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GRAIN HANDLING AND STORAGE (AMENDMENT) BILL 2003

                                                                     PARLIAMENT OF VICTORIA

                                                        Grain Handling and Storage (Amendment) Act
                                                                           2003
Victorian Legislation and Parliamentary Documents




                                                                                    Act No.


                                                                           TABLE OF PROVISIONS
                                                    Clause                                                               Page
                                                      1.     Purposes                                                       1
                                                      2.     Commencement                                                   2
                                                      3.     Purpose                                                        3
                                                      4.     Definitions                                                    3
                                                      5.     Powers in relation to price regulation                         4
                                                      6.     Access rules                                                   5
                                                      7.     Section 17 amended                                             5
                                                      8.     Procedure if agreement cannot be reached                       6
                                                      9.     Application for general determination                          8
                                                      10.    Section 20 repealed                                            8
                                                      11.    Hindering access                                               9
                                                      12.    Financial records                                             10
                                                      13.    Conduct of inquiries                                          10
                                                      14.    New section 23A inserted                                      10
                                                             23A. Commission may publish guidelines                        10
                                                      15.    New section 24 substituted                                    11
                                                             24.      Effect of facility ceasing to be a significant
                                                                      infrastructure facility                              11
                                                      16.    New sections 24A, 24B, 24C, 24D and 24E inserted              12
                                                             24A. Procedures and powers of the Commission                  12
                                                             24B. Commission may give directions in relation to a dispute 13
                                                             24C. Confidentiality agreements                               14
                                                             24D. Costs of the Commission                                  15
                                                             24E.     Appeals                                              16
                                                      17.    Determination of fees and charges                             18
                                                      18.    Schedule 2 repealed                                           18
                                                      19.    Statute law revision--Rail Corporations Act 1996              18
                                                                                 

                                                    ENDNOTES                                                               19




                                                                                        i
                                                    551087B.I1-29/8/2003                         BILL LA CIRCULATION 29/8/2003

 


 

PARLIAMENT OF VICTORIA Initiated in Assembly 26 August 2003 Victorian Legislation and Parliamentary Documents A BILL to amend the Grain Handling and Storage Act 1995 to ensure that disputes relating to access to grain handling and storage services at the ports of Geelong and Portland are primarily resolved by an arbitrated access regime and for other purposes. Grain Handling and Storage (Amendment) Act 2003 The Parliament of Victoria enacts as follows: 1. Purposes The main purposes of this Act are to amend the Grain Handling and Storage Act 1995-- (a) to ensure that disputes relating to access to 5 grain handling and storage services at the ports of Geelong and Portland are primarily resolved by an arbitrated access regime; and 551087B.I1-29/8/2003 BILL LA CIRCULATION 29/8/2003 1

 


 

Grain Handling and Storage (Amendment) Act 2003 s. 2 Act No. (b) to ensure that a price determination by the Essential Services Commission under section 15 of the Grain Handling and Victorian Legislation and Parliamentary Documents Storage Act 1995 may only occur with the 5 approval of the Minister administering Part 3 of that Act and after completion of an inquiry by the Commission; and (c) to expand the scope of the Grain Handling and Storage Act 1995 to all facilities related 10 to the export shipping of grain at the ports of Geelong and Portland, rather than only those facilities previously owned by the Grain Elevators Board; and (d) to clarify the role of the Essential Services 15 Commission regarding disputes over access to grain handling and storage services at those ports; and (e) to allow for a further inquiry into this industry to be completed by 30 June 2006 20 with further inquiries, if necessary, every subsequent 5 years from that date. 2. Commencement This Act comes into operation on the day after the day on which it receives the Royal Assent. 2 551087B.I1-29/8/2003 BILL LA CIRCULATION 29/8/2003

 


 

Grain Handling and Storage (Amendment) Act 2003 s. 3 Act No. 3. Purpose See: In section 1 of the Grain Handling and Storage Act No. Victorian Legislation and Parliamentary Documents Act 1995, for "grain." substitute "grain for export 45/1995. Reprint No. 1 shipping at the Port of Geelong and the Port of as at 5 Portland.". 26 February 1998 and amending Act Nos 85/1998, 74/2000, 62/2001 and 11/2002. LawToday: www.dms. dpc.vic. gov.au 4. Definitions (1) In section 3 of the Grain Handling and Storage Act 1995 insert the following definition-- ' "provider", in relation to a prescribed service, 10 means the owner or operator of the significant infrastructure facility that is used, or is to be used, to provide the prescribed service;'. (2) In section 3 of the Grain Handling and Storage 15 Act 1995-- (a) for the definition of "prescribed prices" substitute-- ' "prescribed prices" means the charges under section 15(1)(c);'; 20 (b) in the definition of "prescribed services", for "15(1)(c)" substitute "15(1)(b)"; (c) for the definition of "significant infrastructure facility" substitute-- ' "significant infrastructure facility" 25 means a facility within the meaning of section 16(1);'. 3 551087B.I1-29/8/2003 BILL LA CIRCULATION 29/8/2003

 


 

Grain Handling and Storage (Amendment) Act 2003 s. 5 Act No. 5. Powers in relation to price regulation (1) For sections 15(1)(b) and 15(1)(c) of the Grain Victorian Legislation and Parliamentary Documents Handling and Storage Act 1995 substitute-- "(b) the services provided, in respect of the 5 regulated industry, in the Port of Geelong and the Port of Portland of receiving, moving, inspecting, testing, stock control (including marshalling, storing and management), weighing, elevating and 10 loading grain are prescribed services; (c) the charges for the prescribed services under paragraph (b) are prescribed prices.". (2) After section 15(3) of the Grain Handling and Storage Act 1995 insert-- 15 "(4) The Commission may only make a determination in respect of prescribed prices under this section with the approval of the Minister administering this Part following an inquiry under sub-section (7) or under 20 section 41 of the Essential Services Commission Act 2001. (5) Sub-section (4) does not apply to a determination of the Commission under section 18, 19 or 21 that includes the setting 25 of prescribed prices. (6) An approval under sub-section (4) operates until it is revoked by the Minister administering this Part. (7) The Commission may, after consultation 30 with the Minister administering the Essential Services Commission Act 2001, conduct an inquiry under section 40 of that Act, if the Commission considers an inquiry is necessary or desirable for the purpose of 35 deciding whether to seek approval under 4 551087B.I1-29/8/2003 BILL LA CIRCULATION 29/8/2003

 


 

Grain Handling and Storage (Amendment) Act 2003 s. 6 Act No. sub-section (4) to make a determination in respect of prescribed prices.". Victorian Legislation and Parliamentary Documents 6. Access rules In section 16(2)(b) of the Grain Handling and 5 Storage Act 1995, for "the service" substitute "the prescribed services". 7. Section 17 amended (1) Insert the following heading to section 17 of the Grain Handling and Storage Act 1995-- 10 "Obligations of provider". (2) For section 17(1) of the Grain Handling and Storage Act 1995 substitute-- "(1) The provider must provide access to the prescribed services on fair and reasonable 15 terms and conditions.". (3) In section 17(2) of the Grain Handling and Storage Act 1995, for "access to a significant infrastructure facility" substitute "access to prescribed services". 20 (4) In section 17(3) of the Grain Handling and Storage Act 1995, for "owner of a significant infrastructure facility" substitute "provider". (5) In section 17(4) of the Grain Handling and Storage Act 1995, for "owner of a significant 25 infrastructure facility" substitute "provider". (6) In section 17(4)(d) of the Grain Handling and Storage Act 1995, for "significant infrastructure facility" substitute "prescribed services". 5 551087B.I1-29/8/2003 BILL LA CIRCULATION 29/8/2003

 


 

Grain Handling and Storage (Amendment) Act 2003 s. 8 Act No. 8. Procedure if agreement cannot be reached (1) For sections 18(1) and 18(2) of the Grain Victorian Legislation and Parliamentary Documents Handling and Storage Act 1995 substitute-- "(1) A person seeking access to prescribed 5 services may apply in writing to the Commission for the making of a determination under Part 3 of the Essential Services Commission Act 2001 specifying the terms and conditions on which access is 10 to be provided if-- (a) the provider and the person seeking access cannot agree on the terms and conditions on which access is to be provided; or 15 (b) the provider has failed to make a formal proposal under section 17(3)(b) within the time period set out in that section. (2) The Commission must within 15 days of receiving an application under sub-section 20 (1) give notice in writing to the person making the application or to any other person from whom the Commission is entitled to require information or a document under the Essential Services Commission Act 2001, 25 specifying any information or document that the Commission requires the person to give so that the Commission can make, or refuse to make, a determination.". (2) After section 18(3) of the Grain Handling and 30 Storage Act 1995 insert-- "(3A) Without limiting any other powers of the Commission, the Commission may refuse to make a determination if-- (a) the Commission considers that the 35 application is trivial or vexatious; or 6 551087B.I1-29/8/2003 BILL LA CIRCULATION 29/8/2003

 


 

Grain Handling and Storage (Amendment) Act 2003 s. 8 Act No. (b) the Commission is satisfied that-- (i) the provider has complied with the Victorian Legislation and Parliamentary Documents obligations under section 17; and (ii) the terms and conditions of access 5 being offered by the provider do not constitute a taking advantage of a substantial degree of market power in the provision of the prescribed services; and 10 (iii) having regard to the objectives of the Commission under section 14 and under the Essential Services Commission Act 2001 and to any other matter that the Commission 15 considers relevant, it is appropriate to refuse to make a determination. (3B) A person who is aggrieved by a decision of the Commission to refuse to make a 20 determination under this section, may appeal as if that decision was a determination for the purposes of section 55(1)(c) of the Essential Services Commission Act 2001.". (3) After section 18(4) of the Grain Handling and 25 Storage Act 1995 insert-- "(4A) In making a determination the Commission may require the provider to extend, or to permit the extension of, the facility used to provide a prescribed service, subject to the 30 matters specified in paragraph (j) of clause 6(4) of the Competition Principles Agreement.". 7 551087B.I1-29/8/2003 BILL LA CIRCULATION 29/8/2003

 


 

Grain Handling and Storage (Amendment) Act 2003 s. 9 Act No. (4) For section 18(6) of the Grain Handling and Storage Act 1995 substitute-- Victorian Legislation and Parliamentary Documents "(6) In determining an access dispute under this section, the Commission must act as quickly 5 as proper consideration of the dispute allows, having regard to the need to carefully investigate all matters affecting the merits and fair settlement of the dispute.". (5) Section 18(7) of the Grain Handling and 10 Storage Act 1995 is repealed. 9. Application for general determination (1) In section 19(1) of the Grain Handling and Storage Act 1995-- (a) for "owner of a significant infrastructure 15 facility" substitute "provider". (b) for "access to the significant infrastructure facility" substitute "access to prescribed services". (2) For section 19(2) of the Grain Handling and 20 Storage Act 1995 substitute-- "(2) The Commission must within 20 days of receiving an application under sub-section (1) give notice in writing to the provider specifying any information or document that 25 the Commission requires the provider to give so that the Commission can make a determination.". (3) In section 19(4) of the Grain Handling and Storage Act 1995, for "owner of the significant 30 infrastructure facility" substitute "provider". 10. Section 20 repealed Section 20 of the Grain Handling and Storage Act 1995 is repealed. 8 551087B.I1-29/8/2003 BILL LA CIRCULATION 29/8/2003

 


 

Grain Handling and Storage (Amendment) Act 2003 s. 11 Act No. 11. Hindering access (1) For section 21(1) of the Grain Handling and Victorian Legislation and Parliamentary Documents Storage Act 1995 substitute-- "(1) The provider or any person having access to 5 the prescribed services must not engage in conduct having a purpose of hindering access to the prescribed services by any other person in the exercise of a reasonable right of access.". 10 (2) In section 21(2) of the Grain Handling and Storage Act 1995 for "a significant infrastructure facility" substitute "prescribed services". (3) After section 21(2) of the Grain Handling and Storage Act 1995 insert-- 15 "(2A) The Commission must within 15 days of receiving an application under sub-section (1) give notice in writing to the person making the application or to any other person from whom the Commission is entitled to 20 require information or a document under the Essential Services Commission Act 2001, specifying any information or document that the Commission requires the person to give so that the Commission can make, or refuse 25 to make, a determination.". (4) After section 21(3) of the Grain Handling and Storage Act 1995 insert-- "(3A) Without limiting any other powers of the Commission, the Commission may refuse to 30 make a determination if it considers that the application is trivial or vexatious.". 9 551087B.I1-29/8/2003 BILL LA CIRCULATION 29/8/2003

 


 

Grain Handling and Storage (Amendment) Act 2003 s. 12 Act No. 12. Financial records (1) For section 22(1) of the Grain Handling and Victorian Legislation and Parliamentary Documents Storage Act 1995 substitute-- "(1) The provider must keep financial records in 5 respect of the prescribed services which are separate from other aspects of any business conducted by the provider.". (2) In section 22(2) of the Grain Handling and Storage Act 1995, for "owner of prescribed 10 services" substitute "provider". 13. Conduct of inquiries (1) In section 23(1) of the Grain Handling and Storage Act 1995, for "30 June 2003" substitute "30 June 2006". 15 (2) In section 23(2) of the Grain Handling and Storage Act 1995, for "3 years" substitute "5 years". 14. New section 23A inserted After section 23 of the Grain Handling and 20 Storage Act 1995 insert-- "23A. Commission may publish guidelines (1) For the purposes of section 13 of the Essential Services Commission Act 2001, the Commission-- 25 (a) must publish guidelines in relation to the matters the Commission may take into account in deciding to refuse to make a determination under section 18; (b) may publish guidelines in relation to-- 30 (i) the form and content of a formal proposal which a provider must make under section 17(3)(b); and 10 551087B.I1-29/8/2003 BILL LA CIRCULATION 29/8/2003

 


 

Grain Handling and Storage (Amendment) Act 2003 s. 15 Act No. (ii) the making of an order for payment of the Commission's costs under section 24D; and Victorian Legislation and Parliamentary Documents (iii) any other matter in connection 5 with the exercise of its powers under sections 18, 19 and 21. (2) Guidelines under this section are not binding on the Commission.". 15. New section 24 substituted 10 For section 24 of the Grain Handling and Storage Act 1995 substitute-- "24. Effect of facility ceasing to be a significant infrastructure facility If the Minister administering the Essential 15 Services Commission Act 2001, after considering a recommendation of the Commission, determines that a facility has ceased to be a significant infrastructure facility-- 20 (a) subject to paragraph (b), an existing determination made by the Commission (including a price determination under section 33 of the Essential Services Commission Act 2001) in respect of 25 prescribed services to which the facility relates, is revoked from the date specified by that Minister; and (b) an existing price determination made by the Commission, in respect of 30 prescribed services to which the facility does not relate, continues to operate.". 11 551087B.I1-29/8/2003 BILL LA CIRCULATION 29/8/2003

 


 

Grain Handling and Storage (Amendment) Act 2003 s. 16 Act No. 16. New sections 24A, 24B, 24C, 24D and 24E inserted After section 24 of the Grain Handling and Victorian Legislation and Parliamentary Documents Storage Act 1995 insert-- '24A. Procedures and powers of the 5 Commission (1) For the purposes of section 11(2) of the Essential Services Commission Act 2001, the Commission, in making, or considering whether to make, a determination under 10 Division 2-- (a) is not bound by the rules of evidence or any forms, practices or procedures applicable to courts of record, except to the extent that it adopts those rules, 15 forms, practices or procedures; (b) may inform itself on any matter relevant to the application as it considers appropriate, including by commissioning expert reports; 20 (c) may, subject to the limitations contained in sections 18, 19 and 21, conduct its investigations in any manner it considers appropriate. (2) At any time prior to the making of a 25 determination the Commission may allow the withdrawal of the application by the party seeking a determination. (3) A determination made under Division 2 is a determination for the purposes of the 30 Essential Services Commission Act 2001. (4) The making of, or refusal to make, a determination under Division 2 is not an arbitration for the purposes of the Commercial Arbitration Act 1984. 12 551087B.I1-29/8/2003 BILL LA CIRCULATION 29/8/2003

 


 

Grain Handling and Storage (Amendment) Act 2003 s. 16 Act No. (5) Except as provided in sub-sections (6) and (7), sections 37 and 38 of the Essential Services Commission Act 2001 apply to Victorian Legislation and Parliamentary Documents this Act. 5 (6) Section 37(4) of the Essential Services Commission Act 2001 does not apply to a requirement made under section 24B(1). (7) Section 38 of the Essential Services Commission Act 2001 only applies to 10 information or a document required under section 24B(1)(a) if the Commission proposes to disclose the information or document to a person who is not identified by the Commission under section 24B(1)(a). 15 24B. Commission may give directions in relation to a dispute (1) The Commission, for the purposes of facilitating negotiations or determining a dispute under Division 2, may require a 20 person who is or was a party to the dispute to do, or refrain from doing, something, including-- (a) requiring a person to give relevant information or a document to one or 25 more other persons identified by the Commission, and a copy to the Commission, subject to section 24C; (b) requiring a person to carry out reasonable research or investigations in 30 order to obtain relevant information; (c) prohibiting a person from imposing, or seeking to impose, an unreasonable procedural condition on the person's participation in negotiations; 13 551087B.I1-29/8/2003 BILL LA CIRCULATION 29/8/2003

 


 

Grain Handling and Storage (Amendment) Act 2003 s. 16 Act No. (d) requiring a person to respond in writing to another person's proposal or request in relation to the time and place of a Victorian Legislation and Parliamentary Documents meeting; 5 (e) requiring a person, or a representative of a person, to attend a mediation conference. (2) For the purposes of sub-section (1)(c) "an unreasonable procedural condition" includes 10 a requirement by one party that the other party or parties to the dispute must not disclose to the Commission information or a document provided in the course of negotiations. 15 (3) A person must not, without lawful excuse, disobey a requirement of the Commission made under this section. Penalty: 60 penalty units. 24C. Confidentiality agreements 20 (1) This section applies if-- (a) the Commission makes a requirement under section 24B(1)(a); and (b) the person in control or possession of the information or document ("the 25 disclosing party") notifies the Commission in writing that the information or document is of a confidential or commercially-sensitive nature; and 30 (c) the Commission notifies the person that the information or document must still be provided in accordance with section 24B(1)(a). 14 551087B.I1-29/8/2003 BILL LA CIRCULATION 29/8/2003

 


 

Grain Handling and Storage (Amendment) Act 2003 s. 16 Act No. (2) If, under sub-section (1)(c), the Commission notifies the disclosing party that the information or document must still be Victorian Legislation and Parliamentary Documents provided in accordance with section 5 24B(1)(a), the disclosing party may require the person receiving the information or document ("the receiving party") to enter into a confidentiality agreement. (3) The terms of a confidentiality agreement 10 may be proposed by the disclosing party and those terms must be promptly notified to the Commission and to the receiving party. (4) If the Commission considers that the terms of the proposed confidentiality agreement are 15 unreasonable, the Commission may decide to amend or delete those terms or substitute other terms. 24D. Costs of the Commission (1) In this section, "Commission's costs" 20 means the total amount of the costs and expenses of the Commission that are incurred or are likely to be incurred by the Commission in the exercise of its powers for or in connection with the making of, or 25 refusal to make, a determination under Division 2. (2) The Commission may make an order in relation to the payment of the Commission's costs-- 30 (a) after making, or refusing to make, a determination; or (b) if, at any time prior to the Commission making a determination or refusing to make a determination in relation to a 35 dispute under Division 2, a person 15 551087B.I1-29/8/2003 BILL LA CIRCULATION 29/8/2003

 


 

Grain Handling and Storage (Amendment) Act 2003 s. 16 Act No. withdraws the application for a determination. Victorian Legislation and Parliamentary Documents (3) In making an order under sub-section (2) the Commission may require each party to bear 5 different proportions of the Commission's costs. (4) An order for costs under this section is a debt due to the Commission. (5) Subject to this section, each party to a 10 dispute under Division 2 is to bear its own costs. 24E. Appeals (1) A person who is aggrieved by a requirement of the Commission under section 24B(1)(a) 15 or a decision of the Commission under section 24C(4) may appeal against that requirement or decision. (2) An appeal may only be made on the ground that-- 20 (a) the requirement or decision was not made in accordance with the law; or (b) the requirement or decision is unreasonable having regard to all relevant circumstances. 25 (3) The person must lodge notice of the appeal with the Commission within 7 working days after the person is given notice of the requirement or decision. (4) On the hearing of an appeal under this 30 section, the Commission bears the onus of establishing that-- (a) the requirement or decision was made in accordance with the law; and 16 551087B.I1-29/8/2003 BILL LA CIRCULATION 29/8/2003

 


 

Grain Handling and Storage (Amendment) Act 2003 s. 16 Act No. (b) the requirement or decision is reasonable having regard to all relevant circumstances. Victorian Legislation and Parliamentary Documents (5) Sections 56 to 59 of the Essential Services 5 Commission Act 2001 apply to an appeal under this section. (6) For the purposes of sub-section (5)-- (a) section 56 of the Essential Services Commission Act 2001 applies as if 10 paragraph (b) formed part of sub- section (7) of that section; (b) in the case of an appeal under section 24E(1)-- (i) may affirm, cancel or modify the 15 requirement made under section 24B(1)(a); (ii) may affirm, cancel or modify the terms of a confidentiality agreement decided by the 20 Commission under section 24C(4); (iii) may remit the matter back to the Commission to be dealt with in accordance with the decision and 25 recommendations (if any) of the appeal panel; (iv) the appeal must be heard and decided within 7 working days of the appeal panel being constituted 30 or, if the appeal panel requires further time, within a further period not exceeding 7 working days;'. 17 551087B.I1-29/8/2003 BILL LA CIRCULATION 29/8/2003

 


 

Grain Handling and Storage (Amendment) Act 2003 s. 17 Act No. 17. Determination of fees and charges In section 25G(a) of the Grain Handling and Victorian Legislation and Parliamentary Documents Storage Act 1995, for "Act" substitute "Part". 18. Schedule 2 repealed 5 Schedule 2 to the Grain Handling and Storage Act 1995 is repealed. 19. Statute law revision--Rail Corporations Act 1996 In section 38PA(6)(a) of the Rail Corporations Act 1996, for "sub-section (6)" substitute "sub- 10 section (7)". 18 551087B.I1-29/8/2003 BILL LA CIRCULATION 29/8/2003

 


 

Grain Handling and Storage (Amendment) Act 2003 Endnotes Act No. ENDNOTES Victorian Legislation and Parliamentary Documents By Authority. Government Printer for the State of Victoria. 19 551087B.I1-29/8/2003 BILL LA CIRCULATION 29/8/2003

 


 

 


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