What it does
The Railways (Access) Act 1998 (WA) establishes a statutory rail access regime that allows persons other than the railway owner to use railway infrastructure on prescribed parts of Western Australia’s railways network. Its main object, stated in section 2A as inserted in 2000, is to encourage the efficient use of and investment in railway facilities by facilitating a contestable market for rail operations. The Act does not itself contain the detailed access rules; instead it requires the Minister to establish a Code under section 4 that gives effect to the Competition Principles Agreement of 11 April 1995 in respect of railways to which the Code applies. The Code is subsidiary legislation under the Interpretation Act 1984 (section 9) and is subject to disallowance by either House of Parliament. The Act specifies what the Code must contain: it must provide for railway infrastructure to be available for use by persons other than the railway owner via agreements or arbitration determinations; it must prescribe which parts of the railways network and associated infrastructure are covered; it must set out provisions governing the content of agreements and determinations, rights, powers and duties during negotiation, making and implementation of agreements; and it must assign supervisory functions to the Economic Regulation Authority (the Regulator) including the power to determine binding requirements relating to access (section 4(2)). The Act also specifies criteria the Minister must consider when deciding which routes to prescribe: whether access will promote competition in at least one market other than the market for railway services; whether it would be uneconomical for anyone to establish another railway on the route; whether the route is significant in length, importance to trade or commerce, or to the economy; whether access can be provided without undue risk to human health or safety; whether effective access does not already exist; and whether increased access would not be contrary to the public interest (section 5(3)). If the Minister is satisfied each question must be answered in the affirmative, the route is to be prescribed (section 5(2)). Critically, the Minister’s decision on which routes are prescribed is not liable to be challenged in or reviewed by a court (section 5(4)). The Act confers on the Regulator (defined by section 3 as the Economic Regulation Authority established under the Economic Regulation Authority Act 2003) the functions of monitoring and enforcing compliance by railway owners with the Act and the Code, together with information-gathering powers, a power of entry onto premises used in connection with a part of the railways network to which the Code applies (section 22A), and powers to inspect documents (section 22). The Act imposes on railway owners a duty to segregate their access-related functions from their other functions (section 28), to maintain the confidentiality of information relating to persons seeking access (section 31), to avoid conflicts of interest in relation to officers performing access-related functions (section 32), to act fairly towards persons seeking access (section 33), and to maintain separate accounts and records for access-related activities (section 34). The Regulator must approve any arrangement or variation of arrangements for segregation before it is put in place, and may give directions where agreement is not reached (section 29). Enforcement is primarily through the Code’s arbitration provisions and through injunctions from the Supreme Court (section 37); a breach of Code obligations does not give rise to an action for damages (section 36(1)). The section 34A offence of engaging in conduct aimed at hindering or preventing access carries a penalty of $100,000 and a daily penalty of $20,000. The Act also provides for continuity of access rights when a railway owner’s right to manage and control the infrastructure is prematurely terminated: the access rights continue as if given by the successor owner unless a party gives written notice to terminate within three months (section 3B). This provision ensures that access seekers are not left without rights when a concession or lease ends.