Petroleum Legislation Amendment Act 2001 (WA)

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Western Australia

Petroleum Legislation Amendment Act 2001

Western Australia

Petroleum Legislation Amendment Act 2001

CONTENTS

Part 1 — Preliminary

1.

Short title

2

2.

Commencement

2

Part 2 — Petroleum Retailers Rights

and Liabilities Act 1982

3.

The Act amended

3

4.

Long title amended

3

5.

Section 3 amended

3

6.

Section 3A inserted

5

3A.

Contracts not terminated or breached

5

7.

Section 4 amended

5

8.

Section 5 amended

11

9.

Section 6 amended

16

10.

Section 7 amended

17

11.

Section 10 repealed

17

12.

Section 12 amended

17

13.

Section 13 amended

18

14.

Section 14 inserted

18

14.

Review of Act

18

15.           Certain references to underground storage

amended

19

16.

Certain references to tenants amended

19

17.

Certain references to power corrected

19

Petroleum Legislation Amendment Act 2001

Contents

Part 3 — Petroleum Products Pricing

Act 1983

18.

The Act amended

21

19.

Section 22H amended

21

20.

Section 22J replaced

21

22J.

Regulations requiring notification of, and

restricting change of, price

21

21.

Penalties amended

22

Western Australia

Petroleum Legislation Amendment Act 2001

No. 11 of 2001

An Act to amend the Petroleum Retailers Rights and Liabilities purposes.

[Assented to 13 July 2001]

The Parliament of Western Australia enacts as follows:

Petroleum Legislation Amendment Act 2001

Part 1

Preliminary

s. 1

Part 1 — Preliminary

1.             Short title

This Act may be cited as the Petroleum Legislation Amendment

Act 2001.

2.             Commencement

(1)

This Act comes into operation on a day fixed by proclamation.

(2)

The day fixed under subsection (1) for section 20 may be

different from the day fixed for the other provisions.

Petroleum Legislation Amendment Act 2001

Petroleum Retailers Rights and Liabilities Act 1982

Part 2

s. 3

Part 2 — Petroleum Retailers Rights and Liabilities

Act 1982

3.             The Act amended

The amendments in this Part are to the Petroleum Retailers

Rights and Liabilities Act 1982*.

[* Act No. 105 of 1982.

For subsequent amendments see 2000 Index to Legislation of

Western Australia, Table 1, p. 338.]

4.             Long title amended

The long title is amended by deleting “Persons occupying Land

for the purpose of ” and inserting instead the following —

certain persons ”.

5.             Section 3 amended

Section 3(1) is amended as follows:

(a)

by deleting the definition of “dispensing equipment” and inserting instead the following definition —

“dispensing equipment” means —

(a)

in relation to petrol or diesel fuel, a pump that transfers motor fuel from any bulk storage into the part of a road vehicle designed to hold that kind of motor fuel for use in the propulsion of that vehicle;

(b)

in relation to LPG fuel, a device that transfers LPG fuel from any bulk storage into the part of a road vehicle designed to hold LPG fuel for use in the propulsion of that vehicle;

”;

Petroleum Legislation Amendment Act 2001

Part 2

Petroleum Retailers Rights and Liabilities Act 1982

s. 5

(b)

by deleting the definition of “franchise agreement”;

(c)

by deleting the definition of “landlord” and inserting instead the following definition —

“landlord” means, in relation to a site at which the

retailer is a tenant, the person who has granted to

the retailer the right to occupy the site;

”;

(d)

in the definition of “motor fuel”, by inserting before “petrol” the following —

“ LPG (liquefied petroleum gas), ”;

(e)

by deleting the definition of “primary supplier” and inserting instead the following definition —

“primary supplier”, in relation to a particular kind

and, where applicable, grade of motor fuel, means the person, if any, from whom the retailer would, but for this Act, be obliged to purchase more than 50% of that kind and, where applicable, grade of motor fuel for the site concerned;

”;

(f)

by inserting, in its appropriate alphabetical position, the following definition —

“retailer” means a person who sells motor fuel by

retail at a site;

”;

(g)

by deleting the definition of “tenant” and inserting instead the following definition —

“tenant” means, in relation to a site, a retailer whose

right to occupy the site at which motor fuel is sold

Petroleum Legislation Amendment Act 2001

Petroleum Retailers Rights and Liabilities Act 1982

Part 2

s. 6

is not as the owner of the site but derives through

another person.

”;

(h)

by deleting the definition of “underground storage” and inserting instead, in its appropriate alphabetical position, the following definition —

“bulk storage” means a storage tank or a number of

storage tanks for motor fuel installed at a site;

”.

6.             Section 3A inserted

After section 3 the following section is inserted —

3A.

Contracts not terminated or breached

Nothing in this Act, or done under this Act, causes an agreement to be terminated or amounts to a breach of contract.

”.

7.             Section 4 amended

(1)

Section 4(1) is repealed and the following subsections are

inserted instead —

(1)

A retailer at a site may —

(a)

purchase motor fuel, for resale at the site, from a supplier other than the primary supplier for that kind and, where applicable, grade of motor fuel for that site; and

(b)

if, under paragraph (a) or otherwise, the retailer is lawfully able to purchase motor fuel for resale at the site from a supplier other than the

Petroleum Legislation Amendment Act 2001

Part 2

Petroleum Retailers Rights and Liabilities Act 1982

s. 7

primary supplier for that kind and, where

applicable, grade of motor fuel for that site —

(i)      use, for the storage of that motor fuel, any bulk storage at the site that is suitable; and

(ii)      use, for the dispensing of that motor fuel, any dispensing equipment on the site that is suitable.

(1a)

Subsection (1) applies subject to this section but,

except as stated in subsection (1b), despite —

(a)

any Act or law affecting the contractual relationship between a landlord and a tenant; or

(b)

any agreement to the contrary, whether made between the primary supplier and the retailer or not.

(1b)

Subsection (1)(a) does not apply if a purchase under

that paragraph would be contrary to an agreement that

was entered into before 10 February 2001.

(1c)

An agreement resulting from the modification,

continuation, or renewal of an agreement entered into

before 10 February 2001 is to be considered, when

applying subsection (1b), to have been entered into on

the day on which it was most recently modified,

continued, or renewed, but —

(a)

a modification is not to be taken into consideration if it had no necessary connection with the duration of the agreement; and

(b)

a modification, continuation, or renewal is not to be taken into consideration if the retailer was the only party who had a choice about whether the modification, continuation, or renewal would be made.

Petroleum Legislation Amendment Act 2001

Petroleum Retailers Rights and Liabilities Act 1982

Part 2

s. 7

(1d)

Nothing in this section limits any right that the retailer

may, independently of this section, have to purchase

motor fuel, for resale at the site, from a supplier other

than the primary supplier for that kind and, where

applicable, grade of motor fuel for that site.

”.

(2)

Section 4(2) is repealed and the following subsection is inserted

instead —

(2)

A right conferred on the retailer by subsection (1) is not exercisable until 7 days after notice in writing of the intention to exercise it has been given —

(a)

if it is a right conferred by subsection (1)(a), to the retailer’s primary supplier, if any, for the kind and, where applicable, grade of motor fuel concerned;

(b)

if it is a right conferred by subsection (1)(b), to the retailer’s landlord, if the retailer is a tenant, and to the retailer’s primary supplier, if any, for the kind and, where applicable, grade of motor

fuel concerned.

”.

(3)

Section 4(3)(a) is amended by inserting before “grade” the

following —

“ , where applicable, ”.

(4)

Section 4(3)(b)(i) and (ii) are each amended as follows:

(a)

by inserting after “purchases motor fuel” the following —

“ of a particular kind and, where applicable, grade ”;

Petroleum Legislation Amendment Act 2001

Part 2

Petroleum Retailers Rights and Liabilities Act 1982

s. 7

(b)

by inserting after “other than his primary supplier” the following —

for that kind and, where applicable,

grade of motor fuel

”;

(c)

by deleting “each kind or grade from” and inserting instead the following —

“ that kind and, where applicable, grade from ”.

(5)

Section 4(3)(b)(ii) is amended by deleting “each kind or grade

as” and inserting instead the following —

“ that kind and, where applicable, grade that ”.

(6)

Section 4(3)(c) is amended by deleting “does not display” and

inserting instead the following —

for the kind and, where applicable, grade of

fuel dispensed does not, and any bulk storage

on the site that is not underground and is used

to store motor fuel other than motor fuel

supplied by the primary supplier for the kind

and, where applicable, grade of fuel stored does

not, display

”.

(7)

Section 4(3)(h) is amended by deleting “petrol and diesel fuel”

and inserting instead the following —

different kinds or grades of motor fuel, but may contain

a mixture of different brands of motor fuel

”.

Petroleum Legislation Amendment Act 2001

Petroleum Retailers Rights and Liabilities Act 1982

Part 2

s. 7

(8)

Section 4(3)(i) is amended by deleting “that”.

(9)

At the foot of section 4(3), the following is inserted —

“ Penalty:

$20 000. ”.

(10)

After section 4(3) the following subsection is inserted —

(3a)

For the purposes of deciding whether a

retailer has, as required by subsection

(3)(a), ensured, so far as is practicable, that

motor fuel that the retailer is obliged to

purchase from the primary supplier is

available for sale at the site, the lack of

availability of storage is not relevant if

more than one kind or, where applicable,

grade of motor fuel is being stored, under

subsection (1)(b)(i), in bulk storage

provided at the site for the storage of motor

fuel purchased from the primary supplier.

”.

(11)

Section 4(4) is repealed and the following subsection is inserted

instead —

(4)

Subsection (3)(b) does not apply for a particular kind

or grade of motor fuel in any 6 month period if —

(a)

the primary supplier has not, as reasonably requested by the retailer, supplied the reasonable requirements of the retailer for that kind or grade of motor fuel in that period; and

(b)

after the failure to supply —

(i)      the retailer has given the primary supplier notice in writing that it is intended to rely on this subsection if the

supply requested is not made within a

Petroleum Legislation Amendment Act 2001

Part 2

Petroleum Retailers Rights and Liabilities Act 1982

s. 7

further time reasonably specified in the

notice; and

(ii)      the primary supplier does not make the supply within that further time.

”.

(12)

After section 4(4), the following subsection is inserted —

(4a)

For the purposes of deciding whether a person has, as required by subsection (3)(g) or (h), ensured, so far as is practicable, that bulk storage does not contain a

particular motor fuel, the lack of availability of other

storage is not relevant.

”.

(13)

Section 4(5) is amended as follows:

(a)

by deleting “Where a term of provision of a franchise agreement” and inserting instead the following —

“ If a provision of an agreement ”;

(b)

in paragraph (a) —

(i)      by inserting before “or any colour” the following —

“ of a kind or grade of motor fuel ”; and

(ii)      by inserting after “dispensing equipment” the following —

“ or on bulk storage that is not underground ”;

(c)

in paragraph (c) —

(i)      by deleting “or” after “landlord” and inserting instead the following —

“ , if the retailer is a tenant, or a ”; and

(ii)      by inserting after “operated” the following —

“ , or bulk storage being used, ”;

Petroleum Legislation Amendment Act 2001

Petroleum Retailers Rights and Liabilities Act 1982

Part 2

s. 8

(d)

by deleting “term or”;

(e)

by deleting “tenant’s” and inserting instead the following —

“ retailer’s ”.

(14)

Section 4(6) is amended by inserting before “purchased” the

following —

“ of the kind and, where applicable, grade concerned ”.

(15)

At the foot of section 4(6), the following is inserted —

“ Penalty:

$20 000. ”.

(16)

Section 4(7) is amended by deleting “who fails to make an entry

in a register as required by this Act or”.

(17)

At the foot of section 4(7), the following is inserted —

“ Penalty for an offence under subsection (7): $20 000. ”.

8.             Section 5 amended

(1)

Section 5(1) is amended as follows:

(a)

in paragraph (a), by inserting after “site” the following —

“ if the retailer is a tenant ”;

(b)

by deleting paragraphs (b) and (c), and “and” between those paragraphs, and inserting instead the following —

(b) may —

(i)      with the permission of the owner of any bulk storage, if the retailer does not own it, isolate from the bulk storage any

other bulk storage;

(ii)      with the permission of the landlord of the site if the retailer is a tenant and, if neither the retailer nor the landlord

owns the bulk storage to which the

Petroleum Legislation Amendment Act 2001

Part 2

Petroleum Retailers Rights and Liabilities Act 1982

s. 8

dispensing equipment is to be

connected, the permission of the owner

of the bulk storage, install additional

dispensing equipment; and

(iii)      with the permission of the owner of the dispensing equipment, if the retailer does not own it, connect any existing dispensing equipment to any bulk storage installed by the retailer;

and

(c)

may, with the permission of the owner of the dispensing equipment, if the retailer does not own it, replace any dispensing equipment

connected to any existing bulk storage.

”.

(2)

Section 5(2) is amended by deleting all of the subsection before

“notice” and inserting instead the following —

A retailer at a site intending to exercise a right under

subsection (1) that is exercisable only with another

person’s permission may give to the other person

”.

(3)

Section 5(3) is amended as follows:

(a)

by deleting “14” and inserting instead the following —

“ 28 ”;

(b)

by deleting paragraph (b) and inserting the following paragraph instead —

(b)

refuse to give permission, or give permission subject to any condition, and state the ground upon which permission is refused or any

condition is imposed.

”.

Petroleum Legislation Amendment Act 2001

Petroleum Retailers Rights and Liabilities Act 1982

Part 2

s. 8

(4)

Section 5(3) and (4) are each amended by deleting “landlord or

a primary supplier” and inserting instead the following —

“ person ”.

(5)

Section 5(4) is amended as follows:

(a)

by deleting “or unreasonably refuses to give permission to the tenant under that subsection”;

(b)

by deleting “to the tenant” after “given”.

(6)

After section 5(4), the following subsections are inserted —

(4a)

A retailer who, under subsection (3), is refused

permission to exercise a right under subsection (1) is

deemed to have been given that permission if —

(a)

the person who refused to give permission concedes that the refusal was unreasonable; or

(b)

the Commissioner has determined under unreasonable.

(4b)

A retailer who, under subsection (3), is given

permission to exercise a right under subsection (1)

subject to any condition —

(a)

is deemed to have been given that permission unconditionally if —

(i)      the person who gave permission concedes that any condition was unreasonable; or

(ii)

subsection (9) that any condition was

unreasonable without specifying

the Commissioner has determined under person giving permission have agreed;

(b)

if the Commissioner has determined under subsection (9) that any condition was

Petroleum Legislation Amendment Act 2001

Part 2

Petroleum Retailers Rights and Liabilities Act 1982

s. 8

unreasonable but specifies conditions to which

the retailer and the person giving permission

have agreed, is deemed to have been given that

permission subject to those conditions.

(4c)

A determination of the Commissioner does not take

effect for the purposes of subsection (4a) or (4b)

unless —

(a)

the time within which an appeal against the determination may be made under subsection (10) has elapsed without an appeal having been made; or

(b)

although an appeal against the determination was made under subsection (10), the appeal has been withdrawn or has been finally disposed of without a finding that the refusal or condition that the Commissioner found to be unreasonable was reasonable.

”.

(7)

Section 5(5) is amended by inserting after “have been given”

the following —

nor contrary to any condition to which the permission

is subject

”.

(8)

Section 5(6)(a) is amended by inserting after “manner” the

following —

and, subject to this paragraph, in accordance with any

relevant proposal given under subsection (2)

”.

(9)

Section 5(6)(b) is amended by deleting “insure” and inserting

instead —

“ ensure ”.

Petroleum Legislation Amendment Act 2001

Petroleum Retailers Rights and Liabilities Act 1982

Part 2

s. 8

(10)

At the foot of section 5(6), the following is inserted —

“ Penalty:

$20 000. ”.

(11)

Section 5(7) is amended as follows:

(a)

by inserting after “under this section” the following —

“ with the permission of another person ”;

(b)

by deleting “and hold harmless the landlord and the primary supplier” and inserting instead the following —

“ that person and hold that person harmless ”;

(c)

by deleting “either” and inserting instead the following —

“ the person ”.

(12)

After section 5(7) the following subsection is inserted —

(7a)

Where a retailer exercises a right under this

section with the permission of another

person the retailer has no claim or suit

against that person in relation to any loss or

damage which the retailer or another person

may suffer by reason of the workmanship or

materials employed in the exercise of such

right or arising in respect of or from the use

of the bulk storage or dispensing equipment,

as the case may be, affected by that exercise.

”.

(13)

Section 5(8)(a) is amended by deleting “the landlord or primary

supplier may reasonably require;” and inserting instead —

“ is prescribed by the regulations; ”.

(14)

Section 5(8)(b) is amended by deleting “landlord or primary

supplier” and inserting instead the following —

“ person indemnified ”.

Petroleum Legislation Amendment Act 2001

Part 2

Petroleum Retailers Rights and Liabilities Act 1982

s. 9

(15)

At the foot of section 5(8), the following is inserted —

“ Penalty:

$20 000. ”.

(16)

Section 5(9) is amended by deleting “the landlord or primary

supplier” and inserting instead the following —

“ a person ”.

(17)

Section 5(9) is further amended by inserting before “shall” the

following —

or to the reasonableness of a condition subject to which

permission is given

”.

(18)

Section 5(10) is amended by deleting “tenant, landlord, or

primary supplier” and inserting instead the following —

“ retailer or other person referred to in this section ”.

9.             Section 6 amended

(1)

Section 6(1) is amended by deleting “or primary supplier” after

“maintained by the landlord” and inserting instead the

following —

, if the retailer is a tenant, or a primary supplier of any

kind or grade of motor fuel for the site

”.

(2)

Section 6(1) is further amended as follows:

(a)

by deleting “50 per cent” and inserting instead the following —

“ 100% ”;

Petroleum Legislation Amendment Act 2001

Petroleum Retailers Rights and Liabilities Act 1982

Part 2

s. 10

(b)

by inserting after “equipment” at the end of the subsection the following —

while it is being used for the dispensing of motor fuel supplied otherwise than by the primary supplier

”.

10.           Section 7 amended

(1)

Section 7(1) is amended by deleting “or primary supplier of ”

and inserting instead the following —

of, or a primary supplier of any kind or grade of motor

fuel for,

”.

(2)

At the foot of section 7(1), the following is inserted —

“ Penalty:

$20 000. ”.

(3)

Section 7(2)(c) is amended by deleting “tenants” and inserting

instead the following —

“ retailers ”.

11.           Section 10 repealed

Section 10 is repealed.

12.           Section 12 amended

Section 12 is amended by deleting “Permanent Head of the

Department within the meaning of the Consumer Affairs

Act 1971” and inserting instead the following —

“ Commissioner ”.

Petroleum Legislation Amendment Act 2001

Part 2

Petroleum Retailers Rights and Liabilities Act 1982

s. 13

13.           Section 13 amended

(1)

Section 13 is amended by inserting before “The Governor” the

subsection designation “(1)”.

(2)

At the end of section 13, the following subsection is inserted —

(2)

The regulations may make contravention of any of

their provisions an offence and may provide for a

penalty for the offence not exceeding a fine of

$20 000 for an individual or $100 000 for a body

corporate.

”.

14.           Section 14 inserted

After section 13 the following section is inserted —

14.           Review of Act

(1)

The Minister is to carry out a review of the operation and effectiveness of this Act as soon as is practicable after the expiration of 3 years from the commencement

of Part 2 of the Petroleum Legislation Amendment Act

2001.

(2)

In the course of the review the Minister is to consider

and have regard to any matters that appear to the

Minister to be relevant to the operation and

effectiveness of this Act.

(3)

The Minister is to prepare a report based on the review

and, as soon as is practicable after the report is

prepared, is to cause it to be laid before each House of

Parliament.

”.

Petroleum Legislation Amendment Act 2001

Petroleum Retailers Rights and Liabilities Act 1982

Part 2

s. 15

15.           Certain references to underground storage amended

A provision listed in the Table to this section is amended by

deleting “underground” and inserting instead the following —

“ bulk ”.

Table

s. 4(3)(g) and (h)

s. 5(7)

s. 5(1)(a)

16.           Certain references to tenants amended

(1)

A provision listed in the Table to this subsection is amended by

deleting “tenant” (including where, in section 4(5)(b), it is

incorrectly spelt as “tentant”) and inserting instead the

following —

“ retailer ”.

Table

s. 4(3) (in 2 places)

s. 5(7) and (8)

s. 4(5)(a), (b), and (c)

s. 6(1) and (2)

s. 4(6) (in 2 places)

s. 7(1) (in 2 places)

s. 5(3)(a)

(2)

Each of section 5(1), (5), and (6) is amended by deleting “tenant

of ” and inserting instead the following —

“ retailer at ”.

17.           Certain references to power corrected

(1)

Section 5(9) is amended by deleting “of power” and “of a power” and in each case inserting instead the following —

“ of a right ”.

(2)

Section 7(1) is amended by deleting “or power”.

Petroleum Legislation Amendment Act 2001

Part 2

Petroleum Retailers Rights and Liabilities Act 1982

s. 17

(3)

A provision listed in the Table to this subsection is amended by

deleting “power” and inserting instead the following —

“ right ”.

Table

s. 4(3)(g) and (h)

s. 5(6) (in 4 places)

s. 5(3)(a) and (5)

s. 5(7) (in 2 places)

Petroleum Legislation Amendment Act 2001

Petroleum Products Pricing Act 1983

Part 3

s. 18

Part 3 — Petroleum Products Pricing Act 1983

18.           The Act amended

The amendments in this Part are to the Petroleum Products

Pricing Act 1983*.

[* Act No. 1 of 1983.

For subsequent amendments see 2000 Index to Legislation of

Western Australia, Table 1, p. 337.]

19.           Section 22H amended

Section 22H is amended by deleting the definition of “kind of

motor fuel” and inserting the following definition instead —

“kind of motor fuel” refers to the type of motor fuel

and, if there are different grades or brands of a particular type of motor fuel, motor fuel of that type has to be of the same grade and brand for it to

be the same kind of motor fuel;

”.

20.           Section 22J replaced

Section 22J is repealed and the following section is inserted

instead —

22J.

Regulations requiring notification of, and

restricting change of, price

(1)

The regulations may —

(a)

require a person who offers motor fuel for retail sale at a particular place to have notified the Commissioner, in accordance with the regulations, of the standard retail price at which each kind of motor fuel is to be offered for sale at that place for a period fixed by the regulations;

Petroleum Legislation Amendment Act 2001

Part 3

Petroleum Products Pricing Act 1983

s. 21

(b)

prohibit a person from offering motor fuel for sale at a standard retail price that differs from the standard retail price that was notified as

required by regulations under paragraph (a).

(2)

If a kind of motor fuel is not available for retail sale at

a particular place except in accordance with an existing

agreement or arrangement between the customer and

the retailer, subsection (1) does not apply to the sale of

that kind of motor fuel at that place.

(3)

The regulations may include provision for the

Commissioner to be notified if a person ceases,

temporarily or not, to be required by regulations under

subsection (1)(a) to notify in respect of all motor fuel

or any kind of motor fuel.

”.

21.           Penalties amended

(1)

Under the provisions identified in the Table to this subsection

“Penalty: in the case of an individual, $4 000 and, in the case of

a body corporate, $10 000.” is deleted and the following is

inserted instead —

“ Penalty: $20 000. ”.

Table

s. 11(1)

s. 21

s. 14(1)

s. 22B

s. 14(2)

s. 22C

s. 15

s. 22D

s. 16(1)

s. 22E

s. 17

s. 22F

s. 18(3)

s. 27(5)

s. 19(1) s. 20(1)

s. 27A(5)

Petroleum Legislation Amendment Act 2001

Petroleum Products Pricing Act 1983

Part 3

s. 21

(2)

The penalties specified under the provisions identified in column 1 of the Table to this subsection are amended by deleting the amounts shown in column 2 and inserting instead

the amounts shown in column 3.

Table

column 1

column 2

column 3

provision

amount deleted

amount inserted

s. 25(1)

$4 000

$20 000

s. 26

$4 000

$20 000

s. 33(1)

$10 000

$20 000

(3)

Section 34(a) is amended as follows:

(a)

in subparagraph (i), by deleting “$1 000” and inserting instead —

“ $20 000 ”;

(b)

in subparagraph (ii), by deleting “$2 000” and inserting instead —

“ $100 000 ”.

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