Excise Regulations (Amendment)

Administered by Department of the Treasury

Legislation au F1996B03064 Regulations Not in force Legislative Instrument

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EXPLANATORY STATEMENT

EXCISE ACT 1901

EXCISE REGULATIONS (AMENDMENT)

STATUTORY RULES 1989 NO. 61

ISSUED BY THE AUTHORITY OF THE MINISTER OF STATE FOR SCIENCE, CUSTOMS AND SMALL BUSINESS

Section 164 of the Excise Act 1901 (the Act) provides in part that “The Governor-General may make Regulations not inconsistent with this Act prescribing all matters which by this Act are required or permitted to be prescribed or as may be necessary or convenient to be prescribed for giving effect to this Act...”

With the move to a free market for sales of indigenous crude oil on 1 January 1988, and the subsequent changes to the Excise regime applying to crude oil, an examination of all legislative provisions relating to crude oil has been undertaken. As a result of this review, it has been determined that two new refund circumstances are required and, as a corollary to one of the new circumstances, a new time period is required within which applications for that refund must be made.

Regulation 50 of the Excise Regulations (the Regulations) prescribes the circumstances in which a refund of Excise duty may be paid.

These Statutory Rules insert two new refund circumstances in the Excise Regulations.

Details of the Regulations are as follows:

Regulation 1: paragraph (1)(b) of the Statutory Rules amends subregulation 50(1) of the Excise Regulations by inserting two new refund circumstances at paragraphs 50(1)(s) and 50(1)(t).

New circumstance 50(1)(s) is necessary to cover the situation where either a meter and/or accounting error in the measurement of volumes of stabilised crude petroleum oil and liquefied petroleum gas is discovered after Excise duty has been paid.

Such errors can occur from time to time in the Bass Strait project largely because of the size and complexity of that project. A complicating factor is that an error in the measurement of one platform’s production (there are currently 13 production platforms) will, because of the interdependence of all production streams in the overall computerised mass balance/back allocation program for production and sales, vary all production area volumes (some up, some down).


The variation of all production area volumes makes it impossible, when an error is first discovered, to determine whether the overall Excise duty liability will increase or decrease. This can only be determined after the production data has been verified and the mass balance/back allocation computer program has been rerun for the total period the error was applicable. Even though detailed checking and review procedures are in place, a volumetric error in the system may not be detected for some months, or even several years, after the initial Excise duty is paid.

While the producers lodge an application immediately it is discovered that an error has resulted in an overpayment of duty, this may well be in respect of a period exceeding twelve months. The Statutory Rules allow a producer’s Excise duty liability to be adjusted regardless of the period in which the error occurred. This is directly linked to the royalties the Commonwealth and Victorian State Governments collect from the Bass Strait operation. These royalties are based on the value of the crude oil sales next of Excise. As it is the policy of both the Commonwealth and the State of Victoria to adjust royalties at any time where an error is discovered, it is appropriate for Excise to similarly be adjusted.

New circumstance 50(1)(t) is necessary as a result of the introduction of the free market arrangements for crude oil sales on 1 January 1988. As a result of this, the price upon which the Excise duty liability calculation is based is determined by the Minister for Primary Industries and Energy (or his delegate) under the Petroleum Excise (Prices) Act 1987. There is provision made for subsequently amending determinations; briefly, the regime provides that under subsection 7(3) of the Petroleum Excise (Prices) Act 1987, the Minister (or his delegate) determines the final VOLWARE price for a particular month. Subsections 7(9) and 7(10) then contain provisions which allow the Minister (or his delegate) to amend a previous determination of a final VOLWARE price up to three years after the original determination was calculated. This amended determination may therefore result in a refund circumstance in respect of Excise duty paid up to three years from the date of the original calculation of the final VOLWARE price.

The Statutory Rules provide that where such a redetermination occurs, refunds for the entire period covered by the redetermination should also be permitted.

Regulation 2: amends regulation 53 of the Regulations (which prescribes the period within which refund applications must be made) by inserting a new subregulation 53(4) which provides that a refund of Excise duty shall not be allowed under new paragraph 50(1)(t) (see discussion above) unless an application is delivered to a Collector not later than 12 months after the day on which the relevant determination of the final VOLWARE price is amended.

R. 59/89)

Overview

The Excise Regulations (Amendment) Statutory Rules 1989 No. 61, issued under the authority of the Minister for Science, Customs and Small Business, amends the Excise Regulations to address issues arising from the transition to a free market for sales of indigenous crude oil. The amendment was enacted by the Parliament of Australia to ensure that the Excise regime effectively accommodates new refund circumstances necessitated by the complexities of the Bass Strait oil project and the adjustments in the excise duty liability calculation due to changes in the pricing mechanism. This amendment aligns with the policy of adjusting royalties and excise duties upon discovery of errors or changes in the pricing framework. The changes introduced by these Statutory Rules aim to provide a fair and flexible system for refunds of excise duty in cases of measurement errors or revised price determinations, ensuring that the revenue collected aligns with the actual transactions and values involved in crude oil sales.

Scope and Application

The Excise Regulations (Amendment) Statutory Rules 1989 No. 61, issued under the authority of the Minister of State for Science, Customs and Small Business, introduce amendments to the Excise Regulations concerning refund circumstances for Excise duty paid on crude petroleum oil and liquefied petroleum gas. These amendments apply to entities involved in the measurement, production, and sales of these commodities, particularly those operating in the Bass Strait oil and gas project, and address situations where errors in measurement occur or where redeterminations of final VOLWARE prices are made up to three years after the original Excise duty calculation. The new refund circumstances, introduced under Regulation 1, cater to scenarios where volumetric errors are discovered post-payment, as well as adjustments to Excise duty liabilities following redeterminations of VOLWARE prices. Regulation 2 complements this by stipulating a 12-month window for applications of refunds under the new circumstance related to price redeterminations. These regulations extend to the entire Commonwealth, aligning with the national scope of the Excise Act 1901, and do not include specific exclusions or exemptions beyond those already outlined in the Act and the Petroleum Excise (Prices) Act 1987. The application of these rules may be further specified or extended through subordinate instruments, as permitted by Section 164 of the Excise Act 1901.

Key Provisions

The Excise Regulations (Amendment) Statutory Rules 1989 (No. 61) make specific amendments to the Excise Regulations, addressing new refund circumstances and the timelines for applying for such refunds. Regulation 1 introduces two new refund circumstances under subregulation 50(1) of the Excise Regulations. Paragraph 50(1)(s) allows for a refund when there is a meter or accounting error in the measurement of stabilised crude petroleum oil and liquefied petroleum gas, after Excise duty has been paid. This is particularly relevant to the Bass Strait project, where the complexity and size of the operation can lead to measurement errors that might not be detected for months or even years. Paragraph 50(1)(t) pertains to the changes introduced by the free market arrangements for crude oil sales, effective from 1 January 1988, where the Excise duty liability is based on the price determined by the Minister for Primary Industries and Energy under the Petroleum Excise (Prices) Act 1987. This amendment allows for refunds if the Minister amends the final VOLWARE price determination up to three years after the original calculation. These amendments impose specific obligations on the parties involved, primarily producers of crude oil and liquefied petroleum gas. Producers must ensure that any discovered meter or accounting errors leading to overpayment of Excise duty are reported and an application for refund is made within the specified period. This requirement aligns with the broader policy of the Commonwealth and Victorian State Governments to adjust royalties based on accurate crude oil sales values. For refunds related to amendments in the VOLWARE price, producers must submit their refund applications within 12 months of the amended price determination. Regulation 2, which modifies regulation 53 of the Excise Regulations, underscores this obligation by stipulating the timeframe within which refund applications must be delivered. Failure to comply with these obligations and timelines can have significant legal consequences. While the Statutory Rules do not explicitly outline specific penalties for non-compliance, breaches of such legislative requirements can generally lead to enforcement actions under the Excise Act 1901. This may include financial penalties, legal action, or other administrative measures to ensure compliance with the Act's provisions. The potential penalties for non-compliance could include fines or other sanctions as prescribed by the Excise Act or relevant administrative guidelines.

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