Application for declaration of shipping channel services at the Port of Newcastle

In May 2015, the Council received an application under Part IIIA of the Competition and Consumer Act 2010 (CCA) from Glencore Coal Pty Ltd (Glencore) seeking declaration of the right to access and use the shipping channels provided by Port of Newcastle Operations Pty Ltd (PNO).

The application and supporting information are available for download under the Application tab in the left navigation panel.

The Council invited interested parties to make submissions on Glencore's application by 18 June 2015. The submissions received by the Council are available for download under the Submissions on application tab.

An initial question arose as to whether the designated Minister to whom the Council must provide its recommendation is the Commonwealth Minister (the Treasurer or another Commonwealth Minister designated by him) or the Premier of New South Wales. 

On 16 June 2015 the Council released its preliminary view that the Commonwealth Minister is the designated Minister for this application. The relevant documents are available under the Application tab. 

On 30 July 2015 the Council released its draft recommendation on Glencore's application. The draft recommendation was that the service not be declared. In the draft recommendation, the Council also expressed its view that the designated Minister for this matter is the Commonwealth Minister. The Council’s reasons are available for download under the Draft recommendation tab.

The Council invited interested parties to make submissions on the draft recommendation by 31 August 2015. The 9 submissions received are available for downloaded under the Submissions on draft recommendation tab.

On 18 September 2015 the Council gave a notice to Port of Newcastle Operations requesting information. The notice and the response from Port of Newcastle can be downloaded under the Submissions on draft recommendation tab.

On 10 November 2015, the Council sent its final recommendation to the Federal Treasurer, the Hon. Scott Morrison MP.

The Acting Treasurer, Senator the Hon. Mathias Cormann, decided not to declare the service. The NCC published that decision on its website on 11 January 2016. The Minister’s decision and statement of reasons, and the Council’s final recommendation are available under the Final recommendation and decision tab.

On 29 January 2016 Glencore applied to the Australian Competition Tribunal for a review of the Acting Treasurer's decision not to declare the shipping channel service at the Port of Newcastle. On 31 May 2016 the Tribunal decided the service should be declared. On 16 June 2016 the Tribunal made orders giving effect to that decision.

On 14 July 2016, PNO applied to the Federal Court of Australia for judicial review of the Tribunal's decision. 

The application was heard on 28 and 29 November 2016. On 16 August 2017 the Federal Court handed down its judgment in the matter, deciding to dismiss the application for judicial review: Port of Newcastle Operations Pty Ltd v Australian Competition Tribunal [2017] FCAFC 124. The Court's orders and reasons are available under the Outcomes & subsequent events tab.

On 12 September 2017, Port of Newcastle Operations Pty Ltd applied for special leave to appeal the Full Court’s decision to the High Court of Australia. The application was dismissed by the High Court on 23 March 2018.

Inquiries in relation to this application may be addressed to or to the Council’s staff on 1800 099 470.


Registration of Interest (RTF, 325KB)