Application for declaration of certain services in relation to the Port of Newcastle

On 23 July 2020, the Council received an application from the NSW Minerals Council for declaration of certain services in relation to the Port of Newcastle. This application was made under the provisions of Part IIIA of the Competition and Consumer Act 2010 (CCA). 

A copy of the application and the relevant information are available under the Application tab.

The Council invited interested parties to make written submissions on the application by 26 August 2020. Six submissions were received and are available under the Submissions on application tab.

After considering submissions on the application, the Council will release a draft recommendation and provide a further opportunity for public comment before making its final recommendation to the Commonwealth Treasurer.

Glencore Coal Assets Australia Pty Ltd v Australian Competition Tribunal [2020] FCAFC 145

On 27 August 2020, the Full Court of the Federal Court of Australia published its decision setting aside the Australian Competition Tribunal’s (Tribunal) re-arbitration of the ACCC’s 30 October 2019 determination in respect of the access dispute between Glencore Coal Assets Australia Pty Ltd and Port of Newcastle Operations Pty Ltd. The judgment is available at http://www.austlii.edu.au

The Court found that the Tribunal had misconstrued the terms of the declared Service and erred in law by allowing the Port of Newcastle to include the cost of user funded assets in the regulatory asset base in setting its navigation service charge. The Court has remitted the matter to the Tribunal for further determination according to law.

The NCC is aware that interested parties may consider that the Court’s decision is relevant to the NCC’s assessment of the application by the NSW Minerals Council for declaration of the Port of Newcastle.

The Council invited further submissions from interested parties about whether and, if so, how the Court’s decision is relevant to its consideration of the NSW Minerals Council application by 7 September. The Council received six submissions which are available under the Submissions on application tab.

Draft Recommendation 

On 30 October 2020, the Council released its Draft Recommendation. The Council’s draft recommendation is that the designated Minister not declare the Service at the Port of Newcastle. The Draft Recommendation is available under the Draft Recommendation tab.

On 19 November 2020, the Council published a revised Draft Recommendation addressing matters of confidentiality. The Council requested that any electronic or hardcopies of the previously published document be disposed of.

The Council received six submissions which are available under the Submissions on draft recommendation tab. 

Final Recommendation

On 18 December 2020, the Council sent to the designated Minister, the Hon Josh Frydenberg, its final recommendation in respect of the NSW Minerals Council’s application for the declaration of certain services at the Port of Newcastle. 

On 16 February 2021, the Minister made a decision, in accordance with the Council’s final recommendation, not to declare the service. The Minister’s decision and the Council’s final recommendation are available under the final recommendation and decision tab.