Application by Port of Newcastle Operations Pty Limited (No 2) [2022] ACompT 1

Australian Competition Tribunal

Application by Port of Newcastle Operations Pty Limited (No 2) [2022] ACompT 1 Review of: Application for authorisation AA1000473 lodged by New South Wales Minerals Council on behalf of itself, certain coal producers that export coal through the Port of Newcastle, and mining companies requiring future access through the Port, and the determination made by the ACCC on 27 August 2020

File number: ACT 2 of 2020

Tribunal: JUSTICE O'BRYAN (Deputy President) DR D ABRAHAM (Member) MS D EILERT (Member)

Date of Determination: 18 February 2022

Date of publication of reasons: 4 March 2022

Catchwords: COMPETITION – review under s 101 of the Competition and Consumer Act 2010 (Cth) of authorisation granted by the Australian Competition and Consumer Commission – authorisation sought for collective bargaining in respect of terms and conditions of access to the Port of Newcastle – whether collective bargaining would result in public benefits comprising more efficient contract terms and lower transaction costs – whether collective bargaining would result in public detriments comprising increased risk of collusive conduct and marginalisation of individual interests and preferences of coal producers – authorisation refused and determination of the Australian Competition and Consumer Commission set aside

Legislation: Competition and Consumer Act 2010 (Cth) ss 88, 90, 91, 101, 102 Competition and Consumer Amendment (Competition Policy Review) Act 2017 (Cth) Trade Practices Act 1974 (Cth) s 90(5) Trade Practices Amendment Act 1977 (Cth) Explanatory Memorandum, Competition and Consumer Amendment (Competition Policy Review) Bill 2017 (Cth) Ports and Maritime Administration Act 1995 (NSW) ss 48, 50, 51, 60, 61, 67 State Owned Corporations Act 1989 (NSW)