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Rail Corporations (Amendment) Bill
Circulation Print
EXPLANATORY MEMORANDUM
Clause 1 states that the purpose of the Act is to make provision for the
improvement of the rail access regime in accordance with
national competition policy guidelines.
Clause 2 provides for the commencement of the Act on the day after Royal
Assent.
Clause 3 inserts a new definition of "related body corporate" in section
3(1) of the Principal Act. The term is used in the new Division 3
of Part 2A.
Clause 4 Clause 4(1) has the effect of dividing Part 2A of the Principal Act
into Divisions. It does this by inserting headings for new
Divisions 1 and 2 in that Part.
Clause 4(2) inserts a new sub-section (4) in section 38F of the
Principal Act, clarifying that any determination by the Essential
Services Commission ("the Commission") under that section is
not an arbitration for the purposes of the Commercial
Arbitration Act 1984.
Clause 4(3) makes amendments to section 38H of the Principal
Act to clarify that the Commission can obtain information from
any person who the Commission has reason to believe has
information that may assist it in making a determination. It also
removes the limitation that the Commission can only seek
information within 20 days of a dispute arising.
Clause 4(4) amends section 38J of the Principal Act to provide
that, in making a determination, the Commission should take into
account, where relevant, the ability of the access seeker to obtain
access to any other rail/tram networks. The clause also amends
section 38J(2) as a consequence of the amendment to section 38H
made by clause 4(3).
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Clause 4(5) inserts a new sub-section (4) in section 38J to
provide that, where an access seeker also requires access to
another network, the Commission must, before making an access
determination, if possible consult the owner or operator of the
other network and any person appointed to act as arbitrator,
mediator or conciliator under any access regime applying to the
other network. A new sub-section (5) includes definitions of the
terms "access seeker" and "other network".
Clause 4(6) amends section 38K(1) of the Principal Act as a
consequence of the division of Part 2A into Divisions.
Clause 4(7) repeals sub-section 38O(6) of the Principal Act
because it is intended that the provisions of Part 4 of the
Essential Services Commission Act 2001 ("ESC Act") for the
collection of information by the Commission will apply for the
purposes of the Commission's functions under the Principal Act.
Clause 4(8) substitutes a new sub-section in section 38P of the
Principal Act. The proposed sub-section applies the restriction of
disclosure of confidential information only where the person
providing the information states that it is of a confidential or
commercially sensitive nature. It reflects the amendment in
clause 7 which clarifies that the Commission can use its powers
under section 37 of the ESC Act to collect information for the
purposes of its functions under the Principal Act.
Clause 4(9) amends section 38P(2)(a)(ii) of the Principal Act to
clarify that the Commission is to take all of its objectives into
account when deciding whether to disclose information under
section 38P(2).
Clause 5 inserts a new Division 3 entitled "Information Provided by
Access Seekers" into Part 2A of the Principal Act. The proposed
Division will consist of a number of new sections:
Proposed section 38Q provides a new definition of "information
provided by an access seeker".
Proposed section 38QA outlines the situation in which a person
may apply in writing to the Commission for a determination that
confidentiality requirements apply, and the circumstances in
which the Commission may make a determination that the
operator of rail/tram infrastructure is required to comply with the
Division.
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Proposed section 38QB details the circumstances in which
confidentiality requirements apply to operators of rail or tram
infrastructure, as well as providing a number of penalties for
persons bound by a determination under section 38QA who
breach the specified confidentiality requirements. The proposed
section also provides details of the circumstances in which a
person may disclose information provided by an access seeker.
Proposed section 38QC inserts a requirement that operators of
rail or tram infrastructure who are bound by a determination
under section 38QA must develop and maintain written policies
to ensure compliance with the confidentiality requirements
specified under section 38QB by the operator, its officers,
employees and contractors.
Clause 6 inserts a new heading before section 38R of the Principal Act to
create "Division 4--General" in Part 2A.
Clause 7 inserts a new section 38RA into the proposed Division 4 of
Part 2A. The proposed section 38RA provides the Commission
with the power to exercise any of its existing powers under
section 37 of the ESC Act to obtain information and documents
for the purpose of assisting it in the performance of any of its
functions under the Principal Act, including--
· the determination of compliance with section 38O by
operators of declared rail transport services; and
· the making of a determination under section 38QA or
under section 38F of the Principal Act.
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