THE Australian Competition and Consumer Commission says legislation introduced to NSW parliament by Lake Macquarie MP Greg Piper "should facilitate competition between ports for the provision of container port services".
In a statement issued after a full bench of the Federal Court found against the ACCC in its appeal of an earlier case against Botany and Port Kembla operator NSW Ports, the competition regulator said it took the cases because it believed the Port Commitment Deeds signed during the privatisation of Botany in 2013 and Newcastle in 2014 gave Botany "an effective monopoly in container port services for 50 years".
"We appealed this case because we considered that the compensation provisions created a significant barrier to entry," the ACCC said.
"The threat of new entry is an important part of the competitive process, and imposes a competitive discipline on existing businesses, including monopolies.
"At this stage the judgement has been made available only to the parties' lawyers, on a restricted basis, pending resolution of confidentiality issues. Accordingly, the ACCC cannot yet discuss the reasons for the decision."
EARLIER
A FULL bench of the Federal Court has dismissed an appeal lodged by the ACCC against NSW Ports, the operator of Botany and Port Kembla.
The Australian Competition and Consumer Commission lodged the appeal after a June 2021 decision went against the ACCC, which said Port Commitment Deeds locking a Port of Newcastle container terminal into compensating Botany were "anti-competitive".
Although the ACCC loss probably exhausts its efforts on the issue, the Port of Newcastle said it was not overly concerned, given that the Port of Newcastle Extinguishment of Liability Act introduced by Lake Macquarie MP Greg Piper was "providing a way forward".
"Once the appointment of the valuer is announced by the government under the Act, the final part to the legislative process will have commenced, providing a way forward," a port spokesperson said.
"Port of Newcastle remains committed to the economic prosperity of the Hunter and Northern NSW through the construction of a container terminal."
NSW Ports CEO Marika Calfas said the dismissal of the ACCC case was "a win for economic certainty and prosperity across the state, to the benefit of consumers, exporters and importers".
"Maintaining the right ports and freight strategy to cater for NSW's growing trade needs is crucial to the State's economic future," Ms Calfas said.
"Port Botany and Port Kembla are key economic drivers for NSW and the nation, contributing more than $13 billion a year to the State's economy and supporting 65,000 jobs."
Ms Calfas said Botany was only half-full and a Newcastle container terminal would "increase supply chain costs for Australian exporters, importers and consumers".
"It would also add up to 5400 truck movements a day to Newcastle's roads and the M1 Pacific Motorway, worsening congestion and greenhouse gas emissions," Ms Calfas said.
Her statement did not reference the extinguishment law that Port of Newcastle believes will see a negotiated outcome to the controversy that began with the privatisation of Botany and Port Kembla in 2013 and Newcastle in 2014.
Mr Piper said a lot had changed since the original court case and the appeal, and the Act "achieved what the ACCC was seeking in its court challenge".
"I applaud the ACCC for sharing my views and bravely challenging the deals which everyone knows were unfair and delivered a monopoly on container trade to Sydney," Mr Piper said.
"Its a shame it was defeated on a legal technicality, but weve moved on and I remain extremely pleased that my Bill is already delivering the positive outcomes which the ACCC was seeking."
The Federal Court full bench issued its orders in Adelaide today, but did not publish its reasons, which are being circulated among the parties to see what material, if any, should be blacked out for reasons of commercial confidentiality.
The original ACCC case was heard in late 2020 and dismissed in June 2021 by Justice Jayne Jagot, who has since been appointed to the High Court of Australia.
The appeal was heard in February 2022 by a full bench comprising Chief Justice James Allsop, Justices David Yates and Jonathan Beach.
"We are alleging that making these agreements containing provisions which would effectively compensate Port Kembla and Port Botany if the Port of Newcastle developed a container terminal, is anti-competitive and illegal," the chair of the ACCC at the time, Rod Sims, said in 2020.
Mr Sims was succeeded as ACCC chair in March last year by competition lawyer Gina Cass-Gottlieb.
Greg Cameron, who first promoted the container terminal as a BHP project, said the ACCC's loss meant the NSW parliament could continue to make law that includes things hidden from the MPs voting on it - the container cap payments exposed by the Newcastle Herald after repeated denials from the Coalition government.
"Any Act made by any parliament that includes a section referring to 'necessary or convenient functions', may now be assumed to involve something that is being hidden," Mr Cameron said today.
"After repeated denials by the Coalition state government, the public and parliament found out about the penalty from the Newcastle Herald on July 29, 2016. The trial was conducted only because the Herald had exposed the hidden penalty."
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