Government Railways (Access) Act 1998

Access means the use of railway infrastructure (section 3(1)). Railway infrastructure is defined in section 3(1) as the facilities necessary for the operation of a railway, including track, tunnels, bridges, stations, platforms, train control systems, signalling, electric traction infrastructure, buildings, workshops, and associated plant machinery and equipment. Excluded from the definition are rolling stock, rolling stock maintenance facilities, office buildings, housing, freight centres, terminal yards and depots, and also sidings or spur lines that are managed and controlled by a different person from the person who manages and controls the use of the railway (section 3(3) and (4)), unless the Minister declares otherwise (section 3(4)). For the TPI Railway and Port Agreement railway, these exclusions do not apply (section 3(7)). The railways network comprises all former Government railways, railways on corridor land under the Rail Freight System Act 2000, the TPI railway, and any additional railways declared by the Minister (sections 3(1) and (2)). A railway owner is the person having the management and control of the use of the railway infrastructure (section 3(1)). For Government railways, that is the Public Transport Authority of Western Australia (section 3(1) definition of Authority and Government railway). The Code is the instrument established under section 4 and means the Code for the time being in force (section 3(1)). The Regulator is the Economic Regulation Authority (section 3(1)) established by the Economic Regulation Authority Act 2003. Section 3A clarifies that access rights may include the right to use land managed and controlled by the railway owner and to construct and operate a rail or other connection to the infrastructure. Section 3B deals with the situation where the railway owner’s own right to manage the infrastructure is limited in term or subject to restrictions , the railway owner cannot give a right of access greater than it has, and if the owner’s right terminates prematurely, any existing access rights continue unless the new owner or an existing party gives notice of termination within three months (section 3B(2)). The Competition Principles Agreement is the intergovernmental agreement that underpins the national competition policy framework and is referenced as the basis for the Code (section 4(1)). Routes are defined as a particular part of the railways network and its associated railway infrastructure (section 5(5)). The concept of interstate services is mentioned in section 4(3), which allows the Code to exclude its application to such services. These definitions are critical because they determine the scope of who can claim access, what facilities are subject to access, and which owners bear regulatory obligations.

The Act directly affects railway owners, persons seeking access to railway infrastructure, the Regulator (Economic Regulation Authority), and the Minister for the time being administering the Act. Railway owners include the Public Transport Authority for government railways (section 3(1) definition of Authority and Government railway), and any other person having management and control of the use of railway infrastructure on the railways network. This can include private entities such as the operator of the railway constructed pursuant to the TPI Railway and Port Agreement (section 3(1) definition of railways network paragraph (ba) and definition of TPI Railway and Port Agreement). Persons seeking access are any entity wishing to use railway infrastructure to carry on rail operations , these could be freight operators, passenger operators, or other rail service providers. The Act also affects persons through whom a railway owner derives its right to manage infrastructure: section 3B provides that if the owner’s title is limited or subject to restrictions, the owner cannot grant greater access rights, and upon premature termination of the owner’s title, existing access rights continue unless the new owner or a party gives notice within three months. The Regulator is given powers to obtain information (section 21), enter premises (section 22A), approve segregation arrangements (section 29), give directions on segregation (section 29(3)), and apply for injunctions (section 37). Officers and employees of railway owners who perform access-related functions (relevant officers, defined in section 24) are particularly affected by the segregation and conflict-of-interest duties in sections 31, 32 and 33. The Minister is affected in the duty to establish and amend the Code (sections 4, 10, 11A, 11B) and the power to declare new railways part of the network (section 3(2)) and to declare spur lines as railway infrastructure (section 3(4)). The Act may also affect parties to existing access agreements, who are protected by section 7 (the Code does not affect existing agreements) but may be subject to new obligations if the Code is amended or replaced. Interstate service operators may be affected if the Code chooses to exclude its application to them (section 4(3)). The broader public interest is considered in the criteria for prescribing routes (section 5(3)(f)). In short, the Act imposes obligations primarily on railway owners and the Regulator, grants rights to access seekers, and gives the Minister a policy and rule-making role.

The Act imposes several key duties on railway owners. The central duty is to provide access to railway infrastructure in accordance with the Code (section 4(2)(a)). Railway owners must not engage in conduct aimed at hindering or preventing access, the making of access agreements, or the exercise of existing access rights (section 34A(1)). They must comply with the Code’s provisions, which govern the content of access agreements, the negotiation process, and the implementation of access (section 4(2)(c)). A significant structural duty is the obligation to segregate access-related functions from other functions (section 28(1)) and to put in place appropriate controls and procedures (section 28(2)). Before putting in place or varying any segregation arrangement, the railway owner must obtain the Regulator’s approval (section 29(1)). The Regulator may also give directions on segregation if agreement cannot be reached (section 29(3)). As part of segregation, railway owners must ensure an effective regime to protect confidential information of access seekers (section 31), avoid conflicts of interest for relevant officers (section 32), and ensure that relevant officers perform their functions fairly and not unduly favour the railway owner’s interests (section 33). Railway owners must also maintain separate accounts and records that distinguish access-related income, expenditure, assets and liabilities from other business activities (section 34). Additionally, railway owners must comply with information requests from the Regulator (section 21), facilitate entry and inspection of premises (section 22A), and not hinder or obstruct the Regulator (section 22B). For their part, persons who have access under an access agreement must not engage in conduct aimed at hindering or preventing access by another person (section 34A(2)). Rights conferred by the Act include the right of access seekers to propose access under the Code and to have disputes arbitrated (section 4(2)(a)(ii) and section 6(1)(b)). Section 3A clarifies that access rights may include the right to use land managed by the railway owner and to construct rail connections. Persons seeking access also have the right to apply to the Supreme Court for an injunction to restrain a breach of the Code where arbitration is not available (section 37). The Regulator has the right to obtain information, inspect documents, enter premises, and give directions on segregation. Both railway owners and access seekers benefit from the protection of legal professional privilege (section 22C) and limited protection against self-incrimination (section 22D) , an individual is not excused from complying with a notice under section 21 on the ground of self-incrimination, but the information or documents produced are not admissible in proceedings other than for perjury or offences under the Act arising from false or misleading information.

The Act establishes a suite of enforcement mechanisms and penalties, primarily focused on railway owner compliance. Failure by a railway owner to comply with a notice from the Regulator under section 21 (to provide information, periodical returns, or documents) attracts a penalty of $100,000 and a daily penalty of $20,000 (section 21(2)). A railway owner who fails to facilitate entry and inspection under section 22A(1) is liable to a penalty of $100,000 (section 22A(2)). It is an offence to hinder or obstruct the Regulator exercising any power under Part 3, with a penalty of $100,000 (section 22B(1)), and an offence to give false or misleading information to the Regulator, also with a penalty of $100,000 (section 22B(2)). The Regulator must ensure confidentiality of information under section 31, and a breach of that duty carries a penalty of $100,000 (section 23). A railway owner who fails to comply with an approved segregation arrangement, an agreement reached with the Regulator on segregation, or a direction given by the Regulator under section 29(3) commits an offence with a penalty of $100,000 (section 29(4)). The Act also contains a specific prohibition on conduct aimed at hindering or preventing access: a railway owner must not engage in such conduct (section 34A(1)), and a person with access must not hinder or prevent access by another person (section 34A(2)), both attract a penalty of $100,000 and a daily penalty of $20,000. There is an exception for conduct that the person is entitled to engage in under the Act, the Code, another written law, or an access agreement (section 34A(3)). Section 36 provides that the obligations imposed by the Code are enforceable by arbitration under the Code or by injunction under section 37, but breach of Code obligations does not give rise to an action for damages. Sections 177 and 178 of the Criminal Code (which deal with offences relating to breach of official duty) do not apply to these Code obligations (section 36(2)). The primary remedy for a breach of the Code is an injunction from the Supreme Court, which may be granted on application by the Regulator or by a person to whose proposal for access the conduct or proposed conduct relates (section 37(1) and (2)). Importantly, contract enforcement is not affected , section 35 expressly states that nothing in Part 5 affects the enforceability of an access agreement as a contract or the availability of damages for breach of the agreement. This means that while Code obligations do not sound in damages, contractual rights under an access agreement remain fully enforceable.

The Act expressly provides for its interaction with several other instruments and laws. First, the Code is subject to the Rail Safety National Law (WA) , section 8 provides that the Code must not contain any provision contrary to or inconsistent with that law. This ensures that safety requirements are not compromised by access obligations. Second, the Act does not affect existing agreements: section 7 provides that the making of the Code does not affect the terms, conditions or operation of any agreement for the use of railway infrastructure made with a railway owner before the Code commenced, nor does it afford a party any ground for non-compliance with such an agreement. Third, Part 4 of the Act (administrative and accounting arrangements) has effect despite the provisions of the Government Railways Act 1904 (section 25). This ensures that the segregation, confidentiality and accounting obligations apply even if inconsistent with the older Act. Fourth, the Act is grounded in the Competition Principles Agreement (section 4(1)), meaning the Code must give effect to that agreement. The Act also interacts with the Public Transport Authority Act 2003 , the Authority is defined as the PTA (section 3(1)) and delegation provisions under section 27 refer to section 19 of that Act. The Economic Regulation Authority Act 2003 establishes the Regulator (section 3(1)). The TPI Railway and Port Agreement Act 2004 and its amendments are referenced in section 3(1) definition of TPI Railway and Port Agreement and section 11B, which allows the Minister to amend the Code for the purposes of its application to that railway without the usual public consultation or parliamentary disallowance procedures. The Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Amendment Act 2010 similarly interacts via section 11B(2), requiring the Minister to amend the Code if the TPI railway is expanded. The Railway (Roy Hill Infrastructure Pty Ltd) Agreement Act 2010 modifies the application of the Act in respect of that railway (note 1M). Under section 6(2), the Code may contain transitional provisions that can authorise the Minister to determine by gazette order how matters in progress before the commencement of Part 2 are to be treated. The Act also preserves the normal operation of contract law: section 35 confirms that nothing in Part 5 affects the enforceability of access agreements as contracts or the availability of damages for breach. The Criminal Code is also relevant , section 36(2) excludes sections 177 and 178 (which relate to breach of official duty) from applying to Code obligations. The Interpretation Act 1984 applies to the Code as subsidiary legislation (section 9(1)), and the Code is subject to parliamentary disallowance under the normal procedures (sections 9(2)-(7)). Finally, the Act contains its own enforcement mechanisms that do not displace other remedies at law, but a breach of Code obligations does not give rise to a civil action for damages (section 36(1)).

The Act was originally enacted as the Government Railways (Access) Act 1998 (No. 49 of 1998) and received Royal Assent on 30 November 1998. Its short title was later changed to Railways (Access) Act 1998 (see note under section 1). Part 6 commenced on Royal Assent; section 3 and Part 2 commenced on 12 August 2000; Parts 3-5 and 7 commenced on 1 September 2001 (Gazette 28 August 2001 p. 4795). The Rail Freight System Act 2000 (No. 13 of 2000) Part 5 Division 1, commencing 1 July 2000, made amendments including inserting sections 2A, 3A, 3B, and amending sections 1, 3, 4, 6, 7, 11A, 12, 21, 22A, 22B, 22C, 22D, 23, 24, 25, 28, 29, 30, 31, 32, 33, 34, 34A, 36, 37. The Railways (Access) Amendment Act 2000 (No. 55 of 2000), commencing 28 November 2000, amended sections 3, 20 and the long title. The Machinery of Government (Planning and Infrastructure) Amendment Act 2002 (No. 7 of 2002), commencing 1 July 2002, amended section 152. The Public Transport Authority Act 2003 (No. 31 of 2003), commencing 1 July 2003, substituted new section 27 and amended sections 3, 24, 26. The Economic Regulation Authority Act 2003 (No. 67 of 2003), commencing 1 January 2004, made extensive changes: it deleted former Part 3 Division 1 (sections 13-19B), deleted division headings, amended sections 3, 20, 22, 22B, 22C, 23, and deleted sections 20A-20C and Divisions 3, 4 and 5 of Part 3 (sections 23A-23G). This transferred regulatory functions from the former Western Australian Independent Rail Access Regulator to the Economic Regulation Authority, with transitional provisions in Schedule 3 of that Act. The Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Act 2004 (No. 77 of 2004) Part 3 Division 1, commencing 1 July 2008, inserted section 3(6) and (7) and amended the long title. The Rail Safety Act 2010 (No. 18 of 2010), commencing 1 February 2011, amended section 8 to refer to the Rail Safety National Law (WA). The Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Amendment Act 2010 (No. 60 of 2010), commencing 11 December 2010, inserted section 3(1) definition of TPI Railway and Port Agreement and section 11B. The Rail Safety National Law (WA) Act 2015 (No. 21 of 2015), commencing 2 November 2015, amended section 8. The Rail Safety National Law Application Act 2024 (No. 7 of 2024), commencing 1 October 2024, further amended section 8. Modifications under the Railway (Roy Hill Infrastructure Pty Ltd) Agreement Act 2010 Part 3 (note 1M) have effect from 15 August 2015 until that Part expires.

The source text of the Act as provided does not record or cite any court cases, decisions, or litigation history. The Act itself creates enforcement mechanisms that could generate litigation, but no specific cases are named in the legislation. The Act provides for arbitration under the Code (section 36(1)(a)) and for the Supreme Court to grant injunctions (section 37). The Minister’s decisions on prescribing routes are expressly stated to be not liable to be challenged in or reviewed by a court (section 5(4)), which limits judicial review in that context. There is also provision for arbitration of disputes between railway owners and access seekers (section 6(1)(b)). The Regulator may be involved in proceedings under section 37 (injunctions) and could be subject to judicial review of its decisions under the general law. The transitional provisions in Schedule 3 of the Economic Regulation Authority Act 2003 (reproduced in the notes) deal with continuity of decisions and proceedings of the former Rail Access Regulator, but those are administrative, not litigated matters. Without access to external case law databases, one cannot identify specific litigation from the text of the Act. The Act’s provisions on legal professional privilege (section 22C) and self-incrimination (section 22D) are typical protections that might be litigated, but the source does not reference any such cases. The penalty regime (maximum $100,000 fines, daily penalties) has not been tested in reported decisions mentioned in the Act. The note 1M does not refer to any litigation concerning the Roy Hill modifications. Therefore, based solely on the source, there is no litigation history to report. A practitioner would need to consult Westlaw or similar databases to identify any relevant case law.

Several less obvious provisions can trap the unwary. First, a railway owner cannot grant access rights greater than its own rights: if the owner’s management and control is for a limited term or subject to restrictions from the person through whom it derives title, the access rights it gives are similarly limited (section 3B(1)). Worse, if the owner’s right terminates prematurely, existing access rights continue automatically , unless the new owner (or another party) gives notice within three months, in which case the access can be terminated with at least one month’s notice (section 3B(2)). An access seeker cannot assume that its access agreement is safe from early termination if the underlying title is insecure. Second, sidings and spur lines are generally excluded from being railway infrastructure unless managed and controlled by the same person as the railway (section 3(3) and (4)). However, this exclusion does not apply to the TPI railway (section 3(7)) , so sidings and spur lines on that infrastructure are included unless the Minister declares otherwise. This is a significant carve-out for the Pilbara. Third, the Minister’s decision on which routes are prescribed (and thus subject to access) is not reviewable by a court (section 5(4)). This ouster clause limits judicial challenge, though it may still be subject to administrative law remedies if jurisdictional error is established. Fourth, the Code can be amended urgently without public comment under section 11(1)(b), and if the Minister is satisfied the amendment is minor or urgent, it takes effect immediately. However, post-commencement public comment must be sought (section 11(2)). For the TPI railway, amendments under section 11B are even more drastic: sections 5 and 10-11A do not apply, meaning there is no need to consider the section 5 criteria, no public comment, no consultation with owners, and no parliamentary disallowance (section 11B(3) and (4)). Fifth, breach of the Code does not give rise to an action for damages (section 36(1)). The only remedies are arbitration and injunctions. This means an access seeker cannot sue for financial loss caused by a code breach , it must seek specific enforcement. Sixth, while a person can refuse to provide information on grounds of legal professional privilege (section 22C), self-incrimination is not a complete excuse: an individual must comply, but the information or document is not admissible in criminal or civil proceedings except for perjury or offences relating to false or misleading information (section 22D). Seventh, the Code may exclude interstate services entirely (section 4(3)), so operators connecting to national networks may find themselves outside the regime. Eighth, the Regulator has powers of entry (section 22A) and can give binding directions on segregation if agreement cannot be reached (section 29(3)) , a railway owner cannot simply ignore Regulator suggestions. Ninth, the segregation obligations under sections 28-34 are prescriptive: they require prior Regulator approval of arrangements (section 29(1)), not just compliance after the fact. Tenth, the Act’s definition of railway infrastructure is limited by excluding rolling stock, maintenance facilities, and freight centres , a person seeking access to a terminal yard or depot for loading/unloading may have no right to use those assets under this regime.

Railway owners subject to the Act should adopt a structured compliance program. The first step is to identify whether the railway infrastructure is part of the railways network (section 3(1)) and whether the Code applies to the relevant route. For government railways managed by the Public Transport Authority, the Code will almost certainly apply. For private railways, careful consideration of the Minister’s declarations under section 3(2) and the section 5 criteria is necessary. The railway owner must comply with the Code itself, which will contain specific rules on negotiating access, pricing, and terms. However, the Act imposes additional structural duties that go beyond the Code. The most significant is the duty to segregate access-related functions from other functions (section 28(1)). The railway owner must design an organisational structure that separates the team handling access requests, negotiations, and implementation from those dealing with the owner’s own rail operations or other commercial activities. Before implementing any segregation arrangement or variation, the railway owner must obtain the Regulator’s approval (section 29(1)). The Regulator may confer with the owner and, failing agreement, give binding directions (section 29(3)). The railway owner should engage proactively with the Regulator during the design phase. The segregation regime must include a robust confidential information protection regime (section 31) that prevents relevant officers from disclosing access seekers’ commercial information to other parts of the business. There must be clear policies and training to ensure officers avoid conflicts of interest (section 32). All relevant officers (section 24) must be aware of the duty of fairness , they must not have regard to the railway owner’s interests in a way unfair to access seekers (section 33). Separate accounts and records must distinguish access-related income, expenditure, assets and liabilities (section 34). This likely requires a distinct cost allocation methodology that can be audited. The railway owner must also comply with ongoing information obligations: respond to notices under section 21, permit entry and inspection under section 22A, and not hinder or obstruct the Regulator (section 22B). The Prohibition on hindering or preventing access (section 34A) means the owner must not take steps to block or frustrate access applications or the exercise of existing access rights. If the railway is the TPI railway constructed under the Pilbara agreement, the Minister will amend the Code under section 11B without normal consultation, so the owner should monitor gazette notices. If the railway is subject to the Roy Hill modifications (note 1M), the Act must be applied with the specified modifications. Access agreements must be negotiated in accordance with the Code, and disputes should be directed to arbitration under the Code (section 6(1)(b)). It is advisable to register access agreements as required by the Code (section 6(1)(a)). Finally, the railway owner should participate in the Code review process (section 12) and may make submissions to the Minister under section 11A if circumstances change. Legal professional privilege should be claimed promptly where applicable (section 22C). A compliance manual covering segregation conflicts confidentiality fairness and accounting should be maintained and regularly updated.