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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.
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