Transport (Miscellaneous Amendments) Act 2000

i Transport (Miscellaneous Amendments) Act 2000 Act No. 65/2000 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY MATTERS 1 1. Purpose 1 2. Commencement 2 PART 2—AMENDMENTS TO THE TRANSPORT ACT 1983 3 3. Substitution of section 129S 3 129S. Protection against self-incrimination 3 4. Inquiry into accidents and incidents 3 5. Correction of typographical error 4 6. Repeal of inappropriate provision 4 7. Power of authorised person to detain suspected offenders 4 PART 3—AMENDMENTS TO THE RAIL CORPORATIONS ACT 1996 6 8. Reinstatement of failed amendment 6 9. Objectives of the Office of the Regulator-General 6 10. Insertion of section 38DA 6 38DA. Meaning of "access seeker information" 6 11. Obligations of operator of declared rail transport services 7 12. Insertion of section 38EA 7 38EA. Information to be prepared for access seekers 7 38EB. Confidential access seeker information 9 38EC. Right to appeal against a disclosure notice 10 13. Substitution of section 38K 10 38K. Costs of determination 11 14. Substitution of section 38O 11 38O. Financial and business information to be prepared and kept 11 38OA. Offence to provide false information 13 38OB. Giving of information 13 38OC. Protection against self-incrimination 14 15. Minor consequential amendment 14 16. Insertion of section 38PA 14 -- 1 of 18 -- Section Page ii 38PA. Right to appeal against a disclosure notice 14 ═══════════════ ENDNOTES 16 -- 2 of 18 -- 1 Transport (Miscellaneous Amendments) Act 2000† [Assented to 8 November 2000] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY MATTERS 1. Purpose The purpose of this Act is— (a) to amend the Transport Act 1983— (i) to facilitate the investigation of railway accidents; and (ii) to generally improve the operation of that Act; and Victoria No. 65 of 2000 -- 3 of 18 -- Act No. 65/2000 Transport (Miscellaneous Amendments) Act 2000 2 (b) to amend the Rail Corporations Act 1996 to improve the operation of the access regime relating to rail and tram transport services. 2. Commencement This Act comes into operation on the day after the day on which it receives the Royal Assent. _______________ s. 2 -- 4 of 18 -- Act No. 65/2000 Transport (Miscellaneous Amendments) Act 2000 3 PART 2—AMENDMENTS TO THE TRANSPORT ACT 1983 3. Substitution of section 129S For section 129S of the Transport Act 1983 substitute— "129S. Protection against self-incrimination (1) A person required to provide any information, to give any evidence, or to produce any document or thing, under this Subdivision or Subdivision 6 is not excused from providing the information, giving the evidence or producing the document or thing on the ground that the information, evidence, document or thing may tend to incriminate him or her. (2) Any information provided, evidence given, or document or thing produced, by a person under this Subdivision or Subdivision 6 is not admissible against him or her in any proceedings, whether civil or criminal, nor can it be made the ground of any prosecution, action or suit against him or her other than in proceedings for perjury or giving false information.". 4. Inquiry into accidents and incidents At the end of section 129U of the Transport Act 1983 insert— "(2) For the purposes of this section, sections 129E to 129R apply as if— (a) a reference to an inspector was a reference to a person or body required to conduct an inquiry; (b) a reference to an inspector's identity card was a reference to a document s. 3 -- 5 of 18 -- Act No. 65/2000 Transport (Miscellaneous Amendments) Act 2000 4 signed by the Minister requiring the person or body to conduct an inquiry. (3) In conducting an inquiry, the person or body required to conduct the inquiry has the powers conferred by sections 14, 15, 16, 20, 20A and 21A of the Evidence Act 1958 on a board appointed by the Governor in Council. (4) In conducting an inquiry, the person or body required to conduct the inquiry— (a) must act fairly and according to equity and good conscience without regard to technicalities or legal forms; and (b) is not required to conduct the inquiry in a formal manner; and (c) is not bound by rules or practice as to evidence but may inform herself, himself or itself in relation to any matter in any manner that he, she or it thinks fit. (5) Subject to this Act and the regulations, the procedure of the person or body on, or in connection with, an inquiry under this section is in his, her or its discretion.". 5. Correction of typographical error In section 129Y(1)(d) of the Transport Act 1983, for "129U or 129V" substitute "129T and 129U". 6. Repeal of inappropriate provision Section 157(7) of the Transport Act 1983 is repealed. 7. Power of authorised person to detain suspected offenders s. 5 -- 6 of 18 -- Act No. 65/2000 Transport (Miscellaneous Amendments) Act 2000 5 For sections 219AA(5) and (6) of the Transport Act 1983 substitute— "(5) If an alleged offender is arrested in respect of a summary offence, he or she may only be detained for so long as the reason for the arrest under sub-section (3) continues. The person detaining the alleged offender must release the alleged offender as soon as the reason ceases to exist, regardless of whether or not the alleged offender has been charged with the offence. (6) If the person responsible for arresting an alleged offender is not a member of the police force or an authorised person, the person must give the alleged offender into the charge of a member of the police force or an authorised person as soon as is practicable after arresting the alleged offender (unless sub-section (5) applies). (6A) If a member of the police force or an authorised person arrests an alleged offender or is given charge of an alleged offender, the member or authorised person must convey the alleged offender as soon as is practicable before a bail justice or the Magistrates' Court to be dealt with according to law (unless sub- section (5) applies).". _______________ -- 7 of 18 -- Act No. 65/2000 Transport (Miscellaneous Amendments) Act 2000 6 PART 3—AMENDMENTS TO THE RAIL CORPORATIONS ACT 1996 8. Reinstatement of failed amendment (1) In section 3(1) of the Rail Corporations Act 1996, in the definition of "rail transport service", after "Rail Track," insert "the Spencer Street Station Authority,". (2) Section 9(1) of the Rail Corporations and Transport Acts (Miscellaneous Amendments) Act 1999 is repealed. 9. Objectives of the Office of the Regulator-General In section 38B(b) of the Rail Corporations Act 1996, after "require access to" insert "rail transport services or". 10. Insertion of section 38DA After section 38D of the Rail Corporations Act 1996 insert— '38DA. Meaning of "access seeker information" Access seeker information is information relating to the operation of a declared rail transport service— (a) that, in the opinion of the Office, is necessary to enable a person to make an informed decision about— (i) whether to seek access to the service; and (ii) appropriate terms and conditions on which to seek access; and s. 8 -- 8 of 18 -- Act No. 65/2000 Transport (Miscellaneous Amendments) Act 2000 7 (b) that the Office, by notice in writing, requires the operator of the service to prepare and keep for the purposes of this Part.'. 11. Obligations of operator of declared rail transport services For section 38E(1)(c) of the Rail Corporations Act 1996 substitute— "(c) at the request of a person seeking, or considering seeking, access to a declared rail transport service, provide to that person the access seeker information approved under section 38EA.". 12. Insertion of section 38EA After section 38E of the Rail Corporations Act 1996 insert— '38EA. Information to be prepared for access seekers (1) In this section— "business day" means a day that is not— (a) a Saturday or a Sunday; or (b) a day that is wholly or partly observed as a public holiday throughout Victoria. (2) The Office may, from time to time by written notice, require the operator of a declared rail transport service to supply the Office, by a specified date, with draft access seeker information in a specified form and manner. (3) In specifying a date, the Office must specify a date that is at least 15 business days after the date the notice is given to the operator. s. 11 -- 9 of 18 -- Act No. 65/2000 Transport (Miscellaneous Amendments) Act 2000 8 (4) If the Office is not satisfied with the form, quantity or quality of any draft access seeker information supplied in response to a notice under sub-section (2), the Office may, by a second written notice, require the operator to supply the Office, by a specified date, with revised draft access seeker information. (5) The second notice (if any)— (a) must specify what deficiencies in the draft information need to be remedied; and (b) must specify a date for complying with the notice that is at least 5 business days after the date the notice is given to the operator. (6) If the Office is satisfied with the form, quantity and quality of any draft access seeker information, the Office must give the operator a written notice stating that it has approved the information as being suitable for supply to a person for the purposes of section 38E(1). (7) The operator must— (a) in response to a requirement made under sub-section (2), supply to the Office by the required date and in the required manner (if any) draft access seeker information that substantially complies with the requirement; (b) comply with any requirement made under sub-section (4). Penalty: 100 penalty units or imprisonment for 2 years. s. 12 -- 10 of 18 -- Act No. 65/2000 Transport (Miscellaneous Amendments) Act 2000 9 38EB. Confidential access seeker information (1) The Office cannot require an operator to include as access seeker information any information that the operator states is of a confidential or commercially sensitive nature unless sections 38P(2)(a), (b), (c) and (d) apply. (2) For the purposes of sub-section (1), sections 38P(2)(a), (b), (c) and (d) and (4) apply as if— (a) a reference to the disclosure of information or the contents of a document to a person was a reference to the inclusion of the relevant information as access seeker information; and (b) a reference to the person supplying information or the contents of a document was a reference to the operator. (3) Nothing in sub-section (1) is intended to interfere with the obligation on the operator to supply information that the operator states is of a confidential or commercially sensitive nature to the Office under section 38EA. (4) If an appeal is lodged under section 38EC and the appeal— (a) is withdrawn or dismissed, the operator must include the information that was the subject of the appeal in the access seeker information; (b) is granted, the operator need not include the information that was the subject of the appeal in the access seeker information. s. 12 -- 11 of 18 -- Act No. 65/2000 Transport (Miscellaneous Amendments) Act 2000 10 38EC. Right to appeal against a disclosure notice (1) A person who is given a notice under section 38EB(1) and who is aggrieved by a decision of the Office to require information to be included in an operator's access seeker information may appeal against the decision. (2) Sections 38PA(2) to (4) apply to the appeal. (3) Sections 38, 38A, 38B and 38C of the Office of the Regulator-General Act 1994 also apply to the appeal. (4) For the purposes of sub-section (3)— (a) a reference to "section 37" in section 38(1) of the Office of the Regulator- General Act 1994 is to be read as if it was a reference to this section; and (b) section 38(4) of that Act is to be read as if the following paragraphs were substituted for sections 38(4)(a) and (b)— "(a) may affirm the requirement to include the information in the operator's access seeker information; or (b) may cancel the requirement; or (c) may set aside the requirement and remit it to the Office for amendment in accordance with the decision and recommendations (if any) of the appeal panel.".'. 13. Substitution of section 38K For section 38K of the Rail Corporations Act 1996 substitute— s. 13 -- 12 of 18 -- Act No. 65/2000 Transport (Miscellaneous Amendments) Act 2000 11 '38K. Costs of determination (1) In this section, "Office's costs" means the Office's costs in considering an application for the making of a determination for the purposes of this Part. (2) After making, or refusing to make, a determination, the Office may— (a) order the operator to pay up to half of the Office's costs; (b) order the person seeking access to pay up to half of the Office's costs; (c) make both of the orders described in paragraphs (a) and (b). (3) In making an order under sub-section (2)(c), the Office may require each party to bear different proportions of the costs. (4) An order for costs is a debt due to the Office.'. 14. Substitution of section 38O For section 38O of the Rail Corporations Act 1996 substitute— "38O. Financial and business information to be prepared and kept (1) The operator of a declared rail transport service must prepare and keep— (a) any access seeker information that the Office requires the operator to prepare and keep under section 38DA; and (b) any financial and business information that is necessary to enable the compilation of that access seeker information; and s. 14 -- 13 of 18 -- Act No. 65/2000 Transport (Miscellaneous Amendments) Act 2000 12 (c) any other information that the Office requires the operator to prepare and keep under sub-section (2). Penalty: 100 penalty units or imprisonment for 2 years. (2) The Office may, by written notice, require an operator to prepare and keep any information that the Office considers may be useful in the future to the Office for the purpose of making a determination under section 38F. (3) Without limiting sub-section (2), the information the Office may require an operator to prepare and keep may include— (a) historical, current and forecast cost information (including information about operations and maintenance costs and new capital expenditure); (b) historical, current and forecast usage information; (c) regulatory accounts (showing cost projections for a declared service broken into specified categories). (4) The operator must ensure that any information that the operator has to prepare and keep— (a) is kept separately from any other information relating to any other business conducted by the operator; and (b) is prepared and kept in any form and manner specified by the Office. Penalty: 100 penalty units or imprisonment for 2 years. (5) A requirement made under sub-section (2) must specify— s. 14 -- 14 of 18 -- Act No. 65/2000 Transport (Miscellaneous Amendments) Act 2000 13 (a) the date from which the information is to be kept; and (b) that the requirement is made under this section and must include a copy of this section. (6) Part 3A of the Office of the Regulator- General Act 1994 does not apply to any information prepared and kept by an operator of a declared rail transport service. 38OA. Offence to provide false information A person must not, in purported compliance with a requirement made under this Part, knowingly give the Office information that is false or misleading. Penalty: 100 penalty units or imprisonment for 2 years. 38OB. Giving of information (1) A person must not— (a) threaten, intimidate or coerce another person; or (b) take, threaten to take, incite or be involved in any action that causes another person to suffer any loss, injury or disadvantage— because that other person complied, or intends to comply, with a requirement made under this Part. Penalty: 100 penalty units or imprisonment for 2 years. (2) A person is not liable in any way for any loss, damage or injury suffered by another person because of the giving in good faith of s. 14 -- 15 of 18 -- Act No. 65/2000 Transport (Miscellaneous Amendments) Act 2000 14 a document or information to the Office under this Part. 38OC. Protection against self-incrimination If a person is required to provide information or a document to the Office under this Part, it is a lawful excuse for the person to fail to comply with the requirement if compliance may tend to make the person liable to a penalty for any other offence.". 15. Minor consequential amendment In section 38P(1) of the Rail Corporations Act 1996, for "section 38O" substitute "section 38H(1)". 16. Insertion of section 38PA After section 38P of the Rail Corporations Act 1996 insert— '38PA. Right to appeal against a disclosure notice (1) A person who is given a notice under section 38P(2)(c) or (d) and who is aggrieved by a decision of the Office to disclose information or the contents of a document may appeal against the decision. (2) An appeal may only be made on the ground that— (a) the decision was not made in accordance with the law; or (b) the decision is unreasonable having regard to all relevant circumstances. (3) The person must lodge notice of the appeal with the Office within 7 working days after the person is given the notice. s. 15 -- 16 of 18 -- Act No. 65/2000 Transport (Miscellaneous Amendments) Act 2000 15 (4) On the hearing of an appeal under this section, the Office bears the onus of establishing that— (a) the decision was made in accordance with the law; and (b) the decision is reasonable having regard to all relevant circumstances. (5) Sections 38, 38A, 38B and 38C of the Office of the Regulator-General Act 1994 apply to an appeal under this section. (6) For the purposes of sub-section (5)— (a) a reference to "section 37" in section 38(1) of the Office of the Regulator- General Act 1994 is to be read as if it was a reference to this section; and (b) section 38(4) of that Act is to be read as if the following paragraphs were substituted for sections 38(4)(a) and (b)— "(a) may affirm that the Office may disclose the information or document that is the subject of the appeal; or (b) may forbid disclosure by the Office of the information or document; or (c) may restrict the intended disclosure by the Office of the information or document within limits specified by the panel.".'. ═══════════════ s. 16 -- 17 of 18 -- Act No. 65/2000 Transport (Miscellaneous Amendments) Act 2000 16 ENDNOTES † Minister's second reading speech— Legislative Council: 4 October 2000 Legislative Assembly: 26 October 2000 The long title for the Bill for this Act was "to amend the Transport Act 1983 and the Rail Corporations Act 1996 and for other purposes." 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