Notice of Appeal filed on refusal of Port of Newcastle declaration
9 March, 2021
The NSW Minerals Council has filed a Notice of Appeal in relation to the recent refusal of our declaration application for the Port of Newcastle.
Last year the NSW Minerals Council applied to have the Port of Newcastle declared to provide a basic level of regulatory oversight over pricing and access arrangements for the movement of coal through the Port.
Declaration is a pathway available under Part IIIA of the Competition and Consumer Act for third parties to share the use of certain infrastructure facilities of national significance.
If a service is declared, access seekers acquire a legal right to negotiate access to the service with the service provider, and if necessary to have their request for access determined through arbitration by the Australian Competition and Consumer Commission.
The recent refusal of our declaration application has highlighted the inadequacy of the current declaration process. However, it remains the only option for redress available for Hunter coal producers that must export coal through the Port but are subject to any terms the monopoly Port operator wishes to impose.
Coal is Australia's second most valuable export after iron ore, and NSW's most valuable export. The Port of Newcastle handles most of NSW’s coal exports, and also contributes around thirty percent of national coal export volumes.
It is almost inconceivable that governments have been willing to allow such an important piece of national economic infrastructure to operate as an unregulated monopoly service provider. This lack of oversight is a major reason why access arrangements between coal producers and the Port operator remain unresolved and uncertain after several years.
These issues have become even more acute given the Port's publicly stated ambition to significantly expand its container terminal operations. Ongoing uncertainty on future terms of access for coal sector Port users represents increased risk due to potential container terminal expansion costs, including the potential price impact on future coal exports.
The NSW Minerals Council will continue to pursue all options for appropriate regulatory oversight of the Port that also delivers reasonable commercial outcomes for all parties.