Port terminal access test

If an exporter, or an associated entity of an exporter, is the provider of one or more port terminal services, WEA must be satisfied that they pass the access test in order for the exporter to be eligible for accreditation.

Access test

The access test is set out in section 24 of the Act.

There are two different access tests:

one that applied to exporters applying for accreditation prior to 1 October 2009; and
one that now applies to exporters applying for accreditation on or after 1 October 2009.

Prior to 1 October 2009

In order to have passed the access test prior to 1 October 2009, an exporter applying for accreditation, or an associated entity of the exporter, needed to comply with sections 1 and 2 or 3 below.

The provider of the port terminal service (which may be the exporter or the associated entity of the exporter) is referred to below as the ‘person’.

1. The person must comply with the continuous disclosure rules in relation to the port terminal service.
The continuous disclosure rules are set out in subsection 24(4) of the Act and are as follows

The person must have the following statements on its internet site:
1. A statement of 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); and
2. A statement setting out the name of each ship scheduled to load grain using the port terminal service and the following details for each ship:
  - the time when the ship was nominated to load grain using the port terminal service;
  - the time when the ship was accepted as a ship scheduled to load grain using the port terminal service;
  - the quantity of grain to be loaded by the ship using the port terminal service; and
  - the estimated date on which grain is to be loaded by the ship using the port terminal service; and
the person must also have a policy of updating the statement mentioned in paragraph (ii) above, each business day

2. The person must publish a statement on its website relating to access terms and conditions.
The person may pass the access test if they comply with (1) and has a statement published on its website that the person is willing to provide:

accredited wheat exporters with access to the port terminal service; and
to do so on such terms and conditions set out in the statement.

3. A State or Territory access regime is in place.
The person may pass the access test if they comply with (1) and also has a State or Territory access regime in place. There must be a decision under Division 2A of Part IIIA of the Trade Practices Act 1974 in force that the regime established by the State or Territory for access to the port terminal service is an effective access regime.

Accredited wheat exporters must also have access to the port terminal service for exporting bulk wheat under that regime.

On or after 1 October 2009

In order to pass the access test on or after 1 October 2009, an exporter applying for accreditation, or an associated entity of the exporter, must comply with section 1 and 2 or 3 below.

The exporter, or the associated entity of the exporter, which is the provider of the port terminal service is referred to below as the ‘person’.

The person must have the following statements on its internet site:
1. A statement of 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); and
2. A statement setting out the name of each ship scheduled to load grain using the port terminal service and the following details for each ship:
  - the time when the ship was nominated to load grain using the port terminal service;
  - the time when the ship was accepted as a ship scheduled to load grain using the port terminal service;
  - the quantity of grain to be loaded by the ship using the port terminal service; and
  - the estimated date on which grain is to be loaded by the ship using the port terminal service; and
the person must also have a policy of updating the statement mentioned in paragraph (ii) above, each business day

2. An access undertaking is in place.
The person may pass the access test if they comply with (1) and also has an access undertaking in operation under Division 6 of Part IIIA of the Trade Practices Act 1974. The undertaking must relate to the provision of access to the port terminal service to accredited wheat exporters for purposes relating to the export of bulk wheat.

An access undertaking comes into operation at the time when the Australian Competition and Consumer Commission (ACCC) publishes its decision to accept the undertaking.

Accredited wheat exporters must also have access to the port terminal service for exporting bulk wheat under that regime.

Further information

ACCC process - port terminal access test