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This is a Bill, not an Act. For current law, see the Acts databases.
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 Section 20 repealed 8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 Schedule 2 repealed 18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
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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
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Grain Handling and Storage (Amendment) Act 2003
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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.
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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);'.
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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
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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".
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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
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(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.".
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(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.
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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.".
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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
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(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
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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.
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(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;
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(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).
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(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
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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
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(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;'.
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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
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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
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