The coal companies will also be allowed to negotiate collectively and with Aurizon Network for access to below rail infrastructure to transport their coal to the terminal, the Australian Competition and Consumer Commission said.
“This decision allows coal miners to conduct more timely and efficient negotiations to secure terminal and rail capacity, which is likely to reduce the risk of unnecessary delays in the construction of this terminal and coal export growth,” ACCC Commissioner Joe Dimasi said.
“The ACCC is satisfied that the voluntary nature of the arrangements and the limited scope of the negotiations means there is little, if any, public detriment.”
The ACCC has granted authorisation until April 2028 to cover initial contract negotiations and to give effect to any subsequent long-term contracts.
Authorisation provides immunity from court action for conduct that might otherwise raise concerns under the competition provisions of the Competition and Consumer Act 2010.
The ACCC may grant an authorisation when it is satisfied that the public benefit from the conduct outweighs any public detriment. Interim authorisation allows the parties to engage in the conduct prior to the ACCC considering the substantive merits of the application.
The ACCC compares the ‘future with-and-without’ authorisation to identify and weigh the public benefit and detriment generated by conduct for which authorisation has been sought.
The applicants submit that without authorisation, at least some of the applicants will have to negotiate individually with Adani and Aurizon for access to the port infrastructure and below rail infrastructure respectively.
“However, the applicants submit that some of the smaller producers may not negotiate separately given limited resources,” the ACCC said.
“As such, small producers may need to reconsider development of their coal resources without authorisation of the proposed conduct.
“Further, following the introduction of criminal sanctions for cartel conduct, the applicants submit that they require certainty that the proposed conduct does not contravene the Act. Therefore, proceeding to engage in collective bargaining conduct without authorisation is not a viable option for the applicants.”
