125Unfairly differentiating

125 Unfairly differentiating (1) In negotiating arrangements to provide access to any prescribed service, or a change to any such arrangement, a private port operator or private pilotage provider must not unfairly differentiate between port users in a way that has a material adverse effect on the ability of one or more of the port users to compete with other port users. (2) Subsection (1) does not prevent a private port operator treating port users differently to the extent the different treatment is: (a) due to a refusal of a kind mentioned in section 124(5)(a); or (b) reasonably justified because of the different circumstances, relating to access to the prescribed service, applicable to the port operator or any of the port users; or (c) expressly required or permitted by the operator's access policy. (2A) In addition, subsection (1) does not prevent a private pilotage provider treating port users differently to the extent the different treatment is reasonably justified because of the different circumstances, relating to access to the prescribed service, applicable to the provider or any of the port users. (3) To avoid doubt: (a) this section does not operate to prevent a private port operator or private pilotage provider from applying a different charge to different port users for the provision of the same prescribed service; and (b) subsections (2) and (2A) do not authorise a private port operator or private pilotage provider to engage in conduct for the purpose of preventing or hindering a port user's access to the prescribed service.

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