The public is being misled by the NSW government and the ACCC over the government's policy on container facility development.
The ACCC says the government had decided "not to develop a container terminal at the Port of Newcastle" when it announced the policy in July 2012.
The government announced that it would "consider" developing a container terminal at Newcastle but only after both Port Botany and Port Kembla became fully developed.
In other words, probably never.
But the government agreed on terms with NSW Ports Pty Ltd in May 2013 that enabled the immediate development of a container terminal at the Port of Newcastle.
The government's policy on container facility development is invalid because of this agreement.
The government agreed to pay NSW Ports for container traffic above a minimal specific cap at the Port of Newcastle, unless NSW Ports developed a container terminal at the Port of Newcastle, or leased the port, or any part of it, from the government.
At that time, the government was negotiating with Mayfield Development Corporation Pty Ltd (Mayfield) to develop a container terminal at the Port of Newcastle.
The government required Mayfield to pay a penalty on container traffic as the government's source of funds for paying NSW Ports.
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This requirement of Mayfield was concealed from the public and ACCC. The government terminated its negotiation with Mayfield in November 2013.
Mayfield had advised the government that it considered the penalty to be illegal under the Competition and Consumer Act 2010 (CCA).
The ACCC says the government was not carrying on a business for the purposes of the CCA when it reached its agreement with NSW Ports, because of the government's policy decision on container facility development.
The ACCC's claim is incorrect because the government's policy on container facility development is invalid, as proven by its agreement with NSW Ports.
The government became exempt from the CCA when it made a decision to lease the Port of Newcastle to the private sector. The government made this decision in November 2013.
The lessee of the Port of Newcastle agreed to the government's penalty.
Port of Newcastle Investments Pty Ltd (PNI) leased the port from the government in May 2014. Under the agreement, PNI can develop a container terminal immediately.
The ACCC is misleading the public by claiming that the government's policy on container facility development is valid.
