Nationals MP Adam Marshall says he fears NSW Treasury officials and NSW Ports are trying to "strong-arm" the state's independent pricing tribunal into killing off Port of Newcastle's hopes for a large-scale container terminal.
The Independent Pricing and Regulatory Tribunal is assessing how much Port of Newcastle must pay the government in one-off compensation to extinguish controversial container handling fees imposed on the port during its privatisation in 2014.
Parliament passed legislation in November last year to try to resolve a bitter debate over whether the privatisation of the Newcastle, Botany and Kembla ports had imposed unfair or anti-competitive restrictions on Port of Newcastle developing a large container terminal at Mayfield.
Mr Marshall, the Northern Tablelands MP who has fought for a Newcastle freight terminal to serve farmers in his electorate, said Treasurer Daniel Mookhey was "playing an incredibly straight bat on this issue" but "my concern is that at a bureaucratic level there is some shenanigans, some gamesmanship".
"That's what worries me, that both NSW Ports and Treasury are trying to strong-arm IPART into making a determination which would essentially result in the container terminal not going ahead," he said.
"I'm hearing some whispers that IPART, which has always been fiercely independent ... they're receiving a lot of pressure is my understanding from NSW Treasury, who in turn is getting a lot of pressure being put on them by NSW Ports, who of course don't want this container terminal to be built at all because they're loving the fact they've had a virtual monopoly.
"That concerns me greatly if that's the case because there may be forces at play that are trying to subvert what Parliament almost unanimously expressed in the form of the legislation that went through almost 12 months ago now.
"I think it's time for them to get on with it and let IPART do its job, which it does and does very effectively, without undue pressure."
The privatisation contracts require the state government to compensate NSW Ports, which runs Botany and Kembla, for any containers handled in Newcastle above a set cap.
Port of Newcastle, in turn, must reimburse the government for any payments the state makes to NSW Ports.
Port of Newcastle has never gone close to exceeding the cap but says the cap's existence prevents it from investing in its planned Newcastle Deepwater Container Terminal.
The legislation gave Port of Newcastle the option of asking the treasurer to appoint an independent expert to determine what the fair market price for the 98-year port lease would have been if the restrictions on container trade were not in the original privatisation agreement.
IPART was due to make a determination in September but has asked for and received a six-month extension as allowed under the legislation.
Legal action 'tacit threat'
Mr Marshall said he was concerned that NSW Ports was threatening legal action if IPART's determination was not favourable to its commercial position.
"You can never pin them down to put anything in writing, but, yes ... I heard this from multiple sources in the corridors of Macquarie Street that this is their tacit threat," he said.
"The fact is the legislation is there. They just have to suck it up, the fact is that we, the Parliament, want competition and quite frankly the people of NSW, particularly producers in my part of the world, deserve to have competition.
"NSW Ports, if they've got a great product and they're the superior port, Newcastle developing should be no threat to their business.
"I just hope IPART will maintain its independence, as it always seems to do, and makes a decision on its own terms and doesn't succumb to some of the pressure I believe is being put to bear on them by Treasury and NSW Ports."
A Treasury spokesperson denied interfering in IPART's deliberations or receiving legal threats from NSW Ports.
A NSW Ports spokesperson said the company rejected Mr Marshall's assertions and had "no involvement in the IPART review process".
Mr Mookhey supported the legislation last year when in opposition but said at the time that he did not want taxpayers saddled with large payments to NSW Ports for another 50 years.
He told the Newcastle Herald this week that Treasury respected IPART's independence and no one had made complaints to him about pressure being placed on the tribunal.
"I think it's well known about the respective positions of the private operators," he said.
"I just point out to Mr Marshall and others the decision to appoint IPART was taken by the Coalition government, not by the Labor government, and I thought it was an appropriate call by them because it's a very complicated task.
"It may result in an outcome that is welcomed by Port Botany or Port of Newcastle. It may result in an outcome that is rejected by either or both of them."
Mr Mookhey told Port of Newcastle and NSW Ports this week that, in the interests of transparency, he planned to publish the commitment deeds which detail the container compensation and reimbursement provisions.
Under the terms of the sale contracts, the organisations must approve the publication of the deeds.
