Coordinating Access to Newcastle Coal Loading Facilities

When demand for coal loading services at the Port of Newcastle exceeds terminal capacity, a queue of ships forms in the vicinity of the Port. 

In order to control the queue and reduce the demurrage costs, the Australian Competition and Consumer Commission (ACCC) has previously granted interim Authorisations under the Commonwealth Trade Practices Act 1974 (TPA) for a capacity balancing system (CBS) at the Port. 

In late 2008, the absence of any further ACCC Authorisations prompted the NSW Government to make the Ports and Maritime Administration Amendment (Access Rules) Regulation 2008 (the Regulation) under the Ports and Maritime Administration Act 1995.  The Regulation allows the Minister for Ports and Waterways to require the preparation of access rules for supply chain facilities for coal loading at the Port of Newcastle. 

At the same time, a separate complementary Regulation was made under the Competition Policy Reform (New South Wales) Act 1995.  The Competition Policy Reform (New South Wales) Regulation 2008 enables the coal industry to develop the access rules if required by the Minister under the Regulation without risking a breach of the TPA.

A copy of the Regulation can be accessed by clicking on the attached Regulatory Impact Statement.

A copy of the Competition Policy Reform (New South Wales) Regulation 2008 can be accessed here.

Consultation with industry on the Regulation commenced with the issuing of a Regulatory Impact Statement (RIS) on 30 December 2008 and closed on 14 February 2009.

Four submissions were received during the consultation process.  The coal producer Idemitsu Australia Resources expressed support for the Regulation.  The submission from the Australian Rail Track Corporation supported the broad aims of the Regulation but also expressed support for the continued use of the ACCC Authorisation process until such time as a long term solution for access to the Port could be found.

The other two submissions were from Hunter Valley rail operators, QRNational Coal and Pacific National.  The QRNational submission noted that the primary focus of the Regulation was on the port and maritime environment and that there was no explicit consideration of the costs or implications for rail operators.  The Pacific National submission also noted this omission.

The maritime focus is due to the fact that the Ports and Maritime Administration Act 1995 does not allow regulations to be made in respect of the operation of any railway outside a port or supply chain facility.  No adjustment to the RIS or the regulatory settings were considered to be necessary as a result of the submissions received.

Note: Since the ACCC issued an interim Authorisation prior to 31 December 2008, there is no need to set mandatory access standards under the Regulation.

In order to allow stakeholders additional time for the development of a long term approach to terminal access, the original sunset period for the Regulation (30 June 2009) was extended on that date until 10 January 2010.