1. This Information Memorandum aims to provide industry participants with information regarding AWB(International)’s (AWBI) role in the process governing consent to the export of wheat from Australia under the Commonwealth Wheat Marketing Act 1989 (“the Act”).
2. The Act requires persons (other than AWBI) seeking to export wheat from Australia to obtain the prior written consent of the Wheat Export Authority (“the WEA”). Wheat exporters must also conduct foreign trade in accordance with the terms of the WEA’s consent.
3. The Act details the penalties exporters face for non-compliance. Criminal penalties of $60,000 may be imposed on individuals and $300,000 on bodies corporate for breach of section 57 of the Act.
4. The WEA is required to issue guidelines setting out matters it will take into account in exercising its powers under the Act when making decisions on applications for consent (“the WEA Guidelines”). These are available at the WEA website www.wea.gov.au.
5. All prospective wheat exporters must send their export applications to the WEA.
6. Following receipt of an application, the WEA consults AWBI and provides AWBI the following ‘application details’:
(a) Application Number;
(b) Grade;
(c) Quantity of wheat;
(d) Country of destination;
(e) Shipping period; and
(f) Shipping method
It is relevant to note that the WEA does not routinely disclose to AWBI the identity of a particular applicant, the end use or end user, or any other details unless specifically authorised by the applicant.
7. The Act requires the WEA to consult with AWBI on all applications to export wheat. However, the Act distinguishes between applications for export to be shipped in containers and bags, and applications for export to be shipped in bulk.
8. In the case of Container and Bag applications, the WEA seeks consultative comments from AWBI, with respect to whether, based on the application information, an export application is considered consistent with the Act. That is, that the application:
- Complements any objective of AWBI to maximise net returns for pools it operates; and
- At the same time facilitates the development of niche and other markets, where the WEA considers that this may benefit both growers and the wider community.
With respect to container and bag applications the WEA has regard to, but is not bound by AWBI’s comments.
9. In the case of applications for exports to be shipped in bulk, and in accordance with section 57 (3B) of the Act, AWBI must provide written approval to the WEA as a prior condition of the WEA granting consent. AWBI is empowered to provide such written approval in its capacity as a company limited by shares incorporated under the Corporations Law of Victoria. AWBI’s approval is a necessary condition for the WEA’s to consent to export. However, the WEA may withhold consent to export having assessed the application against the WEA Guidelines, even in circumstances where AWBI has provided its approval. That is, an application not vetoed by AWBI is still subject to the provisions of the Act and assessment by WEA against the WEA Guidelines.
10. In relation to each application, AWBI’s objective is to determine whether consenting to the application will enhance or be complementary to maximising net pool returns for Growers who sell wheat into the National Pool.
11. In the context of the objective referred to in Item 10, in assessing the application information AWBI may have regard to a number of factors including but not limited to:
a) whether the applicant has provided WEA with detailed information, in order to assist AWBI in making a fully informed determination;
b) whether AWBI consider consenting to the application will complement AWBI’s objectives including corporate and market strategies;
c) whether AWBI consider consenting to the application will complement AWBI’s customer relationships in the destination market or related markets;
d) whether AWBI consider consenting to the application could result in Australian wheat competing with Australian wheat;
e) any other factor that, having regard to prevailing industry and market conditions, AWBI may consider relevant to the circumstances of each application.
12. AWBI will deal with applications as expeditiously as is appropriate but reserves the right to take that time it deems appropriate in the circumstances to fully consider the application in accordance with it constitutional obligations to maximise net pool returns to growers by securing, developing and maintaining markets for Australian wheat and minimising costs. AWBI will endeavour to keep the WEA informed of progress in this regard.
13. AWBI then provides the WEA with a written response that either approves or rejects the bulk export application. This response will authorise the WEA to release certain information relevant to AWBI’s consideration of the application which is not commercially sensitive to the exporter/applicant.
14. The WEA assesses each application against the considerations set out in the WEA Guidelines. Once AWBI has provided a written response to the WEA, the WEA makes a decision on whether to consent to the bulk application if AWBI has not opposed the bulk application. Where AWBI has rejected (vetoed) a bulk export application, the WEA is prevented from consenting to the bulk export application.
15. The WEA then notifies the exporter/applicant of the outcome of the application.
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