Competition and Consumer (Industry Code—Port Terminal Access (Bulk Wheat))(Wagner Corporation 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))(Wagner Corporation 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 Wagner Corporation Pty Ltd (ABN 42 623 195 335) 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))(Wagner Corporation Pty Ltd, Pinkenba) Determination 2022 was enacted to address the need for regulation in the access to port terminal services for the export of bulk wheat, ensuring fair and reasonable terms for exporters. This instrument was introduced to provide clarity and guidance in the industry by the Australian Competition and Consumer Commission (ACCC), operating under the authority granted 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 overarching policy objective of this determination is to maintain and promote competition and consumer welfare in the port terminal services sector for bulk wheat exports by exempting specific entities from the general provisions of the Code, thereby facilitating efficient market operations while protecting the interests of exporters.
Scope and Application
The Competition and Consumer (Industry Code—Port Terminal Access (Bulk Wheat))(Wagner Corporation Pty Ltd, Pinkenba) Determination 2022 applies to Wagner Corporation Pty Ltd, specifically designating it as an exempt service provider under the Port Terminal Access (Bulk Wheat) Code of Conduct, as outlined in Schedule 1 to the Competition and Consumer (Industry Code—Port Terminal Access (Bulk Wheat)) Regulation 2014. This designation pertains to the port terminal facility operated by Wagner Corporation at Pinkenba, Queensland, which is involved in the handling of bulk wheat for export purposes. The instrument was made under subparagraph 51AE(1D)(b)(i) of the Competition and Consumer Act 2010, and it specifically exempts Wagner Corporation from certain obligations under the Code. The geographic reach of this determination is limited to the Pinkenba port terminal facility in Queensland. The determination does not extend to other entities or port terminal facilities unless specifically mentioned or unless they fall under the broader definitions and regulations provided within the Competition and Consumer Act 2010 and its subordinate instruments.
Key Provisions
The main operative sections of this legislation determine that Wagner Corporation Pty Ltd is an exempt service provider of port terminal services provided by means of its port terminal facility at Pinkenba, Queensland (section 4). This determination is made under the authority of 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 (section 3). The determination is effective from the day after it is registered on the Federal Register of Legislation (section 2).
The Act imposes specific obligations and requirements on the parties it governs, particularly on Wagner Corporation Pty Ltd as the exempt service provider. This includes adhering to the conditions and criteria set out in the Port Terminal Access (Bulk Wheat) Code of Conduct as specified in Schedule 1 to the Competition and Consumer (Industry Code—Port Terminal Access (Bulk Wheat)) Regulation 2014 (section 5). The determination ensures that the entity complies with the standards and practices relevant to port terminal services for bulk wheat export.
There are potential civil and criminal consequences for breach of the provisions in this legislation. While the determination itself does not specify particular offences or penalties, any breach of the conditions set out in the Code of Conduct could lead to enforcement actions by the Australian Competition and Consumer Commission (ACCC). The Competition and Consumer Act 2010 provides for various penalties, including fines of up to $1.1 million for corporations and up to $220,000 for individuals, as well as potential criminal charges for serious breaches (section 51AE(1D)(b)(i)). Additionally, the entity may face legal action for damages resulting from any breach of the Code of Conduct.