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This is a Bill, not an Act. For current law, see the Acts databases.
FUEL QUALITY STANDARDS AMENDMENT BILL 2009
2008-2009
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Fuel Quality Standards Amendment Bill
2009
No. , 2009
(Environment, Heritage and the Arts)
A Bill for an Act to amend the Fuel Quality
Standards Act 2000, and for related purposes
i Fuel Quality Standards Amendment Bill 2009 No. , 2009
Contents
1
Short title ............................................................................................ 1
2
Commencement .................................................................................. 1
3
Schedule(s) ......................................................................................... 1
Schedule 1--Amendme nts
3
Part 1--Approvals
3
Fuel Quality Standards Act 2000
3
Part 2--Enforcement
11
Fuel Quality Standards Act 2000
11
Part 3--Fuel standards may apply in specified circumstances
41
Fuel Quality Standards Act 2000
41
Part 4--Miscellaneous
43
Fuel Quality Standards Act 2000
43
Fuel Quality Standards Amendment Bill 2009 No. , 2009 1
A Bill for an Act to amend the Fuel Quality
1
Standards Act 2000, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Fuel Quality Standards Amendment
5
Act 2009.
6
2 Commence ment
7
This Act commences on the day after it receives the Royal Assent.
8
3 Schedule(s)
9
Each Act that is specified in a Schedule to this Act is amended or
10
repealed as set out in the applicable items in the Schedule
11
2 Fuel Quality Standards Amendment Bill 2009 No. , 2009
concerned, and any other item in a Schedule to this Act has effect
1
according to its terms.
2
3
Amend ments Schedule 1
Approvals Part 1
Fuel Quality Standards Amendment Bill 2009 No. , 2009 3
1
Schedule 1
--
Amendments
2
Part 1
--
Approvals
3
Fuel Quality Standards Act 2000
4
1 Subsection 4(1)
5
Insert:
6
emergency approval means an approval referred to in subsection
7
13(2).
8
2 Subsection 4(1)
9
Insert:
10
Fuel Standards Consultative Committee means the committee
11
established by section 24.
12
3 Section 11 (paragraph relating to Division 3)
13
Repeal the paragraph, substitute:
14
Division 3 deals with the granting of approvals (including
15
emergency approvals) to vary a fuel standard or a fuel quality
16
information standard. It also deals with varying and revoking those
17
approvals.
18
4 Section 11 (paragraph relating to Division 6)
19
Repeal the paragraph, substitute:
20
Division 6 deals with the making and varying of fuel standards and
21
fuel quality information standards and the consultation required
22
beforehand. In some cases, notification, rather than consultation, is
23
required.
24
5 Before section 13
25
Insert:
26
Schedule 1 A mendments
Part 1 Approvals
4 Fuel Quality Standards Amendment Bill 2009 No. , 2009
Subdivision A--Grant of approval
1
6 Subsection 13(2)
2
Repeal the subsection, substitute:
3
(2) Subject to subsection (3), the Minister may grant a type of approval
4
under subsection (1), known as an emergency approval, if the
5
Minister is satisfied that:
6
(a) a shortfall in the supply of a fuel will exist within two weeks;
7
and
8
(b) the shortfall will have a serious impact on:
9
(i) the interests of consumers; or
10
(ii) economic or regional development; and
11
(c) the shortfall will not reasonably be met by one or more
12
persons (other than the applicant for the approval), either
13
separately or together; and
14
(d) granting the approval will enable, or assist in enabling, the
15
shortfall to be met or mitigated; and
16
(e) the shortfall will exist because of exceptional circumstances.
17
Note:
Before granting an emergency approval, the Minister must notify,
18
rather than consult, the Fuel Standards Consultative Committee: see
19
subsections 24A(1) and 24C(1).
20
(3) The Minister must not grant an emergency approval in respect of a
21
particular shortfall in the supply of a fuel if the Minister has
22
previously granted an emergency approval in respect of that
23
shortfall.
24
(4) If an application for an approval is made and the Minister does not
25
grant an approval, the Minister must refuse to grant the approval.
26
(5) If:
27
(a) an application for an approval (other than an emergency
28
approval) is made; and
29
(b) within 21 days of receiving any recommendations of the Fuel
30
Standards Consultative Committee arising out of the
31
consultation required by section 24A, the Minister neither
32
grants, nor refuses to grant, the approval;
33
the Minister is taken to have refused to grant the approval.
34
Amend ments Schedule 1
Approvals Part 1
Fuel Quality Standards Amendment Bill 2009 No. , 2009 5
(6) An approval granted under subsection (1) is not a legislative
1
instrument.
2
7 After section 13
3
Insert:
4
13A Pe riod of effect of approval
5
(1) An approval comes into force on the day specified in the approval.
6
(2) An approval (other than an emergency approval) remains in force
7
for the period specified in the approval, unless earlier revoked.
8
(3) Subject to subsection (4), an emergency approval remains in force
9
for the shorter of the following periods, unless earlier revoked:
10
(a) the period specified in the approval;
11
(b) 14 days.
12
(4) If an emergency approval is varied under section 17F, at the end of
13
the period for which the approval remained in force (whether
14
because of subsection (3) or this subsection) the approval continues
15
in force for the shorter of the following periods, unless earlier
16
revoked:
17
(a) the period specified in the approval;
18
(b) 14 days.
19
8 At the end of section 14
20
Add:
21
(3) If the Minister is required by paragraph 24A(1)(a) to consult the
22
Fuel Standards Consultative Committee before granting an
23
approval, the Secretary must, within 90 days of an application for
24
such an approval being made, give to the Committee:
25
(a) a copy of:
26
(i) the application; and
27
(ii) any document accompanying it; and
28
(b) any other material or information that the Secretary considers
29
relevant (including material or information that has become
30
available since the application was made).
31
9 Section 16
32
Schedule 1 A mendments
Part 1 Approvals
6 Fuel Quality Standards Amendment Bill 2009 No. , 2009
Before "An", insert "(1)".
1
10 At the end of section 16
2
Add:
3
(2) A condition specified in the approval need not relate to the supply
4
of the fuel. However, the Minister must be satisfied that the
5
condition promotes the objects of this Act.
6
11 After section 17A
7
Insert:
8
17B Notification of refusal to grant approval
9
If the Minister refuses, or is taken to refuse, to grant an approval,
10
the Minister must, as soon as practicable, notify the person who
11
applied for the approval, in writing, of the refusal.
12
Subdivision B--Variation of approval
13
17C Variation of approval--general
14
(1) Except as provided by this Subdivision, an approval (other than an
15
emergency approval) may be varied in accordance with subsection
16
33(3) of the Acts Interpretation Act 1901.
17
(2) An emergency approval may only be varied as provided by this
18
Subdivision.
19
17D Variation of approval--Secretary's initiative
20
(1) The Minister may vary an approval on the Secretary's initiative.
21
(2) If the variation is of a minor nature:
22
(a) the Minister may, in writing, vary the approval; and
23
(b) the Minister must cause to be published in the Gazette a
24
notice containing the following information:
25
(i) the name of the person to whom the approval was
26
granted;
27
(ii) the nature of the variation;
28
(iii) the period of operation of the approval;
29
Amend ments Schedule 1
Approvals Part 1
Fuel Quality Standards Amendment Bill 2009 No. , 2009 7
(iv) reasons for the variation.
1
(3) Any other variation of an approval on the Secretary's initiative
2
(other than a variation covered by section 17F) must be made in
3
accordance with subsection 33(3) of the Acts Interpretation Act
4
1901, except that an application for the variation is not required.
5
17E Variation of approval--adding regulated persons
6
(1) A person (the applicant) may apply, in writing, for an approval to
7
be varied so that one or more regulated persons are added to the
8
approval.
9
(2) The Minister may, in writing, vary the approval accordingly.
10
(3) As soon as practicable after varying an approval under this section,
11
the Minister must cause to be published in the Gazette a notice
12
containing the following information:
13
(a) the name of the person or persons who have been added to
14
the approval;
15
(b) the period of operation of the approval;
16
(c) reasons for the variation.
17
(4) If the Minister does not vary the approval, the Minister must, as
18
soon as practicable, notify the applicant, in writing, of the refusal.
19
17F Variation of approval--extended period of effect of e mergency
20
approval
21
(1) The Minister may, in writing, vary the period of effect of an
22
emergency approval if the Minister is satisfied that:
23
(a) the shortfall in respect of which the approval was first issued
24
will continue to exist after the end of that period; and
25
(b) the shortfall will have, or is having, a serious impact on:
26
(i) the interests of consumers; or
27
(ii) economic or regional development; and
28
(c) the shortfall will not reasonably be met by one or more
29
persons (other than the holder of the approval), either
30
separately or together; and
31
(d) the variation will enable, or assist in enabling, the shortfall to
32
be met or mitigated; and
33
Schedule 1 A mendments
Part 1 Approvals
8 Fuel Quality Standards Amendment Bill 2009 No. , 2009
(e) the shortfall will continue to exist because of exceptional
1
circumstances.
2
Note:
Before varying an emergency approval under this section, the Minister
3
must consult the Fuel Standards Consultative Committee: see
4
section 24B.
5
(2) The Minister may vary an emergency approval under
6
subsection (1) either:
7
(a) on the written application of the holder of the approval; or
8
(b) on the initiative of the Secretary.
9
(3) When deciding whether to vary an emergency approval under
10
subsection (1), the Minister:
11
(a) must have regard to the matters set out in subsection 15(1);
12
and
13
(b) may also have regard to any other matters he or she considers
14
relevant.
15
(4) If the Minister varies an emergency approval under subsection (1),
16
the Minister may also impose new conditions on the approval or
17
vary or remove existing conditions.
18
(5) As soon as practicable after varying an emergency approval under
19
subsection (1), the Minister must cause to be published in the
20
Gazette a notice containing the following information:
21
(a) the period of operation of the approval;
22
(b) the condition or conditions (if any) imposed, varied or
23
removed;
24
(c) reasons for the variation.
25
(6) If:
26
(a) the holder of an emergency approval makes an application
27
under paragraph (2)(a) in relation to the approval; and
28
(b) the Minister does not vary the approval;
29
the Minister must, as soon as practicable, notify the holder, in
30
writing, of the refusal.
31
Amend ments Schedule 1
Approvals Part 1
Fuel Quality Standards Amendment Bill 2009 No. , 2009 9
Subdivision C--Revoking an approval
1
17G Revoking an approval
2
An approval may be revoked in accordance with subsection 33(3)
3
of the Acts Interpretation Act 1901, except that an application for
4
revocation of the approval is not required.
5
Subdivision D--Contravening conditions of approval
6
12 Subsection 24A(1)
7
Omit "The", substitute "Unless section 24B or 24C applies, the".
8
Note:
The heading to section 24A is replaced by the heading "Consultation--general".
9
13 Paragraph 24A(1)(a)
10
Repeal the paragraph, substitute:
11
(a) before granting, varying or revoking an approval under
12
section 13; and
13
14 Subsection 24A(2)
14
After "granting", insert "or varying".
15
15 After section 24A
16
Insert:
17
24B Consultation--extended period of effect of emergency approval
18
(1) The Minister must consult the Fuel Standards Consultative
19
Committee before varying an emergency approval under
20
section 17F.
21
(2) The Minister must have regard to any recommendations of the
22
Committee arising out of the consultation.
23
24C Notification
24
(1) Before granting an emergency approval, the Minister must notify
25
the Fuel Standards Consultative Committee of:
26
(a) the application for an emergency approval; and
27
(b) his or her intention to grant an emergency approval.
28
Schedule 1 A mendments
Part 1 Approvals
10 Fuel Quality Standards Amendment Bill 2009 No. , 2009
(2) If a variation of an approval is of a minor nature, the Minister
1
must, as soon as practicable after varying the approval, notify the
2
Committee of the variation.
3
(3) If an approval is varied only to add one or more regulated persons,
4
the Minister must, as soon as practicable after varying the
5
approval, notify the Committee of the variation.
6
16 Application
7
(1)
The amendments made by this Part (other than items 9 and 10) apply in
8
relation to:
9
(a) an application for an approval or the variation of an approval;
10
or
11
(b) the revocation of an approval;
12
if the application or revocation is made after the day on which this item
13
commences.
14
(2)
The amendment made by item 10 of this Schedule applies in relation to
15
a condition of an approval that is first specified in the approval on or
16
after the day on which this item commences.
17
(3)
In this item:
18
approval has the same meaning as in the Fuel Quality Standards Act
19
2000.
20
21
Amend ments Schedule 1
Enforcement Part 2
Fuel Quality Standards Amendment Bill 2009 No. , 2009 11
1
Part 2
--
Enforcement
2
Fuel Quality Standards Act 2000
3
17 Subsection 4(1)
4
Insert:
5
business premises means premises that:
6
(a) are used for, or in connection with, the supply of fuel or a
7
fuel additive; and
8
(b) are open to the public on a regular basis.
9
18 Subsection 4(1)
10
Insert:
11
civil penalty provision means a subsection, or a section that is not
12
divided into subsections, that has set out at its foot the words "civil
13
penalty" and one or more amounts in penalty units.
14
19 Subsection 4(1)
15
Insert:
16
court means any court.
17
20 Subsection 4(1)
18
Insert:
19
Court means:
20
(a) the Federal Court of Australia; or
21
(b) the Supreme Court of a State or Territory.
22
21 Subsection 4(1)
23
Insert:
24
enforcement warrant means:
25
(a) a warrant issued under section 60; or
26
(b) a warrant signed by a magistrate under section 61.
27
22 Subsection 4(1) (definition of evidential material)
28
Schedule 1 A mendments
Part 2 Enforcement
12 Fuel Quality Standards Amendment Bill 2009 No. , 2009
Repeal the definition, substitute:
1
evidential material means:
2
(a) in relation to an offence against this Act:
3
(i) a thing with respect to which the offence has been
4
committed or is suspected, on reasonable grounds, of
5
having been committed; or
6
(ii) a thing that there are reasonable grounds for suspecting
7
will afford evidence as to the commission of the
8
offence; or
9
(iii) a thing that there are reasonable grounds for suspecting
10
is intended to be used for the purpose of committing the
11
offence; and
12
(b) in relation to a contravention of a civil penalty provision:
13
(i) a thing with respect to which the civil penalty provision
14
has been contravened or is suspected, on reasonable
15
grounds, of having been contravened; or
16
(ii) a thing that there are reasonable grounds for suspecting
17
will afford evidence as to the contravention of the civil
18
penalty provision; or
19
(iii) a thing that there are reasonable grounds for suspecting
20
is intended to be used for the purpose of contravening
21
the civil penalty provision.
22
23 Subsection 4(1)
23
Insert:
24
infringement notice means an infringement notice given under
25
section 65L.
26
24 Subsection 4(1) (definition of offence-related warrant)
27
Repeal the definition.
28
25 Subsection 4(1)
29
Insert:
30
penalty unit, in relation to a civil penalty provision, has the
31
meaning given by section 4AA of the Crimes Act 1914.
32
26 Subsection 4(1)
33
Amend ments Schedule 1
Enforcement Part 2
Fuel Quality Standards Amendment Bill 2009 No. , 2009 13
Insert:
1
warrant means a monitoring warrant or an enforcement warrant.
2
27 Subsection 6(2)
3
After "liable", insert "to a pecuniary penalty or".
4
28 Section 10
5
Repeal the section.
6
29 Section 11 (paragraph relating to Division 2)
7
After "offences", insert "and civil penalty provisions".
8
30 Section 11 (paragraph relating to Division 5)
9
After "offence", insert "and a civil penalty provision".
10
31 Section 11 (paragraph relating to Division 7)
11
After "offences", insert "and civil penalty provisions".
12
32 Paragraph 12(1)(e)
13
Repeal the paragraph, substitute:
14
(e) either:
15
(i) if the person holds an approval that varies the standard
16
in respect of the supply--the fuel does not comply with
17
the standard as varied; or
18
(ii) if another person holds an approval that varies the
19
standard in respect of the supply by the person--the fuel
20
does not comply with the standard as varied; and
21
Note:
The heading to section 12 is replaced by the heading "Offence--supplying fuel that
22
does not comply with fuel standards".
23
33 Subsection 12(1) (penalty)
24
Omit "Maximum penalty", substitute "Penalty".
25
34 After section 12
26
Insert:
27
Schedule 1 A mendments
Part 2 Enforcement
14 Fuel Quality Standards Amendment Bill 2009 No. , 2009
12AA Civil penalty--supplying fuel that does not comply with fuel
1
standards
2
(1) A person contravenes this subsection if:
3
(a) the person supplies fuel in Australia that is the subject of a
4
fuel standard; and
5
(b) in the case where the fuel standard specifies the
6
circumstances in which the standard applies--the person
7
supplies the fuel in Australia in those circumstances; and
8
(c) the person is a constitutional corporation or a Commonwealth
9
entity or the person supplies the fuel in the course of
10
constitutional trade or commerce; and
11
(d) the fuel does not comply with the standard; and
12
(e) either:
13
(i) if the person holds an approval that varies the standard
14
in respect of the supply--the fuel does not comply with
15
the standard as varied; or
16
(ii) if another person holds an approval that varies the
17
standard in respect of the supply by the person--the fuel
18
does not comply with the standard as varied; and
19
(f) the supply is not in order to comply with a direction or order
20
under an emergency law.
21
Civil penalty:
22
(a) for an individual--500 penalty units; and
23
(b) for a body corporate--2,500 penalty units.
24
(2) However, the person does not contravene subsection (1) if the
25
person believes on reasonable grounds that the fuel that is supplied
26
will be further processed for the purpose of bringing the fuel into
27
compliance with the standard or the standard as varied.
28
35 Paragraph 12A(1)(e)
29
Repeal the paragraph, substitute:
30
(e) either:
31
(i) if the person holds an approval that varies the fuel
32
quality information standard in respect of the supply--
33
the supply does not comply with the fuel quality
34
information standard as varied; or
35
Amend ments Schedule 1
Enforcement Part 2
Fuel Quality Standards Amendment Bill 2009 No. , 2009 15
(ii) if another person holds an approval that varies the fuel
1
quality information standard in respect of the supply by
2
the person--the supply does not comply with the fuel
3
quality information standard as varied; and
4
Note:
The heading to section 12A is replaced by the heading "Offence--supplying fuel that
5
does not comply with fuel quality information standards".
6
36 Subsection 12A(1) (penalty)
7
Omit "Maximum penalty", substitute "Penalty".
8
37 At the end of Division 2 of Part 2
9
Add:
10
12B Civil penalty--supplying fuel that does not comply with fuel
11
quality information standards
12
A person contravenes this section if:
13
(a) the person supplies fuel in Australia; and
14
(b) the person is a constitutional corporation or a Commonwealth
15
entity or the person supplies the fuel in the course of
16
constitutional trade or commerce; and
17
(c) the supply is subject to a fuel quality information standard;
18
and
19
(d) the supply does not comply with the fuel quality information
20
standard; and
21
(e) either:
22
(i) if the person holds an approval that varies the fuel
23
quality information standard in respect of the supply--
24
the supply does not comply with the fuel quality
25
information standard as varied; or
26
(ii) if another person holds an approval that varies the fuel
27
quality information standard in respect of the supply by
28
the person--the supply does not comply with the fuel
29
quality information standard as varied; and
30
(f) the supply is not in order to comply with a direction or order
31
under an emergency law.
32
Civil penalty:
33
(a) for an individual--60 penalty units; and
34
(b) for a body corporate--300 penalty units.
35
Schedule 1 A mendments
Part 2 Enforcement
16 Fuel Quality Standards Amendment Bill 2009 No. , 2009
38 Subsection 18(1) (penalty)
1
Omit "Maximum penalty", substitute "Penalty".
2
Note:
The heading to section 18 is replaced by the heading "Offences--contravening
3
conditions of approval".
4
39 Subsection 18(2) (penalty)
5
Omit "Maximum penalty", substitute "Penalty".
6
40 At the end of Division 3 of Part 2
7
Add:
8
18A Civil penalties--contravening conditions of approval
9
Holder of approval
10
(1) The holder of an approval contravenes this subsection if:
11
(a) the holder takes an action or omits to take an action; and
12
(b) the holder is a constitutional corporation or a Commonwealth
13
entity or the action or omission occurs in the course of
14
constitutional trade or commerce; and
15
(c) the action or omission contravenes a condition of the
16
approval.
17
Civil penalty:
18
(a) for an individual--100 penalty units; and
19
(b) for a body corporate--500 penalty units.
20
Regulated person
21
(2) A regulated person contravenes this subsection if:
22
(a) the person takes an action or omits to take an action; and
23
(b) the person is a constitutional corporation or a Commonwealth
24
entity or the action or omission occurs in the course of
25
constitutional trade or commerce; and
26
(c) the action or omission contravenes a condition of the
27
approval concerned.
28
Civil penalty:
29
(a) for an individual--100 penalty units; and
30
(b) for a body corporate--500 penalty units.
31
Amend ments Schedule 1
Enforcement Part 2
Fuel Quality Standards Amendment Bill 2009 No. , 2009 17
41 Subsection 19(1) (penalty)
1
Omit "Maximum penalty", substitute "Penalty".
2
Note:
The heading to section 19 is replaced by the heading "Offence--supplying fuel
3
without documentation".
4
42 At the end of Division 4 of Part 2
5
Add:
6
19A Civil penalty--supplying fuel without documentation
7
(1) This section applies if:
8
(a) a person (the supplier) supplies fuel in Australia to another
9
person and the fuel is the subject of a fuel standard; and
10
(b) in the case where the fuel standard specifies the
11
circumstances in which the standard applies--the supplier
12
supplies the fuel in Australia in those circumstances; and
13
(c) the supplier is a constitutional corporation or a
14
Commonwealth entity or the supplier supplies the fuel in the
15
course of constitutional trade or commerce; and
16
(d) the other person is not the end-user of the fuel.
17
(2) The supplier contravenes this subsection if, within the period
18
prescribed by the regulations, the supplier does not provide the
19
other person with a document or documents containing:
20
(a) a statement as to whether or not the fuel complies with the
21
standard; and
22
(b) any other information relating to the fuel that is prescribed by
23
the regulations.
24
Civil penalty:
25
(a) for an individual--60 penalty units; and
26
(b) for a body corporate--300 penalty units.
27
43 Paragraph 20(1)(e)
28
Repeal the paragraph (not including the note), substitute:
29
(e) another person (the supplier) supplied the fuel to the person
30
in Australia, and either:
31
(i) if the supplier held an approval varying the standard in
32
respect of the supply--the fuel as altered does not
33
comply with the standard as varied (whether or not the
34
Schedule 1 A mendments
Part 2 Enforcement
18 Fuel Quality Standards Amendment Bill 2009 No. , 2009
fuel complied with that standard as varied before the
1
alteration); or
2
(ii) if another person held an approval varying the standard
3
in respect of the supply by the supplier--the fuel as
4
altered does not comply with the standard as varied
5
(whether or not the fuel complied with that standard as
6
varied before the alteration).
7
Note:
The heading to section 20 is replaced by the heading "Offence--altering fuel the
8
subject of a fuel standard".
9
44 Subsection 20(1) (penalty)
10
Omit "Maximum penalty", substitute "Penalty".
11
45 At the end of Division 5 of Part 2
12
Add:
13
20A Civil penalty--altering fuel the subject of a fuel standard
14
(1) A person contravenes this subsection if:
15
(a) the person alters in any way fuel in Australia that is the
16
subject of a fuel standard; and
17
(b) the person is a constitutional corporation or a Commonwealth
18
entity or the person alters the fuel in the course of, or for any
19
purpose that is incidental to, constitutional trade or
20
commerce; and
21
(c) the person alters the fuel with the intention of using it in
22
Australia; and
23
(d) in the case where the fuel standard specifies the
24
circumstances in which the standard applies--the person
25
alters the fuel with the intention of using it in Australia in
26
those circumstances; and
27
(e) if the fuel standard applies only in specified circumstances--
28
the fuel is intended to be used in those circumstances; and
29
(f) the fuel as altered does not comply with the base standard
30
(whether or not the fuel complied with that standard before
31
the alteration); and
32
(g) another person (the supplier) supplied the fuel to the person
33
in Australia, and either:
34
(i) if the supplier held an approval varying the standard in
35
respect of the supply--the fuel as altered does not
36
Amend ments Schedule 1
Enforcement Part 2
Fuel Quality Standards Amendment Bill 2009 No. , 2009 19
comply with the standard as varied (whether or not the
1
fuel complied with that standard as varied before the
2
alteration); or
3
(ii) if another person held an approval varying the standard
4
in respect of the supply by the supplier--the fuel as
5
altered does not comply with the standard as varied
6
(whether or not the fuel complied with that standard as
7
varied before the alteration).
8
Note:
See section 5 for the applicable standard in respect of that supply.
9
Civil penalty:
10
(a) for an individual--500 penalty units; and
11
(b) for a body corporate--2,500 penalty units.
12
(2) For the purposes of subsection (1), base standard means the
13
standard determined under section 21, disregarding the application
14
of subsection 21(2).
15
46 Subsection 30(1) (penalty)
16
Omit "Maximum penalty", substitute "Penalty".
17
Note:
The heading to section 30 is replaced by the heading "Offence--supplying a fuel
18
additive".
19
47 After section 30
20
Insert:
21
30A Civil penalty--supplying a fuel additive
22
A person contravenes this section if:
23
(a) the person supplies a fuel additive in Australia; and
24
(b) the person is a constitutional corporation or a Commonwealth
25
entity or the person supplies the fuel additive in the course of
26
constitutional trade or commerce; and
27
(c) the fuel additive is covered by an entry in the Register.
28
Civil penalty:
29
(a) for an individual--250 penalty units; and
30
(b) for a body corporate--1,250 penalty units.
31
48 Subsection 31(1) (penalty)
32
Schedule 1 A mendments
Part 2 Enforcement
20 Fuel Quality Standards Amendment Bill 2009 No. , 2009
Omit "Maximum penalty", substitute "Penalty".
1
Note:
The heading to section 31 is replaced by the heading "Offence--importing a fuel
2
additive".
3
49 At the end of Division 7 of Part 2
4
Add:
5
31A Civil penalty--importing a fuel additive
6
A person contravenes this section if:
7
(a) the person imports a fuel additive into Australia; and
8
(b) the fuel additive is covered by an entry in the Register.
9
Civil penalty:
10
(a) for an individual--250 penalty units; and
11
(b) for a body corporate--1,250 penalty units.
12
50 Section 37 (paragraph relating to Division 8)
13
Omit "offence-related", substitute "enforcement".
14
51 Section 37 (at the end of the paragraph relating to
15
Division 10)
16
Add "or a contravention of a civil penalty provision".
17
52 At the end of section 37
18
Add:
19
Division 11 sets out the procedure for obtaining an order that a
20
pecuniary penalty be paid for the contravention of a civil penalty
21
provision.
22
Division 12 allows a person to be given an infringement notice
23
and, in most cases, avoid prosecution or civil proceedings if the
24
person pays the amount required by the notice.
25
Division 13 allows for the Secretary to accept and enforce
26
enforceable undertakings in relation to an offence against this Act
27
or a contravention of a civil penalty provision.
28
53 Subsection 39(3) (penalty)
29
Amend ments Schedule 1
Enforcement Part 2
Fuel Quality Standards Amendment Bill 2009 No. , 2009 21
Omit "Maximum penalty", substitute "Penalty".
1
54 Paragraphs 40(1)(a) and (b)
2
Repeal the paragraphs, substitute:
3
(a) do both of the following:
4
(i) enter any premises;
5
(ii) exercise the monitoring powers set out in section 41; or
6
(b) do both of the following:
7
(i) enter a public area of business premises when the
8
premises are open to the public;
9
(ii) exercise the powers set out in section 41A.
10
55 Subsection 40(2)
11
Omit "enter the premises", substitute "enter premises under
12
paragraph (1)(a)".
13
56 At the end of section 40
14
Add:
15
(3) Paragraph (1)(b) does not affect any right of the occupier of
16
business premises to refuse to allow an inspector to enter, or
17
remain on, the premises.
18
57 Subsection 41(1)
19
Omit "section 40", substitute "paragraph 40(1)(a)".
20
Note:
The heading to section 41 is altered by adding at the end "--with consent or with
21
warrant".
22
58 Paragraph 41(1)(g)
23
Omit "offence-related", substitute "enforcement".
24
59 After section 41
25
Insert:
26
41A Exercise of powers in public areas of business pre mises
27
An inspector may exercise the following powers in relation to a
28
public area of business premises under paragraph 40(1)(b):
29
Schedule 1 A mendments
Part 2 Enforcement
22 Fuel Quality Standards Amendment Bill 2009 No. , 2009
(a) the power to inspect, examine, take measurements of,
1
conduct tests on, or take samples of, any fuel or fuel additive
2
in the area;
3
(b) the power to take photographs, make video or audio
4
recordings or make sketches of the area or any thing in the
5
area;
6
(c) the power to take into the area such equipment and materials
7
as the inspector requires for the purpose of exercising powers
8
in relation to the area.
9
60 Subsection 42(2) (penalty)
10
Omit "Maximum penalty", substitute "Penalty".
11
Note:
The heading to section 42 is altered by inserting "monitoring" before "warrant".
12
61 Division 4 of Part 3 (heading)
13
Repeal the heading, substitute:
14
Division 4--Search and seizure powers
15
62 Paragraph 43(1)(b)
16
Omit "offence-related".
17
Note:
The heading to section 43 is altered by omitting "related to offences".
18
63 Paragraph 43(2)(b)
19
Omit "offence-related", substitute "enforcement".
20
64 Subsection 43(3)
21
Omit "offence-related", substitute "enforcement".
22
65 Subsection 44(1)
23
Omit "For the purposes of this Part, the following are the
24
offence-related powers that an inspector may exercise", substitute "An
25
inspector may exercise the following powers".
26
Note:
The heading to section 44 is altered by omitting "Offence-related" and substituting
27
"Search and seizure".
28
66 Subsection 44(2)
29
Omit "For the purposes of this Part, the offence-related powers
30
include", substitute "An inspector also has".
31
Amend ments Schedule 1
Enforcement Part 2
Fuel Quality Standards Amendment Bill 2009 No. , 2009 23
67 Subsection 44(3)
1
Omit all the words from and including "For the purposes" to and
2
including "include", substitute "If the inspector, after operating the
3
equipment, finds that evidential material is accessible by doing so, the
4
inspector also has".
5
68 Subsection 44(6)
6
Omit "offence-related", substitute "enforcement".
7
69 Subsection 44(7)
8
Repeal the subsection, substitute:
9
Seizing other evidential material
10
(7) If:
11
(a) in the course of searching for a particular thing, in
12
accordance with an enforcement warrant, an inspector finds
13
another thing that the inspector believes on reasonable
14
grounds to be evidential material; and
15
(b) the inspector believes, on reasonable grounds, that it is
16
necessary to seize the other thing in order to prevent its
17
concealment, loss or destruction, or its use:
18
(i) in committing, continuing or repeating an offence
19
against this Act; or
20
(ii) in committing, continuing or repeating a contravention
21
of a civil penalty provision;
22
then the inspector may seize that other thing.
23
70 Subsection 51(3)
24
Omit "the Federal Court of Australia for such reasonable amount of
25
compensation as the Court determines", substitute "a court of competent
26
jurisdiction for such reasonable amount of compensation as the court
27
determines".
28
71 Subsection 53(2) (penalty)
29
Omit "Maximum penalty", substitute "Penalty".
30
72 Subsection 54(1)
31
Omit "offence-related", substitute "enforcement".
32
Schedule 1 A mendments
Part 2 Enforcement
24 Fuel Quality Standards Amendment Bill 2009 No. , 2009
73 Paragraphs 57(2)(a) and (b)
1
Repeal the paragraphs, substitute:
2
(a) for the purpose of an investigation as to whether:
3
(i) an offence against this Act has been committed; or
4
(ii) a civil penalty provision has been contravened; or
5
(b) to enable:
6
(i) evidence of an offence against this Act to be secured for
7
the purpose of a prosecution; or
8
(ii) evidence of a contravention of a civil penalty provision
9
to be secured for the purpose of civil proceedings;
10
74 Subsection 58B(1)
11
Repeal the subsection, substitute:
12
(1) This section applies to:
13
(a) proceedings for an offence against a provision of Part 2
14
(offence proceedings); or
15
(b) proceedings for a contravention of a civil penalty provision
16
of Part 2.
17
75 Subsection 58B(2)
18
Omit "in any offence proceedings,".
19
76 Paragraph 58B(6)(b)
20
Omit "the Court", substitute "the court".
21
77 Subsection 59(1)
22
After "magistrate for a", insert "monitoring".
23
Note:
The heading to subsection 59(1) is altered by inserted "a monitoring" before "warrant".
24
78 Subsection 59(2)
25
Before "warrant", insert "monitoring".
26
Note:
The heading to subsection 59(2) is altered by inserting "a monitoring" before
27
"warrant".
28
79 Subsection 59(3)
29
Before "warrant" (first occurring), insert "monitoring".
30
80 Subsection 59(4)
31
Amend ments Schedule 1
Enforcement Part 2
Fuel Quality Standards Amendment Bill 2009 No. , 2009 25
Before "warrant" (first occurring), insert "monitoring".
1
Note:
The heading to subsection 59(4) is altered by inserting "a monitoring" before
2
"warrant".
3
81 Subsection 60(1)
4
Omit "a warrant", substitute "an enforcement warrant".
5
Note 1: The heading to section 60 is altered by omitting "Offence-related" and substituting
6
"Enforcement".
7
Note 2: The heading to subsection 60(1) is altered by inserting "an enforcement" before
8
"warrant".
9
82 Subsection 60(2)
10
Before "warrant", insert "enforcement".
11
Note:
The heading to subsection 60(2) is altered by inserting "an enforcement" before
12
"warrant".
13
83 Subsection 60(3)
14
Before "warrant" (first occurring), insert "enforcement".
15
84 Subsection 60(4)
16
Before "warrant" (first occurring), insert "enforcement".
17
Note:
The heading to subsection 60(4) is altered by inserting "an enforcement" before
18
"warrant".
19
85 Subsection 61(1)
20
Omit "a warrant under section 60", substitute "an enforcement
21
warrant".
22
Note 1: The heading to section 61 is altered by omitting "Offence-related" and substituting
23
"Enforcement".
24
Note 2: The heading to subsection 61(1) is altered by inserting "an enforcement" before
25
"warrant".
26
86 Subsection 61(3)
27
Before "warrant" (first occurring), insert "enforcement".
28
87 Subsection 61(4)
29
Before "warrant", insert "enforcement".
30
88 Paragraph 61(5)(b)
31
Schedule 1 A mendments
Part 2 Enforcement
26 Fuel Quality Standards Amendment Bill 2009 No. , 2009
Before "warrant", insert "enforcement".
1
Note:
The heading to subsection 61(5) is altered by inserting "an enforcement" before
2
"warrant".
3
89 Subsection 61(6)
4
Before "warrant" (first occurring), insert "enforcement".
5
Note:
The heading to subsection 61(6) is altered by inserting "an enforcement" before
6
"warrant".
7
90 Subsection 61(7)
8
Before "warrant" (first occurring), insert "enforcement".
9
91 Paragraph 61(8)(a)
10
Before "warrant", insert "enforcement".
11
92 Subsection 61(9)
12
Before "warrant" (first occurring), insert "enforcement".
13
Note:
The heading to subsection 61(9) is altered by inserting "an enforcement" before
14
"warrant".
15
93 Paragraph 61(10)(b)
16
Before "warrant", insert "enforcement".
17
94 Subsection 62(1) (penalty)
18
Omit "Maximum penalty", substitute "Penalty".
19
95 Paragraph 62(2)(a)
20
Before "warrant" (second occurring), insert "enforcement".
21
96 Paragraph 62(2)(d)
22
Before "warrant" (second occurring), insert "enforcement".
23
97 Subsection 62(2) (penalty)
24
Omit "Maximum penalty", substitute "Penalty".
25
98 Subsection 65(1)
26
Repeal the subsection, substitute:
27
Amend ments Schedule 1
Enforcement Part 2
Fuel Quality Standards Amendment Bill 2009 No. , 2009 27
Grant of injunction
1
(1) If a person has engaged, is engaging, or is about to engage, in any
2
conduct that is or would be:
3
(a) an offence against this Act; or
4
(b) a contravention of a civil penalty provision;
5
a Court may, on the application of the Minister or any other
6
aggrieved person, grant an injunction restraining the person from
7
engaging in the conduct.
8
99 Subsection 65(2)
9
Omit "the Court", substitute "a Court".
10
100 Paragraph 65(2)(b)
11
Repeal the paragraph, substitute:
12
(b) the refusal or failure is, or would be:
13
(i) an offence against this Act; or
14
(ii) a contravention of a civil penalty provision;
15
101 Subsection 65(2C)
16
Omit "the Court", substitute "a Court".
17
102 Subsection 65(3)
18
Omit "the Court" (first occurring), substitute "a Court".
19
103 Subsection 65(4)
20
Repeal the subsection, substitute:
21
(4) A Court may discharge or vary an injunction granted by the Court
22
under this section.
23
104 Subsection 65(5)
24
Omit "The Court", substitute "A Court".
25
105 Subsection 65(6)
26
Omit "the Court", substitute "a Court".
27
106 At the end of Part 3
28
Add:
29
Schedule 1 A mendments
Part 2 Enforcement
28 Fuel Quality Standards Amendment Bill 2009 No. , 2009
Division 11--Civil penalties
1
Subdivision A--Obtaining an order for a civil penalty
2
65A Court may order person to pay pecuniary penalty for
3
contravening civil penalty provision
4
Application for order
5
(1) Within 6 years of a person (the wrongdoer) contravening a civil
6
penalty provision, the Minister may apply to a Court for an order
7
that the wrongdoer pay the Commonwealth a pecuniary penalty.
8
Court may order wrongdoer to pay pecuniary penalty
9
(2) If the Court is satisfied that the wrongdoer has contravened a civil
10
penalty provision, the Court may order the wrongdoer to pay to the
11
Commonwealth, for each contravention, the pecuniary penalty that
12
the Court determines is appropriate (but not more than the relevant
13
amount specified for the provision).
14
Determining amount of pecuniary penalty
15
(3) In determining the pecuniary penalty, the Court must have regard
16
to all relevant matters, including:
17
(a) the nature and extent of the contravention; and
18
(b) the nature and extent of any loss or damage suffered as a
19
result of the contravention; and
20
(c) the circumstances in which the contravention took place; and
21
(d) whether the person has previously been found by a court in
22
proceedings under this Act to have engaged in any similar
23
conduct.
24
Civil evidence and procedure rules apply
25
(4) The Court must apply the rules of evidence and procedure for civil
26
matters when hearing and determining an application for an order
27
under this section.
28
Note:
The standard of proof in civil proceedings is the balance of
29
probabilities: see section 140 of the Evidence Act 1995.
30
Amend ments Schedule 1
Enforcement Part 2
Fuel Quality Standards Amendment Bill 2009 No. , 2009 29
65B Persons involved in contravening civil penalty provision
1
(1) A person must not:
2
(a) aid, abet, counsel or procure a contravention of a civil
3
penalty provision; or
4
(b) induce (by threats, promises or otherwise) a contravention of
5
a civil penalty provision; or
6
(c) be in any way directly or indirectly knowingly concerned in,
7
or party to, a contravention of a civil penalty provision; or
8
(d) conspire to contravene a civil penalty provision.
9
(2) This Act applies to a person who contravenes subsection (1) in
10
relation to a civil penalty provision as if the person had
11
contravened the provision.
12
65C Recovery of a pecuniary penalty
13
If a Court orders a person to pay a pecuniary penalty:
14
(a) the penalty is payable to the Commonwealth; and
15
(b) the Commonwealth may enforce the order as if it were a
16
judgment of the Court.
17
65D Gathering information for application for pecuniary penalty
18
(1) This section applies if it appears to the Secretary that a person (the
19
wrongdoer) may have contravened a civil penalty provision.
20
(2) If the Secretary, on reasonable grounds, suspects that a person
21
other than the wrongdoer can give information relevant to an
22
application for a civil penalty order in relation to the contravention,
23
whether or not such an application has been made, the Secretary
24
may, by writing given to the person, require the person to give all
25
reasonable assistance in connection with such an application.
26
(3) Subsection (2) does not apply in relation to a duly qualified legal
27
practitioner who is acting, or has acted, for the wrongdoer.
28
(4) If a person fails to give assistance as required under subsection (2),
29
a Court may, on the application of the Secretary, order the person
30
to comply with the requirement as specified in the order.
31
(5) If a person fails to give assistance as required under subsection (2),
32
the person commits an offence against this subsection.
33
Schedule 1 A mendments
Part 2 Enforcement
30 Fuel Quality Standards Amendment Bill 2009 No. , 2009
Penalty: 30 penalty units.
1
(6) A requirement made under subsection (2) is not a legislative
2
instrument.
3
Subdivision B--Civil penalty proceedings and criminal
4
proceedings
5
65E Civil proceedings after criminal proceedings
6
A Court must not order a person to pay a pecuniary penalty for
7
contravening a civil penalty provision if the person has been
8
convicted of an offence constituted by conduct that is substantially
9
the same as the conduct constituting the contravention.
10
65F Criminal proceedings during civil proceedings
11
(1) Proceedings for an order for a person to pay a pecuniary penalty
12
for contravening a civil penalty provision are stayed if:
13
(a) criminal proceedings are started, or have already been
14
started, against the person for an offence; and
15
(b) the offence is constituted by conduct that is substantially the
16
same as the conduct alleged to constitute the contravention.
17
(2) The proceedings for the order may be resumed if the person is not
18
convicted of the offence. Otherwise, the proceedings for the order
19
are dismissed.
20
65G Criminal proceedings after civil proceedings
21
Criminal proceedings may not be started against a person for
22
conduct that is substantially the same as conduct that contravenes a
23
civil penalty provision if the person has been ordered to pay a
24
pecuniary penalty under this Act for the contravention.
25
65H Evide nce given in proceedings for penalty not admissible in
26
criminal proceedings
27
Evidence of information given or evidence of production of
28
documents by an individual is not admissible in criminal
29
proceedings for an offence against the individual if:
30
Amend ments Schedule 1
Enforcement Part 2
Fuel Quality Standards Amendment Bill 2009 No. , 2009 31
(a) the individual previously gave the evidence or produced the
1
documents in proceedings for an order for a contravention of
2
a civil penalty provision (whether or not the order was
3
made); and
4
(b) the conduct alleged to constitute the offence is substantially
5
the same as the conduct that was claimed to constitute the
6
contravention.
7
However, this does not apply to a criminal proceeding in respect of
8
the falsity of the evidence given by the individual in the
9
proceedings for the pecuniary penalty order.
10
65J Civil double jeopardy
11
If a person is ordered to pay a pecuniary penalty for contravening a
12
civil penalty provision in respect of particular conduct, the person
13
is not liable to a pecuniary penalty under some other provision of a
14
law of the Commonwealth in respect of that conduct.
15
Subdivision C--Miscellaneous
16
65K Multiple contraventions of civil penalty provisions
17
(1) Proceedings against a person for any number of orders to pay
18
pecuniary penalties for contraventions of a civil penalty provision
19
that are founded on the same facts or form, or are part of, a series
20
of contraventions of the same or a similar character, may be joined.
21
(2) A Court may make a single order to pay a pecuniary penalty for all
22
the contraventions described in subsection (1), but the penalty must
23
not exceed the sum of the maximum penalties that could be
24
ordered if a separate penalty were ordered for each of the
25
contraventions.
26
Division 12--Infringement notices
27
65L When an infringement notice may be given
28
(1) If an inspector has reasonable grounds to believe that:
29
(a) a person has committed an offence against this Act; or
30
(b) a person has contravened a civil penalty provision;
31
Schedule 1 A mendments
Part 2 Enforcement
32 Fuel Quality Standards Amendment Bill 2009 No. , 2009
the inspector may give the person an infringement notice relating
1
to the offence or contravention.
2
(2) The infringement notice must be given within 12 months after:
3
(a) the day on which the offence is alleged to have been
4
committed; or
5
(b) the day on which the civil penalty provision is alleged to
6
have been contravened.
7
65M Matters to be included in an infringement notice
8
(1) An infringement notice must:
9
(a) be identified by a unique number; and
10
(b) state the day on which the notice is given; and
11
(c) state the name of the person to whom the notice is given; and
12
(d) state the name of the person who gave the notice; and
13
(e) if the notice relates to an offence--give brief details of the
14
offence that the person is alleged to have committed,
15
including:
16
(i) the provision of this Act that was allegedly contravened;
17
and
18
(ii) the maximum penalty that a court could impose for the
19
offence; and
20
(iii) the time (if known) and day on which, and the place at
21
which, the offence was alleged to have been committed;
22
and
23
(f) if the notice relates to the contravention of a civil penalty
24
provision--give brief details of the civil penalty provision
25
that the person is alleged to have contravened, including:
26
(i) the provision of this Act that was allegedly contravened;
27
and
28
(ii) the maximum penalty that a court could impose for the
29
contravention; and
30
(iii) the time (if known) and day on which, and the place at
31
which, the civil penalty provision was alleged to have
32
been contravened; and
33
(g) state the penalty that is payable under the notice; and
34
(h) give an explanation of how payment of the penalty is to be
35
made; and
36
Amend ments Schedule 1
Enforcement Part 2
Fuel Quality Standards Amendment Bill 2009 No. , 2009 33
(i) state that, if the person pays the penalty within 28 days after
1
the day the notice is given, criminal or civil proceedings will
2
not be brought against the person under this Act in respect of
3
the conduct to which the notice relates, unless the notice is
4
withdrawn; and
5
(j) state that payment of the penalty is not an admission of guilt
6
or liability; and
7
(k) state that the person may apply to the Secretary to have the
8
period in which to pay the penalty extended; and
9
(l) state that the person may choose not to pay the penalty and, if
10
the person does so, criminal or civil proceedings may be
11
brought against the person under this Act in respect of the
12
conduct to which the notice relates; and
13
(m) set out how the notice can be withdrawn; and
14
(n) state that if the notice is withdrawn:
15
(i) any amount of penalty paid under the notice must be
16
refunded; and
17
(ii) criminal or civil proceedings may be brought against the
18
person in respect of the conduct to which the notice
19
relates; and
20
(o) state that the person may make written representations to the
21
Secretary seeking the withdrawal of the notice; and
22
(p) set out such other matters (if any) as are specified by the
23
regulations.
24
(2) For the purposes of paragraph (1)(g) in relation to an offence:
25
(a) if an individual is alleged to have committed the offence--
26
the penalty to be stated in the notice must not exceed an
27
amount equal to one-fifth of the maximum penalty that could
28
have been imposed on the individual for the offence; and
29
(b) if a body corporate is alleged to have committed the
30
offence--the penalty to be stated in the notice must not
31
exceed an amount equal to one-fifth of the maximum penalty
32
that could have been imposed on the body corporate for the
33
offence.
34
(3) For the purposes of paragraph (1)(g) in relation to a civil penalty
35
provision, the penalty to be stated in the notice must not exceed an
36
amount equal to one-fifth of the maximum penalty prescribed for
37
contravening the provision.
38
Schedule 1 A mendments
Part 2 Enforcement
34 Fuel Quality Standards Amendment Bill 2009 No. , 2009
65N Extension of time to pay penalty
1
(1) A person to whom an infringement notice has been given may
2
apply to the Secretary for an extension of the period referred to in
3
paragraph 65M(1)(i).
4
(2) If the application is made before the end of that period, the
5
Secretary may, in writing, extend that period. The Secretary may
6
do so before or after the end of that period.
7
(3) If the Secretary extends that period, a reference in this Division, or
8
in a notice or other instrument under this Division, to the period
9
referred to in paragraph 65M(1)(i) is taken to be a reference to that
10
period so extended.
11
(4) If the Secretary does not extend that period, a reference in this
12
Division, or in a notice or other instrument under this Division, to
13
the period referred to in paragraph 65M(1)(i) is taken to be a
14
reference to the period that ends on the later of the following days:
15
(a) the day that is the last day of the period referred to in
16
paragraph 65M(1)(i);
17
(b) the day that is 7 days after the day the person was given
18
notice of the Secretary's decision not to extend.
19
(5) The Secretary may extend the period more than once under
20
subsection (2).
21
65P Withdrawal of an infringement notice
22
Representations seeking withdrawal of notice
23
(1) A person to whom an infringement notice has been given may
24
make written representations to the Secretary seeking the
25
withdrawal of the notice.
26
Withdrawal of notice (whether or not representations have been
27
made)
28
(2) An inspector may withdraw an infringement notice given to a
29
person (whether or not the person has made written representations
30
seeking the withdrawal).
31
(3) When deciding whether or not to withdraw an infringement notice,
32
the inspector:
33
Amend ments Schedule 1
Enforcement Part 2
Fuel Quality Standards Amendment Bill 2009 No. , 2009 35
(a) must take into account any written representations seeking
1
the withdrawal that were given by the person to the
2
Secretary; and
3
(b) may take into account the matters set out in subsection (4).
4
(4) The matters to which the inspector may take into account are the
5
following:
6
(a) whether the person has previously been convicted of an
7
offence against this Act or been ordered to pay a pecuniary
8
penalty for the contravention of a civil penalty provision;
9
(b) if the notice relates to an offence--the circumstances in
10
which the offence is alleged to have been committed;
11
(c) if the notice relates to a civil penalty provision--the
12
circumstances in which the contravention took place;
13
(d) whether the person has previously been given an
14
infringement notice relating to:
15
(i) an offence of the same type as the offence specified in
16
the notice; or
17
(ii) a civil penalty provision that is constituted by conduct
18
that is substantially the same as the conduct alleged to
19
constitute the offence specified in the notice;
20
and in relation to which the person paid the penalty stated in
21
the notice;
22
(e) whether the person has previously been given an
23
infringement notice relating to:
24
(i) a civil penalty provision of the same type as the civil
25
penalty provision specified in the notice; or
26
(ii) an offence that is constituted by conduct that is
27
substantially the same as the conduct alleged to
28
constitute the contravention of the civil penalty
29
provision specified in the notice;
30
and in relation to which the person paid the penalty stated in
31
the notice;
32
(f) any other matter the inspector considers relevant.
33
Notice of withdrawal
34
(5) Notice of the withdrawal of the infringement notice must be given
35
to the person. The withdrawal notice must state:
36
(a) the person's name and address; and
37
Schedule 1 A mendments
Part 2 Enforcement
36 Fuel Quality Standards Amendment Bill 2009 No. , 2009
(b) the day the infringement notice was given; and
1
(c) that the infringement notice is withdrawn; and
2
(d) that criminal or civil proceedings may be brought against the
3
person in respect of the conduct to which the infringement
4
notice relates.
5
Refund of penalty if infringement notice withdrawn
6
(6) If:
7
(a) an inspector withdraws the infringement notice; and
8
(b) the person has already paid the penalty stated in the notice;
9
the Commonwealth must refund to the person an amount equal to
10
the amount paid.
11
65Q Effect of payment of penalty
12
Infringement notice relates to an offence
13
(1) If an infringement notice relates to an offence and the person to
14
whom the notice is given pays the penalty stated in the notice
15
before the end of the period referred to in paragraph 65M(1)(i):
16
(a) any liability of the person for the alleged offence is
17
discharged; and
18
(b) a prosecution for the alleged offence may not be brought
19
against the person; and
20
(c) if a civil penalty provision relates to conduct substantially the
21
same as the conduct alleged to constitute the offence--civil
22
proceedings for a contravention of the civil penalty provision
23
may not be brought against the person; and
24
(d) the person is not regarded as having admitted guilt or liability
25
for the alleged offence; and
26
(e) the person is not regarded as having been convicted of the
27
alleged offence.
28
Infringement notice relates to civil penalty provision
29
(2) If an infringement notice relates to a contravention of a civil
30
penalty provision and the person to whom the notice is given pays
31
the penalty stated in the notice before the end of the period referred
32
to in paragraph 65M(1)(i):
33
Amend ments Schedule 1
Enforcement Part 2
Fuel Quality Standards Amendment Bill 2009 No. , 2009 37
(a) any liability of the person for the alleged contravention is
1
discharged; and
2
(b) civil proceedings in respect of the alleged contravention may
3
not be brought against the person; and
4
(c) if an offence relates to conduct substantially the same as the
5
conduct alleged to constitute the contravention--a
6
prosecution for the offence may not be brought against the
7
person; and
8
(d) the person is not regarded as having admitted liability for the
9
alleged contravention.
10
(3) Subsections (1) and (2) do not apply if the notice has been
11
withdrawn.
12
65R Effect of this Division
13
This Division does not:
14
(a) require an infringement notice to be given to a person; or
15
(b) affect the liability of a person to be prosecuted for an offence
16
if:
17
(i) the person does not comply with an infringement notice
18
given to the person; or
19
(ii) an infringement notice is not given to the person for the
20
offence; or
21
(iii) if a civil penalty provision is constituted by conduct that
22
is substantially the same as the conduct alleged to
23
constitute the offence--an infringement notice is not
24
given to the person in relation to the civil penalty
25
provision; or
26
(iv) an infringement notice is given to the person and is
27
subsequently withdrawn; or
28
(c) affect the liability of a person to be subject to civil
29
proceedings for the contravention of a civil penalty provision
30
if:
31
(i) the person does not comply with an infringement notice
32
given to the person; or
33
(ii) an infringement notice is not given to the person for the
34
contravention; or
35
(iii) if an offence is constituted by conduct that is
36
substantially the same as the conduct alleged to
37
Schedule 1 A mendments
Part 2 Enforcement
38 Fuel Quality Standards Amendment Bill 2009 No. , 2009
constitute the contravention--an infringement notice is
1
not given to the person in relation to the offence; or
2
(iv) an infringement notice is given to the person and is
3
subsequently withdrawn; or
4
(d) prevent the giving of 2 or more infringement notices to a
5
person for:
6
(i) an alleged offence; or
7
(ii) an alleged contravention of a civil penalty provision; or
8
(e) limit a court's discretion to determine the amount of a
9
penalty to be imposed on a person:
10
(i) convicted of an offence against this Act; or
11
(ii) who has contravened a civil penalty provision.
12
65S Regulations
13
The regulations may make further provision in relation to
14
infringement notices.
15
Division 13--Enforceable undertakings
16
65T Acceptance of undertakings
17
(1) The Secretary may accept a written undertaking given by a person
18
if the Secretary considers that the person has committed an offence
19
against, or contravened a civil penalty provision of, this Act.
20
(2) The person may withdraw or vary the undertaking at any time, but
21
only with the consent of the Secretary.
22
(3) The Secretary may, by written notice given to the person, cancel
23
the undertaking.
24
(4) The Secretary may publish the undertaking on the internet.
25
65U Enforcement of undertakings
26
(1) If the Secretary considers that a person who gave an undertaking
27
under section 65T has breached any of its terms, the Secretary may
28
apply to a Court for an order under subsection (2).
29
Amend ments Schedule 1
Enforcement Part 2
Fuel Quality Standards Amendment Bill 2009 No. , 2009 39
(2) If the Court is satisfied that the person has breached a term of the
1
undertaking, the Court may make one or more of the following
2
orders:
3
(a) an order directing the person to comply with that term of the
4
undertaking;
5
(b) an order directing the person to pay to the Commonwealth an
6
amount up to the amount of any financial benefit that the
7
person has obtained directly or indirectly and that is
8
reasonably attributable to the breach;
9
(c) any order that the Court considers appropriate directing the
10
person to compensate any other person who has suffered loss
11
or damage as a result of the breach;
12
(d) any other order that the Court considers appropriate.
13
107 Subsection 66(1) (penalty)
14
Omit "Maximum penalty", substitute "Penalty".
15
Note:
The heading to section 66 is replaced by the heading "Offence--failure to keep and
16
maintain records".
17
108 After section 66
18
Insert:
19
66A Civil penalty--failure to keep and maintain records
20
(1) This section applies if:
21
(a) a person supplies fuel in Australia that is the subject of a fuel
22
standard; and
23
(b) in the case where the fuel standard specifies the
24
circumstances in which the standard applies--the person
25
supplies the fuel in Australia in those circumstances; and
26
(c) the person is a constitutional corporation or a Commonwealth
27
entity or the person supplies the fuel in the course of
28
constitutional trade or commerce.
29
(2) The person contravenes this subsection if the person does not keep
30
and maintain records in relation to such supplies in accordance
31
with the regulations.
32
Civil penalty:
33
(a) for an individual--60 penalty units; and
34
(b) for a body corporate--300 penalty units.
35
Schedule 1 A mendments
Part 2 Enforcement
40 Fuel Quality Standards Amendment Bill 2009 No. , 2009
109 Subsection 67(5) (penalty)
1
Omit "Maximum penalty", substitute "Penalty".
2
110 At the end of section 67
3
Add:
4
Civil penalty provision
5
(7) A person must not contravene a requirement of this section.
6
Civil penalty:
7
(a) for an individual--60 penalty units; and
8
(b) for a body corporate--300 penalty units.
9
111 Application
10
Divisions 11, 12 and 13 of Part 3 of the Fuel Quality Standards Act
11
2000 (as inserted by item 106 of this Part) apply in relation to conduct
12
that occurs on or after the day on which this item commences.
13
14
Amend ments Schedule 1
Fuel standards may apply in specified circu mstances Part 3
Fuel Quality Standards Amendment Bill 2009 No. , 2009 41
1
Part 3
--
Fuel standards may apply in specified
2
circumstances
3
Fuel Quality Standards Act 2000
4
112 After paragraph 12(1)(a)
5
Insert:
6
(aa) in the case where the fuel standard specifies the
7
circumstances in which the standard applies--the person
8
supplies the fuel in Australia in those circumstances; and
9
113 After paragraph 19(1)(a)
10
Insert:
11
(aa) in the case where the fuel standard specifies the
12
circumstances in which the standard applies--the supplier
13
supplies the fuel in Australia in those circumstances; and
14
114 After paragraph 20(1)(c)
15
Insert:
16
(ca) in the case where the fuel standard specifies the
17
circumstances in which the standard applies--the person
18
alters the fuel with the intention of using it in Australia in
19
those circumstances; and
20
115 Subsection 21(1)
21
Repeal the subsection, substitute:
22
Base standard
23
(1) The Minister may, by legislative instrument, determine a fuel
24
standard in respect of a specified kind of fuel.
25
Standard may apply only in specified circumstances
26
(1A) The fuel standard may specify the circumstances in which the
27
standard applies.
28
116 After paragraph 66(1)(a)
29
Schedule 1 A mendments
Part 3 Fuel standards may apply in specified circu mstances
42 Fuel Quality Standards Amendment Bill 2009 No. , 2009
Insert:
1
(aa) in the case where the fuel standard specifies the
2
circumstances in which the standard applies--the person
3
supplies the fuel in Australia in those circumstances; and
4
117 After paragraph 67(1)(b)
5
Insert:
6
(ba) in the case where the fuel standard specifies the
7
circumstances in which the standard applies--the person
8
supplies the fuel in Australia in those circumstances; and
9
118 After paragraph 67(2)(b)
10
Insert:
11
and (c) in the case where the fuel standard specifies the
12
circumstances in which the standard applies--the person
13
supplies the fuel in Australia in those circumstances;
14
119 Savings provision
15
(1)
A fuel standard that is in force, or purportedly in force, immediately
16
before this item commences continues in force as if it was made,
17
immediately after item 115 of this Part commences, under section 21 of
18
the Fuel Quality Standards Act 2000 as amended by that item.
19
(2)
In this item:
20
fuel standard has the same meaning as in the Fuel Quality Standards
21
Act 2000.
22
23
Amend ments Schedule 1
Miscellaneous Part 4
Fuel Quality Standards Amendment Bill 2009 No. , 2009 43
1
Part 4
--
Miscellaneous
2
Fuel Quality Standards Act 2000
3
120 Subsection 4(1) (paragraph (b) of the definition of
4
emergency law)
5
Omit "a determination", substitute "an instrument made".
6
121 Subsection 4(2)
7
Omit "written determination", substitute "legislative instrument".
8
122 Subsection 4(3)
9
Repeal the subsection.
10
123 Subsection 21(4)
11
Repeal the subsection.
12
124 Subsection 22(1)
13
Omit "(1) The Minister must develop written", substitute "The Minister
14
must, by legislative instrument, develop".
15
125 Subsection 22(2)
16
Repeal the subsection.
17
126 Subsection 22A(1)
18
Omit "in writing", substitute "by legislative instrument".
19
127 Subsection 22A(4)
20
Repeal the subsection.
21
128 Section 27
22
Repeal the section.
23
129 Subsection 28(1)
24
Omit "or an expert adviser".
25
130 Subsection 28(2)
26
Schedule 1 A mendments
Part 4 Miscellaneous
44 Fuel Quality Standards Amendment Bill 2009 No. , 2009
Omit "or expert adviser".
1
131 Subsection 28(3)
2
Omit "or an expert adviser".
3
132 Section 29
4
Omit "and expert advisers".
5
Note:
The heading to section 29 is altered by omitting "etc.".
6
133 Subsection 36(1)
7
Omit "develop written", substitute ", by legislative instrument,
8
develop".
9
134 Subsection 36(3)
10
Repeal the subsection.
11
135 Section 67A
12
Repeal the section, substitute:
13
67A Disclosure of information
14
The Secretary may disclose, or authorise the disclosure of,
15
information obtained under this Act if the Secretary reasonably
16
believes:
17
(a) that it is necessary or appropriate to do so in the course of
18
performing functions or exercising powers under this Act; or
19
(b) that the disclosure is likely to assist in the administration or
20
enforcement of:
21
(i) a taxation law (within the meaning of the Income Tax
22
Assessment Act 1997); or
23
(ii) a consumer protection law (within the meaning of the
24
Australian Postal Corporation Act 1989); or
25
(iii) any other prescribed Act.
26
136 Subsection 68(1)
27
Repeal the subsection, substitute:
28
(1) The Minister may, in writing, delegate to the Secretary all or any of
29
the Minister's powers or functions under this Act, other than the
30
following:
31
Amend ments Schedule 1
Miscellaneous Part 4
Fuel Quality Standards Amendment Bill 2009 No. , 2009 45
(a) making a determination under section 21;
1
(b) making a determination under section 22A.
2
(1A) The Minister may, in writing, delegate to an SES employee or an
3
acting SES employee all or any of the Minister's powers or
4
functions under this Act, other than the following:
5
(a) granting, varying or revoking an emergency approval;
6
(b) making a determination under section 21;
7
(c) making a determination under section 22A.
8
137 Savings provision
9
Despite the repeal of subsection 68(1) of the Fuel Quality Standards Act
10
2000, any delegation by the Minister:
11
(a) to the Secretary that was in force under that subsection
12
immediately before the commencement of this item continues
13
in force on and after that commencement as if it were a
14
delegation made by the Minister under subsection 68(1) of
15
that Act as substituted by item 136 of this Part; and
16
(b) to an SES employee or acting SES employee that was in
17
force under that subsection immediately before the
18
commencement of this item continues in force on and after
19
that commencement as if it were a delegation made by the
20
Minister under subsection 68(1A) of that Act as inserted by
21
item 136 of this Part.
22