NATIONAL FUELWATCH (EMPOWERING CONSUMERS) BILL 2008

2008

The Parliament of the
Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

National Fuelwatch (Empowering Consumers) Bill 2008

No. , 2008

(Treasury)

A Bill for an Act to empower consumers and encourage transparency in the fuel market, and for other purposes

National Fuelwatch (Empowering Consumers) Bill 2008 No. , 2008

National Fuelwatch (Empowering Consumers) Bill 2008 No. , 2008
Contents
Part 1--Preliminary 1

1 Short title 1

2 Commencement 2

3 Application 2

4 Extension to external Territories 2

5 Definitions 2

6 Declared localities 3
Part 2--Retail prices for motor fuel 5

7 Obligation on petrol retailers to give details 5

8 Obligation to notify of next day's retail price 5

9 Publication of next day's retail price 6

10 Selling motor fuel at other than notified retail price 6

11 Register of fuel price notifications 7
Part 3--Infringement notices 8

12 When an infringement notice can be given 8

13 Matters to be included in an infringement notice 8

14 Amount of penalty 8

15 Withdrawal of an infringement notice 9

16 What happens if the penalty is paid 9

17 Effect of this Part on civil penalty proceedings 9
Part 4--Civil penalty provisions 11

18 Ancillary contravention of civil penalty provision 11

19 Civil penalty orders 11

20 Who may apply for a civil penalty order 12

21 2 or more proceedings may be heard together 13

22 Time limit for application for an order 13

23 Civil evidence and procedure rules for civil penalty orders 13

24 Civil proceedings after criminal proceedings 13

25 Criminal proceedings during civil proceedings 13

26 Criminal proceedings after civil proceedings 13

27 Evidence given in proceedings for penalty not admissible in criminal proceedings 14
Part 5--Miscellaneous 15

28 Regulations 15

Part 4 Civil penalty provisions

Section 27

Miscellaneous Part 5

Section 28

National Fuelwatch (Empowering Consumers) Bill 2008 No. , 2008

National Fuelwatch (Empowering Consumers) Bill 2008 No. , 2008

National Fuelwatch (Empowering Consumers) Bill 2008 No. , 2008
A Bill for an Act to empower consumers and encourage transparency in the fuel market, and for other purposes
The Parliament of Australia enacts:

Part 1--Preliminary

1 Short title

This Act may be cited as the National Fuelwatch (Empowering Consumers) Act 2008.

2 Commencement

This Act commences on the day after it receives the Royal Assent.

3 Application

Despite section 2:

(a) section 7 does not apply to the offer of motor fuel for retail sale at a service station in a declared locality before 30 November 2008; and

(b) sections 8 to 10 do not apply to the offer of motor fuel for retail sale at a service station in a declared locality before 15 December 2008.

4 Extension to external Territories

This Act extends to every external Territory.

5 Definitions

(1) In this Act:

ABN (short for Australian Business Number) has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.

ACCC means the Australian Competition and Consumer Commission.

civil penalty order means an order under section 19.

civil penalty provision means a provision declared by this Act to be a civil penalty provision.

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

declared locality has the meaning given by section 6.

Federal Court means the Federal Court of Australia.

fixed price period has the meaning given by subsection 8(2).

local government body means a body established for the purposes of local government by or under a law applying in a State or Territory.

motor fuel means fuel suitable for use in an internal combustion engine, excluding aviation gas.

penalty unit has the meaning given by section 4AA of the Crimes Act 1914.

petrol retailer means:

(a) a constitutional corporation that offers motor fuel for retail sale; or

(b) a person who offers motor fuel for retail sale as the agent or franchisee of a constitutional corporation; or

(d) a person who offers motor fuel for retail sale in a Territory.

retail sale means sale to another person for that person's use.

service station means a place at which motor fuel is offered for retail sale.

standard price, in relation to the retail sale by a petrol retailer of a kind of motor fuel, means the price at which the petrol retailer offers that kind of motor fuel for retail sale, disregarding any shopper docket or other discounts.

(2) Paragraph (c) of the definition of petrol retailer in subsection (1) applies only where the offer of the motor fuel for sale, or the sale of the motor fuel, affects or is capable of affecting the activities, functions, relationships or business of a constitutional corporation.

6 Declared localities

(1) The regulations may prescribe localities that are to be declared localities for the purposes of this Act on and from 30 November 2008.

(2) The Minister may, by legislative instrument:

(a) declare any other locality to be a declared locality for the purposes of this Act; or

(b) declare that a locality that is prescribed under subsection (1) is to cease to be a declared locality for the purposes of this Act.

(3) In making a declaration under subsection (2), the Minister must have regard to each of the following:

(a) the size of the locality;

(b) the population of the locality;

(c) the number of vehicles registered under the law of the State or Territory in which the locality is situated, in relation to which an address in the locality is specified in the registration;

(d) the number of service stations in the locality;

(e) the ownership and operating arrangements for service stations in the locality;

(f) any submissions made by a local government body for an area wholly or partly within the locality.

Part 2--Retail prices for motor fuel

7 Obligation on petrol retailers to give details

(1) A petrol retailer must not offer motor fuel for retail sale at a service station in a declared locality unless the petrol retailer, or the petrol retailer's agent, has given the ACCC notice of the following details:

(a) the name and ABN of the petrol retailer;

(b) the location of the service station;

(d) any other prescribed details.

(2) Subsection (1) is a civil penalty provision.

(3) The notice must be given in the form and using the method approved in writing by the ACCC.

8 Obligation to notify of next day's retail price

(1) If a petrol retailer intends to offer any kind of motor fuel for retail sale at a service station in a declared locality during a fixed price period beginning on a particular day, the petrol retailer, or the petrol retailer's agent, must give the ACCC notice of the standard price at which motor fuel of that kind will be offered by 2 pm (by legal time in the declared locality) on the immediately preceding day.

(2) A fixed price period is a period beginning at 6 am (by legal time in the declared locality) on a particular day and ending 24 hours later.

(3) Subsection (1) is a civil penalty provision.

(4) The notice must be given in the form and using the method approved in writing by the ACCC.

(5) Subsection (1) does not apply if it is not possible for the petrol retailer to comply with a requirement in that subsection because of:

(a) a failure in computing or telecommunications systems used by the ACCC; or

(b) a failure in computing or telecommunications systems used by the petrol retailer that is beyond the control of the petrol retailer.

(6) A petrol retailer is taken to have given notice under subsection (1) of the standard price at which motor fuel of a particular kind is to be offered for retail sale at a particular service station during the fixed price period beginning on a particular day if that standard price does not differ from the standard price at which motor fuel of that kind was offered for retail sale at that service station during the fixed price period beginning on the immediately preceding day.

9 Publication of next day's retail price

(1) If the ACCC is given notice under subsection 8(1), the ACCC must publish the standard price at which that kind of motor fuel is to be offered for sale at that service station during the fixed price period beginning on that day.

(2) The information must be published:

(a) on a website maintained by or for the ACCC; and

(b) using such other methods as are approved, in writing, by the ACCC.

(3) The information must be published by 4 pm (by legal time in the declared locality) on the day on which the notice is received.

10 Selling motor fuel at other than notified retail price

(1) This section applies if the petrol retailer, or the petrol retailer's agent, notifies the ACCC in compliance, or purported compliance, with subsection 8(1) of the standard price at which the petrol retailer intends to offer motor fuel of a particular kind for retail sale at a service station in a declared locality during a fixed price period beginning on a particular day.

(2) The petrol retailer must offer motor fuel of that kind for retail sale at that service station at that standard price at all times during that part of the fixed price period during which the service station is open for business.

(3) Subsection (2) is a civil penalty provision.

11 Register of fuel price notifications

The ACCC must keep a register containing:

(a) details given to the ACCC under subsection 7(1); and

(b) copies of all notices given to the ACCC under subsection 8(1); and

Part 3--Infringement notices

12 When an infringement notice can be given

(1) If the ACCC has reasonable grounds to believe that a person has contravened subsection 7(1), 8(1) or 10(2), the ACCC may give the person an infringement notice relating to the contravention.

(2) The infringement notice must be given within 12 months after the day on which the contravention is alleged to have taken place.

13 Matters to be included in an infringement notice

An infringement notice must:

(a) set out the name of the person to whom the notice is given; and

(b) set out brief details relating to the alleged contravention of the relevant provision, including the date of the alleged contravention; and

(c) contain a statement to the effect that civil penalty proceedings will not be brought in relation to the matter if the penalty specified in the notice is paid to the ACCC, on behalf of the Commonwealth, within:

(i) 28 days after the notice is given; or

(ii) if the ACCC allows a longer period--that longer period; and

(d) give an explanation of how payment of the penalty is to be made; and

(e) set out such other matters (if any) as are specified in the regulations.

14 Amount of penalty

The penalty to be specified in an infringement notice relating to an alleged contravention of subsection 7(1), 8(1) or 10(2) must be a pecuniary penalty equal to:

(a) for a body corporate--25 penalty units; or

(b) for a person other than a body corporate--5 penalty units.

15 Withdrawal of an infringement notice

(1) The ACCC may, by written notice (the withdrawal notice) given to a person, withdraw an infringement notice given to the person under section 12.

(2) To be effective, the withdrawal notice must be given to the person within 28 days after the infringement notice was given.

Refund of penalty if infringement notice withdrawn

(3) If:

(a) the penalty specified in the infringement notice is paid; and

(b) the infringement notice is withdrawn after the penalty is paid;
the ACCC, on behalf of the Commonwealth, is liable to refund the penalty.

16 What happens if the penalty is paid

(1) This section applies if:

(a) an infringement notice is given to a person under section 12; and

(b) the penalty is paid in accordance with the infringement notice; and

(2) Any liability of the person for the alleged contravention is discharged.

(3) Civil penalty proceedings may not be brought against the person for the alleged contravention.

17 Effect of this Part on civil penalty proceedings

This Part does not:

(a) require an infringement notice to be given in relation to an alleged contravention of a provision mentioned in section 12; or

(b) affect the liability of a person to have civil penalty proceedings brought against the person for an alleged contravention of a provision mentioned in section 12; or

(c) limit a court's discretion to determine the amount of a penalty to be imposed on a person who is found in civil penalty proceedings to have contravened a provision mentioned in section 12.

Part 4--Civil penalty provisions

18 Ancillary contravention of civil penalty provision

(1) A person must not:

(a) attempt to contravene a civil penalty provision (other than this subsection); or

(b) aid, abet, counsel or procure a contravention of a civil penalty provision (other than this subsection); or

(c) induce, whether by threats or promises or otherwise, a contravention of a civil penalty provision (other than this subsection); or

(d) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of a civil penalty provision (other than this subsection); or

(e) conspire with others to effect a contravention of a civil penalty provision (other than this subsection).

Civil penalty

(2) Subsection (1) is a civil penalty provision.

19 Civil penalty orders

(1) If the Federal Court is satisfied that a person has contravened a civil penalty provision, the Federal Court may order the person to pay the Commonwealth a pecuniary penalty.

(2) An order under subsection (1) is to be known as a civil penalty order.

Determining amount of pecuniary penalty

(3) In determining the pecuniary penalty, the Federal Court must have regard to all relevant matters, including:

(a) the nature and extent of the contravention; and

(b) the nature and extent of any loss or damage suffered as a result of the contravention; and

(d) whether the person has previously been found by the Federal Court in proceedings under this Act to have engaged in any similar conduct; and

(e) if the Federal Court considers that it is appropriate to do so--whether the person has previously been found by a court in proceedings under a law of a State or Territory to have engaged in any similar conduct.

Maximum pecuniary penalty

(4) The pecuniary penalty payable by a body corporate must not exceed 1,000 penalty units.

(5) The pecuniary penalty payable by a person other than a body corporate must not exceed 200 penalty units.

Conduct contravening more than one civil penalty provision

(6) If conduct constitutes a contravention of 2 or more civil penalty provisions, proceedings may be instituted under this section against a person in relation to the contravention of any one or more of those provisions. However, the person is not liable to more than one pecuniary penalty under this section in respect of the same conduct.

Civil enforcement of penalty

(7) The pecuniary penalty is a civil debt payable to the Commonwealth. The Commonwealth may enforce the civil penalty order as if it were an order made in civil proceedings against the person to recover a debt due by the person. The debt arising from the order is taken to be a judgment debt.

20 Who may apply for a civil penalty order

Only the ACCC may apply for a civil penalty order.

21 2 or more proceedings may be heard together

The Federal Court may direct that 2 or more proceedings for civil penalty orders are to be heard together.

22 Time limit for application for an order

Proceedings for a civil penalty order may be started no later than 6 years after the contravention.

23 Civil evidence and procedure rules for civil penalty orders

The Federal Court must apply the rules of evidence and procedure for civil matters when hearing proceedings for a civil penalty order.

24 Civil proceedings after criminal proceedings

The Federal Court must not make a civil penalty order against a person for a contravention if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.

25 Criminal proceedings during civil proceedings

(1) Proceedings for a civil penalty order against a person are stayed if:

(a) criminal proceedings are started or have already been started against the person for an offence; and

(b) the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.

(2) The proceedings for the order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings for the order are dismissed.

26 Criminal proceedings after civil proceedings

Criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a contravention of a civil penalty provision regardless of whether a civil penalty order has been made against the person.

27 Evidence given in proceedings for penalty not admissible in criminal proceedings

Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if:

(a) the individual previously gave the evidence or produced the documents in proceedings for a civil penalty order against the individual for a contravention of a civil penalty provision (whether or not the order was made); and

(b) the conduct alleged to constitute the offence is substantially the same as the conduct that was claimed to constitute the contravention.

However, this does not apply to a criminal proceeding in respect of the falsity of the evidence given by the individual in the proceedings for the civil penalty order.

Part 5--Miscellaneous

28 Regulations

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.

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NATIONAL FUELWATCH (EMPOWERING CONSUMERS) BILL 2008