Part 2ACCESS TO RAILWAY INFRASTRUCTURE SERVICES

PART 2—ACCESS TO RAILWAY INFRASTRUCTURE SERVICES Division 1—Negotiation of access 9—Obligation of access provider to provide information about access (1) The access provider must, on application of any person, provide the person with information reasonably requested by the person about— (a) the extent to which the access provider's railway infrastructure facilities are currently being used; (b) technical details and requirements of the access provider, such as axle load data, clearance and running speeds; (c) time-path allocation and reallocation policies for the railway; (d) service quality and train management standards; and (e) relevant prices and costs associated with railway infrastructure services provided by the access provider, prepared by the access provider for reference purposes in accordance with guidelines developed and published by the regulator. (2) The access provider may make a reasonable charge (to be determined on a basis decided or approved by the regulator) for providing information under this clause. (3) The access provider must, for the purposes of subclause (1)(c) and (d), develop and maintain time-path allocation and reallocation policies and service quality and train management standards in accordance with principles contained in guidelines developed and published by the regulator. 10—Access proposal (1) A person (the access seeker) who wants access to a railway infrastructure 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 access provider setting out— (a) the nature and extent of the required access or variation; and (b) any other information relevant to formulating a response to the access proposal, including information relevant to determining the price to be charged for access or on account of the variation (as the case may be). (2) If the implementation of an access proposal would require an expansion or extension of railway infrastructure facilities, the access proposal may include a proposal for the expansion or extension of the infrastructure facilities. (2a) An access proposal may involve— (a) a proposal relating to one or more freight services or passenger services and one or more time paths for such services; and (b) a person other than the access seeker who will ultimately require the railway infrastructure services which are the subject of the access request. (3) The access provider may, within 21 days after receiving an access proposal, request further information from the access seeker as the access provider may reasonably require to enable the access provider to consider the access proposal. (4) The access provider must, within 21 days after receiving an access proposal or if, within that period, the access provider has requested further information under subclause (3), within 21 days after receiving the information— (a) give written notice of the proposal to— (i) the regulator; and (ii) any access holder whose rights under an existing access contract or award would be affected by implementation of the proposal; (b) provide to the access seeker the name and contact details of any access holder whose rights under an existing access contract or award would be affected by implementation of the proposal; and (c) provide to the access seeker an indication (even if only a preliminary indication) of the terms and conditions on which the access provider would be prepared to grant access or to make the variation. (5) It is sufficient compliance with subclause (4)(a)(ii) if a notice indicating that the access provider has received the access proposal, and the name of the access seeker, is published in a newspaper circulating in the Northern Territory and South Australia. (5a) A written notice under subclause (4)(a)(ii) will be limited to providing the name and contact details of the access seeker and technical details concerning the nature and extent of the required access or variation. (6) The respondents to the proposal are— (a) the access provider; and (b) any access holder whose rights under an existing access contract or award would be affected by implementation of the proposal. 11—Duty to negotiate in good faith (1) The access provider and access seeker must, as soon as practicable after the response date, endeavour to accommodate each others' reasonable requirements and must negotiate in good faith with a view to reaching agreement on whether the access seeker'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 access seeker. (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 access seeker with a view to reaching agreement on the provision of access to the access seeker and any consequent variation of their rights (or prospective rights) of access. 12—Limitation on access provider's right to contract to provide access (1) The access provider must not enter into an access contract unless— (a) there is no other respondent to the access proposal; (b) all the other respondents to the proposal agree; or (c) any access dispute in relation to the access proposal is resolved by conciliation in accordance with Division 3 or by arbitration in accordance with Division 4. (2) A contract entered into in contravention of this clause is void. 12A—Protection of confidential information (1) Information obtained under this Division that— (a) could affect the competitive position of an access seeker 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 under this Division must not disclose that information unless— (a) the disclosure is reasonably required for the purposes of this Code; (b) the disclosure is made with the consent of the person who supplied the information; (c) the disclosure is required or allowed by law; (d) the disclosure is required by a court or tribunal constituted by law; or (e) the disclosure is in prescribed circumstances. (3) A person who obtains confidential information under this Division must not (unless authorised by the person who supplied the information)— (a) disclose the information to an unauthorised person; or (b) use (or attempt to use) the information for a purpose which is not authorised or contemplated by this Code. (4) Subclauses (1), (2) and (3) do not prevent or restrict the disclosure of information to the regulator and the regulator may in any event disclose confidential information if the regulator is of the opinion that the public benefit in making the disclosure outweighs any detriment that might be suffered by a person in consequence of the disclosure. (5) A person who obtains confidential information under this Division must not use the information for the purpose of securing an advantage for himself or herself or for some other person in competition to the person who provided the information. Penalty: $100 000. (6) The access provider must, in connection with the operation of this clause, develop and maintain policies to ensure that confidential information obtained by the access provider under this Division is not— (a) used in any unauthorised way or for an unauthorised purpose; or (b) provided to an unauthorised person. (7) The access provider must provide a copy of a policy that applies under subclause (6) to the regulator, and to any other person who requests a copy from the access provider. (8) In this clause— unauthorised person means a person who is directly involved, on behalf of the access provider, in the promotion or marketing of freight services or passenger services but does not include a person whose involvement is limited to— (a) strategic decision making; (b) performing general supervisory or executive functions; or (c) providing technical, administrative, accounting, service or other support functions. 12B—Referral of issues to regulator (1) An access seeker, the access provider or any other respondent to an access proposal may request the regulator to consider and, if appropriate, to give advice or directions with respect to any matter that has arisen in connection with the operation of this Division in order to facilitate the conduct of negotiations under this Division. (2) A person making a request under subclause (1) must comply with any requirement published by the regulator for the purposes of this clause. (3) The regulator may decline to consider or act on a request under subclause (1) for any reasonable cause. (4) The regulator may, if the regulator thinks fit, give a general direction to the access provider under subclause (1) in respect of a particular matter under this Division. (5) A person must not, without reasonable excuse, contravene or fail to comply with a direction given by the regulator under this clause. (6) This clause does not limit or affect the ability of an access seeker at any time to request that an access dispute be referred to arbitration under Division 2. Division 2—Access disputes and requests for arbitration 13—Access disputes An access dispute exists if— (a) a respondent to an access proposal, within 30 days after the response date or such other time as may be prescribed, refuses or fails to enter into good faith negotiations with the access seeker; (b) the access seeker, after making reasonable attempts to reach agreement with the respondents, fails to obtain an agreement on the access proposal or an agreed modification of the proposal; or (c) all parties agree that there is no reasonable prospect of reaching agreement. 14—Request for reference of dispute to arbitration (1) An access seeker may, by written notice given to the regulator, request the regulator to refer an access dispute to arbitration. (2) A copy of a notice under this clause must be given to all respondents to the access proposal.