Submission to the ESCOSA review of guidelines for the access regime for the Tarcoola-Darwin railway

Members of the MCA NT are currently engaged in seeking rail transport solutions for their respective projects, and the MCA NT is providing feedback on their behalf for the ESCOSA review to ensure the access regime does not comprise a disincentive for future investment in and sustainable development of the minerals sector in the Northern Territory. The regime is intended to encourage commercial negotiation of access to the railway and establish procedures for conciliation and arbitration should access disputes arise.  The current review has called for feedback on four guidelines under the AustralAsia Railway (Third Party Access) Act 1999, detailing the responsibilities of the regulator and industry participants, to ensure that the guidelines 'continue to provide effective protection to existing and prospective railway users while ensuring the regulatory costs are kept to a minimum; are clear and represent contemporary practice; and anticipate, as much as practicable, future changes in the rail industry.’

Although ESCOSA has indicated that it ‘seeks views on improvements that might be made within the limits of relevant legislation,’ some of the greatest risks to our industry from inadequacies in the current regime will require a review and amendment of current legislation, and our submission identifies these issues in relation to longer-term reform of the regulatory framework. 

In response to the MCA NT’s previous submission, on the 10-year Review of Revenues in which we raised these issues, ESCOSA in its final report (August 2015) suggested that issues raised by our organisation and other industry stakeholders could not be addressed by ESCOSA, as certain of these, including introducing standard access agreements as an alternative to the current negotiate-arbitrate framework, were outside ESCOSA’s purview. However, unless the suggested review of relevant legislation is done, the objectives of the Act and guidelines identified  above cannot be achieved.

The key issues the MCA NT wishes ESCOSA to acknowledge and address are as follows:

  • The Tarcoola-Darwin Railway (TDR) is not only essential commerce-enabling major infrastructure for the current and future Northern Territory’s resources sector but is an asset of national significance in the context of Australia’s economic prosperity.
  • Lack of transparency combined with asymmetry in relation to information available to the access provider compared to the access seeker within the regulatory framework governing the TDR constrains the overall effectiveness of the regulatory regime. These inadequacies have and will continue to jeopardise investment in the NT resources sector.
  • In addition to these frustrations, current developers are being discouraged by a lack of certainty regarding infrastructure pricing and capacity, hampering and constraining global capital investment for NT projects and infrastructure.
  • The Code should be subject to a more comprehensive review, including identifying issues that might require legislative reform for satisfactory resolution of impediments to future investment and development of the resources sector, to ensure consistency with current competition principles in relation to significant monopoly transport infrastructure. 



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