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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Biofuel (Ethanol Content) Bill 2007
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Definitions 2
4 Primary wholesalers 2
5 Act applies only to sales to person in NSW or for delivery
in NSW 3
Part 2 Required ethanol content for petrol sales
6 Minimum 2% ethanol requirement for primary wholesalers 4
7 Returns by primary wholesalers 4
8 Keeping of records by primary wholesalers 4
Biofuel (Ethanol Content) Bill 2007
Contents
Page
Part 3 Compliance
9 Offence--failure to comply with minimum 2% ethanol
requirement 6
10 Offence--failure to furnish returns or keep records 6
11 Compliance reporting by Minister 7
12 Exemption from ethanol mandate 7
13 Suspension of ethanol mandate 8
Part 4 Enforcement
14 Appointment of investigators 9
15 Power of investigator to obtain information, records and
evidence 9
16 Powers of investigators 9
17 Interference with investigator 10
18 Seizure of records 11
19 Registration of primary wholesalers 11
Part 5 Miscellaneous
20 Expert Panel 12
21 Secrecy 12
22 Liability 13
23 Offences 14
24 Authority to prosecute 14
25 Penalty notices 14
26 Regulations 15
27 Amendment of Fines Act 1996 No 99 15
28 Review of Act 16
Contents page 2
I certify that this public bill, which originated in the Legislative Assembly, has
finally passed the Legislative Council and the Legislative Assembly of New
South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2007
New South Wales
Biofuel (Ethanol Content) Bill 2007
Act No , 2007
An Act to provide for a minimum ethanol content requirement in respect of the total
volume of petrol sales in the State.
I have examined this bill and find it to correspond in all respects with the bill as
finally passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Clause 1 Biofuel (Ethanol Content) Bill 2007
Part 1 Preliminary
The Legislature of New South Wales enacts:
Part 1 Preliminary
1 Name of Act
This Act is the Biofuel (Ethanol Content) Act 2007.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Definitions
(1) In this Act:
Director-General means the Director-General of the Department of
State and Regional Development.
exercise a function includes perform a duty.
Expert Panel means the Expert Panel established by section 20.
function includes a power, authority or duty.
petrol means a petroleum based fuel (whether or not containing ethanol)
for spark-ignition internal combustion engines that is sold as petrol or
as petrol-ethanol blend, but does not include diesel fuel, aviation fuel,
liquid petroleum gas and such other fuels as may be prescribed by the
regulations.
petrol-ethanol blend means petrol that contains ethanol (such as the
fuel known as E10).
petrol wholesaler means a person engaged in a business of selling petrol
for resale (whether or not that business also involves the sale of petrol
by retail).
primary wholesaler is defined in section 4.
relevant period is defined in section 6.
(2) Notes included in this Act do not form part of this Act.
4 Primary wholesalers
(1) In this Act:
primary wholesaler means a petrol wholesaler who operates or supplies
petrol from any of the following facilities (whether or not in New South
Wales) in connection with petrol wholesaling:
(a) an oil refinery,
(b) a shipping facility,
(c) a facility to which petrol is supplied by pipeline from an oil
refinery or a shipping facility,
Page 2
Biofuel (Ethanol Content) Bill 2007 Clause 5
Preliminary Part 1
(d) a facility to which petrol is supplied by pipeline from a facility
referred to in paragraph (c).
(2) The regulations may include any other petrol wholesaler or class of
petrol wholesalers in the definition of primary wholesaler.
(3) The regulations may exclude a person or class of persons from the
definition of primary wholesaler.
5 Act applies only to sales to person in NSW or for delivery in NSW
(1) This Act applies to the sale of petrol by a primary wholesaler to a person
in New South Wales or for delivery in New South Wales (whether or
not the sale is made in New South Wales).
(2) This Act does not apply to a sale of petrol by one primary wholesaler to
another primary wholesaler.
(3) A sale of petrol is considered to be a sale for delivery in New South
Wales if the terms (whether express or implied) of the sale or any
contract for the sale:
(a) require either party to the sale to deliver, or arrange delivery of,
the petrol into or within New South Wales, or
(b) contemplate delivery of the petrol into or within New South
Wales.
(4) The regulations may exclude any sale or class of sales from the
application of all or specified provisions of this Act.
Page 3
Clause 6 Biofuel (Ethanol Content) Bill 2007
Part 2 Required ethanol content for petrol sales
Part 2 Required ethanol content for petrol sales
6 Minimum 2% ethanol requirement for primary wholesalers
(1) A primary wholesaler must ensure that the volume of ethanol sold by
the wholesaler (in petrol-ethanol blend) during a relevant period is not
less than 2% of the total volume of all petrol (including petrol-ethanol
blend) sold by the wholesaler during the relevant period.
Note. Section 5 limits the sales of petrol to which this Act applies.
(2) Each of the 3-month periods that starts at the beginning of October,
January, April and July in each year is a relevant period for the purposes
of this Act. The regulations can change what is a relevant period for the
purposes of this Act.
(3) For the purpose of determining the volume of petrol sold by a primary
wholesaler, the volume of petrol that is petrol-ethanol blend is to be
determined as the combined volume of petrol and ethanol in the
petrol-ethanol blend (that is, by including the volume of the ethanol).
(4) The regulations may provide for the way in which the volume of petrol
and the volume of ethanol is to be determined for the purposes of this
Act.
7 Returns by primary wholesalers
(1) A primary wholesaler must furnish a return to the Director-General
within 1 month after the end of each relevant period.
(2) The return is to specify the following information in respect of sales of
petrol by the primary wholesaler during the relevant period:
(a) the total volume of petrol sold (including petrol-ethanol blend),
(b) the total volume of ethanol sold (in the form of petrol-ethanol
blend),
(c) such other information as may be prescribed by the regulations.
(3) The return is to be in such form as the Director-General may from time
to time require and notify to primary wholesalers.
(4) The first relevant period to which this section applies is the first relevant
period to start on or after the commencement of this section.
8 Keeping of records by primary wholesalers
(1) A primary wholesaler must keep such records in respect of sales of
petrol by the primary wholesaler as may be necessary to enable the
primary wholesaler to furnish the returns required by section 7.
Page 4
Biofuel (Ethanol Content) Bill 2007 Clause 8
Required ethanol content for petrol sales Part 2
(2) Those records are to include records of such transactions and other
matters in connection with petrol sales as the regulations may require.
(3) The regulations may prescribe the form and manner in which records
are to be kept and the period for which records are to be retained.
Page 5
Clause 9 Biofuel (Ethanol Content) Bill 2007
Part 3 Compliance
Part 3 Compliance
9 Offence--failure to comply with minimum 2% ethanol requirement
(1) A primary wholesaler who fails to comply with section 6 is guilty of an
offence.
Maximum penalty:
(a) in the case of a first offence--100 penalty units, or
(b) in the case of a second or subsequent offence--1,000 penalty
units.
(2) It is a defence to a prosecution for a failure to comply with section 6 if
the defendant proves that the defendant took all reasonable steps to
comply with the section.
(3) The regulations may make provision for or with respect to prescribing
actions the taking of which by a primary wholesaler will constitute the
taking of reasonable steps to comply with section 6.
(4) The regulations do not prevent a primary wholesaler from proving that
other actions taken by the primary wholesaler constitute the taking of
reasonable steps to comply with section 6.
10 Offence--failure to furnish returns or keep records
(1) A person who fails to furnish a return in compliance with section 7 or
who in purported compliance with that section furnishes a return
containing information that the person knows (or ought reasonably to
know) is false or misleading in a material particular is guilty of an
offence.
Maximum penalty:
(a) in the case of a first offence--100 penalty units, or
(b) in the case of a second or subsequent offence--1,000 penalty
units.
(2) A person who fails to keep and retain records in compliance with
section 8 or who in purported compliance with that section makes a
record containing information that the person knows (or ought
reasonably to know) is false or misleading in a material particular is
guilty of an offence.
Maximum penalty:
(a) in the case of a first offence--100 penalty units, or
(b) in the case of a second or subsequent offence--1,000 penalty
units.
Page 6
Biofuel (Ethanol Content) Bill 2007 Clause 11
Compliance Part 3
(3) It is a defence to a prosecution for a failure to keep and retain records in
compliance with section 8 if the defendant proves that the defendant had
a reasonable excuse for the failure.
11 Compliance reporting by Minister
(1) The Minister may from time to time publish information about
compliance with the requirements of this Act by primary wholesalers.
(2) Without limiting this section, the Minister may publish the names of
primary wholesalers who fail to comply with section 6 or any other
provision of this Act, together with information about the nature and
extent of any such failure.
(3) Information published under this section can include a copy of any
return furnished under this Act by a primary wholesaler.
(4) The regulations can prohibit the publication under this section of
specified information or information of a specified kind, for the purpose
of protecting the confidentiality of the information.
12 Exemption from ethanol mandate
(1) The Minister may by order in writing exempt a specified primary
wholesaler from compliance with section 6 if the Minister is satisfied
that:
(a) compliance by the primary wholesaler with that section is
uneconomic because of the price at which the primary wholesaler
is reasonably able to obtain ethanol, or
(b) circumstances exist that are prescribed by the regulations as
justifying exempting the primary wholesaler from compliance
with that section.
(2) The Minister is not to grant an exemption without first referring the
proposed exemption to the Expert Panel for advice and considering the
advice of the Expert Panel on the proposed exemption.
(3) An exemption can be granted subject to conditions.
(4) An exemption can be granted as a partial exemption specifying a
minimum ethanol percentage of less than 2% (with the result that
section 6 then applies to require that the volume of ethanol sold by the
primary wholesaler during a relevant period covered by the exemption
is not less than that specified percentage of the total volume of all petrol
sold by the primary wholesaler during the relevant period).
(5) An exemption that is granted for a specified period remains in force for
that period.
Page 7
Clause 13 Biofuel (Ethanol Content) Bill 2007
Part 3 Compliance
(6) An exemption that is not granted for a specified period remains in force
until it is revoked. The Minister may revoke such an exemption at any
time by notice in writing to the wholesaler concerned.
Note. An exemption from compliance with section 6 does not affect the
obligation to comply with section 7 (Returns by primary wholesalers) or 8
(Keeping of records by primary wholesalers).
13 Suspension of ethanol mandate
(1) The Minister may by order published in the Gazette suspend the
operation of section 6 if satisfied that compliance with that section:
(a) is uneconomic as a result of the price at which primary
wholesalers are reasonably able to obtain ethanol or
industry-wide ethanol shortages, or
(b) may result in a risk to public health or safety, or
(c) may have an adverse effect on the retail price of petrol for
motorists, or
(d) should be suspended for some other extraordinary reason.
(2) The Minister is not to suspend the operation of section 6 without first
referring the proposed suspension to the Expert Panel for advice and
considering the advice of the Expert Panel on the proposed suspension.
(3) A suspension can be granted as a partial suspension specifying a
minimum ethanol percentage of less than 2% (with the result that
section 6 then applies to require that the volume of ethanol sold by a
primary wholesaler during a relevant period covered by the suspension
is not less than that specified percentage of the total volume of all petrol
sold by the primary wholesaler during the relevant period).
(4) A suspension granted for a specified period remains in force for that
period.
(5) A suspension that is not granted for a specified period (an indefinite
suspension) remains in force until it is revoked.
(6) The Minister must keep an indefinite suspension under periodic review
and must revoke the suspension when satisfied that grounds for the
suspension no longer exist. The Minister revokes an indefinite
suspension by notice in writing published in the Gazette.
Note. The suspension of operation of section 6 does not affect the obligation to
comply with section 7 (Returns by primary wholesalers) or 8 (Keeping of records
by primary wholesalers).
Page 8
Biofuel (Ethanol Content) Bill 2007 Clause 14
Enforcement Part 4
Part 4 Enforcement
14 Appointment of investigators
(1) The Director-General may appoint any member of staff of the
Department of State and Regional Development as an investigator for
the purposes of this Act.
(2) The Director-General is to provide an investigator with a certificate of
authority.
15 Power of investigator to obtain information, records and evidence
(1) If an investigator believes on reasonable grounds that a person is
capable of giving information, producing records or giving evidence in
relation to a matter that constitutes, or may constitute, an offence
against this Act or the regulations or that may assist in ascertaining
whether the provisions of this Act or the regulations are being complied
with or have been contravened, the investigator may, by notice in
writing given to the person, require the person:
(a) to provide an investigator, in writing signed by the person (or, in
the case of a corporation, by a competent officer of the
corporation) and given to the investigator within the time and in
the manner specified in the notice, with any such information, or
(b) to produce to an investigator, in accordance with the notice, any
such records, or
(c) to appear before an investigator at a time and place specified in
the notice and give any such evidence, either orally or in writing,
and produce any such records.
(2) The powers conferred by this section may only be exercised to impose
a requirement on the following persons:
(a) any primary wholesaler,
(b) any person whom the investigator reasonably believes has been
supplied with petrol by a primary wholesaler.
16 Powers of investigators
(1) An investigator may exercise the powers conferred by this section for
the purpose of:
(a) ascertaining whether the provisions of this Act or the regulations
are being complied with or have been contravened, or
(b) obtaining evidence, records or information in relation to a matter
that constitutes or may constitute a contravention of this Act or
the regulations.
Page 9
Clause 17 Biofuel (Ethanol Content) Bill 2007
Part 4 Enforcement
(2) An investigator may enter and inspect at any reasonable time any
premises that the investigator believes on reasonable grounds are
premises:
(a) used for the conduct of any aspect of the business of a primary
wholesaler, or
(b) used for the conduct of a business by a person whom the
investigator reasonably believes has been supplied with petrol by
a primary wholesaler.
(3) While on premises entered under this section, an investigator may do
any one or more of the following:
(a) require any person on those premises to produce any records in
the possession or under the control of that person relating to the
sale or purchase of petrol,
(b) inspect and take copies of, or extracts or notes from, any such
records and, if the investigator considers it necessary to do so for
the purpose of obtaining evidence, seize any such records,
(c) require any person on those premises to answer questions or
otherwise furnish information in relation to the sale or purchase
of petrol,
(d) require the owner or occupier of those premises to provide the
investigator with such assistance and facilities as is or are
reasonably necessary to enable the investigator to exercise the
functions of an investigator under this section.
(4) An investigator is not entitled to enter a part of premises used for
residential purposes, except with the consent of the occupier of the part.
(5) An investigator must, when exercising on any premises any function of
the investigator under this Part, produce the investigator's certificate of
authority to any person apparently in charge of the premises who
requests its production.
17 Interference with investigator
A person must not:
(a) without reasonable excuse, refuse or fail to comply with any
notice given or requirement made, or to answer any question
asked, by an investigator under this Part, or
(b) wilfully delay, hinder or obstruct an investigator in the exercise
of the investigator's powers under this Part, or
Page 10
Biofuel (Ethanol Content) Bill 2007 Clause 18
Enforcement Part 4
(c) furnish an investigator with information that the person knows
(or ought reasonably to know) is false or misleading in a material
particular.
Maximum penalty: 50 penalty units.
18 Seizure of records
(1) If an investigator seizes any records under this Part, they may be
retained by the investigator until the completion of any proceedings
(including proceedings on appeal) in which they may be evidence but
only if the person from whom the records were seized is provided,
within a reasonable time after the seizure, with a copy of the records
certified by an investigator as a true copy.
(2) A copy of records provided under this section is, as evidence, of equal
validity to the records of which it is certified to be a copy.
19 Registration of primary wholesalers
(1) The regulations may make provision for or with respect to requiring
primary wholesalers to be registered for the purposes of this Act.
(2) In particular, the regulations may make provision for or with respect to
any of the following matters in connection with the registration of
primary wholesalers:
(a) applications for registration,
(b) the keeping and administration of a register, and the regulation of
access to the register,
(c) the imposition of conditions on registration,
(d) the cancellation or suspension of registration (for example, for a
contravention of a provision of this Act),
(e) prohibiting a person from engaging in the business of a primary
wholesaler unless registered in accordance with the regulations,
(f) the review by the Administrative Decisions Tribunal of decisions
made in respect of registration.
Page 11
Clause 20 Biofuel (Ethanol Content) Bill 2007
Part 5 Miscellaneous
Part 5 Miscellaneous
20 Expert Panel
(1) An Expert Panel is established consisting of the Department heads of
the Department of State and Regional Development, the Department of
Primary Industries, the Department of Environment and Climate
Change and the Department of Commerce, or their nominees, as
members of the Expert Panel.
(2) The Director-General of the Department of State and Regional
Development or that Director-General's nominee is to chair the Expert
Panel.
(3) The function of the Expert Panel is to provide advice to the Minister on:
(a) any proposal referred to the Panel by the Minister for the granting
of an exemption from, or the suspension of, the operation of
section 6, and
(b) such other matters in connection with the operation of this Act as
may be referred to the Expert Panel by the Minister.
(4) The Minister can issue guidelines to the Expert Panel from time to time
as to the matters that are relevant for the purpose of determining
whether grounds exist for the grant of an exemption from or suspension
of the operation of section 6.
21 Secrecy
(1) This section applies to the following persons:
(a) the Minister,
(b) the Director-General and a person who is or was a member of
staff of the Department of State and Regional Development,
(c) a person who is or was a member of the Expert Panel.
(2) A person to whom this section applies must not, directly or indirectly,
except for the purposes of this Act or otherwise in connection with the
exercise of the person's functions under this Act:
(a) make a record of any information, acquired by the person by
reason of, or in the course of, the exercise of the person's
functions under this Act, or
(b) divulge or communicate to any person any such information.
Maximum penalty: 50 penalty units or imprisonment for 12 months, or
both.
Page 12
Biofuel (Ethanol Content) Bill 2007 Clause 22
Miscellaneous Part 5
(3) A person to whom this section applies cannot be required:
(a) to produce to any person or body any document or other thing
that has come into the person's possession, custody or control by
reason of, or in the course of, the exercise of the person's
functions under this Act, or
(b) to divulge or communicate to any person or body any matter or
thing that has come to the person's notice in the exercise of the
person's functions under this Act.
(4) Despite this section, a person to whom this section applies may divulge
any such information:
(a) for the purposes of and in accordance with this Act, or
(b) for the purposes of a prosecution under this Act, or
(c) in accordance with a direction of the Director-General, if the
Director-General certifies that it is necessary to do so in the
public interest, or
(d) to any person or body prescribed by the regulations.
(5) A person or body to whom information is divulged under subsection (4),
and any person or employee under the control of that person or body, is
subject to the same rights, privileges, obligations and liabilities under
subsections (2) and (3) in respect of that information as if he or she were
a person to whom this section applies and had acquired the information
in the exercise of functions under this Act.
(6) In this section:
body includes any court, tribunal, authority or body having power to
require the production of documents or the answering of questions.
produce includes permit access to.
22 Liability
(1) The State does not incur any liability, and compensation is not payable
by or on behalf of the State, arising directly or indirectly from any of the
following matters occurring before or after the commencement of this
section:
(a) the enactment or operation of this Act,
(b) the exercise by any person of a function under this Act or a failure
to exercise any such function,
(c) any statement or conduct relating to the regulation of the ethanol
content of petrol supplied by petrol suppliers.
Page 13
Clause 23 Biofuel (Ethanol Content) Bill 2007
Part 5 Miscellaneous
(2) In this section:
compensation includes damages or any other form of monetary
compensation.
conduct includes any act or omission, whether unconscionable,
misleading, deceptive or otherwise.
statement includes a representation of any kind:
(a) whether made verbally or in writing, and
(b) whether negligent, false or misleading or otherwise.
the State means the Crown within the meaning of the Crown
Proceedings Act 1988, and includes an officer, employee or agent of the
Crown and an investigator appointed under section 14.
this Act includes any regulation made under this Act and any
suspension or exemption under this Act.
23 Offences
(1) Proceedings for an offence against this Act or the regulations are to be
disposed of summarily before:
(a) a Local Court, or
(b) the Supreme Court in its summary jurisdiction.
(2) If proceedings are brought before a Local Court, the maximum
monetary penalty that the Local Court may impose for the offence is
100 penalty units, despite any higher maximum monetary penalty
provided in respect of the offence.
24 Authority to prosecute
Proceedings for an offence against this Act or the regulations may be
instituted only with the written consent of the Minister.
25 Penalty notices
(1) An authorised officer may serve a penalty notice on a person if it
appears to the officer that the person has committed an offence against
this Act or the regulations, being an offence prescribed by the
regulations as a penalty notice offence.
(2) A penalty notice is a notice to the effect that, if the person served does
not wish to have the matter determined by a court, the person can pay,
within the time and to the person specified in the notice, the amount of
the penalty prescribed by the regulations for the offence if dealt with
under this section.
(3) A penalty notice may be served personally or by post.
Page 14
Biofuel (Ethanol Content) Bill 2007 Clause 26
Miscellaneous Part 5
(4) If the amount of penalty prescribed for an alleged offence is paid under
this section, no person is liable to any further proceedings for the
alleged offence.
(5) Payment under this section is not to be regarded as an admission of
liability for the purpose of, and does not in any way affect or prejudice,
any civil claim, action or proceeding arising out of the same occurrence.
(6) The regulations may:
(a) prescribe an offence for the purposes of this section by specifying
the offence or by referring to the provision creating the offence,
and
(b) prescribe the amount of penalty payable for the offence if dealt
with under this section, and
(c) prescribe different amounts of penalties for different offences or
classes of offences.
(7) The amount of a penalty prescribed under this section for an offence is
not to exceed the maximum amount of penalty that could be imposed for
the offence by a court.
(8) This section does not limit the operation of any other provision of, or
made under, this or any other Act relating to proceedings that may be
taken in respect of offences.
(9) In this section, authorised officer means a member of staff of the
Department of State and Regional Development authorised in writing
by the Director-General as an authorised officer for the purposes of this
section.
26 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for
or with respect to any matter that by this Act is required or permitted to
be prescribed or that is necessary or convenient to be prescribed for
carrying out or giving effect to this Act.
(2) A regulation may create an offence punishable by a penalty not
exceeding 100 penalty units.
27 Amendment of Fines Act 1996 No 99
Insert in alphabetical order in Schedule 1 to the Fines Act 1996:
Biofuel (Ethanol Content) Act 2007, section 25
Page 15
Clause 28 Biofuel (Ethanol Content) Bill 2007
Part 5 Miscellaneous
28 Review of Act
(1) The Minister is to review this Act to determine whether the policy
objectives of the Act remain valid and whether the terms of the Act
remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the period of
3 years from the date of assent to this Act.
(3) A report on the outcome of the review is to be tabled in each House of
Parliament within 12 months after the end of the period of 3 years.
Page 16
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