The Australian National Competition Council (“the Council”) was required to assess whether declaration of the shipping channel service provided by Port of Newcastle would be likely to satisfy the criterion set out in section 44CA(1)(a) of the Competition and Consumer Act 2010 (“criterion (a)”).  Criterion (a) requires “that access (or increased access) to the service, on reasonable terms and conditions, as a result of a declaration of the service would promote a material increase in competition in at least one market (whether or not in Australia), other than the market for the service.”

NERA was engaged by the Council to provide an independent expert analysis of various relevant competition issues. We concluded that declaration of the service would not promote a material increase in competition in the relevant coal tenements market.

On 26 July 2019, the Minister, the Hon. Josh Frydenberg MP, received a recommendation from the Council under section 44J(1) of the Competition and Consumer Act 2010 (CCA). The Council recommended that the declaration of service at the Port of Newcastle be revoked, relying on NERA’s analysis.

The Minister had not published a decision on the Council’s recommendation after a 60-day period. Accordingly, it is taken that a decision to revoke the declaration has been made.