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it receives the Royal Assent. 9 3 Schedule(s) 10 Each Act that is specified in a Schedule to this Act is amended or 11 repealed as set out in the applicable items in the Schedule Fuel Quality Standards Amendment Bill 2009 No. , 2009 1 [Page Break] 2 according to its terms. 3 2 Fuel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