Access To Infrastructure Under Part IIIA – What Is A Production Process?

A decision of the full Federal Court in October 2007 (BHP Billiton Iron Ore v NCC) has extended the scope of infrastructure facilities which may be subject to compulsory third party access under Part IIIA of the Trade Practices Act.

For the purposes of Part IIIA, 'service means a service provided by means of a facility and includes: (a) the use of an infrastructure facility such as a road or railway line…, but does not include:…(f) the use of a production process; except to the extent that it is an integral but subsidiary part of the service'.

Accordingly, a service cannot be declared (and therefore subject to third party access) if it is also a production process. The majority decision overturns previous authority on the correct approach to determining whether a service provided by means of a facility is also the use of a production process.