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Committee Name:

Constitutional Affairs Committee (1989 - 2001)


Legislative Council
Report Type:Report


Report in relation to the Government Railways (Access) Bill 1998
Report No:26
No of Pages:29
Physical Location:Legislative Council Committee Office

Presentation Date:


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Hide details for Executive SummaryExecutive Summary

The purpose of the Government Railways (Access) Bill 1998 is to provide a framework where third parties can negotiate access with the owner of the rail network, Westrail, on transparent and equal terms. The Government Railways (Access) Bill 1998 addresses a range of matters which include the designation of a Regulator with monitoring and enforcement functions, amendments to the National Rail Corporation Agreement Act 1992 to enable National Rail to compete for intra-state services on equal footing with other operators and amendments to the Western Australia Government Railways Act 1904 to remove existing barriers to competition.

The Government Railways (Access) Bill 1998 provides for the establishment of a Rail Access Code to govern the use of government railways for rail operations by persons other than Westrail. The Rail Access Code outlines the process and procedures to negotiate access, matters to be considered in access agreements, information requirements of the Regulator and the pricing principles to be applied in determining prices to be paid for access.


The Constitutional Affairs Committee’s report makes recommendations in relation to each and every clause of the Government Railways (Access) Bill 1998 and, where appropriate, provides comment on the clause. The Committee has recommended that all clauses should be passed with the exceptions of clause 9, clause 12 (1) (b) and certain clauses in Part 3 where it has been recommended that -

Clause 9 - Code is subsidiary legislation

The clause to be fully debated in the House concerning whether the Code should be disallowable (see comments page 11).
    Clause 12 - Three-yearly review of the Code
      Page 8, line 27 - To delete "3" and substitute the following -
      " 5 " (see comments page 14).
        Part 3 - The Regulator

        Part 3, clause 14, of the Bill provides that the "functions of the Regulator under this Act and the Code are to be performed by the person who for the time being holds, or is acting in, the office of Director General of Transport under section 8 of the Transport Co-ordination Act 1966".

        The Committee understands that the National Competition Council ("NCC") has expressed concerns regarding the independence of the Regulator as defined in the Bill. In particular, the NCC has commented that a Regulator within a Minister’s Department, particularly one closely linked to the Minister in other areas, will remain influenced by a range of objectives that can conflict with the requirements of an independent Regulator.

        The NCC noted that there are a number of access regime models which could satisfy the Competition Principles Agreement ("CPA") requirement for independence of a Regulator. For example, South Australia has proposed the South Australian Independent Pricing and Access Regulator ("SAIPAR"). The key feature of SAIPAR is that it will be entirely independent of direction or control by the Crown or any Minister or Officer of the Crown.

        In these circumstances, the Committee agrees with the NCC’s concerns regarding the independence of the Regulator. Moreover, the Committee considers that Western Australia should adopt a model similar to South Australia in order to comply with the CPA requirement that a Regulator of an access regime be independent. The Committee believes that such an office should be established within a twelve (12) month period. Until that time, the Committee considers that it would be preferable for the functions of the Regulator to be performed by the Commercial Tribunal in order to ensure independence (see comments on page 15).