The ACCC has decided not to grant interim authorisation to the Port of Brisbane and the cruise ship operator Carnival for their proposed licence agreement relating to a proposed new cruise ship terminal.
“The decision was based on there being no conduct to which the interim authorisation would apply. It does not involve any assessment of the merits of the application for final authorisation,” ACCC Commissioner Roger Featherston said.
Under the proposed agreement, Carnival would commit to purchase a minimum level of capacity to underwrite the construction of the new terminal by Port of Brisbane. In exchange, Carnival would receive certain priority berthing rights at the terminal.
The agreement cannot take effect until the construction of the terminal is completed in 2020. However, Port of Brisbane and Carnival requested urgent interim authorisation because they considered it would provide them with some level of comfort prior to construction commencing this month.
“The ACCC view is that Port of Brisbane and Carnival do not require interim authorisation to commence construction of the port,” Mr Featherston said.
“The arrangements for which authorisation is sought cannot commence until 2020, by which time the ACCC will have made a final decision on whether to grant authorisation to the agreement. As there is no proposal to engage in the conduct for which interim authorisation is sought, it is not appropriate to grant interim authorisation.”
“It is also important to note that this decision about an interim authorisation does not provide any indication of whether or not a final authorisation will be granted.”
Port of Brisbane and Carnival lodged their application for authorisation on 11 October 2017. The ACCC has started consultation on this proposal.
The ACCC will make a determination on the authorisation in the first half of 2018, with a draft determination expected in January.
Authorisation provides statutory protection from court action for conduct that might otherwise raise concerns under the competition provisions of the Competition and Consumer Act 2010.
Broadly, the ACCC may grant an authorisation when it is satisfied that the public benefit resulting from the conduct outweighs any public detriment. Authorisation is sought as the proposed conduct may contain a cartel provision or may have the purpose or effect of substantially lessening competition or be an exclusionary provision within the meaning of section 45 of the Act.
The ACCC is able to grant an interim authorisation to allow part or all of the arrangements to go ahead while the ACCC makes its full assessment. The ACCC may review its decision on interim authorisation at any time. The ACCC's decision in relation to interim authorisation should not be taken to be indicative of whether or not final authorisation will be granted by the ACCC.
The ACCC has published the decision on the request for interim authorisation on the ACCC public register: Port of Brisbane & Carnival.
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