The Australian Competition and Consumer Commission has been notified of an access dispute between Glencore Coal Assets Australia Pty Ltd (Glencore) and Port of Newcastle Operations Pty Ltd (PNO) in relation to the shipping channel service at the port. Glencore notified the ACCC of the access dispute on 4 November 2016 and has requested that the ACCC arbitrate.
The dispute relates to the level of access charges, and access terms, set by PNO for users of the shipping channel service at the port, which was declared under Part IIIA of the Competition and Consumer Act 2010 (CCA) by the Australian Competition Tribunal in June 2016. The declared shipping channel service is:
The provision of the right of access and use of the shipping channel (including berths next to walls as part of the channel) at the Port, by virtue of which vessels may enter the Port precinct and load and unload at relevant terminals located within the Port precinct and then depart the Port precinct.
“An ACCC arbitration would seek to identify a solution that balances the interests of both parties and promotes the economically efficient use and operation of these services,” ACCC Chairman Rod Sims said.
“The ACCC’s role to arbitrate under Part IIIA only applies to declared services. The declaration of the shipping channel service is currently the subject of an application for judicial review by the Full Federal Court. If that challenge is successful, the arbitration process will stop,” Mr Sims said.
The ACCC must make a final determination within 180 days from the day a dispute notification is received. Except where otherwise agreed by the parties to a dispute, arbitration hearings are to be conducted in private.
The ACCC has a role under Part IIIA to arbitrate access disputes where a service has been ‘declared’. Where a service has been declared under Part IIIA and an access seeker and provider cannot agree on the terms and conditions of access to that service, either party may request in writing for the ACCC to arbitrate the dispute.
On 13 May 2015, Glencore applied to have the shipping channel service at the Port of Newcastle declared. The Minister decided not to declare the service on 8 January 2016, and Glencore applied for review of this decision by the Australian Competition Tribunal. The Tribunal declared the shipping channel service under Part IIIA of the CCA on 16 June 2016.
PNO subsequently applied for judicial review of the Tribunal’s decision by the Full Federal Court.
Except where otherwise agreed by the parties to a dispute, arbitration hearings are to be conducted in private. The ACCC therefore does not generally make any public comment on disputes during the course of arbitration except to announce when a dispute has been notified. Before making a determination, the ACCC must give a draft determination to the parties. The ACCC is required to publish a written report about a final arbitration determination.
Additional information: National access regime under Part IIIA.
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