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Evidence of benefits from the Australian Competition and Consumer Commission’s arbitration determinations.

During 2019-20, the Tribunal handed down its determination of access charges in relation to the previously declared shipping channel service at the Port of Newcastle. This determination was brought about following PNO and Glencore Pty Ltd (Glencore) both seeking review of an ACCC arbitration determination made in relation to this service during the previous financial year. The Tribunal determination had the effect of significantly increasing the access charge payable by Glencore to PNO for the declared service above both previously determined by the ACCC and by PNO prior to the arbitration of the service. Specifically:

  • In November 2016, the ACCC commenced arbitration of an access dispute between Glencore and PNO in relation to the declared service
  • The ACCC made a Final Determination on 18 September 2018, resulting in access charges of $0.61 per gross tonne for a Navigation Service Charge (a 20 per cent decrease on the price set by PNO of $0.76 per gross tonne)[1]
  • On 8 October and 9 October 2018 respectively, both PNO and Glencore applied to the Tribunal for a review of the ACCC Final Determination (which, according to s 44ZP(3), is a re-arbitration of the access dispute)[2]
  • On 30 October 2019, the Tribunal handed down its decision regarding its review of the ACCC’s arbitration in the Glencore-PNO dispute.[3] Significantly, the Tribunal determined that the Navigation Service charge payable by Glencore to PNO from 1 January 2018 should be increased to $1.01 per gross tonne (an increase of 65 per cent above the price determined by the ACCC).

On 28 November 2019, the ACCC applied to the Federal Court for a review of the Tribunal’s decision. As of 30 June 2020, the review was still ongoing.

In the context of ongoing appeals of arbitration decisions for the previously declared service, it is difficult to reach firm conclusions at this point regarding evidence of the benefits from the ACCC’s arbitration determination in this matter. Clearly, however, the resolution of arbitral decisions under Part IIIA of the CCA can be a time-consuming process if parties avail themselves of their appeal rights in relation to arbitration determinations. Until all final appeal rights have been exhausted, there will continue to be some degree of regulatory uncertainty with respect to the determination of prices via arbitration under Part IIIA of the CCA.

The Council will monitor the outcome of the ACCC’s review of the Tribunal’s determination of the access dispute between PNO and Glencore, and report on these issues in its next Annual Report.

[1] The ACCC also determined an access charge for a Wharfage service of $0.07 per revenue tonne.

[2] Australian Competition Tribunal File Nos. ACT 2 of 2018 (Application by Port of Newcastle Operations Pty Ltd) and ACT 3 of 2018 (Application by Glencore Coal Asset Australia Pty Ltd).

[3] Australian Competition Tribunal - Application by Port of Newcastle Operations Pty Ltd [2019] ACompT 1. See Tribunal decision at this link.