Ocean liner shipping class exemption

The ACCC’s work on developing a possible class exemption was put on hold in 2020 while the ACCC focussed on regulatory activities arising from the COVID_19 pandemic.

The ACCC is yet to recommence this work and is waiting for the outcomes from a review by the Productivity Commission into the long-term productivity of Australia’s maritime logistics system which was announced on 10 December 2021. The Terms of Reference for the review indicate that the Productivity Commission should have regard to the ACCC’s container stevedoring monitoring report and the Government’s in-principle acceptance of the Harper Review’s recommendation to repeal Part X, and consult with the ACCC as part of its review.

2019 Discussion Paper

In December 2019, the ACCC 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 of the Competition and Consumer Act 2010 (Cth) (the CCA).

Should the Australian Government decide to repeal Part X, coordination among Liners may breach competition laws.

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.

However, there is unlikely to be a strong case for pursuing work on a possible future class exemption without a clear position on the future of Part X. Part X and a class exemption may result in overlapping parallel exemption regimes which can cause confusion and result in administrative efficiencies.