On 1 July 2008 the Wheat Export Marketing Act, (the WEM 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:
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 applied before 1 October 2009 and one that applies on or after 1 October 2009.
Before 1 October 2009 it was 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 did 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 Competition and Consumer Act 2010 (CCA), formerly known as the Trade Practices Act 1974 prior to 1 January 2011.
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 CCA. 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.
Access undertakings under Part IIIA of the Competition and Consumer Act 2010
Part IIIA of the CCA 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 CCA does not prescribe information that should be provided in an access undertaking; however, Part IIIA of the CCA notes several examples of the kinds of matters that might be dealt with in an undertaking.
These are:
terms and conditions of access to the service
procedures for determining terms and conditions to the service
an obligation on the provider not to hinder access to the service
an obligation on the provider to implement a particular business structure
an obligation on the provider to provide information to the ACCC or to another person
an obligation on the provider to comply with decisions of the ACCC or another person in relation to matters specified in the undertaking
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.
