Business Franchise Licences (Petroleum Products) Act 1987 Regulation relating to the sale and purchase of diesel fuel for off-road purposes (1993-230) [GG No 65 of 25.6.1993] (NSW)

1993—No. 230

BUSINESS FRANCHISE LICENCES (PETROLEUM

PRODUCTS) ACT 1987—REGULATION

(Relating to the sale and purchase of diesel fuel for off-road purposes)

NEW SOUTH WALES

[Published in Gazette No. 65 of 25 June 1993]

HIS Excellency the Governor, with the advice of the Executive Council, and in pursuance of the Business Franchise Licences (Petroleum Products) Act 1987, has been pleased to make the Regulation set forth hereunder.

PETER COLLINS, M.P.,

Treasurer.

Commencement

1. This Regulation commences on 1 July 1993

Amendments

2. The Business Franchise Licences (Petroleum Products) Regulation

1987 is amended:

(a) by omitting clause 11 and by inserting instead the following Part:

PART 3A—OFF-ROAD DIESEL FUEL SCHEME

Division 1-Preliminary

Definitions

11. In this Part:

“authority” means an authority to sell diesel fuel for off-road

purposes granted under section 48C of the Act;

“permit” means a permit to purchase diesel fuel for off-road

purposes issued under section 48D of the Act.

1993—No. 230

Division 2—Provisions relating to authorities

Applications for authorities

11A. (1) The Chief Commissioner may grant an authority to a licensee if the licensee:

(a) makes an application in the form approved by the Chief Commissioner; and

(b) provides such information as may be required in the form.

(2) The Chief Commissioner may grant an authority to a

licensee even though the licensee has not made an application.
Duration of authority

11B. An authority remains in force (unless sooner cancelled or surrendered) for such period as is specified in the authority from the date on which i t is granted.
Permits to be sighted
11C. The holder of an authority is required to sight, at the time of making the first sale to each permit holder to whom the holder of the authority sells diesel fuel for off-road purposes, the permit of each such permit holder.
Variation etc. of conditions specified in authority

11D. (1 ) The Chief Commissioner may, from time to time, vary or revoke any condition, or add to the conditions, specified in an authority by notice in writing to the holder of the authority.

(2) Any such variation, addition or revocation has effect from the date specified in the notice served on the holder of the authority.

Records relating to sales of diesel fuel for off-road purposes
11E. (1) In addition to any other records required to be kept
under the Act, the holder of an authority must keep the following

records in respect of each sale of diesel fuel for off-road purposes

by the holder of the authority:

• the date of the sale
• the invoice number
• the volume of diesel fuel sold
• the name of the purchaser

• the number of the purchaser’s permit,

Maximum penalty: 50 penalty units.

(2) Such records can be kept in the form of a copy of the

invoice for the sale.

1993—No. 230

(3) The Chief Commissioner may determine in any particular case or class of cases that the holder of the authority concerned is not required to keep such records or is only required to keep such records as are specified as a condition of the authority.

Division 3—Provisions relating to permits

Applications for permits

11F. (1) An application for a permit must:

(a) be in a form approved by the Chief Commissioner; and (b) provide such information as may be required in the form. (2) The holder of a permit must notify the Chief Commissioner

in writing of any change in any of the particulars furnished in the application for the permit within 7 days of the change occurring.

Maximum penalty (subclause (2)): 50 penalty units

Duration of permit
11G. A permit takes effect from the date specified in the permit and remains in force (unless sooner cancelled or surrendered) until such date of expiry as is specified in the permit. The expiry date may be extended from time to time by the Chief Commissioner.
Restrictions etc. on purchase of diesel fuel for off-road purposes
11H. (1) A permit may specify the maximum volume of diesel fuel for off-road purposes that may be purchased by the holder of the permit during any particular period.

(2) The holder of a permit must not purchase diesel fuel for off-road purposes if the purchase (along with all other such purchases by the permit holder during the period concerned) exceeds the maximum volume (if any) specified in the permit for the period concerned.
(3) The holder of a permit must not allow the permit to be used by any other person for the purpose of purchasing diesel fuel for off-road purposes.

Maximum penalty (subclauses (2) and (3)): 50 penalty units.

Variation etc. of conditions specified in permit
11I. (1) The Chief Commissioner may, from time to time, vary or revoke any condition, or add to the conditions, specified in a permit by notice in writing to the holder of the permit.

(2) Any such variation, addition or revocation has effect from

the date specified in the notice served on the holder of the permit.

1993—No. 230

Records to be kept by holders of permits
11J. (1) The holder of a permit is required to maintain records relating to any diesel fuel purchased by the holder for off-road purposes and to keep such records for a period of not less than 6 years after the date of the purchase. The records are to include the following information:

(a) in relation to any equipment or vehicle used by the holder for off-road purposes:

• a description of the equipment or vehicle (including information identifying each item of equipment or each vehicle separately)

• the name of the owner of the equipment or vehicle

if it is not owned by the holder

• such other information as is required by the permit; in relation to the purchase of diesel fuel by the holder for off-road purposes—a copy of the invoice for the sale and the following information if not contained in the invoice:

(b)

• the name and address of the person from whom the

fuel was purchased

• the volume of fuel purchased
• the date on which it was purchased

• the address to which the fuel was delivered;

(c) in relation to the consumption of diesel fuel that has been purchased by the holder for off-road purposes:

• the address or location where any vehicle or equipment used such diesel fuel and the specific purpose for which it was used

• a record of the time that any equipment has spent

using such diesel fuel

• a record of the distance travelled by any vehicle when using such diesel fuel (or of the time the vehicle has spent using such diesel fuel).

(2) The Chief Commissioner may determine in any particular case or class of cases that the holder of the permit concerned is not required to keep such records or is only required to maintain and keep such records as are specified as a condition of the permit.

1993—No. 230

Division 4—Cancellation of authorities and permits

Cancellation of authorities and permits

11K. (1) The Chief Commissioner may, by notice in writing to the holder concerned, cancel an authority or a permit if the holder of the authority or permit:

(a) commits an offence under the Act or this Regulation; or

(b) contravenes or fails to comply with any condition or requirement specified in the authority or permit or imposed

on the holder of the authority or permit under this

Regulation.

(2) The cancellation of an authority or permit takes effect on the date specified in the notice served on the holder of the authority or permit. The date specified in the notice must not be earlier than 7 days after the date on which the holder is duly served with the notice.

Appeal to Tribunal against cancellation
11L. (1) If an authority or permit is cancelled by the Chief Commissioner, the person who was the holder of the authority or permit may appeal to the Tribunal against the cancellation.
(2) An application to the Tribunal for an appeal against cancellation:

(a) may be made within 30 days of the decision to cancel the authority or permit; and

(b) is to be in writing; and

(c) is to contain such particulars in support of the application as may be requested by the Tribunal.

(3) The procedure for hearing an appeal under this clause is to be determined by the Tribunal.

(4) Without limiting subclause (3), at a hearing of an appeal:

(a)	the Tribunal is not bound by the rules of evidence and may inform itself in such manner as it thinks fit; and
(b)	a party may, with the consent of the Tribunal and the other party, be represented by a barrister, solicitor or other person.

(5) The parties to an appeal are to bear their own costs.

Determination of appeal

11M. (1) The Tribunal may determine an appeal:

(a) by confirming the Chief Commissioner’s decision to cancel the authority or permit; or

1993—No. 230

(b) by directing the Chief Commissioner to grant or issue an authority or permit to the appellant in accordance with any directions given by the Tribunal.

(2) The Tribunal is to record its decision in writing and give a copy of its decision to the appellant and a copy to the Chief Commissioner.

(3) The Tribunal’s determination of an appeal is final.

(b) by inserting at the end of clause 14 (1) (d) (v) the word “and”;
(c) by omitting from clause 14 (1) (d) (vi) the word “and”;

(d) by omitting clause 14 (1) (d) (vii) and (h);

(e)	by omitting from clause 14 (1) (g) the matter “month; and” and by inserting instead the matter “month.”;
(f)	by inserting in clause 15 (1) before the matter “14” the matter

“11E or”;

(g) by omitting clause 16 (4);

(h) by omitting from clause 16 (5) the definition of “the 1982 Regulation”;

(i) by omitting Schedule 1.

Transitional provision—existing certificates

3. (1) For the purposes of section 48G of the Business Franchise Licences (Petroleum Products) Act 1987, 30 September 1993 is prescribed as the date on which any certificate issued under, or taken to be issued under, clause 11 of the Business Franchise Licences (Petroleum Products) Regulation 1987 and in force immediately before 1 July 1993 is automatically cancelled.

(2) Any such certificate continues, despite the repeal of that clause by this Regulation, to remain in force until 30 September 1993 (unless sooner cancelled by the Chief Commissioner for Business Franchise Licences (Petroleum Products)).

EXPLANATORY NOTE

At present under section 40 (4 ) of the Business Franchise Licences (Petroleum Products) Act 1987, the value of diesel fuel certified (under the regulations) as sold for use for off-road purposes is disregarded for the purposes of calculating the licence fee payable in respect of the fuel. The State Revenue Legislation (Further Amendment) Act 1992 inserts Part 5A into the Act to modify this scheme and to

1993—No. 230

T h e object of this Regulation is to amend the Business Franchise (Petroleum Products) Regulation 1987 to replace existing provisions relating to diesel fuel exemption certificates with provisions relating to authorities to sell diesel for off-road purposes (which may be granted to licensees under the Act) and to permits to purchase diesel fuel for such purposes (which may be issued to any person who, in the opinion of the Chief Commissioner for Business Franchise (Petroleum Licences), uses diesel fuel for off-road purposes). In particular, this Regulation:

• requires the holder of an authority to sight the permit of each permit holder to whom the authority holder sells diesel fuel for off-road purposes (clause 11C)

• makes it an offence for the holder of an authority not to keep certain records in respect of each sale of diesel fuel for off-road purposes (clause 11E)

• makes it an offence for the holder of a permit not to notify the Chief Commissioner of any change in the particulars furnished in the application for the permit (clause 11F (3))

• makes it an offence for the holder of a permit to purchase diesel fuel for off-road purposes if the purchase exceeds the maximum amount (if any) specified in the permit that may be purchased during a particular period (clause 11H (2 ) )

• requires the holder of a permit to keep detailed records relating to the purchase, use and consumption of diesel fuel for off-road purposes (clause

11J)

• enables the Chief Commissioner to cancel an authority or permit if the holder commits an offence under the Act or the regulations or fails to comply with any condition or requirement specified in the authority or permit (clause 11K)
• provides for appeals to the Business Franchise Licence Fees (Petroleum Products) Appeals Tribunal against the cancellation of authorities or permits.

This Regulation is made under Part 5 A of the Business Franchise Licences (Petroleum Products) Act 1987 referred to above and section 76 of that Act (the general regulation-making power).