Access and Regulated Industries

Access and economic regulation are critical issues for infrastructure investment in Australia. Successfully navigating the complex web of Commonwealth, state and territory regulation is critical to optimising the use of, and investment in, significant infrastructure.

MinterEllison has extensive experience in general access regulation under Part IIIA of the Competition and Consumer Act 2010 and industry specific regimes including electricity and gas access, energy market regulation, transport infrastructure (including ports, rail and airports), water infrastructure, telecommunications and broadcasting. Our history of dealing with investors, operators, users and regulators gives us a unique ability to provide practical insights into the operation of Australia’s access and regulatory regimes. 

Our lawyers combine a thorough understanding of the competition and economic policy issues underlying regulatory regimes with substantial industry experience, enabling them to offer strategic advice at all stages of the regulatory process – from managing the threat of regulation, influencing regulatory design, maximising revenue and challenging a regulator’s decision when required. We work alongside economists and industry experts and our multi-disciplinary team gives our clients the reassurance and continuity of advisers in the event of a dispute.

Many industry-specific regulatory regimes have their roots in access, price and market regulation and consumer protection. This is why MinterEllison teams its regulatory practice with competition and consumer law – the skills and the ways of thinking are complementary.

Although all industries are regulated to an extent, regulation of utilities such as electricity, gas, water, telecommunications and transport has a complex history. Advising a client in one of these sectors on an isolated aspect of the applicable regulations is difficult without having a comprehensive understanding of the whole regulatory system, its structure, the relevant instruments and agreements, the history of its development and what the future is likely to hold. We work hard to ensure our lawyers have that understanding so our advice is strategically and structurally informed and efficiently provided.

We undertake regulatory work for private sector clients, industry bodies, and state governments and Commonwealth government bodies.

Railcorp Reform Program and rail access arrangements

Advised Railcorp and Transport for NSW (TfNSW) on rail access arrangements and related issues associated with the Railcorp Reform Program and the establishment of Sydney Trains and NSW Trains. This included reviewing and amending the standard rail access agreement to take account of the changed arrangements between RailCorp, TfNSW and Sydney Trains and the requirements of the Rail Safety National Law as well as assisting with negotiations with rail operators. We also assisted with rail access arrangements for Sydney Trains and NSW Trains to the NSW rail network and ARTC network.

A$1.75 billion sale and privatisation of Port of Newcastle

The sole legal adviser to NSW Treasury in relation to the $1.75 billion sale (by way of long term lease) and privatisation of Port of Newcastle, which is the world's largest coal export port. The A$1.75 billion restructure and refinancing transaction establishes a new benchmark in transaction preparation and execution, as reflected in the financial outcome which significantly exceeded market expectations. The transaction will free up much needed capital to help the NSW Government fund the revitalisation of the Newcastle CBD, and a backlog of other critical public infrastructure across New South Wales, including hospitals, schools and roads.

Optus appeal against Telstra's exemption from access obligations

Acting for Optus in the successful appeal to the Australian Competition Tribunal in relation to Telstra's 2008 ULLS access undertaking under Part XIC of the Competition and Consumer Act 2010.

New South Wales Interstate Rail Network Restructure

Advised NSW Government in relation to a major restructure of the State's non-metropolitan rail system which included an investment of A$800 million+ in rail infrastructure by the Commonwealth Government. The arrangements effectively incorporated 3000kms of NSW interstate and Hunter Valley mainline railway track under the same operation and management as the interstate standard gauge mainline railway track. We also subsequently advised on commercial arrangements in relation to the take up by ARTC of the Metropolitan Freight Network and the Southern Sydney Freight Line.