For those waiting for the release of the mandatory code of conduct for access to Australia's grain ports, the wait could be an interesting one. Specifically, supply chain participants will need to wait to see whether steps will need to be taken to comply with new regulation at the end of September, or whether the Wheat Export Marketing Act (WEMA), labelled "outdated" by many in the industry, is here to stay for a little while longer.
WEMA has regulated the grain port and marketing industry since 2008, however, in recent years industry participants have increasingly argued that levels of competition and growth within the grain industry mean that the strict regulatory control imposed by WEMA is now unnecessary. In 2012, the then Labour Commonwealth Government, supported by the Greens, suggested the mandatory code that is currently in the pipeline as a way of delivery regulatory oversight in a less invasive and more industry friendly manner.
For the majority of this year, it has seemed that everything is underway to ensure that the mandatory code came into force on 1 October as planned. Recent media speculation, however, is suggesting that it might not be smooth sailing for having a mandatory code by the end of the month due to division between Eastern Australian and Western Australian MPs on how the mandatory code should apply - particularly in relation to different monopolistic characteristics on either coast. Even so, it appears that the mandatory code has been tabled to parliament and a decision on its application should be coming sometime soon.
Another factor leading to the suggestion that the mandatory code might not be on track for the end of the month is the extension of voluntary access undertakings by the ACCC. Most recently GrainCorp, and prior to that Viterra and Emerald, have extended their voluntary access undertakings in order to ensure compliance with WEMA post 1 October, an action that is unnecessary if the mandatory code would be in place to prevent the requirements of WEMA. CBH has also applied for a similar extension in relation to its facilities in Western Australia, meaning that four of the major natural monopolists regulated under WEMA have taken steps to ensure compliance after the date the mandatory code is due to take effect.
So what does this mean for business?
At the end of the day, an extension to the time before the mandatory code comes into effect has little impact on how the grain industry, and the ACCC as regulator, will act over the next few months.
The three undertakings that have been extended have been done so on relatively similar terms, with changes focused on the expiry dates and early termination clauses in case the mandatory code takes effect in the time granted for the extension. As such, the current level of regulation will remain in place until the mandatory code takes effect, and with such broad support from all political parties and supply chain participants (albeit with minor disagreements), it is unlikely to be long before the mandatory code comes into play.
Realistically, the grain export industry is moving in this direction (that is, a less formally regulated direction) itself, even without the impact of the mandatory code. Earlier this year, GrainCorp successfully applied to the ACCC for the deregulation of its Carrington port facility in Newcastle due to increased competition from other export operators in the area, including CBH, Olam, Glencore and Louis Dreyfus. It could be assumed that a similar application will be made for its Geelong port facilities after the recent announcement by North American giant Bunge that it will be adding major export facilities in Geelong to its existing holdings in Western Australia. As competition in this market grows, the requirement for regulation of natural monopoly holdings is likely to lessen; otherwise regulation will operate to restrict and begin to impact on the business activities of some of Australia's largest and most important exporters in the agricultural sector.
Further, recommendations earlier this year by the Productivity Commission after its review of the National Access Regime, which governs the declaration of natural monopoly facilities, are likely to make it more difficult to have port facilities declared as natural monopolies (and, therefore, regulated). While these recommendations have not yet been accepted, it can only be assumed that they will be seriously considered at the end of the year by the Commonwealth Government's "Root and Branch" review of competition law.
The result of the current competition law environment then, is that the Productivity Commission's recommendations, along with whatever political debate plays out regarding the finalisation of the mandatory port access code, are likely to feed into the final review decision reached by "Root and Branch" committee in relation to competition regulation of essential infrastructure. While the mandatory code seems like a major change to the regulation of the grain industry, the current state of affairs is business as normal, and even post parliamentary-approval of the mandatory code, it is likely to remain an open question until the "Root and Branch" review wraps up and there are clear waters ahead for regulatory certainty.