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Transport Integration Bill 2009
Introduction Print
EXPLANATORY MEMORANDUM1
General
The Transport Integration Bill 2009 (the Bill) establishes a new framework
for the provision of an integrated and sustainable transport system in
Victoria.
The Bill does this by setting out a contemporary policy framework in law
which includes--
· a vision statement;
· transport system objectives; and
· decision making principles.
Diagram 1 below summarises the policy framework--
NEW POLICY FRAMEWORK FOR TRANSPORT
Vision: an integrated and sustainable transport system that contributes to
an inclusive, prosperous and environmentally responsible State.
Transport system objectives:
· social and economic inclusion
· economic prosperity
· environmental sustainability
· integration of transport and land use
· efficiency, coordination and reliability
· safety and health and wellbeing.
Decision making principles:
· principle of integrated decision making
· principle of triple bottom line assessment
· principle of equity
· principle of the transport system user perspective
· precautionary principle
· principle of stakeholder engagement and community participation
· principle of transparency.
561223 1 BILL LA INTRODUCTION 7/12/2009
Modern transport legislation is a crucial step in meeting the major transport
challenges facing Victoria and supporting the State's current and future
transport priorities.
For the first time in Victoria, the Bill establishes a policy framework in
legislation which applies to the entire transport portfolio. The framework
provides a common direction for transport across the State, underpinned by
contemporary policy, regulatory and operational settings.
The Bill's core focus is integration and sustainability. It supports the delivery
of a transport system in which each part of the system works as part of an
integrated and sustainable whole.
With this common vision, transport decision-makers will be charged with
seeking to achieve the broader social, environmental and economic outcomes
the community wants from its transport system.
Crucially, the Bill highlights the importance of the integration of transport
and land use. It also supports a collaborative approach in the planning and
development of our transport system.
The Bill recognises that an integrated and sustainable transport system is
critical for an inclusive, prosperous and environmentally responsible
Victoria.
The Victorian Transport Plan
The Victorian Transport Plan (VTP) is the Government's $38 billion program
of action to modernise and increase the capacity of our transport system over
the next decade and beyond.
The vision for an integrated and sustainable transport system that contributes
to a prosperous, inclusive, and environmentally responsible Victoria is
enshrined in law by this landmark Bill and is strongly supported by the
unprecedented investment in the transport system set out in the VTP.
As noted in the VTP--
The Transport Integration Bill will set a strong new direction for
transport policy and legislation in Victoria, aimed at building an
integrated and sustainable transport network. It will establish new
overarching principles to provide transport decision-makers with a
clear legislative framework and enable more effective planning and
coordination of transport services, as well as consolidate existing
legislation and remove duplicate and redundant provisions
(page 146).
The Bill guides long term planning in the portfolio, including future revisions
of the VTP.
2
A new central statute for transport in Victoria
This new principal transport statute presents an historic opportunity to
refocus our policy and legislative settings to facilitate the delivery of an
integrated and sustainable transport system.
The Bill largely replaces the Transport Act 1983. Among the limitations of
the current legislative arrangements for transport, including those in the
Transport Act--
· There is no clear vision for the transport system.
· There is minimal guidance about social policy objectives.
· Environmental objectives are barely mentioned, particularly in
the Transport Act.
· Transport bodies are established under different statutes and
have different objectives which do not connect to a single and
contemporary policy framework.
· Some decision-makers who can influence transport outcomes
are neither established in, nor recognised by, the Transport Act.
Diagram 2 highlights some of these shortcomings. It depicts the Transport
Act 1983 at the centre of a legislative structure which lacks a policy theme.
In particular, the Transport Act is predominantly a land transport Act, while
the ports and marine sectors are currently governed by discrete subject-
specific Acts. Despite facing common challenges, land and water-based
transport in Victoria are not governed by a single overarching statute.
The current structure also lacks connection with key non-transport legislation
which has important impacts on transport in Victoria.
3
Diagram 2
Victoria is leading the nation by developing modern transport legislation that
strongly supports a clear vision for an integrated and sustainable transport
system.
Diagram 3 sets out the target structure for Victoria's transport legislation.
The new framework represents major policy driven renewal and restructure
of the current framework. Achieving the settings outlined in the structure
establishes clearer directional accountabilities for all those involved in the
planning, delivery, management and regulation of transport services and
infrastructure in Victoria.
4
The structure depicts the connecting of ports and water-based transport
settings with those for land transport. This is the first time that Victoria will
have legislation integrating all of its transport components. The structure
also depicts newly established connections to key transport related land use
legislation such as the Planning and Environment Act 1987 and the Local
Government Act 1989.
Diagram 3
5
The Transport Integration Bill
The Transport Integration Bill has two major components--
· The new policy framework for an integrated and sustainable
transport system.
· The establishment of transport bodies and their alignment to
the new policy framework.
These components combine to bring the entire transport system together.
The purpose--an integrated and sustainable transport system for
Victoria
The purpose of the Bill is to create a new framework for the provision of an
integrated and sustainable transport system in Victoria consistent with the
vision statement. This is set out in Part 1 of the Bill, in addition to
preliminary matters such as definitions. It is intended that the vision
statement, objectives and decision making principles provided in the Bill
directs, and supports, the establishment of an integrated and sustainable
transport system.
Integration
The different parts of the transport system must operate together as far as
possible as a seamless system to achieve transport integration.
The Bill recognises that we have one transport system in Victoria to move
people and goods--and that we must set policy, make decisions and manage
this one system in an integrated way.
The Bill recognises that transport planning and land use planning are two
sides of the same coin. Land use decisions determine existing and future
transport needs, and transport decisions can alter land use patterns.
For example, the location of housing and businesses affects levels of travel to
and from those locations. Building new transport infrastructure or providing
new transport services may also increase demand for housing or commercial
development in particular areas.
A successful transport system relies on optimal arrangements for the location
of activities and populations, to support prosperous and sustainable
communities linked by high quality transport services. Such communities
rely on an integrated transport system to provide a range of transport options,
together with land use patterns that maximise access to transport as well as
other services, goods and activities--for example, through building housing
close to areas of employment.
6
Environmental, social and economic outcomes all rely on transport and land
use being integrated.
Interface bodies are also identified by the Bill. Though these are not
transport agencies located in the transport portfolio itself, the Bill for the first
time explicitly acknowledges the important role of non-transport agencies in
creating an effective transport system.
Agencies that plan for the development of our State--such as local
government, land managers, VicUrban, the Growth Areas Authority and
Parks Victoria--are listed as interface bodies under the Bill. Similarly, the
legislation under which these bodies perform their functions is declared
interface legislation and directed toward the new policy framework.
This is a key aspect of this reform. The interface bodies are required to have
regard to the vision, objectives and decision making principles when their
decisions are likely to have a significant impact on the transport system.
The Bill creates a common platform so a more integrated and coordinated
effort can be built across many areas of government as a means of creating an
even better transport system for Victorians.
Sustainability
The transport system needs to be planned, operated and managed so that it is
sustainable.
A sustainable transport system works to secure ongoing economic, social and
environmental benefits for the State.
A transport system needs to support social outcomes by being inclusive and
providing access to economic and social opportunities. It enables people to
get to their jobs and visit their families and friends. The system can also
support the health and wellbeing of individuals and communities, for
example, by encouraging walking and cycling.
A transport system needs to support prosperity through efficient and effective
access to jobs, markets and services. It facilitates economic activity in vital
sectors such as freight and logistics and the tourism industry.
A transport system needs to support environmental responsibility by seeking
to protect the local and global environment, by mitigating negative impacts,
by promoting forms of transport as well as forms of energy and technologies
which have the least impact on the natural environment, and by improving
the environmental performance of all forms of transport. When transport and
land use are integrated, they contribute to better environmental outcomes by
minimising the amount of travel needed and increasing access to sustainable
transport options, including walking and cycling.
7
Creating a sustainable transport system involves looking at impacts and
outcomes over the long term. This requires robust strategic planning
processes which set clear priorities and reflect integrated transport and land
use planning.
The Bill facilitates sustainability in many different ways.
It does this through the inclusion of objectives, based on the core components
of sustainable transport that embed sustainability into our thinking.
It facilitates sustainability through the inclusion of key decision making
principles such as the precautionary principle, the principle of triple bottom
line assessment, and the equity principle.
A new policy framework for transport
The policy framework in Part 2 of the Bill provides the guidance needed to
better achieve an integrated and sustainable transport system. It comprises a
vision, transport system objectives and decision making principles.
The vision statement tells all decision-makers what the transport system
should work towards now and in the future.
The vision was introduced into the framework in response to stakeholder
comments about the direction and structure of the policy framework. It was
suggested that there should be an overall aspirational vision for transport in
Victoria at the top level, under which the other objectives and principles
would sit. Stakeholders commented that the vision needed to be bold and
enduring and act as a guide for transport over the next 20 or more years.
The objectives set out the outcomes the community wants from the transport
system. The objectives centre on a triple bottom line approach--specific
social, environmental and economic objectives--as well as objectives related
to "transport and land use integration", "efficiency, coordination and
reliability" and "safety and health and wellbeing" working together to support
this aim.
The decision making principles set out the other key considerations and
processes which facilitate good decision making. Many reflect leading
practices and are based on contemporary principles of sustainability.
The Policy Statement, Towards an integrated and sustainable transport
future: A new legislative framework for transport in Victoria, released in July
2009, provides additional guidance for decision-makers on the context and
purpose of this new framework.
Other transport policy documents, including Port Futures (2009), Freight
Futures (2008) and the Victorian Cycling Strategy (2009), provide further
context for integrated transport decisions.
Part 2 of the Bill provides for the application of the policy framework to
transport and interface bodies.
8
The Bill requires all transport bodies to have regard for the transport system
objectives and the decision making principles, and all interface bodies to
have regard for those objectives and principles (when those decisions are
likely to have a significant impact on the transport system).
Requiring transport bodies and some non-transport bodies to have regard for
the objectives and decision making principles supports more consistent
decision making.
The objectives and decision making principles in the framework are to
be considered in a wide range of transport decisions and activities.
Having regard to the policy framework necessarily involves tensions
between competing objectives and/or decision making principles.
The need to balance competing considerations is inherent in the operation of
the new framework. Transport bodies and interface bodies may themselves
assess and determine the weight to be given to the transport system objectives
and the decision making principles.
The framework is flexible and dynamic rather than prescriptive. This enables
it to operate effectively and over time. It provides an outcomes-based
platform to enable transport bodies to develop innovative policies and
practices to achieve these goals. Practical guidance and other supporting
materials may be provided under the framework to enable the best transport
decisions to be made. Part 2 of the Bill enables the Minister to make
statements of policy principles that provide support to transport and interface
bodies on the interpretation and application of the framework.
Changes supporting implementation of the framework and improved
integration and coordination
A contemporary approach to the transport portfolio is needed to achieve the
vision for transport set out in the Bill.
Parts 3 to 7 of the Bill establish transport bodies, with their charters aligned
with the policy framework. This supports the coordination and integration of
the transport portfolio and directs the bodies towards integration and
sustainability outcomes.
Part 3 of the Bill sets out the general powers of the Minister and Secretary of
the Department of Transport as well as the charter of the Department to
support the Minister in the administration of the Bill. It provides for the
establishment of a Transport Infrastructure Development Agent (TIDA) to
effectively and efficiently develop transport projects, including those in the
Victorian Transport Plan, and to deliver those projects under the Project
Development and Construction Management Act 1994 or Major
Transport Projects Facilitation Projects Act 2009. The TIDA enables the
transport portfolio to better deliver an integrated and sustainable transport
system on the ground.
9
Part 4 sets out the planning requirements for the portfolio, including requiring
the Department to prepare or revise both the Victorian Transport Plan and
its corporate plan in line with the policy framework. The corporate planning
provisions apply across all of the transport agencies established in the Bill
and enable a more integrated planning process led by the Department and
aligned to the policy framework. Provisions regarding planning are vital to
underpin the longer term achievement of an integrated and sustainable
transport system.
Part 5 continues the establishment of Victoria's transport system agencies.
It establishes the Director of Public Transport, who is responsible for
managing our public transport system, and the Roads Corporation
(VicRoads) which is responsible for road management, construction,
maintenance and safety as well as supporting public transport, and walking
and cycling.
Part 6 provides for the State's transport corporations. It continues the
establishment of Victorian Rail Track, V/Line Corporation and establishes
the Linking Melbourne Authority (which is the successor in law to the
Southern and Eastern Integrated Transport Authority).
Part 7 provides for the State's independent safety compliance and
investigation offices. It includes the Director, Transport Safety and the Chief
Investigator, Transport Safety. The Director, Transport Safety is charged
with the safety regulation of rail, bus and marine transport, thereby
subsuming the current roles of the Director, Public Transport Safety and the
Director of Marine Safety.
The revised charters of the Director of Public Transport and VicRoads
provide a cogent demonstration of an updated approach. A common goal is
included for each agency to increase the share of transport trips made by
sustainable modes and therefore these transport bodies are given a platform to
work together to achieve more sustainable outcomes. This is expected to lead
to greater coordination in planning an effective transport network catering for
sustainable modes, supported by appropriate infrastructure and modal
priority.
While the formal transfer of port corporations into the future Transport
Integration Act is expected to occur in 2010, the anticipated structure of
agencies under the Transport Integration Bill in its final form is represented
in the diagram below.
Diagram 4 below sets out the structure of transport agencies proposed in the
Bill. Diagram 5 depicts the final target structure for agencies in the
portfolio.
10
Diagram 4
Diagram 5
11
Consequential
Part 8 of the Bill relates to general matters, including regulation-making
powers.
Clause Notes
PART 1--PRELIMINARY
Part 1 of the Bill provides for preliminary matters, including the purpose,
commencement and definitions.
Clause 1 The purpose of the Bill is to create a new framework for the
provision of an integrated and sustainable transport system in
Victoria consistent with the vision statement provided in
clause 6 of the Bill.
The framework consists of an overarching vision for the
transport system (set out in Division 1 of Part 2), transport
system objectives (set out in Division 2 of Part 2), decision
making principles (set out in Division 3 of Part 2).
Clause 2 provides for the commencement of the Bill.
Subclause (1) provides that clause 1 and clause 2 come into
operation on the day after the day on which this Act receives the
Royal Assent.
Subclause (2) provides that subject to subclause (3), the
remaining provisions of the Bill come into operation on a day or
days to be proclaimed.
Subclause (3) provides that if any of the provisions under
subclause (2) do not come into operation before 1 July 2011,
then those provisions of the Bill will come into operation on
1 July 2011.
Clause 3 sets out definitions for the purposes of the Bill.
Key definitions used in the Bill include--
decision making principles which refers to the principles
specified in Division 3 of Part 2 of the Bill.
interface body which refers to the persons and bodies listed in
this definition of the Bill (such as a Municipal Council under the
Local Government Act 1989).
Aside from the listed interface bodies, a person or body can
declared to be an interface body for the purposes of the Bill
under another Act or by Order in Council made under the Bill.
12
interface legislation which refers to the legislation that
has significant interface with the transport system.
Interface legislation includes the Planning and Environment
Act 1987, the Local Government Act 1989, the Parks Victoria
Act 1998; and Part 4 of the Water Industry Act 1994.
Consequential amendments make the status of these statutes as
interface legislation for the purposes of the Bill apparent on the
face of each Act.
Aside from the listed interface legislation, legislation can be
declared to be interface legislation for the purposes of the Bill
under another Act. The term interface legislation operates in
conjunction with the term interface body;
public transport system which refers to public transport and the
public transport related components of the transport system
including any passenger services;
road system which refers to the roads and road related
components of the transport system including any transport
services, motor vehicles and any other users of the road system.
It should also be noted that the Road Management Act 2004
continues to define many aspects of the road system such as
road, road-related infrastructure and roadside;
transport body which refers to the bodies listed under this
definition, including the Minister, the Secretary of the
Department of Transport, the Department, or agencies involved
in some aspect of the transport system.
Apart from the listed transport bodies, a body can declared to be
a transport body for the purposes of the Bill under another Act
or by Order in Council made under the Bill;
A transport body is a public body such as statutory appointees,
statutory corporations and other administrative agencies which
are established, or provided for, under transport legislation or
have responsibility for the administration, implementation or
enforcement of any provision of transport legislation.
transport legislation refers to the legislation listed under this
definition including the Road Management Act 2004, the
Marine Act 1988 and the Rail Management Act 1996.
Consequential amendments are made to each of these Acts so
that their status as transport legislation for the purposes of the
Bill is apparent for the face of the Act.
13
Transport legislation is intended to include all Victorian
legislation that is primarily concerned with the transport system
and accordingly falls under the policy and administrative
framework established by the Bill.
Apart from the listed transport legislation, legislation can also be
declared transport legislation for the purposes of the Bill under
another Act.
transport system which refers to the components that make up
the system for the movement of persons and goods, and
includes--
· the physical components;
· the management components;
· the labour components;
· the services components.
The term transport system is defined in broad terms and
incorporates all aspects of rail, road and marine transport.
transport system objectives which refers to the objectives
specified in Division 2 of Part 2 of the Bill. The transport
system objectives listed at Division 2 of Part 2 of the Bill are--
· social and economic inclusion;
· economic prosperity;
· environmental sustainability;
· integration of transport and land use;
· efficiency, coordination and reliability;
· safety and health and wellbeing.
The transport system objectives have been developed to describe
the outcomes that the transport system should seek to achieve;
vision statement which refers to the vision statement set out in
clause 6.
Clause 4 provides that a public body can be declared to be a transport
body or an interface body by Order in Council.
Subclause (1) provides that the Governor in Council, on the
recommendation of the Minister, may declare by Order in
Council published in the Government Gazette--
14
· a public body to be a transport body for the purpose of
the Bill. The Order in Council may specify that a body
is declared to be a transport body either generally or
when carrying out particular functions or powers under
any transport legislation;
· a public body to be an interface body for the purpose of
the Bill. The Order in Council may specify that a body
is declared to be an interface body either generally or
when carrying out particular functions or powers under
any interface legislation.
Transport bodies and interface bodies will not be private bodies.
Subclause (2) provides that a recommendation under clause 4
that a body be declared a transport body or an interface body
must only be made after the Minister has consulted with the
Minister responsible for the administration of that body.
Clause 5 provides that the Bill is to bind the Crown in the right of Victoria
and in all its other capacities.
To avoid any doubt, the clause also provides that the Crown is a
body corporate for the purposes of the Bill and any regulations
made under the Bill.
PART 2--VISION STATEMENT, OBJECTIVES, PRINCIPLES
AND STATEMENTS OF POLICY PRINCIPLES
Part 2 of the Bill sets out the vision statement, the transport system
objectives, the decision making principles and allows for the issuing of
statements of policy principles.
Collectively, the vision statement, transport system objectives, and decision
making principles provide an overarching framework that defines the policy
directions and outcomes for the transport system in Victoria.
The overarching framework provides a common focus for the many different
bodies involved in Victoria's transport system.
Division 1 provides the vision statement, Division 2 provides the transport
system objectives, Division 3 provides the decision making principles,
Division 4 provides for the statements of policy principles and Division 5
provides interpretation and guidance.
15
Division 1--Vision Statement
Division 1 of Part 2 of the Bill provides a vision statement for the transport
system in Victoria.
The vision statement is intended to be an enduring statement. The transport
system objectives and decision making principles sit under, and support, the
vision statement.
Clause 6 provides the vision statement for the transport system.
The vision statement is that Parliament recognises the
aspirations of Victorians for an integrated and sustainable
transport system that contributes to an inclusive, prosperous and
environmentally responsible State.
This vision statement is linked to the purpose of the Bill, but has
been provided separately as it is intended to be an aspirational
statement of long term policy.
Division 2--Transport System Objectives
Division 2 of Part 2 of the Bill provides transport system objectives.
The transport system objectives aspire to specific consideration of social,
environmental and economic objectives as well as objectives related to
"transport and land use integration", "efficiency, coordination and reliability"
and "safety and health and wellbeing".
The context for each of the transport system objectives is explained in detail
in the Government's 2009 Policy Statement: "Towards an integrated and
sustainable transport future: A new legislative framework for transport in
Victoria".
The transport system objectives "cascade" down into the object of each
transport agency established, or appointed, under the Bill. Aligning the
transport system objectives to the objects in this way encourages transport
agencies to recognise their role within one transport system and work
consistently and cooperatively to achieve the intended outcomes, and reduce
the risk of inconsistent activities.
Clause 7 sets out that Division 2 provides the transport system objectives
for the purposes of the Bill.
The six transport system objectives are set out in clauses 8, 9,
10, 11, 12 and 13 of the Bill.
Clause 8 describes the objective of social and economic inclusion.
This objective outlines that the transport system should provide a
means by which people can access social and economic
opportunities to support individual and community wellbeing.
16
The objective of social and economic inclusion includes
minimising barriers to access so that, so far as possible, the
transport system is available to as many people as wish to use it.
In addition, there is a need to provide tailored infrastructure,
services and support for people who find it difficult to use the
transport system. It may not be possible for the transport system
to meet all highly specific accessibility needs because of cost or
operational performance considerations. In these situations a
tailored response is likely to be fairer as well as being more
operationally effective and financially efficient.
Clause 9 describes the objective of economic prosperity.
This objective acknowledges transport's role in supporting
Victoria's economy and recognises that the transport system
plays a role in facilitating economic prosperity.
This objective includes--
· enabling efficient and effective access for persons and
goods to employment, markets and services;
· increasing efficiency through reducing costs and
improving timeliness;
· fostering competition by providing access to markets;
· facilitating investment in Victoria;
· supporting financial sustainability.
Clause 10 describes the objective of environmental sustainability which
intends to highlight the importance of supporting good
environmental outcomes.
This can occur by--
· protecting, conserving and improving the natural
environment;
· avoiding, minimising and offsetting harm to the local
and global environment (including through transport
related emissions and pollutants and the loss of
biodiversity);
· promoting forms of transport and the use of forms of
energy and transport technologies which have the least
impact on the natural environment;
17
· improving the environmental performance of all forms
of transport and the forms of energy used in transport.
Clause 11 describes the objective of integration of transport and land use.
This objective recognises that transport and land use are two
sides of the same coin. Land use decisions determine existing
and future transport needs, and transport decisions can alter land
use patterns.
Subclause (1) describes that the transport system should provide
for the effective integration of transport and land use and should
facilitate access to social and economic opportunities.
Subclause (2) provides that, without limiting the generality of
subclause (1), transport and land use should be effectively
integrated so as to improve accessibility and transport efficiency
with a focus on--
· maximising access to residences, employment, markets,
services and recreation;
· more effective planning and development of the
transport system;
· reducing the need for private motor vehicle transport
and the extent of any travel; and
· facilitating better access and mobility at the local area
level.
Subclause (3) provides that, without limiting the generality of
subclause (1), transport and land use should be aligned,
complementary and supportive and ensure that--
· transport decisions are made having regard to the
current and future impact on land use;
· land use decisions are made having regard to the current
and future development and operation of the transport
system;
· transport infrastructure and services are provided in a
timely manner to support changing land use and
associated transport demand.
Subclause (4) provides that, without limiting the generality of
subclause (1), the transport system should improve the amenity
of communities and minimise impacts of the transport system on
adjacent land uses.
18
Clause 12 describes the objective of efficiency, coordination and reliability.
Subclause (1) provides that the transport system should facilitate
network-wide efficient, coordinated and reliable movements of
persons and goods at all times.
Subclause (2) provides that, without limiting the generality of
subclause (1), the transport system should--
· balance efficiency across the network so as to optimise
the network capacity of all modes of transport and
reduce journey times;
· maximise the efficient use of resources including
infrastructure, land, services and energy;
· facilitate integrated and seamless travel within and
between different modes of transport;
· provide predictable and reliable services and journey
times and minimise any inconvenience caused by
disruptions to the transport system.
Clause 13 describes the objective of safety and health and wellbeing.
Subclause (1) states that the transport system should be safe and
support health and wellbeing.
Subclause (2) is not intended to limit the generality of subclause
(1) and provides that the transport system should--
· seek to continually improve the safety performance of
the transport system through--
· safe transport infrastructure;
· safe forms of transport;
· safe transport system user behaviour;
· avoid and minimise the risk of harm to persons arising
from the transport system;
· promote forms of transport and the use of forms of
energy which have the greatest benefit for, and least
negative impact on, health and wellbeing.
19
Division 3--Decision making principles
Division 3 of Part 2 of the Bill provides decision making principles for
decisions affecting the transport system.
The policy context for each of the decision making principles is explained in
greater detail in the July 2009 Policy Statement: "Towards an integrated and
sustainable transport future: A new legislative framework for transport in
Victoria".
Clause 14 sets out that Division 3 provides the decision making principles
for the purposes of the Bill. The seven decision making
principles are set out in clauses 15, 16, 17, 18, 19, 20 and 21 of
the Bill.
Clause 15 describes the principle of integrated decision making.
The principle of integrated decision means seeking to achieve
Government policy objectives through coordination between all
levels of government and government agencies and with the
private sector.
The intention of this principle is to highlight that integrated
decision making involves the achievement of broader policy,
including policy beyond the transport portfolio and coordination
across various tiers of the public sector and the private sector.
Clause 16 describes the principle of triple bottom line assessment.
The principle of triple bottom line assessment means the
assessment of economic, social and environmental costs and
benefits taking into account externalities and value for money.
The principle is intended to highlight the importance of a triple
bottom line approach in making transport decisions.
Clause 17 describes the principle of equity.
The principle of equity means equity between people
irrespective of personal attributes, including age, physical
ability, ethnicity, culture, gender and financial situation, or
location including growth, urban, regional, rural or remote areas.
The principle of equity also means equity between generations,
that is, the current generation not compromising the ability of
future generations to meet their needs.
The principle of equity intends to highlight that the transport
system needs to have regard for a range of equity considerations.
20
Clause 18 describes the principle of the transport system user perspective.
The principle of the transport system user perspective means an
understanding of the requirements of transport system users,
including their information needs, and enhancing the useability
of the transport system and the quality of experiences of the
transport system.
This principle emphasises that considering the requirements and
needs of transport system users will lead to better transport
system user experiences.
Clause 19 describes the precautionary principle.
The precautionary principle means that the lack of full scientific
certainty should not be used as a reason for postponing measures
to prevent environmental degradation if there are threats of
serious or irreversible environmental damage.
This requires decision making to include a careful evaluation to
avoid serious or irreversible damage to the environment
wherever practicable and an assessment of the risk-weighted
consequences of various options.
Clause 20 describes the principle of stakeholder engagement and
community participation.
The principle of stakeholder engagement and community
participation means decision making taking into account the
interests of stakeholders, including transport system users and
members of the local community, and adopting appropriate
processes for stakeholder engagement.
This principle acknowledges the importance of considering
stakeholder and community interests and allows for tailored
engagement processes to be adopted depending on the activity.
Clause 21 describes the principle of transparency.
The principle of transparency means giving members of the
public access to reliable and relevant information in appropriate
forms to facilitate a good understanding of transport issues and
the process by which decisions in relation to the transport system
are made.
21
Division 4--Statements of policy principles
Division 4 of Part 2 of the Bill provides a mechanism by which the Minister
can make statements of policy principles.
This mechanism could be used, for example, to provide interpretation of the
transport system objectives or decision making principles or give guidance as
to the priority of transport system objectives or decision making principles.
It could also be used by the Minister to provide further policy guidance to
transport bodies or interface bodies, by identifying additional objectives or
principles that may be appropriate from time to time either generally or in
relation to particular powers or functions or classes of powers or functions.
A statement of policy principles must be consistent with the vision statement
and transport system objectives. The Minister will be required to have regard
to the decision making principles in making any such statements of policy
principles. Where there is more than one Minister who has responsibility for
the transport portfolio, it is intended that either Minister will be able to issue
statements of policy principles in respect of their respective areas of
responsibility, and that joint statements can also be issued.
Clause 22 provides that the Minister may issue a statement of policy
principles.
Subclause (1) empowers the Minister to issue a statement of
policy principles for the purposes of the Bill.
Subclause (2) provides that where the Minister proposes to issue
a statement of policy principles which will apply to, or affect, an
interface body the Minister must obtain the agreement of the
Minister responsible for that interface body before issuing the
statement of policy principles.
Subclause (3) stipulates that a statement of policy principles
issued by the Minister must be consistent with the vision
statement and the transport system objectives.
Subclause (4) requires the Minister to have regard to the
decision making principles in making any statements of policy
principles.
Subclause (5) provides for when there are two Ministers which
have responsibility for the administration of the Bill. It is
intended that either Minister should be able to issue a statement
of policy principles in respect of their respective areas of
responsibility, and that joint statements could also be issued.
22
Subclause (6) stipulates that a statement of policy principles may
provide that specified policy principles apply to--
· a specified transport body in the exercise of powers or
the performance of functions under transport legislation;
· a specified interface body in the exercise of powers or
the performance of functions under interface legislation;
· the exercise of specified powers or the performance of a
specified function by a transport body or an interface
body.
Subclause (7) requires a statement of policy principles issued by
a Minister to be published in the Government Gazette and also
on an internet website maintained by the Department.
Subclause (8) provides that the Minister must provide a copy of
a statement of policy principles to any transport body or
interface body affected by the statement of policy principles as
soon as practicable after the statement of policy principles is
issued by that Minister.
Division 5--Interpretations and guidance
Division 5 of Part 2 of the Bill provides for interpretation and guidance for
the Bill.
Clause 23 gives guidance for the interpretation of the Bill.
It is the intention of Parliament that the Bill is to be administered
and interpreted having regard to the following--
· the vision statement;
· the transport system objectives;
· the decision making principles;
· any statement of policy principles.
Clause 24 provides transport bodies with guidance on transport system
objectives, decision making principles and statements of policy
principles.
Subclause (1) provides that a transport body must have regard to
the transport system objectives when exercising its powers and
performing its functions under any transport legislation.
Subclause (2) provides that a transport body must have regard to
the decision making principles in making decisions under any
transport legislation.
23
Subclause (3) provides that if a transport body is a specified
transport body in a statement of policy principles, then the
transport body must have regard to the specified policy
principles under that statement.
Subclause (4) provides that if a transport body is exercising a
power which is a specified power in a statement of policy
principles or performing a function which is a specified function
in a statement of policy principles, then that transport body must
have regard to the specified policy principles under the statement
of policy principles.
Subclause (5) provides that an Act specified in the heading to an
item in Schedule 1 of the Bill is amended, on the
commencement of that item or a provision of that item as set out
in that item or provision. Schedule 1 of the Bill provides for
amendments to transport legislation.
Clause 25 provides interface bodies with guidance on transport system
objectives, decision making principles and statements of policy
principles.
Subclause (1) provides that an interface body must have regard
to the transport system objectives when exercising its powers
and performing its functions under any interface legislation
where those functions and powers are likely to have a significant
impact on the transport system.
Subclause (2) provides that an interface body must have regard
to the decision making principles in making decisions under any
interface legislation where those decisions are likely to have a
significant impact on the transport system.
Subclause (3) provides that if an interface body is a specified
interface body in a statement of policy principles, then the
interface body must have regard to the specified policy
principles under that statement.
Subclause (4) provides that if an interface body is exercising a
power which is a specified power in a statement of policy
principles or performing a function which is a specified function
in a statement of policy principles, then that transport body must
have regard to the specified policy principles under that
statement.
Subclause (5) provides that an Act specified in the heading to an
item in Schedule 2 of the Bill is amended on the commencement
of that item or a provision of that item as set out in that item or
provision. Schedule 2 of the Bill provides for the amendments
to interface legislation.
24
Clause 26 provides that a transport body or interface body may determine
the weight to be given to transport system objectives.
In particular, this clause provides that for the purposes of
clause 24 and clause 25 a transport body or an interface body
may determine the weight to be given to each transport system
objective.
It is the intention of clause 26 to recognise that there could be
tension between two or more of the transport system objectives
and the weight to be given will vary depending on the scale and
impact of the decision at hand and all relevant circumstances.
This means that the regard given will be flexible and dynamic,
rather than restrictive.
Clause 27 provides that a transport body or interface body may determine
the weight to be given to decision making principles.
In particular, this clause provides that for the purposes of
sections 24 and 25 a transport body or an interface body may
determine the weight to be given to each decision making
principle.
It is the intention of clause 27 to recognise that there could be
tension between two or more of the decision making principles
and the weight to be given will vary depending on the scale and
impact of the decision at hand and all relevant circumstances.
This means that the regard given will be flexible and dynamic,
rather than restrictive.
Clause 28 provides for the effect of Part 2.
This clause provides that Parliament does not intend for anything
within Part 2 of the Bill to create in any person any legal right or
to give rise to any civil cause of action.
PART 3--ADMINISTRATION
Part 3 provides for the administration of the Bill.
Division 1 of Part 3 relates to the Minister or Ministers administering the
Bill.
Division 2 of Part 3 relates to the Department.
Division 3 of Part 3 relates to the Secretary of the Department.
Division 4 of Part 3 provides for the establishment of the Transport
Infrastructure Development Agent.
Division 5 of Part 3 provides a process for the transfer of transport projects.
25
Division 1--The Minister
Division 1 of Part 3 of the Bill sets out provisions relating to the Minister.
It is noted that responsibility for administering transport legislation is
currently divided between two Ministers--the Minister for Public Transport
and the Minister for Roads and Ports. Where there is more than one Minister
who has responsibility for the transport portfolio, it is intended that Part 3
will apply to each of those Ministers.
Clause 29 prescribes general powers for the Minister.
Subclause (1) provides the Minister with the power to do
anything that is set out in the Bill or that is necessary or
convenient to be done for or in connection with, or as incidental
to, the functions of the Minister under the Bill or any other Act.
Subclause (2) provides that nothing in clause 29 limits the
powers of a Minister at common law or under any convention or
practice relating to powers of Ministers generally.
Clause 30 empowers the Minister to appoint any person or establish any
body to provide the Minister with advice.
Subclause (1) provides that the Minister may from time to time
appoint any person or establish any body comprising persons
with experience or expertise in, or able to offer informed advice
about, the transport system. The Minister can appoint a person
or establish a body by Order published in the Government
Gazette. The person appointed or body established can--
· advise the Minister on any matter relating to the
transport system referred to that person appointed or
body established; or
· exercise any of the powers and functions of the Minister
that are delegated to that person appointed or body
established under the Bill or any other transport
legislation.
Subclause (2) provides that the Minister who has made an Order
under subclause (1) will be able to make any provision with
respect to the terms and conditions of appointment of the person
or of the members of the body and the functions and procedures
of the person or the body as the Minister thinks fit.
Subclause (3) provides that any person appointed or body
established by the Minister under Subclause (1) is declared to be
a transport body.
26
Subclause (4) provides that clause 30 of the Bill is not intended
to limit any other power of the Minister to establish advisory
committees or other similar bodies or to have regard to their
advice.
Clause 31 provides a delegation power for the Minister.
Subclause (1) provides that the Minister may delegate to any
person, by instrument, any of its functions, duties or powers
under any Act or regulations, other than--
· this power of delegation;
· any power conferred on the Minister to make statements
of policy principles or determinations of policy or give
directions.
Subclause (2) provides that a delegation under this clause may
be made--
· in relation to a person or class of persons specified in
the instrument of delegation; or
· in relation to the holder, or the holder from time to time,
of an office specified, or of each office in a class of
offices specified, in the instrument of delegation.
Division 2--The Department
Division 2 of Part 3 of the Bill sets out provisions relating to the Department
of Transport and clarifies that portfolio coordination and strategic policy is
the responsibility of the Department.
The Department is given a clear leadership role across the portfolio which
includes--
· assisting the Minister in the administration of the Bill and any
transport legislation;
· setting the strategic policy and performance measures for the
transport portfolio;
· leading strategic policy development and planning in the
transport portfolio;
· leading legislation development and coordination in the
transport portfolio;
27
· managing and facilitating corporate planning for the transport
portfolio; and
· having a clearly articulated jurisdiction for the entire transport
system, including public transport, ports, marine and roads
matters.
The Department's leadership role provides an important context for framing
roles for the other agencies in the transport portfolio.
Clause 32 includes provisions that prescribe the objects of the Department.
The Department's objects are to--
· ensure that a transport system is provided consistent
with the vision statement and transport system
objectives;
· determine strategic policies which specify priorities for
the transport system that address current and future
challenges;
· ensure in collaboration with transport bodies and other
bodies that policies and plans for an integrated and
sustainable transport system are developed, aligned and
implemented.
Clause 33 provides the functions of the Department.
Subclause (1) provides the principal function of the Department.
The principal function of the Department is to assist the Minister
in administering the Bill and other transport legislation and to do
all things that are necessary or convenient to be done for, or in
connection with, or as incidental to, the achievement of its
objects, outlined in clause 32.
Subclause (2) is not intended to limit the principal function in
subclause (1), and provides that the Department's functions also
include--
· to be the lead in all of the strategic policy, advice and
legislation functions relating to the transport system and
related matters other than road safety;
· to coordinate the development of regulatory policy and
legislation advice relating to the transport system and
related matters;
28
· to lead in the improvement of the transport system,
including the development and construction of new
transport infrastructure and the provision of new
transport services;
· to develop strategies, plans, standards, performance
indicators, programs and projects relating to the
transport system and related matters;
· to develop and issue guidelines with respect to the
implementation and the operation of the Bill;
· to coordinate corporate planning and budgets so as to
assist transport bodies with the development, alignment,
implementation and monitoring of their corporate plans
and budgets;
· to undertake operational activities including transport
system operations, asset management and project
management;
· to collect transport data and undertake research into the
transport system to support the functions that are
outlined in paragraphs (a), (b), (c), (d), (f) and (g) of
subclause (2) of clause 33;
· to provide corporate, financial management, property
and other specialist services to transport bodies;
· to provide assistance to public entities or private bodies
to construct or improve transport facilities and to
provide services ancillary to those facilities;
· to carry out efficiently and effectively any contract
entered into by the Minister on behalf of the Crown;
· to perform any other functions or duties conferred on
the Department by any other Act or any regulations
under any other Act.
It is intended that the functions conferred on the Department
under clause 33 will enable the Department to achieve its objects
under clause 32.
29
Division 3--The Secretary
Division 3 of Part 3 of the Bill sets out the provisions relating to the
Secretary of the Department.
It is noted that the applicable provisions of the Public Administration Act
2004 remain the statutory foundation for the Secretary's role in the transport
portfolio, in common with other department heads.
Clause 34 empowers of the Secretary of the Department.
Subclause (1) gives the Secretary power on behalf of the Crown
to do all things necessary or convenient to be done for or in
connection with, or as incidental to, the performance of the
functions of the Department and the achievement of its objects.
Subclause (2) provides that the generality of subclause (1)
should not be limited by the powers outlined in subclause (2).
Under subclause (2) the Secretary can exercise the following
powers on behalf of the Crown--
· acquire, hold or dispose of real or personal property;
· enter into any agreement or contract;
· enter into any lease or licence;
· participate in the formation of a corporation, trust,
partnership or other body;
· subscribe for or otherwise acquire, and hold and dispose
of, shares in or debentures or other securities of, a
corporation;
· become a member of a company limited by guarantee;
· subscribe for or otherwise acquire, and hold and dispose
of, units in a trust;
· acquire, hold and dispose of, an interest in a partnership
or other body;
· enter into a partnership, or into any arrangement for
sharing of profits, union of interest, co-operation, joint
venture, reciprocal concession or otherwise, with any
person or body carrying on or engaged in, or about to
carry on or engage in, any business or transaction
whether within or outside Victoria relating to, or
connected with, any function of the Secretary or the
Department;
30
· give indemnities, guarantees, releases and charges and
anything else of a similar nature;
· acquire (whether by creation, lease, licence, receiving
the assignment or grant of, or otherwise), hold, accept as
security, or otherwise deal with, any intellectual
property right (for example, a trade mark, patent,
design, copyright, (including an associated moral right),
plant breeder's right, circuit layout right, trade secret, or
right arising from confidential information);
· assign, grant, lease, licence, sell, mortgage, use as a
security, or otherwise encumber or dispose of, any
intellectual property right;
· seek any remedy in relation to, or do anything necessary
to enforce, protect, maintain, register or exploit any
intellectual property right;
· seek any remedy in relation to, or do anything necessary
to enforce, protect, maintain or exploit any Crown
copyright;
· engage consultants, contractors or agents;
· act as trustee;
· act as an agent of another person.
Subclause (3) provides that the Secretary may use any Crown
land for transport purposes. Before the Secretary uses the
Crown land, the Secretary must have the approval of the
Minister administering the Act relating to the management or
use of the land, given by the Minister in accordance with any
requirements which apply under that Act.
Subclause (4) provides that, without limiting the generality of
subclause (1), the Secretary may exercise the powers conferred
on the Secretary by any other Act or regulations under any other
Act.
Subclause (5) provides that the generality of clause 34 is not
limited by any other provisions in the Bill or any other Act
which confers a power on the Secretary.
31
Clause 35 provides for the recording of land dealings.
Subclause (1) provides that if the Secretary acquires any land on
behalf of the Crown, any recording in the Register by the
Registrar of Titles of the acquisition must be made in the name
of "Secretary to the Department of Transport" as registered
proprietor.
Subclause (2) provides that if the Secretary, on behalf of the
Crown, disposes of or otherwise deals with any land held in the
name of "Secretary to the Department of Transport", any
recording in the Register by the Registrar of Titles of the
disposition or dealing must be made in the name of "Secretary to
the Department of Transport".
Subclause (3) provides that if the Secretary to the Department of
Transport, on behalf of the Crown, lodges with the Registrar of
Titles any dealing in relation to any land, the Registrar must
make any recording in relation to that dealing in the name of
"Secretary to the Department of Transport".
Subclause (4) provides that to avoid doubt, land acquired in fee
simple by the Secretary to the Department of Transport on
behalf of the Crown is Crown land.
Subclause (5) provides that despite subclause (4) and anything to
the contrary in the Land Act 1958 or the Transfer of Land Act
1958, if land acquired by the Secretary to the Department of
Transport on behalf of the Crown--
· is under the operation of the Transfer of Land Act
1958, it remains under the operation of that Act; and
· is not under the operation of the Transfer of Land Act
1958, it may be brought under the operation of that Act.
Clause 36 provides the Secretary to the Department with compulsory
acquisition powers.
The compulsory acquisition power of the Secretary requires
Ministerial approval and the acquisition and compensation
requirements in the Land Acquisition and Compensation Act
2009 will apply.
Subclause (1) allows the Secretary, subject to the approval of the
Minister and on behalf of the Crown, to compulsorily acquire
any land which is or may be required by the Secretary for or in
connection with the performance of his or her functions or the
exercise of his or her powers.
32
Subclause (2) provides that the Land Acquisition and
Compensation Act 1986 applies to the Bill and for that
purpose--
· the Transport Integration Act 2009 is the special Act;
· the Secretary is the Authority;
· land includes strata above or below the surface of land
and easements and rights to use land or strata above or
below the surface of the land;
· section 75 of the Land Acquisition and Compensation
Act 1986 has effect as if it empowered the Authority to
enter any land and section 75(6) did not apply.
Subclause (3) provides that in full or part settlement of any
compensation that the Secretary is liable to pay, the Secretary
may on behalf of the Crown--
· transfer a building from land owned by a person entitled
to the compensation to other land owned either by that
person or by the Secretary on behalf of the Crown; or
· transfer a building from land owned by the Secretary on
behalf of the Crown to other land owned either by the
Secretary on behalf of the Crown or by a person entitled
to the compensation.
Subclause (4) provides that if the Secretary acquires any land
compulsorily under this clause--
· the Secretary may on behalf of the Crown require the
owner of the land to take any land adjoining it that is
owned by the Secretary on behalf of the Crown and is
no longer required by the Secretary on behalf of the
Crown; and
· the value of that adjoining land must be deducted from
any sum to be paid by way of compensation to the
owner for the compulsory acquisition; and
· if that value cannot be agreed between the Secretary on
behalf of the Crown and the owner it must be settled in
the same manner and at the same time as the
compensation to be paid to the owner.
33
Clause 37 allows the Secretary to enter land for investigative purposes.
Subclause (1) provides that the Secretary may enter any land and
do all things necessary and convenient for investigative purposes
to determine whether the land should be compulsorily acquired.
Subclause (2) provides that the Secretary may exercise the
powers conferred by this clause on the Secretary by any person
who is authorised in writing by the Secretary to do so.
Subclause (3) provides that the Secretary must not exercise a
power under this clause unless--
· the Secretary has given 7 days notice in writing to the
occupier of the land that is to be entered; or
· the occupier of the land consents to entry to the land; or
· immediate entry is necessary because of an emergency.
Subclause (4) provides that a person who is exercising a power
under clause 37 must not enter land that is used primarily for
residential purposes except between 7.30 a.m. and 6.00 p.m.
unless the occupier consents to a different time.
Subclause (5) provides that in exercising powers under this
clause, the Secretary must--
· cause as little harm and inconvenience as possible; and
· stay on the land only for as long as is reasonably
necessary to exercise the power; and
· remove from the land on completing the exercise of the
power, all plant, machinery, equipment, goods or
temporary buildings brought onto the land for the
exercise of the power, other than anything that the
owner or occupier of the land agrees may be left there;
and
· leave the land as nearly as possible in the condition in
which he or she found it; and
· ensure that as little damage as possible is done to the
land; and
· co-operate as much as possible with the owner and any
occupier of the land.
34
Subclause (6) provides that if the Secretary has caused any
damage to land while exercising a power under this clause, the
Secretary must pay compensation to the owner and any other
person with an interest in the land.
Subclause (7) provides that any compensation under
subclause (6)--
· may, if so agreed by the person entitled to the
compensation, be paid as a lump sum or by way of an
annual rent; or
· if no agreement can be reached, must be determined in
the manner provided in the Land Acquisition and
Compensation Act 1986.
Clause 38 provides that the Secretary is subject to the general direction and
control of the Minister and must comply with any specific
direction given by the Minister.
This clause is subject to the proviso that the Minister cannot give
the Secretary any direction as to the quantum of any amount
payable under section 68 of the Rail Management Act 1996 for
breach of a civil penalty provision within the meaning of that
section.
Section 68 of the Rail Management Act 1996 sets out civil
penalty provisions for the purposes of that Act.
Clause 39 provides a delegation power for the Secretary.
Subclause (1) provides that the Secretary may delegate to any
person, by instrument, any of its functions, duties or powers
under any Act or regulations, including the power of delegation
subject to subclause (3).
Subclause (2) provides that a delegation under this clause may
be made--
· in relation to a person or class of persons specified in
the instrument of delegation; or
· in relation to the holder, or the holder from time to time,
of an office specified, or of each office in a class of
offices specified, in the instrument of delegation.
Subclause (3) provides that a person to whom a power, duty or
function has been delegated under subclause (1) may, subject to
and in accordance with the instrument of delegation under
subclause (1), by instrument delegate to another person that
power, duty or function.
35
Subclause (4) provides that sections 42 and 42A of the
Interpretation of Legislation Act 1984 apply to a
sub-delegation under subclause (3) as if it were a delegation.
Section 42 allows the delegate's state of mind to be applied to
the exercise of a delegated power, duty or function where
relevant to the exercise of that power or performance of a duty
or function.
Section 42A allows the delegator to exercise the delegated
power or perform the delegated duty or function and allows for
delegations to be subject to conditions.
Division 4--Transport Infrastructure Development Agent
Division 4 of Part 3 of the Bill sets out the provisions relating to the
Transport Infrastructure Development Agent.
The Transport Infrastructure Development Agent has been established so that
the Department can access body corporate powers for the purpose of scoping
and developing any Transport Infrastructure Project and delivering the
Transport Infrastructure Project if it is specified as the facilitating agency
under the Project Development and Construction Management Act 1994
or appointed as a project authority under the Major Transport Projects
Facilitation Project Act 2009.
Clause 40 establishes the Transport Infrastructure Development Agent.
Subclause (1) establishes the Transport Infrastructure
Development Agent.
Subclause (2) provides that the Transport Infrastructure
Development Agent will consist of one member. That member
will be appointed by the Governor in Council in accordance with
clause 48.
Subclause (3) provides that Transport Infrastructure
Development Agent--
· is a body corporate with perpetual succession;
· has an official seal;
· may sue and be sued;
· may acquire, hold and dispose of real and personal
property;
· may do and suffer all acts and things that a body
corporate may by law do and suffer.
36
Clause 41 sets out the official seal provisions of the Transport
Infrastructure Development Agent.
Subclause (1) provides that the official seal of the Transport
Infrastructure Development Agent must be kept in such custody
as the Transport Infrastructure Development Agent directs and
must not be used except as authorised by the Transport
Infrastructure Development Agent.
Subclause (2) provides that all courts must take judicial notice of
the official seal of the Transport Infrastructure Development
Agent affixed to a document and, until the contrary is proved,
must presume that it was duly affixed.
Clause 42 provides that the Transport Infrastructure Development Agent
represents the Crown when it is performing its functions and
exercising its powers.
Clause 43 provides an object for the Transport Infrastructure Development
Agent.
The object of the Transport Infrastructure Development Agent is
to--
· scope and develop any Transport Infrastructure Project;
and
· deliver the Transport Infrastructure Project if it is
specified as the facilitating agency under the Project
Development and Construction Management Act
1994 or appointed as a project authority under the
Major Transport Projects Facilitation Project Act
2009--
consistent with the vision statement and transport system
objectives.
Clause 44 sets out the functions of the Transport Infrastructure
Development Agent.
The functions of the Transport Infrastructure Development
Agent may be exercised in respect of any Transport
Infrastructure Project.
The Transport Infrastructure Development Agent will have the
following functions in respect of any Transport Infrastructure
Project--
· to facilitate, on behalf of the State, the scoping and
development of any Transport Infrastructure Project;
37
· to seek and evaluate submissions from persons
interested in undertaking the scoping and development
of any Transport Infrastructure Project;
· to negotiate with persons interested in undertaking the
scoping and development of any Transport
Infrastructure Project;
· to make recommendations in relation to contractual
arrangements between the State and any other person
for the scoping and development of any Transport
Infrastructure Project;
· to administer and manage agreements and arrangements
between the State and any other person for, or relating
to, the scoping and development of any Transport
Infrastructure Project;
· to facilitate and co-ordinate consultations with statutory
authorities and agencies of the State and other bodies or
persons involved in, or affected by, the scoping and
development of any Transport Infrastructure Project;
· to negotiate and enter into arrangements with statutory
authorities and agencies of the State and other bodies or
persons involved in, or affected by, the scoping and
development of any Transport Infrastructure Project;
· to make recommendations to the Minister in relation
to facilitating any Transport Infrastructure Project and
co-ordinating with statutory authorities, agencies of the
State and other bodies or persons involved in, or
affected by, scoping and development of any Transport
Infrastructure Project;
· to ensure that agreements and arrangements between the
State and any other person for, or relating to, the
scoping and development of any Transport
Infrastructure Project are performed in accordance with
their terms;
· to deliver the Transport Infrastructure Project if it is
specified as the facilitating agency under the Project
Development and Construction Management Act
1994 or appointed as a project authority under the
Major Transport Projects Facilitation Project Act
2009.
38
Clause 45 provides the powers of the Transport Infrastructure Development
Agent.
It is intended that the powers will provide the Transport
Infrastructure Development Agent with the capacity to undertake
the functions conferred on the Transport Infrastructure
Development Agent.
It should be noted that aside from the powers in clause 45 the
Transport Infrastructure Development Agent will have
additional powers under the Project Development and
Construction Management Act 1994 if it is specified to be a
facilitating agency for the purposes of that Act or under the
Major Transport Projects Facilitation Act 2009 if it is
appointed the project authority under that Act.
Subclause (1) provides the Transport Infrastructure
Development Agent with all the powers necessary or convenient
to be done for or in connection with, or as incidental to the
achievement of the object of the Transport Infrastructure
Development Agent under clause 43 and the performance of its
functions under clause 44.
It is the intention of subclause (2) to not limit subclause (1) and
provide the Transport Infrastructure Delivery in performing its
functions under clause 44 with the power to--
· enter into any agreements or arrangements with any
person or body;
· do all things necessary or convenient to be done to give
effect to those agreements and arrangements;
· with the approval of the Treasurer, form, participate in
the formation of, or be a member of a body corporate,
association, partnership, trust or other body and enter
into a joint venture with any other person.
Subclause (3) provides the Transport Infrastructure
Development Agent with extraterritorial powers, allowing it to
exercise its powers outside of Victoria.
Clause 46 stipulates that the Transport Infrastructure Development Agent is
subject to the direction and control of the responsible Minister.
Subclause (1) provides that, when the Transport Infrastructure
Development Agent is exercising its powers or performing its
functions, the Transport Infrastructure Development Agent is
subject to the direction and control of the Minister.
39
Subclause (2) provides that where the Transport Infrastructure
Development Agent is not the Secretary then the Transport
Infrastructure Development Agent--
· is subject to the specific direction of the Minister; and
· must perform its functions and exercise its powers under
the general direction and control of the Secretary.
Subclause (2) ensures that when the Secretary is the Transport
Infrastructure Development Agent that he or she will still need
to operate under the Minister's direction and control.
Clause 47 provides the Transport Infrastructure Development Agent with a
power of delegation.
Subclause (1) provides that the Transport Infrastructure
Development Agent may be able to delegate to any person, by
instrument, any of its functions, duties or powers under any Act
or regulations, including the power of delegation subject to
subclause (3).
Subclause (2) provides that a delegation under this clause may
be made--
· in relation to a person or class of persons specified in
the instrument of delegation; or
· in relation to the holder, or the holder from time to time,
of an office specified, or of each office in a class of
offices specified, in the instrument of delegation.
Clause 48 provides for the appointment of a member constituting the
Transport Infrastructure Development Agent.
Subclause (1) provides that the Governor in Council may, on the
recommendation of the Premier and the Minister, by Order in
Council appoint a person to be the member constituting the
Transport Infrastructure Development Agent. The Order in
Council will be able to specify the period of the appointment.
The Order in Council is to be published in the Government
Gazette.
Subclause (2) provides that the appointment made under
subclause (1) is to be made with reference to the office held and
will apply to any person who holds that office. This ensures that
even when there is a change in the person holding the office that
the Transport Infrastructure Development Agent will continue to
apply to a person who is the holder of that office.
40
Clause 49 provides that a Transport Infrastructure Project Order can be
made.
Subclause (1) specifies that the Minister may declare any
transport project to be a Transport Infrastructure Project by
Order published in the Government Gazette.
Subclause (2) specifies that an Order made by the Minister under
subclause (1) may provide for any matter necessary or
convenient to give effect to the Order.
Subclause (3) provides that an Order made by the Minister under
subclause (1) takes effect--
· on the day the Order is published in the Government
Gazette; or
· if the Order specifies a later day, on that day.
Clause 50 provides that a Transport Infrastructure Project Order can be
revoked.
This clause provides that the Minister may make an Order
published in the Government Gazette that--
· revokes the Order made under clause 49;
· provides for the transfer, apportionment, settlement or
determination of any real or personal property, income,
assets, rights, liabilities or other matters.
Division 5--Transfer of transport project responsibility
Division 5 of Part 3 of the Bill sets out the provisions for the transfer of
project responsibilities including property, liabilities and rights or projects in
their entirety from one transport body to another transport body.
With the significant number of projects being, or that will be, undertaken in
the transport portfolio, under varying client/deliverer/manager/operator
arrangements, the Government believes it is prudent that the Bill sets out
provisions which facilitate the transfer of property, rights, liabilities and
responsibilities for a project from one body to another.
Clause 51 sets out definitions for the purposes of Division 5 of the Bill.
Key definitions used in Division 5 include--
transferee transport body refers to a transport body to which a
property, liability, right or transport project is to be transferred
under Division 5.
41
transferor transport body which refers to a transport body from
which a property, liability, right or transport project is to be
transferred under Division 5.
Clause 52 outlines the types of transfers that can occur under Division 5 of
Part 3 of the Bill.
Generally, there are two types of transfers--transfers of
property, rights and liabilities from one transport body to
another, or transfers of property, rights and liabilities related to a
transport project from one body or another. The first type of
transfer is intended for discrete transfers from one transport body
to another. The second type of transfer is intended to be used
where, for example, the management or operation of an entire
transport project is being moved from one transport body to
another.
Subclause (1) provides that the Governor in Council may, on the
recommendation of the Minister and the Treasurer, by Order in
Council--
· transfer any property, rights and liabilities specified in
the Order in Council of a transferor transport body
specified in the Order in Council to a transferee
transport body specified in the Order in Council;
· transfer any property, rights and liabilities specified in
the Order in Council of a transferor transport body
specified in the Order in Council in relation to a
transport project specified in the Order in Council to a
transferee transport body specified in the Order in
Council.
Subclause (2) provides that the Order in Council under
subclause (1) must specify the transfer date on which the
transfer is to take effect.
Subclause (3) provides that nothing in clause 52 is intended to
affect or limit any approval, agreement or other authority that a
transferor transport body or transferee transport body may
require or need to obtain before it can be a party to the transfer.
Clause 53 provides for where a transfer is subject to encumbrances. Unless
the Order in Council otherwise provides, if under the Order in
Council property and rights vest in the transferee transport body
or liabilities become liabilities of the transferee transport body--
42
· the property and rights so vested are subject to the
encumbrances (if any) to which they were subject
immediately before so vesting; and
· the rights to which the transferor transport body was
entitled in respect of those liabilities immediately before
they ceased to be liabilities of the transferor transport
body vest in the transferee transport body.
Clause 54 allows the substitution of party to an agreement. If, under an
Order in Council the rights and liabilities of the transferor
transport body under an agreement are transferred to the
transferee transport body--
· the transferee transport body becomes, on the transfer
date, a party to the agreement in place of the transferor
transport body; and
· on and after the transfer date, the agreement has effect
as if the transferee transport body had always been a
party to the agreement.
Clause 55 creates a mechanism to effect the transfer of instruments relating
to property, rights or liabilities. Each transferor transport body
instrument relating to property, rights or liabilities transferred to
the transferee transport body continues to have effect according
to its tenor on and after the transfer date as if a reference in the
instrument to the transferor transport body were a reference to
the transferee transport body.
Clause 56 explains the impact on proceedings where a transfer has
occurred or will occur under Division 5.
If, immediately before the transfer date, proceedings relating to
property, rights or liabilities transferred to the transferee
transport body (including arbitration proceedings) to which the
transferor transport body was a party were pending or existing in
any court or tribunal, then, on and after the transfer date, the
transferee transport body is substituted for the transferor
transport body as a party to the proceedings and has the same
rights in the proceedings as the transferor transport body had.
Clause 57 provides for transfers of interests in land.
This clause is not intended to affect the generality of Division 5
and despite anything to the contrary in any other Act (other than
the Charter of Human Rights and Responsibilities) or law, if,
immediately before the transfer date, the transferor transport
body is, in relation to property, rights or liabilities transferred to
43
the transferee transport body, the registered proprietor of an
interest in land under the Transfer of Land Act 1958, then on
and after the transfer date--
· the transferee transport body is deemed to be the
registered proprietor of that interest in land; and
· the transferee transport body has the same rights and
remedies in respect of that interest as the transferor
transport body had.
Clause 58 provides for actions by the Registrar of Titles.
On being requested to do so and on delivery of any relevant
instrument, the Registrar of Titles must make any recordings in
the Register that are necessary because of the operation of
Division 5.
Clause 59 provides that no stamp duty or other tax is chargeable under any
Act in respect of anything done under Division 5 or in respect of
any act or transaction connected with or necessary to be done by
reason of this Division. This includes a transaction entered into
or an instrument made, executed, lodged or given, for the
purpose of, or connected with the transfer of property, rights or
liabilities under an Order in Council.
Clause 60 states the admissibility of documents or other evidence.
Documentary or other evidence that would have been admissible
for or against the interests of the transferor transport body in
relation to property, rights or liabilities transferred to the
transferee transport body is admissible for or against the interests
of the transferee transport body.
Clause 61 creates a process for the transfer of certain employees.
Subclause (1) provides that clause 61 is intended to apply to an
employee who is not employed under Part 3 of the Public
Administration Act 2004. This is because there are other
processes available for the transfer of employees who are
employed under Part 3 of the Public Administration Act 2004
(for example, secondments).
Subclause (2) provides that if as a result of an Order in Council
it is necessary to transfer any employees from the transferor
transport body to the transferee transport body, the Secretary
must list in writing the persons who were employed by the
transferor transport body before the transfer date and who the
Secretary determines should be transferred to the transferee
transport body.
44
Subclause (3) provides that an employee transferred under
clause 61 is to be regarded as--
· being employed by the transferee transport body with
effect from the transfer date;
· having been so employed on the same terms and
conditions as those that applied to the person
immediately before the transfer date;
· having accrued an entitlement to benefits in connection
with that employment that is equivalent to the
entitlement that the person had accrued immediately
before the transfer date.
Subclause (4) provides that the service of an employee
transferred under this clause is to be regarded for all purposes as
having been continuous with the service of the employee
immediately before the transfer date.
Subclause (5) provides that an employee that is transferred under
this clause is not entitled to receive any payment or other benefit
by reason only of having ceased to be employed by the
transferor transport body because of the operation of this
Division.
Subclause (6) provides that if a certificate purporting to be
signed by the Secretary certifying that a person named in the
certificate was, with effect from the transfer date, employed by
virtue of this section by the transferee transport body, is
admissible in evidence in any proceedings as evidence of the
matters stated in it.
Subclause (7) outlines that the superannuation entitlements of
any person who is transferred under this clause are to be taken
not to be affected by that person being transferred.
Subclause (8) provides that nothing in clause 61 prevents--
· any of the terms and conditions of employment of a
person transferred under clause 61 from being altered by
or under any law, award or agreement with effect from
any time after the transfer date; or
· a person transferred under clause 61 from resigning or
being dismissed at any time after the transfer date in
accordance with the then existing terms and conditions
of his or her employment with the transferee transport
body.
45
Clause 62 provides for the validity of things done under Division 5 of
Part 3 of the Bill.
Subclause (1) provides that it is intended that nothing effected
by, or done or suffered under, this Division--
· 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
· is to be regarded as placing any person in breach of or
as constituting a default under any Act (other than the
Charter of Human Rights and Responsibilities) or
other law or any provision in any agreement,
arrangement or understanding including, without
limiting the generality of the foregoing, any provision
prohibiting, restricting or regulating the assignment or
transfer of any property or the disclosure of any
information; or
· is to be regarded as fulfilling any condition which
allows a person to exercise a right or remedy in respect
of or to terminate any agreement or obligation; or
· 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 property, right or liability; or
· is to be regarded as causing any contract or instrument
to be void or otherwise unenforceable; or
· is to be regarded as frustrating any contract; or
· releases any surety or other obligee wholly or in part
from any obligation.
PART 4--PLANNING
Part 4 of the Bill provides the planning requirements of the Department and
certain transport bodies.
Under the Bill the Department and certain transport bodies will have
statutory obligations to prepare certain plans. The two types of plans dealt
with under Part 4 are the Victorian Transport Plan and corporate plans.
46
Part 4 of the Bill also provides certain transport bodies with greater clarity in
respect of corporate planning obligations. It requires corporate plans to
support the new policy framework and be consistent with the corporate plan
of the Department.
Clause 63 provides direction on the preparation of the Victorian Transport
Plan.
Subclause (1) requires the Department to prepare and
periodically revise the Victorian Transport Plan for the
Minister.
As such, rather than a series of plans, the Victorian Transport
Plan should be treated as a single plan that is continuously
improved and updated.
Subclause (2) sets out how the Victorian Transport Plan must
be prepared and what it should achieve, namely that it--
· be prepared and revised having regard to the vision
statement described under Division 1 of Part 2 and
transport system objectives described under Division 2
of Part 2 and decision making principles outlined in
Division 3 of Part 2;
· include explicit links to the vision statement described
under Division 1 of Part 2 and transport system
objectives described under Division 2 of Part 2;
· set out the policy context for the Victorian Transport
Plan including transport and land use policies and the
impacts of those policies;
· demonstrate an integrated approach to transport and
land use planning. As part of this the Victorian
Transport Plan can consider the short and long term
impact of strategic directions and actions on land use
and support Government land use policy. The planning
portfolio can input into this aspect of the Victorian
Transport Plan;
· identify the challenges that the Victorian Transport
Plan seeks to address. As part of this it is intended that
the Victorian Transport Plan should identify the
current and future transport challenges and broader
challenges that transport has a role in addressing;
47
· include medium to long term strategic directions,
priorities and actions. It is intended that as part of this
the Victoria Transport Plan will have a degree of
flexibility in adapting medium to long term directions,
priorities and actions;
· include a short term action plan that is regularly
updated. As part of this the Victoria Transport Plan
can identify funding, timeframes and responsibilities.
This would include both infrastructure and non-
infrastructure actions. Some of the actions may relate
to preliminary work to progress medium and long term
actions. Short term actions should be consistent with
the medium to long term strategic directions.
Subclause (3) allows the Minister to direct the Department to
prepare a revision of the Victorian Transport Plan. Allowing
the Minister to direct that the Department revise the Victorian
Transport Plan ensures that the Victorian Transport Plan will
be updated regularly so it remains practical and relevant.
Subclause (4) provides that the Minister may publish Victorian
Transport Plan, as it is revised from time to time.
Subclause (5) stipulates that the Victorian Transport Plan
which was published by the Victorian Government in 2008 will
be deemed to have been prepared under clause 63.
Clause 64 provides guidance on the preparation of corporate plans by
certain transport bodies.
Subclause (1) provides that the Department must prepare a
corporate plan which provides a three year outlook.
The corporate plan must be submitted to the Minister.
Subclause (2) states that the Department must ensure that the
corporate plan--
· gives effect to the objects of the Department;
· supports the vision statement provided at Division 1 of
Part 2 and seeks to implement the transport system
objectives provided at Division 2 of Part 2;
· specifies strategic priorities and performance measures
for the transport system.
48
Subclause (3) provides guidance to transport bodies, to which
clause 64 applies, for the preparation of the transport body's
corporate plan. A transport body must ensure that it--
· prepares a corporate plan which specifies the outlook
for that transport body for a period of not less than three
years;
· submits its corporate plan to the Minister.
Subclause (4) provides that a transport body to which clause 64
applies must ensure that the corporate plan--
· gives effect to the object of the transport body;
· supports the vision statement provided at Division 1 of
Part 2 and seeks to implement the transport system
objectives provided at Division 2 of Part 2;
· is consistent with the strategic priorities and
performance measures specified in the Department's
corporate plan.
Subclause (5) requires each transport body, during the
development of its corporate plan, to consult with the
Department and any transport bodies which will be affected by
the corporate plan. It is intended that, in doing so, each transport
body will have a better regard to how its corporate plan will
impact upon the policy or operations of other transport bodies.
Subclause (6) requires the Department to provide assistance to
the transport bodies and facilitate consultation between them.
For example, it is intended that the Department would assist
transport bodies to identify areas where their respective
corporate plans may impact upon one another.
It is the intention of subclause (6) that to the extent that anything
proposed by a transport body's corporate plan would impact
upon the policy or operations of any other transport body, the
Department will facilitate consultation between the relevant
transport bodies and those transport bodies should endeavour to
ensure consistency between their corporate plans.
Subclause (7) clarifies that for the purposes of clause 64 that a--
corporate plan means an annual plan that includes challenges,
priorities, strategies, performance measures and major initiatives
and projects;
49
transport body to which this section applies means a transport
corporation, a transport safety agency or a transport system
agency.
PART 5--TRANSPORT SYSTEM AGENCIES
Part 5 of the Bill provides for Transport System Agencies, that is, the
Director of Public Transport and the Roads Corporation.
Transport System Agencies are characterised by their central role in the
overall management and operation of the transport system and their largely
similar infrastructure responsibilities. This grouping also reflects the
interdependence of road and public transport (e.g. public transport operating
on roads).
It is the intention of this grouping to ensure collaboration between the Roads
Corporation and the Director of Public Transport as part of an integrated
transport system, which is also reflected in their similarly framed objects and
functions.
Division 1 provides the establishment, object, functions and powers of the
Director of Public Transport and Division 2 provides for the establishment,
object, functions and powers of the Roads Corporation.
Division 1--Director of Public Transport
Division 1 of Part 5 of the Bill sets out the provisions relating to the Director
of Public Transport.
Clause 65 provides that there is to be a Director of Public Transport.
The Director of Public Transport is an office rather than an
appointment and therefore the Bill does not provide for the
appointment and removal of the Director of Public Transport.
Subclause (1) provides that there is to be a Director of Public
Transport who will be employed under Part 3 of the Public
Administration Act 2004.
Subclause (2) provides that the person who is the Director of
Public Transport under section 8 of the Transport Act 1983
immediately before the commencement of clause 65 of the Bill
continues to be the Director of Public Transport.
Clause 66 provides the object for the Director of Public Transport.
The Director of Public Transport has a primary object which is
supported by further detail which should be considered inclusive
and indicative of the primary object, but not exhaustive. It is
intended that the object for the Director of Public Transport will
50
be consistent with the vision statement and transport system
objectives.
Subclause (1) states that the primary object of the Director of
Public Transport is to provide, operate and maintain the public
transport system consistent with the vision statement and the
transport system objectives.
Subclause (2) provides that, without limiting the generality of
subclause (1), the primary object includes that the Director of
Public Transport will--
· ensure, in collaboration with other transport bodies and
public entities, that the public transport system operates
as part of an integrated transport system which seeks to
meet the needs of all transport system users;
· manage the public transport system in a manner which
supports a sustainable Victoria by--
· seeking to increase the share of public transport
trips as a proportion of all transport trips in
Victoria;
· while seeking to increase the share of public
transport trips as a proportion of all transport
trips in Victoria, also seeking to improve the
environmental performance and minimise the
adverse environmental impacts of the public
transport system;
· contribute to social wellbeing by providing access to
opportunities and supporting liveable communities;
· promote economic prosperity through efficient and
reliable movement of public transport system users
while also supporting rail freight services;
· improve the safety of public transport for public
transport system users in collaboration with relevant
bodies.
Clause 67 provides the functions of the Director of Public Transport.
The functions have been specifically conferred on the Director
of Public Transport to enable the achievement of the object of
the Director of Public Transport.
51
Subclause (1) provides that the functions of the Director of
Public Transport are to--
· construct, maintain or vary, or assist other transport
bodies to construct, maintain or vary, public transport
infrastructure, including rail infrastructure, roads, road-
related infrastructure, roadsides and other transport
assets;
· plan for the public transport system as part of an
integrated transport system;
· develop and implement policies and strategies to
improve the safety and security of the public transport
system;
· develop and implement operational policies, plans,
guidelines, standards, limits and practices for the public
transport system and related matters consistent with
strategic policies and plans of the Department;
· provide and operate, or facilitate the provision and
operation of, public transport including by--
· entering and managing contracts for passenger
services and other ancillary or incidental
transport services;
· operating passenger services and other ancillary
or incidental transport services;
· purchasing, putting into service and maintaining
rolling stock, buses or other vehicles for
passenger services or other transport services;
· provide licensing and accreditation services for the
public transport system and related matters;
· provide advice to the Secretary to assist in development
of strategic policy and legislation relating to the
transport system and related matters;
· monitor and report to the Minister on whether the
provision of passenger services meets Government,
contractual and community expectations;
52
· protect future options for the improvement of the
transport system including holding, retaining and
reserving land for future rail corridors, for passenger
and rail freight services;
· develop and implement effective environmental
policies, strategies and management systems consistent
with the strategic policy of the Department to support a
sustainable transport system and minimise any adverse
environmental impacts from the public transport system;
· provide, or arrange for the provision and dissemination
of information to Victorians about public transport
matters including services, fares and timetables;
· perform any other functions or duties conferred on the
Director of Public Transport by any other Act or any
regulations under any other Act.
Subclause (2) provides that, in performing its functions set out in
subclause (1), the Director of Public Transport must--
· engage with stakeholders so as to ensure better
outcomes for all Victorians;
· conduct research and collect information relating to the
performance of the functions and the operation of the
public transport system so as to enable the Director of
Public Transport to meet the primary object of the
Director of Public Transport;
· efficiently deal with or make arrangements for dealing
with any complaints relating to the performance of the
functions of the Director of Public Transport or the
performance of a public transport operator.
Clause 68 provides the Director of Public Transport with certain powers.
It is intended that the powers will provide the Director of Public
Transport with the capacity to undertake the functions conferred
on the Director of Public Transport.
Subclause (1) provides the Director of Public Transport with the
power, on behalf of the Crown, to do all things that are
necessary or convenient to be done for or in connection with, or
as incidental to, the achievement of the object of the Director of
Public Transport and the performance of his or her functions.
53
Subclause (2) provides that, without limiting the generality of
subclause (1), the Director of Public Transport may on behalf of
the Crown--
· conduct or undertake the general administration of
arrangements entered into with a body corporate to
provide passenger services or other transport services in
connection with the functions of the Director of Public
Transport;
· enter into any agreement or contract to support the
provision of passenger services or other transport
services in connection with the functions of the Director
of Public Transport;
· enter into any lease or license to support the provision
of passenger services or other transport services in
connection with the functions of the Director of Public
Transport;
· acquire, own, build, maintain and operate public
transport infrastructure and related infrastructure;
· enter into an agreement relating to the allocation of
revenue which is derived from the provision of any
passenger services or other transport services;
· give indemnities, guarantees, releases and charges, and
anything else of a similar nature;
· exercise the powers conferred on the Director of Public
Transport by any other Act or any regulations under any
other Act.
Subclause (3) provides that, without limiting the generality of
subclause (1), the Director of Public Transport may on behalf of
the Crown--
· acquire, hold or dispose of real or personal property;
· participate in the formation of a corporation, trust,
partnership or other body;
· subscribe for or otherwise acquire, and hold and dispose
of, shares in, or debentures or other securities of, a
corporation;
54
· become a member of a company limited by guarantee;
· subscribe for or otherwise acquire, and hold and dispose
of, units in a trust;
· acquire, and hold and dispose of, an interest in a
partnership or other body;
· enter into partnership or into any arrangement for
sharing of profits, union of interest, co-operation, joint
venture, reciprocal concession or otherwise, with any
person or body carrying on or engaged in, or about to
carry on or engage in, any business or transaction
whether within or outside Victoria relating to, or
connected with, any function of the Director of Public
Transport;
· acquire (whether by creation, lease, licence, receiving
the assignment or grant of, or otherwise), hold, accept as
a security, or otherwise deal with, any intellectual
property right (for example, a trade mark, patent,
design, copyright (including an associated moral right),
plant breeder's right, circuit layout right, trade secret, or
right arising from confidential information);
· assign, grant, lease, licence, sell, mortgage, use as a
security, or otherwise encumber or dispose of, any
intellectual property right;
· seek any remedy in relation to, or do anything necessary
to enforce, protect, maintain, register or exploit, any
intellectual property right;
· seek any remedy in relation to, or do anything necessary
to enforce, protect, maintain or exploit any Crown
copyright;
· engage consultants, contractors or agents;
· act as an agent of another person.
Subclause (4) provides that the generality of clause 68 is not
limited by any other provision of the Bill or any other Act which
confers a power on the Director of Public Transport.
55
Clause 69 provides the Director of Public Transport with powers in relation
to land.
Subclause (1) provides that the Director of Public Transport may
on behalf of the Crown, acquire, hold or dispose of land; and
otherwise deal with any land held by the Director of Public
Transport.
Subclause (2) provides that any acquisition (including any
compulsory acquisition under clause 71) or disposition of or
other dealing with land by the Director of Public Transport on
behalf of the Crown must be made in the name of "Director of
Public Transport".
Subclause (3) provides that without limiting subclause (1), the
Director of Public Transport may, on behalf of the Crown,
dispose of or otherwise deal with land that is held by the
Director of Public Transport and was acquired under this Act or
the Transport Act 1983 (is in force immediately before the
commencement of clause 69) in the name of "Director of Public
Transport" by any person who previously held, acted in or
performed the duties of, the office of Director of Public
Transport.
Clause 70 provides the process for the recording of dealings in land.
Subclause (1) provides that if the Director of Public Transport
acquires any land on behalf of the Crown, any recording in the
Register by the Registrar of Titles of the acquisition must be
made in the name of "Director of Public Transport" as registered
proprietor.
Subclause (2) provides that if the Director of Public Transport,
on behalf of the Crown, disposes of or otherwise deals with any
land held in the name of "Director of Public Transport", any
recording in the Register by the Registrar of Titles of the
disposition or dealing must be made in the name of "Director of
Public Transport".
Subclause (3) provides that if the Director of Public Transport,
on behalf of the Crown, lodges with the Registrar of Titles any
dealing in relation to any land, the Registrar must make any
recording in relation to that dealing in the name of "Director of
Public Transport".
Subclause (4) provides that to avoid doubt, land acquired in fee
simple by the Director of Public Transport on behalf of the
Crown is Crown land.
56
Subclause (5) provides that despite subclause (4) and anything to
the contrary in the Land Act 1958 or the Transfer of Land Act
1958, if land acquired by the Director of Public Transport on
behalf of the Crown--
· is under the operation of the Transfer of Land Act
1958, it remains under the operation of that Act; and
· is not under the operation of the Transfer of Land Act
1958, it may be brought under the operation of that Act.
Clause 71 provides the Director of Public Transport with compulsory
acquisition powers.
The compulsory acquisition power of the Director of Public
Transport requires Ministerial approval and the acquisition and
compensation requirements in the Land Acquisition and
Compensation Act 2009 will apply.
Subclause (1) allows the Director of Public Transport, subject to
the approval of the Minister and on behalf of the Crown, to
compulsorily acquire any land which is or may be required by
the Director of Public Transport for or in connection with the
performance of his or her functions or the exercise of his or her
powers.
Subclause (2) provides that the Land Acquisition and
Compensation Act 1986 applies to the Bill and for that
purpose--
· the Transport Integration Act 2009 is the special Act;
· the Director of Public Transport is the Authority;
· land includes strata above or below the surface of land
and easements and rights to use land or strata above or
below the surface of the land;
· section 75 of the Land Acquisition and Compensation
Act 1986 has effect as if it empowered the Authority to
enter any land and section 75(6) did not apply.
Subclause (3) provides that where the Director of Public
Transport is liable to pay in full or part settlement of any
compensation, the Director of Public Transport, may on behalf
of the Crown--
57
· transfer a building from land owned by a person entitled
to the compensation to other land owned either by that
person or by the Director of Public Transport on behalf
of the Crown; or
· transfer a building from land owned by the Director of
Public Transport on behalf of the Crown to other land
owned either by the Director of Public Transport on
behalf of the Crown or by a person entitled to the
compensation.
Subclause (4) provides that if the Director of Public Transport
compulsorily acquires any land under clause 71--
· the Director of Public Transport may on behalf of the
Crown require the owner of the land to take any land
adjoining it that is owned by the Director of Public
Transport on behalf of the Crown and is no longer
required by the Director of Public Transport on behalf
of the Crown; and
· the value of that adjoining land must be deducted from
any sum to be paid by way of compensation to the
owner for the compulsory acquisition; and
· if that value cannot be agreed between the Director of
Public Transport on behalf of the Crown and the owner
it must be settled in the same manner and at the same
time as the compensation to be paid to the owner.
Clause 72 provides guidance for where the Director of Public Transport has
acquired any right to use land or any right in the nature of an
easement or purporting to be an easement.
Subclause (1) provides that where the if any right to use land or
any right in the nature of an easement or purporting to be an
easement is acquired by the Director of Public Transport on
behalf of the Crown, it is deemed for all purposes to be an
easement even though there is no land vested in or held by the
Director of Public Transport on behalf of the Crown that is in
fact benefited or capable of being benefited by that right.
Subclause (2) provides that if by or under the Bill any private
right of way or easement is extinguished or if any easement is
acquired by the Director of Public Transport on behalf of the
Crown then--
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· the Registrar of Titles must make any recordings in the
Register that are necessary or expedient because of that
extinguishment or acquisition; and
· the holder of any relevant certificate of title must deliver
it to the Registrar of Titles.
Subclause (3) provides that subclause (2) does not apply to an
easement acquired compulsorily by the Director of Public
Transport on behalf of the Crown.
Clause 73 allows the Director of Public Transport to use Crown lands
reserved under the Crown Land (Reserves) Act 1978.
Subclause (1) provides that the Director of Public Transport can
use any Crown land for transport purposes. Before the Director
of Public Transport uses the Crown land, the Director of Public
Transport must have the approval of the Minister administering
the Act relating to the management or use of the land, given by
the Minister in accordance with any requirements which apply
under that Act.
Subclause (2) provides that if any Crown land proposed to be so
used by the Director of Public Transport is reserved under the
Crown Land (Reserves) Act 1978 for a purpose which is
inconsistent with that use, the Director of Public Transport must
not use the land unless and until the reservation is revoked in
accordance with section 9 of that Act.
Clause 74 provides the Director of Public Transport with extraterritorial
powers, allowing it to perform its functions and execute its
powers outside Victoria.
The extraterritoriality powers will assist the Director of Public
Transport achieve his or her object by, for example, enabling
cross-border leasing or joint contracting with other states or
territories.
Clause 75 prescribes that the Director of Public Transport is subject to the
direction of the Minister.
Subclause (1) provides that the Director of Public Transport is
subject to the general direction and control of the Minister and
must comply with any specific directions given by the Minister.
Subclause (1) operates subject to subclause (2).
Subclause (2) provides that the Director of Public Transport
cannot be given any direction by the Minister or the Secretary as
to the quantum of any amount payable under section 68 of the
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Rail Management Act 1996 for breach of a civil penalty
provision with the meaning of that section.
Section 68 of the Rail Management Act 1996 sets out civil
penalty provisions for the purposes of that Act.
Clause 76 requires the Director of Public Transport to develop contingency
planning.
Specifically, the Director of Public Transport must develop and
maintain a contingency plan for the possible exercise of a power
under clause 67(1)(e)(ii).
Clause 77 provides that the Director of Public Transport must conduct a
cost-benefit analysis of relevant rail safety projects.
Subclause (1) provides that clause 77 applies to a relevant rail
safety project in relation to which--
· the Director, Transport Safety makes a rail safety
recommendation; and
· the Director of Public Transport considers may have the
effect of resulting in significant costs or expenses being
incurred by the Crown.
Subclause (2) provides that the Director of Public Transport,
before undertaking or funding a relevant rail safety project the
subject of a rail safety recommendation, must--
· conduct or cause to be conducted a cost-benefit analysis
of the relevant rail safety project; and
· consult with--
· the Premier, the Treasurer and any other Minister
whose area of responsibility may be affected by
the proposed rail safety project; and
· any other person specified in guidelines prepared
under clause 78.
Subclause (3) provides that the cost-benefit analysis and
consultation must be conducted--
· in accordance with guidelines prepared under clause 78;
and
· before the Director of Public Transport undertakes or
funds the relevant rail safety project.
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Clause 78 provides that the Minister may prepare guidelines for the
purposes of cost benefit analysis and consultation.
Subclause (1) provides that the Minister may prepare guidelines
for the purposes of cost-benefit analyses and consultation
conducted under clause 77.
Subclause (2) provides that before preparing guidelines under
this clause the Minister must consult with the Premier and the
Treasurer.
Subclause (3) provides that guidelines under this clause may--
· include guidelines about the methodology to be applied
in a cost-benefit analysis conducted under clause 77;
· require the Director of Public Transport to obtain an
independent assessment about the methodology to be
applied in a cost-benefit analysis that is conducted under
clause 77;
· include guidelines about the procedure for consultation
under clause 77.
Clause 79 provides a delegation power for the Director of Public Transport.
Subclause (1) provides that the Director of Public Transport may
delegate to any person, by instrument, any of its functions, duties
or powers under any Act or regulations, including the power of
delegation subject to subclause (3).
Subclause (2) provides that a delegation under this clause may
be made--
· in relation to a person or class of persons specified in
the instrument of delegation; or
· in relation to the holder, or the holder from time to time,
of an office specified, or of each office in a class of
offices specified, in the instrument of delegation.
Subclause (3) provides that a person to whom a power, duty or
function has been delegated under subclause (1) may, subject to
and in accordance with the instrument of delegation under
subclause (1), by instrument delegate to another person that
power, duty or function.
Subclause (4) provides that Sections 42 and 42A of the
Interpretation of Legislation Act 1984 apply to a sub-
delegation under subclause (3) as if it were a delegation.
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Section 42 allows the delegate's state of mind to be applied to
the exercise of a delegated power, duty or function where
relevant to the exercise of that power or performance of a duty
or function.
Section 42A allows the delegator to exercise the delegated
power or perform the delegated duty or function and allows for
delegations to be subject to conditions.
Division 2--Roads Corporation
Division 2 of Part 5 of the Bill sets out provisions relating to the Roads
Corporation.
Clause 80 provides for the continuation of the Roads Corporation and
matters relating to its constitution.
Subclause (1) provides that the Roads Corporation in the Bill is
the continuation of the Roads Corporation established under
section 15 of the Transport Act 1983 as in force immediately
before the commencement of clause 80 of the Bill.
Subclause (2) sets out that the Roads Corporation is to consist of
one member. That member is the person appointed as Chief
Executive of the Roads Corporation by the Governor in Council.
Subclause (3) provides the key responsibility of the Chief
Executive of the Roads Corporation, namely that the Chief
Executive is responsible for the management of the functions of
the Roads Corporation consistent with the primary object of the
Roads Corporation.
Subclause (4) provides that the Roads Corporation--
· is a body corporate with perpetual succession;
· has an official seal;
· may sue and be sued;
· may acquire, hold and dispose of real and personal
property;
· may do and suffer all acts and things that a body
corporate may by law do and suffer.
Clause 81 sets out the official seal provisions of the Roads Corporation.
Subclause (1) provides that the official seal of the Roads
Corporation must be kept in such custody as the Roads
Corporation directs and must not be used except as authorised by
the Roads Corporation.
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Subclause (2) provides that all courts must take judicial notice of
the official seal of the Roads Corporation affixed to a document
and, until the contrary is proved, must presume that it was duly
affixed.
Clause 82 sets out the trading name for the Roads Corporation.
Despite anything to the contrary in the Business Names Act
1962 or any other Act or law, the Roads Corporation will be able
to carry on business under the name "VicRoads".
Clause 83 provides that the Roads Corporation represents the Crown when
it is performing its functions and exercising its powers.
Clause 84 sets out matters relating to the office of the Chief Executive of
the Roads Corporation.
Subclause (1) provides that the Governor in Council may
appoint a person to the office of Chief Executive of the Roads
Corporation. The Governor in Council may also, at any time,
remove or suspend a person from the office of the Chief
Executive of the Roads Corporation.
Subclause (2) provides that the person who immediately before
the commencement of this clause was the Chief Executive of the
Roads Corporation under clause 1(1) of Schedule 1A to the
Transport Act 1983 (as in force immediately before the
commencement of clause 84) will continue to be the Chief
Executive of the Roads Corporation.
Subclause (3) specifies that the Chief Executive has the ability to
resign from the office in writing signed by the Chief Executive
and delivered to the Governor in Council.
If the Chief Executive of the Roads Corporation is unable,
whether because of illness, suspension, absence or otherwise, to
perform the duties of the office of Chief Executive, Subclause
(4) allows the Minister to appoint another person to act in the
place of the Chief Executive during the period of the inability.
Subclause (5) indicates that a person who is appointed to act in
place of the Chief Executive of the Roads Corporation under
subclause (4) will--
· have all the rights and powers, and must perform all the
duties, of the Chief Executive of the Roads Corporation;
and
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· be paid any remuneration and travelling or other
allowances fixed by the Minister from time to time,
having regard to the rate of remuneration and
allowances for the time being payable to the Chief
Executive of the Roads Corporation.
Subclause (6) provides direction on the appointment of the Chief
Executive of the Roads Corporation, including that the Chief
Executive--
· holds office--
· for the period (not more than 5 years) that is
specified in his or her instrument of appointment
and is eligible to be re-appointed;
· on the terms and conditions specified in his or
her instrument of appointment;
· is entitled to be paid any remuneration and travelling
and other allowances fixed from time to time by the
Governor in Council;
· is to be appointed on a full-time basis.
The applicability of Public Administration Act 2004 (other
than Part 3 of that Act) to the Chief Executive of the Roads
Corporation in respect of the office of the Chief Executive of the
Roads Corporation is provided in subclause (7).
Clause 85 provides for the validity of acts or decisions of the Roads
Corporation.
Acts or decisions are not considered to be invalid because of a
vacancy in the office of Chief Executive, or because of a defect
or irregularity in, or in connection with, the appointment of the
Chief Executive or in the case of a person appointed to act as the
Chief Executive, on the ground that the occasion for the person
so acting had not arisen or had ceased.
Clause 86 provides the object for the Roads Corporation.
The Roads Corporation has a primary object which is supported
by further detail which should be considered inclusive and
indicative of the primary object, but not exhaustive. It is
intended that the object for the Road Corporation will be
consistent with the vision statement and transport system
objectives.
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Subclause (1) states that the primary object of the Roads
Corporation is to provide, operate and maintain the road system
consistent with the vision statement and the transport system
objectives.
Specific responsibilities for the Roads Corporation related to
roads are principally provided in the Road Management Act
2004.
Subclause (2) provides that, without limiting the generality of
subclause (1), the primary object includes that the Roads
Corporation will--
· ensure, in collaboration with other transport bodies and
public entities, that the road system operates as part of
an integrated transport system which seeks to meet the
needs of all transport system users;
· manage the road system in a manner that supports a
sustainable Victoria. This will include seeking to
increase the share of public transport, walking and
cycling trips as a proportion of all transport trips in
Victoria. While seeking to increase the share of public
transport, walking and cycling trips the Roads
Corporation will also need to seek to improve the
environmental performance and minimise the adverse
environmental impacts of the road system;
· contribute to social wellbeing by providing access to
opportunities and supporting liveable communities;
· promote economic prosperity through efficient and
reliable movement of persons and goods;
· in collaboration with relevant bodies including other
road authorities, Victoria Police, the Transport Accident
Commission, the Director of Public Transport, the
Director, Transport Safety, the Department and the
Department of Justice, to improve the safety of the road
system for road users and seek to reduce deaths and
injuries.
Clause 87 provides the functions of the Roads Corporation.
Subclause (1) provides that that functions of the Roads
Corporation are to--
· construct, maintain or vary roads, rail infrastructure and
other transport assets;
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· provide and maintain roadsides;
· plan for the road system as part of an integrated
transport system;
· lead in the development and implementation of strategic
and operational policies and plans to improve the safety
of the road system for all users. This can occur
through--
· works to improve the safety of road and road-
related infrastructure;
· information and advice on the safety of motor
vehicles and motor vehicle standards;
· education and training to improve the safety of
road user behaviour;
· enforcement activities;
· road safety legislation, regulations, standards,
guidelines and practices;
· develop and implement operational policies and plans,
including through legislation, regulations, standards,
guidelines and practices, for the road system and related
matters consistent with the strategic policies and plans
of the Department;
· operate the road system by managing access and
controlling use. This includes--
· installing, operating and maintaining road and
road-related infrastructure such as signals,
signage, line markings, intelligent transport
systems and other road management systems;
· implementing road space allocation measures to
give priority to particular modes of transport at
certain times on specified roads or parts of roads;
· managing road works and incidents and events
on roads in a manner which minimises disruption
to the road system;
· implementing an appropriate enforcement
strategy;
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· provide registration, licensing and accreditation services
for the transport system and related matters;
· provide technical, project management, consultancy and
information services related to the transport system,
including on a commercial basis consistent with
government policy;
· provide advice to the Secretary to assist in the
development of strategic policy and legislation relating
to the transport system and related matters;
· protect future options for the improvement of the
transport system including reserving land for future
transport corridors;
· develop and implement effective environmental
policies, strategies and management systems consistent
with the strategic policy of the Department to support a
sustainable transport system, including minimising any
adverse environmental impacts from the road system;
· provide and disseminate information to Victorians about
the road system and related matters, including on a
commercial basis consistent with government policy;
· perform any other functions or duties conferred on the
Roads Corporation by any other Act or any regulations
under any other Act.
Subclause (2) provides that, in performing its functions set out in
subclause (1), the Roads Corporation must--
· engage with stakeholders so as to ensure better
outcomes for all Victorians;
· conduct research and collect information relating to the
performance of the functions and the operation of the
road system so as to enable the Roads Corporation to
meet the primary object of the Roads Corporation;
· efficiently deal with any complaints relating to the
performance of its functions.
Subclause (3) provides that the Roads Corporation must seek the
approval of the Minister to perform the functions outlined in
subclauses (1)(g) and (1)(h) where those functions are not
related to the transport system including law enforcement.
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Clause 88 provides the powers of the Roads Corporation.
It is intended that the powers will provide the Roads Corporation
with the capacity to undertake the functions conferred on the
Roads Corporation.
Subclause (1) sets out that the Roads Corporation has the power
to do all things that are necessary or convenient to be done for or
in connection with, or as incidental to, the achievement of the
object of the Roads Corporation and the performance of the
functions of the Roads Corporation.
Subclause (2) provides that, without limiting the generality of
subclause (1), the Roads Corporation has the power to--
· enter into any agreement or contract;
· enter into any lease or licence;
· participate in the formation of a corporation, trust,
partnership or other body;
· subscribe for or otherwise acquire, and hold and dispose
of, shares in, or debentures or other securities of, a
corporation;
· become a member of a company limited by guarantee;
· subscribe for or otherwise acquire, and hold and dispose
of, units in a trust;
· acquire, and hold and dispose of, an interest in a
partnership or other body;
· enter into partnership or into any arrangement for
sharing of profits, union of interest, co-operation, joint
venture, reciprocal concession or otherwise, with any
person or body carrying on or engaged in, or about to
carry on or engage in, any business or transaction
whether relating to, or connected with, any function of
the Roads Corporation;
· make any land or other property vested or managed by
the Roads Corporation or any person employed by the
Roads Corporation available for use or engagement by
any other person;
· give an indemnity as part of entering into an agreement,
contract, lease or licence;
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· acquire (whether by creation, lease, licence, receiving
the assignment or grant of, or otherwise), hold, accept as
a security, or otherwise deal with, any intellectual
property right (for example, a trade mark, patent,
design, copyright (including an associated moral right),
plant breeder's right, circuit layout right, trade secret, or
right arising from confidential information);
· assign, grant, lease, licence, sell, mortgage, use as a
security, or otherwise encumber or dispose of, any
intellectual property right;
· seek any remedy in relation to, or do anything necessary
to enforce, protect, maintain, register or exploit, any
intellectual property right;
· seek any remedy in relation to, or do anything necessary
to enforce, protect, maintain or exploit any Crown
copyright;
· engage consultants, contractors or agents;
· act as an agent of another person.
Subclause (3) sets out that without limiting the generality of
subclause (1), the Roads Corporation will also be able to
exercise powers conferred on the Roads Corporation by any
other Act or regulations under any other Act.
Subclause (4) provides that the generality of clause 88 is not
limited by any other provision of the Bill or any other Act which
confers a power on the Roads Corporation.
Clause 89 provides the Roads Corporation with powers in relation to
non-transport system functions.
Subclause (1) does not intend to limit or derogate from any other
powers of the Roads Corporation. The powers of the Roads
Corporation in relation to the non-transport system functions
specified in clause 87(3) are--
· to apply for, obtain and hold intellectual property rights
(including patents, copyrights, trade marks and
registered designs);
· to enter into agreements or arrangements for the
commercial exploitation within or outside Victoria of
those intellectual property rights and ancillary services
on any terms or conditions as to royalties, lump sum
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payments or otherwise as the Roads Corporation
determines;
· to enter into agreements or arrangements within or
outside Victoria for the provision by the Roads
Corporation of administration, management or
information systems or services.
Clause 90 allows the Roads Corporation to employ persons.
Subclause (1) indicates that the Roads Corporation may employ
any persons for the purpose of carrying out the object, functions,
powers and duties of the Roads Corporation.
Subclause (2) specifies that any persons employed by the Roads
Corporation are to be employed on the terms and conditions
determined by the Roads Corporation and approved by the
Minister.
Clause 91 provides the Roads Corporation with the ability to dispose of
assets in exchange for a lease.
Only with the approval of the Minister administering Part 7 of
the Financial Management Act 1994 and the Minister, the
Roads Corporation may dispose of any real or personal property
under an arrangement by which the Roads Corporation is to take
a lease of the property disposed of or of any other real or
personal property.
Clause 92 allows the Roads Corporation to use or manage Crown lands
reserved under Crown Land (Reserves) Act 1978.
Subclause (3) provides that the Roads Corporation may use any
Crown land for transport purposes. Before the Roads
Corporation uses the Crown land, the Roads Corporation must
have the approval of the Minister administering the Act relating
to the management or use of the land, given by the Minister in
accordance with any requirements which apply under that Act.
Subclause (2) provides that if any Crown land which is proposed
to be so used or managed by the Roads Corporation is reserved
under the Crown Land (Reserves) Act 1978 for a purpose
which is inconsistent with that use or management, the Roads
Corporation can not use or manage the land unless and until the
reservation is revoked in accordance with section 9 of that Act.
Subclause (3) provides that the Roads Corporation must
compensate, in respect of the use or management under
clause 92 by the Roads Corporation of any Crown land reserved
under the Crown Land (Reserves) Act 1978 for a purpose
70
inconsistent with that use, in the manner and to the extent agreed
upon by the Roads Corporation and the Minister administering
the Crown Land (Reserves) Act 1978.
Subclause (4) provides that an agreement to compensate under
subclause (3) may provide for--
· the payment by the Roads Corporation of a sum of
money as agreed upon by the Roads Corporation and
the Minister administering the Crown Land (Reserves)
Act 1978; or
· the undertaking of works or the making of provision by
the Roads Corporation in place of any improvements on
the land as agreed upon by the Roads Corporation and
the Minister administering the Crown Land (Reserves)
Act 1978; or
· both the payment of a sum of money as agreed upon by
the Roads Corporation and the Minister administering
the Crown Land (Reserves) Act 1978 and the
undertaking of works or the making of provision by the
Roads Corporation in place of any improvements on the
land as agreed upon by the Roads Corporation and the
Minister administering the Crown Land (Reserves)
Act 1978.
Where an agreement under subclause (3) provides for the
payment of a sum of money, subclause (5) provides that the
money must, unless the Minister administering the Crown Land
(Reserves) Act 1978 otherwise directs, be paid to that Minister.
Subclause (6) allows the Minister administering the Crown
Land (Reserves) Act 1978 to direct that money to be paid under
an agreement under subclause (3) to be paid to--
· the trustees in whom or the Council in which the land is
vested; or
· the committee of management appointed in respect of
the land; or
· the authority under whose control and management the
land has been placed pursuant to section 18 of the
Crown Land (Reserves) Act 1978; or
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· any other person or persons as are agreed upon by the
Roads Corporation and the Minister administering the
Crown Land (Reserves) Act 1978; and
· applied as directed by the Minister.
Subclause (7) allows the Governor in Council to determine any
dispute arising about the amount of any sum of money payable
under clause 92.
Clause 93 provides for the granting of unalienated land.
In particular, subclause (1) specifies that clause 93 applies to any
land which has been vested in the Roads Corporation under the
Bill or the Transport Act 1983 (as in force immediately before
the commencement of clause 93) which was immediately prior
to its use or management for transport purposes unalienated land
of the Crown whether set apart as a government road or not.
Subclause (2) provides that the Governor in Council, on the
recommendation of the Minister administering section 22A of
the Land Act 1958 may grant that land to the Roads Corporation
subject to any conditions, exceptions and reservations as the
Governor in Council considers appropriate. Subclause (2)
operates subject to subclause (3).
Subclause (3) specifies that clause 93 is subject to section 8 of
the Crown Land (Reserves) Act 1978 and section 349 of the
Land Act 1958.
Clause 94 provides the Roads Corporation with guidance on dealing with
surplus land and allows it to grant certain leases for nominal
consideration.
Subclause (1) provides that following the approval of the
Minister, the Roads Corporation is able to deal with the surplus
land in any way outlined in subparagraphs (a) to (c) such as sell
the surplus land, grant leases of any surplus land or develop the
surplus land.
Subclause (2) specifies that if a Property Trust has been
promoted under clause 94 then the trustees of that Property Trust
must be appointed by the Minister.
Subclause (3) provides definitional guidance for two terms used
in clause 94, namely--
develop which means improve land for any commercial or civic
or other public or private purpose, including by the construction,
demolition or substantial alteration of any structure in or upon
the land or the excavation of the land; and
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surplus land which means land which is vested in the Roads
Corporation and no longer required for transport purposes.
Clause 95 provides the Roads Corporation with the power to acquire land
or an interest in land to achieve environmental sustainability.
This power will enable the Roads Corporation to better fulfil
the objectives of the 2002 Native Vegetation Management:
A Framework for action when considering proposals involving
native vegetation, including deciding offsets and ensuring that
net gain is the outcome for native vegetation and habitat where
overall gains are greater than overall losses and individual losses
are avoided where possible.
Subclause (1) provides that the power to acquire land or an
interest in land to achieve environmental sustainability is not
intended to limit, any other power conferred on the Roads
Corporation.
Subclause (2) specifies that the Roads Corporation may acquire
by negotiation any land or interest in any land which the Roads
Corporation considers is reasonably necessary to avoid,
minimise and offset harm to the local and global environment
arising out of the performance of its functions or the exercise of
its powers.
Clause 96 provides the Roads Corporation with the power to enter
buildings after giving 7 days notice.
This power of entry is required to allow the Roads Corporation
to inspect and record the condition of properties in the vicinity of
planned works, before those works commence.
Following notice to the occupier of the building the Roads
Corporation may--
· enter the building at any reasonable hour in the day-
time;
· inspect, make measurements and drawings and take
photographs of the building;
· take any other measures the Roads Corporation
considers are necessary to ascertain the construction and
condition of the building.
Clause 97 provides the Roads Corporation with extraterritorial powers,
allowing it to perform its functions and exercise its powers
outside Victoria.
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In addition, the Roads Corporation will be able to perform its
functions and exercise its powers outside Australia subject to
any directions given, and conditions imposed, by the Minister.
Clause 98 provides that the Roads Corporation is subject to the direction of
the Minister.
Subclause (1) provides that the Roads Corporation is subject to
both the general direction and control, and specific directions
given by the Minister.
Subclause (2) provides that if the Roads Corporation has been
given a specific direction by the Minister under subclause (1),
the Roads Corporation may publish that specific direction in the
Government Gazette.
Clause 99 provides that the Minister can set quantitative targets for the
Roads Corporation.
Subclause (1) specifies that the Minister must make a written
determination of the quantitative targets to be attained by the
Roads Corporation in a financial year. The Minister must set
these targets after consultation with the Roads Corporation.
Subclause (2) provides that where the Minister has determined
quantitative targets for the Roads Corporation under subclause
(1), a copy of the quantitative targets must be served on the
Roads Corporation as soon as practicable after the determination
is made and then the determination must be laid before both
Houses of Parliament as soon as practicable after it has been
served on the Roads Corporation.
Subclause (3) provides the Minister with the ability to amend a
determination made under subclause (1) and the procedures to
follow following the amendment to the determination.
Subclause (4) clarifies that where there is a reference to
quantitative targets determined under subclause (1) in the Bill
then that is a reference to the quantitative targets as amended
under subclause (3) from time to time.
Subclause (5) provides that the Roads Corporation must so far as
is practicable in each financial year attain the quantitative targets
determined by the Minister under subclause (1) in relation to that
financial year.
Clause 100 allows the Treasurer or Minister administering Part 7 of the
Financial Management Act 1994 to supply the Minister certain
budgetary information for the Roads Corporation.
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In particular, subclause (1) specifies that the Treasurer or the
Minister administering Part 7 of the Financial Management
Act 1994 (or the Treasurer and that Minister acting jointly, as
the case requires) must as soon as practicable after 1 May supply
to the Minister information about any guidelines, targets and
parameters that will need to be taken into account by the Roads
Corporation in the preparation of its budgets for the next
financial year.
Subclause (2) requires the Minister to provide the information
received under subclause (1) to the Roads Corporation.
Clause 101 requires the Roads Corporation to prepare an operating budget
and a capital works budget.
Subclause (1) outlines that the Roads Corporation must submit
an operating budget and a capital works budget for the relevant
financial year to the Minister before the date fixed by the
Minister.
Subclause (2) provides that the budgets must be in a form and
contain matters required by the Minister. The Minister is able to
determine the form and matters contained following consultation
with the Minister administering Part 7 of the Financial
Management Act 1994.
Subclause (3) provides that before the Roads Corporation
submits the proposed operating budget and capital works budget,
the Roads Corporation will need to liaise with, and submit drafts
to, the Department. The date by which the drafts must be
submitted to the Department will be a date agreed with the
Secretary.
After the Roads Corporation has submitted the operating budget
and capital works budget subclause (4) provides that the
Minister must consider the budgets and as soon as practicable
after receiving the budgets advise the Roads Corporation as to
whether the budgets are approved or are approved subject to
amendment.
Subclause (5) requires the Roads Corporation to operate within
the budgets that have been approved by the Minister for the
relevant financial year.
Subclause (6) provides guidance where there is a significant
change in the budgetary situation of the Roads Corporation or
where the Minister considers that revised budgets are necessary
for the Roads Corporation. In these cases, the Roads
Corporation will need to submit to the Minister revised budgets
for the remainder of the year.
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Subclause (7) provides that where there is a revision to the
budgets under subclause (6), the Roads Corporation will need to
liaise with, and submit the revised budgets to, the Department.
The date by which the revised budgets must be submitted to the
Department will be a date agreed with the Secretary.
Subclause (8) provides that the Minister must consider the
revised budgets and as soon as practicable after receiving the
revised budgets advise the Roads Corporation as to whether the
revised budgets are approved or are approved subject to
amendment.
Subclause (9) provides that if the revised budgets are approved,
the Roads Corporation must operate within the revised budgets
from the date that the revised budgets are approved until the end
of the financial year.
Subclause (10) allows the Minister to request from the Roads
Corporation information for the year or for any ensuing year or
years about--
· the budgetary position of the Roads Corporation;
· the finances and cash position of the Roads Corporation;
· the workforce position of the Roads Corporation;
· any other factors relevant to the Roads Corporation's
operations or capital works program.
Clause 102 provides that the Minister must submit the budgets or revised
budgets that the Minister proposes to approve to the Minister
administering Part 7 of the Financial Management Act 1994
for that Minister's consideration and approval.
Where the Minister is submitting a revised budget the Minister
will also need to submit an estimate of the result of the budgets
for the Roads Corporation for which a revised budget is not
proposed.
Clause 103 provides that in the event of budget deficits for approved or
amended budgets, the Treasurer, the Minister and the Minister
administering Part 7 of the Financial Management Act 1994
must consider how that deficit is to be funded.
Clause 104 provides that where the Minister has submitted to the Treasurer
and the Minister administering Part 7 of the Financial
Management Act 1994 a proposed revised budget for the Roads
Corporation for the remainder of the year, the Minister, the
Minister administering Part 7 of that Act and the Treasurer will
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need to consider that revised budget and the method of funding
any changes in deficits in the budget of the Roads Corporation.
Clause 105 provides the Roads Corporation with the ability to operate within
an interim budget agreed to by the Minister, the Minister
administering Part 7 of the Financial Management Act 1994
and the Treasurer.
Subclause (1) provides that the Roads Corporation can operate
within an interim budget if a budget for the Roads Corporation
has not been approved at the commencement of the financial
year.
Subclause (2) provides that any deficit in an interim budget can
be funded in whole or in part by any appropriation available for
the purpose.
Subclause (3) provides that an interim budget will lapse when a
final budget is approved for the Roads Corporation.
Clause 106 allows the Minister administering Part 7 of the Financial
Management Act 1994 to request through the Minister that the
Roads Corporation provide budgetary information. If the Roads
Corporation has received a request under this clause then it must
as soon as possible provide that information as far as is
practicable.
Clause 107 provides for the establishment of a general fund for the Roads
Corporation.
Subclause (1) provides for the continuation of the general fund
that was established for the Roads Corporation under section 66
of the Transport Act 1983 (as in force immediately before the
commencement of clause 107).
Subclause (2) requires the Roads Corporation to maintain the
general fund continued under subclause (1).
Subclause (3) provides that the Roads Corporation must, with
the approval of the Minister administering Part 7 of the
Financial Management Act 1994--
· open and maintain accounts with any authorised
deposit-taking institution or institutions within the
meaning of the Banking Act 1959 of the
Commonwealth;
· maintain at least one of those accounts to be used for the
purposes of its general fund.
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Subclause (4) provides that subject to subclause (5), the Roads
Corporation must pay into its general fund all trading revenue,
interest and other money received by or paid to the Roads
Corporation.
Subclause (5) operates subject to subclause (6) and requires the
Roads Corporation to pay into the Works and Services
Account--
· all money borrowed by the Roads Corporation under the
Bill;
· all money resulting from the disposal by the Roads
Corporation of any real or personal property, whether or
not under an arrangement by which the Roads
Corporation is to enter into a lease of the property so
disposed of;
· the proceeds of any advances or financial
accommodation obtained by the Roads Corporation
under clause 108.
Subclause (6) clarifies that subclause (5) does not apply if--
· the money or proceeds are to be used for the operating
or trading activity of the Roads Corporation; or
· the Minister administering Part 7 of the Financial
Management Act 1994 otherwise approves.
Subclause (7) requires that all payments made by the Roads
Corporation must be made out of its general fund.
Subclause (8) allows the Roads Corporation to invest money in
its general fund in any manner approved by the Minister
administering Part 7 of the Financial Management Act 1994.
Clause 108 provides that the Roads Corporation is able to obtain financial
accommodation and provides a process for the payment of
financial accommodation.
Subclause (1) provides that the Roads Corporation can obtain
financial accommodation by way of overdraft. To do this, the
Roads Corporation needs to obtain the approval of the Treasurer.
Subclause (2) provides that the due repayment or satisfaction of
any advances or financial accommodation obtained under
clause 108 and the due repayment of any interest or other
charges payable will be guaranteed by the Government of
Victoria.
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Subclause (3) specifies that any money required by the Minister
administering Part 7 of the Financial Management Act 1994
for fulfilling any guarantee given by clause 108 or section 76 of
the Transport Act 1983 (as in force immediately before the
commencement of clause 108) must be paid out of the
Consolidated Fund which is to the necessary extent appropriated
accordingly.
Subclause (4) provides that if the Minister administering Part 7
of the Financial Management Act 1994 receives or recovers
from the Roads Corporation any money paid by that Minister
under subclause (3) from the Roads Corporation or otherwise,
that money must be paid into the Consolidated Fund.
Clause 109 provides the Treasurer with the power to execute certain
guarantees and the process to follow in fulfilling those
guarantees and recovering any money to pay for those
guarantees.
Subclause (1) allows the Treasurer to execute a guarantee in
favour of any person guaranteeing the due performance of any
obligations of the Roads Corporation under contracts to be
entered into by the Roads Corporation.
Subclause (2) allows the Treasurer to execute a guarantee in
favour of any person guaranteeing the due performance of any
obligations of any person to whom the rights and liabilities of
the Roads Corporation under a contract entered into by the
Roads Corporations have been assigned.
Subclause (3) clarifies that if the rights and liabilities of the
Roads Corporation arising under a contract entered into by the
Roads Corporation have been assigned with the approval of the
Treasurer to another person, the Treasurer may amend any
guarantee in respect of that contract so that it extends to
guaranteeing the due performance of any obligations of that
other person under that contract.
Subclause (4) provides that money required by the Treasurer to
fulfil a guarantee must be paid out of the Consolidated Fund
which is to the necessary extent appropriated accordingly.
Subclause (5) requires the Treasurer to pay into the Consolidated
Fund any money received or recovered from the Roads
Corporation or otherwise in respect of any money paid by the
Treasurer under subclause (4).
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Subclause (6) outlines that if the rights and liabilities arising
under a contract entered into by the Roads Corporation with a
person have been assigned with the approval of the Treasurer to
another person, the Treasurer may approve of the assignment to
that other person of any guarantee given by the Treasurer.
Clause 110 provides corporate plan requirements for the Roads Corporation.
Subclause (1) clarifies that the corporate plan requirements in
clause 110 operate in addition to the requirements in clause 64 of
the Bill.
Subclause (2) requires the Roads Corporation to give a copy of
the proposed corporate plan to the Minister on or before 31 May
in each year.
Subclause (3) outlines the form of the proposed corporate plan,
in that it must be in a form approved by the Minister, include a
statement of corporate intent in accordance with clause 111 and
include a business plan and financial statements containing any
information that the Minister requires.
Subclause (4) requires the Roads Corporation to consider any
comments on the proposed corporate plan made by the Minister
within 2 months after the proposed corporate plan is submitted
to the Minister.
Subclause (5) outlines that the Roads Corporation must consult
the Minister about the comments on the corporate plan made by
the Minister, make changes if agreed between the Roads
Corporation and Minister and then deliver the complete
corporate plan to the Minister within two months after the
commencement of the financial year.
Subclause (6) allows the corporate plan or any part of the
corporate plan to be published or made available but only
following the approval of the Roads Corporation and the
Minister.
Subclause (7) allows the corporate plan to be modified at any
time by the Roads Corporation with the agreement of the
Minister.
Subclause (8) provides that the Roads Corporation can propose a
modification to the corporate plan by written notice to the
Minister. The Roads Corporation can then make that proposed
modification unless the Minister, by written notice within
14 days, directs the Roads Corporation not to modify the
corporate plan.
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Subclause (9) allows the Minister to direct the Roads
Corporation to include in, or omit from, a statement of corporate
intent, a business plan or a financial statement of a specified
kind, any specified matters. The Minister's direction must occur
by written notice.
Subclause (10) requires the Minister to consult with the Roads
Corporation as to a direction given by the Minister under
clause 110.
Subclause (11) requires the Roads Corporation to comply with a
direction given to the Roads Corporation under clause 110.
Subclause (12) clarifies that at any particular time, the statement
of corporate intent, the business plan or the financial statements
for the Roads Corporation are the statements and plan last
completed, with any modifications or deletions made in
accordance with Division 2 of Part 5 of the Bill.
Clause 111 outlines the information that the Roads Corporation must
provide in its statement of corporate intent.
The statement of corporate intent will relate to the current
financial year and each of the 2 following financial years and
must also include information about any subsidiaries of the
Roads Corporation. The statement of corporate intent will
include information such as the business objectives, main
undertakings and performance targets of the Roads Corporation
or any of its subsidiaries.
Clause 112 provides that the Roads Corporation must act only in accordance
with its corporate plan and must obtain the written approval of
the Minister before it can act in manner contrary to the corporate
plan.
Clause 113 provides that nothing done by the Roads Corporation is void or
unenforceable merely because the Roads Corporation has failed
to comply with clause 110, clause 111 or clause 112.
Clause 114 provides that this clause applies if the Roads Corporation
determines that matters have arisen--
· that may prevent, or significantly affect, achievement of
the business objectives of the Roads Corporation and its
subsidiaries (if any) under the corporate plan; or
· that may prevent, or significantly affect, achievement of
the targets under the plan.
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Subclause (2) provides that if this clause applies the Roads
Corporation must immediately notify the Minister of its
determination and the reasons for the determination.
Clause 115 provides a delegation power for the Roads Corporation.
Subclause (1) provides that the Roads Corporation may delegate
to any person, by instrument, any of its functions, duties or
powers under any Act or regulations, including the power of
delegation subject to subclause (3).
Subclause (2) provides that a delegation under this clause may
be made--
· in relation to a person or class of persons specified in
the instrument of delegation; or
· in relation to the holder, or the holder from time to time,
of an office specified, or of each office in a class of
offices specified, in the instrument of delegation.
Subclause (3) provides that a person to whom a power, duty or
function has been delegated under subclause (1) may, subject to
and in accordance with the instrument of delegation under
subclause (1), by instrument delegate to another person that
power, duty or function.
Subclause (4) provides that sections 42 and 42A of the
Interpretation of Legislation Act 1984 apply to a
sub-delegation under subclause (3) as if it were a delegation.
Section 42 allows the delegate's state of mind to be applied to
the exercise of a delegated power, duty or function where
relevant to the exercise of that power or performance of a duty
or function.
Section 42A allows the delegator to exercise the delegated
power or perform the delegated duty or function and allows for
delegations to be subject to conditions.
PART 6--TRANSPORT CORPORATIONS
Part 6 of the Bill provides for Transport Corporations.
The Transport Corporations currently in Part 6 of the Bill are: Victorian
Rail Track, V/Line Corporation and the Linking Melbourne Authority.
Transport Corporations are characterised as bodies that provide particular
functions, often in competitive and commercial environments or in specific
parts of the transport system.
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Grouping these Transport Corporations together is designed to encourage
collaborative and shared outcomes, reduce potential conflicts of interest,
create efficiencies, improve organisation capability and better reflect the
integration message of the Transport Integration Bill.
Division 1 provides for the establishment, object, functions and powers of the
Victorian Rail Track, Division 2 provides for the establishment, object,
functions and powers of the V/Line Corporation and Division 3 provides for
the establishment, object, functions and powers of the Linking Melbourne
Authority. Division 4 provides for the provisions applying to all Transport
Corporations.
Division 1--Victorian Rail Track
The provisions for Victorian Rail Track strengthen and refine Victorian Rail
Track's role in supporting the transport system.
Victorian Rail Track's object, functions and powers recognise the crucial part
that Victorian Rail Track has to play as custodial owner of much of the
State's transport-related land, infrastructure and assets.
While Victorian Rail Track's operations are diverse, the Bill reflects the
Government's intention that its core responsibility should be the protection of
transport-related land, infrastructure and assets for the benefit of present and
future transport users.
Clause 116 provides that Victorian Rail Track as established under section 8
of the Rail Corporations Act 1996 (as in force immediately
before the commencement of clause 116) is continued under this
Act as Victorian Rail Track.
Clause 117 sets out the trading name for Victorian Rail Track.
Despite anything to the contrary in the Business Names Act
1962 or any other Act or law, Victorian Rail Track will be able
to carry on business under the name "VicTrack".
Clause 118 provides that the Victorian Rail Track is a public entity, but does
not represent the Crown.
Clause 119 provides the object for Victorian Rail Track.
Victorian Rail Track has a primary object which is supported by
further detail which should be considered inclusive and
indicative of the primary object, but not exhaustive. It is
intended that the object for the Victorian Rail Track will be
consistent with the vision statement and transport system
objectives.
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Subclause (1) states that the primary object of Victorian Rail
Track is to act as the custodial owner of the State's transport-
related land, infrastructure and assets consistent with the vision
statement and the transport system objectives.
Subclause (2) provides that, without limiting the generality of
subclause (1). Victorian Rail Track must ensure that the State's
transport-related land, infrastructure and assets are developed
and used--
· primarily to support the transport system;
· for other purposes which support government policy;
· only for commercial gain if the development or use will
not compromise the current or future transport system.
Clause 120 provides the functions for Victorian Rail Track.
Subclause (1) specifies the functions of Victorian Rail Track,
which are--
· to release in a timely and cooperative manner to the
Secretary or the Director of Public Transport for
nominal consideration any transport-related land,
infrastructure and assets required for the transport
system and related matters;
· to act as the custodian and asset manager of the non-
operational transport-related land, infrastructure and
assets and any other land, infrastructure and assets
identified by the Minister;
· to provide or enable access to the non-operational
transport-related land, infrastructure and assets where
this supports the transport system, including--
· for walking and cycling;
· for tourist and heritage rail operations;
· through the granting of leases for business or
community purposes consistent with the object
specified in clause 119;
· to manage and support access to transport-related land,
infrastructure and assets;
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· without limiting subparagraph (b), to ensure that in
managing non-operational transport-related land,
infrastructure and assets--
· graffiti, vandalism and litter are managed to
reasonably improve public safety and amenity;
· fuel build up is managed to reasonably reduce
the likelihood of fire;
· a program of land remediation is undertaken to
improve the condition of land and facilitate its
future use;
· to ensure, in collaboration with the Secretary, that
transport-related land, infrastructure and assets which
are registered as heritage infrastructure and assets in the
Victorian Heritage Register are protected and
maintained whilst ensuring that reasonable access is
provided for public enjoyment and historical
appreciation and that support is provided to tourist and
heritage operators;
· if directed to do so by the Minister by Order published
in the Government Gazette--
· operate rolling stock for transport system
purposes;
· operate services ancillary or incidental to
operating rolling stock for transport system
purposes;
· to provide strategic advice and assistance to the
Department and other persons in relation to the
environmental aspects of sustainable land management
and the use of land for specific projects and initiatives
related to transport;
· to develop its telecommunications network and
telecommunications services and other information
systems and project management services to support the
transport system;
· to maintain accurate and accessible data in respect of
transport-related land, infrastructure and assets;
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· subject to clause 125, to promote the sustainable
development of land vested in Victorian Rail Track
which is not required for the future development of the
transport system;
· any other functions or duties conferred on Victorian
Rail Track by any other Act or any regulations under
any other Act.
Subclause (2) provides that in performing its functions set out in
subclause (1), Victorian Rail Track must--
· engage with stakeholders so as to ensure better
outcomes for all Victorians;
· conduct research and collect information relating to the
performance of the functions and the operation of the
transport system so as to enable Victorian Rail Track to
meet the object of Victorian Rail Track;
· efficiently deal with any complaints relating to the
performance of its functions.
Subclause (3) provides that Victorian Rail Track may, with the
approval or at the direction of the Minister, cease to perform all
or any of its functions.
Clause 121 provides Victorian Rail Track with compulsory acquisition
powers.
The compulsory acquisition power of Victorian Rail Track
requires Ministerial approval and the acquisition and
compensation requirements in the Land Acquisition and
Compensation Act 2009 will apply.
Subclause (1) allows Victorian Rail Track, subject to the
approval of the Minister and on behalf of the Crown, to
compulsorily acquire any land which is or may be required by
Victorian Rail Track for or in connection with the performance
of its functions or the exercise of its powers.
Subclause (2) provides that the Land Acquisition and
Compensation Act 1986 applies to the Bill and for that
purpose--
· the Transport Integration Act 2009 is the special Act;
· Victorian Rail Track is the Authority;
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· land includes strata above or below the surface of land
and easements and rights to use land or strata above or
below the surface of the land;
· section 75 of the Land Acquisition and Compensation
Act 1986 has effect as if it empowered the Authority to
enter any land and section 75(6) did not apply.
Clause 122 provides guidance for where Victorian Rail Track acquires any
right to use land or any right in the nature of an easement or
purporting to be an easement.
Subclause (1) provides that if any right to use land or any right
in the nature of an easement or purporting to be an easement is
acquired by Victorian Rail Track then it is deemed for all
purposes to be an easement even though there is no land vested
in or held by Victorian Rail Track that is in fact benefited or
capable of being benefited by that right.
Subclause (2) provides that if by or under the Bill any private
right of way or easement is extinguished or if any easement is
acquired by Victorian Rail Track then--
· the Registrar of Titles must make any recordings in the
Register that are necessary or expedient because of that
extinguishment or acquisition; and
· the holder of any relevant certificate of title must deliver
it to the Registrar of Titles.
Subclause (3) provides that subclause (2) does not apply to an
easement acquired compulsorily by Victorian Rail Track.
Clause 123 provides that the Victorian Rail Track may use Crown lands
reserved under Crown Land (Reserves) Act 1978.
Subclause (1) provides that Victorian Rail Track may use any
Crown land for transport purposes. Before Victorian Rail Track
uses the Crown land, Victorian Rail Track must have the
approval of the Minister administering the Act relating to the
management or use of the land, given by the Minister in
accordance with any requirements which apply under that Act.
Subclause (2) provides that if any Crown land which is proposed
to be used or managed by Victorian Rail Track is reserved under
the Crown Land (Reserves) Act 1978 for a purpose which is
inconsistent with that use, Victorian Rail Track can not use the
land unless and until the reservation is revoked in accordance
with section 9 of that Act.
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Subclause (3) provides that Victorian Rail Track must
compensate, in respect of the use under clause 123 by the
Victorian Rail Track of any Crown land reserved under the
Crown Land (Reserves) Act 1978 for a purpose inconsistent
with that use, in the manner and to the extent agreed upon by
Victorian Rail Track and the Minister administering the Crown
Land (Reserves) Act 1978.
Subclause (4) provides that an agreement to compensate under
subclause (3) may provide for--
· the payment by the Victorian Rail Track of a sum of
money as agreed upon by Victorian Rail Track and the
Minister administering the Crown Land (Reserves)
Act 1978; or
· the undertaking of works or the making of provision by
Victorian Rail Track in place of any improvements on
the land as agreed upon by Victorian Rail Track and the
Minister administering the Crown Land (Reserves)
Act 1978; or
· both the payment of a sum of money as agreed upon by
Victorian Rail Track and the Minister administering the
Land Act 1958 and the undertaking of works or the
making of provision by Victorian Rail Track in place of
any improvements on the land as agreed upon by
Victorian Rail Track and the Minister administering the
Crown Land (Reserves) Act 1978.
Where an agreement under subclause (3) provides for the
payment of a sum of money, subclause (5) provides that the
money must, unless the Minister administering the Crown Land
(Reserves) Act 1978 otherwise directs, be paid to that Minister.
Subclause (6) allows the Minister administering the Crown
Land (Reserves) Act 1978 to direct that money to be paid under
an agreement under subclause (3) to be paid to--
· the trustees in whom or the Council in which the land is
vested; or
· the committee of management appointed in respect of
the land; or
· the authority under whose control and management the
land has been placed pursuant to section 18 of the
Crown Land (Reserves) Act 1978; or
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· any other person or persons as are agreed upon by the
Victorian Rail Track and the Minister administering the
Crown Land (Reserves) Act 1978; and
· applied as directed by the Minister.
Subclause (7) allows the Governor in Council to determine any
dispute arising about the amount of any sum of money payable
under clause 123.
Clause 124 provides for the granting of unalienated land.
In particular, subclause (1) specifies that clause 124 applies to
any land which has been vested in Victorian Rail Track under
the Bill or the Transport Act 1983 (as in force immediately
before the commencement of clause 124) which was
immediately prior to its use for transport purposes unalienated
land of the Crown whether set apart as a government road or not.
Subclause (2) provides that the Governor in Council, on the
recommendation of the Minister administering section 22A of
the Land Act 1958 may grant that land to Victorian Rail Track
subject to any conditions, exceptions and reservations as the
Governor in Council considers appropriate. Subclause (2)
operates subject to subclause (3).
Subclause (3) specifies that clause 124 is subject to section 8 of
the Crown Land (Reserves) Act 1978 and section 349 of the
Land Act 1958.
Clause 125 provides guidance for Victorian Rail Track when dealing with
land for the purpose of performing its functions.
Subclause (1) specifies that Victorian Rail Track can deal with
land in the following manner--
· with the approval of the Minister and the Treasurer,
purchase land or an interest in land; or
· after consultation with the Secretary and with the
approval of the Minister and the Treasurer, sell land or
an interest in land; or
· dispose of land or an interest in land to the Secretary,
the Director of Public Transport or the Transport
Infrastructure Development Agent for nominal
consideration; or
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· accept the transfer of land or an interest in land from the
Secretary, the Director of Public Transport or the
Transport Infrastructure Development Agent for
nominal consideration; or
· after consultation with the Secretary, grant a lease of
any land, including land which was granted to Victorian
Rail Track or to any other person subject to a trust or
condition requiring it to be used for some particular
purpose or land temporarily or permanently reserved for
any purpose under the Crown Land (Reserves) Act
1978 or any previous Act relating to Crown land
consistent with Victorian Rail Track's object so that the
use will not compromise the current or future transport
system; or
· with the approval of the Minister and the Treasurer,
develop any land, and this includes amongst other
things, the ability to subdivide, consolidate, grant
easements and promote a Property Trust.
Subclause (2) specifies that where a Property Trust has been
promoted by Victorian Rail Track under clause 125 the trustees
must be appointed by the Minister.
Subclause (3) provides that where Victorian Rail Track has
divested itself, or is divested, of its interest in any land on, under
or over which there was constructed a railway or tramway, then
any liability or Victorian Rail Track with respect to--
· maintaining a railway or tramway on, under or over that
land; and
· maintaining any bridge bearing a road over the whole or
any part of that land or any crossing, culvert, drain or
stream diversion appurtenant to that land--
will cease and determine.
Subclause (4) provide guidance for the definition of develop
which for the purposes of clause 125 means to improve land for
any commercial or civic or other public or private purpose,
including by the construction, demolition or substantial
alteration of any structure in or on the land or the excavation of
the land.
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Clause 126 provides Victorian Rail Track with the power to enter land to
construct or maintain works.
Subclause (1) provides Victorian Rail Track with the power to
enter any land and do all things necessary and convenient for
constructing, maintaining, altering and using any works
supporting any rail signalling system.
Subclause (2) provides that Victorian Rail Track may exercise
the powers conferred by this clause on Victorian Rail Track by
any person who is authorised in writing by Victorian Rail Track
to do so.
Subclause (3) provides that Victorian Rail Track must not
exercise a power under this clause unless--
· Victorian Rail Track has given 7 days notice in writing
to the occupier of the land that is to be entered; or
· the occupier of the land consents to entry to the land; or
· immediate entry is necessary because of an emergency.
Subclause (4) provides that a person who is exercising a power
under clause 126 must not enter land that is used primarily for
residential purposes except between 7.30 a.m. and 6.00 p.m.
unless the occupier consents to a different time.
Subclause (5) provides that in exercising powers under this
clause Victorian Rail Track must--
· cause as little harm and inconvenience as possible; and
· stay on the land only for as long as is reasonably
necessary to exercise the power; and
· remove from the land on completing the exercise of the
power, all plant, machinery, equipment, goods or
temporary buildings brought onto the land for the
exercise of the power, other than anything that the
owner or occupier of the land agrees may be left there;
and
· leave the land as nearly as possible in the condition in
which it was found; and
· ensure that as little damage as possible is done to the
land; and
· co-operate as much as possible with the owner and any
occupier of the land.
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Subclause (6) provides that if Victorian Rail Track has caused
damage to the land while exercising a power under clause 126,
Victorian Rail Track must pay compensation to the owner and
any other person with an interest in the land.
Subclause (7) outlines the compensation to be paid by Victorian
Rail Track as a result of subclause (6) the person entitled to the
compensation can agree to receive it as a lump sum or by way of
annual rent. If Victorian Rail Track and the person entitled to
the compensation cannot reach agreement on the compensation,
the Land Acquisition and Compensation Act 1986 will
provide the process for the determination of compensation.
Clause 127 provides that Victorian Rail Track must develop and maintain a
contingency plan for the possible carrying out of rail operations
by it in the event another person carrying out such operations
using railways and rail infrastructure established, owned,
managed or maintained by Victorian Rail Track does not want,
or is unable, to do so.
Division 2--V/Line Corporation
Division 2 of Part 6 of the Bill sets out provisions relating to the V/Line
Corporation.
The Government supports the ongoing role of V/Line in providing important
passenger services to regional Victoria and its broader remit operating the
network in relation to below-rail assets and rail freight. In light of this
expanded role, the Corporation will be renamed simply V/Line Corporation,
the "Passenger" term not being reflective of its broadened role.
Clause 128 provides that V/Line Passenger Corporation as established under
section 14 of the Rail Corporations Act 1996 (as in force
immediately before the commencement of clause 128) is
continued under this Act as V/Line Corporation.
Clause 129 sets out the trading name for V/Line Corporation.
Despite anything to the contrary in the Business Names Act
1962 or any other Act or law, V/Line Corporation will be able to
carry on business under the name "V/Line".
Clause 130 provides that V/Line Corporation is a public entity, but does not
represent the Crown.
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Clause 131 provides the object for V/Line Corporation.
V/Line Corporation has a primary object which is supported by
further detail which should be considered inclusive and
indicative of the primary object, but not exhaustive. It is
intended that the object for V/Line Corporation all be consistent
with the vision statement and transport system objectives.
Subclause (1) states that the primary object of V/Line
Corporation is to provide rail passenger and rail freight services
consistent with the vision statement and the transport system
objectives.
Subclause (2) provides that, without limiting the generality of
subclause (1), the primary object includes that V/Line
Corporation will--
· ensure, in collaboration with transport bodies and public
entities, that its rail passenger and rail freight services
operate as part of an integrated transport system which
seeks to meet the needs of all transport system users;
· manage its rail passenger and rail freight services in a
manner which supports a sustainable Victoria;
· This is done by seeking to increase the share of rail
passenger and rail freight services as a proportion of all
transport trips in Victoria. While seeking to increase the
share of rail passenger and rail freight services as a
proportion of all rail passenger and rail freight transport
trips in Victoria Victorian Rail Track must also seek to
improve the environmental performance and minimise
the adverse environmental impacts of its rail passenger
and rail freight services;
· to contribute to social wellbeing by providing accessible
and reliable rail passenger services, particularly to
regional, rural and remote communities;
· support economic prosperity through efficient and
reliable rail freight services;
· in collaboration with relevant bodies, improve the safety
of rail passenger and rail freight services.
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Clause 132 provides the functions of V/Line Corporation.
Subclause (1) specifies that the functions of V/Line Corporation
are to--
· operate rail passenger services;
· operate services ancillary or incidental to its rail
passenger services, including any other transport
services;
· operate and maintain rail infrastructure and related
infrastructure, including for communications, to support
rail passenger and rail freight services;
· manage access to the rail network operated by V/Line
Corporation;
· independently perform a function specified in paragraph
(a), (b), (c) or (d) to meet a requirement as set by the
Director of Public Transport in accordance with the
functions and powers of the Director of Public
Transport under clause 67 and clause 68;
· develop and deliver projects, including by acquiring
rolling stock , constructing rail infrastructure, roads or
road-related infrastructure, or assist the Department or
any other relevant body in making improvements to the
transport system;
· provide advice to the Director of Public Transport to
assist in operational policy development in relation to
public transport system matters as requested by the
Director of Public Transport;
· develop and implement effective environmental
policies, strategies and management systems consistent
with the strategic policy of the Department to support a
sustainable transport system, including minimising any
adverse environmental impacts from rail passenger and
rail freight services;
· provide, or arrange for the provision and dissemination
of, information to Victorians about its rail passenger and
rail freight services;
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· report on the activities of any other person carrying out
a function specified in paragraph (a), (b),(c) or (d) on
behalf of V/Line Corporation;
· perform any other functions or duties conferred on
V/Line Corporation by any other Act or any regulations
under any other Act.
Subclause (2) provides that in performing its functions set out in
subclause (1), V/Line Corporation must--
· engage with stakeholders so as to ensure better
outcomes for all Victorians;
· conduct research and collect information relating to the
performance of the functions and the operation of the
transport system so as to enable V/Line Corporation to
meet the primary object of V/Line Corporation;
· efficiently deal with any complaints relating to the
performance of its functions.
Subclause (3) provides that the V/Line Corporation may, with
the approval or at the direction of the Minister, cease to perform
all or any of its functions.
Clause 133 provides that V/Line Corporation must develop and maintain a
contingency plan for the possible carrying out of rail operations
by it in the event another person carrying out rail operations does
not want, or is unable, to do so.
Division 3--Linking Melbourne Authority
Division 3 of Part 6 of the Bill sets out the provisions relating to the Linking
Melbourne Authority which has a broader, ongoing role in the delivery of
road transport-related projects under the Victorian Transport Plan.
Linking Melbourne Authority is the successor in law of the Southern and
Eastern Integrated Transport Authority.
Clause 134 provides at subclause (1) for the establishment of the Linking
Melbourne Authority.
Subclause (2) clarifies that the Linking Melbourne Authority is
the successor in law of the Southern and Eastern Integrated
Transport Authority established under section 6 of the Southern
and Eastern Integrated Transport Authority Act 2003.
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Clause 135 provides that the Linking Melbourne Authority represents the
Crown when it is performing its functions and exercising its
powers.
Clause 136 provides for the declaration of any Road Transport-Related
Project.
In particular, the Minister may, with the agreement of the
Premier and the Treasurer, declare any project to be a Road
Transport-Related Project for the purposes of the Bill.
The declaration is to occur by Order published in the
Government Gazette.
Clause 137 provides the object for the Linking Melbourne Authority.
The Linking Melbourne Authority has a primary object which is
supported by further detail which should be considered inclusive
and indicative of the primary object, but not exhaustive. It is
intended that the object for the Linking Melbourne Authority
will be consistent with the vision statement and transport system
objectives.
Subclause (1) states that the primary object of the Linking
Melbourne Authority is to facilitate the efficient development,
delivery and operation of any Road Transport-Related Project
consistent with the vision statement and the transport system
objectives.
Subclause (2), provides that, without limiting the generality of
subclause (1), the primary object includes that Linking
Melbourne Authority will--
· ensure, in collaboration with transport bodies and public
entities, that any Road Transport-Related Project
supports an integrated transport system which seeks to
meet the needs of all transport system users;
· ensure that any Road Transport-Related Project supports
a sustainable Victoria by providing walking and cycling
infrastructure for transport and seeking to improve the
environmental performance and minimise the adverse
environmental impacts of the Road Transport-Related
Project;
· contribute to social wellbeing by providing access to
opportunities and supporting liveable communities;
· promote economic prosperity through efficient and
reliable movement of persons and goods;
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· in collaboration with relevant bodies, improve the safety
of the road system for road users and seek to reduce
deaths and injuries.
Clause 138 provides the functions of the Linking Melbourne Authority.
Subclause (1) provides the functions of the Linking Melbourne
Authority, which are--
· to facilitate, on behalf of the State, the scoping,
development, construction, delivery and operation of
any Road Transport-Related Project;
· to seek and evaluate submissions from persons
interested in undertaking any Road Transport-Related
Project;
· to negotiate with persons interested in undertaking any
Road Transport-Related Project;
· to make recommendations in relation to contractual
arrangements between the State and any other person
for the development, delivery or operation of any Road
Transport-Related Project;
· to administer and manage agreements and arrangements
between the State and any other person for, or relating
to, the development, delivery or operation of any Road
Transport-Related Project;
· to facilitate and co-ordinate consultations with public
entities and other bodies or persons involved in, or
affected by, the development, delivery or operation of
any Road Transport-Related Project;
· to negotiate and enter into arrangements with public
entities and other bodies or persons involved in, or
affected by, the development, delivery or operation of
any Road Transport-Related Project;
· to make recommendations to the Minister in relation to
facilitating any Road Transport-Related Project and
co-ordinating with public entities and other bodies or
persons involved in, or affected by, the development,
delivery or operation of the Road Transport-Related
Project;
97
· to ensure that agreements and arrangements between the
State and any other person for, or relating to, the
development, delivery or operation of any Road
Transport-Related Project are performed in accordance
with their terms;
· to enter into contractual arrangements with any other
person for the provision of any infrastructure or services
in connection with or relating to the development,
delivery or operation of any Road Transport-Related
Project;
· to perform any other functions or duties conferred on
the Linking Melbourne Authority by any other Act or
any regulations under any other Act.
Subclause (2) provides that, in performing its functions set out in
subclause (1), the Linking Melbourne Authority must--
· engage with stakeholders so as to ensure better
outcomes for all Victorians;
· conduct research and collect information relating to the
performance of the functions and the operation of the
road system so as to enable the Linking Melbourne
Authority to meet the primary object of the Linking
Melbourne Authority;
· efficiently deal with any complaints relating to the
performance of its functions.
Subclause (3) provides that the Linking Melbourne Authority
may, with the approval or at the direction of the Minister, cease
to perform all or any of its functions.
Clause 139 provides the Linking Melbourne Authority with the power to
enter into arrangements for the services of persons employed
under Part 3 of the Public Administration Act 2004.
This power can be exercised for the purpose of performing its
functions and in addition to all other powers conferred on the
Linking Melbourne Authority by or under this or any other Act.
Clause 140 provides guidance for the money of the Linking Melbourne
Authority. In particular money received by the Linking
Melbourne Authority must be paid into a banking account
established by the Linking Melbourne Authority.
98
Linking Melbourne Authority can hold one or more banking
accounts in its name but can only expend money in accordance
with a budget jointly approved by the Minister and the
Treasurer.
Clause 141 provides for the establishment of a general fund for the Linking
Melbourne Authority.
Subclause (1) requires the Linking Melbourne Authority to
establish and maintain a general fund.
Subclause (2) requires the Linking Melbourne Authority to open
and maintain accounts and use at least one of those accounts for
its general fund. Linking Melbourne Authority must receive the
approval of the Minister for the purpose of subclause (2).
Subclause (3) operates subject to subclause (4) and requires the
Linking Melbourne Authority to pay into its general fund all
trading revenue, interest and other money received by or paid to
the Linking Melbourne Authority.
Subclause (4) operates subject to subclause (5) and requires the
Linking Melbourne Authority to pay into its bank account the
money the Linking Melbourne Authority borrows under this Act,
money resulting from the disposal of any real or personal
property, and/or the proceeds of any advances or financial
accommodation obtained by the Linking Melbourne Authority
under clause 154.
Subclause (5) clarifies that subclause (4) does not apply where--
· the money or proceeds are to be used for the operating
or trading activity of the Linking Melbourne Authority;
or
· the Minister administering Part 7 of the Financial
Management Act 1994 otherwise approves.
Subclause (6) requires all payments made by the Linking
Melbourne Authority to be made out of its general fund.
Subclause (7) allows the Linking Melbourne Authority to invest
money in its general fund in any manner approved by the
Minister administering Part 7 of the Financial Management
Act 1994.
99
Division 4--Provisions applying to Transport Corporations
Division 4 of Part 6 of the Bill provides the provisions that are common to all
Transport Corporations under Part 6. The provisions in Division 4 mainly
related to the constitution of Transport Corporations and general powers of
the Transport Corporations.
Clause 142 provides that a Transport Corporation is a body Corporate.
Subclause (1) provides that a Transport Corporation--
· is a body corporate with perpetual succession;
· has an official seal;
· may sue and be sued;
· may acquire, hold and dispose of real and personal
property;
· may do and suffer all acts and things that a body
corporate may by law do and suffer.
Subclause (2) that all courts must take judicial notice of the
official seal of a Transport Corporation affixed to a document
and, until the contrary is proved, must presume that it was duly
affixed.
Subclause (3) provides that the official seal of a Transport
Corporation must be kept in such custody as a Transport
Corporation directs and must not be used except as authorised by
a Transport Corporation.
Clause 143 and in particular subclause (1) requires a Transport Corporation
to have a board of directors.
Subclause (2) specifies that the board of directors of a Transport
Corporation consists of not less than 3, and not more than 9,
directors appointed in accordance with this Division.
Subclause (3) provides that the board of directors of a Transport
Corporation is responsible for the management of the affairs of
the Transport Corporation and may exercise the powers of the
Transport Corporation.
Clause 144 provides for the constitution of the board of directors of a
Transport Corporation. The board of directors of a Transport
Corporation consists of--
· a chairperson;
· a deputy chairperson;
100
· subject to subclause clause 143(2), any other directors
as are appointed by the Governor in Council in
accordance with this Division.
Clause 145 provides for the appointment of directors to the board of a
Transport Corporation.
Subclause (1) provides that the chairperson, deputy chairperson
and other directors of a Transport Corporation must be appointed
by the Governor in Council. Those members can only be
appointed following the recommendation of the Minister made
after consultation with the Treasurer.
Subclause (2) provides that a director is appointed for the term
not exceeding 3 years as is specified in the instrument of
appointment.
Subclause (3) requires a director to be appointed on the terms
and conditions (including remuneration and allowances) that are
specified in the instrument of appointment.
Subclause (4) allows for the re-appointment of a director.
Subclause (5) provides for the application of the Public
Administration Act 2004 (other than Part 3 of that Act) to a
director of a Transport Corporation in respect of the office of
director.
Clause 146 provides for acting appointments on the board of directors of a
Transport Corporation.
Subclause (1) provides that the deputy chairperson of the board
of directors of a Transport Corporation is to act as chairperson
if--
· the office of chairperson is vacant; or
· during any period when the chairperson is absent; or
· the chairperson is, for any other reason, unable to attend
meetings of the board of directors or otherwise unable
to perform the duties of the office.
Subclause (2) provides that while a deputy chairperson is acting
as a chairperson under subclause (1) then the deputy
chairperson--
· has and may exercise all the powers, and must perform
all the functions and duties, of the chairperson;
· is entitled to be paid the remuneration and allowances
which the chairperson would have been entitled to.
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Subclause (3) allows the Minister, following consultation with
the Treasurer, to appoint a director of a Transport Corporation to
act as deputy chairperson--
· during a vacancy in the office of deputy chairperson; or
· during any period when the deputy chairperson is
absent; or
· during any period when the deputy chairperson is acting
as chairperson; or
· if the deputy chairperson is, for any other reason, unable
to attend meetings of the board of directors or otherwise
unable to perform the duties of the office.
Subclause (4) provides that while a director is acting as deputy
chairperson under subclause (3), the director--
· has and may exercise all the powers, and must perform
all the functions and duties, of the deputy chairperson;
· is entitled to be paid the remuneration and allowances
which the deputy chairperson would have been entitled
to.
Subclause (5) allows the Minister, after consultation with the
Treasurer, to appoint a person to act as a director (other than the
chairperson or deputy chairperson) of a Transport Corporation--
· during a vacancy in the office of a director; or
· during any period when the director is absent; or
· during any period when the director is acting as deputy
chairperson; or
· if the director is, for any other reason, unable to attend
meetings of the board of directors or otherwise unable
to perform the duties of the office.
Subclause (6) provides that while a person is acting as a director,
the person--
· has and may exercise all the powers, and must perform
all the functions and duties, of a director;
· is entitled to be paid the remuneration and allowances
which a director would have been entitled to.
102
Clause 147 provides for the appointment and removal of the chief executive
officer and other employees of a Transport Corporation.
Subclause (1) specifies that the board of directors of a Transport
Corporation may appoint a person as the chief executive officer
of the Transport Corporation and may at any time remove or
suspend a person from that office. The appointment, removal
and/or suspension of the chief executive officer of the Transport
Corporation can only occur with the approval of the Minister
after consultation with the Treasurer.
Subclause (2) provides that the chief executive officer of a
Transport Corporation holds office, subject to the Bill, on a full-
time basis and on such terms and conditions as are determined
by the Minister after consultation with the Treasurer and
specified in the instrument of appointment.
Subclause (3) provides that the chief executive officer may be a
director of the Transport Corporation but may not be the
chairperson of the board of directors.
Subclause (4) allows the chief executive officer to resign from
the office in writing signed by the chief executive officer and
delivered to the chairperson of the board of directors.
Subclause (5) provides that if the chief executive officer is
unable, whether because of illness, suspension, absence or
otherwise, to perform the duties of the office of chief executive
officer, the board of directors may appoint another person to act
in the place of the chief executive officer during the period of
the inability.
Subclause (6) provides that if a person has been appointed under
this section to act in the place of the chief executive officer, then
while so acting--
· has all the rights and powers, and must perform all the
duties, of the chief executive officer of the Transport
Corporation; and
· is to be paid any remuneration and travelling or other
allowances fixed by the board of directors from time to
time, having regard to the rate of remuneration and
allowances for the time being payable to the chief
executive officer of the Transport Corporation.
Subclause (7) allows the board of directors of a Transport
Corporation to employ any persons it considers are necessary for
the performance of its functions.
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Subclause (8) provides that if the chief executive officer or a
person employed by a Transport Corporation was immediately
before his or her appointment an officer within the meaning of
the State Superannuation Act 1988 or a member within the
meaning of the Transport Superannuation Act 1988, he or she
continues to be such an officer or member while serving with the
Transport Corporation.
Clause 148 provides for the event of vacancies, resignations, removal from
office.
Subclause (1) specifies that the office of a director of a Transport
Corporation becomes vacant if the director--
· without the approval of the board of directors, fails to
attend 3 consecutive meetings of the board of directors;
or
· becomes bankrupt, applies to take the benefit of any law
for the relief of bankrupt or insolvent debtors,
compounds with his or her creditors or makes an
assignment of his or her remuneration for their benefit;
or
· is convicted of an indictable offence or an offence that,
if committed in Victoria, would be an indictable
offence.
Subclause (2) allows a director to resign by notice in writing
delivered to the Minister.
Subclause (3) allows the Governor in Council to remove or
suspend a director from office.
Subclause (4) requires a director to be removed from office by
the Governor in Council if the director is convicted of an offence
relating to his or her duties as a director.
Clause 149 provides that acts or decisions of the board of directors of a
Transport Corporation is not invalid only--
· because of a vacancy in the membership of the board of
directors, including a vacancy arising from the failure to
appoint a director; or
· because of a defect or irregularity in, or in connection
with, the appointment of a director or an acting director;
or
104
· in the case of an acting director, on the grounds that the
occasion for the person to act had not arisen or had
ceased.
Clause 150 provides for the proceedings of the board of Directors of a
Transport Corporation.
Subclause (1) operates subject to subclause (2). It provides that
the meetings of the board of directors of a Transport Corporation
must be held at the times and places determined by the board of
directors.
Subclause (2) allows the chairperson to convene meetings of the
board. The chairperson can convene a meeting at any time, and
requires the chairperson to do so when requested to convene a
meeting by a director.
Subclause (3) defines that a quorum of the board of directors of
a Transport Corporation is the majority of the directors of the
board of directors.
Subclause (4) provides that a majority of votes at a meeting of
the board of directors determines a question arising at a meeting
of the board of directors.
Subclause (5) provides that a deliberative vote or second vote or
casting vote can be given by the person presiding at a meeting of
the board of directors.
Subclause (6) requires the board of directors to keep accurate
minutes of its meetings.
Subclause (7) allows the board of directors to permit directors to
participate in a particular meeting, or all meetings, by telephone,
closed circuit television or other means of communication that
do not require the physical presence of each director in the same
place.
Subclause (8) allows the board of directors to regulate its own
proceedings, subject to the Bill.
Clause 151 provides for resolutions without meetings.
Subclause (1) provides for where the directors for the time being
of a Transport Corporation (other than a director who is absent
from Australia when the other directors sign) sign a document
containing a statement that they are in favour of a resolution in
the terms set out in the document. A resolution in those terms is
deemed to have been passed at a meeting of the board of
directors held--
105
· on the day on which the document is signed; or
· if the directors do not sign the document on the same
day, on the day on which the last director to sign signs
the document.
Subclause (2) provides that where a resolution is deemed under
subclause (1) to have been passed at a meeting of the board of
directors, then each director must be advised as soon as
practicable and given a copy of the terms of the resolution.
Subclause (3) provides that, for the purposes of subclause (1), 2
or more separate documents containing a statement in identical
terms, each of which is signed by one or more directors, are
deemed to constitute one document.
Clause 152 provides the powers of a Transport Corporation.
It is intended that the powers will provide the Transport
Corporation with the capacity to undertake the functions
conferred on the Transport Corporation.
Subclause (1) provides the Transport Corporation with the
power to do all things that are necessary or convenient to be
done for or in connection with, or as incidental to, the
achievement of the object of the Transport Corporation and the
performance of its functions.
Subclause (2) provides that, without limiting the generality of
subclause (1), a Transport Corporation has the power to--
· enter into any agreement or contract;
· enter into any lease or licence;
· participate in the formation of a corporation, trust,
partnership or other body;
· subscribe for or otherwise acquire, and hold and dispose
of, shares in, or debentures or other securities of, a
corporation;
· become a member of a company limited by guarantee;
· subscribe for or otherwise acquire, and hold and dispose
of, units in a trust;
· acquire, and hold and dispose of, an interest in a
partnership or other body;
106
· enter into partnership or into any arrangement for
sharing of profits, union of interest, co-operation, joint
venture, reciprocal concession or otherwise, with any
person or body carrying on or engaged in, or about to
carry on or engage in, any business or transaction
whether within or outside Victoria relating to, or
connected with, any function of the Transport
Corporation;
· make any land or other property vested or managed by
the Transport Corporation or any person employed by
the Transport Corporation available for use or
engagement by any other person;
· engage in any business, undertaking or activity
incidental to the performance of its functions;
· engage consultants, contractors or agents;
· act as trustee;
· act as an agent of another person.
Subclause (3) provides that, despite anything in subclauses (1)
and (2), a Transport Corporation requires the written approval of
the Minister to--
· form, or participate in the formation of, or be a member
of, or hold shares in, a company that carries out the
functions of a public transport industry ombudsman; or
· enter into an agreement with respect to participating in a
public transport industry ombudsman scheme.
Subclause (4), which is not intended to limit the generality of
subclause (1), provides that a Transport Corporation may
exercise the powers conferred on the Transport Corporation by
any other Act or the regulations under any other Act.
Subclause (5) provides that the generality of clause 152 is not
limited by any other provision of the Bill or any other Act which
confers a power on a Transport Corporation.
Clause 153 provides that this Part does not affect certain powers of the
Director of Public Transport.
Subclause (1) specifies that the powers of the Director of Public
Transport to enter into any contract, agreement, lease or licence
with another person to carry out a function of a Transport
Corporation are not affected or limited by this Part.
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Subclause (2) provides that the Minister for and on behalf of the
Crown, may be a party to any agreement providing for the sale,
assignment, transfer or disposal of all or any part of the property,
rights, liabilities, undertaking or business of a Transport
Corporation or to any related franchise or other agreement of
any kind. This subclause is not intended to limit or derogate
from any other power.
Clause 154 provides that the Borrowing and Investment Powers Act 1987
confers powers on a Transport Corporation.
Clause 155 provides that a Transport Corporation is not able to make loans
to directors.
Subclause (1) specifies that despite any powers that a Transport
Corporation may have, a Transport Corporation is not able to,
whether directly or indirectly--
· to make a loan to a director of the Transport
Corporation, a spouse of such a director, or a relative
(as defined in the Corporations Act) of such a director
or spouse; or
· to give a guarantee or provide security in connection
with a loan made or to be made by another person to a
director, spouse or relative referred to in paragraph (a).
Subclause (2) provides that nothing in subclause (1) prohibits a
Transport Corporation entering into an agreement or
arrangement with a person referred to in subclause (1) if similar
agreements or arrangements are entered into by the Transport
Corporation with members of the public on the same terms and
conditions.
Clause 156 provides Transport Corporations with extraterritorial powers,
allowing a Transport Corporation to perform its functions and
exercise its powers within or outside Victoria and outside
Australia.
Clause 157 limits the powers of a Transport Corporation in respect of
granting indemnities to directors. Specifically, a Transport
Corporation does not have the power to exempt, whether directly
or indirectly, a director of a Transport Corporation from, or
indemnify (whether by paying a premium in respect of a contract
of insurance or otherwise) a director of the Transport
Corporation against, any liability that by law would otherwise
attach to the director in respect of a wilful breach of duty or
breach of trust of which the director may be guilty in relation to
the Transport Corporation.
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Clause 158 provides that the Minister must determine the amount of initial
capital of a Transport Corporation. Subclause (2) provides that
in making the determination, the Minister must have regard to
any relevant advice that the board of directors of the Transport
Corporation has given to the Minister. Subclause (3) outlines
that the determination must be in writing.
Subclause (4) provides that the value of the capital is the value
specified in the determination or (if the Minister and the board of
directors agree that specified value does not correctly represent
the value) the value agreed by the Minister and the board of
directors.
Subclause (5) provides that the purposes of this Part, the amount
of initial capital determined by the Minister in respect of
Victorian Rail Track and V/Line Passenger Corporation under
section 33 of the Rail Corporations Act 1996 (as in force
immediately before the commencement of this section) is
deemed to have been determined under this clause.
Clause 159 provides that the capital of a Transport Corporation is equal to
the sum of--
· the amount of the Transport Corporation's initial capital
under the Bill in accordance with clause 158; and
· any part of the Transport Corporation's liabilities that is
converted into capital at the direction of the Minister;
and
· any amounts paid to the Transport Corporation out of
money appropriated by the Parliament for the purpose
of providing capital; and
· any part of the Transport Corporation's reserves that is
converted into capital at the direction of the Minister
after consultation with the board of directors of the
Transport Corporation--
less any amount of capital repaid under clause 160.
Clause 160 provides that the capital of a Transport Corporation is repayable
to the State at the times, and in the amounts, as the Minister
directs in writing after consultation with the board of directors of
the Transport Corporation.
Subclause (2) provides that the Minister must have regard to any
advice that the board of directors of the Transport Corporation
has given to the Minister in relation to the Transport
Corporation's affairs before giving that direction.
109
Clause 161 provides that a Transport Corporation must pay to the State the
amounts, at the times and in the manner, as are determined by
the Treasurer after consultation with board of directors of the
Transport Corporation and the Minister.
Clause 162 provides that the Minister or the Treasurer may, in writing,
require the board of directors of a Transport Corporation to give
them information as required.
Clause 163 provides that a Transport Corporation must exercise its powers
and discharge its duties subject to the general direction and
control of the Minister and any specific directions given by the
Minister with the approval of the Treasurer. Any specific
directions may be published in the Government Gazette.
Clause 164 provides that a Transport Corporation, in its annual report for a
financial year under Part 7 of the Financial Management Act
1994, must include a copy of the specific directions given to it
under clause 163 together with a statement of its response to that
direction and a copy of the statement of corporate intent last
completed.
Clause 165 provides for the corporate planning requirements of a Transport
Corporation.
Subclause (1) clarifies that the corporate plan requirements in
clause 165 operate in addition to the requirements in clause 64 of
the Bill.
Subclause (2) requires the board of directors of a Transport
Corporation to give a copy of the proposed corporate plan to the
Minister on or before 31 May in each year.
Subclause (3) outlines the form of the proposed corporate plan,
in that it must be in a form approved by the Minister, include a
statement of corporate intent in accordance with clause 166 and
include a business plan and financial statements containing any
information that the Minister requires.
Subclause (4) requires the board of directors of a Transport
Corporation to consider any comments on the proposed
corporate plan made to the board of directors by the Minister
within 2 months after the proposed corporate plan is submitted
to the Minister.
Subclause (5) outlines that board of directors of a Transport
Corporation must consult the Minister about the comments on
the corporate plan made by the Minister, make changes if agreed
between the board of directors of a Transport Corporation and
Minister and then deliver the complete corporate plan to the
110
Minister within two months after the commencement of the
financial year.
Subclause (6) allows the corporate plan or any part of the
corporate plan to be published or made available but only
following the approval of the board of directors of a Transport
Corporation and the Minister.
Subclause (7) allows the corporate plan to be modified at any
time by the board of directors of a Transport Corporation with
the agreement of the Minister.
Subclause (8) provides that the board of directors of a Transport
Corporation can propose a modification to the corporate plan by
written notice to the Minister. The board of directors of a
Transport Corporation can then make that proposed modification
unless the Minister, by written notice within 14 days, directs the
board of directors of a Transport Corporation not to modify the
corporate plan.
Subclause (9) allows the Minister to direct the board of directors
of a Transport Corporation to include in, or omit from, a
statement of corporate intent, a business plan or a financial
statement of a specified kind, any specified matters.
The Minister's direction must occur by written notice.
Subclause (10) requires the Minister to consult with the board of
directors of a Transport Corporation as to a direction given by
the Minister under clause 165.
Subclause (11) requires the board of directors of a Transport
Corporation to comply with a direction given to the Roads
Corporation under clause 165.
Subclause (12) clarifies that, at any particular time, the statement
of corporate intent, the business plan or the financial statements
for a Transport Corporation are the statements and plan last
completed, with any modifications or deletions made in
accordance with this Division.
Clause 166 outlines the information that a Transport Corporation must
provide in its statement of corporate intent.
The statement of corporate intent will relate to the current
financial year and each of the 2 following financial years and
must also include information about any subsidiaries of a
Transport Corporation. The statement of corporate intent will
include information such as the business objectives, main
undertakings and performance targets of a Transport Corporation
or any of its subsidiaries.
111
Clause 167 provides that a Transport Corporation must act only in
accordance with its corporate plan and must obtain the written
approval of the Minister before it can act in manner contrary to
the corporate plan.
Clause 168 provides that nothing done by a Transport Corporation is void or
unenforceable merely because the Transport Corporation has
failed to comply with clause 165, clause 166 or clause 167.
Clause 169 provides that this clause applies if the board of directors of a
Transport Corporation determines that matters have arisen--
· that may prevent, or significantly affect, achievement of
the business objectives of the Transport Corporation and
its subsidiaries (if any) under the corporate plan; or
· that may prevent, or significantly affect, achievement of
the targets under the plan.
Subclause (2) provides that if this clause applies the board must
immediately notify the Minister of its determination and the
reasons for the determination.
Clause 170 provides a delegation power for a Transport Corporation.
Subclause (1) provides that a Transport Corporation may
delegate to any person, by instrument, any of its functions, duties
or powers under any Act or regulations, including the power of
delegation subject to subclause (3).
Subclause (2) provides that a delegation under this clause may
be made--
· in relation to a person or class of persons specified in
the instrument of delegation; or
· in relation to the holder, or the holder from time to time,
of an office specified, or of each office in a class of
offices specified, in the instrument of delegation.
Subclause (3) provides that a person to whom a power, duty or
function has been delegated under subclause (1) may, subject to
and in accordance with the instrument of delegation under
subclause (1), by instrument delegate to another person that
power, duty or function.
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Subclause (4) provides that Sections 42 and 42A of the
Interpretation of Legislation Act 1984 apply to a sub-
delegation under subclause (3) as if it were a delegation.
Section 42 allows the delegate's state of mind to be applied to
the exercise of a delegated power, duty or function where
relevant to the exercise of that power or performance of a duty
or function.
Section 42A allows the delegator to exercise the delegated
power or perform the delegated duty or function and allows for
delegations to be subject to conditions.
PART 7--TRANSPORT SAFETY AGENCIES
Part 7 of the Bill provides for transport safety agencies.
The transport safety agencies are the Director, Transport Safety and the Chief
Investigator, Transport Safety.
Transport safety agencies are characterised by their specific regulatory or
investigative roles that support better safety outcomes for rail, bus and marine
transport. Transport safety agencies are independent statutory offices.
Division 1 provides for the establishment, object, functions and powers of the
Director, Transport Safety.
Division 2 provides for the establishment, object, function and powers of the
Chief Investigator, Transport Safety.
Division 3 provides for the provisions applying to both transport safety
agencies.
Division 1--Director, Transport Safety
Division 1 of Part 7 of the Bill sets out the provisions relating to the Director,
Transport Safety.
The Director, Transport Safety is an amalgamation of the offices of the
Director, Public Transport Safety and the Director of Marine Safety to create
a single and independent office. This amalgamation supports the safety
functions shared by the prior offices, providing greater consistency,
efficiency and transparency in safety regulation.
The Director, Transport Safety is charged with the independent safety
regulation of rail, bus and marine transport. For the purposes of Part 7,
'transport safety' means safety for the operation of rail, bus and marine
transport.
Clause 171 provides that there is to be a Director, Transport Safety.
The clause further provides that the person who was the
Director, Public Transport Safety, immediately before the
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commencement of clause 171 under section 9K of the
Transport Act 1983 (as in force immediately before the
commencement of clause 171) becomes the Director, Transport
Safety.
Subclause (3) provides that the Director, Transport Safety is the
successor in law of the Director, Public Transport Safety and the
Director of Marine Safety.
Clause 172 provides that the object of the Director, Transport Safety is to
independently seek the highest transport safety standards that are
reasonably practicable and consistent with the vision statement
and the transport system objectives.
The Director Transport Safety has a primary object which is
supported by further detail which should be considered inclusive
and indicative of the primary object, but not exhaustive. It is
intended that the object for the Director, Transport Safety will be
consistent with the vision statement and transport system
objectives.
Subclause (2) provides that the primary object includes the
specific objects or purposes specified in--
· section 1(c) of the Marine Act 1988--that is, to provide
for the efficient and safe operation of vessels on State
waters;
· section 1 of the Public Transport Competition Act
1995--that is, to improve the operation of road-based
public transport by providing for the accreditation of
operators;
· section 11 of the Rail Safety Act 2006--that is, to
provide for safe rail operations in Victoria.
Clause 173 sets out the functions of the Director, Transport Safety. These
are to--
· perform the functions and duties conferred on the
Director, Transport Safety by--
· the Marine Act 1988, the Public Transport
Competition Act 1995, the Rail Safety Act
2006, the Transport (Compliance and
Miscellaneous) Act 1983 or any other Act;
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· regulations made under the Marine Act 1988,
the Public Transport Competition Act 1995,
the Rail Safety Act 2006, the Transport
(Compliance and Miscellaneous) Act 1983 or
any other Act;
· make recommendations to the Minister with respect
to--
· the operation, administration and enforcement of
Divisions 4B, 6 and 7 of Part VII of the
Transport (Compliance and Miscellaneous)
Act 1983 and regulations under that Act.
Divisions 4B, 6 and 7 of Part VII relate to the
enforcement of transport safety laws;
· the operation, administration and enforcement of
the Rail Safety Act 2006 and regulations under
that Act;
· regulations made under the Rail Safety Act 2006
or under the Transport (Compliance and
Miscellaneous) Act 1983 for the purposes of
Divisions 4B, 6 and 7 of Part VII of the
Transport (Compliance and Miscellaneous)
Act 1983;
· codes of practice that the Minister proposes to
approve under Part 8 of the Rail Safety Act
2006 or Part 2 of the Public Transport
Competition Act 1995;
· the operation, administration and enforcement of
the Marine Act 1988 and regulations made
under that Act;
· the operation and administration of marine
pollution legislation, including the Pollution of
Waters by Oil and Noxious Substances Act
1986.
· advise and make recommendations to the Minister on
matters relating to transport safety in the State and
related matters;
· investigate and report on transport safety matters;
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· prepare codes of practice and guidelines to provide
practical guidance to accredited rail operators and any
other person who may be placed under an obligation or
duty by or under a corresponding safety law;
· provide guidance and information on marine safety
matters;
· promote education and training by--
· devising, in co-operation with educational and
other bodies, courses in transport safety; and
· approving courses in transport safety (whether or
not devised in co-operation with another body);
and
· facilitating access to those courses; and
· initiating or promoting events such as
conferences and forums, and the publication of
information, relating to transport safety;
· conduct any education or training activity, and approve
persons to provide education and training, relevant to
the functions of the Director, Transport Safety;
· collect information and data about, and commission and
sponsor research into, transport safety matters;
· promote awareness in the transport industry (including
rail safety workers) and among the public about
transport safety initiatives;
· develop policy in relation to the administration of
transport safety regulation.
Subclause (2) provides that the functions of Director, Transport
Safety do not include the function of developing policy for
firstly, transport safety regulation and related matters; and
secondly, the development of legislation relating to transport
safety regulation and related matters.
Subclause (3) provides, however, that the Director, Transport
Safety may advise or comment on the development of policy for
the matters set out in subclause (2).
Clause 174 provides that the Director, Transport Safety has the power to
investigate any transport safety matter.
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Clause 175 provides that where a mandatory transport safety decisions may
result in significant costs or expenses being incurred by a person
whose interests are affected by the decision, the Director,
Transport Safety must--
· conduct or cause to be conducted a cost-benefit analysis
of a mandatory transport safety decision; and
· consult with the Premier, the Treasurer and any other
Minister whose area of responsibility may be affected
by a mandatory transport safety decision and the
persons whose interests are affected by a mandatory
transport safety decision.
Subclause (3) provides that the cost-benefit analysis and
consultation must be conducted--
· in accordance with guidelines prepared under
section 176; and
· before a mandatory transport safety decision is made
unless the Director, Transport Safety considers that
decision must be made immediately to protect public
safety.
Subclause (4) provides that if a mandatory transport safety
decision is made immediately to protect public safety, the cost-
benefit analysis and consultation must be conducted as soon as
practicable after the decision is made.
Clause 176 provides that the Minister may prepare guidelines for the
purposes of cost-benefit analyses and consultation.
Before preparing the guidelines, the Minister must consult with
the Premier and Treasurer.
These guidelines--
· may include guidelines about the methodology to be
applied in a cost-benefit analysis;
· may require the Director, Transport Safety to obtain an
independent assessment about the methodology to be
applied in a cost-benefit analysis;
· must include guidelines about the procedure for
consultation under clause 175.
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Clause 177 allows the Director, Transport Safety to disclose information
obtained or collected in the performance or exercise of his or her
functions of powers where he or she considers it necessary for
the safe operation of rail, bus and marine transport.
Subclause (2) provides that the Director, Transport Safety may,
if he or she considers it necessary for the safe operation of rail,
bus and marine transport, publish any information, including a
report arising out of--
· an investigation by him or her of a transport safety
matter; or
· an inquiry under section 59 of the Rail Safety Act
2006. Section 59 provides for the holding of an inquiry
as to whether disciplinary action should be taken against
an accredited rail operator.
Subclause (3) provides that a publication under subclause (2)
must not identify a person by name.
Clause 178 provides a delegation power for the Director, Transport Safety.
Subclause (1) provides that the Director, Transport Safety may
delegate, by instrument, any of its functions, duties or powers
under a number of Act or regulations, including the power of
delegation subject to subclause (3) to--
· a transport safety officer under the Transport
(Compliance and Miscellaneous) Act 1983; or
· any employee employed under Part 3 of the Public
Administration Act 2004 to enable the Director,
Transport Safety to carry out his or her functions; or
· any officer or employee of a port management body, a
local port manager or a waterway manager under the
Marine Act 1988; or
· a consultant, contractor or agent engaged by him or her.
Subclause (2) provides that a delegation under this clause may
be made--
· in relation to a person or class of persons specified in
the instrument of delegation; or
· in relation to the holder, or the holder from time to time,
of an office specified, or of each office in a class of
offices specified, in the instrument of delegation.
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Subclause (3) provides that a person to whom a power, duty or
function has been delegated under subclause (1) may, subject to
and in accordance with the instrument of delegation under
subclause (1), by instrument delegate to another person that
power, duty or function.
Subclause (4) provides that Sections 42 and 42A of the
Interpretation of Legislation Act 1984 apply to a
sub-delegation under subclause (3) as if it were a delegation.
Section 42 allows the delegate's state of mind to be applied to
the exercise of a delegated power, duty or function where
relevant to the exercise of that power or performance of a duty
or function.
Section 42A allows the delegator to exercise the delegated
power or perform the delegated duty or function and allows for
delegations to be subject to conditions.
Division 2--Chief Investigator, Transport Safety
Division 2 of Part 7 of the Bill sets out the provisions relating to the Chief
Investigator, Public Transport Safety.
This office is a renaming of the previous office of the Chief Investigator,
Transport and Marine Safety Investigations to reflect that the marine sector is
part of the transport system.
The Bill continues the Chief Investigator's important 'no blame' investigative
role for transport safety matters but leaves many of the Chief Investigator's
investigative powers in the Transport (Compliance and Miscellaneous)
Act 1983.
Clause 179 provides that there is to be a Chief Investigator, Transport
Safety. The clause further provides that the person who was the
Chief Investigator, Transport and Marine Safety Investigations,
under section 83 of the Transport Act 1983 (as in force
immediately before the commencement of clause 179) becomes
the Chief Investigator, Transport Safety.
Subclause (3) provides that the Chief Investigator, Transport
Safety is the successor in law of the Chief Investigator,
Transport and Marine Safety Investigations.
Clause 180 provides that the object of the Chief Investigator, Transport
Safety is to seek to improve transport safety by providing for the
independent no-blame investigation of transport safety matters
consistent with the vision statement and the transport system
objectives.
119
Clause 181 provides that the principal function of the Chief Investigator,
Transport Safety is to--
· investigate transport safety matters; and
· report the results of any investigations conducted by the
Chief Investigator, Transport Safety to the Minister.
Subclause (2) provides that in investigating an incident, the
Chief Investigator, Transport Safety is to primarily focus on--
· determining what factors caused the incident, rather
than to apportion blame for the incident; and
· identifying issues that may require review, monitoring
or further consideration.
Subclause (3) provides that the functions of the Chief
Investigator, Transport Safety are to--
· perform any functions or duties conferred on the Chief
Investigator, Transport Safety by the Marine Act 1988,
the Transport (Compliance and Miscellaneous) Act
1983 or any other Act;
· liaise with international, Commonwealth and State
bodies and agencies that have similar functions to those
of the Chief Investigator, Transport Safety;
· administer any voluntary reporting system that is set up
under section 85F of the Transport (Compliance and
Miscellaneous) Act 1983;
· improve the quality and professionalism of
investigations by educating those who are involved in
the operation or use of rail, bus or marine transport.
Clause 182 provides that the Chief Investigator, Transport Safety may
investigate any transport safety matter.
Clause 183 provides a delegation power for the Chief Investigator, Transport
Safety.
Subclause (1) provides that the Chief Investigator, Transport
Safety may delegate to any person, by instrument, any of its
functions, duties or powers under any Act or regulations,
including the power of delegation subject to subclause (3).
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Subclause (2) provides that a delegation under this clause may
be made--
· in relation to a person or class of persons specified in
the instrument of delegation; or
· in relation to the holder, or the holder from time to time,
of an office specified, or of each office in a class of
offices specified, in the instrument of delegation.
Subclause (3) provides that a person to whom a power, duty or
function has been delegated under subclause (1) may, subject to
and in accordance with the instrument of delegation under
subclause (1), by instrument delegate to another person that
power, duty or function.
Subclause (4) provides that Sections 42 and 42A of the
Interpretation of Legislation Act 1984 apply to a
sub-delegation under subclause (3) as if it were a delegation.
Section 42 allows the delegate's state of mind to be applied to
the exercise of a delegated power, duty or function where
relevant to the exercise of that power or performance of a duty
or function.
Section 42A allows the delegator to exercise the delegated
power or perform the delegated duty or function and allows for
delegations to be subject to conditions.
Division 3--Provisions applying to transport safety appointees
Division 3 of Part 7 of the Bill sets out the provisions that are common to the
offices of transport safety appointees--the Chief Investigator, Transport
Safety and the Director, Transport Safety.
Clause 184 provides that a transport safety appointee (the Chief Investigator,
Transport Safety and the Director, Transport Safety) is to be
appointed by the Governor in Council for a period of up to
5 years.
Subclause (2) provides that the transport safety appointee is to
hold office on the terms and conditions (including remuneration
and allowances) set out in the instrument by which he or she was
appointed.
Subclause (3) provides that the person who holds the office of
transport safety appointee may be re-appointed.
121
Subclause (4) provides that the transport safety appointee must
(in the opinion of the Governor in Council) have at least two of
the following attributes--
· experience relevant to the particular appointment;
· appropriate tertiary qualifications;
· experience in the management of public transport or
marine safety systems for a period of at least 10 years;
· experience in the marine, road or rail transport (freight
and passenger) sectors;
· senior level experience in the transport or legal sector.
Subclause (5) provides that the Public Administration Act
2004 (other than Part 3 of that Act) applies to a transport safety
appointee in respect of the office of the transport safety
appointee.
Clause 185 provides for acting appointments as a transport safety appointee.
Subclause (1) provides that the Governor in Council may
appoint a person to act in the office of a transport safety
appointee during a vacancy in that office or during a period or
all periods when the person holding that office is absent from
duty or is, for any reason, unable to perform the duties of that
office.
Subclause (2) provides that an acting appointment is for the
period, not exceeding six months, which is specified in the
instrument of appointment.
Subclause (3) provides that the Governor in Council may at any
time remove the person acting from office.
Subclause (4) provides that while a person is acting in the office
of the transport safety appointee, the person--
· has, and may exercise, all the powers and must perform
all the duties of that office under this Act or any other
Act; and
· is entitled to be paid the remuneration and allowances
that the transport safety appointee would have been
entitled to for performing those duties.
122
Clause 186 provides that a person ceases to be a transport safety
appointee--
· at the expiry of his or her term of office; or
· if he or she resigns in accordance with clause 187; or
· if he or she ceases to hold office under clause 188; or
· if he or she becomes an insolvent under administration;
or
· if he or she is convicted of an indictable offence or of an
offence which, if committed in Victoria, would be an
indictable offence; or
· if he or she nominate for election as a member of the
Parliament of any jurisdiction.
Clause 187 provides that a transport safety appointee may resign from office
by notice in writing signed by him or her and delivered to the
Minister.
Clause 188 provides that the Governor in Council may suspend a person
from office as a transport safety appointee on the
recommendation of the Minister.
Subclause (2) provides that the Minister may recommend the
suspension if he or she is of the opinion that the person--
· is incapable of performing his or her functions or duties;
or
· has refused or neglected to perform his or her functions
or duties; or
· has engaged in misconduct; or
· is otherwise unfit to continue to be a transport safety
appointee.
Subclause (3) provides that before making such a
recommendation the Minister must--
· give the person written notice that the Minister is
considering making the recommendation, together with
the details of the reasons why the recommendation is
being considered; and
· consider any submissions made to the Minister by, or on
behalf of, the person in response to the notice.
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Subclause (4) provides that if the Governor in Council suspends
a person as a transport safety appointee, the Minister must, on or
before the third siting day of each House of Parliament after that
suspension, ensure that a statement of the grounds for the
making of the recommendation that the person be suspended is
laid before the House.
Subclause (5) provides that a person ceases to hold office as a
transport safety appointee if each House of Parliament declares
by resolution, passed within 7 sitting days of the House after the
laying before it of the statement that he or she should cease to
hold office.
Subclause (6) provides that the suspension of a person as a
transport safety appointee ceases--
· if a resolution that he or she should cease to hold office
is defeated before either House of Parliament; or
· if such a resolution is not passed by each House of
Parliament within 7 sitting days of the House after the
laying before it of the statement.
Subclause (7) provides that if a person is suspended from office
under this section, he or she remains entitled to his or her
remuneration and allowances as a transport safety appointee
during the period of suspension.
Clause 189 provides that an act or decision of a transport safety appointee or
acting transport safety appointee is not invalid only--
· because of a defect or irregularity in or in connection
with the appointment; or
· in the case of an acting transport safety appointee, on
the grounds) that the occasion for so acting had not
arisen or had ceased.
Clause 190 provides that a transport safety appointee or an acting transport
safety appointee is not personally liable for anything done or
omitted to be done in good faith--
· in the exercise of a power or the performance of a
function or duty under the Bill or under any other Act or
regulation under the Bill or any other Act; or
· in the reasonable belief that the act or omission was in
the exercise of a power or the performance of a function
or duty under the Bill or under any other Acts or
regulation under the Bill or any other Act.
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Subclause (2) provides that any liability resulting from an act or
omission that would otherwise attach to the transport safety
appointee or acting transport safety appointee attaches instead to
the Crown.
Clause 191 provides that the Minister may direct the relevant transport
safety appointee to investigate a public transport safety matter or
a marine safety matter.
Subclause (2) provides that the Minister must not give a
direction--
· that directs the transport safety appointee as to how to
conduct an investigation into a pubic transport safety
matter or a marine safety matter; or
· that directs the transport safety appointee as to which
persons the transport safety appointee may request or
direct to assist him or her in investigating a public
transport safety matter or a marine safety matter; or
· about the outcome of any investigation into a public
transport safety matter or a marine safety matter; or
· that directs the transport safety appointee to stop
investigating any public transport safety matter or
marine safety matter.
Subclause (3) provides that directions under this section must be
published in the Government Gazette and takes effect on it being
published in the Government Gazette.
Subclause (4) provides that the Minister must cause a copy of
the direction to be laid before each House of Parliament on or
before the third sitting day of the House after the direction is
published in the Government Gazette.
Subclause (5) provides that the relevant transport safety
appointee must comply with a direction given under this clause.
Clause 192 provides that there may be employed under Part 3 of the Public
Administration Act 2004 any persons that are necessary to
enable a transport safety appointee to carry out his or her
functions.
Clause 193 provides for the powers of transport safety appointees.
It is intended that the powers will provide transport safety
appointees with the capacity to undertake the functions
conferred on the transport safety appointees.
125
Subclause (1) provides that a transport safety appointee has
power, on behalf of the Crown, to do all things that are
necessary or convenient to be done for or in connection with, or
as incidental to, the achievement of the object of the transport
safety appointee and the performance of his or her functions.
Subclause (2) provides that subject to the approval of the
Minister, a transport safety appointee may on behalf of the
Crown--
· acquire, hold, or dispose of real or personal property;
· enter into any agreement or contract;
· enter into any lease or licence;
· participate in the formation of a corporation, trust,
partnership or other body;
· subscribe for or otherwise acquire, and hold and dispose
of, shares in or debentures or other securities of, a
corporation;
· become a member of a company limited by guarantee;
· subscribe for or other wise acquire, and hold and
dispose of, units in a trust;
· acquire, and hold and dispose of, an interest in a
partnership or other body;
· enter into partnership or into any arrangement for
sharing of profits, union of interest, co-operation, joint
venture, reciprocal concession or otherwise, with any
person or body carrying on or engaged in, or about to
carry on or engage in, any business or transaction
whether within or outside Victoria relating to, or
connected with, any function of the transport safety
appointee;
· assign, grant, lease, licence, sell, mortgage, use as a
security, or otherwise encumber or dispose of, any
intellectual property right;
· engage in any business, undertaking or activity
incidental to the performance of its functions;
126
· engage consultants, contractors or agents;
· act as trustee;
· act as an agent of another person.
Subclause (3) provides that without limiting subclause (1), a
transport safety appointee may exercise the powers conferred on
the transport safety appointee by any other Act or the regulations
under any other Act.
Subclause (4) provides that the generality of this clause is not
limited by another provision of the Bill or any other Act which
confers a power on a transport safety appointee.
Clause 194 provides that (subject to clause 191 and clause 193(2)) a
transport safety appointee, when performing or exercising his or
her functions or powers, is independent and is not subject to the
direction and control of the Minister.
Clause 195 provides a transport safety appointee with extraterritorial
powers, allowing a transport safety appointee to perform his or
her functions or powers within or outside Victoria.
Clause 196 provides that a transport safety appointee may enter into a
memorandum of understanding with another transport safety
appointee or any other person or body that is permitted by the
regulations, about the performance or exercise of their respective
functions or powers.
Subclause (2) provides that a memorandum of understanding--
· must include any matters required by the regulations;
· may include any other matters that the parties to the
memorandum consider appropriate.
Subclause (3) provides that a transport safety appointee must
ensure that a memorandum of understanding that he or she
enters into is published both in the Government Gazette and on
the internet.
Clause 197 provides that a transport safety appointee may give advice to a
person who has a duty or obligation under a corresponding
safety law.
Subclause (2) provides that the giving of such advice does not
give rise to--
· any liability of, or other claim against, the transport
safety appointee; or
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· any right, expectation, duty or obligation that would not
otherwise be conferred or imposed on the person given
the advice; or
· any defence that would not otherwise be available to
that person.
Subclause (3) provides that a transport safety appointee's power
under this section to give advice may also be exercised by a
delegate of the transport safety appointee who has been
authorised to do so.
PART 8--GENERAL
Part 8 of the Bill provides for the making of regulations and provides for
amendments to the Transport Act 1983, the Rail Corporations Act 1996
and the Marine Act 1988.
Part 8 also provides for the repeal of the Southern and Eastern Integrated
Transport Authority Act 2003 and the consequential amendment of a
number of other Acts. Part 8 also provides for the making of transitional
regulations.
Division 1--Regulations
Clause 198 provides that the Governor in Council may make regulations for
or with respect to any matter or thing required or permitted by
the Bill to be prescribed or necessary to be prescribed to give
effect to the Bill.
More specifically, subclause (2) provides that the regulations--
· may be of general or specially limited application;
· may differ according to differences in time, place or
circumstance;
· may leave any matter or thing to be from time to time
determined, applied, dispensed with or regulated by a
specified person or class of persons;
· may provide in a specified case or class of case for the
exemption of persons or things or a class of persons or
things from any of the provisions of the regulations,
whether unconditionally or on specified conditions and
either wholly or to the extent specified;
128
· may confer powers or impose duties in connection with
the regulations on any specified person or specified
class of persons;
· may apply, adopt or incorporate with or without
modification, any matter contained in any document,
code, standard, rule, specification or method formulated,
issued, prescribed or published by any person--
· wholly or partially or as amended by the
regulations; or
· as formulated, issued, prescribed or published at
the time the regulations are made or at any time
before then; or
· as formulated, issued, prescribed or published
from time to time;
· may impose a penalty not exceeding 20 penalty units for
a contravention of the regulations.
Division 2--Miscellaneous
Clause 199 provides for the renaming of the Transport Act 1983 to the
Transport (Compliance and Miscellaneous) Act 1983 and
provides that upon the commencement of the clause, the
Transport Act 1983 is to be known as the Transport
(Compliance and Miscellaneous) Act 1983 in any Act (other
than the Bill), regulation, subordinate instrument or other
document unless the contrary intention appears. The clause also
provides for the amendment of that Act by Schedule 3 to the
Bill.
The renamed Transport Act 1983 therefore becomes a
supporting statute for the Transport Integration Bill and contains
a repository of compliance and other provisions for transport and
transport bodies. The resulting Transport (Compliance and
Miscellaneous) Act 1983 will itself be the subject of policy and
structural reform in coming years.
Subclause (4) is a savings provision to ensure that all persons,
things and circumstances appointed or created by or under the
Transport Act 1983 or existing or continuing under that Act
immediately before the commencement of this clause continue
under and subject to the Bill.
129
Subclause (5) provides that nothing in this clause limits or
otherwise affects the operation of the Interpretation of
Legislation Act 1984.
Clause 200 provides for the renaming of the Rail Corporations Act 1996 to
the Rail Management Act 1996 and amendments to that Act by
Schedule 4 to the Bill.
The rail corporations in the current Act are being transferred into
the Transport Integration Bill, thereby leaving a remaining suite
of provisions relating to the management of rail operations in
Victoria.
Subclause (2) provides that upon commencement of this clause,
any reference in any Act (other than the Bill), regulation,
subordinate instrument or other document whatsoever to the
Rail Corporations Act 1996 is to be construed as a reference to
the Rail Management Act 1996, unless the contrary intention
appears.
Subclause (4) is a savings provision to ensure that all persons,
things and circumstances appointed or created by or under the
Rail Corporations Act 1996 or existing or continuing under
that Act immediately before the commencement of this clause
continue under and subject to the Bill.
Subclause (5) provides that nothing in this clause limits or
otherwise affects the operation of the Interpretation of
Legislation Act 1984.
Clause 201 provides for amendments to the Marine Act 1988 in Schedule 5
to the Bill.
Subclause (2) is a savings provision to the effect that except as is
expressly or by necessary implication provided in the Bill, all
persons, things and circumstances appointed or created by or
under the Marine Act 1988 or existing or continuing under that
Act immediately before the commencement of this clause
continue under and subject to the Bill to have the same status,
operation and effect as they respectively would have had if that
Act had not been amended by the Bill.
Subclause (3) provides that nothing in this clause limits or
otherwise affects the operation of the Interpretation of
Legislation Act 1984.
130
Clause 202 repeals the Southern and Eastern Integrated Transport
Authority Act 2003.
The Act is no longer required following the completion of
EastLink which is now in operation.
Subclause (2) is a savings provision to the effect that except as is
expressly or by necessary implication provided in the Bill, all
persons, things and circumstances appointed or created by or
under the Southern and Eastern Integrated Transport
Authority Act 2003 or existing or continuing under that Act
immediately before the commencement of this clause continue
under and subject to the Bill to have the same status, operation
and effect as they respectively would have had if that act has not
been amended by this Bill.
Subclause (3) makes a consequential amendment to Schedule 1
of the Borrowing and Investment Powers Act 1987 by
repealing item 12A.
Subclause (4) provides that nothing in this clause limits or
otherwise affects the operation of the Interpretation of
Legislation Act 1984.
Clause 203 provides for consequential amendments to a number of Acts as
set out in Schedule 6 to the Bill.
Clause 204 provides for amendments to the Borrowing and Investment
Powers Act 1987 and the Land Acquisition and
Compensation Act 1986 with respect to the Transport
Infrastructure Development Agent established under the Bill.
Clause 205 provides for the making of regulations by the Governor in
Council containing provisions of a savings or transitional nature
consequent on the enactment of the Bill. Such provisions may
be retrospective in nature and have effect despite anything to the
contrary in any Act (other than the Bill or the Charter of
Human Rights and Responsibilities) or in any subordinate
instrument. This clause expires on 1 July 2012.
Clause 206 provides for the repeal of clause 204, clause 206 and
Schedules 1 to 6 on 1 July 2012.
131
SCHEDULES
SCHEDULE 1
Amendments to Transport Legislation
Schedule 1 provides for amendments to transport legislation to provide that
such legislation is "transport legislation" within the meaning of the Bill.
SCHEDULE 2
Amendments to Interface Legislation
Schedule 2 provides for amendments to interface legislation to provide that
such legislation is "interface legislation" within the meaning of the Bill.
SCHEDULE 3
Consequential Amendments to the Transport Act 1983
Schedule 3 provides for consequential amendments to the Transport Act
1983.
SCHEDULE 4
Consequential Amendments to the Rail Corporations Act 1996
Schedule 4 provides for consequential amendments to the Rail Corporations
Act 1996.
SCHEDULE 5
Consequential Amendments to the Marine Act 1988
Schedule 5 provides for consequential amendments to the Marine Act 1988.
SCHEDULE 6
Consequential Amendments to other Acts
Schedule 6 provides for consequential amendments to other Acts.
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1
This version of the Explanatory Memorandum contains corrections to the
Explanatory Memorandum previously circulated.
132