This Act forces large fuel retailers and wholesalers to meet minimum ethanol and biodiesel shares in petrol and diesel, and to ensure ethanol blends are available at high‑volume service stations. It creates registration, reporting and record‑keeping duties, enforcement powers and penalties, and gives the Minister discretion to grant exemptions or suspend requirements. IPART sets a benchmark ‘reasonable wholesale price’ for ethanol and an Expert Panel advises the Minister on exemptions and suspensions.
The Act establishes a statutory framework requiring certain fuel suppliers and retailers in New South Wales to supply a minimum proportion of biofuels (ethanol in petrol, biodiesel in diesel), to register and report on fuel sales, and to submit to regulatory oversight, investigations and enforcement. Mechanically, the core obligations are these:
Volume fuel retailers must ensure minimum ethanol and biodiesel volumes as proportions of total petrol and diesel sold in defined relevant periods (ss 6-7). The minimum ethanol percentage rose from 2% to 4% from 1 January 2010 and to 6% from 1 January 2011 (s 6(2)). The minimum biodiesel percentage rose from 2% to 5% from 1 January 2012 (s 7(2)). Only biofuels that comply with a prescribed biofuel sustainability standard may be counted (ss 6(3), 7(3); definition in s 3).
Volume fuel retailers must make petrol-ethanol blends (E10) available for retail sale at each volume fuel service station in a manner that complies with regulations (s 8).
The method for measuring the volumes counts blends on a combined volume basis (s 9(1)-(2)); regulations may refine measurement (s 9(3)).
Registration, returns and records are mandatory for primary wholesalers, volume fuel retailers and operators of service stations as prescribed; the Secretary sets registration steps and maintains a public register of volume fuel retailers (ss 10-12). Returns must specify total petrol, ethanol, diesel and biodiesel volumes and other data specified by regulation (s 11(2)).
Offences and penalties are set for failure to comply with minimum biofuel requirements, failure to register or file returns, keeping false records and obstructing investigators (ss 9A, 13, 21). For minimum biofuel breaches, criminal penalties escalate from 500 penalty units for a first offence to 5,000 for subsequent offences (s 9A(1)).
Current sections
Direct links to the current provisions in Biofuels Act 2007.
This Act commences on a day or days to be appointed by proclamation.
3
Definitions
3 Definitions
3 Definitions
(1) In this Act—
biodiesel means a diesel fuel obtained by esterification of oil derived from plants or animals.
biodiesel blend means diesel fuel that contains biodiesel (such as the fuel known as B5).
biofuel sustainability standard means a standard, in respect of the sustainable manufacture of ethanol or biodiesel, prescribed by the regulations for the purposes of this definition.
Department means the department in which this Act is administered.
diesel fuel means a petroleum-based fuel (whether or not containing biodiesel) for internal combustion engines that is sold as diesel fuel or as a biodiesel blend.
E10 means petrol-ethanol blend that contains between 9% and 10% ethanol by volume, being ethanol that complies with a biofuel sustainability standard.
ethanol means ethanol derived from renewable biological feedstock.
exercise a function includes perform a duty.
Expert Panel means the Expert Panel established by section 24.
fuel wholesaler means a person engaged in a business of selling petrol or diesel fuel for resale (whether or not that business also involves the sale of petrol or diesel fuel by retail).
function includes a power, authority or duty.
investigator means a person appointed as an investigator under section 18.
IPART means the Independent Pricing and Regulatory Tribunal.
minimum biofuel requirement means a requirement imposed by section 6, 7 or 8.
petrol means a petroleum based fuel (whether or not containing ethanol) for spark-ignition internal combustion engines that is sold as petrol or as petrol-ethanol blend, but does not include diesel fuel, aviation fuel, liquid petroleum gas and such other fuels as may be prescribed by the regulations.
petrol-ethanol blend means petrol that contains ethanol (such as the fuel known as E10).
primary wholesaler is defined in section 4.
regular unleaded petrol means unleaded petrol that has a research octane number of less than 95.
relevant period—see subsection (1A).
Secretary means the Secretary of the Department.
service station means a building or place used for the fuelling of motor vehicles involving the sale by retail of petrol or diesel fuel, whether or not any other fuel or other product is sold there and whether or not the building or place is used for any other purpose.
volume fuel retailer is defined in section 4A.
volume fuel retailer’s service station means—
(a) a service station operated by the volume fuel retailer, or
(b) a service station the operation of which is controlled by the volume fuel retailer,
whether or not the service station is a volume fuel service station.
volume fuel service station means a service station at which—
(a) 3 or more types of petrol or diesel fuel are available for sale by retail for the fuelling of motor vehicles at the service station (for example, regular unleaded petrol, unleaded petrol that has a research octane number of not less than 95 and diesel fuel), and
(b) the total volume of petrol and diesel fuel sold by retail for the fuelling of motor vehicles at the service station (calculated as set out in section 9) exceeds a threshold prescribed by the regulations.
Note—
The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.
(1A) Each of the 3-month periods that starts at the beginning of October, January, April and July in each year is a relevant period for the purposes of this Act. The regulations can change what is a relevant period for the purposes of this Act.
(2) Notes included in this Act do not form part of this Act.
s 3: Am 2009 No 11, Sch 1 [3]–[7]; 2010 No 59, Sch 2.9 [1]; 2012 No 30, Sch 1 [1]; 2012 No 92, Sch 1 [1] [2]; 2014 No 88, Sch 2.3 [2]; 2015 No 58, Sch 3.11 [1]; 2016 No 12, Sch 2 [2]–[4]; 2016 No 55, Sch 3.2 [1]; 2024 No 53, Sch 3.1[1].
4
Primary wholesalers
4 Primary wholesalers
4 Primary wholesalers
(1) In this Act—
primary wholesaler means a fuel wholesaler who operates or supplies petrol or diesel fuel from any of the following facilities (whether or not in New South Wales) in connection with fuel wholesaling—
(a) an oil refinery,
(b) a shipping facility,
(c) a facility to which petrol or diesel fuel is shipped by pipeline from an oil refinery or a shipping facility,
(d) a facility to which petrol or diesel fuel is supplied by pipeline from a facility referred to in paragraph (c).
(2) The regulations may include any other fuel wholesaler or class of fuel wholesalers in the definition of primary wholesaler.
(3) A regulation under subsection (2) may apply to a fuel wholesaler generally or may be limited so as to apply only to the primary wholesaling of petrol or to the primary wholesaling of diesel fuel.
(4) The regulations may exclude a person or class of persons from the definition of primary wholesaler.
s 4: Subst 2009 No 11, Sch 1 [8].
4A
Volume fuel retailer
4A Volume fuel retailer
4A Volume fuel retailer
(1) In this Act—
volume fuel retailer means—
(a) a person who operates or controls the operation of a volume fuel service station (whether or not the person also operates or controls the operation of any other service station and whether or not the person is also a fuel wholesaler), or
(b) a person who operates or controls the operation of 20 or more service stations, none of which are volume fuel service stations.
(2) The regulations may include any other person or class of persons in the definition of volume fuel retailer.
(3) The regulations may exclude a person or class of persons from the definition of volume fuel retailer.
s 4A: Ins 2009 No 11, Sch 1 [9]. Subst 2016 No 12, Sch 2 [5].
5
Act applies only to sales to person in NSW or for delivery in NSW
5 Act applies only to sales to person in NSW or for delivery in NSW
5 Act applies only to sales to person in NSW or for delivery in NSW
(1) This Act applies to the sale of petrol or diesel fuel by wholesale or retail to a person in New South Wales or for delivery in New South Wales (whether or not the sale is made in New South Wales).
(2) This Act does not apply to a sale of petrol or diesel fuel by one wholesaler to another or by one retailer to another.
(2A) (Repealed)
(3) A sale of petrol or diesel fuel is considered to be a sale for delivery in New South Wales if the terms (whether express or implied) of the sale or any contract for the sale—
(a) require either party to the sale to deliver, or arrange delivery of, the petrol or diesel fuel into or within New South Wales, or
(b) contemplate delivery of the petrol or diesel fuel into or within New South Wales.
(4) The regulations may exclude any sale or class of sales from the application of all or specified provisions of this Act.
s 5: Am 2009 No 11, Sch 1 [10]–[12]; 2012 No 95, Sch 1.3 [1]; 2016 No 12, Sch 2 [6] [7].
Part 2
Minimum biofuel requirements
Part 2 Minimum biofuel requirements
Part 2 Minimum biofuel requirements
pt 2: Subst 2009 No 11, Sch 1 [13].
6
Minimum ethanol requirement for volume fuel retailers
6 Minimum ethanol requirement for volume fuel retailers
6 Minimum ethanol requirement for volume fuel retailers
(1) A volume fuel retailer must ensure that the volume of ethanol sold by the retailer (in petrol-ethanol blend) during a relevant period is not less than the minimum ethanol percentage of the total volume of all petrol (including petrol-ethanol blend) sold by the retailer during the relevant period.
(2) The minimum ethanol percentage is—
(a) 2% for any relevant period before a relevant period to which paragraph (b) or (c) applies, or
(b) 4% for a relevant period that starts on or after 1 January 2010 other than a relevant period to which paragraph (c) applies, or
(c) 6% for a relevant period that starts on or after 1 January 2011.
(3) Only ethanol that complies with a biofuel sustainability standard may be counted towards the volume of ethanol sold for the purposes of this section.
s 6: Subst 2009 No 11, Sch 1 [13]. Am 2016 No 12, Sch 2 [8]
7
Minimum biodiesel requirement for volume fuel retailers
7 Minimum biodiesel requirement for volume fuel retailers
7 Minimum biodiesel requirement for volume fuel retailers
(1) A volume fuel retailer must ensure that the volume of biodiesel sold by the retailer (in biodiesel blend) during a relevant period is not less than the minimum biodiesel percentage of the total volume of all diesel fuel (including biodiesel blend) sold by the retailer during the relevant period.
(2) The minimum biodiesel percentage is—
(a) 2% for any relevant period before a relevant period to which paragraph (b) applies, or
(b) 5% for a relevant period that starts on or after 1 January 2012.
(3) Only biodiesel that complies with a biofuel sustainability standard may be counted towards the volume of biodiesel sold for the purposes of this section.
s 7: Subst 2009 No 11, Sch 1 [13]. Am 2016 No 12, Sch 2 [9]
8
Availability of petrol-ethanol blend for retail sale
8 Availability of petrol-ethanol blend for retail sale
8 Availability of petrol-ethanol blend for retail sale
A volume fuel retailer must ensure that, at each of the retailer’s volume fuel service stations, petrol-ethanol blend is available for sale by retail for the fuelling of motor vehicles in a manner that complies with the regulations.
s 8: Subst 2009 No 11, Sch 1 [13]. Rep 2012 No 30, Sch 1 [2]. Ins 2016 No 12, Sch 2 [10].
9
Method for determining volumes of petrol and biodiesel
9 Method for determining volumes of petrol and biodiesel
9 Method for determining volumes of petrol and biodiesel
(1) For the purpose of determining the volume of petrol sold by a volume fuel retailer, the volume of petrol that is petrol-ethanol blend is to be determined as the combined volume of petrol and ethanol in the petrol-ethanol blend (that is, by including the volume of the ethanol).
(2) For the purpose of determining the volume of diesel fuel sold by a volume fuel retailer, the volume of diesel fuel that is biodiesel blend is to be determined as the combined volume of diesel fuel and biodiesel in the biodiesel blend (that is, by including the volume of the biodiesel).
(3) The regulations may provide for the way in which the volume of petrol, ethanol, diesel fuel and biodiesel is to be determined for the purposes of this Act.
s 9: Subst 2009 No 11, Sch 1 [13]. Am 2016 No 12, Sch 2 [11].
9A
Offence—failure to comply with minimum biofuel requirements
9A Offence—failure to comply with minimum biofuel requirements
9A Offence—failure to comply with minimum biofuel requirements
(1) A volume fuel retailer who fails to comply with a minimum biofuel requirement is guilty of an offence.
Maximum penalty—
(a) in the case of a first offence—500 penalty units, or
(b) in the case of a second or subsequent offence—5,000 penalty units.
(2) It is a defence to a prosecution for failure to comply with a minimum biofuel requirement if the defendant proves that—
(a) the defendant has taken the steps set out in the regulations to comply with the requirement, or
(b) the defendant has otherwise taken all reasonable steps to comply with the requirement, or
(c) in the case of a requirement imposed by section 6 or 8—at the time of the alleged offence, it was not economically viable for the defendant to comply with the requirement—
(i) because the wholesale price of ethanol for use in the production of petrol-ethanol blend exceeded the reasonable wholesale price determined by IPART under section 17A (1) (a), or
(ii) because of the price at which the defendant was reasonably able to produce or obtain petrol-ethanol blend for retail sale, or
(iii) on grounds set out in the regulations, or
(iv) on any other grounds, or
(d) in the case of a requirement imposed by section 7—at the time of the alleged offence, it was not economically viable for the defendant to comply with the requirement—
(i) because of the price at which the defendant was reasonably able to produce or obtain biodiesel blend for retail sale, or
(ii) on grounds set out in the regulations, or
(iii) on any other grounds.
s 9A: Ins 2016 No 12, Sch 2 [12].
9B
Exemptions from minimum biofuel requirements
9B Exemptions from minimum biofuel requirements
9B Exemptions from minimum biofuel requirements
(1) The Minister may, on application, exempt a volume fuel retailer from compliance with a specified minimum biofuel requirement if the retailer satisfies the Minister—
(a) that, if the retailer were prosecuted for failure to comply with the requirement, the retailer would have a defence to the prosecution, or
Note—
See section 9A (2).
(b) that the exemption is reasonable in order to allow the retailer a period within which to take the steps required to establish a defence to a prosecution for failure to comply with the requirement, or
(c) that compliance by the retailer may result in a risk to public health or safety, or
(d) that the exemption should be granted on other grounds specified in the regulations, or
(e) that there are other extraordinary circumstances justifying the grant of the exemption.
(1A) (Repealed)
(2) The Minister is not to grant an exemption unless the proposed exemption has been referred to the Expert Panel and the Minister has considered any advice of the Panel on the proposed exemption.
(3) An exemption can be granted subject to conditions.
(3A) A person must not contravene a condition of an exemption.
Maximum penalty—
(a) in the case of a first offence—500 penalty units, or
(b) in the case of a second or subsequent offence—5,000 penalty units.
(4) An exemption can be granted as a partial exemption specifying a percentage that is less than the minimum ethanol percentage or minimum biodiesel percentage applicable under section 6 or 7.
Note—
A partial exemption has the effect that the relevant section then applies to require that the volume of ethanol (in petrol ethanol blend) or volume of biodiesel (in biodiesel blend) sold by the volume fuel retailer concerned is not less than the specified minimum ethanol percentage or specified minimum biodiesel percentage of the total volume of all petrol or diesel fuel sold by that retailer during the relevant period.
(5) An exemption may—
(a) apply generally or be limited in its application by reference to specified exceptions or factors, and
(b) apply differently according to different factors of a specified kind, and
(c) be granted for a specified period or for an indefinite period, and
(d) if granted for a specified period, be granted before, during or after that period.
(5A) An exemption that is granted in order to allow a person a period within which to take steps to comply with a minimum biofuel requirement—
(a) may be subject to conditions specifying the steps to be taken, and
(b) must not be granted for a period exceeding that specified in the regulations.
(6) An exemption that is granted for—
(a) a specified period remains in force for that period, and
(b) an indefinite period remains in force until it is revoked.
A condition of an exemption may, according to its terms, continue in force after the exemption has ceased to be in force.
(7) The Minister may vary or revoke an exemption (including by imposing, varying or revoking a condition of the exemption) at any time by notice in writing to the volume fuel retailer concerned.
(8) However, the Minister is not to vary or revoke an exemption unless the proposed variation or revocation has been referred to the Expert Panel and the Minister has considered any advice of the Panel on the proposed variation or revocation.
(9) The regulations may make provision for or with respect to applications for exemptions.
Note—
An exemption from compliance with a minimum biofuel requirement does not affect the obligation to comply with section 10, 11 or 12.
s 9B (previously s 15): Renumbered 2016 No 12, Sch 2 [26].
9C
Suspension of minimum biofuel requirements
9C Suspension of minimum biofuel requirements
9C Suspension of minimum biofuel requirements
(1) The Minister may by order published in the Gazette suspend the operation of a minimum biofuel requirement if satisfied that compliance with that requirement—
(a) is uneconomic as a result of the price at which volume fuel retailers are reasonably able to obtain ethanol or biodiesel or industry-wide ethanol or biodiesel shortages, as appropriate, or
(b) may result in a risk to public health or safety, or
(c) may have an adverse effect on the retail price of petrol or diesel fuel for motorists, or
(d) may have an adverse effect on grain or food stock availability, or
(e) may substantially inflate grain or food stock prices, or
(f) may have a significant adverse environmental impact on water availability or quality, soil fertility and health or biodiversity, or
(g) should be suspended for some other extraordinary reason.
Editorial note—
For orders under this subsection, see Gazettes No 105 of 17.7.2009, p 4110; No 133 of 10.12.2010, p 5811; No 66 of 30.6.2011, p 4667 and No 133 of 23.12.2011, p 7415. From April 2021, PCO is no longer updating notes in provisions of in force titles about related gazette notices. To search for related gazette notices, please use the Gazette Search functionality.
(2) The Minister is not to suspend the operation of a minimum biofuel requirement without first referring the proposed suspension to the Expert Panel for advice and considering the advice of the Expert Panel on the proposed suspension.
(3) A suspension can be granted as a partial suspension specifying a percentage that is less than the minimum ethanol percentage or minimum biodiesel percentage applicable under section 6 or 7 (with the result that the relevant section then applies to require that the volume of ethanol or biodiesel sold by a volume fuel retailer during a relevant period covered by the suspension is not less than that specified percentage of the total volume of all petrol or diesel fuel (as appropriate) sold by the volume fuel retailer during the relevant period).
(4) A suspension granted for a specified period remains in force for that period.
(5) A suspension that is not granted for a specified period (an indefinite suspension) remains in force until it is revoked.
(6) The Minister must keep an indefinite suspension under periodic review and must revoke the suspension when satisfied that grounds for the suspension no longer exist. The Minister revokes an indefinite suspension by notice in writing published in the Gazette.
Note—
The suspension of operation of section 6 or 7 does not affect the obligation to comply with section 10, 11 or 12.
s 9C (previously s 17): Renumbered 2016 No 12, Sch 2 [30].
Part 3
Registration, returns and records
Part 3 Registration, returns and records
Part 3 Registration, returns and records
pt 3: Subst 2009 No 11, Sch 1 [13].
pt 3, hdg: Subst 2016 No 12, Sch 2 [13].
10
Registration of primary wholesalers, volume fuel retailers and other operators of service stations
10 Registration of primary wholesalers, volume fuel retailers and other operators of service stations
10 Registration of primary wholesalers, volume fuel retailers and other operators of service stations
(1) A person who carries on the business of a primary wholesaler or who operates or controls the operation of a service station must register as a primary wholesaler, a volume fuel retailer or an operator of a service station who is not a volume fuel retailer by taking the steps required by the Secretary by order published on the NSW legislation website.
(2) The Secretary must make publicly available, on a NSW Government website or by other appropriate electronic means, a register containing the names and contact details of persons who are registered as volume fuel retailers.
(3) A person who is registered under this section must keep the registration details up-to-date by taking the steps required by the Secretary, within the period allowed by the Secretary, by order published on the NSW legislation website.
s 10: Subst 2009 No 11, Sch 1 [13]. Am 2012 No 92, Sch 1 [3]. Subst 2016 No 12, Sch 2 [14]. Am 2024 No 25, Sch 1.1.
11
Returns by primary wholesalers, volume fuel retailers and other operators of service stations
11 Returns by primary wholesalers, volume fuel retailers and other operators of service stations
11 Returns by primary wholesalers, volume fuel retailers and other operators of service stations
(1) A person required to be registered under section 10 must provide returns to the Secretary as required by the regulations.
(2) A return is to specify the following information in respect of sales of petrol and diesel fuel by the person during the period for which the return is required—
(a) the total volume of petrol sold (including petrol-ethanol blend),
(b) the total volume of ethanol sold (in the form of petrol-ethanol blend),
(c) the total volume of diesel fuel sold (including biodiesel blend),
(d) the total volume of biodiesel sold (in the form of biodiesel blend),
(e) such other information as may be specified in the regulations.
s 11: Subst 2009 No 11, Sch 1 [13]; 2016 No 12, Sch 2 [14].
12
Keeping of records
12 Keeping of records
12 Keeping of records
(1) A person must keep such records in respect of sales of petrol and diesel fuel by the person as may be necessary to enable the person to furnish the returns required by section 11.
(2) Those records are to include records of such transactions and other matters in connection with petrol and diesel fuel sales as the regulations may require.
(3) The regulations may prescribe the form and manner in which records are to be kept and the period for which records are to be retained.
s 12: Subst 2009 No 11, Sch 1 [13]. Am 2016 No 12, Sch 2 [15]
13
Offence—failure to register, furnish returns or keep records
13 Offence—failure to register, furnish returns or keep records
13 Offence—failure to register, furnish returns or keep records
(1A) A person who fails to register or keep registration details up-to-date in compliance with section 10 is guilty of an offence.
Maximum penalty—100 penalty units.
(1) A person who fails to furnish a return in compliance with section 11 or who in purported compliance with that section furnishes a return containing information that the person knows (or ought reasonably to know) is false or misleading in a material particular is guilty of an offence.
Maximum penalty—
(a) in the case of a first offence—500 penalty units, or
(b) in the case of a second or subsequent offence—5,000 penalty units.
(2) A person who fails to keep and retain records in compliance with section 12 or who in purported compliance with that section makes a record containing information that the person knows (or ought reasonably to know) is false or misleading in a material particular is guilty of an offence.
Maximum penalty—
(a) in the case of a first offence—500 penalty units, or
(b) in the case of a second or subsequent offence—5,000 penalty units.
(3) It is a defence to a prosecution for a failure to keep and retain records in compliance with section 12 if the defendant proves that the defendant had a reasonable excuse for the failure.
s 13: Subst 2009 No 11, Sch 1 [13]. Am 2012 No 92, Sch 1 [4]; 2016 No 12, Sch 2 [16].
14
14
14
(Renumbered as section 23)
s 14: Ins 2009 No 11, Sch 1 [13]. Am 2016 No 12, Sch 2 [17]–[19]. Renumbered as sec 23, 2016 No 12, Sch 2 [20].
15
15
15
(Renumbered as section 9B)
s 15: Ins 2009 No 11, Sch 1 [13]. Am 2012 No 92, Sch 1 [5]–[8]; 2012 No 95, Sch 1.3 [2]; 2016 No 12, Sch 2 [21]–[25]. Renumbered as sec 9B, 2016 No 12, Sch 2 [26].
16
16
16 (Repealed)
17
17
17
(Renumbered as section 9C)
s 17: Ins 2009 No 11, Sch 1 [13]. Am 2016 No 12, Sch 2 [27]–[29]. Renumbered as sec 9C, 2016 No 12, Sch 2 [30]
Part 3A
IPART functions
Part 3A IPART functions
Part 3A IPART functions
pt 3A (s 17A): Ins 2016 No 12, Sch 2 [31].
17A
IPART functions
17A IPART functions
17A IPART functions
(1) IPART has the following functions—
(a) to determine, and periodically review, a reasonable wholesale price for ethanol for use in the production of petrol-ethanol blend,
(b) to monitor the retail market (including prices) for petrol-ethanol blend and make reports to the Minister on the effect of a determination under paragraph (a) on that market.
(2) In determining a reasonable wholesale price for ethanol, IPART must—
(a) consider the price at which ethanol would need to be sold by wholesale for use in the production of petrol-ethanol blend for the wholesale market for ethanol and petrol-ethanol blend and the retail market for petrol-ethanol blend to be economically viable, and
(b) take into account the minimum biofuel requirements and disregard any exemptions from those requirements that may be granted under this Act.
(3) IPART may conduct investigations for the purpose of enabling it to perform its functions under this section.
(4) Subject to this section, and except to the extent to which the regulations otherwise provide, the provisions of Divisions 6 and 7 of Part 3 of the Independent Pricing and Regulatory Tribunal Act 1992 apply to an investigation or report under this section in the same way as they apply to an investigation or report under that Act.
(6) IPART may issue guidelines as to the manner in which it exercises its functions under this section.
(7) IPART must keep the guidelines available for inspection by members of the public, free of charge, during normal office hours.
(8) It is sufficient compliance with subsection (7) if a copy of the guidelines is made available to the public on IPART’s website.
(9) Copies of the guidelines are to be made available to members of the public, at cost, during normal office hours.
pt 3A (s 17A): Ins 2016 No 12, Sch 2 [31].
Part 4
Enforcement
Part 4 Enforcement
Part 4 Enforcement
18
Appointment of investigators
18 Appointment of investigators
18 Appointment of investigators
(1) The Secretary may appoint any person employed in the Department as an investigator for the purposes of this Act.
(2) The Secretary is to provide an investigator with a certificate of authority.
s 18 (previously s 14): Renumbered 2009 No 11, Sch 1 [14]. Am 2010 No 59, Sch 2.9 [2]; 2016 No 55, Sch 3.2 [2].
19
Power of investigator to obtain information, records and evidence
19 Power of investigator to obtain information, records and evidence
19 Power of investigator to obtain information, records and evidence
(1) If an investigator believes on reasonable grounds that a person is capable of giving information, producing records or giving evidence in relation to a matter that constitutes, or may constitute, an offence against this Act or the regulations or that may assist in ascertaining whether the provisions of this Act or the regulations are being complied with or have been contravened, the investigator may, by notice in writing given to the person, require the person—
(a) to provide an investigator, in writing signed by the person (or, in the case of a corporation, by a competent officer of the corporation) and given to the investigator within the time and in the manner specified in the notice, with any such information, or
(b) to produce to an investigator, in accordance with the notice, any such records, or
(c) to appear before an investigator at a time and place specified in the notice and give any such evidence, either orally or in writing, and produce any such records.
(2) The powers conferred by this section may only be exercised to impose a requirement on the following persons—
(a) any person required to be registered under section 10,
(b) any person whom the investigator reasonably believes has been supplied with ethanol, biodiesel, petrol or diesel fuel by a person required to be registered under section 10,
(c) any person whom the investigator reasonably believes has supplied a person required to be registered under section 10 with ethanol, biodiesel, petrol or diesel fuel.
s 19 (previously s 15): Renumbered 2009 No 11, Sch 1 [14]. Am 2009 No 11, Sch 1 [15] [16]; 2012 No 92, Sch 1 [9] [10]; 2016 No 12, Sch 2 [32].
20
Powers of investigators
20 Powers of investigators
20 Powers of investigators
(1) An investigator may exercise the powers conferred by this section for the purpose of—
(a) ascertaining whether the provisions of this Act or the regulations are being complied with or have been contravened, or
(b) obtaining evidence, records or information in relation to a matter that constitutes or may constitute a contravention of this Act or the regulations.
(2) An investigator may enter and inspect at any reasonable time any premises that the investigator believes on reasonable grounds are premises—
(a) used for the conduct of any aspect of the business of a person required to be registered under section 10, or
(b) used for the conduct of a business by a person whom the investigator reasonably believes has been supplied with petrol or diesel fuel by a person required to be registered under section 10, or
(c) used for the conduct of a business by a person whom the investigator reasonably believes has supplied a person required to be registered under section 10 with ethanol, biodiesel, petrol or diesel fuel.
(3) While on premises entered under this section, an investigator may do any one or more of the following—
(a) require any person on those premises to produce any records in the possession or under the control of that person relating to the sale or purchase of ethanol, biodiesel, petrol or diesel fuel,
(b) inspect and take copies of, or extracts or notes from, any such records and, if the investigator considers it necessary to do so for the purpose of obtaining evidence, seize any such records,
(c) require any person on those premises to answer questions or otherwise furnish information in relation to the sale or purchase of ethanol, biodiesel, petrol or diesel fuel,
(c1) take for analysis or examination samples of ethanol, biodiesel, petrol or diesel fuel,
(d) require the owner or occupier of those premises to provide the investigator with such assistance and facilities as is or are reasonably necessary to enable the investigator to exercise the functions of an investigator under this section.
(4) An investigator is not entitled to enter a part of premises used for residential purposes, except with the consent of the occupier of the part.
(5) An investigator must, when exercising on any premises any function of the investigator under this Part, produce the investigator’s certificate of authority to any person apparently in charge of the premises who requests its production.
s 20 (previously s 16): Renumbered 2009 No 11, Sch 1 [14]. Am 2009 No 11, Sch 1 [17]–[19]; 2012 No 92, Sch 1 [11]–[13]; 2016 No 12, Sch 2 [32].
21
Interference with investigator
21 Interference with investigator
21 Interference with investigator
A person must not—
(a) without reasonable excuse, refuse or fail to comply with any notice given or requirement made, or to answer any question asked, by an investigator under this Part, or
(b) wilfully delay, hinder or obstruct an investigator in the exercise of the investigator’s powers under this Part, or
(c) furnish an investigator with information that the person knows (or ought reasonably to know) is false or misleading in a material particular.
Maximum penalty—50 penalty units.
s 21: Renumbered 2009 No 11, Sch 1 [14].
22
Seizure of records
22 Seizure of records
22 Seizure of records
(1) If an investigator seizes any records under this Part, they may be retained by the investigator until the completion of any proceedings (including proceedings on appeal) in which they may be evidence but only if the person from whom the records were seized is provided, within a reasonable time after the seizure, with a copy of the records certified by an investigator as a true copy.
(2) A copy of records provided under this section is, as evidence, of equal validity to the records of which it is certified to be a copy.
ss 22 (previously ss 17, 18): Renumbered 2009 No 11, Sch 1 [14].
23
Compliance reporting by Minister
23 Compliance reporting by Minister
23 Compliance reporting by Minister
(1) The Minister may from time to time publish information about compliance with the requirements of this Act.
(2) Without limiting this section, the Minister may publish the names of persons who fail to comply with any provision of this Act, together with information about the nature and extent of any such failure.
(3) Information published under this section can include a copy of any return furnished under this Act.
(4) The regulations can prohibit the publication under this section of specified information or information of a specified kind, for the purpose of protecting commercial in confidence information.
s 23 (previously s 19): Renumbered 2009 No 11, Sch 1 [14]. Am 2009 No 11, Sch 1 [20] [21]; 2013 No 95, Sch 2.12 [1] [2]; 2014 No 33, Sch 2.7. Rep 2016 No 12, Sch 2 [33].
s 23 (previously s 14): Renumbered 2016 No 12, Sch 2 [20].
Part 5
Miscellaneous
Part 5 Miscellaneous
Part 5 Miscellaneous
24
Expert Panel
24 Expert Panel
24 Expert Panel
(1) An Expert Panel is established consisting of the following as members of the Expert Panel—
(a) the Secretary or the Secretary’s nominee,
(a1) (Repealed)
(a2) the Chairperson of the Environment Protection Authority or the Chairperson’s nominee,
(a3) the Secretary of the Department of Primary Industries and Regional Development or the Secretary’s nominee,
(a4) the Commissioner for Fair Trading or the Commissioner’s nominee,
(a5) (Repealed)
(b) the Secretary of the Treasury or the Secretary’s nominee,
(c) up to 4 persons appointed by the Minister who have recent experience or expertise in the petroleum or biofuels industry.
(2) The Chairperson of the Expert Panel is the Secretary, the Secretary’s nominee, the Commissioner for Fair Trading or the Commissioner’s nominee, as determined by the Secretary.
(2A) Schedule 2 contains provisions relating to the constitution and procedure of the Expert Panel.
(3) The function of the Expert Panel is to provide advice to the Minister on—
(a) a proposed exemption from, or a proposed suspension of, the operation of a minimum biofuel requirement, and
(b) a proposed variation or revocation of such an exemption, and
(c) such other matters in connection with the operation of this Act as may be referred to the Expert Panel by the Minister.
(4) The Minister can issue guidelines to the Expert Panel from time to time as to—
(a) the matters that are relevant for the purpose of determining whether grounds exist for the grant of an exemption from or suspension of the operation of a minimum biofuel requirement, and
(b) such other matters in connection with the operation of this Act as may be referred to the Expert Panel by the Minister.
s 24 (previously s 20): Renumbered 2009 No 11, Sch 1 [14]. Subst 2009 No 11, Sch 1 [22]. Am 2010 No 59, Sch 2.9 [3] [4]; 2012 No 30, Sch 1 [4]; 2012 No 92, Sch 1 [14]–[17]; 2013 No 47, Sch 1.4; 2014 No 88, Sch 2.3 [3]; 2015 No 58, Sch 3.11 [2]–[5]; 2016 No 12, Sch 2 [34]; 2016 No 55, Sch 3.2 [3]; 2017 No 22, Sch 1.2; 2017 No 63, Sch 4.4; 2021 No 23, Sch 1.2[1]–[3]; 2024 No 53, Sch 3.1[2]; 2024 No 82, Sch 1.3.
25
Secrecy
25 Secrecy
25 Secrecy
(1) This section applies to the following persons—
(a) the Minister,
(b) the Secretary and a person who is or was employed in the Department,
(c) a person who is or was a member of the Expert Panel.
(2) A person to whom this section applies must not, directly or indirectly, except for the purposes of this Act or otherwise in connection with the exercise of the person’s functions under this Act—
(a) make a record of any information, acquired by the person by reason of, or in the course of, the exercise of the person’s functions under this Act, or
(b) divulge or communicate to any person any such information.
Maximum penalty—50 penalty units or imprisonment for 12 months, or both.
(3) A person to whom this section applies cannot be required—
(a) to produce to any person or body any document or other thing that has come into the person’s possession, custody or control by reason of, or in the course of, the exercise of the person’s functions under this Act, or
(b) to divulge or communicate to any person or body any matter or thing that has come to the person’s notice in the exercise of the person’s functions under this Act.
(4) Despite this section, a person to whom this section applies may divulge any such information—
(a) for the purposes of and in accordance with this Act, or
(b) for the purposes of a prosecution under this Act, or
(c) in accordance with a direction of the Secretary, if the Secretary certifies that it is necessary to do so in the public interest, or
(d) to any person or body prescribed by the regulations.
(5) A person or body to whom information is divulged under subsection (4), and any person or employee under the control of that person or body, is subject to the same rights, privileges, obligations and liabilities under subsections (2) and (3) in respect of that information as if he or she were a person to whom this section applies and had acquired the information in the exercise of functions under this Act.
(6) In this section—
body includes any court, tribunal, authority or body having power to require the production of documents or the answering of questions.
produce includes permit access to.
s 25 (previously s 21): Renumbered 2009 No 11, Sch 1 [14]. Am 2010 No 59, Sch 2.9 [2]; 2016 No 55, Sch 3.2 [4].
26
Liability
26 Liability
26 Liability
(1) The State does not incur any liability, and compensation is not payable by or on behalf of the State, arising directly or indirectly from any of the following matters occurring before or after the commencement of this section—
(a) the enactment or operation of this Act,
(b) the exercise by any person of a function under this Act or a failure to exercise any such function,
(c) any statement or conduct relating to the regulation of the ethanol content of petrol supplied by petrol suppliers or the biodiesel content of diesel fuel supplied by diesel fuel suppliers.
(2) In this section—
compensation includes damages or any other form of monetary compensation.
conduct includes any act or omission, whether unconscionable, misleading, deceptive or otherwise.
statement includes a representation of any kind—
(a) whether made verbally or in writing, and
(b) whether negligent, false or misleading or otherwise.
the State means the Crown within the meaning of the Crown Proceedings Act 1988, and includes an officer, employee or agent of the Crown and an investigator appointed under section 18.
this Act includes any regulation made under this Act and any suspension or exemption under this Act.
s 26 (previously s 22): Renumbered 2009 No 11, Sch 1 [14]. Am 2009 No 11, Sch 1 [23] [24].
27
Proceedings for offences
27 Proceedings for offences
27 Proceedings for offences
(1) Proceedings for an offence against this Act or the regulations are to be disposed of summarily before—
(a) the Local Court, or
(b) the Supreme Court in its summary jurisdiction.
(2) If proceedings are brought before the Local Court, the maximum monetary penalty that the Local Court may impose for the offence is 500 penalty units, despite any higher maximum monetary penalty provided in respect of the offence.
(3) Proceedings for an offence against this Act or the regulations must be commenced within 2 years of the date of the alleged offence.
s 27 (previously s 23): Am 2007 No 94, Sch 2. Renumbered 2009 No 11, Sch 1 [14]. Am 2012 No 92, Sch 1 [18] [19].
28
Authority to prosecute
28 Authority to prosecute
28 Authority to prosecute
Proceedings for an offence against this Act or the regulations may be instituted only with the written consent of the Minister.
s 28 (previously s 24): Renumbered 2009 No 11, Sch 1 [14].
29
Penalty notices
29 Penalty notices
29 Penalty notices
(1) An authorised officer may issue a penalty notice to a person if it appears to the officer that the person has committed a penalty notice offence.
(2) A penalty notice offence is an offence against this Act or the regulations that is prescribed by the regulations as a penalty notice offence.
(3) The Fines Act 1996 applies to a penalty notice issued under this section.
Note—
The Fines Act 1996 provides that, if a person issued with a penalty notice does not wish to have the matter determined by a court, the person may pay the amount specified in the notice and is not liable to any further proceedings for the alleged offence.
(4) The amount payable under a penalty notice issued under this section is the amount prescribed for the alleged offence by the regulations (not exceeding the maximum amount of penalty that could be imposed for the offence by a court).
(5) This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences.
(6) In this section, authorised officer means a person employed in the Department who is authorised in writing by the Secretary as an authorised officer for the purposes of this section.
s 29 (previously s 25): Renumbered 2009 No 11, Sch 1 [14]. Am 2010 No 59, Sch 2.9 [2]; 2016 No 55, Sch 3.2 [2]. Subst 2017 No 22, Sch 3.4.
30
Regulations
30 Regulations
30 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) A regulation may create an offence punishable by a penalty not exceeding 100 penalty units.
(3) A regulation may apply, adopt or incorporate a publication as in force at a particular time or as in force from time to time.
s 30 (previously s 26): Renumbered 2009 No 11, Sch 1 [14]. Am 2024 No 25, Sch 7.3.
31
Delegation
31 Delegation
31 Delegation
The Minister or Secretary may delegate the exercise of any function of the Minister or Secretary under this Act (other than this power of delegation) to—
(a) any person employed in the Department, or
(b) any person, or any class of persons, authorised for the purposes of this section by the regulations.
s 31 (previously s 27): Renumbered 2009 No 11, Sch 1 [14]. Subst 2009 No 11, Sch 1 [25]. Am 2016 No 12, Sch 2 [35]; 2016 No 55, Sch 3.2 [2].
31A
Service of documents
31A Service of documents
31A Service of documents
(1) A document that is authorised or required by this Act or the regulations to be served on a person may be served by the following methods—
(a) for an individual—by personal delivery to the person,
(b) by post to the address specified by the person for the service of documents of that kind,
(c) for an individual who has not specified an address for service by post—by post to the residential or business address of the person last known to the person serving the document,
(d) for a corporation—by post to the registered or other office of the corporation or by leaving the document at the office with a person apparently over the age of 16 years,
(e) by email to an email address specified by the person for the service of documents of that kind,
(f) by other electronic means to an address or location specified by the person for the service of documents of that kind,
(g) by another method authorised by the regulations for the service of documents of that kind.
(2) Nothing in this section affects the operation of a provision of a law or of the rules of a court authorising a document to be served on a person by another method.
(3) In this section—
serve includes give or send.
s 31A: Ins 2024 No 25, Sch 6.3[1].
32
Review of Act
32 Review of Act
32 Review of Act
(1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.
(2) The review is to commence before 30 June 2019.
(3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after that date.
s 32 (previously s 28): Renumbered 2009 No 11, Sch 1 [14]. Subst 2016 No 12, Sch 2 [36].
Schedule 1
Savings, transitional and other provisions
Schedule 1 Savings, transitional and other provisions
Schedule 1 Savings, transitional and other provisions
sch 1: Ins 2009 No 11, Sch 1 [26]. Am 2012 No 30, Sch 1 [5]; 2012 No 92, Sch 1 [20]; 2012 No 95, Sch 1.3 [3]; 2016 No 12, Schs 1, 2 [37].
Part 6
Provisions consequent on enactment of Biofuels Amendment Act 2016
Part 6 Provisions consequent on enactment of Biofuels Amendment Act 2016
Schedule 2 Constitution and procedure of Expert Panel
Schedule 2 Constitution and procedure of Expert Panel
(Section 24 (2A))
sch 2: Ins 2012 No 92, Sch 1 [21]. Am 2015 No 58, Sch 3.11 [6]; 2017 No 25, Sch 1.6 [1] [2]; 2024 No 25, Sch 2.1[1] [2], Sch 6.3[2].
Source text: opening excerpt
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
Part 1 Preliminary
1 Name of Act
1 Name of Act
1 Name of Act
This Act is the Biofuels Act 2007.
s 1: Am 2009 No 11, Sch 1 [2].
2 Commencement
2 Commencement
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Definitions
3 Definitions
3 Definitions
(1) In this Act—
biodiesel means a diesel fuel obtained by esterification of oil derived from plants or animals.
biodiesel blend means diesel fuel that contains biodiesel (such as the fuel known as B5).
biofuel sustainability standard means a standard, in respect of the sustainable manufacture of ethanol or biodiesel, prescribed by the regulations for the purposes of this definition.
Department means the department in which this Act is administered.
diesel fuel means a petroleum-based fuel (whether or not containing biodiesel) for internal combustion engines that is sold as diesel fuel or as a biodiesel blend.
E10 means petrol-ethanol blend that contains between 9% and 10% ethanol by volume, being ethanol that complies with a biofuel sustainability standard.
ethanol means ethanol derived from renewable biological feedstock.
exercise a function includes perform a duty.
Expert Panel means the Expert Panel established by section 24.
fuel wholesaler means a person engaged in a business of selling petrol or diesel fuel for resale (whether or not that business also involves the sale of petrol or diesel fuel by retail).
function includes a power, authority or duty.
investigator means a person appointed as an investigator under section 18.
IPART means the Independent Pricing and Regulatory Tribunal.
minimum biofuel requirement means a requirement imposed by section 6, 7 or 8.
petrol means a petroleum based fuel (whether or not containing ethanol) for spark-ignition internal combustion engines that is sold as petrol or as petrol-ethanol blend, but does not include diesel fuel, aviation fuel, liquid petroleum gas and such other fuels as may be prescribed by the regulations.
Administrative relief is available: the Minister may grant exemptions (including partial and conditional exemptions) on application (s 9B) and may suspend a minimum biofuel requirement by Gazette order (s 9C). Both powers require referral to and consideration of advice from the Expert Panel before grant or suspension (ss 9B(2), 9C(2)).
IPART is given functions to determine and periodically review a reasonable wholesale price for ethanol and to monitor the retail market for petrol-ethanol blends; IPART’s determinations inform defences and exemption decisions (s 17A).
Enforcement machinery includes appointment of Department investigators with powers to require information, enter and inspect premises, copy or seize records and take samples (ss 18-22). Prosecutions require the Minister’s written consent (s 28) and summary disposal in Local Court or Supreme Court in summary jurisdiction with a two-year limitation period (s 27).
The Act creates confidentiality and secrecy obligations for Ministers, Department employees and Expert Panel members with criminal sanctions (s 25), and it limits State liability in multiple respects (s 26).
The Act is structured to leave detailed operational matters to regulations (s 30), including thresholds in the definition of a volume fuel service station, classes of primary wholesaler, procedures for exemptions, the form and frequency of returns, and penalty notice offences and amounts.
The text itself contains no direct policy justification, but it embeds decision-making processes (Expert Panel advice, IPART price determinations, Ministerial discretion subject to procedural steps) that allocate who decides and how technical or economic assessments are to be made (ss 9B(2), 9C(2), 17A). Those mechanisms determine how trade-offs between compliance and economic viability are to be resolved in practice.
Main concepts
The Act uses a small set of technical and administrative concepts repeatedly; understanding their precise statutory meanings is critical for compliance and enforcement.
Volume fuel retailer and volume fuel service station (ss 4A, definition in s 3): A volume fuel retailer is either an operator of a volume fuel service station or a person operating or controlling 20 or more service stations that are not volume fuel service stations (s 4A(1)). A volume fuel service station is defined by product mix (three or more fuel types available) and a sales-volume threshold prescribed by regulation (s 3 definition and s 4A note). Those definitions allocate obligations: ss 6-8 apply to volume fuel retailers and their volume fuel service stations.
Primary wholesaler (s 4): Defined by supply point (oil refinery, shipping facility, pipeline-connected facility). Regulations may expand, limit or exclude persons from the definition (s 4(2)-(4)). Primary wholesaler registration and reporting obligations flow from s 10 and s 11.
Minimum biofuel requirement (s 3 definition; ss 6-8): The statutory minima in ss 6-7 (ethanol and biodiesel percentages) are labelled minimum biofuel requirements. Section 9A creates criminal liability for non‑compliance; ss 9B-9C create administrative pathways for exemption or suspension.
Biofuel sustainability standard (s 3): A statutory term used to qualify which ethanol and biodiesel counts for compliance; the standard is prescribed in regulations. The sustainability test gates what biofuel volumes can be credited under ss 6-7.
Relevant period (s 3(1A)): The Act treats relevant periods as the quarterly periods starting at the beginning of October, January, April and July, unless regulations change the periods. Compliance is measured against these discrete reporting windows.
IPART functions (s 17A): IPART must determine a reasonable wholesale price for ethanol and monitor retail markets. Critically, IPART must disregard statutory exemptions when making price determinations (s 17A(2)(b)), so its pricing function is undertaken on the assumption of full statutory application of minima.
Expert Panel (s 24 and Schedule 2): A statutory advisory body composed of senior public officials and up to four ministerially appointed industry experts. Its function is to advise on proposed exemptions, suspensions and related matters (s 24(3)); the Minister must refer proposed exemptions and suspensions to the Panel and consider its advice before acting (ss 9B(2), 9C(2)).
Investigators and enforcement (ss 18-22): Investigators are Department employees appointed by the Secretary (s 18). They can compel information, inspect premises, seize records and take samples (ss 19-20). Obstruction and false statements attract penalties (s 21).
These concepts are interlocked: statutory minima create compliance obligations that are enforced through registration/returns/records and investigation powers; exemptions/suspensions are discretionary executive mechanisms subject to Expert Panel advice; IPART’s price determinations feed into defences against prosecution and into determinations of economic viability that underpin exemptions and suspensions (s 9A(2)(c)(i), s 17A).
Regulations are the mechanism for much elaboration (s 30). They may prescribe the biofuel sustainability standard, define thresholds, require additional reporting elements, specify penalty notice offences and amounts, set record retention periods and determine other procedural matters. That delegation structure means many operational details will not sit in the Act but in subordinate instruments.
Who it affects
The statute targets distinct commercial actors in the NSW petrol and diesel supply chain, plus public sector decision‑makers and advisers.
Volume fuel retailers (s 4A, ss 6-8): The Act primarily burdens volume fuel retailers, defined by operational control over high-volume service stations or control of 20+ service stations. These entities must meet ethanol and biodiesel percentage minima (ss 6-7), ensure E10 availability at volume fuel service stations (s 8) and comply with registration, returns and record‑keeping obligations (ss 10-12).
Primary wholesalers (s 4, ss 10-11): Wholesalers operating at refineries, shipping or pipeline facilities have registration and reporting obligations. The regulations may extend or modify the class (s 4(2)-(4)).
Operators of service stations not otherwise volume fuel retailers (s 10): Smaller retailers who operate or control service stations must register and provide returns as prescribed (ss 10-11). Transitional provisions historically required returns by operators for particular purposes (Schedule 1 Part 5).
Suppliers and buyers in the supply chain who are not registered persons but who do business with registered persons (s 19(2)(b)-(c)): Investigators may require information or records from anyone the investigator reasonably believes has supplied or been supplied ethanol, biodiesel, petrol or diesel fuel in relation to a registered person. So upstream suppliers, transporters and intermediate traders can be compelled to provide information.
Government actors and advisers: The Minister, the Secretary, Department employees and Expert Panel members are participants with duties, advisory functions and secrecy obligations (ss 24-25). IPART is given regulatory functions (s 17A), and the Minister has prosecutorial consent power (s 28).
The general motoring public is an indirect affected group: the Act contemplates potential effects on retail prices and product availability (s 9C(1)(c)), and is framed to enable suspension of minima to avoid adverse impacts on motorists’ fuel prices or on food supplies (s 9C(1)(c)-(e)).
Who pays: compliance costs will be borne by volume fuel retailers and primary wholesalers through procurement of compliant biofuels, changes to supply arrangements, record keeping and reporting, and potential capital or operational changes to provide E10 at service stations. Who decides: Ministerial decisions on exemptions, suspensions and prosecutions are central (ss 9B, 9C, 28), but those decisions are operationally constrained by statutory referral to the Expert Panel (ss 9B(2), 9C(2)) and by IPART’s pricing role (s 17A).
The Act’s structure concentrates technical decision-making (pricing, market monitoring, suitability of exemptions/suspensions) in public agencies (IPART, the Expert Panel and the Minister) while imposing compliance obligations on private fuel businesses, with regulations able to extend or refine affected classes (s 4(2), s 4A(2)).
Key duties and rights
Duties
Ensure minimum biofuel shares: Volume fuel retailers must meet the minimum ethanol and biodiesel percentages for each relevant period (ss 6-7). Only biofuels that meet the biofuel sustainability standard count (ss 6(3), 7(3)).
Availability obligation: Volume fuel retailers must ensure petrol-ethanol blend is available for sale at each volume fuel service station in a manner complying with regulations (s 8).
Registration and keeping registration up-to-date: Primary wholesalers, volume fuel retailers and other service station operators must register as required by an order of the Secretary and keep details current (s 10(1), (3)). The Secretary must publish a register of volume fuel retailers (s 10(2)).
Returns and records: Registered persons must provide returns as required by the regulations (s 11(1)). Returns must include volumes of petrol, ethanol, diesel and biodiesel and other matters the regulations specify (s 11(2)). Persons must keep records necessary to furnish returns and in forms and periods prescribed by regulations (s 12).
Cooperation with investigators: Persons subject to investigation notices must provide information, produce records and appear if required (s 19(1)-(3)). Investigators have powers to enter premises, inspect and seize records and take samples (s 20).
Secrecy duties for specific officeholders: The Minister, the Secretary, Department employees and Expert Panel members must not record or divulge information acquired in exercising functions under the Act, except in defined circumstances (s 25).
Rights, defences and administrative mechanisms
Defences to criminal charges for non-compliance: A volume fuel retailer prosecuted for breaching a minimum biofuel requirement can rely on a statutory defence if it proves it took regulatory steps to comply, took all reasonable steps, or that compliance was not economically viable at the time for specified reasons (s 9A(2)). Economic viability may be shown because the wholesale price of ethanol exceeded IPART’s reasonable wholesale price determination (s 9A(2)(c)(i)), or on other specified or prescribed grounds (s 9A(2)(c)(iii)-(iv); s 9A(2)(d)(i)-(iii)).
Exemptions: The Minister may grant exemptions on application where the applicant can demonstrate facts that would amount to a defence, or where exemption is reasonable to allow time to take steps to establish a defence, or where compliance would risk public health/safety, or on other regulatory grounds (s 9B(1)(a)-(d)). Exemptions can be conditional, partial, time-limited or indefinite (s 9B(3)-(6)).
Suspensions: The Minister may suspend a minimum biofuel requirement by Gazette order for specified reasons (s 9C(1)), including industry-wide shortages, economic unviability, risks to public health or potential adverse effects on food supply or the retail price of petrol/diesel. Suspensions may be partial or time limited; indefinite suspensions must be periodically reviewed (s 9C(3)-(6)).
Procedural protections and constraints: Before granting exemptions or suspensions the Minister must refer the proposed action to the Expert Panel and consider its advice (ss 9B(2), 9C(2)). IPART must take into account the minimum biofuel requirements and disregard any exemptions in determining a reasonable wholesale price for ethanol (s 17A(2)(b)).
Administrative access to information: The Secretary must publish a register and the Minister may publish compliance information, including the names of non-compliant persons, with regulatory exceptions to protect commercial-in-confidence information (s 23).
Operational rights and constraints: IPART can make price determinations and monitor markets (s 17A), but it is not required to hold hearings when conducting investigations under s 17A(5). Prosecutions are subject to a written-consent requirement from the Minister (s 28). Penalty notices may be issued by authorised officers and are governed by the Fines Act 1996 (s 29).
In short, the Act mixes duties that bind private industry (supply proportions, availability, registration and reporting) with discretionary public powers (exemptions, suspensions, prosecutions) that are constrained by statutory procedural checks (Expert Panel referrals, IPART determinations) and by defences tied to economic viability and prescribed steps (s 9A).
Penalties and enforcement
Sanctions in the Act are a mix of criminal penalties, administrative penalty notices, and investigatory tools designed to detect and prove contraventions.
Criminal penalties
Minimum biofuel breaches: A volume fuel retailer who fails to comply with a minimum biofuel requirement is guilty of an offence. Maximum penalty for a first offence is 500 penalty units; for second or subsequent offences, 5,000 penalty units (s 9A(1)).
Registration failures: Failure to register or to keep registration up-to-date under s 10 attracts a maximum penalty of 100 penalty units (s 13(1A)).
Returns and records offences: Failure to furnish required returns or providing false or misleading returns attracts up to 500 penalty units for a first offence and 5,000 for subsequent offences (s 13(1)). Failure to keep or retain required records or making false/misleading records carries the same maxima (s 13(2)). There is a reasonable-excuse defence for failures to keep records (s 13(3)).
Interference with investigators: Refusing to comply with or obstructing an investigator, or furnishing false information, attracts a maximum penalty of 50 penalty units (s 21).
Administrative and summary procedures
Proceedings are to be disposed of summarily in the Local Court or the Supreme Court in its summary jurisdiction (s 27(1)). If brought in the Local Court the maximum monetary penalty the court can impose is 500 penalty units despite higher statutory maxima (s 27(2)).
Time limit: Offence proceedings must be commenced within two years of the alleged offence (s 27(3)).
Prosecution consent: Proceedings may be instituted only with the written consent of the Minister (s 28). This centralises initiation of criminal enforcement.
Penalty notices: Authorised officers (Department employees authorised in writing by the Secretary) may issue penalty notices for offences prescribed by regulation as penalty notice offences (s 29(1)-(2), (6)). The Fines Act 1996 applies to penalty notices issued under this section (s 29(3)). The regulations set the penalty notice amounts within statutory maxima (s 29(4)).
Investigatory powers and evidentiary provisions
Appointment and authority: The Secretary appoints investigators (s 18). Investigators receive certificates of authority (s 18(2)) and must produce them on request when exercising functions under the Part (s 20(5)).
Compulsory information powers: An investigator with reasonable grounds may serve a written notice requiring persons to provide information in writing, produce records, or appear to give evidence and produce records (s 19(1)). The persons who can be compelled are those registered under s 10, those believed to have supplied or been supplied by registered persons, and others connected by supply chains (s 19(2)(a)-(c)).
Entry, inspection and seizure: Investigators may enter business premises, require production of records, inspect and copy records, seize records necessary for evidence, require answers to questions, take fuel samples for analysis and require assistance from owners or occupiers (s 20(2)-(3)). Residential parts of premises are protected without occupier consent (s 20(4)). Seized records may be retained until completion of proceedings but the person from whom they were seized must be given certified copies within a reasonable time (s 22(1)-(2)).
Use of evidence: Copies certified by investigators are admissible as equal in validity to originals (s 22(2)).
Secrecy and immunity
Secrecy: The Minister, the Secretary, Department employees and Expert Panel members are prohibited from making records of or divulging information acquired under the Act except for specified purposes (s 25(2)-(4)), with criminal penalties up to 50 penalty units or 12 months imprisonment (s 25(2)).
State liability: The Act expressly excludes State liability for enactment or operation of the Act, exercise or failure to exercise functions under the Act, or any statement or conduct relating to ethanol or biodiesel regulation (s 26(1)). The section defines compensation broadly and identifies the State as Crown within the Crown Proceedings Act 1988 (s 26(2)).
Enforcement architecture implications
Investigatory powers are broad for Department-appointed investigators, including seizure and sampling (ss 18-22).
Prosecutions are summary only and capped at a Local Court-imposed 500 penalty units unless brought in a higher jurisdiction, but final monetary exposure per the Act’s maximums may be higher (s 27(2)).
Ministerial consent is a gate on prosecution (s 28), and publication of non-compliance is possible (s 23), subject to protection of commercial-in-confidence matters by regulation.
The combination of investigatory reach, publication powers and statutory defences tied to IPART price determinations shapes enforcement incentives and defence strategies in practice.
How it interacts with other laws
The Act is constructed to operate alongside multiple existing statutes and administrative instruments; the text expressly cross‑references and incorporates provisions from other legislation and subordinate instruments.
Direct statutory cross-references in the Act
Interpretation Act 1987: Section 3 expressly notes that the Interpretation Act contains definitions and interpretive provisions that affect this Act. That means ordinary interpretive rules (definitions, past tense, gender, schedules) will apply (s 3 note).
Independent Pricing and Regulatory Tribunal Act 1992: IPART’s investigatory and reporting powers under s 17A are framed to apply Divisions 6 and 7 of Part 3 of the IPART Act to investigations or reports under s 17A, subject to the exceptions in s 17A(4)-(5). Section 17A(5) disapplies s 21(1) of the IPART Act to require hearings for investigations under s 17A, so IPART may conduct price investigations without holding hearings that would otherwise be required.
Fines Act 1996: Penalty notices issued under s 29 are governed by the Fines Act 1996 (s 29(3)), including payment and non-prosecution consequences under that Act.
Crown Proceedings Act 1988: The definition of “the State” for the limited liability provision in s 26 refers to the Crown within the meaning of the Crown Proceedings Act 1988 (s 26(2)), thus linking the Act to Crown proceedings rules.
Government Sector Employment Act 2013: Schedule 2 (cl 7(1)) disapplies provisions of that Act relating to employment of public service employees for appointed Expert Panel members, so that appointed members need not be treated as public service employees for those provisions.
Other Acts and regulations: The Act allows the Governor to make regulations not inconsistent with it (s 30). The text also contemplates the use, adoption or incorporation of publications (s 30(3)) and grants the Secretary and Minister powers to delegate functions to Department employees or classes authorised by regulation (s 31). The regulations are central to operationalising definitions, thresholds and procedures (s 30).
Regulatory architecture and administrative overlap
IPART’s role: IPART must determine a “reasonable wholesale price” for ethanol (s 17A). The Act requires IPART to consider what wholesale price would make the wholesale and retail markets economically viable, and to disregard statutory exemptions when doing so (s 17A(2)(a)-(b)). That places IPART’s determinations at the intersection of market monitoring and statutory enforcement methodology. IPART may issue and publish guidelines and is required to make those available to the public, including on its website (s 17A(6)-(8)).
Expert Panel: The Expert Panel comprises senior officials and industry appointees (s 24). Its procedural rules are in Schedule 2. The Panel’s advice is a prerequisite for ministerial action on exemptions and suspensions (ss 9B(2), 9C(2)). The Panel must observe conflict-of-interest and disclosure rules (Schedule 2 cl 6).
Regulation-making: Many operational matters are reserved to regulation (s 30). That means the practical interface with other regulatory regimes (eg fuel quality, transport, environmental or planning law) will be determined by subordinate instruments and interagency arrangements rather than by text in the Act itself.
Tensions and coordination points
Interaction between statutory defences and IPART determinations: The economic-viability defence in s 9A(2)(c)(i) is explicitly tied to the wholesale price as determined by IPART (s 17A). Because IPART must disregard exemptions (s 17A(2)(b)), price determinations are made on the basis of full application of minima, which could differ from market conditions under existing exemptions. That creates potential timing and coordination issues where IPART’s determinations do not reflect temporary suspensions/exemptions.
Information sharing and secrecy: Section 25 creates confidentiality obligations for public officers and Expert Panel members but allows disclosures for Act purposes, prosecutions, or on Secretary certification in the public interest (s 25(4)). The regulations may add persons or bodies to those who may receive information (s 25(4)(d)), and those recipients are bound by secrecy obligations (s 25(5)). This interacts with evidence rules in criminal proceedings and with public interest disclosure frameworks.
Delegation and administrative law: The Minister and Secretary may delegate functions to Department employees or classes authorised by regulation (s 31). Delegation (and any abuse thereof) will be subject to administrative law principles; the Act excludes delegation only of the delegation power itself.
Overall, the Act sits within a mixed statutory network that blends market oversight via IPART, ministerial discretion constrained by Expert Panel advice, and operational detail by regulation. Agencies involved will need to co‑ordinate statutory roles and subordinate rule‑making to avoid inconsistent signals to the market.
Amendment history
The Act text contains internal amendment annotations that record multiple rounds of legislative change; the available notes in the text provide a partial statutory history.
Original and subsequent consolidations: The Act is cited as the Biofuels Act 2007 (s 1). The marginal notes across provisions record amendments and renumberings.
2009 amendments: Several provisions were substituted, inserted and renumbered by 2009 instruments. Many of the substantive provisions in Parts 2 and 3 were substituted in 2009 (see notes to Pt 2 and ss 3, 4 and others indicating “Subst 2009 No 11, Sch 1”). The 2009 amendments introduced the scheme of minimum ethanol content schedules, defined volume fuel retailer concepts and instituted registration/reporting mechanisms.
2010-2012 changes: The Act records amendments in 2010 and 2012 (for example s 3: Am 2010 No 59, Sch 2.9; s 24: Am 2010 No 59, Sch 2.9; Schedule 2 inserted in 2012 No 92 Sch 1). The 2012 changes added Schedule 2 provisions on Expert Panel constitution and procedure (see Schedule 2 heading).
2016 amendments: Significant changes were made by the Biofuels Amendment Act 2016, including insertion of Part 3A (s 17A) giving IPART functions, renumberings and the addition of the enforcement and registration architecture in their modern form (pt 3A (s 17A): Ins 2016 No 12, Sch 2 [31]; multiple renumbering notes).
2017 and later amendments: Notes indicate further amendments and additions to the Expert Panel composition and procedure in 2017 (s 24 note: 2017 No 22, Sch 1.2; Schedule 2 cl changes noted 2017 No 25, Sch 1.6) and subsequent amendments through 2021 and 2024 (s 24 notes include 2021 No 23, Sch 1.2 and 2024 No 53, Sch 3.1, 2024 No 82, Sch 1.3).
2013-2015 and other incremental changes: The notes to s 23 and other sections record amendments in 2013 No 95, 2014 No 33 and 2015 No 58. These amendments adjusted publication and confidentiality provisions, among other matters.
The instrument contains several explicit renumberings and repeals recorded in marginal notes. Schedule 1 records transitional arrangements consequent on the 2009 Amendment Act and later amending Acts, including conversion of previously registered volume fuel sellers to registration under s 10 upon commencement of the 2016 amendments (Schedule 1 Part 6 cl 7).
What the notes do not provide: the Act text includes marginal notes recording the amending instruments and the specific schedule/clauses, but it does not provide explanatory memoranda, legislative history debates, or implementation instruments in full. For detailed amendment texts (eg precise wording changes and legislative intent recorded during passage), consultees must refer to the amending Acts cited in the marginal notes (for example Biofuel (Ethanol Content) Amendment Act 2009; Biofuels Further Amendment Act 2012; Biofuels Amendment Act 2016) and their associated parliamentary materials.
Litigation history
The Act text supplied contains no judicial decisions or case citations. It does not identify any litigation testing its provisions, nor does it list precedent or appellate authority bearing on interpretation. The absence of named cases in the statutory text means the document itself does not record any litigation history.
Practical search points for users seeking litigation history or interpretive guidance:
Court databases: Search Local Court, District Court and Supreme Court records in NSW for prosecutions and civil proceedings referencing the Biofuels Act 2007.
AustLII and other free legal repositories: Query the Act title and section numbers to locate reported and unreported decisions that engage interpretation issues (for example, s 9A defences, s 9B exemptions, s 17A IPART functions or s 25 secrecy).
Administrative review and tribunal records: Check whether decisions of the Expert Panel, IPART reports under s 17A or Ministerial rulings on exemptions/suspensions have been the subject of judicial review applications in the Supreme Court (Administrative & Equal Opportunity Division) or Federal courts (concerning Commonwealth aspects where jurisdiction overlaps).
Parliamentary and regulator publications: IPART’s published reports and guidelines (s 17A(6)-(8)) and Ministerial Gazette notices for suspensions/exemptions (s 9C editorial note) may inform how the Act has been administered and could be material in legal disputes.
Given the Act’s mix of summary criminal offences, administrative discretion (exemptions and suspensions), and investigatory powers, likely litigation themes include: challenge to Ministerial decision-making or asserted failure to follow required procedure (for example, alleged failure to refer proposals to the Expert Panel), evidentiary disputes arising from seized or copied records (s 22), or disputes over the scope of IPART’s pricing determinations and their use in defences to prosecution (s 17A, s 9A). None of these themes can be confirmed from the Act text alone.
Because the Act sets a two-year statute of limitations for commencing proceedings (s 27(3)), historical enforcement activity beyond that period would not appear in active prosecution lists but might be visible in administrative reports. Users seeking authoritative litigation history should combine searches of court databases, IPART publications and Ministerial Gazette notices.
Gotchas
Several features of the Act present practical traps where compliance, enforcement and administrative practice diverge from intuitive assumptions. These points derive directly from the statutory text.
Measurements count blends by combined volume: For compliance calculations, the Act requires counting the combined volumes of petrol plus ethanol in petrol-ethanol blends and diesel plus biodiesel in biodiesel blends (s 9(1)-(2)). That can produce different percentage outcomes than counting only the hydrocarbon portion; procurement and sales reporting systems need to align with this statutory measurement rule.
Exemptions and suspensions do not relieve registration and reporting obligations: The Act’s notes emphasise that exemptions or suspensions from minima do not affect obligations to comply with registration, return and record-keeping sections (see notes to s 9B and s 9C). Businesses cannot avoid reporting or registration simply because they hold an exemption from minima.
Ministerial centralisation of prosecutions: Proceedings for offences may be instituted only with the Minister’s written consent (s 28). This centralisation can delay or prevent prosecutions and creates a political and administrative filter on enforcement. Practitioners should note that prosecutorial consent is a precondition for instituting proceedings.
Local Court cap: If a prosecution is brought in the Local Court, the maximum monetary penalty the Local Court may impose is 500 penalty units even if the statutory maximum for the offence is higher (s 27(2)). Prosecutors and defence counsel must factor this into pleading and forum strategy.
Expert Panel referral requirement: The Minister cannot grant or vary an exemption, or suspend minima, without first referring the proposed action to the Expert Panel and considering its advice (ss 9B(2), 9C(2)). Procedural non‑compliance with that referral requirement could be a ground for judicial review of Ministerial decisions.
IPART price determinations and the economic-viability defence: The statutory defence for minimum biofuel breaches allows reliance on the price of ethanol exceeding IPART’s reasonable wholesale price (s 9A(2)(c)(i)). But IPART is required to disregard statutory exemptions when making that determination (s 17A(2)(b)). That can create a timing mismatch: a retailer can be unable to comply because of market prices, yet IPART’s baseline for “reasonable” wholesale price ignores any current exemptions affecting market conditions. This is a specific statutory interaction that can complicate reliance on that defence.
Secrecy creates evidence and disclosure constraints: The Act imposes secrecy obligations on Ministers, Department employees and Expert Panel members, with criminal penalties and limited exceptions (s 25). Those secrecy constraints may restrict access to administrative material that would otherwise assist compliance or defence, unless disclosure is permitted under the Act’s narrow carve-outs.
Wide investigatory powers and compelled production: Investigators can require persons who have supplied or been supplied by registered persons to produce records and answer questions (s 19(2)(b)-(c)). This extends the investigatory footprint beyond registered firms and can reach third-party suppliers, transporters and contract manufacturers.
State immunity from liability: Section 26 excludes State liability for acts or omissions in relation to the Act and its operation. Businesses impacted by administrative decisions or actions under the Act will have limited avenues for compensation from the State for consequential losses arising from official acts.
Delegation of functions: The Minister and Secretary may delegate any function under the Act (other than the power of delegation) to Department employees or classes authorised by regulation (s 31). Practitioners should not assume that decisions will be made personally by Ministers or the Secretary; delegated officials may make decisions, including potentially those with substantial practical effect.
Regulations will matter: The Act leaves many terms and procedures to regulation (s 30). Key operational definitions (eg the sales-volume threshold for a volume fuel service station), the biofuel sustainability standard, forms and periods for returns, the prescription of penalty notice offences and amounts, and the regulations relating to exemptions are all matters for subordinate rule-making. Compliance requires monitoring relevant regulations and Secretary or Ministerial orders.
These “gotchas” are concrete rules and consequences set out in the Act. They should shape compliance programmes: verify measurement conventions, maintain robust record systems capable of producing certified copies for investigators, track IPART reports and guidelines, and factor in procedural checks (Expert Panel referrals, Ministerial consent) when forecasting enforcement outcomes.
How to comply
Practical compliance requires legal, accounting and operational steps tied to the statutory requirements in the Act. Below is a compliance checklist mapped to specific provisions.
Determine whether the business is captured
Assess whether you are a volume fuel retailer under s 4A: either operate/control a volume fuel service station (three or more fuel types on sale and a sales-volume threshold prescribed by regulation) or operate/control 20+ service stations none of which are volume fuel service stations (s 4A(1)). If a primary wholesaler (s 4) or operator of any service station, prepare to register under s 10.
Register as required and maintain registration
Follow the Secretary’s order published on the NSW legislation website for registration steps (s 10(1)). Keep registration details current within any time the Secretary allows (s 10(3)). Check the publicly available register for accuracy (s 10(2)).
Record-keeping systems and measurement
Implement transaction-level systems to capture volumes of petrol, ethanol, diesel and biodiesel sold in each relevant period (quarterly by default, s 3(1A)). Ensure measurement method complies with s 9: count the combined volumes in blends (s 9(1)-(2)). Retain records for the period prescribed in regulations (s 12(3)) and in a form/regime compliant with regulations (s 12(2)-(3)).
Returns
Provide returns as required by regulations, containing total volumes of petrol (including blends), ethanol (in blends), diesel (including blends) and biodiesel (in blends) and any other regulated information (s 11(1)-(2)). Monitor the regulations for frequency and form requirements.
Achieve and document compliance with minimum biofuel requirements
For each relevant period, calculate percentages and ensure ethanol/biodiesel volumes meet minima set in ss 6-7. Only count biofuels that meet the biofuel sustainability standard prescribed by regulation (s 6(3), s 7(3)). Maintain procurement documentation showing feedstocks, supplier certifications and sustainability credentials.
Availability obligation for E10
For each volume fuel service station, ensure petrol-ethanol blend is offered in a manner that complies with regulations (s 8). Document fuel types available and signage or dispensing arrangements required by regulation.
Monitor IPART and market signals
IPART determines and periodically reviews a reasonable wholesale price for ethanol (s 17A(1)). Monitor IPART determinations and reports because they feed into the statutory defence for economic viability (s 9A(2)(c)(i)) and into Ministerial decision-making around exemptions/suspensions. Obtain contemporaneous market pricing data and maintain procurement records to support any economic-viability defence.
If non-compliance is likely, pursue procedural remedies
Apply for a Ministerial exemption under s 9B where appropriate. The application must satisfy statutory criteria (s 9B(1)) and will be referred to the Expert Panel whose advice the Minister must consider (s 9B(2)). If industry-wide shortages, price spikes or other grounds exist, consider whether a Ministerial suspension under s 9C is appropriate; again, referral to the Expert Panel is required (s 9C(2)).
Prepare for investigatory powers
Ensure staff know how to cooperate with investigators: produce records, answer questions and provide certified copies of seized records as required (ss 19-22). Train staff to preserve records and to escalate any investigator notices to legal/compliance teams. Note that investigators are Department employees appointed by the Secretary (s 18).
Manage privacy and confidentiality risks
Be aware of s 25 secrecy obligations applying to Government actors; where information is shared under the Act for regulatory purposes, confirm confidentiality protections. For commercial-in-confidence concerns, understand the regulations’ protections for publication under s 23(4).
Use regulatory avenues and monitor subordinate instruments
The Act delegates many operational matters to regulations (s 30). Subscribe to the NSW legislation website and the Secretary’s orders for updates to thresholds, reporting requirements, penalty notice specifications and the biofuel sustainability standard. Ensure contract terms with suppliers anticipate regulatory changes.
Internal compliance controls and audit trails
Establish internal audit trails for fuel sourcing, sustainability certification, inventory reconciliation and sales reporting. Because the Act’s enforcement is summary and can lead to severe penalties (s 9A), maintain contemporaneous documentation showing steps taken to comply or to mitigate inability to comply (s 9A(2)(a)-(d)).
Legal strategy for enforcement risk
If facing alleged non‑compliance, assess statutory defences in s 9A(2), particularly steps required by regulation to be taken to comply, “all reasonable steps” defences, and economic viability grounds linked to IPART determinations. Remember Ministerial consent is required to commence prosecutions (s 28); consider administrative remedies such as applying for exemptions or negotiating compliance plans.
Governance and appointment considerations
If seeking to engage with the Expert Panel (eg via applications or submissions), be aware of the Panel’s composition and conflict-of-interest rules (s 24, Schedule 2 cl 6). Check whether appointed members have declared relevant pecuniary interests (Schedule 2 cl 6(3)).
Compliance costs will include procurement of sustainable biofuels, possible price pass-through arrangements, changes to point-of-sale infrastructure to offer E10, and administrative costs for registration, returns and record-keeping. Organisations should quantify these and engage commercially with suppliers to secure certified biofuel volumes; legal teams should map the statutory defence triggers and prepare evidence dossiers that record “steps taken” and market price data aligned to IPART determinations.
In sum, compliance is operational, contractual and regulatory. Businesses should align procurement contracts, IT sales records, and reporting workflows to statutory measurement rules and reporting cadences, monitor IPART outputs and regulatory amendments, and use the Act’s administrative remedies where market conditions justify relief.
petrol-ethanol blend means petrol that contains ethanol (such as the fuel known as E10).
primary wholesaler is defined in section 4.
regular unleaded petrol means unleaded petrol that has a research octane number of less than 95.
relevant period—see subsection (1A).
Secretary means the Secretary of the Department.
service station means a building or place used for the fuelling of motor vehicles involving the sale by retail of petrol or diesel fuel, whether or not any other fuel or other product is sold there and whether or not the building or place is used for any other purpose.
volume fuel retailer is defined in section 4A.
volume fuel retailer’s service station means—
(a) a service station operated by the volume fuel retailer, or
(b) a service station the operation of which is controlled by the volume fuel retailer,
whether or not the service station is a volume fuel service station.
volume fuel service station means a service station at which—
(a) 3 or more types of petrol or diesel fuel are available for sale by retail for the fuelling of motor vehicles at the service station (for example, regular unleaded petrol, unleaded petrol that has a research octane number of not less than 95 and diesel fuel), and
(b) the total volume of petrol and diesel fuel sold by retail for the fuelling of motor vehicles at the service station (calculated as set out in section 9) exceeds a threshold prescribed by the regulations.
Note—
The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.
(1A) Each of the 3-month periods that starts at the beginning of October, January, April and July in each year is a relevant period for the purposes of this Act. The regulations can change what is a relevant period for the purposes of this Act.
(2) Notes included in this Act do not form part of this Act.
s 3: Am 2009 No 11, Sch 1 [3]–[7]; 2010 No 59, Sch 2.9 [1]; 2012 No 30, Sch 1 [1]; 2012 No 92, Sch 1 [1] [2]; 2014 No 88, Sch 2.3 [2]; 2015 No 58, Sch 3.11 [1]; 2016 No 12, Sch 2 [2]–[4]; 2016 No 55, Sch 3.2 [1]; 2024 No 53, Sch 3.1[1].
4 Primary wholesalers
4 Primary wholesalers
4 Primary wholesalers
(1) In this Act—
primary wholesaler means a fuel wholesaler who operates or supplies petrol or diesel fuel from any of the following facilities (whether or not in New South Wales) in connection with fuel wholesaling—
(a) an oil refinery,
(b) a shipping facility,
(c) a facility to which petrol or diesel fuel is shipped by pipeline from an oil refinery or a shipping facility,
(d) a facility to which petrol or diesel fuel is supplied by pipeline from a facility referred to in paragraph (c).
(2) The regulations may include any other fuel wholesaler or class of fuel wholesalers in the definition of primary wholesaler.
(3) A regulation under subsection (2) may apply to a fuel wholesaler generally or may be limited so as to apply only to the primary wholesaling of petrol or to the primary wholesaling of diesel fuel.
(4) The regulations may exclude a person or class of persons from the definition of primary wholesaler.
s 4: Subst 2009 No 11, Sch 1 [8].
4A Volume fuel retailer
4A Volume fuel retailer
4A Volume fuel retailer
(1) In this Act—
volume fuel retailer means—
(a) a person who operates or controls the operation of a volume fuel service station (whether or not the person also operates or controls the operation of any other service station and whether or not the person is also a fuel wholesaler), or
(b) a person who operates or controls the operation of 20 or more service stations, none of which are volume fuel service stations.
(2) The regulations may include any other person or class of persons in the definition of volume fuel retailer.
(3) The regulations may exclude a person or class of persons from the definition of volume fuel retailer.
s 4A: Ins 2009 No 11, Sch 1 [9]. Subst 2016 No 12, Sch 2 [5].
5 Act applies only to sales to person in NSW or for delivery in NSW
5 Act applies only to sales to person in NSW or for delivery in NSW
5 Act applies only to sales to person in NSW or for delivery in NSW
(1) This Act applies to the sale of petrol or diesel fuel by wholesale or retail to a person in New South Wales or for delivery in New South Wales (whether or not the sale is made in New South Wales).
(2) This Act does not apply to a sale of petrol or diesel fuel by one wholesaler to another or by one retailer to another.
(2A) (Repealed)
(3) A sale of petrol or diesel fuel is considered to be a sale for delivery in New South Wales if the terms (whether express or implied) of the sale or any contract for the sale—
(a) require either party to the sale to deliver, or arrange delivery of, the petrol or diesel fuel into or within New South Wales, or
(b) contemplate delivery of the petrol or diesel fuel into or within New South Wales.
(4) The regulations may exclude any sale or class of sales from the application of all or specified provisions of this Act.
s 5: Am 2009 No 11, Sch 1 [10]–[12]; 2012 No 95, Sch 1.3 [1]; 2016 No 12, Sch 2 [6] [7].
Part 2 Minimum biofuel requirements
Part 2 Minimum biofuel requirements
Part 2 Minimum biofuel requirements
pt 2: Subst 2009 No 11, Sch 1 [13].
6 Minimum ethanol requirement for volume fuel retailers
6 Minimum ethanol requirement for volume fuel retailers
6 Minimum ethanol requirement for volume fuel retailers
(1) A volume fuel retailer must ensure that the volume of ethanol sold by the retailer (in petrol-ethanol blend) during a relevant period is not less than the minimum ethanol percentage of the total volume of all petrol (including petrol-ethanol blend) sold by the retailer during the relevant period.
(2) The minimum ethanol percentage is—
(a) 2% for any relevant period before a relevant period to which paragraph (b) or (c) applies, or
(b) 4% for a relevant period that starts on or after 1 January 2010 other than a relevant period to which paragraph (c) applies, or
(c) 6% for a relevant period that starts on or after 1 January 2011.
(3) Only ethanol that complies with a biofuel sustainability standard may be counted towards the volume of ethanol sold for the purposes of this section.
s 6: Subst 2009 No 11, Sch 1 [13]. Am 2016 No 12, Sch 2 [8]
7 Minimum biodiesel requirement for volume fuel retailers
7 Minimum biodiesel requirement for volume fuel retailers
7 Minimum biodiesel requirement for volume fuel retailers
(1) A volume fuel retailer must ensure that the volume of biodiesel sold by the retailer (in biodiesel blend) during a relevant period is not less than the minimum biodiesel percentage of the total volume of all diesel fuel (including biodiesel blend) sold by the retailer during the relevant period.
(2) The minimum biodiesel percentage is—
(a) 2% for any relevant period before a relevant period to which paragraph (b) applies, or
(b) 5% for a relevant period that starts on or after 1 January 2012.
(3) Only biodiesel that complies with a biofuel sustainability standard may be counted towards the volume of biodiesel sold for the purposes of this section.
s 7: Subst 2009 No 11, Sch 1 [13]. Am 2016 No 12, Sch 2 [9]
8 Availability of petrol-ethanol blend for retail sale
8 Availability of petrol-ethanol blend for retail sale
8 Availability of petrol-ethanol blend for retail sale
A volume fuel retailer must ensure that, at each of the retailer’s volume fuel service stations, petrol-ethanol blend is available for sale by retail for the fuelling of motor vehicles in a manner that complies with the regulations.
s 8: Subst 2009 No 11, Sch 1 [13]. Rep 2012 No 30, Sch 1 [2]. Ins 2016 No 12, Sch 2 [10].
9 Method for determining volumes of petrol and biodiesel
9 Method for determining volumes of petrol and biodiesel
9 Method for determining volumes of petrol and biodiesel
(1) For the purpose of determining the volume of petrol sold by a volume fuel retailer, the volume of petrol that is petrol-ethanol blend is to be determined as the combined volume of petrol and ethanol in the petrol-ethanol blend (that is, by including the volume of the ethanol).
(2) For the purpose of determining the volume of diesel fuel sold by a volume fuel retailer, the volume of diesel fuel that is biodiesel blend is to be determined as the combined volume of diesel fuel and biodiesel in the biodiesel blend (that is, by including the volume of the biodiesel).
(3) The regulations may provide for the way in which the volume of petrol, ethanol, diesel fuel and biodiesel is to be determined for the purposes of this Act.
s 9: Subst 2009 No 11, Sch 1 [13]. Am 2016 No 12, Sch 2 [11].
9A Offence—failure to comply with minimum biofuel requirements
9A Offence—failure to comply with minimum biofuel requirements
9A Offence—failure to comply with minimum biofuel requirements
(1) A volume fuel retailer who fails to comply with a minimum biofuel requirement is guilty of an offence.
Maximum penalty—
(a) in the case of a first offence—500 penalty units, or
(b) in the case of a second or subsequent offence—5,000 penalty units.
(2) It is a defence to a prosecution for failure to comply with a minimum biofuel requirement if the defendant proves that—
(a) the defendant has taken the steps set out in the regulations to comply with the requirement, or
(b) the defendant has otherwise taken all reasonable steps to comply with the requirement, or
(c) in the case of a requirement imposed by section 6 or 8—at the time of the alleged offence, it was not economically viable for the defendant to comply with the requirement—
(i) because the wholesale price of ethanol for use in the production of petrol-ethanol blend exceeded the reasonable wholesale price determined by IPART under section 17A (1) (a), or
(ii) because of the price at which the defendant was reasonably able to produce or obtain petrol-ethanol blend for retail sale, or
(iii) on grounds set out in the regulations, or
(iv) on any other grounds, or
(d) in the case of a requirement imposed by section 7—at the time of the alleged offence, it was not economically viable for the defendant to comply with the requirement—
(i) because of the price at which the defendant was reasonably able to produce or obtain biodiesel blend for retail sale, or
(ii) on grounds set out in the regulations, or
(iii) on any other grounds.
s 9A: Ins 2016 No 12, Sch 2 [12].
9B Exemptions from minimum biofuel requirements
9B Exemptions from minimum biofuel requirements
9B Exemptions from minimum biofuel requirements
(1) The Minister may, on application, exempt a volume fuel retailer from compliance with a specified minimum biofuel requirement if the retailer satisfies the Minister—
(a) that, if the retailer were prosecuted for failure to comply with the requirement, the retailer would have a defence to the prosecution, or
Note—
See section 9A (2).
(b) that the exemption is reasonable in order to allow the retailer a period within which to take the steps required to establish a defence to a prosecution for failure to comply with the requirement, or
(c) that compliance by the retailer may result in a risk to public health or safety, or
(d) that the exemption should be granted on other grounds specified in the regulations, or
(e) that there are other extraordinary circumstances justifying the grant of the exemption.
(1A) (Repealed)
(2) The Minister is not to grant an exemption unless the proposed exemption has been referred to the Expert Panel and the Minister has considered any advice of the Panel on the proposed exemption.
(3) An exemption can be granted subject to conditions.
(3A) A person must not contravene a condition of an exemption.
Maximum penalty—
(a) in the case of a first offence—500 penalty units, or
(b) in the case of a second or subsequent offence—5,000 penalty units.
(4) An exemption can be granted as a partial exemption specifying a percentage that is less than the minimum ethanol percentage or minimum biodiesel percentage applicable under section 6 or 7.
Note—
A partial exemption has the effect that the relevant section then applies to require that the volume of ethanol (in petrol ethanol blend) or volume of biodiesel (in biodiesel blend) sold by the volume fuel retailer concerned is not less than the specified minimum ethanol percentage or specified minimum biodiesel percentage of the total volume of all petrol or diesel fuel sold by that retailer during the relevant period.
(5) An exemption may—
(a) apply generally or be limited in its application by reference to specified exceptions or factors, and
(b) apply differently according to different factors of a specified kind, and
(c) be
This is an opening excerpt, not the complete document.