The Australian Competition and Consumer Commission has issued a draft decision not to allow the Australian Rail Track Corporation to vary its interstate access undertaking.
ARTC, which operates rail tracks in New South Wales, South Australia, Victoria and Western Australia, has sought the ACCC's consent to vary its access undertaking which sets out the terms and conditions for operators of train services to access the interstate mainline track.
"The ACCC has a preliminary view on the information presented to it that the proposed variation to the liability and indemnity clause in the Indicative Access Agreement (IAA) is not justified," ACCC Chairman, Mr Graeme Samuel, said today.
For example, the variation would stop a rail operator from recovering from ARTC, under the IAA, any loss or damage to the operator's customer that ARTC has caused by breaching the IAA, where the rail operator contracted to indemnify the customer for its loss. The ACCC understands that it is industry practice for rail operators to offer limited contractual indemnities in respect of losses that may be incurred by a third party.
"The ACCC believes that a party should continue to be liable to indemnify the other party under the IAA for loss or damage that one party's acts or omissions have caused to third parties.
"As such, having regard to the relevant statutory criteria, the ACCC is of the preliminary view that it is not appropriate to consent to the proposed variation.
"Further, the ACCC is of the preliminary view that ARTC has not consulted with rail operators prior to applying to the ACCC seeking the variation as required by the undertaking."
The ACCC is seeking submissions from interested parties on the draft decision before it issues a final decision. The ACCC has requested submissions by no later than 21 January 2009.
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