On 1 July 2008 the Wheat Export Marketing Act came into operation. This Act establishes a system for accrediting exporters of bulk wheat. Under the system, to gain accreditation from Wheat Exports Australia, wheat exporters who own or operate port terminal services must pass an access test relating to each of those services.
In these guidelines, the ACCC uses the term wheat exporter to specifically denote a bulk wheat exporter that owns or operates port terminal services. It does not include a wheat exporter who does not own and/or operate port facilities. Only wheat exporters owning or operating port terminal services are required under the legislation to pass the access test to be accredited by Wheat Exports Australia.
A port terminal service means a service provided by means of a port facility, and includes the use of a port terminal facility.
Port terminal facility means a ship loader that is:
(a) at a port
(b) capable of handling wheat in bulk
and includes any of the following facilities:
(c) an intake/receival facility
(d) a grain storage facility
(e) a weighing facility
(f) a shipping belt
that is:
(g) at the port
(h) associated with the ship loader
(i) capable of dealing with wheat in bulk.
Accreditation of wheat exporters—the access test
To gain accreditation as a wheat exporter, exporters that own or operate port terminal facilities must provide fair and transparent access to their facilities to other accredited wheat exporters. The access test is part of a regulatory framework relating to bulk wheat export marketing participants that aims to promote the development of an efficient and competitive bulk wheat export marketing industry that advances the needs of wheat growers.
The access test is set out in s.24 of the WEM Act and provides two different access tests—one that applies before 1 October 2009 and one that applies on or after 1 October 2009.
Accreditation before 1 October 2009
Before 1 October 2009 it is a condition of accreditation by Wheat Exports Australia that wheat exporters publish a statement on their websites outlining the terms and conditions on which they will allow other accredited exporters access to their port terminal facilities. Accreditation before 1 October 2009 does not require the involvement of the ACCC.
To gain accreditation from 1 October 2009, an export marketer that provides one or more port terminal services for wheat export must have a formal access undertaking in operation that relates to the provision to accredited wheat exporters of access to the port terminal services for the purposes of the export of wheat. This access undertaking is assessed by the ACCC under the requirements of Part IIIA of the Trade Practices Act.
Alternatively, the WEM Act allows export marketers to pass the access test from 1 October 2009 where there is an effective state or territory port terminal service access regime in place under Division 2A of the Trade Practices Act. However, this requires the responsible state or territory minister to ask the National Competition Council to recommend to the relevant federal minister that a decision be made that the access regime is effective.
This alternative means of passing the access test depends entirely on the responsible state or territory minister applying to the council; it is not a matter within the control of or responsibility of the ACCC. It is quite possible that a state or territory access regime will not be in place before 1 October 2009; therefore, wheat exporters considering lodging an access undertaking should do so as early as possible before 1 October 2009, to gain accreditation by this date. As a result, wheat exporters wishing to gain or maintain accreditation under the WEM Act will, after 1 October 2009, need to have an ACCC-approved access undertaking in operation.
The undertaking assessment process is explained in more detail below.
Access undertakings under Part IIIA of the Trade Practices Act
Part IIIA of the Trade Practices Act establishes a legal regime to facilitate third party access to services of certain facilities considered critical to competition in related markets. A number of mechanisms are available in Part IIIA by which access can be obtained, one of which is an access undertaking.
An access undertaking is a document that establishes the terms and conditions under which a service provider (in this case, a provider of port terminal services for wheat export) is willing to offer or negotiate access to service(s) provided by the essential facility to an access seeker (in this case, other accredited wheat exporters).
An undertaking generally specifies the terms and conditions under which access will be made available to third parties. The Trade Practices Act does not prescribe information that should be provided in an access undertaking; however, Part IIIA of the Act notes several examples of the kinds of matters that might be dealt with in an undertaking.
These are:
(a) terms and conditions of access to the service
(b) procedures for determining terms and conditions to the service
(c) an obligation on the provider not to hinder access to the service
(d) an obligation on the provider to implement a particular business structure
(e) an obligation on the provider to provide information to the ACCC or to another person
(f) an obligation on the provider to comply with decisions of the ACCC or another person in relation to matters specified in the undertaking
(g) an obligation on the provider to seek a variation of the undertaking in specified circumstances.
The ACCC must either accept or reject an undertaking. If the ACCC accepts an undertaking, the provider is required to provide access in accordance with the undertaking. An undertaking in operation can be varied or withdrawn, but only with the ACCC’s consent. The withdrawal of an undertaking will, however, have implications for the access test—and therefore accreditation—of the wheat exporter that provides the port services.
Where the ACCC accepts an access undertaking, the service cannot then be declared (i.e. made the subject of a formal access dispute resolution framework under Part IIIA). An access undertaking in operation is able to be enforced in the Federal Court of Australia. Accordingly, the terms and conditions of access provided for in the undertaking become binding on the wheat exporter.
Apart from enabling a wheat exporter to gain or maintain accreditation under the WEM Act, an access undertaking will give wheat export facility owners/operators and accredited third parties certainty as to the conditions of access that will apply in respect of the port terminal services.
Process for having a Part IIIA access undertaking considered by the ACCC
The process of having an access undertaking considered by the ACCC encompasses three stages:
Lodgement by a wheat exporter of an undertaking with the ACCC.
Assessment of the undertaking by the ACCC.
A decision on whether the ACCC accepts or rejects the undertaking.
The following chart is provided as an indicative guide only. It is intended to give wheat exporters a broad understanding of the likely process for having an undertaking considered by the ACCC. However, the actual process for having an undertaking considered will be made by the ACCC after it has considered a number of matters, including the characteristics and complexity of the undertaking under assessment.
