The ACCC has instituted Federal Court proceedings against Tasmanian Ports Corporation Pty Ltd (TasPorts) in its first case taken under the amended misuse of market power provision.
The ACCC alleges that TasPorts, which owns all but one port in northern Tasmania, sought to stop a new entrant, Engage Marine Tasmania Pty Ltd (Engage Marine), from competing effectively with TasPorts’ marine pilotage and towage businesses, with the purpose, effect and likely effect of substantially lessening competition.
“In short, our case is that TasPorts sought to maintain its monopoly in towage and pilotage in Tasmania, resulting in higher prices and lower quality services,” ACCC Chair Rod Sims said.
“This is the first case under the amended misuse of market power provision, an important law reform designed to protect the competitive process and help us address the harm that anti-competitive conduct does to consumers and the Australian economy.”
The ACCC alleges that TasPorts prevented Engage Marine from expanding in Tasmania by failing to provide long term berths for its tug boats, and refusing to place Engage Marine on the shipping schedule, which is necessary for it to provide towage services.
The ACCC also alleges that TasPorts has prevented Engage Marine from providing pilotage services at Port Latta by failing to provide training to Engage Marine’s employees, which only they could provide, and demanding that Engage Marine’s sole customer pay about $750,000 a year in fees to TasPorts after the customer stopped contracting with TasPorts.
“We are alleging that TasPorts’ actions are driven by an anti-competitive purpose, and that its conduct has had or is likely to have an anti-competitive effect,” Mr Sims said.
The ACCC is seeking injunctions, declarations, penalties and costs.
TasPorts is a corporation wholly owned by the State of Tasmania. It owns all the ports in northern Tasmania, except Port Latta, and supplies marine pilotage and towage services in those ports.
Marine pilots assist a ship’s captain (master) to guide large vessels in port waters. Marine pilots are experienced mariners with expertise in navigating particular port waters.
Towage involves using tug boats to guide ships in port waters.
Generally, ships greater than 35 metres in length are required to hire a marine pilot when entering port waters, and may be required to hire one or more tug boats.
The ACCC is taking action under the misuse of market power provision which was amended in response to the Harper Review of Australia’s competition laws. The new section 46 applies to conduct from 6 November 2017 and prohibits a firm with a substantial degree of market power from engaging in conduct which has the purpose, effect or likely effect of substantially lessening competition.
Further information at Guidelines on misuse of market power.
The attached document below contains the ACCC’s initiating court documents in relation to this matter. We will not be uploading further documents in the event these initial documents are subsequently amended.