20Restrictions on access awards

20 Restrictions on access awards (1) The arbitrator cannot: (a) make an award that would: (i) delay the construction of the railway or any part of the railway; (ii) add to the cost of construction of the railway; or (iii) have the effect of requiring the access provider to bear any of the capital cost of any expansion or extension of the railway infrastructure facilities, unless the access provider agrees; or

AustralAsia Railway (Third Party Access) Act 1999 18 (b) make an award granting access to railway infrastructure facilities where the right of access cannot be satisfied because of a right of access already granted to, and used by, an access holder. (2) The arbitrator cannot make an award that would prejudice the rights of an existing access holder under an earlier access contract or award unless: (a) the access holder agrees; or (b) the arbitrator is satisfied that: (i) the access holder’s entitlement to access exceeds the entitlement that the access holder actually needs and there is no reasonable likelihood that the access holder will need to use the excess entitlement; and (ii) the access seeker’s requirements cannot be satisfactorily met except by transferring the excess entitlement (or some of it) to the access seeker and the access holder is or will be compensated for any loss suffered as a result of the transfer of the excess entitlement (or relevant part) to the access seeker. (3) Despite subclause (1), the arbitrator may make an award that would have the effect of requiring the access provider to expand or extend the railway infrastructure facilities, or to permit an expansion or extension of the railway infrastructure facilities, if: (a) the expansion or extension is technically and economically feasible and consistent with the safe and reliable operation of the railway infrastructure facilities; (b) the access provider’s legitimate business interests in the railway infrastructure facilities are protected; and (c) the terms and conditions on which access is to be permitted are reasonable taking into account the costs to be borne by the parties and the economic benefits to the parties resulting from the expansion or extension. (4) For the purposes of subclause (3)(b), it will be considered not to be in the access provider's legitimate business interests to require the access provider to take action that would: (a) result in a breach of: (i) a reasonable financial or other covenant or commitment given by the access provider to a third party; or

AustralAsia Railway (Third Party Access) Act 1999 19 (ii) a reasonable security obligation of the access provider to a third party; or (b) result in the access provider having to assume an unreasonable financial, business or other risk, liability or detriment associated with the cost of the expansion or extension. (5) However, subclause (4)(a) does not apply if it is found that the financial or other covenant or commitment was given, or the security obligation was undertaken, (as the case may be) by the access provider for the purpose of preventing or hindering access to a railway infrastructure service.