Passenger Transport (Transitional) Regulations 2000

Passenger Transport (Transitional) Regulations 2000

I, the Governor in and over the State of Tasmania and its Dependencies in the Commonwealth of Australia, acting with the advice of the Executive Council, make the following regulations under the Passenger Transport Act 1997 .

G. S. M. GREEN

Governor

By His Excellency's Command,

P. A. LENNON

Minister for Infrastructure, Energy and Resources

PART 1 - Preliminary

1.   Short title

These regulations may be cited as the Passenger Transport (Transitional) Regulations 2000 .

2.   Commencement

These regulations take effect immediately after the Passenger Transport Act 1997 commences.

PART 2 - Regular Passenger Transport Services

Division 1 - Introductory

3.   Interpretation of Part 2

(1)  In this Part –

Act means Passenger Transport Act 1997 ;

authorised service means a service taken to be authorised by clause 7 of Schedule 2 to the Passenger Transport (Consequential and Transitional) Act 1997 ;

determined means determined by the Commission under regulation 5 ;

interim service contract means a service contract entered into under regulation 6 ;

new service contract means a service contract entered into under regulation 10 ;

service means regular passenger transport service;

service contract means a contract, between the Commission and a transport operator, under which the transport operator is required to provide a service;

[Regulation 3 Subregulation (1) amended by S.R. 2004, No. 81, Applied:06 Oct 2004] [Regulation 3 Subregulation (1) amended by S.R. 2008, No. 57, Applied:18 Jun 2008] transitional period means the period starting on the day on which these regulations take effect and ending on 31 December 2008, both days inclusive;

transport operator, in relation to a service, means the person providing or intending to provide the service.

(2)  The Commission, by notice in the Gazette, may designate areas of the State as metropolitan areas for the purposes of this Part.

(3)  The boundary of an area designated as a metropolitan area under subregulation (2) need not coincide with the boundary of any area designated, prescribed or otherwise defined as a metropolitan area for the purposes of any other law of the State.

4.   Limitation on power, &c., of Commission

(1)  The Commission must not exercise a power or perform a function under this Part if  the Commission is aware that it would thereby prevent a transport operator from continuing to provide an authorised service under a contract between the transport operator and a third party.

(2)  Subregulation (1) prevails over any other regulation of this Part.

(3)  No action lies against the Commission for failing to exercise a power or perform a function under this Part on account of this regulation.

Division 2 - Continuity of core transitional services

5.   Identification of core transitional services

(1)  During the transitional period, the Commission must progressively review all authorised services to determine which of them are core passenger services and which of them are not core passenger services.

(2)  Before determining that an authorised service is not a core passenger service, the Commission must consult the transport operator.

(3)  Until a determination is made that an authorised service is not a core passenger service, any subsisting contract between the Commission and the transport operator in relation to that service, including a contract entered into after these regulations take effect, is to be treated as a contract entered into under section 18 of the Act.

6.   Core transitional service providers to be offered interim contract

(1)  As soon as practicable after determining that an authorised service is a core passenger service, the Commission must offer to enter into an interim service contract with the transport operator to ensure that, subject to this Part, the service continues to be provided for the remainder of the transitional period.

(2)  An interim service contract –

(a) is to specify the service that the transport operator is expected to provide under the contract; and

(b) is to specify the funding support, if any, that the transport operator will receive from the Commission for providing the service; and

(c) is to specify the fares that may be charged for each type of passenger using the service; and

(d) is to provide for the variation or termination of any other contract between the Commission and the transport operator in relation to the same service; and

(e) is taken to contain a condition that  the Commission, with the approval of the Minister and by notice in accordance with the contract, may terminate the contract if it is satisfied on reasonable grounds that –

(i) the service being provided under the contract has ceased to be a core passenger service; or

(ii) any performance standards specified in the contract have been fundamentally or repeatedly breached; and

(f) may contain such other conditions, consistent with the Act and this Part, as the parties to the contract consider necessary or expedient.

(3)  An interim service contract is terminated by the expiry of the transitional period unless it is sooner terminated in accordance with the condition referred to in regulation 11 or another condition of the contract. 

(4)  An interim service contract is to be treated as a contract entered into under section 18 of the Act.

7.   Contractual arrangements for non-core passenger services to be terminated

As soon as practicable after determining that an authorised service is not a core passenger service, the Commission must terminate any contract between the Commission and the transport operator in relation to the authorised service, in accordance with the conditions of that contract.

Division 3 - Independent reviews and industry plans

8.   Independent reviews of core passenger services

(1)  During the transitional period, the Minister must cause each core passenger service to be reviewed by a person other than the Commission.

(2)  The conditions on which a person is appointed to carry out a review are to be determined by the Minister.

(3)  The costs of a review, including the fees and expenses of the person who carries it out, are to be met by the Commission.

(4)  In exercising power under this regulation, the Minister must carry out such preliminary and other consultations with the regular passenger transport industry as the Minister considers necessary or expedient.

(5)  The person who carries out a review must provide the Minister and the Commission with a report on the outcome of the review.

9.   Service plans for core passenger services

(1)  In this regulation,

regional area means an area of the State that is wholly or partly outside a metropolitan area.

(2)  Where core passenger services in a particular regional area are being provided by one or more transport operators, that operator, or those operators, may, at any time before the end of the transitional period –

(a) prepare a service plan designed to meet the essential service needs of the community in that regional area more efficiently and effectively; and

(b) submit that plan to the Minister.

(3)  The Commission may assist a transport operator, or a group of transport operators, with the preparation of a service plan.

(4)  The Minister may endorse a service plan for the purposes of this Part if the Minister is satisfied that the plan  –

(a) meets the essential service needs of the community in the regional area covered by the plan; and

(b) ensures a satisfactory standard of service; and

(c) ensures effective and efficient service delivery; and

(d) meets any relevant budgetary constraints.

(5)  The Minister, as soon as practicable after considering a service plan, must notify the relevant transport operator or transport operators whether or not the plan has been endorsed for the purposes of this Part.

(6)  If a service plan is not endorsed, the relevant transport operator or transport operators may submit a revised plan.

Division 4 - New service contracts and compensation

10.   New service contracts

(1)  During the transitional period, the Commission, having regard to the outcome of an independent review carried out under regulation 8 or to a service plan endorsed under regulation 9 , may offer to enter into a new service contract.

(2)  The offer –

(a) if made consequent on the outcome of an independent review, is to be made to  the transport operator or transport operators providing the reviewed core passenger service; or

(b) if made consequent on the endorsement of a service plan, is to be made to the transport operator or transport operators who submitted the plan.

(3)  A new service contract –

(a) is to specify clear performance standards to be met by the relevant transport operator or transport operators; and

(b) is taken to contain a condition that  the Commission, with the approval of the Minister and by notice in accordance with the contract, may terminate the contract if it is satisfied on reasonable grounds that –

(i) the service being provided under the contract has ceased to be a core passenger service; or

(ii) the performance standards specified in the contract have been fundamentally or repeatedly breached; and

(c) may contain such other conditions, consistent with the Act and this Part, as the parties to the contract consider necessary or expedient.

(4)  A new service contract, subject to any conditions contained in the contract, has a term of 5 years and may be extended once by the parties for a further term of 5 years if the Commission is satisfied that the performance standards specified in the contract are being consistently met.

(5)  A new service contract is to be treated as a contract entered into under section 18 of the Act.

11.   Interim contracts terminated if replaced

(1)  An interim service contract for the provision of a core passenger serviceis taken to contain a condition that the contract is terminated if the parties to the contract enter into a new service contract, with or without other parties, for the same or substantially the same core passenger service.

(2)  In the absence of agreement, a determination by the Commission that a core passenger service is the same or substantially the same as another core passenger service is, for the purposes of subregulation (1) , final.

12.   Compensation for superseded interim contracts

(1)  This regulation applies where a transport operator's interim service contract or contracts are terminated in accordance with regulation 11 .

(2)  If the total aggregated amount of the payments that the transport operator is entitled to receive from the Commission under new service contracts (for the first 12 months of the term of each of those contracts) does not exceed the total aggregated amount of the payments that the transport operator would have been entitled to receive from the Commission under the terminated interim service contracts (for, in each case, the same 12 month period) the transport operator is entitled to a one-off payment of compensation from the Commission.

(3)  The amount of compensation payable to a person under subregulation (2) is –

(a) the difference between the 2 total aggregated amounts referred to in that subregulation; or

(b) such lesser amount as the Minister, having regard to any relevant circumstances, may approve after consulting the transport operator.

(4)  For the purposes of calculating compensation under this regulation, the payments that the Commission is required to make to a transport operator under a new service contract are, notwithstanding the conditions contained in the contract, to be calculated as if it contained the same fare and service conditions as the corresponding terminated interim service contract.

13.   Compensation for loss of funding support

(1)  This regulation applies where  –

(a) a withdrawal of, or reduction in, Commission funding support for an authorised service during the transitional period renders the service unprofitable and results in the cessation of the service; and

(b) the withdrawal of, or reduction in, funding support was not due to –

(i) an act or omission of the transport operator; or

(ii) the termination of an interim service contract between the transport operator and the Commission pursuant to regulation 11 .

(2)  In a case to which this regulation applies, the transport operator is entitled to a one-off payment of compensation from the Commission of  –

(a) an amount equal to the gross revenue that the transport operator could reasonably have been expected to receive for providing the authorised service in the 12 month period immediately following its cessation had funding support for the service not been withdrawn or reduced; or

(b) such lesser amount as the Minister, having regard to any relevant circumstances, may approve after consulting the transport operator.

(3)  For the purposes of this regulation, the responsibility for demonstrating that a withdrawal or reduction of funding support rendered a service unprofitable and resulted in the cessation of the service lies with the transport operator.

14.   Disputed compensation

(1)  If a transport operator disputes the amount of compensation that he or she is offered under regulation 12 or 13 , the dispute is to be settled by arbitration.

(2)  The Commercial Arbitration Act 1986 applies to an arbitration as if this regulation were a written agreement between the Minister and the Commission, as one party, and the transport operator, as the other party, to refer the dispute to arbitration.

(3)  In arbitrating a dispute under this regulation, an arbitrator must have regard to the following principles:

(a) the transport operator is not entitled to receive compensation in excess of the amount provided for under regulation 12(3)(a) or regulation 13(2)(a) , whichever applies;

(b) subject to those regulations, the compensation should not exceed fair recompense for the unmerited detriment suffered by the transport operator as a result of actions taken by the Commission during the transitional period;

(c) the transport operator is not entitled to be compensated more than once for the same detriment;

(d) in a case to which regulation 13 applies, the transport operator's responsibility under regulation 13(3) also applies to the arbitration.

(4)  The costs of an arbitration, including the fees and expenses of the arbitrator and the transport operator, are to be paid for by the Commission.

(5)  Notwithstanding subregulation (4) , an arbitrator may order a transport operator to reimburse the Commission for the whole or any part of the costs of an arbitration if the arbitrator reasonably believes that the transport operator has done one or more of the following:

(a) been frivolous, vexatious or dilatory in disputing the amount of compensation, or in the course of the arbitration;

(b) incurred costs that, having regard to the amount of compensation in dispute and the arbitration process, are extravagant or unnecessary;

(c) by any intentional or negligent act or omission, caused the arbitration to fail.

(6)  The Commission may, in a court of competent jurisdiction, recover an amount ordered to be paid to it under subregulation (5) as a debt due to the Commission.

PART 3 - Miscellaneous

15.   Interpretation of Part 3

In this Part –

changeover period means the 12 month period immediately following the commencement time;

commencement day means the day on which the Passenger Transport Act 1997 commences;

commencement time means the time at which these regulations take effect;

new provisions means the provisions of Division 5 of Part IV of the Traffic (Miscellaneous) Regulations 1968 as in force at and after the commencement time;

old provisions means the provisions of Division 5 of Part IV of the Traffic (Miscellaneous) Regulations 1968 as in force immediately before the commencement day.

16.   Passenger vehicle certificates: transitional

(1)  A person who, immediately before the commencement day, held a valid licence issued under the old provisions is taken to be the holder of a passenger vehicle certificate under and subject to the new provisions –

(a) for the balance of the period for which the licence was issued, or last issued, under the old provisions; and

(b) for the same circumstances, and subject to the same conditions and restrictions, as applied to the licence held under the old provisions.

(2)  For the purposes of subregulation (1) , the last certificate supplied under regulation 46 of the old provisions to a person referred to in that subregulation may be taken, by any person for any purpose, to be the person's passenger vehicle certificate under the new provisions.

(3)  The application form used by the Registrar before the commencement day for the purposes of regulation 45(1) of the old provisions may be used for the purposes of regulation 45(1) of the new provisions until the end of the changeover period.

(4)  In a case to which subregulation (3) applies, a reference in the form to a licence may, if the context so requires, be taken to be a reference to a passenger vehicle certificate under the new provisions.

17.   Breath analysis forms: transitional

(1)  In this regulation,

breath analysis form means Form 3 in Schedule 1 to the Road Safety (Alcohol and Drugs) Regulations 1999 , being the form that is prescribed by regulation 15 of those regulations for the purposes of section 11 of the Road Safety (Alcohol and Drugs) Act 1970 .

(2)  During the changeover period, a form that purports to be a breath analysis form may be taken to be, and may be used as, a breath analysis form notwithstanding that, in paragraph (c) on the back of the form, the words "public vehicle" appear instead of the words "prescribed vehicle".

(3)  Subregulation (2) applies only if, in all other respects, the form is the same or substantially the same as a breath analysis form.

(4)  If a form containing the words "public vehicle" is used as a breath analysis form in reliance on this regulation, those words are to be taken to have, under and for the purposes of the Road Safety (Alcohol and Drugs) Act 1970 , the same meaning as "prescribed vehicle".

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 21 June 2000

These regulations are administered in the Department of Infrastructure, Energy and Resources.