Independent Pricing and Regulatory Tribunal Act 1992

This Act is the Independent Pricing and Regulatory Tribunal Act 1992.

This Act commences on a day or days to be appointed by proclamation.

In this Act—

access regime means a scheme (whether of a legislative, administrative or other kind) set up for the purpose of implementing the Competition Principles Agreement in respect of third-party access to services provided by means of infrastructure facilities owned, controlled or operated by a public or private sector body, where service—

includes the use of an infrastructure facility (such as a road or railway), the handling or transporting of things (such as goods or people) or a communications service or similar service, but

does not include the supply of goods, the use of intellectual property or the use of a production process, except to the extent that that supply or use is an integral but subsidiary part of the service.

Chairperson means the Chairperson of the Tribunal.

Competition Principles Agreement means the Competition Principles Agreement made on 11 April 1995 by the Commonwealth, the Territories and the States, as in force for the time being.

government agency means any public or local authority which supplies services to the public or any part of the public, and includes a government department, state owned corporation, water supply authority or public utility undertaking which supplies such services.

government monopoly service is defined in section 4.

portfolio Minister—

in relation to a statutory State owned corporation—has the same meaning as in the State Owned Corporations Act 1989, or

in relation to any other government agency or public authority—means the Minister who is responsible for the agency or authority,

or such other Minister as is nominated by the Premier by order published in the Gazette.

price includes any rate, fee, levy and charge and any other valuable consideration (however described), but does not include a State tax.

pricing policies includes policies relating to the level or structure of prices for services.

public infrastructure access regime means an access regime that relates to services provided by means of infrastructure facilities owned, controlled or operated by a government agency.

service includes—

the supply of water, electricity, gas or other thing (whether or not of the same kind), and

the provision of public transport, and

the making available for use of facilities of any kind, and

the conferring of rights, benefits or privileges for which the price is payable in the form of royalty, tribute, levy or similar exaction, and

the exercise of the general functions of a public or local authority for which a rate or levy is payable by a section of the public,

but does not include anything for which a State tax is payable.

State tax means a tax such as land tax or stamp duty which is imposed for the public revenue purposes of the State.

Tribunal means the Independent Pricing and Regulatory Tribunal of New South Wales established by this Act.

water supply authority has the same meaning as it has in the Water Management Act 2000.

Note.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

In this Act—

a reference to a function includes a reference to a power, authority and duty, and

a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.

Notes included in this Act do not form part of this Act.

For the purposes of this Act, a government monopoly service is a service supplied by a government agency and declared by the regulations or the Minister to be a government monopoly service.

Editorial note.

For declarations under this subsection, see the Historical notes at the end of this Act.

A service may be declared to be a government monopoly service if the Minister certifies that it is a service—

for which there are no other suppliers to provide competition in the part of the market concerned, and

for which there is no contestable market by potential suppliers in the short term in that part of the market.

A service may be declared to be a government monopoly service by reference to—

a service specified or described in the declaration, or

the service for which a price specified or described in the declaration is payable.

A declaration of a service by the Minister is to be made by order published on the NSW legislation website.

To avoid doubt the service for which a navigation service charge under Part 5 of the Ports and Maritime Administration Act 1995 is payable is capable of being declared to be a government monopoly service. The relevant port authority (within the meaning of that Part) is taken to be the supplier of that service.

To avoid doubt, the services for which fees and charges are payable under Chapter 3 of the Water Management Act 2000 are capable of being declared to be government monopoly services. The Water Administration Ministerial Corporation is taken to be the supplier of any such service.

To avoid doubt, the services for which fees and charges are payable under the Water NSW Act 2014 are capable of being declared to be government monopoly services. Water NSW is taken to be the supplier of any such service.

There is established by this Act an Independent Pricing and Regulatory Tribunal of New South Wales. The Tribunal is a body corporate.

The Tribunal has such functions as are conferred or imposed on it by or under this or any other Act or law.

(Repealed)

The Tribunal consists of 3 members appointed by the Minister as the permanent members of the Tribunal, and any number of additional members appointed by the Minister as temporary members.

Of the permanent members of the Tribunal, one is to be appointed as Chairperson.

A member of the Tribunal may be appointed as a full-time or part-time member.

The Minister is to ensure that the persons appointed as permanent members of the Tribunal have together a knowledge and understanding of economics, the interests of consumers and the interests of suppliers of services (including the interests of the Government as a supplier of services), whether the services supplied are monopoly services or not.

Schedule 2 has effect with respect to the members of the Tribunal.

Schedule 3 has effect with respect to the procedure of the Tribunal.

The Tribunal is not subject to the control or direction of the Minister in respect of the contents of any determination or recommendation of the Tribunal, but in other respects is subject to the control and direction of the Minister.

The Tribunal is not subject to the control or direction of any other Minister in respect of any function conferred or imposed on the Tribunal by or under this or any other Act, except as provided in any Act.

Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the Tribunal to exercise its functions.

Note.

Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services the Tribunal makes use of) may be referred to as officers or employees, or members of staff, of the Tribunal. Section 47A of the Constitution Act 1902 precludes the Tribunal from employing staff.

The Tribunal may enter into arrangements with any government agency, or other body or person (whether in the public or private sector)—

for the provision of assistance to the Tribunal in connection with investigations under this Act or the exercise of other functions of the Tribunal (whether under this or any other Act), or

for the provision of assistance by the Tribunal to the agency or other body or person by means of the provision of services that are within the Tribunal’s field of expertise and relevant to its functions.

The Tribunal is not to enter into an arrangement for the provision of services by the Tribunal unless the Minister has approved of the arrangement.

In entering into an arrangement for the provision of services by the Tribunal, the Tribunal has a duty to ensure that giving effect to the arrangement will not interfere with the ability of the Tribunal to exercise its functions.

The Tribunal may engage consultants to assist it in the exercise of its functions.

The Tribunal is entitled to charge for the services that it provides under this section, whether or not regulations have been made under section 29 for or with respect to fees for those services.

The Tribunal may delegate its functions, other than this power of delegation, to any member of the Tribunal or to any committee of persons (whether of members only or members and other persons).

The Tribunal may not delegate its function of making determinations or recommendations under this or any other Act to a committee that includes persons who are not members of the Tribunal.

The Tribunal may delegate any of its functions to an officer of the Tribunal, other than this power of delegation and the Tribunal’s functions of making or giving determinations, recommendations, advice or reports under this or any other Act.

This section does not limit any power of delegation conferred on the Tribunal by or under any other Act.

The Tribunal is to conduct investigations and make reports to the Minister on the following matters—

the determination of the pricing for a government monopoly service supplied by a government agency specified in Schedule 1,

a periodic review of pricing policies in respect of government monopoly services supplied by such an agency.

Subsection (1) does not extend to such services of a government agency specified in Schedule 1 as may be excluded in that Schedule for the agency.

The regulations may amend Schedule 1. An agency may not be added to Schedule 1 by the regulations unless it is a government agency.

(Repealed)

The Tribunal is also to conduct investigations and make reports to the Minister on any of the following matters referred to the Tribunal by the Minister—

the determination of the pricing for a specified government monopoly service,

a periodic review of pricing policies in respect of a specified government monopoly service.

This section applies to a government monopoly service whether or not it is supplied by a government agency specified in Schedule 1.

A reference with respect to the determination of the pricing of a government monopoly service may extend to an annual or other periodic determination of that pricing.

The Tribunal may request the Minister to refer a matter to the Tribunal under this section.

If the Minister has referred a matter to the Tribunal for investigation and report, the Minister may withdraw or amend the reference at any time before the Minister has received the report from the Tribunal.