(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).