Petroleum Excise (Prices) Act 1987
PART I - PRELIMINARY
SECTION 1
1
SHORT TITLE
This Act may be cited as the Petroleum Excise (Prices) Act 1987. SECTION 2 COMMENCEMENT
2
This Act shall come into operation on the day on which it receives the Royal Assent. SECTION 3 INCORPORATION
3
The Excise Act 1901 and the Excise Tariff Act 1921 are incorporated and shall be read as one with this Act. SECTION 4 INTERPRETATION 4(1)
In this Act, unless the contrary intention appears:
(a) if that oil is obtained from an oil producing region that is located, in whole or in part, on the landward side of the outer limits of the territorial sea of Australia - is the holder of a lease or licence (however described) authorising the obtaining of that oil or a part of that oil, being a lease or licence that is issued under the appropriate law of a State or Territory in which, or in the territorial sea adjacent to which, that region, or a part of that region, is located; or
(b) if that oil is obtained from an oil producing region that is located, in whole or in part, beyond the outer limits of the territorial sea of Australia - is a petroleum production licensee within the meaning of the Offshore Petroleum and Greenhouse Gas Storage Act 2006.
(a) a production area within the meaning of section 5B of the Excise Tariff Act 1921, being an area from which stabilised crude petroleum oil is obtained and that is prescribed by the regulations as an oil producing region; or
(b) 2 or more production areas within the meaning of that section from which stabilised crude petroleum oil is obtained, being areas that are together so prescribed.
(a) from which stabilised crude petroleum oil is obtained; and
(b) which is prescribed to be the whole or part of an oil producing region.
(aa) a decision to fix a transaction price under subsection (2); or
(ab) a decision under subsection 6(1B) refusing to declare a production area to be a limited production area; or
(ac) a decision under subsection 6(1E) to revoke a declaration that a production area is a limited production area; or
(a) a determination of the final VOLWARE price for a month and an oil producing region under subsection 7(3); or
(b) a decision to fix a price for a transaction under subsection 7(6); or
(c) a decision under subsection 7(9) to amend a determination of the final VOLWARE price for a month and an oil producing region under subsection 7(3).
(a) where the oil producer of the oil has sold the quantity of oil - the price for which it was sold; or
(b) in any other case - the price fixed under subsection (2).
Effect of regulations
4(1A)View history reference
Regulations prescribing a production area or production areas as an oil producing region may be expressed to have had effect from 1 January 1988 or from any later day, including a day occurring before the making of the regulations, that is specified in the regulations.
4(1B)
Where a production area or production areas are prescribed as an oil producing region with effect from 1 January 1988 or any later day and, after that day, another production area is discovered, the regulations may provide that, with effect from the date of that discovery, the oil producing region is taken to include the production area so discovered.
4(1C)
Subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply to regulations made for the purposes of this Act in relation to condensate.
4(1D)
Subsection (1C) does not apply to regulations that create, modify or otherwise affect a provision that makes a person liable to an offence or civil penalty.
Transaction price where no sale
4(2)
Where an oil producer of a quantity of excisable crude petroleum oil does not sell the oil but enters into a transaction under which another person takes, or is intended to take, possession of the oil (whether or not ownership in the oil passes, or is intended to pass, to another person) the Minister, or a person appointed or engaged under the Public Service Act 1999 authorised by the Minister to exercise the Minister's powers under this subsection, may, by instrument in writing, fix a transaction price in respect of that oil (being a transaction price that he or she considers to be fair and reasonable having regard to the terms of the transaction).
4(3)
Where the Minister or authorised person fixes a price for a transaction under subsection (2), he or she shall notify the oil producer in writing of the fixing of the price, giving reasons for it.
SECTION 4A 4A APPLICATION OF THE CRIMINAL CODE
Chapter 2 (except Part 2.5) of the Criminal Code applies to all offences created by this Act.
PART IA - DETERMINATION OF PRICES FOR CONDENSATE
SECTION 5
PURPOSE OF PART
5(1)
The purpose of this Part is to allow the Minister to establish prices of condensate which are used in imposing duties of excise on condensate.
5(2)
It does so by providing that the Act, in addition to its general operation, operates as if: (a) references to excisable crude petroleum oil were references to excisable condensate; and (b) references to stabilised crude petroleum oil, crude petroleum oil and oil were references to condensate.
SECTION 5A
ADDITIONAL OPERATION OF ACT
5A(1)
In addition to the operation of this Act apart from this Part, this Act applies as if the modifications set out in subsections (2) and (3) were made.
5A(2)
The first modification is that each reference in this Act (other than the definition of excisable crude petroleum oil in subsection 4(1)) to excisable crude petroleum oil is taken to be a reference to excisable condensate.
5A(3)
The second modification is that each reference to: (a) stabilised crude petroleum oil; or (b) crude petroleum oil; or (c) oil;
5A(4)
Nothing in this section affects the operation of references to the following in the regulations, or in the Excise Act 1901 or the Excise Tariff Act 1921: (a) excisable crude petroleum oil; (b) stabilised crude petroleum oil; (c) crude petroleum oil; (d) oil.
PART II - DETERMINATION OF PRICES
SECTION 6
OIL PRODUCERS TO GIVE CERTAIN INFORMATION
6(1)
An oil producer of excisable crude petroleum oil entered for home consumption during a particular month shall, in respect of each transaction entered into by the producer concerning that oil, give to the Minister such information as is prescribed.
6(1A)
The information prescribed for the purposes of subsection (1) may differ according to whether or not the transaction entered into by the oil producer relates to excisable crude petroleum oil produced from a production area while that area is declared to be a limited production area.
6(1B)
If, in respect of excisable crude petroleum oil produced by an oil producer from a particular production area: (a) the volume of that oil entered for home consumption before the end of each of 3 consecutive months (whether in the same financial year or not) is less than 80% of the free volume of excisable crude petroleum oil in respect of that month, worked out in accordance with subsection (1G); and (b) the Minister is satisfied that the volume of that oil likely to be entered for home consumption before the end of any future month is unlikely, having regard to production statistics and any other relevant factor known to the Minister, to exceed 80% of the free volume of that oil in respect of that future month, worked out in accordance with subsection (1G);
6(1C)
If, in respect of excisable crude petroleum oil produced by an oil producer from a particular production area: (a) paragraph (1B)(a) applies in respect of any period of 3 consecutive months; but (b) the Minister does not declare that production area to be a limited production area within 15 days after the end of that period;
6(1D)
If, because the Minister does not declare a production area to be a limited production area within 15 days after the end of a period of 3 consecutive months, the Minister is taken, under subsection (1C), to have refused to make that declaration: (a) that subsection does not prevent the Minister making such a declaration, in accordance with subsection (1B), at the end of any period of 3 consecutive months to which paragraph (1B)(a) applies (a subsequent period ) that ends after that first-mentioned period; but (b) if the Minister does not, within 15 days after the end of a subsequent period, make such a declaration, the Minister is again taken to have refused, under subsection (1B), to make such a declaration.
6(1E)
If: (a) a particular production area has been declared to be a limited production area; and (b) at any time after the declaration, the volume of excisable crude petroleum oil produced in that area and entered for home consumption exceeds the free volume of that oil in respect of that month, worked out in accordance with subsection (1G);
6(1F)
The information required to be given to the Minister under subsection (1E), or particular parts of that information, must be given to the Minister: (a) unless the Minister otherwise indicates in the notice revoking the declaration - in the form specified for the purpose of subsection (2); and (b) within a time or times specified by the Minister in that notice.
6(1G)
For the purposes of this section, the free volume of excisable crude petroleum oil that is entered for home consumption before the end of a month is the maximum volume of such oil that, if entered for home consumption before the end of that month would, under section 6B, 6C, 6CA or 6D of the Excise Tariff Act 1921, be a volume of oil to which no notional duty was applicable.
6(2)
The Minister shall, by legislative instrument, specify: (a) the form in which the information is to be given; and (b) the times within which the information is, or parts of the information are, to be given;
6(3)
(Repealed by No 137 of 2000)
(a) in the case of a natural person - imprisonment for 12 months or 20 penalty units, or both; or
(b) in the case of a body corporate - 100 penalty units.
SECTION 7
MINISTER ETC. TO DETERMINE VOLWARE PRICES
7(1)
A reference in this section to the volume weighted average of realised prices for a month and an oil producing region is a reference to the amount (expressed as an amount of Australian dollars, calculated to the nearest cent, per kilolitre) obtained by dividing the sum of the transaction prices in respect of quantities of excisable crude petroleum oil obtained from that region that are entered for home consumption during the month by the total volume of that oil.
7(2)
The Minister, or a person authorised by the Minister to exercise the Minister's powers under this section, shall, not later than one month after the end of each month occurring after the VOLWARE commencement date in relation to an oil producing region, determine a price in relation to that month and that region, to be known as the interim VOLWARE price for that month and that region, being an estimate by the Minister or authorised person, on the basis of the information available to him or her at the time (being information obtained pursuant to section 6 or otherwise), of the amount that will finally be determined to be the volume weighted average of realised prices for that month and that region.
7(2A)
Nothing in this section implies that the Minister, or a person authorised by the Minister to exercise the Minister's powers under this section, cannot determine an interim VOLWARE price for a month and an oil producing region at any time during the month concerned, whether or not there is available at that time any information concerning the prices for which excisable crude petroleum oil obtained from that region and entered for home consumption during that month has been sold, or is likely to be sold.
7(3)
The Minister, or a person authorised by the Minister to exercise the Minister's powers under this section, shall, not later than 6 months after the end of each month occurring after the VOLWARE commencement date in relation to an oil producing region, determine a price in relation to that month and that region, to be known as the final VOLWARE price for that month and that region, being the final determination by the Minister or authorised person of the volume weighted average of realised prices for that month and that region.
7(3A)
In spite of subsections (2) and (3), neither the Minister nor a person authorised by the Minister to exercise the Minister's powers under this section is required to determine an interim VOLWARE price, or a final VOLWARE price, in respect of an oil producing region and a month if, at all times during that month: (a) if the region consists of a single production area - there is in force a declaration under subsection 6(1B) that that area is a limited production area; or (b) if the region consists of 2 or more production areas - there are in force declarations under subsection 6(1B) that each of those areas is a limited production area.
7(3B)
Nothing in subsection (3A) affects the obligation of the Minister or of a person authorised by the Minister to exercise the Minister's powers under this section to determine an interim VOLWARE price, or a final VOLWARE price, in respect of an oil producing region and a month if a declaration under subsection 6(1B) relating to a production area in that region that was in force during that month is subsequently revoked.
7(4)
A determination of the final VOLWARE price for a month and an oil producing region shall not be made unless: (a) the Minister or authorised person is satisfied that accurate and complete information concerning all of the transactions relevant to determining the price has become available to the Minister or authorised person; or (b) 5 months and 20 days have passed since the end of that month and information that the Minister or authorised person is satisfied is accurate and complete concerning all of those transactions has not yet become available to the Minister or authorised person.
7(5)
Subject to subsection (6), the regulations may provide for: (a) the manner in which transaction prices for quantities of excisable crude petroleum oil are to be calculated for the purposes of determining the volume weighted average of realised prices for a month and an oil producing region; and (b) the manner in which the total volume of excisable crude petroleum oil is to be calculated for the purposes of such a determination.
7(6)
In determining the volume weighted average of realised prices for a month and an oil producing region, the Minister or authorised person may fix, for the purposes of the determination, the transaction price in respect of a quantity of excisable crude petroleum oil obtained from that region, being a price that he or she considers to be fair and reasonable, in substitution for a price set out in information given under section 6 if he or she considers that: (a) the parties to any transaction concerning the oil were not dealing at arm's length in relation to that transaction; and (b) the price set out is less than the amount that could reasonably be expected to be the price if the parties had been dealing at arm's length.
7(7)
Where the Minister or authorised person fixes a price for a transaction under subsection (6), he or she shall notify the oil producer in writing of the fixing of the price, giving the reasons for it.
7(8)
The fact that a transaction price for a particular transaction has not been fixed, under subsection (6), for the purpose of determining the interim VOLWARE price for a month and an oil producing region does not preclude the fixing of a transaction price for that transaction, under subsection (6), for the purposes of determining the final VOLWARE price for that month and that region.
7(9)
Subject to subsection (10), the Minister, or a person authorised by the Minister to exercise the Minister's powers under this section, may, at any time after a final VOLWARE price is determined under subsection (3), amend the determination if he or she is satisfied that the determination is incorrect because of: (a) the making of an error in calculation or a mistake of fact; or (b) the giving of information that was inaccurate or incomplete to the Minister or authorised person.
7(10)
The Minister or authorised person shall not, under subsection (9), amend a determination after the expiration of 3 years from the day on which the determination was made unless he or she is satisfied that the determination is incorrect because information given to the Minister or authorised person is inaccurate or incomplete due to the fraud or evasion of an oil producer.
7(11)
For the purposes of this Act (other than subsection (9) of this section) and the Acts referred to in section 3, where a determination has been amended under subsection (9), it has effect, as so amended, as a determination under subsection (3).
SECTION 8 NOTIFICATION OF PRICES 8(1)
The person making a determination under subsection 5(1) or 7(2), (3) or (9) shall cause written notices setting out the terms of the determination to be given to: (a) the CEO; and (b) each oil producer.
8(2)
A failure to comply with subsection (1) does not affect the validity of the determination.
PART III - MISCELLANEOUS
SECTION 9
INSPECTION OF DOCUMENTS
9(1)
For the purpose of verifying information given to the Minister by an oil producer under section 6, a person authorised in writing by the Minister to exercise powers under this section: (a) may, at all reasonable times, enter and remain on any land or premises on which documents that may be relevant to that information are situated; (b) is entitled to full and free access at all reasonable times to all such documents; and (c) may inspect, examine, make copies of, or take extracts from, any such documents.
9(2)
A person is not entitled to enter or remain on any land or premises under this section if, on being requested by the occupier of the land or premises for proof of authority, the person does not produce an authority in writing signed by the Minister stating that the person is authorised to exercise powers under this section.
9(3)
The occupier of land or premises entered or proposed to be entered by a person under subsection (1) shall provide the person with all reasonable facilities and assistance for the effective exercise of powers under this section.
SECTION 10 OBTAINING OF INFORMATION AND EVIDENCE 10(1)
The Minister, or a person authorised in writing by the Minister to exercise powers under this section, may, for the purposes of this Act, by notice in writing, require any person: (a) to furnish the Minister or authorised person with such information as the Minister or authorised person requires; (b) to attend before the Minister or authorised person, or before a person authorised by the Minister or authorised person for the purpose, at a time and place specified in the notice, and then and there answer questions; and (c) to produce to the Minister or authorised person any documents in the custody or under the control of the person.
10(2)
The Minister or authorised person may require the information or answers to questions to be verified or given, as the case may be, on oath or affirmation, and either orally or in writing, and for that purpose the Minister or authorised person, or a person authorised by the Minister or authorised person for the purpose, may administer an oath or affirmation.
10(3)
The oath to be taken or affirmation to be made by a person for the purposes of this section is an oath or affirmation that the information or answers that the person will give will be true.
10(4)
A person is not excused from furnishing information or producing a document, when required to do so under this section, on the grounds that furnishing the information or producing the document might tend to incriminate the person or make the person liable to a penalty.
10(5)
A person is not excused from answering a question, when required to do so under this section, on the grounds that the answer to the question might tend to incriminate the person or make the person liable to a penalty.
10(6)
A statement or disclosure made in information furnished, an answer given, or a document produced by a person, in accordance with a requirement made of the person under this section, and any information, document or thing obtained as a direct or indirect consequence of that statement or disclosure, is not admissible against a person in any criminal proceedings except a proceeding for an offence against section 137.1 of the Criminal Code that relates to this section.
10(7)
A person shall not fail to comply with a requirement made of the person under this section.(a) in the case of a natural person - imprisonment for 6 months or 10 penalty units, or both; or
(b) in the case of a body corporate - 50 penalty units.
10(8)
An offence against subsection (7) is an offence of strict liability.
SECTION 11
CONDUCT BY DIRECTORS, EMPLOYEES OR AGENTS
11(1)
Where it is necessary, for the purposes of this Act, to establish the state of mind of a body corporate in respect of conduct engaged in, or deemed by subsection (2) to have been engaged in, by the body corporate, it is sufficient to show that a director, employee or agent of the body corporate, being a director, employee or agent by whom the conduct was engaged in within the scope of his or her actual or apparent authority, had that state of mind.
11(2)
Any conduct engaged in on behalf of a body corporate: (a) by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; or (b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent;
11(3)
Where it is necessary, for the purposes of this Act, to establish the state of mind of a person in relation to conduct deemed by subsection (4) to have been engaged in by the person, it is sufficient to show that an employee or agent of the person, being an employee or agent by whom the conduct was engaged in within the scope of his or her actual or apparent authority, had that state of mind.
11(4)
Conduct engaged in on behalf of a person other than a body corporate: (a) by an employee or agent of the person within the scope of his or her actual or apparent authority; or (b) by any other person at the direction or with the consent or agreement (whether express or implied) of an employee or agent of the first-mentioned person, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the employee or agent;
11(5)
A reference in this section to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person's reasons for the person's intention, opinion, belief or purpose.
11(6)
A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory.
SECTION 12 REVIEW OF CERTAIN DECISIONS 12(1)
An oil producer who is dissatisfied with a reviewable decision may request the decision maker to reconsider the decision.
12(1A)
The request can only be made by notice given within: (a) unless paragraph (b) applies - the period of 28 days after the day on which the decision first comes to the notice of the person; or (b) if the reviewable decision is a determination under subsection 7(3) or a decision under subsection 7(9), and the person who made the decision gave notices of the determination in accordance with subsection 8(1) - the period of 28 days after the day on which the last of those notices was given; or (c) such further period as the person who made the decision allows.
12(2)
There shall be set out in the request reasons for making the request.
12(3)
Upon receipt of the request, the decision maker shall reconsider the decision and may, subject to subsections (5) and (6), confirm or revoke the decision or vary the decision in such manner as he or she thinks fit.
12(4)
Where the decision maker does not confirm, revoke or vary a decision before the expiration of the period of 28 days after the day on which he or she received the request, the decision shall, upon the expiration of that period, be deemed to have been confirmed under subsection (3).
12(5)
Where the decision maker confirms, revokes or varies a decision before the expiration of the period referred to in subsection (4), he or she shall, by notice served on the person who made the request, inform the person of the result of the reconsideration of the decision and the reasons for confirming, varying or revoking the decision, as the case may be.
12(6)
Subject to the Administrative Appeals Tribunal Act 1975, applications may be made to the Administrative Appeals Tribunal for review of decisions of the decision maker that have been confirmed or varied under subsection (3).
12(7)
Where a decision is deemed, because of the operation of subsection (4), to be confirmed, section 29 of the Administrative Appeals Tribunal Act 1975 applies as if the prescribed time for making application for review of the decision were the period commencing on the day on which the decision is deemed to be confirmed and ending on the twenty-eighth day after that day.
SECTION 13 STATEMENTS TO ACCOMPANY NOTIFICATION OF REVIEWABLE DECISIONS 13(1)
Where written notice of a reviewable decision is given to an oil producer, that notice shall include a statement to the effect that: (a) the oil producer may, if dissatisfied with the decision, seek a reconsideration of the decision under subsection 12(1); and (b) a person whose interests are affected by the decision may, subject to the Administrative Appeals Tribunal Act 1975, if dissatisfied with a decision made upon that reconsideration confirming or varying the first-mentioned decision, make application to the Administrative Appeals Tribunal for review of the decision so confirmed or varied.
13(2)
Where written notice of the confirmation or variation of a reviewable decision under subsection 12(3) is given to an oil producer, that notice shall include a statement to the effect that a person whose interests are affected by the decision may, subject to the Administrative Appeals Tribunal Act 1975, if dissatisfied with the decision so confirmed or varied, make application to the Administrative Appeals Tribunal for review of the decision.
13(3)
Any failure to comply with the requirements of subsection (1) or (2) in relation to a reviewable decision or a decision under subsection 12(3) does not affect the validity of that decision.
SECTION 14 14 REGULATIONS
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.
This Act may be cited as the Petroleum Excise (Prices) Act 1987. SECTION 2 COMMENCEMENT
2
This Act shall come into operation on the day on which it receives the Royal Assent. SECTION 3 INCORPORATION
3
The Excise Act 1901 and the Excise Tariff Act 1921 are incorporated and shall be read as one with this Act. SECTION 4 INTERPRETATION 4(1)
In this Act, unless the contrary intention appears:
excisable condensate
means condensate in respect of which subitem 21.3 of the Schedule to the Excise Tariff Act 1921 applies, or will, upon the entry of the condensate for home consumption, apply.
View history note
Hide history note
excisable crude petroleum oil
means stabilised crude petroleum oil in respect of which subitem 20.5, 20.6 or 20.7 of the Schedule to the Excise Tariff Act 1921 applies, or will, upon the entry of the oil for home consumption, apply.
final VOLWARE price
, in relation to a month and an oil producing region, means the price determined under subsection 7(3) for that month and that region.
interim VOLWARE price
, in relation to a month and an oil producing region, means the price determined under subsection 7(2) for that month and that region.
limited production area
means a production area that is declared to be a limited production area under subsection 6(1B).
month
means one of the 12 months of a calendar year.
oil producer
means a person who carries on operations for the recovery of stabilised crude petroleum oil and:
(a) if that oil is obtained from an oil producing region that is located, in whole or in part, on the landward side of the outer limits of the territorial sea of Australia - is the holder of a lease or licence (however described) authorising the obtaining of that oil or a part of that oil, being a lease or licence that is issued under the appropriate law of a State or Territory in which, or in the territorial sea adjacent to which, that region, or a part of that region, is located; or
(b) if that oil is obtained from an oil producing region that is located, in whole or in part, beyond the outer limits of the territorial sea of Australia - is a petroleum production licensee within the meaning of the Offshore Petroleum and Greenhouse Gas Storage Act 2006.
(a) a production area within the meaning of section 5B of the Excise Tariff Act 1921, being an area from which stabilised crude petroleum oil is obtained and that is prescribed by the regulations as an oil producing region; or
(b) 2 or more production areas within the meaning of that section from which stabilised crude petroleum oil is obtained, being areas that are together so prescribed.
production area
means a production area within the meaning of section 5B of the Excise Tariff Act 1921:
(a) from which stabilised crude petroleum oil is obtained; and
(b) which is prescribed to be the whole or part of an oil producing region.
reference price
(Repealed by No 79 of 1997)
(aa) a decision to fix a transaction price under subsection (2); or
(ab) a decision under subsection 6(1B) refusing to declare a production area to be a limited production area; or
(ac) a decision under subsection 6(1E) to revoke a declaration that a production area is a limited production area; or
(a) a determination of the final VOLWARE price for a month and an oil producing region under subsection 7(3); or
(b) a decision to fix a price for a transaction under subsection 7(6); or
(c) a decision under subsection 7(9) to amend a determination of the final VOLWARE price for a month and an oil producing region under subsection 7(3).
transaction price
, in relation to a quantity of excisable crude petroleum oil, means, subject to subsection 7(6):
(a) where the oil producer of the oil has sold the quantity of oil - the price for which it was sold; or
(b) in any other case - the price fixed under subsection (2).
VOLWARE commencement date
in relation to excisable crude petroleum oil obtained from an oil producing region means the date prescribed by the regulations as the date after which final VOLWARE prices and interim VOLWARE prices for each month are calculated in relation to that oil, not being a date earlier than 31 December 1987.
VOLWARE price
means an interim VOLWARE price or a final VOLWARE price.
Effect of regulations
4(1A)
Regulations prescribing a production area or production areas as an oil producing region may be expressed to have had effect from 1 January 1988 or from any later day, including a day occurring before the making of the regulations, that is specified in the regulations.
4(1B)
Where a production area or production areas are prescribed as an oil producing region with effect from 1 January 1988 or any later day and, after that day, another production area is discovered, the regulations may provide that, with effect from the date of that discovery, the oil producing region is taken to include the production area so discovered.
4(1C)
Subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply to regulations made for the purposes of this Act in relation to condensate.
4(1D)
Subsection (1C) does not apply to regulations that create, modify or otherwise affect a provision that makes a person liable to an offence or civil penalty.
Transaction price where no sale
4(2)
Where an oil producer of a quantity of excisable crude petroleum oil does not sell the oil but enters into a transaction under which another person takes, or is intended to take, possession of the oil (whether or not ownership in the oil passes, or is intended to pass, to another person) the Minister, or a person appointed or engaged under the Public Service Act 1999 authorised by the Minister to exercise the Minister's powers under this subsection, may, by instrument in writing, fix a transaction price in respect of that oil (being a transaction price that he or she considers to be fair and reasonable having regard to the terms of the transaction).
4(3)
Where the Minister or authorised person fixes a price for a transaction under subsection (2), he or she shall notify the oil producer in writing of the fixing of the price, giving reasons for it.
SECTION 4A 4A APPLICATION OF THE CRIMINAL CODE
Chapter 2 (except Part 2.5) of the Criminal Code applies to all offences created by this Act.
Note:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
The purpose of this Part is to allow the Minister to establish prices of condensate which are used in imposing duties of excise on condensate.
5(2)
It does so by providing that the Act, in addition to its general operation, operates as if: (a) references to excisable crude petroleum oil were references to excisable condensate; and (b) references to stabilised crude petroleum oil, crude petroleum oil and oil were references to condensate.
In addition to the operation of this Act apart from this Part, this Act applies as if the modifications set out in subsections (2) and (3) were made.
5A(2)
The first modification is that each reference in this Act (other than the definition of excisable crude petroleum oil in subsection 4(1)) to excisable crude petroleum oil is taken to be a reference to excisable condensate.
5A(3)
The second modification is that each reference to: (a) stabilised crude petroleum oil; or (b) crude petroleum oil; or (c) oil;
in this Act (other than the title of this Act) is taken to be a reference to condensate.
5A(4)
Nothing in this section affects the operation of references to the following in the regulations, or in the Excise Act 1901 or the Excise Tariff Act 1921: (a) excisable crude petroleum oil; (b) stabilised crude petroleum oil; (c) crude petroleum oil; (d) oil.
An oil producer of excisable crude petroleum oil entered for home consumption during a particular month shall, in respect of each transaction entered into by the producer concerning that oil, give to the Minister such information as is prescribed.
6(1A)
The information prescribed for the purposes of subsection (1) may differ according to whether or not the transaction entered into by the oil producer relates to excisable crude petroleum oil produced from a production area while that area is declared to be a limited production area.
6(1B)
If, in respect of excisable crude petroleum oil produced by an oil producer from a particular production area: (a) the volume of that oil entered for home consumption before the end of each of 3 consecutive months (whether in the same financial year or not) is less than 80% of the free volume of excisable crude petroleum oil in respect of that month, worked out in accordance with subsection (1G); and (b) the Minister is satisfied that the volume of that oil likely to be entered for home consumption before the end of any future month is unlikely, having regard to production statistics and any other relevant factor known to the Minister, to exceed 80% of the free volume of that oil in respect of that future month, worked out in accordance with subsection (1G);
the Minister may declare in writing that production area to be a limited production area and, if the Minister does so, he or she must notify the oil producer concerned of that declaration.
6(1C)
If, in respect of excisable crude petroleum oil produced by an oil producer from a particular production area: (a) paragraph (1B)(a) applies in respect of any period of 3 consecutive months; but (b) the Minister does not declare that production area to be a limited production area within 15 days after the end of that period;
the Minister is taken to have refused, under subsection (1B), to make that declaration.
6(1D)
If, because the Minister does not declare a production area to be a limited production area within 15 days after the end of a period of 3 consecutive months, the Minister is taken, under subsection (1C), to have refused to make that declaration: (a) that subsection does not prevent the Minister making such a declaration, in accordance with subsection (1B), at the end of any period of 3 consecutive months to which paragraph (1B)(a) applies (a subsequent period ) that ends after that first-mentioned period; but (b) if the Minister does not, within 15 days after the end of a subsequent period, make such a declaration, the Minister is again taken to have refused, under subsection (1B), to make such a declaration.
6(1E)
If: (a) a particular production area has been declared to be a limited production area; and (b) at any time after the declaration, the volume of excisable crude petroleum oil produced in that area and entered for home consumption exceeds the free volume of that oil in respect of that month, worked out in accordance with subsection (1G);
then:
(c) the Minister must, by written notice given to the oil producer concerned, revoke the declaration; and (d) the producer must give to the Minister, in respect of all excisable crude petroleum oil produced in that area and entered for home consumption after the making of the declaration, the information that, but for the making of the declaration, would have been required in respect of each transaction concerning that oil.6(1F)
The information required to be given to the Minister under subsection (1E), or particular parts of that information, must be given to the Minister: (a) unless the Minister otherwise indicates in the notice revoking the declaration - in the form specified for the purpose of subsection (2); and (b) within a time or times specified by the Minister in that notice.
6(1G)
For the purposes of this section, the free volume of excisable crude petroleum oil that is entered for home consumption before the end of a month is the maximum volume of such oil that, if entered for home consumption before the end of that month would, under section 6B, 6C, 6CA or 6D of the Excise Tariff Act 1921, be a volume of oil to which no notional duty was applicable.
Note 1:
Subsection (4) of section 6B, 6C or 6D of the Excise Tariff Act 1921 specifies, among other things, the minimum volume of oil to which notional duty becomes applicable. The effect of that subsection is modified by subsection (9) of each of those sections.
Note 2:
Subsection 6CA(5) of the Excise Tariff Act 1921 specifies, among other things, the minimum volume of condensate to which notional duty becomes applicable. The effect of that subsection is modified by subsection 6CA(12) of that Act.
6(2)
The Minister shall, by legislative instrument, specify: (a) the form in which the information is to be given; and (b) the times within which the information is, or parts of the information are, to be given;
and the oil producer shall give the information accordingly.
6(3)
(Repealed by No 137 of 2000)
Penalty:
A reference in this section to the volume weighted average of realised prices for a month and an oil producing region is a reference to the amount (expressed as an amount of Australian dollars, calculated to the nearest cent, per kilolitre) obtained by dividing the sum of the transaction prices in respect of quantities of excisable crude petroleum oil obtained from that region that are entered for home consumption during the month by the total volume of that oil.
7(2)
The Minister, or a person authorised by the Minister to exercise the Minister's powers under this section, shall, not later than one month after the end of each month occurring after the VOLWARE commencement date in relation to an oil producing region, determine a price in relation to that month and that region, to be known as the interim VOLWARE price for that month and that region, being an estimate by the Minister or authorised person, on the basis of the information available to him or her at the time (being information obtained pursuant to section 6 or otherwise), of the amount that will finally be determined to be the volume weighted average of realised prices for that month and that region.
7(2A)
Nothing in this section implies that the Minister, or a person authorised by the Minister to exercise the Minister's powers under this section, cannot determine an interim VOLWARE price for a month and an oil producing region at any time during the month concerned, whether or not there is available at that time any information concerning the prices for which excisable crude petroleum oil obtained from that region and entered for home consumption during that month has been sold, or is likely to be sold.
7(3)
The Minister, or a person authorised by the Minister to exercise the Minister's powers under this section, shall, not later than 6 months after the end of each month occurring after the VOLWARE commencement date in relation to an oil producing region, determine a price in relation to that month and that region, to be known as the final VOLWARE price for that month and that region, being the final determination by the Minister or authorised person of the volume weighted average of realised prices for that month and that region.
7(3A)
In spite of subsections (2) and (3), neither the Minister nor a person authorised by the Minister to exercise the Minister's powers under this section is required to determine an interim VOLWARE price, or a final VOLWARE price, in respect of an oil producing region and a month if, at all times during that month: (a) if the region consists of a single production area - there is in force a declaration under subsection 6(1B) that that area is a limited production area; or (b) if the region consists of 2 or more production areas - there are in force declarations under subsection 6(1B) that each of those areas is a limited production area.
7(3B)
Nothing in subsection (3A) affects the obligation of the Minister or of a person authorised by the Minister to exercise the Minister's powers under this section to determine an interim VOLWARE price, or a final VOLWARE price, in respect of an oil producing region and a month if a declaration under subsection 6(1B) relating to a production area in that region that was in force during that month is subsequently revoked.
7(4)
A determination of the final VOLWARE price for a month and an oil producing region shall not be made unless: (a) the Minister or authorised person is satisfied that accurate and complete information concerning all of the transactions relevant to determining the price has become available to the Minister or authorised person; or (b) 5 months and 20 days have passed since the end of that month and information that the Minister or authorised person is satisfied is accurate and complete concerning all of those transactions has not yet become available to the Minister or authorised person.
7(5)
Subject to subsection (6), the regulations may provide for: (a) the manner in which transaction prices for quantities of excisable crude petroleum oil are to be calculated for the purposes of determining the volume weighted average of realised prices for a month and an oil producing region; and (b) the manner in which the total volume of excisable crude petroleum oil is to be calculated for the purposes of such a determination.
7(6)
In determining the volume weighted average of realised prices for a month and an oil producing region, the Minister or authorised person may fix, for the purposes of the determination, the transaction price in respect of a quantity of excisable crude petroleum oil obtained from that region, being a price that he or she considers to be fair and reasonable, in substitution for a price set out in information given under section 6 if he or she considers that: (a) the parties to any transaction concerning the oil were not dealing at arm's length in relation to that transaction; and (b) the price set out is less than the amount that could reasonably be expected to be the price if the parties had been dealing at arm's length.
7(7)
Where the Minister or authorised person fixes a price for a transaction under subsection (6), he or she shall notify the oil producer in writing of the fixing of the price, giving the reasons for it.
7(8)
The fact that a transaction price for a particular transaction has not been fixed, under subsection (6), for the purpose of determining the interim VOLWARE price for a month and an oil producing region does not preclude the fixing of a transaction price for that transaction, under subsection (6), for the purposes of determining the final VOLWARE price for that month and that region.
7(9)
Subject to subsection (10), the Minister, or a person authorised by the Minister to exercise the Minister's powers under this section, may, at any time after a final VOLWARE price is determined under subsection (3), amend the determination if he or she is satisfied that the determination is incorrect because of: (a) the making of an error in calculation or a mistake of fact; or (b) the giving of information that was inaccurate or incomplete to the Minister or authorised person.
7(10)
The Minister or authorised person shall not, under subsection (9), amend a determination after the expiration of 3 years from the day on which the determination was made unless he or she is satisfied that the determination is incorrect because information given to the Minister or authorised person is inaccurate or incomplete due to the fraud or evasion of an oil producer.
7(11)
For the purposes of this Act (other than subsection (9) of this section) and the Acts referred to in section 3, where a determination has been amended under subsection (9), it has effect, as so amended, as a determination under subsection (3).
SECTION 8 NOTIFICATION OF PRICES 8(1)
The person making a determination under subsection 5(1) or 7(2), (3) or (9) shall cause written notices setting out the terms of the determination to be given to: (a) the CEO; and (b) each oil producer.
8(2)
A failure to comply with subsection (1) does not affect the validity of the determination.
For the purpose of verifying information given to the Minister by an oil producer under section 6, a person authorised in writing by the Minister to exercise powers under this section: (a) may, at all reasonable times, enter and remain on any land or premises on which documents that may be relevant to that information are situated; (b) is entitled to full and free access at all reasonable times to all such documents; and (c) may inspect, examine, make copies of, or take extracts from, any such documents.
9(2)
A person is not entitled to enter or remain on any land or premises under this section if, on being requested by the occupier of the land or premises for proof of authority, the person does not produce an authority in writing signed by the Minister stating that the person is authorised to exercise powers under this section.
9(3)
The occupier of land or premises entered or proposed to be entered by a person under subsection (1) shall provide the person with all reasonable facilities and assistance for the effective exercise of powers under this section.
Penalty for a contravention of this subsection: 10 penalty units.
SECTION 10 OBTAINING OF INFORMATION AND EVIDENCE 10(1)
The Minister, or a person authorised in writing by the Minister to exercise powers under this section, may, for the purposes of this Act, by notice in writing, require any person: (a) to furnish the Minister or authorised person with such information as the Minister or authorised person requires; (b) to attend before the Minister or authorised person, or before a person authorised by the Minister or authorised person for the purpose, at a time and place specified in the notice, and then and there answer questions; and (c) to produce to the Minister or authorised person any documents in the custody or under the control of the person.
10(2)
The Minister or authorised person may require the information or answers to questions to be verified or given, as the case may be, on oath or affirmation, and either orally or in writing, and for that purpose the Minister or authorised person, or a person authorised by the Minister or authorised person for the purpose, may administer an oath or affirmation.
10(3)
The oath to be taken or affirmation to be made by a person for the purposes of this section is an oath or affirmation that the information or answers that the person will give will be true.
10(4)
A person is not excused from furnishing information or producing a document, when required to do so under this section, on the grounds that furnishing the information or producing the document might tend to incriminate the person or make the person liable to a penalty.
10(5)
A person is not excused from answering a question, when required to do so under this section, on the grounds that the answer to the question might tend to incriminate the person or make the person liable to a penalty.
10(6)
A statement or disclosure made in information furnished, an answer given, or a document produced by a person, in accordance with a requirement made of the person under this section, and any information, document or thing obtained as a direct or indirect consequence of that statement or disclosure, is not admissible against a person in any criminal proceedings except a proceeding for an offence against section 137.1 of the Criminal Code that relates to this section.
10(7)
A person shall not fail to comply with a requirement made of the person under this section.
Penalty:
10(8)
An offence against subsection (7) is an offence of strict liability.
Note:
For strict liability , see section 6.1 of the Criminal Code.
Where it is necessary, for the purposes of this Act, to establish the state of mind of a body corporate in respect of conduct engaged in, or deemed by subsection (2) to have been engaged in, by the body corporate, it is sufficient to show that a director, employee or agent of the body corporate, being a director, employee or agent by whom the conduct was engaged in within the scope of his or her actual or apparent authority, had that state of mind.
11(2)
Any conduct engaged in on behalf of a body corporate: (a) by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; or (b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent;
shall be deemed, for the purposes of this Act, to have been engaged in also by the body corporate.
11(3)
Where it is necessary, for the purposes of this Act, to establish the state of mind of a person in relation to conduct deemed by subsection (4) to have been engaged in by the person, it is sufficient to show that an employee or agent of the person, being an employee or agent by whom the conduct was engaged in within the scope of his or her actual or apparent authority, had that state of mind.
11(4)
Conduct engaged in on behalf of a person other than a body corporate: (a) by an employee or agent of the person within the scope of his or her actual or apparent authority; or (b) by any other person at the direction or with the consent or agreement (whether express or implied) of an employee or agent of the first-mentioned person, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the employee or agent;
shall be deemed, for the purposes of this Act, to have been engaged in also by the first-mentioned person.
11(5)
A reference in this section to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person's reasons for the person's intention, opinion, belief or purpose.
11(6)
A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory.
SECTION 12 REVIEW OF CERTAIN DECISIONS 12(1)
An oil producer who is dissatisfied with a reviewable decision may request the decision maker to reconsider the decision.
12(1A)
The request can only be made by notice given within: (a) unless paragraph (b) applies - the period of 28 days after the day on which the decision first comes to the notice of the person; or (b) if the reviewable decision is a determination under subsection 7(3) or a decision under subsection 7(9), and the person who made the decision gave notices of the determination in accordance with subsection 8(1) - the period of 28 days after the day on which the last of those notices was given; or (c) such further period as the person who made the decision allows.
12(2)
There shall be set out in the request reasons for making the request.
12(3)
Upon receipt of the request, the decision maker shall reconsider the decision and may, subject to subsections (5) and (6), confirm or revoke the decision or vary the decision in such manner as he or she thinks fit.
12(4)
Where the decision maker does not confirm, revoke or vary a decision before the expiration of the period of 28 days after the day on which he or she received the request, the decision shall, upon the expiration of that period, be deemed to have been confirmed under subsection (3).
12(5)
Where the decision maker confirms, revokes or varies a decision before the expiration of the period referred to in subsection (4), he or she shall, by notice served on the person who made the request, inform the person of the result of the reconsideration of the decision and the reasons for confirming, varying or revoking the decision, as the case may be.
12(6)
Subject to the Administrative Appeals Tribunal Act 1975, applications may be made to the Administrative Appeals Tribunal for review of decisions of the decision maker that have been confirmed or varied under subsection (3).
[ CCH Note: S 12(6) will be amended by No 38 of 2024, s 3 and Sch 1 item 67, by substituting "Administrative Review Tribunal Act 2024" for "Administrative Appeals Tribunal Act 1975" and "Administrative Review Tribunal for" for "Administrative Appeals Tribunal for", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
12(7)
Where a decision is deemed, because of the operation of subsection (4), to be confirmed, section 29 of the Administrative Appeals Tribunal Act 1975 applies as if the prescribed time for making application for review of the decision were the period commencing on the day on which the decision is deemed to be confirmed and ending on the twenty-eighth day after that day.
[ CCH Note: S 12(7) will be substituted by No 38 of 2024, s 3 and Sch 1 item 42, effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence. S 12(7) will read:
]
12(7)
If, because of the operation of subsection (4), a decision is deemed to be confirmed, the period within which an application for review of the decision must be made is 28 days beginning on the day on which the decision is deemed to be confirmed.
[ CCH Note: S 12(8) will be inserted by No 38 of 2024, s 3 and Sch 1 item 42, effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence. S 12(8) will read:
]
12(8)
Subsection (7) applies despite section 18 (when to apply - general rule) of the Administrative Review Tribunal Act 2024.
SECTION 13 STATEMENTS TO ACCOMPANY NOTIFICATION OF REVIEWABLE DECISIONS 13(1)
Where written notice of a reviewable decision is given to an oil producer, that notice shall include a statement to the effect that: (a) the oil producer may, if dissatisfied with the decision, seek a reconsideration of the decision under subsection 12(1); and (b) a person whose interests are affected by the decision may, subject to the Administrative Appeals Tribunal Act 1975, if dissatisfied with a decision made upon that reconsideration confirming or varying the first-mentioned decision, make application to the Administrative Appeals Tribunal for review of the decision so confirmed or varied.
[ CCH Note: S 13(1) will be amended by No 38 of 2024, s 3 and Sch 1 item 67, by substituting "Administrative Review Tribunal Act 2024" for "Administrative Appeals Tribunal Act 1975" and "Administrative Review Tribunal for" for "Administrative Appeals Tribunal for" in para (b), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
13(2)
Where written notice of the confirmation or variation of a reviewable decision under subsection 12(3) is given to an oil producer, that notice shall include a statement to the effect that a person whose interests are affected by the decision may, subject to the Administrative Appeals Tribunal Act 1975, if dissatisfied with the decision so confirmed or varied, make application to the Administrative Appeals Tribunal for review of the decision.
[ CCH Note: S 13(2) will be amended by No 38 of 2024, s 3 and Sch 1 item 67, by substituting "Administrative Review Tribunal Act 2024" for "Administrative Appeals Tribunal Act 1975" and "Administrative Review Tribunal for" for "Administrative Appeals Tribunal for", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
13(3)
Any failure to comply with the requirements of subsection (1) or (2) in relation to a reviewable decision or a decision under subsection 12(3) does not affect the validity of that decision.
SECTION 14 14 REGULATIONS
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.