Australia: Port of Darwin: Too much discretion for the regulator?


The proposed regulatory framework for the Port of Darwin is set out in the Ports Management Bill 2014 (NT). In principle the draft Bill draws on approaches adopted in Victoria and South Australia. In doing so, it vests a significant amount of discretion in the Northern Territory Utilities Commission, a notionally independent regulator1 to make determinations about the appropriate level of regulation and potentially to set up front charges and terms and conditions. To that extent, it has the potential to be significantly more intrusive than the approach adopted in New South Wales in respect of the Port of Botany (for example), although it is not clear from the draft Bill whether price regulation is intended to displace commercial agreements.

However, much will turn upon regulations made by the Government once the Bill is passed and, even more importantly, the approach the Utilities Commission takes to its task. If the Government elects to limit the categories of regulated services to those in, Victoria, the risk faced by the port operator will be significantly less than were it to regulate the entirety of services at the port. As a result, a potential bidder would be well advised to obtain assurances regarding the proposed regulations.

In addition, it may be worth lobbying for:

  • a provision to clarifying that price regulation imposed by the Utilities Commission does not displace a private agreement made between the port operator and an access seeker;
  • an additional provision which reaffirms the Government's preference for light handed regulation which appears to be intended;
  • the guidelines discussed in section 0 to be issued in draft prior to the sale (to give potential investors more certainty).


Only "prescribed services" will be subject to regulation pursuant to Parts 10 and 11 of the Bill and the Utilities Commission Act (NT). However, the Bill does not define what a prescribed service is, leaving this to be specified by regulations promulgated by the NT Government. Typically, the following port services have been regulated when provided by private operators (e.g. in Victoria, South Australia):

  • port access via channels;
  • provision of port facilities for loading or unloading vessels; and
  • berthing (including the provision of berths, buoys and dolphins).

It may be in bidders' interests to seek guidance from the NT Government whether a similar approach will be taken here (if indeed any services are to be prescribed at the Port of Darwin). In this regard, it may be relevant that the current Utilities Commissioner, Dr Pat Walsh, is also the Chairperson of the Essential Services Commission of South Australia.2


The port operator may publish reference tariffs and it may also enter into commercial agreements with particular access seekers on different terms3 (subject to the non-discrimination obligations discussed below). However, the Utilities Commission has extremely broad powers to regulate charges for prescribed services.4

Prescribed services provided by the port operator can be regulated by the Utility Commission through regulation of the following functions:

  • prices for goods and services;
  • standards and conditions of service and supply;
  • licensing;
  • market conduct; and
  • other economic regulatory matters.5

There is no doubt that this gives the Utilities Commission significant power. For comparison, it goes beyond what was implemented by the NSW Government at the Port of Botany.

In exercising its power to set prices, the regulator must have regard to a fairly standard list of factors concerned with ensuring that pricing is reflective of the costs of providing access and that monopoly rents are not extracted.6 Prices must be reviewed at least every three years.7 Whilst this approach is well accepted (and similar to Victoria) it requires an experienced and well resourced regulator to ensure that robust and reasonable decisions are made.

To that end, bidders may wish to inquire of Government the extent to which the regulator will be adequately resourced and treated as independent. In addition to the Commissioner who is an economist with significant expertise in energy regulation and reform, the two assistant Commissioners have expertise in electricity and the public sector.8


Standard non discrimination provisions apply to the port operator. The non-discrimination provisions apply to arrangements between the provider and its customers9 and between different access seekers with the provider.10 However, price discrimination appears to be permitted.11

The port operator must develop a draft access policy in compliance with guidelines issued by the Utilities Commission, the relevant Minister and the regulations.12 The Utilities Commission has 60 days to approve or reject the draft policy.13 As set out above, it would be useful to have a copy of these guidelines before the sale proceeds.

The port operator may act reasonably in refusing alter or add to port facilities, address emergencies (comprising threats to public health and safety, property and the environment) and comply with its access policy.14


There are extremely limited review rights from a determination of the Utilities Commission. An application for review by the Utilities Commission of its determination can only be made by the Minister or licensed entity.15 A decision may only be appealed to the Supreme Court for bias or material misinterpretation of the facts within 14 days of the decision being made or not made.16 The Supreme Court may only have regard to material before the Utilities Commission when making (or failing to make) the original decision. Given that the powers of the Utilities Commission are broad and the Utilities Commission is a relatively new regulator,17 this may be problematic. However, most of the operative provisions concerned are in the Utilities Commission Act (NT) and unlikely to be changed as part of the sale process, as they are of more general application.

In addition, it is worth noting that the regulator has broad information gathering powers,18 as well as specific information gathering powers under the Bill relating to the mandatory annual report on instances of non compliance (clause 129) and the non-discrimination obligations (clauses 123 and 124).19 However, the mere existence of those powers does not necessarily mean that the Commission will routinely exercise them as a matter of practice.


1While the Commissioners are independent, the Commission is staffed by the Northern Territory Department of Treasury and Finance and is an administrative unit of that Department

2 See here

3Clause 110(3)

4 By regulation, on recommendation of the regulator and following a public inquiry together with certification of cost/benefit analysis by the Minister, the following forms of price regulation may be imposed: price monitoring; pricing policies or principles; fixing the price or the rate of increase or decrease in such a price; fixing a maximum price; fixing a maximum revenue in relation to a specified prescribed service; applying an average price cap; revenue yield control and/or any other form of economic regulation used by an independent regulatory body (clause 133).

5Section 20 Utilities Commission Act (NT)

6Clause 132

7 Clause 131(4)

8See here

9 Clause 123

10Clause 124

11 Clause 132

12Clause 126

13 Clause 126(3)

14 Clause 123

15 Unless the Bill declares a decision to be final, then no review is available: section 27 Utilities Commission Act (NT)

16 Section 28 Utilities Commission Act (NT)

17 The Utilities Commission was established in 2000, the current Commissioner was appointed in 2011 and the current Assistant Commissioners in 2009, details here

18Clause 135

19 Clause 130

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Most awarded firm and Australian deal of the year
Australasian Legal Business Awards
Employer of Choice for Women
Equal Opportunity for Women
in the Workplace (EOWA)

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.