Business Franchise Licences (Petroleum Products) Amendment Act 1989 (NSW)
BUSINESS FRANCHISE LICENCES (PETROLEUM
PRODUCTS) AMENDMENT ACT 1989 No. 82
NEW SOUTH WALES
TABLE OF PROVISIONS
1. Short title
2. Commencement
3. Amendment of Business Franchise Licences (Petroleum Products) Act 1987 No. 94
SCHEDULE 1—AMENDMENTS
BUSINESS FRANCHISE LICENCES (PETROLEUM PRODUCTS)
AMENDMENT ACT 1989 No. 82
NEW SOUTH WALES
Act No. 82, 1989
An Act to amend the Business Franchise Licences (Petroleum Products) Act 1987 to make further provision in relation to the enforcement of that Act, appeals and recovery of licence fees: and for other purposes. [Assented to 2 June 1989]
2 Act No. 82
Business Franchise Licences (Petroleum Products) Amendment 1989
The Legislature of New South Wales enacts:
Short title
This Act may be cited as the Business Franchise Licences (Petroleum
Products) Amendment Act 1989.
Commencement
2. This Act commences on a day or days to be appointed by
proclamation.
Amendment of Business Franchise Licences (Petroleum Products) Act 1987
No. 94
3. The Business Franchise Licences (Petroleum Products) Act 1987 is
amended as set out in Schedule 1.
SCHEDULE 1—AMENDMENTS
(Sec. 3)
(1) Section 3 (Interpretation)—
(a) Section 3(1)—
After the definition of "Chief Commissioner", insert:"diesel fuel" means a petroleum or shale product used or capable of being used in propelling a diesel engined road vehicle;
(b) Section 3 (4)—
Omit the subsection, insert instead:(4) A sale of petroleum products made outside New South
Wales in the course of petroleum wholesaling or petroleum
been made in New South Wales if the terms (whether express or retailing shall for the purposes of this Act be regarded as having implied) of the sale or of any contract for the sale—
(a)
require either party to deliver, or arrange delivery of, the petroleum products into or within New South Wales; or
(b)
contemplate delivery of the petroleum products into or within New South Wales.
(2) Section 6 (Application of Act to intrastate trade)—
Section 6 (2)—
Omit the subsection, insert instead:
(2) Nothing in this section affects the operation of section 31
of the Interpretation Act 1987.
Business Franchise Licences (Petroleum Products) Amendment 1989
SCHEDULE 1— AMENDMENTS—continued
(3) Section 2 7 A — Before section 28, insert:
Expanded meaning of "sell"
27A. In this Part—
"sell" includes the following: (a) barter and exchange; (b) deal in, agree to sell, or offer or expose for sale;
(c) have in possession, custody or control for sale;
(d) send, forward, deliver or receive for sale or on sale;
(e)
authorise, direct, cause, suffer, permit or attempt any of those acts or things.
(4) Section 32—
Omit the section, insert instead:
Possession of commercial quantities—presumptionsIf petroleum products in a person's possession, custody or control are stored in a tank (whether or not mounted on a vehicle) having a capacity that exceeds the prescribed quantity, it shall be presumed in any proceedings for an offence under this Part, unless the court is satisfied to the contrary—
32.
(a)
that the petroleum products are in the person's possession, custody or control for sale; and
(b) that the person is carrying on petroleum wholesaling.
(5) Section 3 6 A — After section 36, insert:
Change of particulars to be notified
days after the change occurs, notify the Chief Commissioner in in section 36 in respect of a licence, the licensee shall, within 7 36A. If a change occurs in any of the particulars referred to writing giving details of the change.
Penalty: $2,000.
(6) Section 39—
Omit the section, insert instead:
Renewal of licence
39. (1) If, on or before the expiry of a licence, the licensee pays to the Chief Commissioner the fee payable for a further licence, the licensee—
(a)
shall be taken to have applied for a further such licence; and
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SCHEDULE 1— AMENDMENTS—continued (b) shall be taken to have been granted the licence, with effect from the expiration of the person's current licence.
(2) If the fee payable for a further licence is paid after the expiry of a licence, the Chief Commissioner may direct in writing that the payment be accepted and regarded as having been made immediately before the expiry of the licence concerned.
(3) The Chief Commissioner's direction has effect accordingly. (4) The Chief Commissioner may demand and receive an
amount by way of a penalty (but not more than twice the fee payable for the further licence) as a condition precedent to giving a direction under subsection (2).
(5) This section does not prevent—
(a)
the cancellation or surrender of a licence under another provision of this Act; or
(b)
the operation of section 46 or 47 in relation to a person if the Chief Commissioner decides not to act under this section in relation to the person.
(7) Part 6, Division 1, heading:
Before section 49, insert:
Division 1—Licences
(8) Part 6, Division 2—
Omit sections 50-52, insert instead:
Division 2—Fee assessments
Objection to assessment
(1) A person who is dissatisfied with an assessment under this Act may within 60 days after the issue of the notice of
50.
assessment object to the assessment. (2) An objection is made by lodging with the Chief Commissioner a statement in writing specifying fully and in detail the grounds of the objection.
Applications for extension of time
51. (1) A person may apply to the Chief Commissioner for
an extension of the time for lodging an objection and may do so
even though the time for lodging an objection has expired.
(2) The application must be in writing and be lodged with the Chief Commissioner.
Business Franchise Licences (Petroleum Products) Amendment 1989
SCHEDULE 1— AMENDMENTS—continued
(4) If dissatisfied with the Chief Commissioner's decision on the application, the person may apply to the Tribunal for the extension of time and the Tribunal may grant it for reasonable cause shown or may refuse it.
(5) Such an application to the Tribunal shall be made, heard
and determined in the prescribed manner.
Determination of objection
52. (1) The Chief Commissioner shall consider any objection
and may—
(a) allow the objection wholly or in part and appropriately modify the assessment to which it relates by way of a reassessment under section 45; or (b) disallow the objection and confirm the assessment to which it relates. (2) When a decision is made on an objection, the Chief Commissioner shall inform the objector in writing of the decision and the reasons for the decision.
(3) To the extent that an objection is determined in favour of the objector, the Chief Commissioner shall refund the amount of any overpayment of the licence fee.
Appeal etc. against decision on objection
52A. (1) An objector dissatisfied with the decision of the Chief Commissioner on an objection—
(a) may request the Chief Commissioner to refer the decision to the Tribunal for review; or (b) may request the Chief Commissioner to approve in writing
of an appeal by the objector to the Supreme Court against the decision.
(2) Such a request must be in writing and be lodged with the Chief Commissioner within 30 days (or such longer period as the Chief Commissioner may allow for reasonable cause shown) after the objector is informed under section 52 of the Chief Commissioner's decision on the objection.
(3) If the Chief Commissioner does not comply with a request under subsection (1) (a) or (b) within 60 days after it is made and the objector—
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SCHEDULE 1—AMENDMENTS—continued
(b)
lodges with the Chief Commissioner a notice in writing requiring the Chief Commissioner to comply with the request,
the Chief Commissioner shall comply with the request not later
than 30 days after the notice is lodged.(4) The objector may appeal to the Supreme Court against the decision within 14 days after the Chief Commissioner grants approval under this section to the appeal.
Review by Tribunal
52B. (1) A review by the Tribunal shall be heard and determined in the prescribed manner.
(2) When the Tribunal makes its decision, it shall inform the
objector in writing of the decision and the reasons for the decision.(3) The parties to a review before the Tribunal shall each bear their own costs.
Appeal from decision of Tribunal
52c. If dissatisfied with the decision of the Tribunal, the objector or the Chief Commissioner may appeal to the Supreme Court within 60 days (or such longer period as the Tribunal may allow for reasonable cause shown) after being informed of the decision.
Nature of review and appeal
52D. (1) A review by the Tribunal or an appeal to the Supreme Court under this Division is by way of rehearing of the original objection to the Chief Commissioner and is limited to the
grounds of the original objection. (2) On giving its decision, the Tribunal or the Court may determine the amount of any fee payable as a result of the decision (including any additional or penalty fee).
(3) Part 5 applies to the Tribunal's or the Court's assessment of a fee in the same way as that Part applies to the assessment of a fee by the Chief Commissioner.
Onus on objector
52E. On an objection, review or appeal under this Division,
the objector concerned bears the onus of establishing on the balance of probabilities that the licence fee in question was incorrectly assessed.
Business Franchise Licences (Petroleum Products) Amendment 1989
SCHEDULE 1— AMENDMENTS—continued Payment of fee assessed by Tribunal or Supreme Court
52F. (1) If the fee assessed by the Tribunal or the Supreme Court under this Division—
(a) is greater than the amount paid by the objector, the objector is liable to pay the difference; or (b) is less than the amount paid by the objector, the Chief Commissioner shall refund the difference to the objector, together with interest at the prescribed rate. (2) Interest payable under subsection (1) (b) is payable from the date on which the amount concerned was paid by the objector until the date it is refunded.
Liability not affected by objection etc.
52G. (1) Except to the extent otherwise permitted by the Chief Commissioner, the lodging of an objection, the referral of an objection to the Tribunal or an appeal to the Supreme Court does not affect any liability of an objector to pay a fee in accordance with this Act.
(2) A permission under subsection (1) must be in writing.
Lodgment with Chief Commissioner
52H. For the purposes of this Division, something is lodged with the Chief Commissioner by being addressed to the Chief Commissioner and lodged at or sent by post to any office of the Chief Commissioner.
Assessment includes reassessment
52i. In this Division, "assessment" includes reassessment, but the right of a person to object against a reassessment is limited to a right to object against the particular alterations or additions
made as a result of the reassessment.
(9) Part 8, Division 1, heading—
Before section 56, insert:
Division 1—Duties etc. of transporters
(10) Section 56 (Transportation records)—
(a) Section 56 (2)—
After "The record shall", insert "be in writing and".(b) Section 56 (2) (bl)—
After section 56 (2) (b), insert:(bl) the name and address of the person who owns the
petroleum products;
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(c) Section 56 (2) (f)—
Omit the paragraph, insert instead:
(f)
the name and address of the person (if any) who has agreed to purchase the petroleum products.
(d) Section 56 (5)—
Omit the subsection.(e) Section 56 (6)—
After "produce a record,", insert "fails to produce a record or".(f) Section 56 (6)—
Omit "$1,000", insert instead "$2,000".
(11) Section 57 (Temporary custody)—
(a) Section 57 (1) (a)—
Omit the paragraph, insert instead:
(a)
does not produce a record referred to in section 56 as required under that section; or
(b) Section 57 (1) (b)—
Omit "or furnishes particulars".
(12) Section 58—
Omit the section, insert instead:
Petroleum products in custody dealt with under Division 258. Petroleum products taken into custody under section 57 shall be retained in custody and shall be dealt with in accordance with Division 2.
| (13) Part 8, Division 2— |
After section 58, insert:
Division 2—Forfeiture of petroleum products in custody
Definition
58A. In this Division—
"seized petroleum products" means petroleum products taken
into custody under section 58.
Chief Commissioner to invite claims for seized petroleum products
58B. (1) Within 21 days after petroleum products are taken
Business Franchise Licences (Petroleum Products) Amendment 1989
SCHEDULE 1—AMENDMENTS—continued
(2) The notice shall invite any person who claims to be entitled to the petroleum products to make a claim for them by a date specified in the notice, being a date not less than 30 days after publication of the notice.
(3) To be considered as having been duly made, the claim—
(a) must be in writing; and
(b) must be made by being lodged at or sent by post to any office of the Chief Commissioner; and (c) must be received by the Chief Commissioner by the required date specified in the notice. (4) The notice inviting claims must also draw attention to the
duty of a claimant under section 58c (transportation record).
Claimant must lodge transportation record
58c. (1) A person who makes a claim for seized petroleum products must furnish to the Chief Commissioner a correct record containing the particulars specified in section 56 (2) (as applicable to the particular petroleum products claimed when they were taken into custody).
(2) If the claimant does not furnish the record, the Chief Commissioner may refuse to consider the claim and may reject it.
(3) If the Chief Commissioner rejects a claim under this section, the Chief Commissioner shall inform the claimant in writing.
Request for particulars etc. from claimant
58D. (1) If a claim for seized petroleum products is duly made, the Chief Commissioner may request the claimant in
writing to do either or both of the following things within a specified period of not less than 14 days: (a)
to produce to the Chief Commissioner for inspection any records and documents in the custody or under the control of the claimant relating to the purchase of the petroleum products by the claimant;
(b)
to produce a statement in writing in the English language setting out details of the source of funds or finance, and the mode of payment, used or proposed to be used in the purchase of the petroleum products by the claimant.
(2) The provisions of section 53 (3)-(5) apply to any such
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SCHEDULE 1— AMENDMENTS—continued
(3) This section does not affect the operation of section 53 (access to premises, records etc.).
Decision on claim
58E. (1) If a claim for seized petroleum products is duly
made, the Chief Commissioner shall (unless the claim has beenrejected under section 58c) consider the claim and may decide—
(a) to accept the claim wholly or in part; or
(b) to reject the claim.
(2) When a decision is made on a claim, the Chief Commissioner shall inform the claimant in writing of the decision and the reasons for the decision.
(3) The Chief Commissioner may deliver seized petroleum products to a person to the extent that the person's claim is accepted by the Chief Commissioner.
Chief Commissioner may seek declaration
58F. The Chief Commissioner may seek an appropriate
declaration from the Supreme Court to assist the Chief
Commissioner in making a decision under section 58E.
Realisation of value of seized petroleum products when claims rejected
58G. (1) If the Chief Commissioner has rejected all claims duly made for particular seized petroleum products, the Chief Commissioner may, if the Chief Commissioner thinks it appropriate to do so in the circumstances of the case, apply to the Supreme Court for an order under this section for disposal of the
petroleum products. (2) The Court may, if it thinks fit, require the Chief Commissioner to give notice of the application to a person who the Court has reason to believe has an interest in the petroleum
products concerned.(3) A person who has duly made a claim in respect of the petroleum products concerned is entitled to appear and to adduce evidence at the hearing of the application.
(4) On an application under this section, the Court—
(a) may, by order, empower the Chief Commissioner to sell
Business Franchise Licences (Petroleum Products) Amendment 1989
SCHEDULE 1— AMENDMENTS—continued (b) at the request of any person appearing to the Court to have an interest in the petroleum products, may— (i) fix the value of the person's interest in the petroleum products for the purposes of an order under subparagraph (ii); and
(ii) order the Chief Commissioner, on payment into Court by that person of an amount equal to the value of the interest so fixed, to deliver petroleum products, having a value equal to that amount, to that person.
Application to Supreme Court by dissatisfied claimant
58H. (1) If a claim is duly made for seized petroleum products and—
(a) the claimant is dissatisfied with the Chief Commissioner's decision on the claim; or (b) the Chief Commissioner has not given a decision on the claim within 1 month after it was made, the claimant may apply to the Supreme Court for an order as to whether the claimant is entitled to the petroleum products concerned (or the liquidated value of the petroleum products paid into Court).
(2) The application to the Court may be made only—
(a)
within 2 months after the claimant is notified by the Chief Commissioner of the decision on the claim; or
(b)
if the Chief Commissioner has not given a decision on the claim within 1 month after the claim was made—within 3 months after the claim was made.
(3) If more than one application is made to the Court under the applications shall be heard and determined together unless the
this section in relation to particular petroleum products or money,
Court otherwise orders. Chief Commissioner may appear etc. on application 58i. (1) The Chief Commissioner is entitled to appear and adduce evidence at the hearing of an application to the Supreme Court under section 58H.
(2) Without limiting the evidence that may be adduced by the Chief Commissioner, the Chief Commissioner—
(a)
may adduce evidence that the applicant failed to comply with a request under section 5 8 D and the Court is entitled to draw such inferences from the failure as appear to be warranted in the circumstances; and
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(b)
may adduce evidence of the contents of any records, documents and statements produced by the claimant under that section.
Grounds on which application must be dismissed
58J. (1) On the application of the Chief Commissioner, the
Supreme Court shall dismiss a claimant's application under section 65H if the Court is satisfied that—
(a) the claimant has failed to furnish to the Chief Commissioner the record required by section 58c; or (b) the claimant has failed to prosecute the application with all due diligence.
(2) If the Chief Commissioner makes application as referred to in subsection (1) (a), the claimant bears the onus of satisfying the Court that the claimant has furnished to the Chief Commissioner the record required by section 58c.
Forfeiture etc. of seized petroleum products
58K. (1) The Chief Commissioner may order that seized petroleum products be forfeited to the Crown if satisfied that—
(a) no claim for the seized petroleum products has been duly made; or (b) all claims duly made for the seized petroleum products have been unsuccessful.
(2) A claim for seized petroleum products shall be regarded as being unsuccessful if—
(a) the Chief Commissioner has rejected the claim; and
(b) any application to the Supreme Court by the claimant
under section 65H in respect of the claim has been disposed of; and
(c) the Supreme Court has not ordered on such an application that a person is entitled to the petroleum products.
(3) An order that petroleum products be forfeited to the Crown must be published in the Gazette and operates, on its publication, to forfeit the petroleum products to the Crown but may be revoked by the Chief Commissioner by a further order in writing.
(4) A reference in this section to seized petroleum products includes a reference to the liquidated value of seized petroleum products paid into Court under section 58G, in which case the Chief Commissioner's order is sufficient authority for the payment
of that liquidated value out of Court to the Crown.
Business Franchise Licences (Petroleum Products) Amendment 1989
SCHEDULE 1—AMENDMENTS—continued
Power to dispose of forfeited petroleum products
"58L. The Chief Commissioner may dispose of forfeited
petroleum products on behalf of the Crown in such manner as the
Chief Commissioner thinks fit, including by destroying them.
No action against Chief Commissioner
58M. NO proceedings shall be taken against the Chief Commissioner as a consequence of—
(a)
the release of any petroleum products (or their liquidated value paid into Court) to a person; or
(b)
the forfeiture of any petroleum products (or their liquidated value paid into Court); or
(c) the destruction of any petroleum products,
in accordance with this Division.
Extension of time by Chief Commissioner
58N. The Chief Commissioner may extend and further extend the time for making a claim for seized petroleum products or an
application to the Supreme Court under this Division.
(14) Section 67 (Evidence of matters certified)—
Omit "under this Act or the regulations".
(15) Section 68 (Notices of assessment)—
Section 68 (1)—
Omit "In any proceedings under this Act or the regulations or for the recovery of any amount due and payable under this Act or the regulations", insert instead "In any proceedings".
(16) Section 6 9 A — After section 69, insert:
Alternative verdict—Part 4
69A. If in proceedings against a person for an offence under Part 4 the court is not satisfied that the person contravened the provision concerned but is satisfied that the act or omission
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SCHEDULE 1— AMENDMENTS—continued
(17) Section 72A—
After section 72, insert:
Set off by Chief Commissioner
72A. (1) If a person has a liability under this Act to pay an
amount to the Chief Commissioner and the Chief Commissioner also has a liability under this Act to pay an amount to the person—
(a) the Chief Commissioner may, instead of paying the person, pay an amount in discharge of the person's liability under this Act; and (b) to the extent of any such payment by the Chief Commissioner, the Chief Commissioner's liability to the person, and the person's liability under this Act, are discharged.
(2) A reference in subsection (1) to a liability under this Act is a reference to a liability under, by virtue of or in connection with the administration of this Act or the Business Franchise Licences (Petroleum Products) Act 1982 (whether by way of licence fees, interest, penalties, refunds, judgment debts or costs, or otherwise).
(3) This section does not affect any other right of the Chief Commissioner to set off.
(18) Schedule 3 (Savings and transitional provisions)—
Clauses 7, 8—
After clause 6, insert:
Business Franchise Licences (Petroleum Products) Amendment Act
1989
Petroleum products in custody (1) Part 8, as amended by the Business Franchise Licences (Petroleum Products) Amendment Act 1989, applies to petroleum products taken into custody under that Part whether before or after the commencement of section 58B.
7.
(2) For the purposes of the application of that Part (as so amended) to any such petroleum products, the petroleum products shall be regarded as having been taken into custody on the commencement of section 58B.
Pending objections
8. (1) In this clause—
"former appeal provisions" means the provisions of Part 6 as
in force immediately before the commencement of section
52A;
Business Franchise Licences (Petroleum Products) Amendment 1989
SCHEDULE I— AMENDMENTS—continued "new appeal provisions" means the provisions of Part 6, as amended by the Business Franchise Licences (Petroleum Products) Amendment Act 1989.
(2) An objection made under the former appeal provisions before the commencement of the new appeal provisions shall be dealt with as an objection under the new appeal provisions unless subclause (3) otherwise provides.
(3) Subclause (2) does not apply to an objection made under the former appeal provisions if an appeal to the Tribunal in respect of the objection has been made and determined before, or is out of time on, the commencement of the new appeal provisions.
[Minister's second reading speech made in—
Legislative Assembly on 3 May 1989 Legislative Council on 23 May 1989]
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