Transport Legislation (Further Amendment) Act 2005

i Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purposes 1 2. Commencement 2 PART 2—AMENDMENT OF RAIL CORPORATIONS ACT 1996 4 3. Definitions 4 4. New Division 1 of Part 2A substituted and Divisions 2 and 3 of Part 2A repealed 6 Division 1—Introduction 6 38A. Definitions 6 38B. Associated rail infrastructure may be declared to be rail infrastructure 14 38C. Tabling and disallowance of Orders under section 38B 14 38D. Declaration of persons to be access providers 15 38E. Application of Essential Services Commission Act 2001 15 38F. Objectives of the Commission 16 38G. Meaning of "operate" 16 38H. Principle of passenger priority 17 38I. Declaration of rail transport services 17 38J. Pricing Principles Order 19 38K. Declaration of certain agreements to be relevant rail infrastructure agreements 22 38L. Extra-territorial operation 22 5. New Divisions 2 and 3 of Part 2A inserted 23 Division 2—Commission Rules and Guidelines 23 38M. Definition 23 38N. Procedural requirements for the making of a Commission instrument 23 38O. Commission instruments may incorporate documents and other material 24 -- 1 of 153 -- Section Page ii 38P. General powers applicable to the making of a Commission instrument 25 38Q. Commission instruments must be in force at all times 25 38R. Account keeping rules 26 38S. Ring fencing rules 27 38T. Capacity use rules 27 38U. Network management rules 29 38V. Negotiation guidelines 30 Division 3—Access Arrangements 32 38W. Submission of access arrangement to Commission for approval 32 38X. Contents of proposed access arrangements 32 38Y. Notification by Commission of submission to it of proposed access arrangement 34 38Z. Submission and comments in relation to proposed access arrangement 35 38ZA. Consideration of submission or comments by Commission 35 38ZB. Draft decision on whether proposed access arrangement will be approved 36 38ZC. Access provider may submit revisions to proposed access arrangement 39 38ZD. Submission and comments in relation to draft decision 40 38ZE. Consideration of submissions and comments on draft decision 40 38ZF. Final decision on proposed access arrangement 40 38ZG. Time within Commission must make a final decision 42 38ZH. Giving and publishing a final decision 42 38ZI. Matters to be taken into account in making a final decision 43 38ZJ. Commission to make proposed access arrangement in certain cases 44 38ZK. Deemed access arrangement if Commission fails to make a certain access arrangement 46 38ZL. Deemed access arrangements may be replaced in certain circumstances 47 38ZM. Period of operation of access arrangement 48 38ZN. Effect of access arrangement approved under this Division or made by the Commission 49 38ZO. Variation of a binding access arrangement on the application of the access provider 49 38ZP. Variation of a binding access arrangement by Commission 51 -- 2 of 153 -- Section Page iii 38ZQ. Substitution of access provider to a binding access arrangement 52 38ZR. Renewal of access arrangement 53 38ZS. Appeals from Commission decisions under Division 3 55 6. New Division 4 of Part 2A substituted and new Divisions 5 to 9 of Part 2A inserted 56 Division 4—Interconnection of Railways 56 38ZT. Interconnection 56 Division 5—Dispute Resolution 58 38ZU. What is an access regime dispute? 58 38ZV. Notification of access regime dispute 59 38ZW. Withdrawal of notice of access regime dispute 60 38ZX. Commission must decide on access regime disputes 60 38ZY. Time within which Commission must make dispute resolution decision 61 38ZZ. Minister may extend time within which Commission may make decision 62 38ZZA. Commission may decide not to make dispute resolution decision in certain cases 62 38ZZB. Matters to be taken into account in making decision 63 38ZZC. Decisions must not be inconsistent with principles and rules 63 38ZZD. Decisions must not be inconsistent with an access arrangement 64 38ZZE. Decisions must not interfere with certain directions of the Secretary 64 38ZZF. Certain decisions must not be made without prior consultation with Secretary and Director 64 38ZZG. Decisions in relation to extensions of rail infrastructure 65 38ZZH. Hearings for the purposes of a dispute resolution decision 66 38ZZI. Hearing to be in private 67 38ZZJ. Right to representation 67 38ZZK. Particular powers of the Commission for the purposes of making a dispute resolution decision 68 38ZZL. Power to take evidence on oath or affirmation 69 38ZZM. Commission may give directions in relation to negotiations 69 38ZZN. Two or more access regime disputes may be decided together 70 38ZZO. Commission may make interim decision 70 38ZZP. Variation or revocation of dispute resolution decisions 72 -- 3 of 153 -- Section Page iv 38ZZQ. Appeals from decisions of the Commission under Division 5 73 38ZZR. Commission may recover its costs in certain cases 74 Division 6—Access Provider Obligations 75 38ZZS. Hindering or preventing access 75 38ZZT. Compliance with access arrangement 76 38ZZU. Compliance with account keeping rules 76 38ZZV. Compliance with ring fencing rules 76 38ZZW. Compliance with capacity use rules 77 38ZZX. Compliance with network management rules 77 38ZZY. Access provider obligation in relation to calculating prices for declared rail transport services 77 Division 7—Confidential Information 78 38ZZZ. Access provider confidential information obligations 78 38ZZZA. Access seeker and user confidential information obligations 79 38ZZZB. Access provider system and business rules for the handling of confidential information 80 Division 8—Enforcement and Other Proceedings 81 38ZZZC. Proceedings 81 38ZZZD. Criminal proceedings do not lie 82 38ZZZE. Proceedings for contraventions of penalty provisions 82 38ZZZF. Pecuniary penalties to be paid into the Consolidated Fund 84 38ZZZG. Injunctions 84 38ZZZH. Declaratory relief 86 38ZZZI. Enforcement of dispute resolution decisions 86 Division 9—Miscellaneous 88 38ZZZJ. Collection and use of information by Commission 88 7. Supreme Court—limitation of jurisdiction 88 8. Amendment of regulation making power 88 PART 3—AMENDMENT OF TRANSPORT ACT 1983 AND THE CONSTITUTION ACT 1975 89 Division 1—Access Regime Related Amendments 89 9. Priority of passenger services 89 Division 2—Other Amendments 92 10. Applications for renewal of authorisation 92 11. Renewal of authorisation 92 12. Duration of accreditation 92 13. Application for renewal of accreditation 93 -- 4 of 153 -- Section Page v 14. Renewal of accreditation 93 15. New Division 1B of Part VIII inserted 93 Division 1B—Validation 93 246CA. Definitions 93 246CB. Authorized officers for the purposes of sections 212 and 213 appointed by MTA and STA 94 246CC. Authorised officers for the purposes of Division 2 of Part VII appointed by PTC 95 246CD. Authorised officers for the purposes of section Division 2 of Part VII appointed by Secretary 97 246CE. Authorized officer for the purposes of section 218 appointed by the MTA or STA 100 246CF. Authorized officer for the purposes of section 218 or 218B appointed by the PTC under section 218(1) 101 246CG. Authorised officers for the purposes of section 218B appointed by PTC under that section 102 246CH. Authorised officers for the purposes of section 218B by Secretary 103 246CI. Officers of the MTA and STA authorized for the purposes of section 219(2) or (4) 105 246CJ. Officers of the PTC authorised for the purposes of section 219(2), (4) or (7) 106 246CK. Officers of the PTC authorised for the purposes of section 219A 108 246CL. Relevant employees and authorised officers for the purposes of section 219 109 246CM. Authorised persons for the purposes of section 219AA 112 246CN. Authorised persons, authorised officers and relevant employees for the purposes of section 220 114 246CO. Authorized persons for the purposes of section 221 authorized by MTA or STA 117 246CP. Authorized persons for the purposes of section 221 authorized by PTC 118 246CQ. Authorized persons for the purposes of section 221 authorised by the Secretary 119 246CR. Authorised officers for the purposes of section 221AA 124 246CS. Examples of things validated 126 246CT. Accreditations under Division 4A of Part VII 127 246CU. Prosecutorial authorisations by the MTA or STA 129 246CV. Prosecutorial authorisations by the PTC 131 246CW. Prosecutorial authorisations by the Secretary 135 246CX. Only things done or purported to have been done under a purported authorisation and appointment validated 138 -- 5 of 153 -- Section Page vi 246CY. Evidence 139 246CZ. Delegations generally in relation to authorisations 140 246CZA. Delegations generally in relation to accreditations 143 246CZB. Incorrect delegations purportedly under section 6B 143 246CZC. No proceedings may be brought 145 246CZD. Preservation of rights only in certain proceedings 145 16. Constitution Act 1975—amendment of section 85 146 ═══════════════ ENDNOTES 147 -- 6 of 153 -- 1 Transport Legislation (Further Amendment) Act 2005 † [Assented to 31 May 2005] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purposes The main purposes of this Act are— (a) to amend the Rail Corporations Act 1996 to provide for a new access regime; and Victoria No. 25 of 2005 -- 7 of 153 -- Part 1—Preliminary Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 2 (b) to amend the Transport Act 1983 to— (i) validate certain things done or purported to have been done by certain persons in relation to the administration of Part VII of that Act, including the investigation and prosecution of offences under that Part; and (ii) validate certain accreditations of passenger transport companies and bus companies under Division 4A of Part VII of that Act that may not have been validly given by the Secretary; and (iii) deem certain instruments of delegation as validly and lawfully executed; and (iv) validate certain exercises or purported exercises of delegated powers to authorise certain persons to do things in relation to the administration of Part VII of that Act, including the investigation and prosecution of offences under that Part; (c) to amend the Constitution Act 1975 in relation to an amendment made by this Act to the Transport Act 1983. 2. Commencement (1) This Act (except sections 5 and 9(7), (8) and (9)) comes into operation on the day it receives the Royal Assent. (2) Subject to sub-section (3), sections 5 and 9(7), (8) and (9) come into operation on a day to be proclaimed. s. 2 -- 8 of 153 -- Part 1—Preliminary Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 3 (3) If sections 5 and 9(7), (8) and (9) do not come into operation before 1 January 2006, they come into operation on that day. __________________ s. 2 -- 9 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 4 PART 2—AMENDMENT OF RAIL CORPORATIONS ACT 1996 3. Definitions In section 3(1) of the Rail Corporations Act 1996— (a) the definitions of "declared rail transport service" and "rail transport service" are repealed; (b) after the definition of "former relevant assets" insert— ' "freight service" means a service for the carrying of freight by railway;'; (c) for the definition of "rail infrastructure" substitute— ' "rail infrastructure" means a facility that is used to operate a railway and includes— (a) railway track, railway track sidings, associated track structures and works (such as cuttings, tunnels, bridges, stations, platforms, excavations, land fill, track support earthworks and drainage works), over-track structures, under-track structures, service roads, signalling systems, rolling stock control systems, communications systems, notices and signs, overhead electrical power supply systems and associated buildings, depots, yards, plant, machinery and equipment; and See: Act No. 79/1996. Reprint No. 3 as at 15 July 2003 and amending Act Nos 73/2003, 12/2004, 49/2004, 108/2004 and 110/2004. LawToday: www.dms. dpc.vic. gov.au s. 3 -- 10 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 5 (b) a facility or infrastructure not referred to in paragraph (a) that is used to operate a railway that is prescribed to be rail infrastructure— but does not include associated rail infrastructure; Note: Associated rail infrastructure may be declared to be rail infrastructure for the purposes of Part 2A under an Order made by the Governor in Council: See section 38B.'; (d) insert the following definitions— ' "associated rail infrastructure" means— (a) an office, building or house used in the provision of rail transport services; (b) a workshop; (c) a terminal; (d) rolling stock; "terminal" means a facility at which freight is loaded or unloaded from rolling stock, or stored, and includes hard stands, equipment and other infrastructure used for the loading or unloading of freight from rolling stock at the facility;'. s. 3 -- 11 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 6 4. New Division 1 of Part 2A substituted and Divisions 2 and 3 of Part 2A repealed For Divisions 1, 2 and 3 of Part 2A of the Rail Corporations Act 1996 substitute— 'Division 1—Introduction 38A. Definitions In this Part— "access activity" means any of the following activities carried out by an access provider— (a) the management or maintenance of, or investment in, rail infrastructure used in the provision of declared rail transport services; (b) negotiation or management of agreements for the provision of declared rail transport services; (c) the assessment, allocation and management of capacity; (d) the provision, scheduling and management of train control services; (e) an activity that is incidental to an activity referred to in paragraphs (a) to (d); "access arrangement" means— (a) an access arrangement approved in a final decision under section 38ZF; or (b) an access arrangement made under section 38ZJ or 38ZL; or s. 4 -- 12 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 7 (c) a proposed access arrangement deemed to be an access arrangement by operation of section 38ZK; "access arrangement information" means information that an access seeker would reasonably require to understand the derivation of the elements of the access arrangement so as to form an opinion as to whether the access arrangement complies with this Part; "access provider" means any of the following persons if they provide, or are capable of providing, a declared rail transport service— (a) a person accredited under Division 3 of Part VI of the Transport Act 1983 to manage rail infrastructure (as defined by section 104(1) of that Act); (b) a person who manages rail infrastructure (as defined by section 104(1) of the Transport Act 1983) and is exempted from the requirement to be accredited under Division 3 of Part VI of that Act by regulations made under that Act; (c) the Spencer Street Station Authority; (d) the Crown; (e) a related body corporate of a person referred to in paragraphs (a) to (c); s. 4 -- 13 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 8 (f) any other person declared by Order in Council under section 38D to be an access provider; "access regime dispute" means— (a) a dispute described in section 38ZU(1); or (b) a belief of an access seeker or a user of the kind described in section 38ZU(2) that is taken to give rise to an access regime dispute by operation of that sub- section; "access seeker" means a person seeking to be provided a declared rail transport service by an access provider or seeking interconnection; "account keeping rules" means the rules made under section 38R; "binding access arrangement", in relation to an access provider, means an access arrangement with which the access provider is, under this Part, bound to comply; "capacity", in relation to a rail network, means the capability of the rail network, when used, to provide declared rail transport services; "capacity use rules" means the rules made under section 38T; "declared rail transport service" means a rail transport service declared by an Order under section 38I; s. 4 -- 14 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 9 "dispute resolution decision" means a decision of the Commission under section 38ZX(1); "draft decision" means a decision of the Commission made under section 38ZB; "final decision" means a decision of the Commission made under section 38ZF; "interconnection" means the connection of an access seeker's railway track or railway siding to an access provider's relevant railway track as provided for by section 38ZT; "interested person" means a person whom the Commission considers has a sufficient interest in the approval of a proposed access arrangement; "internal transfer terms" means the terms and conditions upon which, including prices, an access provider provides a declared rail transport service to itself or a related body corporate; "negotiation guidelines" means the guidelines made under section 38V; "network management rules" means the rules made under section 38U; "operate" has the meaning given to it by section 38G; "penalty provision" means section 38W(1), 38W(2), 38ZR(1), 38ZZK(2), 38ZZK(4), 38ZZM(3), 38ZZS, 38ZZT, 38ZZU(a) and (b), 38ZZV, 38ZZW, 38ZZX, 38ZZY(1), 38ZZZ(1), 38ZZZ(4), 38ZZZA(1), 38ZZZA(4) or 38ZZZB(3); s. 4 -- 15 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 10 "pricing principles" means the principles specified in the Pricing Principles Order; "Pricing Principles Order" means the Order made under section 38J; "principle of passenger priority" has the meaning given to it by section 38H; "proposed access arrangement" means an access arrangement submitted to the Commission for approval under section 38W; "rail network" means the rail infrastructure used to provide declared rail transport services; "rail transport service" means— (a) a service provided, or that may be provided, to a user or an access seeker by an access provider, or by an access provider to itself or to a related body corporate, by means of rail infrastructure or tram infrastructure owned or operated by that access provider that enables the user, access seeker, that access provider, or a related body corporate of that access provider, to provide freight services, passenger services or other transport services, and includes— (i) the service of allowing a user to use rail infrastructure or tram infrastructure (as the case requires); s. 4 -- 16 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 11 (ii) the service of assessing the capacity of a rail network owned or operated by the access provider; (iii) the service of allocating the capacity of a rail network owned or operated by the access provider; (iv) the service of allocating train paths; (v) the service of planning train services; (vi) the service of scheduling train services; (vii) the service of managing and controlling train services, including train traffic management; (viii) the service of managing and controlling a rail network owned or operated by the access provider; (ix) the service of maintaining a rail network owned or operated by the access provider; (x) the service of extending, enhancing or expanding a rail network owned or operated by the access provider; s. 4 -- 17 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 12 (b) a service provided, or that may be provided, by an access provider for, or associated with, the connection of railway track or tramway track owned or operated by another person to railway track or tramway track owned or operated by that access provider; (c) any service that is ancillary to a service referred to in paragraph (a) or (b); "reference service" means a declared rail transport service that— (a) is provided by an access provider to itself or a related body corporate; or (b) is likely to represent a significant proportion of demand by access seekers for declared rail transport services; or (c) is provided by means of a terminal; "relevant capacity allocation activity" means— (a) assessing the capacity of a rail network; (b) allocating the capacity of a rail network; (c) allocating train paths; (d) any activity that is ancillary to an activity referred to in paragraph (a) to (c); s. 4 -- 18 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 13 "relevant rail network management activity" means— (a) scheduling and planning train services; (b) an activity carried out for the provision of train control services, including train traffic management; (c) the management of the interaction of rail infrastructure and rolling stock; (d) the management of incidents that affect or may affect the operation or safe operation of a rail network; (e) any activity that is ancillary to an activity referred to in paragraphs (a) to (d); "ring fencing rules" means the rules made under section 38S; "train control services" means services involving the giving of directions or the granting of permission to operate rolling stock on a rail network consistent with the safe and efficient operation of that rolling stock and that rail network; "train path" means a right (whether arising under an agreement or otherwise) to operate rolling stock between particular locations on a railway at particular times; s. 4 -- 19 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 14 "user" means a person who— (a) is a party to an agreement under which they acquire a declared rail transport service; or (b) has a right to be provided a declared rail transport service under a dispute resolution decision. 38B. Associated rail infrastructure may be declared to be rail infrastructure Despite the definition of "rail infrastructure" in section 3(1), the Governor in Council may, on the recommendation of the Minister, by Order published in the Government Gazette, declare associated rail infrastructure to be rail infrastructure for the purposes of this Part. 38C. Tabling and disallowance of Orders under section 38B (1) On or before the 6th sitting day after an Order under section 38B is published in the Government Gazette, the Minister must ensure that a copy of that Order is laid before each House of the Parliament. (2) A failure to comply with sub-section (1) does not affect the operation or effect of the Order but the Scrutiny of Acts and Regulations Committee of the Parliament may report the failure to each House of the Parliament. (3) An Order under section 38B may be disallowed in whole or in part by either House of Parliament. s. 4 -- 20 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 15 (4) Part 5 of the Subordinate Legislation Act 1994 applies to an Order under section 38B as if— (a) a reference in that Part to a "statutory rule" were a reference to an Order under section 38B; and (b) a reference in section 23(1)(c) of that Act to "section 15(1)" were a reference to sub-section (1). (5) A reference to an Order under section 38B in this section includes a reference to any amendment to an Order under section 38B. 38D. Declaration of persons to be access providers The Governor in Council may, by Order published in the Government Gazette, declare a person who provides, or is capable of providing, a rail transport service (other than a person referred to in paragraphs (a) to (d) of the definition of "access provider") to be an access provider. 38E. Application of Essential Services Commission Act 2001 (1) This Part is relevant legislation for the purposes of the Essential Services Commission Act 2001 (other than Part 3 of that Act). (2) For the purposes of the Essential Services Commission Act 2001 (other than Part 3 of that Act)— (a) railways and rail infrastructure; and (b) tramways and tram infrastructure— are each a regulated industry. s. 4 -- 21 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 16 38F. Objectives of the Commission The objectives of the Commission in relation to each regulated industry are, in addition to the objectives under section 8 of the Essential Services Commission Act 2001 (but subject to section 5(2) of that Act)— (a) to ensure access seekers, and any other person the Commission considers may want to be provided declared rail transport services, have a fair and reasonable opportunity to be provided declared rail transport services; and (b) to promote competition in rail transport services to achieve an increase in the use of, and efficient investment in, rail infrastructure or tram infrastructure (as the case requires). 38G. Meaning of "operate" A person operates rail infrastructure or tram infrastructure, or a rail network, for the purposes of this Part if the person— (a) owns or leases rail infrastructure or tram infrastructure, or a rail network, or has a right conferred by an Act or a contract to manage rail infrastructure or tram infrastructure, or a rail network; and (b) either— (i) operates, or appoints an agent or contractor to operate, the signalling, rolling stock control and communications facilities of the railway or tramway, as the case requires; or s. 4 -- 22 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 17 (ii) carries out, or appoints an agent or contractor to carry out, on or about the railway or tramway (as the case requires), the construction, maintenance, repair or alteration of any of the rail infrastructure or tram infrastructure or rail network. 38H. Principle of passenger priority (1) For the purposes of this Part, the principle of passenger priority is the giving of priority to the provision of declared rail transport services to passenger service users over the provision of declared rail transport services to other users. (2) In this section— "other users" means users of declared rail transport services who use those services to provide freight services and other transport services (other than passenger services); "passenger service users" means users of declared rail transport services who use those services to provide passenger services. 38I. Declaration of rail transport services (1) The Governor in Council on the recommendation of the Minister may, by Order published in the Government Gazette, declare a rail transport service to be a declared rail transport service for the purposes of this Part until the date (if any) for the expiry of the declaration specified in the Order. s. 4 -- 23 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 18 (2) An Order under sub-section (1) must specify whether a rail transport service is a declared rail transport service in respect of passenger services, freight services or other transport services. (3) An Order under sub-section (1) may— (a) specify that a rail transport service is a declared rail transport service in respect of a person named in the Order; (b) declare a rail transport service as a declared rail transport service by reference to— (i) the person who owns or operates the rail infrastructure used to provide the rail transport service; or (ii) the location of the rail infrastructure used to provide the rail transport service; or (iii) the type of rail infrastructure used to provide the rail transport service. (4) The Minister may only make a recommendation under sub-section (1) if he or she is satisfied that it is necessary to do so to promote competition or increase efficiency or the level of services to the public. s. 4 -- 24 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 19 38J. Pricing Principles Order (1) The Governor in Council, on the recommendation of the Minister, may, by Order published in the Government Gazette— (a) specify the principles for the calculation of prices that an access provider may charge in respect of declared rail transport services that it may provide; (b) authorise the Commission to determine the methodology, in accordance with the principles specified under paragraph (a), for the calculation of prices that— (i) an access provider may charge in respect of declared rail transport services that the access provider may provide; (ii) the Commission may, in a relevant decision, decide an access provider may charge in respect of declared rail transport services provided by that access provider. (2) To avoid doubt, the methodology determined by the Commission under an Order under this section for the calculation of prices that may be charged in respect of declared rail transport services is not a determination for the purposes of the Essential Services Commission Act 2001. s. 4 -- 25 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 20 (3) The pricing principles specified in an Order under this section must not require, entitle or allow a relevant access provider to recover from a relevant user any capital expenses incurred by that relevant access provider in respect of relevant rail infrastructure other than expenses that have been or are incurred on or after 30 April 1999 for the purpose of extending or replacing that infrastructure. (4) Nothing in an Order under sub-section (1) limits the capacity of an access provider to agree to provide a declared rail transport service to an access seeker at a price that is inconsistent with anything specified in the Order. (5) In this section— "PIL rail infrastructure" means rail infrastructure that is "Railway Infrastructure" as defined in the Primary Infrastructure Lease; "Primary Infrastructure Lease" means the agreement entitled the "Primary Infrastructure Lease", entered into between the Director and Freight Victoria Limited (ACN 075 295 644) on or about 30 April 1999; "relevant decision" means— (a) a final decision; (b) a final decision in respect of an access arrangement made under section 38ZJ(1) or 38ZL; (c) a decision under section 38ZO or 38ZP; s. 4 -- 26 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 21 (d) a final decision in respect of an application for the renewal of an access arrangement under section 38ZR; (e) a dispute resolution decision; (f) an interim decision under section 38ZZO; (g) a decision under section 38ZZP varying a dispute resolution decision; "relevant access provider" means an access provider who owns, operates or controls relevant rail infrastructure; "relevant rail infrastructure agreement" means— (a) the Primary Infrastructure Lease; (b) the agreement entitled the ''Dynon Intermodal Terminal Lease", entered into between Victorian Rail Track and Freight Victoria Limited (ACN 075 295 644) on or about 29 April 1999; (c) any agreement declared by the Governor in Council under section 38K; "relevant rail infrastructure" means— (a) PIL rail infrastructure; and (b) rail infrastructure that is the subject of a relevant rail infrastructure agreement (other than the Primary Infrastructure Lease); s. 4 -- 27 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 22 "relevant user" means a user provided a declared rail transport service by a relevant access provider by means of relevant rail infrastructure. 38K. Declaration of certain agreements to be relevant rail infrastructure agreements (1) The Minister may, by Order published in the Government Gazette, declare an agreement under which rail infrastructure is leased to be a relevant rail infrastructure agreement for the purposes of section 38J. (2) In this section— "relevant rail infrastructure agreement" has the same meaning as in section 38J(5). 38L. Extra-territorial operation It is the intention of the Parliament that the operation of this Part should, so far as possible, include operation in relation to— (a) railways and rail infrastructure situated outside Victoria; (b) a rail transport service operating outside Victoria.'. s. 4 -- 28 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 23 5. New Divisions 2 and 3 of Part 2A inserted After section 38L of the Rail Corporations Act 1996 insert— 'Division 2—Commission Rules and Guidelines 38M. Definition In this Division— "Commission instrument" means— (a) the account keeping rules; or (b) the ring fencing rules; or (c) the capacity use rules; or (d) the network management rules; or (e) the negotiation guidelines. 38N. Procedural requirements for the making of a Commission instrument (1) The Commission, before making a Commission instrument, must— (a) publish a draft of the Commission instrument on its website; and (b) make available for inspection at its offices a draft of the Commission instrument; and (c) by notice published on its website and in a newspaper circulating generally throughout the State on the same day, invite written submissions or comments in relation to the draft of the Commission instrument by the date specified in the notice. s. 5 -- 29 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 24 (2) The date specified in a notice under sub- section (1)(c) must not be a date that is less than 21 days after the date the notice is published. (3) The Commission— (a) must consider any written submissions or comments it receives by the date specified in the notice; and (b) may, but need not, consider any written submissions or comments received after the date specified in the notice. (4) The Commission must, as soon as practicable after making a Commission instrument, publish the Commission instrument in the Government Gazette and on its website. (5) A Commission instrument does not have effect for the purposes of this Part until it is published in the Government Gazette. 38O. Commission instruments may incorporate documents and other material (1) A Commission instrument may apply, adopt or incorporate any matter contained in any document, code, standard, rule, specification or method formulated, issued, prescribed or published by any person, authority or body whether— (a) wholly or partially or as amended by the Commission instrument; or (b) as formulated, issued, prescribed or published at the time the Commission instrument is made or at any time before the Commission instrument is made; or (c) as amended from time to time. s. 5 -- 30 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 25 (2) Section 32 of the Interpretation of Legislation Act 1984 does not apply to a Commission instrument. 38P. General powers applicable to the making of a Commission instrument A Commission instrument— (a) may be of general or limited application; (b) may differ according to differences in time, place or circumstance. 38Q. Commission instruments must be in force at all times (1) There must be in force, at all times, every Commission instrument providing for the matters or things specified in a relevant provision. (2) Sub-section (1) applies on and from the date every Commission instrument is first made under a relevant provision. (3) In this section— "relevant provision" means— (a) in relation to the account keeping rules, section 38R; (b) in relation to the ring fencing rules, section 38S; (c) in relation to the capacity use rules, section 38T(1); (d) in relation to the network management rules, section 38U(1); (e) in relation to the negotiation guidelines, section 38V(1). s. 5 -- 31 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 26 38R. Account keeping rules (1) The Commission must make rules for or with respect to requiring an access provider to— (a) prepare, maintain and keep accounting records in relation to access activities and other activities of the access provider; and (b) prepare, maintain and keep accounts in relation to access activities and other activities of the access provider; and (c) provide the accounting records and accounts referred to in paragraphs (a) and (b) to the Commission. (2) Without limiting sub-section (1), rules must be made that— (a) require an access provider to prepare, maintain and keep records relating to internal transfer terms; and (b) require an access provider to prepare, maintain and keep records that disclose the allocation of the costs it incurs in operating its business as between activities carried out in operating that business; and (c) require an access provider to provide the records referred to in paragraphs (a) and (b) to the Commission; and (d) specify accounting principles with which an access provider must prepare accounts in relation to access activities and other activities of the access provider. Note: The procedure for the making of the account keeping rules is set out in section 38N. s. 5 -- 32 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 27 38S. Ring fencing rules The Commission must make rules for or with respect to— (a) requiring an access provider to separate its access activities from its other activities as if the access activities are being carried out by a different entity; and (b) the manner in which the access provider is to effect the separation of its access activities from its other activities as provided for by paragraph (a); and (c) requiring an access provider that provides declared rail transport services to itself or related bodies corporate, to provide those services on an arm's length basis. Note: The procedure for the making of the ring fencing rules is set out in section 38N. 38T. Capacity use rules (1) The Commission must make rules for or with respect to the carrying out of a relevant capacity allocation activity. (2) Without limiting sub-section (1), rules must be made that— (a) require an access provider, or a related body corporate of the access provider, to surrender unutilised or under utilised train paths allocated to that access provider or that related body corporate and the circumstances for the surrender; and s. 5 -- 33 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 28 (b) require a user to surrender unutilised or under utilised train paths allocated to them under this Part and the circumstances for that surrender; and (c) require an access provider to report to the Commission actual train path utilisation and the method of that reporting. (3) The Commission may make rules— (a) for or with respect to requiring an access provider to prepare and maintain protocols for the allocation of the capacity of a rail network; (b) for or with respect to requiring an access provider to comply with protocols referred to in paragraph (a); (c) for or with respect to the method by which an access provider must report to the Commission actual train path utilisation; (d) that confer a function or power on, or leave anything to be decided by, the Commission in relation to any matter or thing specified in sub-section (1), (2) or this sub-section, including the power to approve protocols referred to in paragraph (a) consistent with the rules. (4) Rules made under this section— (a) must be consistent with the principle of passenger priority; and (b) must prohibit an access provider from, while carrying out a relevant capacity allocation activity, unreasonably favouring itself or another person over any other person. s. 5 -- 34 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 29 (5) In making rules under this section, the Commission must have regard to the desirability, where practicable, of reserving train paths for access seekers who are not related bodies corporate of an access provider. Note: The procedure for the making of the capacity use rules is set out in section 38N. 38U. Network management rules (1) The Commission must make rules for or with respect to the carrying out of a relevant rail network management activity. (2) The Commission may make rules— (a) for or with respect to requiring an access provider to prepare and maintain protocols for the management of a rail network; (b) for or with respect to requiring an access provider to comply with protocols referred to in paragraph (a); (c) that confer a function or power on or leave anything to be decided by the Commission in relation to any matter or thing specified in sub-section (1) or this sub-section, including the power to approve protocols referred to in paragraph (a) consistent with the rules. (3) Rules made under this section— (a) must be consistent with the principle of passenger priority; and s. 5 -- 35 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 30 (b) must prohibit an access provider from, while carrying out a relevant network management activity, unreasonably favouring itself or another person over any other person. Note: The procedure for the making of the network management rules is set out in section 38N. 38V. Negotiation guidelines (1) The Commission must make guidelines for or with respect to— (a) the information an access provider must provide to an access seeker, including information that relates to— (i) the management of the capacity of a rail network; and (ii) the availability of train paths; and (iii) timetabling; and (b) the procedure under which an access seeker may make an application for the provision of a declared rail transport service to it by an access provider; and (c) the procedure and method as to how an access provider will assess and determine applications referred to in paragraph (b); and (d) specifying a period of time within which an access provider must assess and determine applications referred to in paragraph (b); and s. 5 -- 36 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 31 (e) prohibiting an access provider from requiring or requesting the following persons to identify a consignee— (i) an access seeker seeking the provision of declared rail transport services for the purpose of providing freight services; or (ii) a user using declared rail transport services for the purpose of providing freight services. (2) The Commission may make guidelines for or with respect to— (a) fees or levies that an access provider may charge for assessing and determining applications referred to in sub-section (1)(b); (b) fees or levies that an access provider may charge an access seeker for information relating to a declared rail transport service; (c) prohibiting fees or levies of the kind referred to in paragraphs (a) and (b) if those fees or levies exceed an amount specified in the guidelines; (d) interconnection. Note: The procedure for the making of the negotiation guidelines is set out in section 38N. s. 5 -- 37 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 32 Division 3—Access Arrangements 38W. Submission of access arrangement to Commission for approval (1) An access provider must submit to the Commission for approval a proposed access arrangement in relation to a declared rail transport service provided by the access provider or capable of being provided by the access provider within 60 days of the relevant declaration. Note: Sub-section (1) is a penalty provision: See the definition of "penalty provision" in section 38A. (2) An access provider must include in the proposed access arrangement access arrangement information. Note: Sub-section (2) is a penalty provision: See the definition of "penalty provision" in section 38A. (3) A proposed access arrangement submitted for approval may relate to 2 or more declared rail transport services. 38X. Contents of proposed access arrangements (1) A proposed access arrangement must— (a) in relation to every reference service to which the arrangement relates, include— (i) a description of the service; and (ii) information as to whether that service is being provided by the access provider to itself or a related body corporate of the access provider; and s. 5 -- 38 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 33 (iii) the terms and conditions for the provision of that service; and (iv) the price, or methodology for the calculation of the price, to be charged in respect of the provision of that service; and (b) include information in relation to the availability and the indicative terms and conditions, for the provision of declared rail transport services that are not reference services; and (c) include a description of the information that the access provider will make available to an access seeker; and (d) set out the procedure for the making of an application by an access seeker for the provision to them of a declared rail transport service; and (e) describe the procedure and method how the access provider will assess and determine an application for the provision by them of a declared rail transport service; and (f) specify a date for the expiry of the access arrangement, being a date that is not less than 3 years, and not more than 5 years, after the date on which the access arrangement may be approved by the Commission under this Part in a final decision. (2) A proposed access arrangement may also include any other matter that the access provider considers relevant. s. 5 -- 39 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 34 (3) The price or methodology referred to in sub- section (1)(a)(iv) must be consistent with the pricing principles and any methodology for the calculation of prices determined by the Commission under the Pricing Principles Order. (4) Information referred to in sub-section (1)(c), the procedure referred to in sub-section (1)(d) and the procedure and method referred to in sub-section (1)(e) must be consistent with the negotiation guidelines. (5) The proposed access arrangement must also be consistent with— (a) the account keeping rules; and (b) the ring fencing rules; and (c) the capacity use rules; and (d) the network management rules. 38Y. Notification by Commission of submission to it of proposed access arrangement (1) As soon as practicable after receipt of a proposed access arrangement, the Commission must— (a) notify, in writing, every interested person of that receipt; and (b) publish, on the same day, on its website and in a newspaper circulating generally throughout the State, a notice that— (i) states that a proposed access arrangement has been received by the Commission for approval and the name of the access provider who submitted the proposed access arrangement; and s. 5 -- 40 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 35 (ii) specifies how copies of the proposed access arrangement and access arrangement information may be obtained; and (iii) requests written submissions or comments in relation to the proposed access arrangement on or before the date specified in the notice; and (iv) contains the prescribed information (if any). (2) The date specified in a notice under sub- section (1)(b)(iii) must not be a date that is less than 21 days after the date the notice is published. 38Z. Submission and comments in relation to proposed access arrangement Any person may make a written submission or comment in relation to a proposed access arrangement in accordance with a notice referred to in section 38Y(1)(b). 38ZA. Consideration of submission or comments by Commission Before making a draft decision, the Commission— (a) must consider every written submission or comment it receives on or before the date specified in a notice referred to in section 38Y(1)(b); and (b) may, but need not, consider a written submission or comment it receives after the date specified in a notice referred to in section 38Y(1)(b). s. 5 -- 41 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 36 38ZB. Draft decision on whether proposed access arrangement will be approved (1) The Commission must make a draft decision as to whether it proposes to approve the proposed access arrangement as an access arrangement. (2) The draft decision must— (a) be consistent with— (i) the account keeping rules; and (ii) the ring fencing rules; and (iii) the capacity use rules; and (iv) the network management rules; and (v) the negotiation guidelines; and (vi) the pricing principles and any methodology for the calculation of prices determined by the Commission under the Pricing Principles Order; and (vii) the principle of passenger priority; and (b) set out the reasons of the Commission as to whether or not it proposes to approve the proposed access arrangement, including the reasons of the Commission taking into account the matters specified in section 38ZI(a) to (j); and s. 5 -- 42 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 37 (c) if the Commission proposes not to approve the proposed access arrangement, specify— (i) any amendments (or the nature of amendments) that the Commission considers should be made to the proposed access arrangement for the Commission to approve it; and (ii) any matters that the Commission considers should be addressed for the Commission to approve it. (3) Without limiting sub-section (2)(c), the Commission may specify amendments to any price, or the methodology for the calculation of any price, set out in the proposed access arrangement in respect of every declared rail transport service to which the proposed access arrangement relates. (4) Any amendment to a price, or the methodology for the calculation of a price, specified by the Commission must— (a) be consistent with the pricing principles and any methodology for the calculation of prices determined by the Commission under the Pricing Principles Order; and (b) not result in a price in respect of a declared rail transport service or an equivalent declared rail transport service that is higher than the price included in the access provider's internal transfer terms. s. 5 -- 43 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 38 (5) As soon as practicable after making a draft decision, the Commission— (a) must give a copy of the draft decision to— (i) the access provider who submitted the proposed access arrangement to which the decision relates; and (ii) every person who made a submission or comment under section 38Z on or before the date specified in the notice referred to in section 38Y(1)(b); and (b) may give a copy of the draft decision to a person who made a submission or comment after the date specified in the notice referred to in section 38Y(1)(b); and (c) must publish the draft decision on its website and make it available for inspection at its offices; and (d) must request, by notice in writing, the persons given a copy of the draft decision in accordance with paragraphs (a) and (b), to make a written submission or comment in relation to the draft decision on or before a date specified in the notice. (6) The date specified in a notice under sub- section (5)(d) must not be a date that is less than 14 days after the date the draft decision is published and made available in accordance with sub-section (5)(c). s. 5 -- 44 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 39 38ZC. Access provider may submit revisions to proposed access arrangement If, in a draft decision, the Commission proposes not to approve the proposed access arrangement, the access provider who submitted the proposed access arrangement may, within 14 days of being given a copy of the draft decision in accordance with section 38ZB(5)(a)(i), submit to the Commission revisions to the proposed access arrangement that— (a) incorporate or substantially incorporate— (i) the amendments specified in the draft decision that the Commission considers should be made for it to approve the proposed access arrangement; or (ii) amendments that reflect the nature of amendments specified in the draft decision that the Commission considers should be made for it to approve the proposed access arrangement; and (b) otherwise address the matters specified in the draft decision that the Commission considers should be addressed for it to approve the proposed access arrangement. s. 5 -- 45 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 40 38ZD. Submission and comments in relation to draft decision A person who receives a copy of a draft decision and notice in accordance with section 38ZB(5) may make a written submission or comment in relation to the draft decision on or before the date specified in the notice referred to in that sub-section. 38ZE. Consideration of submissions and comments on draft decision Before making a final decision, the Commission— (a) must consider any revisions to a proposed access arrangement made by an access provider in accordance with section 38ZC; and (b) must consider every written submission or comment it receives on or before the date specified in a notice referred to in section 38ZB(5)(d); and (c) may, but need not, consider a written submission or comment it receives after the date specified in a notice referred to in section 38ZB(5)(d). 38ZF. Final decision on proposed access arrangement (1) The Commission must make a final decision whether to approve a proposed access arrangement as an access arrangement. (2) The Commission must not make a final decision approving a proposed access arrangement as an access arrangement unless it is satisfied the proposed access arrangement— s. 5 -- 46 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 41 (a) provides for the matters required by section 38X(1); and (b) is consistent with— (i) the account keeping rules; and (ii) the ring fencing rules; and (iii) the capacity use rules; and (iv) the network management rules; and (v) the negotiation guidelines; and (vi) the pricing principles and any methodology for the calculation of prices determined by the Commission under the Pricing Principles Order; and (vii) the principle of passenger priority. (3) In making a final decision in relation to a proposed access arrangement in respect of which the access provider has submitted revisions to the proposed access arrangement under section 38ZC, the Commission must also be satisfied that the revisions— (a) incorporate or substantially incorporate— (i) the amendments specified in the draft decision that the Commission considers should be made for it to approve the proposed access arrangement; or (ii) amendments that reflect the nature of amendments specified in the draft decision that the Commission considers should be made for it to approve the proposed access arrangement; and s. 5 -- 47 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 42 (b) otherwise address the matters specified in the draft decision that the Commission considers should be addressed for it to approve the proposed access arrangement. (4) The Commission, in a final decision, must set out the reasons of the Commission as to whether or not it approves the proposed access arrangement, including the reasons of the Commission taking into account the matters specified in section 38ZI. 38ZG. Time within Commission must make a final decision A final decision must be made within 90 days of receipt of the proposed access arrangement for approval under section 38W. 38ZH. Giving and publishing a final decision The Commission must, as soon as practicable after making a final decision— (a) give a copy of the final decision to the access provider and any person who made a submission or comment under section 38Z or 38ZD; and (b) publish the final decision on its website and make it available for inspection at its offices. s. 5 -- 48 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 43 38ZI. Matters to be taken into account in making a final decision In making a final decision whether to approve a proposed access arrangement as an access arrangement under section 38ZF, the Commission must take into account— (a) whether the proposed access arrangement is consistent with the objectives referred to in section 38F; and (b) the access provider's legitimate business interests and investment in the rail network owned or operated by that access provider; and (c) the costs to the access provider of providing access, including any costs of extending the rail network owned or operated by that access provider but not including costs associated with losses arising from increased competition in upstream or downstream markets; and (d) the economic value to the access provider of any additional investment that an access seeker or the access provider has agreed to undertake; and (e) the interests of users; and (f) existing contractual obligations of the access provider and users of the rail network owned or operated by that access provider; and (g) the operational and technical requirements necessary for the safe and reliable operation of the rail network owned or operated by the access provider; and s. 5 -- 49 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 44 (h) the economically efficient operation of the rail network owned or operated by the access provider; and (i) the benefit to the public in having competitive markets; and (j) any other matter that the Commission considers relevant. Note: The matters specified in paragraphs (b) to (i) are consistent with the matters specified in paragraph (i) of clause 6(4) of the Competition Principles Agreement made on 11 April 1995 between the Commonwealth and all of the States and Territories of the Commonwealth. 38ZJ. Commission to make proposed access arrangement in certain cases (1) The Commission must make an access arrangement in relation to a declared rail transport service if— (a) in a final decision the Commission does not approve a relevant proposed access arrangement in relation to that service; or (b) an access provider does not submit a proposed access arrangement for approval under section 38W in relation to that service; or (c) an access provider does not submit an application for the renewal of an access arrangement under section 38ZR in relation to that service. s. 5 -- 50 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 45 (2) In sub-section (1)(a)— "relevant proposed access arrangement" means the proposed access arrangement submitted by the access provider for approval under section 38W, or if the proposed access arrangement has been revised in accordance with section 38ZC, that revised proposed access arrangement. (3) Without limiting sub-section (1), the Commission may, in an access arrangement made under sub-section (1), specify a price, or the methodology for the calculation of prices, in respect of every declared rail transport service to which the access arrangement relates. (4) A price, or the methodology for the calculation of a price, specified in an access arrangement made under sub-section (1) must— (a) be consistent with the pricing principles and any methodology for the calculation of prices determined by the Commission under the Pricing Principles Order; and (b) not be, or result in, a price in respect of a declared rail transport service or an equivalent declared rail transport service that is higher than the price included in the access provider's internal transfer terms. (5) An access arrangement made in accordance with sub-section (1) must be made— (a) in the case of an access arrangement made under sub-section (1)(a), within 30 days of the final decision; s. 5 -- 51 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 46 (b) in the case of an access arrangement made under sub-section (1)(b), within 90 days of the day by which the proposed access arrangement should have been submitted for approval under section 38W; (c) in the case of an access arrangement made under sub-section (1)(c), within 90 days of the day by which an application for the renewal of an access arrangement should have been made in accordance with section 38ZR. (6) Sections 38ZF to 38ZI apply to the making of an access arrangement made under sub- section (1)— (a) with such alterations and modifications as are necessary; and (b) as if that access arrangement were a proposed access arrangement submitted for approval under section 38W. 38ZK. Deemed access arrangement if Commission fails to make a certain access arrangement If the Commission does not make an access arrangement as required by section 38ZJ(1)(a), the proposed access arrangement submitted by the access provider for approval under section 38W, or if the proposed access arrangement has been revised in accordance with section 38ZC, that revised proposed access arrangement, is deemed to have been approved by the Commission under section 38ZF. s. 5 -- 52 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 47 38ZL. Deemed access arrangements may be replaced in certain circumstances (1) Subject to sub-sections (2) and (3), the Commission may make an access arrangement in relation to a declared rail transport service to which a deemed access arrangement relates. (2) Subject to sub-section (3), the Commission must obtain the consent of the Minister before making an access arrangement under sub-section (1). (3) The Commission must obtain the consent of the Minister and make the access arrangement within 6 months after the date a deemed access arrangement commences operation. (4) Without limiting sub-section (1), the Commission may, in an access arrangement made under this section, specify a price, or the methodology for the calculation of prices, in respect of every declared rail transport service to which the access arrangement relates. (5) A price, or the methodology for the calculation of a price, specified in an access arrangement made under this section must— (a) be consistent with the pricing principles and any methodology for the calculation of prices determined by the Commission under the Pricing Principles Order; and s. 5 -- 53 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 48 (b) not be, or result in, a price in respect of a declared rail transport service or an equivalent declared rail transport service that is higher than the price included in the access provider's internal transfer terms. (6) Sections 38ZF to 38ZI apply to the making of an access arrangement made under this section— (a) with such alterations and modifications as are necessary; and (b) as if that access arrangement were a proposed access arrangement submitted for approval under section 38W. (7) On the commencement of an access arrangement made under this section the deemed access arrangement ceases to have effect. Note: An access arrangement made under this section commences on the date it is made: See section 38ZM. (8) In this section— "deemed access arrangement" means a proposed access arrangement deemed to be an access arrangement by operation of section 38ZK. 38ZM. Period of operation of access arrangement (1) An access arrangement commences operation on— (a) the date it is approved by the Commission in a final decision; or (b) if the Commission makes an access arrangement under section 38ZJ or 38ZL, the date of the final decision made in respect of that arrangement; or s. 5 -- 54 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 49 (c) if the Commission does not make an access arrangement as required by section 38ZJ and a proposed access arrangement is deemed to be an access arrangement by operation of section 38ZK, the date that is 120 days after the date on which that arrangement was submitted for approval under section 38W. (2) An access arrangement expires on the date specified in the final decision or in the access arrangement (as the case requires). 38ZN. Effect of access arrangement approved under this Division or made by the Commission An access arrangement is binding on the access provider who provides, or is capable of providing, the declared rail transport service to which the access arrangement relates. 38ZO. Variation of a binding access arrangement on the application of the access provider (1) An access provider may apply to the Commission for a variation of a binding access arrangement. (2) An application for a variation must not relate to the date of expiry of a binding access arrangement. (3) The proposed variation that is the subject of the application must be consistent with— (a) the account keeping rules; and (b) the ring fencing rules; and (c) the capacity use rules; and (d) the network management rules; and s. 5 -- 55 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 50 (e) the negotiation guidelines; and (f) the pricing principles and any methodology for the calculation of prices determined by the Commission under the Pricing Principles Order; and (g) the principle of passenger priority. (4) An application must— (a) be in writing; and (b) include a description of the proposed variation; and (c) state the reasons for the proposed variation. (5) Subject to this section, on receipt of an application for a variation of a binding access arrangement, the Commission may decide to vary that arrangement. (6) If the Commission considers that the variation that is the subject of the application is a material variation, sections 38Y to 38ZI apply to that variation— (a) with such alterations and modifications as are necessary; and (b) as if— (i) the proposed variation to be made were a proposed access arrangement submitted for approval under section 38W; and (ii) a decision under this section were a final decision. s. 5 -- 56 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 51 (7) If the Commission decides to vary a binding access arrangement under this section, the variation takes effect, and is binding on the access provider, on and from the date of the decision. 38ZP. Variation of a binding access arrangement by Commission (1) Subject to this section, the Commission, on its own initiative, may vary a binding access arrangement. (2) A proposed variation must not relate to the date of expiry of a binding access arrangement. (3) A proposed variation must be consistent with— (a) the account keeping rules; and (b) the ring fencing rules; and (c) the capacity use rules; and (d) the network management rules; and (e) the negotiation guidelines; and (f) the pricing principles and any methodology for the calculation of prices determined by the Commission under the Pricing Principles Order; and (g) the principle of passenger priority. (4) On forming its intention to propose a variation to a binding access arrangement, the Commission must, without delay— (a) notify, in writing, the access provider of its intention to do so; and (b) give the access provider its reasons, in writing, for the proposed variation. s. 5 -- 57 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 52 (5) If the Commission considers that the variation that it is intending to make is a material variation, sections 38Y to 38ZI apply to that variation— (a) with such alterations and modifications as are necessary; and (b) as if— (i) the proposed variation to be made were a proposed access arrangement submitted for approval under section 38W; and (ii) a decision under this section were a final decision. (6) If the Commission decides to vary a binding access arrangement under this section, the variation takes effect, and is binding on the access provider, on and from the date of the decision. 38ZQ. Substitution of access provider to a binding access arrangement (1) If before the expiry of a binding access arrangement— (a) the access provider will cease to own or operate the rail infrastructure used to provide, or that is capable of providing, a declared rail transport service to which a binding access arrangement relates; and (b) another access provider (the "new access provider") will own or operate that rail infrastructure— the new access provider must apply to the Commission for the substitution of them as the access provider to whom the binding access arrangement applies. s. 5 -- 58 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 53 (2) An application under sub-section (1) must be— (a) made at least 21 days before the new access provider owns or operates the rail infrastructure referred to in sub- section (1)(a); and (b) in writing; and (c) accompanied by evidence, to the reasonable satisfaction of the Commission, that the new access provider will own or operate the rail infrastructure referred to in sub-section (1)(a) at any time before the expiry of the binding access arrangement. (3) On receipt of an application under sub- section (1), the Commission may agree to the substitution of the new access provider as the person to whom the binding access arrangement applies. (4) A substitution takes effect on and from the day the Commission agrees to the substitution and the relevant binding access arrangement must varied accordingly. 38ZR. Renewal of access arrangement (1) An access provider must, not less than 90 days before the expiry of a binding access arrangement, apply to the Commission for the renewal of that access arrangement. Note: Sub-section (1) is a penalty provision: See the definition of "penalty provision" in section 38A. (2) Sub-section (1) does not apply if the access provider will not be, or be capable of, providing a declared rail transport service to which the binding access arrangement relates after that expiry. s. 5 -- 59 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 54 (3) An application must be in writing. (4) Despite anything to the contrary in a binding access arrangement, or a final decision approving a binding access arrangement, on the making of an application under sub- section (1) the binding access arrangement continues in force until the Commission approves or refuses to approve the renewal of the arrangement. (5) If following an application under sub-section (1), the Commission approves the access arrangement, it must be taken to have been approved on the day the binding access arrangement was due to expire. (6) This Division applies to and in relation to— (a) an application under this section for the renewal of an access arrangement; and (b) the approval of such an application; and (c) the access arrangement that is renewed— as if the application for renewal were a submission of a proposed access arrangement for approval under section 38W and the application has been made by a person other than the access provider. (7) To avoid doubt, an application for renewal of an access arrangement may include terms and conditions that differ from those contained in the binding access arrangement that is expiring. s. 5 -- 60 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 55 38ZS. Appeals from Commission decisions under Division 3 (1) Section 55 of the Essential Services Commission Act 2001 applies to a relevant access arrangement decision as if the decision were a determination made under that Act. (2) In this section— "relevant access arrangement decision" means— (a) a final decision; (b) a final decision in respect of an access arrangement made under section 38ZJ(1) or 38ZL; (c) a decision under section 38ZO or section 38ZP; (d) a decision agreeing or disagreeing to the substitution of an access provider as a party to a binding access arrangement under section 38ZQ; (e) a final decision in respect of an application for the renewal of an access arrangement under section 38ZR.'. s. 5 -- 61 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 56 6. New Division 4 of Part 2A substituted and new Divisions 5 to 9 of Part 2A inserted For Division 4 of Part 2A of the Rail Corporations Act 1996 substitute— 'Division 4—Interconnection of Railways 38ZT. Interconnection (1) An access seeker who owns or operates a railway track or railway siding, or intends to own or operate a proposed railway track or railway siding, may, in writing, notify an access provider of its desire to connect that railway track or railway siding, or proposed railway track or railway siding, to the access provider's relevant railway track. (2) Subject to this section, on receipt of a notification under sub-section (1), the access provider must do all things reasonably necessary to enable the access seeker to connect the railway track or railway siding, or proposed railway track or railway siding, to the access provider's relevant railway track. (3) The access provider may refuse to connect a railway track or railway siding owned or operated by the access seeker, or a proposed railway track or railway siding, to its relevant railway track unless the access seeker, within the time specified (if any) in the negotiation guidelines— (a) provides evidence, to the reasonable satisfaction of the access provider, that the access seeker has obtained every relevant statutory approval for the construction of the connection; and s. 6 -- 62 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 57 (b) by agreement, in writing, with the access provider agrees— (i) to pay the access provider's reasonable costs to construct the connection; and (ii) with any reasonable requirements of the access provider in relation to the construction of the connection. (4) If the access seeker and access provider cannot agree— (a) as to the terms and conditions for the connection, including the costs to be paid by the access seeker; or (b) the nature or content of the construction requirements in relation to the construction of the connection— either the access seeker or the access provider may, in accordance with the negotiation guidelines, apply to the Commission under Division 5 for a dispute resolution decision. (5) In this section— "relevant railway track" means a railway track owned or operated by an access provider with which the access provider provides declared rail transport services; "relevant statutory approval" means any requirement, licence, permission or consent required by or under an Act in relation to the construction of a connection to a railway track. s. 6 -- 63 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 58 Division 5—Dispute Resolution 38ZU. What is an access regime dispute? (1) An access regime dispute is— (a) a dispute between an access provider and an access seeker where the access provider and access seeker are unable to agree as to the terms and conditions (including price) for the provision of a declared rail transport service to the access seeker; (b) a dispute between an access seeker and an access provider in relation to interconnection; (c) a dispute between an access seeker and an access provider in relation to an extension to rail infrastructure used, or capable of being used, to provide a declared rail transport service. (2) In addition, if— (a) an access seeker reasonably believes that the access provider has not complied with— (i) a binding access arrangement; or (ii) the negotiation guidelines; or (iii) the pricing principles; or (iv) a provision of Division 6— and, as a result, the access seeker has not been provided a declared rail transport service by the access provider; or s. 6 -- 64 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 59 (b) a user reasonably believes that the access provider, in providing a declared rail transport service to them, has not complied with— (i) a binding access arrangement; or (ii) the negotiation guidelines; or (iii) the pricing principles; or (iv) a provision of Division 6— that belief is to be taken to give rise to an access regime dispute. 38ZV. Notification of access regime dispute (1) An access provider, an access seeker or a user may notify the Commission, in writing, of an access regime dispute. (2) On receiving a notification under sub- section (1), the Commission must notify, in writing, of the access regime dispute— (a) the access provider, if an access seeker or a user notified the Commission of the access regime dispute under sub- section (1); (b) the access seeker or user (as the case requires), if the access provider notified the Commission of the access regime dispute under sub-section (1). (3) The person notifying the Commission of an access regime dispute under sub-section (1) and the persons notified by the Commission under sub-section (2) are the parties to the access regime dispute. s. 6 -- 65 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 60 38ZW. Withdrawal of notice of access regime dispute (1) The person who notified the Commission of an access regime dispute under section 38ZV(1) may withdraw that notification at any time before the Commission makes a dispute resolution decision in respect of that access regime dispute. (2) The notification must be withdrawn by notice in writing. (3) If the notification is withdrawn, it is taken for the purposes of this Part never to have been given. 38ZX. Commission must decide on access regime disputes (1) Subject to this Division, on receipt of a notification under section 38ZV(1), the Commission must make a decision in respect of the access regime dispute. (2) Without limiting sub-section (1), a dispute resolution decision may— (a) address or deal with any matter relating to the provision of a declared rail transport service to an access seeker or user who is a party to the dispute, including the terms and conditions for, and price in respect of, the provision of that service; (b) require an access provider to extend, or to permit the extension of, the rail infrastructure that is used to provide a declared rail transport service. s. 6 -- 66 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 61 (3) To avoid doubt, a dispute resolution decision need not require an access provider to provide a declared rail transport service to an access seeker. (4) Subject to sub-section (5), a dispute resolution decision has effect— (a) on and from the day it is made; or (b) if the decision states a day that on and from which it is to have effect, on and from that day. (5) A dispute resolution decision may have effect from the day on which an access seeker has requested, in accordance with an access arrangement, the access provider to provide to them a declared rail transport service. (6) A dispute resolution decision is binding on the parties to the access regime dispute to which the decision relates. (7) A copy of a dispute resolution decision must be given to the parties to the access regime dispute without delay. 38ZY. Time within which Commission must make dispute resolution decision The Commission must make a dispute resolution decision— (a) within 45 days of receipt of a notification under section 38ZV(1); or (b) by the date specified by the Minister under section 38ZZ. s. 6 -- 67 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 62 38ZZ. Minister may extend time within which Commission may make decision (1) The Commission may, at any time before the expiry of the period specified in section 38ZY(a), request, in writing, the Minister for an extension in the time within which it must make a dispute resolution decision. (2) On receipt of a request under sub-section (1), the Minister may agree to the request. (3) If the Minister agrees to a request under this section, the Minister must specify the date by which the Commission must make the dispute resolution decision. (4) The date specified by the Minister must be a date within 6 months of the date on which the Commission received the notification under section 38ZV(1) in respect of the access regime dispute. 38ZZA. Commission may decide not to make dispute resolution decision in certain cases The Commission may at any time decide not to make a dispute resolution decision (without making such a decision) if the Commission considers that— (a) the notification under section 38ZV(1) was vexatious; (b) the subject-matter of the access regime dispute is trivial, misconceived or lacking substance. s. 6 -- 68 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 63 38ZZB. Matters to be taken into account in making decision In making a dispute resolution decision, the Commission— (a) must take into account— (i) the objectives referred to in section 38F; and (ii) the matters or things set out in section 38ZI(b) to (i); and (iii) information given to it in accordance with Part 4 of the Essential Services Commission Act 2001 where that information has been given to the Commission within the time specified in a written notice under section 37(2) of that Act; and (b) may take into account any other matter that it considers relevant. 38ZZC. Decisions must not be inconsistent with principles and rules The Commission must not make a dispute resolution decision that is inconsistent with— (a) the account keeping rules; and (b) the ring fencing rules; and (c) the capacity use rules; and (d) the network management rules; and (e) the pricing principles and any methodology for the calculation of prices determined by the Commission under the Pricing Principles Order; and (f) the principle of passenger priority. s. 6 -- 69 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 64 38ZZD. Decisions must not be inconsistent with an access arrangement (1) The Commission must not make a dispute resolution decision that is inconsistent with a binding access arrangement. (2) Without limiting sub-section (1), the Commission must not make a dispute resolution decision in respect of an access regime dispute about the terms and conditions for the provision of a declared rail transport service that sets a price for that declared rail transport service or an equivalent declared rail transport service that is higher than the price included in the access provider's internal transfer terms. 38ZZE. Decisions must not interfere with certain directions of the Secretary The Commission must not, without the written consent of the Secretary, make a dispute resolution decision that interferes with or has the effect of interfering with a direction of the Secretary made under section 115B of the Transport Act 1983. 38ZZF. Certain decisions must not be made without prior consultation with Secretary and Director (1) The Commission must not make a relevant dispute resolution decision unless the Commission— (a) has given a notice, in writing to the Secretary and Director at least 20 days before making the decision informing them that— (i) it has received notification of that dispute in accordance with section 38ZV(1); and s. 6 -- 70 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 65 (ii) they may make submissions to it in relation to the dispute; and (b) has considered any submission made by the Secretary or the Director. (2) In this section— "relevant dispute resolution decision" means a dispute resolution decision that— (a) requires or directs an access provider to provide the declared rail transport service the subject of the access regime dispute; (b) requires an access provider to provide interconnection; (c) requires an access provider to extend, or permit the extension of, rail infrastructure owned or operated by the access provider to provide a declared rail transport service. 38ZZG. Decisions in relation to extensions of rail infrastructure The Commission must not make a decision requiring an access provider to extend, or to permit the extension of, the rail infrastructure that is used to provide a declared rail transport service— (a) unless it is satisfied that— (i) the extension is technically and economically feasible and consistent with the safe and reliable operation of the relevant rail infrastructure; and s. 6 -- 71 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 66 (ii) the access provider's legitimate business interests in the rail infrastructure are protected; or (b) if to do so will require the access provider to bear some or all of the costs of extending that rail infrastructure or maintaining that extension. 38ZZH. Hearings for the purposes of a dispute resolution decision (1) The Commission must conduct a hearing for the purposes of making a dispute resolution decision. (2) In any hearing for the purposes of making a dispute resolution decision, the Commission— (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act as speedily as a proper consideration of the access regime dispute allows, having regard to the need to carefully and quickly inquire into and investigate the access regime dispute and all matters affecting the merits, and fair settlement, of the access regime dispute; and (c) may inform itself of any matter relevant to the access regime dispute in any way it thinks appropriate. (3) The Commission may decide the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties to an access regime dispute, and may require that the cases be presented within those periods. s. 6 -- 72 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 67 (4) The Commission may require evidence or argument to be presented in writing, and may decide the matters on which it will hear oral evidence or argument. (5) The Commission may decide that a hearing is to be conducted by— (a) telephone; or (b) closed circuit television; or (c) any other means of communication. 38ZZI. Hearing to be in private (1) Subject to sub-section (2), a hearing conducted for the purposes of making a dispute resolution decision is to be in private. (2) If the parties agree, a hearing or part of a hearing may be conducted in public. (3) The Commissioner of the Commission who is presiding at a hearing that is conducted in private may give written directions as to the persons who may be present. (4) In giving directions under sub-section (3), the Commissioner presiding must have regard to the wishes of the parties and the need for commercial confidentiality. 38ZZJ. Right to representation In a hearing before the Commission under this Division, a party may— (a) appear in person; or (b) be represented by someone else if the Commission agrees. s. 6 -- 73 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 68 38ZZK. Particular powers of the Commission for the purposes of making a dispute resolution decision (1) The Commission may do any of the following things for the purpose of making a dispute resolution decision— (a) give a direction in the course of, or for the purposes of, a hearing; (b) sit at any place; (c) adjourn to any time and place; (d) refer any matter to an expert and accept the expert's report as evidence; (e) generally give all such directions, and do all such things, as are necessary or expedient for the speedy hearing and making of a dispute resolution decision. (2) A party to an access regime dispute must not do any act or thing in relation to the hearing of an access regime dispute that would be a contempt of court if the Commission were a court of record. Note: Sub-section (2) is a penalty provision: See the definition of "penalty provision" in section 38A. (3) The Commission may give an oral or written direction to any party to an access regime dispute not to divulge or communicate to anyone else specified information that was given to the party in the course of an access regime dispute unless the party has the Commission's permission. s. 6 -- 74 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 69 (4) A party to an access regime dispute must comply with a direction under sub- section (3). Note: Sub-section (4) is a penalty provision: See the definition of "penalty provision" in section 38A. 38ZZL. Power to take evidence on oath or affirmation (1) The Commission may take evidence on oath or affirmation and for that purpose a Commissioner of the Commission may administer an oath or affirmation. (2) The power conferred under this section may be exercised only for the purposes of making a dispute resolution decision. 38ZZM. Commission may give directions in relation to negotiations (1) If the Commission considers that it would be likely to facilitate negotiations relating to an access regime dispute if a person who is or was a party to the access regime dispute were to be given a direction under this sub- section, the Commission may, for the purposes of facilitating those negotiations, give the person a written procedural direction requiring the person to do, or refrain from doing, a specified act or thing relating to the conduct of those negotiations. (2) Without limiting sub-section (1), the Commission may give a procedural direction to the parties to negotiate in good faith to settle an access regime dispute. s. 6 -- 75 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 70 (3) A person must not contravene a direction given under sub-section (1). Note: Sub-section (3) is a penalty provision: See the definition of "penalty provision" in section 38A. 38ZZN. Two or more access regime disputes may be decided together (1) The Commission may make a dispute resolution decision in respect of 2 or more access regime disputes in respect of which it has received notifications under section 38ZV(1) if the same access provider is a party to those access regime disputes. (2) The Commission may, for the purposes of sub-section (1), disclose or give information in relation to one access regime dispute to a party of another access regime dispute if it considers it appropriate to do so. (3) Section 38 of the Essential Services Commission Act 2001 applies to the information disclosed or given by the Commission under sub-section (2) as if that information had been given to the Commission under section 37 of that Act. 38ZZO. Commission may make interim decision (1) The Commission may make an interim decision in respect of an access regime dispute before making a dispute resolution decision in respect of that dispute. (2) The making of an interim decision does not relieve the Commission from its duty to make a dispute resolution decision. s. 6 -- 76 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 71 (3) Subject to this section, an interim decision has effect— (a) on and from the date specified in the interim decision; and (b) as if it were a dispute resolution decision. (4) In making an interim decision, the Commission may take into account any matter it considers relevant. (5) Subject to this section, unless sooner revoked, an interim decision is binding on the parties to the access regime dispute and remains in force until— (a) the end of the period specified in the interim decision; or (b) until a dispute resolution decision is made. (6) The Commission may revoke an interim decision. (7) If— (a) an interim decision is in force in relation to an access regime dispute; and (b) the notification under section 38ZV(1) is withdrawn under section 38ZW— the interim decision is taken to have been revoked when the withdrawal occurs. (8) If an interim decision is made, a copy of the decision must be given to the parties without delay. s. 6 -- 77 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 72 38ZZP. Variation or revocation of dispute resolution decisions (1) A party to an access regime dispute in respect of which the Commission has made a dispute resolution decision may apply to the Commission for the variation or revocation of that decision. (2) An application must— (a) be in writing; and (b) state the reasons for the proposed variation or revocation (as the case requires); and (c) in the case of an application for a variation include a description of the proposed variation. (3) On receipt of an application under sub- section (1), the Commission must, without delay— (a) notify any other party bound by the dispute resolution decision of the application; and (b) request submissions and comments from those other parties by a date specified by the Commission. (4) The date specified in a notice under sub- section (3) must not be a date that is less than 21 days after the date a party is notified in accordance with that sub-section. (5) In making a decision whether to vary or revoke a dispute resolution decision as requested, the Commission— s. 6 -- 78 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 73 (a) must consider every submission or comment it receives on or before the date specified by it in accordance with sub-section (3)(b); and (b) may, but need not, consider a submission or comment it receives after the date specified by it in accordance with sub-section (3)(b). (6) On receipt of an application under sub- section (1), the Commission may, as the case requires, decide whether to vary or revoke the decision. (7) Sections 38ZW to 38ZZG and sections 38ZZN and 38ZZO apply to an application under this section— (a) with such alterations and modifications as are necessary; and (b) as if— (i) the application were a notification under section 38ZV(1); and (ii) the decision under this section whether to vary or revoke the dispute resolution decision were a dispute resolution decision. 38ZZQ. Appeals from decisions of the Commission under Division 5 Section 55 of the Essential Services Commission Act 2001 applies to— (a) a dispute resolution decision; (b) an interim decision under section 38ZZO; s. 6 -- 79 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 74 (c) a decision under section 38ZZP— as if the decision were a determination made under that Act. 38ZZR. Commission may recover its costs in certain cases (1) In this section— "Commission's costs" means the total amount of the costs and expenses of the Commission that— (a) are incurred or are likely to be incurred by the Commission in the exercise of powers for or in connection with the making of a relevant decision; or (b) are incurred by the Commission in the exercise of its powers for or in connection with the making of a dispute resolution decision after the notification of an access regime dispute under section 38ZV and before the withdrawal of that notification under section 38ZW; "relevant decision" means a dispute resolution decision or a decision made under section 38ZZA or 38ZZP. (2) After making a relevant decision or on receipt of a notification under section 38ZW withdrawing a notification of an access regime dispute, the Commission may make any order as to the Commission's costs that it considers appropriate. s. 6 -- 80 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 75 (3) An order for costs under sub-section (2) is binding on— (a) the party to the access regime dispute to whom the order is directed; and (b) if the access regime dispute is withdrawn under section 38ZW, a person who was a party to that dispute before it was withdrawn and to whom the order is directed. (4) An order for costs under sub-section (2) is a debt due to the Commission. Division 6—Access Provider Obligations 38ZZS. Hindering or preventing access An access provider must not engage in conduct for the purpose of or having the effect of hindering or preventing— (a) access by an access seeker to a declared rail transport service; (b) an access seeker from entering into an agreement for the provision of a declared rail transport service; (c) the provision of a declared rail transport service to which a person is entitled under an agreement or a dispute resolution decision; (d) interconnection. Note: Section 38ZZS is a penalty provision: See the definition of "penalty provision" in section 38A. s. 6 -- 81 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 76 38ZZT. Compliance with access arrangement An access provider must, in providing a declared rail transport service, comply with the terms and conditions of an access arrangement in relation to that service. Note: Section 38ZZT is a penalty provision: See the definition of "penalty provision" in section 38A. 38ZZU. Compliance with account keeping rules An access provider must, in accordance with the account keeping rules— (a) prepare, maintain and keep accounting records, accounts and other records required to be prepared, maintained and kept under those rules; Note: Section 38ZZU(a) is a penalty provision: See the definition of "penalty provision" in section 38A. (b) provide to the Commission accounting records, accounts and other records required to be prepared, maintained and kept under those rules. Note: Section 38ZZU(b) is a penalty provision: See the definition of "penalty provision" in section 38A. 38ZZV. Compliance with ring fencing rules An access provider must comply with the ring fencing rules. Note: Section 38ZZX is a penalty provision: See the definition of "penalty provision" in section 38A. s. 6 -- 82 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 77 38ZZW. Compliance with capacity use rules An access provider must, in carrying out a relevant capacity allocation activity, carry out that activity in accordance with the capacity use rules. Note: Section 38ZZW is a penalty provision: See the definition of "penalty provision" in section 38A. 38ZZX. Compliance with network management rules An access provider must, in carrying out a relevant network management activity, carry out that activity in accordance with the network management rules. Note: Section 38ZZX is a penalty provision: See the definition of "penalty provision" in section 38A. 38ZZY. Access provider obligation in relation to calculating prices for declared rail transport services (1) Subject to any binding access arrangement or dispute resolution decision, an access provider must not, in respect of declared rail transport services it will provide, calculate different prices for the provision of those services as between— (a) different access seekers; or (b) an access seeker and itself; or (c) an access seeker and a related body corporate of the access provider— if the characteristics or nature of those services are the same. Note: Sub-section (1) is a penalty provision: See the definition of "penalty provision" in section 38A. s. 6 -- 83 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 78 (2) In determining whether the characteristics or nature of declared rail transport services are the same, regard must be had to all relevant matters, including— (a) the location, duration and quality of the train path; (b) the nature of the rolling stock; (c) the duration of any agreement for the provision of those declared rail transport services; (d) the arrival and departure times of trains. Division 7—Confidential Information 38ZZZ. Access provider confidential information obligations (1) An access provider must not use information given to them by an access seeker or a user in confidence other than solely for a relevant purpose. Note: Sub-section (1) is a penalty provision: See the definition of "penalty provision" in section 38A. (2) In sub-section (1)— "relevant purpose" means the purpose of— (a) assessing and responding to a request by the access seeker for the provision of a declared rail transport service to the access seeker; (b) providing a declared rail transport service to the user; (c) assessing and responding to a request by the access seeker for interconnection. s. 6 -- 84 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 79 (3) Sub-section (1) does not apply if the access provider has the written consent of the access seeker or the user to use the information given to them by the access seeker or the user for another purpose. (4) An access provider must not disclose information given to them by an access seeker or a user in confidence without the written consent of the access seeker or the user. Note: Sub-section (4) is a penalty provision: See the definition of "penalty provision" in section 38A. 38ZZZA. Access seeker and user confidential information obligations (1) An access seeker or a user must not use information given to them by an access provider in confidence other than solely for a relevant purpose. Note: Sub-section (1) is a penalty provision: See the definition of "penalty provision" in section 38A. (2) In sub-section (1)— "relevant purpose" means the purpose of— (a) seeking to be provided, or using, a declared rail transport service provided by the access provider; or (b) interconnection. (3) Sub-section (1) does not apply if the access seeker or user has the written consent of the access provider to use the information given to them by the access provider for another purpose. s. 6 -- 85 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 80 (4) An access seeker or a user must not disclose information given to them by an access provider in confidence without the written consent of the access provider. Note: Sub-section (4) is a penalty provision: See the definition of "penalty provision" in section 38A. 38ZZZB. Access provider system and business rules for the handling of confidential information (1) An access provider must, on the same day as it submits a proposed access arrangement under section 38W for approval, submit to the Commission for approval, a system and business rules for— (a) the use or handling of information supplied to the access provider in confidence by an access seeker or a user, including the use or handling of that information by an officer, employee or agent of the access provider; and (b) the disclosure of information supplied to the access provider in confidence by an access seeker or a user, including the disclosure of that information by an officer, employee or agent of the access provider. (2) The Commission's approval under sub- section (1) may be subject to such conditions as the Commission considers appropriate. s. 6 -- 86 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 81 (3) On the approval by the Commission of a system and business rules under sub- section (1)— (a) the access provider, while the access provides or is capable of providing declared rail transport services, must at all times have in place and maintain that system and business rules; and (b) that system and business rules must be consistent with the conditions of the approval (if any). Note: Sub-section (3) is a penalty provision: See the definition of "penalty provision" in section 38A. Division 8—Enforcement and Other Proceedings 38ZZZC. Proceedings (1) A person may not bring civil proceedings in respect of a matter arising under this Part, except in accordance with this Division. (2) The Commission may, in accordance with this Division, bring civil proceedings in respect of a penalty provision. (3) Nothing in this section affects the right of a person to bring civil proceedings in respect of any matter or thing, or seek any relief or remedy, if the cause of action arises, or the relief or remedy is sought, on grounds that do not rely on this Part. s. 6 -- 87 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 82 38ZZZD. Criminal proceedings do not lie (1) Criminal proceedings do not lie against a person by reason only that the person— (a) has contravened a provision of this Part; (b) has attempted to contravene such a provision; (c) has aided, abetted, counselled or procured a person to contravene such a provision; (d) has induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene such a provision; (e) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or (f) has conspired with others to contravene such a provision. (2) Sub-section (1) does not apply in respect of a provision of this Part for an offence against which a penalty is prescribed by this Part. 38ZZZE. Proceedings for contraventions of penalty provisions (1) The Commission may apply to the Supreme Court for an order under this Part in respect of a contravention by a person of a penalty provision or the doing by a person of any other thing mentioned in sub-section (2). s. 6 -- 88 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 83 (2) If the Court is satisfied that a person— (a) has contravened a penalty provision; or (b) has attempted to contravene such a provision; or (c) has aided, abetted, counselled or procured a person to contravene such a provision; or (d) has induced, or attempted to induce, a person whether by threats or promises or otherwise, to contravene such a provision; or (e) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or (f) has conspired with others to contravene such a provision— the Court may order the person to pay a pecuniary penalty to the Minister in respect of each act or omission by the person to which this section applies as the Court determines to be appropriate, being an amount not exceeding $1 000 000. (3) In determining the amount of the pecuniary penalty to be paid by the person, the Court may have regard to all relevant matters including— (a) the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission; and s. 6 -- 89 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 84 (b) the circumstances in which the act or omission took place; and (c) whether the person has previously been found by the Court in proceedings under this Division to have contravened a penalty provision. 38ZZZF. Pecuniary penalties to be paid into the Consolidated Fund Every pecuniary penalty received by the Minister must be paid into the Consolidated Fund. 38ZZZG. Injunctions (1) If, on an application by the Commission, the Supreme Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute— (a) a contravention of a penalty provision; or (b) attempting to contravene a penalty provision— the Court may grant an injunction in such terms as the Court determines to be appropriate. (2) If an application for an injunction under sub- section (1) has been made the Court may, if the Court determines it to be appropriate, grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied that a person has engaged, or is proposing to engage, in conduct of a kind mentioned in sub-section (1). s. 6 -- 90 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 85 (3) If in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under sub-section (1). (4) The Court may rescind or vary an injunction granted under sub-section (1) or (2). (5) The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised— (a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; and (b) whether or not the person has previously engaged in conduct of that kind. (6) The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised— (a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and (b) whether or not the person has previously refused or failed to do that act or thing. (7) The Court shall not, in any application to the Court for the grant of an injunction under this section, require the Commission or any other person to give any undertakings as to damages as a condition of granting an interim injunction. s. 6 -- 91 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 86 38ZZZH. Declaratory relief (1) The Supreme Court, on an application by the Commission may, by order, declare whether or not the person to which the application relates has contravened a penalty provision. (2) If the order declares the person to have contravened a penalty provision, the order may include one or more of the following— (a) a requirement that the person cease, within a specified period, the act, activity or practice constituting the contravention; (b) a requirement that the person take such action, or adopt such practice, as the Court requires for remedying the contravention or preventing a recurrence of the contravention. 38ZZZI. Enforcement of dispute resolution decisions (1) If the Supreme Court is satisfied, on the application of a party to an access regime dispute in respect of which the Commission has made a dispute resolution decision, that another party to that access regime dispute engaged, is engaging, or is proposing to engage in conduct that constitutes a contravention of the dispute resolution decision, the Court may make all or any of the following orders— (a) an order granting an injunction on such terms as the Court thinks appropriate— (i) restraining the other party from engaging in the conduct; or s. 6 -- 92 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 87 (ii) if the conduct involves refusing or failing to do something— requiring the other party to do that thing; (b) an order directing the other party to compensate the applicant for loss or damage suffered as a result of the contravention; (c) any other order that the Court thinks appropriate. (2) If the Supreme Court has power under sub- section (1) to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do anything, the Court may make any other orders (including granting an injunction) that it thinks appropriate against any other person who was involved in the contravention concerned. (3) A reference in this section to a person involved in the contravention is a reference to a person who has— (a) aided, abetted, counselled or procured the contravention; or (b) induced the contravention, whether through threats or promises or otherwise; or (c) been in any way (directly or indirectly) knowingly concerned in or a party to the contravention; or (d) conspired with others to effect the contravention. s. 6 -- 93 of 153 -- Part 2—Amendment of Rail Corporations Act 1996 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 88 Division 9—Miscellaneous 38ZZZJ. Collection and use of information by Commission Despite section 36 of the Essential Services Commission Act 2001— (a) the Commission may perform or exercise the functions or powers conferred on it under Part 4 of that Act for the purpose of performing or exercising any of its functions or powers under this Part; and (b) Part 4 of that Act applies to or in respect of any information or a document given to the Commission under this Part as if it were required to be given to the Commission under section 37 of that Act.'. 7. Supreme Court—limitation of jurisdiction After section 105(2) of the Rail Corporations Act 1996 insert— "(3) It is the intention of section 38ZZZC to alter or vary section 85 of the Constitution Act 1975.". 8. Amendment of regulation making power At the end of section 106 of the Rail Corporations Act 1996 insert— "(2) Regulations made under this Act— (a) may be of general or limited application; (b) may differ according to differences in time, place or circumstance.". __________________ s. 7 -- 94 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 89 PART 3—AMENDMENT OF TRANSPORT ACT 1983 AND THE CONSTITUTION ACT 1975 Division 1—Access Regime Related Amendments 9. Priority of passenger services (1) In section 10(1) of the Transport Act 1983— (a) in paragraph (c)— (i) omit "access to or"; (ii) omit "within the meaning of the Rail Corporations Act 1996"; (b) for paragraph (d) substitute— "(d) the train operator is— (i) a party to an agreement relating to the provision of those rail transport services or declared rail transport services; or (ii) an access provider bound by a dispute resolution decision relating to the provision of those rail transport services or declared rail transport services—"; (c) in paragraph (e), for "access to those services as is" substitute "services as are". (2) In section 10(2) of the Transport Act 1983— (a) omit "provision of access to or"; (b) after "train operator" insert "of the rail transport services and declared rail transport services"; See: Act No. 9921. Reprint No. 10 as at 1 July 2004 and amending Act Nos 54/2002, 69/2003, 94/2003, 101/2003, 108/2004 and 110/2004. LawToday: www.dms. dpc.vic. gov.au s. 9 -- 95 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 90 (c) in paragraph (b)— (i) omit "access of"; (ii) after "person to" insert "use". (3) In section 10(3)(b) of the Transport Act 1983— (a) omit "access of"; (b) after "train operator to" insert "use". (4) For section 10(4) of the Transport Act 1983 substitute— "(4) Nothing in sub-section (2) or (3) affects any provision of an agreement or a dispute resolution decision referred to in sub-section (1)(d) relating to a right to use rail transport services or declared rail transport services referred to in sub-section (2)(b) or (3)(b) which specifies the respective rights or obligations of— (a) in the case of an agreement, the parties to the agreement; or (b) in the case of a dispute resolution decision, the parties bound by that decision— as a result of— (c) any interference with an existing use or right arising from the operation of this section; or (d) the Director requiring or approving a timetable change in accordance with an agreement referred to in sub-section (1)(a).". s. 9 -- 96 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 91 (5) For section 10(5) of the Transport Act 1983 substitute— "(5) Subject to the terms of any agreement, or a dispute resolution decision relating to a right referred to in sub-section (2)(b), if the operation of this section interferes with that right, the rail infrastructure operator must use all reasonable endeavours to provide alternative rail transport services or declared rail transport services (as the case requires) to the person whose right to use those services is interfered with so as to minimise that interference.". (6) After section 10(6) of the Transport Act 1983 insert— '(7) In this section "access provider", "access seeker", "binding access arrangement", "dispute resolution decision", "rail transport service" and "declared rail transport service" have the meanings given to them under section 38A of the Rail Corporations Act 1996.'. (7) After section 10(1)(d)(i) of the Transport Act 1983 insert— "(ia) an access provider bound by a binding access arrangement relating to the provision of those rail transport services or declared rail transport services; or". (8) In section 10(4) of the Transport Act 1983— (a) after "agreement," (where first occurring) insert "binding access arrangement,"; (b) after paragraph (a) insert— "(ab) in the case of a binding access arrangement, the access provider and any access seeker; or". s. 9 -- 97 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 92 (9) In section 10(5) of the Transport Act 1983 after "agreement," insert "binding access agreement,". Division 2—Other Amendments 10. Applications for renewal of authorisation (1) In section 221G(3) of the Transport Act 1983 for "the prescribed number of" substitute "60". (2) For section 221G(4) of the Transport Act 1983 substitute— "(4) Despite sub-section (3), the Secretary may consider a renewal application made later than the time applying under sub-section (3). (4A) If the regulations prescribe a late renewal application fee, the Secretary may only consider a renewal application made later than the time for applying under sub- section (3) if the applicant pays that fee.". (3) In section 221G(5) of the Transport Act 1983 for "the day prescribed for the purposes of this sub- section" substitute "90 days before the expiry of the authorisation". 11. Renewal of authorisation In section 221H(4) of the Transport Act 1983 for "the prescribed period" substitute "3 years". 12. Duration of accreditation For section 228F(1) of the Transport Act 1983 substitute— "(1) An accreditation remains in force for the period specified by the Secretary. (1A) The Secretary must not specify a period that is greater than the maximum (if any) specified by the regulations for the purposes of this section.". s. 10 -- 98 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 93 13. Application for renewal of accreditation (1) For section 228I(4) of the Transport Act 1983 for "the prescribed number of" substitute "60". (2) For section 228I(5) of the Transport Act 1983 substitute— "(5) Despite sub-section (4), the Secretary may consider a renewal application made later than the time applying under sub-section (4). (5A) If the regulations prescribe a late renewal application fee, the Secretary may only consider a renewal application made later than the time for applying under sub- section (4) if the applicant pays that fee.". (3) In section 228I(6) of the Transport Act 1983 for "the day prescribed for the purposes of this sub- section" substitute "90 days before the expiry of the accreditation". 14. Renewal of accreditation In section 228J(4) of the Transport Act 1983 for "the prescribed period" substitute "5 years". 15. New Division 1B of Part VIII inserted After section 246C of the Transport Act 1983 insert— 'Division 1B—Validation 246CA. Definitions In this Division— "MTA" means the Metropolitan Transit Authority established under section 15 (as in force before 1 July 1989); s. 13 -- 99 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 94 "PTC" means the Public Transport Corporation established under section 13 (as substituted by section 9 of the Transport (Amendment) Act 1989 and in force before 30 June 2003); "STA" means the State Transport Authority established under section 13 (as in force before 1 July 1989). 246CB. Authorized officers for the purposes of sections 212 and 213 appointed by MTA and STA (1) Anything done or that is purported to have been done by a relevant person under section 212 or 213 during the relevant period that would have been validly or lawfully done had that relevant person been validly appointed as an authorized officer by the Managing Director of the MTA or STA (as the case requires) under section 212(2) has, and is deemed always to have had, the same force and effect as it would have had if that relevant person had been so appointed. (2) In addition, the relevant person is deemed to have been validly appointed as an authorized officer under section 212(2) during the relevant period. (3) In this section— "relevant period" means the period beginning on 1 July 1983 and ending on 30 June 1989; Note 1: 1 July 1983 is the day on which section 212 came into operation. See section 1(2)(c). Note 2: 30 June 1989 is the day before the day on which section 40 of and items 12, 13, and 19.1 of Schedule 1 to, the Transport (Amendment) Act 1989 s. 15 -- 100 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 95 (No. 44/1989) came into operation. Those provisions substituted references to the PTC and the Chief Executive of the PTC. "relevant person" means an officer of the MTA or STA whom the Managing Director of the MTA or STA (as the case requires) purportedly appointed to be an authorized officer under section 212(2) during the relevant period. 246CC. Authorised officers for the purposes of Division 2 of Part VII appointed by PTC (1) Anything done or that is purported to have been done by a relevant person under section 212 or 213 during the relevant period that would have been validly or lawfully done had that relevant person been validly appointed as an authorized officer by the Chief Executive of the PTC under section 212(2) has, and is deemed always to have had, the same force and effect as it would have had if that relevant person had been so appointed. (2) In addition, the relevant person is deemed to have been validly appointed as an authorized officer under section 212(2) during the relevant period. (3) In sub-sections (1) and (2)— "relevant period" means the period beginning on 1 July 1989 and ending on 7 August 1990; Note 1: 1 July 1989 is the day on which section 40 of and items 12, 13, and 19.1 of Schedule 1 to, the Transport (Amendment) Act 1989 (No. 44/1989) came into operation. Those provisions substituted references to the PTC and the Chief Executive of the PTC. s. 15 -- 101 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 96 Note 2: 7 August 1990 is the day before the day on which section 42 of the Crimes Legislation (Miscellaneous Amendments) Act 1989 (No. 25/1989) came into operation. That section substituted new sections 211 to 215. "relevant person" means an officer of the PTC whom the Chief Executive of the PTC purportedly appointed to be an authorized officer under section 212(2) during the relevant period. (4) Anything done or that is purported to have been done by a relevant person under Division 2 of Part VII during the relevant period that would have been validly or lawfully done had that relevant person been validly appointed as an authorised officer by the Chief Executive of the PTC or the PTC (as the case requires) under section 211 has, and is deemed always to have had, the same force and effect as it would have had if that relevant person had been so appointed. (5) In addition, the relevant person is deemed to have been validly appointed as an authorised officer under section 211 during the relevant period. (6) In sub-sections (4) and (5)— "relevant period" means the period beginning on 8 August 1990 and ending on 30 May 2000; Note 1: 8 August 1990 is the day on which section 42 of the Crimes Legislation (Miscellaneous Amendments) Act 1989 (No. 25/1989) came into operation. That section inserted a new section 211 which contained a new definition of "authorised officer". s. 15 -- 102 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 97 Note 2: 30 May 2000 is the day before the day on which section 18 of the Transport (Amendment) Act 2000 (No. 30/2000) came into operation. That section amended the definition of "authorised officer" in section 211(1) to take out references to the PTC. "relevant person" means an officer of the PTC whom the Chief Executive of the PTC, or the PTC, (as the case requires) purportedly appointed to be an authorised officer under section 211 during the relevant period. 246CD. Authorised officers for the purposes of section Division 2 of Part VII appointed by Secretary (1) Anything done or that is purported to have been done by a relevant person under Division 2 of Part VII during the relevant period that would have been validly or lawfully done had that relevant person been validly appointed as an authorised officer by the Secretary under section 211(1) has, and is deemed always to have had, the same force and effect as it would have had if that relevant person had been so appointed. (2) In addition, the relevant person is deemed to have been validly appointed as an authorised officer under section 211(1) during the relevant period. (3) In sub-sections (1) and (2)— "relevant period" means the period beginning on 23 November 1995 and ending on 2 December 2003; Note 1: 23 November 1995 is the day on which section 45 of the Public Transport Competition Act 1995 (No. 68/1995) came into operation. That section s. 15 -- 103 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 98 amended the definition of "authorised officer" to empower the Secretary to appoint authorised officers. Note 2: 2 December 2003 is the day before the day on which section 15(2) of the Transport (Rights and Responsibilities) Act 2003 (No. 101/2003) came into operation. That section repealed section 211 on 3 December 2003. "relevant person" means a person whom the Secretary purportedly appointed to be an authorised officer under section 211(1) during the relevant period. (4) Anything done or that is purported to have been done by a relevant person under section 212 or 213 during the relevant period that would have been validly or lawfully done had— (a) that relevant person been validly authorised to act as an authorised officer by the Secretary under section 221A or 221AB (as the case requires) for the purposes of Part VII; and (b) in the case of a purported authorisation under section 221AB, regulations been in force under this Act during the relevant period prescribing— (i) a period for the purposes of each of sections 221H(4), 228F(1) and 228J(4); and (ii) a number of days for the purposes of each of sections 221G(3) and 228I(4); and s. 15 -- 104 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 99 (iii) a late renewal application fee for the purposes of section 228I(5)— has, and is deemed always to have had, the same force and effect as it would have had if that relevant person had been so authorised, and in the case of a purported authorisation under section 221AB, such regulations had been in force. (5) In addition, the relevant person is deemed to be, and have always been, validly authorised to act as an authorised officer under section 221A or 221AB (as the case requires) for the purposes of Part VII. (6) In sub-sections (4) and (5)— "relevant period" means the period beginning on 3 December 2003 and ending on the day section 15 of the Transport Legislation (Further Amendment) Act 2005 comes into operation; Note: 3 December 2003 is the day on which section 15(1) of the Transport (Rights and Responsibilities) Act 2003 (No. 101/2003) came into operation. That section inserted a new definition of "authorised officer" into section 208. "relevant person" means a person whom the Secretary purportedly authorised to, during the relevant period, act as an authorised officer under section 221A or 221AB (as the case requires) for the purposes of Part VII. s. 15 -- 105 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 100 246CE. Authorized officer for the purposes of section 218 appointed by the MTA or STA (1) Anything done or that is purported to have been done by a relevant person under section 218 during the relevant period that would have been validly or lawfully done had that relevant person been validly appointed as an authorized officer by the Managing Director of the MTA or STA, or the MTA or STA, (as the case requires) under section 218(1) has, and is deemed always to have had, the same force and effect as it would have had if that relevant person had been so appointed. (2) In addition, the relevant person is deemed to have been validly appointed as an authorized officer under section 218(1) during the relevant period. (3) In this section— "relevant period" means the period beginning on 1 July 1983 and ending on 30 June 1989; Note 1: 1 July 1983 is the day on which section 218 came into operation. See section 1(2)(c). Note 2: 30 June 1989 is the day before the day on which section 40 of, and item 23 of Schedule 1 to, the Transport (Amendment) Act 1989 (No. 44/1989) came into operation. Those provisions substituted a new section 218(1). s. 15 -- 106 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 101 "relevant person" means an officer of the MTA or the STA whom the Managing Director of the MTA or STA, or the MTA or STA, (as the case requires) purportedly appointed to be an authorized officer under section 218(1) during the relevant period. 246CF. Authorized officer for the purposes of section 218 or 218B appointed by the PTC under section 218(1) (1) Anything done or that is purported to have been done by a relevant person under section 218 or 218B during the relevant period that would have been validly or lawfully done had that relevant person been validly appointed as an authorized officer by the PTC under section 218(1) has, and is deemed always to have had, the same force and effect as it would have had if that relevant person had been so appointed. (2) In addition, the relevant person is deemed to have been validly appointed as an authorized officer under section 218(1) during the relevant period. (3) In this section— "relevant period" means the period beginning on 1 July 1989 and ending on 30 May 2000; Note 2: 1 July 1989 is the day on which section 40 of, and item 23 of Schedule 1 to, the Transport (Amendment) Act 1989 (No. 44/1989) came into operation. Those provisions substituted a new section 218(1). s. 15 -- 107 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 102 Note 2: 30 May 2000 is the day before the day on which section 19 of the Transport (Amendment) Act 2000 (No. 30/2000) came into operation. That section repealed section 218. "relevant person" means an officer of the PTC whom the PTC purportedly appointed to be an authorized officer under section 218(1) during the relevant period. 246CG. Authorised officers for the purposes of section 218B appointed by PTC under that section (1) Anything done or that is purported to have been done by a relevant person under section 218B during the relevant period that would have been validly or lawfully done had that relevant person been validly appointed as an authorized officer by the PTC under section 218B(1), has, and is deemed always to have had, the same force and effect as it would have had if that relevant person had been so appointed. (2) In addition, the relevant person is deemed to have been validly appointed as an authorized officer under section 218B(1) during the relevant period. (3) In this section— "relevant period" means the period beginning on 7 December 1993 and ending on 30 May 2000; Note 1: 7 December 1993 is the day on which section 67 of the Transport (Amendment) Act 1993 (No. 120/1993) came into operation. That section inserted a new section 218B(1). s. 15 -- 108 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 103 Note 2: 30 May 2000 is the day before the day on which section 19 of the Transport (Amendment) Act 2000 (No. 30/2000) came into operation. That section repealed section 218. "relevant person" means an officer of the PTC whom the PTC purportedly appointed to be an authorized officer under section 218B(1) during the relevant period. 246CH. Authorised officers for the purposes of section 218B by Secretary (1) Anything done or that is purported to have been done by a relevant person under section 218B during the relevant period that would have been validly or lawfully done had that relevant person been validly appointed as an authorised officer by the Secretary under section 218B(1) has, and is deemed always to have had, the same force and effect as it would have had if that relevant person had been so appointed. (2) In addition, the relevant person is deemed to have been validly appointed as an authorised officer under section 218B(1) during the relevant period. (3) In sub-sections (1) and (2)— "relevant period" means the period beginning on 23 November 1995 and ending on 2 December 2003; Note 1: 23 November 1995 is the day on which section 46 of the Public Transport Competition Act 1995 (No. 68/1995) came into operation. That section amended the definition of "authorised officer" to empower the Secretary to appoint authorised officers for the purposes of the section. s. 15 -- 109 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 104 Note 2: 2 December 2003 is the day before the day section 17(5) of the Transport (Rights and Responsibilities) Act 2003 (No. 101/2003) came into operation. That section repealed section 218B(1) on 3 December 2003. "relevant person" means a person whom the Secretary purportedly appointed to be an authorised officer under section 218B(1) during the relevant period. (4) Anything done or that is purported to have been done by a relevant person under section 218B during the relevant period that would have been validly or lawfully done had— (a) that relevant person been validly authorised to act as an authorised officer by the Secretary under section 221A or 221AB (as the case requires) for the purposes of Part VII; and (b) in the case of a purported authorisation under section 221AB, regulations been in force under this Act during the relevant period prescribing— (i) a period for the purposes of each of sections 221H(4), 228F(1) and 228J(4); and (ii) a number of days for the purposes of each of sections 221G(3) and 228I(4); and (iii) a late renewal application fee for the purposes of section 228I(5)— has, and is deemed always to have had, the same force and effect as it would have had if that relevant person had been so authorised, and in the case of a purported authorisation under section 221AB, such regulations had been in force. s. 15 -- 110 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 105 (5) In addition, the relevant person is deemed to be, and have always been, validly authorised to act as an authorised officer under section 221A or 221AB (as the case requires) for the purposes of Part VII. (6) In sub-sections (4) and (5)— "relevant period" means the period beginning on 3 December 2003 and ending on the day section 15 of the Transport Legislation (Further Amendment) Act 2005 comes into operation; Note: 3 December 2003 is the day on which section 15(1) of the Transport (Rights and Responsibilities) Act 2003 (No. 101/2003) came into operation. That section inserted a new definition of "authorised officer" into section 208. "relevant person" means a person whom the Secretary purportedly authorised to, during the relevant period, act as an authorised officer under section 221A or 221AB (as the case requires) for the purposes of Part VII. 246CI. Officers of the MTA and STA authorized for the purposes of section 219(2) or (4) (1) Anything done or that is purported to have been done by a relevant person under section 219(2) or (4) during the relevant period that would have been validly or lawfully done had that person been validly authorized under the relevant sub-section by the MTA or STA to do the thing provided for by the relevant sub-section, has, and is deemed always to have had, the same force and effect as it would have had if that officer had been so authorized. s. 15 -- 111 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 106 (2) In addition, the relevant person is deemed to have been validly authorized under section 219(2) or (4) (as the case requires) during the relevant period. (3) In this section— "relevant period" means the period beginning on 17 December 1986 and ending on 30 June 1989; Note 1: 17 December 1986 is the day on which section 33(b) of the Transport (Amendment) Act 1986 (No. 100/1986) came into operation. That section inserted section 219(2) and (4). Note 2: 30 June 1989 is the day before the day on which section 40 of, and items 18 and 19 of Schedule 1 to, the Transport (Amendment) Act 1989 (No. 44/1989) came into operation. Those provisions substituted references to the PTC. "relevant person" means an officer of the MTA or STA whom the MTA or STA (as the case requires) purportedly authorized under section 219(2) or (4) to do the thing provided for under the relevant sub-section during the relevant period. 246CJ. Officers of the PTC authorised for the purposes of section 219(2), (4) or (7) (1) Anything done or that is purported to have been done by a relevant person under section 219(2) or (4) during the relevant period that would have been validly or lawfully done had that relevant person been validly authorized under the relevant sub-section by the PTC to do the thing provided for by the relevant sub-section, has, and is deemed always to have had, the same force and effect s. 15 -- 112 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 107 as it would have had if that person had been so authorized. (2) In addition, the relevant person is deemed to have been validly authorized under section 219(2) or (4) (as the case requires) during the relevant period. (3) In sub-sections (1) and (2)— "relevant period" means the period beginning on 1 July 1989 and ending on 31 December 1997; Note 1: 1 July 1989 is the day on which section 40 of, and items 18 and 19 of Schedule 1 to, the Transport (Amendment) Act 1989 (No. 44/1989) came into operation. Those provisions substituted references to the PTC. Note 2: 31 December 1997 is the day before the day on which section 10 of the Transport (Rail Safety) Act 1996 (No. 28/1996) came into operation. That section substituted a new section 219. "relevant person" means an officer of the PTC whom the PTC purportedly authorized under section 219(2) or (4) to do the thing provided for under the relevant sub-section during the relevant period. (4) Anything done or that is purported to have been done by a relevant person under section 219(7) during the relevant period that would have been validly or lawfully done had that relevant person been validly authorised under that sub-section by the PTC to do the thing provided for by that sub-section, has, and is deemed always to have had, the same force and effect as it would have had if that person had been so authorised. s. 15 -- 113 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 108 (5) In addition, the relevant person is deemed to have been validly authorized under section 219(7) during the relevant period. (6) In sub-sections (4) and (5)— "relevant period" means the period beginning on 1 January 1998 and ending on 29 June 2003; Note 1: 1 January 1998 is the day on which section 10 of the Transport (Rail Safety) Act 1996 (No. 28/1996) came into operation. That section substituted a new section 219. Note 2: 29 June 2003 is the day before the day on which section 19(2) of the Transport (Further Amendment) Act 2001 (No. 54/2001) came into operation. That section repealed section 219(7). "relevant person" means an officer of the PTC whom the PTC purportedly authorised under section 219(7) to do the thing provided for under that sub- section during the relevant period. 246CK. Officers of the PTC authorised for the purposes of section 219A (1) Anything done or that is purported to have been done by a relevant person under section 219A during the relevant period that would have been validly or lawfully done had that relevant person been validly authorised under section 219A(2) by the PTC to do the thing provided for by that section, has, and is deemed always to have had, the same force and effect as it would have had if that person had been so authorised. (2) In addition, the relevant person is deemed to have been validly authorized under section 219A(2) during the relevant period. s. 15 -- 114 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 109 (3) In sub-sections (1) and (2)— "relevant period" means the period beginning on 1 January 1998 and ending on 29 June 2003; Note 1: 1 January 1998 is the day on which section 10 of the Transport (Rail Safety) Act 1996 (No. 28/1996) came into operation. That section substituted a new section 219A. Note 2: 30 May 2000 is the day before the day on which section 22 of the Transport (Amendment) Act 2000 (No. 30/2000) came into operation. That section repealed section 219A. "relevant person" means an officer of the PTC whom the PTC purportedly authorised under section 219A(2) to do the thing provided for under that sub- section during the relevant period. 246CL. Relevant employees and authorised officers for the purposes of section 219 (1) Anything done or that is purported to have been done by a relevant person under section 219 during the relevant period that would have been validly or lawfully done had that relevant person been validly authorised as a relevant employee by the Secretary under section 219(1A)(b) for the purposes of section 219 has, and is deemed always to have had, the same force and effect as it would have had if that relevant person had been so authorised. (2) In addition, the relevant person is deemed to have been validly authorised as an authorised officer under section 219(1A)(b) for the purposes of section 219 during the relevant period. s. 15 -- 115 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 110 (3) In sub-sections (1) and (2)— "relevant period" means the period beginning on 23 December 1999 and ending on 3 December 2003; Note 1: 23 December 1999 is the day on which section 10 of the Rail Corporations and Transport Acts (Miscellaneous Amendments) Act 1999 (No. 63/1999) came into operation. That section inserted section 219(1A). Note 2: 2 December 2003 is the day before the day on which section 17(5) of the Transport (Rights and Responsibilities) Act 2003 (No. 101/2003) came into operation. That section repealed section 219(1A). "relevant person" means a person whom the Secretary purportedly authorised to be a relevant employee under section 219(1A)(b) during the relevant period. (4) Anything done or that is purported to have been done by a relevant person under section 219 during the relevant period that would have been validly or lawfully done had— (a) that relevant person been validly authorised to act as an authorised officer by the Secretary under section 221A or 221AB (as the case requires) for the purposes of Part VII; and (b) in the case of a purported authorisation under section 221AB, regulations been in force under this Act during the relevant period prescribing— (i) a period for the purposes of each of sections 221H(4), 228F(1) and 228J(4); and s. 15 -- 116 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 111 (ii) a number of days for the purposes of each of sections 221G(3) and 228I(4); and (iii) a late renewal application fee for the purposes of section 228I(5)— has, and is deemed always to have had, the same force and effect as it would have had if that relevant person had been so authorised, and in the case of a purported authorisation under section 221AB, such regulations had been in force. (5) In addition, the relevant person is deemed to be, and have always been, validly authorised to act as an authorised officer under section 221A or 221AB (as the case requires) for the purposes of Part VII. (6) In sub-sections (4) and (5)— "relevant period" means the period beginning on 3 December 2003 and ending on the day section 15 of the Transport Legislation (Further Amendment) Act 2005 comes into operation; Note: 3 December 2003 is the day on which section 15(1) of the Transport (Rights and Responsibilities) Act 2003 (No. 101/2003) came into operation. That section inserted a new definition of "authorised officer" into section 208. "relevant person" means a person whom the Secretary purportedly authorised to, during the relevant period, act as an authorised officer under section 221A or 221AB (as the case requires) for the purposes of Part VII. s. 15 -- 117 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 112 246CM. Authorised persons for the purposes of section 219AA (1) Anything done or that is purported to have been done by a relevant person under section 219AA during the relevant period that would have been validly or lawfully done had— (a) that relevant person been— (i) validly authorised as an authorised person by the Secretary under section 219AA(1) for the purposes of section 219AA; and (ii) given an authorisation by the Secretary under Division 4AA of Part VII for the purposes of section 219AA; and (b) regulations been in force under this Act during the relevant period prescribing— (i) a period for the purposes of each of sections 221C(1), 221H(4), 228F(1) and 228J(4); and (ii) a number of days for the purposes of each of sections 221G(3) and 228I(4); and (iii) a late renewal application fee for the purposes of section 228I(5)— has, and is deemed always to have had, the same force and effect as it would have had if— (c) that relevant person had been so authorised and given such an authorisation; and s. 15 -- 118 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 113 (d) such regulations had been in force; and (e) the authorisation had been given for a period that did not exceed the period prescribed under section 221C(1). (2) In addition, the relevant person is deemed to have been validly authorised as an authorised person under section 219AA(1) for the purposes of section 219AA during the relevant period. (3) In this section— "relevant period" means the period beginning on 24 August 1999 and ending on 2 December 2003; Note 1: 24 August 1999 is the day on which section 32 of the Rail Corporations (Further Amendment) Act 1998 (No. 98/1998) came into operation. That section inserted section 219AA. Note 2: 2 December 2003 is the day before the day section 17(8) of the Transport (Rights and Responsibilities) Act 2003 (No. 101/2003) came into operation. That section repealed section 219AA. "relevant person" means a person— (a) whom the Secretary purportedly authorised to be an authorised person under section 219AA(1) for the purposes of section 219AA during the relevant period; and (b) to whom the Secretary purportedly gave an authorisation under Division 4AA of Part VII for the purposes of section 219AA that existed during the relevant period. s. 15 -- 119 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 114 246CN. Authorised persons, authorised officers and relevant employees for the purposes of section 220 (1) Anything done or that is purported to have been done by a relevant person under section 220 during the relevant period that would have been validly or lawfully done had— (a) that relevant person been— (i) validly authorised, as the case requires, as an authorised person or relevant employee by the Secretary under section 220(1) for the purposes of section 220; and (ii) given an authorisation by the Secretary under Division 4AA of Part VII for the purposes of section 220; and (b) regulations been in force under this Act during the relevant period prescribing— (i) a period for the purposes of each of sections 221C(1), 221H(4), 228F(1) and 228J(4); and (ii) a number of days for the purposes of each of sections 221G(3) and 228I(4); and (iii) a late renewal application fee for the purposes of section 228I(5)— has, and is deemed always to have had, the same force and effect as it would have had if— (c) that relevant person had been so authorised and given such an authorisation; and s. 15 -- 120 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 115 (d) such regulations had been in force; and (e) the authorisation had been given for a period that did not exceed the period prescribed under section 221C(1). (2) In addition, the relevant person is deemed to have been validly authorised as an authorised person or relevant employee (as the case requires) under section 220(1) for the purposes of section 220 during the relevant period. (3) In sub-sections (1) and (2)— "relevant period" means the period beginning on 24 August 1999 and ending on 2 December 2003; Note 1: 24 August 1999 is the day on which section 24(1) of the Rail Corporations and Transport Acts (Amendment) Act 1999 (No. 45/1999) came into operation. That section substituted a new section 220(1). Note 2: 2 December 2003 is the day before the day section 17(9) of the Transport (Rights and Responsibilities) Act 2003 (No. 101/2003) came into operation. That section repealed section 220(1). "relevant person" means a person— (a) whom the Secretary purportedly authorised to be, as the case requires, an authorised person or relevant employee under section 220(1) for the purposes of section 220 during the relevant period; and s. 15 -- 121 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 116 (b) to whom the Secretary purportedly gave an authorisation under Division 4AA of Part VII for the purposes of section 220 that existed during the relevant period. (4) Anything done or that is purported to have been done by a relevant person under section 220 during the relevant period that would have been validly or lawfully done had— (a) that relevant person been validly authorised to act as an authorised officer by the Secretary under section 221A or 221AB (as the case requires) for the purposes of Part VII; and (b) in the case of a purported authorisation under section 221AB, regulations been in force under this Act during the relevant period prescribing— (i) a period for the purposes of each of sections 221H(4), 228F(1) and 228J(4); and (ii) a number of days for the purposes of each of sections 221G(3) and 228I(4); and (iii) a late renewal application fee for the purposes of section 228I(5)— has, and is deemed always to have had, the same force and effect as it would have had if that relevant person had been so authorised, and in the case of a purported authorisation under section 221AB, such regulations had been in force. s. 15 -- 122 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 117 (5) In addition, the relevant person is deemed to be, and have always been, validly authorised to act as an authorised officer under section 221A or 221AB (as the case requires) for the purposes of Part VII. (6) In sub-sections (4) and (5)— "relevant period" means the period beginning on 3 December 2003 and ending on the day section 15 of the Transport Legislation (Further Amendment) Act 2005 comes into operation; Note: 3 December 2003 is the day on which section 15(1) of the Transport (Rights and Responsibilities) Act 2003 (No. 101/2003) came into operation. That section inserted a new definition of "authorised officer" into section 208. "relevant person" means a person whom the Secretary purportedly authorised to, during the relevant period, act as an authorised officer under section 221A or 221AB (as the case requires) for the purposes of Part VII. 246CO. Authorized persons for the purposes of section 221 authorized by MTA or STA (1) Anything done or that is purported to have been done by a relevant person under section 221 during the relevant period that would have been validly or lawfully done had that relevant person been validly authorized as an authorized person by the MTA or the STA (as the case requires) under section 221(1)(c) has, and is deemed always to have had, the same force and effect as it would have had if that relevant person had been so authorized. s. 15 -- 123 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 118 (2) In addition, the relevant person is deemed to have been validly authorized as an authorized person under section 221(1)(c) during the relevant period. (3) In this section— "relevant period" means the period beginning on 1 July 1983 and ending on 30 June 1989; Note 1: 1 July 1983 is the day on which section 221 came into operation. See section 1(2)(c). Note 2: 30 June 1989 is the day before the day on which section 40 of, and item 2.2 of Schedule 1 to, the Transport (Amendment) Act 1989 (No. 44/1989) came into operation. Those provisions substituted new references to the PTC. "relevant person" means a person whom the MTA or the STA purportedly authorized to be an authorized person under section 221(1)(c) during the relevant period. 246CP. Authorized persons for the purposes of section 221 authorized by PTC (1) Anything done or that is purported to have been done by a relevant person under section 221 during the relevant period that would have been validly or lawfully done had that relevant person been validly authorized as an authorized person by the PTC under section 221(1)(c) has, and is deemed always to have had, the same force and effect as it would have had if that relevant person had been so authorized. s. 15 -- 124 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 119 (2) In addition, the relevant person is deemed to have been validly authorized as an authorized person under section 221(1)(c) during the relevant period. (3) In this section— "relevant period" means the period beginning on 1 July 1989 and ending on 30 May 2000; Note 1: 1 July 1989 is the day on which section 40 of, and item 2.2 of Schedule 1 to, the Transport (Amendment) Act 1989 (No. 44/1989) came into operation. Those provisions substituted new references to the PTC. Note 2: 30 May 2000 is the day before the day on which section 24 of the Transport (Amendment) Act 2000 (No. 30/2000) came into operation. That section substituted section 221(1)(c). "relevant person" means a person whom the PTC purportedly authorized to be an authorized person under section 221(1)(c) during the relevant period. 246CQ. Authorized persons for the purposes of section 221 authorised by the Secretary (1) Anything done or that is purported to have been done by a relevant person under section 221 during the relevant period that would have been validly or lawfully done had that relevant person been validly authorised as an authorized person by the Secretary under section 221(1)(c) has, and is deemed always to have had, the same force and effect as it would have had if that relevant person had been so authorised. s. 15 -- 125 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 120 (2) In addition, the relevant person is deemed to have been validly authorised as an authorized person under section 221(1)(c) during the relevant period. (3) In this section— "relevant period" means the period beginning on 23 November 1995 and ending on 23 August 1999; Note 1: 23 November 1995 is the day on which section 47(1) of the Public Transport Competition Act 1995 (No. 68/1995) came into operation. Section 47(1) amended section 221(1)(c) to empower the Secretary to authorise persons as authorized persons for the purposes of section 221. Note 2: 23 August 1999 is the day before the day on which section 37 of the Rail Corporations (Amendment) Act 1997 (No. 104/1997) and section 27 of the Rail Corporations and Transport Acts (Amendment) Act 1999 (No. 45/1999) came into operation. Those sections inserted Divisions 4A and 4AA into Part VII. "relevant person" means a person whom the Secretary purportedly authorised to be an authorized person under section 221(1)(c) during the relevant period. (4) Anything done or that is purported to have been done by a relevant person under section 221 during the relevant period that would have been validly or lawfully done had— s. 15 -- 126 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 121 (a) that relevant person been— (i) validly authorised as an authorized person by the Secretary under section 221(1)(c) for the purposes of section 221; and (ii) given an authorisation by the Secretary under Division 4AA of Part VII for the purposes of section 221; and (b) regulations been in force under this Act during the relevant period prescribing— (i) a period for the purposes of each of sections 221C(1), 221H(4), 228F(1) and 228J(4); and (ii) a number of days for the purposes of each sections 221G(3) and 228I(4); and (iii) a late renewal application fee for the purposes of section 228I(5)— has, and is deemed always to have had, the same force and effect as it would have had if— (c) that relevant person had been so authorised and given such an authorisation; and (d) such regulations had been in force; and (e) the authorisation had been given for a period that did not exceed the period prescribed under section 221C(1). s. 15 -- 127 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 122 (5) In addition, the relevant person is deemed to have been validly authorised as an authorized person under section 221(1)(c) for the purposes of section 221 during the relevant period. (6) In sub-sections (4) and (5)— "relevant period" means the period beginning on 24 August 1999 and ending on 2 December 2003; Note 1: 24 August 1999 is the day on which section 37 of the Rail Corporations (Amendment) Act 1997 (No. 104/1997) and section 27 of the Rail Corporations and Transport Acts (Amendment) Act 1999 (No. 45/1999) came into operation. Those sections inserted Divisions 4A and 4AA into Part VII. Note 2: 2 December 2003 is the day before the day section 17(10) of the Transport (Rights and Responsibilities) Act 2003 (No. 101/2003) came into operation. That section repealed section 221(1). "relevant person" means a person— (a) whom the Secretary purportedly authorised to be an authorized person under section 221(1)(c) during the relevant period; and (b) to whom the Secretary purportedly gave an authorisation under Division 4AA of Part VII for the purposes of section 221 that existed during the relevant period. s. 15 -- 128 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 123 (7) Anything done or that is purported to have been done by a relevant person under section 221 during the relevant period that would have been validly or lawfully done had— (a) that relevant person been validly authorised to act as an authorised officer by the Secretary under section 221A or 221AB (as the case requires) for the purposes of Part VII; and (b) in the case of a purported authorisation under section 221AB, regulations been in force under this Act during the relevant period prescribing— (i) a period for the purposes of each of sections 221H(4), 228F(1) and 228J(4); and (ii) a number of days for the purposes of each of sections 221G(3) and 228I(4); and (iii) a late renewal application fee for the purposes of section 228I(5)— has, and is deemed always to have had, the same force and effect as it would have had if that relevant person had been so authorised, and in the case of a purported authorisation under section 221AB, such regulations had been in force. (8) In addition, the relevant person is deemed to be, and have always been, validly authorised to act as an authorised officer under section 221A or 221AB (as the case requires) for the purposes of Part VII. s. 15 -- 129 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 124 (9) In sub-sections (7) and (8)— "relevant period" means the period beginning on 3 December 2003 and ending on the day section 15 of the Transport Legislation (Further Amendment) Act 2005 comes into operation; Note: 3 December 2003 is the day on which section 15(1) of the Transport (Rights and Responsibilities) Act 2003 (No. 101/2003) came into operation. That section inserted a new definition of "authorised officer" into section 208. "relevant person" means a person whom the Secretary purportedly authorised to, during the relevant period, act as an authorised officer under section 221A or 221AB (as the case requires) for the purposes of Part VII. 246CR. Authorised officers for the purposes of section 221AA (1) Anything done or that is purported to have been done by a relevant person under section 221AA during the relevant period that would have been validly or lawfully done had— (a) that relevant person been validly authorised to act as an authorised officer by the Secretary under section 221A or 221AB (as the case requires) for the purposes of Part VII; and (b) in the case of a purported authorisation under section 221AB, regulations been in force under this Act during the relevant period prescribing— (i) a period for the purposes of each of sections 221H(4), 228F(1) and 228J(4); and s. 15 -- 130 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 125 (ii) a number of days for the purposes of each of sections 221G(3) and 228I(4); and (iii) a late renewal application fee for the purposes of section 228I(5)— has, and is deemed always to have had, the same force and effect as it would have had if that relevant person had been so authorised, and in the case of a purported authorisation under section 221AB, such regulations had been in force. (2) In addition, the relevant person is deemed to be, and have always been, validly authorised to act as an authorised officer under section 221A or 221AB (as the case requires) for the purposes of Part VII. (3) In this section— "relevant period" means the period beginning on 3 December 2003 and ending on the day section 15 of the Transport Legislation (Further Amendment) Act 2005 comes into operation; Note: 3 December 2003 is the day section 15(1) of the Transport (Rights and Responsibilities) Act 2003 (No. 101/2003) came into operation. That section inserted a new definition of "authorised officer" into section 208. "relevant person" means a person whom the Secretary purportedly authorised to, during the relevant period, act as an authorised officer under section 221A or 221AB (as the case requires) for the purposes of Part VII. s. 15 -- 131 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 126 246CS. Examples of things validated Without limiting sections 246CB to 246CR, those sections apply with respect to the following— (a) the issue and service of ticket and transport infringement notices under section 212 during the period beginning on 24 August 1999 and ending on the day section 15 of the Transport Legislation (Further Amendment) Act 2005 comes into operation; (b) the request of a person to state his or her name and address and the request of a person to provide evidence of the correctness of that name or address under section 218B as in force from time to time; (c) the arrest without a warrant of a person under section 219 as in force from time to time; (d) the detention of a person under section 219AA while that section was in force; (e) the summary removal of persons and their property (if any), under section 220 (as in force from time to time), from— (i) any vehicle owned or operated by or on behalf of a passenger transport company; or (ii) any premises or property of a passenger transport company; s. 15 -- 132 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 127 (f) the request, under section 221 (as in force from time to time), of a person who has made a journey in a carriage or was on land or premises for which a ticket was required to produce a ticket that is valid for that journey or entry; (g) the request, under section 221 (as in force from time to time), of a person who has made a journey in a carriage or was on land or premises for which a ticket was required to produce a ticket that is valid for that journey or entry; (h) the request, under section 221AA (as in force from time to time), of a person who has just left a carriage, or land or premises for entry to which a ticket is required, to produce for inspection the ticket that the person used for the journey, or to be on the land or premises. 246CT. Accreditations under Division 4A of Part VII (1) An accreditation (other than a temporary accreditation) that is given or purportedly given by the Secretary under section 228C during the relevant period that would have been validly and lawfully given had regulations been in force under this Act prescribing a period for the purposes of section 228F(1) has, and is deemed always to have had, the same force and effect as it would have had if such regulations had been in force. s. 15 -- 133 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 128 (2) An accreditation renewed or purportedly renewed by the Secretary under section 228J during the relevant period that would have been validly and lawfully renewed had regulations been in force under this Act prescribing— (a) a period for the purposes of section 228J(4); and (b) a number of days for the purposes of section 228I(4); and (c) a late renewal application fee for the purposes of section 228I(5)— has, and is deemed always to have had, the same force and effect as it would have had if such regulations had been in force. (3) In this section— "relevant period" means the period beginning on 24 August 1999 and ending on the day section 15 of the Transport Legislation (Further Amendment) Act 2005 comes into operation. Note : 24 August 1999 is the day on which section 37 of the Rail Corporations (Amendment) Act 1997 (No. 104/1997) came into operation. That section inserted Division 4A into Part VII. s. 15 -- 134 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 129 246CU. Prosecutorial authorisations by the MTA or STA (1) Anything done or that is purported to have been done by a relevant person under section 229(1) or 229(1A) (as the case requires) during the relevant period that would have been validly or lawfully done had that relevant person been validly authorized by the MTA or STA, under section 229(1) has, and is deemed always to have had, the same force and effect as it would have had if that relevant person had been so authorized. (2) In addition, the relevant person is deemed to have been validly authorized to do the thing under section 229(1) or 229(1A) during the relevant period. (3) In this section— "relevant period" means— (a) in relation to anything done or that is purported to have been done by a relevant person under section 229(1), the period beginning on 1 July 1983 and ending on 30 June 1989; Note 1: 1 July 1983 is the day on which section 229 came into operation. See section 1(2)(c). Note 2: 30 June 1989 is the day before the day on which section 40 of, and item 2.1 of Schedule 1 to, the Transport (Amendment) Act 1989 (No. 44/1989) came into operation. Those provisions substituted new references to the PTC. s. 15 -- 135 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 130 (b) in relation to anything done or that is purported to have been done by a relevant person under section 229(1A), the period beginning on 12 January 1987 and ending on 30 June 1989; Note 1: 12 January 1987 is the day on which section 41(b) of the Transport (Amendment) Act 1986 (No. 100/1986) came into operation. That section inserted section 229(1A). Note 2: 30 June 1989 is the day before the day on which section 40 of, and item 2.1 of Schedule 1 to, the Transport (Amendment) Act 1989 (No. 44/1989) came into operation. Those provisions substituted new references to the PTC. "relevant person" means— (a) in relation to anything done or that is purported to have been done under section 229(1), a person whom the MTA or STA purportedly authorized under that section to do the thing under that sub-section during the relevant period; (b) in relation to anything done or that is purported to have been done under section 229(1A), an officer of the MTA or STA whom the MTA or STA (as the case requires) purportedly authorized under 229(1) to do the thing under section 229(1A) during the relevant period. s. 15 -- 136 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 131 246CV. Prosecutorial authorisations by the PTC (1) Anything done or that is purported to have been done by a relevant person under a relevant prosecutorial provision during the relevant period that would have been validly or lawfully done had that relevant person been validly authorised by the PTC, under that provision, to do that thing has, and is deemed always to have had, the same force and effect as it would have had if that relevant person had been so authorised. (2) In addition, the relevant person is deemed to have been validly authorised to do the thing under the relevant prosecutorial provision during the relevant period. (3) In this section— "relevant period" means— (a) in relation to anything done or that is purported to have been done under section 229(1), the period beginning on 1 July 1989 and ending on 30 May 2000; Note 1: 1 July 1989 is the day on which section 40 of, and item 2.1 of Schedule 1 to, the Transport (Amendment) Act 1989 (No. 44/1989) came into operation. Those provisions substituted new references to the PTC. Note 2: 30 May 2000 is the day before the day on which section 28(1) of the Transport (Amendment) Act 2000 (No. 30/2000) came into operation. That section removed references to the PTC. s. 15 -- 137 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 132 (b) in relation to anything done or that is purported to have been done under section 229(1A), the period beginning on 1 July 1989 and ending on 30 May 2000; Note 1: 1 July 1989 is the day on which section 40 of, and item 2.1 of Schedule 1 to, the Transport (Amendment) Act 1989 (No. 44/1989) came into operation. That section substituted new references to the PTC. Note 2: 30 May 2000 is the day before the day on which section 28(2) of the Transport (Amendment) Act 2000 (No. 30/2000) came into operation. That section removed references to the PTC. (c) in relation to anything done or that is purported to have been done under section 229(1B)(a), the period beginning on 15 June 1994 and ending on 30 May 2000; Note 1: 15 June 1994 is the day on which section 26(1) of the Transport (Further Amendment) Act 1994 (No. 60/1994) came into operation. That section inserted section 229(1B). Note 2: 30 May 2000 is the day before the day on which section 28(3) of the Transport (Amendment) Act 2000 (No. 30/2000) came into operation. That section removed references to the PTC. s. 15 -- 138 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 133 "relevant person" means— (a) in relation to anything done or that is purported to have been done under section 229(1), a person whom the PTC purportedly authorised under that sub-section to do the thing under that sub- section during the relevant period; (b) in relation to anything done or that is purported to have been done under section 229(1A) during the period beginning on 1 July 1989 and ending on 14 June 1994 within the relevant period, a person whom the PTC purportedly authorised under section 229 to do the thing under section 229(1A) during that period; Note 1: 1 July 1989 is the day on which section 40 of, and item 2.1 of Schedule 1 to, the Transport (Amendment) Act 1989 (No. 44/1989) came into operation. That section substituted new references to the PTC. Note 2: 14 June 1994 is the day before the day on which section 26(1) of the Transport (Further Amendment) Act 1994 (No. 60/1994) came into operation. That section substituted a new section 229(1A). s. 15 -- 139 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 134 (c) in relation to anything done or that is purported to have been done under section 229(1A) during the period beginning on 15 June 1994 and ending on 30 May 2000 within the relevant period, a person whom the PTC purportedly authorised under that sub-section to do the thing under that sub- section during that period; Note 1: 15 June 1994 is the day on which section 26(1) of the Transport (Further Amendment) Act 1994 (No. 60/1994) came into operation. That section substituted a new section 229(1A). Note 2: 30 May 2000 is the day before the day on which section 28(3) of the Transport (Amendment) Act 2000 (No. 30/2000) came into operation. That section removed references to the PTC. (d) in relation to anything done or that is purported to have been done under section 229(1B), a person whom the PTC purportedly authorised under that sub-section to do the thing under that section; "relevant prosecutorial provision" means section 229(1), 229(1A) or 229(1B)(a) as in force from time to time during the relevant period. s. 15 -- 140 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 135 246CW. Prosecutorial authorisations by the Secretary (1) Anything done or that is purported to have been done by a relevant person under a relevant prosecutorial provision during the relevant period that would have been validly or lawfully done had that relevant person been validly authorised by the Secretary, under that provision, to do that thing has, and is deemed always to have had, the same force and effect as it would have had if that relevant person had been so authorised. (2) In addition, the relevant person is deemed to be, and always have been, validly authorised to do the thing under the relevant prosecutorial provision. (3) In this section— "relevant period" means— (a) in relation to anything done or that is purported to have been done under section 229(1), the period beginning on 15 June 1994 and ending on the day section 15 of the Transport Legislation (Further Amendment) Act 2005 comes into operation; Note: 15 June 1994 is the day on which section 26(1) of the Transport (Further Amendment) Act 1994 (No. 60/1994) came into operation. That section substituted section 229(1) and empowered the Secretary to authorise persons. s. 15 -- 141 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 136 (b) in relation to anything done or that is purported to have been done under section 229(1AA), the period beginning on 24 August 1999 and ending on the day section 15 of the Transport Legislation (Further Amendment) Act 2005 comes into operation; Note: 24 August 1999 is the day on which section 36(1) of the Rail Corporations (Further Amendment) Act 1998 (No. 98/1998) came into operation. That section inserted section 229(1AA). (c) in relation to anything done or that is purported to have been done under section 229(1A), the period beginning on 24 August 1999 and ending on the day section 15 of the Transport Legislation (Further Amendment) Act 2005 comes into operation; Note: 24 August 1999 is the day on which section 30 of the Rail Corporations and Transport Acts (Amendment) Act 1999 (No. 45/1999) came into operation. That section substituted section 229(1A) and empowered the Secretary to authorise persons. s. 15 -- 142 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 137 (d) in relation to anything done or that is purported to have been done under section 229(1B)(a), the period beginning on 15 June 1994 and ending on the day section 15 of the Transport Legislation (Further Amendment) Act 2005 comes into operation; Note: 15 June 1994 is the day on which section 26(1) of the Transport (Further Amendment) Act 1994 (No. 60/1994) came into operation. That section inserted section 229(1B). "relevant prosecutorial provision" means section 229(1), 229(1AA), 229(1A) or 229(1B) as in force from time to time during the relevant period; "relevant person" means— (a) in relation to anything done or that is purported to have been done under section 229(1), a person whom the Secretary purportedly authorised under that sub-section to do the thing under that sub- section during the relevant period; (b) in relation to anything done or that is purported to have been done under section 229(1AA), a person who is employed or engaged by a passenger transport company or a bus company whom the Secretary purportedly authorised under that sub-section to do the thing under that sub-section during the relevant period; s. 15 -- 143 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 138 (c) in relation to anything done or that is purported to have been done under section 229(1A), a person whom the Secretary purportedly authorised under that sub-section to do the thing under that sub- section during the relevant period; (d) in relation to anything done or that is purported to have been done under section 229(1B)(a), a person whom the Secretary purportedly authorised under that section to do the thing under that sub-section during the relevant period. 246CX. Only things done or purported to have been done under a purported authorisation and appointment validated (1) Despite anything to the contrary in this Division, sections 246CB to 246CR and sections 246CU to 246CW are deemed to only validate things done or purported to have been done by a person under a purported authorisation or appointment— (a) during the period for which that person was purportedly authorised or appointed under the purported authorisation or appointment; and (b) that the purported authorisation or appointment purported to authorise to be done. (2) In this section, "purported authorisation or appointment" means an authorisation or appointment referred to in sections 246CB to 246CR and sections 246CU to 246CW. s. 15 -- 144 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 139 246CY. Evidence (1) Every relevant person who, during the relevant period, was purported to be authorised under section 230(4) (as in force from time to time) by a relevant authority to sign a notice, statement, certificate or other document, is deemed to be, and always to have been, validly authorised by the relevant authority to sign that notice, statement, certificate or other document. (2) In this section— "relevant authority" means— (a) in relation to an officer of the MTA or STA, the Managing Director of that Authority; (b) in relation to an officer of the PTC, the Chief Executive of the PTC; (c) in the case of an officer of the Department, the Secretary; (d) in the case of a person who is employed or engaged by a passenger transport company, a bus company, or a rail corporation, the chief executive of the passenger transport company, bus company, or rail corporation (as the case requires); "relevant period" means the period beginning on 1 July 1983 and ending on the day section 15 of the Transport Legislation (Further Amendment) Act 2005 comes into operation; Note : 1 July 1983 is the day on which section 230 came into operation. See section 1(2)(c). s. 15 -- 145 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 140 "relevant person" means— (a) an officer of the MTA or STA; (b) an officer of the PTC; (c) an officer of the Department; (d) a person who is employed or engaged by a passenger transport company, a bus company, or a rail corporation. 246CZ. Delegations generally in relation to authorisations (1) Every exercise or purported exercise of a power of authorisation under an instrument of delegation executed under a relevant delegation provision during the period beginning on 1 July 1983 and ending on the day section 15 of the Transport Legislation (Further Amendment) Act 2005 comes into operation is deemed to have, and always to have had, the same force and effect as it would have had if the exercise or purported exercise of that power had been validly and lawfully exercised by the relevant authority. (2) In sub-section (1)— "power of authorisation" means a power conferred under a relevant authorisation provision to, as the case requires— (a) appoint or authorise a person or an officer of the MTA, STA or PTC to be an authorised officer or authorized person under that provision; or (b) give an authorisation under that provision; s. 15 -- 146 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 141 "relevant authorisation provision" means— (a) section 211(1), 212(2), 218(1), 218B(1), 219(1A), (2), (4) or (7), 219A(2), 219AA(1), 220(1) or 221(1)(c); (b) 221A, 221AB, 221C(1) or 221H; "relevant authority" means— (a) in the case of section 211(1) (as in force during the relevant periods as defined in sections 246CC(6) and 246CD(3)), the Chief Executive of the PTC, the PTC or the Secretary; (b) in the case of section 212(2) (as in force during the relevant periods as defined in sections 246CB(3) and 246CC(3)), the Managing Director of the MTA or STA or the Chief Executive of the PTC; (c) in the case of section 218(1) (as in force during the relevant periods as defined in sections 246CE(3) and 246CF(3)), the Managing Director of the MTA, the Managing Director of the STA, the MTA, STA or the PTC; (d) in the case of section 218B(1) (as in force during the relevant periods as defined in section 246CG(3) and 246CH(3)), the PTC or the Secretary; s. 15 -- 147 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 142 (e) in the case of section 219(2), (4) or (7) (as in force during the relevant periods as defined in section 246CI(3), 246CJ(3) and (6)), the MTA, STA or PTC; (f) in the case of section 219A(2) (as in force during the relevant period as defined in section 246CK(3)), the PTC; (g) in the case of section 219(1A) (as in force during the relevant period as defined in section 246CL(3)), the Secretary; (h) in the case of section 219AA(1) (as in force during the relevant period as defined in section 246CM(3)), the Secretary; (i) in the case of section 220(1) (as in force during the relevant period as defined in section 246CN(3)), the Secretary; (j) in the case of section 221(1)(c) (as in force during the relevant periods as defined in sections 246CO(3), 246CP(3) and 246CQ(3) and (6)), the MTA, STA, PTC or the Secretary; (k) in the case of sections 221A, 221AB, 221C(1) and 221H (as in force from time to time), the Secretary; "relevant delegation provision" means section 6B or section 32(1A), (2), (3) or (3A) (as in force from time to time during the relevant period). s. 15 -- 148 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 143 246CZA. Delegations generally in relation to accreditations (1) Every exercise or purported exercise of a power of accreditation under an instrument of delegation executed under a relevant delegation provision during the period beginning on 24 August 1999 and ending on the day section 15 of the Transport Legislation (Further Amendment) Act 2005 comes into operation is deemed to have, and always to have had, the same force and effect as it would have had if the exercise or purported exercise of that power had been validly and lawfully exercised by the Secretary. (2) In sub-section (1)— "power of accreditation" means a power conferred under a relevant accreditation provision; "relevant accreditation provision" means a provision of Division 4A of Part VII which confers a function or power on the Secretary; "relevant delegation provision" means section 6B or 32(1A). 246CZB. Incorrect delegations purportedly under section 6B (1) Every instrument of delegation executed by the Secretary under section 6B during the relevant period delegating or purportedly delegating the Secretary's— (a) power of authorisation under a relevant authorisation provision; or s. 15 -- 149 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 144 (b) power of accreditation under a relevant accreditation provision— that would have been a valid and lawful instrument had that instrument been executed under section 32(1A) has and is deemed always to have had the same force and effect as it would have had if that instrument had been validly and lawfully executed under section 32(1A). (2) In this section— "relevant accreditation provision" means a provision of Division 4A of Part VII which confers a function or power on the Secretary; "relevant authorisation provision" means any of the following provisions as in force during the relevant period— (a) section 211(1), 218(1), 219(1A)(b), 219(2), (4), (7), 219A(2), 219AA(1), 220(1), 221(1)(c) or 221C(1); (b) section 221A, 221AB or 221H; "relevant period" means the period beginning on 1 September 1994 and ending on the day section 15 of the Transport Legislation (Further Amendment) Act 2005 comes into operation. Note: 1 September 1994 is the day on which section 6 of the Transport (Further Amendment) Act 1994 (No. 60/1994) came into operation. That section inserted section 6B. s. 15 -- 150 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 145 246CZC. No proceedings may be brought (1) Proceedings (whether criminal or civil) and including proceedings— (a) seeking damages or compensation; or (b) seeking the grant of any relief or remedy in the nature of certiorari, prohibition, mandamus or quo warranto, or the grant of a declaration of right or an injunction; or (c) seeking a writ of habeas corpus; or (d) seeking any order under the Administrative Law Act 1978— may not be brought in respect of any matter or thing that, by reason of the operation of sections 246CA to 246CZB, is deemed to be valid or lawful or to have been validly or lawfully done. (2) Despite sub-section (1), a criminal proceeding may be brought that relies on a matter or thing that, by reason of the operation of sections 246CA to 246CZB, is deemed to be valid or lawful or to have been validly or lawfully done. 246CZD. Preservation of rights only in certain proceedings (1) Subject to sub-section (2), this Division affects the rights of parties in any proceeding (whether criminal or civil) commenced, and not finally disposed of, before the day on which section 15 of the Transport Legislation (Further Amendment) Act 2005 comes into operation. s. 15 -- 151 of 153 -- Part 3—Amendment of Transport Act 1983 and the Constitution Act 1975 Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 146 (2) Nothing in this Division is to be taken to— (a) affect the rights of the parties in the proceeding known as Arachichi v Clark heard and determined in the Magistrates' Court at Melbourne on 14 February 2005; or (b) the rights of the parties in the proceeding known as Clark v National Express Group Australia (Swanston Trams) Pty Ltd (ABN 25 087 494 997) (CI 03 70091 of 2003) in the County Court.'. 16. Constitution Act 1975—amendment of section 85 After section 85(13) of the Constitution Act 1975 insert— "(14) Section 246CZC of the Transport Act 1983 (as inserted by section 15 of the Transport Legislation (Further Amendment) Act 2005) alters or varies this section and has effect as a direct amendment of this section.". ═══════════════ s. 16 -- 152 of 153 -- Transport Legislation (Further Amendment) Act 2005 Act No. 25/2005 147 ENDNOTES † Minister's second reading speech— Legislative Assembly: 5 May 2005 Legislative Council: 24 May 2005 The long title for the Bill for this Act was "to amend the Rail Corporations Act 1996, the Constitution Act 1975 and the Transport Act 1983 and for other purposes." Constitution Act 1975: Section 85(5) statement: Legislative Assembly: 5 May 2005 Legislative Council: 24 May 2005 Absolute majorities: Legislative Assembly: 19 May 2005, 25 May 2005 Legislative Council: 25 May 2005 Endnotes -- 153 of 153 --