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.

On 19 December 2018, the Council released its Statement of Preliminary Views (available under the Council’s preliminary views tab). The Council’s preliminary view was that it proposed to recommend to the designated Minister that the declaration be revoked.

Interested parties were invited to make written submissions on the Council’s Statement of Preliminary Views by 5.00pm on 4 February 2019. Submissions and correspondence received by the Council have been published under the Submissions on Council’s preliminary views tab.

At the request of the Council, NERA Economic Consulting (NERA) produced a report dated 8 April 2019, to assist the Council’s consideration of whether declaration of the shipping channel service at the Port of Newcastle would be likely to satisfy the criterion set out in section 44CA(1)(a) of the Act in respect of the coal tenenents market. Interested parties were invited to make written submissions to the Council on the opinions expressed in the report by 5.00pm on 26 April 2019. The NERA report and submissions from interested parties are available for download under the Submissions on Council’s preliminary views tab.

On 26 July 2019, the Minister, the Hon. Josh Frydenberg MP, received a recommendation from the Council under section 44J(1) of the Competition and Consumer Act 2010 (CCA). The Council recommended that the declaration of service at the Port of Newcastle be revoked.

Under s 44J(7) of the CCA, if the Minister has not published a decision on a revocation recommendation within the period starting at the start of the day the recommendation is received and ending 60 days after that day, the designated Minister is taken, immediately after the end of that 60-day period:

(a) to have made a decision that the declaration be revoked; and

(b) to have published that decision in accordance with this section.

The 60-day period in relation to the recommendation made by the Council to revoke declaration of service at the Port of Newcastle ended on 23 September 2019.

The Minister had not published a decision on the Council’s recommendation by the end of this date. Accordingly, it is taken that a decision to revoke the declaration has been made. The Minister made a statement confirming his decision.

The Council’s recommendation is available under the Council’s final views tab.