Ports Australia is not supportive of the existing decision to declare services at the Port of Newcastle. The decision indicates that any infrastructure which exhibits natural monopoly characteristics and is a necessary input to competition can now be declared under the CCA. It also suggests that operating infrastructure services on an open access basis readily available to all customers will no longer be sufficient to mitigate the risk of a declaration. Clearly, this has significant negative ramifications for business confidence in managing their assets or when considering to invest in new assets.
Ports Australia advocates, on behalf of its Members, that the National Competition Council (NCC) recommend to the designated Minister that the declaration of the following service (the Service) made by the Australian Competition Tribunal on 16 June 2016, be revoked pursuant to s 44J of the Competition and Consumer Act 2010 (Cth) (the CCA):
The provision of the right to access and use the shipping channels (including berths next to wharves as part of the channels) at the Port [of Newcastle], by which vessels may enter a Port precinct and load and unload at relevant terminals located within the Port precinct and then depart the Port precinct
The Federal Government passed legislation in late 2017 amending the CCA, including the Declaration Criteria (s 44CA(1)), which the NCC, the designated Minister, the Australian Competition Tribunal and the Federal Court based their decision on to declare the Service at the Port of Newcastle. Given this recent change, a review of the decision to declare the Service is warranted, specifically, whether the revised Declaration Criteria is still satisfied.
Following the legislative amendment which came into effect on 6 November 2017, Ports Australia assesses that Declaration Criterion (a) and (d) are not satisfied and has outlined our rationale for this in subsequent paragraphs. Accordingly, we are advocating for the NCC to recommend the revocation of the declaration of the Service at the Port of Newcastle to the designated Minister.