Grain Handling and Storage (Amendment) Act 2003 (Vic)

Grain Handling and Storage (Amendment) Act

2003

ts	Act No. 73/2003
n
e
m
u	TABLE OF PROVISIONS
c

o Section Page

1. Purposes 1

D	2.	Commencement	2
ry	3.	Purpose	2
4.	Definitions	3
ta	5.	Powers in relation to price regulation	3
n	6.	Access rules	4
e	7.	Section 17 amended	4
8.	Procedure if agreement cannot be reached	5
m	9.	Application for general determination	7
ia	10.	Section 20 repealed	8
rl	11.	Hindering access	8
a	12.	Financial records	9
13.	Conduct of inquiries	9
P	14.	New section 23A inserted	10
d	23A.	Commission may publish guidelines	10
n	15.	New section 24 substituted	10

a	24.	Effect of facility ceasing to be a significant
infrastructure facility 10

n	16.	New sections 24A, 24B, 24C, 24D and 24E inserted	11
o
ti	24A.	Procedures and powers of the Commission	11
24B.	Commission may give directions in relation to a dispute	12
la	24C.	Confidentiality agreements	14
is	24D.	Costs of the Commission	15
24E.	Appeals	15
g	17.	Determination of fees and charges	17
e	18.	Schedule 2 repealed	17
L	19.	Statute law revision—Rail Corporations Act 1996	17

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a

ri	ENDNOTES	18
to
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i

ts
n
e
m
u

c
o	Victoria
D
ry
ta
n	No. 73 of 2003
e
m
ia
rl	Grain Handling and Storage
a	(Amendment) Act 2003†
P

[Assented to 21 October 2003]

d
n
a
n
o

ti	The Parliament of Victoria enacts as follows:
la
is	1. Purposes
g
e	The main purposes of this Act are to amend the
L	Grain Handling and Storage Act 1995—
n	(a) to ensure that disputes relating to access to
a
ri	grain handling and storage services at the ports of Geelong and Portland are primarily
to	resolved by an arbitrated access regime; and
ic	(b) to ensure that a price determination by the
V	Essential Services Commission under section 15 of the Grain Handling and

Grain Handling and Storage (Amendment) Act 2003

s. 2

Act No. 73/2003

Storage Act 1995 may only occur with the approval of the Minister administering Part 3 of that Act and after completion of an

ts	inquiry by the Commission; and
n
e	(c) to expand the scope of the Grain Handling
m	and Storage Act 1995 to all facilities related
u	to the export shipping of grain at the ports of
c	Geelong and Portland, rather than only those
o	facilities previously owned by the Grain
D	Elevators Board; and

ry	(d)	to clarify the role of the Essential Services
ta	Commission regarding disputes over access
to grain handling and storage services at
n
e	those ports; and

m	(e) to allow for a further inquiry into this
ia	industry to be completed by 30 June 2006
rl	with further inquiries, if necessary, every
a	subsequent 5 years from that date.
P	2. Commencement
d	This Act comes into operation on the day after the
n
a	day on which it receives the Royal Assent.
n	3. Purpose
o

ti	See:	In section 1 of the Grain Handling and Storage
Act No.
la	45/1995.	Act 1995, for "grain." substitute "grain for export
Reprint No. 1	shipping at the Port of Geelong and the Port of
is	as at
26 February	Portland.".
g	1998
e	and
amending
L	Act Nos
85/1998,
n	74/2000,
a
ri	62/2001 and
11/2002.
LawToday:
to
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Grain Handling and Storage (Amendment) Act 2003

s. 4

Act No. 73/2003

4. Definitions

(1) In section 3 of the Grain Handling and Storage

ts	Act 1995 insert the following definition—
n	' "provider", in relation to a prescribed service,
e	means the owner or operator of the
m	significant infrastructure facility that is used,
u	or is to be used, to provide the prescribed
c	service;'.
o
D	(2) In section 3 of the Grain Handling and Storage
ry	Act 1995—
ta	(a) for the definition of "prescribed prices"

substitute—

n

e	' "prescribed prices" means the charges
m	under section 15(1)(c);';
ia	(b) in the definition of "prescribed services", for
rl	"15(1)(c)" substitute "15(1)(b)";
a	(c) for the definition of "significant
P

infrastructure facility" substitute—

d

n	' "significant infrastructure facility"
a	means a facility within the meaning of
n	section 16(1);'.
o
ti	5. Powers in relation to price regulation
la	(1) For sections 15(1)(b) and 15(1)(c) of the Grain
is	Handling and Storage Act 1995 substitute—
g	"(b) the services provided, in respect of the
e	regulated industry, in the Port of Geelong
L	and the Port of Portland of receiving,
n	moving, inspecting, testing, stock control
a
ri	(including marshalling, storing and
management), weighing, elevating and
to	loading grain are prescribed services;
ic	(c) the charges for the prescribed services under
V	paragraph (b) are prescribed prices.".

Grain Handling and Storage (Amendment) Act 2003

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Act No. 73/2003

(2) After section 15(3) of the Grain Handling and Storage Act 1995 insert—

ts	"(4) The Commission may only make a
n	determination in respect of prescribed prices
e	under this section with the approval of the
m	Minister administering this Part following an
u	inquiry under sub-section (7) or under
c	section 41 of the Essential Services
o	Commission Act 2001.
D	(5) Sub-section (4) does not apply to a
ry	determination of the Commission under
ta	section 18, 19 or 21 that includes the setting
of prescribed prices.
n
e	(6) An approval under sub-section (4) operates
m	until it is revoked by the Minister
ia	administering this Part.
rl	(7) The Commission may, after consultation
a	with the Minister administering the
P	Essential Services Commission Act 2001,
d	conduct an inquiry under section 40 of that
n	Act, if the Commission considers an inquiry
a	is necessary or desirable for the purpose of
n	deciding whether to seek approval under
o
ti	sub-section (4) to make a determination in
respect of prescribed prices.".
la	6. Access rules
is
g	In section 16(2)(b) of the Grain Handling and
e	Storage Act 1995, for "the service" substitute
L	"the prescribed services".
n	7. Section 17 amended
a
ri	(1) Insert the following heading to section 17 of the
to	Grain Handling and Storage Act 1995—
ic	"Obligations of provider".
V

Grain Handling and Storage (Amendment) Act 2003

s. 8

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(2) For section 17(1) of the Grain Handling and

Storage Act 1995 substitute—

ts	"(1) The provider must provide access to the
n	prescribed services on fair and reasonable
e	terms and conditions.".
m	(3) In section 17(2) of the Grain Handling and
u	Storage Act 1995, for "access to a significant
c	infrastructure facility" substitute "access to
o	prescribed services".
D

(4) In section 17(3) of the Grain Handling and

ry	Storage Act 1995, for "owner of a significant
ta	infrastructure facility" substitute "provider".
n	(5) In section 17(4) of the Grain Handling and
e	Storage Act 1995, for "owner of a significant
m	infrastructure facility" substitute "provider".
ia
rl	(6) In section 17(4)(d) of the Grain Handling and
a	Storage Act 1995, for "significant infrastructure
P	facility" substitute "prescribed services".
d	8. Procedure if agreement cannot be reached
n	(1) For sections 18(1) and 18(2) of the Grain
a

Handling and Storage Act 1995 substitute—

n

o	"(1) A person seeking access to prescribed
ti	services may apply in writing to the
la	Commission for the making of a
is	determination under Part 3 of the Essential
g	Services Commission Act 2001 specifying
e	the terms and conditions on which access is
L	to be provided if—
n	(a) the provider and the person seeking
a
ri	access cannot agree on the terms and
conditions on which access is to be
to	provided; or
ic	(b) the provider has failed to make a formal
V	proposal under section 17(3)(b) within the time period set out in that section.

Grain Handling and Storage (Amendment) Act 2003

s. 8

Act No. 73/2003

(2) The Commission must within 15 days of

receiving an application under sub-section
(1) give notice in writing to the person

ts	making the application or to any other person
n	from whom the Commission is entitled to
e	require information or a document under the
m	Essential Services Commission Act 2001,
u	specifying any information or document that
c
o	the Commission requires the person to give so that the Commission can make, or refuse
D	to make, a determination.".
ry	(2) After section 18(3) of the Grain Handling and
ta	Storage Act 1995 insert—
n	"(3A) Without limiting any other powers of the Commission, the Commission may refuse to
e
m	make a determination if—
ia

rl	(a)	the Commission considers that the
a	application is trivial or vexatious; or

P	(b) the Commission is satisfied that—
d	(i) the provider has complied with the
n
a	obligations under section 17; and
n	(ii) the terms and conditions of access
o	being offered by the provider do
ti	not constitute a taking advantage
la	of a substantial degree of market
is	power in the provision of the
g	prescribed services; and
e	(iii) having regard to the objectives of
L	the Commission under section 14
n	and under the Essential Services
a
ri	Commission Act 2001 and to any other matter that the Commission
to	considers relevant, it is
ic	appropriate to refuse to make a
V	determination.

Grain Handling and Storage (Amendment) Act 2003

s. 9

Act No. 73/2003

(3B) A person who is aggrieved by a decision of

the Commission to refuse to make a
determination under this section, may appeal

ts	as if that decision was a determination for
n	the purposes of section 55(1)(c) of the
e	Essential Services Commission Act 2001.".
m
u	(3) After section 18(4) of the Grain Handling and
c	Storage Act 1995 insert—
o	"(4A) In making a determination the Commission
D	may require the provider to extend, or to
ry	permit the extension of, the facility used to
ta	provide a prescribed service, subject to the matters specified in paragraph (j) of clause
n
e	6(4) of the Competition Principles Agreement.".
m
ia	(4) For section 18(6) of the Grain Handling and
rl	Storage Act 1995 substitute—
a	"(6) In determining an access dispute under this
P	section, the Commission must act as quickly
d	as proper consideration of the dispute allows,
n	having regard to the need to carefully
a	investigate all matters affecting the merits
n	and fair settlement of the dispute.".
o
ti	(5) Section 18(7) of the Grain Handling and
la	Storage Act 1995 is repealed.
is	9. Application for general determination
g	(1) In section 19(1) of the Grain Handling and
e
L	Storage Act 1995—

(a) for "owner of a significant infrastructure

n

facility" substitute "provider".

a
ri

(b) for "access to the significant infrastructure

to	facility" substitute "access to prescribed
ic	services".
V

Grain Handling and Storage (Amendment) Act 2003

s. 10

Act No. 73/2003

(2) For section 19(2) of the Grain Handling and

Storage Act 1995 substitute—

ts	"(2) The Commission must within 20 days of
n	receiving an application under sub-section
e	(1) give notice in writing to the provider
m	specifying any information or document that
u	the Commission requires the provider to give
c	so that the Commission can make a
o	determination.".
D	(3) In section 19(4) of the Grain Handling and
ry	Storage Act 1995, for "owner of the significant
ta	infrastructure facility" substitute "provider".
n	10. Section 20 repealed
e	Section 20 of the Grain Handling and Storage
m	Act 1995 is repealed.
ia
rl	11. Hindering access
a	(1) For section 21(1) of the Grain Handling and
P	Storage Act 1995 substitute—
d	"(1) The provider or any person having access to
n
a	the prescribed services must not engage in conduct having a purpose of hindering
n	access to the prescribed services by any other
o
ti	person in the exercise of a reasonable right
la	of access.".
is	(2) In section 21(2) of the Grain Handling and
g	Storage Act 1995 for "a significant infrastructure
e	facility" substitute "prescribed services".
L	(3) After section 21(2) of the Grain Handling and
n	Storage Act 1995 insert—
a
ri	"(2A) The Commission must within 15 days of
to	receiving an application under sub-section
(1) give notice in writing to the person
ic	making the application or to any other person
V	from whom the Commission is entitled to require information or a document under the

Grain Handling and Storage (Amendment) Act 2003

s. 12

Act No. 73/2003

Essential Services Commission Act 2001,
specifying any information or document that

the Commission requires the person to give

ts	so that the Commission can make, or refuse
n	to make, a determination.".
e

(4) After section 21(3) of the Grain Handling and

m

u	Storage Act 1995 insert—
c	"(3A) Without limiting any other powers of the
o	Commission, the Commission may refuse to
D	make a determination if it considers that the
ry	application is trivial or vexatious.".
ta	12. Financial records
n	(1) For section 22(1) of the Grain Handling and
e	Storage Act 1995 substitute—
m
ia	"(1) The provider must keep financial records in
rl	respect of the prescribed services which are
a	separate from other aspects of any business
P	conducted by the provider.".
d	(2) In section 22(2) of the Grain Handling and
n	Storage Act 1995, for "owner of prescribed
a	services" substitute "provider".
n	13. Conduct of inquiries
o
ti	(1) In section 23(1) of the Grain Handling and
la	Storage Act 1995, for "30 June 2003" substitute
is	"30 June 2006".
g	(2) In section 23(2) of the Grain Handling and
e	Storage Act 1995, for "3 years" substitute
L	"5 years".
n
a
ri
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Grain Handling and Storage (Amendment) Act 2003

s. 14

Act No. 73/2003

14. New section 23A inserted

After section 23 of the Grain Handling and

ts	Storage Act 1995 insert—
n	"23A. Commission may publish guidelines
e

(1) For the purposes of section 13 of the

m

u	Essential Services Commission Act 2001,
c	the Commission—
o	(a) must publish guidelines in relation to
D	the matters the Commission may take
ry	into account in deciding to refuse to
ta	make a determination under section 18;
n	(b) may publish guidelines in relation to—
e	(i) the form and content of a formal
m	proposal which a provider must
ia	make under section 17(3)(b); and
rl	(ii) the making of an order for
a
P	payment of the Commission's costs under section 24D; and
d
n	(iii) any other matter in connection
a	with the exercise of its powers
n	under sections 18, 19 and 21.
o
ti	(2) Guidelines under this section are not binding
la	on the Commission.".
is	15. New section 24 substituted
g	For section 24 of the Grain Handling and
e	Storage Act 1995 substitute—
L
"24. Effect of facility ceasing to be a significant
n
a	infrastructure facility
ri	If the Minister administering the Essential
to	Services Commission Act 2001, after
ic	considering a recommendation of the
V	Commission, determines that a facility has

Grain Handling and Storage (Amendment) Act 2003

s. 16

Act No. 73/2003

ceased to be a significant infrastructure

facility—

ts	(a)	subject to paragraph (b), an existing
n	determination made by the Commission
e	(including a price determination under
m	section 33 of the Essential Services
u	Commission Act 2001) in respect of
c	prescribed services to which the facility
o	relates, is revoked from the date
D	specified by that Minister; and
ry	(b)	an existing price determination made
ta	by the Commission, in respect of
prescribed services to which the facility
n
e	does not relate, continues to operate.".

m	16. New sections 24A, 24B, 24C, 24D and 24E inserted
ia	After section 24 of the Grain Handling and
rl	Storage Act 1995 insert—
a
P	'24A. Procedures and powers of the

Commission

d

n	(1) For the purposes of section 11(2) of the
a	Essential Services Commission Act 2001,
n	the Commission, in making, or considering
o	whether to make, a determination under
ti	Division 2—
la	(a) is not bound by the rules of evidence or
is	any forms, practices or procedures
g	applicable to courts of record, except to
e	the extent that it adopts those rules,
L	forms, practices or procedures;
n
a	(b) may inform itself on any matter
ri	relevant to the application as it
to	considers appropriate, including by
ic	commissioning expert reports;
V

Grain Handling and Storage (Amendment) Act 2003

s. 16

Act No. 73/2003

(c) may, subject to the limitations contained in sections 18, 19 and 21, conduct its investigations in any

ts	manner it considers appropriate.
n
e	(2) At any time prior to the making of a
m	determination the Commission may allow
u	the withdrawal of the application by the
c	party seeking a determination.
o	(3) A determination made under Division 2 is a
D	determination for the purposes of the
ry	Essential Services Commission Act 2001.
ta	(4) The making of, or refusal to make, a
n	determination under Division 2 is not an
e	arbitration for the purposes of the
m	Commercial Arbitration Act 1984.
ia	(5) Except as provided in sub-sections (6) and
rl	(7), sections 37 and 38 of the Essential
a	Services Commission Act 2001 apply to
P	this Act.
d	(6) Section 37(4) of the Essential Services
n
a	Commission Act 2001 does not apply to a requirement made under section 24B(1).
n
o	(7) Section 38 of the Essential Services
ti	Commission Act 2001 only applies to
la	information or a document required under
is	section 24B(1)(a) if the Commission
g	proposes to disclose the information or
e	document to a person who is not identified
L	by the Commission under section 24B(1)(a).
n	24B. Commission may give directions in
a
ri	relation to a dispute
to	(1) The Commission, for the purposes of
ic	facilitating negotiations or determining a
dispute under Division 2, may require a
V	person who is or was a party to the dispute to

Grain Handling and Storage (Amendment) Act 2003

s. 16

Act No. 73/2003

do, or refrain from doing, something,

including—

ts	(a)	requiring a person to give relevant
n	information or a document to one or
e	more other persons identified by the
m	Commission, and a copy to the
u	Commission, subject to section 24C;

c	(b) requiring a person to carry out
o	reasonable research or investigations in
D	order to obtain relevant information;
ry	(c) prohibiting a person from imposing, or
ta	seeking to impose, an unreasonable
n	procedural condition on the person's
e	participation in negotiations;
m	(d) requiring a person to respond in writing
ia	to another person's proposal or request
rl	in relation to the time and place of a
a	meeting;
P

(e) requiring a person, or a representative

d

n	of a person, to attend a mediation
a	conference.
n	(2) For the purposes of sub-section (1)(c) "an
o	unreasonable procedural condition" includes
ti	a requirement by one party that the other
la	party or parties to the dispute must not
is	disclose to the Commission information or a
g	document provided in the course of
e	negotiations.
L	(3) A person must not, without lawful excuse,
n	disobey a requirement of the Commission
a
ri	made under this section.
to	Penalty: 60 penalty units.
ic
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Grain Handling and Storage (Amendment) Act 2003

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24C. Confidentiality agreements

(1) This section applies if—

ts	(a) the Commission makes a requirement
n	under section 24B(1)(a); and
e

(b) the person in control or possession of

m

u	the information or document ("the
c	disclosing party") notifies the
o	Commission in writing that the
D	information or document is of a confidential or commercially-sensitive
ry	nature; and
ta	(c) the Commission notifies the person that
n	the information or document must still
e	be provided in accordance with section
m	24B(1)(a).
ia
rl	(2) If, under sub-section (1)(c), the Commission
a	notifies the disclosing party that the
P	information or document must still be provided in accordance with section
d
n	24B(1)(a), the disclosing party may require
a	the person receiving the information or document ("the receiving party") to enter
n	into a confidentiality agreement.
o
ti	(3) The terms of a confidentiality agreement
la	may be proposed by the disclosing party and
is	those terms must be promptly notified to the
g	Commission and to the receiving party.
e	(4) If the Commission considers that the terms
L	of the proposed confidentiality agreement are
n	unreasonable, the Commission may decide to
a
ri	amend or delete those terms or substitute
to	other terms.
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Grain Handling and Storage (Amendment) Act 2003

s. 16

Act No. 73/2003

24D. Costs of the Commission

(1) In this section, "Commission's costs"

ts	means the total amount of the costs and
n	expenses of the Commission that are
e	incurred or are likely to be incurred by the
m	Commission in the exercise of its powers for
u	or in connection with the making of, or
c	refusal to make, a determination under
o	Division 2.
D	(2) The Commission may make an order in
ry	relation to the payment of the Commission's
ta	costs—
n	(a) after making, or refusing to make, a
e	determination; or
m	(b) if, at any time prior to the Commission
ia	making a determination or refusing to
rl	make a determination in relation to a
a	dispute under Division 2, a person
P	withdraws the application for a
d	determination.
n
a	(3) In making an order under sub-section (2) the Commission may require each party to bear
n
o	different proportions of the Commission's
ti	costs.
la	(4) An order for costs under this section is a debt
is	due to the Commission.
g	(5) Subject to this section, each party to a
e	dispute under Division 2 is to bear its own
L	costs.
n
a
ri

24E. Appeals

(1) A person who is aggrieved by a requirement

to	of the Commission under section 24B(1)(a)
ic	or a decision of the Commission under
V	section 24C(4) may appeal against that requirement or decision.

Grain Handling and Storage (Amendment) Act 2003

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Act No. 73/2003

(2) An appeal may only be made on the ground

that—

ts	(a)	the requirement or decision was not
n	made in accordance with the law; or

e	(b) the requirement or decision is
m	unreasonable having regard to all
u	relevant circumstances.
c
o	(3) The person must lodge notice of the appeal
D	with the Commission within 7 working days after the person is given notice of the
ry	requirement or decision.
ta	(4) On the hearing of an appeal under this
n	section, the Commission bears the onus of
e	establishing that—
m
ia	(a) the requirement or decision was made
rl	in accordance with the law; and
a	(b) the requirement or decision is
P	reasonable having regard to all relevant
d	circumstances.
n	(5) Sections 56 to 59 of the Essential Services Commission Act 2001 apply to an appeal
a
n	under this section.
o
ti	(6) For the purposes of sub-section (5)—
la	(a) section 56 of the Essential Services
is	Commission Act 2001 applies as if
g	paragraph (b) formed part of sub-
e	section (7) of that section;
L

(b) in the case of an appeal under section

n

24E(1)—

a
ri

(i) may affirm, cancel or modify the

to	requirement made under section
ic	24B(1)(a);
V

Grain Handling and Storage (Amendment) Act 2003

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Act No. 73/2003

(ii) (iii) may remit the matter back to the may affirm, cancel or modify the agreement decided by the

ts	Commission under section
n	24C(4);
e
m
u	Commission to be dealt with in
c	accordance with the decision and
o	recommendations (if any) of the
D	appeal panel;

ry	(iv)	the appeal must be heard and
ta	decided within 7 working days of
the appeal panel being constituted
n
e	or, if the appeal panel requires further time, within a further
m
ia	period not exceeding 7 working
rl	days;'.

a	17. Determination of fees and charges
P	In section 25G(a) of the Grain Handling and
d	Storage Act 1995, for "Act" substitute "Part".
n
a	18. Schedule 2 repealed
n	Schedule 2 to the Grain Handling and Storage
o
ti	Act 1995 is repealed.
la	19. Statute law revision—Rail Corporations Act 1996
is	In section 38PA(6)(a) of the Rail Corporations
g	Act 1996, for "sub-section (6)" substitute "sub-
e	section (7)".
L	═══════════════
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Grain Handling and Storage (Amendment) Act 2003

Endnotes

Act No. 73/2003

ENDNOTES

ts †

Minister's second reading speech—

n	Legislative Assembly: 28 August 2003
e
Legislative Council: 14 October 2003
m
u	The long title for the Bill for this Act was "to amend the Grain Handling
c	and Storage Act 1995 to ensure that disputes relating to access to grain
o	handling and storage services at the ports of Geelong and Portland are
D	primarily resolved by an arbitrated access regime and for other purposes."
ry
ta
n
e
m
ia
rl
a
P
d
n
a
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