Access to monopoly infrastructure
Access regulation seeks to promote effective competition in markets that depend on using the services of infrastructure that cannot be economically duplicated.
On 11 November 2016, the National Competition Council received an application under section 44M of the Competition and Consumer Act 2010 (CCA) from the State of South Australia, for certification of the South Australian third-party access regime for water infrastructure services (Regime). Certification is sought for specified bulk water transport pipelines operated by SA Water set out in Part 9A of the Water Industry Act 2012 (SA).
In its draft recommendation, published on 3 March 2017, the Council proposed recommending that the regime be certified as effective for ten years. Submissions on the draft recommendation closed on 20 March 2017. The Council provided its final recommendation to the Commonwealth Minister for consideration on 22 March 2017. The Commonwealth Minister is required to make a decision within 60 days of receiving the Council’s final recommendation.
Current status - 5. Final recommendation and decision
Glencore Coal Pty Ltd applied to the Council under Part IIIA of the Competition and Consumer Act 2010 (CCA) for declaration of the right to access and use the shipping channels provided by the Port of Newcastle. On 8 January 2016 the Minister made a decision not to declare the service. Glencore applied to the Australian Competition Tribunal for a review of the Minister's decision and on 31 May 2016 the Tribunal decided the service should be declared and on 16 June 2016 made orders giving effect to that decision. Port of Newcastle Operations Pty Ltd applied to the Federal Court for judicial review of the Tribunal’s decision. That application was heard on 28 and 29 November 2016 and judgment has been reserved.
Current status - 6. Outcome & subsequent events