Part 5Regular passenger services

Part 5—Regular passenger services 39—Service contracts (1) The terms and conditions on which a regular passenger service is to be operated within, or partly within, the State are to be set out in a contract (a service contract) entered into between a person who holds an appropriate accreditation under this Act and the Minister (on behalf of the Crown). (2) The Minister may invite contracts by tender or in such other manner as the Minister thinks fit. (2a) If the Minister determines that a service contract should be awarded by tender— (a) the Minister must appoint a person or persons to conduct the process, including the assessment of any responses to the tender (although the Minister may respond to any issue referred to the Minister for his or her consideration or determination, and may select the successful tenderer (if any) at an appropriate time); and (b) the Minister must, within 14 days after the relevant invitation is published, forward to the Economic and Finance Committee of the Parliament a report which— (i) sets out the specifications and terms of the tender; and (ii) describes the processes that are to apply with respect to the assessment of any responses; and (iii) provides information on the person or persons appointed under paragraph (a); and (iv) contains such other information as the Minister thinks fit, (and the Economic and Finance Committee may then inquire into, and report on, the matter as the Committee thinks fit); and (c) if the Minister gives a direction to any person during the assessment or selection process, then the Minister must cause a statement of the fact of that direction— (i) to be forwarded to the Economic and Finance Committee within 14 days after the direction is given; and (ii) to be published in the annual report of the Minister's department for the relevant financial year. (3) The Minister, in awarding service contracts under this Part— (a) in any case involving a contract or contracts for the provision of regular passenger services as part of the operation of the public transport system within Metropolitan Adelaide—must take into account the following principles (and may take into account other principles): (i) service contracts should not be awarded so as to allow a single operator to obtain a monopoly, or a market share that is close to a monopoly, in the provision of regular passenger services within Metropolitan Adelaide; (ii) sustainable competition in the provision of regular passenger services should be developed and maintained; (iii) the integration of passenger transport services should be encouraged and enhanced; (iv) service contracts should support the efficient operation of passenger transport services and promote innovation in the provision of services to meet the needs of customers; (b) in any other case—may take into account principles determined by the Minister and made known to interested persons. (3a) Subsection (3) is an expression of policy and does not give rise to rights or liabilities (whether of a substantive, procedural or other nature). (3b) The Minister must, within 14 days after awarding a contract to which subsection (3)(a) applies, prepare a report which— (a) sets out the full name of the person to whom the contract has been awarded; and (b) provides information on the term of the contract; and (c) identifies the region or routes of operation under the contract; and (d) provides information on the amount or amounts that will be payable by the Minister under the contract; and (e) provides information on how the principles under subsection (3)(a) have been applied in the circumstances of the particular case; and (f) contains such other information as may be required by the regulations or as the Minister thinks fit. (3c) The Minister is not required to include in a report under subsection (3b)— (a) specific amounts payable under a contract; or (b) other information of a commercial value the disclosure of which would diminish its value or unfairly advantage a person or persons in future dealings with the Minister. (3d) The Minister must, within six sitting days after completing a report under subsection (3b), have copies of the report laid before both Houses of Parliament. (3e) If under a service contract awarded under this section the Minister is, or is reasonably expected to be, liable to make payments equal to or exceeding $4 000 000 (in total) over the term of the contract, the Minister must, within 28 days after awarding the contract, forward to the Auditor-General— (a) a copy of the contract; and (b) a report which describes the processes that applied with respect to the awarding of the contract. (3f) The Auditor-General must, within the period of 4 months after the receipt of a service contract and report under subsection (3e)— (a) examine the contract; and (b) prepare a report on the probity of the processes leading up to the awarding of the contract. (3g) Section 34 of the Public Finance and Audit Act 1987 applies with respect to the examination of a service contract, and the preparation of a report, under subsection (3f). (3h) The Auditor-General must deliver copies of a report prepared under subsection (3f) to the President of the Legislative Council and the Speaker of the House of Assembly. (3i) The President of the Legislative Council and the Speaker of the House of Assembly must, not later than the first sitting day after receiving a report under subsection (3h), lay copies of the report before their respective Houses of Parliament. (4) A person who operates a regular passenger service otherwise than under the authority of a service contract under this Act is guilty of an offence. 40—Nature of contracts (1) A service contract must make provision with respect to— (a) the period for which it operates; and (b) the manner in which it may be terminated; and (c) standards relating to the provision of services under the contract; and (d) a scale of service levels (determined according to such things as the periods of time during which services are to be operated, the extent of operation of services, and the frequency of operation of services during specified periods); and (e) the fares to be charged; and (f) the manner in which the holder of the service contract will be remunerated or gain revenue from the provision of services under the contract (including arrangements as to any subsidy); and (g) other matters required by this Act or the regulations to be specified in a service contract. (2) A service contract may make provision for or with respect to— (a) reviewing or altering the fares or fare system in circumstances specified in the contract; and (b) monetary or other penalties for breaches of the contract and the recovery of monetary penalties; and (c) bonds for the performance of the obligations, or specified obligations, under the contract; and (d) the variation of the contract; and (e) the renewal of the contract; and (f) such other matters as the parties think fit to include in the circumstances of the case. (3) The contract may provide for the periodic review, in a manner and at such periods as the contract may specify, of any matter for the time being determined by or under it. (4) The Minister must, for the purposes of subsection (1)(c), establish various standards that will apply to all service contracts of the same kind with a view to ensuring that standards relating to the provision of services are, so far as is reasonably practicable and appropriate, maintained at the highest possible levels. (5) The Minister must, in relation to the fares payable by passengers on regular passenger services within Metropolitan Adelaide, ensure— (a) that the standard adult fare allows for unlimited travel on regular passenger services provided within a specified zone or zones (subject to those services being available and stopping within that zone or those zones), for a specified period, or until the expiration of a specified period; and (b) that concession fares do not exceed 60 per cent of the standard adult fare for the same service (if provided at the same time), subject to the qualification that this paragraph does not apply to special fares that are payable during a particular part of the day, that are set for special events or purposes, or that are excluded from the ambit of this paragraph by the regulations. (6) An alteration to the fares or fare system under a service contract may only be undertaken as part of an across the board alteration of the fares or fare systems under all service contracts of the same kind that relate to Metropolitan Adelaide. 41—Regions or routes of operation (1) A service contract must specify a region or route of operation. (2) A service contract may— (a) confer on the holder of the contract an exclusive right to operate a regular passenger service of the relevant kind within the specified region, or on, or in proximity to, the specified route (or part of that region or route); and (b) provide for other matters relevant to the operation of passenger transport services (including new services) within the specified region, or on, or in proximity to, the specified route. (3) A right conferred on the holder of a contract— (a) cannot affect or limit the ability of another person to operate a service of a kind specified by the regulations (or specified in the contract itself) during the term of the contract; and (b) will be subject to such other qualifications as may be prescribed by the regulations (or specified in the contract itself) during the term of contract. 42—Assignment of rights under contract (1) The holder of a service contract must not transfer, assign, subcontract or otherwise deal with a right, power or duty under the contract except with the consent of the Minister. (2) The Minister must not consent to the transfer, assignment, subcontracting or other dealing unless it is satisfied— (a) that adequate provision will be made for the operation of the relevant service; and (b) as to any other matter the Minister considers relevant. (3) A person to whom a right, power or duty under a service contract is transferred, assigned or subcontracted must, according to the extent and nature of the particular dealing, perform the obligations of the contract holder under the contract (and, unless otherwise determined by the Minister, will be taken to be a party to the contract). (4) A purported dealing in contravention of subsection (1) is void. 43—Variation, suspension or cancellation of service contracts (1) A service contract may be varied, suspended or cancelled by the Minister if— (a) there has been a serious or frequent failure to observe the terms and conditions of the contract; or (b) the holder is convicted of an offence against this Act or the regulations. (2) A person who is the holder of a service contract and is aggrieved by a decision of the Minister under subsection (1) may appeal to the District Court. (3) Division 6 of Part 4 will apply with respect to the appeal with such modifications or variations as may be necessary or appropriate, or as may be prescribed. (4) A service contract is automatically cancelled if the holder of the contract ceases to be an accredited person or ceases to be an accredited person of an appropriate kind. (5) Nothing in this Act prevents the Minister from making such arrangements as the Minister thinks fit for the provision, by an accredited person, of temporary services (for a period not exceeding 12 months) in place of a regular passenger service for the time being discontinued by a variation, suspension or cancellation under this section. 44—Fees (1) In addition to any other fee payable under this Act (including any fee payable pursuant to a tender), the Minister may require the payment of— (a) a fee for lodging a tender under this Part; and (b) a fee for administering a service contract under this Part (which fee may vary from contract to contract, and may be payable from time to time during the term of the contract). (2) The Minister may determine the amount of such a fee, subject to any limits prescribed by the regulations.