In April 1995, the Commonwealth, State and Territory Governments committed to implement reforms which included the provision for third party access to nationally significant infrastructure.  The Commonwealth Parliament enacted Part IIIA of the Trade Practices Act 1974, establishing a national regime under which access may be sought to a range of infrastructure that cannot be economically duplicated, including certain rail networks.  Under the national regime, businesses, individuals or other organisations have a legal right to use the services of these infrastructures on reasonable terms and conditions of access, including a fair price.

In 1998, Western Australia proceeded to develop its legislative reforms governing access to its railway infrastructure in support of the national reform process.

The Railways Access Act 1998 was enacted to establish a rail access regime that would encourage the efficient use of, and investment in, railway facilities by facilitating a contestable market for rail operations within Western Australia and to provide for the establishment of the Office of the Rail Access Regulator to oversee, monitor and enforce compliance by the railway owners with the provisions of the Rail Access Regime.

The development of the Railways (Access) Code 2000 was a requirement of the Act thus, the Rail Access Regime is made up of the Act and the Code which both became fully effective on 1 September 2001 when the Regime in Western Australia commenced.

The responsibility of administering the Regime was transferred to the Economic Regulation Authority upon its inception on 1 January 2004 under the Economic Regulation Authority Act 2003.

The ERA is required to oversee, monitor and enforce compliance with the Act and the Code by:

• Approving and/or determining the Costing Principles and Over-payment Rules that should underpin third party access charges (Section 46 and 47 and Schedule 4 of the Code);
• Approving and/or determining the floor and ceiling costs that should apply to certain routes, on a segment by segment basis as specified by the Railway Owner (Clause 9, Schedule 4 of the Code);
• Approving and/or determining the floor and costs that apply to routes where an access proposal has been made and where Clause 9 of Schedule 4 of the Code does not apply. (Clause 10 Schedule 4 of the Code);
• Approving and/or determining the "ring fencing" or segregation arrangements that will apply to the railway owners (Section 28 - 34 of the Act);
• Approving and/or determining the Train Management Guidelines (Section 43 of the Code) and Statement of Train Path Policy (Section 44 of the Code) that will apply to the railway owners; and
• Reviewing and, if appropriate, approve the negotiation of access arrangements that may preclude access to that infrastructure by other entities (Section 10 of the Code).

Prior to approving or determining the floor and ceiling costs, segregation arrangements, Train Management Guidelines, Train Path Policy and approving the negotiation of access that may preclude other entities from access, the ERA must publish public notices and seek public submissions.

Other duties include:

• Provide advice, on request, to access seekers that the price offered is consistent with access prices charged to the railway owner or its associates;
• Maintain a public register of access arrangements (although the access arrangements themselves are not public);
• Obtain information and documents from the railway owners and in so doing the ERA has power of entry, if required;
• Release information that will benefit negotiations (other than commercially confidential information), if appropriate;
• Determine the weighted average cost of capital, annually as at 30 June of each year;
• Apply penalties for breaches of the Act; and
• Upon recommendation of the Chairperson of the WA Chapter of the Institute of Arbitrators and Mediators, establish panels of arbitrators who could be appointed to resolve disputes that may arise during the negotiation of an access agreement. Although not directly involved in the arbitration process, the ERA may provide information or advice to the arbitrator, if requested.

Other legislation affecting the Rail Regime

Commercial Arbitration Act 1985 - providing for disputes between a railway owner and an access seeker to be resolved by arbitrators and mediators.
The Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Act 2004 - Provisions about access to the railway constructed under the Agreement