Promoting efficient access to port facilities and services – South Australia

The Issue

The SA Ports Access Regime applies a negotiate-arbitrate access framework to six proclaimed ports (Port Adelaide, Port Giles, Wallaroo, Port Pirie, Port Lincoln, Thevenard). The Regime also provides for prices oversight of certain maritime services.

The SA Ports Access Regime was certified as an ‘effective’ access regime pursuant to Part IIIA of the CCA, however this had been in place for 10 years and was due to expire on 8 May 2021.

In order for the Regime to be certified beyond this time, the designated Commonwealth minister was required to make a decision to certify the Regime is effective. Ministerial approval was required primarily because the declaration and access undertaking pathways under Part IIIA of the CCA are not available where a certified state based regime exists. This therefore requires the Minister to be satisfied that the case for certification has merit.

The Solution

Since its inception, the SA Ports Access Regime has been highly effective in promoting successful commercial negotiation of access on terms that have supported strong ongoing investment in South Australia’s port facilities.

Notwithstanding this, and even though the SA Ports Access Regime was already certified, the NCC (and the designated Minister) was required to assess each application as a new application. The NCC was required to re-apply the statutory provisions to consider the application and required a well set out, evidenced based application and supporting documentation to demonstrate that the Regime remains consistent with the relevant principles of the CPA.

Synergies prepared a draft application document that examined the SA Ports Access Regime against the legislative criteria and which addressed the expected requirements of the NCC. In doing so:

• we highlighted the practical experience of the SA Ports Access Regime in promoting negotiated access to regulated maritime services and supporting continued investment in South Australia’s port facilities;
• we acknowledged how the structure of the South Australian port sector has evolved significantly over the last decade, with numerous new port facilities in the planning stage, and showed how the Regime has the flexibility to respond to this changing operational environment;
• we demonstrated how the Regime remains fully compliant with the Objects of Part IIIA of the CCA and the principles established in Clause 6 of the Competition Principles Agreement (CPA).

Our work formed the basis of the SA application to request that the NCC recommend to the Commonwealth Minister that the certification of the SA Ports Access Regime be extended for a period of 10 years.

The Benefits

Synergies’ analysis delivered the following benefits to our client:

• the advice drew on our firm’s regulatory expertise in which we were able to consider all aspects of the Part IIIA prescribed requirements for certification, including taking into account the relevance of recent legislative amendments and their impact on the interpretation of the statutory criteria;
• our practical knowledge of the SA ports framework meant that we were familiar with the operation and effectiveness of the state based regime, enabling us to prepare the analysis efficiently and without delay; and
• our previous engagements with a broad range of infrastructure clients have included preparation of many regulatory submissions including to the NCC, which meant we were cognisant of the regulator’s information requirements and its expected close scrutiny of our analysis.

Having regard to the information presented by the SA Government, the NCC concluded that the regime was consistent with the relevant principles of the CCA and certification should be extended, a position accepted by the responsible Minister, the Hon Josh Frydenberg MP.