By Cat Woods -
Despite being only a few months into 2026, it has already been a big year for rail operators and the legal professionals who work in rail, including planning, tenure, construction and financing elements. The first major announcement was the new interoperability regulations in January, followed by the announcement of the beginning of the development phase for High Speed Rail between Newcastle and Sydney.
The intention is to eventually expand high-speed rail between states and territories. High-speed rail requires trains to operate above 250km/h. The promise is that this Newcastle to Sydney line would offer “new world-class trains capable of travelling up to 320km/h”.
On 24 February 2026, the federal government revealed the two-year, $659.6 million development phase for the first stage of a broader national high-speed rail initiative. It’s intended to reduce Sydney to Newcastle travel time to approximately one hour, and Central Coast to Sydney or Newcastle to around 30 minutes. The two-year phase is planned to ensure “Line 1” is construction-ready, establishing design, corridor protection, a pathway to approvals, scope and costing. The next step is to award the construction contracts and to assess options of public and private financing based on cost and scope.
The High Speed Rail Authority (HSRA) was established in 2022 under the High Speed Rail Authority Act 2022 (Cth). The HSRA has projected that over 50 years, this project will result in a national economic boost of close to $250 billion and the creation of more than 990,000 new jobs across various industries. Chaired by Jill Rossouw, the High Speed Rail Authority Board provides strategic direction to the Authority, accountable under the Public Governance, Performance and Accountability Act 2013 (Cth). The High Speed Rail Authority reports to the Minister for Infrastructure, Transport, Regional Development and Local Government, Catherine King MP.
The future plan is to extend high speed rail south to Melbourne via Canberra and north towards Brisbane.
The HSRA says the east coast of Australia is home to a growing population of 21.5 million, or 78 per cent of Australia’s population. Their projection is that by 2051, that will rise to 28.5 million between Queensland, New South Wales, the ACT, and Victoria. The estimated travel time between Sydney and Melbourne, or Sydney and Brisbane, will be around four hours, while Sydney to Canberra will take 1 hour and 30 minutes.
Navigating jurisdictions
Since the project will traverse state borders (QLD, NSW, VIC) and the ACT, legal Memorandums of Understanding (MoU) are required between the Commonwealth and state/territory governments to confirm responsibilities, funding and dispute resolution. Under the High Speed Rail Authority Act 2022, the Commonwealth can only construct or extend railways within a State or Territory with that jurisdiction’s specific consent.
Julian Mellick has been a Partner in Colin Biggers & Paisley’s Construction & Engineering team since 2018 and has more than 20 years’ experience advising government entities, principals, contractors, consultants and suppliers on complex legal matters.
He says, “We’ve had experience on a range of rail projects, including parts of Sydney Metro, Cross River Rail, Melbourne Tunnel, Circular Quay Renewal, Martin Place Station OSD, Perth to Mandurah Line, Bayswater interchange, Parramatta Light Rail and parts of Inland Rail (including a cross-border portion).”
Mellick explains that the linear nature of rail projects means that they can often involve cross-border issues, given there are regulatory and compliance differences between states.
“Often these issues can be unexpected,” he says. “For example, there were significant unexpected claims on cross-border rail projects during Covid where there were restrictions on site access and inductions on one side of the border and not on the other side, causing delays and disruption.”
He says Commonwealth and State/Territory procurement is heavily regulated with a raft of applicable rules, policies, frameworks and charters, as well as pre-qualification schemes and probity requirements. To that end, Mellick says, “The new rail interoperability rules make a lot of sense from a safety and efficiency perspective and fit in nicely with the other ongoing rail safety national law reforms.”
“Rail projects … have so many components and interfaces that it’s key to have specific legal expertise at each stage of the project lifecycle …”
Legal considerations span the gamut
Mellick emphasises the importance of not approaching these projects like any other type of infrastructure or construction project. “Rail projects, and other linear infrastructure projects, have so many components and interfaces that it’s key to have specific legal expertise at each stage of the project lifecycle according to the nature of the activities.”
That team, he explains, needs legal expertise in construction, planning, insurance, finance and commercial lawyers, all collaborating closely, to obtain best for project outcomes. “That’s particularly the case at the front end but it also extends through to the disputes, given the insurance and finance arrangements.” From consideration of wildlife habitats through to urban and regional planning, the legal expertise required to inform, guide and manage high-speed rail is broad.
Environment
To ensure corridor protection, the initial legal step involves registering a Public Acquisition Overlay (PAO) or the like, which reserves land for the project and prevents inconsistent development. Under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) (Cth), a comprehensive Environmental Impact Statement is required to obtain federal approval. This details any potential impact upon threatened species, heritage and noise pollution.
Upon federal approval, the next stage is ensuring state/territory approvals according to each jurisdiction’s planning approvals (in NSW, the NSW Environmental Planning and Assessment Act 1979).
Land Acquisition and Tenure
Land deemed necessary for the corridor, stations, and depots is acquired compulsorily under the Lands Acquisition Act 1989 (Cth) or equivalent state legislation. For the Sydney to Newcastle section, that will fall under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Just Terms Act). Beginning with a “Notice of Intention to Acquire”, the process leads to calculating “just terms” for compensation to private landowners based upon, among other heads of compensation, market value, severance, and relocation costs. For underground sections, such as tunnels under city areas, legal processes for acquiring underground rights come into play including exceptions to the payment of compensation.
In terms of the process of land acquisition and tenure particular to NSW, and the sort of timelines for identifying the private land required, assessing compensation, and giving notice to landowners, Todd Neal, Partner in Colin Biggers & Paisley’s Planning, Government, Infrastructure & Environment Group says, “Unless an abridged timeframe is approved, the statute provides a minimum nine month process for this to be stepped through. Due diligence for the linear infrastructure route, however, can take much longer as it will depend on environmental and geographic sensitivities”.
Compensation is either agreed through the owners of land and authority engaging valuers to support a negotiated compensation amount that is supported by the heads of compensation available in the Just Terms Act. If negotiations fail and the acquisition proceeds to gazettal because agreement cannot be reached, then the amount is determined by the Valuer-General. Neal says, “If the owner is dissatisfied, they can then apply to the Land and Environment Court for it to determine compensation through Class 3 of the Court’s jurisdiction.”
Safety and technical approvals
As overseen by the Office of the National Rail Safety Regulator (ONRSR), the project must comply with the Rail Safety National Law (RSNL).
In alignment with new interoperability standards, under the HSRA, the project must comply with legal standards for track gauge, signalling, and power systems to ensure the network operates seamlessly across different jurisdictions.
Procurement and Contracting
Major contracts for design, construction, and operation must follow Commonwealth Procurement Rules (CPRs) that determine requirements of transparency, open competition and value for money.
New interoperability rules nationally
Interoperability is essentially the standardisation of rail systems, technologies and operators so that the system can operate unobstructed between metropolitan and interstate corridors. The promise of standardisation is enhanced safety, efficiency, and productivity for both rail passengers and freight.
The National Network for Interoperability (NNI) is included under regulation 16(3) of the Rail Safety National Law Regulations 2012 (Cth).
The Office of the National Rail Safety Regulator published the NNI, which governs the Australian interoperable rail network, both metropolitan and interstate corridors. From 28 February 2026, accredited rail infrastructure managers that form part of the NNI and accredited rolling stock operators with accreditation to operate on it, will be required to consider interoperability when planning changes to their operations on that network.
Under the Rail Safety National Law, the Regulator established the NNI with unanimous support of the Infrastructure Transport Ministers Meeting (ITMM) and National Cabinet as the authorising bodies for approvals. The Rail Safety National Law was enacted in 2012, replacing 46 pieces of State, Territory and Commonwealth legislation and creating the Office of the National Rail Safety Regulator (ONRSR).
According to Infrastructure Australia, Australia’s rail system is challenged by interoperability shortfalls owing to its historical development as separate state-based systems. However, jurisdictions have commenced implementation of upgraded digital control systems in a coordinated manner that, once established, ought to improve industry competitiveness, reducing greenhouse gas emissions and productivity.
The initial priority of maximising interoperability focuses on the jurisdictions of Australia’s east coast. This is one element within the Australian Government’s Infrastructure Policy Statement, which recommends prioritising investments that improve national productivity, support more efficient supply chains and improve the safety and sustainability of transport networks. It also aligns with the National Rail Action Plan (NRAP), a four-year initiative led by the National Transport Commission (NTC) to unify Australia’s rail system by 2026.
“… small errors in labour indexing, for example, can have significant financial implications over a 40-plus year operations and maintenance period.”
The varied aspects of rail projects requires interdisciplinary legal team
Amongst the many aspects of rail projects, legal expertise is key in:
- Guidance on complex regimes and regulatory frameworks relating to rail, infrastructure, transport, environment, and supplier contracts;
- Planning, identifying corridors (a secure strip of land encompassing tracks, signals, stations, and safety buffers between property boundaries);
- Tenure, design, construction and financing;
- Operation and maintenance of major rail networks;
- Procurement of rolling stock and other track vehicles;
- Rail maintenance services (including testing and repairs); and
- Safety duties for rail transport operators under the Rail Safety National Law.
Mellick says, “The projects have an extended project lifecycle and participant involvement, because of the additional operation and maintenance component. This in turn puts added pressure on the private sector estimation teams involved at the bid phase because small errors in labour indexing, for example, can have significant financial implications over a 40-plus year operations and maintenance period.”
He emphasises that supply chains need to be particularly robust to cope with the maintenance and spares requirements, particularly because rail authorities have strict specifications and requirements around those items and because there is often a long procurement lead time if critical parts are not in stock locally. “These resource and expertise requirements are why you typically see consortia bids for this work, which also helps to share risk.”
In terms of the new high-speed project, Mellick can see the sticky spots. “A key challenge of the Newcastle Sydney high-speed rail will be the amount of tunnelling. There have been recent high profile tunnelling disasters and mishaps, including on Snowy Hydro 2.0 and M6 due to unforeseen ground conditions.”
Mellick and other partners at Colin Biggers & Paisley’s including Greg Begaud have acted for Tunnel Boring Machine (TBM) suppliers assessing the risk on these kinds of projects. The issues regarding extensive tunnelling and the associated risk seem unlikely to be easily overcome with borer machine technology, he says, suggesting the solution may need to involve additional ground testing or some other pre-emptive solution.
