National Rail Corporation (Victoria) Act 1991

This Act approves and gives effect to a multi‑party interstate agreement creating the National Rail Corporation Limited (NRC). Mechanically, it does four principal things:

It declares that the Agreement set out in Schedule 1 is approved (s 5) and requires the parties, the Minister and the PTC where applicable, to perform obligations under that Agreement and authorises them to do what the Agreement permits (s 6(1)). Money required from the State under the Agreement must be appropriated by Parliament (s 6(2)).
It provides for the Commonwealth to take or hold shares in the NRC even if that requires a referral of powers under s 51(xxxvii) of the Commonwealth Constitution (s 7). The referral is time‑limited and terminable by proclamation (s 7(1)-(3)).
It sets out the legal status of the company in relation to the Crown: the NRC is not the Crown’s agent, not an instrumentality or agency of the Crown and not a public authority for any purpose; the State does not guarantee the company’s obligations (s 8).
It preserves certain fiscal and procedural constraints and implements delegated powers for enabling regulations (s 12, s 14). The Act also signals an intended alteration of jurisdictional reach in relation to actions of the kind referred to in the Agreement (s 13).

Most of the operational mechanics for how the NRC is to be constituted, capitalised, governed and how assets, functions and services transfer are not inside the main body of the Act but are enacted by approving the text of the Agreement contained in Schedule 1. That Agreement contains detailed provisions on incorporation, share structure, board composition, funding (clause 6 of the Agreement), transfer or lease or access to assets (clause 5(5)), the step‑down of contract prices to “NRC Standard Costs” (clause 5(3)(a)-(b)), the process for valuation and conversion of shares (clause 6(3)-(7)), dispute resolution by conciliation then arbitration under the UNCITRAL rules (clause 7), and the rights of the Commonwealth and participating States on winding up (clause 10).

Version No. 010

National Rail Corporation (Victoria) Act 1991

No. 76 of 1991

Version incorporating amendments as at
14 November 2012

table of provisions

Section Page

Part 1—Preliminary 1

1 Purpose 1

2 Commencement 1

3 Definitions 1

3A Transport Integration Act 2010 2

4 Act to bind Crown 2

Part 2—The Agreement 3

5 Approval of agreement 3

6 Agreement to be given effect by parties 3

Part 3—Referral of Powers to Commonwealth 4

7 Holding of shares in Corporation engaging in intra‑state rail services 4

Part 4—National Rail Corporation Ltd 5

8 Corporation not agent of Crown 5

9–11 Repealed 5

12 Stamp duty and other charges 5

Part 5—General 6

13 Supreme Court—Limitation of jurisdiction 6

14 Regulations 6

Part 6—Repealed 6

15 Repealed 6

SCHEDULES 7

SCHEDULE 1—Agreement 7

SCHEDULE 2—Repealed 28

ENDNOTES 29

General Information 29
Table of Amendments 30
Explanatory Details 31

Version No. 010

National Rail Corporation (Victoria) Act 1991

No. 76 of 1991

Version incorporating amendments as at
14 November 2012

The Parliament of Victoria enacts as follows:

Part 1—Preliminary

1 Purpose

The purpose of this Act is to approve and give effect to the Agreement made on 30 July 1991 between the Commonwealth of Australia, the State of New South Wales, the State of Victoria, the State of Queensland and the State of Western Australia relating to the National Rail Corporation Limited.

2 Commencement

This Act comes into operation on a day or days to be proclaimed.

3 Definitions

In this Act—

assets means any legal or equitable interest (whether present or future and whether vested or contingent) in personal property of any description, and includes securities, choses in action and documents;

liabilities means liabilities, debts and obligations (whether present or future and whether vested or contingent);

S. 3 def. of PTC repealed by No. 54/2001 s. 42(1)(a).

S. 3 def. of
rail freight assets amended by No. 54/2001 s. 42(1)(b).

rail freight assets means any assets of the State that are required or authorised to be transferred to, or acquired by, the Corporation under the Agreement;

rights means all rights, powers, privileges and immunities (whether present or future and whether vested or contingent);

the Agreement means the Agreement, a copy of which is set out in Schedule 1 or, if that Agreement is varied in accordance with its provisions, that Agreement as so varied;

the Corporation means the National Rail Corporation Limited, a company incorporated under the Corporations Law of the Australian Capital Territory.

S. 3A inserted by No. 6/2010 s. 24(5)(Sch. 1 item 8) (as amended by No. 45/2010 s. 5).

3A Transport Integration Act 2010

s. 3A

This Act is transport legislation within the meaning of the Transport Integration Act 2010.

4 Act to bind Crown

This Act binds the Crown, not only in right of Victoria but also, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

Part 2—The Agreement

5 Approval of agreement

s. 5

The Agreement, a copy of which is set out in Schedule 1, is approved.

6 Agreement to be given effect by parties

(1) The parties to the Agreement, the Minister and the PTC—

(a) are authorised to do any thing which they are authorised to do by the Agreement; and

(b) are required to observe the provisions of the Agreement that are applicable to them.

(2) Money required under the Agreement to be provided by the State will be provided from money appropriated from time to time by the Parliament for the purposes of this Act.

Part 3—Referral of Powers to Commonwealth

7 Holding of shares in Corporation engaging in intra‑state rail services

s. 7

(1) The matter of the Commonwealth holding shares, in accordance with the Agreement, in the Corporation, being a corporation that may engage in intra-state rail services in the State in accordance with the Agreement, to the extent to which it is not otherwise included in the legislative powers of the Commonwealth, is referred to the Parliament of the Commonwealth for a period commencing on the date of commencement of this section and ending on the day fixed under subsection (2) as the day on which the reference terminates, but not longer.

(2) The Governor in Council may, at any time, by proclamation published in the Government Gazette, fix a day as the day on which the reference under this section terminates.

(3) In this section, a reference to holding shares includes a reference to acquiring, disposing of or dealing with shares.

Part 4—National Rail Corporation Ltd

8 Corporation not agent of Crown

s. 8

The Corporation is not, and does not represent, the Crown, and, without limiting the foregoing—

(a) the Corporation is not an instrumentality or agency of the Crown; and

(b) the Corporation is not a public authority for any purpose (e.g. the purposes of the Corporations Law); and[1]

S. 9 repealed by No. 16/1998 s. 3.

S. 10 repealed by No. 54/2001 s. 42(2).

S. 11 amended by No. 85/1998 s. 24(Sch. item 44), repealed by No. 16/1998 s. 4(1).

S. 12 amended by No. 16/1998 s. 5.

12 Stamp duty and other charges

A direction must not be made under section 10 unless the Minister is satisfied that arrangements have been made for the payment to the State of an amount of money in respect of stamp duty and other fees or charges that, but for this Act, would be payable in respect of the transfer of the rail freight assets by operation of this Act.

Part 5—General

13 Supreme Court—Limitation of jurisdiction

It is the intention of this section to alter or vary section 85 of the Constitution Act 1975 to the extent necessary—

s. 13

(a) to prevent the bringing before the Supreme Court of an action of a kind referred to in section 10(4); and

S. 13(b) repealed by No. 16/1998 s. 6.

14 Regulations

The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.

Pt 6
(Heading and s. 15) repealed by No. 16/1998 s. 7.

SCHEDULES

SCHEDULE 1

s. 5

Agreement

"THIS AGREEMENT is made on 30th day of July 1991.

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BETWEEN:

THE COMMONWEALTH OF AUSTRALIA of the first part

THE STATE OF NEW SOUTH WALES of the second part

THE STATE OF VICTORIA of the third part

THE STATE OF QUEENSLAND of the fourth part and

THE STATE OF WESTERN AUSTRALIA of the fifth part

WHEREAS:

A. To achieve micro-economic reform in the Australian rail industry, the Commonwealth, State and Territory Governments have agreed that a company should be established for the purpose of conducting, among other things, rail freight operations in Australia on a commercial basis in accordance with principles compatible with those set out in the Heads of Government Agreement on the National Rail Freight Corporation dated 31 October 1990.

B. These principles are:

(a) that the Company will:

(i) operate on a strictly commercial basis, with a financially viable corporate plan, and be subject to the Trade Practices Act 1974 (Commonwealth);

(ii) have access (by ownership or other appropriate arrangements) to the assets, including track infrastructure, necessary to achieve commercial viability;

(iii) operate under labour arrangements incorporated in an enterprise award, which reflects best practice in productivity standards through efficient work and manning practices, determined by the technical capacity of its equipment and commercial considerations, with cost efficiencies being, as a minimum, in line with those identified by the National Rail Freight Initiative Task Force in Attachment I to its Report of 21 March 1991;

(iv) have the capacity to contract out activities where that is the most efficient approach;

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(v) provide access on a commercial basis to the NRC network and to terminal facilities for private and public sector operators;

(vi) have the capacity to provide services to Governments, with the charging for such services being on a strictly commercial basis; and

(vii) not be responsible, financially or in any other way, for redundancies that may arise in rail authorities resulting from its formation and transfer of functions and assets to it; and

(b) that during the Establishment Period the current financial position of the Commonwealth and State rail authorities' interstate rail freight operations will not deteriorate as a result of the Commonwealth and the States participating in the formation and operation of the Company.

C. The Company will be established and operated in accordance with the terms and conditions set out in this Agreement and its Memorandum and Articles of Association to give effect to the principles referred to in Recital B(a).

IT IS AGREED as follows:

PART I—INTERPRETATION

In this Agreement, except where a contrary intention appears or the context otherwise requires:

"asset" means any real or personal property of any description.

"Best Practice Industrial Agreements" means labour arrangements negotiated by the Company which reflect the most efficient work and manning practices, determined by the technical capacity of equipment and commercial considerations.

"Commonwealth" means the Commonwealth of Australia as a party to this Agreement.

"Company" means the National Rail Corporation Limited, a company to be incorporated in the Australian Capital Territory under the Corporations Law.

"Corporate Plan" means the corporate plan prepared in accordance with the Articles of Association of the Company.

"date of commencement of operations" means 31 January 1992, or such later date as is mutually agreed between the Relevant Ministers, other than the Ministers of the other States, being the common date from which all rail authorities of the Commonwealth and the States carry interstate rail freight on behalf of the Company.

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"Establishment Period" means a five year period commencing on the date of commencement of operations.

"finally valued" means, in relation to the value of an asset or assets transferred (by way of ownership or long term lease) by the Commonwealth, the States, or their rail authorities to the Company, that the value of the asset or assets has been agreed or fixed by arbitration.

"interstate rail freight" means interstate rail freight carried on the NRC network.

"long term lease" means a lease which has a term of or in excess of 20 years.

"NRC network" means the rail network connecting the mainland State capital cities and Alice Springs as specified in the Corporate Plan.

"NRC Standard Costs" means those costs that the Company projects, with the objective of achieving as a minimum, the potential cost efficiencies identified by the National Rail Freight Initiative Task Force in Attachment I of its Report of 21 March 1991, that the Company would achieve by the end of the Transition Period, if the Company were from the date of commencement of operations to:

(a) assume the management and operations of all the interstate rail freight functions set out in Schedule 2 from all rail authorities;

(b) have in place Best Practice Industrial Agreements; and

"other State and other States" means the State of Queensland.

"predominant use":

(a) where used in relation to an asset which is a terminal, means the greatest use of the terminal under consideration taken for the period of 12 months prior to the date on which the matter is to be determined, having regard to the volume of freight handled at the terminal (measured in appropriate units of originating and terminating throughput).

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(b) where used in relation to track, means the greatest use of the section of track under consideration (as identified in the Corporate Plan) taken for the period of 12 months prior to the date on which the matter is to be determined, having regard to the volume of freight carried and the frequency of freight and passenger services.

"rail authorities" means the railway authorities of the Commonwealth, the States and, where used in connection with the other States, the railway authorities of those other States.

"Railways of Australia Agreement" means the interstate rail freight revenue sharing arrangements determined by the rules contained in Railways of Australia Commissioners Conference Minute 7248, as they stand at the date of commencement of operations.

"Relevant Ministers" means Ministers of the Commonwealth, the States and the other States having responsibility for administration of this Agreement.

"State" means the State of New South Wales, the State of Victoria, the State of Western Australia and the State of Queensland if it becomes a shareholder of the Company.

"States" means the State of New South Wales, the State of Victoria, the State of Western Australia and the State of Queensland if it becomes a shareholder of the Company.

"Transition Period" means the first three year period of the Establishment Period.

PART II—COMMENCEMENT OF OPERATION OF AGREEMENT

(1) Clause 3 and subclauses 4(1), (2), (3), (4) and (5) will come into operation when this Agreement has been executed by the Commonwealth, the States and the other States.

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(2) The remainder of this Agreement will come into operation on the date on which the last of the legislation referred to in clause 3 (except the legislation referred to in subparagraph 3(1)(a)(i)) comes into force.

PART III—LEGISLATION

(1) The Commonwealth, the States and the other States will, in relation to the legislation referred to in paragraphs (a)(ii) and (iii), as soon as possible after the execution of this Agreement by all of them, and in relation to the legislation referred to in paragraph (a)(i), if the relevant State or other State proposes to give its approval in writing to the Company engaging in intra-State rail transport services in that State or other State, prior to giving that approval, take all practicable steps to seek the enactment of the following legislation:

(a) legislation by the respective Parliaments of the Commonwealth, the States and the other States to approve this Agreement and to make such provision as shall be necessary or appropriate on the part of those Parliaments respectively for the implementation of this Agreement, including:

(i) legislation by the States and the other States referring to the Commonwealth, under s. 51(xxxvii) of the Constitution, the matter of the Commonwealth holding shares in the Company when the Company engages in intra-State rail transport services in the States and in the other States;

(ii) legislation by the Commonwealth, the States and the other States to provide for an additional means for the transfer or vesting in the Company of assets owned or leased by the Commonwealth, the States or the other States and their rail authorities, and for substituting the Company for the Commonwealth, the States, the other States and their rail authorities in contracts, in cases where the legislative transfer or vesting of assets, or contract substitution, has been agreed in accordance with this Agreement between the Commonwealth, the States, the other States and their rail authorities, respectively and the Company; and

(iii) legislation by the Commonwealth, the States and the other States authorising the making of regulations or by-laws that are necessary or convenient for carrying out or giving effect to this Agreement and to the legislation for the implementation of this Agreement.

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PART IV—INCORPORATION OF THE COMPANY AND SHAREHOLDERS ARRANGEMENTS

(1) (a) The Commonwealth, the States and the other States agree that the Company shall be incorporated as a public company limited by shares which shall be operated on a strictly commercial basis with a financially viable corporate plan, and have as a principal objective the carriage of interstate rail freight on a national network.

(b) The Commonwealth will, as soon as practicable after this Agreement has been executed, arrange for the Company to be incorporated under the Corporations Law, with the name of "National Rail Corporation Limited" and with a Memorandum and Articles of Association substantially in the form set out in Schedule 1. Nothing in this Agreement shall be construed as limiting or restricting the amendment of the Memorandum and Articles of Association of the Company in accordance with their provisions and the Corporations Law.

(2) The Commonwealth will, itself and through trustees, subscribe to 500 ordinary and 500 B convertible shares in the Company and will, within 30 days of the date referred to in subclause 2(2), transfer to the States, at par value, out of these shares, the following number of shares:

New South Wales—140 ordinary shares and 125B convertible shares

Victoria—65 ordinary shares and 125B convertible shares

Western Australia—25 ordinary shares and 125B convertible shares

(3) The funds required for the establishment and functioning of the Company, until the date of commencement of operations, shall be provided out of the equity payment to be made by the Commonwealth pursuant to clause 6.

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(4) The Commonwealth and the States agree that subject to subclause 4(6), until the end of the Establishment Period, there will be nine (9) Directors of the Company and the Commonwealth, as subscriber and member of the Company, and the States, as members of the Company, will exercise their appointment and voting rights in respect of the appointment of the first and subsequent Directors in such a way as to have during the Establishment Period:

(a) three Directors nominated by the Commonwealth, one being the Chairperson of the Board of Directors and one, as a matter of Commonwealth policy, being a nominee of the Australian Council of Trade Unions, not being a member of a union directly associated with operations of the Company;

(b) two Directors nominated by the State of New South Wales;

(d) one Director nominated by the State of Western Australia,

holding office during the Establishment Period. The remaining Director, who will be the Managing Director, will be appointed by the Board of Directors in accordance with the Articles.

(5) The Commonwealth and the States agree that, until the end of the Establishment Period, they will as members of the Company, exercise their voting rights in respect of the removal of Directors so that a Director nominated by any of them will, at the request of the Commonwealth, in the case of a Director nominated by it, or of a State, in respect of a Director nominated by it, be removed.
(6) If any other State becomes a shareholder of the Company pursuant to subclauses 6(8) and 6(9), that State shall have a right from the date it becomes a shareholder to nominate and have appointed one Director of the Company, in addition to the Directors referred to in subclause 4(4), to hold office during the Establishment Period in accordance with the provisions of subclauses 4(4) and 4(5).

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(7) The Commonwealth and the States agree that, after the Establishment Period, during such time as the Commonwealth and any of the States are the only shareholders of the Company, the Commonwealth and those States (as members of the Company) shall exercise their voting rights relating to the appointment and removal of Directors in such a way as to ensure that the Commonwealth and those States each will have the right to nominate at least one (1) Director, to have that Director appointed and to have that Director removed. The remainder of the Directors will be appointed in accordance with the Articles of Association of the Company.

PART V—ESTABLISHMENT AND OPERATION OF THE COMPANY

(1) The Commonwealth and the States will, to the extent each in its capacity as a shareholder in the Company is able, procure the Company to:

(a) negotiate Best Practice Industrial Agreements with the relevant unions leading to an enterprise award as envisaged by Recital B(a)(iii);

(b) before the commitment of any capital upgrading have in place best Practice Industrial Agreements which the Company advises provide a basis for commercial operations;

(d) conduct all marketing and determine pricing for interstate rail freight carried on by the Company;

(e) collect and retain all revenue generated by the carriage of interstate rail freight from the date of commencement of operations;

(f) take over progressively from the rail authorities of the Commonwealth and the States, in whole or in part, functions of the type listed in Schedule 2 and the management of the associated assets pursuant to the provisions of this Agreement and the agreements entered into pursuant to subclauses 5(3), 5(4) and 5(5); and

Sch. 1

(g) give effect to this Agreement and to those obligations which by this Agreement are expressed to be obligations of the Company.

(2) The Commonwealth, the States and the other States will, and will cause their respective rail authorities to assist the Company, when requested by the Company, to undertake the matters set out in subclause 5(1), except, in the case of the other States, in relation to the matters set out in paragraph 5(1)(f).

Contracts for Services

(3) Prior to and during the Transition Period, at the request of the Company, the Commonwealth and the States shall, and shall cause their respective rail authorities to, enter into contracts with the Company for the provision of rail services to the Company, relating to interstate rail freight. Those contracts will make provision for the following during the Transition Period:

(a) The price for services performed under the contracts shall be agreed on the basis that:

(i) the initial contract price, to apply for no longer than for the period of 12 months after the date of commencement of operations, will be set having regard to:

(A) the Company being able to meet its costs incurred in performing the functions assumed by it in whole or in part, during the period for which the initial contract price applies (being reasonable costs); and

(B) the revenue that the rail authority would have received under the Railways of Australia Agreement, had that agreement still applied.

and,

(ii) thereafter the contract price will, on the basis that the Company has achieved Best Practice Industrial Agreements and is implementing its approved capital investment program, reduce progressively to NRC Standard Costs.

(b) liquidated damages, in an amount or by a formula to be agreed between the parties to the contract, to be paid to the Company by the respective rail authorities, or by the Company to the respective rail authorities, in respect of a failure by a party to meet such performance standards as are specified in the contract;

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(c) the Company and the relevant rail authority are to maintain and make available to each other externally audited accounts of the costs of carrying out their respective obligations under any contract. The accounts shall be in the form specified from time to time by the auditors of the Company in accordance with generally accepted accounting practices. Such accounts shall be retained by the parties to a contract for at least a period of 12 months after the expiration of the contract. These accounts will only be used for the purpose of determining payments pursuant to clause 5.

Transfer of Functions

(4) (a) Subject to this Agreement, the Commonwealth and the States shall and shall cause their respective rail authorities to permit the Company to assume performance of the functions relating to interstate rail freight of the type listed in Schedule 2, in whole or in part, in accordance with a detailed list of specific functions and the timetable set out in the Corporate Plan and being no later than the end of the Transition Period.

(b) When a function is assumed pursuant to subclause 5(4)(a) by the Company, an assessment will be made at that time by the Company of the initial full cost to the Company of performing that function determined having regard to any accounts kept pursuant to subclause 5(3)(c) or in the absence of such accounts, such other accounts as may be relevant. Where that assessed cost exceeds NRC Standard Costs for that function:

(i) the transferring rail authority and the Company will agree as to the rate and the time, which is not to exceed three years from the date of transfer, or the end of the Establishment Period, whichever shall first occur, at which, and within which the Company will be able to reduce costs in relation to that function to NRC Standard Costs, while meeting the Company's performance standards;

(ii) the Company and the Commonwealth,, or the State concerned, will agree a schedule of payments, to be made by the Commonwealth or the State to the Company, during the period agreed to in subclause (i) above while the Company is in the process of achieving NRC Standard Costs in respect of the function in the time agreed. The schedule will be based on the difference between NRC Standard Costs to carry out the function and the actual costs measured on a comparable basis determined having regard to any accounts kept pursuant to subclause 5(3)(c) (or in the absence of such accounts, such other accounts as may be relevant), to the Commonwealth, the States or their rail authorities, as the case may be, of carrying out the function in the twelve month period prior to the transfer.

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(c) In the case of the State of Western Australia, if it is established by an independent expert to be appointed by the Company and approved by the State of Western Australia, as soon as practicable after the date of commencement of operations, that transfer of its interstate rail freight business to the Company would have a detrimental effect on the financial position of the rail authority of Western Australia, because of a reduction in revenues not matched by a commensurate reduction in costs, including fixed costs and overheads, then assessments shall be made by that expert of the extent in dollar terms, of that effect for each year of the Establishment Period, and of the maximum practicable rate at which the Western Australian rail authority could reduce fixed costs and overheads as a consequence of the transfer of the functions and assets to the Company. The Company, the Commonwealth and the States must agree a schedule of annual payments to be made to the State of Western Australia by the Company within the Establishment Period, which provides compensation to the State of Western Australia based on these assessments.

(d) Payments to be made by the rail authority of the State of Western Australia pursuant to subclause 5(4)(b), as well as payments received by the rail authority of the State of Western Australia pursuant to subclause 5(3), shall be taken into account in assessing the payments to be made to the State of Western Australia pursuant to subclause 5(4)(c), as well as any reductions in costs occasioned by the transfer of functions by the rail authority of the State of Western Australia, giving rise to payments by the State of Western Australia pursuant to subclause 5(4)(b).

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(e) Prior to any application of Part VII in relation to payments to be made to the State of Western Australia pursuant to subclause 5(4)(c), agreement as to payments to the State of Western Australia pursuant to that subclause shall, if necessary, be negotiated at Heads of Government level.

Access to and Transfer of Assets

(5) The Commonwealth and the States shall, or shall cause their rail authorities to transfer ownership of, or for as long as the Company continues to conduct national interstate rail freight operations, give leases of, or grant access to the Company, in relation to any asset, owned or controlled by the Commonwealth or the State or their rail authorities, and used by their rail authorities in connection with interstate rail freight. The Company, in its Corporate Plan, shall identify that a particular asset or class of assets is required by it. The Commonwealth and the States shall have a discretion whether to transfer ownership, give a lease or grant access to the Company in relation to any asset required by it. Transfer of ownership, lease or grant of access shall be given within a reasonable time following the request by the Company to make the asset available. The objective is that all transfers of ownership, leases or grants of access shall be completed before the end of the Transition Period. The following provisions shall apply:

(a) In the case where the Company requires access to an asset the predominant use of which has not been for interstate rail freight, or of which the Company is not, and will not in the future, be the predominant user (eg. metropolitan track) as projected in the Corporate Plan, the Company will be granted access to that asset pursuant to a contract, the terms and conditions of which will be agreed between the Company and the Commonwealth or a State or its respective rail authority, as the case may be. Such contract will provide for the Company to pay to the rail authority in respect of such access, an amount that reflects the cost to the rail authority of providing access in the most efficient manner and that allows the Company to meet its service standards specified in the contract;

(b) In the case where the Commonwealth or a State, or its rail authority, does not agree to transfer ownership, or enter into a long term lease of an asset, the predominant use of which has been for interstate rail freight, or of which the Company is or is to be, the predominant user as projected in the Corporate Plan, the Company will be granted access to that asset pursuant to a contract, the terms and conditions of which will be agreed between the Company and the Commonwealth or a State, or its respective rail authority, as the case may be. Such contract will provide that the rail authority maintain the asset to NRC specified standards and for the Company to pay to the rail authority, in respect of such access, an amount no greater than the costs (based on NRC Standard Costs) that would be avoided by the rail authority if the Company were not to utilise the asset on the basis that the rail authority would for its own purposes maintain the asset to the standards specified in the contract.

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(c) In the case where the Company acquires ownership of, or a long term lease of, an asset to which a rail authority still requires access (eg for intrastate rail freight or passenger services), the rail authority will be granted access to that asset pursuant to a contract, the terms and conditions of which will be agreed between the Company and the Commonwealth or a State, or its rail authority, as the case may be. Such contract will provide for the rail authority to pay to the Company, in respect of such access, an amount that reflects the cost to the Company of providing access in the most efficient manner and that allows the rail authority to meet its service standards specified in the contract.

(d) In the case where the Company does not nominate as an asset which it requires to be transferred to it, an asset the predominant use of which has been for interstate rail freight, but to which it requires access, access will be granted to the Company pursuant to a contract, the terms and conditions of which will be agreed between the Company and the Commonwealth or a State, or its rail authority, as the case may be. Such contract will provide for the Company to pay to the rail authority, in respect of such access, an amount that reflects the cost to the rail authority of providing access in the most efficient manner and that allows the Company to meet its service standards specified in the contract.

Other States—Access to and Transfer of Assets and Contracts of Service

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(6) (a) The other States shall, or shall cause their rail authorities to transfer ownership of, or for as long as the Company continues to conduct national interstate rail freight operations, give leases of, or grant access to the Company, in relation to any asset, owned or controlled by the other States or their rail authorities, and used by their rail authorities in connection with interstate rail freight. The Company, in its Corporate Plan, shall identify that a particular asset or class of assets is required by it. The other State in question shall have a discretion whether to transfer ownership, give a lease or grant access to the Company in relation to any asset required by it. Transfer of ownership, lease or grant of access shall be given within a reasonable time following the request by the Company to make the asset available. The objective is that all transfers of ownership, leases or grants of access shall be completed before the end of the Transition Period. The transfers of ownership, leases and the grants of access shall be on such commercial terms and conditions as are agreed between the Company and the other State in question.

(b) Until all the transfers of ownership, leases or grants of access pursuant to subclause 5(6)(a) are completed, the other States shall, and shall cause their respective rail authorities to, enter into contracts with the Company for the provision of rail services to the Company, relating to interstate rail freight. Those contracts will make provision for the following:

The price for services performed under the contracts shall be agreed on the basis that:

(i) the initial contract price, to apply for no longer than for the period of 12 months after the date of commencement of operations, will be set having regard to:

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(A) the Company being able to meet its costs incurred in performing the functions, identified in Schedule 2, assumed by it in whole or in part during the period for which the initial contract price applies (being reasonable costs); and

(B) the revenue that the rail authority would have received under the Railways of Australia Agreement, had that agreement still applied.

and

(ii) thereafter the contract price will be at commercial rates agreed between the Company and the other State in question or its rail authority.

PART VI—FUNDING

(1) (a) The Commonwealth and the States will contribute the following equity funds to the establishment, capital and operation of the Company:

(i) the Commonwealth—$295⋅8 million.

(ii) the State of New South Wales—$75⋅6 million.

(iii) the State of Victoria—$35⋅1 million.

(iv) the State of Western Australia—$8⋅0 million.

(b) The Commonwealth and the States shall, prior to the date of commencement of operations, make an application to the Company for the issue of A convertible shares equal to the amounts set out in subclause 6(1)(a).

(c) The Company shall issue to the Commonwealth and the States respectively, the A convertible shares referred to in subclause 6(1)(b).

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(d) Payments by the Commonwealth and the States respectively of funds to be contributed pursuant to subclause 6(1)(a), and any calls on the A convertible shares, shall be made from time to time in accordance with Schedule 4.

(2) (a) During the Establishment Period, the Commonwealth and the States will contribute any additional equity funding requirements of the Company provided for, both as to amounts and times of payment, in the Corporate Plan according to the following percentages:

Commonwealth 54⋅3%

New South Wales 27⋅7%

Victoria 13⋅1%

Western Australia 4⋅9%

(b) The Commonwealth and the States shall, during the Establishment Period, make application to the Company for the issue of A convertible shares calculated in accordance with subclause 6(2)(a).

(c) The Company shall issue to the Commonwealth and the States respectively, the A convertible shares referred to in subclause 6(2)(b).

(3) For the purposes only of determining the numbers of A convertible shares to be issued pursuant to subclause 6(7), the value of an interest in the assets transferred (by way of ownership or long terms lease) will be agreed bilaterally by the Company and the Commonwealth or by the Company and the relevant State, on the following basis:

(a) for an interest in track or terminal, and major associated assets, the valuation will be agreed prior to the end of the Establishment Period and will take into account the condition of the asset at the time of transfer and the net amount expected to be recovered from its continued use, assessed as at the end of the Establishment Period. The cost, adjusted in accordance with subclause 6(5), of any improvements to such assets funded by the Company prior to the valuation of such assets, whether by capital upgrade or maintenance, will be deducted from the value of the asset.

(b) for an interest in any other asset:

(i) valuation at market value, assessed at the time of transfer, if an established market exists for that type of asset; or

Sch. 1

(ii) if no such established market exists, then on an asset valuation methodology appropriate to the type of asset involved, assessed at the time of transfer.

(4) In valuing interests in assets transferred (by way of ownership of long term lease), the valuation methodology adopted will be applied uniformly to value the interests in assets of the same type transferred by the Commonwealth, the States and their rail authorities to the Company.
(5) For the purpose of determining the number of A convertible shares for issue to the Commonwealth and the States, or the number of ordinary shares to issue as bonus shares, the monetary value of assets transferred assessed in accordance with subclauses 6(3) and 6(4), and moneys contributed in accordance with subclause 6(1), will be adjusted immediately prior to the end of the Establishment Period (or, in the case of assets finally valued after the Establishment Period, as soon as practicable after the assets are finally valued) to constant prices by indexing those monetary values by the All Groups Consumer Price Index Number published by the Australian Statistician. The period of indexation will commence from the latest published index number before the date of the transfer of assets or payment of moneys to the latest published index number before the end of the Establishment Period.
(6) The Commonwealth and the States shall, prior to the end of the Establishment Period, make an application to the Company for the issue of:

(a) A convertible shares equal to the value, as assessed in accordance with subclauses 6(3), 6(4) and 6(5), of the assets transferred (by way of ownership or long term lease) respectively by the Commonwealth and the States and their rail authorities; and

(b) A convertible or ordinary shares, in accordance with subclause 6(7), equal to the value of the difference between the moneys contributed by the Commonwealth and the States in accordance with subclause 6(1) and the adjusted value thereof assessed in accordance with subclause 6(5).

(7) The Company shall issue to the Commonwealth and the States respectively the A convertible or ordinary shares referred to in subclause 6(6), provided that the shares referred to in subclause 6(6)(b) shall only be issued as bonus shares when there are sufficient profits or reserves out of which the shares can be so issued and shall be issued as ordinary shares if, at the time of issue, all the A convertible shares have been converted into ordinary shares or A convertible cumulative reference shares. The Commonwealth and the States shall, before the end of the Establishment Period, pass the necessary special resolution for the A convertible or ordinary shares, referred to in subclause 6(6)(b), to be issued as bonus shares in priority to the rights of any other shareholder.

Sch. 1

(8) If, during, the first three years of the Establishment Period, any of the other States notifies the Commonwealth, the States and the Company that it wishes to contribute a minimum of $5 million in cash for shares in the Company, the Commonwealth and the States shall, as members, pass a unanimous resolution for the issue of the shares to the other State and for the issue of additional shares to the Commonwealth and the States in accordance with the relevant provisions of the Table in Schedule 3 under the following conditions:

(a) the Commonwealth, the States and the other State, upon making an application for shares, shall be each issued with the number of ordinary and B convertible shares at par value set out in Schedule 3. In addition to the B convertible shares, the other State shall, upon payment in full of the moneys contributed by it, be issued with A convertible shares at par value for the remainder of the moneys contributed by it; and

(b) the other State shall be obliged to contribute such proportion of the additional equity funding requirements of the Company pursuant to subclause 6(2)(a), as is determined by the Company and agreed between the Commonwealth, the States and the other State prior to the date of the passing of the unanimous resolution to issue shares pursuant to this subclause. The percentages as then agreed shall, from the date the other State becomes a shareholder, be the percentages at which the Commonwealth, the States and the other State have to contribute to additional equity funding requirements and will replace the percentages set out in subclause 6(2)(a);

(9) If, during the last two years of the Establishment Period, any of the other States notifies the Commonwealth, the States and the Company that it wishes to purchase shares in the Company, the Commonwealth and the States, as members, may pass a unanimous resolution for the issue of such shares (if any) to the other State, subject to such terms and conditions, as they determine, and are agreed to by the other State.

Sch. 1

(10) After the Establishment Period, if any of the other States notifies the Company and all the shareholders of the Company that it wishes to purchase shares in the Company, the other State shall have the right to purchase shares in the Company on the same terms and conditions as shares are offered for sale to third parties.
(11) The Commonwealth and the States shall, at the end of the Establishment Period, pass a special resolution to convert all the A convertible shares to ordinary or A convertible cumulative preference shares, or if at the time all the assets transferred (by way of ownership or long term lease) by the Commonwealth and the States and their rail authorities to the Company have not been finally valued, as soon as practicable after the final valuation is completed.

PART VII—RESOLUTION OF DISPUTES

Except for a dispute or difference as to any obligation imposed under Part III, any dispute or difference whatsoever arising in connection with this Agreement shall first be the subject of conciliation by a conciliator agreed between the parties to the dispute or difference, unless one of the parties to the dispute or difference objects to conciliation. In the event that the dispute or difference has not been resolved within twenty-eight (28) days (or such other period as is agreed to in writing between the parties to the dispute or difference) after the appointment of a conciliator by the parties to the dispute or difference, or the parties to the dispute or difference cannot agree to referring the dispute or difference for conciliation, the dispute or difference shall be submitted to arbitration in accordance with and subject to the Arbitration Rules of the United Nations Commission on International Trade Law in force at the date of first notification of the dispute or difference. A dispute or difference will include, without limiting the generality thereof, a dispute or difference as to:

(a) the identification of any asset within any class of assets identified in the Corporate Plan;

(b) the value of the interest in any asset to be transferred or leased or otherwise made available to the Company;

Sch. 1

(d) the schedule of payments to be made by the Commonwealth or a State pursuant to subclause 5(4)(b);

(e) the schedule of payments which may be made by the Company pursuant to subclause 5(4)(c); or

(f) the charges and terms and conditions for access to assets pursuant to subclauses 5(5)(a), (b), (c) and (d) and subclause 5(6)(a).

PART VIII—VARIATION OF AGREEMENT

(1) The provisions of this Agreement, which do not relate to or affect any of the other States may be varied, as between the Commonwealth and the States, by an agreement in writing between the Relevant Ministers of the Commonwealth and States.
(2) Any provisions of this Agreement, which affect any of the other States, may be varied as between the Commonwealth, the States and the other State or other States affected, by an agreement between the Relevant Ministers of the Commonwealth, the States and the other State or States affected.
(3) A copy of an agreement, or copies of documents which constitute an agreement under subclause 8(1), shall be tabled in the Commonwealth and State Parliaments within 15 sitting days from the date on which the agreement is made and shall, if not disallowed by any Parliament within 15 sitting days of being so tabled, take effect at the expiration of 15 sitting days of the Parliament in which the agreement or documents are last tabled.
(4) A copy of an agreement, or copies of documents which constitute an agreement under subclause 8(2), shall be tabled in the Commonwealth and the State Parliaments and the Parliament of the other State or States within 15 days from the date on which the agreement is made and shall, if not disallowed by any Parliament within 15 sitting days of being so tabled, take effect at the expiration of 15 sitting days of the Parliament in which the agreement or documents are last tabled.

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PART IX—MISCELLANEOUS

(1) The Relevant Ministers may, from time to time, do all things, or enter into agreements or arrangements for giving effect to the provisions of this Agreement.
(2) During the Establishment Period, the Commonwealth and the States, as members of the Company, shall not mortgage or otherwise encumber their shares.
(3) The obligations of a party hereunder, or in any agreement contemplated by this Agreement shall not be subject to that party holding or continuing to hold shares in the Company.

PART X—WINDING UP OF A COMPANY

If the Company is would up within eight years of the date of commencement of operations, the Commonwealth, the States and the other States will, to the extent permitted by law, have the first option to acquire by distribution or purchase, assets of the Company which they or their rail authorities have respectively transferred to the Company.

IN WITNESS WHEREOF this Agreement has been executed on behalf of the parties respectively as at the day and year above written.

Signed by the Honourable Robert James Lee Hawke, Prime Minister of the Commonwealth of Australia in the presence of:	⎩⎧	ROBERT JAMES HAWKE
ROGER BEALE
Signed by the Honourable Nicholas Frank Greiner, Premier of the State of New South Wales in the presence of:	⎩⎧	NICK GREINER

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ROGER BEALE
Signed by the Honourable Joan Elizabeth Kirner, Premier of the State of Victoria in the presence of:	⎩⎧	JOAN E. KIRNER
ROGER BEALE
Signed by the Honourable Wayne Goss, Premier of the State of Queensland in the presence of:	⎩⎧	WAYNE GOSS
ROGER BEALE
Signed by the Honourable Carmen Lawrence, Premier of the State of Western Australia in the presence of:	⎩⎧	CARMEN LAWRENCE"
ROGER BEALE

Sch. 2 repealed by No. 16/1998 s. 4(2).

ENDNOTES

General Information

Endnotes

Minister’s second reading speech—

Legislative Assembly: 30 October 1991

Legislative Council: 20 November 1991

The long title for the Bill for this Act was "A Bill to approve and give effect to an agreement between the Commonwealth, New South Wales, Victoria, Queensland and Western Australia relating to the National Rail Corporation Limited, to amend the Transport Act 1983 and for other purposes.".

Constitution Act 1975:

Section 85(5) statement—

Legislative Assembly: 30 October 1991

Legislative Council: 20 November 1991

Absolute majorities—

Legislative Assembly: 14 November 1991

Legislative Council: 21 November 1991

The National Rail Corporation (Victoria) Act 1991 was assented to on 3 December 1991 and the whole of the Act, except section 11, came into operation on 1 January 1992: Government Gazette 18 December 1991 page 3488. Section 11 was repealed unproclaimed by section 4(1) of the Transport Acts (Amendment) Act 1998, No. 16/1998.

Table of Amendments

This Version incorporates amendments made to the National Rail Corporation (Victoria) Act 1991 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Transport Acts (Amendment) Act 1998, No. 16/1998

Assent Date:	28.4.98
Commencement Date:	Ss 3–7 on 4.3.99: Government Gazette 4.3.99 p. 536
Current State:	This information relates only to the provision/s amending the National Rail Corporation (Victoria) Act 1991

Transfer of Land (Single Register) Act 1998, No. 85/1998

Endnotes

Assent Date:	17.11.98
Commencement Date:	S. 24(Sch. item 44) on 1.1.99: s. 2(3)
Current State:	This information relates only to the provision/s amending the National Rail Corporation (Victoria) Act 1991

Transport (Further Amendment) Act 2001, No. 54/2001

Assent Date:	2.10.01
Commencement Date:	S. 42 on 30.6.03: s. 2(5)
Current State:	This information relates only to the provision/s amending the National Rail Corporation (Victoria) Act 1991

Transport Integration Act 2010, No. 6/2010 (as amended by No. 45/2010)

Assent Date:	2.3.10
Commencement Date:	S. 24(5)(Sch. 1 item 8) on 1.7.10: Special Gazette (No. 256) 30.6.10 p. 1
Current State:	This information relates only to the provision/s amending the National Rail Corporation (Victoria) Act 1991

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Explanatory Details

Endnotes

S. 8(b): See regulation 5 of the Corporations (Ancillary Provisions) Regulations 2011, S.R. No. 34/2011. ↑

1 National Rail Corporation (Victoria) Act 1991

Version No. 010

National Rail Corporation (Victoria) Act 1991

No. 76 of 1991

Version incorporating amendments as at
14 November 2012

table of provisions

Section Page

Part 1—Preliminary 1

1 Purpose 1

2 Commencement 1

3 Definitions 1

3A Transport Integration Act 2010 2

4 Act to bind Crown 2

Part 2—The Agreement 3

5 Approval of agreement 3

6 Agreement to be given effect by parties 3

Part 3—Referral of Powers to Commonwealth 4

7 Holding of shares in Corporation engaging in intra‑state rail services 4

Part 4—National Rail Corporation Ltd 5

8 Corporation not agent of Crown 5

9–11 Repealed 5

12 Stamp duty and other charges 5

Part 5—General 6

13 Supreme Court—Limitation of jurisdiction 6

14 Regulations 6

Part 6—Repealed 6

15 Repealed 6

SCHEDULES 7

SCHEDULE 1—Agreement 7

SCHEDULE 2—Repealed 28

ENDNOTES 29

General Information 29
Table of Amendments 30
Explanatory Details 31

Version No. 010

National Rail Corporation (Victoria) Act 1991

No. 76 of 1991

Version incorporating amendments as at
14 November 2012

The Parliament of Victoria enacts as follows:

Part 1—Preliminary

1 Purpose

Core statutory and contractual concepts appear in both the Act’s body and in Schedule 1 (the Agreement). The Act itself defines a narrow set of terms and imports the Agreement as a defined instrument (s 3). Important concepts to track in practice are these.

The Agreement as a legal instrument: “the Agreement” is the scheduleed document (s 3, Schedule 1). The Act approves that Agreement (s 5) and makes its provisions enforceable on the parties referenced in s 6. Variations of the Agreement are recognised if done in accordance with its own variation clauses (s 3).
Rail freight assets and transfers: “rail freight assets” (defined in s 3) means State assets required or authorised to be transferred to, or acquired by, the Corporation under the Agreement. The Agreement sets the mechanics for transfer, lease or access (Schedule 1, cl 5(5)), and for valuation where assets are transferred in consideration for shares (cl 6(3)-(7)).
Establishment, Transition and corporate structure: the Agreement sets an Establishment Period (five years from commencement of operations) and a three‑year Transition Period within it (Schedule 1, Part I definitions). Share structure, director appointments and voting arrangements during the Establishment Period are specified in Schedule 1, cl 4(4)-(7). The Commonwealth subscribes initial shares and transfers specified blocks to States (cl 4(2)).
Funding and share conversion: funding is arranged by initial contributions from Commonwealth and States (Schedule 1, cl 6(1)) and further contributions during the Establishment Period (cl 6(2)). The conversion and issuance of “A convertible” shares in consideration for transferred assets is governed by cl 6(3)-(7), including valuation methodologies, indexing to CPI and the requirement for special resolutions to issue bonus shares (cl 6(5)-(7)).
Access and pricing transition: the Agreement contemplates a staged transition of contract pricing, with initial contract prices set to enable the Company to meet reasonable costs and replicate revenue under prior revenue‑sharing, and thereafter a progressive reduction to “NRC Standard Costs” as the Company achieves Best Practice Industrial Agreements and implements a capital program (Schedule 1, cl 5(3)(a)(i)-(ii)). Access to assets where the Company is not the predominant user is to be regulated by contract on cost‑reflective terms (cl 5(5)(a)-(d)).
Dispute resolution and arbitration: commercial disputes under the Agreement are to go first to conciliation and, failing that, to arbitration under the UNCITRAL Arbitration Rules then in force (Schedule 1, cl 7).
Jurisdictional referral and time limits: the Act contains a focused referral of the matter of the Commonwealth holding shares in a corporation that may engage in intra‑state rail services (s 7). That reference is explicitly time‑limited and subject to termination by Governor in Council proclamation (s 7(1)-(3)).
Legal status and guarantees: the NRC is expressly not the Crown’s agent, not an instrumentality or public authority and the State does not guarantee its obligations (s 8). The Agreement nonetheless contemplates Government shareholders exercising specific voting and removal rights during the Establishment Period (Schedule 1, cl 4(4)-(5)).

These concepts interact: valuation rules determine share issuance which affects government equity positions; the pricing transition affects cashflow and therefore capital contribution needs; dispute resolution governs valuation and access disputes; and the referral of powers and complementary state legislation determine whether the Commonwealth can hold shares when the NRC operates intra‑state services. Repeals and later amendments (e.g. Schedule 2 repealed; s 3A added by the Transport Integration Act 2010) alter the statutory landscape around some of these concepts, but the Agreement remains the operational core.

The Act and the Agreement affect multiple, identifiable stakeholders. The distribution of costs, decision rights and behavioural requirements is specified in the text; below lists the principal actors and the concrete ways they are affected.

The Commonwealth Government: as founder subscriber, equity provider (cl 4, cl 6), director nominator (cl 4(4)), and party to the Agreement, the Commonwealth is obliged to make specified equity payments (cl 6(1)(a)(i)), to cooperate in transfer of assets and to participate in dispute resolution. The Commonwealth’s capacity to hold shares when the Company engages in intra‑state services is the subject of the referral in s 7.
Participating State Governments (New South Wales, Victoria, Western Australia, and potentially Queensland/other States): they are required to provide equity (cl 6(1)(a)(ii)-(iv)), to cause their rail authorities to enter contracts or transfer/lease assets as required (Schedule 1, cl 5(4)-(6)), to table variations of the Agreement as required (cl 8(3)-(4)), and to appropriate funds as necessary (s 6(2)). During the Establishment Period they exercise specified voting and director nomination rights (Schedule 1, cl 4(4)-(5), cl 9(2)).
Rail authorities of Commonwealth and States: operationally affected because the Agreement contemplates them transferring functions and assets to the NRC in accordance with the Corporate Plan and entering contracts for services during the Transition Period (Schedule 1, cl 5(3)-(4)). They will need to maintain or supply the accounts required by contracts (cl 5(3)(c)) and may receive or pay liquidated damages under those contracts (cl 5(3)(b)).
The National Rail Corporation Limited (the Company): the Company’s rights, obligations and corporate structure are set in the Agreement , to operate interstate rail freight commercially (Recitals and cl 4, cl 5), to negotiate Best Practice Industrial Agreements (cl 5(1)(a)-(b)), to collect interstate freight revenue (cl 5(1)(e)), and to identify and seek transfer of assets in its Corporate Plan (cl 5(5)). It also controls the timetable for achieving NRC Standard Costs and is entitled to transition payments where an assessed cost exceeds NRC Standard Costs (cl 5(4)(b)).
Employees and unions: the Agreement contemplates the Company negotiating enterprise awards reflecting Best Practice Industrial Agreements (Schedule 1, Recital B(a)(iii) and cl 5(1)(a)-(b)). That creates a contractual and operational pressure point affecting labour arrangements, redundancy liability (Recital B(a)(vii) states the Company will not be financially responsible for redundancies in rail authorities arising from transfer) and the timetable for cost reductions.
Private and public sector operators and freight customers: the Agreement contemplates the NRC providing access to its network and terminals on a commercial basis (Recital B(a)(v)), which affects private operators’ access terms and pricing (cl 5(5)(a)-(d)). Pricing transition to NRC Standard Costs (cl 5(3)(a)) will affect freight prices over time.
Tax authorities and State treasuries: the Act requires that money required under the Agreement to be provided by the State be appropriated by Parliament (s 6(2)) and contains a requirement on stamp duty and other charges connected to transfers (s 12). The stamp duty clause links transfer directions (originally under s 10) to the Minister needing to be satisfied arrangements have been made to pay stamp duty and other fees; that interacts with tax administration and State fiscal planning.
Creditors, contractors and financiers: the NRC is explicitly not guaranteed by the State and is not an agent of the Crown (s 8). For financiers, that limits recourse to government guarantee; for contractors it means contract enforcement relies on the company’s own corporate creditworthiness and contract terms. Note also that the Agreement prohibits mortgage or encumbrance of government shares during the Establishment Period (Schedule 1, cl 9(2)), affecting possible security for company finance if shareholders cannot encumber their shareholdings.
Parliaments and relevant Ministers: the Agreement contains tabling and parliamentary disallowance processes for variations (cl 8(3)-(4)); Relevant Ministers retain power to enter agreements and do things to give effect to the Agreement (cl 9(1)). The Act also delegates rule‑making to the Governor in Council (s 14).
Users of the Supreme Court and litigators: s 13 of the Act contains an expressed intention to alter s 85 of the Constitution Act 1975 to the extent necessary to prevent bringing specified actions before the Supreme Court (referencing actions of a kind in s 10(4) of the Agreement). This restricts the forum for certain disputes and links them to the Agreement’s conciliation and arbitration procedures.

Every one of these parties faces concrete behavioural changes: States must appropriate funding and negotiate valuations; rail authorities must prepare accounts and negotiate contracts; the Company must prepare a Corporate Plan, negotiate enterprise agreements and manage asset transfers; customers and private operators will face changes in access and price regimes; and disputes involving valuation, access, contract terms and payments are expressly routed to conciliation and, failing that, arbitration under UNCITRAL rules (Schedule 1, cl 7).

The Act and the embedded Agreement create specific duties on, and rights for, participants. This section lists the most significant standing duties and rights, with their sources.

Duties imposed on State governments and Ministers

To give legislative effect and approvals: the Act approves the Agreement (s 5) and requires parties, the Minister and the PTC to observe provisions applicable to them and authorises them to do what the Agreement permits (s 6(1)). The Agreements themselves require States to take steps to pass enabling legislation where required by clause 3 of the Agreement (Schedule 1, Part III).
To appropriate funds: any money required under the Agreement to be provided by the State must be provided from money appropriated by Parliament for the purposes of the Act (s 6(2)).
To make equity and capital contributions: the Agreement requires specified initial contributions and additional funding during the Establishment Period (Schedule 1, cl 6(1)-(2)). The precise amounts are stated , e.g. Commonwealth $295.8m, NSW $75.6m, Victoria $35.1m, WA $8.0m (Schedule 1, cl 6(1)(a)).
To transfer, lease or grant access to rail freight assets: the Agreement requires the Commonwealth, States and “other States” to transfer ownership of, give long term leases of, or grant access to assets identified in the Company’s Corporate Plan; the State has discretion whether to transfer ownership versus lease/access, but must do so within a reasonable time and with the objective of completing transfers by the end of the Transition Period (Schedule 1, cl 5(5), cl 5(6)(a)).

Duties on rail authorities

To enter into contracts for services during the Transition Period at prices structured to permit the Company to meet reasonable costs, then to move towards NRC Standard Costs (clause 5(3)(a)).
To maintain and make available externally audited accounts of the costs of carrying out contract obligations (Schedule 1, cl 5(3)(c)).
To honour schedules of transfer and pay or receive liquidated damages as agreed by contract (cl 5(3)(b)).

Duties on the Company (NRC)

To operate on a commercial basis and conduct national interstate rail freight operations in accordance with the Corporate Plan (Recital B(a)(i), Schedule 1 cl 5(1)(c)-(d)).
To negotiate Best Practice Industrial Agreements and have these in place before committing capital upgrades (Schedule 1, cl 5(1)(a)-(b)).
To collect and retain all revenue generated by interstate freight carriage from the date of commencement (Schedule 1, cl 5(1)(e)).
To identify and request transfer/lease/access to assets in its Corporate Plan and to assume functions from rail authorities pursuant to the timetable and list of functions (Schedule 1, cl 5(4) and cl 5(5)). Note Schedule 2 (list of functions) has been repealed by later amendment; the Agreement still contemplates functions of a type listed in Schedule 2 when it was in force.

Rights of shareholders and governments

Board composition and nomination rights during the Establishment Period: nine Directors, with appointment rights allocated to the Commonwealth and the various States (Schedule 1, cl 4(4)). The Commonwealth nominates three directors (including the Chairperson and an ACTU nominee), NSW two, Victoria two, WA one, and the Managing Director is appointed by the Board (cl 4(4)-(5)).
Voting and removal rights exercised to ensure nominated directors can be removed at the request of the nominating government during the Establishment Period (Schedule 1, cl 4(5)).
Share issuance rights, conversion and bonus share issuance: A convertible shares to be issued for cash and for asset transfers according to valuation rules; conversion of A shares to ordinary or preference shares required at the end of the Establishment Period (Schedule 1, cl 6(6)-(7), cl 6(11)).
Right of other States to become shareholders under set conditions, with a route for subsequent rights to purchase shares on same terms as offered to third parties (cl 6(8)-(11)).

Dispute and enforcement rights

Conciliation followed by arbitration under UNCITRAL rules is the prescribed route for disputes under the Agreement (Schedule 1, cl 7). The matters listed include asset identification and valuation, service contract terms, payment schedules and access charges (cl 7(a)-(f)).
The Agreement grants the Commonwealth, States and other States the first option to acquire assets on winding up within eight years of commencement (cl 10).

Limitations and status provisions

The NRC is not a Crown instrumentality, agent or public authority and the State does not guarantee its obligations (s 8). That affects creditor and contractor rights and the expectations of third parties dealing with the Company.
The Act binds the Crown (s 4), but the Company does not represent or constitute the Crown (s 8).

Procedural duties

Tabling requirements for variations: where Relevant Ministers vary provisions of the Agreement, certain variations must be tabled in Commonwealth and State Parliaments and will take effect unless disallowed (Schedule 1, cl 8(3)-(4)).
Governance restriction during the Establishment Period that Commonwealth and States shall not mortgage or encumber their shares (Schedule 1, cl 9(2)).

Each of these duties and rights interacts with the others by shaping incentives. For example, the Company’s duty to achieve NRC Standard Costs and the right to retain revenue shifts incentive to cost reduction; in turn, States’ duty to make transfer payments while retaining some governance controls shapes how quickly assets and functions are transferred.

The Act itself does not create a new statutory criminal penalty scheme or administrative fines for non‑compliance. Instead, the enforcement architecture is built from contractual, corporate and arbitration mechanisms embedded in the Agreement and from ordinary company and contract law. The following describes the enforcement paths and any procedural limits in the text.

Contractual enforcement

The Agreement anticipates contractual relationships between the Company and rail authorities (Schedule 1, cl 5(3), cl 5(5)). Enforcement of service contracts, access contracts and payment schedules will proceed under normal contract law. Contracts under the Agreement provide for liquidated damages to be agreed between parties for failures to meet performance standards (cl 5(3)(b)).
Where an assessed initial cost of a transferred function exceeds NRC Standard Costs, the Agreement envisages negotiated schedules of payments by the Commonwealth or State to the Company to bridge the gap while cost reductions are achieved (cl 5(4)(b)). Failure to implement such payment schedules would be a contractual breach enforceable at law or in arbitration as provided in the Agreement.

Arbitration and dispute resolution

The Agreement prescribes conciliation followed by arbitration under the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL) (Schedule 1, cl 7). The Agreement lists the matters that may be referred, including asset identification and valuation, service contract terms, payment schedules and access charges (cl 7(a)-(f)). Arbitration under UNCITRAL leads to awards that are typically enforceable in domestic courts under the relevant international conventions and domestic arbitration legislation, subject to usual grounds for refusal of enforcement.
Because the Agreement requires conciliation first and arbitration thereafter, parties consensually limit resort to domestic courts for listed disputes. The Act expresses an intention to alter or vary s 85 of the Constitution Act 1975 to the extent necessary to prevent bringing before the Supreme Court an action of the kind referred to in section 10(4) (s 13). That indicates a legislative aim to channel certain disputes away from the State Supreme Court and into the Agreement’s dispute resolution process. Note: section 10(4) in the printed Agreement is referenced; later amendments have repealed some sections of the Act and Schedule 2, which complicates the direct availability of particular actions in court.

Company and corporate routes

Since the NRC is a company incorporated under the Corporations Law (Schedule 1, Part I, definition of “Company” and cl 4(1)(b)), corporate controls and remedies available under the Corporations Law (and successor Corporations Act) apply to rights and duties within the Company, including directors’ duties, shareholder remedies and insolvency proceedings.
Section 8 makes explicit that the Corporation is not an agent or instrumentality of the Crown and, for example, is not a public authority for the purposes of Corporations Law (s 8(b)). That limits any statutory remedies that depend on governmental status and clarifies that creditors cannot rely on a state guarantee.

Court limitation and forum effects

The Act’s s 13 contains an express legislative statement of intention to alter or vary s 85 of the Constitution Act 1975 to prevent bringing certain actions before the Supreme Court. The Agreement’s dispute resolution clause then provides the private forum. The practical legal effect may be to require parties to rely on conciliation and arbitration for listed disputes, subject to the usual judicial supervisory and enforcement roles under arbitration statutes.

Practical consequences for enforcement

Enforcement therefore depends heavily on contractual drafting, the Company’s solvency, shareholders’ willingness to fund, and the effective operation of arbitration. Since no statutory penalty regime is included, remedies are those of contract, directors/shareholder remedies, arbitration awards and corporate insolvency procedures.
The Act’s provision requiring appropriation of State funds (s 6(2)) and the stamp duty requirement (s 12) create administrative compliance obligations where failure could lead to intergovernmental disputes or delays in transfers, potentially precipitating contract claims or arbitration.

In short, the Act creates an enforcement environment that privileges negotiated contractual mechanisms and international arbitration rather than statutory penalties or administrative sanctions under the Act itself. The express statement that the State does not guarantee the Company (s 8(c)) affects creditors’ enforcement expectations.

The Act and Agreement sit at the intersection of constitutional referral powers, corporations law, state fiscal law, industrial and competition law. The principal statutory and legal touchpoints are in the text of the Act and the Agreement.

Constitutional power and referrals

The Agreement contemplates the Commonwealth holding shares in a company that may engage in intra‑state rail services. Because that matter touches on State intrastate powers, the Act contains an express referral of the “matter of the Commonwealth holding shares ... to the extent to which it is not otherwise included in the legislative powers of the Commonwealth” to the Commonwealth Parliament (s 7(1)). That referral is time‑limited and can be terminated by proclamation (s 7(2)-(3)). The Agreement’s Part III likewise requires States to take practicable steps to enact legislation including referring to the Commonwealth under s 51(xxxvii) to allow the Commonwealth to hold shares when the Company engages in intrastate services (Schedule 1, cl 3(1)(a)(i)).
The relationship to the Constitution Act 1975 is explicit in s 13’s stated intention to alter or vary s 85 to prevent certain actions in the Supreme Court, thus seeking to channel disputes into private dispute resolution mechanisms.

Corporations and company law

The Company is to be incorporated under the Corporations Law in the Australian Capital Territory (Schedule 1, Part I definitions and cl 4(1)(b)). Directors, shareholder rights, conversion of shares, bonus share issuance and issues of shares are governed by the Company’s Memorandum and Articles and by relevant corporations legislation.
Section 8(b) of the Act declares the Corporation is not a public authority “for any purpose (e.g. the purposes of the Corporations Law)”. The endnotes refer to the Corporations (Ancillary Provisions) Regulations 2011 (Regulation 5) for the meaning of public authority obligations; however, the Act’s text itself disclaims public authority status for the NRC (s 8(b)), which can affect the application of statutory exemptions or obligations that depend on status as a public authority.

Industrial law and employment regulation

The Agreement expressly requires the Company to operate under Best Practice Industrial Agreements and enterprise awards (Schedule 1, Recital B(a)(iii), cl 5(1)(a)-(b)). This interacts with federal and state industrial relations frameworks that regulate enterprise bargaining, award formation and dispute resolution.
The Recitals and cl 5(1) also disavow the Company being financially responsible for redundancies in rail authorities arising from transfer of functions (Recital B(a)(vii)), creating potential legal and policy interactions with redundancy pay and industrial entitlements under industrial law.

Competition and trade practices

The Recitals state the Company will be “subject to the Trade Practices Act 1974 (Commonwealth)” (Recital B(a)(i)). That places the Company within national competition law oversight as expressed at the time of the Agreement. Modern readers should note the Act of Parliament referenced is the predecessor to the Competition and Consumer Act 2010; the Agreement’s text remains an historical statement of intention that the Company operate under competition law.

Taxation and stamp duty

The Act contains an explicit requirement regarding stamp duty and other fees or charges: “A direction must not be made under section 10 unless the Minister is satisfied that arrangements have been made for the payment to the State of an amount of money in respect of stamp duty and other fees or charges that, but for this Act, would be payable in respect of the transfer of the rail freight assets by operation of this Act” (s 12). That links transfers to existing tax and duties regimes. It should be noted that section 10 referenced in s 12 was later repealed (see amendment history), creating potential procedural and interpretive issues for implementation.
General State and Commonwealth taxation laws continue to apply to payments, valuations and conversion arrangements; the Agreement prescribes valuation methodologies (cl 6(3)-(6)) which interact with tax valuation standards.

Arbitration and international law

The Agreement prescribes arbitration under UNCITRAL rules (Schedule 1, cl 7). That choice interacts with domestic arbitration enforcement laws (e.g. the International Arbitration Act and relevant state arbitration legislation) which provide for recognition and enforcement of foreign arbitration awards, and for limited judicial review.

Transport and planning legislation

The Act was later classified as “transport legislation” under the Transport Integration Act 2010 by insertion of s 3A (s 3A was inserted by the Transport Integration Act 2010). That classification may import principles or cross‑references affecting how the NRC’s operations are viewed in the state’s transport policy framework and could affect interface with planning, safety and access regulation administered under transport law.

Repeals and amendments

Several parts of the original Act or the Schedule have been repealed by later amending Acts. Schedule 2 (then listing specific functions) was repealed (see endnotes). Section 10 (referred to in s 12 and s 13) was repealed by the Transport Acts (Amendment) Act 1998. These post‑enactment changes can leave cross‑references that complicate the interaction with other laws and the practical implementation of the Agreement’s provisions.

Parliamentary tabling and procedural law

Variations of the Agreement that do not affect other States can be made by Relevant Ministers and must be tabled in Commonwealth and State Parliaments and will take effect unless disallowed within 15 sitting days (Schedule 1, cl 8(3)-(4)). This creates an administrative law interaction with parliamentary procedures for intergovernmental agreements.

In sum, the Act and Agreement have been drafted to supervene many procedural and operational items into the intergovernmental contractual architecture, but they remain subject to and interdependent with constitutional referral mechanics, corporations law, competition and industrial law, tax law (notably stamp duties), arbitration enforcement regimes and the state transport policy framework.

Post‑enactment amendments and repeals have materially altered the Act’s text and some of the Agreement’s operative references. The Version and Endnotes included with the Act set out the key amending instruments and their effects. The principal amendments recorded in the Act’s endnotes are:

Transport Acts (Amendment) Act 1998, No. 16/1998
- Assent 28 April 1998. Certain provisions commenced on 4 March 1999 (ss 3-7). This amending Act repealed parts of the original Act and Schedule: section 10 was repealed unproclaimed by s 4(1) of the Transport Acts (Amendment) Act 1998 (Endnotes). Section 11 was also repealed unproclaimed by the same Act. Part 6 heading and section 15 were repealed by s 7 of No.16/1998 (as recorded in the text).
Transfer of Land (Single Register) Act 1998, No. 85/1998
- Assent 17 November 1998. Commencement: certain items (s 24(Sch. item 44)) commenced 1 January 1999. This amending Act amended s 11 of the National Rail Corporation (Victoria) Act 1991 before that section itself was later repealed (Endnotes).
Transport (Further Amendment) Act 2001, No. 54/2001
- Assent 2 October 2001. Commencement: s 42 on 30 June 2003. This amending Act amended the definition of “rail freight assets” and repealed other earlier provisions flagged in the table. The updated s 3 defers to amendments made by this amending Act (Endnotes).
Transport Integration Act 2010, No. 6/2010 (as amended by No. 45/2010)
- Assent 2 March 2010. Commencement: S. 24(5)(Sch. 1 item 8) on 1 July 2010. This Act inserted s 3A into the National Rail Corporation (Victoria) Act 1991, classifying the National Rail Corporation Act as “transport legislation” within the meaning of the Transport Integration Act 2010 (s 3A). This may have downstream consequences for how the Act is interpreted in the context of transport integration principles.
Later subordinate instruments and regulations
- The endnotes refer to the Corporations (Ancillary Provisions) Regulations 2011, S.R. No. 34/2011 in relation to the interpretation of s 8(b) (Endnotes). This is not an amendment to the Act but an interpretive reference for how “public authority” may be read under Corporations‑related regulation.

Practical consequences of the amendment history

Repeal of Schedule 2: Schedule 2 (originally intended to list specific functions to be transferred) was repealed by No. 16/1998 s 4(2). However, the Agreement’s cl 5(4) continues to refer to functions “listed in Schedule 2” and to transfer timetables set out in the Corporate Plan. That creates a gap between the Agreement’s detailed expectation and the present statutory schedule; in practice, the parties were likely to rely on the Corporate Plan and bilateral agreements rather than the repealed schedule.
Repeal of section 10 and consequential references: because s 12 continues to refer to “a direction must not be made under section 10” while s 10 itself was repealed by the Transport Acts (Amendment) Act 1998, the Act contains a cross‑reference to a repealed provision. This is a drafting residue that affects implementation and should be cleared or interpreted in context by administrators and counsel.
Transport Integration Act inclusion: insertion of s 3A makes the Act subject to transport integration principles, potentially amplifying the regulatory and policy framework in which the NRC operates, but the text of the Agreement remains the operative source for transfers, valuations and dispute resolution.

Readers should treat the Agreement as originally negotiated but read it together with the amendment history because repeals and amendments affect implementation, references and some subject‑matter lists. Where the Agreement refers to now‑repealed parts of the Act or schedules, parties must rely on contemporaneous understanding, bilateral arrangements and the Corporate Plan to deliver on transfer, valuation and functional arrangements.

The printed Act and its endnotes do not record any judicial decisions or reported litigation under the National Rail Corporation (Victoria) Act 1991 or the Agreement. The endnotes reproduce Second Reading speeches and parliamentary procedure statements, but they do not list cases or judicial determinations.

What is explicit in the text is an intention to route many disputes into conciliation and arbitration (Schedule 1, cl 7), and a legislative intention to vary the State constitutional framework to prevent certain actions being brought before the Supreme Court (s 13). That procedural design reduces the likelihood of domestic court litigation on the core items the Agreement lists (asset identification and valuation, contract terms, payment schedules, access charges), instead channeling such disputes into arbitration under UNCITRAL rules , a forum that typically leads to enforceable awards rather than reported judicial opinions.

Because the Agreement prescribes UNCITRAL arbitration, parties with disputes are likely to have relied on international arbitration panels rather than State court judgments, and such awards are enforceable in domestic courts under applicable arbitration legislation. For research purposes, any litigation history would therefore likely appear as enforcement proceedings or arbitration enforcement challenges in domestic courts rather than as judgments on the core merits in State courts. The Act’s text and endnotes contain no catalogue of such proceedings.

Users seeking litigation history should search arbitration award registries, the International Arbitration Act files, and State enforcement decisions in which arbitration awards or related orders were registered or challenged. None of those sources appear in the Act’s text; the Act itself contains no named cases and the endnotes do not cite judicial authority.

A number of practical, drafting, and implementation risks arise directly from the Act and the Agreement as printed. These are the concrete items to watch for in negotiation, counsel advice and administrative rollout.

Cross‑reference to repealed sections

Section 12 conditions a direction under section 10 on arrangements to pay stamp duty and other charges. Section 10 has been repealed (see amendment history). The statute therefore contains an orphaned cross‑reference. In practice this may create uncertainty about the Ministerial power to make directions linked to asset transfers and the fiscal check the statute intended to impose. Administrators and counsel must reconcile s 12 with the current statutory landscape and any replaced mechanisms.

Schedule 2 repeal vs continuing references

Schedule 2, which originally listed specific functions to be transferred, was repealed (amendment, No. 16/1998). Yet the Agreement’s provisions (e.g., cl 5(4)) continue to refer to functions “listed in Schedule 2.” That results in an operational gap: implementers cannot rely on the repealed schedule for certainty about which functions transfer. In practice parties must rely on the Corporate Plan and bilateral transfer agreements; failure to coordinate could trigger valuation disputes subject to arbitration.

Reliance on the Corporate Plan and bilateral valuation

The Agreement places heavy weight on the Corporate Plan to identify assets and timetable transfers (cl 5(4)-(5)). The valuation methodology for assets transferred is detailed (cl 6(3)-(6)), including indexing to CPI (cl 6(5)), but these valuations require bilateral agreement or arbitration if disputed (cl 7). Valuation disputes may be high‑stakes and technically complex, increasing arbitration risk and transaction costs.

Stamp duty and State taxation mechanics

The Act requires satisfaction that arrangements exist to pay stamp duty and other charges in respect of asset transfers (s 12). Given the repeal of the specific direction power elsewhere, implementers must ensure that appropriate commercial arrangements are in place with State taxation authorities. Failure to do so may delay transfers or provoke disputes over who bears the fiscal cost.

Non‑guarantee clause and financing implications

Section 8(c) states the Corporation’s obligations are not guaranteed by the State. Lenders and contractors must therefore look to the company’s balance sheet, shareholder support and contractual payment streams rather than a government backstop. Because shareholders are restricted from mortgaging their shares during the Establishment Period (Schedule 1, cl 9(2)), this reduces one source of security for external financing.

Share conversion and special resolution requirements

The conversion of A convertible shares and the issue of bonus ordinary shares depend on profits/reserves and special resolutions (cl 6(7)-(11)). This may create timing and governance friction where asset values are uncertain or valuations are completed post‑Establishment Period. Shareholders must coordinate to pass required resolutions; failure to do so can leave share capital structures in limbo.

Dispute resolution route chosen (UNCITRAL)

The Agreement prescribes arbitration under UNCITRAL (cl 7). Arbitration can be efficient for certain disputes but is expensive and provides limited appellate review. Parties should plan for the costs and time of international commercial arbitration, and for the need to enforce awards domestically.

Intended curtailment of Supreme Court jurisdiction

Section 13 states an intention to alter s 85 of the Constitution Act 1975 to prevent bringing certain actions before the Supreme Court. That is a legislative intention rather than an explicit statutory ouster in its own right, and may be subject to judicial interpretation. Practitioners should not assume automatic ouster of judicial remedies without careful analysis in any given dispute.

Board composition and political risks

The Agreement allocates director nominations to governments for the Establishment Period and includes politically nominated director slots (cl 4(4)). This creates governance tensions if shareholder objectives diverge from commercial management, and may complicate later transition to a purely commercial board.

Intergovernmental variation and parliamentary disallowance

Variations of the Agreement that affect other States must be tabled and are subject to parliamentary disallowance (cl 8(3)-(4)). That introduces political risk for interstate arrangements and timing delays where parliamentary processes intervene.

Repeals and administrative uncertainty

The several repeals and amendments recorded in the endnotes mean administrators must reconcile the present Act with the as‑enacted Agreement text. Where the Agreement references repealed Act sections or schedules, implementers must be careful to reconstruct operative arrangements from the Agreement, current statutes and bilateral instruments.

No express statutory penalties

The Act provides no administrative penalty regime for parties failing to comply with Agreement obligations. Enforcement relies on contracts, corporate controls and arbitration, which may not produce quick relief in fiscal crises.

Each “gotcha” flows directly from the text. Parties should document decisions, valuations, funding arrangements and parliamentary approvals carefully, and plan for arbitration costs and tax administration engagement. Counsel should advise on how repeals affect rights (particularly Schedule 2 and section 10 cross‑references) and ensure that governance arrangements (director nominations, voting, share conversion) are implemented and recorded in corporate minutes and shareholder resolutions.

Compliance under this Act and the underlying Agreement is primarily an administrative, contractual and corporate exercise rather than one requiring licensing or regulatory permits. The following practical steps translate statutory and contractual obligations into an operational checklist for state agencies, the Company, rail authorities and advisers.

For State Treasury and sponsoring departments

Appropriation: ensure Parliamentary appropriation is in place for any State money required under the Agreement (s 6(2)). Prepare budget bids timed to the Company’s calls under Schedule 1, cl 6 and its schedule for A convertible share calls (cl 6(1)-(2), cl 6(4)).
Equity payments: schedule the initial capital contributions precisely (Schedule 1, cl 6(1)(a) , e.g., Victoria $35.1m) and the percentages for additional funding during the Establishment Period (Schedule 1, cl 6(2)(a)). Prepare cash flow models and execute applications for A convertible shares where necessary (cl 6(1)(b)-(c)).
Stamp duty and fees: because s 12 conditions directions on arrangements for payment of stamp duty and other fees, engage State revenue authorities in writing to confirm liability and to document the mechanism for payment on transfers. Where statute references a repealed power, document the administrative alternative and obtain legal sign‑off.
Valuation governance: adopt the valuation methodologies in Schedule 1, cl 6(3)-(6) as the basis for negotiating asset transfers. If the State expects an independent valuation, ensure nomination rights and arbitration clauses are preserved for disputes.

For the Company (NRC)

Corporate Plan: prepare and finalise the Corporate Plan promptly. The Agreement makes the Corporate Plan the central instrument for identifying assets required by the Company and the timetable for transfer (cl 5(5)). Document in the Plan which assets the Company intends to acquire, lease or to which it requires access.
Industrial agreements: negotiate Best Practice Industrial Agreements before committing to capital upgrades and make sure the enterprise award basis is documented (Schedule 1, Recital B(a)(iii), cl 5(1)(a)-(b)). Maintain records showing the basis on which cost savings are forecast to reach NRC Standard Costs.
Contracting and accounts: where entering contracts for services with rail authorities, ensure the initial contract price basis is documented as required by cl 5(3)(a)(i)-(ii), and provide for external audit of accounts in the form specified by the Company’s auditors (cl 5(3)(c)). Keep accounts for at least 12 months after the expiration of the contract as required.
Dispute readiness: for anticipated valuation, asset identification or access disputes, prepare a dispute management plan that assumes conciliation then arbitration under UNCITRAL. Build arbitration budgets into the project plan.

For rail authorities

Contracts for services: when entering contracts with the Company under cl 5(3), document initial price setting, performance standards and liquidated damages. Provide audited cost accounts to the Company as required and maintain such accounts for the required retention period (cl 5(3)(c)).
Asset access: where assets remain necessary for intrastate services or passenger services and an asset is acquired by the Company, negotiate access contracts that specify maintenance standards and cost allocation consistent with cl 5(5)(c) and (a)-(d).

For shareholders and corporate governance

Director nominations and voting: implement board appointment procedures in accordance with Schedule 1, cl 4(4). Keep a formal record of the allocation of nomination rights and removal procedures envisaged in cl 4(5). Ensure shareholder resolutions required for conversion or bonus share issuance are scheduled and recorded before the end of the Establishment Period (cl 6(7), cl 6(11)).
Share encumbrance restriction: do not mortgage or otherwise encumber government shares during the Establishment Period (Schedule 1, cl 9(2)); where external finance is required, structure security against company assets or cashflows rather than government shareholdings.

For legal and tax advisors

Interpret cross‑references: identify and advise on cross‑references to repealed provisions (notably s 10 and Schedule 2) and recommend formal ministerial instruments, contractual protections or memorandum arrangements to fill any practical gaps.
Stamp duty planning: prepare written confirmation from State revenue offices on the timing and amount of stamp duty and other charges that would otherwise be payable, and document arrangements for payment to satisfy s 12’s proviso and administrative expectations.
Arbitration clauses and enforcement: craft arbitration readiness and enforcement advice, including likely venues, choice of law and seat, confidentiality, and the interplay with domestic arbitration and enforcement statutes.

For Parliamentarians and Ministers

Tabling and disallowance: where a variation to the Agreement is made under Schedule 1, cl 8(3)-(4), ensure the variation is tabled in the Commonwealth and State Parliaments within 15 sitting days and track disallowance windows. Prepare briefing materials to anticipate parliamentary questions and possible disallowance.

For financiers and contractors

Assess non‑guarantee status: perform due diligence that recognises s 8(c) , the State does not guarantee obligations. Price risk and security accordingly, using company assets, contract revenues and other commercially available security.
Understand liquidation rights: in the event of winding up within eight years of commencement, the Commonwealth and States have first option to acquire assets (Schedule 1, cl 10). Factor that into long‑term asset‑backed financing calculations.

Procedural documentation and record keeping

Maintain contemporaneous minutes of board and shareholder meetings addressing share issues, valuations, resolutions for conversion and the Corporate Plan’s asset list.
Archive external auditor reports and accounts provided or received under cl 5(3)(c).
Preserve correspondence with State revenue offices regarding stamp duty and other taxes to evidence compliance with s 12.

In short, compliance requires close coordination between finance, legal, operational and political stakeholders, advance engagement with revenue authorities, disciplined valuation processes linked to the Corporate Plan, careful corporate governance for director nominations and share conversions, and contingency planning for arbitration. Given repealed cross‑references and the centrality of bilateral agreements, document every decision and agreement and ensure consistency between corporate records, ministerial directions and statutory obligations.

National Rail Corporation (Victoria) Act 1991

Plain English Summary

Deep Dive

What it does

Current sections

National Rail Corporation (Victoria) Act 1991

Source text: opening excerpt

1 National Rail Corporation (Victoria) Act 1991

Main concepts

Who it affects

Key duties and rights

Penalties and enforcement

How it interacts with other laws

Amendment history

Litigation history

Gotchas

How to comply