The Australian Competition & Consumer Competition (ACCC) has applied to the Federal Court for a review of the Australian Competition Tribunal’s recent decision regarding the terms of access by Glencore Coal Assets Australia Pty Ltd (Glencore) to certain services at the Port of Newcastle.
The Tribunal re-arbitrated an access dispute between Glencore and Port of Newcastle Operations Pty Ltd (PNO), which was mainly about the charge for ships entering the Port to export Glencore’s coal. The ACCC was the original arbitrator.
While the Tribunal took the same approach as the ACCC on a number of issues, the ACCC is seeking review of the Tribunal’s treatment of user funding at the port
ACCC Chair Rod Sims stated.
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An important part of the dispute is about whether the costs that PNO is allowed to recover should regard the costs for dredging the shipping channel that were historically funded by various users of the port.
The ACCC excluded these user funded amounts in its original arbitration and determined an access charge of $0.61 per gross tonne as at 1 January 2018, while the Tribunal included these amounts and determined an access charge $1.01 per gross tonne. The Tribunal’s decision enables PNO to recover the user funded amounts in its access charge.
The ACCC does not consider it to be economically efficient for a service provider to be allowed to charge any user for costs of assets that have already been funded by users
Mr Sims added.
He concluded by saying that the appeal will focus on what ACCC will argue are errors in the way the Tribunal has approached the principles of user funding, which could also lead to implications for other regulatory matters.
