Competition and Consumer (Industry Code—Port Terminal Access (Bulk Wheat))(Port of Portland Pty Limited, Portland) 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: 29 April 2022
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))(Port of Portland Pty Limited, Portland) 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 Port of Portland Pty Limited (ABN 37 072 507 012) is an exempt service provider of port terminal services provided by means of its port terminal facility at Portland, Victoria.
Overview
The Competition and Consumer (Industry Code—Port Terminal Access (Bulk Wheat))(Port of Portland Pty Limited, Portland) Determination 2022 was enacted in 2022 by the Australian Competition and Consumer Commission (ACCC). This legislation was introduced to address specific access and service issues in the bulk wheat export industry at the Port of Portland. The enacting body, the ACCC, operates under the authority provided by 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. The policy objective of this determination is to ensure fair and reasonable access to port terminal services for exporters of bulk wheat, thereby promoting competition and consumer welfare in this sector. The instrument exempts Port of Portland Pty Limited from certain provisions of the Code, recognising its specific circumstances and the need for tailored regulatory approaches.
Scope and Application
The Competition and Consumer (Industry Code—Port Terminal Access (Bulk Wheat))(Port of Portland Pty Limited, Portland) Determination 2022 applies to Port of Portland Pty Limited, an entity operating a port terminal facility at Portland, Victoria, which is used for the provision of services related to the handling of bulk wheat for export purposes. This determination specifically identifies Port of Portland Pty Limited as an exempt service provider under 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. The exemption acknowledges the unique operational circumstances of Port of Portland Pty Limited, allowing it to operate outside the scope of certain regulatory provisions otherwise applicable to port terminal service providers within the designated industry code. This jurisdictional exemption operates within the Commonwealth of Australia and is made pursuant to the powers granted under subparagraph 51AE(1D)(b)(i) of the Competition and Consumer Act 2010, thereby influencing the competitive dynamics and consumer protections within the bulk wheat export industry at the specified port terminal facility.
Key Provisions
The main operative sections of the Competition and Consumer (Industry Code—Port Terminal Access (Bulk Wheat))(Port of Portland Pty Limited, Portland) Determination 2022 (paragraph 4) define key terms such as "bulk wheat" (paragraph 4(1)(b)), "port terminal facility" (paragraph 4(1)(f)), and "port terminal service provider" (paragraph 4(1)(h)). These definitions are crucial for understanding the scope and applicability of the determination. The determination itself (paragraph 5) declares that Port of Portland Pty Limited is an exempt service provider, which exempts it from certain obligations under the Code.
The obligations imposed by the Act on the parties governed by this determination are largely centred around the exemption status of Port of Portland Pty Limited. As an exempt service provider, Port of Portland Pty Limited is not subject to the specific access and pricing provisions outlined in the Code. This exemption allows the company to operate its port terminal services under different terms than those that would otherwise apply to non-exempt providers. The exemption is based on the unique circumstances of the port terminal facility at Portland, Victoria, as determined by the Australian Competition and Consumer Commission (ACCC).
The Act does not explicitly state any offences or penalties for breach of the determination itself. However, any breach of the Code, from which this exemption is granted, could lead to significant consequences. Under section 131 of the Competition and Consumer Act 2010, entities found to have contravened the Code may face civil penalties of up to $1.5 million for corporations and $300,000 for individuals. Additionally, criminal penalties may apply, including fines of up to $6.3 million for corporations and $126,000 for individuals, along with potential imprisonment terms for individuals. These penalties underscore the seriousness of compliance with the broader regulatory framework, of which this determination is a part.