
19 . Regulator to act independently 11
Division 2 -- Monitoring and enforcement powers
20 . Purpose of powers 12
21 . Powers to obtain information 12
22 . Powers in respect of documents etc. 13
23 . Confidentiality 13
Part 4 -- Administrative and accounting
arrangements of the Commission
Division 1 -- Preliminary
24 . Definitions 14
25 . This Part prevails over the Government Railways
Act 1904 14
Division 2 -- Administrative arrangements
26 . Commission to make administrative arrangements 14
27 . Delegation 14
Division 3 -- Segregation of access-related functions
28 . Duty to segregate 15
29 . Powers of Regulator in relation to segregation 15
30 . Matters to be covered under section 28 16
31 . Protection of confidential information 16
32 . Avoidance of conflict of interest 17
33 . Duty of fairness 17
34 . Maintenance of separate accounts and records 17
page ii
Government Railways (Access) Bill 1998
Part 5 -- Enforcement
35 . Contract enforcement not affected 18
36 . Remedies 18
37 . Injunctions 18
Part 6 -- Amendment of the National Rail
Corporation Agreement Act 1992
Division 1 -- Preliminary
38 . Principal Act 20
Division 2 -- Amendments about the NRC carrying on
intra-State services
39 . Section 5A inserted 20
40 . Section 5B inserted 20
Division 3 -- Minor amendments
41 . Section 3 amended 21
42 . Schedule 1 amended 21
Part 7 -- Amendment of the Government
Railways Act 1904
43 . Consequential amendments to the Government Railways
Act 1904 23
page iii
Western Australia
LEGISLATIVE ASSEMBLY
Government Railways (Access) Bill 1998
A Bill for
An Act to promote competition in the operation of rail services by --
· providing for the establishment of a Code governing the
use of government railways for rail operations by persons
other than the Western Australian Government Railways
5 Commission;
· designating an official with monitoring, enforcement and
administrative functions for the implementation of the
Code; and
· specifying the kind of administrative arrangements that
10 the Commission is to have in place for the purposes of
that implementation,
to amend --
· the Government Railways Act 1904 to make consequential
amendments; and
15 · the National Rail Corporation Agreement Act 1992,
and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Government Railways (Access) Bill 1998
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Government Railways (Access) Act
1998.
5 2. Commencement
(1) Part 6 comes into operation on the day on which this Act
receives the Royal Assent.
(2) The other provisions of this Act come into operation on such
day as is, or days as are respectively, fixed by proclamation.
10 3. Definitions
In this Act, unless the contrary intention appears --
"access" means the use of railway infrastructure;
"access agreement" means an agreement under the Code
between the Commission and another person for access by
15 that person;
"Code" means the Code for the time being in force under
section 4;
"Commission" has the same meaning as in the Government
Railways Act 1904;
20 "Competition Principles Agreement" means the Competition
Principles Agreement made on 11 April 1995 by the
Commonwealth, the States and the Territories as in force
for the time being;
"railway" means a railway, as defined in section 2 of the
25 Government Railways Act 1904, that is under the
management and control of the Commission as provided by
section 13 of that Act;
page 2
Government Railways (Access) Bill 1998
Preliminary Part 1
s. 3
"railway infrastructure" means the facilities necessary for the
operation of a railway, including --
(a) railway track, associated track structures, over or
under track structures, supports (including supports
5 for equipment or items associated with the use of a
railway);
(b) tunnels and bridges;
(c) stations and platforms;
(d) train control systems, signalling systems and
10 communication systems;
(e) electric traction infrastructure;
(f) buildings and workshops; and
(g) associated plant machinery and equipment,
but not including --
15 (h) private sidings and spur lines connected to premises
not under the management or control of the
Commission; and
(i) rolling stock, rolling stock maintenance facilities,
office buildings, housing, freight centres, or terminal
20 yards and depots;
"Regulator" means the official provided for by Part 3.
page 3
Government Railways (Access) Bill 1998
Part 2 Establishment of Code
s. 4
Part 2 -- Establishment of Code
4. Minister to establish Code
(1) The Minister is to establish a Code in accordance with this Act
to give effect to the Competition Principles Agreement in
5 respect of railways.
(2) Provision is to be made in the Code --
(a) for railway infrastructure to be available for use by
persons other than the Commission to carry on rail
operations in accordance with --
10 (i) agreements with the Commission; or
(ii) determinations made by way of arbitration;
(b) prescribing --
(i) which parts of the railways network; and
(ii) which railway infrastructure associated with
15 those parts,
are to be so available; and
(c) setting out --
(i) provisions that are to govern the content of
agreements and determinations referred to in
20 paragraph (a); and
(ii) rights, powers and duties that are to apply to and
in relation to the negotiation, making, and
implementation of agreements.
25 5. Criteria to be considered in applying Code to particular routes
(1) In deciding, for the purpose of establishing or amending the
Code, which routes are to be prescribed under section 4(2)(b), the
Minister is to consider the questions set out in subsection (3).
page 4
Government Railways (Access) Bill 1998
Establishment of Code Part 2
s. 5
(2) If in respect of a route the Minister is satisfied that each of those
questions must be answered in the affirmative the route is to be
prescribed under section 4(2)(b).
(3) The questions are --
5 (a) whether access to the route will promote competition in
at least one market, other than the market for railway
services;
(b) whether it would be uneconomical for anyone to
establish another railway on the route;
10 (c) whether the route is of significance having regard to --
(i) its length;
(ii) its importance to trade or commerce; or
(iii) its importance to the economy;
(d) whether access to the route can be provided without
15 undue risk to human health or safety;
(e) whether there is not already effective access to the route;
and
(f) whether access or increased access to the route would
not be contrary to the public interest.
20 (4) A decision of the Minister of the kind referred to in
subsection (1) is not liable to be challenged in, or reviewed or
called in question by, a court.
(5) In this section --
"route" means --
25 (a) a particular part of the railways network; and
(b) the associated railway infrastructure.
page 5
Government Railways (Access) Bill 1998
Part 2 Establishment of Code
s. 6
6. Other matters for which Code may make provision
(1) The Code may also make provision for or in relation to --
(a) the registration of access agreements;
(b) the arbitration of disputes between the Commission and
5 a person who has made a proposal for access under the
Code;
(c) the establishment of panels of arbitrators, and the
appointment of arbitrators, by the Regulator;
(d) the regulation of matters --
10 (i) of a savings, transitional or supplementary
nature; or
(ii) that are otherwise necessary or convenient for
the purposes of this Act.
(2) Transitional provisions referred to in subsection (1)(d)(i) may
15 authorize the Minister to determine by order published in the
Gazette how any matter in progress immediately before the
commencement of this Part is to be treated, after that
commencement, for the purposes of the provisions of the Code.
20 7. Code does not affect existing agreements
The making of the Code --
(a) does not affect the terms and conditions, or the
operation, of an agreement for the use of railway
infrastructure made with the Commission before the
25 commencement of the Code whether under section 61 of
the Government Railways Act 1904 or otherwise; and
(b) does not afford a party to such an agreement any ground
or reason for not complying with the agreement
according to its terms and conditions.
page 6
Government Railways (Access) Bill 1998
Establishment of Code Part 2
s. 8
8. Code is subject to Rail Safety Act 1998
The Code is not to contain any provision that is contrary to or
inconsistent with the Rail Safety Act 1998.
9. Code is subsidiary legislation
5 The Code is subsidiary legislation within the meaning of the
Interpretation Act 1984.
10. Public comment on amendment or replacement of Code
(1) Before the Minister exercises the power --
(a) to amend the Code; or
10 (b) to repeal and replace it,
he or she must make the proposed amendment or replacement
available for public comment in accordance with subsection (2).
(2) The Minister must --
(a) cause a notice giving a general description of the
15 proposal to be published in one issue of --
(i) a daily newspaper circulating throughout the
Commonwealth; and
(ii) a daily newspaper circulating throughout the State;
and
20 (b) include in the notice the following information --
(i) the places at which a copy of the proposal may
be obtained;
(ii) a statement that written submissions on the
proposal may be made to the Minister by any
25 person within a specified period; and
(iii) the address to which the submissions may be
delivered or posted.
page 7
Government Railways (Access) Bill 1998
Part 2 Establishment of Code
s. 11
(3) The period specified under subsection (2)(b)(ii) is not to be less
than 30 days after both of the notices under subsection (2)(a)
have been published.
(4) The Minister must have regard to any submission made in
5 accordance with the notice.
11. Exception to section 10
(1) Section 10(1) does not apply if the Minister is satisfied that a
proposed amendment to the Code is --
(a) of a minor nature; or
10 (b) required to be made urgently.
(2) If in reliance on subsection (1)(b) the Minister amends the Code
without complying with section 10(1) --
(a) he or she must call for public comment on the
amendment as soon as is practicable after it has come
15 into force; and
(b) subsections (2) and (3) of section 10 apply with all
necessary modifications.
(3) Having regard to any submissions made on the amendment, the
Minister must consider whether he or she should amend the
20 Code --
(a) to reverse the effect of the amendment; or
(b) in some other manner.
12. Three-yearly review of Code
(1) The Regulator must carry out a review of the Code as soon as is
25 practicable after --
(a) the third anniversary of its commencement; and
(b) the expiry of each 3 yearly interval after that
anniversary.
page 8
Government Railways (Access) Bill 1998
Establishment of Code Part 2
s. 12
(2) The purpose of a review is to assess the suitability of the
provisions of the Code to give effect to the Competition
Principles Agreement in respect of railways.
(3) Before carrying out a review of the Code, the Regulator must
5 call for public comment in accordance with subsection (4).
(4) The Regulator must --
(a) cause notice of the review to be published, in one issue
of --
(i) a daily newspaper circulating throughout the
10 Commonwealth; and
(ii) a daily newspaper circulating throughout the
State;
and
(b) include in the notice --
15 (i) a statement that written submissions on the Code
may be made to the Regulator by any person
within a specified period; and
(ii) the address to which the submissions may be
delivered or posted.
20 (5) The period specified under subsection (4)(b)(i) is not to be less
than 30 days after both of the notices under subsection (3)(a)
have been published.
(6) The Regulator must prepare a report based on the review and
give it to the Minister.
page 9
Government Railways (Access) Bill 1998
Part 3 The Regulator
Division 1 Office and functions
s. 13
Part 3 -- The Regulator
Division 1 -- Office and functions
13. Definition
In this Part --
5 "department" means the department of the Public Service
principally assisting the Minister responsible for the
Transport Co-ordination Act 1966 in the administration of
that Act.
14. Who performs functions of Regulator
10 The functions of the Regulator under this Act and the Code are
to be performed by the person who for the time being holds, or
is acting in, the office of Director General of Transport under
section 8 of the Transport Co-ordination Act 1966.
15. Functions of Regulator
15 The Regulator --
(a) is responsible for monitoring and enforcing compliance
by the Commission with the provisions of --
(i) this Act;
(ii) the obligations imposed by Part 4; and
20 (iii) the Code;
and
(b) also has the functions given to him or her by particular
provisions of this Act and the Code.
page 10
Government Railways (Access) Bill 1998
The Regulator Part 3
Office and functions Division 1
s. 16
16. Staff and resources
(1) The Regulator may make use of --
(a) the services of any officer of the department; or
(b) the facilities of the department.
5 (2) The employing authority under the Public Sector Management
Act 1994 in relation to the department may exercise the powers
in section 100 of that Act to enable the Regulator to perform his
or her functions.
17. Financial administration etc.
10 For the purposes of section 9 of the Transport Co-ordination
Act 1966, the performance of the functions of the Regulator are
to be treated as operations of the department.
18. Delegation
(1) The Regulator may, by instrument in writing, delegate the
15 performance of any of his or her functions, except this power of
delegation, to --
(a) an officer of the department; and
(b) a person engaged under the powers referred to in section
16(2).
20 (2) A function performed by a delegate is to be taken to be
performed by the Regulator.
(3) A delegate performing a function of the Regulator is to be taken
to do so in accordance with the terms of the delegation unless
the contrary is shown.
25 19. Regulator to act independently
The Regulator in performing his or her functions --
(a) must act independently; and
page 11
Government Railways (Access) Bill 1998
Part 3 The Regulator
Division 2 Monitoring and enforcement powers
s. 20
(b) is not subject to direction by the Minister or any other
person.
Division 2 -- Monitoring and enforcement powers
20. Purpose of powers
5 (1) The Regulator may exercise the powers in this Division for the
purpose of performing his or her functions under this Act or the
Code.
(2) Without limiting subsection (1), the powers in this Division
extend to financial information relating to the Commission's
10 own use of railway infrastructure to which the Code applies.
21. Powers to obtain information
(1) The Regulator may by notice in writing require the
Commission --
(a) to send to the Regulator before a day specified in the
15 notice a statement setting out such information as is
specified in the notice;
(b) to give information to the Regulator by way of
periodical returns at times specified in the notice; and
(c) to send to the Regulator, before a day specified in the
20 notice, any book, document, or record that is in the
possession or under the control of the Commission.
(2) The Commission must comply with a notice under
subsection (1).
page 12
Government Railways (Access) Bill 1998
The Regulator Part 3
Monitoring and enforcement powers Division 2
s. 22
22. Powers in respect of documents etc.
The Regulator may inspect any book, document or record
produced or sent to him or her and --
(a) retain it for such reasonable period as he or she thinks
5 fit; and
(b) make copies of it or any of its contents.
23. Confidentiality
In relation to the exercise of his or her powers under this
Division, the Regulator must ensure that confidential
10 information to which section 31 applies is protected from use or
disclosure except --
(a) in the performance of the Regulator's functions;
(b) as required or allowed by any law;
(c) with the written consent of the person who supplied the
15 information; or
(d) in circumstances prescribed by regulations made by the
Governor for the purposes of this section.
page 13
Government Railways (Access) Bill 1998
Part 4 Administrative and accounting arrangements of the Commission
Division 1 Preliminary
s. 24
Part 4 -- Administrative and accounting arrangements
of the Commission
Division 1 -- Preliminary
24. Definitions
5 In this Part --
"access-related functions" means the functions involved in
arranging the provision of access to railway infrastructure
under the Code;
"officer of the Commission" includes an officer of the
10 Department as defined in the Government Railways Act
1904;
"relevant officer" means an officer of the Commission who is
in any way concerned in the performance of access-related
functions.
15 25. This Part prevails over the Government Railways Act 1904
This Part has effect, and is to be carried out by the Commission,
despite the provisions of the Government Railways Act 1904.
Division 2 -- Administrative arrangements
26. Commission to make administrative arrangements
20 The Commission is to make such administrative arrangements
within its organization that it from time to time considers
necessary or expedient for the carrying out of its access-related
functions.
27. Delegation
25 (1) The Commission may, by instrument in writing, delegate the
performance of any of its access-related functions (including the
page 14
Government Railways (Access) Bill 1998
Administrative and accounting arrangements of the Commission Part 4
Segregation of access-related functions Division 3
s. 28
execution of access agreements) to an officer or officers of the
Commission.
(2) A function so performed is to be taken to be performed by the
Commission.
5 (3) An officer of the Commission when performing a function as a
delegate of the Commission is to be taken to do so in
accordance with the terms of the delegation, unless the contrary
is shown.
Division 3 -- Segregation of access-related functions
10 28. Duty to segregate
(1) In making arrangements under section 26 the Commission must
segregate its access-related functions from its other functions.
(2) The Commission must have appropriate controls and procedures
to ensure that the measures in place under subsection (1) --
15 (a) operate effectively; and
(b) are complied with.
29. Powers of Regulator in relation to segregation
(1) Before the Commission puts in place or varies any arrangement
for the purpose of carrying out its obligations under section 28 it
20 must obtain the Regulator's approval to the arrangement or
variation.
(2) In addition to subsection (1), the Regulator may confer with the
Commission on any matter which relates to the way in which
the Commission's obligations under section 28 are to be carried
25 out, with a view to the Regulator and the Commission reaching
agreement on the matter.
page 15
Government Railways (Access) Bill 1998
Part 4 Administrative and accounting arrangements of the Commission
Division 3 Segregation of access-related functions
s. 30
(3) The Regulator may give directions in writing to the Commission
with respect to a matter to the extent that agreement is not
reached under subsection (2), and the Commission is to comply
with any such direction.
5 30. Matters to be covered under section 28
Without limiting section 28, in carrying out its obligations under
that section the Commission must ensure that the provisions of
sections 31, 32, 33 and 34 are satisfied.
31. Protection of confidential information
10 (1) There must be an effective regime designed for the protection of
confidential information relating to the affairs of persons
seeking access or rail operators from --
(a) improper use; and
(b) disclosure by relevant officers, or other persons, to other
15 officers of the Commission or other persons, except for
proper purposes.
(2) In this section --
"confidential information" means information that has not
been made public and that --
20 (a) is by its nature confidential;
(b) was specified to be confidential by the person who
supplied it; or
(c) is known by an officer using or disclosing it to be
confidential.
page 16
Government Railways (Access) Bill 1998
Administrative and accounting arrangements of the Commission Part 4
Segregation of access-related functions Division 3
s. 32
32. Avoidance of conflict of interest
The arrangements under section 26 must be such as to ensure
that a relevant officer does not have a conflict between his or
her duties --
5 (a) as an officer concerned in the performance of access-
related functions, on the one hand; and
(b) as an officer involved in other business of the
Commission, on the other.
33. Duty of fairness
10 In performing their functions relevant officers must not have
regard to the interests of the Commission in a way that is unfair
to persons seeking access or to other rail operators.
34. Maintenance of separate accounts and records
The Commission must ensure that its accounts and records are
15 in such form as to enable --
(a) all income, expenditure, assets and liabilities relating to
the carrying out of its access-related functions to be
properly recorded and distinguished from the
Commission's other income, expenditure, assets and
20 liabilities; and
(b) where necessary, any item of income, expenditure,
assets or liabilities which relates only in part to the
carrying out of its access-related functions to be
apportioned in a fair and reasonable manner.
page 17
Government Railways (Access) Bill 1998
Part 5 Enforcement
s. 35
Part 5 -- Enforcement
35. Contract enforcement not affected
Nothing in this Part affects the enforceability of an access
agreement as a contract, or the availability of damages for a
5 breach of the agreement.
36. Remedies
(1) The obligations imposed on the Commission by the Code are
enforceable --
(a) by arbitration under the Code; or
10 (b) under section 37,
as the case may require, but a breach of those obligations does
not give rise to an action for damages.
(2) Sections 177 and 178 of The Criminal Code do not apply to the
obligations referred to in subsection (1).
15 37. Injunctions
(1) The Supreme Court may grant an injunction in such terms as the
Court thinks fit if it is satisfied that the Commission --
(a) has engaged in conduct that amounts to a breach of the
Code; or
20 (b) is proposing to engage in conduct that would amount to
such a breach,
other than conduct for which a remedy by way of arbitration is
available under the Code.
(2) An application for an injunction under subsection (1) may be
25 made by --
(a) the Regulator; or
page 18
Government Railways (Access) Bill 1998
Enforcement Part 5
s. 37
(b) a person to whose proposal under the Code for access
the conduct or proposed conduct relates.
page 19
Government Railways (Access) Bill 1998
Part 6 Amendment of the National Rail Corporation Agreement Act
1992
Division 1 Preliminary
s. 38
Part 6 -- Amendment of the National Rail Corporation
Agreement Act 1992
Division 1 -- Preliminary
38. Principal Act
5 In this Part the National Rail Corporation Agreement Act 1992*
is referred to as the principal Act.
[* Act No. 56 of 1992.]
Division 2 -- Amendments about the NRC carrying on
intra-State services
10 39. Section 5A inserted
After section 5 of the principal Act the following section is
inserted in Part 2 --
"
5A. Intra-State rail services by Company
15 The Company is not to carry on intra-State rail services
in the State unless the Minister has given the Company
approval in writing to do so.
".
40. Section 5B inserted
20 Before section 6 of the principal Act the following section is
inserted in Part 3 --
"
5B. Referral of power to the Parliament of the
Commonwealth
25 (1) The matter of the Commonwealth holding shares in the
Company in accordance with the Agreement, to the
page 20
Government Railways (Access) Bill 1998
Amendment of the National Rail Corporation Agreement Act Part 6
1992
Minor amendments Division 3
s. 41
extent to which it is not otherwise included in the
legislative powers of the Parliament of the
Commonwealth, is referred to the Parliament of the
Commonwealth.
5 (2) The reference under subsection (1) only has effect for
the period --
(a) beginning on the day on which section 40 of the
Government Railways (Access) Act 1998
commences; and
10 (b) ending on the day fixed under subsection (3) as
the day on which the reference under
subsection (1) terminates.
(3) The Governor may, by proclamation, fix a day as the
day on which the reference under subsection (1)
15 terminates.
(4) In this section, a reference to holding shares includes a
reference to acquiring, disposing of or dealing with
those shares.
".
20 Division 3 -- Minor amendments
41. Section 3 amended
Section 3 of the principal Act is amended in the definition of
"the Agreement" by deleting "Schedule 1" and substituting the
following --
25 " the Schedule to this Act" .
42. Schedule 1 amended
Schedule 1 to the principal Act is amended --
(a) in the heading to the Schedule, by deleting "1"; and
page 21
Government Railways (Access) Bill 1998
Part 6 Amendment of the National Rail Corporation Agreement Act
1992
Division 3 Minor amendments
s. 42
(b) by inserting after the execution details that follow clause
10 of the Agreement, the following heading --
" Schedule 1 ".
page 22
Government Railways (Access) Bill 1998
Amendment of the National Rail Corporation Agreement Act Part 7
1992
Amendment of the Government Railways Act 1904
s. 43
Part 7 -- Amendment of the Government Railways
Act 1904
43. Consequential amendments to the Government Railways Act 1904
(1) In this section the Government Railways Act 1904* is referred
5 to as the principal Act.
[* Reprinted as approved 27 October 1982.
For subsequent amendments see 1997 Index to Legislation of
Western Australia, Table 1, pp. 98-9.]
(2) Section 13 of the principal Act is amended by repealing
10 subsection (1) and substituting the following subsections --
"
(1) The Commission shall have the management,
maintenance and control of every Government railway.
(1a) Subsection (1) has effect subject to --
15 (a) this Act;
(b) section 18E of the Transport Co-ordination
Act 1966; and
(c) the Government Railways (Access) Act 1998.
".
20 (3) Section 22 of the principal Act is repealed.
(4) Section 25 of the principal Act is repealed and the following
section is substituted --
"
25. Conditions of carriage of goods
25 The Commission may determine the conditions of
carriage of goods on any rail service operated by it,
including limits on its liability for loss of, damage to or
delay in the delivery of such goods.
".
page 23
Government Railways (Access) Bill 1998
Part 7 Amendment of the National Rail Corporation Agreement Act
1992
Amendment of the Government Railways Act 1904
s. 43
(5) Section 26A of the principal Act is amended by deleting
"Notwithstanding the provisions of section twenty-two of this
Act, the" and substituting the following --
" The ".
5 (6) Section 28A(3) of the principal Act is amended by deleting
"Notwithstanding sections twenty-two and twenty-five of this
Act, the" and substituting the following --
" The ".
(7) Section 61(5) of the principal Act is amended by inserting after
10 "enactment" the following --
" , including the Government Railways (Access) Act 1998 ".
(8) Section 68 of the principal Act is amended by deleting from and
including ", subject, however, to the following conditions" to
the end of the section and substituting a full stop.
15 (9) Section 69 of the principal Act is repealed.
(10) The Second Schedule to the principal Act is repealed.
page 24
[Index] [Search] [Download] [Related Items] [Help]