ACCC Action Disproves NSW Govt Container Policy

Filed under Letters ~ by Editor on  13 Mar 2019

By accepting declared government policy, the ACCC’s action against NSW Ports is invalid .

The ACCC is taking legal action against NSW Ports over an agreement involving the development of a container terminal at the Port of Newcastle, while claiming it is NSW government policy not to develop a container terminal at the Port of Newcastle.

The ACCC is alleging in the Federal Court that NSW Ports entered into agreements with the government in May 2013 containing provisions involving the development of a container terminal at the Port of Newcastle, which are anti-competitive and illegal.

But the ACCC is taking no action against the NSW government.

The ACCC accepts it is NSW government policy, from at least July 27 2012, that a container terminal will not be developed at the Port of Newcastle before a container terminal is developed at Port Kembla, and reaches capacity, but only after Port Botany has reached capacity.

NSW Ports’ agreements with the government do not provide for payment of compensation after Port Kembla reaches capacity or after 2063, whichever occurs earlier.

By accepting declared government policy, the ACCC’s action against NSW Ports is invalid.

According to the ACCC, government policy from at least July 27 2012, removed the government from the operation of the “Commonwealth Competition and Consumer Act 2010” (Competition Act) in respect of a container terminal development at the Port of Newcastle.

The government signed an agreement on May 30 2014 to lease the Port of Newcastle. It contained a provision requiring the lessee to reimburse the government for any compensation paid to NSW Ports under the lease agreements for Port Botany and Port Kembla.

The ACCC alleges that the reimbursement provision in the Port of Newcastle agreement is an anti-competitive consequence of the Port Botany and Port Kembla agreements, and that it makes the development of a container terminal at Newcastle uneconomic.

NSW Ports first learned about the Port of Newcastle reimbursement requirement from a report published in “The Newcastle Herald” on July 28 2016.

NSW Ports had no knowledge that in 2012 the government made a condition for developing a container terminal at the Port of Newcastle.

The government did not inform the public or the Parliament that the developer of a container terminal at the Port of Newcastle would be required to reimburse the government for any payment of compensation made by the government to a lessee of Port Botany and Port Kembla, for container traffic at the Port of Newcastle above a minimal specified cap.

The ACCC does not disclose the date it became aware of the government’s condition for developing a container terminal at the Port of Newcastle.

But “The Newcastle Herald” revealed that the government amended its Term Sheets with Newcastle Stevedores Consortium in 2013 by including the condition for developing a container terminal.

Newcastle Stevedores Consortium had been negotiating since 2010 to lease the Port of Newcastle’s container terminal site for development.

The ACCC’s claim that the government’s container terminal policy is the policy it announced on July 27 2012, is disproven.

The ACCC may not claim that the government is removed from the operation of the Competition Act because of a disproven government policy.

Greg Cameron



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