Petroleum Retail Marketing Sites Amendment Act 1984 (Cth)

Petroleum Retail Marketing Sites Amendment Act 1984

No. 121 of 1984

 

An Act to amend the Petroleum Retail Marketing Sites Act 1980, and for related purposes

[Assented to 18 October 1984]

BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:

Short title, &c.

1. (1) This Act may be cited as the Petroleum Retail Marketing Sites Amendment Act 1984.

(2) The Petroleum Retail Marketing Sites Act 19801is in this Act referred to as the Principal Act.

Commencement

2. This Act shall come into operation on 1 January 1985.

Interpretation

3. Section 3 of the Principal Act is amended—

(a) by omitting from sub-section (1) the definition of “business day”;

(b) by omitting from sub-section (1) the definition of “diesel fuel site”;

 

(c) by omitting from sub-section (1) the definitions of “franchise agreement”, “franchisee” and “franchisor” and substituting the following definition:

“ ‘franchise agreement’ means a franchise agreement, within the meaning of the Petroleum Retail Marketing Franchise Act 1980, to which that Act applies, and ‘franchisee’ and ‘franchisor’ shall be construed accordingly;”;

(d) by omitting from sub-section (1) the definition of “market research site”;

(e) by omitting from sub-section (1) the definition of “motor fuel” and substituting the following definition:

“ ‘motor fuel’ means any fuel to be used in propelling road vehicles, other than diesel fuel or liquefied gas;”;

(f) by omitting from sub-section (1) the definition of “prescribed corporation” and substituting the following definitions:

“‘prescribed corporation’ means—

(a) a prescribed oil company;

(b) any other corporation that refines petroleum; or

(c) a corporation that is related to a corporation referred to in paragraph (a) or (b);

‘prescribed oil company’ means a corporation that—

(a) deals in petroleum products in liquid form; and

(b) is specified in the regulations for the purposes of this definition;”;

(g) by omitting from the definition of “retail site” in sub-section (1) “for road vehicles”;

(h) by omitting from sub-section (1) the definitions of “training site” and “truck”;

(j) by omitting sub-sections (2), (3) and (4) and substituting the following sub-sections:

“(2) For the purposes of this Act, motor fuel shall not be taken to be sold by retail at a retail site unless it is delivered at that site into the supply tanks of road vehicles by a metered pump.

“(3) For the purposes of this Act, motor fuel shall be taken to be sold at the time when it is delivered in pursuance of the contract of sale.

“(4) For the purposes of this Act, a corporation that is not a corporation of the kind referred to in paragraph (a), (b) or (c) of the definition of ‘prescribed corporation’ in sub-section (1) shall be taken to be a prescribed corporation in relation to a month if—

(a) the corporation acquired refined petroleum at a time or times during the period of 12 months immediately preceding that month; and

 

(b) more than 50% of the total quantity of refined petroleum so acquired was imported into Australia by the corporation or by a related corporation.

“(5) For the purposes of this Act, a retail site operated by a prescribed corporation during a month shall be taken to be a diesel fuel site during that month (in this sub-section referred to as the ‘relevant month’) if—

(a) in the case of a site operated by that corporation during one or more of the months (in this sub-section and in sub-section (6) referred to as the ‘relevant period’) in the period of 12 months immediately preceding the relevant month—

(i) not less than the prescribed total of litres of diesel fuel was sold at the site during the relevant period; and

(ii) less than the prescribed total of litres of motor fuel was sold by retail at the site during the relevant period; or

(b) at the site—

(i) not less than the prescribed number of litres of diesel fuel is sold during the relevant month; and

(ii) less than the prescribed number of litres of motor fuel is sold by retail during the relevant month.

“(6) In sub-section (5)—

‘prescribed number’ means 100,000 or such other number as is prescribed;

‘prescribed total’ means the number ascertained by multiplying the number of months in the relevant period by the prescribed number.”.

4. Sections 5 and 6 of the Principal Act are repealed and the following section is substituted:

Groups of prescribed corporations

“6. Where 2 or more prescribed corporations are related to each other, those corporations shall, for the purposes of this Act, be deemed to be members of a group of prescribed corporations.”.

5. Sections 7 and 8 of the Principal Act are repealed and the following sections are substituted:

Operation of retail sites

“7. (1) For the purposes of this Act, a retail site shall, subject to sub-sections (2) and (3), be taken to be operated by a prescribed corporation during a particular month if—

(a) on any day or days during that month, the corporation owns, or is a lessee or licensee in respect of, that site; and

 

(b) on that day or any of those days, motor fuel is, at that site—

(i) sold by retail by or on behalf of the corporation; or

(ii) sold by retail by a person (as servant or agent of another person) under an agreement to which the corporation is a party, where, under that agreement or any other agreement to which the corporation is a party, the corporation receives or is entitled to receive any payments in respect of any such sale or sales, other than payments in respect of the purchase of that motor fuel by that person from the corporation.

“(2) Except for the purposes of paragraph 8 (2) (b), a retail site shall not be taken to be operated during a particular month by a prescribed corporation if the quantity of motor fuel that was sold by retail at the site during that month—

(a) by or on behalf of the corporation; or

(b) by a person under an agreement referred to in sub-paragraph (1) (b) (ii),

(otherwise than by way of exempt retail sales) was less than 30,000 litres or such other number of litres as is prescribed.

“(3) A retail site shall not be taken to be operated by a prescribed corporation during a month if a franchise agreement relating to the site is in effect at any time during that month.

“(4) In this section—

‘authority of the Commonwealth’ means—

(a) a body, whether incorporated or unincorporated, established for a public purpose by or under a law of the Commonwealth or of a Territory; or

(b) any other body, being—

(i) a body, whether incorporated or unincorporated, established by the Governor-General or by a Minister; or

(ii) an incorporated company in which the Commonwealth or a body corporate falling within paragraph (a) or sub-paragraph (i) of this paragraph has a controlling interest;

‘authority of a State’ means—

(a) an authority, whether incorporated or unincorporated, established for a public purpose by or under a law of a State; or

(b) a local governing body established under a law of a State;

‘exempt retail sale’ means a sale by retail to the Commonwealth or a State or an authority of the Commonwealth or of a State;

‘State’ includes the Northern Territory.”.

 

Temporary operation of retail sites

“8. (1) Except as provided by this section, a prescribed corporation shall not be taken for the purposes of this Act to operate a retail site temporarily during a particular month.

“(2) A prescribed corporation that operates a retail site during a particular month shall be taken for the purposes of this Act to operate the site temporarily during that month if—

(a) before the 3 months immediately preceding that month, neither the corporation nor a related corporation operated the site;

(b) the site is or has been, in a statement lodged under section 11 in relation to that month or an earlier month, specified as being temporarily operated; and

(c) the site is not, in a statement so lodged in relation to that month, specified as not being temporarily operated.

“(3) Where a retail site has been rebuilt or restored, a prescribed corporation that operates the site during the month in which the rebuilding or restoration is completed or any subsequent month shall, subject to sub-section (4), be taken for the purposes of this Act to operate the site temporarily during that month or that subsequent month, as the case may be.

“(4) A corporation shall not be taken for the purposes of this Act by virtue of sub-section (3) to operate a retail site temporarily during any month occurring more than 3 months after the first month (being a month after the month in which the rebuilding or restoration is completed) during which the corporation operates that site, but nothing in this sub-section prevents any fresh application of sub-section (3) by reason of any further rebuilding or restoration of the site.

“(5) Where, during a particular month—

(a) a prescribed corporation operates a retail site in relation to which a franchise agreement (being an agreement in relation to which the corporation was the franchisor) was in effect at a time before that month; and

(b) the corporation proposes, in good faith and in the normal course of business—

(i) to enter, as franchisor, into a fresh franchise agreement in relation to the site; or

(ii) to enter into an agreement in pursuance of which motor fuel will be sold by retail at the site by a person (not being an employee of the corporation) acting as agent of the corporation,

the corporation shall, subject to sub-section (7), be taken for the purposes of this Act to operate the site temporarily during that month.

 

“(6) Where, during a particular month, a prescribed corporation operates a retail site and proposes, in good faith and in the normal course of business—

(a) to dispose of its whole interest in the site and not acquire or re-acquire any interest in the site;

(b) to grant a lease of the site wholly for purposes other than the retail sale of motor fuel; or

(c) to enter as franchisor into a franchise agreement in relation to the site,

the corporation shall, subject to sub-section (7), be taken for the purposes of this Act to operate the site temporarily during that month.

“(7) Sub-section (5) or (6) does not apply in relation to the operation of a retail site by a prescribed corporation during more than 4 consecutive months, but nothing in this sub-section prevents a fresh application of that sub-section in relation to the operation of the site by the corporation—

(a) in the case of sub-section (5)—after the corporation has entered into an agreement; or

(b) in the case of sub-section (6)—after the corporation has granted a lease, or entered into an agreement, as the case may be,

in pursuance of a proposal by reason of which that sub-section last so applied.”.

6. Sections 9 and 10 of the Principal Act are repealed and the following section is substituted:

Restrictions on operation of retail sites

“10. (1) A prescribed corporation may, subject to this section, operate a retail site during any month.

“(2) A prescribed oil company (not being a member of a group of prescribed corporations) shall not operate, during a month, a number of retail sites exceeding the number of retail sites specified in the regulations in relation to that company in relation to that month.

“(3) A member of a group of prescribed corporations one of which is a prescribed oil company shall not operate a retail site during a month if the total number of retail sites (including that site) that would be operated during that month by the members of that group of corporations would exceed the number of retail sites specified in the regulations in relation to that prescribed oil company in relation to that month.

“(4) In ascertaining for the purposes of this section the number of retail sites operated during a particular month, any diesel fuel sites operated, or any sites temporarily operated, during that month shall be disregarded.”.

 

Returns

7. Section 11 of the Principal Act is amended—

(a) by omitting sub-sections (1) to (4) (inclusive) and substituting the following sub-sections:

“(1) Where a prescribed oil company, or a member of a group of prescribed corporations one of which is a prescribed oil company, operates a retail site during the month of January in the year 1985 or the month of January in any subsequent year, the prescribed oil company shall, within 30 days after the end of that month, lodge with an authorized officer a statement in accordance with the appropriate form stating, in respect of the site—

(a) the name of the corporation (in this sub-section referred to as the ‘relevant corporation’) that operated the site during that month;

(b) particulars of the situation of the site;

(c) whether the relevant corporation owned, or was a lessee or licensee in respect of, the site on any day or days during that month;

(d) whether motor fuel was sold by retail during that month at the site—

(i) by or on behalf of the relevant corporation; or

(ii) by a person under an agreement of the kind to which sub-paragraph 7 (1) (b) (ii) applies to which the relevant corporation is a party;

(e) whether, during that month, the site was a diesel fuel site or a site temporarily operated and, in the case of a site temporarily operated, the circumstances by reason of which it was to be taken to be temporarily operated; and

(f) such other matters as are prescribed.

“(1a) Where (whether by reason of the operation of sub-section 7 (2) or (3) or otherwise) during a month referred to in sub-section (1)—

(a) no retail sites were operated by a particular prescribed oil company (not being a member of a group of prescribed corporations); or

(b) no member of a particular group of prescribed corporations (being a group of which a prescribed oil company is a member) operated any retail sites,

the prescribed oil company shall, within 30 days after the end of that month, lodge with an authorized officer a statement in accordance with the appropriate form stating that fact.

“(2) Where a prescribed oil company, or a member of a group of prescribed corporations one of which is a prescribed oil company, operates a retail site during a month (not being January in any year)

 

after January 1985 and did not operate the site during the month immediately preceding the first-mentioned month, the prescribed oil company shall, within 30 days after the end of the first-mentioned month, lodge with an authorized officer a statement in accordance with the appropriate form stating, in respect of the operation of the site during the first-mentioned month, such of the matters referred to in paragraphs (1) (a) to (f) (inclusive) as are applicable.

“(3) Where—

(a) a statement has been lodged under this section in respect of the operation, during a particular month, of a retail site by a corporation (in this sub-section referred to as the ‘relevant corporation’), being a prescribed oil company or a member of a group of prescribed corporations one of which is a prescribed oil company; and

(b) during a subsequent month the site is not operated by the relevant corporation,

the prescribed oil company shall, within 30 days after the end of the first such subsequent month, lodge with an authorized officer a statement in accordance with the appropriate form stating that the site was not operated by the relevant corporation during that first subsequent month.

“(4) Where—

(a) a prescribed oil company, or a member of a group of prescribed corporations one of which is a prescribed oil company, operates a retail site’ during a month (in this sub-section referred to as the ‘relevant month’) in circumstances to which neither sub-section (1) nor (2) applies;

(b) a statement has, or statements have, been lodged under any of the provisions of this section (including this sub-section) in respect of the site in relation to a previous month or previous months; and

(c) the matters specified in that statement, or the later or latest of those statements, as the case may be, would, if the statement related to the relevant month, be incorrect or insufficient,

the prescribed oil company shall, within 30 days after the end of the relevant month, lodge with an authorized officer a statement in accordance with the appropriate form stating, in respect of the operation of the site during the relevant month, such of the matters referred to in paragraphs (1) (a) to (f) (inclusive) as are applicable.”; and

(b) by omitting sub-sections (9) and (10).

Injunctions

8. Section 12 of the Principal Act is amended—

(a) by omitting sub-section (1) and substituting the following sub-section:

 

“(1) Where, on the application of the Minister or any other person, the Court is satisfied that a prescribed corporation has engaged, or is proposing to engage, in conduct that constitutes or would constitute a contravention of section 10, the Court may grant an injunction in such terms as the Court determines to be appropriate.”;

(b) by omitting from sub-section (2) “make an interim order” and substituting “grant an interim injunction”;

(c) by omitting sub-section (3);

(d) by omitting from sub-section (4) “order made” and substituting “injunction granted”; and

(e) by omitting sub-section (5) and substituting the following sub-section:

“(5) The power of the Court to grant an injunction restraining a corporation from engaging in conduct may be exercised—

(a) whether or not it appears to the Court that the corporation intends to engage again, or to continue to engage, in conduct of that kind;

(b) whether or not the corporation has previously engaged in conduct of that kind; and

(c) whether or not there is an imminent danger of substantial damage to any person if the corporation engages in conduct of that kind.”.

Pecuniary penalties

9. Section 13 of the Principal Act is amended—

(a) by omitting from sub-section (1) “, 11 or 16” and substituting “or 11”;

(b) by omitting paragraphs (1) (a) and (b) and substituting the following paragraphs:

“(a) in the case of a contravention of sub-section 10 (2) or (3)—$10,000 for each retail site exceeding the number of retail sites specified in the regulations in accordance with that sub-section;

(b) in the case of a contravention of sub-section 11 (1), (1a), (2), (3) or (4)—$5,000; or

(c) in the case of a contravention of sub-section 11 (8)—$10,000;”;

(c) by inserting after sub-section (1) the following sub-section:

“(1a) Where an act or omission by a prescribed corporation constitutes a contravention of sub-section 11 (8) and also a contravention of any other sub-section of section 11, the corporation may be ordered to pay a penalty in respect of either contravention, but not both;”; and

(d) by omitting sub-section (4) and substituting the following sub-section:

 

“(4) Where, in a proceeding under this section—

(a) it is established that—

(i) a statement has been lodged under section 11 stating that a corporation operated a retail site during a particular month; and

(ii) a statement has not been lodged under sub-section 11 (3) stating that the corporation did not operate the site during a subsequent month; and

(b) it is alleged that the corporation operated the site during a month after the month referred to in sub-paragraph (a) (i),

the first-mentioned statement is prima facie evidence that the corporation operated the site as so alleged.”.

Production of books, &c.

10. Section 14 of the Principal Act is amended—

(a) by omitting sub-section (1) and substituting the following sub-sections:

“(1) Where an authorized officer has reasonable grounds to believe that books in the custody or under the control of a person may be relevant to retail sales of motor fuel made at any premises by any person, the officer may, by notice in writing, require the person to produce, at such time and place as are specified in the notice, such of those books as are so specified.

“(1a) Where an authorized officer requires a person to produce books under sub-section (1)—

(a) if the books are produced, the authorized officer—

(i) may take possession of, and may make copies of, or take extracts from, the books;

(ii) may retain possession of the books for such period as is necessary to enable the books to be inspected, and copies of, or extracts from, the books to be made or taken; and

(iii) during that period shall permit a person who would be entitled to inspect any one or more of the books if they were not in the possession of the authorized officer to inspect at all reasonable times such of the books as that person would be so entitled to inspect; or

(b) if the books are not produced, the authorized officer may require the person—

(i) to state, to the best of his knowledge and belief, where the books may be found; and

(ii) to identify the person who, to the best of his knowledge and belief, last had custody of the books and to state, to the best of his knowledge and belief, where that last-mentioned person may be found.

 

“(1b) A person shall not be subject to any liability by reason that the person complies with a requirement made, or purporting to have been made, under sub-section (1).”; and

(b) by inserting in sub-section (2) “, without reasonable excuse,” after “who”.

11. Sections 15 and 16 of the Principal Act are repealed and the following section is substituted:

Regulations

“15. The Governor-General may make regulations, not inconsistent with this Act, prescribing all 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.”.

Repeal of Schedule

12. The Schedule to the Principal Act is repealed.

Transitional

13. (1) In this section—

“amended Act” means the Principal Act as amended by this Act;

“prescribed period” means the period commencing on 1 January 1985 and ending on 30 June 1986 or such later date as may be prescribed by regulations made under the amended Act;

“Principal Act” means the Principal Act as in force before 1 January 1985.

(2) Sub-section 3 (2) of the amended Act has effect for the purposes of this section notwithstanding that it may apply in relation to a time before 1 January 1985.

(3) For the purposes of the application of sub-section 8 (2) of the amended Act, any sale of motor fuel before 1 January 1985 shall be disregarded.

(4) Sub-section 10 (4) of the amended Act has effect for the purposes of sub-section (6) of this section in like manner as it has effect for the purposes of sub-sections 10 (2) and (3) of that Act..

(5) Notwithstanding the amendments made by section 7, sections 11 and 13 of the Principal Act continue to apply in relation to—

(a) the operation of a retail site; or

(b) the cessation of the operation of a retail site, on a particular day during the month of December 1984.

(6) Where, during any month in the prescribed period, the total number of retail sites operated by—

(a) a prescribed oil company (not being a member of a group of prescribed corporations); or

 

(b) the members of a group of prescribed corporations at least one of which is a prescribed oil company,

exceeds the number of retail sites specified in the regulations for the purposes of sub-section 10 (2) or (3), as the case may be, of the amended Act in relation to that prescribed oil company in relation to a month after the end of the prescribed period, the succeeding provisions of this section apply in relation to the prescribed oil company referred to in paragraph (a) or in relation to each member of that group of corporations, as the case may be (in this section, in either case, referred to as the “corporation”).

(7) If—

(a) during the prescribed period, the corporation proposes to cease operating one of the retail sites referred to in sub-section (6) (in this section referred to as the “site”), being a site at which, immediately before 1 January 1985, motor fuel was sold by retail on behalf of the corporation by a person other than an employee of the corporation (in this section referred to as the “agent”); and

(b) before the agent commenced to sell motor fuel by retail at the site on behalf of the corporation, the agent had been a lessee or licensee of the corporation or of a related corporation in respect of the site and had sold motor fuel by retail at the site,

then, subject to this section, the corporation shall, at least 90 days before it ceases to operate the site, offer, on reasonable terms, to enter into a franchise agreement with the agent in relation to the site.

(8) An offer made in accordance with sub-section (7) remains open for 30 days and, if not accepted within that period, shall be deemed to be rejected.

(9) The corporation shall not enter into a franchise agreement in relation to the site with a person other than the agent on terms more favourable to that person than the terms of the offer made to the agent.

(10) Sub-section (7) does not apply if the corporation—

(a) at least 90 days before it ceases to operate the site, in good faith and in the normal course of business—

(i) enters into an agreement to grant a lease of the site to a person other than a related corporation wholly for purposes other than the retail sale of motor fuel; or

(ii) enters into an agreement to dispose of its whole interest in the site to a person other than a related corporation and does not propose to acquire or re-acquire any interest in the site; or

(b) before it ceases to operate the site, proposes, in good faith and in the normal course of business—

(i) to occupy and use the site wholly for purposes other than the retail sale of motor fuel; or

(ii) to redevelop the site wholly or principally for purposes other than the retail sale of motor fuel, whether the premises are to be used for those purposes by the corporation or another person.

 

(11) Where, on the application of the agent, the Court is satisfied that the corporation has engaged, or is proposing to engage, in conduct that constitutes or would constitute a contravention of this section or conduct that otherwise defeats or prejudices, or is likely to defeat or prejudice, any right or remedy of or available to the agent under this section, the Court may grant an injunction in such terms as the Court determines to be appropriate.

(12) Without limiting the generality of sub-section (11), the power to grant injunctions under that sub-section includes the power to grant injunctions for the purpose of setting aside any instrument or disposition, but the Court shall not grant such an injunction that would adversely affect the interests of a bona fide purchaser or assignee or other bona fide person interested (not being the corporation or a related corporation).

(13) Where in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under sub-section (11).

(14) The Court may rescind or vary, or suspend the operation of, an injunction granted under sub-section (11) or (13).

(15) The power of the Court to grant an injunction restraining a corporation from engaging in conduct may be exercised—

(a) whether or not it appears to the Court that the corporation intends to engage again, or to continue to engage, in conduct of that kind;

(b) whether or not the corporation has previously engaged in conduct of that kind; and

(c) whether or not there is an imminent danger of substantial damage to any person if the corporation engages in conduct of that kind.

(16) The power of the Court to grant an injunction requiring a corporation to do an act or thing may be exercised—

(a) whether or not it appears to the Court that the corporation intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing;

(b) whether or not the corporation has previously refused or failed to do that act or thing; and

(c) whether or not there is an imminent danger of substantial damage to any person if the corporation refuses or fails to do that act or thing.

 

NOTE

1. No. 140, 1980.