{"id":"australasia-railway-third-party-access-act-1999","name":"Australasia Railway (Third Party Access) Act 1999","slug":"australasia-railway-third-party-access-act-1999","collection":"act","jurisdiction":"nt","status":"in_force","isInForce":true,"actNumber":null,"makingDate":null,"administeringDepartment":null,"currentVersion":{"id":29858,"registerId":"nt-australasia-railway-third-party-access-act-1999-current","compilationNumber":null,"startDate":"2026-04-01","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"1","sectionType":"section","heading":"Short title and commencement","content":"1 Short title and commencement\n(1) This Act may be cited as the AustralAsia Railway (Third Party\nAccess) Act 1999.\n(2) This Act comes into operation on the date fixed by the\nAdministrator by notice in the Gazette.\n","sortOrder":0},{"sectionNumber":"2","sectionType":"section","heading":"Definition","content":"2 Definition\nIn this Act Access Code means the AustralAsia Railway (Third\nParty Access) Code contained in the Schedule.\n","sortOrder":1},{"sectionNumber":"3","sectionType":"section","heading":"Application of Access Code","content":"3 Application of Access Code\nThe Access Code applies as a law of the Territory.\n","sortOrder":2},{"sectionNumber":"4","sectionType":"section","heading":"Crown to be bound","content":"4 Crown to be bound\n(1) This Act and the Access Code binds the Crown, not only in the right\nof the Territory but also, so far as the legislative power of the\nLegislative Assembly permits, the Crown in all its other capacities.\n(2) Nothing in this Act or the Access Code makes the Crown liable to\nbe prosecuted for an offence.\n","sortOrder":3},{"sectionNumber":"5","sectionType":"section","heading":"Non-application of Commercial Arbitration Act 1985","content":"5 Non-application of Commercial Arbitration Act 1985\nThe Commercial Arbitration Act 1985 does not apply to an\narbitration under the Access Code.\n","sortOrder":4},{"sectionNumber":"6","sectionType":"section","heading":"Interpretation Act 1978 provisions to apply to certain","content":"6 Interpretation Act 1978 provisions to apply to certain\ninstruments under Code\nSections 63 to 64 of the Interpretation Act 1978, with the necessary\nmodifications, apply to a notice under clause 49 of the Access\nCode (other than a notice prescribing a date on which clause 48 of\n\nAustralAsia Railway (Third Party Access) Act 1999 2\nthe Access Code is to expire) in the same way as they apply to\nregulations made under an Act.\n","sortOrder":5},{"sectionNumber":"7","sectionType":"section","heading":"Minister to cause copies of regulator's reports to be tabled in","content":"7 Minister to cause copies of regulator's reports to be tabled in\nLegislative Assembly\nThe Minister must, within 12 sitting days of the Legislative\nAssembly after receiving a report under clause 7 of the Access\nCode, cause a copy of the report to be laid before the Legislative\nAssembly.\n","sortOrder":6},{"sectionNumber":"8","sectionType":"section","heading":"Modification of Code","content":"8 Modification of Code\nIf the designated Minister under Part IIIA of the Competition and\nConsumer Act 2010 (Cth) believes under section 44H(6) of that Act\nthat an amendment to the Access Code made under clause 48 of\nthe Code after the commencement of this section is, or results in, a\nsubstantial modification of the Code, then that amendment is to be\ntaken not to be in force, and never to have been in force, to the\nextent of that belief.\n\nAustralAsia Railway (Third Party Access) Act 1999 3\nSchedule AustralAsia Railway (Third Party Access)\nAct 1999\nsection 3\nAUSTRALASIA RAILWAY (THIRD PARTY ACCESS) CODE\nPart 1 Preliminary\nDivision 1 General\n1 Title\nThis Code may be cited as the AustralAsia Railway (Third Party\nAccess) Code.\n2 Application of Code\nThis Code applies to so much of the railway as has been\nconstructed between Tarcoola and Darwin to the extent prescribed\nfrom time to time.\n3 Interpretation\n(1) In this Code, unless the contrary intention appears:\naccess contract means a contract or agreement for the provision\nof railway infrastructure services.\naccess dispute means a dispute referred to in clause 13 or\nclause 36(2).\naccess holder means a person who has a right of access to\nrailway infrastructure facilities and includes the access provider if or\nwhen the access provider is providing a freight service or a\npassenger service by means of the railway.\naccess provider, in relation to a railway infrastructure service,\nmeans the person who provides or is in a position to provide the\nrailway infrastructure service.\naccess seeker has the meaning given by clause 10.\narbitrator means an arbitrator appointed under this Code.\nassociate means an associate within the meaning of Division 2 of\n","sortOrder":7},{"sectionNumber":"Part 1","sectionType":"part","heading":"2 of the Corporations Act 2001.","content":"Part 1.2 of the Corporations Act 2001.\naward means an award made by an arbitrator under this Code.\n\nAustralAsia Railway (Third Party Access) Act 1999 4\ncorresponding access regime means:\n(a):\n(i) in respect of a service that is declared under Part IIIA of\nthe Competition and Consumer Act 2010 (Cth), Part IIIA\nof that Act;\n(ii) an access regime in respect of which there is a decision\nin force by the Commonwealth Minister under\nsection 44N of the Competition and Consumer Act 2010\n(Cth) that the regime is an effective access regime;\n(iii) an arrangement under an undertaking in operation\nunder section 44ZZA of the Competition and Consumer\nAct 2010 (Cth); or\n(iv) a code accepted by the Australian Competition and\nConsumer Commission under section 44ZZAA of the\nCompetition and Consumer Act 2010 (Cth),\nif and only to the extent that the regime allows for the\nresolution of interface issues arising under two or more\nrailway access regimes; or\n(b) a law, code, instrument or arrangement declared by the\nNorthern Territory Minister and the South Australian Minister\njointly, by notice in the Gazette, to be a corresponding access\nregime for the purposes of this definition.\nfreight service means the service of carrying goods on the railway.\ninterface issues – these are issues which directly affect two or\nmore railways (including the railway to which this Code applies) and\nwhich relate to operating a freight service or a passenger service by\nmeans of such railways.\nNorthern Territory Minister means the Minister of the Northern\nTerritory having responsibilities for railways in the Northern\nTerritory.\nparty means:\n(a) in relation to an arbitration of an access dispute – a party to\nthe arbitration, as mentioned in clause 17;\n(b) in relation to an award – a party to the arbitration in which the\narbitrator made the award.\n\nAustralAsia Railway (Third Party Access) Act 1999 5\npassenger service means the service of carrying passengers on\nthe railway.\nprescribed means prescribed by the Northern Territory Minister\nand the South Australian Minister jointly by notice in the Gazette.\npricing principles means the pricing principles established by the\nSchedule.\nrailway means the railway to which this Code applies.\nrailway infrastructure facilities means facilities necessary for the\noperation or use of the railway, including:\n(a) the railway track;\n(b) the signalling systems, train control systems and\ncommunications systems; and\n(c) such other facilities as may be prescribed,\nbut not including rolling stock.\nrailway infrastructure service means the service of providing, or\nproviding and operating, railway infrastructure facilities for the\npurpose of providing a freight service or a passenger service by\nmeans of the railway.\nregulator – see clause 5.\nrelated body corporate has the same meaning as in section 9 of\nthe Corporations Act 2001.\nrequired railway infrastructure, in relation to an access seeker or\naccess holder, means that portion of the railway infrastructure\nfacilities required from the access provider in order to provide the\nrelevant railway infrastructure service to the access seeker or\naccess holder (as the case may be).\nresponse date means the date on which the relevant 21 day\nperiod referred to in clause 10(4) expires.\nSouth Australian Minister means the Minister of South Australia\nhaving responsibilities for railways in South Australia.\nSupreme Court means the Supreme Court of the Northern\nTerritory or the Supreme Court of South Australia.\n(2) A reference in this Code to an arbitrator includes, in a case where\nthere are 2 or more arbitrators, a reference to the arbitrators.\n\nAustralAsia Railway (Third Party Access) Act 1999 6\n(3) A reference in this Code to a person seeking access to a railway\ninfrastructure service includes a reference to a person seeking\naccess on behalf of another person or other persons.\n(4) For the purposes of the pricing principles, an effective constraint\nwill be taken to exist when it is likely that a supplier (or the threat of\nentry by a potential supplier) of transportation services by a mode\nother than rail (supplier A) will prevent another supplier of the same\nor similar transportation services by rail (supplier B) from sustaining\nprices materially above supplier B’s long term efficient costs of\nsupply without offering materially more in return.\n(5) The following provisions apply with respect to the prescription of\nany facilities under paragraph (c) of the definition of railway\ninfrastructure facilities in subclause (1):\n(a) the Ministers must not prescribe a facility without first\nconsulting with the regulator; and\n(b) the prescription of a facility must be consistent with the criteria\nset out in Clause 6(3)(a) of the Competition Principles\nAgreement referred to in the Competition and Consumer\nAct 2010 (Cth).\n4 Joint ventures\n(1) If the access provider or access seeker consists of the participants\nin a joint venture, the participants are jointly and severally liable to\nthe obligations under this Code.\n(2) The participants in the joint venture may, from time to time, give the\nregulator written notice of an authorised representative (who may,\nbut need not, be a participant in the joint venture).\n(3) A notice given by or to the authorised representative is taken to\nhave been given by or to all participants in the joint venture.\n(4) If no representative is currently nominated under this clause, a\nnotice given to any one of the participants in the joint venture is\ntaken to have been given to all.\n(5) If this Code requires or permits something to be done by the\nparticipants, the thing may be done by one or more of the\nparticipants on behalf of them all.\n(6) If a provision of this Code refers to the participants doing\nsomething, the provision applies as if the provision referred to one\nor more of the participants doing that thing on behalf of the\nparticipants.\n\nAustralAsia Railway (Third Party Access) Act 1999 7\n(7) A joint venture includes a partnership.\n","sortOrder":8},{"sectionNumber":"Div 2","sectionType":"division","heading":"The regulator","content":"Division 2 The regulator\n5 The regulator\nThe Essential Services Commission established under the\nEssential Services Commission Act 2002 of South Australia is the\nregulator under this Code (and may exercise and perform the\npowers and functions of the regulator under this Code for the\npurposes of both the law of the Northern Territory and the law of\nSouth Australia).\n6 Powers and functions of regulator\n(1) The following functions are assigned to the regulator:\n(a) to monitor and enforce compliance with this Code; and\n(b) such other functions as are contemplated for the regulator\nunder this Code.\n(2) The regulator has such powers as are necessary to enable him or\nher to carry out the functions assigned to the regulator under this\nCode.\n7 Regulator to report to Ministers\nThe regulator must, on or before 30 September in every year,\nforward to the Northern Territory Minister and the South Australian\nMinister a report of the work carried out by the regulator under this\nCode for the financial year ending on the preceding 30 June.\n8 Public consultation\n(1) The regulator must undertake a public consultation process\nwhenever the regulator:\n(a) is undertaking a review under clause 50; or\n(b) is considering the adoption of a guideline, or the adoption of a\nvariation to a guideline, under this Code.\n(2) A public consultation process under subclause (1) must provide for:\n(a) the publication in a newspaper circulating generally in\nAustralia of a notice describing the matter under consideration\nand inviting interested persons to make submissions in\nrelation to the matter within a period stated in the notice; and\n\nAustralAsia Railway (Third Party Access) Act 1999 8\n(b) the consideration by the regulator of any submissions made in\nresponse to an invitation under paragraph (a),\n(and may include other consultation processes considered\nappropriate by the regulator).\nPart 2 Access to railway infrastructure services\nDivision 1 Negotiation of access\n9 Obligation of access provider to provide information about\naccess\n(1) The access provider must, on application of any person, provide\nthe person with information reasonably requested by the person\nabout:\n(a) the extent to which the access provider’s railway infrastructure\nfacilities are currently being used;\n(b) technical details and requirements of the access provider,\nsuch as axle load data, clearance and running speeds;\n(c) time-path allocation and reallocation policies for the railway;\n(d) service quality and train management standards; and\n(e) relevant prices and costs associated with railway\ninfrastructure services provided by the access provider,\nprepared by the access provider for reference purposes in\naccordance with guidelines developed and published by the\n(2) The access provider may make a reasonable charge (to be\ndetermined on a basis decided or approved by the regulator) for\nproviding information under this clause.\n(3) The access provider must, for the purposes of subclause (1)(c)\nand (d), develop and maintain time-path allocation and reallocation\npolicies and service quality and train management standards in\naccordance with principles contained in guidelines developed and\npublished by the regulator.\n\nAustralAsia Railway (Third Party Access) Act 1999 9\n","sortOrder":9},{"sectionNumber":"10","sectionType":"section","heading":"Access proposal","content":"10 Access proposal\n(1) A person (the access seeker) who wants access to a railway\ninfrastructure service, or who wants to vary an access contract in a\nsignificant way or to a significant extent, may put a written proposal\n(the access proposal) to the access provider setting out:\n(a) the nature and extent of the required access or variation; and\n(b) any other information relevant to formulating a response to\nthe access proposal, including information relevant to\ndetermining the price to be charged for access or on account\nof the variation (as the case may be).\n(2) If the implementation of an access proposal would require an\nexpansion or extension of railway infrastructure facilities, the\naccess proposal may include a proposal for the expansion or\nextension of the infrastructure facilities.\n(2a) An access proposal may involve:\n(a) a proposal relating to one or more freight services or\npassenger services and one or more time paths for such\nservices; and\n(b) a person other than the access seeker who will ultimately\nrequire the railway infrastructure services which are the\nsubject of the access request.\n(3) The access provider may, within 21 days after receiving an access\nproposal, request further information from the access seeker as the\naccess provider may reasonably require to enable the access\nprovider to consider the access proposal.\n(4) The access provider must, within 21 days after receiving an access\nproposal or if, within that period, the access provider has requested\nfurther information under subclause (3), within 21 days after\nreceiving the information:\n(a) give written notice of the proposal to:\n(i) the regulator; and\n(ii) any access holder whose rights under an existing\naccess contract or award would be affected by\nimplementation of the proposal;\n\nAustralAsia Railway (Third Party Access) Act 1999 10\n(b) provide to the access seeker the name and contact details of\nany access holder whose rights under an existing access\ncontract or award would be affected by implementation of the\nproposal; and\n(c) provide to the access seeker an indication (even if only a\npreliminary indication) of the terms and conditions on which\nthe access provider would be prepared to grant access or to\nmake the variation.\n(5) It is sufficient compliance with subclause (4)(a)(ii) if a notice\nindicating that the access provider has received the access\nproposal, and the name of the access seeker, is published in a\nnewspaper circulating in the Northern Territory and South Australia.\n(5a) A written notice under subclause (4)(a)(ii) will be limited to providing\nthe name and contact details of the access seeker and technical\ndetails concerning the nature and extent of the required access or\nvariation.\n(6) The respondents to the proposal are:\n(a) the access provider; and\n(b) any access holder whose rights under an existing access\ncontract or award would be affected by implementation of the\nproposal.\n","sortOrder":10},{"sectionNumber":"11","sectionType":"section","heading":"Duty to negotiate in good faith","content":"11 Duty to negotiate in good faith\n(1) The access provider and access seeker must, as soon as\npracticable after the response date, endeavour to accommodate\neach others’ reasonable requirements and must negotiate in good\nfaith with a view to reaching agreement on whether the access\nseeker’s requirements as set out in the access proposal (or some\nagreed modification of the requirements) could reasonably be met,\nand, if so, the terms and conditions for the provision of access for\nthe access seeker.\n(2) The other respondents (if any) whose rights (or prospective rights)\nwould be affected by implementation of the access proposal must\nalso negotiate in good faith with the access seeker with a view to\nreaching agreement on the provision of access to the access\nseeker and any consequent variation of their rights (or prospective\nrights) of access.\n\nAustralAsia Railway (Third Party Access) Act 1999 11\n","sortOrder":11},{"sectionNumber":"12","sectionType":"section","heading":"Limitation on access provider’s right to contract to provide","content":"12 Limitation on access provider’s right to contract to provide\naccess\n(1) The access provider must not enter into an access contract unless:\n(a) there is no other respondent to the access proposal;\n(b) all the other respondents to the proposal agree; or\n(c) any access dispute in relation to the access proposal is\nresolved by conciliation in accordance with Division 3 or by\narbitration in accordance with Division 4.\n(2) A contract entered into in contravention of this clause is void.\n","sortOrder":12},{"sectionNumber":"12A","sectionType":"section","heading":"Protection of confidential information","content":"12A Protection of confidential information\n(1) Information obtained under this Division that:\n(a) could affect the competitive position of an access seeker or a\nrespondent; or\n(b) is commercially valuable or sensitive for some other reason,\nis to be regarded as confidential information.\n(2) A person who obtains confidential information under this Division\nmust not disclose that information unless:\n(a) the disclosure is reasonably required for the purposes of this\nCode;\n(b) the disclosure is made with the consent of the person who\nsupplied the information;\n(c) the disclosure is required or allowed by law;\n(d) the disclosure is required by a court or tribunal constituted by\nlaw; or\n(e) the disclosure is in prescribed circumstances.\n(3) A person who obtains confidential information under this Division\nmust not (unless authorised by the person who supplied the\ninformation):\n(a) disclose the information to an unauthorised person; or\n\nAustralAsia Railway (Third Party Access) Act 1999 12\n(b) use (or attempt to use) the information for a purpose which is\nnot authorised or contemplated by this Code.\n(4) Subclauses (1), (2) and (3) do not prevent or restrict the disclosure\nof information to the regulator and the regulator may in any event\ndisclose confidential information if the regulator is of the opinion\nthat the public benefit in making the disclosure outweighs any\ndetriment that might be suffered by a person in consequence of the\ndisclosure.\n(5) A person who obtains confidential information under this Division\nmust not use the information for the purpose of securing an\nadvantage for himself or herself or for some other person in\ncompetition to the person who provided the information.\nMaximum penalty: 885 penalty units.\n(6) The access provider must, in connection with the operation of this\nclause, develop and maintain policies to ensure that confidential\ninformation obtained by the access provider under this Division is\nnot:\n(a) used in any unauthorised way or for an unauthorised purpose;\nor\n(b) provided to an unauthorised person.\n(7) The access provider must provide a copy of a policy that applies\nunder subclause (6) to the regulator, and to any other person who\nrequests a copy from the access provider.\n(8) In this clause:\nunauthorised person means a person who is directly involved, on\nbehalf of the access provider, in the promotion or marketing of\nfreight services or passenger services but does not include a\nperson whose involvement is limited to:\n(a) strategic decision making;\n(b) performing general supervisory or executive functions; or\n(c) providing technical, administrative, accounting, service or\nother support functions.\n\nAustralAsia Railway (Third Party Access) Act 1999 13\n","sortOrder":13},{"sectionNumber":"12B","sectionType":"section","heading":"Referral of issues to regulator","content":"12B Referral of issues to regulator\n(1) An access seeker, the access provider or any other respondent to\nan access proposal may request the regulator to consider and, if\nappropriate, to give advice or directions with respect to any matter\nthat has arisen in connection with the operation of this Division in\norder to facilitate the conduct of negotiations under this Division.\n(2) A person making a request under subclause (1) must comply with\nany requirement published by the regulator for the purposes of this\nclause.\n(3) The regulator may decline to consider or act on a request under\nsubclause (1) for any reasonable cause.\n(4) The regulator may, if the regulator thinks fit, give a general direction\nto the access provider under subclause (1) in respect of a particular\nmatter under this Division.\n(5) A person must not, without reasonable excuse, contravene or fail to\ncomply with a direction given by the regulator under this clause.\n(6) This clause does not limit or affect the ability of an access seeker at\nany time to request that an access dispute be referred to arbitration\nunder Division 2.\nDivision 2 Access disputes and requests for arbitration\n","sortOrder":14},{"sectionNumber":"13","sectionType":"section","heading":"Access disputes","content":"13 Access disputes\nAn access dispute exists if:\n(a) a respondent to an access proposal, within 30 days after the\nresponse date or such other time as may be prescribed,\nrefuses or fails to enter into good faith negotiations with the\naccess seeker;\n(b) the access seeker, after making reasonable attempts to reach\nagreement with the respondents, fails to obtain an agreement\non the access proposal or an agreed modification of the\nproposal; or\n(c) all parties agree that there is no reasonable prospect of\nreaching agreement.\n\nAustralAsia Railway (Third Party Access) Act 1999 14\n","sortOrder":15},{"sectionNumber":"14","sectionType":"section","heading":"Request for reference of dispute to arbitration","content":"14 Request for reference of dispute to arbitration\n(1) An access seeker may, by written notice given to the regulator,\nrequest the regulator to refer an access dispute to arbitration.\n(2) A copy of a notice under this clause must be given to all\nrespondents to the access proposal.\n","sortOrder":16},{"sectionNumber":"Div 3","sectionType":"division","heading":"Conciliation and reference to arbitration","content":"Division 3 Conciliation and reference to arbitration\n","sortOrder":17},{"sectionNumber":"15","sectionType":"section","heading":"Conciliation and reference to arbitration","content":"15 Conciliation and reference to arbitration\n(1) On receipt of a request to refer an access dispute to arbitration, the\nregulator must (subject to this clause):\n(a) if the parties to the dispute agree – attempt to settle the\ndispute by conciliation; or\n(b) if the parties do not agree or they agree but after making a\nreasonable attempt to do so the regulator fails to settle the\ndispute by conciliation – appoint an arbitrator or arbitrators\nand refer the dispute to them.\n(2) The regulator is not obliged to attempt to settle the dispute by\nconciliation or refer the dispute to arbitration if, in the regulator’s\nopinion:\n(a) the subject matter of the dispute is trivial, misconceived or\nlacking in substance;\n(b) the access seeker has not provided information reasonably\nrequested by the access provider under clause 10(3);\n(c) the access seeker has not negotiated in good faith or has\nresorted to arbitration prematurely or unreasonably; or\n(d) the regulator is satisfied, on the application of a party to the\ndispute, that there are good reasons why the dispute should\nnot be referred to arbitration.\n(3) A dispute cannot be referred to arbitration if:\n(a) the dispute involves only one access seeker and, before the\nappointment of the arbitrator, the access seeker notifies the\nregulator that the access seeker does not want to proceed\nwith the arbitration; or\n(b) the dispute involves 2 or more access seekers and, before the\nappointment of the arbitrator, all access seekers notify the\nregulator that they do not want to proceed with the arbitration.\n\nAustralAsia Railway (Third Party Access) Act 1999 15\n","sortOrder":18},{"sectionNumber":"16","sectionType":"section","heading":"Arbitrator to be qualified","content":"16 Arbitrator to be qualified\n(1) The regulator must keep a list of persons who are suitably qualified\nto be appointed as arbitrators but may appoint as an arbitrator a\nperson who is not included in the list if the occasion requires.\n(2) An arbitrator must be a person who:\n(a) is independent of the parties to the dispute;\n(b) is not subject to the control or direction of the Government of\neither the Northern Territory or South Australia in any\ncapacity;\n(c) is properly qualified to act in the resolution of the dispute; and\n(d) has no direct or indirect interest in the outcome of the dispute.\n(3) Before appointing an arbitrator, the regulator must consult with\neach of the parties to the dispute and must attempt (but is not\nbound) to make an appointment that is acceptable to all parties.\n(4) If it appears to the regulator:\n(a) that a dispute includes, or may include, an interface issue;\nand\n(b) that the access seeker is, or may be, involved in a dispute\nunder a corresponding access regime,\nthen the regulator should, in making an appointment under this\nclause, endeavour to appoint a person who can also act under the\ncorresponding access regime.\n(5) If the regulator is unable to appoint a person under subclause (4)\nwho is able to act under a corresponding access regime, the\nperson appointed under this clause to act as an arbitrator must, in\nrespect of any interface issues involved in a dispute, endeavour to\nconsult with any person appointed to act as an arbitrator under the\ncorresponding access regime.\n","sortOrder":19},{"sectionNumber":"Div 4","sectionType":"division","heading":"Arbitration of access disputes","content":"Division 4 Arbitration of access disputes\n","sortOrder":20},{"sectionNumber":"17","sectionType":"section","heading":"Parties to arbitration","content":"17 Parties to arbitration\n(1) The parties to the arbitration of an access dispute are:\n(a) the access seeker;\n(b) the access provider;\n\nAustralAsia Railway (Third Party Access) Act 1999 16\n(c) any other respondent to the access proposal; and\n(d) any other person who applies in writing to be made a party\nand is accepted by the arbitrator as having a sufficient\ninterest.\n(2) The regulator may participate in an arbitration under this Part.\n(3) The participation of the regulator may include:\n(a) providing or calling evidence;\n(b) making representations on questions arising during the\narbitration; and\n(c) assisting the parties or the arbitrator with any matter (as may\nbe appropriate).\n","sortOrder":21},{"sectionNumber":"18","sectionType":"section","heading":"Manner in which decisions made","content":"18 Manner in which decisions made\nWhere 2 or more arbitrators are appointed to arbitrate an access\ndispute:\n(a) the regulator must appoint one of the arbitrators to preside;\n(b) any decision to be made in the proceedings may be made by\na majority; and\n(c) if the arbitrators are equally divided in opinion, the decision of\nthe presiding arbitrator prevails.\n","sortOrder":22},{"sectionNumber":"19","sectionType":"section","heading":"Award by arbitrator","content":"19 Award by arbitrator\n(1) Unless the arbitrator terminates the arbitration under clause 22, the\narbitrator must make a written award on access to the railway\ninfrastructure service by the access seeker.\n(2) The award may deal with any matter relating to access to the\nservice by the access seeker, including matters that were not the\nbasis for notification of the dispute. By way of example, the award\nmay:\n(a) require the access provider to provide access to the service\nby the access seeker;\n(b) require the access seeker to accept, and pay for, access to\nthe service;\n(c) specify the terms and conditions of the access seeker’s\naccess to the service;\n\nAustralAsia Railway (Third Party Access) Act 1999 17\n(d) subject to clause 20, require the access provider to expand or\nextend the railway infrastructure facilities;\n(e) subject to clause 20, specify the extent to which the award\noverrides an earlier award or access contract.\n(3) The award does not have to require the access provider to provide\naccess to the service by the access seeker.\n(4) Before making an award, the arbitrator must give a draft award to\nthe parties to the arbitration and the regulator and may take into\naccount representations that any of them may make on the\nproposed award.\n(5) When the arbitrator makes an award, the arbitrator must give the\nparties to the arbitration and the regulator the arbitrator’s reasons\nfor making the award.\n(6) The arbitrator may, in providing a draft award or making an award,\ndo either or both of the following:\n(a) divide the award into parts and limit distribution of a part in\norder to protect confidential commercial information from\nunnecessary publication;\n(b) impose conditions with respect to the disclosure of\nconfidential commercial information in order to prevent\nunnecessary publication.\n(7) Despite any other provision, the regulator may disclose confidential\ncommercial information if the regulator is of the opinion that it is in\nthe public interest to do so.\n","sortOrder":23},{"sectionNumber":"20","sectionType":"section","heading":"Restrictions on access awards","content":"20 Restrictions on access awards\n(1) The arbitrator cannot:\n(a) make an award that would:\n(i) delay the construction of the railway or any part of the\nrailway;\n(ii) add to the cost of construction of the railway; or\n(iii) have the effect of requiring the access provider to bear\nany of the capital cost of any expansion or extension of\nthe railway infrastructure facilities,\nunless the access provider agrees; or\n\nAustralAsia Railway (Third Party Access) Act 1999 18\n(b) make an award granting access to railway infrastructure\nfacilities where the right of access cannot be satisfied\nbecause of a right of access already granted to, and used by,\nan access holder.\n(2) The arbitrator cannot make an award that would prejudice the\nrights of an existing access holder under an earlier access contract\nor award unless:\n(a) the access holder agrees; or\n(b) the arbitrator is satisfied that:\n(i) the access holder’s entitlement to access exceeds the\nentitlement that the access holder actually needs and\nthere is no reasonable likelihood that the access holder\nwill need to use the excess entitlement; and\n(ii) the access seeker’s requirements cannot be\nsatisfactorily met except by transferring the excess\nentitlement (or some of it) to the access seeker and the\naccess holder is or will be compensated for any loss\nsuffered as a result of the transfer of the excess\nentitlement (or relevant part) to the access seeker.\n(3) Despite subclause (1), the arbitrator may make an award that\nwould have the effect of requiring the access provider to expand or\nextend the railway infrastructure facilities, or to permit an expansion\nor extension of the railway infrastructure facilities, if:\n(a) the expansion or extension is technically and economically\nfeasible and consistent with the safe and reliable operation of\nthe railway infrastructure facilities;\n(b) the access provider’s legitimate business interests in the\nrailway infrastructure facilities are protected; and\n(c) the terms and conditions on which access is to be permitted\nare reasonable taking into account the costs to be borne by\nthe parties and the economic benefits to the parties resulting\nfrom the expansion or extension.\n(4) For the purposes of subclause (3)(b), it will be considered not to be\nin the access provider's legitimate business interests to require the\naccess provider to take action that would:\n(a) result in a breach of:\n(i) a reasonable financial or other covenant or commitment\ngiven by the access provider to a third party; or\n\nAustralAsia Railway (Third Party Access) Act 1999 19\n(ii) a reasonable security obligation of the access provider\nto a third party; or\n(b) result in the access provider having to assume an\nunreasonable financial, business or other risk, liability or\ndetriment associated with the cost of the expansion or\nextension.\n(5) However, subclause (4)(a) does not apply if it is found that the\nfinancial or other covenant or commitment was given, or the\nsecurity obligation was undertaken, (as the case may be) by the\naccess provider for the purpose of preventing or hindering access\nto a railway infrastructure service.\n","sortOrder":24},{"sectionNumber":"21","sectionType":"section","heading":"Matters arbitrator must take into account","content":"21 Matters arbitrator must take into account\n(1) The arbitrator must take the following matters into account in\nmaking an award:\n(a) the legitimate business interests of the access provider, and\nthe access provider’s investment in the railway generally;\n(b) the initial capital cost of the railway infrastructure facilities\n(including the cost of the rail corridor), the degree of economic\nrisk of the project, and the need for a fair return on the access\nprovider’s investment having regard to those costs and that\nrisk;\n(c) the cost to the access provider of providing access, including\nany costs of extending the railway infrastructure facilities, but\nnot costs associated with losses arising from increased\ncompetition in upstream or downstream markets;\n(d) the public interest, including the public interest in having\ncompetition in markets;\n(e) the interests of all access holders and other persons who\nhave rights to use the railway infrastructure facilities, including\nall firm and binding contractual obligations;\n(ea) in relation to an interface issue involving a corresponding\naccess regime – the interests of the access seeker in having\nefficient access to the railway;\n(f) the pricing principles;\n(g) the economic value to the access provider of extensions to\nthe railway infrastructure facilities, the cost of which is borne\nby someone else, and any additional investment that the\naccess seeker or access provider has agreed to undertake;\n\nAustralAsia Railway (Third Party Access) Act 1999 20\n(h) the operational and technical requirements necessary for the\nsafe and reliable operation of the railway infrastructure\nfacilities;\n(i) the economically efficient operation of the railway\ninfrastructure facilities,\n(and may take into account any other matters, not inconsistent with\nthe matters referred to above, that the arbitrator thinks are\nrelevant).\n(2) Subclause (1)(b) must be read in a manner that is not inconsistent\nwith the principles set out in clause 6(4)(i) of the Competition\nPrinciples Agreement referred to in the Competition and Consumer\nAct 2010 (Cth).\n","sortOrder":25},{"sectionNumber":"22","sectionType":"section","heading":"Arbitrator may terminate arbitration in certain cases","content":"22 Arbitrator may terminate arbitration in certain cases\n(1) The arbitrator may at any time terminate an arbitration (without\nmaking an award) if the arbitrator thinks that:\n(a) the subject matter of the dispute is trivial, misconceived or\nlacking in substance;\n(b) the person seeking arbitration of the dispute has not\nnegotiated in good faith or is acting unreasonably; or\n(c) the arbitrator is satisfied, on an application of a party to the\ndispute, that there are good reasons why the arbitration\nshould be terminated.\n(2) The arbitrator may also, at any time, terminate an arbitration\n(without making an award), with the consent of the parties to the\narbitration.\n(3) If the arbitrator terminates an arbitration under subclause (1)\nwithout making an award, the arbitrator must give the parties to the\narbitration and the regulator the arbitrator’s reasons for terminating\nthe arbitration.\n","sortOrder":26},{"sectionNumber":"Div 5","sectionType":"division","heading":"Pricing principles on an arbitration","content":"Division 5 Pricing principles on an arbitration\n","sortOrder":27},{"sectionNumber":"23","sectionType":"section","heading":"Arbitrated prices for access relating to passenger or freight","content":"23 Arbitrated prices for access relating to passenger or freight\n(1) On an arbitration under this Code, the price that may be charged by\nthe access provider for access to railway infrastructure facilities to\nenable an access seeker to deliver to its customers a freight\nservice is to be determined by applying the principles and methods\nof calculation set out in Division 1 in the Schedule to this Code.\n\nAustralAsia Railway (Third Party Access) Act 1999 21\n(2) On an arbitration under this Code, the price that may be charged by\nthe access provider for access to railway infrastructure facilities to\nenable an access seeker to deliver to its customers a passenger\nservice is to be determined by applying the principles and methods\nof calculation set out in Division 2 in the Schedule to this Code.\n","sortOrder":28},{"sectionNumber":"Div 6","sectionType":"division","heading":"Procedure in arbitration","content":"Division 6 Procedure in arbitration\n","sortOrder":29},{"sectionNumber":"25","sectionType":"section","heading":"Hearing to be in private","content":"25 Hearing to be in private\n(1) Subject to subclause (2), an arbitration hearing for an access\ndispute is to be in private.\n(2) If the parties agree, an arbitration hearing or part of an arbitration\nhearing may be conducted in public.\n(3) The arbitrator in a hearing that is conducted in private may give\nwritten directions as to the persons who may be present.\n(4) In giving directions under subclause (3), the arbitrator must have\nregard to the wishes of the parties and the need for commercial\nconfidentiality.\n","sortOrder":30},{"sectionNumber":"26","sectionType":"section","heading":"Right to representation","content":"26 Right to representation\nIn an arbitration hearing, a party may appear in person or be\nrepresented by someone else.\n","sortOrder":31},{"sectionNumber":"27","sectionType":"section","heading":"Procedure of arbitrator","content":"27 Procedure of arbitrator\n(1) In an arbitration hearing about an access dispute, the arbitrator:\n(a) is not bound by technicalities, legal forms or rules of evidence;\n(b) must act as speedily as a proper consideration of the dispute\nallows, having regard to the need to carefully and quickly\ninquire into and investigate the dispute and all matters\naffecting the merits, and fair settlement, of the dispute; and\n(c) may inform himself or herself of any matter relevant to the\ndispute in any way the arbitrator thinks appropriate.\n(2) The arbitrator may determine the periods that are reasonably\nnecessary for the fair and adequate presentation of the respective\ncases of the parties to an access dispute and may require that the\ncases be presented within those periods.\n(3) The arbitrator may require evidence or argument to be presented in\nwriting and may decide the matters on which the arbitrator will hear\noral evidence or argument.\n\nAustralAsia Railway (Third Party Access) Act 1999 22\n(4) The arbitrator may determine that an arbitration hearing is to be\nconducted by:\n(a) telephone;\n(b) closed circuit television; or\n(c) any other means of communication.\n","sortOrder":32},{"sectionNumber":"28","sectionType":"section","heading":"Particular powers of arbitrator","content":"28 Particular powers of arbitrator\n(1) The arbitrator may do any of the following things for the purpose of\narbitrating an access dispute:\n(a) give a direction in the course of, or for the purposes of, an\narbitration hearing;\n(b) hear and determine the arbitration in the absence of a person\nwho has been summoned or served with a notice to appear;\n(c) sit at any place;\n(d) adjourn to any time and place;\n(e) refer any matter to an expert and accept the expert’s report as\nevidence;\n(f) generally give all such directions, and do all such things, as\nare necessary or expedient for the speedy hearing and\ndetermination of the access dispute.\n(2) A person must not do an act or thing in relation to the arbitration of\nan access dispute that would be a contempt of court if the arbitrator\nwere a court of record.\n(3) Subclause (1) has effect subject to any other provision of this Code\nor as prescribed.\n(4) The arbitrator may give an oral or written order to a person not to\ndivulge or communicate to anyone else specified information that\nwas given to the person in the course of an arbitration, unless the\nperson has the arbitrator’s permission.\n(5) A person who contravenes an order under subclause (4) is guilty of\nan offence.\n\nAustralAsia Railway (Third Party Access) Act 1999 23\n","sortOrder":33},{"sectionNumber":"29","sectionType":"section","heading":"Power to take evidence on oath","content":"29 Power to take evidence on oath\n(1) The arbitrator may require a person appearing before the arbitrator\nto give evidence on oath.\n(2) The arbitrator may summon a person to appear before the\narbitrator to give evidence and to produce such documents (if any)\nas are referred to in the summons.\n(3) The powers in this clause may be exercised only for the purposes\nof arbitrating an access dispute.\n","sortOrder":34},{"sectionNumber":"30","sectionType":"section","heading":"Failing to attend as witness","content":"30 Failing to attend as witness\nA person who is served, as prescribed, with a summons to appear\nas a witness before the arbitrator must not, without reasonable\nexcuse, fail to:\n(a) attend as required by the summons; or\n(b) appear and report himself or herself from day to day unless\nexcused or released from further attendance by the arbitrator.\n","sortOrder":35},{"sectionNumber":"31","sectionType":"section","heading":"Failing to answer questions etc.","content":"31 Failing to answer questions etc.\n(1) A person appearing as a witness before the arbitrator must not,\nwithout reasonable excuse, refuse or fail:\n(a) to take an oath when required by the arbitrator to do so; or\n(b) to answer a question that the person is required to answer by\nthe arbitrator; or\n(c) to produce a document that the person was required to\nproduce by a summons under this Code served on the person\nas prescribed.\n(2) It is a reasonable excuse for the purposes of subclause (1) for an\nindividual to refuse or fail to answer a question or produce a\ndocument on the ground that the answer or the production of the\ndocument might tend to incriminate the individual or to expose the\nindividual to a penalty.\n(3) Subclause (2) does not limit what is a reasonable excuse for the\npurposes of subclause (1).\n\nAustralAsia Railway (Third Party Access) Act 1999 24\n","sortOrder":36},{"sectionNumber":"32","sectionType":"section","heading":"Intimidation etc.","content":"32 Intimidation etc.\nA person must not:\n(a) threaten, intimidate or coerce another person; or\n(b) cause or procure damage, loss or disadvantage to another\nperson,\nbecause that other person:\n(c) proposes to produce, or has produced, documents to the\narbitrator; or\n(d) proposes to appear or has appeared as a witness before the\narbitrator.\nMaximum penalty: 885 penalty units.\n","sortOrder":37},{"sectionNumber":"33","sectionType":"section","heading":"Party may request arbitrator to treat material as confidential","content":"33 Party may request arbitrator to treat material as confidential\n(1) A party to an arbitration hearing may:\n(a) inform the arbitrator that, in the party’s opinion, a specified\npart of a document contains confidential commercial\ninformation; and\n(b) request the arbitrator not to give a copy of that part to another\nparty.\n(2) On receiving a request, the arbitrator must:\n(a) inform the other party or parties that the request has been\nmade and of the general nature of the matters to which the\nrelevant part of the document relates; and\n(b) ask the other party or parties whether there is any objection to\nthe arbitrator complying with the request.\n(3) If there is an objection to the arbitrator complying with a request,\nthe party objecting may inform the arbitrator of its objection and of\nthe reasons for it.\n(4) After considering:\n(a) a request;\n(b) any objection; and\n(c) any further submissions that a party has made in relation to\nthe request,\n\nAustralAsia Railway (Third Party Access) Act 1999 25\nthe arbitrator may decide not to give to the other party or parties a\ncopy of so much of the document as contains confidential\ncommercial information that the arbitrator thinks should not be so\ngiven.\n","sortOrder":38},{"sectionNumber":"34","sectionType":"section","heading":"Costs of arbitration","content":"34 Costs of arbitration\n(1) The costs of an arbitration (including each party's reasonable costs\nand expenses) are to be borne by the parties in proportions\ndecided by the arbitrator.\n(2) However, if the access seeker terminates an arbitration or elects\nnot to be bound by an award, the access seeker must bear the\ncosts in their entirety.\n(3) The regulator may recover the costs of an arbitration as a debt.\n","sortOrder":39},{"sectionNumber":"Div 7","sectionType":"division","heading":"Effect of awards","content":"Division 7 Effect of awards\n","sortOrder":40},{"sectionNumber":"35","sectionType":"section","heading":"Operation of award","content":"35 Operation of award\n(1) Subject to this clause, an award is binding on the parties to the\narbitration in which it is made.\n(2) An award has effect 21 days after it is made unless the access\nseeker, before that time, elects not to be bound by it.\n(3) An access seeker may, within 7 days after the making of an award,\nor such further time as the regulator may allow, elect not to be\nbound by the award by giving written notice of the election to the\n(4) The regulator must, within 7 days after receiving a notice of election\nunder subclause (3), notify the access provider and the other\nparties to the arbitration.\n(5) If the access seeker elects not to be bound by an award, the award\nis rescinded.\n(6) If:\n(a) an award is rescinded under subclause (5); and\n(b) the access seeker who elected not to be bound by the award\nmakes a new access proposal under this Code,\n\nAustralAsia Railway (Third Party Access) Act 1999 26\nthe regulator may, on application by the access provider, determine\nthat the new access proposal should not proceed if, in the opinion\nof the regulator:\n(c) in a case where the new access proposal is the same as, or\nsimilar to, the access proposal in relation to which the award\nwas made – the access seeker is acting unreasonably in view\nof the period of time between the rescission of the award and\nthe making of the new access proposal;\n(d) the access seeker has not acted, or is not acting, in good\nfaith; or\n(e) there is some other good reason why the new access\nproposal should not proceed.\n(7) A determination of the regulator under subclause (6) will have\neffect according to its terms.\n","sortOrder":41},{"sectionNumber":"Div 8","sectionType":"division","heading":"Variation or revocation of awards","content":"Division 8 Variation or revocation of awards\n","sortOrder":42},{"sectionNumber":"36","sectionType":"section","heading":"Variation or revocation of award","content":"36 Variation or revocation of award\n(1) The regulator may vary or revoke an award if all parties to the\naward agree.\n(2) If the parties are unable to agree on a proposed variation of an\naward, the regulator may, on the application of one or more of the\nparties but subject to subclause (3), refer the dispute to arbitration.\n(3) The regulator must not refer the dispute to arbitration if of the\nopinion that there is no sufficient reason for varying the award.\n(4) In deciding whether to refer a dispute to arbitration under this\nclause, the regulator must have regard to:\n(a) whether there has been a material change in circumstances\nsince the award was made or last varied;\n(b) the nature of the matters in dispute;\n(c) the time that has elapsed since the award was made or last\nvaried; and\n(d) other matters the regulator considers relevant.\n(5) The provisions of this Part about the arbitration of a dispute arising\nfrom an access proposal apply, with the necessary modifications, to\na dispute about the proposed variation of an award.\n\nAustralAsia Railway (Third Party Access) Act 1999 27\n","sortOrder":43},{"sectionNumber":"Div 9","sectionType":"division","heading":"Appeals","content":"Division 9 Appeals\n","sortOrder":44},{"sectionNumber":"37","sectionType":"section","heading":"Appeal to Supreme Court on question of law","content":"37 Appeal to Supreme Court on question of law\n(1) An appeal lies to the Supreme Court from an award, or a decision\nnot to make an award, on a question of law.\n(2) On an appeal the Court may exercise one or more of the following\npowers:\n(a) vary the award or decision;\n(b) revoke the award or decision;\n(c) make an award or decision that should have been made in\nthe first instance;\n(d) remit the matter to the arbitrator for further consideration or\nre-consideration;\n(e) make incidental or ancillary orders, including orders for costs.\n(3) An award or decision of an arbitrator cannot be challenged or\ncalled into question except by appeal under this clause.\n(4) Unless the Court specifically decides to suspend the operation of\nan award until the determination of an appeal, an appeal does not\nsuspend the operation of an award.\n","sortOrder":45},{"sectionNumber":"Part 3","sectionType":"part","heading":"Hindering access to railway infrastructure","content":"Part 3 Hindering access to railway infrastructure\n","sortOrder":46},{"sectionNumber":"38","sectionType":"section","heading":"Prohibition on hindering access to railway infrastructure","content":"38 Prohibition on hindering access to railway infrastructure\nservice\nA person must not engage in conduct for the purpose of preventing\nor hindering access to a railway infrastructure service by any\nperson who has a right to use that service.\nMaximum penalty: 885 penalty units and 85 penalty units for\neach day during which the offence\ncontinues.\n\nAustralAsia Railway (Third Party Access) Act 1999 28\n","sortOrder":47},{"sectionNumber":"Part 4","sectionType":"part","heading":"Monitoring powers","content":"Part 4 Monitoring powers\n","sortOrder":48},{"sectionNumber":"39","sectionType":"section","heading":"Regulator’s power to obtain information","content":"39 Regulator’s power to obtain information\n(1) The regulator may, by written notice to the access provider, require\nthe access provider to provide to the regulator, within a period\nstated in the notice or at stated intervals, specified information or\ncopies of specified documents related to:\n(a) the provision of railway infrastructure services to which this\nCode applies; and\n(b) any other activity in relation to the railway engaged in by the\naccess provider or a related body corporate or an associate of\nthe access provider.\n(2) Without limiting subclause (1), the information and documents that\nmay be required extend to financial information and documents\nrelating to the access provider’s own use of railway infrastructure\nfacilities.\n(3) A person must not, without reasonable excuse, contravene or fail to\ncomply with a notice under this clause.\nMaximum penalty: 885 penalty units and 85 penalty units for\neach day during which the offence\ncontinues.\n","sortOrder":49},{"sectionNumber":"40","sectionType":"section","heading":"Confidentiality","content":"40 Confidentiality\n(1) The regulator must ensure that confidential information obtained\nunder this Part is protected from use or disclosure except:\n(a) in the performance of the regulator’s functions;\n(b) as required or allowed by law;\n(c) with the written consent of the person who supplied the\ninformation; or\n(d) in prescribed circumstances.\n(2) However, the regulator may disclose confidential information:\n(a) if the regulator is of the opinion that it is in the public interest\nfor the regulator so to do; or\n(b) to an arbitrator, at the arbitrator’s request, in the course of an\narbitration.\n\nAustralAsia Railway (Third Party Access) Act 1999 29\n(2a) The regulator must, before taking action under subclause (2)(a),\ngive the person who supplied the relevant information a reasonable\nopportunity to make submissions to the regulator in relation to the\npotential disclosure of the information.\n(3) Clause 33 extends to confidential information and documents\nsupplied to an arbitrator under subclause (2)(b).\n","sortOrder":50},{"sectionNumber":"41","sectionType":"section","heading":"Duty to report to Ministers","content":"41 Duty to report to Ministers\n(1) The regulator must, at the request of the Northern Territory Minister\nor the South Australian Minister, report to the Northern Territory\nMinister or the South Australian Minister, as the case may be, on:\n(a) the costs and other aspects of the provision of railway\ninfrastructure services; or\n(b) any aspect of the operation of this Code.\n(2) If the regulator provides a report to a Minister under subclause (1),\nthe regulator must furnish a copy of the report to the other Minister.\n","sortOrder":51},{"sectionNumber":"Part 5","sectionType":"part","heading":"Enforcement","content":"Part 5 Enforcement\n","sortOrder":52},{"sectionNumber":"42","sectionType":"section","heading":"Injunctive remedies","content":"42 Injunctive remedies\n(1) The Supreme Court may grant an injunction:\n(a) restraining a person from contravening a provision of this\nCode or a provision of an award; or\n(b) requiring a person to comply with a provision of this Code or a\nprovision of an award.\n(2) The power of the Court to grant an injunction restraining a\ncontravention of a provision of this Code or an award may be\nexercised:\n(a) whether or not the defendant has previously contravened the\nsame provision; and\n(b) whether or not there is imminent danger of substantial\ndamage to any person.\n(3) The power of the Court to grant an injunction requiring compliance\nwith a provision of this Code or an award may be exercised:\n(a) whether or not the defendant has previously failed to comply\nwith the provision; and\n\nAustralAsia Railway (Third Party Access) Act 1999 30\n(b) whether or not there is imminent danger of substantial\ndamage to any person.\n(4) The Court may make an interim injunction under this clause.\n(5) An application for an injunction under this clause may be made by:\n(a) the regulator; or\n(b) a person with a proper interest in whether the relevant\nprovision is complied with.\n(6) The Court may grant an injunction by consent without inquiry into\nthe merits of the application.\n(7) If the regulator makes an application for an injunction, the Court\ncannot require the regulator or any other person to give an\nundertaking as to damages as a condition of granting the\ninjunction.\n(8) The Court may, on application by the regulator or an interested\nparty, discharge or vary an injunction.\n","sortOrder":53},{"sectionNumber":"43","sectionType":"section","heading":"Compensation","content":"43 Compensation\n(1) If a person contravenes a provision of this Code or an award, the\nSupreme Court may, on application by the regulator or an\ninterested person, order compensation of persons who have\nsuffered loss or damage as a result of the contravention.\n(2) An order may be made under this clause against the person who\ncontravened the provision and others involved in the contravention.\n(3) A person is involved in the contravention if the person:\n(a) aided, abetted, counselled or procured the contravention;\n(b) induced the contravention through threats or promises or in\nsome other way;\n(c) was knowingly concerned in, or a party to, the contravention;\nor\n(d) conspired with others to contravene the provision.\n","sortOrder":54},{"sectionNumber":"44","sectionType":"section","heading":"Enforcement of arbitrator’s requirements","content":"44 Enforcement of arbitrator’s requirements\n(1) If a person fails to comply with an order, direction or requirement of\nan arbitrator under this Code, the arbitrator may certify the failure to\nthe Supreme Court.\n\nAustralAsia Railway (Third Party Access) Act 1999 31\n(2) The Court may inquire into the case and make such orders as may\nbe appropriate in the circumstances.\n45 Access contracts specifically enforceable\nAn access contract is specifically enforceable.\nPart 6 Miscellaneous\n45A Power to vary guidelines\n(1) The regulator may, from time to time as the regulator thinks fit, vary\nor revoke guidelines developed and published by the regulator\nunder this Code, or develop and publish new or substitute\nguidelines.\n(2) The regulator should, in developing (or varying) guidelines under\nthis Code, take into account interface issues that may arise under a\ncorresponding access regime (insofar as this may be relevant and\ninsofar as this is consistent with, and not in derogation of the\noperation of, the other provisions of this Code).\n","sortOrder":55},{"sectionNumber":"46","sectionType":"section","heading":"Segregation of access provider’s accounts and records","content":"46 Segregation of access provider’s accounts and records\n(1) The access provider must keep accounts and records of its\nbusiness consisting of the provision of railway infrastructure\nservices in relation to the railway so as to give a true and fair view\nof that business as distinct from other businesses carried on by the\naccess provider or any related body corporate or associate of the\naccess provider.\n(2) The accounts and records must comply with any guidelines\ndeveloped and published by the regulator and be kept in a way that\ngives:\n(a) a comprehensive view of the access provider's legal and\nequitable rights and liabilities in relation to railway\ninfrastructure services;\n(b) a true and fair view of:\n(i) income and expenditure derived from, or relating to,\nrailway infrastructure services; and\n(ii) assets and liabilities of the access provider’s business\nso far as they relate to railway infrastructure services;\nand\n\nAustralAsia Railway (Third Party Access) Act 1999 32\n(c) sufficient information to enable the pricing principles to be\napplied in a reasonable manner.\n(3) The access provider must cause to be kept in a similar way similar\naccounts and records in relation to the business of any related\nbody corporate or associate of the access provider to whom a\nrailway infrastructure service is provided by the access provider.\n","sortOrder":56},{"sectionNumber":"47","sectionType":"section","heading":"Removal and replacement of arbitrator","content":"47 Removal and replacement of arbitrator\n(1) The regulator may remove an arbitrator from office if the arbitrator:\n(a) becomes mentally or physically incapable of carrying out the\narbitrator’s duties satisfactorily;\n(b) is convicted of an indictable offence;\n(c) becomes bankrupt or applies to take the benefit of a law for\nthe benefit of bankrupt or insolvent debtors; or\n(d) has a direct or indirect interest in the outcome of the dispute\nor matter under arbitration.\n(2) If an arbitrator resigns, is removed from office or dies, the regulator\nmay appoint another person to take the place of the arbitrator.\n","sortOrder":57},{"sectionNumber":"48","sectionType":"section","heading":"Expired (Endnote 5)","content":"48 Expired (Endnote 5)\n","sortOrder":58},{"sectionNumber":"49","sectionType":"section","heading":"Prescribing of matters for purpose of Code","content":"49 Prescribing of matters for purpose of Code\n(1) The Northern Territory Minister and the South Australian Minister\njointly, by notice in the Gazette, may prescribe matters:\n(a) required or permitted by this Code to be prescribed; or\n(b) necessary or convenient to be prescribed for carrying out or\ngiving effect to this Code.\n(2) Without limiting the generality of subclause (1), the Ministers may\nprescribe:\n(a) amendments to this Code;\n(b) a date on which clause 48 is to expire;\n(c) the parts of the railway to which this Code from time to time\napplies; and\n(d) provisions about the inspection of registers maintained under\nthis Code (including about fees for such inspections).\n\nAustralAsia Railway (Third Party Access) Act 1999 33\n","sortOrder":59},{"sectionNumber":"50","sectionType":"section","heading":"Review of Code","content":"50 Review of Code\n(1) The Northern Territory Minister and South Australian Minister jointly\nmay, at any time, review the operation of this Code but, in any\ncase, must do so:\n(a) firstly, not later than 30 June in the 3rd year of operations of\nthe railway; and\n(b) secondly, not later than 12 months before the expiration of the\nperiod for which the Commonwealth Minister has specified\nunder section 44N of the Competition and Consumer Act 2010\n(Cth) that the access regime, of which this Code is a part, is to\nremain in force.\n(2) To enable the Ministers to perform their function under\nsubclause (1), the regulator must prepare such reports to the\nMinisters as the Ministers may require.\n(3) The Ministers must, in relation to a review under subclause (1)(a)\nor (b):\n(a) –\n(i) by notice published in a newspaper circulating generally\nin Australia, invite interested persons to make\nsubmissions in relation to the review within a period\nstated in the notice; and\n(ii) give consideration to any submissions made in response\nto an invitation under subparagraph (i); and\n(b) –\n(i) in the case of the Northern Territory Minister – cause a\nreport on the outcome of the review to be laid before the\nLegislative Assembly of the Northern Territory within\n12 sitting days after the completion of the review; and\n(ii) in the case of the South Australian Minister – cause a\nreport on the outcome of the review to be laid before\nboth Houses of the South Australian Parliament within\n12 sitting days after the completion of the review.\n(4) The regulator must, at the intervals referred to in subclause (10),\nreview the revenues paid or payable by access holders to the\naccess provider for railway infrastructure services where no\nsustainable competitive prices exist (relevant revenues), being\nrevenues derived under either:\n\nAustralAsia Railway (Third Party Access) Act 1999 34\n(a) awards by arbitrators to the extent the awards involve the\napplication of section 2 of the pricing principles; or\n(b) access contracts to the extent that the regulator considers\nsustainable competitive prices did not or do not exist in\nrelation to the transportation of the freight the subject of those\naccess contracts,\nand determine whether the relevant revenues paid or payable by\nsuch access holders (the relevant access holders) for those\nrailway infrastructure services are excessive having regard to the\nfactors referred to in subclause (5).\n(5) In determining whether the relevant revenues are excessive the\nregulator must have regard to the following:\n(a) the relevant revenues are to be measured against the costs\nassociated with the required railway infrastructure required by\nthe relevant access holders including an appropriate\ncommercial return on the required railway infrastructure used\nby the relevant access holders in the circumstances referred\nto in subclause (4) (the relevant required railway\ninfrastructure);\n(b) the investment in all of the railway infrastructure facilities by\nthe access provider or any other person and all of the\nrevenues earned by the access provider from the provision of\nrailway infrastructure services including, if the access\nprovider, a related body corporate or an associate has\nconducted transportation services on the railway, revenues at\nmarket rates in relation to those services;\n(c) an appropriate commercial return on the relevant required\nrailway infrastructure, determined having regard to:\n\nAustralAsia Railway (Third Party Access) Act 1999 35\nrate for return on investments and the rate of inflation)\nprevailing at the time of the regulator’s review;\n(d) when comparing the relevant revenues to the costs under\nparagraph (a), the regulator must subtract from those costs an\namount determined by the regulator to be the aggregate of:\n(i) the avoidable costs attributable to the usage of the\nrelevant required railway infrastructure by all other\naccess holders (being avoidable costs of the kind\nreferred to in section 3 of the pricing principles); and\n(ii) a reasonable contribution to fixed costs of the relevant\nrequired railway infrastructure (\"R\") from all other access\nholders using that required railway infrastructure, where\nR has the same meaning as in section 2(2)(c) of the\npricing principles.\n(6) The costs to be applied under subclause (5) must be efficient.\n(7) For the purposes of determining expected risks under\nsubclause (5)(c)(i), the regulator must have regard to information\nprovided by the access provider with respect to the contents of any\nfinancing plan of the access provider.\n(8) If the regulator determines that revenues are excessive under\nsubclause (4):\n(a) the regulator must promptly give the access provider written\nnotice of the regulator's determination, including the reasons\nfor his or her determination;\n(b) within 2 months of receiving the regulator’s determination\nunder paragraph (a), the access provider must prepare and\nsubmit to the regulator for approval a plan under which the\naccess provider will reduce future relevant revenues so that\nsuch revenues are not excessive (having regard to the\nmatters referred to in subclause (5)), when measured over the\nnext regulatory review period (the remedial plan);\n(c) the regulator will consider the remedial plan submitted to it\nwith a view to reaching agreement with the access provider on\nthe terms which are acceptable to the regulator for the\nremedial plan;\n(d) if the regulator and the access provider agree on the terms of\na remedial plan, the access provider must implement that\nplan;\n\nAustralAsia Railway (Third Party Access) Act 1999 36\n(e) if the regulator and the access provider are unable to reach\nagreement on a remedial plan that is acceptable to the\nregulator within 1 month of receiving the remedial plan, the\nregulator must make a determination under subclause (9) and\nthe access provider must observe the terms of that\ndetermination.\n(9) If subclause (8)(e) applies, the regulator will make a determination\nto regulate prices, and/or to establish conditions relating to prices or\nprice fixing factors in relation to the future provision of railway\ninfrastructure services in any manner the regulator considers\nappropriate, including:\n(a) fixing a price or the rate of increase or decrease in a price;\n(b) fixing a maximum price or rate of increase or decrease in a\nmaximum price;\n(c) fixing an average price for specified railway infrastructure\nservices or an average rate of increase or decrease in an\naverage price;\n(d) specifying pricing policies or principles;\n(e) fixing a maximum revenue in relation to railway infrastructure\nservices,\nprovided the effect of the determination is limited to reducing\nrevenues of the type referred to in paragraphs (a) and (b) of\nsubclause (4) derived from railway infrastructure services so that\nthe total of such revenues so derived do not result in excessive\nrevenues (having regard to the matters referred to in\nsubclause (5)), when measured over the next regulatory review\nperiod.\n(10) The regulator’s reviews under subclause (4) are to be conducted in\nrelation to the following periods:\n(a) the first review must be in respect of the period ending on\n30 June in the 10th year of operations of the railway;\n(b) the second review must be in respect of the 5 year period\ncommencing immediately after the end of the period of the\nfirst review; and\n(c) the third and subsequent reviews must be in respect of\nsuccessive 5 year periods.\n\nAustralAsia Railway (Third Party Access) Act 1999 37\n","sortOrder":60},{"sectionNumber":"Div 1","sectionType":"division","heading":"– Access pricing in connection with freight services","content":"Division 1 – Access pricing in connection with freight services\n1. Sustainable competitive prices\n(1) The access price payable to the access provider by an access\nseeker for a railway infrastructure service provided to enable the\naccess seeker to deliver a freight service will be determined by the\narbitrator and will depend on whether there is:\n(a) a sustainable competitive price (as to which see\nsubsections (2) to (6)); or\n(b) no sustainable competitive price (as to which see section 2).\n(2) A sustainable competitive price will exist in relation to the\ntransportation of a particular type of freight where it can be\ndemonstrated that:\n(a) there are no regulatory, technical or other practical\nimpediments to transport of the freight by a mode of transport\nother than the railway or combination of such alternative\nmodes; and\n(b) the availability or potential availability of modes of transport\nother than the railway is an effective constraint on the price of\ntransporting such freight on the railway having regard to the\nfollowing factors:\n(i) the number and size of participants in the market;\n(ii) the type and volume of freight involved and any unequal\nbackhaul loadings;\n(iii) whether there are any regulatory, technical or other\npractical barriers to entry;\n(iv) the extent of product differentiation in the market,\nincluding the differences in the ancillary services and\nconvenience offered by different modes of transport;\n(v) the dynamic characteristics of the market including any\nfluctuations in demand for transportation services;\n(vi) the costs and service characteristics of transporting\nfreight by different modes of transport (including the time\nfor delivery of the freight, rail rolling stock or other\nvehicle axle loadings, length and speed of trains, and\n\nAustralAsia Railway (Third Party Access) Act 1999 38\nany infrastructure upgrade requirements);\n(vii) contractual terms (such as duration and frequency of\nservice, whether for a specific volume or at call);\n(viii) congestion and bottleneck inefficiencies caused by\nconstraining points on the road, railway or other relevant\ninfrastructure;\n(ix) the safety requirements the different modes of transport\nare required to meet;\n(x) the direct and indirect costs of environmental impacts of\nthe different modes of transport; and\n(xi) any other relevant matters.\n(3) Where there is a sustainable competitive price, the access price\n(AP) payable to the access provider by an access seeker for the\nrailway infrastructure service will be a price determined by the\narbitrator which is:\ninfrastructure service (see subsection (4)); and\ninfrastructure service (see subsection (5)),\nbut subject to these qualifications the price so determined will be\ncalculated in accordance with subsection (6).\n(4) The ceiling price is to be an amount equal to the costs associated\nwith the operation of the required railway infrastructure needed by\nthe access seeker for the provision of the freight service involving\nthe transportation of freight on the railway between one point\n(point A) and another point (point B), calculated assuming the\naccess seeker is the sole user of that required railway infrastructure\nand calculated in a manner consistent with section 2(2)(d)\nand (7)(a).\n(5) The floor price is to be calculated in accordance with section 3.\n(6) Subject to subsections (4) and (5), the access price payable where\nthere is a sustainable competitive price is to be an amount\ncalculated in accordance with the following formula:\nError! Bookmark not defined.AP = CRLP AB – ICAR\n\nAustralAsia Railway (Third Party Access) Act 1999 39\nWhere:\nAP is the access price payable by the access seeker to the\naccess provider for the railway infrastructure service used by the\naccess seeker to provide a freight service to its customers involving\nthe transportation of freight on the railway between one point\n(point A) and another point (point B);\nCRLPAB is the competitive rail-linehaul price, being the maximum\ncompetitive price that the access provider could charge for the\ntransport of freight between one point (point A) and another point\n(point B) on the railway having regard to the nature of the railway\ninfrastructure service being sought and:\n(a) the prices charged (on the basis of long term efficient costs of\nsupply) for transporting on the railway the same or similar\nfreight where some other mode of transport (or a combination\nof modes) provide an effective constraint on prices, taking into\naccount, and where appropriate removing the effect of, any\ndifferences in:\n(i) the type and volume of freight product involved;\n(ii) cost or service characteristics (such as the time for\ndelivery of the freight, rolling stock axle loadings, train\nlength and train speed);\n(iii) contractual terms (such as the duration and frequency of\nthe access contract and whether the contract involves a\ntake-or-pay obligation for specific volumes of freight or\nsome other risk allocation arrangement);\n(iv) the amount of freight and the prices charged in each\ndirection; and\n(v) the origin and the ultimate destination of the freight; and\n(b) the prices charged (on the basis of long term efficient costs of\nsupply) for the use of alternative modes of transport (for\nexample, by road, sea, air or some other mode of transport or\na combination of such means) for transporting the same or\nsimilar freight taking into account, and where appropriate\nremoving the effect of, any differences in:\n(i) any additional handling or transportation costs required\nin order to compare the total price of delivering the\nrelevant freight product from the linehaul point of pick-up\n(of the alternative mode of transport) to the final linehaul\npoint of delivery of the freight product, when compared\nto transporting the freight product from the linehaul point\n\nAustralAsia Railway (Third Party Access) Act 1999 40\nof pick-up to the final linehaul point of delivery via the\nrelevant section of the railway between point A and\npoint B;\n(ii) the type of freight product involved, including its\nhandling characteristics and the volumes of the freight\nproduct to be hauled and the contributions, if any,\nrequired to upgrade necessary infrastructure;\n(iii) contractual terms (such as the duration and frequency of\nthe service relating to the delivery of freight and whether\nthe contract for the delivery of freight involves a take-or-\npay obligation for specific volumes of freight or some\nother risk allocation arrangement);\n(iv) the amount of freight and the prices charged in each\ndirection; and\n(v) the origin and ultimate destination of the freight; and\nICAR is the incremental cost (above-rail) of providing the\nrelevant freight service (including, if the relevant freight service is\nnot provided, an estimate of that cost) involving the transport of\nfreight between point A and point B on the railway of whichever of\nthe following entities that conducts freight services:\n(a) the access provider;\n(b) if the access provider does not conduct freight services, a\nrelated body corporate or an associate of the access provider;\n(c) if neither the access provider nor a related body corporate or\nan associate of the access provider conduct any freight\nservices, an operator of freight services operating in\naccordance with good railway industry practice,\n(the relevant entity being referred to as the designated service\nprovider), such costs to be calculated having regard to the total\nabove-rail incremental costs, being the costs the designated\nservice provider would avoid if it did not provide the freight service,\nincluding:\n(d) operating costs, being the on-going operational costs of\nproviding the freight service, including the labour and material\ncosts that are causally related to the provision of the freight\nservice, including\n– train crew labour costs;\n– rollingstock maintenance costs;\n\nAustralAsia Railway (Third Party Access) Act 1999 41\n– fuel costs; and\n– terminal handling costs;\n(e) administrative costs; and\n(f) an appropriate allowance for capital costs, which reflects the\nopportunity costs of the relevant above-rail assets of the\ndesignated service provider where they exist or otherwise the\nacquisition cost of the relevant above-rail assets (which may\nnot be new assets), comprising both depreciation and return\non assets, determined in accordance with guidelines\ndeveloped and published by the regulator.\n(7) The guidelines referred to in paragraph (f) above must:\n(a) adopt an approach for valuing capital assets; and\nconsiders costs could be avoided,\n2. No sustainable competitive prices\n(1) Where there is not a sustainable competitive price, the access price\npayable to the access provider by an access seeker for a railway\ninfrastructure service that is provided to enable the access seeker\nto deliver a freight service will be a reasonable price determined by\nthe arbitrator which is:\ninfrastructure service (see subsection (2)); and\ninfrastructure service (see subsection (4)),\nand the price so determined must take into account the matters set\nout in clause 21 of this Code.\n(2) The ceiling price is to be an amount equal to whichever is the\nlesser of:\n(a) the costs associated with the operation of the required railway\ninfrastructure needed by the access seeker for the provision\nof the freight service involving the transportation of freight on\nthe railway between one point (point A) and another point\n(point B), calculated assuming the access seeker is the sole\nuser of that required railway infrastructure; and\n\nAustralAsia Railway (Third Party Access) Act 1999 42\n(b) the costs associated with the operation of the required railway\ninfrastructure needed by the access seeker for the provision\nof the freight service involving the transportation of freight on\nthe railway between one point (point A) and another point\n(point B), less an amount determined by the arbitrator to be\nthe aggregate of:\n(i) the avoidable costs attributable to the usage of that\nrequired railway infrastructure by all other access\nholders; and\n(ii) a reasonable contribution to the fixed costs of that\nrequired railway infrastructure (\"R\") from all other access\nholders using that required railway infrastructure,\nwhere:\n(c) R is to be an amount which is not greater than the amount, if\nany, by which revenues of the access provider attributable to\naccess holders' (other than the access seeker's) usage of the\nrequired railway infrastructure required by those access\nholders exceeds the avoidable costs attributable to those\naccess holders' usage of that required railway infrastructure;\nand\n(d) the costs are to be on-going costs that are causally related to\nthe relevant required railway infrastructure, including:\n(i) labour and material costs associated with the operation\nand maintenance of the required railway infrastructure\n(including major periodic maintenance);\n(ii) an appropriate allocation of administrative costs;\n(iii) an appropriate allocation of capital costs, including both\ndepreciation and a return on assets, determined in\naccordance with guidelines developed and published by\nthe regulator.\n(3) The costs to be applied in subsection (2) must be forward-looking\nand efficient.\n(4) The floor price is to be calculated in accordance with section 3.\n(5) The arbitrator must, in determining a price under this section, have\nregard to economic efficiency taking into account the prices being\ncharged by the access provider to access holders for the same or\nsimilar services (including, if the access provider, a related body\ncorporate or an associate has conducted the same or similar\nservices on the railway, the actual prices charged in relation to\n\nAustralAsia Railway (Third Party Access) Act 1999 43\nthose services).\n(6) The regulator must develop and publish guidelines in connection\nwith the operation of this section (in addition to the guidelines\nspecifically required under subsection (2)(d)(iii)).\n(7) The guidelines must:\n(a) subject to subsection (8), adopt an approach for valuing\ncapital assets which reflects the Depreciated Optimised\nReplacement Cost for those assets;\nconsiders costs could be avoided; and\n(c) in relation to a return on assets, have regard to:\nrate for return on investments and the rate of inflation),\n(8) The guidelines may, if the regulator thinks it appropriate to do so,\nallow an adjustment to the Depreciated Optimised Replacement\nCost valuation of capital assets under subsection (7)(a) on account\nof government-contributed assets and other government financial\nassistance after taking into account any associated liabilities\nassumed by the access provider, subject to the qualifications that\nany such adjustment:\n(a) must not, when used in calculating the ceiling prices specified\nin sections 1(4) and 2(2), prevent the access provider earning\na reasonable risk-adjusted return on the capital invested in the\nrailway (disregarding government-contributed assets and\n\nAustralAsia Railway (Third Party Access) Act 1999 44\nother government financial assistance); and\n(b) must be made on a pro-rated basis over the entirety of the\ncapital assets comprising the railway infrastructure facilities.\n3. Access price not below economic cost\n(1) The access price must not be less than the economic cost of\nproviding the railway infrastructure service, and accordingly the\naccess price calculated in accordance with section 1 or section 2\n(as the case may be) must not be less (but may be greater) than an\namount which is equal to the avoidable costs (below-rail)\nassociated with the access provider providing access to the\nrequired railway infrastructure for the access seeker to deliver the\nrelevant freight service involving the transport of freight between\npoint A and point B on the railway, being:\n(a) labour and material costs which vary directly with the usage of\nthe access seeker (including major periodic maintenance);\n(b) administrative costs which vary directly with the usage of the\naccess seeker; and\n(c) capital costs which vary directly with the usage of the access\nseeker, including the costs of replacing the required railway\ninfrastructure assets being brought forward by the operation of\nthe freight service (such as wear and tear of the track).\n(2) The costs to be applied in subsection (1) must be forward-looking\nand efficient.\n(3) The regulator must develop and publish guidelines in connection\nwith the operation of this section.\n(4) The guidelines must:\n(a) subject to subsection (5), adopt an approach for valuing\ncapital assets which reflects the Depreciated Optimised\nReplacement Cost of those assets;\nconsiders costs could be avoided; and\n\nAustralAsia Railway (Third Party Access) Act 1999 45\n(c) in relation to a return on assets, have regard to:\nrate for return on investments and the rate of inflation),\n(5) The guidelines may, if the regulator thinks it appropriate to do so,\nallow an adjustment to the Depreciated Optimised Replacement\nCost valuation of capital assets under subsection (4)(a) on account\nof government-contributed assets and other government financial\nassistance after taking into account any associated liabilities\nassumed by the access provider, subject to the qualifications that\nany such adjustment:\n(a) must not, when used in calculating the floor prices specified in\nsections 1(5) and 2(4), prevent the access provider earning a\nreasonable risk-adjusted return on the capital invested in the\nrailway (disregarding government-contributed assets and\nother government financial assistance); and\n(b) must be made on a pro-rated basis over the entirety of the\ncapital assets comprising the railway infrastructure facilities.\n\nAustralAsia Railway (Third Party Access) Act 1999 46\nDivision 2 – Access pricing in connection with passenger services\n4. Access pricing for passenger access\n(1) The access price payable to the access provider by an access\nseeker for a railway infrastructure service that is provided to enable\nthe access seeker to deliver a passenger service will be a price\ndetermined by the arbitrator which is:\ninfrastructure service (see subsection (2)); and\ninfrastructure service (see subsection (3)).\n(2) The ceiling price is to be determined by the arbitrator reflecting the\nhighest price that could fairly be asked by the access provider for\nthe provision of the railway infrastructure service having regard to\nthe principles used to calculate the ceiling price set out in\nsection 2(2).\n(3) The floor price for the provision of railway infrastructure services is\nto be determined by the arbitrator reflecting the lowest price at\nwhich the access provider could provide the railway infrastructure\nservice without incurring a loss, having regard to the principles set\nout in section 3.\nDivision 3 – Worked examples\n5. Introduction\nThe process an arbitrator should follow is illustrated in Attachment\nA. Four worked examples are provided in this section to illustrate\napplication of the pricing principles. The first two examples are for\nservices covering freight traffics that are already hauled by the\nrailway (one dealing with freight originating on the railway at\nTarcoola and the other dealing with freight originating beyond\nTarcoola elsewhere on the interstate rail network). The third and\nfourth examples are for new freight traffics, with and without a\nsustainable competitive price respectively.\n(1) Example 1 – Existing freight traffic (originating at Tarcoola)\noperation of general freight services over the length of the railway\n(Tarcoola to Darwin), with the freight services (and the freight)\nhaving their origin at Tarcoola and their ultimate destination at\nDarwin. The freight services will be expected to attract existing\nfreight from the incumbent general rail freight operator but also\npotentially new freight of the same type (either transferred from\n\nAustralAsia Railway (Third Party Access) Act 1999 47\nroad or generated).\nFollowing the process illustrated in Attachment A, a number of\ndiscrete steps are required:\n• For general freight services, the road linehaul rate is likely to\nprovide an effective constraint on the pricing of the railway for these\nservices, given the:\n– highly competitive road market; and\n– low switching costs between road and rail.\n• For this example, it is assumed that this threshold test is met.\n(b) What is the competitive imputation access price (CRLP AB–\n• If the railway hauls the same or similar freight in the corridor, the\nrailway's current freight rates will be a strong guide to the\ncompetitive rail linehaul price for the service for which access is\nbeing sought.\n– Other value-added services provided by the railway may have\nto be disaggregated from the rail price delivered to the\ncustomer (e.g. road pickup and delivery charges).\n– Other adjustments might be required to account for\ndifferences in the type of service being operated, for instance:\n... time of day/peak issues; or\n... conditions of contract (e.g. long-term freight haulage contract\nvs. spot rates).\n• Assume for this example, that existing freight of the same or similar\ntype was carried for an average rate of 3.5 cents per net tonne\nkilometre and that this was considered to be the sustainable\ncompetitive rail linehaul price (CRLP AB ).\n• The incremental above rail cost (ICAR) represents the above rail\ncosts which a freight operator would avoid if it did not provide the\nfreight service. If the access provider conducts freight services\nthen it is the access provider's actual costs that are taken into\naccount. If the access provider did not provide freight services,\nthen the costs of any associated entity or of an operator of freight\n\nAustralAsia Railway (Third Party Access) Act 1999 48\nassumed that the access provider is an integrated freight operator\nthat provides the relevant freight services.\n• ICAR would be determined with regard to the actual above rail costs\nof the integrated access provider. Attachment B illustrates an\nexample railway owner's cost structure.\n• The competitive imputation access price (2.17 c/ntk) is the\ndifference between the competitive rail linehaul price (CRLP AB ) of\n3.50 c/ntk and the incremental above rail costs (ICAR) of 1.33 c/ntk\n(1.03 + 0.3 being the sum of the incremental above rail operating\ncost and the rollingstock capital charge). Expressed in terms of\ncents per gross-tonne-kilometre1, the equivalent competitive\nimputation access price is 0.99 c/gtk.\n– It was assumed that all costs, except\nadministration/management costs and 50% of the terminal\ncosts would be avoidable with the loss of freight business.\n– If the freight service for which access was being sought would\nreplace the entire above rail business of the access provider,\nthen all above rail costs are likely to be avoidable in which\ncase, ICAR increases to 1.55 (1.25+0.30) and the access price\nfalls from 2.17 c/ntk to 2.00 c/ntk (0.89 c/gtk).\n• The access proposal is expected to generate 2 billion ntks (or 4.4\nbillion gtks).\n• Stand-alone operating costs for the freight task are taken to be $20\nmillion, which is less than operating costs of the total railway of $24\nmillion allowing for minimum requirements of the access seeker as\na stand-alone operation (see Attachment C).\n• It is assumed that track depreciates with use and a depreciation\ncharge of 0.05c/gtk has been applied (i.e. the usage of the service\nof 4.4 billion gtk x 0.05c/gtk). Other infrastructure is depreciated on\na time basis assuming a 50 year life. The total depreciation charge\nis $15.7 million.\n1 Gross tonne kilometres (i.e. net tonne kilometres plus the tare weight of the rollingstock) is a\nmore common measure of usage for access pricing purposes as it more accurately reflects\ncost causality for an infrastructure owner than ntk and is generally more easily measured by\nan independent track owner.\n\nAustralAsia Railway (Third Party Access) Act 1999 49\n• The replacement value of the railway from Tarcoola to Darwin\nmight be $1500 million, which might correspond to a written-down\nvalue of $1000 million.\n– The interest charge after tax is $180 million (assuming an\nallowable rate of return of 18%) which grosses up to $281.25\nare $316.95 million as shown in Attachment C.\n• The ceiling price for the access proposal would be 15.85c/ntk or\n7.20c/gtk (@2.2 ntk:gtk).\n• The floor price is the incremental below rail cost, i.e. the below rail\ncosts which could be avoided if it were not for the use of the\nnetwork by the freight service seeking access.\n– Typically, this will include both maintenance costs and capital\nconsumption costs attributable to the individual service.\nSome operations (signalling) costs may also be avoided\ndepending on the nature of the train control operations and\nthe nature of the service for which access is being sought.\nGuidelines on the method to be used to calculate the floor\nprice will be developed and published by the regulator.\n– In Attachment B, the track variable cost, i.e. the component of\ninfrastructure maintenance which varies directly with the\nusage of the access seeker, is 0.07 c/gtk ($6m/8800m gtk). In\nthis example there are no directly variable operations (train\ncontrol) and administration costs.\n– The capital costs which will vary directly as result of the\naccess seeker's usage will relate to components of\ninfrastructure where renewal is typically related to use (as\nopposed to time). For higher density lines, this will typically\ninclude rails, sleepers and ballast. Assuming a track\nreplacement cost of $500,000 per kilometre (including rails,\nsleepers and ballast but excluding initial formation works and\nstructures), and an economic life of 1 billion gross tonnes,\ngives a depreciation charge of 0.05 c/gtk. Assuming an\nequivalent interest charge, gives a total incremental below rail\ncost of 0.17 c/gtk (0.07+0.05+0.05).\n\nAustralAsia Railway (Third Party Access) Act 1999 50\n• The final access price is determined as the CIPR price (0.99 c/gtk)\nthe ceiling price (7.20c/gtk).\n(1A) Example 1A – Existing freight traffic (originating beyond\nTarcoola elsewhere on the interstate rail network)\noperation of general freight services over the length of the railway\n(Tarcoola to Darwin), with the freight services (and the freight)\nhaving their origin beyond Tarcoola elsewhere on the interstate rail\nnetwork and having their ultimate destination at Darwin. For the\npurposes of this example, the freight services (and the freight) will\nbe taken to have their origin in Adelaide. The freight services will\nattract existing freight from the incumbent general rail freight\noperator operating services between Adelaide and Darwin but also\npotentially new freight of the same type (either transferred from\nroad or generated).\nFollowing the process illustrated in Attachment A, a number of\ndiscrete steps are required:\n• For this example, it is assumed that this threshold test is met.\n(b) What is the competitive imputation access price (CRLPAB -\n• The sustainable competitive rail linehaul price for transport of the\nfreight between Tarcoola and Darwin (CRLPAB), is a function of\nthe relevant market price (e.g. the transport of freight between\nAdelaide and Darwin) and the cost of transporting the freight to and\nfrom the relevant points on the railway (i.e. Tarcoola and Darwin).\n• An arbitrator must consider comparable freight services (using the\nrailway and any alternative transport modes, such as road) in order\nto determine CRLPAB. For the purposes of simplification, and for\nthis example only, it is assumed that road is ignored and existing\nfreight of the same or similar type was being carried on the railway\nby the access provider between Adelaide and Darwin for a rate of\n3.5cents per net tonne kilometre and this is the price on which\nCRLPAB is based. If the relevant access proposal was to generate\n2 billion ntk on the railway (Tarcoola to Darwin in this example) and\n3 billion ntk in total between Adelaide and Darwin, the relevant\nmarket revenue is $105 million (3.50c/ntk x 3 billion ntk).\n\nAustralAsia Railway (Third Party Access) Act 1999 51\n• To determine the maximum competitive price (as required by\nsection 1(6) of the pricing principles) for access to the railway\nbetween Tarcoola and Darwin, the lowest cost of transporting the\nfreight to and from the relevant points on the railway must be\ncalculated. This cost would be assessed by reference to the\naccess provider's own costs of transporting the freight to and from\nthe relevant points on the railway or some other means, whichever\ncost was lower. For this example, the access provider's avoidable\ncost of transporting the freight to and from the railway are taken to\nbe the lowest cost.\n• If the freight in question originated in say Sydney, the relevant\nmarket revenue would be between Sydney and Darwin. CRLPAB\nwould be calculated by subtracting from the relevant market\nrevenue the lowest cost of transporting the freight to and from the\nrelevant points on the railway, which might be the access provider's\nown costs between say Adelaide and Tarcoola and some other\n(lowest) cost between Sydney and Adelaide.\n• The access provider's avoidable cost between Adelaide and\nTarcoola is the sum of the above rail train operations cost (assume\n$12.9 million, i.e. 1.29c/ntk, as outlined in the calculation of ICAR\nbelow, multiplied by 1 billion ntk) and the below rail access charges\npayable by the access provider in respect of the use of the railway\nbetween Adelaide and Tarcoola (say $7.1 million).\n• CRLPAB is then $85 million ($105 million less $20 million) or\n4.25c/ntk ($85 million/2 billion ntk).\n• The incremental above rail cost (ICAR) represents the above rail\ncosts which a freight operator would avoid if it did not provide the\nfreight service. If the access provider conducts freight services\nthen it is the access provider's actual costs that are taken into\naccount. If the access provider did not provide freight services,\nthen the costs of any associated entity or of an operator of freight\nassumed that the access provider is an integrated freight operator\nthat provides the relevant freight services.\n• ICAR would be determined with regard to the actual above rail\ncosts of the integrated access provider in operating the freight\nservice between the relevant points on the railway (in this example,\nbetween Tarcoola and Darwin). Attachment H illustrates an\nexample of the access provider's cost structure as a railway\nowner/operator. In this example, the incremental above rail cost\n(ICAR) would be 1.29c/ntk (0.99 + 0.3 being the sum of the\nincremental above rail operating cost and the rollingstock capital\ncharge).\n\nAustralAsia Railway (Third Party Access) Act 1999 52\n• The competitive imputation access price (2.96c/ntk) is the\ndifference between the competitive rail linehaul price (CRLPAB) of\n4.25c/ntk and the incremental above rail costs (ICAR) of 1.29c/ntk.\nExpressed in terms of cents per gross-tonne-kilometre the\nequivalent competitive imputation access price is 1.35c/gtk.\n• The calculation of the ceiling price is as in Example 1. The stand\nalone cost for a general freight service of 2 billion ntk on the railway\nbetween Tarcoola and Darwin is taken to be 7.20c/gtk.\n• The calculation of the floor price is as in Example 1. The floor price\nis taken to be 0.17c/gtk.\n• The final access price is determined as the CIPR price (1.35 c/gtk)\nthe ceiling price (7.20 c/gtk).\n(2) Example 2 – New freight traffic – sustainable competitive price\noperation of a new mineral freight service over 300 kms of the\nrailway. Again, following the process illustrated in Attachment A, a\nnumber of discrete steps are required:\n• Developments in road transport technologies have meant that road\ntransport is now a viable competitor for the transport of bulk mineral\nflows in non-urban areas.\n– Various examples now exist in the Northern Territory and\nQueensland where large volumes of mineral traffic are hauled\nby road (several hundreds of thousands of tonnes over\nseveral hundred kilometres).\n– Where sufficient differences in the characteristics of the haul\nexist, cost modelling could be undertaken to develop\nalternative road costs for the freight service for which access\nhas been sought.\n... The cost of any road upgrades required would need to be\nfactored into the analysis.\n\nAustralAsia Railway (Third Party Access) Act 1999 53\n... The costs would include capital charges for the vehicles over\ntheir economic life (which may be the economic life of the\nmine rather than the engineering life of the vehicles).\n• Assume for this example, that the competitive alternative price was\ndetermined to be 4.0 cents per net tonne kilometre which was\nconsidered to be an effective constraint on the pricing of the\nrailway, having regard to the:\n– relative costs of transport by road and rail; and\n– low switching costs between road and rail.\n(b) What is the competitive imputation access price (CRLPAB—\n• Because it is a new traffic, CRLPAB will be determined with regard\nto the competitive alternative mode.\n– Rail rates charged to existing customers might however assist\nthe arbitrator in making judgements about adjustments for\ncontract conditions, service quality factors etc.\n• Assume for this example that the CRLPAB was 4.0 c/ntk.\n• The incremental above rail cost (ICAR) represents the costs that a\nfreight operator would avoid if it did not provide the freight service:\n– If the access provider conducts freight services then it is the\naccess provider's actual costs that are taken into account. If\nthe access provider did not provide freight services, then the\ncosts of any associated entity or of an operator of freight\nassumed that the access provider is an integrated freight\noperator that provides the relevant freight services.\n– In this case, ICAR would still be based on the integrated\naccess provider's actual costs, but adjusted for the avoidable\nresources assuming it did not undertake the freight service.\n– The avoidable resources required (i.e. locomotives, wagons,\ntrain hours etc) are valued using a set of unit costs (developed\nfrom the railway's accounts). Attachment D provides example\nunit costs.\n– The derivation of ICAR for the new traffic example is shown in\nAttachment E. It was assumed that some additional terminal\ncosts would be required (@ $0.50 per tonne) but no additional\nshunting or administration/overhead costs would be incurred.\n\nAustralAsia Railway (Third Party Access) Act 1999 54\n• The competitive imputation access price (2.23 c/ntk) is the\ndifference between the competitive rail linehaul price (CRLPAB) of\n4.00 c/ntk and the incremental above rail costs (ICAR) of\n1.77 c/ntk. Expressed in terms of cents per gross-tonne-kilometre\nthe equivalent competitive imputation access price is 1.24c/gtk\n(2.23/1.80).\n• The replacement value of the 300 kms of the railway being used by\nthe new traffic might be $200 million, which might correspond to a\nwritten-down value of $160 million.\n– The interest charge after tax is $29 million (assuming an\nallowable rate of return of 18%) which grosses up to $45\nare $47.7 million as shown in Attachment F.\n• If the new traffic was to generate 1 billion ntk, the ceiling price\nwould be 4.77 c/ntk or 2.65 c/gtk (@1.8 ntk:gtk).\n• Following the example in the previous section, the floor price is\n0.17 c/gtk.\n• The final access price is determined as the CIPR price (1.24 c/gtk)\nthe ceiling price (2.65 c/gtk).\n(3) Example 3 – New freight traffic – no sustainable competitive\nprice\nThis example similarly assumes that the access proposal relates to\nthe operation of a new mineral freight service over 300 kms of the\nrailway. Again, following the process illustrated in Attachment A, a\nnumber of discrete steps are required:\n\nAustralAsia Railway (Third Party Access) Act 1999 55\n• Assume for this example, that the competitive alternative was\nconsidered not to be a substitutable service and did not provide an\neffective constraint on the pricing of the railway, i.e. no sustainable\ncompetitive price exists.\n(b) What is the ceiling price?\n• The replacement value of the 300 kms of the railway\nbeing used by the new traffic might be $200 million, which\nmight correspond to a written-down value of $160 million.\n– The interest charge after tax is $29 million (assuming an\nallowable rate of return of 18%) which grosses up to $45\nare $47.7 million as shown in Attachment G.\n• If there are multiple users of the relevant railway infrastructure, the\narbitrator may choose to determine an amount \"R\", being a\nreasonable contribution to shared costs from those other users.\n– The contribution to \"R\" from any single access holder would\nnot exceed the amount by which their access revenue\nexceeds their avoidable costs and would not be less than the\nadditional costs they impose from their use of the relevant\nrailway infrastructure.\n– Assume for this example that the arbitrator determined that\namount to be $23.85 million (50% of the stand-alone cost).\n• If the new traffic was to generate 1 billion ntk, the ceiling price\nwould be 2.39 c/ntk or 1.33 c/gtk (@1.8 ntk:gtk).\n(c) What is the floor price?\n• Following the calculations from the previous example, the\nincremental below rail cost is 0.17 c/gtk.\n(d) What is the final access price?\n• The arbitrator would then set an access price between the ceiling\nprice (of 1.33 c/gtk) and the floor price (of 0.17 c/gtk).\n\nAustralAsia Railway (Third Party Access) Act 1999 56\n• When determining the final access price, the arbitrator may take\ninto account a range of factors considered relevant, such as\n– the potential impact on the access provider's legitimate\nbusiness interests, having regard to the access provider's\ninvestment in above-rail rollingstock and infrastructure; and\n– the potential for the new entrant to create additional economic\nvalue (as opposed to merely transferring value from the\naccess provider).\n\nAustralAsia Railway (Third Party Access) Act 1999 57\nATTACHMENT A. PROCESS FOR DETERMINING THE ARBITRATED\nACCESS PRICE\nAre there any regulatory,\ntechnical or other practical\nimpediments to transport\nby an alternative mode?\nIs there an alternative mode\nof transport which provides\nan effective constraint on the\nrailway’s pricing?\nWhat are the prices charged for\nthe same or similar freight\nhauled on the railway?\nWhat are the prices charged\nfor alternative modes for\ntransporting the same or\nsimilar freight?\nWhat adjustments\nare appropriate?\nWhat adjustments\nare appropriate?\nWhat is the competitive\nlinehaul price?\nWhat is the incremental\nabove rail cost?\nWhat is the competitive\nimputation access price?\nWhat is the incremental\nbelow rail cost?\nWhat is the stand-alone\ncost of the relevant\ninfrastructure?What is a reasonable\ncontribution to fixed costs\nfrom other access holders\nusing the required railways\ninfrastructure?\nArbitrator determines the CIPR\nprice not less than the floor price\nor greater than the ceiling price\nfinal access\nprice?\nIf sustainable\ncompetitive price\nIf not sustainable\ncompetitive price\naccess price\nceiling?\nfloor price?\ncompetitive\nimputation\naccess price?\nIs that a\nsustainable\ncompetitive\nprice?\nNo\nNo\nYes\nYes\nNZ1001-83.ppt\nFloor\nPrice\nWhat is the access\npricing ceiling?\nWhat is the floor price? What is the floor price?\nWhat is the stand-alone\ncost of the relevant\ninfrastructure?\nWhat is the access\npricing ceiling?\nArbitrator determines the price\nnot less than the floor price or\ngreater than the ceiling price\n\nAustralAsia Railway (Third Party Access) Act 1999 58\nATTACHMENT B. RAILWAY OWNER'S COST STRUCTURE (TARCOOLA\nTO DARWIN)\nExisting fleet\nLocomotives 15\nWagons 600\nTrains per week 10\nAbove rail services ($ pa)\nTrain crew $6,000,000\nFuel $16,000,000\nLocomotive maintenance $8,000,000\nWagon maintenance $7,000,000\nTerminal and shunting operations $8,000,000\nAdministration/management $5,000,000\nTotal above rail services $50,000,000\nBelow rail services\nTrain control (Darwin – Tarcoola) $1,000,000\nVariable infrastructure maintenance (Darwin – Tarcoola) $6,000,000\nFixed infrastructure maintenance (Darwin – Tarcoola) $14,000,000\nAdministration, management $3,000,000\nTotal below rail services $24,000,000\nTotal $74,000,000\nNet tonne kilometres 4,000,000,000\nGross tonne kilometres 8,800,000,000\nAbove rail operating costs (cents per ntk) 1.25\nIncremental above rail operating cost (cents per ntk)1 1.03\nTotal operating cost (cents per ntk) 1.85\nAverage operating revenue per ntk (CRLP AB ) 3.50\nTotal operating revenue $140,000,000\nSurplus to common costs, rollingstock capital and track2 $99,000,000\nSurplus to common costs, rollingstock capital and track (cents per\nntk)\n2.47\nAnnual capital charge (per locomotive) $266,667\nAnnual capital charge (per wagon) $13,333\nAnnual capital charges for locomotives $4,000,000\nAnnual capital charges for wagons $8,000,000\nTotal rollingstock capital charge $12,000,000\nRemaining surplus to common costs and track $87,000,000\nTotal rollingstock capital charge (cents per ntk) 0.30\nIncremental Above Rail Cost (ICAR) (cents per ntk) 1.33\n\nAustralAsia Railway (Third Party Access) Act 1999 59\nEquivalent access charge (cents per ntk) 2.17\nApproximate equivalent gtk charge (@2.2 ntk:gtk) 0.99\nNotes:\n1. Total above rail cost ($50m) less admin/management ($5m) and 50% terminal\ncosts ($4m) divided by ntk (4b).\n2. Revenue ($140m) less incremental above rail costs ($41m).\nATTACHMENT C. CEILING PRICE (COMPETITIVE MARKET)\nStand-alone\nCost\nTrain control (Darwin – Tarcoola) 1,000,000 1,000,000\nTrack variable (Darwin – Tarcoola) 6,000,000 3,000,000\nFixed infrastructure maintenance (Darwin – Tarcoola) 14,000,000 14,000,000\nAdministration, management 3,000,000 2,000,000\nTotal below rail services 24,000,000 20,000,000\nDepreciation – track (0.05 c/gtk) 2,200,000\nDepreciation – other infrastructure ($300,000/km@50 yrs) 13,500,000\nReturn on investment ($180m@18%/0.64) 281,250,000\nTotal below rail capital charges 296,950,000\nTotal stand – alone cost 316,950,000\nUsage (ntk pa) 2,000,000,00\nCeiling price (c/ntk) 15.85\nCeiling price (c/gtk@2.2 ntk:gtk) 7.20\n\nAustralAsia Railway (Third Party Access) Act 1999 60\nATTACHMENT D. RAILWAY OWNER'S UNIT RATES\nCost Area Cost Driver Unit rate\nTrain crew train hour $150.00\nFuel 000 gtk $2.50\nLocomotive maintenance loco kms $1.50\nWagon maintenance 000 wagon kms $80.00\nTrain control (Darwin—Tarcoola) route kms $300.00\nTrack variable 000 gtk $0.50\nFixed infrastructure maintenance track kms $5,000.00\nAdministration, management % mark up on\nother operating\ncosts\n8%\nTerminal operations per tonne $4.00\nShunting per tonne $4.00\nATTACHMENT E. NEW TRAFFIC EXAMPLE\nOperating assumptions\nFreight task (tonnes pa) 2,500,000\nAverage haul (kms) 300\nNet tonne kms pa 750,000,000\nAv. Gross trailing load (per train)1 6,000\nTrain load (net tonnes per train) 4,560\nNumber of trains pa 548\nLocomotives per train 3\nWagons per train 60\nRound-trip cycle time (hrs) 24\nCycles per week 7\nLocomotive fleet requirement 7\nWagon fleet requirement 132\nTrain hours pa 13,158\nGross tonne kms pa (000) 1,351,974\nWagon kms pa (000) 19,737\nLocomotive kms pa 986,842\nIncremental above rail costs Cost driver Unit rate Total cost pa\nTrain crew train hour $150.00 $1,973,700\nFuel 000 gtk $2.50 $3,379,935\nLocomotive maintenance locomotive $1.50 $1,480,263\nWagon maintenance 000 wagon $80.00 $1,578,960\nAdministration, management % mark up 8.0% 0\nTerminal operations per tonne $0.50 $1,249,440\nShunting per tonne 0\nIncremental operating costs $9,662,298\n\nAustralAsia Railway (Third Party Access) Act 1999 61\nIncremental capital charges locomotives $266,667 $1,866,669\nwagons $13,333 $1,759,956\nTotal incremental above rail cost 13,288,923\nIncremental above rail cost (c/ntk) 1.77\nIncremental above rail cost (c/gtk)\n(@1.80 ntk:gtk)\n0.98\nNote: 1. Gross trailing load is the gross weight hauled behind the locomotive(s)\nand is the sum of the weight of the freight and the tare weight of the wagons (it\nexcludes the weight of the locomotives).\nATTACHMENT F. CEILING PRICE (NEW TRAFFIC—COMPETITIVE\nMARKET)\nRelevant\nInfrastructure\nTrain control (Darwin – Tarcoola) 1,000,000 133,333\nTrack variable (Darwin – Tarcoola) 6,000,000 800,000\nFixed infrastructure maintenance (Darwin – Tarcoola) 14,000,000 1,866,667\nAdministration, management 3,000,000 400,000\nTotal below rail services 24,000,000 3,200,000\nDepreciation – track (0.05 c/gtk) 900,000\nDepreciation – other infrastructure ($300,000/km@50 yrs) 1,800,000\nReturn on investment ($160m@18%/0.64) 45,000,000\nTotal stand-alone cost 47,700,000\nUsage (ntk pa) 1,000,000,00\nCeiling price (c/ntk) 4.77\nCeiling price (c/gtk @1.8 ntk:gtk) 2.65\n\nAustralAsia Railway (Third Party Access) Act 1999 62\nATTACHMENT G. CEILING PRICE (NEW TRAFFIC—NO COMPETITIVE\nMARKET)\nRelevant\nInfrastructur\ne\nTrain control (Darwin – Tarcoola) 1,000,000 133,333\nTrack variable (Darwin – Tarcoola) 6,000,000 800,000\nFixed infrastructure maintenance (Darwin – Tarcoola) 14,000,000 1,866,667\nAdministration, management 3,000,000 400,000\nTotal below rail services 24,000,000 3,200,000\nDepreciation – track (0.05 c/gtk) 900,000\nDepreciation—other infrastructure ($300,000/km@50 yrs) 1,800,000\nReturn on investment ($160m@18%/0.64) 45,000,000\nTotal stand-alone cost 47,700,000\nContribution from other users (\"R\") 23,850,000\nTotal Cost 23,850,000\nUsage (ntk pa) 1,000,000,0\nCeiling price (c/ntk) 2.39\nCeiling price (c/gtk @1.8 ntk:gtk) 1.33\n\nAustralAsia Railway (Third Party Access) Act 1999 63\nATTACHMENT H. RAILWAY OWNER’S COST STRUCTURE (ADELAIDE\nTO DARWIN)\nExisting fleet\nLocomotives 23\nWagons 900\nTrains per week 10\nAbove rail services ($ pa)\nTrain crew $9,000,000\nFuel $24,000,000\nLocomotive maintenance $12,000,000\nWagon maintenance $10,500,000\nTerminal and shunting operations $8,000,000\nAdministration/management $5,000,000\nTotal above rail services $68,500,000\nBelow rail services\nTrack access charges (Adelaide to Tarcoola) $14,200,000\nTrain control (Darwin-Tarcoola) $1,000,000\nVariable infrastructure maintenance (Darwin-Tarcoola) $6,000,000\nFixed infrastructure maintenance (Darwin-Tarcoola) $14,000,000\nAdministration, management $3,000,000\nTotal below rail services $38,200,000\nTotal $106,700,000\nNet tonne kilometres 6,000,000,000\nGross tonne kilometres 13,200,000,000\nAbove rail operating costs (cents per ntk) 1.14\nIncremental above rail operating cost (cents per ntk)1 0.99\nTotal operating cost (cents per ntk) 1.78\nAverage operating revenue per ntk 3.50\nTotal operating revenue $210,000,000\nSurplus to common costs, rollingstock capital and\ntrack 2\n$150,500,000\nSurplus to common costs, rollingstock capital and track\n(cents per ntk)\n2.51\nAnnual capital charge (per locomotive) $266,667\nAnnual capital charge (per wagon) $13,333\nAnnual capital charges for locomotives $6,133,000\nAnnual capital charges for wagons $12,000,000\nTotal rollingstock capital charge $18,133,000\n\nAustralAsia Railway (Third Party Access) Act 1999 64\nRemaining surplus to common costs and track $132,367,000\nTotal rollingstock capital charge (cents per ntk) 0.30\nIncremental Above Rail Cost (ICAR) (cents per ntk) 1.29\nNotes:\n1. Total above rail cost ($68.5m) less admin/management ($5m) and 50%\nterminal costs ($4m) divided by ntk (6b).\n2. Revenue ($210m) less incremental above rail costs ($59.5m).\n\nAustralAsia Railway (Third Party Access) Act 1999 65\n1 KEY Key to abbreviations\namd = amended od = order\napp = appendix om = omitted\nbl = by-law pt = Part\nch = Chapter r = regulation/rule\ncl = clause rem = remainder\ndiv = Division renum = renumbered\nexp = expires/expired rep = repealed\nf = forms s = section\nGaz = Gazette sch = Schedule\nhdg = heading sdiv = Subdivision\nins = inserted SL = Subordinate Legislation\nlt = long title sub = substituted\nnc = not commenced\n2 LIST OF LEGISLATION\nAustralAsia Railway (Third Party Access) Act 1999 (Act No. 25, 1999)\nAssent date 21 May 1999\nCommenced 2 September 1999 (Gaz S37, 1 September 1999)\nAustralAsia Railway (Special Provisions) Regulations 2000 (SL No. 61, 2000)\nAssent date 10 January 2001\nCommenced 14 February 2001 (Gaz G6, 14 February 2001, p 3)\nAmending Legislation\nAmendments of AustralAsia Railway (Special Provisions) Regulations (SL\nNo. 20, 2001)\nAssent date 19 March 2001\nCommenced 19 March 2001\nCorporations Reform (Consequential Amendments NT) Act 2001 (Act No. 17, 2001)\nAssent date 29 June 2001\nCommenced s 17(1) and (6): 1 July 2001; rem: 15 July 2001 (s 2, s 2\nCorporations Act 2001 (Cth Act No. 50, 2001) and Cth Gaz\nS285, 13 July 2001)\nAustralAsia Railway (Third Party Access) Amendment Act 2003 (Act No. 59, 2003)\nAssent date 15 December 2003\nCommenced 21 July 2004 (Gaz G29, 21 July 2004, p 7)\nConsumer Affairs and Fair Trading Amendment (National Uniform Legislation) Act 2010\n(Act No. 41, 2010)\nAssent date 8 December 2010\nCommenced 1 January 2011 (Gaz S71, 20 December 2010)\n\nAustralAsia Railway (Third Party Access) Act 1999 66\nOaths, Affidavits and Declarations (Consequential Amendments) Act 2010 (Act No. 40,\n2010)\nAssent date 18 November 2010\nCommenced 1 March 2011 (s 2, s 2 Oaths, Affidavits and Declarations\nAct 2010 (Act No. 39, 2010) and Gaz G7, 16 February 2011,\np 4)\nPenalties Amendment (Miscellaneous) Act 2013 (Act No. 23, 2013)\nAssent date 12 July 2013\nCommenced 28 August 2013 (Gaz G35, 28 August 2013, p 2)\nLocal Court (Related Amendments) Act 2016 (Act No. 8, 2016)\nAssent date 6 April 2016\nCommenced 1 May 2016 (s 2, s 2 Local Court (Repeals and Related\nAmendments) Act 2016 (Act No. 9, 2016) and Gaz S34,\n29 April 2016)\nInterpretation Amendment Act 2021 (Act No. 28, 2021)\nAssent date 15 December 2021\nCommenced 1 January 2022 (s 2)\n3 ACCESS CODE\nThe AustralAsia Railway (Third Party Access) Code was amended by Joint Ministerial\nNotice published in Gazette, S7, 17 February 2000.\nThe AustralAsia Railway (Third Party Access) Code was amended by Joint Ministerial\nNotice published in Gazette, S15, 30 March 2001.\nUnder clause 48(2) of the AustralAsia Railway (Third Party Access) Code, clause 48\nexpired on 30 June 2001.\n4 GENERAL AMENDMENTS\nGeneral amendments of a formal nature (which are not referred to in the table\nof amendments to this reprint) are made by the Interpretation Legislation\nAmendment Act 2018 (Act No. 22, 2018) to: ss 1, 5 and 6.\n5 LIST OF AMENDMENTS\ns 6 amd No. 28, 2021, s 20\ns 8 ins SL No. 61, 2000, r 9\namd No. 41, 2010, s 30\nsch amd SL No. 61, 2000, r 10; No. 17, 2001, s 21; No. 59, 2003, s 3; No. 41,\n2010, s 30; No. 40, 2010, s 118; No. 23, 2013, s 4; No. 8, 2016, s 45","sortOrder":61}],"analysis":{"issue_detection":{"absurdities":[],"contradictions":[]},"kimi_summary":{"_metrics":{"completionTokens":671},"content_quality":"ok","complexity_score":8,"scope_assessment":{"changed":false,"description":"The legislation remains focused on its original purpose: regulating third-party access to the AustralAsia Railway between Tarcoola and Darwin. While the pricing principles are highly detailed (including the extensive Schedule with worked examples), this elaboration serves the original regulatory intent rather than expanding scope. The 2022 version shows only technical amendments updating references to modern legislation (e.g., Competition and Consumer Act 2010 replacing Trade Practices Act 1974)."},"complexity_factors":["Extensive cross-referencing to Commonwealth Competition and Consumer Act 2010 (Part IIIA)","Detailed mathematical pricing formulas with multiple variables (CRLP, ICAR, floor/ceiling prices)","Nested conditional logic: different pricing rules apply depending on whether 'sustainable competitive prices' exist","47+ defined terms in the interpretation section, including complex concepts like 'interface issues' and 'corresponding access regimes'","Multi-jurisdictional operation requiring joint action by Northern Territory and South Australian Ministers","Worked examples with financial calculations spanning 28 pages of attachments","Multiple dispute resolution pathways (negotiation → conciliation → arbitration → Supreme Court appeal)","Sunset and review mechanisms with specific timing requirements"],"plain_english_summary":"**What this law does:**\n\nThis legislation creates a **Code** that governs how third parties (other companies) can gain access to use the **AustralAsia Railway** — the railway line running between Tarcoola (in South Australia) and Darwin (in the Northern Territory). It ensures that companies wanting to run freight or passenger trains on this railway can negotiate fair terms with the railway's owner, and provides a dispute resolution process if negotiations break down.\n\n**Who it affects:**\n\n- **Access seekers**: Companies wanting to use the railway to run their own freight or passenger services\n- **Access providers**: The company that owns and operates the railway infrastructure (tracks, signals, etc.)\n- **Existing access holders**: Companies that already have contracts to use the railway\n- **The regulator**: The Essential Services Commission of South Australia, which oversees the whole system\n\n**Key features:**\n\n- **Negotiation framework**: Access seekers can submit formal proposals, and all parties must negotiate in good faith\n- **Arbitration**: If negotiations fail, disputes go to an independent arbitrator who can set binding terms, including prices\n- **Pricing principles**: Detailed rules determine how much can be charged — prices must reflect competitive market conditions where possible, with ceilings and floors to protect both parties\n- **Confidentiality protections**: Commercially sensitive information is protected during negotiations and arbitration\n- **Enforcement**: The Supreme Court can enforce agreements and awards, and penalties apply for obstructing access\n\n**Why it matters:**\n\nThis law prevents the railway owner from blocking competitors or charging monopoly prices. It promotes competition in freight and passenger transport while ensuring the railway owner earns a fair return on its investment. The detailed pricing principles (including worked examples) aim to make the system transparent and predictable."},"flash_summary":{"complexity_score":8,"scope_assessment":{"changed":true,"description":"The Code’s territorial and subject scope is explicitly able to be varied: it applies to the railway \"to the extent prescribed from time to time\" (cl.2 (Schedule cl.2)) and ministers may jointly prescribe parts of the railway and other matters (cl.49). The record shows later ministerial notices and statutory amendments (Endnotes; Schedule cl.48 references), and clause 8 preserves a Commonwealth designated‑minister power to treat post‑enactment amendments as substantial modifications. Together these provisions permit changes to scope and content after the original enactment."},"complexity_factors":["Detailed, multi‑step pricing framework with floor/ceiling bounds, competitive imputation formula (AP = CRLPAB − ICAR) and many cost categories and guideline requirements (Schedule; Pricing Principles).","Comprehensive arbitration regime with appointed arbitrators, confidentiality powers, evidence and enforcement mechanisms, and limited appeals (Part 2, Divs 3–6; cls 16–37).","Significant regulator discretion to issue guidelines, publish reports, give directions, recover costs, and regulate excessive revenues via remedial plans or price controls (cls 5–8; cl.12B; cl.50(4)–(9)).","Cross‑jurisdictional governance and interface with Commonwealth access law and corresponding regimes, creating layered decision‑making and potential coordination issues (definitions; cl.3; cl.8).","Technical accounting and valuation obligations (segregated accounts, DORC/Depreciated Optimised Replacement Cost guidance) requiring specialist financial and engineering inputs (cl.46; Schedule sections 2–3).","Wide enforcement toolkit including criminal penalties, injunctions, compensation and court certification of arbitrator orders (cls 12A, 28(2), 30–33, 38, 42–44).","Procedural complexity from notice, timing and consultation rules for access proposals, publication, and possible involvement of multiple affected access holders (cls 10–12).","Periodic, multi‑stage statutory review and revenue review timetable with specific triggers and remedial timetables (cl.50(1), cl.50(4)–(10))."],"plain_english_summary":"This Code governs third‑party access to the AustralAsia Railway between Tarcoola and Darwin, setting rules for negotiating access, resolving disputes by arbitration or conciliation, and fixing access charges. A designated regulator enforces the Code and arbitrates (cl.5; Part 2); access seekers pay arbitrated fees within floor/ceiling limits (Schedule); access providers must supply information, keep segregated accounts and protect confidential data, and face penalties or injunction remedies for non‑compliance (cls 9, 46, 12A, 42–44)."},"flash_summary_failed":{"failed":true,"reason":"A positive credit balance is required for all requests, including BYOK, so fallback providers remain available. Add credits at https://vercel.com/d?to=%2F%5Bteam%5D%2F%7E%2Fai%3Fmodal%3Dtop-up to continue.","source":"analysis-cron"}},"importantCases":[],"_links":{"self":"/api/acts/australasia-railway-third-party-access-act-1999","history":"/api/acts/australasia-railway-third-party-access-act-1999/history","analysis":"/api/acts/australasia-railway-third-party-access-act-1999/analysis","conflicts":"/api/acts/australasia-railway-third-party-access-act-1999/conflicts","importantCases":"/api/acts/australasia-railway-third-party-access-act-1999/important-cases","documents":"/api/acts/australasia-railway-third-party-access-act-1999/documents"}}