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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000
The Parliament
of the
Commonwealth of
Australia
THE
SENATE
As read a third
time
Fuel Quality
Standards Bill 2000
No. ,
2000
A Bill for an Act to
regulate activities involving fuel and fuel additives, and for related
purposes
ISBN: 0642 453977
Contents
THIS bill originated in the Senate; and, having this day passed, is now
ready for presentation to the House of Representatives for its
concurrence.
HARRY EVANS
Clerk of the Senate
The Senate
8 November 2000
A Bill for an Act to regulate activities involving fuel
and fuel additives, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Fuel Quality Standards Act
2000.
This Act commences on a day or days to be fixed by
Proclamation.
The main object of this Act is to regulate the quality of fuel supplied
in Australia in order to:
(a) reduce the level of pollutants and emissions arising from the use of
fuel that may cause environmental and health problems; and
(b) facilitate the adoption of better engine technology and emission
control technology; and
(c) allow the more effective operation of engines.
(1) In this Act, unless the contrary intention appears:
approval means an approval under section 13.
Australia, when used in a geographical sense, includes the
external Territories (other than Norfolk Island).
Commonwealth entity means any of the following:
(a) the Commonwealth;
(b) a body corporate established for a public purpose by or under an
Act;
(c) a company in which a controlling interest is held by any one of the
following persons, or by 2 or more of the following persons together:
(i) the Commonwealth;
(ii) a body covered by paragraph (b).
constitutional corporation means a corporation to which
paragraph 51(xx) of the Constitution applies.
constitutional trade or commerce means trade or
commerce:
(a) among the States; or
(b) between a State and a Territory; or
(c) between 2 Territories.
emergency law means:
(a) the Liquid Fuel Emergency Act 1984; or
(b) a law specified in a determination under
subsection (2).
evidential material means any of the following:
(a) a thing with respect to which an offence against this Act has been
committed or is suspected, on reasonable grounds, to have been
committed;
(b) a thing that there are reasonable grounds for suspecting will afford
evidence as to the commission of any such offence;
(c) a thing that there are reasonable grounds for suspecting is intended
to be used for the purpose of committing any such offence.
fuel has the meaning given by the regulations.
fuel additive has the meaning given by the
regulations.
fuel standard means a standard under
section 21.
Note: See also section 5.
inspector means a person appointed as an inspector under
section 38.
monitoring warrant means a warrant issued under
section 59.
offence against this Act includes an offence against
section 137.1 or 137.2 of the Criminal Code that relates to this
Act.
Note: See also section 11.6 of the Criminal
Code.
offence-related warrant means:
(a) a warrant issued under section 60; or
(b) a warrant signed by a magistrate under section 61.
premises means:
(a) an area of land or any other place (whether or not it is enclosed or
built on); or
(b) a building or other structure; or
(c) a vehicle, vessel or aircraft; or
(d) a part of any such premises.
Register means the Register of Prohibited Fuel Additives kept
under section 32.
Secretary means the Secretary of the Department.
supply means supply (including re-supply) by way of sale,
exchange or gift.
thing includes a substance, and a thing in electronic or
magnetic form.
(2) The Minister may, by written determination, specify a law of the
Commonwealth, a State or a Territory for the purposes of the definition of
emergency law in subsection (1).
(3) A determination under subsection (2) is a disallowable instrument
for the purposes of section 46A of the Acts Interpretation Act
1901.
A reference in this Act to a fuel standard, in relation to a supply of
fuel, is a reference to the standard as it applies in relation to the area in
which the supply occurs.
Note: A fuel standard may apply more stringently in respect
of supplies of the fuel in particular areas in Australia: see subsection
21(2).
(1) This Act binds the Crown in each of its capacities.
(2) However, nothing in this Act makes the Crown liable to be prosecuted
for an offence.
This Act extends to every external Territory other than Norfolk
Island.
The provisions of this Act are in addition to, and not in substitution
for, the requirements of any other law of the Commonwealth.
(1) Subject to this section, it is the intention of the Parliament that
this Act is not to apply to the exclusion of a law of a State or Territory to
the extent that the law is capable of operating concurrently with this
Act.
(2) It is the intention of the Parliament that, to the extent prescribed
by the regulations, this Act is to apply to the exclusion of a law of a State or
Territory relating to the supply of fuel that is the subject of a fuel
standard.
(1) The Criminal Code applies to all offences against this
Act.
(2) If a maximum penalty is specified:
(a) at the foot of a section of this Act (other than a section that is
divided into subsections); or
(b) at the foot of a subsection of this Act;
then:
(c) a person who contravenes the section or subsection is guilty of an
offence punishable, on conviction, by a penalty not exceeding the specified
penalty; or
(d) the offence referred to in the section or subsection is punishable, on
conviction, by a penalty not exceeding the specified penalty.
This Part sets out a regulatory regime in relation to activities involving
fuel and fuel additives.
Division 2 creates an offence relating to the supply of fuel that does
not comply with a fuel standard.
Division 3 deals with the granting of approvals to vary a fuel
standard.
Division 4 deals with fuel documentation that is required for certain
supplies of fuel in Australia.
Division 5 creates an offence relating to the alteration of
fuel.
Division 6 deals with the making of fuel standards and the
consultation required beforehand.
Division 7 creates offences relating to the supply or importation of a
fuel additive that is covered by an entry in the Register of Prohibited Fuel
Additives.
Division 8 deals with keeping the Register and the process to be
followed before entries are made in it.
(1) A person is guilty of an offence if:
(a) the person supplies fuel in Australia that is the subject of a fuel
standard; and
(b) the person is a constitutional corporation or a Commonwealth entity or
the person supplies the fuel in the course of constitutional trade or commerce;
and
(c) the fuel does not comply with the standard; and
(e) if any person holds an approval that varies the standard in respect of
the supply—the fuel does not comply with the standard as varied;
and
(f) the supply is not in order to comply with a direction or order under
an emergency law.
Maximum penalty: 1,000 penalty units.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(2) However, the person is not guilty of the offence if the person
believes on reasonable grounds that the fuel that is supplied will be further
processed for the purpose of bringing the fuel into compliance with the standard
or the standard as varied.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2): see subsection 13.3(3) of the Criminal
Code.
(1) The Minister may grant to any person an approval in writing that, in
respect of specified fuel that is the subject of a fuel standard, varies the
standard in a specified way in respect of specified supplies of the fuel
by:
(a) that person; or
(b) any other specified person (a regulated
person).
(2) An approval under subsection (1) comes into force on the day specified
in the approval and remains in force for the period specified in the
approval.
(1) An application for an approval must be made in accordance with the
regulations.
(2) The application must be accompanied by the application fee (if any)
prescribed by the regulations.
(1) The Minister must have regard to the following when deciding whether
or not to grant an approval:
(a) the protection of the environment;
(b) the protection of occupational and public health and safety;
(c) the interests of consumers;
(d) the impact on economic and regional development.
(2) The Minister may also have regard to any other matters he or she
considers relevant.
An approval is subject to the following conditions:
(a) the conditions set out in section 17;
(b) any conditions specified in the approval.
(1) It is a condition of an approval that its holder, within the period
prescribed by the regulations, inform any regulated person, to whom a particular
condition of the approval applies, of the following:
(a) the particular condition, including any variation of it;
(b) any revocation of the approval.
Note: For regulated person, see
section 13.
(2) Requirements in relation to the manner in which information is
provided under subsection (1) may be prescribed by the
regulations.
(3) If such requirements are prescribed, it is a condition of the approval
that its holder comply with the requirements.
As soon as practicable after granting an approval under section 13, the
Minister must cause to be published in the Gazette a notice containing
the following information:
(a) the name of the person to whom the approval has been
granted;
(b) the period of operation of the approval;
(c) details of the approved variation of the fuel standard;
(d) reasons for granting the approval.
Holder of approval
(1) The holder of an approval is guilty of an offence if:
(a) the holder intentionally takes an action or omits to take an action;
and
(b) the holder is a constitutional corporation or a Commonwealth entity or
the action or omission occurs in the course of constitutional trade or commerce;
and
(c) the action or omission contravenes a condition of the approval;
and
(d) the holder knows that the action or omission contravenes the condition
or is reckless as to whether or not the action or omission contravenes the
condition.
Maximum penalty: 100 penalty units.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Regulated person
(2) A regulated person is guilty of an offence if:
(a) the person intentionally takes an action or omits to take an action;
and
(b) the person is a constitutional corporation or a Commonwealth entity or
the action or omission occurs in the course of constitutional trade or commerce;
and
(c) the action or omission contravenes a condition of the approval
concerned; and
(d) the person has knowledge of the condition; and
(e) the person knows that the action or omission contravenes the condition
or is reckless as to whether or not the action or omission contravenes the
condition.
Maximum penalty: 100 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For regulated person, see
section 13.
If:
(a) a person (the supplier) supplies fuel in Australia to
another person and the fuel is the subject of a fuel standard; and
(b) the supplier is a constitutional corporation or a Commonwealth entity
or the supplier supplies the fuel in the course of constitutional trade or
commerce; and
(c) the other person is not the end-user of the fuel;
the supplier must, within the period prescribed by the regulations, provide
the other person with a document or documents containing:
(d) a statement as to whether or not the fuel complies with the standard;
and
(e) any other information relating to the fuel that is prescribed by the
regulations.
Maximum penalty: 60 penalty units.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(1) A person is guilty of an offence if:
(a) the person alters in any way fuel in Australia that is the subject of
a fuel standard; and
(b) the person is a constitutional corporation or a Commonwealth entity or
the person alters the fuel in the course of, or for any purpose that is
incidental to, constitutional trade or commerce; and
(c) the person alters the fuel with the intention of using it in
Australia; and
(d) the fuel as altered does not comply with the base standard (whether or
not the fuel complied with that standard before the alteration); and
(e) if:
(i) the fuel was supplied to the person in Australia; and
(ii) any person held an approval varying the standard in respect of that
supply;
the fuel as altered does not comply with that standard as varied (whether
or not the fuel complied with that standard as varied before the
alteration).
Note: See section 5 for the applicable standard in
respect of that supply.
Maximum penalty: 1,000 penalty units.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(2) For the purposes of subsection (1), base standard
means the standard determined under section 21, disregarding the
application of subsection 21(2).
Base standard
(1) The Minister may, in writing, determine that specified matters
constitute a fuel standard in respect of a specified kind of fuel.
More stringent standard
(2) The fuel standard may provide for more stringent parameters to apply
in respect of supplies of the fuel in specified areas in Australia.
Minister must not give preference
(3) In applying subsection (2), the Minister must not give preference
(within the meaning of section 99 of the Constitution) to one State or part
of a State over another State or part of a State.
Determinations are disallowable
(4) A determination under this section is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
Regard to be had to main object of
Act
(5) In making a determination under this section, the Minister must have
regard to the main object of this Act.
(1) The Minister must develop written guidelines that he or she must have
regard to in applying subsection 21(2).
(2) The guidelines are a disallowable instrument for the purposes of
section 46A of the Acts Interpretation Act 1901.
The Fuel Standards Consultative Committee is established.
(1) The Minister must consult the Fuel Standards Consultative
Committee:
(a) before granting an approval under section 13; and
(b) before making a determination under section 21; and
(c) before making a decision under subsection 35(2); and
(d) in preparing guidelines under section 22.
(2) The requirement to consult the Committee before granting an approval
under section 13 includes the requirement to consult the Committee in respect of
the period for which the approval is to be in force.
(3) The Minister is not required to consult the Committee in relation to a
determination made under section 21 within 6 months after the commencement of
that section.
(4) The Minister must have regard to any recommendations of the Committee
arising out of the consultation.
(1) The Committee consists of such members as the Minister
determines.
Membership
(2) However, the Minister must ensure that the membership includes the
following:
(a) 1 representative of each State, the Australian Capital Territory and
the Northern Territory;
(b) 1 representative of the Commonwealth;
(c) 1 person representing fuel producers;
(d) 1 person representing a non-government body with an interest in the
protection of the environment;
(e) 1 person representing the interests of consumers.
Appointment
(3) The Minister must appoint members by written instrument.
Chair
(4) The Minister must appoint a member to be the Chair of the
Committee.
Part-time office
(5) Each member holds office on a part-time basis.
The Committee is to determine its own procedures.
(1) The Minister may appoint one or more persons (expert
advisers) to give expert advice to the Fuel Standards Consultative
Committee to assist the Committee in commenting on matters about which the
Minister is required to consult the Committee.
(2) The Minister must appoint expert advisers by written
instrument.
(3) Expert advisers are not members of the Committee.
(1) A person who is a member of the Fuel Standards Consultative Committee
or an expert adviser is to be paid the remuneration that is determined by the
Remuneration Tribunal.
(2) If no determination of that remuneration by the Tribunal is in
operation, the member or expert adviser is to be paid the remuneration that is
prescribed by the regulations.
(3) A person who is a member of the Fuel Standards Consultative Committee
or an expert adviser is to be paid the allowances that are prescribed by the
regulations.
(4) This section has effect subject to the Remuneration Tribunal Act
1973.
The regulations may prescribe matters relating to the members of the Fuel
Standards Consultative Committee and expert advisers, including, but not limited
to, the following:
(a) term of appointment;
(b) resignation;
(c) disclosure of interests;
(d) termination of appointment;
(e) leave of absence.
A person is guilty of an offence if:
(a) the person supplies a fuel additive in Australia; and
(b) the person is a constitutional corporation or a Commonwealth entity or
the person supplies the fuel additive in the course of constitutional trade or
commerce; and
(c) the fuel additive is covered by an entry in the Register.
Maximum penalty: 500 penalty units.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
A person is guilty of an offence if:
(a) the person imports a fuel additive into Australia; and
(b) the fuel additive is covered by an entry in the Register.
Maximum penalty: 500 penalty units.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(1) The Minister must keep a Register of Prohibited Fuel
Additives.
(2) The Register may be maintained by electronic means.
(1) The Minister must make the Register available for any person to
inspect it at the times and places published in the Gazette.
(2) The Register is also to be made available for inspection on the
Internet.
(1) The Minister may:
(a) enter a fuel additive, or a class of fuel additives, in the Register;
or
(b) remove a fuel additive, or a class of fuel additives, from the
Register.
(2) Before doing so, the Minister must publish, in accordance with the
regulations, notice of the action he or she is proposing to take.
(3) The notice must:
(a) invite persons to make submissions on the proposal; and
(b) specify the addresses (including an Internet address) to which
submissions may be sent; and
(c) specify the day by which submissions must be sent (which must be at
least 60 days after the day the notice is published).
Minister to consider submissions
(1) The Minister must consider all submissions received by the day
specified in the notice.
Minister’s decision
(2) The Minister must then make a decision whether or not to:
(a) enter the fuel additive, or the class of fuel additives, in the
Register; or
(b) remove the fuel additive, or the class of fuel additives, from the
Register.
General notice
(3) The Minister must publish, in accordance with the regulations, notice
of his or her decision.
Notice to persons who made submissions
(4) The Minister must also give notice of his or her decision to each
person who made a submission. The notice must include a statement to the effect
that an application may be made to the Administrative Review Tribunal for review
of the decision.
(1) The Minister must develop written guidelines that he or she must have
regard to when deciding whether or not to:
(a) enter a fuel additive, or a class of fuel additives, in the Register;
or
(b) remove a fuel additive, or a class of fuel additives, from the
Register.
(2) The guidelines are to be made available for inspection on the
Internet.
(3) The guidelines are a disallowable instrument for the purposes of
section 46A of the Acts Interpretation Act 1901.
This Part mainly sets out an enforcement regime for the purpose of finding
out whether this Act has been complied with or of assessing the correctness of
information provided under this Act.
Division 2 provides for the appointment of inspectors.
Divisions 3 to 7 deal with the powers and obligations of inspectors
and the rights and responsibilities of an occupier of premises when an inspector
seeks to exercise powers.
Division 8 deals with monitoring warrants and offence-related
warrants.
Division 9 deals with the powers of magistrates under this
Part.
Division 10 deals with injunctions restraining a person from engaging
in conduct that would otherwise be an offence against this Act.
(1) The Secretary may, in writing, appoint any of the following persons as
an inspector for the purposes of this Act:
(a) a person who is appointed or employed by the Commonwealth;
(b) a person who is appointed or employed by a State or
Territory.
(2) The Secretary must not appoint a person as an inspector unless the
Secretary is satisfied that the person has suitable qualifications and
experience to properly exercise the powers of an inspector.
(3) An inspector must, in exercising powers or performing functions as an
inspector, comply with any directions of the Secretary.
(1) The Secretary must issue an identity card to an inspector.
Form of identity card
(2) The identity card must:
(a) be in the form prescribed by the regulations; and
(b) contain a recent photograph of the inspector.
Offence
(3) A person is guilty of an offence if:
(a) the person has been issued with an identity card; and
(b) the person ceases to be an inspector; and
(c) the person does not return the identity card to the Secretary as soon
as practicable.
Maximum penalty: 1 penalty unit.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(4) This offence is one of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
Defence: card lost or destroyed
(5) However, the person is not guilty of the offence if the identity card
was lost or destroyed.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (5): see subsection 13.3(3) of the Criminal
Code.
Inspector must carry card
(6) An inspector must carry his or her identity card at all times when
exercising powers or performing functions as an inspector.
(1) For the purpose of finding out whether this Act has been complied with
or of assessing the correctness of information provided under this Act, an
inspector may:
(a) enter any premises; and
(b) exercise the monitoring powers set out in section 41.
(2) However, an inspector is not authorised to enter the premises
unless:
(a) the occupier of the premises has consented to the entry; or
(b) the entry is made under a monitoring warrant.
General powers
(1) For the purposes of this Part, the following are the monitoring
powers that an inspector may exercise in relation to premises under
section 40:
(a) to search the premises and any thing on the premises;
(b) to inspect, examine, take measurements of, conduct tests on, or take
samples of, any fuel or fuel additive on the premises;
(c) to take photographs, make video or audio recordings or make sketches
of the premises or any thing on the premises;
(d) to inspect any book, record or document on the premises;
(e) to take extracts from or make copies of any such book, record or
document;
(f) to take onto the premises such equipment and materials as the
inspector requires for the purpose of exercising powers in relation to the
premises;
(g) to secure a thing, until an offence-related warrant is obtained to
seize it:
(i) that the inspector finds during the exercise of monitoring powers on
the premises; and
(ii) that the inspector believes on reasonable grounds is evidential
material; and
(iii) that the inspector believes on reasonable grounds would be lost,
destroyed or tampered with before the warrant can be obtained;
(h) the powers in subsections (2) and (3).
Operation of equipment
(2) For the purposes of this Part, the monitoring powers
include the power to operate equipment at premises to find out
whether:
(a) the equipment; or
(b) a disk, tape or other storage device that is at the premises and can
be used with the equipment or is associated with it;
contains information that is relevant to:
(c) determining whether there has been compliance with this Act;
or
(d) assessing the correctness of information provided under this
Act.
Removing documents and disks etc.
(3) For the purposes of this Part, if the inspector, after operating the
equipment, finds that the equipment, or that a disk, tape or other storage
device at the premises, contains such information, the monitoring
powers include the following powers:
(a) to operate facilities at the premises to put the information in
documentary form and remove the documents so produced;
(b) to operate facilities at the premises to transfer the information to a
disk, tape or other storage device that:
(i) is brought to the premises for the exercise of the power; or
(ii) is at the premises and the use of which for the purpose has been
agreed to in writing by the occupier of the premises;
and remove the disk, tape or other storage device from the
premises.
How powers to be exercised
(4) The powers mentioned in subsections (2) and (3) must be exercised
in accordance with section 49.
(1) An inspector who is authorised to enter premises by a monitoring
warrant may require any person in or on the premises to:
(a) answer any questions put by the inspector; or
(b) produce any book, record or document requested by the
inspector.
(2) A person is guilty of an offence if the person refuses or fails to
comply with a requirement under subsection (1).
Maximum penalty: Imprisonment for 6 months.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(3) A person is excused from complying with a requirement under
subsection (1) if the answer to the question or the production of the book,
record or document might tend to incriminate the person or expose the person to
a penalty.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (3), see subsection 13.3(3) of the Criminal
Code.
(1) If an inspector has reasonable grounds for suspecting that there may
be evidential material on any premises, the inspector may:
(a) enter the premises; and
(b) exercise the offence-related powers set out in
section 44.
(2) However, an inspector is not authorised to enter the premises
unless:
(a) the occupier of the premises has consented to the entry; or
(b) the entry is made under an offence-related warrant.
(3) If the entry is under an offence-related warrant, the inspector may
seize the evidential material if the inspector finds it on the
premises.
General powers
(1) For the purposes of this Part, the following are the
offence-related powers that an inspector may exercise in relation
to premises under section 43:
(a) to search the premises and any thing on the premises for the
evidential material;
(b) to inspect, examine, take measurements of, conduct tests on, or take
samples of the evidential material;
(c) to take photographs, make video or audio recordings or make sketches
of the premises or the evidential material;
(d) to take onto the premises such equipment and materials as the
inspector requires for the purpose of exercising powers in relation to the
premises;
(e) the powers in subsections (2), (3) and (7).
Operation of equipment
(2) For the purposes of this Part, the offence-related
powers include the power to operate equipment at premises to find out
whether evidential material is accessible by doing so.
Removing documents and disks etc.
(3) For the purposes of this Part, if the inspector, after operating the
equipment, finds that evidential material is accessible by doing so, the
offence-related powers include the following powers:
(a) to seize the equipment and any disk, tape or other associated
device;
(b) to operate the equipment or other facilities at the premises to put
the evidential material in documentary form and seize the documents so
produced;
(c) to operate the equipment or other facilities at the premises to
transfer the material to a disk, tape or other storage device that:
(i) is brought to the premises for the exercise of the power; or
(ii) is at the premises and the use of which for the purpose has been
agreed to in writing by the occupier of the premises;
and remove the disk, tape or other storage device from the
premises.
How powers to be exercised
(4) The powers mentioned in subsections (2) and (3) must be exercised
in accordance with section 49.
Seizing equipment
(5) An inspector may seize equipment under paragraph (3)(a) only
if:
(a) it is not practicable to put the material in documentary form as
mentioned in paragraph (3)(b) or to transfer the material as mentioned in
paragraph (3)(c); or
(b) possession by the occupier of the equipment could constitute an
offence against a law of the Commonwealth.
(6) An inspector may seize equipment under paragraph (3)(a) or
documents under paragraph (3)(b) only if the inspector entered the premises
under an offence-related warrant.
Seizing other evidential material
(7) If:
(a) in the course of searching for a particular thing, in accordance with
an offence-related warrant, an inspector finds another thing that the inspector
believes on reasonable grounds to be evidential material; and
(b) the inspector believes, on reasonable grounds, that it is necessary to
seize the other thing in order to prevent its concealment, loss or destruction,
or its use in committing, continuing or repeating an offence against this
Act;
then the offence-related powers include seizing that other
thing.
An inspector is not entitled to exercise any powers under this Part in
relation to premises if:
(a) the occupier of the premises has required the inspector to produce his
or her identity card for inspection by the occupier; and
(b) the inspector fails to comply with the requirement.
(1) An inspector must, before obtaining the consent of a person to enter
premises under this Part, inform the person that he or she may refuse
consent.
(2) An entry of an inspector with the consent of a person is not lawful
unless the person voluntarily consented to the entry.
(1) An inspector must, before entering premises under a warrant:
(a) announce that he or she is authorised to enter the premises;
and
(b) give any person at the premises an opportunity to allow entry to the
premises.
(2) However, an inspector is not required to comply with
subsection (1) if he or she believes on reasonable grounds that immediate
entry to the premises is required:
(a) to ensure the safety of a person; or
(b) to prevent serious damage to the environment; or
(c) to ensure that the effective execution of the warrant is not
frustrated.
(1) If a warrant in relation to premises is being executed and the
occupier of the premises or another person who apparently represents the
occupier is present at the premises, the inspector must make available to the
occupier or other person a copy of the warrant.
(2) The inspector must identify himself or herself to that
person.
(3) The copy of the warrant need not include the signature of the
magistrate who issued the warrant.
An inspector may operate electronic equipment at premises in order to
exercise a power under this Part if he or she believes on reasonable grounds
that the operation of the equipment can be carried out without damage to the
equipment.
(1) If an inspector believes on reasonable grounds that:
(a) any of the following:
(i) information relevant to determining whether there has been compliance
with this Act;
(ii) information relevant to assessing the correctness of information
provided under this Act;
(iii) evidential material;
may be accessible by operating electronic equipment at particular
premises; and
(b) expert assistance is required to operate the equipment; and
(c) if he or she does not take action under this subsection, the
information or material may be destroyed, altered or otherwise interfered
with;
he or she may do whatever is necessary to secure the equipment, whether by
locking it up, placing a guard or otherwise.
Notice to occupier
(2) The inspector must give notice to the occupier of the premises of his
or her intention to secure the equipment and of the fact that the equipment may
be secured for up to 24 hours.
Period equipment may be secured
(3) The equipment may be secured:
(a) for a period not exceeding 24 hours; or
(b) until the equipment has been operated by the expert;
whichever happens first.
Extensions
(4) If the inspector believes on reasonable grounds that the expert
assistance will not be available within 24 hours, he or she may apply to a
magistrate for an order extending that period.
(5) The inspector must give notice to the occupier of the premises of his
or her intention to apply for an extension, and the occupier is entitled to be
heard in relation to the application.
(6) The magistrate may order an extension for a period specified in the
order if the magistrate is satisfied that the extension is necessary.
(1) If:
(a) damage is caused to equipment as a result of it being operated as
mentioned in this Part; or
(b) the data recorded on the equipment is damaged or programs associated
with its use are damaged or corrupted;
because:
(c) insufficient care was exercised in selecting the person who was to
operate the equipment; or
(d) insufficient care was exercised by the person operating the
equipment;
the owner of the equipment, or the user of the data or programs, is
entitled to compensation for the damage or corruption.
Amount of compensation
(2) The Commonwealth must pay the owner of the equipment, or the user of
the data or programs, such reasonable compensation as the Commonwealth and the
owner or user agree on.
(3) However, if the Commonwealth and the owner or user fail to agree, the
owner or user may institute proceedings in the Federal Court of Australia for
such reasonable amount of compensation as the Court determines.
(4) Compensation is payable out of money appropriated by the
Parliament.
(5) In determining the amount of compensation payable, regard is to be had
to whether the occupier of the premises and his or her employees and agents, if
they were available at the time, had provided any warning or guidance as to the
operation of the equipment that was appropriate in the circumstances.
Damage to data
(6) For the purposes of subsection (1), damage to data
includes damage by erasure of data or addition of other
data.
(1) If a warrant in relation to premises is being executed and the
occupier of the premises, or another person who apparently represents the
occupier is present at the premises, the occupier or other person is entitled to
observe the search being conducted.
(2) The right to observe the search being conducted ceases if the occupier
or other person impedes the search.
(3) This section does not prevent 2 or more areas of the premises being
searched at the same time.
(1) The occupier of premises in relation to which a warrant is being
exercised, or another person who apparently represents the occupier, must
provide the inspector executing the warrant and any person assisting that
inspector with all reasonable facilities and assistance for the effective
exercise of their powers.
(2) A person is guilty of an offence if the person fails to comply with
the obligation set out in subsection (1).
Maximum penalty: 30 penalty units.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(1) If, under an offence-related warrant relating to premises, an
inspector seizes:
(a) a document, film, computer file or other thing that can be readily
copied; or
(b) a storage device, the information in which can be readily
copied;
the inspector must, if requested to do so by the occupier of the premises,
or another person who apparently represents the occupier and who is present when
the warrant is executed, give a copy of the thing or the information to the
occupier or other person as soon as practicable after the seizure.
(2) However, subsection (1) does not apply if:
(a) the thing that has been seized was seized under paragraph 44(3)(b) or
(c); or
(b) possession by the occupier of the document, film, computer file, thing
or information could constitute an offence against a law of the
Commonwealth.
(1) If a thing is seized under this Part, the inspector must provide a
receipt for the thing.
(2) If 2 or more things are seized, they may be covered in the one
receipt.
(1) Subject to any contrary order of a court, if an inspector seizes a
thing under this Part, the inspector must return it if:
(a) the reason for its seizure no longer exists or it is decided that it
is not to be used in evidence; or
(b) the period of 60 days after its seizure ends;
whichever first occurs, unless the thing is forfeited or forfeitable to the
Commonwealth.
(2) At the end of the 60 days specified in subsection (1), an
inspector must take reasonable steps to return the thing to the person from whom
it was seized, unless:
(a) proceedings in respect of which the thing may afford evidence were
instituted before the end of the 60 days and have not been completed (including
an appeal to a court in relation to those proceedings); or
(b) an inspector may retain the thing because of an order under
section 57; or
(c) to return the thing could cause an imminent risk of death, serious
illness, serious injury or serious damage to the environment; or
(d) an inspector is otherwise authorised (by a law, or an order of a
court, of the Commonwealth or of a State or Territory) to retain, destroy or
dispose of the thing.
(3) The thing may be returned under subsection (2) either
unconditionally or on such terms and conditions as the Secretary sees
fit.
(1) An inspector may apply to a magistrate for an order that he or she may
retain the thing for a further period if:
(a) before the end of 60 days after the seizure; or
(b) before the end of a period previously specified in an order of a
magistrate under this section;
proceedings in respect of which the thing may afford evidence have not
commenced.
(2) If the magistrate is satisfied that it is necessary for an inspector
to continue to retain the thing:
(a) for the purposes of an investigation as to whether an offence against
this Act has been committed; or
(b) to enable evidence of an offence against this Act to be secured for
the purposes of a prosecution;
the magistrate may order that an inspector may retain the thing for a
period (not being a period exceeding 3 years) specified in the order.
(3) Before making the application, the inspector must:
(a) take reasonable steps to discover who has an interest in the retention
of the thing; and
(b) if it is practicable to do so, notify each person whom the inspector
believes to have such an interest of the proposed application.
If:
(a) a thing is seized under this Part; and
(b) apart from this section, the Commonwealth is required to return the
thing to the owner; and
(c) there is no owner or the Secretary cannot, despite making reasonable
efforts, locate the owner;
the Secretary may dispose of the thing in such manner as he or she thinks
appropriate.
Application for warrant
(1) An inspector may apply to a magistrate for a warrant under this
section in relation to premises.
Issue of warrant
(2) The magistrate may issue the warrant if the magistrate is satisfied,
by information on oath, that it is reasonably necessary that one or more
inspectors should have access to the premises for the purposes of:
(a) finding out whether this Act has been complied with; or
(b) assessing the correctness of information provided under this
Act.
(3) However, the magistrate must not issue the warrant unless the
inspector or some other person has given to the magistrate, either orally or by
affidavit, such further information (if any) as the magistrate requires
concerning the grounds on which the issue of the warrant is being
sought.
Content of warrant
(4) The warrant must:
(a) authorise one or more inspectors (whether or not named in the
warrant), with such assistance and by such force as is necessary and
reasonable:
(i) to enter the premises; and
(ii) to exercise the powers set out in section 41 in relation to the
premises; and
(b) state whether the entry is authorised to be made at any time of the
day or night or during specified hours of the day or night; and
(c) specify the day (not more than 6 months after the issue of the
warrant) on which the warrant ceases to have effect; and
(d) state the purpose for which the warrant is issued.
Application for warrant
(1) An inspector may apply to a magistrate for a warrant under this
section in relation to premises.
Issue of warrant
(2) The magistrate may issue the warrant if the magistrate is satisfied,
by information on oath, that there are reasonable grounds for suspecting that
there is, or there may be within the next 72 hours, evidential material in or on
the premises.
(3) However, the magistrate must not issue the warrant unless the
inspector or some other person has given to the magistrate, either orally or by
affidavit, such further information (if any) as the magistrate requires
concerning the grounds on which the issue of the warrant is being
sought.
Content of warrant
(4) The warrant must:
(a) name one or more inspectors; and
(b) authorise the inspectors so named, with such assistance and by such
force as is necessary and reasonable:
(i) to enter the premises; and
(ii) to exercise the powers set out in section 44; and
(iii) to seize the evidential material; and
(c) state whether the entry is authorised to be made at any time of the
day or night or during specified hours of the day or night; and
(d) specify the day (not more than one week after the issue of the
warrant) on which the warrant ceases to have effect; and
(e) state the purpose for which the warrant is issued.
Application for warrant
(1) If, in an urgent case, an inspector considers it necessary to do so,
the inspector may apply to a magistrate by telephone, telex, fax or other
electronic means for a warrant under section 60 in relation to
premises.
(2) The magistrate may require communication by voice to the extent that
it is practicable in the circumstances.
(3) Before applying for the warrant, the inspector must prepare an
information of the kind mentioned in subsection 60(2) in relation to the
premises that sets out the grounds on which the warrant is sought.
(4) If it is necessary to do so, the inspector may apply for the warrant
before the information is sworn.
Issue of warrant
(5) If the magistrate is satisfied:
(a) after having considered the terms of the information; and
(b) after having received such further information (if any) as the
magistrate requires concerning the grounds on which the issue of the warrant is
being sought;
that there are reasonable grounds for issuing the warrant, the magistrate
may complete and sign the same warrant that the magistrate would issue under
section 60 if the application had been made under that section.
Obligations of magistrate and inspector once warrant
issued
(6) If the magistrate completes and signs the warrant:
(a) the magistrate must:
(i) tell the inspector what the terms of the warrant are; and
(ii) tell the inspector the day on which and the time at which the warrant
was signed; and
(iii) tell the inspector the day (not more than one week after the
magistrate completes and signs the warrant) on which the warrant ceases to have
effect; and
(iv) record on the warrant the reasons for issuing the warrant;
and
(b) the inspector must:
(i) complete a form of warrant in the same terms as the warrant completed
and signed by the magistrate; and
(ii) write on the form the name of the magistrate and the day on which and
the time at which the warrant was signed.
(7) The inspector must also, not later than the day after the day of
expiry or execution of the warrant, whichever is the earlier, send to the
magistrate:
(a) the form of warrant completed by the inspector; and
(b) the information referred to in subsection (3), which must have
been duly sworn.
(8) When the magistrate receives those documents, the magistrate
must:
(a) attach them to the warrant that the magistrate completed and signed;
and
(b) deal with them in the way in which the magistrate would have dealt
with the information if the application had been made under
section 60.
Authority of warrant
(9) A form of warrant duly completed under subsection (6) is
authority for any entry, search, seizure or other exercise of a power that the
warrant signed by the magistrate authorises.
(10) If:
(a) it is material, in any proceedings, for a court to be satisfied that
an exercise of a power was authorised by this section; and
(b) the warrant signed by the magistrate authorising the exercise of the
power is not produced in evidence;
the court must assume, unless the contrary is proved, that the exercise of
the power was not authorised by such a warrant.
(1) An inspector must not make, in an application for a warrant, a
statement that the inspector knows to be false or misleading in a material
particular.
Maximum penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(2) An inspector must not:
(a) state in a document that purports to be a form of warrant under
section 61 the name of a magistrate unless that magistrate issued the
warrant; or
(b) state on a form of warrant under that section a matter that, to the
inspector’s knowledge, departs in a material particular from the form
authorised by the magistrate; or
(c) purport to execute, or present to another person, a document that
purports to be a form of warrant under that section that the inspector
knows:
(i) has not been approved by a magistrate under that section; or
(ii) departs in a material particular from the terms authorised by a
magistrate under that section; or
(d) give to a magistrate a form of warrant under that section that is not
the form of warrant that the inspector purported to execute.
Maximum penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(1) A power conferred on a magistrate by this Part is conferred on the
magistrate in a personal capacity and not as a court or a member of a
court.
(2) The magistrate need not accept the power conferred.
A magistrate exercising a power mentioned in subsection 63(1) has the
same protection and immunity as if he or she were exercising that power as, or
as a member of, the court of which the magistrate is a member.
Grant of injunction
(1) If a person has engaged, is engaging, or is about to engage in any
conduct that is or would be an offence against this Act, the Federal Court of
Australia (the Court) may, on the application of the Minister or
any other aggrieved person, grant an injunction restraining the person from
engaging in the conduct.
(2) If:
(a) a person has refused or failed, is refusing or failing, or is about to
refuse or fail, to do a thing; and
(b) the refusal or failure is, or would be, an offence against this
Act;
the Court may, on the application of the Minister or any other aggrieved
person, grant an injunction requiring the person to do the thing.
(2A) An individual is taken to be a person aggrieved by the conduct,
refusal or failure mentioned in subsection (1) or (2) if:
(a) the individual is an Australian citizen or ordinarily resident in
Australia; and
(b) at any time in the 2 years immediately before the conduct, refusal or
failure, the individual has engaged in a series of activities in Australia for
protection or conservation of, or research into, the environment.
(2B) An organisation or association (whether incorporated or not) is taken
to be a person aggrieved by the conduct, refusal or failure mentioned in
subsection (1) or (2) if:
(a) the organisation or association is incorporated, or was otherwise
established, in Australia; and
(b) at any time in the 2 years immediately before the conduct, refusal or
failure, the organisation or association has engaged in a series of activities
in Australia for protection or conservation of, or research into, the
environment; and
(c) at the time of the conduct, refusal or failure, the objects or
purposes of the organisation or association included protection or conservation
of, or research into, the environment.
(2C) To avoid doubt, subsections (2A) and (2B) extend the meaning of the
term aggrieved person for the purposes of an application to the
Court under this section.
(3) The power of the Court to grant an injunction may be
exercised:
(a) whether or not it appears to the Court that the person intends to
engage, or to continue to engage, in conduct of that kind; and
(b) whether or not the person has previously engaged in conduct of that
kind.
Discharge or variation of injunction
(4) The Court may discharge or vary an injunction granted under this
section.
Interim injunction
(5) The Court may grant an interim injunction pending a determination of
an application under subsection (1).
Other powers
(6) The powers granted by this section are in addition to, and not in
derogation of, any other powers of the Court.
(1) If:
(a) a person supplies fuel in Australia that is the subject of a fuel
standard; and
(b) the person is a constitutional corporation or a Commonwealth entity or
the person supplies the fuel in the course of constitutional trade or
commerce;
the person must keep and maintain records in relation to such supplies in
accordance with the regulations.
Maximum penalty: 60 penalty units.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(2) This offence is one of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
Producers
(1) If:
(a) a person produces and supplies fuel in Australia during a calendar
year; and
(b) the fuel is the subject of a fuel standard; and
(c) the person is a constitutional corporation or a Commonwealth entity or
the person supplies the fuel in the course of constitutional trade or
commerce;
the person must provide an annual statement for the year.
Importers
(2) If:
(a) a person imports fuel into Australia, and supplies the fuel in
Australia, during a calendar year; and
(b) the fuel is the subject of a fuel standard;
the person must provide an annual statement for the year.
When statement to be provided
(3) The statement must be provided on or before:
(a) 14 February in the following year; or
(b) any later day allowed by the Secretary.
Content of statement
(4) The statement must:
(a) be in a form (which may be an electronic form) approved by the
Secretary; and
(b) contain any information required by the Secretary; and
(c) be provided to the Secretary in accordance with the
regulations.
Offence
(5) A person is guilty of an offence if the person contravenes a
requirement of this section.
Maximum penalty: 60 penalty units.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(6) This offence is one of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(1) The Minister may, in writing, delegate to the Secretary, an SES
employee or an acting SES employee all or any of the Minister’s powers or
functions under this Act, other than the following:
(a) granting an approval under section 13;
(b) making a determination under section 21.
(2) The delegate must, in exercising powers or functions under the
delegation, comply with any directions of the Minister.
(1) The Secretary may, in writing, delegate to an SES employee or an
acting SES employee all or any of the Secretary’s powers or functions
under this Act.
(2) The delegate must, in exercising powers or functions under the
delegation, comply with any directions of the Secretary.
(1) An application may be made to the Administrative Review Tribunal for
review of the following decisions under this Act:
(a) a decision to refuse to grant an approval;
(b) a decision to grant an approval that is different from the approval
applied for;
(c) a decision to specify a condition in an approval;
(d) a decision to vary or revoke an approval;
(e) a decision to enter, or not to enter, a fuel additive, or a class of
fuel additives, in the Register;
(f) a decision to remove, or not to remove, a fuel additive, or a class of
fuel additives, from the Register.
(2) For the purposes of an application to the Administrative Review
Tribunal under this section, the meaning of the term person whose
interests are affected in section 61 of the Act that establishes the
Administrative Review Tribunal is extended by subsections (3) and (4) of
this section.
(3) An individual is taken to be a person whose interests are affected by
a decision mentioned in subsection (1) if:
(a) the individual is an Australian citizen or ordinarily resident in
Australia; and
(b) at any time in the 2 years immediately before the decision mentioned
in subsection (1), the individual has engaged in a series of activities in
Australia for protection or conservation of, or research into, the
environment.
(4) An organisation or association (whether incorporated or not) is taken
to be a person whose interests are affected by a decision mentioned in
subsection (1) if:
(a) the organisation or association is incorporated, or was otherwise
established, in Australia; and
(b) at any time in the 2 years immediately before the decision mentioned
in subsection (1), the organisation or association has engaged in a series of
activities in Australia for protection or conservation of, or research into, the
environment; and
(c) at the time of the decision mentioned in subsection (1), the objects
or purposes of the organisation or association included protection or
conservation of, or research into, the environment.
(1) The Secretary must, as soon as practicable after the end of each
financial year, prepare and give to the Minister a report on the operation of
this Act during the year.
(2) The Minister must cause a copy of the report to be laid before each
House of the Parliament within 15 sitting days of the day on which the report is
given to the Minister.
Undertaking the review
(1) The Minister must cause an independent review of the operation of this
Act to be undertaken as soon as possible after the second anniversary of the
commencement of Part 2 of this Act and afterwards at intervals of not
longer than 5 years.
Report to Minister
(2) The persons who undertake such a review must give the Minister a
written report of the review.
Tabling of report
(3) The Minister must cause a copy of each report to be tabled in each
House of the Parliament within 15 sitting days of the day on which the report is
given to the Minister.
Definition
(4) In this section:
independent review means a review undertaken by persons
who:
(a) in the Minister’s opinion possess appropriate qualifications to
undertake the review; and
(b) include one or more persons who are not APS employees.
The Governor-General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.