Commonwealth Numbered Acts Commonwealth Numbered ActsWheat Export Marketing Act 2008
1 Paragraph 3(a)
Repeal the paragraph, substitute:
(a) to promote the operation of an efficient and profitable bulk wheat export marketing industry that supports the competitiveness of all sectors through the supply chain; and
2 Section 4
Repeal the section, substitute:
The following is a simplified outline of this Act:
• This Act provides a system for regulating exports of wheat (other than wheat in bags or containers).
• A provider of a port terminal service who exports wheat, or who is an associated entity of a person who exports wheat, must pass the access test in relation to the port terminal service.
• An exporter of wheat:
(a) who provides a port terminal service; or
(b) who has an associated entity that provides the port terminal service;
must not export wheat using the port terminal service if a person who was required to pass the access test in relation to the port terminal service at a time during the previous 12 months did not pass the access test at that time.
• The Minister may approve a code of conduct dealing with the provision to wheat exporters of access to port terminal services by the providers of port terminal services.
3 Section 5 (definition of access test )
Omit "section 24", substitute "section 9".
4 Section 5 (definition of accredited wheat exporter )
Repeal the definition.
5 Section 5 (definition of ACN )
Repeal the definition.
6 Section 5 (definition of Australian Consumer Law )
Repeal the definition.
7 Section 5 (definition of company )
Repeal the definition.
8 Section 5 (definition of continuous disclosure rules )
Omit "subsection 24(4)", substitute "subsection 9(4)".
9 Section 5 (definition of co-operative )
Repeal the definition.
10 Section 5 (definition of designated sanitary or phytosanitary measure )
Repeal the definition.
11 Section 5 (definition of executive officer )
Repeal the definition.
12 Section 5 (definition of external auditor )
Repeal the definition.
13 Section 5 (definition of externally-administered body corporate )
Repeal the definition.
14 Section 5 (definition of foreign country )
Repeal the definition.
15 Section 5 (definition of foreign law )
Repeal the definition.
16 Section 5 (definition of individual producer )
Repeal the definition.
17 Section 5 (definition of involved in a contravention )
Repeal the definition.
18 Section 5
Insert:
"old Act" means this Act as in force immediately before the commencement of this definition.
19 Section 5 (definition of post-cancellation compliance report )
Repeal the definition.
20 Section 5 (definition of post-cancellation export report )
Repeal the definition.
21 Section 5 (definition of pre-cancellation period )
Repeal the definition.
22 Section 5 (definition of pre-surrender compliance report )
Repeal the definition.
23 Section 5 (definition of pre-surrender export report )
Repeal the definition.
24 Section 5 (definition of pre-surrender period )
Repeal the definition.
25 Section 5
Insert:
"Secretary" means the Secretary of the Department.
26 Section 5 (definition of United Nations sanctions provision )
Repeal the definition.
27 Section 5 (definition of wheat export accreditation scheme )
Repeal the definition.
28 Section 6
Repeal the section.
29 Part 2
Repeal the Part, substitute:
Division 1 -- Requirement to pass the access test
7 Requirement to pass the access test--general rule
Who must pass the access test
(1) A provider of a port terminal service must pass the access test in relation to the port terminal service if:
(a) the provider exports wheat using the port terminal service; or
(b) the provider is an associated entity of a person who exports wheat using the port terminal service.
(2) Subsection (1) does not apply to the export of wheat in:
(a) a bag; or
(b) a container;
that is capable of holding not more than 50 tonnes of wheat.
When the access test must be passed
(3) The provider must pass the access test in relation to the port terminal service at all times during the 12-month period beginning on the day of the export of the wheat.
Exception
(4) The Secretary may, by writing, determine that this section does not apply in relation to a specified provider and to a specified period if the Secretary is satisfied that there are special circumstances that justify the Secretary doing so.
Determination not a legislative instrument
(5) A determination under subsection (4) is not a legislative instrument.
7A Requirement to pass the access test--transitional rule
Who must pass the access test
(1) A provider of a port terminal service must pass the access test in relation to the port terminal service if the provider was, immediately before the commencement of this section:
(a) an accredited wheat exporter; or
(b) an associated entity of an accredited wheat exporter.
When the access test must be passed
(2) The provider must pass the access test in relation to the port terminal service at all times during the period:
(a) beginning at the commencement of this item; and
(b) ending at the earlier of the following times:
(i) the first time the provider is required by section 7 to pass the access test in relation to the port terminal service;
(ii) the end of the 12-month period beginning on the day this item commences.
Exception
(3) The Secretary may, by writing, determine that this section does not apply in relation to a specified provider and to a specified period if the Secretary is satisfied that there are special circumstances that justify the Secretary doing so.
Determination not a legislative instrument
(4) A determination under subsection (3) is not a legislative instrument.
Definitions
(5) For the purposes of this section:
"accredited wheat exporter" has the same meaning as in the old Act.
Scope
(1A) This section applies to a person if:
(a) the person is the provider of a port terminal service; or
(b) an associated entity of the person is the provider of a port terminal service.
Exports of wheat
(1) The person (the relevant exporter ) must not export wheat using the port terminal service if:
(a) both:
(i) a person (whether the relevant exporter, the associated entity or another person) was required by this Act to pass the access test in relation to the port terminal service at a time during the 12-month period ending on the day of the export; and
(ii) the person mentioned in subparagraph (i) did not pass the access test at that time; or
(b) the accreditation of an accredited wheat exporter was cancelled because a person (whether the relevant exporter, the associated entity or another person) failed the old access test in relation to the port terminal service at a time during the 12-month period ending on the day of the export.
Exceptions
(2) The Secretary may, by writing, determine that subsection (1) does not apply in relation to a specified person and to a specified export if the Secretary is satisfied that there are special circumstances that justify the Secretary doing so.
(3) Subsection (1) does not apply if the wheat is exported in:
(a) a bag; or
(b) a container;
that is capable of holding not more than 50 tonnes of wheat.
(4) A person who wishes to rely on subsection (3) bears an evidential burden in relation to that matter.
Note: For evidential burden , see section 5.
Ancillary contraventions
(5) A person must not:
(a) aid, abet, counsel or procure a contravention of subsection (1); or
(b) induce, whether by threats or promises or otherwise, a contravention of subsection (1); or
(c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or
(d) conspire with others to effect a contravention of subsection (1).
Civil penalty provisions
(6) Subsections (1) and (5) are civil penalty provisions.
Note: Part 8 provides for pecuniary penalties for breaches of civil penalty provisions.
Determination not a legislative instrument
(7) A determination under subsection (2) is not a legislative instrument.
Definitions
(8) For the purposes of this section:
"accredited wheat exporter" has the same meaning as in the old Act.
"old access test" means the access test within the meaning of the old Act.
Access test--access undertaking
(1) A person passes the access test in relation to a port terminal service at a particular time if:
(a) at that time, there is in operation, under Division 6 of Part IIIA of the Competition and Consumer Act 2010 , an access undertaking relating to the provision to wheat exporters of access to the port terminal service for purposes relating to the export of wheat; and
(b) the access undertaking obliges the person to comply, at that time, with the continuous disclosure rules in relation to the port terminal service (see subsection (4)); and
(c) at that time, the person complies with the continuous disclosure rules in relation to the port terminal service.
(2) For the purposes of paragraph (1)(a):
(a) assume that subsection 44ZZBA(1) of the Competition and Consumer Act 2010 had never been enacted; and
(b) assume that an access undertaking comes into operation at the time when the ACCC publishes its decision to accept the undertaking.
Access test--effective access regimes
(3) A person passes the access test in relation to a port terminal service at a particular time if:
(a) at that time:
(i) there is in force a decision under Division 2A of Part IIIA of the Competition and Consumer Act 2010 that a regime established by a State or Territory for access to the port terminal service is an effective access regime; and
(ii) under that regime, wheat exporters have access to the port terminal service for purposes relating to the export of wheat; and
(b) at that time, the person complies with the continuous disclosure rules in relation to the port terminal service (see subsection (4)).
Continuous disclosure rules
(4) The continuous disclosure rules in relation to a port terminal service are as follows:
(a) there is available on the person's website a current statement setting out the person's policies and procedures for managing demand for the port terminal service (including the person's policies and procedures relating to the nomination and acceptance of ships to be loaded using the port terminal service);
(b) there is available on the person's website a current statement (a loading statement ) setting out a unique slot reference number for each ship (a loading ship ) scheduled to load grain using the port terminal service;
(c) the loading statement also sets out, for each loading ship:
(i) if the person knows the name of the ship--the name; and
(ii) the time when the ship was nominated to load grain using the port terminal service; and
(iii) the time when the ship was accepted as a ship scheduled to load grain using the port terminal service; and
(iv) the estimated time when the ship will arrive at the port terminal service; and
(v) the estimated time when grain is to start being loaded by the ship using the port terminal service; and
(vi) the estimated time when the ship will leave the port terminal service; and
(vii) the name of the exporter of the grain; and
(viii) the quantity of grain to be loaded by the ship using the port terminal service; and
(ix) the type of grain to be loaded by the ship using the port terminal service; and
(x) if grain has started to be loaded by the ship, but the loading has not been completed--that fact; and
(xi) if the ship has completed loading grain using the port terminal service--the time when the loading was completed;
(d) the person updates the loading statement each business day;
(e) both:
(i) the ACCC has a copy of the information set out in the most recently updated loading statement; and
(ii) the information was given to the ACCC in the manner and form approved, in writing, by the ACCC.
Export of wheat
(5) In this section, a reference to the export of wheat does not include a reference to the export of wheat in:
(a) a bag; or
(b) a container;
that is capable of holding not more than 50 tonnes of wheat.
Division 3 -- Application of the Customs Act 1901
10 Application of the Customs Act 1901
If:
(a) an exportation of wheat contravenes section 8; and
(b) the Secretary notifies the Chief Executive Officer of Customs in writing that the Secretary wishes the Customs Act 1901 to apply to that exportation;
the Customs Act 1901 has effect as if the goods included in that exportation were goods described as forfeited to the Crown under section 229 of that Act because they were prohibited exports within the meaning of that Act.
11 Delegation by the Secretary
(1) The Secretary may, by writing, delegate any or all of his or her functions or powers under this Division to an SES employee, or acting SES employee, in the Department.
Note: The expressions SES employee and acting SES employee are defined in the Acts Interpretation Act 1901 .
(2) In exercising powers under a delegation, the delegate must comply with any directions of the Secretary.
12 Minister to approve code of conduct
(1) The Minister may, by notice published in the Gazette , approve a code of conduct for the purposes of this section.
(2) The Minister must not approve a code of conduct under subsection (1) unless the Minister is satisfied that the code of conduct:
(a) deals with the fair and transparent provision to wheat exporters of access to port terminal services by the providers of port terminal services; and
(b) requires providers of port terminal services to comply with continuous disclosure rules; and
(c) is consistent with the operation of an efficient and profitable wheat export marketing industry that supports the competitiveness of all sectors through the supply chain; and
(d) is consistent with any guidelines made by the ACCC relating to industry codes of conduct.
(3) A notice under subsection (1) is not a legislative instrument.
31 Part 3 (heading)
Repeal the heading, substitute:
Part 3 -- Information-gathering powers
32 Division 1 of Part 3 (heading)
Repeal the heading, substitute:
Division 1 -- Secretary may obtain information and documents
33 Section 25 (heading)
Repeal the heading, substitute:
25 Secretary may obtain information and documents
34 Subsection 25(1)
Repeal the subsection, substitute:
Scope
(1) This section applies if the Secretary has reason to believe that a person has information or a document that is relevant to:
(a) determining whether the person is required to pass the access test in relation to a particular port terminal service; or
(b) determining whether the person passed the access test in relation to a particular port terminal service at a particular time; or
(c) a function or power of WEA under the old Act.
35 Subsection 25(2)
Omit "WEA may, by written notice given to the company, require the company", substitute "The Secretary may, by written notice given to the person, require the person".
36 Paragraphs 25(2)(a) and (b)
Omit "WEA", substitute "the Secretary".
37 Paragraph 25(2)(b)
Omit "documents; or", substitute "documents.".
38 Paragraph 25(2)(c)
Repeal the paragraph.
39 Subsection 25(2) (note)
Repeal the note.
40 Subsection 25(4)
Repeal the subsection.
41 Subsection 25(5)
Omit "company", substitute "person".
42 Section 26
Repeal the section.
43 Subsection 27(1)
Omit "(1) WEA", substitute "The Secretary".
44 Paragraph 27(1)(a)
Omit "or copy".
45 Subsection 27(2)
Repeal the subsection.
46 Section 28 (heading)
Repeal the heading, substitute:
28 Secretary may retain documents
47 Subsection 28(1)
Omit "WEA", substitute "The Secretary".
48 Subsections 28(2) and (4)
Omit "WEA" (wherever occurring), substitute "the Secretary".
49 Divisions 2 and 3 of Part 3
Repeal the Divisions, substitute:
Division 2 -- ACCC may obtain information and documents etc.
29 ACCC may obtain information and documents etc.
For the purposes of this Act, section 155 of the Competition and Consumer Act 2010 applies as if compliance with paragraphs 9(1)(c) and 9(3)(b) of this Act were a matter referred to in subsection 155(1) of the Competition and Consumer Act 2010 .
50 Subsection 57(2)
Repeal the subsection.
51 Paragraph 59(b)
Repeal the paragraph.
52 Paragraph 60(c)
Omit "staff;", substitute "staff.".
53 Paragraphs 60(d) and (e)
Repeal the paragraphs.
54 Sections 67 to 72
Repeal the sections, substitute:
72 Review by the Administrative Appeals Tribunal
Applications may be made to the Administrative Appeals Tribunal for review of the following decisions of the Secretary:
(a) a decision under subsection 7(4) to determine that section 7 does not apply in relation to a specified provider and to a specified period;
(aa) a decision under subsection 7A(3) to determine that section 7A does not apply in relation to a specified provider and to a specified period;
(b) a decision under subsection 8(2) to determine that subsection 8(1) does not apply in relation to a specified person and to a specified export.
55 Subparagraph 73(a)(iii)
Omit "is given to WEA under subsection 25(2) or 29(2)", substitute "was given to WEA under subsection 25(2) or 29(2) of the old Act".
56 Subparagraph 73(a)(iv)
After "29(2)", insert "of the old Act".
57 Subparagraph 73(a)(v)
After "30(2)", insert "of the old Act".
58 Subparagraph 73(a)(vi)
After "31(1)(d)", insert "of the old Act".
59 Subsections 76(4) and (5)
Repeal the subsections, substitute:
(4) The pecuniary penalty payable under subsection (1) by a body corporate must not exceed:
(a) in the case of a contravention of subsection 8(1) or (5)--3,000 penalty units for each contravention; or
(b) in the case of a contravention of subsection 25(5) or (6)--1,500 penalty units for each contravention.
(5) The pecuniary penalty payable under subsection (1) by a person other than a body corporate must not exceed:
(a) in the case of a contravention of subsection 8(1) or (5)--600 penalty units for each contravention; or
(b) in the case of a contravention of subsection 25(5) or (6)--300 penalty units for each contravention.
60 Subsection 77(1)
Repeal the subsection, substitute:
(1) Only the Secretary may apply for a civil penalty order in relation to a contravention of any of the following provisions:
(a) subsection 8(1) or (5);
(b) subsection 25(5) or (6).
61 Subsection 86(1)
Repeal the subsection, substitute:
Scope
(1) This section applies to proceedings for a civil penalty order against a person for a contravention of any of the following provisions:
(a) subsection 8(1);
(e) subsection 25(5).
62 Section 87
Repeal the section, substitute:
Department
(1) An officer or employee of the Department may give:
(a) WEA; or
(b) Customs; or
(c) the ACCC;
information that is relevant to determining either or both of the following:
(d) whether a person is required to pass the access test in relation to a particular port terminal service;
(e) whether a person passed the access test in relation to a particular port terminal service at a particular time.
Customs
(2) A customs officer, or a member of the staff referred to in subsection 15(1) of the Customs Administration Act 1985 , may give:
(a) WEA; or
(b) the Department; or
(c) the ACCC;
information that is relevant to determining either or both of the following:
(d) whether a person is required to pass the access test in relation to a particular port terminal service;
(e) whether a person passed the access test in relation to a particular port terminal service at a particular time.
ACCC
(3) A member of the staff of the ACCC may give:
(a) WEA; or
(b) Customs; or
(c) the Department;
information that is relevant to determining either or both of the following:
(d) whether a person is required to pass the access test in relation to a particular port terminal service;
(e) whether a person passed the access test in relation to a particular port terminal service at a particular time.
Part 2 -- Consequential amendments
63 Subparagraph 136.1(1)(c)(iii) of the Criminal Code
Omit "benefit; or", substitute "benefit; and".
64 Subparagraph 136.1(1)(c)(iv) of the Criminal Code
Repeal the subparagraph.
65 Subparagraph 136.1(4)(c)(iii) of the Criminal Code
Omit "benefit; or", substitute "benefit; and".
66 Subparagraph 136.1(4)(c)(iv) of the Criminal Code
Repeal the subparagraph.
67 Subsection 136.1(9) of the Criminal Code (definition of wheat export accreditation scheme )
Repeal the definition.