Australia: The National Access Regime still has teeth

Earlier this week, the Australian Competition Tribunal (Tribunal) decided that the shipping channel and wharfage service (the Wharfside Service) at the Port of Newcastle (Port) should be declared under Part IIIA of the Competition and Consumer Act 2010 (Cth). The Tribunal's decision represents a victory for Glencore Coal Pty Ltd (Glencore) in its battle against price increases at the Port. It also reminds infrastructure investors, owners and users that the National Access Regime still has teeth.


As set out in A bow wave of reform at our ports? and What does Glencore's Tribunal application mean for infrastructure investors? Glencore applied to the National Competition Council (NCC) for declaration of the Wharfside Service in May 2015. Following the recommendation of the NCC, Acting Treasurer Mathias Cormann decided not to declare the Wharfside Service. Glencore applied to the Tribunal for review of the Minister's decision on 29 January 2016. The Tribunal published its decision and reasons1 on 31 May 2016. The Tribunal's decision can be found here.


As we foreshadowed, the Tribunal's decision turned upon the proper construction of criterion (a), namely, whether access (or increased access) would promote a material increase in competition in a dependent market. While the Tribunal's decision was an administrative one, it turned upon the meaning given to criterion (a) by the Federal Court in Sydney Airport FC2. This point was grasped decisively by the Tribunal in its decision, notwithstanding various arguments to the contrary. As the Tribunal points out, it was obliged to follow Sydney Airport FC unless and until it was overturned by a higher court.3

Sydney Airport FC makes it clear that, in assessing whether competition is promoted, the comparison is not between the current level of access and some future level of access post declaration, but simply between access and no access. As the Tribunal observed at [64], Virgin Blue already had access to the airside service provided by Sydney Airport and was using it for arrivals and departures. However, that did not prevent a finding that access (or increased access) would promote competition.

What the Tribunal makes clear in Glencore is that the real issue is whether the service has natural monopoly characteristics. If it does, and the service is a necessary input for effective competition in a dependent market with no practical commercial alternative, it follows that access will likely promote competition.4 While many, including the Harper Review Panel and to a lesser extent, the Productivity Commission, have expressed the view that this sets the bar for declaration too low, it remains the law.

The Tribunal also rejected the Port's argument that the High Court's finding in Pilbara HC5 that the decision maker had no "residual discretion" in relation to declaration impliedly changed the construction of criterion (a).6

Interestingly the Tribunal did find that, were it wrong on the construction of criterion (a) and the correct comparison was between the current level of access and the level of access if the Wharfside Service were declared, it would have agreed with the Minister's decision.7 This may become relevant if an appeal is successful.

Finally, the Tribunal rejected the Port's argument that the Minister erred in deciding that declaration of the Wharfside Service was not contrary to the public interest (criterion (f)). In doing so it followed the decision of the High Court in Pilbara HC that the Tribunal would not "lightly depart from a ministerial conclusion about whether access or increased access would not be in the public interest".8


This decision is likely to have a significant impact on the Port and could lead to applications for declaration of a landside service as well. As a result, it is likely the Tribunal's decision will be appealed to the Full Bench of the Federal Court, potentially under the Administrative Decisions (Judicial Review) Act 1977 (Cth). If the Federal Court appeal is unsuccessful the Port may well seek special leave to appeal to the High Court. Any such appeals are likely to be hugely influential as to the future direction of the National Access Regime.

There is also an interesting question as to whether the service will remain declared while the appeals are heard.9


As we have previously said, governments across the country are looking to privatise significant infrastructure assets or have already done so. Many of these assets, like the Port, have natural monopoly characteristics and are the subject of relatively light handed regulatory regimes. In an environment of declining resource prices, there is a strong incentive for companies reliant on bottleneck infrastructure to consider all regulatory levers at their disposal to secure better terms of access, including price. The National Access Regime provides such a lever.

The ACCC will no doubt be delighted with the outcome as, following the Tribunal's decision, it has the opportunity to set terms and conditions of access in a bilateral arbitration. While those arbitrations have been relatively infrequent, the Tribunal's decision may see that change.


1 Application by Glencore Coal Pty Ltd [2016] ACompT 6

2 Sydney Airport Corporation Limited v Australian Competition Tribunal [2006] FCAFC 146

3 Application by Glencore Coal Pty Ltd [2016] ACompT 6 at [79]

4 Application by Glencore Coal Pty Ltd [2016] ACompT 6 at [113]; paraphrasing Sydney Airport Corporation Limited v Australian Competition Tribunal [2006] FCAFC 146 at [91] and [92]

5 Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2011] FCAFC 58

6 Application by Glencore Coal Pty Ltd [2016] ACompT 6 at [91]

7 Application by Glencore Coal Pty Ltd [2016] ACompT 6 at [157]

8 Application by Glencore Coal Pty Ltd [2016] ACompT 6 at [169], citing Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2011] FCAFC 58 at [112]

9 Administrative Decisions (Judicial Review) Act 1977 (Cth), section 15

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.

Chambers Asia Pacific Awards 2016 Winner – Australia
Client Service Award
Employer of Choice for Gender Equality (WGEA)

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”

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.