On Tuesday 29 June, the Federal Court will give its verdict on the legality under the Commonwealth Competition Act of the Port of Newcastle container penalty.
By legislating the Ports Assets (Authorised Transactions) Act 2012, the New South Wales State Parliament authorised the government to lease Port Botany, Port Kembla and the Port of Newcastle to the private sector. The government claims the penalty was legislated under the act. However, the government has not explained how the parliament legislated the penalty when the penalty was concealed from the parliament.
The penalty was exposed by The Newcastle Herald in 2016, three years after it was imposed. The government pays the penalty to the lessee of Port Botany and Port Kembla, NSW Ports.
The ACCC alleged in the Federal Court that it was illegal under the Competition Act for the Port of Newcastle to pay the penalty to the government. The ACCC sought a court order restraining NSW Ports from claiming payment from the government.