Rail Corporations (Amendment) Act 2002 (Vic)

Rail Corporations (Amendment) Act 2002

Act No. 20/2002

TABLE OF PROVISIONS

Section Page

1.	Purpose	1
2.	Commencement	1
3.	Definition	2
4.	Access regime	2
5.	New Division 3 inserted in Part 2A	5
Division 3—Information Provided by Access Seekers	5
38Q.	What is information provided by an access seeker?	5
38QA.	Determination that confidentiality requirements apply	5

38QB. Confidentiality requirements	7
38QC.	Operators to have policies to ensure compliance with
confidentiality requirements 9

6.	Division 4 heading inserted	10
7.	New section 38RA inserted	10

38RA.	Commission's power to obtain information and
documents 10

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ENDNOTES 11

i

Victoria

No. 20 of 2002

Rail Corporations (Amendment) Act

2002†

[Assented to 21 May 2002]

The Parliament of Victoria enacts as follows:

1. Purpose

The purpose of this Act is to amend the Rail Corporations Act 1996 to improve the rail access regime in accordance with national competition policy.

2. Commencement

This Act comes into operation on the day after the day on which it receives the Royal Assent.

Rail Corporations (Amendment) Act 2002

Act No. 20/2002 s. 3

3. Definition

See:

In section 3(1) of the Rail Corporations Act	Act No.
1996, after the definition of "rail transport service"	79/1996. Reprint No. 2
insert—	as at 1 January
' "related body corporate" has the same	2001

meaning as in section 9 of the Corporations	and amending
Act;'.	Act Nos 44/2001,
54/2001 and 62/2001.
Law Today:
dpc.vic. gov.au

4. Access regime

(1) In Part 2A of the Rail Corporations Act 1996— (a) after the heading to the Part insert—

"Division 1—Introduction";

(b) after section 38D insert—

"Division 2—Seeking Access to Declared

Rail Transport Services".

(2) In section 38F of the Rail Corporations Act

1996, after sub-section (3) insert—

"(4) The making of a determination under this

section is not an arbitration for the purposes of the Commercial Arbitration Act 1984.".

(3) In section 38H of the Rail Corporations Act

1996, for sub-section (1) substitute—

"(1) At any time after receiving an application

under section 38F, the Commission may give
notice in writing to the person making the
application or to any other person the
Commission has reason to believe has

Rail Corporations (Amendment) Act 2002

s. 4 Act No. 20/2002

information that may assist the Commission

in making a determination, specifying—

(a)	any information that the Commission requires the person to give the Commission so that it can make a determination; and
(b)	a reasonable time within which the information must be provided.".

(4) In section 38J of the Rail Corporations Act

1996—

(a) in sub-section (1), after paragraph (b) insert—

"; and

(c)	take into account, if relevant, the ability of the access seeker to obtain access to any other network.";
(b)	in sub-section (2), for "the period of time between the day on which notice is given under section 38H" substitute "any period of
time between the day on which a notice is given under section 38H(1)".

(5) In section 38J of the Rail Corporations Act

1996, after sub-section (3) insert—

'(4) If an access seeker also requires access to

any other network in order to provide a
passenger service or other transport service,
the Commission, before making the

determination, must if possible consult—

(a)	the owner or operator of the other network; and
(b)

any person appointed to act as whatever name called) under any

Rail Corporations (Amendment) Act 2002

Act No. 20/2002	s. 4
access regime applying to the other network.

(5) In this section—

"access seeker" means a person seeking

access to a declared rail transport
service in respect of which an
application has been made to the
Commission for a determination;

"other network" means rail infrastructure

or tram infrastructure (whether in or
outside Victoria) used to provide a
passenger service or other transport
service that is not the subject of the
application with which the Commission
is dealing.'.

(6) In section 38K(1) of the Rail Corporations Act

1996, for "this Part" substitute "this Division".

(7) In section 38O of the Rail Corporations Act

1996, sub-section (6) is repealed.

(8) In section 38P of the Rail Corporations Act

1996, for sub-section (1) substitute—

"(1) This section applies if information or a

document is given to the Commission—

(a) under section 38H(1); or

(b) Services Commission Act 2001 to

under section 37 of the Essential determination under section 38F of this Act—

and, at the time it is given, the person giving
it states that it is of a confidential or
commercially sensitive nature.".

Rail Corporations (Amendment) Act 2002

s. 5 Act No. 20/2002

(9) In section 38P(2)(a)(ii) of the Rail Corporations

Act 1996, for "the objectives of this Part" substitute "the Commission's objectives".

5. New Division 3 inserted in Part 2A

After section 38PA of the Rail Corporations Act

1996 insert—

'Division 3—Information Provided by Access

Seekers

38Q. What is information provided by an access

seeker?

In this Division, "information provided by
an access seeker" means any information
given to an operator of rail or tram
infrastructure by a person in the course of the
person seeking access to a declared rail
transport service, including, without

limitation, any information regarding—

(a)	the train or tram paths sought by the person;
(b)	forecasts of the person's intended use of the service;
(c)	the person's customers or potential customers;
(d)	the person's business and operational plans;

(e) the person's financial position.

38QA. Determination that confidentiality

requirements apply

(1) A person referred to in sub-section (2) may apply in writing to the Commission for the making of a determination in accordance

with section 34 of the Essential Services Commission Act 2001 that an operator of

Rail Corporations (Amendment) Act 2002

Act No. 20/2002 s. 5

rail or tram infrastructure who provides a
declared rail transport service is required to

comply with this Division.

(2) The persons who may apply under sub-

section (1) are—

(a) the Director on behalf of the State; or

(b) a person seeking access, or proposing to seek access, to the declared rail transport service.

(3) On an application under sub-section (1) the

Commission may determine that the operator is required to comply with this Division if—

(a) operator, or a related body corporate of
the operator, is substantially involved in

the Commission is satisfied that the who may seek access to the declared rail transport service; and

(b) the Commission is satisfied—

(i) comply with this Division would

that requiring the operator to operator; or

(ii) that although requiring the
operator to comply with this
Division would cause detriment to
the operator, it would assist in
achieving the Commission's
objectives and the benefit of
achieving those objectives would
outweigh any detriment caused by
the requirement to comply with
this Division.

Rail Corporations (Amendment) Act 2002

s. 5 Act No. 20/2002

(4) Subject to sub-section (5), the Commission must endeavour to determine an application under sub-section (1) within 30 days after

receiving it, excluding any period of time requiring them to give information to the Commission in respect of the application and the time when the required information is received by the Commission.

between the time when the Commission
gives a person notice under section 37 of the

(5) The Commission may refuse to make a

determination if the Commission considers
that the application is frivolous.

(6) An operator who is bound by a determination

may apply in writing to the Commission for
the revocation of the determination on the
ground that there has been a material change
in circumstances.

38QB. Confidentiality requirements

(1) An operator of rail or tram infrastructure

who is bound by a determination under
section 38QA, or an officer, employee or
contractor of that operator, must not disclose
information provided by an access seeker,
except as permitted by this section.

Penalty: 120 penalty units.

(2) An operator of rail or tram infrastructure

who is bound by a determination under
section 38QA, or an officer, employee or
contractor of that operator, must not use
information provided by an access seeker to
obtain directly or indirectly any pecuniary or
other advantage for the operator or for any
other person, except as permitted by this
section.

Rail Corporations (Amendment) Act 2002

Act No. 20/2002 s. 5

Penalty: 1200 penalty units.

(3) An operator of rail or tram infrastructure, or

an officer, employee or contractor of that
operator, may disclose information provided
by an access seeker—

(a)

to another person, other than a granting of access to the declared rail transport service; or

(b) to the Commission.

(4) For the purposes of sub-section (3)(a), a

"restricted person" means a person who is
directly involved, on behalf of the operator
or a related body corporate of the operator, in
the promotion or marketing of rail freight or

passenger services, other than a person—

(a) who is a director of the operator; or

(b) strategic decision making, performing
general supervisory or executive
functions or providing technical,

whose involvement is limited to support functions.

(5) A person may disclose or use information

provided by an access seeker if—

(a)	the person has the consent of the person who provided the information to disclose or use it; or
(b)	the disclosure or use is made in legal proceedings at the direction of a court or is otherwise required by law; or
(c)	the information is in the public domain at the time it is disclosed or used.

Rail Corporations (Amendment) Act 2002

s. 5 Act No. 20/2002

(6) Sub-section (5) is not intended to interfere

with any rights another person may have with regard to the disclosure or use of the information.

(7) If an operator is bound by a determination under section 38QA, this section applies to the operator and its officers, employees and contractors, while the determination has

effect, in respect of information provided by
an access seeker before or after the

determination took effect.

38QC. Operators to have policies to ensure

compliance with confidentiality

requirements

(1) An operator of rail or tram infrastructure

who is bound by a determination under
section 38QA must develop and maintain
written policies to ensure compliance by the
operator and its officers, employees and

contractors with section 38QB.

(2) The policies must be developed within a

reasonable period specified by the Commission in the determination.

(3) An operator must give a copy of each

policy—

(a)

to the Commission, as soon as developed; and

(b) to any other person on request.

(4) If the operator amends a policy, it must give

the Commission a copy of the amended
policy as soon as practicable after the
amendment is made.'.

Rail Corporations (Amendment) Act 2002

Act No. 20/2002 s. 6

6. Division 4 heading inserted

Before section 38R of the Rail Corporations Act

1996 insert—

"Division 4—General".

7. New section 38RA inserted

After section 38R of the Rail Corporations Act

1996 insert—

"38RA. Commission's power to obtain information

and documents

(1) Any power given by or under this Part to the Commission to obtain information or documents is in addition to the Commission's powers under section 37 of the Essential Services Commission Act 2001 to obtain information or documents that may assist the Commission in the performance of any of its functions.

(2) Without limiting the application of sub-

section (1), the Commission may exercise
any of its powers under section 37 of the

Essential Services Commission Act 2001—

(a) determining compliance with

to assist the Commission in rail transport services;

(b)	to assist the Commission in making a determination under section 38QA;
(c)	whether or not a person has applied to the Commission for the making of a determination under section 38F.".

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Rail Corporations (Amendment) Act 2002

Endnotes Act No. 20/2002

ENDNOTES

†

Minister's second reading speech—

Legislative Assembly: 18 April 2002

Legislative Council: 8 May 2002

The long title for the Bill for this Act was "to amend the Rail
Corporations Act 1996 in relation to the rail access regime and for other
purposes."