Railways (Access) Act 1998

The Act defines several foundational concepts in section 3. Access means the use of railway infrastructure. Railway infrastructure is broadly defined as the facilities necessary for the operation of a railway, including railway track, associated track structures, tunnels and bridges, stations and platforms, train control systems, signalling and communication systems, electric traction infrastructure, buildings and workshops, and associated plant machinery and equipment. However, the definition expressly excludes rolling stock, rolling stock maintenance facilities, office buildings, housing, freight centres, terminal yards and depots, and sidings or spur lines that are managed and controlled by a different person from the person who manages and controls the use of the railway (section 3(3) and (4)), unless the Minister declares otherwise (section 3(4)). Notably, these exclusions do not apply to sidings or spur lines associated with the railway constructed pursuant to the TPI Railway and Port Agreement (section 3(7)). The term railway owner means the person having the management and control of the use of the railway infrastructure; this is not limited to the owner of the land or the infrastructure in a proprietary sense but captures the operator who controls access. The railways network is defined as comprising all Government railways as at the date of Royal Assent (30 November 1998), all railways on corridor land as defined in the Rail Freight System Act 2000, the railway constructed under the TPI Railway and Port Agreement, and any railway declared by the Minister by Gazette order to be part of the network (section 3(1) and (2)). The Code is the instrument established under section 4, and the Regulator is the Economic Regulation Authority established under the Economic Regulation Authority Act 2003. The Competition Principles Agreement made on 11 April 1995 by the Commonwealth, states and territories provides the overarching policy rationale; section 4(1) expressly requires the Code to give effect to that agreement in respect of railways to which it applies. The Act also clarifies the scope of access rights in section 3A: without limiting the kinds of rights that can arise under an access agreement, those rights may entitle a person who has access to railway infrastructure to use land managed and controlled by the railway owner, and to construct and operate a rail or other connection to the railway infrastructure for the purpose of exercising those rights. This provision ensures that access is not confined to running trains on existing tracks but may include ancillary use of land and construction of connections. The concept of a route is defined in section 5(5) as a particular part of the railways network and the associated railway infrastructure; it is used in the context of the declaration process under section 4(2)(b). The Act also introduces the concept of a government railway under section 3, which means a railway under the management and control of the Public Transport Authority as provided by section 13 of the Government Railways Act 1904. The TPI Railway and Port Agreement is defined in section 3(1) by reference to the Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Act 2004 and includes, under section 3(6), the Christmas Creek to Cloud Break spur line taken to have been part of the railway since construction was completed. The Act also contemplates modifications under the Railway (Roy Hill Infrastructure Pty Ltd) Agreement Act 2010 Part 3, which are noted in the compilation but not set out in the principal Act. Finally, section 31(2) defines confidential information for the purposes of the protection regime as information that has not been made public and that is by its nature confidential, was specified to be confidential by the person who supplied it, or is known by a person using or disclosing it to be confidential.

The Act imposes obligations and confers rights on a defined set of persons. The primary duty-bearers are railway owners, defined in section 3(1) as the person having the management and control of the use of railway infrastructure. This includes the Public Transport Authority for Government railways (section 3 definition of Government railway and section 3(1) Authority definition), as well as private operators such as the entity operating under the TPI Railway and Port Agreement and entities operating under the Roy Hill agreement. Railway owners must comply with the segregation duties in Part 4 Division 3, including obtaining Regulator approval for segregation arrangements (section 29), protecting confidential information (section 31), avoiding conflicts of interest among relevant officers (section 32), performing access-related functions fairly (section 33), and maintaining separate accounts and records (section 34). They must also comply with information notices from the Regulator under section 21, facilitate entry and inspection under section 22A, and must not engage in conduct aimed at hindering or preventing access under section 34A. The Regulator is the Economic Regulation Authority. Its functions include monitoring and enforcing compliance by railway owners with the Act and the Code (section 20(1)), determining certain requirements in relation to access that are binding on the railway owner and on persons making proposals and on arbitrators (section 4(2)(d)), approving segregation arrangements (section 29), and carrying out reviews of the Code (section 12). The Regulator may exercise powers to obtain information, inspect documents, enter premises, and issue directions. Persons who seek access to railway infrastructure (access seekers) are the intended beneficiaries of the regime. They have the right to make proposals for access under the Code, to negotiate access agreements with the railway owner, and to have disputes resolved by arbitration under the Code (section 6(1)(b)). They also have the right to apply to the Supreme Court for an injunction to restrain conduct that amounts to a breach of the Code where arbitration is not available (section 37(2)(b)). A person who has access under an access agreement is also prohibited from engaging in conduct aimed at hindering or preventing access by another person to any part of the railways network to which the Code applies (section 34A(2)). The Minister is responsible for establishing and amending the Code (sections 4, 10, 11), for prescribing routes (section 4(2)(b) read with section 5), for declaring new railways to be part of the railways network (section 3(2)), and for making orders affecting the application of the Code to the TPI Railway (section 11B). The Minister must consult with railway owners on proposed amendments or replacements of the Code that may affect them (section 11A). The Authority means the Public Transport Authority of Western Australia (section 3(1)). Under Part 4, the Authority must make administrative arrangements within its organization for carrying out its access-related functions (section 26). Officers of the Authority include persons in the Department as defined in the Government Railways Act 1904 (section 24 definition of officer of the Authority). Relevant officers, defined in section 24 as officers or employees of a railway owner who are in any way concerned in the performance of access-related functions, are subject to the conflict of interest and fairness duties in sections 32 and 33. Arbitrators are appointed by the Regulator from panels established under section 6(1)(c) to resolve disputes under the Code. Existing parties to agreements for the use of railway infrastructure made before the Code commenced are also affected: section 7 preserves those agreements and provides that the making of the Code does not affect their terms or operation and does not give a party any ground for non-compliance. Finally, the Act affects persons through whom a railway owner derives title: section 3B provides that where a railway owner’s right to manage and control is for a limited term or subject to a restriction, the railway owner cannot grant access rights greater than its own, and upon premature termination the access rights continue as if given by the successor unless notice of termination is given within three months.

The Act establishes a detailed framework of duties on railway owners and corresponding rights for access seekers and the Regulator. The core duty on a railway owner is the prohibition in section 34A(1) against engaging in conduct aimed at hindering or preventing access by any person to a part of the railways network to which the Code applies, the making of access agreements, or the access to which a person is entitled under an agreement or arbitration determination. This prohibition is subject to conduct that the railway owner is entitled to engage in under the Act, the Code, another written law, or an access agreement (section 34A(3)). A railway owner must also make arrangements to segregate its access-related functions from its other functions (section 28(1)) and must have appropriate controls and procedures to ensure those measures operate effectively and are complied with (section 28(2)). Before putting in place or varying any segregation arrangement, the railway owner must obtain the Regulator’s approval (section 29(1)). The Regulator may confer with the railway owner on any matter relating to how the segregation obligations are to be carried out, and if agreement is not reached, the Regulator may give written directions with which the railway owner must comply (section 29(2) and (3)). Failure to comply with an approved arrangement, an agreement, or a direction is an offence with a penalty of $100,000 (section 29(4)). The railway owner must ensure there is an effective regime for protecting confidential information relating to the affairs of persons seeking access or rail operators from improper use and from disclosure by relevant officers or other persons except for proper purposes (section 31(1)). The railway owner must ensure that relevant officers do not have a conflict between their duties in performing access-related functions and their duties in other business of the railway owner (section 32). In performing their functions, relevant officers must not have regard to the interests of the railway owner in a way that is unfair to persons seeking access or to other rail operators (section 33). The railway owner must ensure its accounts and records are in a form that enables all income, expenditure, assets and liabilities relating to access-related functions to be properly recorded and distinguished from other income, expenditure, assets and liabilities, and where necessary allows apportionment in a fair and reasonable manner (section 34). The railway owner must comply with a notice from the Regulator requiring it to send information, give periodical returns, or send any book, document or record (section 21). Failure to comply carries a penalty of $100,000 and a daily penalty of $20,000 (section 21(2)). The railway owner must facilitate entry and inspection by the Regulator onto premises used in connection with the operation of a part of the railways network to which the Code applies (section 22A(2)), with a penalty of $100,000 for non-compliance. A person who is a railway owner or who has access under an access agreement must not engage in conduct aimed at hindering or preventing access by another person (section 34A(1) and (2)), with a penalty of $100,000 and a daily penalty of $20,000. On the rights side, a person seeking access has the right to make a proposal under the Code and to have disputes resolved by arbitration (section 4(2)(a)(ii) and section 6(1)(b)). Under section 3A, rights under an access agreement may include the right to use land managed and controlled by the railway owner and to construct and operate a rail or other connection to the railway infrastructure for the purpose of exercising access rights. The provisions of the Act about agreements and determinations extend to these matters (section 3A(2)). Where the railway owner’s right to manage and control the infrastructure is for a limited term or subject to a restriction, the railway owner cannot give access rights greater than its own (section 3B(1)). Upon premature termination of that right, the access rights continue as if given by the successor railway owner, and the agreement has effect as if the successor were the original party, unless a party gives written notice of premature termination within three months (section 3B(2)). The Regulator has the right to exercise powers of entry, inspection, information gathering, and document retention under Part 3, and must protect confidential information from improper use or disclosure (section 23). The Regulator also has the function of carrying out reviews of the Code at three years after its commencement and every five years thereafter (section 12). A person against whom proceedings for an offence under the Act are brought may rely on legal professional privilege to refuse to send a statement or produce a document (section 22C), and an individual is not excused from complying with a section 21 notice on self-incrimination grounds, but the statement or the fact of production is not admissible in evidence against the individual except in proceedings for perjury or for an offence under the Act arising out of false or misleading information (section 22D).

The Act provides for a combination of criminal penalties, injunctive relief, and arbitration as enforcement mechanisms. The principal offence provisions carry a penalty of $100,000 and, in some cases, a daily penalty of $20,000. Under section 21(2), a railway owner who fails to comply with a notice to provide information, periodical returns, or documents to the Regulator faces a penalty of $100,000 and a daily penalty of $20,000. Under section 22A(2), a railway owner who fails to facilitate entry and inspection by the Regulator onto premises used in connection with a part of the railways network to which the Code applies faces a penalty of $100,000. Under section 22B(1), a person who hinders or obstructs the Regulator in exercising any power conferred by Part 3 faces a penalty of $100,000. Under section 22B(2), giving information to the Regulator that the person knows is false or misleading in a material particular carries a penalty of $100,000. The Regulator is itself subject to a penalty of $100,000 under section 23 if it contravenes the duty to protect confidential information from use or disclosure except as permitted. Under section 29(4), a railway owner that fails to comply with an approved segregation arrangement, an agreement with the Regulator on segregation matters, or a direction from the Regulator commits an offence with a penalty of $100,000. Under section 34A(1) and (2), engaging in conduct aimed at hindering or preventing access (subject to the exception for conduct authorised under the Act, the Code, another written law, or an access agreement) carries a penalty of $100,000 and a daily penalty of $20,000. Notably, the obligation is framed in terms of conduct aimed at hindering or preventing, which does not require that the conduct actually succeeded in hindering or preventing access; the mens rea element is captured by the word aimed. In addition to these criminal penalties, the Act provides for civil enforcement through the Supreme Court. Under section 37(1), the Supreme Court may grant an injunction in such terms as it thinks fit if it is satisfied that a person has engaged in conduct that amounts to a breach of the Code or is proposing to engage in conduct that would amount to a breach, other than conduct for which a remedy by way of arbitration is available under the Code. An application for an injunction may be made by the Regulator or by a person to whose proposal under the Code for access the conduct or proposed conduct relates (section 37(2)). This means that the primary remedy for breach of Code obligations is arbitration where the Code provides for it; the injunction is a residual remedy for conduct not covered by arbitration. Critically, section 36(1) provides that the obligations imposed by the Code are enforceable by arbitration under the Code or by injunction under section 37, as the case may require, but a breach of those obligations does not give rise to an action for damages. This means that a person who suffers loss as a result of a breach of the Code cannot sue for damages in tort or contract for that breach; the only remedies are arbitration or an injunction. Section 36(2) further provides that sections 177 and 178 of The Criminal Code do not apply to the obligations referred to in subsection (1), which means that a breach of a Code obligation cannot be enforced as a criminal contempt or disobedience of a statute in the manner those Criminal Code provisions would otherwise allow. Section 35 preserves the enforceability of an access agreement as a contract and the availability of damages for a breach of the agreement, so the limitation in section 36(1) applies only to obligations imposed by the Code itself, not to contractual obligations in an access agreement. The Regulator also has powers to approve segregation arrangements and to give directions under section 29, and failure to comply with those directions is itself an offence. The Act does not provide for the Regulator to issue infringement notices or pecuniary penalty orders; the only court-based remedy is the injunction under section 37, which is discretionary.

The Act expressly addresses its relationship with several other enactments. Section 8 provides that the Code is not to contain any provision that is contrary to or inconsistent with the Rail Safety National Law (WA). This means that the access regime cannot override safety requirements imposed under the Rail Safety National Law; a railway owner could not be compelled by the Code to grant access if doing so would breach safety obligations under that law. The reference to the Rail Safety National Law (WA) was amended over time, most recently by the Rail Safety National Law Application Act 2024 section 58. Section 25 provides that Part 4 (administrative and accounting arrangements) has effect and is to be carried out despite the provisions of the Government Railways Act 1904. This ensures that the segregation, confidentiality, conflict of interest, fairness, and separate accounts duties in Part 4 apply to Government railways notwithstanding any inconsistent provisions in the Government Railways Act 1904. Section 7 provides that the making of the Code does not affect the terms and conditions or the operation of an agreement for the use of railway infrastructure made with a railway owner before the Code commenced, whether under section 61 of the Government Railways Act 1904 or otherwise. It also provides that the making of the Code does not afford a party to such an agreement any ground or reason for not complying with the agreement according to its terms. This preserves pre-existing contractual rights and prevents the Code from being used as a basis for repudiation or renegotiation. The Act is also affected by the Railway (Roy Hill Infrastructure Pty Ltd) Agreement Act 2010. Note 1M at the end of the compilation indicates that under Part 3 of that agreement Act, the Railways (Access) Act 1998 must be applied with modifications set out in that Part, and those modifications have effect on and from 15 August 2015 until that Part expires in accordance with section 15 of that Act. This means that the Act as it applies to the Roy Hill railway is not identical to the Act as set out in the principal text; a practitioner must consult the Roy Hill agreement Act to see the modified provisions. The Act also interacts with the TPI Railway and Port Agreement via sections 3(1) definition, 3(6) and (7), and 11B. Section 11B gives the Minister power to amend the Code by order for the purposes of its application to the railway constructed under that agreement, and where the railway is expanded or extended (including by a spur line), the Minister must amend the Code so that it applies to the expansion or extension. Sections 5 and 10 to 11A (which include the criteria for prescribing routes, the public consultation requirements, and the duty to consult railway owners) do not apply to an amendment under section 11B, and an amendment under section 11B(2) is not an amendment of the Code for the purposes of the disallowance provisions in section 9(2) to (6). The Act defines the railways network to include the railway constructed pursuant to the TPI Railway and Port Agreement (section 3(1)(ba)) and excludes sidings or spur lines from the definition of railway infrastructure generally but expressly disapplies that exclusion for the TPI Railway (section 3(7)). The Act is also part of a broader framework: section 4(1) requires the Code to give effect to the Competition Principles Agreement, which is a national intergovernmental agreement. The Regulator under this Act is the Economic Regulation Authority established by the Economic Regulation Authority Act 2003, which also has functions under other economic regulation statutes such as the Electricity Corporations Act 2005 and the Gas Pipelines Access (Western Australia) Act 1998. The transitional provisions in Schedule 3 to the Economic Regulation Authority Act 2003 (reproduced in the compilation notes) transferred the functions of the former Rail Access Regulator (established under the original Part 3) to the Economic Regulation Authority on 1 January 2004. The Act also interacts with the Public Transport Authority Act 2003, which established the Public Transport Authority as the body that manages Government railways. Section 27 of the Act provides that a delegation under section 19 of the Public Transport Authority Act 2003 of a function under this Act must be to an officer of the Authority, and a function performed in accordance with the delegation is taken to have been performed by the Authority. Finally, the Act provides in section 36(1) that obligations imposed by the Code are not enforceable by an action for damages; this interacts with the general law of contract (preserved by section 35 for access agreements themselves) and tort to limit remedies to arbitration or injunction.

The Act was originally enacted as the Government Railways (Access) Act 1998, number 49 of 1998, and received Royal Assent on 30 November 1998. Its short title was later changed to the Railways (Access) Act 1998 (see note 4 in the compilation table). The Act commenced in stages: sections 1 and 2 and Part 6 commenced on Royal Assent (30 November 1998); section 3 and Part 2 (the Code provisions) commenced on 12 August 2000; and Parts 3, 4, 5 and 7 commenced on 1 September 2001. The first significant amendment was by the Rail Freight System Act 2000 Part 5 Division 1, which commenced on 1 July 2000. This amendment inserted section 2A (object of the Act) and section 3A (scope of access rights), section 3B (access rights binding successors), amended the definition of railways network, and made numerous other changes to Parts 2, 3, 4 and 5 including the insertion of sections 22A, 22B, 22C, 22D, 34A, and amendments to sections 4, 6, 7, 11A, 12, 21, 23, 24, 25, 28, 29, 30, 31, 32, 33, 34, 36, 37. The Railways (Access) Amendment Act 2000 (No. 55 of 2000) commenced on 28 November 2000 and made further amendments including to the definition of railways network and to section 20 (functions of the Regulator) and inserted the concept of the Authority. The Machinery of Government (Planning and Infrastructure) Amendment Act 2002 section 63 made a minor amendment commencing 1 July 2002. The Public Transport Authority Act 2003 section 152 commenced on 1 July 2003 and substituted a new definition of Authority, amended the definition of officer of the Authority, inserted a new section 27 on delegation, and amended section 26. The Economic Regulation Authority Act 2003 Schedule 2 Division 12 commenced on 1 January 2004 and made the most significant structural change: it deleted the former Division 1 of Part 3 (sections 13 to 19B), which had established the Western Australian Independent Rail Access Regulator, and replaced references to that Regulator with references to the Economic Regulation Authority. It also deleted former sections 20A to 20C and former Divisions 3, 4 and 5 of Part 3 (sections 23A to 23G). The transitional provisions in Schedule 3 of that Act transferred all functions, decisions, proceedings, records, and bank accounts from the former Rail Access Regulator to the Authority (the Economic Regulation Authority). The Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Act 2004 Part 3 Division 1 commenced on 1 July 2008 and inserted the TPI Railway and Port Agreement provisions, including the definition in section 3(1), subsections 3(6) and (7), and section 11B. The Rail Safety Act 2010 Part 11 Division 5 commenced on 1 February 2011 and amended section 8 to refer to the Rail Safety National Law (WA) rather than the former Rail Safety Act 1998. The Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Amendment Act 2010 Part 3 commenced on 11 December 2010 and amended section 11B to require the Minister to amend the Code when the TPI Railway is expanded or extended. The Rail Safety National Law (WA) Act 2015 Part 5 commenced on 2 November 2015 and further updated section 8. Finally, the Rail Safety National Law Application Act 2024 section 58 commenced on 1 October 2024 and made a further amendment to section 8. In addition to these amendments, the Railway (Roy Hill Infrastructure Pty Ltd) Agreement Act 2010 Part 3 provides that the Railways (Access) Act 1998 must be applied with modifications set out in that Part, which have effect from 15 August 2015 until the expiry of that Part. The compilation note 1M advises that a modification to insert a section 12A has effect under that agreement.

The Act itself provides for a limited litigation framework. The principal avenue for dispute resolution under the Code is arbitration, not court proceedings. Section 6(1)(b) of the Act provides that the Code may make provision for the arbitration of disputes between a railway owner and a person who has made a proposal for access under the Code, and section 6(1)(c) provides for the establishment of panels of arbitrators and the appointment of arbitrators by the Regulator. The Act does not itself set out the arbitration procedures; those are to be contained in the Code. Section 36(1) expressly provides that obligations imposed by the Code are enforceable by arbitration under the Code or by injunction under section 37, and that a breach of those obligations does not give rise to an action for damages. This means that a person who suffers loss from a breach of Code obligations cannot sue for damages at common law or in equity; the only remedies are arbitration or an injunction. Section 36(2) removes the application of sections 177 and 178 of The Criminal Code, which might otherwise have provided a criminal remedy for breach of a statutory duty. Section 37 permits the Supreme Court to grant an injunction in such terms as it thinks fit if satisfied that a person has engaged in or is proposing to engage in conduct that amounts to a breach of the Code, but only where the conduct is not conduct for which a remedy by way of arbitration is available under the Code. This establishes a jurisdictional boundary: arbitration is the primary remedy; the Supreme Court’s injunctive jurisdiction is residual and only arises for conduct that falls outside the scope of the Code’s arbitration provisions. An application for an injunction may be made by the Regulator or by a person to whose proposal under the Code for access the conduct or proposed conduct relates (section 37(2)). The Act does not confer any other court-based remedies such as orders for specific performance, declarations, or damages for Code breaches. Section 5(4) expressly provides that a decision of the Minister of the kind referred to in subsection (1) (a decision about which routes are to be prescribed under the Code) is not liable to be challenged in, or reviewed or called in question by, a court. This ouster clause prevents judicial review of the Minister’s decision on the declaration of routes, which is a central element of the access regime. There is no provision for merits review of the Minister’s decision by the State Administrative Tribunal or any other body. The Regulator’s decisions, such as approvals of segregation arrangements under section 29(1) or directions under section 29(3), are not subject to any express review mechanism in the Act, but would be subject to judicial review under the general law. The Act does not create any private right of action for breach of the prohibitions in section 34A (hindering or preventing access); enforcement of that provision is by way of criminal prosecution (the penalty is $100,000 and a daily penalty of $20,000) or, potentially, by injunction under section 37 if the conduct amounts to a breach of the Code and arbitration is not available. The Act does not appear to have generated a significant body of publicly reported case law in the Supreme Court. The compilation notes do not refer to any decided cases. The most likely sources of litigation would be applications for injunctions under section 37, judicial review of Regulator decisions, and challenges to the validity of the Code itself under section 9 (which provides for disallowance by Parliament rather than court challenge). The arbitration provisions in the Code would typically result in private arbitral awards that are not published. Practitioners should note that the ouster clause in section 5(4) may be subject to constitutional limits on the exclusion of judicial review for jurisdictional error, a matter on which the Act itself is silent.

The Act contains several provisions that may operate unexpectedly for those unfamiliar with its structure. First, section 3B(2) provides that upon the premature termination of a railway owner’s right to manage and control the use of railway infrastructure, any right of access given by that owner continues as if it had been given by the successor railway owner, and the agreement has effect as if the successor were the original party. However, this continuation is not permanent: the current railway owner or any other party to the agreement may give written notice to each other party within three months after the premature termination stating that the right of access and the agreement are to terminate prematurely. The termination takes effect at the time specified in the notice, which must be at least one month after the notice was given. If more than one party gives notice, the earliest time specified prevails. This means that an access seeker could lose its access rights within as little as four months of a concession termination even though the Act appears to protect continuity. Second, section 5(4) prevents any challenge in a court to the Minister’s decision about which routes are to be prescribed under the Code. This ouster clause is absolute on its face: the decision is not liable to be challenged in, reviewed, or called in question by a court. This means that an access seeker who is dissatisfied with the scope of the Code cannot challenge the Minister’s decision to include or exclude a particular route, regardless of the merits. Third, section 36(1) provides that a breach of the obligations imposed by the Code does not give rise to an action for damages. A party who suffers loss from a breach of the Code cannot recover compensatory damages; the only remedies are arbitration (if the Code provides for it) or an injunction (if arbitration is not available). This is a significant limitation on the usual remedies for breach of statutory duty and means that the commercial risk of a Code breach falls on the access seeker unless it can obtain an injunction. Fourth, the definition of railway infrastructure in section 3(1) expressly excludes sidings or spur lines that are managed and controlled by a different person from the person who manages and controls the use of the railway (section 3(3) and (4)), unless the Minister declares otherwise. However, this exclusion does not apply to sidings or spur lines associated with the TPI Railway (section 3(7)). For other railways, a siding or spur line that is independently owned or operated is not part of the railway infrastructure and therefore not subject to the access regime, which means that a bottleneck at a privately owned spur line may not be captured. Fifth, the Act does not provide for the Regulator to set access prices or to compel access on particular terms. The Code may include provisions about the content of agreements (section 4(2)(c)), but the actual terms of access are to be negotiated between the railway owner and the access seeker, or determined by arbitration. This means that access seekers cannot simply demand access on regulated terms; they must go through a negotiation and possibly arbitration process. Sixth, the Regulator’s power of entry under section 22A is limited to premises that are used in connection with the operation of a part of the railways network to which the Code applies. It does not extend to offices, rolling stock depots, or other premises that are not used in connection with the Code-covered part of the network. Seventh, the protections for legal professional privilege (section 22C) and the limited self-incrimination protection (section 22D) apply only to individuals; a corporation cannot rely on self-incrimination. Section 22D provides that a statement or return sent by an individual in compliance with a section 21 notice is not admissible in evidence against the individual except in proceedings for perjury or for an offence under the Act arising out of false or misleading information. This means that a director or officer of a railway owner who provides information under compulsion cannot have that information used against him or her in most criminal proceedings, but the corporation itself has no such protection. Eighth, the duty of fairness in section 33 applies to relevant officers performing their functions: they must not have regard to the interests of the railway owner in a way that is unfair to persons seeking access or to other rail operators. This is a subjective duty of fairness, and its breach could give rise to a Regulator direction under section 29 or an offence under that section if it relates to segregation arrangements, but it is not directly enforceable by an access seeker by way of damages. Ninth, section 34A prohibits conduct aimed at hindering or preventing access, but the prohibition is subject to conduct that the railway owner is entitled to engage in under the Act, the Code, another written law, or an access agreement. This means that legitimate commercial decisions (such as denying access where the access seeker has not paid the agreed fee or where safety requirements cannot be met) are not caught. The phrase aimed at imports a purpose element that may be difficult to prove. Tenth, the Act does not apply to interstate services if the Code excludes them (section 4(3)). The Act itself does not define interstate service; it leaves that to the Code.

Compliance with the Railways (Access) Act 1998 requires railway owners to establish and maintain a series of structural, procedural, and accounting arrangements. The starting point is the segregation obligation under section 28. A railway owner must make arrangements to segregate its access-related functions from its other functions. Access-related functions are defined in section 24 as the functions involved in arranging the provision of access to railway infrastructure under the Code. The railway owner cannot simply design these arrangements unilaterally. Section 29(1) requires that before putting in place or varying any arrangement for the purpose of carrying out the segregation obligations, the railway owner must obtain the Regulator’s approval to the arrangement or variation. This means the railway owner must prepare a formal proposal describing the organisational separation, the information walls, the reporting lines, and the controls and procedures that will ensure the segregation operates effectively. The Regulator will then approve, require changes, or reject the proposal. If the Regulator and the railway owner cannot agree on any matter related to how the segregation obligations are to be carried out, the Regulator may give written directions under section 29(3), and the railway owner must comply. Failure to comply with an approved arrangement, an agreement reached with the Regulator, or a direction is an offence with a penalty of $100,000 (section 29(4)). The segregation arrangements must specifically address four matters set out in sections 31 to 34. The railway owner must ensure there is an effective regime for protecting confidential information relating to the affairs of persons seeking access or rail operators from improper use and from disclosure by relevant officers or other persons except for proper purposes (section 31). This regime should include written policies, training, access controls, and non-disclosure agreements. The railway owner must ensure that a relevant officer (defined in section 24 as an officer or employee of a railway owner who is in any way concerned in the performance of access-related functions) does not have a conflict between duties as a person concerned in access-related functions and duties as a person involved in other business of the railway owner (section 32). This may require physical separation of teams, separate reporting lines, and restrictions on information flow. The railway owner must ensure that in performing their functions, relevant officers do not have regard to the interests of the railway owner in a way that is unfair to persons seeking access or to other rail operators (section 33). This duty of fairness requires that decisions on access requests, pricing, and technical requirements be made on an objective, non-discriminatory basis. The railway owner must ensure its accounts and records are in a form that enables all income, expenditure, assets and liabilities relating to the carrying out of access-related functions to be properly recorded and distinguished from the railway owner’s other income, expenditure, assets and liabilities, and where necessary apportioned in a fair and reasonable manner (section 34). This means that a railway owner cannot commingle access-related costs with other costs; separate cost centres and a cost allocation methodology are required. Beyond the segregation obligations, a railway owner must comply with the Regulator’s information notices under section 21(1). The Regulator may require the railway owner to send a statement setting out specified information by a specified day, to give information by way of periodical returns at specified times, and to send any book, document or record that is in the possession or under the control of the railway owner. The railway owner must comply with these notices; failure carries a penalty of $100,000 and a daily penalty of $20,000 (section 21(2)). The railway owner must also facilitate entry and inspection by the Regulator onto any premises used in connection with the operation of a part of the railways network to which the Code applies (section 22A). The obligation is to facilitate, not merely to permit; the railway owner should have a protocol for Regulator access and should ensure that relevant staff know how to respond. The railway owner must not engage in conduct aimed at hindering or preventing access, making access agreements, or the access to which a person is entitled under an agreement or determination (section 34A(1)). However, conduct that the railway owner is entitled to engage in under the Act, the Code, another written law, or an access agreement is not prohibited (section 34A(3)). This means the railway owner must be able to demonstrate that any refusal or restriction of access is grounded in a legal entitlement. The railway owner should develop a clear internal process for handling access requests that systematically addresses the criteria in the Code and documents the basis for decisions. For the Authority (the Public Transport Authority), which is the railway owner for Government railways, additional obligations arise under Part 4 Division 2. The Authority must make such administrative arrangements within its organization as it from time to time considers necessary or expedient for the carrying out of its access-related functions (section 26). It may delegate a function under the Act only to an officer of the Authority (section 27). For private railway owners, the same segregation and compliance obligations apply. Finally, an access seeker must comply with the prohibition under section 34A(2) against engaging in conduct aimed at hindering or preventing access by another person to any part of the railways network to which the Code applies. An access seeker who has access under an agreement must not use that access to block or obstruct a competitor. The primary compliance mechanism for access seekers is to follow the Code’s processes for making proposals and, if necessary, to participate in arbitration in good faith. There is no self-reporting obligation under the Act, but a railway owner should proactively engage with the Regulator when proposing or varying segregation arrangements.