The ACCC is currently investigating “concerns that contractual restrictions may prevent the expansion of container throughput at certain ports”. It is speculation that these unspecified “concerns” include the anti-competitive Port of Newcastle container fee.
It is fundamental that any ACCC investigation recognises the fee, its purpose and the date it became NSW government policy.
The Hon Adam Searle’s question without notice to The Hon Duncan Gay on October 17 2013 [see below] uncovered the fact that the government decided in 2011 or early 2012 to cap the number of containers that could be shipped through the Port of Newcastle without incurring a fee. The fee charged per container is equal to the average fee charged for a container shipped through Port Botany (currently $150). As Mr Gay revealed in his answer, the fee was an instruction the government gave its financial adviser, Morgan Stanley, for conducting a scoping study into leasing Port Botany and Port Kembla. The government appointed Morgan Stanley on December 14 2011.
Earlier, in 2009, the previous, Labor, NSW government decided to develop a container terminal at the Port of Newcastle by leasing the former Newcastle steelworks ‘Mayfield Site’ to the private sector. With the government acting as Newcastle Port Corporation (Corporation), a negotiation commenced, under contract, with Newcastle Stevedores Consortium (Consortium) in 2010. The Corporation changed its contractual requirements in 2013 to include the fee. This negotiation concluded on commercial terms in November 2013, without the site being leased.
The ACCC claims that the Corporation ceased carrying on a business for the purposes of the “Commonwealth Competition and Consumer Act 2010” in 2012 because the government decided not to develop a container terminal at the Port of Newcastle. As shown by Mr Gay’s answer, the government made no such decision. The ACCC is wrong to claim that the government decided in 2012 not to develop a container terminal, as proven by the Corporation’s ongoing negotiation with the Consortium and the “Port Commitment – Port Botany and Port Kembla”, which was publicly disclosed by The Newcastle Herald on 28 July 2016. Not even the government supports the ACCC’s claim. It defies reality that the Corporation complied with the Competition Act by requiring the Consortium to pay the fee.
The ACCC is obliged to acknowledge that the fee was an instruction the government gave Morgan Stanley for conducting a scoping study into leasing Port Botany and Port Kembla.
It is incontrovertibly in the public interest for the government’s liability to be determined because of the many billions of dollars of public money at risk if a container terminal is built at the Port of Newcastle and the fee proves to be unlawful or unenforceable. For example, a container terminal operating at a modest 1 million TEU a year between 2023 and 2063, will require the NSW government to pay NSW Ports $6 billion at the rate of $150 million a year.
Port Botany and Port Kembla were leased for $5.1 billion in 2013 for 99 years.
LEGISLATIVE COUNCIL 17 OCTOBER 2013
The Hon. ADAM SEARLE: My question is directed to the Minister for Roads and Ports. How much compensation will be paid to the private operator of Port Botany if a new container terminal is developed at Newcastle Port?
The Hon. DUNCAN GAY: The rules in the organisation that did the scoping study for Port Botany and Port Kembla and introduced guidelines there indicate that while general cargo is allowed there will not be an extension under the rules for the lease of Newcastle Port. So the short answer to the question is that we do not envisage that any compensation will need to be put in place. The Government has been clear on this all the way through the process, even before it indicated it would lease the port at the stage when Newcastle Port Corporation was in place. I have indicated in the House, as I have in Newcastle—indeed, I made a special visit to Newcastle to talk to the board, the chief executive officer and the local community—that part of the lease and the rationalisation was a cap on numbers there. I am not saying that there will be no containers into Newcastle. Certainly, a number of containers will come in under general cargo, but there will not be an extension. The only time an extension is allowed is when a specific number is reached and is tripped in Port Botany and Port Kembla.