Commonwealth Numbered Regulations - Explanatory Statements

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PETROLEUM RETAIL MARKETING SITES REGULATIONS (AMENDMENT) 1998 NO. 140

Statutory rules 1998 No. 140

Issued by the authority of the Minister for Industry, Science and Tourism

Petroleum Retail Marketing Sites Act 1980

Petroleum Retail Marketing Sites Regulations (Amendment)

Section 15 of the Petroleum Retail Marketing Sites Act 1980 (the Act) provides that the Governor-General may make regulations for the purposes of the Act.

Section 12 of the Act provides a person with the right to obtain an injunction when a prescribed oil company (oil company named in the regulations) operates above its quota. Section 12 is the only provision in the Act where a possibility of a private right exists.

The Act is designed to restrain vertical integration (ie. firms producing related goods and services in a supply chain) by the major oil companies, in order to encourage competition between resellers at the retail level. The Act establishes quotas on the number of retail outlets which each company may directly operate.

The Petroleum Retail Marketing Sites Regulations (Amendment) ("the proposed Regulations") amend the Petroleum Marketing Sites Regulations ("the principal Regulations"), to allow a temporary increase in BP Australia Ltd's allocation from 87 to 102 sites for the period 1 January 1998 to 30 June 1998.

The term "retail site" is defined in Section 3, the Interpretation Section of the Act, as "premises at which motor fuel is sold by retail", in other words, a petrol station which sells petrol in retail trade.

The site increase is to operate retrospectively from 1 January 1998 to coincide with the date at which BP Australia exceeded its quota by being unable to divest itself of 15 excess retail sites in Victoria and will operate until 30 June 1998. These sites were acquired together with the 100 per cent ownership of distributor Woolman Petroleum Pty. A temporary increase from 87 to 102 was already approved by the Governor-General for the period 1 August 1997 to 30 June 1997.

The reason for increasing the allocation of sites from 87 to 102 is that BP Australia has been unable to sell off 15 excess retail sites located in Victoria, where suitable buyers are lacking due to market uncertainty and increased competition.

The operative part of the amendment (regulation 3) commences retrospectively to 1 January 1998.

Subsection 48(2) of the Acts Interpretation Act 1901 (the Interpretation Act) provides that a retrospective regulation may not adversely affect the rights of a person (other than the Commonwealth or an authority of the Commonwealth).

The Attorney-General's Department is of the view that the right to obtain an injunction conferred by section 12 of the Act is unlikely to constitute a "right" for the purposes of section 48(2)(a) of the Interpretation Act.

However, to ensure section 48 of the Interpretation Act is not infringed, a savings provision has been included (regulation 5) which preserves any tights existing under section 12 of the Act between the date the regulations are taken to have commenced and the date of their notification in the Gazette.