Railways (Access) Amendment Act 2000 (WA)

Western Australia

Railways (Access) Amendment Act 2000

Western Australia

Railways (Access) Amendment Act 2000

CONTENTS

Part 1 — Preliminary

1.	Short title	2
2.	Commencement	2
*Part 2 —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
Division 1 — Office of Western Australian Independent Rail Access Regulator

13. Western Australian Independent Rail

Access Regulator

14.

Appointment of Regulator

15.

Term of office

16.

Resignation

17.

Suspension of Regulator

18.

Removal of Regulator

19.

Remuneration and conditions of office

19A.

Oath of office

19B.

Acting Regulator

7.	Heading to Part 3 Division 2 replaced	9
8.	Section 20 replaced by sections 20, 20A, 20B, and
20C	9

20.	Functions of Regulator	9
20A.	Independence of Regulator	11
20B.	Delegation	11
20C.	Conflict of interest	12

Railways (Access) Amendment Act 2000

Contents

9.	Part 3 Divisions 3 to 5 inserted	12
Division 3 — Staff and consultants

23A.	Staff	12
23B.	Consultants	13
23C.	Use of government staff and facilities	13

Division 4 — Financial provisions

23D.	Bank account	14
23E.	Borrowing from Treasurer	14
23F.	Application of Financial Administration and
Audit Act 1985	14

Division 5 — General

23G.

Immunity

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
13.	Rail Freight System Act 2000 amended	17

Western Australia

Railways (Access) Amendment Act 2000

No. 55 of 2000

An Act to amend the Railways (Access) Act 1998 and to amend various other Acts as a consequence.

[Assented to 28 November 2000]

The Parliament of Western Australia enacts as follows:

Railways (Access) Amendment Act 2000

Part 1	Preliminary
s. 1

Part 1 — Preliminary

1. Short title

This Act may be cited as the Railways (Access) Amendment Act

2000.

2. Commencement

This Act comes into operation on the day on which it receives

the Royal Assent.

Railways (Access) Amendment Act 2000

Railways (Access) Act 1998 amended

Part 2

s. 3

Part 2 —Railways (Access) Act 1998 amended

3. The Act amended

The amendments in this Part are to the Railways (Access) Act

1998*.

[* Act No. 49 of 1998.

For subsequent amendments see Act No. 13 of 2000.]

4. Long title amended

The long title is amended by deleting “designating an official”

and inserting instead —

“ establishing an office ”.

5. Section 3 amended

Section 3 is amended by deleting the definition of “Regulator”

and inserting instead the following definition —

“

“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

Part 3 Division 1 is repealed and the following Division is

inserted instead —

“

Division 1 — Office of Western Australian Independent

Rail Access Regulator

13. Western Australian Independent Rail Access Regulator

(1)	An office of the Western Australian Independent Rail Access Regulator is established.

Railways (Access) Amendment Act 2000

Part 2	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

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.

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
(b)	request the Commissioner to act under this section to enable the filling of that vacancy or impending vacancy.

(2)	On submitting the request to the Commissioner, the Minister may advise the Commissioner of any 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 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.
(5)	To assist in the examination of applicants, the Commissioner is to form a selection panel that is to be

Railways (Access) Amendment Act 2000

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 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 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 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 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 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 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

Railways (Access) Amendment Act 2000

Part 2	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

(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 —
“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

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

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

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 performing the functions of office;

Railways (Access) Amendment Act 2000

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.

(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.

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 first 7 sitting days of that House following the suspension; and
(b)	which the statement is so laid, and within

each House of Parliament, during the session in 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),

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.

Railways (Access) Amendment Act 2000

Part 2	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 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 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.

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.

(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 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 to that matter.

Railways (Access) Amendment Act 2000

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.

(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.

(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.

”.

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

Section 20 is repealed and the following sections are inserted

instead —

“

20. Functions of Regulator

(1) The Regulator —

(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.

Railways (Access) Amendment Act 2000

Part 2	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

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.

(4)

In performing functions under this Act or the Code, the

Regulator is to take into account —

(a)

the railway owner’s legitimate business infrastructure;

(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 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;
(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;
(f)	the operational and technical requirements necessary for the safe and reliable use of the railway infrastructure;

Railways (Access) Amendment Act 2000

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.

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.
(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 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.
(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 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

The Regulator may by instrument delegate the

performance of any function, not including the power

Railways (Access) Amendment Act 2000

Part 2

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 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
(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 —

(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 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 —

“

Division 3 — Staff and consultants

23A.

Staff

Public service officers are to be appointed or made

available under Part 3 of the Public Sector

Management Act 1994 to enable the Regulator to

perform his or her functions.

Railways (Access) Amendment Act 2000

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
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 —

(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

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
(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
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

Railways (Access) Amendment Act 2000

Part 2

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 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

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 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 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

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 Audit Act 1985 regulating the financial administration,

Railways (Access) Amendment Act 2000

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

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).

(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

this subsection for that year.

Division 5 — General

23G.

Immunity

(1)	No personal liability attaches to —

(a) the Regulator;

(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,

or purported performance, of official functions.

(2)	A liability that would, but for subsection (1), lie against a person, lies instead against the Crown.

”.

Railways (Access) Amendment Act 2000

Part 3	Consequential amendmentsı
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

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)

Act 1998.

”.

[*	Reprinted as at 15 April 1999. For subsequent amendments see 1999 Index to Legislation of Western Australia, Table 1, pp. 49-50.]

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 ”.

[*	Reprinted as at 9 July 1999. For subsequent amendments see 1999 Index to Legislation of Western Australia, Table 1, p. 89.]

Railways (Access) Amendment Act 2000

Consequential amendmentsı	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 —

“

The Western Australian Independent Rail Access Regulator

appointed under section 13 of the Railways (Access)

Act 1998.

”.

[*	Reprinted as at 20 January 1997. For subsequent amendments see 1999 Index to Legislation of Western Australia, Table 1, p. 181.]

13. Rail Freight System Act 2000 amended

Section 89 of the Rail Freight System Act 2000* is repealed.

[* Act No. 13 of 2000.]