NSW Ports off the Hook?

Filed under Government, Legal, Letters, Port & Shipping ~ by Editor on  30 Mar 2019

NSW Ports is no longer required to file a defence against the ACCC’s claim of acting illegally under section 45 of the “Commonwealth Competition and Consumer Act 2010” (Competition Act).

A Federal Court order requiring the defence to be filed by March 28 was vacated.

NSW Ports said in January that it did not know until 2016 that the NSW State Government (State) required the lessee of the Port of Newcastle to reimburse the State for any compensation the State paid to NSW Ports for container traffic at the Port of Newcastle, above a minimal specified cap.

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

The ACCC said on June 7 2013 that the Competition Act was unlikely to apply to the development of a container terminal at the Port of Newcastle from at least July 2012. It said that the State was unlikely to be carrying on a business for the purposes of the Competition Act because it had decided that the next container terminal to be developed in NSW would be at Port Kembla, after Port Botany reached capacity.

According to the ACCC, the State decided not to develop a container terminal at the Port of Newcastle.

The ACCC declines to explain why it is taking action against NSW Ports in respect of a container terminal development at the Port of Newcastle, while claiming that the State has a policy not to develop a container terminal at the Port of Newcastle.

The fact that the ACCC is taking action against NSW Ports in respect of a container terminal development at the Port of Newcastle, means that the ACCC accepts it is not State policy not to develop a container terminal at the Port of Newcastle.

The State instructed Morgan Stanley in 2012 that the developer of a container terminal at the Port of Newcastle would be required to reimburse the State for any payment of compensation the State made to a future lessee of Port Botany and Port Kembla, if container traffic at the Port of Newcastle was above a minimal specified cap.

The NSW Parliament did not authorise Port Botany and Port Kembla to be leased with a condition that was illegal under the Competition Act.

The ACCC cannot take action against NSW Ports under the Competition Act if the lease condition is illegal under the “Ports Assets (Authorised Transactions) Act 2012”.

The Port of Newcastle was leased to provide the State with a source of funds to pay NSW Ports for container traffic at the Port of Newcastle.

The NSW Parliament did not authorise the port to be leased for this purpose.

The State did not disclose the Port of Newcastle container terminal development condition to the public, the Parliament or, presumably, the ACCC.

Greg Cameron
Infrastructure analyst



Previous postGoonyella a Warning for Longwalls Next postDog Parks OK but Separate Big from Small
Our content: Terms of Use   |    © 2019 Newcastle on Hunter ~ Mostly Good News   |    Design by milo