THE FEDERAL Government has opted to extend the Wheat Port Code for another two years, delaying its scheduled expiry on October 1.

Documents tabled by Attorney General Mark Dreyfus revealed the regulation would be retained to allow time for the Department of Agriculture, Fisheries and Forestry to conclude its review into the Code.

Commencing in 2014, the Wheat Port Code establishes an access arrangement to ensure exporters of bulk wheat have fair and transparent access to port terminal services.

It has come under criticism in recent years by organisations such as Grain Trade Australia and the Australian Competition and Consumer Commission, which argue the regulation is no longer “fit for purpose” and should be replaced by another system.

While the certificate, titled Legislation (Deferral of Sunsetting—Competition and Consumer (Industry Code—Port Terminal Access (Bulk Wheat) Regulation) Certificate 2024, extends the code’s end date, it also allows for the Federal Government to alter or remove it before October 2026.

A DAFF departmental spokesperson said the Attorney-General can issue a certificate to defer the sunsetting day of an instrument for a period of six, 12, 18 or 24 months.

“A 24-month deferral was chosen as it provides sufficient time for the Department of Agriculture, Fisheries and Forestry to finalise the review, the Government to consider the recommendations of the review, and for the Government to implement agreed outcomes from the review,” the spokesperson said.

“These outcomes could include either remaking the code in its current form, remaking the code in an amended form, or replacement of the Wheat Port Code with an alternative mechanism.

“Each of these outcomes require appropriate time to develop and implement.

“A 24-month extension was considered most appropriate as it avoids any risk of needing to remake the Wheat Port Code in its current form for the short period of time before it is either remade or an alternative new mechanism is implemented.

“Importantly, a deferral of sunsetting until 1 October 2026 does not preclude the Government from making a decision to either remake or repeal the code at an early date if appropriate.”

An explanatory statement tabled alongside the certificate highlighted that the deferral was put forward on the condition that the code, in its current form, would not be in place when the sunsetting term was due to end.

“Before issuing the certificate, the Attorney-General was satisfied that the regulation would, apart from the operation of the sunsetting provisions, cease to be in force within 24 months of its sunsetting date,” the document said.

“Issuing a certificate of deferral therefore avoids the need to replace the instrument in its current form for a short period of time before it is expected to be repealed and replaced.”

Industry body, Grain Trade Australia, has long called for an end to the Wheat Port Code arguing that it was a framework designed for time when the sector operated under a single-desk system.

In public submissions, the GTA has recommended the Code be allowed to sunset on October 1.

GTA chief executive officer Pat O’Shannassy told Grain Central that while more time was needed to ready another framework to replace the code, a shorter extension period would be more appropriate.

“We all accepted that it’s not enough time to get other things in place,” Mr O’Shannassy said.

“We think the extension does not need to be as long as what they have put in there.

“I would have thought a one-year extension would be more than enough.”

Mr O’Shannassy said GTA believes an industry self-management code would be a more efficient system to replace the current instrument.

This model could take the form of a Technical Guideline Document which could still include aspects of the original code, such as a commitment to deal in good faith, shipping stem allocation principles/guidelines, and stem publication.

GTA argues that this system would reduce the regulatory burden on the industry, increase collaboration, and provide operational flexibility and efficiency.

Mr O’Shannassy said there was broad industry support for this type of model over the current code.

“After the discussions I’ve had amongst people in the industry, they’re all prepared to try and make it work.”

Review under way

DAFF launched a review into the Wheat Port Code in October last year, and consultation closed on February 4.

It was the second review of the code since it came into effect.

Following the public consultation, DAFF conducted face-to-face meetings with key stakeholders, and a Wheat Port Code Review Reference Group was established to support the targeted consultation process.

Late last year, the ACCC, as the administrator of the code, publicly released its submission to the review calling for the instrument to “be allowed to sunset”.

“[T]he ACCC has formed the view that it is not clear that the code strikes the right balance between regulatory burden and the benefits it delivers,” the ACCC said in its submission.

“Based on the ACCC’s experience in administering the code, it is not fit for purpose.”

The ACCC said since the code came into force, there has been an increasing number of port terminal service providers (PTSP) and port terminal facilities, and a greater use of novel business models and infrastructure types, such as mobile shiploaders.

The corporate watchdog said as a result, there was a rising “regulatory burden” associated with the code.

According to the ACCC, in 2024, there are 32 bulk grain export terminals operated by 18 companies, with only seven of these required to meet the full provisions of the code.

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