First port of call: The anti-competitive entanglement of privatisation and crown immunities in ACCC v NSW Ports and beyond

Alan Zheng

Competition and Consumer Law Journal

Alan Zheng, ‘First port of call: The anti-competitive entanglement of privatisation and crown immunities in ACCC v NSW Ports and beyond’ (2022) 29 CCLJ 158

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Abstract

This article evaluates the recently appealed Federal Court decision in Australian Competition and Consumer Commission (‘ACCC’) v NSW Ports Operations Hold Co (‘NSW Ports’) in which crown and derivative crown immunity were available in the context of the NSW Government’s privatisation of three ports — Kembla, Botany and Newcastle. Nearly 30 years on from the Hilmer Report, privatisation remains a double-edged sword. This decision is a contemporary examination of the intersection between competition law and privatisation amid the ACCC’s increasing regulatory focus in this area. This article argues the scope of crown and derivative crown immunity in NSW Ports is overly deferential to government policy and prevents effective competition law scrutiny of significant economic conduct entangled in privatisation. This article also examines how governments minimise sovereign risk through the practice of offering anti-competitive sweeteners during privatisation to maximise the price of public assets.