Rail Management Act 1996

Subdivision 2—Notification 36

38ZB Notification of access regime dispute 36

Subdivision 3—Independent panel 37

38ZC Head, Transport for Victoria must constitute independent panel to hear and determine access regime dispute 37

38ZD Disclosure of interests of independent panel members 37

38ZE Member of independent panel ceases to be or becomes incapable of being a member 39

38ZF Function of independent panel 40

Subdivision 4—Hearing of access regime disputes 40

38ZG Hearings for the purposes of access regime disputes 40

38ZH Hearings to be in private 41

38ZI Right to representation 41

38ZJ Particular powers for the purposes of hearing and determining access regime disputes 42

38ZK Power to take evidence on oath or affirmation 42

38ZL Decisions of independent panel 43

38ZM Costs to be paid by parties to access regime dispute 43

38ZN Independent panel may award costs in certain cases 44

38ZO Determination of access regime dispute 45

38ZP Compliance with directions and determinations of independent panel 46

Division 8—Enforcement and other proceedings 46

38ZQ Proceedings for contraventions of penalty provisions 46

38ZR Pecuniary penalties to be paid into Consolidated Fund 48

38ZS Injunctions 48

38ZT Declaratory relief 49

38ZU Enforcement of determinations of access regime disputes 50

38ZV Appeal to Supreme Court on a question of law from a decision of an independent panel 51

Division 9—Reporting 51

38ZW Access providers to report on freight network activity and performance 51

Division 10—Collection and use of information 53

38ZX Definitions 53

38ZY Regulatory entity must have regard to certain matters 53

38ZZ General power to obtain information and documents 53

38ZZA Provision of information relating to declared rail transport services provided by access provider 54

38ZZB Compliance with requirement to provide information or document 55

38ZZC Offence to give false or misleading information 55

38ZZD Offence to threaten, intimidate or coerce person or take, threaten to take or incite 55

38ZZE No liability for giving information or document in compliance with requirement 56

38ZZF Restriction on disclosure of confidential information 56

38ZZG Regulatory entity must not disclose exempt freedom of information documents 59

Part 3—Transfer of property and staff 60

Division 1—Definitions 60

39 Definitions 60

Division 2—Property 64

40 Minister may direct transfer of PTC property to rail corporation or person 64

41 Minister may direct transfer of rail corporation property to other rail corporations or persons 66

42 Property transferred in accordance with direction 68

43 Allocation of property etc. subject to encumbrances 68

44 Payments in respect of financial obligations 69

45 Certificate of Administrator or CEO 70

46 Value of transferred property 71

47 Substitution of party to agreement 71

48 Former PTC and rail corporation instruments 71

49 Proceedings 72

50 Interests in land 72

51 Easements 73

52 Amendment of Register 74

53 Taxes 74

54 Evidence 75

55 Validity of things done under this Division 75

56 Minister may direct PTC or rail corporation to lease land to rail corporation or person 76

Division 3—Staff 76

57 List of PTC staff 76

58 Transfer of PTC staff 77

59 Future terms and conditions of transferred employees 78

59A List of RC staff 79

59B Transfer of RC staff 80

59C Future terms and conditions of transferred employees 81

Part 4—Rail and tram operators 83

Division 1—Certain powers 83

60 Person to whom this section applies may require clearance of trees 83

60A Relevant rail transport operator to whom this section applies may clear trees without obtaining permit 86

61 No obligation to fence 87

62 Power to break up roads, etc. 89

63 Power to install stopping places, etc. 92

64 Level crossings 95

65 Tram infrastructure 97

66 Overhead power supply 99

67 Power to stop traffic 101

Division 1A—Powers of the Secretary and the Head, Transport for Victoria 104

67A Clearance of trees or wood 105

67B No obligation to fence 106

67C Power to open and break up roads and divert traffic 107

67D Power to install stopping places and associated facilities 107

67E Level crossings 108

67F Tram infrastructure 108

67G Overhead power supply 109

67H Power to stop traffic 109

67I Exercise of powers 110

Division 1B—Private crossings 111

Subdivision 1—Preliminary 111

67J Definitions 111

67K Modification of Land Acquisition and Compensation Act 1986—general 112

Subdivision 2—Private crossing closures 112

67L Secretary may close private crossings 112

67M Notice of intention to close 113

67N Form of notice of intention 113

67O Restrictions on dealings with land 115

67P Lapse of notice 115

67Q Notice of closure 115

67R Time limits 115

67S Form of notice of closure 116

67T Service of copy of notice of closure 116

67U Effect of notice of closure 117

67V Right to compensation and assessment of compensation 117

67W Initial offer of compensation 118

67X Response to initial offer of compensation and determination of disputes 120

Subdivision 3—Acquisition of private crossing adjoining land 120

67Y Acquisition of private crossing adjoining land 120

67Z Application of Land Acquisition and Compensation Act 1986—private crossing adjoining land 121

Subdivision 4—General 121

67ZA Service 121

67ZB Minor misdescription not to invalidate documents 122

67ZC Extension or abridgement of time 122

Division 2—Provisions applying to certain agreements 123

68 Civil penalty provisions 123

69 Validity of certain provisions 126

Division 3—Certain operating assets 128

70 Assets of certain operators 128

71 Allocation statement 130

72 Assets transferred in accordance with statement 131

73 Allocation of assets subject to encumbrances 131

74 Certificate signed by the Head, Transport for Victoria 132

75 Consideration for transferred property 133

76 Former transferor instruments and agreements 133

77 Proceedings 133

78 Taxes 134

79 Evidence 134

80 Validity of things done under this Division 134

Part 6—General 136

103 Delegation 136

104 Freedom of Information Act 1982 136

105 Supreme Court—limitation of jurisdiction 137

106 Regulations 138

Part 7—Transitional 139

106A Privatisation of V/Line Freight 139

107 Orders under repealed sections 139

108 Repeals consequential on new Part 4 140

109 Abolition of Met Train 1 140

110 Abolition of Met Train 2 140

111 Abolition of Met Tram 1 141

112 Abolition of Met Tram 2 141

113 Abolition of V/Line Passenger Corporation 141

114 Order relating to no obligation to fence 142

115 Order relating to power to stop traffic 142

116 Meaning of relevant date in sections 117 and 118 142

117 Transitional provision concerning change of name of Station 142

118 Transitional and savings provisions concerning change of name of Authority 143

118A Allocation statement relating to PTC 143

118B Binding access arrangements continue in effect until rail access arrangements take effect 144

Part 8—Southern Cross Station Authority 145

119 Definitions 145

120 Southern Cross Station Authority abolished 145

121 List of staff to be transferred 147

122 Transferred employees 147

123 Interests in land 149

124 Taxes 150

Endnotes 152

1 General information 152

2 Table of Amendments 154

3 Explanatory details 160

Version No. 069

Rail Management Act 1996

No. 79 of 1996

Version incorporating amendments as at

The Parliament of Victoria enacts as follows:

Part 1—Preliminary

S. 1 amended by No. 104/1997 ss 4(2), 25, substituted by No. 6/2010 s. 200(3)
(Sch. 4 item 1) (as amended by No. 45/2010 s. 19).

1 Purpose

The main purpose of this Act is to establish a regime for the management of rail infrastructure in Victoria.

2 Commencement

(1) This Part comes into operation on the day on which this Act receives the Royal Assent.

(2) Subject to subsection (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

(3) If a provision referred to in subsection (2) does not come into operation before 1 January 1998, it comes into operation on that day.

3 Definitions

(1) In this Act—

S. 3(1) def. of associated rail infrastructure inserted by No. 25/2005 s. 3(d).

associated rail infrastructure means—

(a) an office, building or house used in the provision of rail transport services;

(b) a workshop;

(c) a terminal;

(d) rolling stock;

S. 3(1) def. of Commission inserted by No. 62/2001 s. 89(1)(a), repealed by No. 41/2020 s. 8.

S. 3(1) def. of declared rail transport service inserted by No. 47/1998 s. 4(1), repealed by No. 25/2005 s. 3(a).

S. 3(1) def. of declared railway service repealed by No. 104/1997 s. 24(1).

S. 3(1) def. of Department inserted by No. 68/2017 s. 87, substituted by No. 49/2019 s. 186(Sch. 4 item 35.1(a)), amended by No. 25/2025 s. 106(Sch. 1 item 35).

Department means the Department of Transport and Planning;

S. 3(1) def. of Director inserted by No. 98/1998 s. 4(1), substituted by No. 6/2010 s. 200(3)
(Sch. 4 item 2(a)) (as amended by No. 45/2010 s. 19), repealed by No. 61/2011 s. 25(Sch. 1 item 8.1(a)).

S. 3(1) def. of former relevant assets inserted by No. 98/1998 s. 4(1).

former relevant assets, in relation to a transferor, means assets of the transferor that, under Division 3 of Part 4, have vested in the State, another operator or another person;

S. 3(1) def. of freight service inserted by No. 25/2005 s. 3(b), repealed by No. 29/2006 s. 3(Sch. 1 item 34.1).

S. 3(1) def. of former transferor instrument inserted by No. 98/1998 s. 4(1).

former transferor instrument, in Division 3 of Part 4, means an instrument or an oral agreement subsisting immediately before the relevant date—

(a) to which the transferor was a party; or

(b) that was given to, or in favour of, the transferor; or

(c) that refers to the transferor; or

(i) money is, or may become, payable to or by the transferor; or

(ii) other property is to be, or may become liable to be, transferred to or by the transferor;

S. 3(1) def. of freight service inserted by No. 29/2006 s. 3(Sch. 1 item 34.2).

freight service means a service for the carrying of freight by railway;

S. 3(1) def. of Head, Transport for Victoria inserted by No. 3/2017 s. 50(Sch. 1 item 6.1).

Head, Transport for Victoria has the same meaning as it has in section 3 of the Transport Integration Act 2010;

liabilities means all liabilities, duties and obligations, whether actual, contingent or prospective;

S. 3(1) def. of metropolitan area
inserted by No. 98/1998 s. 4(1).

metropolitan area means the area within a radius of 30 kilometres of the post office at the corner of Bourke Street and Elizabeth Street, Melbourne;

S. 3(1) def. of metropolitan train operator inserted by No. 98/1998 s. 4(1), repealed by No. 49/2004 s. 20(a).

S. 3(1) def. of metropolitan tram operator inserted by No. 98/1998 s. 4(1), repealed by No. 49/2004 s. 20(a).

S. 3(1) def. of Office repealed by No. 104/1997 s. 24(1), new def. of Office inserted by No. 47/1998 s. 4(1), repealed by No. 62/2001 s. 89(1)(b).

S. 3(1) def. of operator inserted by No. 98/1998 s. 4(1).

operator, in Division 3 of Part 4, means a train operator or a tram operator or other person to which section 70 applies;

S. 3(1) def. of passenger service inserted by No. 98/1998 s. 4(1).

passenger service means a service for the carrying of passengers by railway or tramway;

S. 3(1) def. of precinct inserted by No. 45/1999 s. 4(2), amended by No. 95/2005 s. 9(2)(a), repealed by No. 26/2009 s. 7(1).

property means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description;

S. 3(1) def. of public statutory body inserted by No. 45/1999 s. 4(2), repealed by No. 26/2009 s. 7(1).

S. 3(1) def. of Public Transport Development Authority inserted by No. 61/2011 s. 25(Sch. 1 item 8.1(b)), repealed by No. 49/2019 s. 186(Sch. 4 item 35.1(b)).

S. 3(1) def. of public transport service inserted by No. 49/2004 s. 20(b).

public transport service means a service—

(a) for the manufacture, production, supply or issue of tickets, or the supply and maintenance of a ticketing system, for use by passengers on a railway or tramway;

(b) for the distribution of tickets amongst train operators and tram operators;

(c) for the collection of revenue from ticket sales and the distribution of that revenue amongst train operators and tram operators;

(d) for the provision of information to passengers or members of the public relating to the operation of a passenger service;

(e) for the marketing of passenger services or other transport services;

(f) for the construction and supply of rail infrastructure, train infrastructure or rolling stock;

(g) for the maintenance of rail infrastructure, tram infrastructure or rolling stock;

(h) that is ancillary or incidental to the provision of a passenger service or other transport service including, but not limited to, the provision of financial accommodation in connection with the acquisition of rolling stock;

S. 3(1) def. of railway substituted as railway track by No. 104/1997 s. 19(1)(a), repealed by No. 29/2011 s. 3(Sch. 1 item 79(a)).

S. 3(1) def. of rail corporation amended by Nos 104/1997 ss 7, 9, 11, 13, 47/1998 s. 4(2), 104/1997 s. 4(3), 45/1999 s. 4(1)(a), 63/1999 ss 3(2), 4(2), 5(2), 6(2), 63/1999 s. 7(2), 34/2003 s. 15(a), 95/2005 s. 9(2)(a), 26/2009 s. 7(2) 6/2010 s. 200(3)
(Sch. 4 item 2(b)) (as amended by No. 45/2010 s. 19).

rail corporation means Rail Track or V/Line Corporation;

S. 3(1) def. of rail infrastructure substituted by No. 25/2005 s. 3(c), amended by No. 30/2021 s. 90.

rail infrastructure means a facility that is used to operate a railway and includes—

(a) railway track, railway track sidings, associated track structures and works (such as cuttings, tunnels, bridges, stations, platforms, excavations, land fill, track support earthworks and drainage works), over-track structures, under-track structures, service roads, signalling systems, rolling stock control systems, communications systems, notices and signs, overhead electrical power supply systems and associated buildings, depots, yards, plant, machinery and equipment; and

(b) a facility or infrastructure not referred to in paragraph (a) that is used to operate a railway that is prescribed to be rail infrastructure—

but does not include associated rail infrastructure;

S. 3(1) def. of Rail Track substituted by No. 6/2010 s. 200(3)
(Sch. 4 item 2(c)) (as amended by No. 45/2010 s. 19).

Rail Track means Victorian Rail Track within the meaning of section 3 of the Transport Integration Act 2010;

S. 3(1) def. of rail transport service inserted by No. 47/1998 s. 4(1), amended by Nos 98/1998 s. 4(2), 30/2000 s. 39(1), 65/2000 s. 8(1), repealed by No. 25/2005 s. 3(a).

S. 3(1) def. of railway track inserted by No. 29/2011 s. 3(Sch. 1 item 79(b)).

railway track includes heavy railway track and light railway track;

S. 3(1) def. of related body corporate inserted by No. 20/2002 s. 3.

related body corporate has the same meaning as in section 9 of the Corporations Act;

S. 3(1) def. of relevant assets inserted by No. 98/1998 s. 4(1).

relevant assets, in Division 3 of Part 4, means assets of an operator which, under an agreement referred to in section 70, the parties agree are relevant assets for the purposes of that Division;

S. 3(1) def. of relevant date inserted by No. 98/1998 s. 4(1), amended by No. 45/1999 s. 4(1)(b).

relevant date, in Division 3 of Part 4, in relation to an allocation statement under section 71 or relevant assets allocated under such a statement, means the date, or the date and time, fixed by the Minister under section 71(5) for the purposes of that statement;

rights means all rights, powers, privileges and immunities, whether actual, contingent or prospective;

S. 3(1) def. of road inserted by No. 104/1997 s. 5.

road includes street, lane, bridge, thoroughfare and any other place open to or used by the public for passage with vehicles and includes every carriageway, footpath, traffic island, nature strip and any area provided to separate vehicular traffic on any such street, lane, bridge, thoroughfare or other place;

S. 3(1) def. of rolling stock amended by No. 104/1997 s. 19(1)(b)
(i)–(iii).

rolling stock means a vehicle that operates on or uses a railway track or tramway track, and includes a locomotive, carriage, rail car, rail motor, light rail vehicle, train, tram, light inspection vehicle, road/rail vehicle, trolley, wagon or monorail vehicle;

S. 3(1) def. of Safety Director inserted by No. 9/2006 s. 150, substituted by No. 6/2010 s. 200(3)
(Sch. 4 item 2(d)) (as amended by No. 45/2010 s. 19), repealed by No. 34/2023 s. 127(Sch. 1 item 11).

S. 3(1) def. of Secretary inserted by No. 98/1998 s. 4(1), substituted by No. 6/2010 s. 200(3)
(Sch. 4 item 2(e)) (as amended by No. 45/2010 s. 19).

Secretary has the same meaning as it has in section 3 of the Transport Integration Act 2010;

S. 3(1) def. of terminal inserted by No. 25/2005 s. 3(d).

terminal means a facility at which freight is loaded or unloaded from rolling stock, or stored, and includes hard stands, equipment and other infrastructure used for the loading or unloading of freight from rolling stock at the facility;

S. 3(1) def. of train operator inserted by No. 98/1998 s. 4(1), amended by No. 49/2004 s. 20(c)(i)(ii).

train operator, in relation to a provision of this Act, means a body corporate specified in an Order under subsection (2) to be a train operator for the purposes of that provision;

S. 3(1) def. of tram infrastructure inserted by No. 104/1997 s. 19(1)(c).

tram infrastructure means the facilities that are used to operate a tramway and includes, but is not limited to, tramway track, associated track structures and works (such as cuttings, tunnels, bridges, stopping places, excavations, land fill, track support earthworks and drainage works), over-track structures, under-track structures, service roads, signalling systems, rolling stock control systems, communications systems, notices and signs, overhead electrical power supply systems and associated buildings, workshops, depots, yards, plant, machinery and equipment, but does not include rolling stock;

S. 3(1) def. of tram operator inserted by No. 98/1998 s. 4(1), amended by No. 49/2004 s. 20(d)(i)(ii).

tram operator, in relation to a provision of this Act, means a body corporate specified in an Order under subsection (3) to be a tram operator for the purposes of that provision;

S. 3(1) def. of transferee inserted by No. 98/1998 s. 4(1).

transferee, in Division 3 of Part 4, means a person to whom relevant assets are allocated under an allocation statement under section 71;

S. 3(1) def. of transferor inserted by No. 98/1998 s. 4(1).

transferor, in Division 3 of Part 4, means the operator from which relevant assets are transferred under an allocation statement under section 71;

S. 3(1) def. of V/Line Corporation inserted by No. 6/2010 s. 200(3)
(Sch. 4 item 2(f)) (as amended by No. 45/2010 s. 19).

V/Line Corporation has the same meaning as it has in section 3 of the Transport Integration Act 2010.

S. 3(2) repealed by No. 104/1997 s. 19(2), new s. 3(2) inserted by No. 98/1998 s. 4(3), substituted by No. 45/1999 s. 5.

(2) The Governor in Council, by Order published in the Government Gazette, may declare that a specified body corporate, being a body corporate that—

S. 3(2)(a) amended by Nos 30/2000 s. 39(2), 95/2005 s. 9(2)(b), 26/2009 s. 7(3), 61/2011 s. 25(Sch. 1 item 8.2), 3/2017 s. 50(Sch. 1 item 6.2), 49/2019 s. 186(Sch. 4 item 35.2(a)).

(a) is a party to a lease of rail infrastructure by the Head, Transport for Victoria or Rail Track; or

S. 3(2)(b) amended by Nos 61/2011 s. 25(Sch. 1 item 8.2), 3/2017 s. 50(Sch. 1 item 6.3), 49/2019 s. 186(Sch. 4 item 35.2(b)).

(b) is a party to a contract with the Secretary or the Head, Transport for Victoria for the provision by that body corporate of a passenger service—

is, on and from a specified date, a train operator for the purposes of a specified provision of this Act.

S. 3(3) inserted by No. 98/1998 s. 4(3), substituted by No. 45/1999 s. 5.

(3) The Governor in Council, by Order published in the Government Gazette, may declare that a specified body corporate, being a body corporate that—

S. 3(3)(a) amended by Nos 54/2001 s. 28, 95/2005 s. 9(2)(b), 26/2009 s. 7(3), 61/2011 s. 25(Sch. 1 item 8.2), 3/2017 s. 50(Sch. 1 item 6.2), 49/2019 s. 186(Sch. 4 item 35.3(a)).

(a) is a party to a lease of tram infrastructure by the Head, Transport for Victoria or Rail Track; or

S. 3(3)(b) amended by Nos 61/2011 s. 25(Sch. 1 item 8.2), 3/2017 s. 50(Sch. 1 item 6.3), 49/2019 s. 186(Sch. 4 item 35.3(b)).

(b) is a party to a contract with the Secretary or the Head, Transport for Victoria for the provision by that body corporate of a passenger service—

is, on and from a specified date, a tram operator for the purposes of a specified provision of this Act.

S. 3A
inserted by No. 45/1999 s. 6, amended by No. 95/2005 s. 9(2)(b)(c), repealed by No. 26/2009 s. 7(4), new s. 3A inserted by No. 6/2010 s. 24(5)
(Sch. 1 item 12) (as amended by No. 45/2010 s. 5).

3A Transport Integration Act 2010

This Act is transport legislation within the meaning of the Transport Integration Act 2010.

Pt 2 (Heading and ss 4–38) amended by Nos 79/1996 s. 108 (as amended by No. 98/1998 s. 15), 104/1997
ss 3, 4(1), 6, 8, 10, 12, 19(3), 20–23, 24(2), 47/1998
ss 5–9, 85/1998 s. 24(Sch. item 49.1), 98/1998
ss 5–12, 45/1999 s. 7, 63/1999 ss 3(1), 4(1), 5(1), 6(1), 7(1), 44/2001 s. 3(Sch. item 97.1), 34/2003 ss 14, 17, 18, 95/2005 s. 9(1), 9/2006 ss 151–153, 47/2006
ss 32, 37, 26/2009 s. 6, repealed by No. 6/2010 s. 200(3)
(Sch. 4 item 3) (as amended by
No. 45/2010 s. 19).

Pt 2A (Heading and ss 38A–38P, 38R) inserted by No. 47/1998 s. 10 (as amended by No. 98/1998 ss 41(a), 42, 43)), amended[1], substituted as Part 2A (Headings and ss 38A-38ZZG) by No. 68/2017 s. 88.

Part 2A—Rail access

Division 1—Preliminary

S. 38A substituted by No. 68/2017 s. 88.

38A Definitions

In this Part—

S. 38A def. of access provider amended by No. 41/2019 s. 117(Sch. 1 item 10.1(a)).

access provider means any of the following persons if they provide, or are capable of providing, a declared rail transport service—

(b) an accredited person within the meaning of the Rail Safety National Law (Victoria);

(d) a rail infrastructure manager within the meaning of the Rail Safety National Law (Victoria) who is registered under Division 5 of Part 3 of that Law;

(e) the Southern Cross Station Authority;

(f) the Crown;

(g) a related body corporate of a person referred to in paragraphs (a) to (e);

(h) any other person declared by Order in Council under section 38D to be an access provider;

access regime dispute has the meaning given by section 38ZA;

S. 38A def. of access seeker substituted by No. 41/2019 s. 117(Sch. 1 item 10.1(b)).

access seeker means an accredited person within the meaning of the Rail Safety National Law (Victoria) who wants to be provided a declared rail transport service by an access provider;

capacity, in relation to a declared rail network, means the capability of the declared rail network, when used, to provide declared rail transport services;

declared rail network means the rail infrastructure used to provide declared rail transport services;

declared rail transport service means a rail transport service declared by an Order under section 38E;

independent panel means an independent panel constituted under section 38ZC;

operate has the meaning given by section 38B;

penalty provision means any of the following sections—

(a) section 38ZJ(2);

(b) section 38ZP(1);

(c) section 38ZP(2);

principle of passenger priority means the principle set out in section 38G;

rail access agreement content order means an Order under section 38O;

rail access guidelines means guidelines prepared under section 38H and includes any amendment to guidelines prepared under that section;

S. 38A def. of rail transport operator substituted by No. 41/2019 s. 117(Sch. 1 item 10.1(c)).

rail transport operator has the same meaning as in section 4(1) of the Rail Safety National Law (Victoria);

rail transport service has the meaning given by section 38C;

specified maximum prices means prices specified under section 38J, 38K or 38M;

Statement of Freight Network Capability means a statement prepared under section 38P and includes any amendment to a statement prepared under that section;

S. 38A def. of user substituted by No. 41/2019 s. 117(Sch. 1 item 10.1(d)).

user means an accredited person within the meaning of the Rail Safety National Law (Victoria) who is provided a declared rail transport service by an access provider.

S. 38B substituted by No. 68/2017 s. 88.

38B Meaning of *operate*

A person operates rail infrastructure or tram infrastructure, or a rail network, for the purposes of this Part if the person—

(a) owns or leases rail infrastructure or tram infrastructure, or a rail network, or has a right conferred by an Act or a contract to manage rail infrastructure or tram infrastructure, or a rail network; and

(b) either—

(i) operates, or appoints an agent or contractor to operate, the signalling, rolling stock control and communications facilities of the railway or tramway, as the case requires; or

(ii) carries out, or appoints an agent or contractor to carry out, on or around the railway or tramway (as the case requires), the construction, maintenance, repair or alteration of any of the rail infrastructure or tram infrastructure, or rail network.

S. 38C substituted by No. 68/2017 s. 88.

38C Meaning of *rail transport service*

(1) A rail transport service is a service provided, or that may be provided, by an access provider to any of the following entities by means of rail infrastructure or tram infrastructure owned or operated by that provider that enables the entity to provide freight services, passenger services or other transport services—

(a) a user;

(b) an access seeker;

(c) a related body corporate of the access provider.

(2) A rail transport service is also a service provided, or that may be provided, by an access provider to itself by means of rail infrastructure or tram infrastructure owned or operated by that provider that enables the provider to provide freight services, passenger services or other transport services.

(3) Without limiting subsection (1) or (2), a rail transport service includes any of the following services—

(a) the service of allowing a user to use rail infrastructure or tram infrastructure (as the case requires);

(b) the service of assessing the capacity of a rail network owned or operated by the access provider;

(c) the service of allocating the capacity of a rail network owned or operated by the access provider;

(d) the service of allocating train paths;

(e) the service of planning train services;

(f) the service of scheduling train services;

(g) the service of managing and controlling train services, including train traffic management;

(h) the service of managing and controlling a rail network owned or operated by the access provider;

(i) the service of maintaining a rail network owned or operated by the access provider;

(j) the service of extending, enhancing or expanding a rail network owned or operated by the access provider;

(k) any service that is ancillary to a service referred to in subsection (1) or (2), or this subsection.

S. 38D substituted by No. 68/2017 s. 88, amended by No. 30/2021 s. 91.

38D Declaration of persons to be access providers

The Governor in Council on the recommendation of the Minister, by Order published in the Government Gazette, may declare a person who provides, or is capable of providing, a rail transport service (other than a person referred to in paragraphs (b) to (f) of the definition of access provider) to be an access provider.

S. 38E substituted by No. 68/2017 s. 88.

38E Declaration of rail transport services

(1) The Governor in Council on the recommendation of the Minister, by Order published in the Government Gazette, may declare a rail transport service to be a declared rail transport service for the purposes of this Part until the date (if any) for the expiry of the declaration specified in the Order.

(2) An Order under subsection (1) must specify whether a rail transport service is a declared rail transport service in respect of passenger services, freight services or other transport services.

(3) An Order under subsection (1) may—

(a) specify that a rail transport service is a declared rail transport service in respect of a person named in the Order;

(b) declare a rail transport service as a declared rail transport service by reference to—

(i) the person who owns or operates the rail infrastructure used to provide the rail transport service; or

(ii) the location of the rail infrastructure used to provide the rail transport service; or

(iii) the type of rail infrastructure used to provide the rail transport service.

(4) The Minister may only make a recommendation under subsection (1) if the Minister is satisfied that it is necessary to do so in the interests of competition or economic efficiency.

S. 38F substituted by No. 68/2017 s. 88.

38F Object of Part

The object of this Part is to regulate rail access in Victoria in the interests of competition and economic efficiency.

S. 38G substituted by No. 68/2017 s. 88.

38G Principle of passenger priority

(1) The principle of passenger priority is the giving of priority to the provision of rail transport services to passenger service users over the provision of rail transport services to other users.

Note

Rail access guidelines may include guidelines about how the principle of passenger priority may be implemented.

other users means users of rail transport services who use those services to provide freight services and other transport services (other than passenger services);

passenger service users means users of rail transport services who use those services to provide passenger services.

Division 2—Ministerial instruments for the purposes of this Part

Subdivision 1—Rail access guidelines

S. 38H substituted by No. 68/2017 s. 88.

38H Preparation of rail access guidelines

(1) The Minister may prepare guidelines about the terms and conditions of rail access arrangements.

(2) Without limiting subsection (1), rail access guidelines may contain guidance material on any one or more of the following—

(a) the implementation by an access provider of the principle of passenger priority;

(b) the management and notification arrangements for temporary railway track or tramway track closures;

(c) the management and communication of freight train path availability;

(d) arrangements governing—

(i) how long rail access arrangements must be in effect; and

(ii) extensions to the time rail access arrangements are in effect;

(e) processes for amending rail access arrangements;

(f) arrangements and processes for resolving disputes between access providers and access seekers about access to the provision of declared rail transport services.

(3) The Minister may amend rail access guidelines.

S. 38I substituted by No. 68/2017 s. 88.

38I Public availability of rail access guidelines

(1) The Minister must—

(a) publish rail access guidelines in the Government Gazette within 30 days after the end of the period of time specified in a notice under section 38N(3)(a) for the draft of the guidelines; and

(b) make rail access guidelines available for inspection free of charge at the Department's offices.

(2) In addition, the Minister must cause rail access guidelines to be published on the Department's Internet site.

Subdivision 2—Rail access maximum pricing

S. 38J substituted by No. 68/2017 s. 88.

38J Initial specification of rail access maximum prices

S. 38J(1) amended by No. 19/2022 s. 77(a).

(1) The Minister, by notice published in the Government Gazette, may specify maximum prices for declared rail transport services provided by an access provider by means of a declared rail network for a financial year.

(2) For the purpose of specifying maximum prices under subsection (1), the Minister must have regard to—

(a) the costs of maintaining the declared rail network; and

(b) the opportunity for an access provider to recover any capital investment in the declared rail network; and

(c) the costs incurred by an access provider in providing the declared rail transport services; and

(d) the railway track standards specified in the applicable Statement of Freight Network Capability; and

(e) the Government's rail freight policies and programs.

(3) A notice under subsection (1) must—

(a) specify—

(i) the declared rail transport services to which the specified maximum prices will apply; and

S. 38J(3)(a)(ii) amended by No. 19/2022 s. 77(b).

(ii) the financial year during which the specified maximum prices will apply to the provision of declared rail transport services; and

S. 38J(3)(b) amended by No. 19/2022 s. 77(b).

(b) be published in accordance with that subsection before 1 June preceding the financial year.

S. 38K substituted by No. 68/2017 s. 88.

38K Annual changes in rail access maximum prices

S. 38K(1) amended by No. 19/2022 s. 78.

(1) The Minister, by notice published in the Government Gazette, may specify new maximum prices that will apply to the provision of declared rail transport services provided by an access provider by means of a declared rail network for a financial year after the financial year in respect of which the Minister specified maximum prices under section 38J.

(2) In specifying new maximum prices under subsection (1), the Minister must have regard to published industry price indices that the Minister considers suitable.

(3) A notice under subsection (1) must—

(a) specify—

(i) the declared rail transport services to which the new specified maximum prices will apply; and

(ii) the financial year during which the new specified maximum prices will apply to the provision of declared rail transport services; and

(b) specify the industry price indices that the Minister had regard to for the purpose of specifying the new maximum prices; and

(c) be published in accordance with that subsection before 1 June in the year preceding the financial year in which the declared rail transport services will be provided by the access provider (and in respect of which the new maximum prices have been specified).

S. 38L substituted by No. 68/2017 s. 88.

38L Review of specified maximum prices following change in railway track standards

S. 38L(1) amended by No. 49/2019 s. 186(Sch. 4 item 35.4).

(1) This section applies if the Head, Transport for Victoria notifies the Minister under section 38R of an amendment to a Statement of Freight Network Capability that includes an amendment to railway track standards specified in the Statement.

(2) The Minister must review any specified maximum prices for the provision of declared services that will be affected by the amendment of railway track standards. The review must be completed within 30 days after that amendment takes effect.

(3) The Minister must act under section 38K if following the review the Minister is of the opinion that new maximum prices should be specified for the provision of declared rail transport services affected by the amendment of railway track standards.

S. 38M substituted by No. 68/2017 s. 88.

38M Increase in maximum prices at request of access provider

(1) This section applies if an access provider—

(a) reopens or proposes to reopen a part of rail infrastructure owned or operated by the provider in order to provide declared rail transport services by means of that infrastructure; or

(b) makes or proposes to make improvements to rail infrastructure by means of which the provider provides declared rail transport services.

(2) The access provider may apply to the Minister for the specification of new maximum prices to apply to the provision of those declared rail transport services.

(3) An application must—

(a) describe the rail infrastructure by means of which the access provider will provide the declared rail transport services, and the declared rail transport services; and

(b) include the access provider's reasons for the specification of new maximum prices for the provision of the declared rail transport services.

(4) On receiving an application, the Minister, by notice published in the Government Gazette, may specify new maximum prices that will apply to the provision of the declared rail transport services set out in the application.

(5) For the purpose of specifying new maximum prices under subsection (4), the Minister must have regard to—

(a) the costs of maintaining the relevant rail infrastructure; and

(b) the opportunity for an access provider to recover any capital investment in the relevant rail infrastructure; and

(c) the costs incurred by an access provider in providing the declared rail transport services; and

(d) the railway track standards specified in the applicable Statement of Freight Network Capability; and

(e) the Government's rail freight policies and programs.

(6) Maximum prices specified under subsection (4)—

(a) supersede any maximum prices specified under section 38J or 38K; and

S. 38M(6)(b) amended by No. 19/2022 s. 79.

(b) may be superseded by maximum prices specified under section 38K or under subsection (4).

Subdivision 3—Public consultation requirements

S. 38N substituted by No. 68/2017 s. 88.

38N Public consultation for draft rail access guidelines and proposed rail access maximum prices

(1) This section applies if the Minister proposes to—

(a) prepare rail access guidelines; or

(b) specify maximum prices under section 38J or new maximum prices under section 38K.

(2) Before preparing rail access guidelines, specifying maximum prices under section 38J or new maximum prices under section 38K, the Minister must—

(a) prepare a draft of the guidelines or a draft of a notice under section 38J or 38K (a consultation draft); and

(b) invite submissions and comments from the public in accordance with this section on the consultation draft.

(3) The Minister must—

(a) cause notice of a consultation draft to be published—

(i) in a newspaper circulating generally throughout the State; and

(ii) on the Department's Internet site; and

(b) cause copies of a consultation draft to be made available to the public on the Department's Internet site; and

(c) make copies of a consultation draft available for inspection free of charge at the Department's offices.

(4) A notice under subsection (3)(a) must—

(a) include a summary of the content of the consultation draft; and

(b) specify the date by which a submission or comment must be made to the Minister; and

(c) specify how a submission or comment must be made; and

(d) specify that copies of the consultation draft are available—

(i) on the Department's Internet site; and

(ii) at the Department's offices during business hours free of charge.

(5) The period of time between publication of the notice and the date specified in the notice must not be less than 30 days.

Division 3—Rail access agreement content order

S. 38O substituted by No. 68/2017 s. 88.

38O Rail access agreement content order

(1) The Governor in Council on the recommendation of the Minister, by Order published in the Government Gazette, may specify terms and conditions for the provision of a declared rail transport service that must be included in a rail access agreement.

(2) A rail access agreement content order cannot specify a term or condition that sets the maximum price for the provision of a declared rail transport service.

Note to s. 38O(2) amended by No. 19/2022 s. 80.

Note

The Minister specifies maximum prices for the provision of declared rail transport services under a notice under section 38J, 38K or 38M(4).

(3) A rail access agreement content order is a legislative instrument within the meaning of the Subordinate Legislation Act 1994.

Division 4—Statement of Freight Network Capability

S. 38P substituted by No. 68/2017 s. 88.

38P Statement of Freight Network Capability

S. 38P(1) amended by No. 49/2019 s. 186(Sch. 4 item 35.5).

(1) The Head, Transport for Victoria must prepare a statement for every declared rail network that—

(a) describes the proposed level of access that may be provided by the access provider to access seekers; and

(b) provides information on the number of train paths for the provision of freight services; and

(c) specifies railway track standards for the network.

S. 38P(2) amended by No. 49/2019 s. 186(Sch. 4 item 35.5).

(2) In preparing a Statement of Freight Network Capability, the Head, Transport for Victoria must—

(a) have regard to the Government's rail freight policies and programs; and

(b) consult with the Minister.

S. 38P(3) substituted by No. 49/2019 s. 186(Sch. 4 item 35.6).

(3) The Head, Transport for Victoria must give a copy of a Statement of Freight Network Capability to—

(a) the Minister; and

(b) the Secretary.

S. 38P(4) substituted by No. 49/2019 s. 186(Sch. 4 item 35.6).

(4) After the Secretary receives a copy of a Statement of Freight Network Capability under subsection (3)(b), the Secretary must—

(a) make a copy of the Statement of Freight Network Capability available for inspection free of charge at the principal office of the Department; and

(b) publish the Statement of Freight Network Capability on the Department's Internet site.

S. 38Q substituted by No. 68/2017 s. 88, amended by No. 49/2019 s. 186(Sch. 4 item 35.7).

38Q Preparation of new Statement of Freight Network Capability if there is a material change

The Head, Transport for Victoria must prepare a new Statement of Freight Network Capability that supersedes the previous Statement of Freight Network Capability if there is a material change to—

(a) the declared rail network to which it relates; or

(b) the use of that network.

S. 38R (Heading) amended by No. 49/2019 s. 186(Sch. 4 item 35.8).

S. 38R substituted by No. 68/2017 s. 88, amended by No. 49/2019 s. 186(Sch. 4 item 35.9).

38R Minister to be notified of amendment to railway track standards

The Head, Transport for Victoria must notify, in writing, the Minister and the Secretary of any proposed amendment to a Statement of Freight Network Capability that will include an amendment to railway track standards specified in the Statement.

Division 5—Rail access arrangements

S. 38S substituted by No. 68/2017 s. 88.

38S Preparation and publication of rail access arrangement that accords with this Division

An access provider must prepare and publish in accordance with this Division a rail access arrangement that meets the requirements of this Division.

S. 38T substituted by No. 68/2017 s. 88.

38T Scope of rail access arrangement

A rail access arrangement meets the requirements of this Division if it covers every declared rail transport service that the access provider provides by means of a declared rail network.

S. 38U substituted by No. 68/2017 s. 88.

38U Content of rail access arrangements

A rail access arrangement meets the requirements of this Division if it—

(a) includes the following in relation to every declared rail transport service to which the arrangement relates—

(i) a description of the service;

(ii) the terms and conditions for the provision of the service in compliance with an applicable rail access agreement content order;

(iii) the price for the service (which must not exceed the maximum price specified for the service by the Minister under Subdivision 2 of Division 2); and

(b) describes available capacity on the declared rail network; and

(c) describes how the arrangement has regard to the rail access guidelines and, if relevant, the Statement of Freight Network Capability; and

(d) includes a description of the information that the access provider will make available to an access seeker; and

(e) sets out the procedure for the making of an application by an access seeker for the provision to them of a declared rail transport service; and

(f) describes the procedure and method as to how the access provider will assess and determine an application for the provision by them of a declared rail transport service to an access seeker.

S. 38V substituted by No. 68/2017 s. 88.

38V Amendment of rail access arrangements

(1) An access provider must amend a rail access arrangement as soon as practicable after there is—

(a) a change in any regulatory requirements that necessitates an amendment to the arrangement in order for the arrangement to comply with the requirements of this Division; or

(b) a significant change in a matter referred to in the arrangement in order for the arrangement to reflect that change.

(2) For the purposes of subsection (1)(b), a matter includes the declared rail network or the declared transport services the provider provides.

(3) In this section—

regulatory requirements means—

(a) section 38U; or

(b) rail access guidelines; or

(c) a rail access agreement content order.

S. 38W substituted by No. 68/2017 s. 88.

38W Publication of rail access arrangements

An access provider must publish the first rail access arrangement it is required to prepare under this Division and every amended rail access arrangement that meets the requirements of this Division on the provider's Internet site.

S. 38X substituted by No. 68/2017 s. 88.

38X When rail access arrangements take effect

S. 38X(1) amended by No. 19/2022 s. 81.

(1) The first rail access arrangement that meets the requirements of this Division takes effect 60 days after the day on which the maximum prices specified by the Minister under section 38J that apply to the declared rail transport services to which the arrangement relates take effect.

(2) An amended rail access arrangement takes effect on the day on which it is published on the provider's Internet site.

Division 6—Requests for access

S. 38Y substituted by No. 68/2017 s. 88.

38Y Requests for access

S. 38Y(1) amended by No. 30/2021 s. 92(1).

(1) An access seeker who wants to be provided with declared rail transport services must request access to those services in accordance with this section.

(2) The access seeker must submit a request for access to the access provider who provides the declared rail transport services.

(3) A request must be in writing and contain the following—

S. 38Y(3)(a) amended by No. 30/2021 s. 92(2).

(a) a description of the declared rail transport services that the access seeker wants to be provided with;

(b) a description of the services that the access seeker will provide through the use of the declared rail transport services;

(c) details of the access seeker's—

(i) management competency; and

(ii) financial viability; and

(iii) relevant policies of insurance.

S. 38Z substituted by No. 68/2017 s. 88.

38Z Assessment of requests for access

(1) An access provider who receives a request for access under section 38Y must assess the request within 30 days after receiving it and inform the access seeker of whether the provider accepts or rejects the request.

(2) In assessing a request for access, an access provider must have regard to the rail access guidelines.

(3) An access provider may reject a request for access if the provider is of the opinion that the request does not meet the requirements set out in section 38Y(3).

(4) An access provider who rejects a request for access must give the access seeker written reasons for that rejection at the same time the provider informs the access seeker of the provider's decision.

Division 7—Disputes about rail access

Subdivision 1—Preliminary

S. 38ZA substituted by No. 68/2017 s. 88.

38ZA Meaning of *access regime dispute*

(1) An access regime dispute is a dispute between an access provider and an access seeker where the access provider and access seeker are unable to agree as to the terms and conditions for the provision of a declared rail transport service to the access seeker.

(2) In addition, an access regime dispute is taken to arise between an access provider and an access seeker if—

(a) an access seeker is of the opinion that—

(i) an access provider has not complied with section 38W; or

(ii) an access provider's rail access arrangement does not meet the requirements of Division 5; or

(b) an access provider rejects a request for access under section 38Z; or

(c) the access provider's rail access arrangement does not comply with an applicable rail access agreement content order.

Subdivision 2—Notification

S. 38ZB substituted by No. 68/2017 s. 88.

38ZB Notification of access regime dispute

(1) An access seeker or an access provider may notify the Head, Transport for Victoria of an access regime dispute. A notification must be in writing.

(2) On receiving a notification under subsection (1), the Head, Transport for Victoria must notify, in writing, of the access regime dispute—

(a) the access provider, if an access seeker notified the Head, Transport for Victoria of the access regime dispute under subsection (1); and

(b) the access seeker if the access provider notified the Head, Transport for Victoria of the access regime dispute under subsection (1).

(3) The person notifying the Head, Transport for Victoria of an access regime dispute under subsection (1) and any persons notified by the Head, Transport for Victoria under subsection (2) are the parties to the access regime dispute.

Subdivision 3—Independent panel

S. 38ZC substituted by No. 68/2017 s. 88.

38ZC Head, Transport for Victoria must constitute independent panel to hear and determine access regime dispute

(1) Within 30 days after receiving a notification under section 38ZB of an access regime dispute, the Head, Transport for Victoria must constitute an independent panel to hear and determine the dispute.

(2) An independent panel must consist of 3 members—

(a) being a chairperson and 2 other persons appointed by the Head, Transport for Victoria; and

(b) each of whom must have knowledge of, or experience in, one of the following fields—

(i) engineering;

(ii) economics;

(iii) law.

(3) In addition, at least one member must have knowledge of, or experience in, reviewing rail access arrangements.

S. 38ZD substituted by No. 68/2017 s. 88.

38ZD Disclosure of interests of independent panel members

(1) If a person is, or is to be, a member of an independent panel and the person has or acquires any interests, pecuniary or otherwise, that could conflict with the proper performance of the functions of that person in relation to the hearing and determination of an access regime dispute—

(a) the person must disclose the interest to the Head, Transport for Victoria; and

(b) the person must not take part, or continue to take part, in the hearing and determination of the access regime dispute if—

(i) the Head, Transport for Victoria gives a direction under subsection (2)(a); or

(ii) if the Head, Transport for Victoria has caused the interest of the person to be disclosed to the parties to the dispute, all the parties do not consent to the person being a member of the independent panel.

(2) If the Head, Transport for Victoria receives a disclosure of an interest under subsection (1) or becomes aware that a person is, or is to be, a member of an independent panel in relation to a hearing and that the person has in relation to the hearing such an interest—

(a) if the Head, Transport for Victoria considers that the person should not take part, or should not continue to take part, in the hearing—the Head, Transport for Victoria must give a direction to the person accordingly; or

(b) in any other case—the Head, Transport for Victoria must cause the interest of the person to be disclosed to the parties to the dispute.

S. 38ZE substituted by No. 68/2017 s. 88.

38ZE Member of independent panel ceases to be or becomes incapable of being a member

(1) This section applies if a member of an independent panel—

(a) ceases to be a member of the panel before the determination of an access regime dispute; or

A person may cease to be a member if the person dies or is directed not to take part in the hearing of an access regime dispute under section 38ZD.

(b) becomes incapable of participating in the hearing and determination of the access regime dispute.

A person may become too ill to continue to be a member.

(2) The Head, Transport for Victoria must—

(a) in the case where the member ceases to
be a member of the panel before the determination of the access regime dispute, appoint another person as a member of the panel; and

(b) in the case where the member becomes incapable of participating in the hearing and determination of the access regime dispute, remove the member and appoint another person as a member of the panel.

(3) An independent panel constituted in accordance with this section may have regard to any record of proceedings for the hearing and determination of the access regime dispute of the independent panel as previously constituted.

S. 38ZF substituted by No. 68/2017 s. 88.

38ZF Function of independent panel

(1) The function of an independent panel is to hear and determine an access regime dispute.

(2) In hearing and determining an access regime dispute, an independent panel must have regard to the object of this Part and, as the case requires, any one or more of the following—

(a) the rail access guidelines;

(b) the Statement of Freight Network Capability;

(c) a rail access agreement content order.

Subdivision 4—Hearing of access regime disputes

S. 38ZG substituted by No. 68/2017 s. 88.

38ZG Hearings for the purposes of access regime disputes

(1) An independent panel must conduct a hearing for the purposes of determining an access regime dispute.

(2) In any hearing for the purposes of determining an access regime dispute, an independent panel—

(a) is not bound by technicalities, legal forms or rules of evidence but must accord procedural fairness; and

(b) must act as speedily as a proper consideration of the access regime dispute allows, having regard to the need to carefully and quickly inquire into and investigate the access regime dispute and all matters affecting the merits, and fair settlement, of the access regime dispute; and

(c) may inform itself of any matter relevant to the access regime dispute in any way it thinks appropriate.

(3) An independent panel may decide the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties to an access regime dispute, and may require that the cases be presented within those periods.

(4) An independent panel may require evidence or argument to be presented in writing, and may decide the matters on which it will hear oral evidence or argument.

(5) An independent panel may decide that a hearing is to be conducted by—

(a) telephone; or

(b) closed circuit television; or

(c) any other means of communication.

S. 38ZH substituted by No. 68/2017 s. 88.

38ZH Hearings to be in private

(1) A hearing of an access regime dispute is to be conducted in private.

(2) However, a hearing or part of a hearing may be conducted in public if the parties to the dispute agree.

(3) The chairperson of an independent panel that is conducting a hearing in private may give written directions as to the persons who may be present.

(4) In giving a direction under subsection (3), the chairperson of an independent panel must have regard to the wishes of the parties to the dispute and the need for commercial confidentiality.

S. 38ZI substituted by No. 68/2017 s. 88.

38ZI Right to representation

In a hearing before an independent panel under this Division, a party to an access regime dispute may—

(a) appear in person; or

(b) be represented by someone else if the panel agrees.

S. 38ZJ substituted by No. 68/2017 s. 88.

38ZJ Particular powers for the purposes of hearing and determining access regime disputes

(1) An independent panel may do any of the following things for the purpose of determining an access regime dispute—

(a) give a direction in the course of, or for the purposes of, a hearing;

(b) sit at any place;

(c) adjourn to any time and place;

(d) refer any matter to an expert and accept the expert's report as evidence;

(e) generally give all such directions, and do all such things, as are necessary or expedient for the speedy hearing and making of a determination.

(2) A party to an access regime dispute must not do any act or thing in relation to the hearing of an access regime dispute that would be a contempt of court if the independent panel were a court of record.

(3) The chairperson of an independent panel may give an oral or written direction to any party to an access regime dispute not to divulge or communicate to anyone else specified information that was given to the party in the course of an access regime dispute unless the party has the chairperson's permission.

S. 38ZK substituted by No. 68/2017 s. 88.

38ZK Power to take evidence on oath or affirmation

(1) An independent panel may take evidence on oath or affirmation and for that purpose the chairperson of the independent panel may administer an oath or affirmation.

(2) The power conferred under this section may be exercised only for the purpose of determining an access regime dispute.

S. 38ZL substituted by No. 68/2017 s. 88.

38ZL Decisions of independent panel

Any question before an independent panel (including the determination of an access regime dispute) is to be decided by a majority of the members of the panel.

S. 38ZM substituted by No. 68/2017 s. 88.

38ZM Costs to be paid by parties to access regime dispute

(1) Subject to section 38ZN, each party to an access regime dispute is to bear their own costs in a hearing.

(2) In addition, the parties to an access regime dispute must pay to the Head, Transport for Victoria the costs incurred by the State for the constitution of the independent panel to hear and determine the access regime dispute. Those costs may include—

(a) the fees, allowances and expenses paid to each member of the independent panel; and

(b) the costs incurred by the State to provide appropriate indemnities for each member of the independent panel in relation to the performance of their functions and exercise of their powers under this Division.

(3) Subject to subsection (4), the Head, Transport for Victoria must—

(a) determine the proportion of costs referred to in subsection (2) that a party to an access regime dispute is to pay to the Head, Transport for Victoria; and

(b) notify, in writing, the party of the amount of costs represented by that proportion.

(4) If an independent panel determines that a party to an access regime dispute pay a proportion of the costs referred to in subsection (2), the Head, Transport for Victoria must apportion the costs under subsection (3) in accordance with that determination.

(5) The Head, Transport for Victoria may recover from a party to an access regime dispute, as
a debt due to the State, in a court of competent jurisdiction any costs of which the Head, Transport for Victoria has given notice to the party under subsection (3).

S. 38ZN substituted by No. 68/2017 s. 88.

38ZN Independent panel may award costs in certain cases

(1) At any time, an independent panel may direct that a party to an access regime dispute pay all or a specified part of the costs of the other party to the dispute.

(2) An independent panel may make a direction under subsection (1) only if satisfied that it is fair to do so, having regard to the following—

(a) whether the party has conducted themselves in the hearing in a way that unnecessarily disadvantaged the other party by conduct such as—

(i) failing to comply with a direction of the panel without reasonable excuse; or

(ii) failing to comply with this Part; or

(iii) asking for an adjournment as a result of subparagraph (i) or (ii); or

(iv) causing an adjournment; or

(v) attempting to deceive another party or the independent panel; or

(vi) vexatiously conducting the hearing;

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the hearing;

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;

(d) the nature and complexity of the matters before the panel;

(e) any other matter the panel considers relevant.

(3) If an independent panel considers that the representative of a party to an access regime dispute, rather than the party, is responsible for conduct described in subsection (2)(a) or (b), the panel may order that the representative in their own capacity compensate another party for any costs incurred unnecessarily.

(4) Before making an order under subsection (3), an independent panel must give the representative a reasonable opportunity to be heard.

(5) If an independent panel makes a direction as to costs before the completion of the hearing, the panel may require that the direction be complied with before it continues with the hearing.

S. 38ZO substituted by No. 68/2017 s. 88.

38ZO Determination of access regime dispute

(1) On hearing an access regime dispute, an independent panel must determine the dispute within 60 days after the independent panel was constituted.

(2) A determination under this section may include a requirement that a party to the access regime dispute do any one or more of the following—

(a) take specified action;

(b) cease or refrain from taking specified action;

(c) require a party to pay a specified proportion of the costs incurred by the State for the constitution of the independent panel to hear and determine the dispute.

(3) A determination under this section takes effect on the day it is made or on any later date specified in the determination.

(4) A copy of a determination under this section, and a statement of reasons for the determination, must be given to the parties to the access regime dispute without delay.

S. 38ZP substituted by No. 68/2017 s. 88.

38ZP Compliance with directions and determinations of independent panel

(1) A party to an access regime dispute must comply with a direction under this Division of the independent panel constituted to hear and determine the dispute.

(2) A party to an access regime dispute must comply with the determination under section 38ZO of the independent panel constituted to hear and determine the dispute.

Division 8—Enforcement and other proceedings

S. 38ZQ substituted by No. 68/2017 s. 88.

38ZQ Proceedings for contraventions of penalty provisions

S. 38ZQ(1) amended by No. 49/2019 s. 186(Sch. 4 item 35.10).

(1) The Secretary or the Head, Transport for Victoria may apply to the Supreme Court for an order under this Part in respect of a contravention by a person of a penalty provision or the doing by a person of any other thing mentioned in subsection (2).

(2) If the Court is satisfied that a person—

(a) has contravened a penalty provision; or

(b) has attempted to contravene such a provision; or

(c) has aided, abetted, counselled or procured another person to contravene such a provision; or

(d) has induced, or attempted to induce, another person whether by threats or promises or otherwise, to contravene such a provision; or

(e) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by another person of such a provision; or

(f) has conspired with others to contravene such a provision—

the Court may order the person to pay a pecuniary penalty to the Minister in respect of each act or omission by the person to which this section applies as the Court determines to be appropriate, being an amount not exceeding $1 000 000.

(3) In determining the amount of the pecuniary penalty to be paid by the person, the Court may have regard to all relevant matters including—

(a) the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission; and

(b) the circumstances in which the act or omission took place; and

(c) whether the person has previously been found by the Court in proceedings under this Division to have contravened a penalty provision.

S. 38ZR substituted by No. 68/2017 s. 88.

38ZR Pecuniary penalties to be paid into Consolidated Fund

Every pecuniary penalty received by the Minister must be paid into the Consolidated Fund.

S. 38ZS substituted by No. 68/2017 s. 88.

38ZS Injunctions

S. 38ZS(1) amended by No. 49/2019 s. 186(Sch. 4 item 35.11).

(1) If, on an application by the Secretary or the Head, Transport for Victoria, the Supreme Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute—

(a) a contravention of a penalty provision; or

(b) attempting to contravene a penalty provision—

the Court may grant an injunction in such terms as the Court determines to be appropriate.

(2) If an application for an injunction under subsection (1) has been made the Court may, if the Court determines it to be appropriate, grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied that a person has engaged, or is proposing to engage, in conduct of a kind mentioned in subsection (1).

(3) If in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1).

(4) The Court may rescind or vary an injunction granted under subsection (1) or (2).

(5) The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised—

(a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; and

(b) whether or not the person has previously engaged in conduct of that kind.

(6) The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised—

(a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and

(b) whether or not the person has previously refused or failed to do that act or thing.

S. 38ZS(7) amended by No. 49/2019 s. 186(Sch. 4 item 35.11).

(7) The Court must not, in any application to the Court for the grant of an injunction under this section, require the Secretary, the Head, Transport for Victoria or any other person to give any undertaking as to damages as a condition of granting an interim injunction.

S. 38ZT substituted by No. 68/2017 s. 88.

38ZT Declaratory relief

S. 38ZT(1) amended by No. 49/2019 s. 186(Sch. 4 item 35.12).

(1) The Supreme Court, on an application
by the Secretary or the Head, Transport for Victoria may, by order, declare whether or not the person to which the application relates has contravened a penalty provision.

(2) If the order declares the person to have contravened a penalty provision, the order may include one or more of the following—

(a) a requirement that the person cease, within a specified period, the act, activity or practice constituting the contravention;

(b) a requirement that the person take such action, or adopt such practice, as the Court requires for remedying the contravention or preventing a recurrence of the contravention.

S. 38ZU substituted by No. 68/2017 s. 88.

38ZU Enforcement of determinations of access regime disputes

(1) If the Supreme Court is satisfied, on the application of a party to an access regime dispute in respect of which an independent panel has made a determination, that another party to that access regime dispute engaged, is engaging, or is proposing to engage in conduct that constitutes a contravention of the determination, the Court may make all or any of the following orders—

(a) an order granting an injunction on such terms as the Court thinks appropriate—

(i) restraining the other party from engaging in the conduct; or

(ii) if the conduct involves refusing or failing to do something—requiring the other party to do that thing;

(b) an order directing the other party to compensate the applicant for loss or damage suffered as a result of the contravention;

(c) any other order that the Court thinks appropriate.

(2) If the Supreme Court has power under subsection (1) to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do anything, the Court may make any other orders (including granting an injunction) that it thinks appropriate against any other person who was involved in the contravention concerned.

(3) A reference in this section to a person involved in the contravention is a reference to a person who has—

(a) aided, abetted, counselled or procured the contravention; or

(b) induced the contravention, whether through threats or promises or otherwise; or

(c) been in any way (directly or indirectly) knowingly concerned in or a party to the contravention; or

(d) conspired with others to effect the contravention.

S. 38ZV substituted by No. 68/2017 s. 88.

38ZV Appeal to Supreme Court on a question of law from a decision of an independent panel

A party to an access regime dispute may appeal to the Supreme Court on a question of law from a decision of an independent panel.

Division 9—Reporting

S. 38ZW substituted by No. 68/2017 s. 88.

38ZW Access providers to report on freight network activity and performance

S. 38ZW(1) amended by No. 49/2019 s. 186(Sch. 4 item 35.13(a)).

(1) An access provider must give to the Head, Transport for Victoria, one month after each quarter of a financial year, a report (a network activity and performance report) that reports on the performance indicators in respect of the previous quarter.

S. 38ZW(2) amended by No. 49/2019 s. 186(Sch. 4 item 35.13(b)).

(2) An access provider who does not comply with subsection (1) must provide written reasons to the Minister and the Head, Transport for Victoria for not complying with that subsection.

S. 38ZW(3) amended by No. 49/2019 s. 186(Sch. 4 item 35.13(c)).

(3) The Head, Transport for Victoria must determine performance indicators which must be reported on in a network activity and performance report.

(4) The performance indicators that are determined under subsection (3) may include—

(a) the number of freight services provided using a specified railway track or specified part of a railway track that is part of a declared rail network; and

(b) the volume and type of freight carried by rolling stock on a specified railway track or specified part of a railway track that is part of a declared rail network; and

(c) the average speed limit for rolling stock carrying freight travelling on a specified railway track or specified part of a railway track that is part of a declared rail network; and

S. 38ZW(4)(d) amended by No. 49/2019 s. 186(Sch. 4 item 35.13(d)).

(d) any other matter agreed to between the Head, Transport for Victoria and the access provider.

S. 38ZW(5) amended by No. 49/2019 s. 186(Sch. 4 item 35.13(d)).

(5) The Head, Transport for Victoria must—

(a) publish the performance indicators it determines under subsection (3) on its Internet site; and

(b) give those indicators, in writing, to the access provider to whom they will apply.

Division 10—Collection and use of information

S. 38ZX substituted by No. 68/2017 s. 88.

38ZX Definitions

information requirement means any requirement under section 38ZZ or 38ZZA;

S. 38ZX def. of regulatory entity amended by No. 49/2019 s. 186(Sch. 4 item 35.14).

regulatory entity means—

(a) the Minister; or

(b) the Head, Transport for Victoria.

S. 38ZY substituted by No. 68/2017 s. 88.

38ZY Regulatory entity must have regard to certain matters

A regulatory entity must have regard to the following matters when exercising the powers conferred on the entity under this Division—

(a) the relevance of the information or document to the function being performed by the regulatory entity under this Part;

(b) the estimated compliance costs for a person to comply with an information requirement.

S. 38ZZ substituted by No. 68/2017 s. 88.

38ZZ General power to obtain information and documents

(1) If a regulatory entity considers that it is necessary to do so for the purposes of performing its functions or exercising its powers under this Part, the entity may require a person that the entity has reason to believe has any relevant information or document to provide that information or document to the entity.

(2) For the purposes of subsection (1), a regulatory entity may require the person to appear before the entity to provide the information or document.

(3) A requirement must be made in a written notice specifying—

(a) the information or document required; and

(b) the period of time within which the requirement must be complied with; and

(c) the form in which the information or a copy of the document is to be given to the regulatory entity; and

(d) whether or not the person is required to appear before the regulatory entity; and

(e) that the requirement is made under this section.

(4) The notice must include a copy of this Division.

S. 38ZZA substituted by No. 68/2017 s. 88.

38ZZA Provision of information relating to declared rail transport services provided by access provider

(1) A regulatory entity, by written notice given to an access provider, may require the access provider to give to the entity information relating to the provision of declared rail transport services by the access provider.

(2) A notice under subsection (1) may specify the manner and form in which the information must be given.

(3) If information the subject of a notice under subsection (1) is held by a third party, a regulatory entity may require the access provider to enter into an arrangement with the third party under which the third party is to give the information to the regulatory entity.

S. 38ZZB substituted by No. 68/2017 s. 88.

38ZZB Compliance with requirement to provide information or document

(1) A person who without lawful excuse fails to comply with any information requirement given to the person is guilty of an offence.

(2) It is a lawful excuse for the purposes of subsection (1) that compliance may tend to incriminate the person or make the person liable to a penalty for any other offence.

S. 38ZZC substituted by No. 68/2017 s. 88.

38ZZC Offence to give false or misleading information

A person must not, in purported compliance with any information requirement given to the person, knowingly give a regulatory entity information that is false or misleading.

Penalty: 120 penalty units or imprisonment for 6 months.

S. 38ZZD substituted by No. 68/2017 s. 88.

38ZZD Offence to threaten, intimidate or coerce person or take, threaten to take or incite

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 an information requirement.

S. 38ZZE substituted by No. 68/2017 s. 88.

38ZZE No liability for giving information or document in compliance with requirement

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 any information or a document to a regulatory entity under this Division.

S. 38ZZF substituted by No. 68/2017 s. 88.

38ZZF Restriction on disclosure of confidential information

(1) This section applies if—

(a) information or a document is given to a regulatory entity under an information requirement; and

(b) at the time the information or document is given, the person giving it states that it is of a confidential or commercially sensitive nature.

(2) Before a regulatory entity makes a decision under subsection (3), the entity must—

(a) give the person giving the information or document an opportunity to make a submission to the entity specifying—

(i) why the information or document is of a confidential or commercially sensitive nature; and

(ii) the detriment that would be caused by the disclosure of the information or document; and

(b) consider any submission made by that person.

(3) A regulatory entity must not disclose the information or the contents of the document to any person unless—

(a) the regulatory entity is of the opinion—

(i) that the disclosure of the information or document would not cause detriment to the person giving it; or

(ii) that although the disclosure of the information or document would cause detriment to the person giving it, the public benefit in disclosing it outweighs that detriment; and

(b) the regulatory entity is of the opinion, in relation to any other person who is aware of the information or the contents of the document and who might be detrimentally affected by the disclosure—

(i) that the disclosure of the information or document would not cause detriment to that person; or

(ii) that although the disclosure of the information or document would cause detriment to that person, the public benefit in disclosing it outweighs that detriment; and

(c) the regulatory entity gives the person who gave the information or document a written notice—

(i) stating that the entity wishes to disclose the information or contents of the document, specifying the nature of the intended disclosure and setting out detailed reasons why the entity wishes to make the disclosure; and

(ii) stating that the entity is of the opinion required by paragraph (a) and setting out detailed reasons why it is of that opinion; and

(iii) setting out a copy of this section; and

(d) if the regulatory entity is aware that the person who gave the information or document in turn received the information or document from another person and is aware of that other person's identity and address, the entity gives that other person a written notice—

(i) containing the details required by paragraph (c); and

(ii) stating that the entity is of the opinion required by paragraph (b) in relation to the other person and setting out detailed reasons why it is of that opinion.

(4) Subsection (3) does not prevent—

(a) the Minister from disclosing information or the contents of a document to—

(i) a person employed in the Department under Part 3 of the Public Administration Act 2004; or

(ii) a person engaged by the Minister or the Secretary to assist the Minister to perform the Minister's functions or exercise the Minister's powers under this Part; or

S. 38ZZF(4)(b) substituted by No. 49/2019 s. 186(Sch. 4 item 35.15).

(b) the Head, Transport for Victoria from disclosing information or the contents of a document to—

(i) a person employed in the Department under Part 3 of the Public Administration Act 2004; or

(ii) a consultant, contractor or agent engaged by the Head, Transport for Victoria for the purpose of assisting the Head, Transport for Victoria to perform its functions or exercise its powers under this Part.

(5) For the purposes of this section, the disclosure of anything that is already in the public domain at the time a regulatory entity wishes to disclose it can not cause detriment to any person referred to in subsection (3)(a) or (b).

S. 38ZZG substituted by No. 68/2017 s. 88.

38ZZG Regulatory entity must not disclose exempt freedom of information documents

(1) A regulatory entity must not disclose to any person any document that it has obtained from any agency (as defined in the Freedom of Information Act 1982) or a Minister that is an exempt document under the Freedom of Information Act 1982 in the hands of the agency or Minister.

(2) Subsection (1) does not prevent a regulatory entity from doing anything specified in section 38ZZF(4).

Pt 3
(Heading) amended by No. 104/1997 s. 16(1).

Part 3—Transfer of property and staff

Pt 3 Div. 1 (Heading) inserted by No. 104/1997 s. 16(2).

Division 1—Definitions

39 Definitions

(1) In this Part—

former PTC instrument means an instrument (including a legislative instrument other than this Act) or an oral agreement subsisting immediately before the relevant date—

(a) to which the PTC was a party; or

(b) that was given to, or in favour of, the PTC; or

(c) that refers to the PTC; or

(i) money is, or may become, payable to the PTC; or

(ii) other property is to be, or may become liable to be, transferred to or by the PTC;

S. 39(1) def. of former PTC property amended by No. 104/1997 ss 14(1), 17(1)(b).

former PTC property means property, rights or liabilities of the PTC that, under Division 2, have vested in, or become liabilities of, a rail corporation or another person;

former rail corporation instrument means an instrument (including a legislative instrument other than this Act) or an oral agreement subsisting immediately before the relevant date—

(a) to which a rail corporation was a party; or

(b) that was given to, or in favour of, a rail corporation; or

(c) that refers to a rail corporation; or

(i) money is, or may become, payable to a rail corporation; or

(ii) other property is to be, or may become liable to be, transferred to or by a rail corporation;

S. 39(1) def. of former rail corporation property amended by No. 104/1997 s. 17(1)(b).

former rail corporation property means property, rights or liabilities of a rail corporation that, under Division 2, have vested in, or become liabilities of, another person;

S. 39(1) def. of new employer inserted by No. 104/1997 s. 17(1)(a), substituted by No. 98/1998 s. 13(1)(a).

new employer—

(a) in relation to a transferred PTC employee, means the rail corporation by which, by virtue of section 58, the transferred PTC employee is regarded as being employed with effect from the relevant date;

(b) in relation to a transferred RC employee, means the relevant person by which, by virtue of section 59B, the transferred RC employee is regarded as being employed with effect from the relevant date;

PTC means Public Transport Corporation established under Part II of the Transport Act 1983;

S. 39(1) def. of RC inserted by No. 98/1998 s. 13(1)(c).

RC means a rail corporation which is nominated by the Minister under section 59A(1);

S. 39(1) def. of relevant date substituted by No. 104/1997 s. 17(1)(c), amended by No. 98/1998 s. 13(1)(b).

relevant date—

(a) in relation to an allocation statement under section 40 or 41 or property, rights or liabilities allocated under such a statement, means the date fixed by the Minister under subsection (2) for the purposes of that statement;

(b) in relation to a document referred to in section 57(1), means the date fixed by the Minister under subsection (2A) for the purposes of that document;

(c) in relation to a document referred to in section 59A(1), means the date fixed by the Minister under subsection (2A) for the purposes of that document;

S. 39(1) def. of relevant person inserted by No. 98/1998 s. 13(1)(c).

relevant person means a rail corporation, the State, a statutory authority or a body corporate all the shares in which are held by, or on behalf of, the State or a statutory authority;

transferee means a person to whom property is allocated under an allocation statement under section 40 or 41;

transferor means the PTC or rail corporation from which property is transferred under an allocation statement under section 40 or 41;

S. 39(1) def. of transferred PTC employee inserted by No. 104/1997 s. 17(1)(a).

transferred PTC employee means a person who, by virtue of section 58, is regarded as being employed by a new employer with effect from the relevant date;

S. 39(1) def. of transferred RC employee inserted by No. 98/1998 s. 13(1)(c).

transferred RC employee means a person who, by virtue of section 59B, is regarded as being employed by a new employer with effect from the relevant date.

(2) The Minister, by notice published in the Government Gazette, may fix the relevant date for the purposes of an allocation statement under section 40 or 41.

S. 39(2A) inserted by No. 104/1997 s. 17(2), amended by No. 98/1998 s. 13(2).

(2A) The Minister, by notice published in the Government Gazette, may fix the relevant date for the purposes of a document referred to in section 57(1) or 59A(1).

S. 39(2B) inserted by No. 104/1997 s. 17(2).

(2B) Despite anything to the contrary in this or any other Act or in any rule of law, a building or other improvement of any kind on land may be transferred to a person in accordance with Division 2 irrespective of whether the land—

(a) is being, has been or is to be transferred to that person; or

(b) is being, has been or is to be transferred to a different person.

S. 39(2C) inserted by No. 104/1997 s. 17(2).

(2C) Despite anything to the contrary in this or any other Act or in any rule of law, land may be transferred to a person in accordance with Division 2 irrespective of whether a building or other improvement of any kind on the land—

(a) is being, has been or is to be transferred to that person; or

(b) is being, has been or is to be transferred to a different person.

S. 39(2D) inserted by No. 104/1997 s. 17(2).

(2D) For the purpose of subsections (2B) and (2C), a building or other improvement situated on land must be taken to be personal property that is not affixed, within the meaning of any law relating to real property, to the land.

S. 39(3) repealed by No. 104/1997 s. 15.

Pt 3 Div. 2 (Heading) inserted by No. 104/1997 s. 16(3).

Division 2—Property

40 Minister may direct transfer of PTC property to rail corporation or person

S. 40(1) amended by No. 104/1997 s. 14(2).

(1) The Minister may give a direction in writing to the PTC directing it to transfer, in accordance with the direction, property, rights and liabilities of a specified kind to a rail corporation or another person or other persons nominated by the Minister.

(2) A direction under subsection (1) may include directions as to the method of valuation to be used by the PTC for the purposes of determining the value of property, rights and liabilities to be transferred.

(3) Within 45 days after receiving a direction under subsection (1), the PTC must give to the Minister a statement containing the information required by the Minister relating to the property, rights and liabilities of the PTC to which the direction relates, as at the date specified by the Minister for the purposes of this section.

(4) A statement under this section—

S. 40(4)(a) amended by No. 104/1997 s. 14(3).

(a) must give the value of the property, rights and liabilities of the PTC to be transferred; and

(b) must allocate the property, rights and liabilities of the PTC shown in the statement in accordance with the directions of the Minister; and

S. 40(4)(c) amended by No. 47/1998 s. 14(1).

(c) must be signed by the Administrator of the PTC.

(5) If a statement under this section is approved by the Minister—

S. 40(5)(b) amended by No. 104/1997 s. 16(4).

(6) The Minister may at any time direct the PTC to amend a statement given to him or her under this section as specified in the direction.

(7) An allocation statement under this section may be amended by writing signed by the Minister.

(8) An amendment under subsection (7) to an allocation statement made after the relevant date in relation to that statement may be made with effect from that relevant date if the Minister is satisfied that the amendment does not adversely affect any property, rights or liabilities of a person other than the transferor or the transferee in relation to that statement.

(9) In this section, statement and allocation statement include a statement or allocation statement amended in accordance with this section.

41 Minister may direct transfer of rail corporation property to other rail corporations or persons

S. 41(1) amended by No. 45/1999 s. 9(1).

(1) The Minister may give a direction in writing to a rail corporation directing it to transfer, in accordance with the direction, property, rights and liabilities of a specified kind to another rail corporation or a person or persons nominated by the Minister.

(2) A direction under subsection (1) may include directions as to the method of valuation to be used by the rail corporation for the purposes of determining the value of property, rights and liabilities to be transferred.

(3) Within 45 days after receiving a direction under subsection (1), the rail corporation must give to the Minister a statement containing the information required by the Minister relating to the property, rights and liabilities of the rail corporation to which the direction relates, as at the date specified by the Minister for the purposes of this section.

(4) A statement under this section—

S. 41(4)(a) amended by Nos 104/1997 s. 14(4), 45/1999 s. 9(2).

(a) may give the value of the property, rights and liabilities of the rail corporation to be transferred; and

(b) must allocate the property, rights and liabilities of the rail corporation shown in the statement in accordance with the directions of the Minister; and

(c) must be signed by the chief executive officer of the rail corporation.

(5) If a statement under this section is approved by the Minister—

S. 41(5)(b) amended by No. 104/1997 s. 16(4).

(6) The Minister may at any time direct a rail corporation to amend a statement given to him or her under this section as specified in the direction.

(7) An allocation statement under this section may be amended by writing signed by the Minister.

S. 41(7A) inserted by No. 45/1999 s. 9(3).

(7A) A direction under subsection (6) or an amendment under subsection (7) in relation to an allocation statement that would affect a person nominated by the Minister under subsection (1) must not be given or made unless the transferor and the transferee are, or are wholly owned by, the State or a statutory authority or have consented in writing to the direction or amendment.

(8) An amendment under subsection (7) to an allocation statement made after the relevant date in relation to that statement may be made with effect from that relevant date if the Minister is satisfied that the amendment does not adversely affect any property, rights or liabilities of a person other than the transferor or the transferee in relation to that statement.

(9) In this section, statement and allocation statement include a statement or allocation statement amended in accordance with this section.

42 Property transferred in accordance with direction

On the relevant date—

S. 42(a) amended by No. 104/1997 s. 14(5).

(a) all property and rights of the PTC, wherever located, that are allocated under an allocation statement in accordance with a direction of the Minister under section 40, vest in a rail corporation or other person or persons in accordance with the statement;

S. 42(b) amended by No. 104/1997 s. 14(5).

(b) all liabilities of the PTC, wherever located, that are allocated under an allocation statement in accordance with a direction of the Minister under section 40, become liabilities of a rail corporation or other person or persons in accordance with the statement;

(c) all property and rights of a rail corporation, wherever located, that are allocated under an allocation statement in accordance with a direction of the Minister under section 41, vest in a person or persons in accordance with the statement;

(d) all liabilities of a rail corporation, wherever located, that are allocated under an allocation statement in accordance with a direction of the Minister under section 41, become liabilities of a person or persons in accordance with the statement.

S. 43 amended by No. 104/1997 s. 16(4).

43 Allocation of property etc. subject to encumbrances

Unless an allocation statement under this Division otherwise provides, where, under this Division—

(a) property and rights vest in; or

(b) liabilities become liabilities of—

a transferee in accordance with a direction under section 40 or 41—

(c) the property and rights so vested are subject to the encumbrances (if any) to which they were subject immediately before so vesting; and

(d) the rights to which the transferor was entitled in respect of those liabilities immediately before they ceased to be liabilities of the transferor vest in the transferee.

44 Payments in respect of financial obligations

(1) If—

(a) an Order has been made under section 36D(1) or 36E(1) of the Treasury Corporation of Victoria Act 1992 relating to financial obligations of a rail corporation; and

(b) responsibility for those financial obligations has become the responsibility of a transferee under an allocation statement under section 41—

then—

(c) the transferee must pay to the Treasury Corporation of Victoria such amounts, and at such times, as the rail corporation would have been liable to pay in respect of those financial obligations if the Order had not been made, except in so far as the Corporation and the transferee agree; and

(d) the Corporation must pay to the transferee such amounts, and at such times, as the rail corporation would have been entitled to receive in respect of those financial obligations if the Order had not been made, except in so far as the Corporation and the transferee otherwise agree.

(2) An amount payable under subsection (1) may be recovered in a court of competent jurisdiction as a debt due to the Treasury Corporation of Victoria or the transferee, as the case requires.

45 Certificate of Administrator or CEO

S. 45(1) amended by No. 47/1998 s. 14(2).

(1) A certificate signed by the Administrator of the PTC or the chief executive officer of a rail corporation that is a transferor certifying that property, rights or liabilities of the transferor specified in the certificate have been allocated under an allocation statement in accordance with section 40 or 41 (as the case may be) is, unless revoked under subsection (2), conclusive evidence—

(a) that the property, rights or liabilities have been so allocated; and

(b) that the property, rights or liabilities vested in, or become the property, rights or liabilities of, the transferee on the relevant date.

S. 45(2) amended by No. 47/1998 s. 14(3).

(2) If the Minister so directs the Administrator or chief executive officer in writing, the Administrator or chief executive officer must revoke a certificate given under subsection (1) by issuing another certificate in place of the first certificate.

S. 45(3) amended by No. 47/1998 s. 14(3).

(3) The Administrator or chief executive officer of a transferor—

(a) must keep a register of certificates issued under this section; and

(b) must make the register reasonably available for inspection by a transferee or other interested person.

S. 46
substituted by No. 45/1999 s. 10.

46 Value of transferred property

(1) If the relevant allocation statement gives the value of property, rights or liabilities of the transferor that are allocated to the transferee, the value to the transferee of the property, rights or liabilities is the value so given.

(2) If an agreement for the sale of the business or assets of a rail corporation ascribes a value to property, rights or liabilities allocated under an allocation statement, that value is deemed to be consideration paid to, or received by, the rail corporation.

47 Substitution of party to agreement

Where, under an allocation statement, the rights and liabilities of a transferor under an agreement are allocated to a transferee in accordance with a direction under section 40 or 41—

(a) the transferee becomes, on the relevant date, a party to the agreement in place of the transferor; and

(b) on and after the relevant date, the agreement has effect as if the transferee had always been a party to the agreement.

48 Former PTC and rail corporation instruments

(1) Each former PTC instrument relating to former PTC property continues to have effect according to its tenor on and after the relevant date in relation to that property as if a reference in the instrument to the PTC were a reference to the transferee.

(2) Each former rail corporation instrument relating to former rail corporation property continues to have effect according to its tenor on and after the relevant date in relation to that property as if a reference in the instrument to the rail corporation were a reference to the transferee.

S. 49
amended by No. 45/1999 s. 11.

49 Proceedings

Unless an allocation statement otherwise provides, if, immediately before the relevant date, proceedings relating to former PTC property or former rail corporation property (including arbitration proceedings) to which a transferor was a party were pending or existing in any court or tribunal, then, on and after that date, the transferee is substituted for the transferor as a party to the proceedings and has the same rights in the proceedings as the transferor had.

S. 50 amended by No. 104/1997 s. 16(4).

50 Interests in land

Without prejudice to the generality of this Division and despite anything to the contrary in any other Act or law if, immediately before the relevant date, a transferor is, in relation to former PTC property or former rail corporation property, the registered proprietor of an interest in land under the Transfer of Land Act 1958, then on and after that date—

(a) the transferee is to be taken to be the registered proprietor of that interest in land; and

(b) the transferee has the same rights and remedies in respect of that interest as the transferor had.

51 Easements

S. 51(1) amended by No. 104/1997 s. 16(4).

(1) If a rail corporation acquires any right in the nature of an easement (whether as a result of an allocation under this Division or otherwise), that right must be taken to be an easement even though there is no land vested in the rail corporation which is benefited or capable of being benefited by that right.

S. 51(2) amended by No. 104/1997 s. 16(4).

(2) If a transferee other than a rail corporation acquires any right in the nature of an easement as a result of an allocation under this Division, that right must be taken to be an easement even though there is no land vested in the transferee which is benefited or capable of being benefited by that right.

(3) A transferee may, subject to and in accordance with any agreement entered into with another transferee, exercise such rights in respect of easements to which the other transferee is entitled as are reasonably necessary to enable the first-mentioned transferee to carry out its functions in a manner similar to the manner in which the transferor carried out corresponding functions before the relevant date.

(4) A transferee must pay such reasonable charges for the exercise of rights under subsection (3) in respect of easements to which another transferee is entitled as are determined by the other transferee and agreed by the first-mentioned transferee or, if there is no agreement, as are determined by the Minister.

52 Amendment of Register

S. 52(1) amended by Nos 104/1997 s. 16(4), 47/1998 s. 14(3).

(1) The Registrar of Titles, on being requested to do so and on delivery of any relevant certificate of title or instrument and certificate of the Administrator or chief executive officer of the transferor of former PTC property or former rail corporation property, must make any amendments in the Register that are necessary because of the operation of this Division.

S. 52(2)(3) amended by No. 104/1997 s. 16(4), repealed by No. 85/1998 s. 24(Sch. item 49.2).[2]

S. 53 amended by No. 104/1997 s. 16(4).

53 Taxes

No stamp duty or other tax is chargeable under any Act in respect of anything effected by or done under this Division or in respect of any act or transaction connected with or necessary to be done by reason of this Division, including a transaction entered into or an instrument made, executed, lodged or given, for the purpose of, or connected with—

(a) the transfer of property, rights or liabilities of the PTC or a rail corporation; or

S. 53(b) amended by No. 104/1997 s. 14(6).

(b) a lease entered into in accordance with a direction under section 56.

54 Evidence

S. 54(1) amended by No. 104/1997 s. 16(4).

(1) Documentary or other evidence that would have been admissible for or against the interests of a transferor in relation to former PTC property or former rail corporation property if this Division had not been enacted is admissible for or against the interests of the transferee.

S. 54(2) amended by No. 69/2009 s. 54(Sch. Pt 1 item 49.1).

(2) The Evidence Act 2008 applies with respect to the books of account of the PTC or a rail corporation and to entries made in those books of account before the relevant date, whether or not they relate to former PTC property or former rail corporation property (as the case may be), as if those books of account and entries were business records.

S. 55 amended by No. 104/1997 s. 16(4).

55 Validity of things done under this Division

Nothing effected or to be effected by this Division or done or suffered under this Division—

(a) is to be regarded as placing any person in breach of contract or confidence or as otherwise making any person guilty of a civil wrong; or

(b) is to be regarded as placing any person in breach of, or as constituting a default under, any Act or other law or obligation or any provision in any agreement, arrangement or understanding including, but not limited to, any provision or obligation prohibiting, restricting or regulating the assignment, transfer, sale or disposal of any property or the disclosure of any information; or

(c) is to be regarded as fulfilling any condition that allows a person to exercise a power, right or remedy in respect of or to terminate any agreement or obligation; or

(d) is to be regarded as giving rise to any remedy for a party to a contract or an instrument or as causing or permitting the termination of any contract or instrument because of a change in the beneficial or legal ownership of any asset, right or liability; or

(e) is to be regarded as causing any contract or instrument to be void or otherwise unenforceable; or

(f) is to be regarded as frustrating any contract; or

S. 55(g) amended by No. 54/2001 s. 29.

(g) releases any surety or other obligor wholly or in part from any obligation.

S. 56 amended by Nos 104/1997 s. 14(7)(a)(b), 54/2001 s. 30.

56 Minister may direct PTC or rail corporation to lease land to rail corporation or person

The Minister, after consultation with the Minister administering Part II of the Transport Act 1983, may in writing direct a rail corporation to lease any land vested in it to a rail corporation or other person specified in the direction, on the terms and conditions specified in the direction.

Pt 3 Div. 3 (Heading and ss 57–59) inserted by No. 104/1997 s. 18.

Division 3—Staff

S. 57 inserted by No. 104/1997 s. 18.

57 List of PTC staff

S. 57(1) amended by No. 47/1998 s. 14(1).

(1) Before the relevant date, the PTC must prepare and submit to the Minister a document signed by the Administrator of the PTC listing officers and employees of the PTC and specifying, in respect of each such officer or employee, the rail corporation by which he or she is to be regarded as having been employed by virtue of section 58 with effect from the relevant date.

S. 57(2) amended by No. 47/1998 s. 14(1).

(2) The document may be amended by instrument signed by the Administrator of the PTC and given to the Minister and the amendment is to be regarded as having effect, or having had effect, from the relevant date.

(3) Nothing in this section prevents a person listed in the document as an officer or employee of the PTC from resigning or being dismissed at any time before the relevant date in accordance with the terms and conditions of his or her appointment or employment.

S. 58 inserted by No. 104/1997 s. 18.

58 Transfer of PTC staff

(1) A person listed as an officer or employee of the PTC in a document under section 57 who was such an officer or employee immediately before the relevant date is to be regarded as—

(a) having been employed by the new employer with effect from the relevant date; and

(b) having been so employed on the same terms and conditions as those that applied to the person, immediately before the relevant date, as an officer or employee of the PTC; and

(c) having accrued an entitlement to benefits, in connection with that employment by the new employer, that is equivalent to the entitlement that the person had accrued, as an officer or employee of the PTC, immediately before the relevant date.

(2) The service of a transferred PTC employee as an employee of the new employer is to be regarded for all purposes as having been continuous with the service of the employee, immediately before the relevant date, as an officer or employee of the PTC.

(3) A transferred PTC employee is not entitled to receive any payment or other benefit by reason only of having ceased to be an officer or employee of the PTC because of this Act.

S. 58(4) amended by No. 47/1998 s. 14(1).

(4) A certificate purporting to be signed by the Administrator of the PTC certifying that a person named in the certificate was with effect from the relevant date employed, by virtue of this section, by a rail corporation named in the certificate is admissible in evidence in any proceedings and is conclusive proof of the matters stated in it.

S. 59 inserted by No. 104/1997 s. 18.

59 Future terms and conditions of transferred employees

(1) Nothing in section 58 prevents—

(a) any of the terms and conditions of employment of a transferred PTC employee from being altered by or under any law, award or agreement with effect from any time after the relevant date; or

(b) a transferred PTC employee from transferring to the employment of another rail corporation at any time within 6 months after the relevant date on terms and conditions agreed to by the employee and that other rail corporation; or

(c) a transferred PTC employee from resigning or being dismissed at any time after the relevant date in accordance with the then existing terms and conditions of his or her employment by the new employer.

(2) The service of a transferred PTC employee as an employee of another rail corporation to which he or she transfers as mentioned in subsection (1)(b) is to be regarded for all purposes as having been continuous with the service of the employee, immediately before the relevant date, as an officer or employee of the PTC and with his or her service on or after that date as an employee of the other rail corporation mentioned in subsection (1)(b).

(3) A transferred PTC employee is not entitled to receive any payment or other benefit by reason only of having ceased to be an employee of a rail corporation, being a payment or benefit in respect of a period of service as an officer or employee of the PTC, if he or she has received a payment or other benefit in respect of that period by reason of having ceased to be an employee of another rail corporation.

S. 59A inserted by No. 98/1998 s. 14.

59A List of RC staff

(1) Before the relevant date, a rail corporation nominated by the Minister for this purpose must prepare and submit to the Minister a document signed by the chief executive of the RC listing officers and employees of the RC and specifying, in respect of each such officer or employee, the relevant person by which he or she is to be regarded as having been employed by virtue of section 59B with effect from the relevant date.

(2) The document may be amended by instrument signed by the chief executive of the RC and given to the Minister and the amendment is to be regarded as having effect, or having had effect, from the relevant date.

(3) Nothing in this section prevents a person listed in the document as an officer or employee of the RC from resigning or being dismissed at any time before the relevant date in accordance with the terms and conditions of his or her appointment or employment.

S. 59B inserted by No. 98/1998 s. 14.

59B Transfer of RC staff

(1) A person listed as an officer or employee of the RC in a document under section 59A who was such an officer or employee immediately before the relevant date is to be regarded as—

(a) having been employed by the new employer with effect from the relevant date; and

(b) having been so employed on the same terms and conditions as those that applied to the person, immediately before the relevant date, as an officer or employee of the RC; and

(c) having accrued an entitlement to benefits, in connection with that employment by the new employer, that is equivalent to the entitlement that the person had accrued, as an officer or employee of the RC, immediately before the relevant date.

(2) The service of a transferred RC employee as an employee of the new employer is to be regarded for all purposes as having been continuous with the service of the employee, immediately before the relevant date, as an officer or employee of the RC.

(3) A transferred RC employee is not entitled to receive any payment or other benefit by reason only of having ceased to be an officer or employee of the RC because of this Act.

(4) A certificate purporting to be signed by the chief executive of the RC certifying that a person named in the certificate was with effect from the relevant date employed, by virtue of this section, by the person named in the certificate is admissible in evidence in any proceedings and is conclusive proof of the matters stated in it.

S. 59C inserted by No. 98/1998 s. 14.

59C Future terms and conditions of transferred employees

(1) Nothing in section 59B prevents—

(a) any of the terms and conditions of employment of a transferred RC employee from being altered by or under any law, award or agreement with effect from any time after the relevant date; or

(b) a transferred RC employee from transferring to the employment of another relevant person at any time within 6 months after the relevant date on terms and conditions agreed to by the employee and that other relevant person; or

(c) a transferred RC employee from resigning or being dismissed at any time after the relevant date in accordance with the then existing terms and conditions of his or her employment by the new employer.

(2) The service of a transferred RC employee as an employee of another relevant person to which he or she transfers as mentioned in subsection (1)(b) is to be regarded for all purposes as having been continuous with the service of the employee, immediately before the relevant date, as an officer or employee of the RC and with his or her service on or after that date as an employee of the other relevant person mentioned in subsection (1)(b).

(3) A transferred RC employee is not entitled to receive any payment or other benefit by reason only of having ceased to be an employee of a relevant person, being a payment or benefit in respect of a period of service as an officer or employee of the RC, if he or she has received a payment or other benefit in respect of that period by reason of having ceased to be an employee of another relevant person.

Pt 4
(Heading and ss 57–59) substituted as Pt 4
(Heading and s. 60) by No. 104/1997 s. 27, amended by Nos 104/1997 ss 28–30, 47/1998 ss 11, 12, substituted as Pt 4
(Heading and ss 60–80) by No. 98/1998 s. 15.

Part 4—Rail and tram operators

Division 1—Certain powers

S. 60 (Heading) inserted by No. 69/2007 s. 69.

S. 60 substituted by No. 98/1998 s. 15.

60 Person to whom this section applies may require clearance of trees

S. 60(1) substituted by No. 95/2005 s. 10(1).

(1) This section applies if any tree or wood in the vicinity of a railway track operated or maintained by a person to whom this section applies poses a risk to the safety of anyone on, or using, the railway track.

Examples

S. 60(1A) inserted by No. 95/2005 s. 10(1).

(1A) The person may, by written notice, require the owner or occupier of any land on which the tree or wood is situated to fell and remove the tree or wood.

S. 60(2) amended by No. 95/2005 s. 10(2).

(2) Notice under subsection (1A) may be served on an owner or occupier—

(a) personally; or

(b) by sending it by post to the owner or occupier at that person's usual or last known residential or business address; or

(c) by leaving it at the usual or last known residential or business address of the owner or occupier with a person on the premises who is apparently at least 16 years old and apparently residing or employed there; or

(d) in a manner prescribed by any other Act or law for service on a person or class of person of the same type as the owner or occupier; or

(e) if the identity or address of the owner or occupier is not known—

(i) by displaying it on the land; and

(ii) by publishing a copy of it and a description of the land in a newspaper circulating generally in Victoria.

S. 60(3) amended by No. 95/2005 s. 10(2).

(3) In exercising a power under subsection (1A), a person to which this section applies—

S. 60(3)(b)
amended by Nos 61/2011 s. 25(Sch. 2 item 4), 3/2017 s. 50(Sch. 1 item 6.5), 49/2019 s. 186(Sch. 4 item 35.16(a)).

(b) must comply with any directions given by the Secretary or the Head, Transport for Victoria in relation to the exercise of that power.

(4) If the owner or occupier of the land does not comply with the notice within the time specified in the notice, the person which caused the notice to be served may—

(a) enter the land at any reasonable time and carry out the work specified in the notice; and

(b) recover the cost of carrying out the work from the owner or occupier as a debt.

(5) A person to which this section applies may exercise its powers under this section by its officers or employees or by any other person authorised in writing by it or by the officers or employees of any such person.

S. 60(5A) inserted by No. 95/2005 s. 10(3).

(5A) Any person acting under subsection (1A) or (4) may fell or remove any tree or wood that is the subject of a notice under subsection (1A) without the need to obtain a permit under any relevant planning scheme under the Planning and Environment Act 1987, despite anything to the contrary in or under that Act.

(6) This section applies to—

S. 60(6)(a) repealed by No. 63/1999 s. 9(3)(a).

(b) Rail Track;

S. 60(6)(c) amended by No. 63/1999 ss 3(3)(a), 4(3)(a), repealed by No. 63/1999 s. 9(3)(b).

(d) train operators;

(e) a person specified in an Order under subsection (7), subject to any terms and conditions specified in that Order.

S. 60(7) amended by Nos 30/2000 s. 39(3), 61/2011 s. 25(Sch. 1 item 8.5), 3/2017 s. 50(Sch. 1 item 6.6), 49/2019 s. 186(Sch. 4 item 35.16(b)).

(7) The Governor in Council, by Order published in the Government Gazette, may declare that this section applies, on and from a date specified in the Order and subject to any terms and conditions specified in the Order, to a person specified in the Order that is a party to a lease with Rail Track or the Secretary or the Head, Transport for Victoria in relation to any rail infrastructure owned by Rail Track, the Head, Transport for Victoria or the Crown.

S. 60A (Heading) amended by No. 22/2013 s. 65(1).

S. 60A inserted by No. 69/2007 s. 70.

60A Relevant rail transport operator to whom this section applies may clear trees without obtaining permit

(1) This section applies if any tree or wood—

S. 60A(1)(a) amended by No. 22/2013 s. 65(2).

(a) is on land owned or occupied by a relevant rail transport operator; and

S. 60A(1)(b) amended by No. 22/2013 s. 65(2).

(b) is in the vicinity of a railway track operated or maintained by a relevant rail transport operator; and

(c) poses a risk to the safety of anyone on, or using, the railway track.

S. 60A(2) amended by No. 22/2013 s. 65(2).

(2) A relevant rail transport operator may fell and remove the tree or wood without the need to obtain a permit under any relevant planning scheme under the Planning and Environment Act 1987, despite anything to the contrary in or under that Act.

S. 60A(3) def. of relevant rail operator amended as relevant rail transport operator
by No. 22/2013 s. 65(3).

(3) In this section—

relevant rail transport operator means a person specified in section 60(6).

S. 61 substituted by No. 98/1998 s. 15.

61 No obligation to fence

(1) Despite any Act or rule of law to the contrary, a person to which this section applies—

(a) is not required to fence or contribute to the fencing of any portion of a railway or tramway; and

(b) is not liable for any damage that may be caused by reason of any railway or tramway not being fenced in or fenced off.

(2) A person to which this section applies may, but is not obliged to, erect and maintain such fences in connection with a railway or tramway as it thinks proper.

S. 61(3)(a) repealed by No. 63/1999 s. 9(3)(c).

S. 61(3)(b) repealed by No. 63/1999 s. 7(3)(a).

S. 61(3)(d) amended by No. 63/1999 ss 3(3)(b), 4(3)(b), repealed by No. 63/1999 s. 9(3)(d), new s. 61(3)(d) inserted by No. 34/2003 s. 15(b), substituted by No. 6/2010 s. 200(3)
(Sch. 4 item 4.1) (as amended by No. 45/2010 s. 19).

S. 61(3)(e) amended by No. 63/1999 ss 5(3)(a), 6(3)(a), repealed by No. 63/1999 s. 9(3)(e).

S. 61(3)(ea) inserted by No. 45/1999 s. 12(1), amended by No. 95/2005 s. 9(2)(e), repealed by No. 26/2009 s. 7(5).

(h) a person specified in an Order under subsection (4), subject to any terms and conditions specified in that Order.

(4) The Governor in Council, by Order published in the Government Gazette, may declare that this section applies, on and from a date specified in the Order and subject to any terms and conditions specified in the Order, to a person specified in the Order that—

S. 61(4)(a) amended by Nos 61/2011 s. 25(Sch. 1 item 8.6), 3/2017 s. 50(Sch. 1 item 6.7), 49/2019 s. 186(Sch. 4 item 35.17(a)).

(a) is a party to a contract with the Secretary or the Head, Transport for Victoria for the provision by that person of a passenger service; or

S. 61(4)(b) amended by Nos 54/2001 s. 31, 61/2011 s. 25(Sch. 1 item 8.7), 3/2017 s. 50(Sch. 1 item 6.7), 49/2019 s. 186(Sch. 4 item 35.17(b)).

(b) is a party to a lease with Rail Track, the Secretary or the Head, Transport for Victoria in relation to any rail infrastructure or tram infrastructure owned by Rail Track, the Head, Transport for Victoria or the Crown.

S. 62 substituted by No. 98/1998 s. 15.

62 Power to break up roads, etc.

S. 62(1) amended by No. 12/2004 s. 174(1).

(1) Subject to the Road Management Act 2004, a person to which this section applies—

(a) may open and break up, and divert traffic from, any road on or adjacent to which there is rail infrastructure or tram infrastructure that is operated or maintained by that person; and

(b) may take possession of, and use, the whole or any portion of such a road.

S. 62(2)(b)
amended by Nos 61/2011 s. 25(Sch. 2 item 4), 3/2017 s. 50(Sch. 1 item 6.5), 49/2019 s. 186(Sch. 4 item 35.18(a)).

(b) must comply with any directions given by the Secretary or the Head, Transport for Victoria in relation to the exercise of that power.

S. 62(2A) inserted by No. 12/2004 s. 174(2), amended by Nos 61/2011 s. 25(Sch. 2 item 4), 3/2017 s. 50(Sch. 1 item 6.5), 49/2019 s. 186(Sch. 4 item 35.18(a)).

(2A) A direction given by the Secretary or the Head, Transport for Victoria under this section must not be inconsistent with the Road Management Act 2004.

S. 62(2B) inserted by No. 12/2004 s. 174(2).

(3) A person to which this section applies may exercise its powers under this section by its officers or employees or by any other person authorised in writing by it or by the officers or employees of any such person.

S. 62(4)(a) repealed by No. 63/1999 s. 9(3)(f).

S. 62(4)(b) repealed by No. 63/1999 s. 7(3)(b).

S. 62(4)(d) amended by No. 63/1999 ss 3(3)(c), 4(3)(c), repealed by No. 63/1999 s. 9(3)(g), new s. 62(4)(d) inserted by No. 34/2003 s. 15(b), substituted by No. 6/2010 s. 200(3)
(Sch. 4 item 4.2) (as amended by No. 45/2010 s. 19).

S. 62(4)(e) amended by No. 63/1999 ss 5(3)(b), 6(3)(b), repealed by No. 63/1999 s. 9(3)(h).

S. 62(4)(ea) inserted by No. 45/1999 s. 12(2), amended by No. 95/2005 s. 9(2)(e), repealed by No. 26/2009 s. 7(5).

(h) a person specified in an Order under subsection (5), subject to any terms and conditions specified in that Order.

(5) The Governor in Council, by Order published in the Government Gazette, may declare that this section applies, on and from a date specified in the Order and subject to any terms and conditions specified in the Order, to a person specified in the Order that—

S. 62(5)(a) amended by Nos 61/2011 s. 25(Sch. 1 item 8.8), 3/2017 s. 50(Sch. 1 item 6.7), 49/2019 s. 186(Sch. 4 item 35.18(b)).

(a) is a party to a contract with the Secretary or the Head, Transport for Victoria for the provision by that person of a passenger service; or

S. 62(5)(b) amended by Nos 30/2000 s. 39(4), 61/2011 s. 25(Sch. 1 item 8.9), 3/2017 s. 50(Sch. 1 item 6.6), 49/2019 s. 186(Sch. 4 item 35.18(c)).

(b) is a party to a lease with Rail Track or the Secretary or the Head, Transport for Victoria in relation to any rail infrastructure or tram infrastructure owned by Rail Track, the Head, Transport for Victoria or the Crown.

S. 63 substituted by No. 98/1998 s. 15.

63 Power to install stopping places, etc.

S. 63(1) amended by No. 12/2004 s. 174(3).

(1) Subject to the Road Management Act 2004, a person to which this section applies may install, remove or re-locate stopping places and associated facilities for passenger services on any road on or adjacent to which there is tram infrastructure that is operated or maintained by that person.

S. 63(2)(b) amended by Nos 61/2011 s. 25(Sch. 2 item 4), 3/2017 s. 50(Sch. 1 item 6.5), 49/2019 s. 186(Sch. 4 item 35.19(a)).

(b) must comply with any directions given by the Secretary or the Head, Transport for Victoria in relation to the exercise of that power.

S. 63(2A) inserted by No. 12/2004 s. 174(4), amended by Nos 61/2011 s. 25(Sch. 2 item 4), 3/2017 s. 50(Sch. 1 item 6.5), 49/2019 s. 186(Sch. 4 item 35.19(a)).

(2A) A direction given by the Secretary or the Head, Transport for Victoria under this section must not be inconsistent with the Road Management Act 2004.

S. 63(2B) inserted by No. 12/2004 s. 174(4).

(3) A person to which this section applies may exercise its powers under this section by its officers or employees or by any other person authorised in writing by it or by the officers or employees of any such person.

(a) Rail Track;

S. 63(4)(b) amended by No. 63/1999 ss 5(3)(c), 6(3)(c), repealed by No. 63/1999 s. 9(3)(i).

(c) tram operators;

(d) a person specified in an Order under subsection (5), subject to any terms and conditions specified in that Order.

(5) The Governor in Council, by Order published in the Government Gazette, may declare that this section applies, on and from a date specified in the Order and subject to any terms and conditions specified in the Order, to a person specified in the Order that—

S. 63(5)(a) amended by Nos 61/2011 s. 25(Sch. 1 item 8.10), 3/2017 s. 50(Sch. 1 item 6.7), 49/2019 s. 186(Sch. 4 item 35.19(b)).

(a) is a party to a contract with the Secretary or the Head, Transport for Victoria for the provision by that person of a passenger service; or

S. 63(5)(b) amended by Nos 30/2000 s. 39(5), 61/2011 s. 25(Sch. 1 item 8.11), 3/2017 s. 50(Sch. 1 item 6.6), 49/2019 s. 186(Sch. 4 item 35.19(c)).

(b) is a party to a lease with Rail Track or the Secretary or the Head, Transport for Victoria in relation to any tram infrastructure owned by Rail Track, the Head, Transport for Victoria or the Crown.

S. 64

64 Level crossings

(1) Despite anything to the contrary in any other Act or law, a person to which this section applies—

S. 64(1)(a) amended by Nos 54/2001 s. 32, 61/2011 s. 25(Sch. 1 item 8.12), 3/2017 s. 50(Sch. 1 item 6.8), 49/2019 s. 186(Sch. 4 item 35.20(a)).

(a) may use level crossings connecting parts of the rail infrastructure or tram infrastructure to which an agreement, lease or licence relating to, or connected with, a service provided by that person applies (being an agreement, lease or licence between that person and Rail Track or that person and the Head, Transport for Victoria or that person and the Crown) subject to and in accordance with that agreement, lease or licence; and

(b) may close the level crossing to road traffic while the railway track or tramway track is in use, subject to and in accordance with that agreement, lease or licence.

S. 64(2)(a) repealed by No. 63/1999 s. 9(3)(j).

S. 64(2)(b) repealed by No. 63/1999 s. 7(3)(c).

S. 64(2)(d) amended by No. 63/1999 ss 3(3)(d), 4(3)(d), repealed by No. 63/1999 s. 9(3)(k), new s. 64(2)(d) inserted by No. 34/2003 s. 15(b), substituted by No. 6/2010 s. 200(3)
(Sch. 4 item 4.3) (as amended by No. 45/2010 s. 19).

S. 64(2)(e) amended by No. 63/1999 ss 5(3)(d), 6(3)(d), repealed by No. 63/1999 s. 9(3)(l).

(h) a person specified in an Order under subsection (3), subject to any terms and conditions specified in that Order;

S. 64(2)(i) amended by Nos 63/1999 ss 7(3)(d), 9(3)(m)–(o), 34/2003 s. 15(c).

(i) a person authorised, in accordance with the agreement, lease or licence referred to in subsection (1), by a person referred to in paragraph (c), (d), (f), (g) or (h) to exercise a power conferred on the authorising person by this section, subject to any terms and conditions specified in the authorisation.

(3) The Governor in Council, by Order published in the Government Gazette, may declare that this section applies, on and from a date specified in the Order and subject to any terms and conditions specified in the Order, to a person specified in the Order that—

S. 64(3)(a) amended by Nos 61/2011 s. 25(Sch. 1 item 8.13), 3/2017 s. 50(Sch. 1 item 6.7), 49/2019 s. 186(Sch. 4 item 35.20(b)).

(a) is a party to a contract with the Secretary or the Head, Transport for Victoria for the provision by that person of a passenger service; or

S. 64(3)(b) amended by Nos 30/2000 s. 39(6), 61/2011 s. 25(Sch. 1 item 8.14), 3/2017 s. 50(Sch. 1 item 6.6), 49/2019 s. 186(Sch. 4 item 35.20(c)).

(b) is a party to a lease with Rail Track or the Secretary or the Head, Transport for Victoria in relation to any rail infrastructure or tram infrastructure owned by Rail Track or the Crown.

S. 65

65 Tram infrastructure

S. 65(1) amended by Nos 54/2001 s. 33, 61/2011 s. 25(Sch. 1 item 8.15), 3/2017 s. 50(Sch. 1 item 6.8), 49/2019 s. 186(Sch. 4 item 35.21(a)).

(1) Despite anything to the contrary in any other Act or law, a person to which this section applies may use tram infrastructure to which an agreement, lease or licence relating to, or connected with, a passenger service provided by that person applies (being an agreement, lease or licence between that person and Rail Track or that person and the Head, Transport for Victoria or that person and the Crown) subject to and in accordance with that agreement, lease or licence.

S. 65(2)(a) amended by No. 63/1999 ss 5(3)(e), 6(3)(e), repealed by No. 63/1999 s. 9(3)(p).

(c) a person specified in an Order under subsection (3), subject to any terms and conditions specified in that Order;

S. 65(2)(d) amended by No. 63/1999 s. 9(3)(q).

(d) a person authorised, in accordance with the agreement, lease or licence referred to in subsection (1), by a person referred to in paragraph (b) or (c) to exercise a power conferred on the authorising person by this section, subject to any terms and conditions specified in the authorisation.

(3) The Governor in Council, by Order published in the Government Gazette, may declare that this section applies, on and from a date specified in the Order and subject to any terms and conditions specified in the Order, to a person specified in the Order that—

S. 65(3)(a) amended by Nos 61/2011 s. 25(Sch. 1 item 8.16), 3/2017 s. 50(Sch. 1 item 6.7), 49/2019 s. 186(Sch. 4 item 35.21(b)).

(a) is a party to a contract with the Secretary or the Head, Transport for Victoria for the provision by that person of a passenger service; or

S. 65(3)(b) amended by Nos 30/2000 s. 39(7), 61/2011 s. 25(Sch. 1 item 8.17), 3/2017 s. 50(Sch. 1 item 6.6), 49/2019 s. 186(Sch. 4 item 35.21(c)).

(b) is a party to a lease with Rail Track or the Secretary or the Head, Transport for Victoria in relation to any tram infrastructure owned by Rail Track, the Head, Transport for Victoria or the Crown.

S. 66

66 Overhead power supply

S. 66(1) amended by No. 12/2004 s. 174(5)(a)(b), 49/2019 s. 186(Sch. 4 item 35.22(a)).

(1) Subject to the Road Management Act 2004, a person to which this section applies may install, remove or relocate rail infrastructure or tram infrastructure consisting of structures comprising or supporting overhead electrical power supply systems situated on or over, or partly on or over, property of the Head, Transport for Victoria or the municipal council.

S. 66(2)(b)
amended by Nos 61/2011 s. 25(Sch. 2 item 4), 3/2017 s. 50(Sch. 1 item 6.5), 49/2019 s. 186(Sch. 4 item 35.22(b)).

(b) must comply with any directions given by the Secretary or the Head, Transport for Victoria in relation to the exercise of that power.

S. 66(2A) inserted by No. 12/2004 s. 174(6), amended by Nos 61/2011 s. 25(Sch. 2 item 4), 3/2017 s. 50(Sch. 1 item 6.5), 49/2019 s. 186(Sch. 4 item 35.22(b)).

(2A) A direction given by the Secretary or the Head, Transport for Victoria under this section must not be inconsistent with the Road Management Act 2004.

S. 66(2B) inserted by No. 12/2004 s. 174(6).

(3) A person to which this section applies may exercise its powers under this section by its officers or employees or by any other person authorised in writing by it or by the officers or employees of any such person.

S. 66(4)(a) amended by No. 63/1999 ss 3(3)(e), 4(3)(e), repealed by No. 63/1999 s. 9(3)(r).

S. 66(4)(b) amended by No. 63/1999 ss 5(3)(f), 6(3)(f), repealed by No. 63/1999 s. 9(3)(s).

(c) train operators;

(d) tram operators;

(e) a person specified in an Order under subsection (5), subject to any terms and conditions specified in that Order.

(5) The Governor in Council, by Order published in the Government Gazette, may declare that this section applies, on and from a date specified in the Order and subject to any terms and conditions specified in the Order, to a person specified in the Order that—

S. 66(5)(a) amended by Nos 61/2011 s. 25(Sch. 1 item 8.18), 3/2017 s. 50(Sch. 1 item 6.7), 49/2019 s. 186(Sch. 4 item 35.22(c)).

(a) is a party to a contract with the Secretary or the Head, Transport for Victoria for the provision by that person of a passenger service; or

S. 66(5)(b) amended by Nos 30/2000 s. 39(8) 61/2011 s. 25(Sch. 1 item 8.19), 3/2017 s. 50(Sch. 1 item 6.6), 49/2019 s. 186(Sch. 4 item 35.22(d)).

(b) is a party to a lease with Rail Track or the Secretary or the Head, Transport for Victoria in relation to any rail infrastructure or tram infrastructure owned by Rail Track, the Head, Transport for Victoria or the Crown.

S. 67

67 Power to stop traffic

S. 67(1) amended by Nos 54/2001 s. 34(a), 12/2004 s. 174(7)(a), 61/2011 s. 25(Sch. 1 item 8.20), 3/2017 s. 50(Sch. 1 item 6.8), 49/2019 s. 186(Sch. 4 item 35.23(a)).

(1) Subject to the Road Management Act 2004, a person to which this section applies, subject to the agreement, lease or licence relating to, or connected with, its provision of a service or to a lease of rail infrastructure or tram infrastructure (being an agreement, lease or licence between that person and Rail Track or that person and the Head, Transport for Victoria or that person and the Crown)—

S. 67(1)(a) amended by No. 12/2004 s. 174(7)(b).

(a) may stop traffic in circumstances where it is reasonably necessary to do so;

(b) in an emergency, may stop traffic.

S. 67(2)(b)
amended by Nos 61/2011 s. 25(Sch. 2 item 4), 3/2017 s. 50(Sch. 1 item 6.5), 49/2019 s. 186(Sch. 4 item 35.23(b)).

(b) must comply with any directions given by the Secretary or the Head, Transport for Victoria in relation to the exercise of that power.

S. 67(2A) inserted by No. 12/2004 s. 174(8), amended by Nos 61/2011 s. 25(Sch. 2 item 4), 3/2017 s. 50(Sch. 1 item 6.5), 49/2019 s. 186(Sch. 4 item 35.23(b)).

(2A) A direction given by the Secretary or the Head, Transport for Victoria under this section must not be inconsistent with the Road Management Act 2004.

S. 67(2B) inserted by No. 12/2004 s. 174(8).

S. 67(3)(a) repealed by No. 63/1999 s. 9(3)(t).

S. 67(3)(b) repealed by No. 63/1999 s. 7(3)(e).

S. 67(3)(d) amended by No. 63/1999 ss 3(3)(f), 4(3)(f), repealed by No. 63/1999 s. 9(3)(u), new s. 67(3)(d) inserted by No. 34/2003 s. 15(b), substituted by No. 6/2010 s. 200(3) (Sch. 4 item 4.4) (as amended by No. 45/2010 s. 19).

S. 67(3)(e) amended by No. 63/1999 ss 5(3)(g), 6(3)(g), repealed by No. 63/1999 s. 9(3)(v).

(h) a person specified in an Order under subsection (4), subject to any terms and conditions specified in that Order;

S. 67(3)(i) amended by Nos 63/1999 ss 7(3)(f), 9(3)(w)–(y), 34/2003 s. 15(c).

(i) a person authorised, in accordance with the agreement, lease or licence referred to in subsection (1), by a person referred to in paragraph (c), (d), (f), (g) or (h) to exercise a power conferred on the authorising person by this section, subject to any terms and conditions specified in the authorisation.

(4) The Governor in Council, by Order published in the Government Gazette, may declare that this section applies, on and from a date specified in the Order and subject to any terms and conditions specified in the Order, to a person specified in the Order that—

S. 67(4)(a) amended by Nos 61/2011 s. 25(Sch. 1 item 8.21), 3/2017 s. 50(Sch. 1 item 6.7), 49/2019 s. 186(Sch. 4 item 35.23(c)).

(a) is a party to a contract with the Secretary or the Head, Transport for Victoria for the provision by that person of a passenger service; or

S. 67(4)(b) amended by Nos 54/2001 s. 34(b), 61/2011 s. 25(Sch. 1 item 8.22), 3/2017 s. 50(Sch. 1 item 6.6), 49/2019 s. 186(Sch. 4 item 35.23(d)).

(b) is a party to a lease with Rail Track or the Secretary or the Head, Transport for Victoria in relation to any rail infrastructure or tram infrastructure owned by Rail Track, the Head, Transport for Victoria or the Crown.

Pt 4 Div. 1A (Heading) amended by Nos 3/2017 s. 50(Sch. 1 item 6.9), 49/2019 s. 186(Sch. 4 item 35.24).

Pt 4 Div. 1A (Heading and ss 67A–67I) inserted by No. 61/2011 s. 21.

Division 1A—Powers of the Secretary and the Head, Transport for Victoria

S. 67A inserted by No. 61/2011 s. 21.

67A Clearance of trees or wood

S. 67A(1) amended by Nos 3/2017 s. 50(Sch. 1 item 6.10), 49/2019 s. 186(Sch. 4 item 35.25(a)).

(1) This section applies if any tree or wood in the vicinity of a railway track operated or maintained by the Secretary on behalf of the Crown or the Head, Transport for Victoria poses a risk to the safety of anyone on, or using, the railway track.

Examples

S. 67A(2)
amended by Nos 3/2017 s. 50(Sch. 1 item 6.5), 49/2019 s. 186(Sch. 4 item 35.25(b)).

(2) The Secretary or the Head, Transport for Victoria may by written notice require the owner or occupier of any land on which the tree or wood is situated to fell and remove the tree or wood.

(3) Notice under subsection (2) may be served on an owner or occupier—

(a) personally; or

(b) by sending it by post to the owner or occupier at that person's usual or last known residential or business address; or

(c) by leaving it at the usual or last known residential or business address of the owner or occupier with a person on the premises who is apparently at least 16 years old and apparently residing or employed there; or

(d) in a manner prescribed by any other Act or law for service on a person or class of person of the same type as the owner or occupier; or

(e) if the identity or address of the owner or occupier is not known—

(i) by displaying it on the land; and

(ii) by publishing a copy of it and a description of the land in a newspaper circulating generally in Victoria.

S. 67A(4)
amended by Nos 3/2017 s. 50(Sch. 1 item 6.5), 49/2019 s. 186(Sch. 4 item 35.25
(c)(i)(ii)).

(4) If the owner or occupier of the land does not comply with the notice within the time specified in the notice, the Secretary or the Head, Transport for Victoria may—

(a) enter the land at any reasonable time and carry out the work specified in the notice; and

S. 67A(4)(b) amended by No. 49/2019 s. 186(Sch. 4 item 35.25
(c)(iii)).

(b) recover the cost of carrying out the work from the owner or occupier as a debt.

(5) Any person acting under subsection (2) or (4) may fell or remove any tree or wood that is the subject of a notice under subsection (2) without the need to obtain a permit under any relevant planning scheme under the Planning and Environment Act 1987, despite anything to the contrary in or under that Act.

S. 67B inserted by No. 61/2011 s. 21.

67B No obligation to fence

S. 67B(1) amended by Nos 3/2017 s. 50(Sch. 1 item 6.7), 49/2019 s. 186(Sch. 4 item 35.26(a)).

(1) Despite any Act or rule of law to the contrary, the Secretary, the Head, Transport for Victoria and the Crown are not—

(a) required to fence or contribute to the fencing of any portion of a railway or tramway;

(b) liable for any damage that may be caused by reason of any railway or tramway not being fenced in or fenced off.

S. 67B(2) amended by Nos 3/2017 s. 50(Sch. 1 item 6.11), 49/2019 s. 186(Sch. 4 item 35.26(b)).

(2) The Secretary on behalf of the Crown or the Head, Transport for Victoria may, but are not obliged to, erect and maintain such fences in connection with a railway or tramway as the Secretary on behalf of the Crown or the Head, Transport for Victoria thinks proper.

S. 67C inserted by No. 61/2011 s. 21, amended by Nos 3/2017 s. 50(Sch. 1 item 6.11), 49/2019 s. 186(Sch. 4 item 35.27).

67C Power to open and break up roads and divert traffic

Subject to the Road Management Act 2004, the Secretary on behalf of the Crown or the Head, Transport for Victoria may—

S. 67C(a) amended by Nos 3/2017 s. 50(Sch. 1 item 6.11), 49/2019 s. 186(Sch. 4 item 35.27).

(a) open and break up, and divert traffic from, any public road within the meaning of the Road Management Act 2004 on or adjacent to which there is rail infrastructure or tram infrastructure that is operated or maintained by the Secretary on behalf of the Crown or the Head, Transport for Victoria; and

(b) take possession of, and use, the whole or any portion of that public road.

S. 67D inserted by No. 61/2011 s. 21, amended by Nos 3/2017 s. 50(Sch. 1 item 6.11), 49/2019 s. 186(Sch. 4 item 35.28).

67D Power to install stopping places and associated facilities

Subject to the Road Management Act 2004, the Secretary on behalf of the Crown or the Head, Transport for Victoria may install, remove or re-locate stopping places and associated facilities for passenger services on any public road within the meaning of the Road Management Act 2004 on or adjacent to which there is tram infrastructure that is operated or maintained by the Secretary on behalf of the Crown or the Head, Transport for Victoria.

S. 67E inserted by No. 61/2011 s. 21.

67E Level crossings

Despite anything to the contrary in any other Act or law—

S. 67E(a) amended by Nos 3/2017 s. 50(Sch. 1 item 6.11), 49/2019 s. 186(Sch. 4 item 35.29).

(a) the Secretary on behalf of the Crown or the Head, Transport for Victoria may use level crossings connecting parts of the rail infrastructure or tram infrastructure that is operated or maintained by the Secretary on behalf of the Crown or the Head, Transport for Victoria;

S. 67E(b) amended by Nos 3/2017 s. 50(Sch. 1 item 6.11), 49/2019 s. 186(Sch. 4 item 35.29).

(b) the Secretary on behalf of the Crown or the Head, Transport for Victoria may close the level crossing to road traffic while the railway track or tramway track is in use.

S. 67F inserted by No. 61/2011 s. 21.

67F Tram infrastructure

S. 67F(1) amended by Nos 3/2017 s. 50(Sch. 1 item 6.11), 49/2019 s. 186(Sch. 4 item 35.30(a)).

(1) Despite anything to the contrary in any other Act or law, the Secretary on behalf of the Crown or the Head, Transport for Victoria may use tram infrastructure that is operated or maintained by the Secretary on behalf of the Crown or the Head, Transport for Victoria.

(2) Nothing in this section is to be taken as limiting any other power of—

(a) the Secretary, including the Secretary's powers under section 34(2A) of the Transport Integration Act 2010; or

S. 67F(2)(aa) inserted by No. 3/2017 s. 50(Sch. 1 item 6.12), amended by No. 49/2019 s. 186(Sch. 4 item 35.30
(b)(i)).

(aa) the Head, Transport for Victoria.

S. 67F(2)(b) repealed by No. 49/2019 s. 186(Sch. 4 item 35.30
(b)(ii)).

S. 67G inserted by No. 61/2011 s. 21, amended by Nos 3/2017 s. 50(Sch. 1 item 6.11), 49/2019 s. 186(Sch. 4 item 35.31).

67G Overhead power supply

Subject to the Road Management Act 2004, the Secretary on behalf of the Crown or the Head, Transport for Victoria may install, remove or relocate rail infrastructure or tram infrastructure consisting of structures comprising or supporting overhead electrical power supply systems situated on or over, or partly on or over, property of the municipal council.

S. 67H inserted by No. 61/2011 s. 21, amended by Nos 3/2017 s. 50(Sch. 1 item 6.13), 49/2019 s. 186(Sch. 4 item 35.32).

67H Power to stop traffic

Subject to the Road Management Act 2004, the Secretary or the Head, Transport for Victoria, subject to the agreement, lease or licence relating to, or connected with, the provision of a service or to a lease of rail infrastructure or tram infrastructure (being an agreement, lease or licence between the Secretary on behalf of the Crown and Rail Track or the Head, Transport for Victoria and Rail Track)—

(a) may stop traffic in circumstances where it is reasonably necessary to do so; or

(b) in an emergency, may stop traffic.

S. 67I
inserted by No. 61/2011 s. 21.

67I Exercise of powers

(1) In exercising a power under section 67A, 67C, 67D, 67E, 67F(1), 67G or 67H, the Secretary must act reasonably under the direction of the Minister.

(2) A power of the Secretary under a section referred to in subsection (1) may be exercised by—

(a) the Secretary personally; or

(b) any other person who is authorised in writing by the Secretary; or

(c) any officer or employee of a person referred to in paragraph (b).

S. 67I(2A) inserted by No. 3/2017 s. 50(Sch. 1 item 6.14).

(2A) In exercising a power under section 67A, 67C, 67D, 67E, 67F(1), 67G or 67H, the Head, Transport for Victoria must act reasonably under the direction of the Minister.

S. 67I(2B) inserted by No. 3/2017 s. 50(Sch. 1 item 6.14).

(2B) A power of the Head, Transport for Victoria under a section referred to in subsection (2A) may be exercised by—

(a) the Head, Transport for Victoria personally; or

(b) any other person who is authorised in writing by the Head, Transport for Victoria; or

(c) any officer or employee of a person referred to in paragraph (b).

S. 67I(3)(4) repealed by No. 49/2019 s. 186(Sch. 4 item 35.33(a)).

S. 67I(5) substituted by No. 3/2017 s. 50(Sch. 1 item 6.15), amended by No. 49/2019 s. 186(Sch. 4 item 35.33(b)).

(5) Despite anything to the contrary in this Division, where a power is conferred on the Secretary and the Head, Transport for Victoria, the Minister may direct that in a particular case the power is to be exercised only by the Secretary or the Head, Transport for Victoria as specified in the direction.

Pt 4 Div. 1B (Headings and ss 67J–67ZC) inserted by No. 41/2020 s. 7.

Division 1B—Private crossings

Subdivision 1—Preliminary

S. 67J inserted by No. 41/2020 s. 7.

67J Definitions

corresponding previous enactment means—

(a) section 36 of the Lands Compensation Statute 1869; and

(b) section 36 of the Lands Compensation Act 1890; and

(c) section 36 of the Lands Compensation Act 1915; and

(d) section 36 of the Lands Compensation Act 1928; and

(e) section 36 of the Lands Compensation Act 1958;

notice of closure means a notice referred to in section 67Q;

notice of intention to close means a notice referred to in section 67M;

private crossing means a gate, bridge, easement, road, right‑of‑way, crossing, passage or work—

(a) that provides access to private land over a railway track; and

(b) that is on land on which the railway track is situated—

but does not include a public highway or public road (within the meaning of the Road Management Act 2004);

private crossing adjoining land means land adjoining land on which a private crossing is situated;

private crossing right means any right to use or have maintained a private crossing arising from or by reason of the giving of a notice to a person under section 43(2) of the Land Acquisition and Compensation Act 1986 or any corresponding previous enactment;

transport system has the same meaning as in section 3 of the Transport Integration Act 2010.

S. 67K inserted by No. 41/2020 s. 7.

67K Modification of Land Acquisition and Compensation Act 1986—general

Section 3(3) of the Land Acquisition and Compensation Act 1986 does not apply to the extent that this Division is inconsistent with that Act.

Subdivision 2—Private crossing closures

S. 67L inserted by No. 41/2020 s. 7.

67L Secretary may close private crossings

The Secretary may close a private crossing in accordance with this Subdivision if the Secretary considers it necessary or desirable for the management or development of the transport system.

S. 67M inserted by No. 41/2020 s. 7.

67M Notice of intention to close

If the Secretary intends to close a private crossing, the Secretary must serve a notice of intention to close on—

(a) any owner of private crossing adjoining land that the Secretary, after diligent inquiry, believes may have a private crossing right in relation to the private crossing; and

(b) if the owner and occupier of any private crossing adjoining land are not the same person, any occupier of private crossing adjoining land that the Secretary, after diligent inquiry, believes may have a private crossing right in relation to the private crossing; and

(c) any other person with an interest in the private crossing adjoining land in relation to the private crossing of whom the Secretary is aware.

S. 67N inserted by No. 41/2020 s. 7.