The Port Terminal Access (Bulk Wheat) Code of Conduct, which was made on 30 September 2014, regulates the conduct of bulk wheat port terminal operators. The ACCC enforces the Code and undertakes specific assessments in relation to exemptions and capacity allocation systems.
On 19 September 2014, the Minister for Agriculture announced the Port Terminal Access (Bulk Wheat) Code of Conduct, a mandatory Code prescribed under the Competition and Consumer Act 2010 (CCA).
The Code commenced on 30 September 2014 and regulates the conduct of bulk wheat port terminal operators. It replaced the previous wheat port access regime under the Wheat Export Marketing Act 2008 (WEMA).
The Code provides that:
- port terminal operators and exporters must act in good faith when negotiating access to port terminal services
- port terminal operators must not discriminate or hinder access in the provision of port terminal services (if non-exempt)
- exporters can seek mediation or binding arbitration on terms of access in the event of a dispute (if non-exempt)
- non-exempt service providers must publish information on expected capacity, and certain performance indicators
- all service providers must publish certain information about how their services are being provided, including a loading statement (details about upcoming shipments), reference prices and policies and procedures for managing demand for port terminal services.
The Code has two tiers of regulation whereby port operators may be exempted from some of the above Code requirements.
Review of Port Terminal Access (Bulk Wheat) Code of Conduct
In September 2017, the Department of Agriculture and Water Resources commenced a review of the Code with the release of Terms of Reference for the review and an issues paper. Submissions in response to the issues paper are due to the Department by 19 January 2018.
The ACCC provided a submission to the Department on 12 December 2017, which is now available on the ACCC’s website. The Department has indicated that it will release a draft report in early 2018, with the final report to be released in June 2018.
The ACCC monitors compliance with and enforces breaches of the Code.
The Code also provides the ACCC with certain specific roles, including:
- assessing whether a service provider should be granted ‘exempt service provider’ status (and, if appropriate, revoking that status)
- assessing and approving capacity allocation systems.
Unlike the previous undertaking regime, the ACCC does not have any role arbitrating disputes between port terminal service providers and access seekers.
See also: Wheat export projects
The ACCC’s annual Bulk Wheat Monitoring reports are intended to enable the ACCC to monitor the effect of further deregulation of the industry and greater competition between some port terminals.
The ACCC released its second Bulk Wheat Ports Monitoring report on 13 December 2017, which assesses the bulk wheat export shipping activities for the 2016/17 shipping year. The second Bulk Wheat Ports Monitoring report has a particular focus on the operation of the Port Terminal Access (Bulk Wheat) Code of Conduct and the need to consider a whole of supply chain perspective.
The report further builds on the examinations in the first Bulk Wheat Ports Monitoring report around the nature and concentration of export activity and capacity allocation across Australia’s bulk wheat port terminals.
The ACCC ‘s first Bulk Wheat Ports Monitoring report was released on 15 December 2016 and examines bulk wheat export shipping for the shipping year 2015/16.
The Code provides that the ACCC may determine a service provider to be an ‘exempt service provider’ at a specified port terminal. Exempt service providers are ‘exempted’ from having to comply with Parts 3 to 6 of the Code in the course of providing services from the specified terminal.
The ACCC has completed a number of exemption assessments since the Code was introduced. For more information, see the wheat export projects page.
Clause 5(1) of the Code provides that the Minister for Agriculture may determine that a port terminal service provider is an exempt service provider if they are satisfied that the provider is a cooperative that has:
- grain-producer members who represent at least a two-thirds majority of grain-producers within the grain catchment area for the port concerned
- sound governance arrangements that ensure the business functions efficiently and that allow its members to influence the management decisions of the cooperative.
On 17 November 2014 the Minister for Agriculture found that Co-operative Bulk Handling Limited’s (CBH) port terminal facilities located at Albany, Esperance, Geraldton and Kwinana satisfactorily meet the criteria for exemption, and determined that those facilities are exempt from Parts 3 to 6 of the Code.
CBH remains obligated to comply with Part 2 of the Code. Part 2 of the Code contains general obligations on port terminal service providers to deal in good faith and publish certain information including a daily loading statement.
A copy of the Minister’s Notice of Determination of Exemption is available on CBH’s website.
The ACCC is required to publish guidelines in relation to its process for:
- making exemption determinations and revoking exemption determinations under clause 5 of the Code
- approving capacity allocation systems under clause 25 of the Code.
The ACCC published both process guidelines on 16 October 2014.
Prior to the Code, wheat port access was regulated under the WEMA. In order to export bulk wheat, wheat exporters who also owned and/or operated wheat port terminal facilities were required by the WEMA to pass an 'access test'. Having an access undertaking accepted by the ACCC under Part IIIA of the CCA was one component of the access test.
The ACCC accepted undertakings from four operators – CBH, Emerald, GrainCorp and Viterra – under the WEMA regime. Undertakings were originally accepted by the ACCC in 2009, with subsequent undertakings being accepted in 2011 and 2013. The ACCC also considered variations to the undertakings, monitored compliance, and had other roles under the undertakings.
Interested parties who wish to raise a question or concern about the Code should contact:
Infrastructure & Transport – Access & Pricing Branch
GPO Box 520
MELBOURNE VIC 3001
Tel: 03 9290 6980