In accordance with Part X of the Competition and Consumer Act 2010 (Cth) (the CCA), the Australian Peak Shippers' Association (APSA) is prescribed as the peak body as designated by the Federal Minister of Infrastructure and Transport to protect the interests of Australia's cargo owners and shippers in respect to shipping and international logistics services.
Our primary focus in terms of Part X is to ensure that Australian shippers (exporters and importers) have continued access to liner cargo shipping services of adequate frequency and reliability, at freight rates that are internationally competitive. The second goal is to promote conditions in the international liner cargo shipping industry that encourage stable access to markets for shippers in all States and Territories.
Our involvement ensures that shippers have:
- the opportunity to negotiate with Conferences, Discussion Agreements and major Consortia on minimum levels of service;
- have the opportunity to negotiate sea freight rates; and
- have access to Conferences, Discussion Agreements and major Consortia to provide any information reasonably necessary for the purpose of negotiations.
As pre-empted in recent member notices, the Australian Competition and Consumer Commission (ACCC) has today issued a discussion paper seeking comments on a possible class exemption for ocean carriers providing international liner cargo shipping services to and from Australia (Liners).
Liners currently have access to a wide suite of exemptions from Australia's competition law. These exemptions are set out in Part X.
However, the 2015 Competition Policy Review (the Harper Review) recommended that Part X be repealed and that the ACCC develop a class exemption for liner shipping agreements that meet a minimum standard of pro-competitive features.
The ACCC is proposing to develop such a class exemption, that would provide legal protection for certain types of coordination among Liners and their customers without them having to apply to the ACCC.
A class exemption is a way for the ACCC to grant businesses an exemption from competition law for certain 'classes of conduct' that may otherwise carry a risk of breaching competition laws, but:- do not substantially lessen competition, and/or
- are likely to result in overall public benefits.
Should the Australian Government decide to repeal Part X, coordination among Liners may breach competition laws. A class exemption would provide a 'safe harbour' for eligible businesses to coordinate without breaching the competition law. It would operate alongside the ACCC's existing 'authorisation' and 'notification' processes, which a business that falls outside the class exemption could still use to seek legal protection on a case-by-case basis.
The ACCC invites submissions in response to the discussion paper by 28 February 2020.
APSA will provide additional commentary in coming weeks and seeks feedback to Secretariat@auspsa.com by 24 January 2020 for incorporation into our final submission. |
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