Find Lawyers in Canberra, Australia for Regulatory Practice

Practice Area Overview

Australian regulatory law encompasses the laws, rules, and regulations governing access to significant economic infrastructure.

This generally applies to infrastructure which is essential to facilitate the supply of products or services in upstream or downstream markets including the electricity grid, gas distribution networks, some gas pipelines, fixed-line telecommunications networks, water and wastewater networks, and certain transport infrastructure such as rail lines and some ports and airports.

In Australia, owners of essential infrastructure may be subject to the general national access regime (Part IIIA of the Competition and Consumer Act 2010 (Cth)) and/or an industry specific access regime. In some sectors, such as telecommunications, the access regime and associated technical regulation is put in place under Commonwealth legislation. In other industries, access regulation is implemented by way of a national scheme underpinned by State and Territory legislation (electricity and gas), or operates as a patchwork of individual State and Territory-specific regimes (rail, ports, water).

The objectives of access regulation typically include to promote a combination of the following:

  • the economically efficient operation of, use of, and investment in infrastructure;
  • effective competition in dependent markets; and
  • the long-term interests of consumers (or end-users), typically in terms of the price, quality, and reliability of services they receive.

How these objectives interact and operate together remains one important area of controversy.

The work undertaken by regulatory practitioners in Australia includes advising networks, users, and regulators on the following:

  • the design and implementation of specific, technical regulatory instruments including negotiating and drafting legislative frameworks and “softer” forms of regulation, such as access undertakings, codes, and agreements;
  • compliance with regulatory requirements, including technical and commercial obligations;
  • economic regulation and tariff setting – including advising clients on the implementation of a range of tariff-setting models (in Australia, the most commonly applied approach to regulated tariffs is the building block approach; the process for periodic resets of tariffs using this approach is an important feature of Australian regulatory practice); 
  • structural and organisational rules governing ring fencing and operational separation of activities, particularly where there is vertical integration between network operations and a firm’s other activities; and
  • challenging regulatory determinations, which may in some cases be through merits review (e.g. energy) and in other cases through judicial review of regulatory decisions.

Regulatory practitioners are also often heavily involved in advising clients on infrastructure-related transactions and the development of Greenfield projects.

Due to the intricacy of the legal and economic issues involved in regulating access to essential infrastructure, regimes are constantly evolving and can be highly complex in their drafting and implementation. 

Simon Muys, Partner and Geoff Petersen, Special Counsel Gilbert + Tobin
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