Consideration of possible recommendation to revoke declaration of service at the Port of Newcastle

In July 2018, the Council received a submission from Port of Newcastle Operations Pty Ltd (PNO) that the Council should recommend under section 44J of the Competition and Consumer Act 2010 (Act) that the designated Minister revoke the declaration of the shipping channel service at the Port of Newcastle. 

For a copy of PNO's submission and background information relating to this matter, please click on the Matter tab in the left navigation panel.

The Council invited submissions from interested parties on whether the Council should make a revocation recommendation, particularly submissions addressing the declaration criteria in section 44CA of the Act, by 8 August 2018.

Submissions and correspondence received by the Council have been published under the Submissions tab.

A number of the submissions received raised issues in respect of which the Council considered it required additional information and documents from PNO in order to proceed to preparing a statement of its preliminary views. Accordingly, on 4 September 2018, the Council wrote to PNO requesting additional documents and information to be provided by 17 September 2018. That letter is available under the Submissions tab.

PNO has provided submission and documents in response to the Council’s letter of 4 September 2018, including certain documents over which PNO has claimed confidentiality on the basis that the documents contain highly confidential and commercially sensitive information about PNO’s business and strategy.

The Council has considered PNO’s claim that part of its response is confidential, and the reasons in support of that claim and accepts that the information the subject of the claim is confidential. The Council will not publish those documents the subject of the claim at this time or disclose them to any party (except the NCC’s advisors, ACCC staff assisting the NCC pursuant to the NCC-ACCC Memorandum of Understanding, and the designated Minister as the circumstances require).

The Council wrote to PNO on 20 September 2018 advising the acceptance of the confidentiality claim. That letter, along with the submission and non-confidential documents provided by PNO in response to the Council’s 4 September letter, are published under the Submissions tab.

Interested parties were invited to make submissions on the issues raised in the submission and non-confidential material provided by PNO in response to the Council’s 4 September letter, by 5.00pm on 5 October 2018. Submissions received have been published under the Submissions tab.

On 8 October 2018, the ACCC published its final determination of the arbitrated dispute between Glencore Coal Assets Australia and PNO in relation to the terms and conditions for accessing the declared shipping channel service at the Port of Newcastle.

The Council invited further submissions from interested parties about whether, and if so, how the Council should have regard to the ACCC’s final determination when considering whether to make a revocation recommendation, by 29 October. Submissions received have been published under the Submissions tab.

Following the release of the Council’s statement of preliminary views, all interested parties will have an opportunity to make further submissions before the Council decides whether to make a revocation recommendation to the designated Minister.

Indicative timetable

PNO's submission to the Council 2 July 2018
Four week public consultation period 11 July 2018 - 8 August 2018
The Council’s information request to PNO, allowing two weeks for PNO to respond

4 - 17 September 2018         

Two week period for stakeholders to make submissions on PNO’s response 21 September - 5 October 2018
Further consultation regarding the relevance of the ACCC’s arbitration determination in relation to the Glencore-PNO access dispute 15 October - 29 October 2018
Release of the Council's Statement of Preliminary Views December 2018         
Public consultation period in relation to the Council's Statement of Preliminary Views December 2018/January 2019
The Council's decision on whether to make a revocation recommendation to the designated Minister February 2019