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

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 below.

The Council invites interested parties to make written submissions on the application. Submissions on the application must be received by 5pm on Wednesday 26 August 2020.

Parties making a submission should refer to the Council's Guide to making a submission on declaration applications and Guide to Declaration which are available below and on the Council’s website. Submissions should be emailed in soft copy (both MS Word and PDF formats) to the Council at info@ncc.gov.au.

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 invites 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.

Submissions should be emailed to info@ncc.gov.au and must be received by 5 pm on Monday 7 September 2020.