Competition and Consumer (Industry Code—Port Terminal Access (Bulk Wheat))(Bulk Cargo Services Pty Ltd, Pinkenba) Determination 2022
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: 7 December 2022
[Signed]
Gina Cass-Gottlieb
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))(Bulk Cargo Services Pty Ltd, Pinkenba) Determination 2022.
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 Bulk Cargo Services Pty Ltd (ABN 60 002 207 678) is an exempt service provider of port terminal services provided by means of its port terminal facility at Pinkenba, Queensland.
Overview
The Competition and Consumer (Industry Code—Port Terminal Access (Bulk Wheat))(Bulk Cargo Services Pty Ltd, Pinkenba) Determination 2022 was enacted to address the need for regulating port terminal services in the bulk wheat export industry. This legislation, enacted by the Australian Competition and Consumer Commission (ACCC) under the authority provided by 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, specifically identifies Bulk Cargo Services Pty Ltd as an exempt service provider for port terminal services at Pinkenba, Queensland. The overarching policy objective of this determination is to ensure fair access and non-discriminatory practices in the port terminal services for bulk wheat exporters, thereby promoting competition and consumer protection within this sector.
Scope and Application
The Competition and Consumer (Industry Code—Port Terminal Access (Bulk Wheat))(Bulk Cargo Services Pty Ltd, Pinkenba) Determination 2022 applies to Bulk Cargo Services Pty Ltd, a company operating a port terminal facility at Pinkenba, Queensland, which is used to provide port terminal services for the handling of bulk wheat. This 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, indicating its Commonwealth jurisdictional reach. The Act and the accompanying regulation aim to ensure fair access to port terminal services for the export of bulk wheat, and the determination specifically exempts Bulk Cargo Services Pty Ltd from certain provisions of the Port Terminal Access (Bulk Wheat) Code of Conduct. The exemption applies to the port terminal services provided by this entity for the export of bulk wheat, thus impacting how these services are regulated and accessed by exporters.
Key Provisions
The Competition and Consumer (Industry Code—Port Terminal Access (Bulk Wheat))(Bulk Cargo Services Pty Ltd, Pinkenba) Determination 2022 (paragraph 1) establishes the framework under which Bulk Cargo Services Pty Ltd is designated as an exempt service provider. This determination is grounded in the provisions of the Port Terminal Access (Bulk Wheat) Code of Conduct, specifically under subclause 5(2) (paragraph 5). The instrument came into effect the day after its registration on the Federal Register of Legislation (paragraph 2).
The Act imposes specific obligations on entities involved in port terminal services, particularly those related to the handling of bulk wheat for export. It mandates that port terminal service providers, such as Bulk Cargo Services Pty Ltd, adhere to the Code of Conduct outlined in the Regulation. This includes ensuring that services are provided in a manner that is fair, reasonable, and non-discriminatory, particularly for exporters seeking to access these services. The determination also requires these providers to comply with any additional requirements set out by the ACCC (paragraph 5).
Failure to comply with the provisions of the Code may result in legal consequences. Although the determination does not explicitly detail offences or penalties within its text, breaches of the Competition and Consumer Act 2010, under which this determination is made, can lead to significant penalties. For corporations, the penalties can include substantial fines, up to $10 million for serious contraventions (section 13DA, Competition and Consumer Act 2010). Additionally, individuals responsible for the contraventions can face penalties of up to $1.1 million and imprisonment for up to 10 years (section 13DB, Competition and Consumer Act 2010). These penalties underscore the importance of compliance with the Code and the determination.
The determination also highlights the role of the Australian Competition and Consumer Commission (ACCC) in overseeing compliance with the Code. The ACCC has the authority to monitor and enforce adherence to the Code, ensuring that port terminal services are provided fairly and efficiently. This regulatory oversight is critical to maintaining a competitive and fair market environment for exporters of bulk wheat. By designating Bulk Cargo Services Pty Ltd as an exempt service provider, the ACCC recognises the company's compliance with the necessary standards and its role in facilitating the export of bulk wheat.
In summary, the Competition and Consumer (Industry Code—Port Terminal Access (Bulk Wheat))(Bulk Cargo Services Pty Ltd, Pinkenba) Determination 2022 establishes the legal framework for Bulk Cargo Services Pty Ltd to operate as an exempt service provider under the Code. It outlines the obligations and requirements for port terminal service providers and emphasises the potential penalties for non-compliance. This determination ensures that the export of bulk wheat is conducted in a manner that is fair, efficient, and compliant with the regulatory standards set by the ACCC.