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RAIL CORPORATIONS (AMENDMENT) BILL 2002

           Rail Corporations (Amendment) Bill

                          Circulation Print

               EXPLANATORY MEMORANDUM

Clause 1    states that the purpose of the Act is to make provision for the
            improvement of the rail access regime in accordance with
            national competition policy guidelines.

Clause 2    provides for the commencement of the Act on the day after Royal
            Assent.

Clause 3    inserts a new definition of "related body corporate" in section
            3(1) of the Principal Act. The term is used in the new Division 3
            of Part 2A.

Clause 4    Clause 4(1) has the effect of dividing Part 2A of the Principal Act
            into Divisions. It does this by inserting headings for new
            Divisions 1 and 2 in that Part.
            Clause 4(2) inserts a new sub-section (4) in section 38F of the
            Principal Act, clarifying that any determination by the Essential
            Services Commission ("the Commission") under that section is
            not an arbitration for the purposes of the Commercial
            Arbitration Act 1984.
            Clause 4(3) makes amendments to section 38H of the Principal
            Act to clarify that the Commission can obtain information from
            any person who the Commission has reason to believe has
            information that may assist it in making a determination. It also
            removes the limitation that the Commission can only seek
            information within 20 days of a dispute arising.
            Clause 4(4) amends section 38J of the Principal Act to provide
            that, in making a determination, the Commission should take into
            account, where relevant, the ability of the access seeker to obtain
            access to any other rail/tram networks. The clause also amends
            section 38J(2) as a consequence of the amendment to section 38H
            made by clause 4(3).



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541289                                         BILL LA CIRCULATION 18/4/2002

 


 

Clause 4(5) inserts a new sub-section (4) in section 38J to provide that, where an access seeker also requires access to another network, the Commission must, before making an access determination, if possible consult the owner or operator of the other network and any person appointed to act as arbitrator, mediator or conciliator under any access regime applying to the other network. A new sub-section (5) includes definitions of the terms "access seeker" and "other network". Clause 4(6) amends section 38K(1) of the Principal Act as a consequence of the division of Part 2A into Divisions. Clause 4(7) repeals sub-section 38O(6) of the Principal Act because it is intended that the provisions of Part 4 of the Essential Services Commission Act 2001 ("ESC Act") for the collection of information by the Commission will apply for the purposes of the Commission's functions under the Principal Act. Clause 4(8) substitutes a new sub-section in section 38P of the Principal Act. The proposed sub-section applies the restriction of disclosure of confidential information only where the person providing the information states that it is of a confidential or commercially sensitive nature. It reflects the amendment in clause 7 which clarifies that the Commission can use its powers under section 37 of the ESC Act to collect information for the purposes of its functions under the Principal Act. Clause 4(9) amends section 38P(2)(a)(ii) of the Principal Act to clarify that the Commission is to take all of its objectives into account when deciding whether to disclose information under section 38P(2). Clause 5 inserts a new Division 3 entitled "Information Provided by Access Seekers" into Part 2A of the Principal Act. The proposed Division will consist of a number of new sections: Proposed section 38Q provides a new definition of "information provided by an access seeker". Proposed section 38QA outlines the situation in which a person may apply in writing to the Commission for a determination that confidentiality requirements apply, and the circumstances in which the Commission may make a determination that the operator of rail/tram infrastructure is required to comply with the Division. 2

 


 

Proposed section 38QB details the circumstances in which confidentiality requirements apply to operators of rail or tram infrastructure, as well as providing a number of penalties for persons bound by a determination under section 38QA who breach the specified confidentiality requirements. The proposed section also provides details of the circumstances in which a person may disclose information provided by an access seeker. Proposed section 38QC inserts a requirement that operators of rail or tram infrastructure who are bound by a determination under section 38QA must develop and maintain written policies to ensure compliance with the confidentiality requirements specified under section 38QB by the operator, its officers, employees and contractors. Clause 6 inserts a new heading before section 38R of the Principal Act to create "Division 4--General" in Part 2A. Clause 7 inserts a new section 38RA into the proposed Division 4 of Part 2A. The proposed section 38RA provides the Commission with the power to exercise any of its existing powers under section 37 of the ESC Act to obtain information and documents for the purpose of assisting it in the performance of any of its functions under the Principal Act, including-- the determination of compliance with section 38O by operators of declared rail transport services; and the making of a determination under section 38QA or under section 38F of the Principal Act. 3

 


 

 


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