Application by Glencore Coal Pty Ltd [2016] ACompT 6

AUSTRALIAN COMPETITION TRIBUNAL

Application by Glencore Coal Pty Ltd [2016] ACompT 6 Review from: THE DECISION BY THE COMMONWEALTH TREASURER UNDER SUBSECTION 44K(2) OF THE COMPETITION AND CONSUMER ACT 2010 (CTH) IN RELATION TO THE APPLICATION FOR DECLARATION OF A SERVICE PROVIDED BY PORT OF NEWCASTLE OPERATIONS PTY LTD

File number: ACT 1 of 2016

Tribunal: MANSFIELD J (PRESIDENT) MR RF SHOGREN (MEMBER) MR R STEINWALL (MEMBER)

Date of decision: 31 May 2016

Catchwords: COMPETITION – Application for review of a decision by the Minister under s 44K(2) of the Competition and Consumer Act 2010 (Cth) not to declare a service – where service is the right of access and use of monopoly infrastructure provided by the Port of Newcastle Operations Pty Ltd – where Minister not satisfied of criterion (a) of s 44H(4) – proper construction of s 44H(a) – meaning of "access (on increased access)" – whether application of criterion (a) requires counterfactual comparison of a future with access and a future with restricted access – whether "access" entails a legal and enforceable right to access – whether access would promote a material increase in competition in at least one dependent market – whether increased access would promote a material increase in competition in at least one dependent market – existence of residual discretion in relation to that particular criterion – where Notice of Contention that the decision should be affirmed on the additional ground that criterion (f) is not satisfied – application of criterion (f)