Railways (Access) Act 1998

Part 6 comes into operation on the day on which this Act receives the Royal Assent ¹.

The other provisions of this Act come into operation on such day as is, or days as are respectively, fixed by proclamation ¹.

In this Act, unless the contrary intention appears —

railway track, associated track structures, over or under track structures, supports (including supports for equipment or items associated with the use of a railway);

tunnels and bridges;

stations and platforms;

train control systems, signalling systems and communication systems;

electric traction infrastructure;

buildings and workshops; and

associated plant machinery and equipment,

sidings or spur lines that are excluded by subsection (3) or (4) from being railway infrastructure associated with the railway concerned;

rolling stock, rolling stock maintenance facilities, office buildings, housing, freight centres, or terminal yards and depots;

all the railways that were Government railways when this Act received the Royal Assent ¹;

all the railways that are on land that is corridor land as defined in the Rail Freight System Act 2000;

the railway constructed pursuant to the TPI Railway and Port Agreement; and

any railway declared under subsection (2) to be a part of the railways network;

If a railway (the new railway) is constructed after this Act receives the Royal Assent ¹ and the new railway is connected to a railway that is a part of the railways network, the Minister may, by order published in the Gazette, declare the new railway to be a part of the railways network.

If a siding associated with a railway is managed and controlled by a different person from the person who manages and controls the use of the railway, the siding is not railway infrastructure of the railway for the purposes of this Act.

If a spur line associated with a railway is connected to premises managed and controlled by a different person from the person who manages and controls the use of the railway, the spur line is not railway infrastructure of the railway for the purposes of this Act unless the Minister, by order published in the Gazette, declares that it, or any of it, is railway infrastructure of the railway.

For the purposes of this Act and the Code, the railway constructed pursuant to the TPI Railway and Port Agreement includes the Christmas Creek to Cloud Break spur line and is taken to have included that spur line since construction of the spur line was completed.

Subsections (3) and (4) do not apply to a siding or spur line associated with the railway constructed pursuant to the TPI Railway and Port Agreement.

Without limiting the kinds of rights that can arise under an access agreement, those rights may entitle a person who has access to railway infrastructure to —

use land managed and controlled by the railway owner;

construct and operate a rail or other connection to the railway infrastructure,

Accordingly, the provisions of this Act about agreements and determinations to do with access extend to the matters described in subsection (1).

If the right of the railway owner to manage and control the use of railway infrastructure is for a limited term or is subject to any other restriction imposed by the person through whom the railway owner derives those rights, the railway owner cannot give any right of access greater than the railway owner has.

Upon the premature termination of the railway owner’s right to manage and control the use of railway infrastructure (whether for default or any other reason) —

any right of access given by the railway owner continues as if it had been given by the person for the time being having the right to manage and control the use of the railway infrastructure (the current railway owner); and

an agreement under which the right of access arises has effect, with any necessary modifications, as if the current railway owner were the person who had entered into the agreement as the railway owner,

The Minister is to establish a Code in accordance with this Act to give effect to the Competition Principles Agreement in respect of railways to which the Code applies.

Provision is to be made in the Code —

for railway infrastructure to be available for use by persons other than the railway owner to carry on rail operations in accordance with —

agreements with the railway owner; or

determinations made by way of arbitration;

prescribing —

which parts of the railways network; and

which railway infrastructure associated with those parts,

setting out —

provisions that are to govern the content of agreements and determinations referred to in paragraph (a);

rights, powers and duties that are to apply to and in relation to the negotiation, making, and implementation of agreements; and

duties and requirements in relation to the provision of access that are to be complied with by the railway owner;

for the Regulator to have supervisory and other functions for the purposes of the Code, including a function of determining certain requirements in relation to access that are to be binding on the railway owner, a person making a proposal for access under the Code, and an arbitrator.

Provision may be made in the Code to exclude its application to interstate services and, for that purpose, to define what is an interstate service.

In deciding, for the purpose of establishing or amending the Code, which routes are to be prescribed under section 4(2)(b), the Minister is to consider the questions set out in subsection (3).

If in respect of a route the Minister is satisfied that each of those questions must be answered in the affirmative the route is to be prescribed under section 4(2)(b).

The questions are —

whether access to the route will promote competition in at least one market, other than the market for railway services;

whether it would be uneconomical for anyone to establish another railway on the route;

whether the route is of significance having regard to —

its length;

its importance to trade or commerce; or

its importance to the economy;

whether access to the route can be provided without undue risk to human health or safety;

whether there is not already effective access to the route; and

whether access or increased access to the route would not be contrary to the public interest.

A decision of the Minister of the kind referred to in subsection (1) is not liable to be challenged in, or reviewed or called in question by, a court.

In this section —

a particular part of the railways network; and

the associated railway infrastructure.

The Code may also make provision for or in relation to —

the registration of access agreements;

the arbitration of disputes between a railway owner and a person who has made a proposal for access under the Code;

the establishment of panels of arbitrators, and the appointment of arbitrators, by the Regulator;

the functions of the Regulator;

the regulation of matters —

of a savings, transitional or supplementary nature; or

that are otherwise necessary or convenient for the purposes of this Act.

Transitional provisions referred to in subsection (1)(d)(i) may authorise the Minister to determine by order published in the Gazette how any matter in progress immediately before the commencement of this Part is to be treated, after that commencement, for the purposes of the provisions of the Code.

does not affect the terms and conditions, or the operation, of an agreement for the use of railway infrastructure made with a railway owner before the commencement of the Code whether under section 61 of the Government Railways Act 1904 or otherwise; and

does not afford a party to such an agreement any ground or reason for not complying with the agreement according to its terms and conditions.

The Code is subsidiary legislation within the meaning of the Interpretation Act 1984.

The Code is to be laid before each House of Parliament within 6 sitting days of that House next following publication of the Code in the Gazette.

Notice of motion to disallow the Code or any part of the Code may be given in either House of Parliament within 10 sitting days of that House after the Code has been laid before it under subsection (2).

Within 10 sitting days of a House of Parliament after notice of motion has been given in that House under subsection (3), that House may pass a resolution disallowing the Code or any part of the Code.

If the Code is not laid before both Houses of Parliament under subsection (2), or is disallowed by either House under subsection (4), the Code ceases to have effect, but without affecting the validity or curing the invalidity of anything done or the omission of anything in the meantime.

If a resolution has been passed under subsection (4), notice to that effect is to be published in the Gazette within 21 days.

In this section —

an amendment of the Code; or

a code repealing and replacing the Code.

Before the Minister exercises the power —

to amend the Code; or

to repeal and replace it,

The Minister must —

cause a notice giving a general description of the proposal to be published in one issue of —

a daily newspaper circulating throughout the Commonwealth; and

a daily newspaper circulating throughout the State;

include in the notice the following information —

the places at which a copy of the proposal may be obtained;

a statement that written submissions on the proposal may be made to the Minister by any person within a specified period; and

the address to which the submissions may be delivered or posted.

The period specified under subsection (2)(b)(ii) is not to be less than 30 days after both of the notices under subsection (2)(a) have been published.

The Minister must have regard to any submission made in accordance with the notice.