Schedule 4 — Provisions relating to prices to be paid for access
[s. 17(1)(b)]
Division 1 — Preliminary
Terms used
In this Schedule —
incremental costs, in relation to an access holder or a group of access holders, means the following that the railway owner or an associate would be able to avoid if it were not to provide access to that access holder or group of access holders —
(a) the operating costs;
(b) where applicable —
(i) the capital costs; and
(ii) the overheads attributable to the performance of the railway owner’s access‑related functions whether by the railway owner or an associate;
total costs means the total of all —
(a) operating costs;
(b) capital costs; and
(c) the overheads attributable to the performance of the railway owner’s access‑related functions whether by the railway owner or an associate.
[Clause 1 amended: Gazette 23 Jul 2004 p. 2995‑6; 20 Sep 2011 p. 3801; SL 2023/207 s. 54(1) and (2).]
Railway infrastructure
(1) In this Schedule —
capital costs means the costs comprising both the depreciation and risk‑adjusted return on the relevant railway infrastructure.
(2) For the purposes of this clause, railway infrastructure includes a cutting or embankment made for any reason after the commencement of this Code.
(3) Capital costs must be determined as the annual cost of providing the railway infrastructure for each year of the relevant period calculated in accordance with subclause (4).
(4) The calculation must be made by —
(a) multiplying the current regulatory asset base of each relevant route section, which must be updated annually throughout the relevant period, by the weighted average cost of capital appropriate to the railway infrastructure; and
(b) adding depreciation in accordance with the applicable depreciation schedule for the time being approved or determined by the Regulator under section 47K(3).
(5) Capital costs include amounts for the amortisation of —
(a) the costs incurred by the railway owner or an associate of the railway owner to acquire any interest in land; and
(b) any other costs incurred by the railway owner or an associate of the railway owner in relation to the acquisition of any interest in land (for example, costs in connection with Aboriginal heritage or native title issues or other transaction costs),
but only to the extent that the Regulator determines that those amounts relate to the acquisition after the commencement of this Code of an interest in land used for constructing, maintaining or operating the relevant railway.
Schedule Sch 4 - Railways (Access) Code 2000 - Provisions relating to prices to be paid for access | Zoe
[Clause 2 amended: Gazette 23 Jul 2004 p. 2996; 20 Sep 2011 p. 3802; SL 2023/207 s. 54(3).]
3. Regulator to determine weighted average cost of capital
(1) For the purposes of clause 2(4)(a), the Regulator is to —
(a) determine, as at 30 June in each year, the weighted average cost of capital for each of —
(i) the railway infrastructure associated with the urban network described in items 49, 50A, 50 and 51 in Schedule 1;
(ia) the railway infrastructure associated with that part of the railways network described in item 52 in that Schedule; and
(ii) the railway infrastructure associated with the railways network described in the other items in that Schedule;
and
(b) publish notice of each such determination in the Gazette as soon as is practicable after it is made.
(2) Subclauses (3), (4) and (5) apply to the determinations under subclause (1) that are required to be made as at 30 June —
(a) in the year 2003; and
(b) in every 5th year after that year.
(3) Before the Regulator makes a determination mentioned in subclause (2) the Regulator must —
(a) publish a notice describing the requirements of subclause (1) on the Regulator’s website; and
(i) a statement that written submissions relating to the determination may be made to the Regulator by any person within a specified period;
(4) The period specified under subclause (3)(b)(i) must be not less than the period of 20 business days after the day on which the notice is published under subclause (3)(a).
(5) In making a determination under this clause the Regulator must have regard to any submission relating to the determination made in accordance with the notice.
[Clause 3 1M, 1 amended: Gazette 23 Jul 2004 p. 2996; Act No. 77 of 2004 s. 14; SL 2023/207 s. 54(4).]
[Clause 3, modification have effect under the Railway (Roy Hill Infrastructure Pty Ltd) Agreement Act 2010 s. 14. See note 1M.]
Nature of costs
The costs referred to in this Schedule are intended to be those that would be incurred by a body managing the railways network and adopting efficient practices applicable to the provision of railway infrastructure, including the practice of operating a particular route in combination with other routes for the achievement of efficiencies.
Division 2 — Provisions relating to access price negotiation
Term used: other entities
In clauses 7(2) and 8(3) —
other entities means entities to which access is provided otherwise than under this Code.
Prices to be negotiated
(1) Subject to this Schedule, the prices to be paid to the railway owner for the provision of access to access holders are to be determined by negotiation under the provisions of this Code.
(2) If any extension or expansion of the route or the associated railway infrastructure is to be provided for by an access agreement, the parties must, in negotiating the price to be paid for the provision of access, take into account —
(a) the costs to be borne by the railway owner or the access seeker in respect of the extension or expansion; and
(b) any economic benefit to the railway owner or the access seeker resulting from the extension or expansion.
[Clause 6 amended: Gazette 23 Jul 2004 p. 2996; SL 2023/207 s. 54(5) and 55.]
7A. Apportionment of costs of extension or expansion
(1) This clause applies where —
(a) an extension or expansion of the route or the associated railway infrastructure is to be provided for by an access agreement; and
(b) it is necessary to determine the costs referred to in clause 6(2)(a).
(2) The costs are to be apportioned so that each entity that will use the route or the associated railway infrastructure as extended or expanded (the enhanced facilities) is required to bear a share of the costs according to —
(a) the extent that the entity will use the enhanced facilities compared to all other users of those facilities; and
(b) the economic benefit that the entity is expected to derive from use of the enhanced facilities.
(3) Subclause (2) applies in respect of an entity only so far as —
(a) it is consistent with any agreement between the railway owner and the entity for the entity to be required to bear a share of the costs; or
(b) the railway owner is otherwise able to require the entity to bear a share of the costs.
(4) This clause does not apply to a proposal made under section 8 before the commencement of the Railways (Access) Amendment Code 2009 section 14 1*.*
[Clause 7A inserted: Gazette 23 Jun 2009 p. 2418‑19.]
Floor price test
(1) An access holder that is provided with access to a route and associated railway infrastructure must pay for the access not less than the incremental costs resulting from its operations on that route and use of that infrastructure.
(1A) Subclause (1) does not apply in relation to access under an interim access agreement.
(2) The total of the following must not be a sum that is less than the relevant total —
(a) the payments to the railway owner by —
(i) all access holders that are provided with access to a route, or part of a route, and associated infrastructure (the route); and
(ii) all other entities that are provided with access to the route;
(b) the revenue that the railway owner’s accounts and financial statements show as being attributable to its own operations on the route.
(3) For the purposes of subclause (2), the relevant total is the total of the incremental costs resulting from the combined operations on the route of all access holders and other entities and the railway owner.
[Clause 7 amended: SL 2023/207 s. 54(6).]
Ceiling price test
(1) An access holder that is provided with access to a route, or part of a route, and associated railway infrastructure must pay for the access not more than the total costs attributable to that route, or that part of the route, and that infrastructure.
(2) For the avoidance of doubt it is declared that, regardless of the extent of the operations or use of the route, or the part of the route, and infrastructure by any particular access holder, the calculation of total costs under subclause (1) —
(a) is only for the route, or the part of the route, and associated railway infrastructure to which the access holder is provided access; and
(b) must be the same for all access holders that are provided with access to that route, or that part of the route, and that infrastructure.
(2A) Subclauses (1) and (2) do not apply in relation to access under an interim access agreement.
(3) The total of the following must not be a sum that is more than the total costs attributable to a route, or part of a route, and associated infrastructure (the route) —
(a) the payments to the railway owner by —
(i) all access holders that are provided with access to the route; and
(ii) all other entities that are provided with access to the route;
(b) the revenue that the railway owner’s accounts and financial statements show as being attributable to its own operations on the route.
(4) It is not a breach of this clause for —
(a) payments to the railway owner mentioned in subclause (1) to exceed the total costs referred to in that subclause; or
(b) the total sum mentioned in subclause (3) to exceed the total costs referred to in that subclause,
if the over‑payment rules approved or determined under section 47 are complied with.
[Clause 8 amended: Gazette 23 Jul 2004 p. 2996‑7; SL 2023/207 s. 54(7).]
Determination of costs by Regulator
(1) The Regulator may, if the Regulator considers that it is likely that a proposal (other than an interim access proposal) will be made to the railway owner in respect of a route, determine —
(a) the costs referred to in clause 7 in respect of the operations and use of infrastructure that the proposal would involve (including the costs for each year of the period for which the Regulator considers access would be sought under the proposal); and
(b) the costs referred to in clause 8 attributable to the route and associated infrastructure (including the costs for each year of the period for which the Regulator considers access would be sought under the proposal).
(2) The Regulator is to notify the railway owner whenever the Regulator proposes to exercise the power conferred by subclause (1), and the railway owner is to make an initial determination of the costs (including for each year of the period for which the Regulator considers access will be sought under the proposal) and provide details of that determination to the Regulator.
(3) Before the Regulator makes a determination under subclause (1) the Regulator must —
(a) publish a notice of the Regulator’s intention to do so on the Regulator’s website; and
(i) a statement that written submissions relating to the determination may be made to the Regulator by any person within a specified period;
(4) The period specified under subclause (3)(b)(i) must be not less than the period of 20 business days after the day on which the notice is published under subclause (3)(a).
(5) In making a determination of costs under this clause the Regulator must have regard to —
(a) the initial determination made by the railway owner under subclause (2); and
(b) any submission relating to the determination made in accordance with the notice published under subclause (3).
(6) The Regulator must —
(a) give the railway owner written notice of the costs determined under subclause (1); and
(b) publish the determination on the Regulator’s website.
[Clause 9 amended: SL 2023/207 s. 54(8).]
Determination of costs where clause 9 does not apply
(1) If a proposal (other than an interim access proposal) has been made and clause 9 does not apply, the railway owner must determine the costs referred to in clauses 7 and 8 that are relevant to the proposal (including the costs for each year of the period for which access is sought under the proposal).
(2) A determination under subclause (1) must be made in accordance with the costing principles for the time being approved or determined by the Regulator under section 47H.
(3) The railway owner must, on or before the day on which it provides the access seeker with the information described in section 9(1)(b), provide to the Regulator —
(a) the costs determined under subclause (1) (including the costs for each route section); and
(b) the current regulatory asset base of each route section; and
(c) supporting material demonstrating the basis of the costs referred to in paragraph (a) and the current regulatory asset bases referred to in paragraph (b); and
(d) the applicable depreciation schedule for the time being approved or determined by the Regulator under section 47K(3).
(4) The Regulator must, within 40 business days after the day on which the Regulator is provided with the information referred to in subclause (3)(a) to (d) by the railway owner —
(a) approve the costs determined by the railway owner under subclause (1); or
(b) if the Regulator is not willing to do so, determine the relevant costs (including the costs for each year of the period for which access is sought under the proposal).
(a) give the railway owner and the access seeker written notice of the costs approved or determined under subclause (4); and
(b) publish the approved costs or the determination (as the case may be) on the Regulator’s website.
(6) The Regulator may extend the period referred to in subclause (4), either before or after the period has ended, by written notice to the railway owner in accordance with section 52.
(7) If the Regulator extends the period referred to in subclause (4), the Regulator must give the access seeker a copy of the written notice given to the railway owner under subclause (6).
(8) The costs approved or determined by the Regulator under subclause (4) in respect of a proposal are the costs that are to apply under clauses 7 and 8 for the purposes of the proposal.
[Clause 10 inserted: SL 2023/207 s. 54(9).]
Public submissions must be sought
(1) Before the Regulator gives an approval or makes a determination under clause 10(4), the Regulator must —
(a) publish on the Regulator’s website a notice setting out the information referred to in clause 10(3)(a) to (d) provided to the Regulator by the railway owner under that clause; and
(i) that written submissions relating to those matters may be made to the Regulator by any person within a specified period;
(2) The period specified under subclause (1)(b)(i) must be not less than the period of 20 business days after the day on which the notice is published under subclause (1)(a).
[Clause 11 inserted: SL 2023/207 s. 54(9).]
Review and redetermination of costs
(1) This clause applies if the Regulator considers that there has been, or may have been, a material change in any of the circumstances that existed at the time when the Regulator approved or determined costs under clause 9 or 10 in respect of a proposal.
(2) Where this clause applies the Regulator may —
(a) carry out a review of the costs in question; and
(b) if the Regulator considers that there is justification for doing so, make a fresh determination of those costs.
(3) Before the Regulator carries out a review under subclause (2)(a), the Regulator must —
(a) publish on the Regulator’s website a notice setting out details of the proposed review; and
(i) that written submissions relating to the determination of the costs in question may be made to the Regulator by any person within a specified period;
(4) The period specified under subclause (3)(b)(i) must be not less than the period of 20 business days after the day on which the notice is published under subclause (3)(a).
[Clause 12 amended: SL 2023/207 s. 54(10).]
12A. Prices for access under interim access agreement
(1) Except as provided in subclause (2), an access holder that is provided with access to a route and associated railway infrastructure under an interim access agreement must pay for the access the same prices as the prices required to be paid by the access holder to the railway owner for access to the route and associated railway infrastructure under the relevant existing access agreement.
(2) The prices that the access holder must pay for access under the interim access agreement —
(a) must be proportionate to any difference in the period for which access is to be provided under the interim access agreement compared to the period for which access is provided under the relevant existing access agreement; and
(b) may be adjusted to take into account asset indexation over the period during which the relevant existing access agreement is in force.
(3) For the purposes of subclauses (1) and (2), the relevant existing access agreement is the existing access agreement —
(a) to which the access holder and the railway owner were party when the access holder made the interim access proposal to which the interim access agreement relates; and
(b) the impending expiry of which gave rise to that interim access proposal.
[Clause 12A inserted: SL 2023/207 s. 54(11).]
Guidelines to be applied
In the negotiation of prices for the provision of access, the railway owner is to implement the following guidelines —
(a) there should be consistency in the application of pricing principles to rail operations carried on or proposed to be carried on in respect of a route whether by the railway owner or an associate or by another entity;
(b) the consistency referred to in paragraph (a) requires that if the access of different entities relates to the same market, any difference between the respective prices to be paid by them for access must only reflect a difference between them in the costs or risks associated with the provision of the access;
(c) prices should reflect as far as is reasonably practicable —
(i) the standard of the infrastructure concerned and the operations proposed to be carried on by the access seeker; and
(ii) the relevant market conditions; and
(iii) any other identified preference of the access seeker;
(d) any apportionment of costs for the purposes of this Schedule should be fair and reasonable;
(e) prices should be structured in a way that will encourage the optimum use of facilities;
(f) prices should allow a railway owner to recover over the economic life of the railway infrastructure concerned the costs of the owner in respect of any extension or expansion to accommodate the requirements of an access holder.
[Clause 13 amended: Gazette 23 Jul 2004 p. 2997; SL 2023/207 s. 54(12) and 55.]
Schedule 5 — Relevant provisions of Competition Principles Agreement
[s. 29(2)]
Clause 6(4)(i)
In deciding on the terms and conditions for access, the dispute resolution body should take into account —
(i) the owner’s legitimate business interests and investment in the facility;
(ii) the costs to the owner of providing access, including any costs of extending the facility but not costs associated with losses arising from increased competition in upstream or downstream markets;
(iii) the economic value to the owner of any additional investment that the person seeking access or the owner has agreed to undertake;
(iv) the interests of all persons holding contracts for use of the facility;
(v) firm and binding contractual obligations of the owner or other persons (or both) already using the facility;
(vi) the operational and technical requirements necessary for the safe and reliable operation of the facility;
(vii) the economically efficient operation of the facility; and
(viii) the benefit to the public from having competitive markets.
Clause 6(4)(j)
The owner may be required to extend, or to permit extension of, the facility that is used to provide a service if necessary but this would be subject to —
(i) such extension being technically and economically feasible and consistent with the safe and reliable operation of the facility;
(ii) the owner’s legitimate business interests in the facility being protected;
(iii) the terms of access for the third party taking into account the costs borne by the parties for the extension and the economic benefits to the parties resulting from the extension.
Clause 6(4)(l)
The dispute resolution body should only impede the existing right of a person to use a facility where the dispute resolution body has considered whether there is a case for compensation of that person and, if appropriate, determined such compensation.
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Notes
This is a compilation of the Railways (Access) Code 2000 and includes amendments made by other written laws. For provisions that have come into operation, and for information about any reprints, see the compilation table.
Compilation table
Citation
Published
Commencement
Railways (Access) Code 2000
8 Sep 2000 p. 5123‑81
1 Sep 2001 (see s. 2 and Gazette 28 Aug 2001 p. 4795)
Railways (Access) Amendment Code 2004 1
23 Jul 2004 p. 2988‑97
23 Jul 2004 (see s. 2)
Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Act 2004 Pt. 3 Div. 2 assented to 8 Dec 2004
1 Jul 2008 (see s. 2(2) and Gazette 17 Jun 2008 p. 2543)
Railways (Access) Amendment Code 2009
23 Jun 2009 p. 2407‑19
s. 1 and 2: 23 Jun 2009 (see s. 2(a)); Code other than s. 1 and 2: 24 Jun 2009 (see s. 2(b))
Reprint 1: The Railways (Access) Code 2000 as at 5 Feb 2010 (includes amendments listed above)
Railways (Access) Amendment Code 2011
20 Sep 2011 p. 3801‑2
s. 1 and 2: 20 Sep 2011 (see s. 2(a)); Code other than s. 1 and 2: 21 Sep 2011 (see s. 2(b))
Railways (Access) Amendment Code 2013
19 Jul 2013 p. 3269-71
s. 1 and 2: 19 Jul 2013 (see s. 2(a)); Code other than s. 1 and 2: 7 Aug 2013 (see s. 2(b) and Gazette 6 Aug 2013 p. 3677)
Railways (Access) Amendment Code 2015
4 Dec 2015 p. 4846-7
s. 1 and 2: 4 Dec 2015 (see s. 2(a)); Code other than s. 1 and 2: 5 Dec 2015 (see s. 2(b))
Railways (Access) Amendment Code 2023
SL 2023/207 18 Dec 2023
Pt. 1: 18 Dec 2023 (see s. 2(a)); Code other than Pt. 1 and 3: 19 Dec 2023 (see s. 2(c)); Pt. 3: 18 Mar 2024 (see s. 2(b))
Other notes
1M Under the Railway (Roy Hill Infrastructure Pty Ltd) Agreement Act 2010 Pt. 3, this Code must be applied with the modifications set out in that Part. Those modifications have effect on and from 15 Aug 2015 until that Part expires in accordance with s. 15 of that Act.