Competition and Consumer (Industry Code—Port Terminal Access (Bulk Wheat)) (ADM Trading Australia Pty Ltd, Port Pirie) Determination 2021
The Australian Competition and Consumer Commission makes the following determination under subclause 5(2) of Schedule 1 to the Competition and Consumer (Industry Code—Port Terminal Access (Bulk Wheat)) Regulation 2014 and subparagraph 51AE(1D)(b)(i) of the Competition and Consumer Act 2010.
Dated: 21 September 2021
[Signed]
Rodney Graham Sims
Chair
Australian Competition and Consumer Commission
Australian Competition and Consumer Commission
1 Name
This instrument is the Competition and Consumer (Industry Code—Port Terminal Access (Bulk Wheat))(ADM Trading Australia Pty Ltd, Port Pirie) Determination 2021.
2 Commencement
This instrument commences at the start of the day after it is registered on the Federal Register of Legislation.
Note: The Federal Register of Legislation may be accessed free of charge at www.legislation.gov.au.
3 Authority
This instrument is made under subclause 5(2) of Schedule 1 to the Competition and Consumer (Industry Code—Port Terminal Access (Bulk Wheat)) Regulation 2014 and subparagraph 51AE(1D)(b)(i) of the Competition and Consumer Act 2010.
4 Definitions
In this instrument:
ACCC means the Australian Competition and Consumer Commission.
bulk wheat means wheat to be loaded onto a ship for export but does not include wheat to be exported in a bag or container that is not capable of holding more than 50 tonnes of wheat.
Code means the Port Terminal Access (Bulk Wheat) Code of Conduct as set out in Schedule 1 to the Competition and Consumer (Industry Code—Port Terminal Access (Bulk Wheat)) Regulation 2014.
entity has the meaning given by section 64A of the Corporations Act 2001.
exempt service provider means a port terminal service provider exempted under clause 5 of the Code.
exporter means an entity seeking access to, or using, port terminal services for the purpose of exporting bulk wheat.
port terminal facility means a ship loader that is:
(a) at a port; and
(b) capable of handling bulk wheat;
and includes any of the following facilities, situated at the port and associated with the ship loader, that are capable of handling bulk wheat:
(c) an intake/receival facility;
(d) a grain storage facility;
(e) a weighing facility;
(f) a shipping belt.
port terminal service means a service (within the meaning of Part IIIA of the Competition and Consumer Act 2010) provided by means of a port terminal facility, and includes the use of a port terminal facility.
port terminal service provider means the owner or operator of a port terminal facility that is used, or is to be used, to provide a port terminal service.
5 Determination
Under subclause 5(2) of the Code, the ACCC determines that ADM Trading Australia Pty Ltd (ABN 92 126 806 979) is an exempt service provider of port terminal services provided by means of its port terminal facility at Port Pirie, South Australia.
Overview
The Competition and Consumer (Industry Code—Port Terminal Access (Bulk Wheat)) (ADM Trading Australia Pty Ltd, Port Pirie) Determination 2021 was enacted in 2021 by the Australian Competition and Consumer Commission (ACCC). This legislation addresses the need for regulating access to port terminal services for the export of bulk wheat, ensuring fair practices in the industry and protecting consumers from unfair practices. The enacting body is the ACCC, which is mandated under the Competition and Consumer Act 2010 to oversee compliance with industry codes of conduct. The policy objective is to maintain a competitive market while ensuring that port terminal services are accessible for entities exporting bulk wheat.
Scope and Application
The Competition and Consumer (Industry Code—Port Terminal Access (Bulk Wheat)) (ADM Trading Australia Pty Ltd, Port Pirie) Determination 2021 applies to ADM Trading Australia Pty Ltd, a specified entity operating as a port terminal service provider at Port Pirie, South Australia. The determination is made under the authority of the Competition and Consumer (Industry Code—Port Terminal Access (Bulk Wheat)) Regulation 2014 and the Competition and Consumer Act 2010. It designates ADM Trading Australia Pty Ltd as an exempt service provider, thereby exempting it from certain provisions of the Port Terminal Access (Bulk Wheat) Code of Conduct. This exemption applies to the port terminal services provided by means of its port terminal facility, which includes services related to the handling of bulk wheat. The geographic reach of this determination is limited to the specified port terminal facility at Port Pirie, South Australia. The determination does not extend to other entities or port terminal facilities unless specifically included by subordinate instruments or further determinations.
Key Provisions
The Competition and Consumer (Industry Code—Port Terminal Access (Bulk Wheat)) (ADM Trading Australia Pty Ltd, Port Pirie) Determination 2021 (sections 4 and 5) establishes that ADM Trading Australia Pty Ltd is an exempt service provider under the Port Terminal Access (Bulk Wheat) Code of Conduct. This means that ADM Trading Australia Pty Ltd is not subject to the same regulatory requirements as other port terminal service providers in relation to the provision of port terminal services for the export of bulk wheat. The determination also clarifies definitions pertinent to the regulation, including terms like "bulk wheat," "port terminal facility," "port terminal service," and "port terminal service provider."
The Act imposes certain obligations on ADM Trading Australia Pty Ltd as an exempt service provider. While not bound by the same stringent regulatory requirements as other port terminal service providers, ADM Trading Australia Pty Ltd must still comply with the broader obligations outlined in the Competition and Consumer (Industry Code—Port Terminal Access (Bulk Wheat)) Regulation 2014 and the Competition and Consumer Act 2010. These obligations include ensuring that its operations do not contravene the spirit of fair competition and consumer protection as enshrined in these legislative instruments.
Any breach of the provisions outlined in the Determination or the associated regulations could lead to various consequences. Under the Competition and Consumer Act 2010, non-compliance with industry codes of conduct can result in civil penalties. For individuals, the penalties can include fines of up to $1.1 million or imprisonment for up to five years, or both, for serious or repeated breaches. For corporations, the fines can be significantly higher, reaching up to $6.6 million for serious or repeated breaches. Additionally, the ACCC can seek injunctive relief, corrective notices, and other remedies to enforce compliance with the Act and its associated regulations.