The Australian Competition and Consumer Commission has released a draft determination proposing to exempt Patrick Stevedoring Pty Ltd from having to comply with Parts 3 to 6 of the Port Terminal Access (Bulk Wheat) Code of Conduct in relation to its facilities at Berth 29, Port Adelaide.
“The ACCC’s preliminary view is that Patrick will face sufficient competitive constraint to warrant granting it an exemption from certain parts of the Code when providing services at its Port Adelaide facility,” ACCC Commissioner Cifuentes said.
The ACCC’s preliminary assessment is that Viterra is the dominant provider of bulk wheat port terminal services in SA, especially given Viterra’s extensive upcountry network. The ACCC considers that, in the absence of full regulation under the Code, Patrick will continue to face strong competition for bulk wheat volumes from Viterra’s terminals.
If the ACCC makes a final determination to exempt Patrick in relation to its Port Adelaide facility, the ACCC will undertake monitoring of the bulk wheat terminals and the level of competition in SA. The ACCC has taken a similar approach following exemption determinations regarding port terminals in other port zones.
The ACCC’s draft determination in relation to the Patrick operation at Port Adelaide is set out in its draft determination document.
The ACCC invites submissions from interested parties on its draft determination. The closing date for submissions is Thursday 10 March 2016.
Background
The Code, which commenced on 30 September 2014, regulates bulk wheat port terminal service providers to ensure that exporters have fair and transparent access to terminal facilities. Where appropriate, the ACCC may reduce regulation at a specific port terminal by exempting the relevant port terminal service provider from certain provisions of the Code.
If the ACCC makes a final determination to grant an exemption to Patrick in relation to its Port Adelaide facility, Patrick will not be subject to a number of the Code’s provisions at this port. These include obligations to provide non-discriminatory access, resolve access disputes through prescribed processes, get ACCC approval for capacity allocation systems and publish certain information.
Exempt service providers are still obliged to deal with exporters in good faith and publish information about how capacity is allocated and the current state of the shipping stem. Exempt service providers must also comply with general competition law.