Commonwealth of Australia Explanatory Memoranda

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WHEAT EXPORT MARKETING AMENDMENT BILL 2012

                              2010 - 2011 - 2012




   THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                      HOUSE OF REPRESENTATIVES




      WHEAT EXPORT MARKETING AMENDMENT BILL 2012




         SUPPLEMENTARY EXPLANATORY MEMORANDUM




  Amendments and New Clauses to be Moved on Behalf of the Government




(Circulated by authority of the Minister for Agriculture, Fisheries and Forestry,
                       Senator the Hon. Joseph Ludwig)
AMENDMENTS TO WHEAT EXPORT MARKETING
AMENDMENT BILL 2012

OUTLINE

The proposed government amendment to the Wheat Export Marketing Amendment
Bill 2012 (the Bill) will ensure that, in line with the government response to the
Productivity's Commission's inquiry into wheat export marketing arrangements, there
will be no break in a port terminal service provider's compliance with the access test in
the transition from the 2008 arrangements to the new arrangements.

Under section 7 of the Bill, it is possible that a port terminal service provider could
avoid continuous compliance with the access test from 1 October 2012 until the date of
their first export under the new arrangements, as section 7 of the Bill (requirement to
pass the access test) only applies from the latter date. The amendments will resolve this
issue.

The government amendments will also correct a minor detail of the continuous
disclosure rules (CDRs) that form part of the access test to ensure they align with
current practice. As part of compliance with the CDRs, the Bill requires port terminal
service providers to publish a loading statement that includes information on each ship
scheduled to load grain. As it is possible that the name of a ship may not be available at
the time of booking, subsection 9(4) of the Bill will be amended so that the unique slot
reference number that confirms the booking is the point of reference for the requirement
to provide the necessary information, with the ship's name to be included, if available.

FINANCIAL IMPACT STATEMENT

There are expected to be no significant resource implications from these amendments.




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AMENDMENTS TO WHEAT EXPORT MARKETING
AMENDMENT BILL 2012

NOTES ON AMENDMENTS

Amendment 1
This amendment will amend the heading of section 7 of the Bill to read, `7 Requirement
to pass the access test - general rule' to allow for the inclusion of a new transitional rule
under Division 1.
Amendment 2
This amendment will insert a new section 7A after section 7 of the Bill that will ensure
that a person who was required to pass the access test under the old Act will have to
comply with the access test from 1 October 2012 until their first export under the new
arrangements (when section 7 applies) or until 12 months have passed.
Subsection (3) gives the Secretary of the Department of Agriculture, Fisheries and
Forestry the power to exempt a provider from this requirement, if he/she is satisfied
there are special circumstances. In exercising this discretion, the Secretary may have
regard to such matters as the nature and duration and circumstances of the failure to
pass the access test, any remedial action that has been taken since the failure, or if there
is no connection between the exporter and the port terminal service provider who did
not pass the access test.
Subsection (4) is included to assist readers, as the instrument is not a legislative
instrument within the meaning of section 5 of the Legislative Instruments Act 2003.
Amendment 3
This amendment will replace subsection 8(1) with a revised subsection 8(1). Section 8
of the Bill provides for a `look-back test', which in conjunction with subsection 7(3), is
used to determine if there was a failure to pass the access test within the previous 12
month period but does not provide for doing so before 1 October 2012. The revised
subsection 8(1) will resolve this issue and help ensure continuous compliance by port
terminal service providers. This revised subsection will also mitigate against the
possibility of a provider, or an associated entity of that provider, changing their legal
identity in order to avoid the access test applying to successive exports.
Amendment 4
This amendment clarifies that the meaning of `accredited wheat exporter' and `old
access test' is the same as the meaning in the old Act.
Amendment 5
Continuous disclosure rules (CDRs) form part of the access test and require a port
terminal service provider to publish information regarding the details of any vessel
booking applications for the export of grain, (also known as a `shipping stem'). As part
of compliance with the CDRs, the Bill requires port terminal service providers to
publish a loading statement that includes information on each ship scheduled to load
grain. As it is possible that the name of a ship may not be available at the time of




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booking, subsection 9(4) of the Bill will be amended so that the unique slot reference
number that confirms the booking is the point of reference for the requirement to
provide the necessary information, with the ship's name to be included, if available (see
Amendment 6).
Amendment 6
This amendment requires the name of the ship to be provided as part of the continuous
disclosure rules, but only if available.
Amendment 7
This amendment will remove `Item 30: Transitional--access test' from the Bill.
Amendments to the Bill under the new subsection 8(1) remove the need for this section.
Amendment 8
This amendment will provide for persons, whose interests are affected by a decision of
the Secretary of the Department of Agriculture, Fisheries and Forestry under
subsection 7A(3), to be able to apply to the Administrative Appeals Tribunal for review
of that decision.




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