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Wheat Export Marketing Bill 2008

Part 2 Wheat export accreditation scheme

Division 1 Compliance with the wheat export accreditation scheme

7   Compliance with the wheat export accreditation scheme

             (1)  A person must not export wheat if the person is not an accredited wheat exporter.

             (2)  Subsection (1) does not apply if the wheat is exported in:

                     (a)  a bag; or

                     (b)  a container;

that is capable of holding not more than 50 tonnes of wheat.

             (3)  A person who wishes to rely on subsection (2) bears an evidential burden in relation to that matter.

Note:          For evidential burden , see section 5.

Ancillary contraventions

             (4)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (1); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or

                     (d)  conspire with others to effect a contravention of subsection (1).

Civil penalty provisions

             (5)  Subsections (1) and (4) are civil penalty provisions .

Note 1:       Part 8 provides for pecuniary penalties for breaches of civil penalty provisions.

Note 2:       For transitional provisions, see Schedule 3 to the Wheat Export Marketing (Repeal and Consequential Amendments) Act 2008 .



 

Division 2 Formulation of the wheat export accreditation scheme

8   Wheat export accreditation scheme

             (1)  WEA may, by legislative instrument, formulate a scheme (to be known as the wheat export accreditation scheme ) about any or all of the following matters:

                     (a)  the accreditation of companies as accredited wheat exporters;

                     (b)  a matter required or permitted by this Act to be included in the wheat export accreditation scheme;

                     (c)  ancillary or incidental matters.

Note:          For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901 .

             (2)  To avoid doubt, the wheat export accreditation scheme is taken to be a law of the Commonwealth.

9   Administrative decisions under the wheat export accreditation scheme

             (1)  The wheat export accreditation scheme may make provision in relation to a matter by conferring a power to make a decision of an administrative character on WEA.

             (2)  The wheat export accreditation scheme may empower WEA to make any or all of the following decisions:

                     (a)  a decision to grant an accreditation otherwise than by way of renewal;

                     (b)  a decision to grant an accreditation by way of renewal;

                     (c)  a decision to suspend an accreditation;

                     (d)  a decision to cancel an accreditation;

                     (e)  a decision to consent to the surrender of an accreditation;

                      (f)  a decision to impose one or more conditions to which an accreditation is subject;

                     (g)  a decision to revoke or vary a condition imposed as mentioned in paragraph (f);

                     (h)  a decision to vary an accreditation otherwise than as mentioned in paragraph (f) or (g).

             (3)  Subsection (2) does not limit subsection (1).

             (4)  The wheat export accreditation scheme must require WEA to consult a company before making any of the following decisions under the scheme:

                     (a)  a decision to refuse the company’s application for accreditation;

                     (b)  a decision to cancel the company’s accreditation;

                     (c)  a decision to suspend the company’s accreditation;

                     (d)  a decision to impose one or more conditions to which the company’s accreditation is subject;

                     (e)  a decision to revoke or vary a condition of the company’s accreditation, where the condition was imposed as mentioned in paragraph (2)(f);

                      (f)  a decision to vary the company’s accreditation otherwise than as mentioned in paragraph (2)(f) or (g).

Note:          For review of decisions, see Part 6.

10   Application fees

             (1)  The wheat export accreditation scheme may provide that an application under the scheme must be accompanied by the fee (if any) specified in the scheme.

             (2)  A fee under subsection (1) must not be such as to amount to taxation.

11   Accreditation is not transferable

                   The wheat export accreditation scheme must provide that an accreditation is not transferable.

12   Duration of accreditation

             (1)  The wheat export accreditation scheme must provide that, unless a company’s accreditation is sooner cancelled or surrendered, the accreditation remains in force for the period specified by WEA in the instrument of accreditation.

             (2)  Subsection (1) does not prevent the scheme making provision for a suspension of accreditation.

             (3)  Subsection (1) does not prevent the scheme making provision for a grant of accreditation by way of renewal.



 

Division 3 Eligibility for accreditation

13   Eligibility for accreditation

             (1)  The wheat export accreditation scheme must provide that a company is not eligible for accreditation unless:

                     (a)  the company is:

                              (i)  registered as a company under Part 2A.2 of the Corporations Act 2001 ; or

                             (ii)  a co-operative; and

                     (b)  the company is a trading corporation to which paragraph 51(xx) of the Constitution applies; and

                     (c)  WEA is satisfied that the company is a fit and proper company, having regard to the following:

                              (i)  the financial resources available to the company;

                             (ii)  the company’s risk management arrangements;

                            (iii)  the company’s business record;

                            (iv)  the company’s record in situations requiring trust and candour;

                             (v)  the business record of each executive officer of the company;

                            (vi)  the experience and ability of each executive officer of the company;

                           (vii)  the record in situations requiring trust and candour of each executive officer of the company;

                          (viii)  whether the company, or an executive officer of the company, has been convicted of an offence against an Australian law or a foreign law, where the offence relates to dishonest conduct;

                            (ix)  whether the company, or an executive officer of the company, has been convicted of an offence against an Australian law or a foreign law, where the offence relates to the conduct of a business;

                             (x)  whether an order for a pecuniary penalty has been made against the company, or an executive officer of the company, under section 1317G of the Corporations Act 2001 or section 76 of the Trade Practices Act 1974 ;

                            (xi)  if the company is or has been accredited under the wheat export accreditation scheme—whether the company has contravened a condition of the company’s accreditation;

                           (xii)  whether an executive officer of the company has been involved in a contravention of a condition of an accreditation under the wheat export accreditation scheme;

                          (xiii)  whether the company, or an executive officer of the company, has been convicted of an offence against section 136.1, 137.1 or 137.2 of the Criminal Code ;

                          (xiv)  whether the company, or an executive officer of the company, has committed or been involved in repeated contraventions, or a serious contravention, of a designated sanitary or phytosanitary measure;

                           (xv)  whether the company, or an executive officer of the company, has committed or been involved in a contravention of a United Nations sanctions provision;

                          (xvi)  whether the company, or an executive officer of the company, has committed or been involved in a contravention of an Australian law or a foreign law, where the contravention relates to trade in barley, canola, lupins, oats or wheat;

                         (xvii)  such other matters (if any) as WEA considers relevant; and

                     (d)  WEA is satisfied that the company is not an externally-administered body corporate; and

                     (e)  if the company, or an associated entity, is the provider of one or more port terminal services—WEA is satisfied that the company or associated entity, as the case may be, passes the access test in relation to each of those services; and

                      (f)  if the wheat export accreditation scheme specifies one or more other eligibility requirements—WEA is satisfied that those requirements are met.

Fit and proper company—5-year limit

             (2)  Subparagraphs (1)(c)(i) to (xvii) do not apply to an act, omission, matter or thing that occurred:

                     (a)  if the company is not, and has never been, accredited under the wheat export accreditation scheme—before the start of the 5-year period that ended when the company made its application for accreditation; or

                     (b)  if the company is or has been accredited under the wheat export accreditation scheme—before the start of the 5-year period that ended when the company first became accredited under the wheat export accreditation scheme.

Ancillary provisions

             (3)  For the purposes of the application of subparagraph (1)(c)(viii), (ix) or (xiii) to a person who is an executive officer of a company, it is immaterial whether a conviction occurred before or after the person became an executive officer of the company. This rule has effect subject to subsection (2).

             (4)  For the purposes of the application of subparagraph (1)(c)(x) to a person who is an executive officer of a company, it is immaterial whether an order for a pecuniary penalty was made before or after the person became an executive officer of the company. This rule has effect subject to subsection (2).

             (5)  For the purposes of the application of subparagraph (1)(c)(xii), (xiv), (xv) or (xvi) to a person who is an executive officer of a company, it is immaterial whether a contravention occurred before or after the person became an executive officer of the company. This rule has effect subject to subsection (2).

             (6)  For the purposes of paragraph (1)(c), it is immaterial whether an act, omission, matter or thing occurred before or after the commencement of this section. This rule has effect subject to subsection (2).

             (7)  Subparagraphs (1)(c)(i) to (xvi) do not limit subparagraph (1)(c)(xvii).

             (8)  This section extends to acts, omissions, matters and things outside Australia.

             (9)  This section does not affect the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).



 

Division 4 Conditions of accreditation

14   Conditions of accreditation

                   The wheat export accreditation scheme must provide that an accreditation is subject to the following conditions:

                     (a)  a condition that an accredited wheat exporter must comply with a requirement under subsection 25(2) or 31(1);

                     (b)  the conditions that, under section 15, 16 or 17, are required to be imposed by the scheme;

                     (c)  such other conditions (if any) as are specified in the scheme;

                     (d)  such conditions (if any) as are imposed under the scheme by WEA.

15   Condition—annual export report

             (1)  The wheat export accreditation scheme must provide that it is a condition of accreditation that an accredited wheat exporter must, within:

                     (a)  30 days after the end of each marketing year; or

                     (b)  if WEA allows a longer period—that longer period;

give WEA a written report setting out:

                     (c)  the quantity of wheat exported by the accredited wheat exporter during that year, broken down by specification and country of destination; and

                     (d)  the terms and conditions on which the accredited wheat exporter, or a related body corporate, acquired wheat from growers during that year for export by the accredited wheat exporter.

             (2)  Paragraphs (1)(c) and (d) do not apply to the export of wheat in:

                     (a)  a bag; or

                     (b)  a container;

that is capable of holding not more than 50 tonnes of wheat.

16   Condition—annual compliance report

                   The wheat export accreditation scheme must provide that it is a condition of accreditation that an accredited wheat exporter must, within:

                     (a)  30 days after the end of each marketing year; or

                     (b)  if WEA allows a longer period—that longer period;

give WEA a written report relating to the accredited wheat exporter’s compliance, during that year, with:

                     (c)  the conditions of the accredited wheat exporter’s accreditation under the wheat export accreditation scheme; and

                     (d)  Australian laws, and foreign laws, that are applicable to the accredited wheat exporter’s export trade in wheat; and

                     (e)  the United Nations sanctions provisions.

17   Condition—report about notifiable matters

                   The wheat export accreditation scheme must provide that it is a condition of accreditation that, if:

                     (a)  an event occurs or a circumstance comes into existence; and

                     (b)  the event or the circumstance is:

                              (i)  a ground on which WEA could cancel an accredited wheat exporter’s accreditation under the wheat export accreditation scheme; or

                             (ii)  likely to result in a conclusion that the company is not a fit and proper company within the meaning of the wheat export accreditation scheme;

the accredited wheat exporter must, within 14 days after the occurrence of the event or the coming into existence of the circumstance, give WEA a written report about the matter.

18   Compliance with conditions of accreditation

Compliance with certain conditions etc.

             (1)  An accredited wheat exporter must comply with a condition of accreditation referred to in paragraph 14(c) or (d) or section 15 or 16.

             (2)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (1); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or

                     (d)  conspire with others to effect a contravention of subsection (1).

Compliance with condition relating to notifiable matters etc.

             (3)  An accredited wheat exporter must comply with the condition of accreditation referred to in section 17.

             (4)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (3); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (3); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (3); or

                     (d)  conspire with others to effect a contravention of subsection (3).

Civil penalty provisions

             (5)  Subsections (1), (2), (3) and (4) are civil penalty provisions .

Note:          Part 8 provides for pecuniary penalties for breaches of civil penalty provisions.



 

Division 5 Cancellation of accreditation

19   Cancellation of accreditation

Mandatory cancellation

             (1)  The wheat export accreditation scheme must provide that WEA must cancel the accreditation of a company if:

                     (a)  the company is neither:

                              (i)  registered as a company under Part 2A.2 of the Corporations Act 2001 ; nor

                             (ii)  a co-operative; or

                     (b)  the company is not a trading corporation to which paragraph 51(xx) of the Constitution applies; or

                     (c)  WEA is satisfied that the company is not a fit and proper company, having regard to the following:

                              (i)  the financial resources available to the company;

                             (ii)  the company’s risk management arrangements;

                            (iii)  the company’s business record;

                            (iv)  the company’s record in situations requiring trust and candour;

                             (v)  the business record of each executive officer of the company;

                            (vi)  the experience and ability of each executive officer of the company;

                           (vii)  the record in situations requiring trust and candour of each executive officer of the company;

                          (viii)  whether the company, or an executive officer of the company, has been convicted of an offence against an Australian law or a foreign law, where the offence relates to dishonest conduct;

                            (ix)  whether the company, or an executive officer of the company, has been convicted of an offence against an Australian law or a foreign law, where the offence relates to the conduct of a business;

                             (x)  whether an order for a pecuniary penalty has been made against the company, or an executive officer of the company, under section 1317G of the Corporations Act 2001 or section 76 of the Trade Practices Act 1974 ;

                            (xi)  whether the company has contravened a condition of the company’s accreditation under the wheat export accreditation scheme;

                           (xii)  whether an executive officer of the company has been involved in a contravention of a condition of an accreditation under the wheat export accreditation scheme;

                          (xiii)  whether the company, or an executive officer of the company, has been convicted of an offence against section 136.1, 137.1 or 137.2 of the Criminal Code ;

                          (xiv)  whether the company, or an executive officer of the company, has committed or been involved in repeated contraventions, or a serious contravention, of a designated sanitary or phytosanitary measure;

                           (xv)  whether the company, or an executive officer of the company, has committed or been involved in a contravention of a United Nations sanctions provision;

                          (xvi)  whether the company, or an executive officer of the company, has committed or been involved in a contravention of an Australian law or a foreign law, where the contravention relates to trade in barley, canola, lupins, oats or wheat;

                         (xvii)  such other matters (if any) as WEA considers relevant; or

                     (d)  if the company, or an associated entity, is the provider of one or more port terminal services—WEA is satisfied that the company or associated entity, as the case may be, fails the access test in relation to any of those services; or

                     (e)  if the wheat export accreditation scheme specifies one or more other grounds for mandatory cancellation—WEA is satisfied that at least one of those grounds is applicable to the company.

Discretionary cancellation

             (2)  The wheat export accreditation scheme must provide that WEA may cancel the accreditation of a company if:

                     (a)  the company is an externally-administered body corporate; or

                     (b)  WEA is satisfied that the company has not complied with a condition of the company’s accreditation under the wheat export accreditation scheme; or

                     (c)  if the wheat export accreditation scheme specifies one or more other grounds for discretionary cancellation—WEA is satisfied that at least one of those grounds is applicable to the company.

             (3)  Subsection (1) does not limit subsection (2).

Fit and proper company—5-year limit

             (4)  Subparagraphs (1)(c)(i) to (xvii) do not apply to an act, omission, matter or thing that occurred before the start of the 5-year period that ended when the company first became accredited under the wheat export accreditation scheme.

Ancillary provisions

             (5)  For the purposes of the application of subparagraph (1)(c)(viii), (ix) or (xiii) to a person who is an executive officer of a company, it is immaterial whether a conviction occurred before or after the person became an executive officer of the company. This rule has effect subject to subsection (4).

             (6)  For the purposes of the application of subparagraph (1)(c)(x) to a person who is an executive officer of a company, it is immaterial whether an order for a pecuniary penalty was made before or after the person became an executive officer of the company. This rule has effect subject to subsection (4).

             (7)  For the purposes of the application of subparagraph (1)(c)(xii), (xiv), (xv) or (xvi) to a person who is an executive officer of a company, it is immaterial whether a contravention occurred before or after the person became an executive officer of the company. This rule has effect subject to subsection (4).

             (8)  For the purposes of paragraph (1)(c), it is immaterial whether an act, omission, matter or thing occurred before or after the commencement of this section. This rule has effect subject to subsection (4).

             (9)  Subparagraphs (1)(c)(i) to (xvi) do not limit subparagraph (1)(c)(xvii).

           (10)  This section extends to acts, omissions, matters and things outside Australia.

           (11)  This section does not affect the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).

20   Civil penalty orders and cancellation

             (1)  If:

                     (a)  a company has not complied with a condition of its accreditation under the wheat export accreditation scheme; and

                     (b)  a civil penalty order relating to that non-compliance has been made against the company;

WEA may exercise a power of cancellation of accreditation under the wheat export accreditation scheme on the ground of that non-compliance, even though the civil penalty order has been made.

             (2)  If:

                     (a)  a company has not complied with a condition of its accreditation under the wheat export accreditation scheme; and

                     (b)  WEA has exercised a power of cancellation of accreditation under the wheat export accreditation scheme on the ground of that non-compliance;

a civil penalty order may be made against the company, even though the company’s accreditation has been cancelled.

21   Post-cancellation reports

             (1)  The wheat export accreditation scheme must provide that, if WEA cancels the accreditation of a company, the company must, within:

                     (a)  30 days after the day on which the company was notified of the cancellation; or

                     (b)  if WEA allows a longer period—that longer period;

give WEA:

                     (c)  a post-cancellation export report (see subsection (2)); and

                     (d)  a post-cancellation compliance report (see subsection (4)).

Post-cancellation export report

             (2)  For the purposes of this Act, a post-cancellation export report is a written report setting out:

                     (a)  the quantity of wheat exported by the company during the pre-cancellation period, broken down by specification and country of destination; and

                     (b)  the terms and conditions on which the company, or a related body corporate, acquired wheat from growers during the pre-cancellation period for export by the company.

             (3)  Paragraphs (2)(a) and (b) do not apply to the export of wheat in:

                     (a)  a bag; or

                     (b)  a container;

that is capable of holding not more than 50 tonnes of wheat.

Post-cancellation compliance report

             (4)  For the purposes of this Act, a post-cancellation compliance report is a written report relating to the company’s compliance, during the pre-cancellation period, with:

                     (a)  the conditions of the company’s accreditation under the wheat export accreditation scheme; and

                     (b)  Australian laws, and foreign laws, that are applicable to the applicant’s export trade in wheat; and

                     (c)  the United Nations sanctions provisions.

Pre-cancellation period

             (5)  For the purposes of this Act, the pre-cancellation period is the period:

                     (a)  beginning at the start of the marketing year in which the company was notified of the cancellation of its accreditation; and

                     (b)  ending when the company was notified of the cancellation of its accreditation.

Compliance

             (6)  A company must comply with a requirement referred to in subsection (1).

Ancillary contraventions

             (7)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (6); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (6); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (6); or

                     (d)  conspire with others to effect a contravention of subsection (6).

Civil penalty provisions

             (8)  Subsections (6) and (7) are civil penalty provisions .

Note:          Part 8 provides for pecuniary penalties for breaches of civil penalty provisions.



 

Division 6 Surrender of accreditation

22   Surrender of accreditation

             (1)  The wheat export accreditation scheme must provide that an accredited wheat exporter may apply to WEA for consent to surrender its accreditation.

             (2)  The wheat export accreditation scheme must provide that WEA may refuse to consent to the surrender sought by the applicant unless:

                     (a)  the applicant has complied with the conditions referred to in sections 15 and 16; and

                     (b)  the applicant has given WEA a pre-surrender export report (see subsection (3)); and

                     (c)  the applicant has given WEA a pre-surrender compliance report (see subsection (5)).

Pre-surrender export report

             (3)  For the purposes of this Act, a pre-surrender export report is a written report setting out:

                     (a)  the quantity of wheat exported by the applicant during the pre-surrender period, broken down by specification and country of destination; and

                     (b)  the terms and conditions on which the accredited wheat exporter, or a related body corporate, acquired wheat from growers during the pre-surrender period for export by the accredited wheat exporter.

             (4)  Paragraphs (3)(a) and (b) do not apply to the export of wheat in:

                     (a)  a bag; or

                     (b)  a container;

that is capable of holding not more than 50 tonnes of wheat.

Pre-surrender compliance report

             (5)  For the purposes of this Act, a pre-surrender compliance report is a written report relating to the applicant’s compliance, during the pre-surrender period, with:

                     (a)  the conditions of the accredited wheat exporter’s accreditation under the wheat export accreditation scheme; and

                     (b)  Australian laws, and foreign laws, that are applicable to the applicant’s export trade in wheat; and

                     (c)  the United Nations sanctions provisions.

Pre-surrender period

             (6)  For the purposes of this Act, the pre-surrender period is the period:

                     (a)  beginning at the start of the marketing year in which the application for surrender was made; and

                     (b)  ending when the application for surrender was made.



 

Division 7 Register of accredited wheat exporters

23   Register of accredited wheat exporters

             (1)  WEA is to maintain a register in which WEA sets out:

                     (a)  the name and ACN of each accredited wheat exporter; and

                     (b)  for each accredited wheat exporter—the conditions of the accredited wheat exporter’s accreditation under the wheat export accreditation scheme.

             (2)  The register may be maintained by electronic means.

             (3)  The register is to be made available for inspection on the Internet.



 

Division 8 Access test

24   Access test—port terminal service

Before 1 October 2009

             (1)  For the purposes of this Act, a person passes the access test in relation to a port terminal service at a particular time if:

                     (a)  that time is before 1 October 2009; and

                     (b)  at that time, the person complies with the continuous disclosure rules in relation to the port terminal service (see subsection (4));

and either:

                     (c)  at that time, there is available on the person’s Internet site a current statement to the effect that the person is willing to:

                              (i)  provide accredited wheat exporters with access to the port terminal service for purposes relating to the export of wheat; and

                             (ii)  do so on such terms and conditions as are set out in the statement; or

                     (d)  at that time:

                              (i)  there is in force a decision under Division 2A of Part IIIA of the Trade Practices Act 1974 that a regime established by a State or Territory for access to the port terminal service is an effective access regime; and

                             (ii)  under that regime, accredited wheat exporters have access to the port terminal service for purposes relating to the export of wheat.

On or after 1 October 2009

             (2)  For the purposes of this Act, a person passes the access test in relation to a port terminal service at a particular time if:

                     (a)  that time is on or after 1 October 2009; and

                     (b)  at that time, the person complies with the continuous disclosure rules in relation to the port terminal service (see subsection (4));

and either:

                     (c)  at that time, there is in operation, under Division 6 of Part IIIA of the Trade Practices Act 1974 , an access undertaking relating to the provision to accredited wheat exporters of access to the port terminal service for purposes relating to the export of wheat; or

                     (d)  at that time:

                              (i)  there is in force a decision under Division 2A of Part IIIA of the Trade Practices Act 1974 that a regime established by a State or Territory for access to the port terminal service is an effective access regime; and

                             (ii)  under that regime, accredited wheat exporters have access to the port terminal service for purposes relating to the export of wheat.

             (3)  For the purposes of paragraph (2)(c):

                     (a)  assume that subsection 44ZZBA(1) of the Trade Practices Act 1974 had never been enacted; and

                     (b)  assume that an access undertaking comes into operation at the time when the ACCC publishes its decision to accept the undertaking.

Continuous disclosure rules

             (4)  For the purposes of this Act, a person complies with the continuous disclosure rules in relation to a port terminal service at a particular time if:

                     (a)  at that time, there is available on the person’s Internet site a current statement setting out 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

                     (b)  at that time, there is available on the person’s Internet site a current statement setting out:

                              (i)  the name of each ship scheduled to load grain using the port terminal service; and

                             (ii)  for each ship referred to in subparagraph (i)—the time when the ship was nominated to load grain using the port terminal service; and

                            (iii)  for each ship referred to in subparagraph (i)—the time when the ship was accepted as a ship scheduled to load grain using the port terminal service; and

                            (iv)  for each ship referred to in subparagraph (i)—the quantity of grain to be loaded by the ship using the port terminal service; and

                             (v)  for each ship referred to in subparagraph (i)—the estimated date on which grain is to be loaded by the ship using the port terminal service; and

                     (c)  at that time, the person had a policy of updating the paragraph (b) statement each business day.

Exceptions

             (5)  Subsections (1) and (2) do not apply to the export of wheat in:

                     (a)  a bag; or

                     (b)  a container;

that is capable of holding not more than 50 tonnes of wheat.

Failure

             (6)  For the purposes of this Act, a person fails the access test in relation to a port terminal service at a particular time if the person does not pass the access test in relation to the service at that time.