Part 1
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Commonwealth act
This Act has been repealed and is no longer in force. It is retained for historical reference.
This law governs bulk (loose) wheat exports by requiring port terminal operators who export—or are linked to exporters—to pass an “access test” so competitors can use their facilities. Passing means either an ACCC undertaking or an approved state/territory access regime, plus continuous public disclosure of ship and shipment details.
If the test is failed within 12 months, exports via that terminal are blocked, with seizure and heavy fines possible. The Act also grants information powers, can override some state laws, and funds industry programs.
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Direct links to the current provisions in Wheat Export Marketing Act 2008.
This Act may be cited as the Wheat Export Marketing Act 2008.
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
<table cellspacing="0" cellpadding="0" style="width:355.55pt; border-collapse:collapse"><thead><tr><td colspan="3" style="width:344.85pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Commencement information</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Column 1</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Column 2</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Column 3</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Provision(s)</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Commencement</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Date/Details</span></p></td></tr></thead><tbody><tr><td style="width:74.35pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>1.</span><span> </span><span>Sections</span><span> </span><span>1 and 2 and anything in this Act not elsewhere covered by this table</span></p></td><td style="width:180.7pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>The day on which this Act receives the Royal Assent.</span></p></td><td style="width:68.4pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>30</span><span> </span><span>June 2008</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>2.</span><span> </span><span>Sections</span><span> </span><span>3 to 90</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>1</span><span> </span><span>July 2008.</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>1</span><span> </span><span>July 2008</span></p></td></tr></tbody></table>
Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
The objects of this Act are as follows: (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 (b) to provide a regulatory framework in relation to participants in the bulk wheat export marketing industry.
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.
In this Act:
ACCC means the Australian Competition and Consumer Commission.
access test has the meaning given by section 9.
access undertaking has the same meaning as in Part IIIA of the Competition and Consumer Act 2010.
associated entity has the same meaning as in the Corporations Act 2001.
civil penalty order means an order under subsection 76(1).
civil penalty provision means a provision declared by this Act to be a civil penalty provision.
continuous disclosure rules has the meaning given by subsection 9(4).
customs officer means:
(a) the Chief Executive Officer of Customs; or
(b) an officer of customs within the meaning of the Customs Act 1901.
evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
Federal Court means the Federal Court of Australia.
port terminal facility means a ship loader that is:
(a) at a port; and
(b) capable of handling wheat in bulk;
and includes any of the following facilities: (c) an intake/receival facility; (d) a grain storage facility; (e) a weighing facility; (f) a shipping belt; that is: (g) at the port; and (h) associated with the ship loader; and (i) capable of dealing with wheat in bulk.
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.
provider, in relation to a port terminal service, means the entity that is the owner or operator of the port terminal facility that is used (or is to be used) to provide the service.
Secretary means the Secretary of the Department.
WEA means Wheat Exports Australia.
An Act relating to the export of wheat, and for other purposes
This Act may be cited as the Wheat Export Marketing Act 2008.
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
<table cellspacing="0" cellpadding="0" style="width:355.55pt; border-collapse:collapse"><thead><tr><td colspan="3" style="width:344.85pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Commencement information</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Column 1</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Column 2</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Column 3</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Provision(s)</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Commencement</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Date/Details</span></p></td></tr></thead><tbody><tr><td style="width:74.35pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>1.</span><span> </span><span>Sections</span><span> </span><span>1 and 2 and anything in this Act not elsewhere covered by this table</span></p></td><td style="width:180.7pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>The day on which this Act receives the Royal Assent.</span></p></td><td style="width:68.4pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>30</span><span> </span><span>June 2008</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>2.</span><span> </span><span>Sections</span><span> </span><span>3 to 90</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>1</span><span> </span><span>July 2008.</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>1</span><span> </span><span>July 2008</span></p></td></tr></tbody></table>
Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
The objects of this Act are as follows: (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 (b) to provide a regulatory framework in relation to participants in the bulk wheat export marketing industry.
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.
In this Act:
ACCC means the Australian Competition and Consumer Commission.
access test has the meaning given by section 9.
access undertaking has the same meaning as in Part IIIA of the Competition and Consumer Act 2010.
associated entity has the same meaning as in the Corporations Act 2001.
civil penalty order means an order under subsection 76(1).
civil penalty provision means a provision declared by this Act to be a civil penalty provision.
continuous disclosure rules has the meaning given by subsection 9(4).
customs officer means:
(a) the Chief Executive Officer of Customs; or
(b) an officer of customs within the meaning of the Customs Act 1901.
evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
Federal Court means the Federal Court of Australia.
port terminal facility means a ship loader that is:
(a) at a port; and
(b) capable of handling wheat in bulk;
and includes any of the following facilities: (c) an intake/receival facility; (d) a grain storage facility; (e) a weighing facility; (f) a shipping belt; that is: (g) at the port; and (h) associated with the ship loader; and (i) capable of dealing with wheat in bulk.
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.
provider, in relation to a port terminal service, means the entity that is the owner or operator of the port terminal facility that is used (or is to be used) to provide the service.
Secretary means the Secretary of the Department.
WEA means Wheat Exports Australia.
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.
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.
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.
(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.
(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.
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. Requirement (2) The Secretary may, by written notice given to the person, require the person: (a) to give to the Secretary, within the period and in the manner and form specified in the notice, any such information; or (b) to produce to the Secretary, within the period and in the manner specified in the notice, any such documents. (3) A period specified under subsection (2) must not be shorter than 14 days after the notice is given. Compliance (5) A person must comply with a requirement under subsection (2). Ancillary contraventions (6) A person must not: (a) aid, abet, counsel or procure a contravention of subsection (5); or (b) induce, whether by threats or promises or otherwise, a contravention of subsection (5); or (c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (5); or (d) conspire with others to effect a contravention of subsection (5). Civil penalty provisions (7) Subsections (5) and (6) are civil penalty provisions.
Note: Part 8 provides for pecuniary penalties for breaches of civil penalty provisions.
The Secretary may: (a) inspect a document produced under subsection 25(2); and (b) make and retain copies of, or take and retain extracts from, such a document.
(1) The Secretary may take, and retain for as long as is necessary, possession of a document produced under subsection 25(2). (2) The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the Secretary to be a true copy. (3) The certified copy must be received in all courts and tribunals as evidence as if it were the original. (4) Until a certified copy is supplied, the Secretary must, at such times and places as the Secretary thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect and make copies of, or take extracts from, the document.
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.
(1) The Wheat Exports Australia Special Account that was, immediately before the commencement of this subsection, in existence under this Act, is continued in existence as the Wheat Industry Special Account. (2) The Wheat Industry Special Account is a special account for the purposes of the Public Governance, Performance and Accountability Act 2013.
There must be credited to the Wheat Industry Special Account amounts equal to amounts received for the purpose of the Wheat Industry Special Account.
Note: An Appropriation Act may contain a provision to the effect that, if any of the purposes of a special account is a purpose that is covered by an item in the Appropriation Act (whether or not the item expressly refers to the special account), then amounts may be debited against the appropriation for that item and credited to that special account.
The purpose of the Wheat Industry Special Account is funding a measure or program, if the following conditions are satisfied: (a) the purpose of the measure or program is to assist the wheat export industry, or a sector of that industry; (b) the Minister has approved the funding.
Note: See section 80 of the Public Governance, Performance and Accountability Act 2013 (which deals with special accounts).
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.
The following is a simplified outline of this Part:
• Pecuniary penalties are payable for contraventions of civil penalty provisions.
(1) If the Federal Court is satisfied that a person has contravened a civil penalty provision, the Federal Court may order the person to pay the Commonwealth a pecuniary penalty. (2) An order under subsection (1) is to be known as a civil penalty order. Determining amount of pecuniary penalty (3) In determining the pecuniary penalty, the Federal Court must have regard to all relevant matters, including: (a) the nature and extent of the contravention; and (b) the nature and extent of any loss or damage suffered as a result of the contravention; and (c) the circumstances in which the contravention took place; and (d) whether the person has previously been found by a court in proceedings under this Act or the Customs Act 1901 to have engaged in any similar conduct. (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. Civil enforcement of penalty (6) A pecuniary penalty is a civil debt payable to the Commonwealth. The Commonwealth may enforce the civil penalty order as if it were an order made in civil proceedings against the person to recover a debt due by the person. The debt arising from the order is taken to be a judgment debt.
(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). (2) Subsection (1) does not exclude the operation of the Director of Public Prosecutions Act 1983.
The Federal Court may direct that 2 or more proceedings for civil penalty orders are to be heard together.
Proceedings for a civil penalty order may be started no later than 6 years after the contravention.
The Federal Court must apply the rules of evidence and procedure for civil matters when hearing proceedings for a civil penalty order.
The Federal Court must not make a civil penalty order against a person for a contravention of a civil penalty provision if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.
(1) Proceedings for a civil penalty order against a person for a contravention of a civil penalty provision are stayed if: (a) criminal proceedings are started or have already been started against the person for an offence; and (b) the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention. (2) The proceedings for the order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings for the order are dismissed.
Criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a contravention of a civil penalty provision regardless of whether a civil penalty order has been made against the person.
Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if: (a) the individual previously gave the evidence or produced the documents in proceedings for a civil penalty order against the individual for a contravention of a civil penalty provision (whether or not the order was made); and (b) the conduct alleged to constitute the offence is substantially the same as the conduct that was claimed to constitute the contravention. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence given by the individual in the proceedings for the civil penalty order.
(1) A person is not liable to have a civil penalty order made against the person for a contravention of a civil penalty provision if: (a) at or before the time of the conduct constituting the contravention, the person: (i) considered whether or not facts existed; and (ii) was under a mistaken but reasonable belief about those facts; and (b) had those facts existed, the conduct would not have constituted a contravention of the civil penalty provision. (2) For the purposes of subsection (1), a person may be regarded as having considered whether or not facts existed if: (a) the person had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and (b) the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion. (3) A person who wishes to rely on subsection (1) or (2) in proceedings for a civil penalty order bears an evidential burden in relation to that matter.
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). State of mind (2) In the proceedings, it is not necessary to prove: (a) the person’s intention; or (b) the person’s knowledge; or (c) the person’s recklessness; or (d) the person’s negligence; or (e) any other state of mind of the person. (3) Subsection (2) does not affect the operation of section 85.
(1) In this section:
corporation means a trading corporation formed within the limits of the Commonwealth.
sale contract means a contract for the sale of grain or for the growing of grain and the sale of the grain, being a contract to which a corporation is a party and which is entered into by a corporation in the course of, or for the purposes of:
(a) the export of the grain; or
(b) trade and commerce:
(i) among the States; or
(ii) between a State and a Territory or between Territories; or
(iii) within a Territory.
service contract means a contract, agreement or arrangement for the storage, handling or transport of grain for a corporation, being a contract to which a corporation is a party and which is entered into by the corporation in the course of, or for the purposes of:
(a) the export of the grain; or
(b) trade and commerce:
(i) among the States; or
(ii) between a State and a Territory or between Territories; or
(iii) within a Territory.
State or Territory enactment means:
(a) a State Act; or
(b) an enactment of a Territory; or
(c) an instrument made or issued under such an Act or enactment.
(2) A sale contract or a service contract is not rendered unlawful or unenforceable by any prescribed State or Territory enactment. (3) A party to a sale contract or a service contract does not incur any liability, penalty or forfeiture under a prescribed State or Territory enactment by virtue only of having entered into the contract. (4) Nothing in any prescribed State or Territory enactment operates to prevent a party to a sale contract or a service contract discharging obligations under the contract according to the terms of the contract. (5) In the case of a sale contract, nothing in any prescribed State or Territory enactment operates to prevent the property in the grain passing to the purchaser according to the terms of the contract. (6) A person who, under a contract (including a contract of service), agreement or arrangement with a party to a sale contract or a service contract, does anything on behalf of that party in the discharge of an obligation under the sale contract or the service contract does not incur any liability, penalty or forfeiture under any prescribed State or Territory enactment by virtue only of having done that thing, and the contract, agreement or arrangement between that person and the party is not rendered unlawful or unenforceable by any prescribed State or Territory enactment. (7) A corporation does not incur any liability, penalty or forfeiture under a prescribed State or Territory enactment by virtue only of storing, handling or transporting grain for a purpose referred to in the definition of service contract in subsection (1). (8) Nothing in any prescribed State or Territory enactment prevents a corporation storing, handling or transporting grain for a purpose referred to in the definition of service contract in subsection (1). (9) A person who, under a contract (including a contract of service), agreement or arrangement with a corporation does anything for the corporation in, or in connection with, the storage, handling or transport of grain by the corporation does not incur any liability, penalty or forfeiture under any prescribed State or Territory enactment by virtue only of having done that thing, and the contract, agreement or arrangement between that person and the corporation is not rendered unlawful or unenforceable by any prescribed State or Territory enactment. (10) Nothing in any prescribed State or Territory enactment operates to prevent a party to a contract, agreement or arrangement referred to in subsection (6) or (9) discharging obligations under the contract, agreement or arrangement according to its terms. (11) Subsection (5) does not affect the rights of the holder of a security over grain for money owing. (12) Subject to subsection (13), a reference in this section to a prescribed State or Territory enactment is a reference to: (a) a State or Territory enactment declared by the regulations to be a prescribed State or Territory enactment for the purposes of this section; or (b) a State or Territory enactment included in a class of State or Territory enactments declared by the regulations to be prescribed State or Territory enactments for the purposes of this section. (13) The regulations must not prescribe a State or Territory enactment except in relation to the storage, handling and transport of grain or the marketing of wheat. (14) The regulations may provide that a State or Territory enactment, or a State or Territory enactment included in a class of State or Territory enactments, is a prescribed State or Territory enactment only to the extent, or only in the circumstances, specified in the regulations. (15) Regulations prescribing a State or Territory enactment for the purposes of this section must not be made unless the Minister has notified the Minister of the State or Territory responsible for the administration of the enactment of the subject matter of the regulations.
Department (1) An officer or employee of the Department may give: (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: (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: (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.
(1) If the operation of: (a) this Act; or (b) the wheat export accreditation scheme; would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person. (2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines. (3) In this section:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.
The Governor‑General may make regulations prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
An Act relating to the export of wheat, and for other purposes
This Act may be cited as the Wheat Export Marketing Act 2008.
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
<table cellspacing="0" cellpadding="0" style="width:355.55pt; border-collapse:collapse"><thead><tr><td colspan="3" style="width:344.85pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Commencement information</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Column 1</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Column 2</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Column 3</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Provision(s)</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Commencement</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Date/Details</span></p></td></tr></thead><tbody><tr><td style="width:74.35pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>1.</span><span> </span><span>Sections</span><span> </span><span>1 and 2 and anything in this Act not elsewhere covered by this table</span></p></td><td style="width:180.7pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>The day on which this Act receives the Royal Assent.</span></p></td><td style="width:68.4pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>30</span><span> </span><span>June 2008</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>2.</span><span> </span><span>Sections</span><span> </span><span>3 to 90</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>1</span><span> </span><span>July 2008.</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>1</span><span> </span><span>July 2008</span></p></td></tr></tbody></table>
Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
The objects of this Act are as follows: (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 (b) to provide a regulatory framework in relation to participants in the bulk wheat export marketing industry.
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.
In this Act:
ACCC means the Australian Competition and Consumer Commission.
access test has the meaning given by section 9.
access undertaking has the same meaning as in Part IIIA of the Competition and Consumer Act 2010.
associated entity has the same meaning as in the Corporations Act 2001.
civil penalty order means an order under subsection 76(1).
civil penalty provision means a provision declared by this Act to be a civil penalty provision.
continuous disclosure rules has the meaning given by subsection 9(4).
customs officer means:
(a) the Chief Executive Officer of Customs; or
(b) an officer of customs within the meaning of the Customs Act 1901.
evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
Federal Court means the Federal Court of Australia.
port terminal facility means a ship loader that is:
(a) at a port; and
(b) capable of handling wheat in bulk;
and includes any of the following facilities: (c) an intake/receival facility; (d) a grain storage facility; (e) a weighing facility; (f) a shipping belt; that is: (g) at the port; and (h) associated with the ship loader; and (i) capable of dealing with wheat in bulk.
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.
provider, in relation to a port terminal service, means the entity that is the owner or operator of the port terminal facility that is used (or is to be used) to provide the service.
Secretary means the Secretary of the Department.
WEA means Wheat Exports Australia.
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.
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.
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.
(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.
(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.
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. Requirement (2) The Secretary may, by written notice given to the person, require the person: (a) to give to the Secretary, within the period and in the manner and form specified in the notice, any such information; or (b) to produce to the Secretary, within the period and in the manner specified in the notice, any such documents. (3) A period specified under subsection (2) must not be shorter than 14 days after the notice is given. Compliance (5) A person must comply with a requirement under subsection (2). Ancillary contraventions (6) A person must not: (a) aid, abet, counsel or procure a contravention of subsection (5); or (b) induce, whether by threats or promises or otherwise, a contravention of subsection (5); or (c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (5); or (d) conspire with others to effect a contravention of subsection (5). Civil penalty provisions (7) Subsections (5) and (6) are civil penalty provisions.
Note: Part 8 provides for pecuniary penalties for breaches of civil penalty provisions.
The Secretary may: (a) inspect a document produced under subsection 25(2); and (b) make and retain copies of, or take and retain extracts from, such a document.
(1) The Secretary may take, and retain for as long as is necessary, possession of a document produced under subsection 25(2). (2) The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the Secretary to be a true copy. (3) The certified copy must be received in all courts and tribunals as evidence as if it were the original. (4) Until a certified copy is supplied, the Secretary must, at such times and places as the Secretary thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect and make copies of, or take extracts from, the document.
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.
(1) The Wheat Exports Australia Special Account that was, immediately before the commencement of this subsection, in existence under this Act, is continued in existence as the Wheat Industry Special Account. (2) The Wheat Industry Special Account is a special account for the purposes of the Public Governance, Performance and Accountability Act 2013.
There must be credited to the Wheat Industry Special Account amounts equal to amounts received for the purpose of the Wheat Industry Special Account.
Note: An Appropriation Act may contain a provision to the effect that, if any of the purposes of a special account is a purpose that is covered by an item in the Appropriation Act (whether or not the item expressly refers to the special account), then amounts may be debited against the appropriation for that item and credited to that special account.
The purpose of the Wheat Industry Special Account is funding a measure or program, if the following conditions are satisfied: (a) the purpose of the measure or program is to assist the wheat export industry, or a sector of that industry; (b) the Minister has approved the funding.
Note: See section 80 of the Public Governance, Performance and Accountability Act 2013 (which deals with special accounts).
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.
The following is a simplified outline of this Part:
• Pecuniary penalties are payable for contraventions of civil penalty provisions.
(1) If the Federal Court is satisfied that a person has contravened a civil penalty provision, the Federal Court may order the person to pay the Commonwealth a pecuniary penalty. (2) An order under subsection (1) is to be known as a civil penalty order. Determining amount of pecuniary penalty (3) In determining the pecuniary penalty, the Federal Court must have regard to all relevant matters, including: (a) the nature and extent of the contravention; and (b) the nature and extent of any loss or damage suffered as a result of the contravention; and (c) the circumstances in which the contravention took place; and (d) whether the person has previously been found by a court in proceedings under this Act or the Customs Act 1901 to have engaged in any similar conduct. (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. Civil enforcement of penalty (6) A pecuniary penalty is a civil debt payable to the Commonwealth. The Commonwealth may enforce the civil penalty order as if it were an order made in civil proceedings against the person to recover a debt due by the person. The debt arising from the order is taken to be a judgment debt.
(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). (2) Subsection (1) does not exclude the operation of the Director of Public Prosecutions Act 1983.
The Federal Court may direct that 2 or more proceedings for civil penalty orders are to be heard together.
Proceedings for a civil penalty order may be started no later than 6 years after the contravention.
The Federal Court must apply the rules of evidence and procedure for civil matters when hearing proceedings for a civil penalty order.
The Federal Court must not make a civil penalty order against a person for a contravention of a civil penalty provision if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.
(1) Proceedings for a civil penalty order against a person for a contravention of a civil penalty provision are stayed if: (a) criminal proceedings are started or have already been started against the person for an offence; and (b) the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention. (2) The proceedings for the order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings for the order are dismissed.
Criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a contravention of a civil penalty provision regardless of whether a civil penalty order has been made against the person.
Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if: (a) the individual previously gave the evidence or produced the documents in proceedings for a civil penalty order against the individual for a contravention of a civil penalty provision (whether or not the order was made); and (b) the conduct alleged to constitute the offence is substantially the same as the conduct that was claimed to constitute the contravention. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence given by the individual in the proceedings for the civil penalty order.
(1) A person is not liable to have a civil penalty order made against the person for a contravention of a civil penalty provision if: (a) at or before the time of the conduct constituting the contravention, the person: (i) considered whether or not facts existed; and (ii) was under a mistaken but reasonable belief about those facts; and (b) had those facts existed, the conduct would not have constituted a contravention of the civil penalty provision. (2) For the purposes of subsection (1), a person may be regarded as having considered whether or not facts existed if: (a) the person had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and (b) the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion. (3) A person who wishes to rely on subsection (1) or (2) in proceedings for a civil penalty order bears an evidential burden in relation to that matter.
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). State of mind (2) In the proceedings, it is not necessary to prove: (a) the person’s intention; or (b) the person’s knowledge; or (c) the person’s recklessness; or (d) the person’s negligence; or (e) any other state of mind of the person. (3) Subsection (2) does not affect the operation of section 85.
(1) In this section:
corporation means a trading corporation formed within the limits of the Commonwealth.
sale contract means a contract for the sale of grain or for the growing of grain and the sale of the grain, being a contract to which a corporation is a party and which is entered into by a corporation in the course of, or for the purposes of:
(a) the export of the grain; or
(b) trade and commerce:
(i) among the States; or
(ii) between a State and a Territory or between Territories; or
(iii) within a Territory.
service contract means a contract, agreement or arrangement for the storage, handling or transport of grain for a corporation, being a contract to which a corporation is a party and which is entered into by the corporation in the course of, or for the purposes of:
(a) the export of the grain; or
(b) trade and commerce:
(i) among the States; or
(ii) between a State and a Territory or between Territories; or
(iii) within a Territory.
State or Territory enactment means:
(a) a State Act; or
(b) an enactment of a Territory; or
(c) an instrument made or issued under such an Act or enactment.
(2) A sale contract or a service contract is not rendered unlawful or unenforceable by any prescribed State or Territory enactment. (3) A party to a sale contract or a service contract does not incur any liability, penalty or forfeiture under a prescribed State or Territory enactment by virtue only of having entered into the contract. (4) Nothing in any prescribed State or Territory enactment operates to prevent a party to a sale contract or a service contract discharging obligations under the contract according to the terms of the contract. (5) In the case of a sale contract, nothing in any prescribed State or Territory enactment operates to prevent the property in the grain passing to the purchaser according to the terms of the contract. (6) A person who, under a contract (including a contract of service), agreement or arrangement with a party to a sale contract or a service contract, does anything on behalf of that party in the discharge of an obligation under the sale contract or the service contract does not incur any liability, penalty or forfeiture under any prescribed State or Territory enactment by virtue only of having done that thing, and the contract, agreement or arrangement between that person and the party is not rendered unlawful or unenforceable by any prescribed State or Territory enactment. (7) A corporation does not incur any liability, penalty or forfeiture under a prescribed State or Territory enactment by virtue only of storing, handling or transporting grain for a purpose referred to in the definition of service contract in subsection (1). (8) Nothing in any prescribed State or Territory enactment prevents a corporation storing, handling or transporting grain for a purpose referred to in the definition of service contract in subsection (1). (9) A person who, under a contract (including a contract of service), agreement or arrangement with a corporation does anything for the corporation in, or in connection with, the storage, handling or transport of grain by the corporation does not incur any liability, penalty or forfeiture under any prescribed State or Territory enactment by virtue only of having done that thing, and the contract, agreement or arrangement between that person and the corporation is not rendered unlawful or unenforceable by any prescribed State or Territory enactment. (10) Nothing in any prescribed State or Territory enactment operates to prevent a party to a contract, agreement or arrangement referred to in subsection (6) or (9) discharging obligations under the contract, agreement or arrangement according to its terms. (11) Subsection (5) does not affect the rights of the holder of a security over grain for money owing. (12) Subject to subsection (13), a reference in this section to a prescribed State or Territory enactment is a reference to: (a) a State or Territory enactment declared by the regulations to be a prescribed State or Territory enactment for the purposes of this section; or (b) a State or Territory enactment included in a class of State or Territory enactments declared by the regulations to be prescribed State or Territory enactments for the purposes of this section. (13) The regulations must not prescribe a State or Territory enactment except in relation to the storage, handling and transport of grain or the marketing of wheat. (14) The regulations may provide that a State or Territory enactment, or a State or Territory enactment included in a class of State or Territory enactments, is a prescribed State or Territory enactment only to the extent, or only in the circumstances, specified in the regulations. (15) Regulations prescribing a State or Territory enactment for the purposes of this section must not be made unless the Minister has notified the Minister of the State or Territory responsible for the administration of the enactment of the subject matter of the regulations.
Department (1) An officer or employee of the Department may give: (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: (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: (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.
(1) If the operation of: (a) this Act; or (b) the wheat export accreditation scheme; would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person. (2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines. (3) In this section:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.
The Governor‑General may make regulations prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
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.
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.
An Act relating to the export of wheat, and for other purposes
This Act may be cited as the Wheat Export Marketing Act 2008.
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
<table cellspacing="0" cellpadding="0" style="width:355.55pt; border-collapse:collapse"><thead><tr><td colspan="3" style="width:344.85pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Commencement information</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Column 1</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Column 2</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Column 3</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Provision(s)</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Commencement</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Date/Details</span></p></td></tr></thead><tbody><tr><td style="width:74.35pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>1.</span><span> </span><span>Sections</span><span> </span><span>1 and 2 and anything in this Act not elsewhere covered by this table</span></p></td><td style="width:180.7pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>The day on which this Act receives the Royal Assent.</span></p></td><td style="width:68.4pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>30</span><span> </span><span>June 2008</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>2.</span><span> </span><span>Sections</span><span> </span><span>3 to 90</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>1</span><span> </span><span>July 2008.</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>1</span><span> </span><span>July 2008</span></p></td></tr></tbody></table>
Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
The objects of this Act are as follows: (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 (b) to provide a regulatory framework in relation to participants in the bulk wheat export marketing industry.
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.
In this Act:
ACCC means the Australian Competition and Consumer Commission.
access test has the meaning given by section 9.
access undertaking has the same meaning as in Part IIIA of the Competition and Consumer Act 2010.
associated entity has the same meaning as in the Corporations Act 2001.
civil penalty order means an order under subsection 76(1).
civil penalty provision means a provision declared by this Act to be a civil penalty provision.
continuous disclosure rules has the meaning given by subsection 9(4).
customs officer means:
(a) the Chief Executive Officer of Customs; or
(b) an officer of customs within the meaning of the Customs Act 1901.
evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
Federal Court means the Federal Court of Australia.
port terminal facility means a ship loader that is:
(a) at a port; and
(b) capable of handling wheat in bulk;
and includes any of the following facilities: (c) an intake/receival facility; (d) a grain storage facility; (e) a weighing facility; (f) a shipping belt; that is: (g) at the port; and (h) associated with the ship loader; and (i) capable of dealing with wheat in bulk.
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.
provider, in relation to a port terminal service, means the entity that is the owner or operator of the port terminal facility that is used (or is to be used) to provide the service.
Secretary means the Secretary of the Department.
WEA means Wheat Exports Australia.
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.
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.
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.
(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.
(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.
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. Requirement (2) The Secretary may, by written notice given to the person, require the person: (a) to give to the Secretary, within the period and in the manner and form specified in the notice, any such information; or (b) to produce to the Secretary, within the period and in the manner specified in the notice, any such documents. (3) A period specified under subsection (2) must not be shorter than 14 days after the notice is given. Compliance (5) A person must comply with a requirement under subsection (2). Ancillary contraventions (6) A person must not: (a) aid, abet, counsel or procure a contravention of subsection (5); or (b) induce, whether by threats or promises or otherwise, a contravention of subsection (5); or (c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (5); or (d) conspire with others to effect a contravention of subsection (5). Civil penalty provisions (7) Subsections (5) and (6) are civil penalty provisions.
Note: Part 8 provides for pecuniary penalties for breaches of civil penalty provisions.
The Secretary may: (a) inspect a document produced under subsection 25(2); and (b) make and retain copies of, or take and retain extracts from, such a document.
(1) The Secretary may take, and retain for as long as is necessary, possession of a document produced under subsection 25(2). (2) The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the Secretary to be a true copy. (3) The certified copy must be received in all courts and tribunals as evidence as if it were the original. (4) Until a certified copy is supplied, the Secretary must, at such times and places as the Secretary thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect and make copies of, or take extracts from, the document.
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.
(1) The Wheat Exports Australia Special Account that was, immediately before the commencement of this subsection, in existence under this Act, is continued in existence as the Wheat Industry Special Account. (2) The Wheat Industry Special Account is a special account for the purposes of the Public Governance, Performance and Accountability Act 2013.
There must be credited to the Wheat Industry Special Account amounts equal to amounts received for the purpose of the Wheat Industry Special Account.
Note: An Appropriation Act may contain a provision to the effect that, if any of the purposes of a special account is a purpose that is covered by an item in the Appropriation Act (whether or not the item expressly refers to the special account), then amounts may be debited against the appropriation for that item and credited to that special account.
The purpose of the Wheat Industry Special Account is funding a measure or program, if the following conditions are satisfied: (a) the purpose of the measure or program is to assist the wheat export industry, or a sector of that industry; (b) the Minister has approved the funding.
Note: See section 80 of the Public Governance, Performance and Accountability Act 2013 (which deals with special accounts).
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.
The following is a simplified outline of this Part:
• Pecuniary penalties are payable for contraventions of civil penalty provisions.
(1) If the Federal Court is satisfied that a person has contravened a civil penalty provision, the Federal Court may order the person to pay the Commonwealth a pecuniary penalty. (2) An order under subsection (1) is to be known as a civil penalty order. Determining amount of pecuniary penalty (3) In determining the pecuniary penalty, the Federal Court must have regard to all relevant matters, including: (a) the nature and extent of the contravention; and (b) the nature and extent of any loss or damage suffered as a result of the contravention; and (c) the circumstances in which the contravention took place; and (d) whether the person has previously been found by a court in proceedings under this Act or the Customs Act 1901 to have engaged in any similar conduct. (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. Civil enforcement of penalty (6) A pecuniary penalty is a civil debt payable to the Commonwealth. The Commonwealth may enforce the civil penalty order as if it were an order made in civil proceedings against the person to recover a debt due by the person. The debt arising from the order is taken to be a judgment debt.
(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). (2) Subsection (1) does not exclude the operation of the Director of Public Prosecutions Act 1983.
The Federal Court may direct that 2 or more proceedings for civil penalty orders are to be heard together.
Proceedings for a civil penalty order may be started no later than 6 years after the contravention.
The Federal Court must apply the rules of evidence and procedure for civil matters when hearing proceedings for a civil penalty order.
The Federal Court must not make a civil penalty order against a person for a contravention of a civil penalty provision if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.
(1) Proceedings for a civil penalty order against a person for a contravention of a civil penalty provision are stayed if: (a) criminal proceedings are started or have already been started against the person for an offence; and (b) the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention. (2) The proceedings for the order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings for the order are dismissed.
Criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a contravention of a civil penalty provision regardless of whether a civil penalty order has been made against the person.
Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if: (a) the individual previously gave the evidence or produced the documents in proceedings for a civil penalty order against the individual for a contravention of a civil penalty provision (whether or not the order was made); and (b) the conduct alleged to constitute the offence is substantially the same as the conduct that was claimed to constitute the contravention. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence given by the individual in the proceedings for the civil penalty order.
(1) A person is not liable to have a civil penalty order made against the person for a contravention of a civil penalty provision if: (a) at or before the time of the conduct constituting the contravention, the person: (i) considered whether or not facts existed; and (ii) was under a mistaken but reasonable belief about those facts; and (b) had those facts existed, the conduct would not have constituted a contravention of the civil penalty provision. (2) For the purposes of subsection (1), a person may be regarded as having considered whether or not facts existed if: (a) the person had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and (b) the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion. (3) A person who wishes to rely on subsection (1) or (2) in proceedings for a civil penalty order bears an evidential burden in relation to that matter.
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). State of mind (2) In the proceedings, it is not necessary to prove: (a) the person’s intention; or (b) the person’s knowledge; or (c) the person’s recklessness; or (d) the person’s negligence; or (e) any other state of mind of the person. (3) Subsection (2) does not affect the operation of section 85.
(1) In this section:
corporation means a trading corporation formed within the limits of the Commonwealth.
sale contract means a contract for the sale of grain or for the growing of grain and the sale of the grain, being a contract to which a corporation is a party and which is entered into by a corporation in the course of, or for the purposes of:
(a) the export of the grain; or
(b) trade and commerce:
(i) among the States; or
(ii) between a State and a Territory or between Territories; or
(iii) within a Territory.
service contract means a contract, agreement or arrangement for the storage, handling or transport of grain for a corporation, being a contract to which a corporation is a party and which is entered into by the corporation in the course of, or for the purposes of:
(a) the export of the grain; or
(b) trade and commerce:
(i) among the States; or
(ii) between a State and a Territory or between Territories; or
(iii) within a Territory.
State or Territory enactment means:
(a) a State Act; or
(b) an enactment of a Territory; or
(c) an instrument made or issued under such an Act or enactment.
(2) A sale contract or a service contract is not rendered unlawful or unenforceable by any prescribed State or Territory enactment. (3) A party to a sale contract or a service contract does not incur any liability, penalty or forfeiture under a prescribed State or Territory enactment by virtue only of having entered into the contract. (4) Nothing in any prescribed State or Territory enactment operates to prevent a party to a sale contract or a service contract discharging obligations under the contract according to the terms of the contract. (5) In the case of a sale contract, nothing in any prescribed State or Territory enactment operates to prevent the property in the grain passing to the purchaser according to the terms of the contract. (6) A person who, under a contract (including a contract of service), agreement or arrangement with a party to a sale contract or a service contract, does anything on behalf of that party in the discharge of an obligation under the sale contract or the service contract does not incur any liability, penalty or forfeiture under any prescribed State or Territory enactment by virtue only of having done that thing, and the contract, agreement or arrangement between that person and the party is not rendered unlawful or unenforceable by any prescribed State or Territory enactment. (7) A corporation does not incur any liability, penalty or forfeiture under a prescribed State or Territory enactment by virtue only of storing, handling or transporting grain for a purpose referred to in the definition of service contract in subsection (1). (8) Nothing in any prescribed State or Territory enactment prevents a corporation storing, handling or transporting grain for a purpose referred to in the definition of service contract in subsection (1). (9) A person who, under a contract (including a contract of service), agreement or arrangement with a corporation does anything for the corporation in, or in connection with, the storage, handling or transport of grain by the corporation does not incur any liability, penalty or forfeiture under any prescribed State or Territory enactment by virtue only of having done that thing, and the contract, agreement or arrangement between that person and the corporation is not rendered unlawful or unenforceable by any prescribed State or Territory enactment. (10) Nothing in any prescribed State or Territory enactment operates to prevent a party to a contract, agreement or arrangement referred to in subsection (6) or (9) discharging obligations under the contract, agreement or arrangement according to its terms. (11) Subsection (5) does not affect the rights of the holder of a security over grain for money owing. (12) Subject to subsection (13), a reference in this section to a prescribed State or Territory enactment is a reference to: (a) a State or Territory enactment declared by the regulations to be a prescribed State or Territory enactment for the purposes of this section; or (b) a State or Territory enactment included in a class of State or Territory enactments declared by the regulations to be prescribed State or Territory enactments for the purposes of this section. (13) The regulations must not prescribe a State or Territory enactment except in relation to the storage, handling and transport of grain or the marketing of wheat. (14) The regulations may provide that a State or Territory enactment, or a State or Territory enactment included in a class of State or Territory enactments, is a prescribed State or Territory enactment only to the extent, or only in the circumstances, specified in the regulations. (15) Regulations prescribing a State or Territory enactment for the purposes of this section must not be made unless the Minister has notified the Minister of the State or Territory responsible for the administration of the enactment of the subject matter of the regulations.
Department (1) An officer or employee of the Department may give: (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: (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: (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.
(1) If the operation of: (a) this Act; or (b) the wheat export accreditation scheme; would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person. (2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines. (3) In this section:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.
The Governor‑General may make regulations prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this 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.
Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
This Act may be cited as the Wheat Export Marketing Act 2008.
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
<table cellspacing="0" cellpadding="0" style="width:355.55pt; border-collapse:collapse"><thead><tr><td colspan="3" style="width:344.85pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Commencement information</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Column 1</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Column 2</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Column 3</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Provision(s)</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Commencement</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Date/Details</span></p></td></tr></thead><tbody><tr><td style="width:74.35pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>1.</span><span> </span><span>Sections</span><span> </span><span>1 and 2 and anything in this Act not elsewhere covered by this table</span></p></td><td style="width:180.7pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>The day on which this Act receives the Royal Assent.</span></p></td><td style="width:68.4pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>30</span><span> </span><span>June 2008</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>2.</span><span> </span><span>Sections</span><span> </span><span>3 to 90</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>1</span><span> </span><span>July 2008.</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>1</span><span> </span><span>July 2008</span></p></td></tr></tbody></table>
Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
The objects of this Act are as follows: (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 (b) to provide a regulatory framework in relation to participants in the bulk wheat export marketing industry.
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.
In this Act:
ACCC means the Australian Competition and Consumer Commission.
access test has the meaning given by section 9.
access undertaking has the same meaning as in Part IIIA of the Competition and Consumer Act 2010.
associated entity has the same meaning as in the Corporations Act 2001.
civil penalty order means an order under subsection 76(1).
civil penalty provision means a provision declared by this Act to be a civil penalty provision.
continuous disclosure rules has the meaning given by subsection 9(4).
customs officer means:
(a) the Chief Executive Officer of Customs; or
(b) an officer of customs within the meaning of the Customs Act 1901.
evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
Federal Court means the Federal Court of Australia.
port terminal facility means a ship loader that is:
(a) at a port; and
(b) capable of handling wheat in bulk;
and includes any of the following facilities: (c) an intake/receival facility; (d) a grain storage facility; (e) a weighing facility; (f) a shipping belt; that is: (g) at the port; and (h) associated with the ship loader; and (i) capable of dealing with wheat in bulk.
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.
provider, in relation to a port terminal service, means the entity that is the owner or operator of the port terminal facility that is used (or is to be used) to provide the service.
Secretary means the Secretary of the Department.
WEA means Wheat Exports Australia.
An Act relating to the export of wheat, and for other purposes
This Act may be cited as the Wheat Export Marketing Act 2008.
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
<table cellspacing="0" cellpadding="0" style="width:355.55pt; border-collapse:collapse"><thead><tr><td colspan="3" style="width:344.85pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Commencement information</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Column 1</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Column 2</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Column 3</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Provision(s)</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Commencement</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Date/Details</span></p></td></tr></thead><tbody><tr><td style="width:74.35pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>1.</span><span> </span><span>Sections</span><span> </span><span>1 and 2 and anything in this Act not elsewhere covered by this table</span></p></td><td style="width:180.7pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>The day on which this Act receives the Royal Assent.</span></p></td><td style="width:68.4pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>30</span><span> </span><span>June 2008</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>2.</span><span> </span><span>Sections</span><span> </span><span>3 to 90</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>1</span><span> </span><span>July 2008.</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>1</span><span> </span><span>July 2008</span></p></td></tr></tbody></table>
Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
The objects of this Act are as follows: (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 (b) to provide a regulatory framework in relation to participants in the bulk wheat export marketing industry.
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.
In this Act:
ACCC means the Australian Competition and Consumer Commission.
access test has the meaning given by section 9.
access undertaking has the same meaning as in Part IIIA of the Competition and Consumer Act 2010.
associated entity has the same meaning as in the Corporations Act 2001.
civil penalty order means an order under subsection 76(1).
civil penalty provision means a provision declared by this Act to be a civil penalty provision.
continuous disclosure rules has the meaning given by subsection 9(4).
customs officer means:
(a) the Chief Executive Officer of Customs; or
(b) an officer of customs within the meaning of the Customs Act 1901.
evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
Federal Court means the Federal Court of Australia.
port terminal facility means a ship loader that is:
(a) at a port; and
(b) capable of handling wheat in bulk;
and includes any of the following facilities: (c) an intake/receival facility; (d) a grain storage facility; (e) a weighing facility; (f) a shipping belt; that is: (g) at the port; and (h) associated with the ship loader; and (i) capable of dealing with wheat in bulk.
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.
provider, in relation to a port terminal service, means the entity that is the owner or operator of the port terminal facility that is used (or is to be used) to provide the service.
Secretary means the Secretary of the Department.
WEA means Wheat Exports Australia.
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 t
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