Conduct of the inquiry
On 22 March 2012, the Senate referred the provisions of the Wheat Export
Marketing Amendment Bill 2012 (the bill) to the Senate Rural and Regional
Affairs and Transport Legislation Committee (the committee) for inquiry and
report by 18 June 2012.
The reason given for the referral of the bill through the Senate
Selection of Bills Committee was to address the concerns of stakeholders.
In accordance with usual practice, the committee advertised the inquiry
on its website and in The Australian. In addition, the committee wrote
to relevant organisations inviting submissions. The committee received 18
submissions, of which one was a supplementary submission (see Appendix 1).
A public hearing for the inquiry was held on 14 May 2012 in Canberra. A
list of witnesses who appeared at the hearing can be found at Appendix 2. A
copy of the Hansard transcript is available on the internet at the committee
The committee would like to thank the organisations that made
submissions to the inquiry and the representatives who gave evidence at the
House of Representatives inquiry
The bill was also referred to the House of Representatives Standing
Committee on Agriculture, Resources, Fisheries and Forestry for a separate
inquiry. The House of Representatives' inquiry has no set reporting date.
Public hearings for that inquiry were held on 9 and 11 May 2012.
The committee respects the prerogative of each parliamentary chamber to
refer for inquiry whichever bills it sees fit. However, the committee also
observes that the decision by both the Senate and the House of Representatives
to refer the Wheat Export Marketing Amendment Bill 2012 for inquiry, combined
with each committee's decision to hold public hearings on different dates, resulted
in duplication of effort. This duplication created confusion among some
witnesses as well as inconvenience for those witnesses who were invited to
attend multiple hearings.
Purpose of the bill
The bill aims to implement the Australian Government's response to the
Productivity Commission's 2010 review of wheat export marketing arrangements. If
passed, the bill will abolish the Wheat Export Accreditation Scheme (the
Scheme) and the Wheat Export Charge (WEC) on 30 September 2012, and wind up
Wheat Exports Australia (WEA) on 31 December 2012.
Background to the bill
In 2008, the Senate Standing Committee on Rural and Regional Affairs and
Transport conducted an inquiry into exposure drafts of the Wheat Export
Marketing Bill 2008 and the Wheat Export Marketing (Repeal and Consequential
Amendments) Bill 2008. The report of the inquiry was tabled in the Senate in
April that year.
Up until 2008, there was a monopoly on the export marketing of wheat in
bulk through a 'single desk'. Between 1939 and 1999 this occurred through the
Australian Wheat Board Limited (AWB), and from 1999 to 2008 it occurred through
the AWB's privatised successor, Australian Wheat Board International Limited
The purpose of the Wheat Export Marketing Bill 2008 was to establish WEA
as a statutory entity to regulate the export of bulk wheat from Australia
through a wheat export accreditation scheme. Consequential to this bill, the
Wheat Export Marketing (Repeal and Consequential Amendments) Bill 2008 was
intended to repeal the Wheat Marketing Act 1989 with consequential
amendments to six other acts and transitional provisions.
The committee reported on a number of issues that were raised by
witnesses during the 2008 inquiry. The issues included the desirability of
collective marketing, the security provided by the single desk arrangements,
and the importance of 'industry good' functions such as market development and
promotion and plant breeding.
Submitters also raised concerns that individual growers would not be able to
access market information, providing the integrated grain handling companies
with a significant advantage over other exporters.
Having considered these and other issues, the committee recommended that
the bills should proceed and be passed by the Senate. The committee also
recommended that the bills should address a number of issues raised during the
the role and operation of the proposed WEA;
exporters' access to bulk storage and infrastructure;
legislative provision for review of the legislation; and
provision of transitional education and counselling for existing
The bills that were subsequently introduced and passed by the Senate
incorporated some of the matters raised by the committee. For example, they
included a provision for review of the legislation.
Deregulation of the bulk wheat
The Wheat Export Marketing Act 2008 (the Act) and the Wheat
Export Marketing (Repeal and Consequential Amendments) Act 2008 were given
Royal Assent by the Governor General on 30 June 2008. This marked the
commencement of the deregulation of the bulk wheat export market in Australia.
By abolishing the single desk, the Government enabled wheat growers to
sell to accredited exporters of bulk wheat. The accreditation of exporters was
made the responsibility of a new Commonwealth Government agency, WEA, which
administers the Scheme. The export of bulk wheat without accreditation from WEA
was prohibited by an associated amendment to the Customs (Prohibited Exports)
The Scheme established an export accreditation system for regulating
bulk wheat exports from Australia, with exporters of bulk wheat required to be
accredited under the Scheme in order to export. WEA can issue accreditation for
up to three years. During this period the exporter may apply for a variation of
conditions. A register is maintained on the WEA website listing the name and
Australian Company Name (ACN) of each accredited exporter and their conditions
As at 21 May 2012, there were 26 exporters accredited by WEA.
The eligibility criteria considered by WEA in assessing an applicant
under the Scheme include requirements that:
the applicant is a company or co-operative and a trading
WEA is satisfied the company is 'fit and proper' in relation to
financial resources, risk management arrangements, business record, trust and
candour, experience and ability of executive officers, compliance with
applicable Australian and foreign laws, compliance with designated sanitary and
phytosanitary measures, and compliance with applicable United Nations sanctions
the applicant is not under external administration.
Where a port terminal service is provided by the applicant or associated
entities, a port terminal access undertaking must have been accepted by the Australian
Competition and Consumer Commission (ACCC) and the applicant must comply with
continuous disclosure rules.
As discussed above, 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. The test is set out in section 24 of the Act.
In late September 2009, the ACCC accepted port terminal access
undertakings from the following bulk handling companies (BHCs): CBH Group,
AusBulk Ltd (now Viterra Ltd), and GrainCorp Operations Ltd (GrainCorp).
Revised undertakings from these companies, together with an undertaking from Australian
Bulk Alliance Pty Ltd were accepted in 2011.
The Productivity Commission's
review of wheat export marketing arrangements
Under the Act, a review of the new arrangements was required to commence
by 1 January 2010. Accordingly, on 29 September 2009, the Assistant
Treasurer referred the matter to the Productivity Commission. The Commission
was required to report before 1 July 2010. The report was presented to the
minister on that date and was tabled in the Senate on 16 November 2010.
The Commission's report identified a number of key points including:
The transition to competition in the exporting of bulk wheat has
progressed relatively smoothly, particularly given difficult international
trading conditions—a pronounced commodity price cycle, the global financial
crisis, and exchange rate appreciation.
The regulatory arrangements for marketing bulk wheat exports have
been beneficial during the transitional phase since deregulation. They have
given growers confidence in adjusting to deregulation and facilitated the rapid
entry of 28 accredited traders, with 12 million tonnes exported to 41 countries
in the first year after deregulation.
A range of marketing options have become available since
deregulation. However, some growers prefer the previous single desk
The benefits of accreditation of traders will rapidly diminish in
the post-transitional phase, leaving only the costs. The accreditation scheme, WEA
and the WEC should be abolished on 30 September 2011.
The port terminal access test has provided greater certainty for
traders and made access easier, timelier and less costly than it could have
been by relying on potential declaration under Part IIIA of the Trade
Practices Act 1974.
There are still some transitional issues associated with port access
and contestability in the logistics supply chain. The access test accordingly
should remain a condition for port operators to export bulk wheat until
30 September 2014.
The benefits of the access test will diminish and could become
costly in the long term without the checks and balances of Part IIIA of the Trade
Practices Act 1974. From 1 October 2014, regulated access should rely
on Part IIIA, with continuation of mandatory disclosure, supplemented by a
voluntary code of conduct by all port terminal services operators.
There is evidence that increasing on-farm storage, and
competition between road and rail, are leading to improvements in supply chain
efficiency. However, it is important that the regulatory arrangements enhance
efficiency in the transport and storage market by facilitating contestability.
The Commission supports the decision by the ACCC to review the
exclusive dealing notification in relation to Grain Express in Western
The level and allocation of investment in road and rail
infrastructure by governments should be based on rigorous cost-benefit
analysis, with a focus on developing economically and socially efficient
Monthly information by state on stocks, exports and domestic uses
facilitates an efficient wheat market. Industry should consider funding its
The provision of most other 'industry good' functions is best
left to the industry.
The recommendations contained in the Productivity Commission's report
can be found at Appendix 3.
Government response to the
Productivity Commission's report
The Government responded to the Productivity Commission's
recommendations on wheat export marketing arrangements on 23 September 2011.
The Government agreed in principle with the Productivity Commission's
recommendations to abolish the Scheme, WEA and the WEC on 30 September
2011, and remove the access test requirements for grain port terminal
operations on 30 September 2014.
However, while expressing in principle support for these
recommendations, the Government was of the view that 'the supply chain is not
yet of a structure that provides for an efficient and effective model in a
commercial environment'. The Government stated that:
... this is not surprising given that bulk wheat exports are
coming from a highly regulated environment that had been in place for more than
60 years until the changes in 2008 that introduced new arrangements that the
Commission subsequently reviewed.
The Government outlined that it would take a three stage approach since:
... [it] will be a more effective transition to full market
deregulation and will help ensure that the full advantages of the 2008 changes
The three stages outlined were:
introduction of a 'lighter touch' accreditation scheme, operating
under existing legislation from 1 October 2011 until 30 September 2012;
the accreditation scheme, WEA and the WEC will be removed from
1 October 2012, the access test will be maintained until 30 September 2014
( a voluntary code of conduct which includes continuous disclosure rules for
port terminal operators that export wheat will be developed and implemented by
30 September 2014); and
from 1 October 2014, full market deregulation, access issues
governed by general competition law and voluntary code of conduct in effect.
The Government explained that the rationale for this staged transition
In the short term, accreditation and a linked access test
provide comfort to growers and customers, while reducing the level of
investigation and compliance activities to bring these arrangements more in
line with those for other agricultural commodities.
The Government has stated that the removal of the accreditation scheme
will increase competition within the wheat marketing industry and provide
benefits to growers including:
more buyers competing for wheat will help growers to get prices
that reflect market forces;
marketers will be forced to improve the services they provide to
secure supplies of wheat and drive marketing innovation; and
after 30 September 2012, growers will no longer pay the 22 cents
per tonne wheat export charge on bulk and container exports that was used to
fund the WEA.
Inquiry into grain export networks
The conduct of this inquiry into the Wheat Export Marketing Amendment
Bill 2012 overlapped in part with an inquiry into operational issues in grain
export networks conducted by the Senate Rural and Regional Affairs and
Transport References Committee (the References Committee).
That inquiry was referred on 23 March 2011 and reported on 16 April 2012. The
terms of reference of the inquiry were directly relevant to the current inquiry:
Operational issues arising in the export grain storage,
transport, handling and shipping network, with particular reference to:
any risks of natural, virtual or other monopolies discouraging or
impeding competition in the export grain storage, transport, handling and
shipping network, and any implications for open and fair access to essential
the degree of transparency in storage and handling of grain and
the appropriateness of any consequent marketing advantages;
equitable access to the lowest cost route to market, including
competition issues arising from the redelivery of grain;
the absence of uniform receipt, testing and classification
standards and practices and any implications for growers and/or for Australia's
reputation as a quality supplier;
equitable and efficient access to the shipping stem; and
any other related matters.
The References Committee received 26 submissions and held four public
hearings. During the course of the inquiry, there were a number of developments
in the process of deregulating the bulk wheat export market. These developments
included changes to the way the BHCs do business – for example, the new access
undertakings of each BHC which were accepted by the ACCC in 2011. The Government
also provided a response to the report by the Productivity Commission (discussed
above) culminating in the introduction of a bill in the final days of the
The report into grain export networks concluded that, among other things:
there was an emerging trend towards increasing vertical
integration of supply chains;
the role of the WEA has provided a useful safeguard during
issues relating to access to wheat stocks information warranted
further exploration; and
quality assurance standards and an industry code of conduct should
be further considered.
The References Committee made the following recommendations:
The committee recommends that, in recognition of the critical
role that Wheat Exports Australia is playing in the deregulation of the
Australian bulk wheat export market, a continuing and enhanced role for Wheat
Exports Australia be further investigated in the inquiry into the Wheat Export
Marketing Amendment Bill 2012. This role may include, but not be limited to:
accreditation of exporters;
quality assurance to protect Australia's reputation as a quality
wheat exporter; and
performing the role of industry Ombudsman.
The committee recommends that a mechanism for making wheat
stockpile information available in an equitable manner to all participants in
the bulk wheat export industry be further considered in the inquiry into the
Wheat Export Marketing Amendment Bill 2012.
The committee notes that, as at the date of drafting of this report, the
Government has not provided a response to the above recommendations.
Structure of this report
The report is structured as follows:
Chapter 2 provides an overview of the bill, including the main
provisions and the bill's operational impact if it is passed;
Chapter 3 provides an overview of the Australian wheat industry,
including major trading partners and the wheat export supply chain;
Chapter 4 discusses the key issues resulting from the bill's
impact on the wheat industry, including the dissolution of WEA, a voluntary
code of conduct, and industry concerns on access to timely wheat stocks
Chapter 5 outlines the committee's conclusions and
Note on references
References to the committee Hansard are to the proof Hansard,
and as such, page numbers may vary between the proof and the official (final) Hansard
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