EXPLANATORY STATEMENT

Issued by the Export Wheat Commission

Wheat Export Accreditation Scheme 2008

Wheat Export Marketing Act 2008

Legislative basis

Under section 8(1) of the Wheat Export Marketing Act 2008 (the Act) Wheat Exports Australia (WEA) may, by legislative instrument, formulate a scheme known as the Wheat Export Accreditation Scheme (the Scheme). This Scheme is to be about any or all of the following matters: the accreditation of companies as accredited bulk wheat exporters, matters required or permitted by the Act to be included in the Scheme and ancillary or incidental matters.

Item 7(2) of Schedule 3 of the Wheat Export Marketing (Repeal and Consequential Amendments) Act 2008 provides that the Export Wheat Commission (EWC) may formulate the Scheme before the transition time. In accordance with this item, the EWC has formulated the Scheme.

Background

This legislative instrument establishes an export accreditation system for regulating bulk wheat exports from Australia. Exporters of bulk wheat must be accredited under the Scheme in order to export.

The policy behind introducing the Scheme was to introduce competition into the bulk wheat export industry while providing a regulatory framework in relation to participants in the bulk wheat export sector.

The regulator established under the Act, WEA, has the flexibility to manage the Scheme effectively. While all applications for accreditation must be considered against specific eligibility criteria specified in the Act, WEA has the capacity to exercise judgement on how an applicant’s record is likely to impact on its ability to fulfil its obligations as an accredited exporter. WEA has the discretion to make decisions based on the applicant’s particular circumstances and proposed export arrangements and impose specific conditions of accreditation on an exporter.

The accreditation process is intended to grant companies or co-operatives of good repute and financial capability access to the bulk wheat export industry. While it is intended that such companies or co-operatives will maintain high standards in their dealings with growers and international marketplaces, the Scheme in no way indemnifies accredited exporters, nor provides any guarantees relating to contracts and payments of any kind.

Despite the Act exempting individual growers seeking to export their own wheat from the Scheme, all wheat exporters must comply with the Customs (Prohibited Exports) Regulations 1958. The exemption under the Act has no practical effect for individual growers because the Customs (Prohibited Exports) Regulations only allow exports of bulk wheat by accredited exporters.

Consultation

Prior to developing the exposure draft of the Scheme, the EWC held five formal consultation meetings and one teleconference with a range of export wheat industry representatives. EWC staff attended each meeting along with representatives of the Department of Agriculture Fisheries and Forestry, an independent grains industry consultant and a representative from the Australian Government Solicitor. The meeting groups were as follows:

• Industry representatives (grower groups) – 6 organisations were represented by 11 participants.
• Industry representatives teleconference (for those groups not able to attend the consultation meetings) – 4 organisations were represented by 7 participants.
• Exporters with port terminals – 4 organisations were represented by 6 participants.
• Industry advisors – 6 organisations were represented by 7 participants.
• Exporters (multinational parent company) – 11 organisations were represented by 13 participants.
• Exporters (Australian-owned parent company) – 8 organisations were represented by 11 participants.

The EWC released an Exposure Draft of the Scheme on 5 June 2008 for one week for further public comment. The EWC received a total of 18 responses, of which only eight provided formal written comment on the Exposure Draft. Overall, the EWC received positive feedback on the Scheme and has taken into consideration any comments or recommendations.

Financial impact

The EWC consulted with the Office of Best Practice Regulation (OBPR) regarding the need for a Regulation Impact Statement (RIS). OBPR concluded “…the OBPR advises that the EWC need undertake no further analysis (in the form of a Business Cost Calculator Report or Regulation Impact Statement) for its involvement in the development of the Wheat Export Accreditation Scheme. The OBPR notes that the Department of Agriculture, Fisheries and Forestry is preparing a RIS for the primary legislation under which the scheme will be introduced.” (OBPR reference number 9561).

Details of the Wheat Export Accreditation Scheme 2008

Part 1 – Preliminary

Section 1 Name of Scheme

1. Section 1 provides that the Scheme is the Wheat Export Accreditation Scheme 2008.

Section 2 Commencement

2.      The Scheme commences on 1 July 2008.

Section 3 Purpose

3.      Section 3 of the Scheme outlines the purpose for the Scheme, which is to establish a system of accreditation for exporters who wish to export bulk wheat from Australia. The accreditation attests that, at the time of accreditation, WEA was satisfied that the exporter  was eligible for accreditation and met the fit and proper company criteria outlined in the Act and any additional criteria required by WEA under the Scheme. WEA also has an ongoing role in relation to the fitness and propriety of accredited exporters and will undertake activities such as receiving notification of changes in circumstances and conducting audits of accredited exporters from time to time.

4.      The Scheme does not purport to indemnify accredited exporters and provides no guarantee that an exporter will remain financially viable throughout its accreditation period. The Scheme provides no guarantees relating to contracts and payments of any kind, nor is an accreditation an endorsement of the accredited exporter’s services.

Section 4 Definitions

5.      Section 4 of the Scheme provides some definitions of terms used in the Scheme. Some expressions that are used in the Scheme are defined in the Act.

Part 2 – Accreditation

Division 1 Eligibility for Accreditation

Section 5 Eligibility for accreditation

6.      This section sets out the eligibility criteria WEA must apply in assessing applications for accreditation. These criteria are provided for under section 13 of the Act and fall into three categories. Those criteria which must be strictly fulfilled by an applicant; those which WEA must consider in deciding if it is satisfied that an applicant is a fit and proper company, but which individually may not lead to an application for accreditation being rejected; and those which must be fulfilled to the satisfaction of WEA.  For clarification:

• Criteria that must be strictly fulfilled are paragraphs 5(1)(a) and 5(1)(b) of the Scheme.
• Criteria that must be considered by WEA, but which individually may not lead to an application for accreditation being rejected, are paragraphs 5(1)(c)(i) – (xvii) of the Scheme.
• Criteria which must be fulfilled to the satisfaction of WEA are paragraphs 5(1)(d) to 5(1)(e) of the Scheme.

7.      Paragraphs 5(1)(a)-(e) of the Scheme are all required to be included in the Scheme under section 13(1)(a)-(e) of the Act.  Accordingly the following paragraphs are quoted directly from the Explanatory Memorandum to the Act:

“Paragraphs 13(1)(a)-(b) require an applicant to be registered as a company in Australia under the Corporations Act 2001 or be a co-operative, and be a trading corporation within the meaning of s51(xx) of the Constitution. These must be strictly fulfilled by applicants to obtain accreditation and failure to meet either one will mean the application is rejected.

“Paragraph 13(1)(c) sets out criteria to which WEA must have regard in deciding whether it is satisfied that an applicant is fit and proper to carry out its proposed export of bulk wheat. WEA must be satisfied that the applicant meets these criteria to a standard appropriate for the purposes of its specific export proposal. WEA must make a judgment as to whether failure to meet one or more of these criteria will impact on the applicant’s ability to fulfil its obligations as an accredited exporter. WEA has the flexibility to make this decision based on the applicant’s particular circumstances and proposed export arrangements.

“The breadth of paragraph 13(1)(c) is not intended to place an excessive investigatory burden on WEA. It is not intended that WEA exhaustively examine every aspect of a matter relating to these criteria when requiring information from, or examining, applicants. WEA would aim to undertake such an appropriate level of examination in relation to an applicant as would enable it to be satisfied whether the applicant is fit and proper.

“It is intended that WEA have absolute discretion in the weight it gives to each factor in paragraph 13(1)(c) when considering an application. WEA is open to grant accreditation to applicants which do not fulfil all of the criteria listed in paragraph 13(1)(c) provided it is satisfied that failure to do so will not affect the applicant’s performance as an accredited exporter. WEA must exercise its judgement and be satisfied that the applicant is fit and proper to undertake the proposed export arrangements contained in its application for accreditation. This may include, but is not limited to, the demonstration by an applicant that previous conduct, events or circumstances which preclude the satisfaction of a criterion are unlikely to be repeated.

“WEA is open to formulate in the accreditation scheme the extent, and manner in which, it informs itself regarding the criteria for accreditation set out under paragraph 13(1)(c). This may include, but is not limited to, utilising information gathered by other government or non-government agencies, requiring the provision of statutory declarations, or engaging other organisations to undertake assessments or enquiries. WEA has the discretion to define the standards which must be met in relation to this section. This discretion includes the level of enquiry and extent of information required by WEA in relation to these standards.

“Subparagraph 13(1)(c)(i) relates to the financial resources available to an applicant. When considering whether an applicant is fit and proper to undertake its export proposal, WEA may also have regard to the financial resources available to a related body corporate and the support this can provide to the applicant in carrying out its export proposal. This should only be considered in favour of the applicant where WEA is satisfied that the resources of the related body corporate are and will continue to be available to the applicant through binding legal arrangements between the entities. For example a parent company could provide a written assurance that the parent company will honour all financial commitments of the subsidiary seeking accreditation. ‘Related body corporate’ here should be given the same meaning as in section 5 of the Act. This means WEA may need to assess the financial resources of any holding company or subsidiary of an applicant when assessing its application.

“Subparagraphs 13(1)(c)(viii), (ix) and (xvi) relate to past contraventions of Australian or foreign laws by applicants or their executive officers. Generally, WEA should consider a contravention as a conviction, resulting from the conduct, in a court of competent jurisdiction domestically or internationally. WEA has discretion in the extent of its investigations into whether any such contraventions have occurred. It is not intended that WEA consider matters beyond those which have been the subject of a court conviction. It is also not intended that WEA investigate whether applicants have committed such breaches in relation to all foreign countries. It is only expected to act on publicly available or known information that might affect Australia’s trading reputation.

“Subparagraph 13(1)(c)(xiv) relates to the applicant’s involvement in contraventions of designated sanitary or phytosanitary measures. WEA should exercise judgment in determining whether any apparent contraventions by an applicant are proven breaches or merely spurious claims made by importers for commercial reasons. WEA has a discretion under paragraph 13(1)(c) to apply appropriate weighting to this consideration accordingly. The definition of ‘designated sanitary or phytosanitary measure’ in section 5 limits WEA’s consideration to contraventions relating to barley, canola, lupins, oats or wheat.

“Subparagraph 13(1)(c)(xvii) allows WEA to have regard to any other matters it considers relevant when determining whether an applicant is fit and proper for the purposes of this section. This may include, but is not limited to, such factors as bringing Australian wheat trading into disrepute, an applicant’s record in meeting their legal obligations in relation to the payment of end point royalties for plant breeding, truth of pricing at silo or the reputation and conduct of major shareholders of an applicant. By virtue of subsection 13(7), the range of matters which WEA may consider under subparagraph 13(1)(c)(xvii) is not limited by the context of other subparagraphs under paragraph 13(1)(c).

“Subparagraph 13(1)(c)(xvii) contributes significantly to the flexibility given to WEA regarding its ability to accredit a range of applicants with a range of proposals. It enables WEA to consider a vast number of factors which may contribute to its determination of whether an applicant is fit and proper to export wheat in bulk. The open-ended nature of potential considerations does not place a burden on WEA to consider all possible factors which may be relevant to an applicant. It instead gives WEA the flexibility to take into consideration specific factors relevant to a particular applicant with a specific export proposal.

“For example, an applicant wanting to export small or niche quantities of bulk wheat may have an export proposal for which the applicant is fit and proper, despite not having comparable financial resources to other accredited exporters. The flexibility given to WEA allows it to provide accreditation to such an applicant, while requiring evidence of significant financial resources from applicants with significant export proposals.

“For the majority of applicants it will be appropriate for WEA to look only, or mainly, to the specific indicators of whether an applicant is fit and proper contained in subparagraphs 13(1)(c)(i)-(xvi) rather than consider whether there may be circumstances relevant to subparagraph 13(1)(c)(xvii).

“Paragraphs 13(1)(d)-(e) are tests relating to solvency and port terminal access. Paragraph 13(1)(f) relates to any other criteria WEA may set out in the scheme. These criteria must be fulfilled by an applicant to the satisfaction of WEA. Failure to meet any one of them will lead to an application being rejected. However, WEA has some discretion because the test for these criteria is whether WEA is satisfied that each is met.

“Paragraph 13(1)(e) relates to the access test provided in section 24. WEA should consider this criterion to have been met where the Australian Competition and Consumer Commission (ACCC) has approved an access undertaking of the kind outlined in section 24. Similarly, WEA should consider this criterion to be met where a state access regime has been certified effective under the Trade Practices Act 1974 as outlined in section 24. However, where an applicant is reliant upon an effective access regime to satisfy paragraph 13(1)(e), WEA must be satisfied that the effective access regime covers port terminal facility access.

“Prior to 1 October 2009, in relation to ‘port terminal facilities’, paragraph 13(1)(e) is met where WEA is satisfied that an applicant has published appropriate terms and conditions of access to such facilities which they operate, as outlined in section 24. Such terms and conditions must satisfy WEA that the applicant will provide open and transparent access, while allowing operators of the facilities to continue operating in a commercial environment. ‘Port terminal facility’ is defined in section 5 of the Act.

“Subsection 13(2) provides that, when considering whether an applicant is fit and proper under paragraph 13(1)(c), WEA may only take into account an applicant’s conduct in the 5 years immediately prior to the applicant first becoming accredited. Where the applicant has never been accredited, the relevant five (5) year period is the period immediately prior to the application for accreditation being received by WEA. A five year period is considered adequate to demonstrate the current conduct of a potential applicant and the type of conduct that is likely to continue without punishing it for conduct that occurred a considerable time ago.

“Subsections 13(3)-(5) relate to the conduct or record of executive officers of applicants for the purpose of paragraphs 13(1)(c) in satisfying WEA that the applicant is fit and proper. These subsections provide that such conduct or record is relevant regardless of whether it occurred before or after the person became an executive officer of the applicant.

“Subsection 13(6) relates to any matter relevant to the satisfaction of WEA that an applicant is fit and proper under subparagraph 13(1)(c). It provides that such matters are relevant regardless of whether they occurred or existed before or after the enactment of section 13(1)(c). This does not, however, effect the operation of the 5 year limit provided by subsection 13(2).

“Subsection 13(7) provides that neither the scope nor operation of subparagraph 13(1)(c)(xvii) is limited in any way by other provisions under paragraph 13(1)(c).

“Subsection 13(8) provides that matters relevant to an application for accreditation under section 13 extend to those which have occurred or exist outside Australia.

“Subsection 13(9) provides for the continued operation of Part VIIC of the Crimes Act 1914 in relation to section 13. This means that where a person has been relieved of the requirement to disclose information about convictions by virtue of Part VIIC of the Crimes Act 1914, the person is not obliged to disclose this information to WEA, and WEA must disregard such information.”

8.      The Explanatory Memorandum to the Act further states in relation to 'executive officer' that:

“Throughout section 13 the term ‘executive officer’ is used and should be given the meaning provided in section 5. WEA has discretion to determine the extent of information required from an applicant regarding its executive officers for the purpose of assessing applications for accreditation. WEA may also highlight to applicants the scope of the definition of ‘executive officer’ and the need to provide WEA with information relating to those officers who act as directors as well as those holding the official title of director.”

9.      Despite the Act exempting individual growers seeking to export their own wheat from the Scheme, all wheat exporters must comply with the Customs (Prohibited Exports) Regulations 1958. The exemption under the Act has no practical effect for individual growers because the Customs (Prohibited Exports) Regulations only allow exports of bulk wheat by accredited exporters.

Division 2 Obtaining accreditation

Subdivision 1 Accreditation otherwise than by way of renewal

Section 6 Application for accreditation

10.  Subsection 6(1) of the Scheme requires applicants to lodge a written application with WEA in order to apply for accreditation. The application must be in accordance with subsection 6(2).

11.  Paragraphs 6(2)(a) and (b) of the Scheme require applicants which apply for accreditation to apply in writing on a form approved by WEA. Applicants must include the information and documents specified by the form. The Exporter Accreditation Application Form will be available on WEA’s website <www.wea.gov.au>.

12.  Paragraph 6(2)(c) of the Scheme provides that the applicant must authorise WEA to independently verify the accuracy and completeness of the information and documents provided by applicants. This verification process may involve WEA undertaking its own research such as Internet or database searches or providing sections of an application to third parties with certain expertise such as accountants or legal firms. The applicant will be required to gather information in relation to executive officers which may include written consent from each executive officer for WEA to obtain information via police check (subject to any relevant spent convictions or non-disclosure legislation). This would be for the purpose of WEA’s evaluation of certain eligibility criteria in section 5(1)(c) of the Scheme.

13.  Paragraphs 6(2)(d) and (e) of the Scheme require that the application must be lodged in a manner specified by the form and that it must also be accompanied by the application fee specified in Schedule 1. To comply with this requirement, proof of payment of the application fee via electronic transfer or a bank cheque covering the cost of the application fee must be submitted with the form. WEA will not consider an application to have been received until the application fee has been paid and confirmed as received.

Section 7 Additional information or documents

14.  Subsections 7(1) to (3) of the Scheme permit WEA to request further information or documents in writing from an applicant to assist it in determining whether an applicant is eligible to be accredited. WEA will consult with applicants throughout the processing of applications. If WEA has any doubt about whether an applicant is eligible for accreditation, it may request further information from the applicant and give the applicant an opportunity to provide this information. WEA must specify what information it seeks and the time within which the applicant must respond to the request. The applicant is required to comply with the request within the time specified.

15.  Subsection 7(4) of the Scheme provides that WEA is not obliged to consider an application, or consider an application further, while it is waiting for the additional information or documents to be provided by the applicant. This informs the applicant that no decisions will be made by WEA until the requested information or documents are provided.

Section 8 Decision on application

16.  Subsection 8(1) of the Scheme provides that WEA may make the decision to accredit an applicant as an accredited wheat exporter or to refuse to accredit an applicant.

17.  Subsection 8(2) of the Scheme provides that WEA must accredit an applicant if the applicant meets the eligibility criteria specified in section 5, has applied for accreditation in accordance with section 6 and has provided any further information requested by WEA under section 7 within the specified timeframe.

18.  Subsection 8(3) of the Scheme provides that WEA must not accredit an applicant if the applicant does not meet the eligibility criteria specified in section 5.

19.  There are mandatory conditions required to be imposed on every accreditation as specified in sections 22 to 26 of the Scheme and subsections 25(2) and 31(1) of the Act. In addition to these mandatory conditions, WEA may impose further conditions on an accreditation under subsection 8(4) of the Scheme. This allows WEA the flexibility to impose conditions it considers appropriate to the activities of a particular exporter.  The Explanatory Memorandum to the Act states, in this regard:

“For example WEA may require an applicant to participate in the National Residue Survey where it considers the applicant to be inexperienced but otherwise demonstrably capable of undertaking its export proposal. Similarly, WEA may grant accreditation for a shorter period of time for inexperienced applicants. However, WEA may not impose conditions limiting tonnage or market destinations unless the application specifically proposes export arrangements on those bases.”

20.  A person affected by a decision made by WEA under section 8 of the Scheme can apply to WEA for reconsideration of the decision in accordance with Part 6 of the Act.  Part 6 of the Act also provides for an application to be made to the Administrative Appeals Tribunal.

Section 9 Instrument of accreditation

21.  Section 9 of the Scheme requires WEA to give the applicant an instrument of accreditation within 14 days of making the decision to accredit the applicant. The instrument must set out any conditions of the accreditation, the period of accreditation and the date on which the accreditation commences. The name and ACN (where applicable) of each accredited wheat exporter and the conditions on their accreditation will be published on the WEA’s website as part of the register of accredited wheat exporters that WEA is required to maintain. Conditions included in the instrument will be those imposed under subsections 25(2) and 31(1) of the Act, sections 22-26 of the Scheme and conditions imposed on individual accreditations on a case by case basis by WEA under subsections 8(4) and 15(3) of the Scheme.

Section 10 Consultation before imposing conditions or refusing accreditation

22.  Section 10(a) and (b) of the Scheme requires WEA to consult with an applicant before making a decision to refuse to accredit the applicant or to impose conditions on the applicant’s accreditation. It is intended that WEA will consult with applicants throughout the processing of applications. If WEA considers it necessary to impose further conditions, additional to those imposed under the Act and the Scheme, WEA will consult with an applicant regarding the conditions via telephone, in person or through written correspondence.

23.  The Explanatory Memorandum states, in relation to the requirement for consultation in subsection 9(4) of the Act:

“The consultation requirement of WEA does not apply to imposition of accreditation conditions which WEA is bound under the legislation, or the scheme, to impose (for example, the need to comply with an audit). Nor does it impose a consultation process on WEA involving specific time limits and requirements. This is to allow WEA to respond to rapid developments. If there is no urgency surrounding the proposed changes then reasonable time in the circumstances should be allowed for the consultation process.”

Section 11 Notice of refusal

24.  Section 11 of the Scheme requires WEA to give the applicant notice of a decision to refuse accreditation within 14 days of making the decision. The notice must include the reasons for the decision. This provides transparency in relation to WEA’s decision making process.

25.  WEA can only make a decision to refuse to accredit an applicant after they have consulted with the applicant.

Section 12 Period of accreditation

26.  Subsections 12(1) to (3) of the Scheme provide that accreditation commences on the day specified in the instrument of accreditation and remains in force for the period specified in the instrument. This is unless the accreditation is cancelled by WEA or surrendered by the accredited wheat exporter prior to the end date of the accreditation period. The date the period of accreditation commences must not be a date before the instrument is given to the applicant.

27.  Subsection 12(4) of the Scheme reflects that WEA must not accredit an applicant for longer than 3 years. This does not limit WEA renewing the accreditation or accrediting the exporter after the initial accreditation period ends.

Subdivision 2 Accreditation by way of renewal

Section 13 Accreditation by way of renewal

28.  Section 13 of the Scheme allows for the possibility of an exporter's accreditation to continue (effectively) uninterrupted if a renewal application is submitted between 3 and 6 months before the expiry date of the current accreditation and that application is subsequently approved. The reason the renewal application must be submitted at least 3 months before the accreditation expires is to allow WEA sufficient time to process and make a decision on the application. WEA will apply the same criteria as it would with any application for accreditation. However, as WEA will already hold significant information relating to the applicant, the process should be less onerous. The Renewal Application Form will be available on WEA’s website <www.wea.gov.au>.

Section 14 Additional information or documents

29.  Subsection 14(1) and (3) of the Scheme permits WEA to request further information or documents in writing from an applicant to assist it in determining whether an applicant is eligible to have its accreditation renewed. WEA will consult with applicants throughout the processing of applications. If WEA has any doubt about whether an applicant is eligible for accreditation, it may request additional information from the applicant and give the applicant an opportunity to provide this information. WEA must specify what information it seeks and the time within which the applicant must respond to the request. The applicant is required to comply with the request within the time specified.

30.  Subsection 14(4) of the Scheme provides that WEA is not obliged to consider an application, or consider an application further, while it is waiting for the additional information to be provided by the applicant. This informs the applicant that no decisions will be made by WEA until the requested information or documents are provided.

Section 15 Decision on renewal

31.  Section 15 of the Scheme requires that an application for renewal of an existing accreditation made under section 13 of the Scheme must be granted if the eligibility criteria provided by section 5 of the Scheme are met and there are no events or circumstances that WEA is aware of to justify the suspension or cancellation of the accreditation. Applicants must also comply with a request for further information under section 14 of the Scheme. In renewing the accreditation WEA may impose additional conditions. As provided for by section 17 of the Scheme, WEA must consult the applicant before deciding to impose conditions or before deciding not to renew the accreditation. 

32.  There are mandatory conditions required to be imposed on every accreditation as specified in sections 22 to 26 of the Scheme and subsections 25(2) and 31(1) of the Act. In addition to these mandatory conditions, WEA may impose further conditions on an accreditation at the time of renewal under subsection 15(3) of the Scheme. This allows WEA the flexibility to impose conditions it considers appropriate to the activities of a particular exporter.

Section 16 Instrument of accreditation renewal

33.  Section 16 of the Scheme states that an instrument of accreditation renewal must be provided within 14 days after a decision has been made under section 15 of the Scheme. The instrument must specify the conditions of renewal, the day the renewal commences and the period of the renewal. The name and ACN (where applicable) of the accredited wheat exporter and the conditions of its accreditation will be published on the WEA’s website as part of the register of accredited wheat exporters that WEA is required to maintain in accordance with section 23 of the Act. Conditions included in the instrument will be those imposed under subsections 25(2) and 31(1) of the Act, sections 22 to 26 of the Scheme, and conditions imposed on individual accreditations on a case by case basis by WEA under subsections 8(4) and 15(3) of the Scheme.

Section 17 Consultation before imposing conditions or refusing accreditation renewal

34.  Section 17 of the Scheme requires WEA to consult with the applicant before making a decision to either impose conditions on the renewal of the accreditation under subsection 15(3) of the Scheme or to refuse to renew the accreditation under paragraph 15(1)(b) of the Scheme. It is intended that WEA will consult with applicants throughout the processing of renewal applications. If WEA considers it necessary to impose conditions, additional to those imposed under the Act and the Scheme, WEA will consult with an applicant regarding the conditions via telephone, in person or through written correspondence.

Section 18 Notice of refusal of accreditation renewal

35.  Section 18 of the Scheme requires WEA to give the applicant notice of a decision to refuse accreditation within 14 days of making the decision. The notice must include the reasons for the decision. This assures that the applicant is fully informed of the decision making process undertaken by WEA. WEA can only make a decision to refuse to accredit an applicant after they have consulted with the applicant.

Section 19 Period of renewal accreditation

36.  Subsections 19(1) to (3) of the Scheme provide that accreditation commences on the day specified in the instrument of accreditation and remains in force for the period specified in the instrument. This is unless the accreditation is cancelled by WEA or surrendered by the accredited wheat exporter prior to the end date of the accreditation period. The date the period of accreditation commences must not be a date before the instrument is given to the applicant.

37.  Subsection 19(4) of the Scheme reflects that WEA must not accredit an applicant for longer than 3 years. This does not limit WEA renewing the accreditation or accrediting the exporter after the initial accreditation period ends.

Division 3 Variation of accreditation

Section 20 Variation of accreditation

38.  This section provides that WEA may vary an accreditation. If WEA decides to vary an accreditation, it must notify the accredited company in writing within 14 days of making the decision. The notice must state the details and reasons for the variation and the date from which the variation takes effect. A new instrument of accreditation will be provided to an accredited company if WEA considers it necessary or appropriate to do so – for instance, WEA may decide to do this where the variation or revocation of a condition represents a substantial change to the accreditation. WEA will not vary the period of a company’s accreditation.

Section 21 Consultation before variation

39.  This section requires WEA to consult with an applicant before making the decision to vary an accredited company’s accreditation under subsection 21 of the Scheme. WEA will consult with an applicant regarding the proposed variations via telephone, in person or through written correspondence.

Division 4 Conditions of accreditation

Section 22 Conditions of accreditation

40.  This section provides that the accreditation is subject to certain conditions. There are some mandatory conditions as required by the Act. All accreditations are subject to a condition that the accredited company comply with a requirement of WEA under subsection 25(2) (information gathering) or subsection 31(1) (external audits) of the Act.  All accreditations are also subject to conditions relating to the provision of annual export and compliance reports under sections 23 and 24 of the Scheme, the notification requirements under section 25 of the Scheme, the condition imposed under section 26 of the Scheme, any conditions imposed on individual accreditations on a case by case basis by WEA under sections 8(4) and 15(3) of the Scheme and any further conditions imposed by the WEA under section 27 of the Scheme. 

Section 23 Condition – annual export report

41.  This section is required to be included in the Scheme under section 15 of the Act.  The Act’s Explanatory Memorandum relevantly states:

“This section requires an accredited exporter to provide WEA with an annual report on its operations for the previous marketing year in relation to its exports of bulk wheat. This must be done within 30 days of the end of the marketing year unless WEA agrees to another time period. ‘Marketing year’ is defined in section 5 of the Act as a 12-month period beginning on 1 October.

“The report is primarily required to provide transparency to growers and WEA regarding the specification and quantities of bulk wheat exported, the price terms and conditions offered to growers, and the results of export activities in relation to such terms and conditions.”

42.  Certain provisions of the Act are civil penalty provisions. Part 8 of the Act provides for monetary penalties to be applied, and enforced by the Federal Court, where civil penalty provisions in the Act are contravened. Section 23 of the Scheme (section 18 of the Act) is a civil penalty provision.

The Act’s Explanatory Memorandum outlines:

“The maximum civil penalty for breaching this condition under section 18 of the Act is 1000 penalty units, which is equivalent to $110,000.

“It is also a criminal offence under the Criminal Code Act 1995 to provide WEA with false or misleading information in connection with an application for accreditation. This includes the information contained in annual export reports. This is provided by schedule 2, items 1-5 of the Wheat Export Marketing (Repeal and Consequential Amendments) Act 2008.”

43.  The Act’s Explanatory Memorandum states in relation to ‘specification' that:

“The term ‘specification’ used in paragraph 15(1)(c) has the meaning generally accepted in the industry. The term ‘acquired wheat from growers’ in paragraph 15(1)(d) relates to wheat supplied directly from the grower to the exporter.”

44.  Subsection 23(2) of the Scheme provides that the annual export report must be completed on the Annual Export Report Form. This form will be available on WEA’s website <www.wea.gov.au>.

Section 24 Condition – annual compliance report

45.  Under section 16 of the Act, this section is required to be included in the Scheme.  The Act’s Explanatory Memorandum states:

“This section requires an accredited exporter to provide WEA with an annual report on its compliance with its accreditation conditions, applicable Australian and foreign laws and applicable United Nations sanctions provisions.

This must be done in writing within 30 days of the end of the marketing year unless WEA agrees to another time period.”

46.  Certain provisions of the Act are civil penalty provisions. Part 8 of the Act provides for monetary penalties to be applied, and enforced by the Federal Court, where civil penalty provisions in the Act are contravened. Section 22 of the Scheme (section 18 of the Act) is a civil penalty provision.

The Act’s Explanatory Memorandum outlines:

“The maximum penalty for breaching this condition under section 18 of the Act is 1000 penalty units which is equivalent to $110,000.”

47.  Subsection 24(2) of the Scheme provides that the annual compliance report must be completed on the Annual Compliance Report Form. This form will be available on WEA’s website <www.wea.gov.au>. 

Section 25 Condition – report about notifiable matters

48.  Under section 17 of the Act, this section is required to be included in the Scheme.  The Act’s Explanatory Memorandum states:

“This section requires accredited exporters to provide a report to WEA where an event occurs, or the exporter’s circumstances change, such that the event or change in circumstances could have a material impact upon the accreditation of the exporter. This condition includes the obligation to report significant changes with respect to a related body corporate of the accredited exporter. This is particularly important where, for example, a parent company has provided, or agreed to provide, financial support to an accredited subsidiary and that parent company undergoes significant financial changes or restructuring.

This must be done in writing within 14 days of the event.”

49.  Certain provisions of the Act are civil penalty provisions. Part 8 of the Act provides for monetary penalties to be applied, and enforced by the Federal Court, where civil penalty provisions in the Act are contravened. Section 25 of the Scheme (section 18 of the Act) is a civil penalty provision.

The Act’s Explanatory Memorandum outlines:

“The maximum penalty for breaching this condition under section 18 is 1500 penalty units which is equivalent to $165,000.”

50.  It is the responsibility of accredited exporters, not WEA, to track and report on notifiable matters under this section.

51.  Subsection 25(2) of the Scheme provides that the report about notifiable matters must be completed on the Notifiable Matters Form. This form will be available on WEA’s website <www.wea.gov.au>.

Section 26 Additional condition

52.  Paragraph 26(1) of the Scheme specifies an additional condition which will apply to every accreditation. It requires that an accredited exporter advise WEA in writing if a new executive officer is appointed during the period of accreditation. This is to ensure WEA has up to date information regarding executive officers of the company and ensure that the company remains a fit and proper company under section 5(1)(c).

53.  Paragraph 26(2)(a) and (b) of the Scheme requires written notice in a form approved by WEA. This form is the New Executive Officer Notification Form and will be available on WEA’s website <www.wea.gov.au>. Parts of the form will need to be completed by the accredited exporter and other parts by the new executive officer. The accredited exporter will be required to gather information in relation to executive officers which may include written consent from each executive officer for WEA to obtain information via police check (subject to any relevant spent convictions or non-disclosure legislation). This would be for the purpose of WEA’s evaluation of certain eligibility criteria in section 5(1)(c) of the Scheme.

54.  Paragraph 26(2)(c) of the Scheme provides that the applicant and new executive officer must authorise WEA to independently verify the accuracy and completeness of the information and documents provided with the form. This verification process may involve WEA undertaking its own research such as Internet or database searches or providing sections of an application to third parties with certain expertise such as accountants or legal firms.

55.  Paragraphs 26(2)(d) and (e) of the Scheme require the applicant to notify the WEA within 14 days of the new executive officer being appointed and to lodge the form in a manner specified by the form.

Section 27 WEA may impose further conditions

56.  Subsection 27(1) of the Scheme provides WEA with flexibility afforded to it under the Act to impose further conditions on an accreditation as it considers appropriate. This can occur at any time during the accreditation period. Further conditions will not be imposed by WEA without first consulting the accredited exporter.

57.  Subsection 27(2) of the Scheme states that, in the event WEA decides to add further conditions to an instrument of accreditation or renewal, a written notice must be provided within 14 days of making the decision to the accredited company which sets out the details of the conditions imposed and the reasons for the inclusion of the conditions and the date from which the conditions take effect. This provides transparency in relation to WEA’s decision making process.

58.  Subsection 27(3) of the Scheme states that if further conditions are imposed, a new instrument of accreditation may be provided to the exporter, if the WEA considers it necessary or appropriate, reflecting the inclusion of the new conditions.

Section 28 Variation or revocation of conditions

59.  This section provides that WEA may revoke or vary a condition imposed on an accreditation.  If WEA decides to vary or revoke a condition of accreditation it must notify the accredited company in writing within 14 days of making the decision. A new instrument of accreditation may also be provided to an accredited company to reflect any changes to the conditions imposed, if WEA considers it necessary or appropriate to do so.  WEA will not charge a fee where variation is initiated by WEA.

Section 29 Consultation before imposing, varying or revoking conditions

60.  Section 29 of the Scheme provides that consultation with the accredited company must be undertaken prior to WEA imposing further conditions on the company under section 27 of the Scheme or varying or revoking a condition of an accreditation under section 28 of the Scheme. It is intended that WEA will consult with an applicant regarding the imposition, variation or revocation of a condition via telephone, in person or through written correspondence.

Division 5 Cancellation of accreditation

Section 30 Mandatory cancellation of accreditation

61.  Paragraphs 19(1)(a)-(d) of the Act require the inclusion of paragraphs 30(1)(a)-(d) of the Scheme.  The Act’s Explanatory Memorandum relevantly states:

“This section provides for the cancellation of accreditation where WEA finds the accredited exporter no longer to be an appropriate entity to export Australian wheat in bulk. The section mirrors section 13. As such, the same criteria apply and WEA holds the same discretions such that a reason for denying an applicant accreditation under section 13 has the same effect and weight as towards the cancellation of accreditation under this section where that factor applies to an accredited exporter. Criteria which must be strictly fulfilled to become accredited require mandatory cancellation of accreditation under section 19 if they are no longer met. Similarly, the discretionary criteria which require judgment by WEA under section 13 are grounds for cancellation under section 19. For example, WEA must use the same judgment in considering whether an exporter is no longer fit and proper to hold accreditation as WEA would if the exporter was an applicant under section 13.”

…“Paragraph 19(1)(d) allows WEA to cancel the accreditation of an accredited exporter which has failed to provide sufficient access to port terminal facilities to other accredited exporters. This is only where the access test under section 24 applies to the exporter.

“It needs to be noted that compliance with the access test requirements does not guarantee that every access seeker will be able to secure access. Where the capacity of a facility is fully allocated in accordance with the access procedures then another accredited exporter seeking access will not be able to be accommodated. The accreditation of the service provider will not be cancelled in such a situation if it has complied with the access test requirements.

“During the period 1 July 2008 to 30 September 2009 in which service providers must agree to provide access and publish the terms and conditions for access, WEA may cancel their accreditation if they do not provide access to others where it is feasible to do so. In this period, the failure to provide access, where it is reasonably feasible to do so on the published terms and conditions, would mean the service provider was no longer passing the access test as required under section 13.”

62.  Section 30(e) of the Scheme outlines an additional ground for mandatory cancellation. WEA will cancel a company’s accreditation if it provides false or misleading information in its application for accreditation or renewal of accreditation. This is to ensure that WEA can cancel an accreditation that has been obtained improperly.

Section 31 Discretionary cancellation of accreditation

63.  Paragraphs 19(2)(a) and (b) of the Act require the inclusion of paragraphs 31(a) and (b) in the Scheme regarding discretionary cancellation of accreditation. The Act’s Explanatory Memorandum states:

“Paragraph 19(2)(a) is the discretionary equivalent of paragraph 13(1)(d). It provides that WEA may cancel an accreditation where the exporter has become an externally administered body corporate as opposed to section 13 which does not allow the accreditation of an externally administered body corporate at all. This means an accredited exporter under administration may be allowed the opportunity to improve its financial position. This may be appropriate in certain circumstances rather than cancelling an accreditation which could prevent any financial resurrection and cause financial loss or detriment to third parties including growers.

“WEA has the same discretion with regard to an accredited exporter which has not complied with its conditions of accreditation under paragraph 19(2)(b). The accreditation may be cancelled as a result of the breach but WEA is not bound to cancel the accreditation. It should be noted however that under section 9 WEA has the option of suspending an accreditation. Also, any such breaches of conditions will be taken into account by WEA in considering whether to renew an accreditation where it receives an application to do so.”

64.  Paragraph 17(2)(c) of the Act provides WEA with the power to specify grounds for discretionary cancellation in the Scheme. Paragraph 31(c) of the Scheme provides that WEA may, at its discretion, cancel an accreditation if WEA is satisfied that an accredited company provided false or misleading information to it. This is to ensure that exporters are honest in their dealings with WEA and may include, but is not limited to, information requested by WEA. This does not include the provision of false or misleading information provided as part of an application for accreditation or renewal of accreditation as this is a ground for mandatory cancellation.

Section 32 Consultation before cancellation

65.  Section 32 of the Scheme requires WEA to consult with an accredited company before making the decision to cancel its accreditation on either mandatory or discretionary grounds. If WEA is considering making a decision to cancel a company’s accreditation, WEA will consult with the company through written correspondence.

66.  If WEA makes the decision to cancel an accreditation, a person affected by the decision can apply to WEA for a reconsideration of the decision. This application must be made in accordance with Part 6 of the Act. Following the reconsideration, Part 6 of the Act also provides for an application to be made to the Administrative Appeals Tribunal.

Section 33 Notice of cancellation

67.  Subsections 33(1) and (2) of the Scheme require WEA to give the applicant notice in writing within 14 days of making the decision to cancel a company’s accreditation. This will include the details of and reasoning behind the cancellation. This provides transparency in relation to WEA’s decision making process.  A cancellation takes effect on the day the notice is given to the company.

Section 34 Post-cancellation report

68.  Section 21 of the Act requires the Scheme to include this section. The Act’s Explanatory Memorandum states:

“This section provides that where WEA cancels an accreditation, the exporter in question must provide WEA with export and compliance reports similar to those required under sections 15 and 16. These reports are required in relation to the period from the start of the marketing year in which the accreditation is cancelled and the date of notification of the cancellation.”

69.  Certain provisions of the Act are civil penalty provisions. Part 8 of the Act provides for monetary penalties to be applied, and enforced by the Federal Court, where civil penalty provisions in the Act are contravened. Section 34 of the Scheme (section 21 of the Act) is a civil penalty provision.

The Act’s Explanatory Memorandum outlines:

 “Failure to comply with this requirement is a breach of a civil penalty provision under part 8, attracting a penalty of up to 1000 penalty units which is the equivalent to
$110,000.”

70.  Subsection 34(7) of the Scheme provides that the post-cancellation export and compliance reports must be completed on an approved form. These forms will be available on WEA’s website <www.wea.gov.au>. 

Division 6 Suspension of accreditation

Section 35 Suspension of accreditation

71.  Section 35 of the Scheme outlines the grounds and reasons on which WEA can suspend a company’s accreditation. The suspension will not exceed 3 months.

72.  Paragraph 35(a)(i) of the Scheme provides that WEA can suspend an accreditation if the accredited company has not complied with a condition of its accreditation. If an accredited company does not comply with a condition of accreditation, this is also a ground for discretionary cancellation under the Scheme and a civil penalty provision under the Act. This provides WEA with the flexibility to determine the extent of the breach and whether it warrants suspension or cancellation of an accreditation.

73.  Paragraph 35(a)(ii) of the Scheme provides that WEA can suspend an accreditation if the accredited company provided false or misleading information to WEA. This is to ensure that exporters are honest in their dealings with WEA and may include, but is not limited to, information requested by WEA or provided to WEA in compliance and export reports. It does not include the provision of false or misleading information provided as part of an application for accreditation or renewal of accreditation as this is a ground for mandatory cancellation. The ground described in this paragraph is also a ground for discretionary cancellation, thus providing WEA with the flexibility to determine the extent of the breach and whether it warrants suspension or cancellation of an accreditation.

74.  Paragraph 35(b) of the Scheme provides that WEA can suspend an accreditation if WEA reasonably suspects the company is not a fit and proper company to export wheat from Australia. This power may be exercised by WEA even if it is not yet satisfied that the company is not a fit and proper company having regard to the criteria set out in section 5(1)(c) of the Scheme. The power under s 35(b) of the Scheme is intended to provide WEA with some flexibility in relation to suspension.  In appropriate circumstances it will enable WEA to suspend a company's accreditation while it undertakes further investigations to determine whether it can be satisfied that a company is not a fit and proper company.

Section 36 Consultation before suspension

75.  Section 36 of the Scheme requires WEA to consult with an accredited company before making the decision to suspend its accreditation. If WEA is considering making a decision to suspend a company’s accreditation, WEA will consult with the company through written correspondence.

76.  If WEA makes the decision to suspend an accreditation, a person affected by the decision can apply to WEA for a reconsideration of the decision. This application must be made in accordance with Part 6 of the Act. Following the reconsideration, Part 6 of the Act also allows for an application to be made to the Administrative Appeals Tribunal.

Section 37 Notice of suspension

77.  Subsections 37(1) and (2) of the Scheme requires WEA within 14 days of making a decision to suspend a company’s accreditation, to give the applicant notice in writing including the details of and reasons for the suspension, the date from which the suspension takes effect and the period of the suspension, which must be no longer than 3 months in accordance with section 35 of the Scheme. The notice must be in writing for transparency of WEA’s decision making processes.

Division 7 Surrender of accreditation

Section 38 Surrender of accreditation

78.  Section 22 of Act requires the Scheme to include this section.  The Act’s Explanatory Memorandum states:

“This section provides that an accredited exporter can surrender its accreditation and attaches certain conditions and requirements to the surrender. WEA will not consent to the surrender until the accredited exporter has provided export and compliance reports for the period that has elapsed since the end of the previous marketing year. These reports are the same as required by sections 15 and 16 except they reflect only the portion of the marketing year up to the date of application for surrender.

“This section is intended to prevent accredited exporters from avoiding their reporting obligations and accountability by surrendering their accreditation.”

Division 8 Applying to vary or revoke conditions of accreditation

Section 39 Applying to vary or revoke conditions of accreditation

79.  Paragraph 39(1)(a) and (b) of the Scheme provides that an application to vary a condition imposed under subsection 8(4) or 15(3) or section 27 of the Scheme or otherwise vary an accreditation, can be submitted at any time during an exporter’s period of accreditation.

80.  Under paragraph 39(2)(a) of the Scheme, the application to vary accreditation will only be acceptable if submitted on the approved form. The Application to Vary an Accreditation Form will be available from WEA’s website <www.wea.gov.au>.

81.  Paragraph 39(2)(b) of the Scheme requires that the application to vary an accreditation must specify in detail the decision the applicant wishes WEA to consider in varying the applicant’s accreditation.

82.  Paragraph 39(2)(c) of the Scheme requires that the application to vary an accreditation must be accompanied by all information and documents required by the application form.

83.  Under paragraph 39(2)(d) of the Scheme, the application to vary an accreditation must authorise WEA to independently verify the accuracy of the information and documents provided within the application.

84.  Paragraph 39(2)(e) of the Scheme requires that the application to vary an accreditation must only be submitted at a place or via the means specified in the application form.

85.  Paragraph 39(2)(f) of the Scheme requires that the application to vary an accreditation must be accompanied by proof of payment of the fee, via EFT or bank cheque, specified in Schedule 1 that is applicable to variations. WEA will not consider an application to have been received without proof of this payment.

86.  Paragraph 39(3) of the Scheme provides that a variation cannot be made to the period of a company’s accreditation.

Section 40 Decision on application

87.  Paragraph 40(a) and (b) of the Scheme provides that a decision made by WEA on an application under section 39 of the Scheme may be to either grant or refuse the application, or part of the application.

Section 41 Notice of decision

88.  Section 41 of the Scheme provides that within 14 days of WEA making a decision to vary or revoke a condition of accreditation, a written notice of the decision must be provided to the applicant including the date from which the revocation or variation takes effect. WEA may provide a new instrument of accreditation where WEA considers it necessary or appropriate to do so that incorporates the effect of the decision.

Section 42 Notice of refusal to vary or revoke conditions

89.  Section 42 of the Scheme submits that within 14 days of WEA making a decision to refuse to vary a condition of accreditation, a written notice of the decision must be provided to the applicant including reasons for WEA’s decision. This is to provide transparency of WEA’s decision making process.

Section 43 Consultation before decision

90.  Section 43 of the Scheme requires WEA to consult with an accredited company before making the decision to vary its accreditation. WEA will consult with the company via telephone, in person or through written correspondence.

Part 3 Miscellaneous

Section 44 WEA may approve forms

91.  Section 44 of the Scheme provides that WEA may, in writing, approve a form for the purposes of a provision of the Scheme. All forms will be available on WEA’s website <www.wea.gov.au>. 

Section 45 Accreditation not transferable

92.  Section 11 of Act requires the Scheme to include this section.  The Act’s Explanatory Memorandum states:

“This section provides that accreditation is not transferable.
 

“The probity and performance test involved in the accreditation process to ensure sound and responsible wheat export marketing would be subverted if a company could acquire accreditation through transfer, without going through the accreditation process.”

Section 46 Application fees

93.  This section provides that an application under this Scheme or under section 69 of the Act (application for reconsideration) must be accompanied by the fee specified in Schedule 1.

94.  Schedule 1 provides for fees for applications for accreditation (section 6), renewal (section 13), to vary an accreditation (where the accredited company has applied for variation under section 35), and for reconsideration (section 69 of the Act).

Schedule 1 Fees

95.  Schedule 1 of the Scheme sets out the various fees which are required for different types of applications made to the WEA. These fees are set at a level to recover the costs WEA incurs in processing the applications. Fees are inclusive of GST.