Infrastructure access and regulation is one of the most innovative areas of law in Australia. Australia is one of only two countries in the world with a general (non-industry specific) legislative regime for third party access to services which draws heavily on economic doctrine and the US doctrine of essential facilities and EC equivalents.
Our lawyers have in-depth experience across all aspects of third party access and regularly advise key commercial and government clients on these issues, such as the National Competition Council, and have advised on the only matter to have progressed to the arbitration phase. We've acted for clients in regulated industries such as water, transport and energy and resources, and are particularly experienced in the specific telecommunications access regime.
Our lawyers are known for combining a creative approach with a knowledge of our clients' businesses and our experience and expertise, so we come up with new solutions for our clients' complex issues. We offer an integrated skill base advising on infrastructure, access, regulation and litigation issues so our clients receive a constant and seamless service.
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Sydney Water: Clayton Utz continues to advise Sydney Water on the introduction of access regulation of water and waste water infrastructure. This is a groundbreaking area, as State and Commonwealth governments look to develop regimes to enable third parties to access services provided by water and waste water pipeline systems, to encourage the development of new water sources and of competition in related markets, for example, recycled water.
There has been only one regulatory determination of water related access pricing to date, being the ACCC's July 2007 determination of an access dispute between Sydney Water and an access seeker. This was the first determination under the general access regime in Part IIIA of the Trade Practices Act and we advised Sydney Water, which successfully argued that the access price for wastewater transportation services should be determined using a retail minus avoidable costs methodology. This involved consideration of the interrelationship between Commonwealth access regulation and state regulation of retail water and waste water services and environmental considerations, and of the social equity considerations associated with postage stamp retail pricing for water and wastewater services and the potential impact of access pricing on those prices.
Sydney Water has also established indicative terms and conditions of access to its waste water network and we assisted in the preparation of those terms and conditions. While access agreements are common in other industries such as gas and rail, as noted by Sydney Water's Managing Director in November 2007 when announcing those terms and conditions, this is the first time in Australia that water and wastewater pipelines and related infrastructure are being made available for access.
National Competition Council – Fortescue's application for declaration of railway lines owned by BHP and Rio: Clayton Utz is acting for the National Competition Council regarding a series of groundbreaking applications under Part IIIA of the Trade Practices Act for competitor access to privately owned railway lines in the iron ore rich Pilbara region of Western Australia. The applications are being fiercely resisted by BHP Billiton and Rio Tinto, the owners of the railway lines, which alleges that if access is granted, it will have a substantial negative impact on the efficiency of its operations and the productivity of the iron ore industry in Western Australia. The applications raise complex legal and technical issues under Part IIIA of the Act and have resulted in proceedings in the Australian Competition Tribunal, Federal Court and High Court of Australia.