2001
2001
2003-07-22
act
publicspecial
act.reprint
allinforce
2001-11-28
2003-07-22
act-2003-040
none
act-2001-131
3a1073f5-8347-414f-9387-7c1a4e68e025
7eb626b7-165a-45c0-948c-2d81c533aa83
Note—
The Act was repealed by the Statute Law (Miscellaneous Provisions) Act 2003
No 40, Sch 3 with effect from 22.7.2003.
An Act to amend the Transport Administration Act 1988 with
respect to third party access to the NSW rail network; and for other
purposes.
1Name of
Act
This Act is the Transport
Administration Amendment (Rail Access) Act
2001.
2Commencement
This Act commences on a day or days to be
appointed by proclamation.
3Amendment of Transport Administration Act 1988 No
109
The Transport
Administration Act 1988 is amended as set out in Schedule
1.
Schedule 1Amendments
(Section 3)
[1]Section 3
Definitions
Insert in appropriate order in section 3
(1):
RIC
access undertaking means:
(a)
if an undertaking referred to in section 19E (4)
(c) is in force under section 44ZZA of the Trade Practices Act
1974 of the Commonwealth, that undertaking,
or
(b)
in any other case, an access undertaking in force
under Schedule 6AA.
[2]Section 19A
Definitions
Omit “Schedule 6A” from section 19A
(1).
Insert instead “Schedules 6A and
6AA”.
[3]Section 19A (1), definition of
“rail infrastructure facilities”
Insert “, subject to subsection (3)”
after “rail
infrastructure facilities”.
[4]Section 19A (1), definition of
“rail infrastructure facilities”
Omit “(subject to section 19B (2)),”
from paragraph (a).
[5]Section 19A
(3)
Insert after section 19A (2):
(3)
The Minister may, by order in writing, direct
that specified facilities that are vested in or owned by Rail Infrastructure
Corporation are to be treated as rail infrastructure facilities for the
purposes of this Act.
[6]Section 19B Meaning of
“NSW Rail Access Regime”
Omit the section.
[7]Section 19D Objectives of
RIC
Omit “the NSW Rail Access Regime”
from section 19D (2) (a).
Insert instead “the current RIC access
undertaking”.
[8]Section 19E Functions of
RIC
Omit “the NSW Rail Access Regime”
from section 19E (2) (b).
Insert instead “the current RIC access
undertaking”.
[9]Section 19E (4)
(c)
Insert at the end of section 19E (4) (b):
, and
(c)
give written undertakings from time to time to
the Australian Competition and Consumer Commission in connection with the
provision of access to the NSW rail network under section 44ZZA of the Trade
Practices Act 1974 of the
Commonwealth.
[10]Section 19E (4A) and
(4B)
Insert after section 19E (4):
(4A)
Clauses 2, 3 and 4 of Schedule 6AA apply to an
undertaking referred to in subsection (4) (c) in the same way as they apply to
an access undertaking referred to in clause 1 of that
Schedule.
(4B)
An undertaking referred to in subsection (4) (c)
is not to be given, and (once given) is not to be withdrawn or varied, except
with the approval of the Minister given with the concurrence of the
Premier.
Note—
Section 44ZZA (7) of the Trade Practices Act
1974 of the Commonwealth further provides that an access
undertaking cannot be withdrawn or varied except with the consent of the
Australian Competition and Consumer Commission.
[11]Section 19E
(5)
Omit “the NSW Rail Access
Regime”.
Insert instead “the current RIC access
undertaking”.
[12]Section 19E
(7)
Omit “subsection (5A)”. Insert
instead “subsections (4B) and (5A)”.
[13]Section 19FB Network
control
Omit “the NSW Rail Access Regime”
from section 19FB (5) (b).
Insert instead “the current RIC access
undertaking”.
[14]Section
19FC
Insert after section 19FB:
19FCRIC access
undertakings
Schedule 6AA (RIC access undertakings) has
effect.
[15]Section 45C Functions of
Council
Omit “the NSW Rail Access Regime referred
to in section 19B” from section 45C (2) (c).
Insert instead “the current RIC access
undertaking”.
[16]Schedule 6A Powers of RIC
relating to rail infrastructure facilities and land
Omit “the NSW Rail Access Regime”
from clause 2 (3).
Insert instead “the current RIC access
undertaking”.
[17]Schedule 6A, clause 5
(3)
Insert “or the current RIC access
undertaking” after “the NSW Rail Access
Regime”.
[18]Schedule
6AA
Insert after Schedule 6A:
Schedule 6AARIC access
undertakings
(Section 19FC)
1Preparation of access
undertaking
(1)
Rail Infrastructure Corporation may from time to
time prepare:
(a)
an access undertaking, or
(b)
a variation of an existing access
undertaking,
for the purpose of implementing the Competition
Principles Agreement in respect of third party access to the NSW rail network
by the national rail track corporation, by rail operators and by access
purchasers.
(2)
Before completing its preparation of an access
undertaking or variation, Rail Infrastructure Corporation:
(a)
must cause a copy of the proposed undertaking or
variation to be made available for public inspection, and posted on its
Internet website, for at least 30 days, and
(b)
must cause notice of the proposed undertaking or
variation:
(i)
containing details of the places (including the
address of the relevant Internet website) where it can be inspected,
and
(ii)
stating that public submissions may be made in
relation to it during that period,
to be published in a daily newspaper circulating
throughout New South Wales, and
(c)
must take into consideration any submissions made
in relation to the proposed undertaking or variation during that
period.
(3)
Subclause (2) does not apply if the access
undertaking or variation (or a substantially similar access undertaking or
variation):
(a)
has been submitted to the Australian Competition
and Consumer Commission under section 44ZZA of the Trade Practices Act
1974 of the Commonwealth, and
(b)
has been withdrawn without having been accepted
under that section, and
(c)
prior to its being withdrawn, has been subject to
a public consultation process under section 44ZZA (4) of that
Act.
(4)
In this clause, Competition Principles Agreement
means the Competition Principles Agreement made on 11 April 1995 by the
Commonwealth, the Territories and the States, as in force for the time
being.
2Access undertaking to apply
Part 4A of IPART Act 1992
(1)
An access undertaking must make provision with
respect to the application of Part 4A of the Independent
Pricing and Regulatory Tribunal Act 1992 to a dispute with
respect to third party access to the NSW rail network:
(a)
by the national rail track corporation,
or
(b)
by persons in their capacities as rail operators
or access purchasers.
(2)
In any arbitration of such a dispute, the
arbitrator:
(a)
must give effect to the access undertaking,
and
(b)
must take into account (in addition to the
matters referred to in section 24B (3) of the Independent
Pricing and Regulatory Tribunal Act 1992) the desirability
of ensuring priority and certainty of access for passenger
services.
3Access undertaking may make
provision for intending access purchasers
(1)
An access undertaking may make provision for
persons:
(a)
who intend to be access purchasers,
and
(b)
who, in the opinion of Rail Infrastructure
Corporation, have the capacity to secure and properly manage the services of a
rail operator,
to enter into negotiations in respect of third party
access to the NSW rail network.
(2)
Such a person may be provided with access under
an undertaking even if the person is not an access purchaser, on the condition
that the person becomes an access purchaser prior to the operation or movement
of rolling stock pursuant to such access.
4Access undertaking may confer
or impose functions on IPART
An access undertaking may confer or impose
functions on the Independent Pricing and Regulatory Tribunal in connection
with the undertaking.
5Access undertaking to be
submitted for Minister’s approval
(1)
An access undertaking or variation prepared under
this Schedule must be submitted for the Minister’s approval, together
with:
(a)
a summary of the submissions made in relation to
the proposed undertaking or variation, whether under clause 1 of this Schedule
or under section 44ZZA of the Trade Practices Act
1974 of the Commonwealth, and
(b)
Rail Infrastructure Corporation’s comments
on those submissions.
(2)
When considering the access undertaking or
variation, the Minister is to take into consideration all of the public
benefits arising from the undertaking or variation (including those that do
not have a direct commercial value).
(3)
An approval under this clause is not to be given
except with the concurrence of the Premier.
6Commencement of access
undertaking or variation
(1)
An access undertaking or variation takes
effect:
(a)
on the day on which notice of the
Minister’s approval of the undertaking or variation is published in the
Gazette, or
(b)
on such later day as may be specified in the
notice.
(2)
As soon as practicable after the relevant notice
is published in the Gazette, Rail Infrastructure Corporation must ensure
that:
(a)
the terms of the access undertaking or variation
are published on its website on the Internet, and
(b)
copies of the access undertaking or variation are
made available for inspection and purchase at each of its
offices.
7Existing access agreements
unaffected
The commencement of an access undertaking or
variation under this Schedule does not affect any access agreements in
relation to the NSW rail network that have been entered into between Rail
Infrastructure Corporation and any other person before that
commencement.
8Rail
Safety Act 1993 unaffected
Nothing in this Schedule affects the operation of
the Rail Safety Act
1993.
9Definition
In this Schedule, national
rail track corporation means:
(a)
subject to paragraph (b), Australian Rail Track
Corporation Limited (ACN 081 455 754), or
(b)
if some other corporation is prescribed by the
regulations for the purposes of this definition (being a corporation
established under an agreement between the Commonwealth, the Territories and
the States with respect to the provision of interstate access to Australian
rail networks), that other corporation.
[19]Schedule 7 Savings,
transitional and other provisions
Insert at the end of clause 2 (1):
Transport
Administration Amendment (Rail Access) Act
2001
[20]Schedule 7, new
Part
Insert at the end of Schedule 7, with appropriate
Part and clause numbers:
PartProvisions consequent on
enactment of Transport Administration Amendment
(Rail Access) Act 2001
Definition
In this Part, the 2001 amending Act means the
Transport Administration Amendment (Rail Access) Act
2001.
NSW Rail Access
Regime
The NSW Rail Access Regime in force under section
19B (as in force immediately before the repeal of that section by the 2001
amending Act) continues to have effect for the purposes of this Act as if it
were an access undertaking in force under Schedule 6AA, and may be varied
accordingly, until a new access undertaking takes effect under:
(a)
section 44ZZA of the Trade Practices Act
1974 of the Commonwealth, or
(b)
Schedule 6AA to this
Act,
as the case may be.
Directions under former
section 19B
Any order that, immediately before the
commencement of section 19A (3), was in force under section 19B (2) is taken
is to have been made under section 19A (3).
Historical
notes
Table of amending
instruments
Transport
Administration Amendment (Rail Access) Act 2001 No 131.
Minister’s second reading speech made: Legislative Assembly, 28.11.2001;
Legislative Council, 13.12.2001. Assented to 19.12.2001. Date of commencement,
18.2.2002, sec 2 and GG No 38 of 8.2.2002, p 733.