50Review of Code

50 Review of Code (1) The Northern Territory Minister and South Australian Minister jointly may, at any time, review the operation of this Code but, in any case, must do so: (a) firstly, not later than 30 June in the 3rd year of operations of the railway; and (b) secondly, not later than 12 months before the expiration of the period for which the Commonwealth Minister has specified under section 44N of the Competition and Consumer Act 2010 (Cth) that the access regime, of which this Code is a part, is to remain in force. (2) To enable the Ministers to perform their function under subclause (1), the regulator must prepare such reports to the Ministers as the Ministers may require. (3) The Ministers must, in relation to a review under subclause (1)(a) or (b): (a) – (i) by notice published in a newspaper circulating generally in Australia, invite interested persons to make submissions in relation to the review within a period stated in the notice; and (ii) give consideration to any submissions made in response to an invitation under subparagraph (i); and (b) – (i) in the case of the Northern Territory Minister – cause a report on the outcome of the review to be laid before the Legislative Assembly of the Northern Territory within 12 sitting days after the completion of the review; and (ii) in the case of the South Australian Minister – cause a report on the outcome of the review to be laid before both Houses of the South Australian Parliament within 12 sitting days after the completion of the review. (4) The regulator must, at the intervals referred to in subclause (10), review the revenues paid or payable by access holders to the access provider for railway infrastructure services where no sustainable competitive prices exist (relevant revenues), being revenues derived under either:

AustralAsia Railway (Third Party Access) Act 1999 34 (a) awards by arbitrators to the extent the awards involve the application of section 2 of the pricing principles; or (b) access contracts to the extent that the regulator considers sustainable competitive prices did not or do not exist in relation to the transportation of the freight the subject of those access contracts, and determine whether the relevant revenues paid or payable by such access holders (the relevant access holders) for those railway infrastructure services are excessive having regard to the factors referred to in subclause (5). (5) In determining whether the relevant revenues are excessive the regulator must have regard to the following: (a) the relevant revenues are to be measured against the costs associated with the required railway infrastructure required by the relevant access holders including an appropriate commercial return on the required railway infrastructure used by the relevant access holders in the circumstances referred to in subclause (4) (the relevant required railway infrastructure); (b) the investment in all of the railway infrastructure facilities by the access provider or any other person and all of the revenues earned by the access provider from the provision of railway infrastructure services including, if the access provider, a related body corporate or an associate has conducted transportation services on the railway, revenues at market rates in relation to those services; (c) an appropriate commercial return on the relevant required railway infrastructure, determined having regard to: