LETTER TO THE DCN: Court's decision confirms precedent

THE ACCC’s appeal in ACCC V NSW Ports Pty Ltd was unanimously dismissed on 23 February by the Full Bench of the Federal Court.

Reasons will be published after the parties have agreed on confidential material. The court said that any confidentiality or redaction will need to be justified.

The decision confirms that the NSW Parliament can make or amend a law that enables a minister to do something that is hidden from the public and Parliament.

It sets a precedent for all Australian Parliaments – Federal, State and Territory.

The penalty was hidden from NSW Parliament and denied under section 6 of the Ports Assets (Authorised Transactions) Act 2012 (PAAT Act), which says: “The Treasurer has and may exercise all such functions as are necessary or convenient for the purposes of an authorised transaction.”

Any act made by any Parliament that includes a section referring to “necessary or convenient functions”, may now be assumed to involve something that is being hidden.

The public and Parliament found out about the penalty from the Newcastle Herald on 29 July 2016. The penalty was necessary for leasing Port Botany and Port Kembla to the private sector.

Together with the public and Parliament, the ACCC did not know about the penalty when the PAAT Act was made in November 2012 and amended in June 2013.

Although NSW Treasury made the ACCC aware of the penalty in confidence before the Port of Newcastle was leased in May 2014, the ACCC took no enforcement action until December 2018.

The trial in ACCC V NSW Ports was conducted only because the Newcastle Herald exposed the hidden penalty.

Greg Cameron,
Public affairs analyst