Wheat Export Marketing Amendment Act 2012 (170 of 2012)

Schedule 1   Amendments relating to the wheat export accreditation scheme

Part 1   Amendments

Wheat Export Marketing Act 2008

29   Part 2

Repeal the Part, substitute:

Part 2 - Access test

Division 1 - Requirement to pass the access test

7 Requirement to pass the access test - general rule

Who must pass the access test

(1) A provider of a port terminal service must pass the access test in relation to the port terminal service if:

(a) the provider exports wheat using the port terminal service; or

(b) the provider is an associated entity of a person who exports wheat using the port terminal service.

(2) Subsection (1) does not apply to the export of wheat in:

(a) a bag; or

(b) a container;

that is capable of holding not more than 50 tonnes of wheat.

When the access test must be passed

(3) The provider must pass the access test in relation to the port terminal service at all times during the 12-month period beginning on the day of the export of the wheat.

Exception

(4) The Secretary may, by writing, determine that this section does not apply in relation to a specified provider and to a specified period if the Secretary is satisfied that there are special circumstances that justify the Secretary doing so.

Determination not a legislative instrument

(5) A determination under subsection (4) is not a legislative instrument.

7A Requirement to pass the access test - transitional rule

Who must pass the access test

(1) A provider of a port terminal service must pass the access test in relation to the port terminal service if the provider was, immediately before the commencement of this section:

(a) an accredited wheat exporter; or

(b) an associated entity of an accredited wheat exporter.

When the access test must be passed

(2) The provider must pass the access test in relation to the port terminal service at all times during the period:

(a) beginning at the commencement of this item; and

(b) ending at the earlier of the following times:

(i) the first time the provider is required by section 7 to pass the access test in relation to the port terminal service;

(ii) the end of the 12-month period beginning on the day this item commences.

Exception

(3) The Secretary may, by writing, determine that this section does not apply in relation to a specified provider and to a specified period if the Secretary is satisfied that there are special circumstances that justify the Secretary doing so.

Determination not a legislative instrument

(4) A determination under subsection (3) is not a legislative instrument.

Definitions

(5) For the purposes of this section:

accredited wheat exporter has the same meaning as in the old Act.

8 Exports of wheat

Scope

(1A) This section applies to a person if:

(a) the person is the provider of a port terminal service; or

(b) an associated entity of the person is the provider of a port terminal service.

Exports of wheat

(1) The person (the relevant exporter ) must not export wheat using the port terminal service if:

(a) both:

(i) a person (whether the relevant exporter, the associated entity or another person) was required by this Act to pass the access test in relation to the port terminal service at a time during the 12-month period ending on the day of the export; and

(ii) the person mentioned in subparagraph (i) did not pass the access test at that time; or

(b) the accreditation of an accredited wheat exporter was cancelled because a person (whether the relevant exporter, the associated entity or another person) failed the old access test in relation to the port terminal service at a time during the 12-month period ending on the day of the export.

Exceptions

(2) The Secretary may, by writing, determine that subsection (1) does not apply in relation to a specified person and to a specified export if the Secretary is satisfied that there are special circumstances that justify the Secretary doing so.

(3) Subsection (1) does not apply if the wheat is exported in:

(a) a bag; or

(b) a container;

that is capable of holding not more than 50 tonnes of wheat.

(4) A person who wishes to rely on subsection (3) bears an evidential burden in relation to that matter.

Note: For evidential burden , see section 5.

Ancillary contraventions

(5) A person must not:

(a) aid, abet, counsel or procure a contravention of subsection (1); or

(b) induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

(c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or

(d) conspire with others to effect a contravention of subsection (1).

Civil penalty provisions

(6) Subsections (1) and (5) are civil penalty provisions.

Note: Part 8 provides for pecuniary penalties for breaches of civil penalty provisions.

Determination not a legislative instrument

(7) A determination under subsection (2) is not a legislative instrument.

Definitions

(8) For the purposes of this section:

accredited wheat exporter has the same meaning as in the old Act.

old access test means the access test within the meaning of the old Act.

Division 2 - Access test

9 Access test

Access test - access undertaking

(1) A person passes the access test in relation to a port terminal service at a particular time if:

(a) at that time, there is in operation, under Division 6 of Part IIIA of the Competition and Consumer Act 2010, an access undertaking relating to the provision to wheat exporters of access to the port terminal service for purposes relating to the export of wheat; and

(b) the access undertaking obliges the person to comply, at that time, with the continuous disclosure rules in relation to the port terminal service(see subsection (4)); and

(c) at that time, the person complies with the continuous disclosure rules in relation to the port terminal service.

(2) For the purposes of paragraph (1)(a):

(a) assume that subsection 44ZZBA(1) of the Competition and Consumer Act 2010 had never been enacted; and

(b) assume that an access undertaking comes into operation at the time when the ACCC publishes its decision to accept the undertaking.

Access test - effective access regimes

(3) A person passes the access test in relation to a port terminal service at a particular time if:

(a) at that time:

(i) there is in force a decision under Division 2A of Part IIIA of the Competition and Consumer Act 2010 that a regime established by a State or Territory for access to the port terminal service is an effective access regime; and

(ii) under that regime, wheat exporters have access to the port terminal service for purposes relating to the export of wheat; and

(b) at that time, the person complies with the continuous disclosure rules in relation to the port terminal service (see subsection (4)).

Continuous disclosure rules

(4) The continuous disclosure rules in relation to a port terminal service are as follows:

(a) there is available on the person's website a current statement setting out the person's policies and procedures for managing demand for the port terminal service (including the person's policies and procedures relating to the nomination and acceptance of ships to be loaded using the port terminal service);

(b) there is available on the person's website a current statement (a loading statement ) setting out a unique slot reference number for each ship (a loading ship ) scheduled to load grain using the port terminal service;

(c) the loading statement also sets out, for each loading ship:

(i) if the person knows the name of the ship - the name; and

(ii) the time when the ship was nominated to load grain using the port terminal service; and

(iii) the time when the ship was accepted as a ship scheduled to load grain using the port terminal service; and

(iv) the estimated time when the ship will arrive at the port terminal service; and

(v) the estimated time when grain is to start being loaded by the ship using the port terminal service; and

(vi) the estimated time when the ship will leave the port terminal service; and

(vii) the name of the exporter of the grain; and

(viii) the quantity of grain to be loaded by the ship using the port terminal service; and

(ix) the type of grain to be loaded by the ship using the port terminal service; and

(x) if grain has started to be loaded by the ship, but the loading has not been completed - that fact; and

(xi) if the ship has completed loading grain using the port terminal service - the time when the loading was completed;

(d) the person updates the loading statement each business day;

(e) both:

(i) the ACCC has a copy of the information set out in the most recently updated loading statement; and

(ii) the information was given to the ACCC in the manner and form approved, in writing, by the ACCC.

Export of wheat

(5) In this section, a reference to the export of wheat does not include a reference to the export of wheat in:

(a) a bag; or

(b) a container;

that is capable of holding not more than 50 tonnes of wheat.

Division 3 - Application of the Customs Act 1901

10 Application of the Customs Act 1901

If:

(a) an exportation of wheat contravenes section 8; and

(b) the Secretary notifies the Chief Executive Officer of Customs in writing that the Secretary wishes the Customs Act 1901 to apply to that exportation;

the Customs Act 1901 has effect as if the goods included in that exportation were goods described as forfeited to the Crown under section 229 of that Act because they were prohibited exports within the meaning of that Act.

11 Delegation by the Secretary

(1) The Secretary may, by writing, delegate any or all of his or her functions or powers under this Division to an SES employee, or acting SES employee, in the Department.

Note: The expressions SES employee and acting SES employee are defined in the Acts Interpretation Act 1901.

(2) In exercising powers under a delegation, the delegate must comply with any directions of the Secretary.

Division 4 - Code of conduct

12 Minister to approve code of conduct

(1) The Minister may, by notice published in the Gazette, approve a code of conduct for the purposes of this section.

(2) The Minister must not approve a code of conduct under subsection (1) unless the Minister is satisfied that the code of conduct:

(a) deals with the fair and transparent provision to wheat exporters of access to port terminal services by the providers of port terminal services; and

(b) requires providers of port terminal services to comply with continuous disclosure rules; and

(c) is consistent with the operation of an efficient and profitable wheat export marketing industry that supports the competitiveness of all sectors through the supply chain; and

(d) is consistent with any guidelines made by the ACCC relating to industry codes of conduct.

(3) A notice under subsection (1) is not a legislative instrument.