MP Sharon Claydon has joined the growing chorus of displeasure, following the Federal Court’s ruling to prevent Port of Newcastle from building a shipping container terminal in the Hunter.
It comes after Newcastle state MP Tim Crakanthorp, Swansea counterpart Yasmin Catley and Port of Newcastle CEO Craig Carmody all criticised the decision on Tuesday 20 July.
The Newcastle federal member said the verdict on the Australian Competition and Consumer Commission (ACCC) case was a “very disappointing outcome for our region”.
“It’s also a setback for anyone who expects there to be a level playing field for the Port of Newcastle to reach its full potential,” Ms Claydon stated.
“While lawyers will no doubt argue the toss about this decision for many months and, perhaps, years to come, the real question for Novocastrians is: why doesn’t the NSW Liberal Government just fix this mess, which is entirely of its own making?
“Instead of choking our regional economy and effectively blocking any hope of having our own container terminal, the NSW Government should be doing everything it can to help grow, develop and diversify the Port of Newcastle.
“It’s time for the state and federal Liberal governments to show real leadership now – and release the Port of Newcastle from these artificial constraints.
“Let’s tear up the dodgy deal, so we can at least compete on a level playing field.
“Surely that’s not too much to ask or expect?”
Hopes of Newcastle hosting the state’s second container port any time soon were speculative, far-fetched and fanciful, says the presiding judge.
Justice Jayne Jagot in June dismissed allegations that the NSW Government and the owners of its largest ports had signed anti-competitive and illegal contracts.
The 2013 and 2014 agreements effectively require the Port of Newcastle to compensate the owner of Sydney’s Port Botany if container cargo starts to be diverted to NSW’s second-largest city.
The competition watchdog, ACCC, had alleged the compensation due was so high, it was uneconomical for Newcastle to compete with Botany, breaching competition laws.
But, substantially lessening competition wasn’t the purpose of the compensation provisions, nor their likely future effect, the Federal Court judge said.
Rather, Botany wouldn’t reach capacity for decades and Newcastle was speculating that it could convince the NSW Government to shaft its current outlook to make Port Kembla the city’s second container terminal, she said.
Newcastle was also hoping it might satisfy its shareholders a future Newcastle container terminal could be viable despite Botany’s spare capacity.
“These mere speculative hopes were and remain far-fetched and fanciful on the evidence, and were and are not a real chance or real possibility,” Justice Jagot said in written reasons published on Tuesday.
“As such, there was and is not any credible threat of entry by (Port of Newcastle) into the pleaded market for Container Port Services in NSW.”
The owner of Botany also had the benefit of “derivative Crown immunity” regarding compensation provisions and thus couldn’t be prosecuted for alleged cartel conduct, the judge ruled.
Newcastle is the world’s largest coal export port and the country’s third-largest port by volume.
However, it handles few containers, lacking the specialist equipment that allows Port Botany to handle 2.7 million standard container units each year.
Botany, which has a capacity of about seven million containers annually, and Kembla, which primarily handles imported vehicles, grain and other bulk cargo, are both owned by NSW Ports, a consortium of industry superannuation funds.
NSW Ports chief executive Marika Calfas said the decision was “an emphatic win” for it and the people of NSW.
Premature development of another container terminal in NSW while Port Botany had capacity would increase freight costs to the detriment of the state’s economy, she said.
The ACCC in June said the judgment provided an “enormous hurdle” for Newcastle to develop a container terminal and confirmed NSW Ports’ “effective monopoly” in moving containers in NSW.
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