Australian Rail Track Corporation (ARTC)—2008 access undertaking (ACCC final decision)
On 30 July 2008, the ACCC accepted ARTC’s interstate rail Access undertaking (ARTC’s undertaking).
ARTC’s undertaking sets out the principles and processes under which ARTC, as an infrastructure provider of rail, will be obliged to provide access to businesses wishing to run trains on ARTC’s interstate rail network. The interstate rail network covers the mainline standard gauge track linking Kalgoorlie in Western Australia, Adelaide, Wolseley and Crystal Brook in South Australia, Melbourne and Wodonga in Victoria and Broken Hill, Cootamundra, Albury, Macarthur, Moss Vale, Unanderra, Newcastle (to the Queensland border) and Parkes in New South Wales (NSW).
ARTC’s application to vary the 2008 Interstate Rail Access Undertaking
On 9 October 2008, ARTC submitted an application to vary the 2008 Interstate Rail Access Undertaking with the ACCC under s.44ZZA(7) of the Trade Practices Act 1974 (the Act). The 2008 Interstate Rail Access Undertaking came into operation on 20 August 2008 and has a 10 year term. ARTC’s proposed variation relates to the indemnity and loss regime in clause 15 of the Indicative Access Agreement (IAA) of the Undertaking so that the liability of either party to third parties for loss or damage is limited in certain circumstances.
The ACCC released an Issues Paper on 31 October 2008 regarding ARTC's application for variation, and invites interested parties to provide submissions on the proposed variation by close of business on 21 November 2008.
The ACCC has engaged in an extensive public consultation process in preparing for its final decision on ARTC’s Interstate access undertaking application.
The ACCC had regard to ARTC’s Undertaking application and other information provided to the ACCC, submissions made on the June and December undertakings, including responses to the Draft Decision, consultants engaged by the ACCC to review the efficiency of ARTC’s operating and maintenance expenditure, cost allocation methodology and proposed valuation of network assets, and the ACCC’s own research.
History to the final decision
The history of the ACCC’s assessment process is detailed below.
ARTC’s June 2007 undertaking application (the June undertaking)
On 8 June 2007, ARTC lodged an access undertaking application (the June undertaking) with the ACCC for assessment under s.44ZZA of the Trade Practices Act 1974 (the Act).The June undertaking was to replace ARTC’s 2002 undertaking which lasted for five years and expired on 30 June 2007.
The ACCC released an issues paper on 22 June 2007 regarding the June undertaking which called for submissions from stakeholders. Seven submissions were received.
ARTC’s withdrawal of the June 2007 undertaking application (15 October 2007)
Drawing on submissions on the 22 June 2007 issues paper and ARTC’s application, the ACCC sought further information and clarification from ARTC on its June undertaking. However, on 15 October 2007, ARTC withdrew its June undertaking from the consideration of the ACCC.
The ACCC released an issues paper on 14 January 2008 which sought stakeholder submissions on the December undertaking. Eight submissions were received—the last submission was received on 21 February 2008.
On 29 April 2008, the ACCC released its draft decision on the December undertaking for public comment. The draft decision was to accept the undertaking subject to ARTC addressing a number of issues raised by the ACCC.
The Draft Decision indicated that if ARTC takes the view that it wishes to address the issues raised in the ACCC Draft Decision and wishes to take the December Undertaking toward a Final Decision, ARTC must:
withdraw the December Undertaking from the consideration of the ACCC
amend the December Undertaking to address the issues raised in the recommendations of this draft decision
resubmit the amended Undertaking incorporating the changes to the ACCC for consideration and a Final Decision.
On 30 July 2008, the ACCC accepted ARTC’s Interstate Rail Access Undertaking (ARTC’s Undertaking).
The ACCC completed its assessment within a tight timeframe, releasing its Draft Decision within 4 months of receiving ARTC’s December Undertaking application and its final decision within 3 months of its Draft Decision.
