Div 1General

Division 1—General 1—Title This Code may be cited as the AustralAsia Railway (Third Party Access) Code. 2—Application of Code This Code applies to so much of the railway as has been constructed between Tarcoola and Darwin to the extent prescribed from time to time. 3—Interpretation (1) In this Code, unless the contrary intention appears— access contract means a contract or agreement for the provision of railway infrastructure services; access dispute means a dispute referred to in clause 13 or clause 36(2); access holder means a person who has a right of access to railway infrastructure facilities and includes the access provider if or when the access provider is providing a freight service or a passenger service by means of the railway; access provider, in relation to a railway infrastructure service, means the person who provides or is in a position to provide the railway infrastructure service; access seeker has the meaning given by clause 10; arbitrator means an arbitrator appointed under this Code; associate has the meaning given by the Corporations Law; award means an award made by an arbitrator under this Code; corresponding access regime means— (a) — (i) in respect of a service that is declared under Part IIIA of the Trade Practices Act 1974 of the Commonwealth, Part IIIA of that Act; (ii) an access regime in respect of which there is a decision in force by the Commonwealth Minister under section 44N of the Trade Practices Act 1974 of the Commonwealth that the regime is an effective access regime; (iii) an arrangement under an undertaking in operation under section 44ZZA of the Trade Practices Act 1974 of the Commonwealth; or (iv) a code accepted by the Australian Competition and Consumer Commission under section 44ZZAA of the Trade Practices Act 1974 of the Commonwealth, if and only to the extent that the regime allows for the resolution of interface issues arising under two or more railway access regimes; or (b) a law, code, instrument or arrangement declared by the Northern Territory Minister and the South Australian Minister jointly, by notice in the Gazette, to be a corresponding access regime for the purposes of this definition; freight service means the service of carrying goods on the railway; interface issues—these are issues which directly affect two or more railways (including the railway to which this Code applies) and which relate to operating a freight service or a passenger service by means of such railways; Northern Territory Minister means the Minister of the Northern Territory having responsibilities for railways in the Northern Territory; party means— (a) in relation to an arbitration of an access dispute—a party to the arbitration, as mentioned in clause 17; (b) in relation to an award—a party to the arbitration in which the arbitrator made the award; passenger service means the service of carrying passengers on the railway; prescribed means prescribed by the Northern Territory Minister and the South Australian Minister jointly by notice in the Gazette; pricing principles means the pricing principles established by the Schedule; railway means the railway to which this Code applies; railway infrastructure facilities means facilities necessary for the operation or use of the railway, including— (a) the railway track; (b) the signalling systems, train control systems and communications systems; and (c) such other facilities as may be prescribed, but not including rolling stock; railway infrastructure service means the service of providing, or providing and operating, railway infrastructure facilities for the purpose of providing a freight service or a passenger service by means of the railway; regulator—see clause 5; related body corporate has the meaning given by the Corporations Law; required railway infrastructure, in relation to an access seeker or access holder, means that portion of the railway infrastructure facilities required from the access provider in order to provide the relevant railway infrastructure service to the access seeker or access holder (as the case may be); response date means the date on which the relevant 21 day period referred to in clause 10(4) expires; South Australian Minister means the Minister of South Australia having responsibilities for railways in South Australia; Supreme Court means the Supreme Court of the Northern Territory or the Supreme Court of South Australia. (2) A reference in this Code to an arbitrator includes, in a case where there are 2 or more arbitrators, a reference to the arbitrators. (3) A reference in this Code to a person seeking access to a railway infrastructure service includes a reference to a person seeking access on behalf of another person or other persons. (4) For the purposes of the pricing principles, an effective constraint will be taken to exist when it is likely that a supplier (or the threat of entry by a potential supplier) of transportation services by a mode other than rail (supplier A) will prevent another supplier of the same or similar transportation services by rail (supplier B) from sustaining prices materially above supplier B's long term efficient costs of supply without offering materially more in return. (5) The following provisions apply with respect to the prescription of any facilities under paragraph (c) of the definition of railway infrastructure facilities in subclause (1): (a) the Ministers must not prescribe a facility without first consulting with the regulator; and (b) the prescription of a facility must be consistent with the criteria set out in Clause 6(3)(a) of the Competition Principles Agreement referred to in the Trade Practices Act 1974 of the Commonwealth. 4—Joint ventures (1) If the access provider or access seeker consists of the participants in a joint venture, the participants are jointly and severally liable to the obligations under this Code. (2) The participants in the joint venture may, from time to time, give the regulator written notice of an authorised representative (who may, but need not, be a participant in the joint venture). (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 clause, a notice given to any one of the participants in the joint venture is taken to have been given to all. (5) If this Code requires or permits something to be done by the participants, the thing may be done by one or more of the participants on behalf of them all. (6) If a provision of this Code refers to the participants doing something, the provision applies as if the provision referred to one or more of the participants doing that thing on behalf of the participants. (7) A joint venture includes a partnership.