Rail Corporations (Amendment) Act 2002

i Rail Corporations (Amendment) Act 2002 Act No. 20/2002 TABLE OF PROVISIONS Section Page 1. Purpose 1 2. Commencement 1 3. Definition 2 4. Access regime 2 5. New Division 3 inserted in Part 2A 5 Division 3—Information Provided by Access Seekers 5 38Q. What is information provided by an access seeker? 5 38QA. Determination that confidentiality requirements apply 5 38QB. Confidentiality requirements 7 38QC. Operators to have policies to ensure compliance with confidentiality requirements 9 6. Division 4 heading inserted 10 7. New section 38RA inserted 10 38RA. Commission's power to obtain information and documents 10 ═══════════════ ENDNOTES 11 -- 1 of 12 -- 1 Rail Corporations (Amendment) Act 2002 † [Assented to 21 May 2002] The Parliament of Victoria enacts as follows: 1. Purpose The purpose of this Act is to amend the Rail Corporations Act 1996 to improve the rail access regime in accordance with national competition policy. 2. Commencement This Act comes into operation on the day after the day on which it receives the Royal Assent. Victoria No. 20 of 2002 -- 2 of 12 -- Act No. 20/2002 Rail Corporations (Amendment) Act 2002 2 3. Definition In section 3(1) of the Rail Corporations Act 1996, after the definition of "rail transport service" insert— ' "related body corporate" has the same meaning as in section 9 of the Corporations Act;'. 4. Access regime (1) In Part 2A of the Rail Corporations Act 1996— (a) after the heading to the Part insert— "Division 1—Introduction"; (b) after section 38D insert— "Division 2—Seeking Access to Declared Rail Transport Services". (2) In section 38F of the Rail Corporations Act 1996, after sub-section (3) insert— "(4) The making of a determination under this section is not an arbitration for the purposes of the Commercial Arbitration Act 1984.". (3) In section 38H of the Rail Corporations Act 1996, for sub-section (1) substitute— "(1) At any time after receiving an application under section 38F, the Commission may give notice in writing to the person making the application or to any other person the Commission has reason to believe has s. 3 See: Act No. 79/1996. Reprint No. 2 as at 1 January 2001 and amending Act Nos 44/2001, 54/2001 and 62/2001. Law Today: www.dms. dpc.vic. gov.au -- 3 of 12 -- Act No. 20/2002 Rail Corporations (Amendment) Act 2002 3 information that may assist the Commission in making a determination, specifying— (a) any information that the Commission requires the person to give the Commission so that it can make a determination; and (b) a reasonable time within which the information must be provided.". (4) In section 38J of the Rail Corporations Act 1996— (a) in sub-section (1), after paragraph (b) insert— "; and (c) take into account, if relevant, the ability of the access seeker to obtain access to any other network."; (b) in sub-section (2), for "the period of time between the day on which notice is given under section 38H" substitute "any period of time between the day on which a notice is given under section 38H(1)". (5) In section 38J of the Rail Corporations Act 1996, after sub-section (3) insert— '(4) If an access seeker also requires access to any other network in order to provide a passenger service or other transport service, the Commission, before making the determination, must if possible consult— (a) the owner or operator of the other network; and (b) any person appointed to act as arbitrator, mediator or conciliator (by whatever name called) under any s. 4 -- 4 of 12 -- Act No. 20/2002 Rail Corporations (Amendment) Act 2002 4 access regime applying to the other network. (5) In this section— "access seeker" means a person seeking access to a declared rail transport service in respect of which an application has been made to the Commission for a determination; "other network" means rail infrastructure or tram infrastructure (whether in or outside Victoria) used to provide a passenger service or other transport service that is not the subject of the application with which the Commission is dealing.'. (6) In section 38K(1) of the Rail Corporations Act 1996, for "this Part" substitute "this Division". (7) In section 38O of the Rail Corporations Act 1996, sub-section (6) is repealed. (8) In section 38P of the Rail Corporations Act 1996, for sub-section (1) substitute— "(1) This section applies if information or a document is given to the Commission— (a) under section 38H(1); or (b) under section 37 of the Essential Services Commission Act 2001 to assist the Commission in making a determination under section 38F of this Act— and, at the time it is given, the person giving it states that it is of a confidential or commercially sensitive nature.". s. 4 -- 5 of 12 -- Act No. 20/2002 Rail Corporations (Amendment) Act 2002 5 (9) In section 38P(2)(a)(ii) of the Rail Corporations Act 1996, for "the objectives of this Part" substitute "the Commission's objectives". 5. New Division 3 inserted in Part 2A After section 38PA of the Rail Corporations Act 1996 insert— 'Division 3—Information Provided by Access Seekers 38Q. What is information provided by an access seeker? In this Division, "information provided by an access seeker" means any information given to an operator of rail or tram infrastructure by a person in the course of the person seeking access to a declared rail transport service, including, without limitation, any information regarding— (a) the train or tram paths sought by the person; (b) forecasts of the person's intended use of the service; (c) the person's customers or potential customers; (d) the person's business and operational plans; (e) the person's financial position. 38QA. Determination that confidentiality requirements apply (1) A person referred to in sub-section (2) may apply in writing to the Commission for the making of a determination in accordance with section 34 of the Essential Services Commission Act 2001 that an operator of s. 5 -- 6 of 12 -- Act No. 20/2002 Rail Corporations (Amendment) Act 2002 6 rail or tram infrastructure who provides a declared rail transport service is required to comply with this Division. (2) The persons who may apply under sub- section (1) are— (a) the Director on behalf of the State; or (b) a person seeking access, or proposing to seek access, to the declared rail transport service. (3) On an application under sub-section (1) the Commission may determine that the operator is required to comply with this Division if— (a) the Commission is satisfied that the operator, or a related body corporate of the operator, is substantially involved in a business in competition with persons who may seek access to the declared rail transport service; and (b) the Commission is satisfied— (i) that requiring the operator to comply with this Division would not cause detriment to the operator; or (ii) that although requiring the operator to comply with this Division would cause detriment to the operator, it would assist in achieving the Commission's objectives and the benefit of achieving those objectives would outweigh any detriment caused by the requirement to comply with this Division. s. 5 -- 7 of 12 -- Act No. 20/2002 Rail Corporations (Amendment) Act 2002 7 (4) Subject to sub-section (5), the Commission must endeavour to determine an application under sub-section (1) within 30 days after receiving it, excluding any period of time between the time when the Commission gives a person notice under section 37 of the Essential Services Commission Act 2001 requiring them to give information to the Commission in respect of the application and the time when the required information is received by the Commission. (5) The Commission may refuse to make a determination if the Commission considers that the application is frivolous. (6) An operator who is bound by a determination may apply in writing to the Commission for the revocation of the determination on the ground that there has been a material change in circumstances. 38QB. Confidentiality requirements (1) An operator of rail or tram infrastructure who is bound by a determination under section 38QA, or an officer, employee or contractor of that operator, must not disclose information provided by an access seeker, except as permitted by this section. Penalty: 120 penalty units. (2) An operator of rail or tram infrastructure who is bound by a determination under section 38QA, or an officer, employee or contractor of that operator, must not use information provided by an access seeker to obtain directly or indirectly any pecuniary or other advantage for the operator or for any other person, except as permitted by this section. s. 5 -- 8 of 12 -- Act No. 20/2002 Rail Corporations (Amendment) Act 2002 8 Penalty: 1200 penalty units. (3) An operator of rail or tram infrastructure, or an officer, employee or contractor of that operator, may disclose information provided by an access seeker— (a) to another person, other than a restricted person, in connection with the granting of access to the declared rail transport service; or (b) to the Commission. (4) For the purposes of sub-section (3)(a), a "restricted person" means a person who is directly involved, on behalf of the operator or a related body corporate of the operator, in the promotion or marketing of rail freight or passenger services, other than a person— (a) who is a director of the operator; or (b) whose involvement is limited to strategic decision making, performing general supervisory or executive functions or providing technical, administrative, accounting or other support functions. (5) A person may disclose or use information provided by an access seeker if— (a) the person has the consent of the person who provided the information to disclose or use it; or (b) the disclosure or use is made in legal proceedings at the direction of a court or is otherwise required by law; or (c) the information is in the public domain at the time it is disclosed or used. s. 5 -- 9 of 12 -- Act No. 20/2002 Rail Corporations (Amendment) Act 2002 9 (6) Sub-section (5) is not intended to interfere with any rights another person may have with regard to the disclosure or use of the information. (7) If an operator is bound by a determination under section 38QA, this section applies to the operator and its officers, employees and contractors, while the determination has effect, in respect of information provided by an access seeker before or after the determination took effect. 38QC. Operators to have policies to ensure compliance with confidentiality requirements (1) An operator of rail or tram infrastructure who is bound by a determination under section 38QA must develop and maintain written policies to ensure compliance by the operator and its officers, employees and contractors with section 38QB. (2) The policies must be developed within a reasonable period specified by the Commission in the determination. (3) An operator must give a copy of each policy— (a) to the Commission, as soon as practicable after the policy is developed; and (b) to any other person on request. (4) If the operator amends a policy, it must give the Commission a copy of the amended policy as soon as practicable after the amendment is made.'. s. 5 -- 10 of 12 -- Act No. 20/2002 Rail Corporations (Amendment) Act 2002 10 6. Division 4 heading inserted Before section 38R of the Rail Corporations Act 1996 insert— "Division 4—General". 7. New section 38RA inserted After section 38R of the Rail Corporations Act 1996 insert— "38RA. Commission's power to obtain information and documents (1) Any power given by or under this Part to the Commission to obtain information or documents is in addition to the Commission's powers under section 37 of the Essential Services Commission Act 2001 to obtain information or documents that may assist the Commission in the performance of any of its functions. (2) Without limiting the application of sub- section (1), the Commission may exercise any of its powers under section 37 of the Essential Services Commission Act 2001— (a) to assist the Commission in determining compliance with section 38O by operators of declared rail transport services; (b) to assist the Commission in making a determination under section 38QA; (c) whether or not a person has applied to the Commission for the making of a determination under section 38F.". ═══════════════ s. 6 -- 11 of 12 -- Act No. 20/2002 Rail Corporations (Amendment) Act 2002 11 ENDNOTES † Minister's second reading speech— Legislative Assembly: 18 April 2002 Legislative Council: 8 May 2002 The long title for the Bill for this Act was "to amend the Rail Corporations Act 1996 in relation to the rail access regime and for other purposes." Endnotes -- 12 of 12 --