2005
2005
2005-11-24
act
government
publicspecial
act.reprint
allinforce
2005-06-08
2005-06-08
1
2005-11-24
act-2005-098
2005
none
act-2005-061
b337a7f9-867a-4535-8c41-68dc7b6d0c24
491a1df8-3b36-4562-ba2f-ef7c125cc63d
Note—
The Act was repealed by Sch 4 to the Statute Law (Miscellaneous Provisions) Act (No 2)
2005 No 98 with effect from
24.11.2005.
An Act to amend the Passenger Transport Act 1990 with
respect to the provision of step-in arrangements to maintain regular bus
services on termination or expiry of certain existing bus service contracts;
and for other purposes.
1Name of
Act
This Act is the Passenger
Transport Amendment (Maintenance of Bus Services) Act
2005.
2Commencement
This Act commences on the date of assent to this
Act.
3Amendment of Passenger Transport Act 1990 No
39
The Passenger
Transport Act 1990 is amended as set out in Schedule
1.
Schedule 1Amendments
(Section 3)
[1]Schedule 3 Savings and
transitional provisions
Insert at the end of clause 2 (1):
Passenger
Transport Amendment (Maintenance of Bus Services) Act
2005
[2]Schedule 3, clause
27
Insert in alphabetical order:
existing
bus service contract means an existing commercial bus
service contract or an interim contract for the provision of regular bus
services.
existing
service provider means the holder of an existing bus service
contract.
interim
contract for the provision of regular bus services means a
bus service contract for the provision of temporary services in place of a
regular bus service discontinued because of the expiry of the term, or the
termination or variation, of an existing commercial bus service contract or an
interim contract replacing any such contract.
step-in
arrangements means arrangements under clause
39B.
[3]Schedule 3, clause
33
Insert after clause 33 (2):
(3)
Despite clause 28 or the provisions of any
existing commercial bus service contract, the holder of any such contract has
no right or expectation of renewal of the contract on its
expiry.
(4)
To avoid doubt, the continuing provision of bus
services by the former holder of an existing non-commercial or commercial bus
service contract on or after expiry of the contract is not a renewal of the
contract and does not confer any right or expectation of renewal of the
contract.
[4]Schedule 3, clause
34
Insert “or an interim contract for the
provision of regular bus services” after “non-commercial bus
service contract” wherever occurring.
[5]Schedule 3, clause 34 (2)
(c)
Omit “30 or 31”. Insert instead
“30, 31, 39A or 39B”.
[6]Schedule 3, clause 34
(3)
Insert at the end of clause 34:
(3)
In this clause, interim
contract for the provision of regular bus services includes
a bus service contract for the provision of temporary services in place of a
regular bus service discontinued because of the expiry of the term, or the
termination or variation, of an existing non-commercial bus service contract
or an interim contract replacing any such contract.
[7]Schedule 3, clause
36
Insert “Minister or” before
“Director-General” wherever occurring.
[8]Schedule 3, clause 36 (1)
(a)
Insert “or an interim contract for the
provision of regular bus services” after
“contract”.
[9]Schedule 3, clause 36 (1)
(c)
Insert at the end of clause 36 (1) (b):
, or
(c)
a service breach notice or the implementation of
step-in arrangements.
[10]Schedule 3, clause 37 (1)
(e)
Insert at the end of clause 37 (1) (d):
or
(e)
the giving of a service breach notice or the
implementation of step-in arrangements, and any thing done or omitted to be
done under or in connection with a service breach notice or step-in
arrangements,
[11]Schedule 3, clause 37
(1)
Omit “paragraphs (a)–(d)”.
Insert instead “paragraphs (a)–(e)”.
[12]Schedule 3, clause 37 (3)
(a)
Insert “or the Passenger Transport Amendment (Maintenance of Bus Services)
Act 2005” after “the amending
Act”.
[13]Schedule 3, clause
39
Insert “or an interim contract” after
“non-commercial bus service contract” in the definition of
existing
service provider in clause 39 (1).
[14]Schedule 3, clause
39
Insert in alphabetical order in clause 39
(1):
interim
contract means a bus service contract for the provision of
temporary services in place of a regular bus service discontinued because of
the expiry of the term or termination or variation of an existing commercial
bus service contract or an existing non-commercial bus service
contract.
[15]Schedule 3, clause 39 (7) and
(8)
Insert after clause 39 (6):
(7)
An application may be made under this clause if
the contract held by the existing service provider is terminated or expires,
but may not be made later than 60 days after the termination or expiration of
the contract.
(8)
An application may be made under this clause even
if step-in arrangements are implemented under this Part in relation to the
regular bus services provided by the existing service
provider.
[16]Schedule 3, clauses
39A–39G
Insert after clause 39:
39AService
breaches
(1)
The Director-General may, by notice in writing
given to an existing service provider (in this Part called a service
breach notice), require the existing service provider to
take the action specified in the notice within the period specified in the
notice.
(2)
The Director-General may give a service breach
notice if:
(a)
the Director-General is of the opinion that a
regular bus service contract of the existing service provider is, or is likely
to be, for a period longer than 24 hours:
(i)
interrupted, disrupted or not delivered,
or
(ii)
not provided to a reasonable standard to meet
community needs, or
(b)
in such other circumstances as may be provided by
the regulations.
(3)
The notice may require the action to be taken
immediately if the Director-General is of the opinion that it is necessary to
do so having regard to the urgency of the circumstances.
(4)
If the existing service provider fails to comply
with a service breach notice within the period specified in the notice, the
Director-General may apply to the Minister for approval to take one or both of
the following actions:
(a)
terminate the existing bus service contract on
the ground of failure to comply with the notice,
(b)
implement step-in arrangements under clause 39B
(3).
(5)
The Minister may approve or refuse the
application.
(6)
If the Minister approves the application, the
Director-General may take the action approved by the Minister. Termination of
a contract is to be by notice in writing given to the existing service
provider.
(7)
The Director-General may give more than one
service breach notice under this clause in relation to the same
contract.
(8)
Nothing in this clause limits any other action
that may be taken by the Director-General or any other person in relation to
an existing bus service contract, including any other power to terminate the
contract concerned or to exercise any function under clause 39B (2) on the
expiry or termination of the contract.
39BStep-in arrangements for
existing bus service contracts
(1)
The Director-General may, by notice published in
the Gazette, implement the step-in arrangements specified in the notice if of
the opinion that it is necessary to do so to maintain regular bus services
provided under an existing bus service contract.
(2)
The Director-General may take action under
subclause (1):
(a)
on or before the expiry of an existing bus
service contract, or
(b)
on or before termination of an existing bus
service contract by the Director-General (other than under this Part),
or
(c)
not later than 60 days after notice of
termination, or termination without notice, of an existing bus service
contract by an existing service provider, or
(d)
in such other circumstances as may be prescribed
by the regulations.
(3)
The Director-General may, with the approval of
the Minister under clause 39A, also take action under subclause (1) if an
existing service provider fails to comply with a service breach notice,
whether or not the existing bus service contract concerned has been terminated
or has expired.
(4)
The step-in arrangements take effect on the day
the notice is published in the Gazette, or on such later day as may be
specified in the notice.
(5)
Step-in arrangements implemented under subclause
(2) may not take effect before the expiry or termination of the contract
concerned.
(6)
The step-in arrangements may do any one or more
of the following:
(a)
provide for the appointment of the
Director-General, or a person nominated by the Director-General, (the step-in
party) to exercise functions of the existing service
provider that are or were conferred under the existing bus service
contract,
(b)
authorise the step-in party to take possession
of, and use, buses or premises or other assets used or required by the
existing service provider to provide the regular bus services
concerned,
(c)
require the existing service provider or any
other person to take such steps as are necessary in the opinion of the
Director-General to make buses, premises or other assets referred to in
paragraph (b) available to the step-in party,
(d)
authorise or require the step-in party or any
other person to carry out functions under the contract as if the contract were
in force,
(e)
specify the terms and conditions on which the
step-in arrangements are to be implemented,
(f)
without limiting paragraph (e), specify terms and
conditions relating to the following matters:
(i)
payments to the existing service provider of a
kind payable under the contract after deduction of the costs of the step-in
party and other specified costs from amounts payable to the existing service
provider,
(ii)
the use of staff employed by the existing service
provider in connection with the provision of the regular bus services and
arrangements for payment for the use of services of those
staff,
(iii)
payments to third parties (such as suppliers,
lessors and providers of assets and services) in connection with the provision
of the regular bus services under the step-in
arrangements,
(g)
specify the period (being a period not exceeding
12 months) for which the step-in arrangements are in
force,
(h)
specify any other circumstances in which the
step-in arrangements cease to be in force,
(i)
contain any other necessary consequential or
ancillary provisions.
(7)
In determining the step-in arrangements, and any
terms and conditions on which they are to be implemented, the Director-General
is to consider the terms and conditions of the existing bus service contract
concerned and any relevant commercial arrangements or security transactions of
the existing service provider or other persons, being arrangements or
transactions entered into at arms-length, relating to assets affected by the
proposed step-in arrangements or the provision of the regular bus
services.
(8)
A step-in party may provide bus services in
accordance with step-in arrangements in force under this clause despite any
other provision of this Act or the regulations or any other
law.
(9)
A notice under this clause may be revoked or
varied by the Director-General by notice published in the
Gazette.
(10)
Nothing in this clause prevents the
Director-General from making arrangements of a kind referred to in clause 35
or taking action under any other law to maintain a regular bus service that
may be the subject of arrangements under this clause.
Note—
This clause is a transitional clause and does not
apply to contracts entered into under Division 3 of Part 3 (as substituted by
the Passenger Transport Amendment (Bus Reform) Act
2004) and so will only affect commercial bus service
contracts in force before that Division was inserted and certain interim
contracts entered into pending new contracts coming into force. When these
existing and interim contracts cease to be in force, this clause will cease to
have operation.
39BAAdditional provisions relating
to step-in arrangements after service breach notices
(1)
This clause applies to step-in arrangements
implemented under clause 39B (3) after a failure to comply with a service
breach notice, and so applies in addition to clause 39B.
(2)
The terms and conditions of the step-in
arrangement may, if the existing bus service contract is in force, make
provision for or with respect to the operation of the contract, including
obligations, rights and liabilities under the contract, and exclusion from
liability under the contract, during the period that the step-in arrangements
are in force.
(3)
A provision of a step-in arrangement of a kind
specified in subclause (2) has effect in relation to the bus service contract
during the period that the step-in arrangements are in force despite any
provision of the contract or any other law.
(4)
A step-in arrangement that affects an existing
bus service contract that is in force does not affect the term of the
contract.
(5)
A step-in arrangement that results from a failure
to comply with a service breach notice has effect for the period specified in
the notice under clause 39B or until the Director-General revokes the notice,
by notice published in the Gazette, on the ground that the service breach
notice has been complied with or on for any other reason, whichever occurs
first.
(6)
The Director-General may take action under this
clause to revoke a notice on the Director-General’s own initiative or on
the application of an existing service provider.
39COffence relating to step-in
arrangements
(1)
A person must not, without reasonable excuse,
fail to comply with a requirement imposed on the person under step-in
arrangements in force under clause 39B.
Maximum penalty: 100 penalty
units.
(2)
A person must not enter into an agreement,
arrangement or other transaction or take action with the intention of, or with
intentions that include, preventing the use of staff or a bus, premises or
other assets in accordance with step-in arrangements under clause
39B.
Maximum penalty: 100 penalty
units.
39DLiability of step-in parties,
existing service providers and other parties under step-in
arrangements
(1)
In determining step-in arrangements, the
Director-General must specify terms and conditions relating to the liability
or protection from liability (including indemnities or releases to be given)
of the existing service provider and the step-in party in connection with acts
or omissions done or omitted for the purposes of implementing step-in
arrangements.
(2)
Any such terms and conditions are to be
determined having regard to the following principles (subject to any necessary
exceptions determined in a particular case by the Minister):
(a)
the step-in party should be protected from
liability to the existing service provider or any other person for acts done
or omitted in good faith for the purposes of implementing step-in
arrangements,
(b)
the step-in party should be protected from
liability for acts or omissions of the existing service provider done or
omitted before the implementation of the step-in
arrangements,
(c)
the existing service provider should be protected
from liability for acts done or omitted by the step-in party or any other
person for the purposes of implementing step-in
arrangements,
(d)
a person dealing with the step-in party in the
course of implementing step-in arrangements should be protected from liability
for acts or omissions done in good faith at the lawful request or requirement
of the step-in party.
(3)
Without limiting subclause (1), the step-in
arrangements may, for the purposes of this clause, specify terms and
conditions containing one or more of the following requirements:
(a)
a requirement that indemnities or releases be
given to or by or on behalf of the step-in party or the existing service
provider in connection with the step-in arrangements,
(b)
a requirement that indemnities or releases be
given to or by or on behalf of the step-in party or the existing service
provider in connection with obligations, rights and liabilities under the
workers compensation Acts and other legislation or laws relating to employer
or occupier liability or liability in relation to environmental
obligations,
(c)
a requirement that warranties or agreements be
given or entered into by or on behalf of the step-in party or the existing
service provider in relation to specified obligations, rights and
liabilities.
(4)
A term or condition of a step-in arrangement of a
kind referred to in this clause, and any thing done in accordance with any
such term or condition, has effect despite any other provision of this Act or
the regulations or any other law.
(5)
Nothing in this clause permits a term or
condition of a step-in arrangement that has the effect of:
(a)
removing from an existing service provider the
obligation to have and maintain in force an insurance policy, or to be a
self-insurer, under the workers compensation Acts in respect of any of its
staff whose services are made use of under step-in arrangements,
or
(b)
removing any liability of an existing service
provider in respect of injury to any such staff under those Acts or that
exists independently of those Acts.
(6)
The Director-General may prepare model terms and
conditions for the purposes of this clause and is to consult with industry
representatives of bus service providers in relation to any such model terms
and conditions.
(7)
In this clause:
workers
compensation Acts means the Workers
Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act
1998 and any instruments made under those
Acts.
39ENew contractual arrangements
to end step-in arrangements
(1)
The Director-General must, after implementing
step-in arrangements on the expiry or termination of an existing bus service
contract, use his or her best endeavours to enter into a new service contract
with a person under the provisions of Division 3 of Part 3 to provide a
regular bus service for the region or route or operation (or part of the
region or route) for which the existing service provider was providing a
regular bus service under the existing bus service
contract.
(2)
The Director-General must revoke the notice under
clause 39B on or before the new service contract takes
effect.
39FOperation of step-in
arrangements
(1)
The operation of clause 39A or 39B or a service
breach notice or any step-in arrangements is not to be regarded:
(a)
as a breach of contract or confidence or
otherwise as a civil wrong, or
(b)
as a breach of any contractual provision
prohibiting, restricting or regulating the provision of bus services,
or
(c)
as giving rise to any remedy by a party to an
instrument, or as causing or permitting the termination of any instrument,
or
(d)
as an event of default under any contract or
other instrument.
(2)
The operation of clause 39A or 39B or a service
breach notice or any step-in arrangements do not adversely affect any
entitlements arising out of employment of any staff whose services are made
use of under step-in arrangements.
(3)
Subclause (1) and clauses 36 and 37 do not
prevent a step-in party from bringing proceedings in respect of a contract
between the Director-General and the step-in party for provision of services
for the purposes of step-in arrangements.
39GPublic consultation during
operation of step-in arrangements
(1)
As soon as reasonably practicable after
implementing step-in arrangements, the Director-General is to establish a
community reference group.
(2)
The community reference group is to comprise
persons nominated by the Director-General, being persons who the
Director-General considers:
(a)
have a knowledge of, or interest in, the bus
services to which the step-in arrangements relate, or
(b)
live in the area serviced by those bus services,
or
(c)
have some expertise in the provision of bus
services generally.
(3)
The community reference group is to conduct
public consultation and is to:
(a)
assess the frequency, reliability and relevance
of the bus services to which the step-in arrangements relate,
and
(b)
assess the long term viability of those bus
services, and
(c)
consider alternative bus service arrangements,
and
is to report to the Director-General on these
matters.
(4)
In determining the terms of a new bus service
contract that relates to a region or route (or part of a region or route) for
which bus services are being provided under step-in arrangements, the
Director-General is to take account of any relevant report provided under
subclause (3).
Historical
notes
Table of amending
instruments
Passenger
Transport Amendment (Maintenance of Bus Services) Act 2005 No
61. Second reading speech made: Legislative Assembly, 8.6.2005;
Legislative Council, 23.6.2005. Assented to 1.7.2005. Date of commencement,
assent, sec 2.