Railways (Operations and Access) Act 1997 (South Australia)

This Act establishes a statutory framework governing the operation of railways in South Australia and, subject to proclamation, an access regime for third‑party use of railway services. Mechanically the statute does the following.

Establishes objects that guide interpretation: efficient rail transport, competitive markets, efficient allocation of resources, and access on fair commercial and non‑discriminatory terms (s 3). Those objects are a mandatory touchstone for arbitrators and the regulator (see s 38(1)(a)).
Confines the access regime to Parts 3-8, and makes its application subject to proclamation by the Governor (s 7). The Act requires periodic review of those proclamations and provides for automatic expiry unless extended following a regulator review (s 7A).
Designates the Essential Services Commission as the regulator and assigns monitoring and enforcement functions (s 9). The regulator must report annually to the Minister (s 9A).
Creates duties on operators and industry participants: segregation of railway accounts (s 22), prohibitions on unfair discrimination (s 23), prohibitions on conduct intended to prevent or hinder access (s 24), obligations to provide information to prospective users (ss 28-30) and a statutory duty to negotiate in good faith on access proposals (s 32).
Sets out a negotiated access process, including the form and notice requirements for access proposals (s 31), constraints on entering access contracts where other respondents are entitled to be heard (s 33), and confidentiality protections for commercially sensitive material (Part 5A, s 33A).
Provides an arbitration pathway for access disputes (Part 6). The regulator attempts conciliation and may refer disputes to an arbitrator (s 36). The Act sets out appointment and procedural rules for arbitrators (ss 37, 42-47), substantive principles the arbitrator must take into account (s 38), limits on awards (s 52), time limits (s 50A), and appeal rights to the Supreme Court on questions of law (s 56).

South Australia Railways (Operations and Access) Act 1997 An Act to provide for the operation of railways and access to railway services on fair commercial terms; and for other purposes.

Contents Part 1—Preliminary Division 1—Formal provisions 1 Short title Division 2—Objects 3 Objects Division 3—Interpretation 4 Interpretation 5 Joint ventures Division 4—Application of this Act 6 Application to railways 7 Application of access regime 7A Review and expiry of access regime Division 5—Crown to be bound 8 Crown to be bound Division 6—Regulator 9 Regulator 9A Regulator to report to Minister Part 2—Construction and operation of railways Division 1—Acquisition of land 10 Land acquisition Division 2—Fixed railway infrastructure 11 Fixed infrastructure may be dealt with as personal property Division 3—Operations over roads 12 Rights in relation to roads 13 Maintenance 13A Power to close roads temporarily 13B Immunity Division 4—Reports 14 Special reports Division 5—Rail corridors 15 Rail corridor need not be fenced 16 Exemption from rates and taxes Division 6—Exclusion of law of common carriers 17 Industry participant not to be common carrier Division 7—Liquor and gambling 18 Ministerial authorisation to sell liquor 19 Ministerial authorisation to provide gambling facilities Division 8—By-laws 20 By-laws Part 3—Conduct of operator's business Division 1—General rules for conduct of business 22 Segregation of accounts and records 23 Unfair discrimination 24 Preventing or hindering access to railway services 25 Report to Minister Division 2—Appointment of administrator 26 Appointment of administrator Part 4—Pricing principles and information relevant to access Division 1—Pricing principles 27 Pricing principles Division 2—Information about access 28 Information brochure 29 Operator's obligation to provide information about access 30 Information to be provided on non-discriminatory basis Part 5—Negotiation of access 31 Access proposal 32 Duty to negotiate in good faith 33 Limitation on operator's right to contract to provide access Part 5A—Confidential information 33A Confidential information Part 6—Arbitration of access disputes Division 1—Access disputes and requests for arbitration 34 Access dispute 35 Request for reference of dispute to arbitration Division 2—Conciliation and reference to arbitration 36 Conciliation and reference to arbitration 37 Appointment of arbitrator Division 3—Principles of arbitration 38 Principles to be taken into account Division 4—Parties to arbitration 39 Parties to arbitration 40 Representation 41 Minister's right to participate Division 5—Conduct of arbitration proceedings 42 Arbitrator's duty to act expeditiously 43 Hearing to be in private 44 Procedure on arbitration 45 Procedural powers of arbitrator 46 Giving of relevant documents to the arbitrator 47 Power to obtain information and documents 48 Confidentiality of information Division 6—Early termination of arbitration 49 Termination of arbitration in cases of triviality etc 50 Proponent's right to terminate arbitration Division 7—Awards 50A Time limit for arbitration 51 Awards 52 Restrictions on awards 53 Consent awards Division 8—Withdrawal from award 54 Proponent's option to withdraw from award Division 9—Variation or revocation of awards 55 Variation or revocation of award Division 10—Miscellaneous 56 Appeal on question of law 57 Costs 58 Removal and replacement of arbitrator 59 Non-application of Commercial Arbitration Act 1986 Part 7—Monitoring powers 60 Regulator's power to monitor costs 61 Copies of access contracts to be supplied to regulator 62 Operator's duty to supply information and documents 63 Confidentiality 64 Duty to report to the Minister Part 8—Enforcement of this Act 65 Injunctive remedies 66 Compensation 67 Enforcement of arbitrator's requirements Part 9—Regulations and proclamations 68 Regulations and proclamations Schedule 1—Transitional provision 1 Transitional provision Legislative history

The Parliament of South Australia enacts as follows: Part 1—Preliminary Division 1—Formal provisions 1—Short title This Act may be cited as the Railways (Operations and Access) Act 1997. Division 2—Objects 3—Objects The objects of this Act are— (a) to promote a system of rail transport in South Australia that is efficient and responsive to the needs of industry and the public; and (b) to provide for the operation of railways; and (c) to facilitate competitive markets in the provision of railway services through the promotion of the economically efficient use and operation of, and investment in, those services; and (d) to promote the efficient allocation of resources in the rail transport segment of the transport industry; and (e) to provide access to railway services on fair commercial terms and on a non-discriminatory basis. Division 3—Interpretation 4—Interpretation In this Act, unless the contrary intention appears— access means a right to the provision of railway services by an industry participant; access contract means a contract giving access to railway services or a contractual variation of an existing access contract affecting access to railway services in a significant way or to a significant extent; access dispute means a dispute about an access proposal; access proposal—see section 31; access regime means Parts 3 to 8 (inclusive) of this Act; authorised person means a person authorised by an operator to exercise the powers of an authorised person under this Act; costs of an arbitration means the fees, costs and expenses of the arbitrator, including the fees, costs and expenses of any expert or lawyer engaged by the arbitrator; Court means the Supreme Court of South Australia; fixed railway infrastructure means— (a) railway track; and (b) buildings, installations and equipment for— (i) the operation and use of railway track; or (ii) the embarkation and disembarkation of passengers; or (iii) the loading and unloading of goods; freight service means the service of carrying goods on a railway; industry participant means— (a) an operator; or (b) a person who operates, or proposes to operate, railway rolling stock on the railway network; lawyer means a person qualified and entitled to practise as a legal practitioner under the law of an Australian State or Territory; operator means a person who provides, or is in a position to provide, railway services in relation to the railway network; passenger service means the service of carrying passengers on a railway; pricing principles— (a) relating to the fixing of floor and ceiling prices—see section 27; (b) relating to the price of access to a railway service—see section 38(2); rail corridor means— (a) land over which a railway track passes; and (b) land used for providing a passenger service or a freight service; and (c) other land classified by proclamation as part of a rail corridor, but does not include— (d) a railway workshop or a passenger or freight terminal building; or (e) land used solely or predominantly by a person who is not an industry participant; or (f) land excluded from the ambit of this definition by proclamation; railway infrastructure means— (a) fixed railway infrastructure; and (b) other installations, plant and equipment (whether fixed or moveable) used or available for use in connection with the operation of the railway network to the extent that it is brought within the ambit of this Act by proclamation, but does not include a private siding within the meaning of the Rail Safety National Law (South Australia) Act 2012, other than a private siding prescribed by the regulations to be railway infrastructure for the purposes of this Act; railway network means the railways to which this Act applies; railway rolling stock means a locomotive, carriage, or other vehicle for use on a railway; railway service means— (a) a passenger service or a freight service; or (b) the service of providing (or providing and operating) railway infrastructure for another industry participant; railway service business means a business consisting of the provision of railway services; regulator—see section 9; related—bodies corporate are related if they are related bodies corporate under the Corporations Law; respondent to an access proposal—see section 31(4). 5—Joint ventures (1) If an industry participant consists of the participants in a joint venture, the participants are jointly and severally liable to the obligations under this Act. (2) The participants in the joint venture may from time to time give the regulator written notice of a representative (who may—but need not be—a participant in the joint venture) who is authorised to give and receive notices on their behalf. (3) A notice given by or to the authorised representative is taken to have been given by or to all participants in the joint venture. (4) If no representative is currently nominated under this section, a notice given to any one of the participants in the joint venture is taken to have been given to all. (5) A joint venture includes a partnership. Division 4—Application of this Act 6—Application to railways (1) Subject to any exclusion in force under subsection (2), this Act (apart from the access regime) applies to all railways in the State. (2) The Governor may, by proclamation— (a) exclude a specified railway from the application of this Act or specified provisions of this Act; or (b) vary or revoke an exclusion in force under this section. 7—Application of access regime (1) The access regime applies in relation to operators and railway services to the extent that it is declared by proclamation to apply. (2) The Governor may, by proclamation— (a) declare that operators and railway services are subject to the application of the access regime; or (b) vary or revoke a declaration in force under this section. (3) The access regime does not (and cannot) apply to the railway to which the AustralAsia Railway (Third Party Access) Act 1999 applies (and accordingly no proclamation can be made under this section in relation to the railway to which that Act applies). 7A—Review and expiry of access regime (1) The regulator must, within the last year of each prescribed period, conduct a review of the operators and railway services subject to the access regime to determine whether the access regime should continue to apply. (2) The regulator must give reasonable notice of the review, by publishing a notice in a manner and form determined by the regulator to be most appropriate in the circumstances, inviting written submissions on the matters under review within a reasonable time specified for the purpose in the notice. (3) The regulator must consider submissions made in response to the notice and other submissions made in the course of other forms of public consultation undertaken by the regulator in connection with the review. (4) On completing the review, the regulator must forward to the Minister a report on the review and the conclusions reached by the regulator as a result of the review and, in particular, must recommend either— (a) that the access regime should continue in operation for a further prescribed period; or (b) that the access regime should expire at the end of the existing prescribed period. (5) The Minister must have copies of the report laid before both Houses of Parliament and must have the regulator's recommendation published in the Gazette. (6) The access regime expires at the end of a prescribed period unless— (a) the regulator has, in the report of a review conducted during the prescribed period, recommended that it should continue in operation for a further prescribed period; and (b) the period of its operation has been extended by regulation. (7) In this section— prescribed period means— (a) the period ending 30 October 2015; and (b) each successive period of 5 years thereafter. Division 5—Crown to be bound 8—Crown to be bound This Act binds the Crown not only in right of the State but also (so far as the legislative power of the State extends) in all its other capacities. Division 6—Regulator 9—Regulator (1) The Essential Services Commission established under the Essential Services Commission Act 2002 is the regulator under this Act. (2) The regulator has the function of monitoring and enforcing compliance with this Act (other than Part 2). 9A—Regulator to report to Minister (1) The regulator must, on or before 30 September in every year, forward to the Minister a report of the work carried out by the regulator under this Act for the financial year ending on the preceding 30 June. (2) The Minister must, within 12 sitting days after receiving a report under subsection (1), have copies of the report laid before both Houses of Parliament. Part 2—Construction and operation of railways Division 1—Acquisition of land 10—Land acquisition (1) An operator may, with the written consent of the Minister, acquire land for the construction or extension of railways. (2) The Land Acquisition Act 1969 applies to the acquisition of land under this section. Division 2—Fixed railway infrastructure 11—Fixed infrastructure may be dealt with as personal property Despite any other law, fixed railway infrastructure does not merge with the land to which it is affixed and may be dealt with and disposed of as personal property. Division 3—Operations over roads 12—Rights in relation to roads (1) Despite any other law, an operator may, with the Minister's consent— (a) install, maintain and operate railway infrastructure; (b) extend, alter or replace any railway infrastructure, on, over, under, along or across a road. (2) For the purposes of subsection (1), the Minister may give his or her consent on such conditions as the Minister thinks fit. (3) A person who contravenes or fails to comply with a condition imposed under subsection (2) is guilty of an offence. Maximum penalty: $100 000. (4) Despite any other law, an operator may— (a) operate a railway service; or (b) carry out an authorised activity, on, over, under, along or across a road. (5) For the purposes of subsection (4), an authorised activity is an activity for 1 or more of the following purposes: (a) to run railway rolling stock on railway infrastructure; (b) to carry out maintenance work on railway infrastructure; (c) to repair or replace any railway infrastructure; (d) to remove or decommission any railway infrastructure. (6) An operator must make good any damage to a road arising out of the exercise of a power under subsection (1) or (4). Maximum penalty: $100 000. (7) In this section— road means any street, road, thoroughfare, terrace, court, lane, alley, cul‑de‑sac, or place commonly used by the public, or to which the public are permitted to have access, and includes a part of a road. 13—Maintenance (1) An operator— (a) must maintain any road on which it places fixed railway infrastructure, whether placed over, under, along or across that road before or after the commencement of this Division, to the extent that the fixed railway infrastructure, or any railway service operated on the fixed railway infrastructure, causes or contributes to the deterioration of the road; and (b) must keep in good condition and repair— (i) so much of a road that lies between the rails of any railway track owned or operated by the operator; and (ii) so much of a road that lies within the prescribed distance beyond the rails on each side of any railway track owned or operated by the operator. Maximum penalty: $100 000. (2) In this section— prescribed distance means, in relation to any railway track, 1 metre or such other distance as may be reasonably necessary to allow a smooth crossing of the railway by vehicles normally crossing at that place; road includes a track or other place commonly used by vehicles. 13A—Power to close roads temporarily (1) Despite any other law, an operator may, with the Minister's consent, temporarily close a road to enable or facilitate the performance of the work in connection with the operation of this Division. (2) For the purposes of subsection (1), the Minister may give his or her consent on such conditions as the Minister thinks fit. (3) A person who contravenes or fails to comply with a condition imposed under subsection (2) is guilty of an offence. Maximum penalty: $100 000. (4) In this section— road means a road within the meaning of section 12 or 13. 13B—Immunity No liability attaches to the Crown by virtue of the fact that the Minister has granted a consent under this Division. Division 4—Reports 14—Special reports An operator must, at the Minister's request, provide the Minister with a report— (a) on a particular aspect of the operator's operations; or (b) on a particular incident related to the operation of a railway. Division 5—Rail corridors 15—Rail corridor need not be fenced Despite any other law, an operator is not required— (a) to fence a rail corridor or to replace, maintain or repair a fence in relation to a rail corridor; or (b) to contribute to or to join in the construction, replacement, maintenance or repair of a fence in relation to a rail corridor. 16—Exemption from rates and taxes A rail corridor is exempt from— (a) land tax; and (b) rates and compulsory charges under the Local Government Act 1934. Division 6—Exclusion of law of common carriers 17—Industry participant not to be common carrier An industry participant is not a common carrier. Division 7—Liquor and gambling 18—Ministerial authorisation to sell liquor (1) The Minister may authorise an operator to sell and supply liquor on a passenger train or on premises associated with a railway if satisfied that the sale and supply of liquor is reasonably incidental to the provision of a passenger service. (2) Before granting an authorisation under this section, the Minister must consult with the Liquor and Gambling Commissioner. (3) The Liquor Licensing Act 1985 applies with modifications prescribed by regulation in relation to an authority granted under this section. 19—Ministerial authorisation to provide gambling facilities (1) The Minister may authorise an operator to provide and operate gambling facilities on a passenger train or on premises associated with a railway if satisfied that the facilities are reasonably incidental to the provision of a passenger service. (2) Before granting an authorisation under this section, the Minister must consult with the Liquor and Gambling Commissioner. (3) The laws of the State relating to gambling apply with modifications prescribed by regulation in relation to an authority granted under this section. Division 8—By-laws 20—By-laws (1) The Governor may make by-laws regulating— (a) the conduct of railway passengers and others while on property associated with the operation of a railway; and (b) the protection of an operator's property, or property in the custody or under the control of an operator; and (c) the sale and disposal of unclaimed goods; and (d) other matters related to the operation of the railway. (2) A by-law may confer on an authorised person power to require a person to state the person's name and address or to produce documentary evidence of identity. (3) Before the Governor makes by-laws under this section, the Minister must consult on the text of the proposed by-laws with any operator whose operations may be affected by the by-laws. (4) A by-law may impose a fine (not exceeding $2 500) for contravention of the by-law. Part 3—Conduct of operator's business Division 1—General rules for conduct of business 22—Segregation of accounts and records (1) An operator must keep accounts and records of its railway service business so as to give a true and fair view of that business as distinct from other businesses carried on by the operator. (1a) An operator whose railway service business includes providing (or providing and operating) railway infrastructure for another industry participant must keep accounts and records of that part of its railway service business so as to give a true and fair view of that part of the business as distinct from the remainder of its railway service business. (2) The accounts and records must be kept in a way that gives— (a) a comprehensive view of the operator's legal and equitable rights and liabilities in relation to railway infrastructure related to the railway network; and (b) a true and fair view of— (i) income and expenditure derived from, or relating to, railway infrastructure related to the railway network; and (ii) assets and liabilities of the operator's business so far as they relate to railway infrastructure. 23—Unfair discrimination (1) An operator must not unfairly discriminate between proponents in preferring one access proposal to another. Example— If, for example, proponents A and B make access proposals to the operator, and both A and the operator are subsidiaries of the same holding company, it would be unfair discrimination for the operator to prefer A's access proposal on the basis of the relationship between them. It would also be unfair discrimination to prefer A's access proposal on the basis of price if B offers a fair price and the higher price offered by A is merely a transfer-pricing arrangement transferring profits from one part of a corporate group to another. (2) An operator must not unfairly discriminate between industry participants in the terms and conditions on which the operator provides access to railway services. (3) An operator must not unfairly discriminate between industry participants by— (a) waiving rights under access contracts or awards on a non-uniform basis; or (b) making a kick-back arrangement or arrangements (ie arrangements directly or indirectly returning a proportion of the consideration to which the operator is entitled under the contract or award to industry participants or their associates) on a non-uniform basis. Example— If, for example, the operator provides railway services for an industry participant (A) at a discounted price, but does not give a corresponding discount to another industry participant (B) because B is a competitor of a body corporate associated with the operator, the discrimination would be unfair. (4) A person must not be a party to discrimination by an operator that is contrary to this section. (5) A person is a party to discrimination if the person— (a) aids, abets, counsels or procures the discrimination; or (b) induces the discrimination through threats or promises or in some other way; or (c) is knowingly concerned in the discrimination; or (d) conspires with the operator to discriminate. 24—Preventing or hindering access to railway services (1) An operator or industry participant, or a body corporate related to an operator or industry participant, must not engage in conduct for the purpose of preventing or hindering access to railway services. Conduct includes negative conduct such as a failure or refusal to act or delay. The purpose of conduct is to prevent or hinder access to railway services if that is one of the purposes of the conduct. (2) In deciding a body corporate's purpose, the state of mind of directors, agents, employees and others who are in a position to control or influence the body corporate's conduct are to be imputed to the body corporate. 25—Report to Minister If the regulator considers that an operator or other person has contravened or failed to comply with this Division in any respect, the regulator must prepare a report on the matter and furnish it to the Minister. Division 2—Appointment of administrator 26—Appointment of administrator (1) If an operator becomes insolvent, ceases to provide railway services or fails to make efficient and effective use of its railway infrastructure in the State, the Court may, on application by the regulator, appoint an administrator to take over the business of the operator in the State. (2) In exercising its jurisdiction under this section, the Court is bound to apply principles and criteria agreed between the State and the operator or the State and a secured creditor of the operator affecting the basis on which the Court's jurisdiction will be invoked or exercised. (3) An administrator appointed under this section— (a) is entitled to possession of the operator's assets in the State; and (b) has the powers conferred on the administrator by the Court. (4) The Court may order that the costs of the administration be paid wholly or in part from the proceeds of the business. (5) The Court may make any orders it considers necessary to facilitate an administration under this section. Part 4—Pricing principles and information relevant to access Division 1—Pricing principles 27—Pricing principles (1) The regulator may establish principles (the pricing principles) for fixing a floor and ceiling price for the provision of railway services generally or railway services of a particular class. (2) The floor price should reflect the lowest price at which the operator could provide the relevant services without incurring a loss and the ceiling price should reflect the highest price that could fairly be asked by an operator for provision of the relevant services. (3) The pricing principles do not prevent an operator from entering into an access contract on terms that do not reflect the principles. (4) However, if in an arbitration the arbitrated price for services cannot be less than the floor price and cannot exceed the ceiling price. Division 2—Information about access 28—Information brochure (1) An operator must, on the written application of an industry participant, provide an information brochure containing— (a) if the operator carries on the business of providing passenger or freight services—a statement of the terms and conditions on which the operator provides the services; and (b) the terms and conditions on which the operator is prepared to make the operator's railway infrastructure available for use by others; and (c) other information required by the regulator. (2) The information brochure must be provided within 30 days (or a longer period allowed by the regulator) after the operator receives the application. (3) The information brochure must refer to any relevant pricing principles and show how the terms and conditions relate to, or compare with, relevant pricing principles. (4) The form of the information brochure must comply with requirements imposed by the regulator. (5) The operator must, within 14 days after providing an industry participant with the information brochure, give a copy to the regulator. (6) If the operator fails to comply with this section in any respect, the operator is guilty of an offence. Maximum penalty: $20 000. 29—Operator's obligation to provide information about access (1) An operator must, on the application of a person with a proper interest in making an access proposal to the operator, provide the applicant with information reasonably requested by the applicant about— (a) the extent to which the operator's railway infrastructure is currently being utilised; and (b) the extent to which it would be necessary, and technically and economically feasible, to add to or extend the operator's railway infrastructure so that it could meet requirements stated in the application; and (c) whether the operator would be prepared to provide a service of a specified description and— (i) if so, the general terms and conditions (including an indication of the likely price) on which the operator would be prepared to provide the service; and (ii) if not, the reasons why the service cannot be provided. (2) The operator may make a reasonable charge (to be determined on a basis decided or approved by the regulator) for providing information under this section. (3) If the operator makes a charge for providing information under this section, the operator must give the regulator written notice of the amount of the charge and the nature of the information provided. 30—Information to be provided on non-discriminatory basis An operator must provide information to persons interested in making access proposals to the operator on a non-discriminatory basis. Part 5—Negotiation of access 31—Access proposal (1) An industry participant (the proponent) who wants access to a railway service, or who wants to vary an access contract in a significant way or to a significant extent, may put a written proposal (the access proposal) to the operator of the relevant railway infrastructure setting out— (a) the nature and extent of the required access or variation; and (b) terms and conditions for the provision of access, or for making the variation, that the proponent considers reasonable and commercially realistic and to which the proponent is prepared to agree. (2) If the implementation of an access proposal would require an addition or extension to the railway infrastructure, the access proposal may include a proposal for that addition or extension to railway infrastructure. (3) When the operator receives an access proposal, the operator must give written notice of the proposal to— (a) the regulator; and (b) any industry participant whose interests could be affected by implementation of the proposal. (3a) Despite subsection (3)(a), notice is not required to be given to the regulator if the contract giving access to the service would, if executed— (a) be of an annual value of less than $50 000; or (b) be for a term of less than 2 months. (4) The respondents to the proposal are— (a) the operator; and (b) the other industry participants entitled to notice of the proposal under subsection (3). 32—Duty to negotiate in good faith (1) The operator must negotiate in good faith with the proponent with a view to reaching agreement on whether the proponent's requirements as set out in the access proposal (or some agreed modification of the requirements) could reasonably be met, and, if so, the terms and conditions for the provision of access for the proponent. (2) The other respondents (if any) whose rights (or prospective rights) would be affected by implementation of the access proposal must also negotiate in good faith with the proponent with a view to reaching agreement on the provision of access to the proponent and any consequent variation of their rights (or prospective rights) of access. 33—Limitation on operator's right to contract to provide access (1) An operator must not enter into an access contract unless— (a) there is no other respondent to the proposal; or (b) all other respondents to the access proposal agree; or (c) the operator gives the other respondents written notice of the proposed access contract and— (i) no formal objection to the proposed contract is made within 21 days of the notice; or (ii) a formal objection, or formal objections, are made within the 21 day period, but all objections are later withdrawn. (2) A respondent to an access proposal makes a formal objection to a proposed access contract by giving written notice setting out the grounds of the objection to— (a) the proponent; and (b) the respondent; and (c) the other respondents to the access proposal. (3) A contract entered into in contravention of this section is void. Part 5A—Confidential information 33A—Confidential information (1) Information obtained under section 29 or Part 5 that— (a) could affect the competitive position of a proponent or a respondent; or (b) is commercially valuable or sensitive for some other reason, is to be regarded as confidential information. (2) A person who obtains confidential information must not disclose that information unless— (a) the disclosure is reasonably required for the purposes of this Act; or (b) the disclosure is made with the consent of the person who supplied the information; or (c) the disclosure is required or authorised by law; or (d) the disclosure is required by a court or tribunal constituted by law; or (e) the disclosure is in prescribed circumstances. Maximum penalty: $15 000. (3) A person who obtains confidential information must not (unless authorised by the person who supplied the information) use the information for a purpose which is not authorised or contemplated by this Act. Maximum penalty: $15 000. (4) Subsections (1), (2) and (3) do not prevent or restrict the disclosure of information to the regulator. (5) Despite subsections (1), (2) and (3), the regulator may, if the regulator considers it is in the public interest to do so, disclose confidential information to either or both of the following: (a) the Minister; (b) the public. (6) A person who obtains confidential information must not use the information for the purpose of securing an advantage for himself or herself or for some other person in competition with the person who provided the information. Maximum penalty: $100 000. (7) An operator must, in connection with the operation of this section, develop and maintain a policy to ensure that confidential information obtained by the operator is not disclosed or used except as authorised by this section. (8) The operator must provide a copy of a policy developed under subsection (7) to the regulator and to any other person who requests a copy from the operator. Part 6—Arbitration of access disputes Division 1—Access disputes and requests for arbitration 34—Access dispute An access dispute exists if— (a) the operator or another respondent to an access proposal fails to respond to the proposal within 30 days after the proposal is given to the operator or other respondent; or (b) the operator or another respondent to an access proposal refuses or fails to negotiate in good faith with the proponent on the access proposal; or (c) the proponent, after making reasonable attempts to reach agreement with the operator and other respondents, fails to obtain an agreement on the proposal or an agreed modification of the proposal; or (d) a respondent to an access proposal makes a formal objection to a proposed access contract of which notice has been given under Part 3.1 Note— 1 See section 33. 35—Request for reference of dispute to arbitration (1) A proponent may, by written notice given to the regulator, ask the regulator to refer an access dispute to arbitration. (2) A copy of a notice under this section must be given to all respondents to the access proposal. Division 2—Conciliation and reference to arbitration 36—Conciliation and reference to arbitration (1) On receipt of a request to refer an access dispute to arbitration, the regulator must (subject to this section)— (a) attempt to settle the dispute by conciliation; or (b) appoint an arbitrator and refer the dispute to the arbitrator. (2) If the regulator fails to settle an access dispute by conciliation after making a reasonable attempt to do so, the regulator must then (subject to this section) appoint an arbitrator and refer the dispute to the arbitrator. (3) The regulator is not obliged to refer the dispute to arbitration if, in the regulator's opinion— (a) the subject matter of the dispute is trivial, misconceived or lacking in substance; or (b) the person seeking arbitration of the dispute has not negotiated in good faith; or (c) the regulator is satisfied on the application of a party to the dispute that there are good reasons why the dispute should not be referred to arbitration. (4) A dispute cannot be referred to arbitration if— (a) the dispute involves only one proponent and, before the appointment of the arbitrator, the proponent notifies the regulator that the proponent does not want to proceed with the arbitration; or (b) the dispute involves two or more proponents and, before the appointment of the arbitrator, all proponents notify the regulator that they do not want to proceed with the arbitration. 37—Appointment of arbitrator (1) An arbitrator must be a person who is properly qualified to act in the resolution of the dispute and has no direct or indirect interest in the outcome of the dispute. (2) Before appointing an arbitrator, the regulator must consult with each of the parties to the dispute and must attempt (but is not bound) to make an appointment that is acceptable to all parties. Division 3—Principles of arbitration 38—Principles to be taken into account (1) The arbitrator must take into account— (a) the objects of this Act; and (b) the non-discrimination principles; and (c) the operator's legitimate business interests and investment in railway infrastructure; and (d) the cost to the operator of providing access as sought by the proponent (excluding costs arising from increased market competition); and (e) if applicable—the economic value to the operator of additional investment the proponent proposes to undertake; and (f) the economically efficient operation of the railway infrastructure; and (g) the pricing principles— (i) relating to the fixing of floor and ceiling prices specified in section 27; and (ii) relating to the price of access to a railway service specified in subsection (2); and (h) the price of comparable services for other industry participants (including—if applicable—the operator itself); and (i) the interests of industry participants whose interests may be affected by the proposal; and (j) the contractual obligations of the operator and existing industry participants; and (k) the operational requirements for the safe and reliable operation of the railway infrastructure; and (l) the public interest in market competition; and (m) relevant technical and legal issues; and (n) other matters the arbitrator considers appropriate. (2) The pricing principles relating to the price of access to a railway service are as follows: (a) that access prices should allow multi‑part pricing and price discrimination when it aids efficiency; (b) that access prices should not allow a vertically integrated operator to set terms and conditions that would discriminate in favour of its downstream operations, except to the extent that the cost of providing access to others would be higher; (c) that access prices should provide incentives to reduce costs or otherwise improve productivity. Division 4—Parties to arbitration 39—Parties to arbitration (1) The parties to an arbitration are— (a) the proponent and respondents to the access proposal; and (b) any other person who has, in the regulator's opinion a material interest in the outcome of the arbitration and is nominated by the regulator as a party to the arbitration; and (c) any other person who is joined by the arbitrator as a party to the arbitration. (2) However, a party whose interests are unlikely to be materially affected by the outcome of the arbitration may, by leave of the arbitrator, withdraw from the arbitration. 40—Representation A party may be represented in the arbitration proceedings by a lawyer or, by leave of the arbitrator, another representative. 41—Minister's right to participate (1) The Minister may participate in arbitration proceedings under this Act. (2) If the Minister participates, the Minister may call evidence and make representations on the questions subject to the arbitration. Division 5—Conduct of arbitration proceedings 42—Arbitrator's duty to act expeditiously An arbitrator must proceed with the arbitration as quickly as the proper investigation of the dispute, and the proper consideration of all matters relevant to the fair determination of the dispute, allow. 43—Hearing to be in private (1) Arbitration proceedings must be conducted in private unless all parties agree to have the proceedings (or part of the proceedings) conducted in public. (2) An arbitrator may give directions about who may be present at arbitration proceedings conducted in private. (3) In giving directions under subsection (2), the arbitrator must have regard to the wishes of the parties and the need for commercial confidentiality. (4) A person must comply with a direction under subsection (2). Maximum penalty: $15 000. 44—Procedure on arbitration (1) An arbitrator— (a) is not bound by technicalities, legal forms or rules of evidence; and (b) may obtain information on matters relevant to the dispute in any way the arbitrator thinks appropriate. The arbitrator may, for example, conduct proceedings by— • telephone; or • closed circuit television; or • other means of communicating at a distance. (2) An arbitrator may require the presentation of evidence or argument in writing and may decide matters on which the arbitrator will hear oral evidence or argument. 45—Procedural powers of arbitrator (1) An arbitrator may— (a) give procedural directions; (b) make orders requiring— (i) the delivery of documents clarifying the issues between the parties; (ii) the discovery and inspection of documents; (c) sit at any time or place; (d) adjourn the arbitration proceedings from time to time and from place to place; (e) refer a matter to an expert for report, and accept the expert's report in evidence; (f) do anything else necessary for the expeditious hearing and determination of the dispute. (2) An arbitrator may proceed with arbitration proceedings in the absence of a party if the party has been given notice of the proceedings. (3) An arbitrator may engage a lawyer to provide advice on the conduct of the arbitration and to assist the arbitrator in drafting the award. 46—Giving of relevant documents to the arbitrator A party to the arbitration may give the arbitrator a copy of all documents (including confidential documents) the party considers to be relevant to the dispute. 47—Power to obtain information and documents (1) If an arbitrator has reason to believe that a person is in a position to give information, or to produce documents, that may be relevant to the dispute, the arbitrator may, by written notice— (a) require the person within a period stated in the notice— (i) to give the arbitrator a written statement of specified information; or (ii) to produce to the arbitrator specified documents or copies of specified documents; or (b) require the person to appear before the arbitrator at a specified time and place to give evidence. (2) A written statement must, if the arbitrator so requires, be verified by statutory declaration of the person providing the information or, if the person is a body corporate, an appropriate officer of the body corporate. (3) If documents (whether originals or copies) are produced to an arbitrator, the arbitrator may— (a) take possession of, make copies of, and take extracts from, the documents; and (b) keep the documents for as long as is necessary for the purposes of the arbitration. (4) A person must— (a) comply with a requirement of the arbitrator under subsection (1) or (2); and (b) if the person is required to appear as a witness before the arbitrator—comply with further requirements to make an oath or affirmation, or to answer questions. Maximum penalty: $15 000. (5) However, a person need not give information or produce a document if— (a) the information or the contents of the document is the subject of legal professional privilege, or would tend to incriminate the person of an offence; and (b) the person objects to giving the information or producing the document by giving written notice of the ground of the objection to the arbitrator or, if the person is appearing as a witness before the arbitrator, by an oral statement of the ground of objection. 48—Confidentiality of information (1) A person who gives the arbitrator information, or produces documents, may ask the arbitrator to keep the information or the contents of the documents confidential. (2) The arbitrator may, after considering representations from the parties (or the other parties), impose conditions limiting access to, or disclosure of, the information or documentary material. (3) A person must not contravene a condition imposed under subsection (2). Maximum penalty: $60 000. Division 6—Early termination of arbitration 49—Termination of arbitration in cases of triviality etc (1) The arbitrator may terminate an arbitration if the arbitrator thinks— (a) the subject matter of the dispute is trivial, misconceived or lacking in substance; or (b) the person on whose application the dispute was referred to arbitration has not engaged in negotiations in good faith. (2) The arbitrator may terminate an arbitration by consent of the parties. 50—Proponent's right to terminate arbitration (1) If an arbitration involves only one proponent, the proponent may terminate the arbitration, and if it involves two or more proponents, the proponents may together terminate the arbitration. (2) The arbitration is terminated under this section by giving notice of termination to— (a) the arbitrator and the regulator; and (b) the other parties to the arbitration. Division 7—Awards 50A—Time limit for arbitration (1) An award must be made within the period of 6 months from the date on which the dispute is referred to arbitration (the standard period). (2) However, if after the commencement of the standard period the arbitrator exercises a power under this Part in relation to the provision of information or documents, any period between the date of the exercise of the power and the date of compliance is not to be taken into account when determining the end date of the standard period. 51—Awards (1) Before the arbitrator makes an award, the arbitrator must give each of the parties and the Minister a copy of the draft award and may take into account representations that any of them may make on the proposed award. (2) An award must— (a) be in writing; and (b) set out the reasons on which it is based. (3) If an award confers a right of access, it must— (a) state the period for which the proponent is entitled to access; and (b) state the terms and conditions on which the proponent is to have access; and (c) resolve, or provide for the resolution of, all related and incidental matters. (4) The arbitrator must, within seven days after an award is made (including an award made by consent), give a copy of the award to— (a) the regulator; and (b) the parties to the arbitration. 52—Restrictions on awards (1) An arbitrator cannot make an award that would have the effect of requiring the operator to bear any of the capital cost of any addition or extension to railway infrastructure unless the operator agrees. (2) An arbitrator cannot make an award that would prejudice the rights of an existing industry participant under an earlier contract or award unless— (a) the industry participant agrees; or (b) the arbitrator is satisfied that— (i) the industry participant's entitlement to access exceeds the entitlement that the participant actually needs and there is no reasonable likelihood that the participant will need to use the excess entitlement; and (ii) the proponent's requirements cannot be satisfactorily met except by transferring the excess entitlement (or some of it) to the proponent. 53—Consent awards If— (a) the parties to an arbitration consent to a proposed award; and (b) the arbitrator is satisfied that the award is appropriate in the circumstances, the arbitrator may make an award in the terms proposed. Division 8—Withdrawal from award 54—Proponent's option to withdraw from award (1) A proponent may, within seven days after the making of an award or such further time as the regulator may allow, elect not to be bound by the award by giving written notice of the election to the regulator. (2) The regulator must, within seven days after receiving a notice of election under subsection (1), notify the operator and the other parties to the arbitration. (3) If the proponent elects not to be bound by an award— (a) the award is rescinded; and (b) the proponent is precluded from making another access proposal for 12 months from the date the notice of election was given unless the regulator authorises a further access proposal within that period. (4) An authorisation under subsection (3)(b) may be given on conditions the regulator considers appropriate. Division 9—Variation or revocation of awards 55—Variation or revocation of award (1) The regulator may vary or revoke an award if all parties to the award agree. (2) If the parties are unable to agree on a proposed variation of an award, the regulator may, on the application of one or more of the parties, refer the dispute to arbitration. (3) However, the regulator will not refer the dispute to arbitration if the regulator is of the opinion that there is no sufficient reason for varying the award. (4) In deciding whether to refer a dispute to arbitration under this section, the regulator must have regard to— (a) whether there has been a material change in circumstances since the award was made or last varied; and (b) the nature of the matters in dispute; and (c) the time that has elapsed since the award was made or last varied; and (d) other matters the regulator considers relevant. (5) The provisions of this Part (other than Division 8) about the arbitration of a dispute arising from an access proposal apply with necessary modifications to a dispute about the proposed variation of an award. Division 10—Miscellaneous 56—Appeal on question of law (1) An appeal lies to the Court from an award, or a decision not to make an award, on a question of law. (2) On an appeal, the Court may exercise one or more of the following powers— (a) vary the award or decision; (b) revoke the award or decision; (c) make an award or decision that should have been made in the first instance; (d) remit the matter to the arbitrator for further consideration or re-consideration; (e) make incidental or ancillary orders (including orders for costs). (3) An award or decision of an arbitrator cannot be challenged or called in question except by appeal under this section. (4) Unless the Court specifically decides to suspend the operation of an award until the determination of the appeal, an appeal does not suspend the operation of an award. 57—Costs (1) The costs of an arbitration are to be borne by the parties in proportions decided by the arbitrator, and in the absence of a decision by the arbitrator, in equal proportions. (2) However, if the proponent terminates an arbitration or elects not to be bound by an award, the proponent must bear the costs in their entirety. (3) The regulator may recover the costs of an arbitration as a debt. 58—Removal and replacement of arbitrator (1) The regulator may remove an arbitrator from office if the arbitrator— (a) becomes mentally or physically incapable of carrying out the arbitrator's duties satisfactorily; or (b) is convicted of an indictable offence; or (c) becomes bankrupt or applies to take the benefit of a law for the benefit of bankrupt or insolvent debtors. (2) If an arbitrator resigns, is removed from office, or dies, the regulator may appoint another person to take the arbitrator's place. 59—Non-application of Commercial Arbitration Act 1986 The Commercial Arbitration Act 1986 does not apply to an arbitration under this Part. Part 7—Monitoring powers 60—Regulator's power to monitor costs (1) The regulator may, by written notice to an operator, require the operator to provide, within a period stated in the notice, specified information relevant to monitoring the costs of railway services provided by the operator. (2) An operator must comply with a requirement imposed under this section. Maximum penalty: $60 000. 61—Copies of access contracts to be supplied to regulator An operator must provide the regulator, on a confidential basis, with a copy of every access contract made with the operator— (a) if the contract was made before the commencement of this Part—within 30 days after the commencement of this Part; and (b) if the contract is made after the commencement of this Part—within 30 days after the making of the contract. Maximum penalty: $60 000. 62—Operator's duty to supply information and documents (1) The regulator may, by written notice, require an operator to give the regulator, within a stated time or at stated intervals, specified information or copies of specified documents related to the provision of railway services by the operator. Examples— The regulator might require the operator to provide the regulator with financial statements and reports referred to in section 316 of the Corporations Law together with any further information that might be necessary to enable the regulator to assess the impact of this Act on the operator's financial position and business interests. The regulator might require the operator to provide the regulator with periodic reports on the extent to which transactions that were not entered into at arm's length are affecting the operator's financial position. (2) An operator must not, without reasonable excuse, contravene, or fail to comply with, a notice under this section. Maximum penalty: $60 000. 63—Confidentiality (1) The regulator must maintain the confidentiality of confidential information obtained under this Part. (2) However, the regulator may disclose confidential information to the Minister if it is in the public interest to do so. 64—Duty to report to the Minister The regulator must, at the request of the Minister, report to the Minister on— (a) the costs of railway services; or (b) any aspect of the operation of this Act. Part 8—Enforcement of this Act 65—Injunctive remedies (1) The Court may grant an injunction— (a) restraining a person from contravening a provision of this Act or a provision of an award; or (b) requiring a person to comply with a provision of this Act or a provision of an award. (2) The power of the Court to grant an injunction restraining a contravention of a provision of this Act or an award may be exercised— (a) whether or not the defendant has previously contravened the same provision; and (b) whether or not there is imminent danger of substantial damage to any person. (3) The power of the Court to grant an injunction requiring compliance with a provision of this Act or an award may be exercised— (a) whether or not the defendant has previously failed to comply with the provision; and (b) whether or not there is imminent danger of substantial damage to any person. (4) The Court may grant an interim injunction under this section. (5) An application for an injunction under this section may be made by— (a) the regulator; or (b) a person with a proper interest in whether the relevant provision is complied with. (6) The Court may grant an injunction by consent without inquiring into the merits of the application. (7) If the regulator makes an application for an injunction, the Court cannot require the regulator or any other person to give an undertaking as to damages as a condition of granting the injunction. (8) The Court may, on application by the regulator or an interested party, discharge or vary an injunction. 66—Compensation (1) If a person contravenes a provision of this Act or an award, the Court may, on application by the regulator or an interested person, order compensation of persons who have suffered loss or damage as a result of the contravention. (2) An order may be made under this section against the person who contravened the provision and others involved in the contravention. (3) A person is involved in the contravention if the person— (a) aided, abetted, counselled or procured the contravention; or (b) induced the contravention through threats or promises or in some other way; or (c) was knowingly concerned in, or a party to, the contravention; or (d) conspired with others to contravene the provision. 67—Enforcement of arbitrator's requirements (1) If a person fails to comply with an order, direction or requirement of an arbitrator under this Act, the arbitrator may certify the failure to the Court. (2) The Court may inquire into the case and make such orders as may be appropriate in the circumstances. Part 9—Regulations and proclamations 68—Regulations and proclamations (1) The Governor may make regulations and proclamations for the purposes of this Act. (2) A proclamation (other than a proclamation made for the purpose of bringing this Act into operation) may be varied or revoked by a subsequent proclamation. (3) A regulation— (a) may establish evidentiary presumptions to facilitate the enforcement of this Act (or a regulation or by-law under this Act); (b) may prescribe a fine (not exceeding $2 500) for contravention of the regulation. Schedule 1—Transitional provision 1—Transitional provision (1) Railway infrastructure placed on, over, under, along or across a road before the commencement of this clause— (a) will be taken to have been validly constructed (without the need for any further consent or other form of authorisation and despite any other Act or law); and (b) will, from the commencement of this clause, be subject to the operation of Part 2 Division 3. (2) In this clause— road means a road within the meaning of section 12 or 13. Legislative history Notes • Please note—References in the legislation to other legislation or instruments or to titles of bodies or offices are not automatically updated as part of the program for the revision and publication of legislation and therefore may be obsolete. • Earlier versions of this Act (historical versions) are listed at the end of the legislative history. • For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or www.legislation.sa.gov.au. Principal Act and amendments New entries appear in bold. Year No Title Assent Commencement 1997 55 Railways (Operations and Access) Act 1997 31.7.1997 11.9.1997 (Gazette 11.9.1997 p704) 2000 42 Alice Springs to Darwin Railway (Miscellaneous) Amendment Act 2000 13.7.2000 21.12.2000 (Gazette 21.12.2000 p3688) 2001 18 Statutes Amendment (Gambling Regulation) Act 2001 31.5.2001 Pt 9 (ss 48 & 49)—1.10.2001 (Gazette 13.9.2001 p4116) 2005 16 Railways (Operations and Access) (Regulator) Amendment Act 2005 26.5.2005 1.7.2005 (Gazette 30.6.2005 p2094) 2007 46 Rail Safety Act 2007 8.11.2007 Sch 3 (cll 2 & 3)—29.9.2008 (Gazette 25.9.2008 p4575) 2009 51 Rail Commissioner Act 2009 5.11.2009 Sch 1 (cll 2 & 3)—3.12.2009 (Gazette 3.12.2009 p5980) 2010 10 Railways (Operations and Access) (Miscellaneous) Amendment Act 2010 5.8.2010 1.9.2010 (Gazette 26.8.2010 p4417) 2011 42 Railways (Operations and Access) (Access Regime Review) Amendment Act 2011 17.11.2011 3.2.2012 (Gazette 2.2.2012 p456) 2012 14 Rail Safety National Law (South Australia) Act 2012 10.5.2012 s 35—20.1.2013 (Gazette 13.12.2012 p5534) 2019 25 Statutes Amendment and Repeal (Simplify) Act 2019 3.10.2019 Pt 40 (s 82)—3.10.2019: s 2(1) Provisions amended New entries appear in bold. Entries that relate to provisions that have been deleted appear in italics. Provision How varied Commencement Pt 1

Pt 1 Div 1

s 2 omitted under Legislation Revision and Publication Act 2002 1.7.2005 Pt 1 Div 2

s 3 amended by 10/2010 s 4 1.9.2010 Pt 1 Div 3

s 4

pricing principles substituted by 10/2010 s 5(1) 1.9.2010 railway infrastructure substituted by 10/2010 s 5(2) 1.9.2010

amended by 14/2012 s 35 20.1.2013 regulator substituted by 16/2005 s 4 1.7.2005 traffic control device deleted by 46/2007 Sch 3 cl 2 29.9.2008 Pt 1 Div 4

s 7

s 7(3) inserted by 42/2000 s 8(a) 21.12.2000 s 7A inserted by 42/2011 s 4 3.2.2012 s 7A(2) substituted by 25/2019 s 82 3.10.2019 Pt 1 Div 6 substituted by 16/2005 s 5 1.7.2005 Pt 2

Pt 2 Div 3 deleted by 46/2007 Sch 3 cl 3 29.9.2008

inserted by 51/2009 Sch 1 cl 2 3.12.2009 Pt 2 Div 5

s 15 substituted by 42/2000 s 8(b) 21.12.2000 Pt 2 Div 7

s 18

s 18(2) amended by 18/2001 s 48 1.10.2001 s 19

s 19(2) amended by 18/2001 s 49 1.10.2001 Pt 3

s 21 deleted by 10/2010 s 6 1.9.2010 s 22

s 22(1a) inserted by 10/2010 s 7 1.9.2010 Pt 5

s 31

s 31(3a) inserted by 10/2010 s 8 1.9.2010 Pt 5A inserted by 10/2010 s 9 1.9.2010 Pt 6

s 38

s 38(1) amended by 10/2010 s 10(1), (2) 1.9.2010 s 38(2) substituted by 10/2010 s 10(3) 1.9.2010 s 50A inserted by 10/2010 s 11 1.9.2010 Sch 1 inserted by 51/2009 Sch 1 cl 3 3.12.2009 Historical versions Reprint No 1—21.12.2000

Reprint No 2—1.10.2001

1.7.2005

29.9.2008

3.12.2009

1.9.2010

3.2.2012

20.1.2013

1 Railways (Operations and Access) Act 1997

South Australia Railways (Operations and Access) Act 1997 An Act to provide for the operation of railways and access to railway services on fair commercial terms; and for other purposes.

The Act builds an access regime around a compact set of defined concepts which structure rights, duties and dispute resolution.

Industry participant and operator. An industry participant is an operator or a person who operates, or proposes to operate, rolling stock on the railway network (s 4). Operator is defined as a person who provides, or is in a position to provide, railway services in relation to the railway network (s 4). These definitions are the starting point for who is regulated under the access regime (s 7).
Access and access contract. Access is a right to the provision of railway services by an industry participant (s 4). An access contract gives access to railway services or is a contractual variation that affects access in a significant way (s 4). The negotiation of access proposals is captured in s 31 and the subsequent bargaining and arbitration framework.
Railway infrastructure and fixed railway infrastructure. Fixed railway infrastructure is railway track and buildings, installations and equipment for operation of track, passenger embarkation or loading/unloading of goods (s 4). Railway infrastructure may include further installations, plant and equipment brought within the Act by proclamation (s 4). Section 11 treats fixed infrastructure as personal property for disposal and dealings.
Access regime and its scope. The access regime is defined as Parts 3-8 (s 4). Its actual application to operators and services is by proclamation (s 7). The Act provides for review and possible expiry of the regime unless extended by regulation on the regulator’s recommendation (s 7A).
Pricing principles. The regulator may set pricing principles for floor and ceiling prices that are to guide negotiation and arbitration (s 27). The arbitrator must take those pricing principles into account (s 38(1)(g)) and ss 27-38(2) spell out principles about multipart pricing, discriminatory terms and incentives for cost reduction.
Confidential information. Information obtained under ss 29 or Part 5 that could affect competitive position or is commercially valuable is confidential (s 33A(1)). The Act prohibits unauthorised disclosure and use (s 33A(2)-(3), (6)) and requires operators to adopt a policy to protect confidential information and provide it to the regulator (s 33A(7)-(8)). There are specified exceptions, including disclosure to the regulator and public interest disclosure by the regulator (s 33A(4)-(5)).
Arbitration regime. Access disputes can be referred to arbitration by the regulator on application (ss 34-36). The Act prescribes appointment criteria for arbitrators (s 37), procedural powers (ss 42-47), grounds for termination or refusal to refer to arbitration (s 36(3), s 49), and constraints on awards (s 52). Notably the Commercial Arbitration Act 1986 does not apply to these arbitrations (s 59).
Non‑discrimination and preventing obstruction. Operators must not unfairly discriminate between proponents or industry participants in preference, terms or waivers (s 23). Operators and related bodies must not engage in conduct intended to prevent or hinder access (s 24). Those provisions are enforceable by the regulator and can lead to reports to the Minister (s 25).

These core concepts are operationalised through notice timings (e.g., information brochure: 30 days, s 28(2)), thresholds for regulator notice (s 31(3a)), and arbitration timelines (standard period six months from referral, s 50A). The definitions and procedural scaffolding allocate who may make proposals (proponents), who is a respondent, which matters are confidential, and what considerations an arbitrator must weigh (s 38). The objects provision (s 3) threads through the arbitration principles (s 38(1)(a)) and is therefore consequential for interpreting obligations and awards.

The Act identifies and affects a set of discrete actors; the practical obligations and potential liabilities differ across them.

Operators. Defined as persons who provide, or are in a position to provide, railway services (s 4). Operators carry the bulk of ongoing compliance duties: they must segregate railway accounts to give a true and fair view of the railway service business (s 22 and s 22(1a) where infrastructure is provided to others), provide information brochures on request within 30 days (s 28), supply information about infrastructure utilisation and feasibility of expansion on application (s 29), keep access contracts on file and provide copies confidentially to the regulator (s 61), comply with notices from the regulator to supply cost‑monitoring information (s 60) and general information or documents (s 62), and maintain roads where railway infrastructure causes deterioration (s 13). Operators also have operational powers such as acquiring land with Ministerial consent (s 10) and installing infrastructure on roads with the Minister’s consent (s 12).
Industry participants and proponents. The term industry participant covers operators and those who operate or propose to operate rolling stock (s 4). A proponent is an industry participant that makes an access proposal (s 31(1)). Proponents have rights to request information (s 29), to receive an information brochure (s 28), to require the operator to negotiate in good faith (s 32), and to ask the regulator to refer an access dispute to arbitration (s 35). Proponents also bear procedural costs: they can be liable for arbitration costs and for full costs if they terminate or elect not to be bound by an award (s 57).
Respondents and existing users. Respondents to proposals include the operator and other industry participants whose rights could be affected by implementation (s 31(4)). Respondents have procedural rights to be notified of proposals (s 31(3)) and to make formal objections (s 33(2)). The Act protects existing industry participants’ contractual entitlements against prejudicial awards unless the arbitrator is satisfied specified conditions are met (s 52(2)).
Regulator and Minister. The Essential Services Commission is the regulator (s 9(1)) and has monitoring, enforcement and referral functions across the access regime (s 9(2), ss 36, 60-64). The regulator also conducts periodic reviews of the access regime and reports to the Minister, who then lays the report before Parliament (s 7A, s 9A). The Minister retains decision‑making roles: consenting to road works and temporary closures (ss 12(1), 13A(1)), authorising liquor and gambling on passenger services after consultation with the Liquor and Gambling Commissioner (ss 18-19), and receiving reports from the regulator (s 9A).
Courts. The Supreme Court hears appeals on questions of law from arbitrator awards (s 56) and may appoint administrators in insolvency or misuse situations (s 26), grant injunctions (s 65), award compensation (s 66) and enforce arbitrators’ certificates (s 67). The Court is the ultimate enforcement forum for non‑compliance and disputes about remedy.
Third parties and public bodies. Local councils are indirectly affected because rail corridors are exempt from land tax and certain rates (s 16). Road authorities and users are affected by operators’ powers to install infrastructure on roads with Ministerial consent and the operator’s responsibility to make good damage to roads (ss 12-13). Persons who supply confidential information (proponents or respondents) are affected by confidentiality rules and can be exposed to disclosures by the regulator in defined public interest circumstances (s 33A(5)).

Who pays and who bears risks. Operators bear direct compliance costs: maintaining separate accounts (s 22), complying with regulator information requests with potential $60,000 fines for non‑compliance (ss 60, 62), and indemnities for road damage (s 12(6)). Proponents bear transactional and arbitration costs and the risk of being barred from making new proposals for 12 months if they elect not to be bound by an award (s 54(3)). The Crown is expressly bound by the Act (s 8), but the Minister’s grant of consent under the road works division attracts statutory immunity for the Crown (s 13B), shifting some risk onto private operators.

The Act places discrete duties on operators and other industry participants and confers particular rights to negotiate, seek arbitration and seek judicial relief. Below are the obligations and rights that shape commercial conduct.

Key duties on operators

Segregation of accounts. Operators must keep accounts and records of their railway service business so as to give a true and fair view of that business separate from other businesses (s 22(1)). Where the business includes provision of infrastructure for others, that part must be separately shown (s 22(1a)).
Non‑discrimination. Operators must not unfairly discriminate between proponents in preferring one access proposal to another and must not unfairly discriminate in terms and conditions of access (s 23(1)-(2)). The section explicitly prohibits non‑uniform waiver of rights and kick‑back arrangements (s 23(3)). A person who aids or conspires in discrimination is also caught (s 23(4)-(5)).
No prevention or hindrance of access. Operators, related bodies corporate and other industry participants must not engage in conduct for the purpose of preventing or hindering access (s 24). The definition of conduct includes omissions and delays; purpose can be inferred from corporate controllers’ state of mind (s 24(1)-(2)).
Information obligations. On application, operators must provide an information brochure within 30 days stating terms for passenger or freight services and the terms on which infrastructure will be made available (s 28(1)-(3)). Operators must provide additional information reasonably requested by persons with a proper interest about utilisation, feasibility of expansion and likely terms and prices (s 29(1)). Operators may charge a reasonable fee for providing that information (s 29(2)).
Road works and maintenance. Operators need Ministerial consent to install, alter or operate infrastructure on roads (s 12(1)-(2)), must comply with consent conditions (s 12(3)), may temporarily close roads with consent (s 13A), and must make good damage to roads caused by their exercise of those powers (s 12(6), s 13).

Key duties on all participants

Good faith negotiation. The operator and other respondents must negotiate in good faith with the proponent to reach agreement on whether requirements can reasonably be met and on terms for access (s 32(1)-(2)).
Confidentiality and use of information. Confidential information obtained under s 29 or Part 5 must not be disclosed or used except in specified circumstances (s 33A(2)-(3), (6)). Operators must have and maintain a policy to protect such information and provide it on request to the regulator (s 33A(7)-(8)).
Compliance with regulator notices. Operators must comply with regulator notices to provide specified information relevant to monitoring costs (s 60) and with notices to supply information and documents (s 62).

Rights conferred by the Act

Right to propose and seek access. Industry participants have a statutory process for access proposals (s 31). Proponents can request regulator referral of access disputes to arbitration (s 35).
Arbitration rights. The proponent and respondents may have disputes conciliated or referred to arbitration (s 36). Arbitrators must consider a defined list of principles including the Act’s objects, non‑discrimination, operational safety and pricing principles (s 38). Awards must be reasoned and in writing, and the arbitrator must circulate draft awards to parties and the Minister before finalising (s 51).
Limited powers for operators. Operators can deal with fixed railway infrastructure as personal property (s 11), acquire land for construction with Ministerial consent (s 10) and seek Ministerial authorisation to sell liquor or provide gambling facilities where reasonably incidental to passenger services (ss 18-19).
Judicial relief and enforcement. Parties with a proper interest and the regulator can apply to the Court for injunctions (s 65). The Court may order compensation for contraventions (s 66) and enforce arbitrator requirements where a party fails to comply (s 67). Appeals on questions of law from awards lie to the Supreme Court (s 56).

Process constraints

Notice thresholds and constraints on contracting. The operator must notify the regulator and affected industry participants on receipt of an access proposal, unless the contract would be of annual value under $50,000 or term under two months (s 31(3), (3a)). An operator must not enter into an access contract where there are other respondents unless all agree, or unless notice is given and no formal objection is lodged within 21 days (s 33(1)-(3)). Contracts in breach of s 33 are void (s 33(3)).

These duties and rights create a regulated bargaining environment, balancing information flows, confidentiality, process rights and enforcement measures to make third‑party access commercially governable without forcing capital contributions by operators (s 52(1)).

The Act combines administrative, civil and monetary sanctions and confers significant enforcement tools on the regulator and the Supreme Court. The regime emphasises coercive remedies (injunctions, compensation, contract voidness) and statutory fines for particular contraventions.

Monetary penalties

Road consent conditions and maintenance. Contravening a condition on a Ministerial consent for works on roads is an offence carrying a maximum penalty of $100,000 (s 12(3)). Failure to maintain roads to the extent caused by the operator’s infrastructure carries the same maximum penalty (s 13(1)). Temporary road closure condition breaches also attract a $100,000 maximum penalty (s 13A(3)).
Information brochure. Failing to provide an information brochure in accordance with s 28 is an offence with a maximum penalty of $20,000 (s 28(6)).
Confidentiality. Breach of the confidentiality duties under s 33A(2) and (3) are subject to maximum penalties of $15,000 (s 33A(2)-(3)). Using confidential information to secure a competitive advantage is penalised by a maximum of $100,000 (s 33A(6)).
Arbitration process. Failure to comply with an arbitrator’s requirement to produce information, documents or attend as a witness is an offence punishable by up to $15,000 (s 47(4)). Failure to comply with conditions imposed by an arbitrator limiting disclosure of documents attracts a maximum penalty of $60,000 (s 48(3)).
Regulatory notices. Non‑compliance with regulator notices to provide information for cost monitoring or other matters is an offence carrying a $60,000 maximum penalty (ss 60(2), 62(2)).

Civil and equitable enforcement

Injunctions. The Court may grant injunctions restraining contraventions or requiring compliance with the Act or an arbitrator’s award (s 65(1)). The Court may grant interim injunctions (s 65(4)). The regulator may apply for injunctions without the Court requiring an undertaking as to damages (s 65(7)). A person with a proper interest may also apply for injunctive relief (s 65(5)(b)).
Compensation. The Court may order compensation for persons who suffer loss or damage as a result of contraventions of the Act or an award (s 66(1)-(2)). Orders may be made against primary offenders and those involved in the contravention (s 66(2)-(3)).
Voidness and rescission. Contracts concluded in contravention of the procedural constraints in s 33 are void (s 33(3)). A proponent may elect not to be bound by an award within seven days, rescinding the award and facing a 12‑month bar on making another access proposal unless the regulator authorises otherwise (s 54(1)-(3)).
Enforcement of arbitrator requirements. Arbitrators may certify non‑compliance to the Court and the Court may make such orders as appropriate (s 67).

Costs and procedural consequences

Arbitration costs. Costs are borne by parties in proportions decided by the arbitrator; absent a decision, costs are shared equally (s 57(1)). If a proponent terminates or elects not to be bound by an award, the proponent must bear costs in their entirety (s 57(2)).
Appeal limits. Appeals on questions of law lie to the Supreme Court (s 56(1)), but awards are otherwise not subject to challenge except by the limited appeal mechanism set out in s 56(3). Appeals do not suspend the operation of awards unless the Court orders suspension (s 56(4)).

Regulatory enforcement discretion

The regulator has discretion not to refer a dispute to arbitration where the subject matter is trivial, the applicant has not negotiated in good faith, or there are other good reasons (s 36(3)). This discretion, together with the regulator’s power to impose conditions on disclosures and to monitor costs, gives the regulator significant practical leverage over the access process (ss 36, 60-63).

Overall the Act links criminal and civil enforcement: statutory fines for specific failures and broader equitable relief and compensation through the Court. The regulator is given active enforcement powers, and the Court has broad remedial jurisdiction to issue injunctions and compensation orders. Practical risk management for operators and proponents requires careful compliance with notice, information and confidentiality rules because the monetary and non‑monetary penalties are substantive.

The Act expressly cross‑references and modifies the interaction with several other statutory regimes. The interaction points determine the perimeter of regulatory power, applicable procedural law and consequential rights.

Essential Services Commission Act 2002. The Act designates the Essential Services Commission (ESC) as regulator (s 9(1)). The ESC’s monitoring and enforcement functions under this Act are distinct and the ESC must report annually to the Minister on its work under the Act (s 9A). Any ESC statutory powers under its enabling Act will be exercised alongside duties created here.
Land acquisition and property law. Acquisition of land by operators for railway construction requires the Minister’s written consent and is subject to the Land Acquisition Act 1969 (s 10(1)-(2)). Section 11 departs from ordinary fixtures law by declaring fixed railway infrastructure does not merge with land and may be dealt with as personal property, with implications for securities, sale and transfer.
Rail Safety National Law and private sidings. The definition of railway infrastructure excludes a private siding within the meaning of the Rail Safety National Law (South Australia) Act 2012, except where a private siding is prescribed by regulation to be railway infrastructure for the purposes of this Act (s 4). That exclusion coordinates safety regulation and access regulation by excluding certain sidings from the Act unless regulations extend coverage.
Liquor and gambling regulation. Ministerial authorisations are required for sale of liquor and provision of gambling facilities on passenger trains or associated premises; the Liquor Licensing Act 1985 and State gambling laws apply with modifications as prescribed by regulation when authorisations are granted (ss 18-19). The Minister must consult the Liquor and Gambling Commissioner before granting an authorisation (ss 18(2), 19(2)).
Commercial Arbitration Act 1986. An arbitration under Part 6 is expressly not subject to the Commercial Arbitration Act 1986 (s 59). That exclusion means procedural and evidentiary rules and appeal rights under the Commercial Arbitration Act do not apply; instead the Act prescribes its own arbitration procedures, timeframes and appeal limited to questions of law to the Supreme Court (s 56).
Local government revenue and taxation. Rail corridors are exempted from land tax and rates and compulsory charges under the Local Government Act 1934 (s 16). That provision reduces local government revenue exposure to corridor lands and affects the local fiscal impact of railway operations.
Corporations Law and secured creditors. While the Act refers to related bodies corporate and related definitions under the Corporations Law (s 4), it also allows the Court when appointing an administrator to be bound by principles and criteria agreed between the State and the operator or the State and a secured creditor affecting when the Court’s jurisdiction is invoked (s 26(2)). That acknowledges negotiated creditor arrangements and the interaction with insolvency processes.
Regulations and proclamations. The Governor may make regulations or proclamations for the purposes of the Act and may exclude railways from its application (s 6) or switch on/off the access regime by proclamation (s 7). Regulations can also prescribe evidentiary presumptions and fines not exceeding $2,500 for contravention of regulations (s 68). The promulgation power provides the mechanism for tailoring the Act’s coverage and operation in relation to specific railways.
Judicial remedies and general law. The Act’s injunction, compensation and enforcement provisions (Part 8) work within the Supreme Court’s powers; the Court may exercise equitable remedies in a manner consistent with the Act’s objects and express provisions (ss 65-67).

In short, the Act sits alongside land acquisition law, safety law, liquor and gambling regulation, the Corporations Law and local government rates law, while creating a bespoke arbitration regime that operates outside the Commercial Arbitration Act. Practitioners must therefore map an access or enforcement matter across multiple statutes: property and acquisition rules (s 10-11), safety and siding definitions (s 4, cross‑refs to Rail Safety National Law), licensing regimes for liquor and gambling (ss 18-19), and the ESC’s regulatory sphere (s 9). The Act expressly anticipates and permits regulatory tailoring through proclamations and regulations (ss 6-7, 68).

The legislative history section at the end of the text records multiple amendments and inserts over time. The following is an itemised account of the amendments included in the provided legislative history and the substantive insertions that the schedule records.

1997 (No 55) , Principal Act, assented 31 July 1997, commenced 11 September 1997.
2000 (No 42) , Alice Springs to Darwin Railway (Miscellaneous) Amendment Act 2000, assented 13 July 2000, commenced 21 December 2000. The history shows s 7(3) was inserted by 42/2000 s 8(a) (note at Pt 1 Div 4).
2001 (No 18) , Statutes Amendment (Gambling Regulation) Act 2001, assented 31 May 2001, with specified commencement items on 1 October 2001. The amendments affected ss 18(2) and 19(2) per the schedule.
2005 (No 16) , Railways (Operations and Access) (Regulator) Amendment Act 2005, assented 26 May 2005, commenced 1 July 2005. The amendment substituted the regulator provision (s 9) to identify the Essential Services Commission (s 9 substitution referenced at Pt 1 Div 6).
2007 (No 46) , Rail Safety Act 2007, assented 8 November 2007; various consequential deletions and insertions occurred later with commencement dates noted (e.g., some deletions on 29 September 2008).
2009 (No 51) , Rail Commissioner Act 2009, assented 5 November 2009; inserted Schedule 1 transitional provision (Sch 1 cll 2 & 3) which commenced on 3 December 2009 (Gazette 3.12.2009 p5980).
2010 (No 10) , Railways (Operations and Access) (Miscellaneous) Amendment Act 2010, assented 5 August 2010, commenced 1 September 2010. Substantive insertions and substitutions include new pricing principles wording, s 22(1a) (segregation of accounts for infrastructure provided to others), s 31(3a) (notice exceptions for small contracts), insertion of Part 5A (confidential information) and s 50A (time limit for arbitration) and other amendments to s 38 (arbitration principles).
2011 (No 42) , Railways (Operations and Access) (Access Regime Review) Amendment Act 2011, assented 17 November 2011, commenced 3 February 2012. This Act inserted s 7A requiring the regulator to review and report on the access regime and provided for expiry unless extended (s 7A).
2012 (No 14) , Rail Safety National Law (South Australia) Act 2012, assented 10 May 2012, with parts commencing 20 January 2013 and consequential amendments to definitions (railway infrastructure) recorded.
2019 (No 25) , Statutes Amendment and Repeal (Simplify) Act 2019, assented 3 October 2019; changes include substitution of s 7A(2) per s 82, commenced 3 October 2019.

The legislative history table at the end of the text provides itemised references to which provisions were altered by particular amending Acts and the dates of commencement of those variations (for example, s 22(1a) was inserted by 10/2010 s 7 and commenced 1 September 2010). The history also records deletions, for example earlier provisions that were removed by the Rail Safety Act 2007 (29 September 2008 commencement for certain parts).

Practitioners should note the Act has been iteratively adjusted to:

change institutional allocations (regulator designation in 2005, s 9);
strengthen confidentiality and data obligations (insertion of Part 5A in 2010, s 33A);
introduce sunset/review mechanics for the access regime (s 7A in 2011); and
update definitions to align with rail safety national law (2012 amendments to railway infrastructure).

The legislative history included in the source is the authoritative list of amendments recorded in this Act text; it is the appropriate starting point for any statutory history analysis or for tracing the effect of amendments on specific sections identified above.

The text of the Act provided does not record judicial decisions or a litigation history. No cases are named in the statute or its legislative history as reproduced here. The Act provides its own internal dispute resolution pathway and appellate mechanism:

Access disputes proceed by conciliation and, where necessary, referral to arbitrators under Part 6 (ss 34-37, 36).
An appeal on a question of law from an arbitrator’s award lies to the Supreme Court of South Australia (s 56(1)). The statutory powers on appeal are limited in scope and are set out in s 56(2) (vary, revoke, make an award that should have been made, remit to the arbitrator, make incidental orders). An award or decision of an arbitrator cannot be challenged except by appeal under s 56(3).
Awards operate unless suspended by specific Court order; the Act provides that appeals do not automatically suspend awards (s 56(4)).

Because the Act sets out a privatised arbitration mechanism that disapplies the Commercial Arbitration Act 1986 for these matters (s 59), litigation on access matters will typically run through the processes the Act prescribes before reaching the Supreme Court on legal questions. If a practitioner needs case law applying the Act, they will need to search court and tribunal databases for decisions that interpret these provisions; none are cited in this printed text.

The Act does, however, point to judicial avenues for remedies and enforcement: the Court may appoint an administrator where an operator becomes insolvent or ceases to provide services or fails to make efficient use of infrastructure (s 26), it may grant injunctions (s 65), award compensation (s 66), and it may enforce arbitrator certificates (s 67). Those are the principal litigation and remedial interfaces between the statutory regime and the courts.

For an actual litigation history, practitioners should conduct a jurisdictional search of Supreme Court of South Australia and lower court decisions, and consult the Essential Services Commission’s reports on dispute referrals and arbitrations, because the statute itself supplies only the procedural architecture and not the catalogue of judicial interpretations.

The Act contains several provisions that produce material practical consequences which can easily be overlooked without careful reading of thresholds, timing, discretion and exceptions.

Access regime is not automatic. The access regime (Parts 3-8) only applies to those operators and railway services declared by proclamation (s 7(1)-(2)). That means the statutory access pathway is switched on case‑by‑case by the Governor. Practitioners must check whether the particular railway or operator is subject to the access regime; s 7(3) additionally exempts the AustralAsia Railway (Third Party Access) Act 1999 railway from this Act’s access regime.
Review and expiry mechanics. The access regime will expire at the end of a prescribed period unless the regulator recommends continuation and the period is extended by regulation (s 7A(4)-(6)). The prescribed period structure is particular: it references a period ending 30 October 2015 and each successive five years thereafter (s 7A(7)). Practitioners should be alert to temporal limits on access coverage and the regulator’s review timetable.
Small contracts carve‑out from regulator notice. An operator need not notify the regulator of an access proposal if the contract to be executed would be of annual value under $50,000 or have a term under two months (s 31(3a)). That creates a de minimis pathway where regulator oversight and some procedural protections do not apply.
Contracts entered in breach of s 33 are void. Operators cannot lawfully enter into access contracts without satisfying the procedural safeguards (s 33). A contract entered in contravention of s 33 is void (s 33(3)). That is a hard consequence and creates a transactional risk if the operator fails to follow the notice and objection process.
Confidentiality exceptions and regulator disclosure. While Part 5A robustly protects confidential information (s 33A(2)-(3)), the regulator may disclose confidential information to the Minister or to the public if it considers that disclosure is in the public interest (s 33A(5)). s 63 also permits the regulator to disclose confidential information to the Minister if in the public interest. Operators and proponents must account for this limited governmental exception when deciding what to label confidential.
Arbitrator cannot force capital contributions. An arbitrator may not require an operator to bear capital costs of additions or extensions to infrastructure unless the operator agrees (s 52(1)). That limits remedies available to proponents who need new capital works and shifts negotiation leverage to owners of infrastructure.
Time limits in arbitration and pausing for information. Awards are to be made within six months of referral (s 50A(1)), but any period between an arbitrator’s exercise of a power to obtain information and compliance is excluded from computation (s 50A(2)). Practitioners should plan for potential suspensions if complex discovery or document production is required.
Confidentiality protections within arbitration carry substantial penalties. A person who contravenes conditions imposed by an arbitrator limiting disclosure can face a maximum penalty of $60,000 (s 48(3)). Separately, misuse of confidential information to secure a competitive advantage attracts a $100,000 maximum penalty (s 33A(6)).
Operator’s right to treat fixed railway infrastructure as personal property. Section 11 declares fixed railway infrastructure may be dealt with as personal property despite other law. This can have non‑obvious consequences for security interests, taxation and transfer processes because common law fixtures rules will not automatically apply in the usual way.
Road works require Ministerial consent and operators bear repair liability. Operators may install and operate infrastructure on roads with the Minister’s consent (s 12(1)), but must make good any damage to roads caused by exercise of that power (s 12(6)) and may face penalties for failing to comply with consent conditions (s 12(3)). Also, an operator must maintain parts of a road between rails and within a prescribed distance beyond rails (s 13(1)(b)).
Appeals limited to questions of law and awards continue unless stayed. Appeals from arbitrator awards are limited to questions of law (s 56(1)). Further, an appeal does not automatically stay an award unless the Court orders otherwise (s 56(4)); parties need to apply for suspension where necessary.
Proponent withdrawal penalty. A proponent who elects not to be bound by an award must notify the regulator within seven days and faces a 12‑month bar on making another access proposal unless the regulator consents (s 54(1)-(3)). This creates a strategic cost to rejecting awards.
Regulator discretion to refuse arbitration. The regulator is not obliged to refer a dispute to arbitration if it considers the dispute trivial, misconceived, the applicant failed to negotiate in good faith, or there are good reasons for refusal (s 36(3)). That adds threshold risk to prospective applicants.

These provisions create a complex rule set where procedural non‑compliance can undo contracts, confidentiality exceptions can undermine expectations of privacy, and regulator discretion can block arbitration. Parties should treat process steps (notice, timelines, information disclosure, confidentiality policies) as binding commercial controls and document compliance carefully.

This section sets out a practical, section‑referenced compliance checklist and recommended actions for operators, proponents and other affected parties to manage statutory obligations and regulatory risk.

For operators

Corporate and accounting separation
- Maintain separate accounts and records for the railway service business to give a true and fair view distinct from other business lines (s 22(1)). If you provide infrastructure for other industry participants, segregate the accounting for that activity as required by s 22(1a).
- Ensure disclosures capture legal and equitable rights and liabilities, income and expenditure and assets/liabilities relating to railway infrastructure (s 22(2)(a)-(b)).
Information brochure and information supply
- Prepare an information brochure template that meets regulator form requirements and refers to relevant pricing principles (s 28(1), (3)-(4)).
- Be ready to supply an information brochure on written application within 30 days (s 28(2)); provide a copy to the regulator within 14 days of supplying it (s 28(5)).
- Establish an information provision process to respond to s 29 requests on utilisation, expansion feasibility, and likely terms/prices, and have a fee policy approved or determinable under the regulator’s rules if charging for information (s 29(2)-(3)).
Confidential information policy
- Develop and maintain a written policy to ensure confidential information is not disclosed or used except as authorised by s 33A (s 33A(7)). Provide the policy to the regulator and on request to others (s 33A(8)).
- Train staff on permitted disclosures, including the regulator’s public‑interest disclosure exception (s 33A(5)), and on the penalties for misuse (s 33A(6)).
Process for access proposals and negotiation
- Implement internal procedures to respond to access proposals promptly; give the regulator and affected industry participants notice on receipt of a proposal unless it falls within the small contract exception (s 31(3), (3a)).
- Negotiate in good faith as required by s 32. Document negotiation steps and maintain records showing reasoned responses to proponents to reduce the risk that the regulator will treat conduct as refusing or failing to negotiate in good faith.
Road works and maintenance compliance
- Obtain Ministerial consent for installation, alteration or operation of infrastructure on roads, track and other public ways (s 12(1)-(2)); comply with consent conditions to avoid the $100,000 penalty (s 12(3)).
- Maintain and repair roads when your fixed railway infrastructure causes or contributes to deterioration; be aware of the prescribed distance responsibilities near rails (s 13(1)-(2)).
Contracting and objection handling
- Follow s 33’s objection and notice process before entering into access contracts where other respondents exist. Ensure legal review of proposed access contracts to avoid voidness for procedural breach (s 33(3)).
Regulatory notices and record retention
- Prepare to comply with cost monitoring and information notices under ss 60 and 62. Non‑compliance carries substantial maximum penalties ($60,000).
- Provide confidential copies of all access contracts to the regulator within 30 days of their making (s 61).
Arbitrations and evidence
- Maintain internal capacity to respond to arbitrator information requests and produce documents under s 47. Ensure privilege and self‑incrimination grounds are identified where relevant (s 47(5)).
- Keep a litigation/arbitration readiness plan to respond to arbitrator draft awards and to the Minister’s right to participate (s 51(1), s 41).

For proponents and respondents

Proposal preparation
- Prepare detailed written access proposals that set out the nature and extent of access sought and commercially realistic terms the proponent is prepared to accept (s 31(1)). If infrastructure additions are required, include that in the proposal (s 31(2)).
Timely engagement
- Expect 30 days as the baseline response period; failure by the operator to respond within 30 days is an access dispute triggering the arbitration pathway (s 34(a)). Document all negotiation attempts and communications to demonstrate good faith (s 34(b)-(c)).
Confidentiality management
- When supplying commercially sensitive information under s 29 or Part 5, label documents and ensure release is limited to purpose, and consider seeking contractual confidentiality protections that align with s 33A’s permitted exceptions. Remember the regulator may disclose in the public interest (s 33A(5)).
Arbitration strategy
- Consider the costs of arbitration: parties share costs as the arbitrator orders or equally by default (s 57(1)), and a proponent who terminates or elects not to be bound must bear all costs (s 57(2)). Plan resource allocation accordingly.
- Prepare to engage with the six‑month standard arbitration period (s 50A(1)) and to supply documents promptly to avoid suspended timeframes or adverse arbitrator findings.

Cross‑cutting steps

Compliance calendar. Track regulator reporting dates, s 7A review windows and internal deadlines for brochure provision, replies to proposals and regulator notices.
Documentation and audit trails. Keep contemporaneous records of negotiations, notices sent and received, responses to regulator information requests, and copies of access contracts supplied to the regulator to demonstrate compliance.
Legal sign‑off points. Use legal review to ensure consent requirements for road works, by‑law compliance (s 20), and any liquor/gambling authorisations (ss 18-19) are obtained before operationalising services.
Risk allocation in contracts. Where new capital works are required, be explicit in contracts about capital cost allocation and remember an arbitrator cannot compel an operator to bear capital costs of additions or extensions unless the operator agrees (s 52(1)).
Engage the regulator early. Because the regulator has discretion to refuse arbitration in some cases (s 36(3)) and to monitor costs and disclose information in public‑interest circumstances (ss 60, 63, 33A(5)), consider early engagement or pre‑lodgement consultation.

This compliance roadmap translates statutory duties into concrete operational controls. The statute imposes procedural strictures that, if not followed, can void agreements, incur large fines or trigger injunctive relief. Legal and operational teams should coordinate to document compliance and to proactively manage regulator interactions.

Railways (Operations and Access) Act 1997

Plain English Summary

Deep Dive

What it does

Current sections

Railways (Operations and Access) Act 1997

Source text: opening excerpt

1 Railways (Operations and Access) Act 1997

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