ACCC role in wheat export
Since 1 October 2009, in order to export bulk wheat, wheat exporters who also own and operate wheat port terminal facilities are required by the Wheat Export Marketing Act 2008 (WEMA) to pass an 'access test'. Having an access undertaking accepted by the ACCC under the Competition and Consumer Act 2010 (CCA) is one component of the access test.
In 2011, the ACCC accepted undertakings from GrainCorp Operations Ltd (GrainCorp), Australian Bulk Alliance Pty Ltd (ABA), Co-operative Bulk Handling Ltd (CBH) and Viterra Operations Limited (Viterra) under Part IIIA of the CCA. Previous undertakings were accepted from GrainCorp, CBH and Viterra in 2009 which expired in 2011.
The undertakings include:
- obligations on the port terminal operators not to discriminate or hinder access in the provision of port terminal services
- clear and transparent port loading protocols for managing demand for port terminal services
- obligations on BHCs to negotiate in good faith with eligible wheat exporters for access to port terminal services
- the ability of wheat exporters to seek mediation or binding arbitration on terms of access in the event of a dispute, and
- an obligation to comply with ‘Continuous Disclosure Rules’.
The ACCC continues to conduct the following activities in relation to port terminal services access undertakings:
- monitor compliance with the undertakings - in particular, compliance with the non-discrimination and no hindering access obligations
- assess any new undertakings or variations to the existing four undertakings, including variations to standard access agreements or port terminal protocols
- educate industry about operation of undertakings
- arbitrate access disputes where appropriate
- order independent audits where appropriate.
Following amendments to the WEMA effective from 10 December 2012, the ACCC monitors ABA, CBH, GrainCorp and Viterra’s compliance with the Continuous Disclosure Rules (CDRs). The CDRs are set out in the WEMA and relate to the publication of ship booking information by the port terminal operators. Complying with the CDRs is part of the WEMA access test, as is the port terminal operators having an obligation to comply with the CDRs included in their access undertakings.
See also: Wheat export projects
The WEMA amendments also provide that from 1 October 2014, port access in the bulk wheat export industry is intended to be regulated by a mandatory code of conduct prescribed under the CCA.
- Emerald Logistics Services Pty Ltd (Emerald) (formerly ABA)
- Co-operative Bulk Handling Ltd (CBH)
- GrainCorp Operations Ltd (GrainCorp)
- Viterra Operations Ltd (Viterra)
Interested parties who wish to raise a question or concern in relation to the operation of a port terminal operator’s undertaking are requested to contact:
Mr Michael Eady
Director, Regulated Access – Wheat Ports
Fuel, Transport and Prices Oversight Branch
GPO Box 520
MELBOURNE VIC 3001
Tel: 03 9290 1945