An Act to provide for the payment of bounty on the production of certain fuel ethanol
Part 1—Preliminary
1 Short title [see Note 1]
This Act may be cited as the Bounty (Fuel Ethanol) Act 1994.
2 Commencement [see Note 1]
This Act commences on the day on which it receives the Royal Assent.
3 Object
The object of this Act is to provide for the payment of bounty on the production in Australia of certain fuel ethanol to assist the development of a competitive, robust and ecologically sustainable fuel ethanol industry.
4 General administration of Act
The Chief Executive Officer of Customs has the general administration of this Act other than Part 3.
5 Definitions
(1) In this Act, unless the contrary intention appears:
AAT means the Administrative Appeals Tribunal.
AAT Act means the Administrative Appeals Tribunal Act 1975.
approved form means a form approved by the CEO in writing.
authorised officer means a person who is an authorised officer for the purposes of this Act because of an appointment under section 37.
biomass feedstocks means feedstocks sourced from plants grown in Australia but does not include feedstocks sourced from fossil fuels.
bountiable fuel ethanol has the meaning given by section 7.
bounty means bounty under this Act.
bounty year means year 1, 2 or 3.
CEO means the Chief Executive Officer of Customs.
Collector, in relation to a State or Territory, has the same meaning as in the Customs Act 1901.
fuel ethanol means ethanol produced in Australia for use as a transport fuel in Australia.
greenhouse gas emissions means anthropogenic emissions of those gaseous constituents of the atmosphere that absorb and re‑emit infra‑red radiation including, in particular, emissions of carbon dioxide, methane, nitrous oxide, chlorofluorocarbons, halons and other halocarbons, oxides of nitrogen, non-methane volatile organic compounds, carbon monoxide, sulphur oxides and sulphur hexafluoride.
person assisting, in relation to the execution of a warrant, means the person authorised by the authorised officer to assist in the execution of the warrant.
production allocation, in relation to year 1, 2 or 3, means the allocation to a registered person, under Part 3, of a quantity of bountiable fuel ethanol in relation to which bounty would be available.
registered person means a person registered by the Minister under section 13, 17 or 21.
sale period means the 6 months beginning on 1 July 1994 and each succeeding 6 months that occurs during the bounty years to which an application for registration under Part 3 relates.
year 1 means the 1994‑95 financial year.
year 2 means the 1995‑96 financial year.
year 3 means the 1996‑97 financial year.
(2) For the purposes of this Act, 2 persons are associates of each other if, and only if:
(a) both being natural persons:
(i) they are connected by a blood relationship or by marriage or by adoption; or
(ii) one of them is an officer or director of a body corporate controlled, directly or indirectly, by the other; or
(b) both being bodies corporate:
(i) both of them are controlled, directly or indirectly, by a third person (whether or not a body corporate); or
(ii) the same person (whether or not a body corporate) is in a position to cast, or control the casting of 25% or more of the maximum number of votes that might be cast at a general meeting of each of them; or
(c) one of them is a body corporate that is directly or indirectly controlled by the other (whether or not a body corporate); or
(d) one of them is an individual who is an employee, officer or director of the other (whether or not a body corporate); or
(e) they are members of the same partnership; or
(f) they are trustees or beneficiaries, or one of them is a trustee and the other is a beneficiary, of the same trust.
7 Meaning of bountiable fuel ethanol
For the purposes of this Act, bountiable fuel ethanol is the total volume of fuel ethanol produced from biomass feedstocks in a bounty year by a producer, if that volume is at least 350,000 litres.
8 Calculation of production of bountiable fuel ethanol in a bounty year
In calculating, for any purpose of sections 14 to 21 (inclusive), the amount of a registered person’s production of bountiable fuel ethanol in a bounty year, any bountiable fuel ethanol for which a claim is not made by 31 July next following the end of that bounty year is to be disregarded.
9 Uniformity
A power conferred on any person by this Act must not be exercised in such a manner that bounty would not be uniform throughout the Commonwealth within the meaning of paragraph 51(iii) of the Constitution.
9A Application of the Criminal Code
Chapter 2 of the Criminal Code applies to all offences created by this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Part 2—Bounty
10 Specification of bounty
(1) Bounty is payable in accordance with this Act on the production, in Australia, of bountiable fuel ethanol.
(2) Bounty in respect of the production in a bounty year of bountiable fuel ethanol is payable to the producer of the ethanol.
(3) A producer of bountiable fuel ethanol is not entitled to be paid bounty in respect of particular bountiable fuel ethanol unless the producer is a registered person at the time of production of that ethanol and remains so registered until making the claim in respect of that ethanol.
11 Certain circumstances in which bounty is not payable
Bounty is not payable in respect of a bounty year in respect of the production in that year of bountiable fuel ethanol that the CEO is satisfied was, or will be, exported, either directly, or indirectly through another country or other countries, to New Zealand.
Part 3—Registration and allocation
12 Applying for registration
(1) A person (the applicant) who, at the time of making an application, produces, or intends to produce, bountiable fuel ethanol at premises in Australia may apply, in writing, to the Minister for registration for the purposes of this Act under this section in relation to:
(a) years 1, 2 and 3; or
(b) years 2 and 3; or
(c) year 3.
(2) An application for registration must be received by the Minister before:
(a) if the application relates to years 1, 2 and 3—1 July 1994; or
(b) if the application relates to years 2 and 3—31 July 1995; or
(c) if the application relates to year 3—31 July 1996.
(3) An application must be in the approved form.
(4) An application must contain the following:
(a) information showing that there will be production in Australia by the applicant of at least 350,000 litres of fuel ethanol from biomass feedstocks in each bounty year to which the application relates;
(b) information showing the proposed level of production by the applicant of fuel ethanol in each bounty year to which the application relates and in the 1997‑98 financial year;
(c) a description of the applicant’s project for the production of fuel ethanol, including:
(i) whether it is an existing project or a new project; and
(ii) information on new capital expenditure on the project; and
(iii) a timetable for the improvement of an existing plant or the construction of a new plant; and
(iv) particulars of the experience and qualifications of the applicant’s senior management having responsibilities in relation to the project; and
(v) information showing how the applicant’s senior management will contribute to the technical and marketing success of the project;
(d) particulars of the applicant’s business operations and the financial position and financial resources of the applicant in so far as it is relevant to the project;
(e) if the applicant is a body corporate—information about the ownership and control of the applicant;
(f) details of any current or planned research and development in relation to fuel ethanol production, distribution and use;
(g) particulars of the applicant’s strategy for achieving commercial production of fuel ethanol after year 3, without assistance of bounty, including:
(i) the means of reducing the cost of producing fuel ethanol over the bounty years to which the application relates; and
(ii) the estimated price at which the fuel ethanol will be sold by the applicant during each sale period occurring during the bounty years to which the application relates; and
(iii) the means of securing a guaranteed source of biomass feedstocks;
(h) particulars of the applicant’s distribution and marketing strategy for the fuel ethanol including particulars of how that strategy will assist in the reduction of emissions of environmental pollutants (including lead, carbon monoxide, hydrocarbons, including benzene and other aromatic hydrocarbons, and particulates) that are associated with fuel use;
(i) the applicant’s strategy for reducing the level of greenhouse gas emissions relating to the sourcing, production, distribution and use of fuel ethanol below that relating to the sourcing, production, distribution and use of the same quantity of petroleum-based fuel into the market in which the applicant proposes to sell the fuel ethanol;
(j) the applicant’s strategy for addressing long‑term and short‑term environmental considerations relating to the project, including the use of waste or by‑product materials as a biomass feedstock;
(k) means by which progress in implementing the strategies referred to in paragraphs (g), (h) and (i) can be measured.
13 Registration applications for years 1, 2 and 3 and consequent production allocation for year 1
(1) As soon as practicable after 1 July 1994 but not later than 31 August 1994, the Minister must decide, in relation to each person who has applied for registration for years 1, 2 and 3:
(a) whether to register the person for those years; and
(b) if the Minister decides to register the person—what production allocation to fix.
(2) The Minister must not register the person, or fix a production allocation, unless the Minister is satisfied, having regard to:
(a) all the applications for registration under this section; and
(b) the criteria in section 22; and
(c) any other matter the Minister thinks is relevant;
that the person is likely, as a result of that registration and allocation, to contribute significantly to the development of a competitive, robust and ecologically sustainable fuel ethanol industry.
(3) If the Minister decides to register a person and fix a production allocation, the Minister must, by signed notice given to the person:
(a) inform the person that the Minister has registered the person for the purposes of the Act for years 1, 2 and 3; and
(b) inform the person of the person’s production allocation fixed for year 1.
(4) If the Minister refuses to register a person, the Minister must, by signed notice given to the person:
(a) inform the person that the Minister has refused to register the person for years 1, 2 and 3; and
(b) specify the reasons why the Minister has so refused.
(5) The registration of a person under this Part is taken to have effect from 1 July 1994.
14 Production allocation for years 2 and 3 for a person registered for years 1, 2 and 3
(1) Subject to subsections (2) and (3) and to compliance with any prescribed conditions under section 23, a person who is registered for years 1, 2 and 3 (the registered producer) is taken to have the production allocations for years 2 and 3 as set out in the following table:
Bounty Year
Production Allocation
year 2
90% of the registered producer’s production allocation for year 1
year 3
90% of the registered producer’s production allocation for year 2
Note: In relation to the effect of additional allocations see subsections 16(1) and 20(1).
(2) Subject to subsection (3) and to compliance with any prescribed conditions under section 23, if a registered producer produces in year 1 less bountiable fuel ethanol than the producer’s production allocation for that year, the producer is taken to have production allocations for years 2 and 3 as set out in the following table:
Bounty Year
Production Allocation
year 2
90% of the registered producer’s production of bountiable fuel ethanol in year 1
year 3
90% of the registered producer’s production allocation for year 2
Note: In relation to the effect of additional allocations see subsections 16(2) and 20(2).
(3) Subject to compliance with any prescribed conditions under section 23, if a registered producer produces less bountiable fuel ethanol in year 2 than the producer’s production allocation for that year, the producer is taken to have a production allocation for year 3 of 90% of the producer’s production of bountiable fuel ethanol in year 2.
Note: In relation to the effect of additional allocations see subsection 20(2).
15 Additional production allocations for year 2
(1) A person registered for years 1, 2 and 3 may apply, in writing, to the Minister for an additional production allocation for year 2.
(2) An application for an additional production allocation must be received before 31 July 1995.
(3) An application must be in the approved form.
(4) As soon as practicable after 31 July 1995 but not later than 31 August 1995, the Minister must decide:
(a) whether each person:
(i) who is registered in respect of years 1, 2 and 3; and
(ii) who has applied for an additional production allocation for year 2;
should be granted such an additional allocation; and
(b) if the Minister decides to grant an additional production allocation in respect of any such person—what additional production allocation for year 2 to fix.
(5) The Minister must not decide to grant a person an additional production allocation, or fix the quantity of such an additional allocation, unless the Minister is satisfied, having regard to:
(a) all the applications by persons registered under section 13; and
(b) all the applications by persons seeking registration under section 17; and
(c) all the applications for additional production allocations under this section; and
(d) the criteria in section 22; and
(e) any other matter the Minister thinks is relevant;
that the capacity of the person to contribute significantly to the development of a competitive, robust and ecologically sustainable fuel ethanol industry is likely, as a result of the additional production allocation, to be enhanced.
(6) If the Minister decides to grant a person an additional production allocation for year 2, the Minister must, by signed notice given to the person:
(a) inform the person that the Minister has granted the person an additional production allocation for year 2; and
(b) inform the person of the additional production allocation fixed for year 2.
(7) If the Minister refuses to grant a person an additional production allocation for year 2, the Minister must, by signed notice given to the person:
(a) inform the person that the Minister has refused to grant the person an additional production allocation for year 2; and
(b) specify the reasons why the Minister has so refused.
(8) The grant of an additional production allocation for year 2 under this section is taken to have effect from 1 July 1995.
16 Working out a person’s production allocation for year 2 when the person is granted an additional allocation for year 2
(1) If a person is granted an additional production allocation for year 2 under section 15, the person’s production allocation for year 2 for the purposes of subsection 14(1) is 90% of the person’s production allocation for year 1 plus the amount of the additional production allocation.
Note: Example: A person has a production allocation of 1,000,000 litres of bountiable fuel ethanol for year 1. In year 2 the person is granted an additional production allocation of 200,000 litres of bountiable fuel ethanol. The person’s production allocation for year 2 of 1,100,000 litres of bountiable fuel ethanol is worked out by adding 90% of 1,000,000 litres and 200,000 litres.
(2) If a person is granted an additional production allocation for year 2 under section 15, the person’s production allocation for year 2 for the purposes of subsection 14(2) is 90% of the person’s production of bountiable fuel ethanol in year 1 plus the amount of the additional production allocation.
Note: Example A person has a production allocation of 1,200,000 litres of bountiable fuel ethanol for year 1 but only produces 1,000,000 litres of bountiable fuel ethanol in that year. In year 2 the person is granted an additional allocation of 50,000 litres. The person’s production allocation for year 2 of 950,000 litres of bountiable fuel ethanol is worked out by adding 90% of 1,000,000 litres and 50,000 litres.
17 Registration applications for years 2 and 3 and consequent production allocation for year 2
(1) As soon as practicable after 31 July 1995 but not later than 31 August 1995, the Minister must decide, in relation to each person who has applied for registration for years 2 and 3:
(a) whether to register the person for those years; and
(b) if the Minister decides to register the person—what production allocation to fix for year 2.
(2) The Minister must not register a person, or fix a production allocation, unless the Minister is satisfied, having regard to:
(a) all the applications by persons registered under section 13; and
(b) all the applications by persons seeking registration under this section; and
(c) all the applications by persons seeking additional production allocations under section 15; and
(d) the criteria in section 22; and
(e) any other matter the Minister thinks is relevant;
that the person is likely, as a result of that registration and allocation, to contribute significantly to the development of a competitive, robust and ecologically sustainable fuel ethanol industry.
(3) If the Minister decides to register a person and fix a production allocation for year 2, the Minister must, by signed notice given to the person:
(a) inform the person that the Minister has registered the person for the purposes of the Act for years 2 and 3; and
(b) inform the person of the production allocation fixed for year 2.
(4) If the Minister refuses to register a person, the Minister must, by signed notice given to the person:
(a) inform the person that the Minister has refused to register the person for years 2 and 3; and
(b) specify the reasons why the Minister has so refused.
(5) The registration of a person under this section is taken to have effect from 1 July 1995.
18 Production allocation for year 3 for a person registered for years 2 and 3
(1) Subject to subsection (2) and to compliance with any prescribed conditions under section 23, a person who is registered for years 2 and 3 is taken to have a production allocation in year 3 of 90% of the person’s production allocation in year 2.
Note: In relation to the effect of an additional allocation see subsection 20(1).
(2) Subject to compliance with any prescribed conditions under section 23, if a person who is registered for years 2 and 3 produces less bountiable fuel ethanol in year 2 than the person’s production allocation for that year, the person is taken to have a production allocation for year 3 of 90% of the person’s production of bountiable fuel ethanol in year 2.
Note: In relation to the effect of an additional allocation see subsection 20(2).
19 Additional production allocations for year 3
(1) A person registered for years 1, 2 and 3 or years 2 and 3 may apply, in writing, to the Minister for an additional production allocation for year 3.
(2) An application for an additional production allocation must be received before 1 July 1996.
(3) An application must be in the approved form.
(4) As soon as practicable after 31 July 1996 but not later than 31 August 1996, the Minister must decide:
(a) whether each person:
(i) who is already registered in respect of years 1, 2 and 3 or years 2 and 3; and
(ii) who has applied for an additional production allocation for year 3;
should be granted such an additional allocation; and
(b) if the Minister decides to grant an additional production allocation in respect of any such person—what additional production allocation for year 3 to fix.
(5) The Minister must not decide to grant a person an additional production allocation, or fix the quantity of such an additional allocation, unless the Minister is satisfied, having regard to:
(a) all the applications by persons registered under sections 13 and 17; and
(b) all the applications by persons seeking registration under section 21; and
(c) all the applications by persons granted an additional production allocation under section 15; and
(d) all the applications by persons seeking additional production allocations under this section; and
(e) the criteria in section 22; and
(f) any other matter the Minister thinks is relevant;
that the capacity of the person to contribute significantly to the development of a competitive, robust and ecologically sustainable fuel ethanol industry is likely, as a result of the additional production allocation, to be enhanced.
(6) If the Minister decides to grant a person an additional production allocation for year 3, the Minister must, by signed notice given to the person:
(a) inform the person that the Minister has granted the person an additional production allocation for year 3; and
(b) inform the person of the additional production allocation fixed for year 3.
(7) If the Minister refuses to grant a person an additional production allocation for year 3, the Minister must, by signed notice given to the person:
(a) inform the person that the Minister has refused to grant the person an additional production allocation for year 3; and
(b) specify the reasons why the Minister has so refused.
(8) The grant of an additional production allocation for year 3 under this section is taken to have effect from 1 July 1996.
20 Working out a person’s production allocation for year 3 when the person is granted an additional production allocation for year 3
(1) If a person is granted an additional production allocation for year 3 under section 19, the person’s production allocation for year 3 under subsection 14(1) or 18(1) is 90% of the person’s production allocation for year 2 plus the amount of the additional production allocation for year 3.
Note: Example: A person’s production allocation for year 2 is 2,000,000 litres of bountiable fuel ethanol. In year 3 the person is granted an additional production allocation of 400,000 litres of bountiable fuel ethanol. The person’s production allocation for year 3 of 2,200,000 litres of bountiable fuel ethanol is worked out by adding 90% of 2,000,000 litres and 400,000 litres.
(2) If a person is granted an additional production allocation for year 3 under section 19, the person’s production allocation for year 3 under subsection 14(3) or 18(2) is 90% of the person’s production of bountiable fuel ethanol in year 2 plus the amount of the additional production allocation.
Note: Example: A person has a production allocation of 1,200,000 litres of bountiable fuel ethanol for year 2 but only produces 1,000,000 litres of bountiable fuel ethanol in that year. In year 3 the person is granted an additional allocation of 400,000 litres. The person’s production allocation for year 3 of 1,300,000 litres of bountiable fuel ethanol is worked out by adding 90% of 1,000,000 litres and 400,000 litres.
21 Registration applications for year 3 and consequent production allocations for year 3
(1) As soon as practicable after 31 July 1996 but not later than 31 August 1996, the Minister must decide, in relation to each person who has applied for registration for year 3:
(a) whether to register the person for that year; and
(b) if the Minister decides to register the person—what production allocation to fix for that year.
(2) The Minister must not register a person, or fix a production allocation unless the Minister is satisfied, having regard to:
(a) all the applications by persons registered under sections 13 and 17; and
(b) all the applications by persons seeking registration under this section; and
(c) all the applications by persons granted an additional production allocation under section 15; and
(d) all the applications by persons seeking additional production allocations under section 19; and
(e) the criteria in section 22; and
(f) any other matter the Minister thinks is relevant;
that the person is likely, as a result of that registration and allocation, to contribute significantly to the development of a competitive, robust and ecologically sustainable fuel ethanol industry.
(3) If the Minister decides to register a person and fix a production allocation for year 3, the Minister must, by signed notice given to the person:
(a) inform the person that he or she has been registered for the purposes of the Act for year 3; and
(b) inform the person of the production allocation fixed for year 3.
(4) If the Minister refuses to register a person, the Minister must, by signed notice given to the person:
(a) inform the person that the Minister has refused to register the applicant for year 3; and
(b) specify the reasons why the Minister has so refused.
(5) The registration of a person under this section is taken to have effect from 1 July 1996.
22 Criteria for the purposes of applications under sections 13, 15, 17, 19 and 21
The criteria for the purposes of paragraphs 13(2)(b), 15(5)(d), 17(2)(d), 19(5)(e) and 21(2)(e) are as follows:
(a) whether there will be production in Australia by the applicant of at least 350,000 litres of fuel ethanol from biomass feedstocks produced in Australia in each bounty year to which the application relates;
(b) whether the applicant’s financial position, financial resources and management are sufficient to carry out the applicant’s project for the production of fuel ethanol;
(c) the feasibility of the applicant’s strategy for moving to commercial production of fuel ethanol after year 3, without assistance of bounty;
(d) the feasibility and features of the applicant’s marketing strategy for the fuel ethanol;
(e) the feasibility of the applicant’s strategy for reducing the level of greenhouse gas emissions relating to the sourcing, production, distribution and use of fuel ethanol during the bounty years to which the application relates to a level below that relating to the sourcing, production, distribution and use of the same quantity of the petroleum‑based fuel into the market of which the applicant proposes to sell the fuel ethanol;
(f) the feasibility and features of the applicant’s strategy for addressing long‑term and short‑term environmental considerations relating to the project;
(g) the feasibility and features of the applicant’s strategy for the distribution of fuel ethanol;
(h) the quality of the measures to be used by the applicant to measure progress in implementing the applicant’s strategies referred to in paragraphs 12(4)(g), (h) and (i).
23 Prescribed conditions applying to a registered person
The regulations may prescribe conditions to be complied with by a registered person in connection with:
(a) the production of bountiable fuel ethanol; and
(b) the provision of information relating to that production.
24 Cancellation of registration
(1) This section applies to a registered person if, at any time, the Minister becomes satisfied, in respect of the person, that the person:
(a) has failed to comply with a condition prescribed under section 23; or
(b) has been convicted of an offence against this Act or the regulations.
(2) The Minister may cancel the registration of the person to whom this section applies by causing a written notice:
(a) stating that the registration of the person has been cancelled; and
(b) specifying the reasons for cancelling the registration of the person;
to be given to the person.
Part 4—Payment of bounty
25 Amount of bounty that a registered person may claim
A registered person is entitled to be paid an amount of bounty in respect of bountiable fuel ethanol produced in a bounty year that does not exceed the bounty that would be payable in respect of the person’s production allocation for that year.
26 Claims for payment of bounty
(1) A registered person who claims to be entitled to be paid an amount of bounty may make a claim for payment of the amount in accordance with this section.
(2) Subject to subsection (3), a claim in respect of the production of bountiable fuel ethanol must:
(a) be in accordance with the appropriate approved form; and
(b) include such information as is required by the form; and
(c) be signed and witnessed as required by section 33; and
(d) be made with a Collector for a State or Territory, or with the CEO, at any time after the production of that ethanol is completed.
(3) A registered person who produces bountiable fuel ethanol in a particular bounty year:
(a) may only make one claim in respect of that ethanol in each successive period of one month starting on the day the person becomes entitled to claim such bounty; and
(b) may not claim bounty in respect of that ethanol after 31 July next following the end of that year.
(4) As soon as practicable after the making of the claim, the CEO must examine the claim and cause such inquiries (including inquiries involving the exercise of powers under sections 39 and 50) as the CEO thinks necessary.
(5) If, as a result of the CEO’s examination and inquiries, the CEO is satisfied that the claim complies with subsection (2) and that the claimant is (or, if certain estimates are correct, is) otherwise entitled to be paid an amount of bounty in respect of the production to which the claim relates:
(a) except where paragraph (b) applies—approve, in writing, payment of the amount; or
(b) if:
(i) the amount is different from the amount for which the claim was made; and
(ii) the difference between those amounts is less than $200; and
(iii) the CEO is satisfied that the difference is not attributable to the claimant deliberately overclaiming or underclaiming the amount of the bounty;
approve, in writing, payment of the amount claimed.
(6) If the CEO is not satisfied of all of the matters required for payment of a claim under subsection (5), the CEO must refuse, in writing, to approve payment of bounty in respect of the goods to which the claim relates.
(7) If the CEO makes a decision in relation to a claim:
(a) that approves payment of an amount that is less than the amount claimed; or
(b) that refuses to approve payment of the claim;
the CEO must give to the claimant a written notice setting out the decision and the reasons for the decision.
27 Rate of bounty
Subject to sections 25 and 28, the bounty payable in respect of the production of bountiable fuel ethanol in a bounty year is 18 cents per litre.
28 Amount of bounty proposed to be available during bounty period
(1) Subject to subsections (2), (3) and (4), it is the intention of the Parliament that the total amount available for payment of bounty in respect of bountiable fuel ethanol produced in a bounty year is the amount set out in the following table:
Bounty year in which production occurs
Amount to be available for payment of bounty$
year 1
6,000,000
year 2
8,000,000
year 3
11,000,000
(2) If an amount available for payment of bounty in respect of year 1 or year 2 is not all paid out in respect of bountiable fuel ethanol produced in that year, it is the intention of the Parliament that the amount available in respect of production in the year following that year be increased by the amount not so paid out.
(2A) Any increase in the amount available for the payment of bounty in respect of production in a bounty year following another bounty year (the earlier year) takes place after decisions have been made under section 26 in relation to all claims for payment of bounty in respect of production in the earlier year.
(3) The amount available for payment of bounty specified under subsection (1) in respect of bountiable fuel ethanol produced in a bounty year is reduced by an amount that represents the cost of administering this Act for that bounty year.
(4) The amount that represents the cost of administering this Act in respect of a bounty year is the amount set out in the following table:
Bounty year
Cost of administering this Act$
year 1
177,000
year 2
177,000
year 3
262,000
29 Availability of money for payment of bounty
(1) Despite any other provision of this Act, if the CEO thinks that the amount available in a bounty year for the payment of bounty will be insufficient to meet valid claims in that year for bounty, the CEO may, in accordance with procedures set out in the regulations, make such payments in such order as the CEO thinks appropriate.
(2) Despite any other provision of this Act, if money is not appropriated by the Parliament in respect of a financial year for the purposes of making payments of bounty, a person is not entitled to be paid bounty in respect of that year.
30 Variation of excessive claim
(1) This section applies to a person who has made a claim under section 26 (whether or not the claim has been dealt with under subsection 26(5)) and who subsequently knows that the claim is or was, because of inadvertent error, for an amount of bounty in respect of the production of bountiable fuel ethanol that exceeds the amount of bounty that the person is or was entitled to claim in respect of that production by more than $200.
(2) The person must, within 21 days after discovering the excess, acknowledge the excess in accordance with subsection (3).
Penalty: 30 penalty units.
(3) An acknowledgment must:
(a) be in accordance with the appropriate approved form; and
(b) include such information as is, and such estimates as are, required by the form; and
(c) be signed and witnessed as required by section 33; and
(d) be made with a Collector for a State or Territory or with the CEO.
(4) If an acknowledgment under subsection (2) relates to a claim under section 26 that has not been dealt with under subsection 26(5), the claim must be dealt with under that subsection as if it had been amended in accordance with the acknowledgment.
(5) As soon as practicable after receiving an acknowledgment under subsection (2), the CEO must examine the acknowledgment and make such inquiries (including inquiries under sections 39 and 50) as the CEO thinks necessary.
(6) If, as a result of the CEO’s examination and inquiries, the CEO is satisfied that there has been an overpayment of bounty under a claim by more than $200:
(a) the CEO must serve on the person who made the claim referred to in subsection (1) a demand for the repayment of the amount of the overpayment; and
(b) the person is liable to repay that amount to the Commonwealth.
31 Other adjustments of claims
(1) Subject to subsection (2), if the CEO becomes satisfied, otherwise than after examining an acknowledgment made under subsection 30(2), that there has been an overpayment of bounty under a claim by more than $200:
(a) the CEO must serve on the person who made the claim a demand for repayment of the amount of the overpayment; and
(b) the person is liable to repay that amount to the Commonwealth.
(2) If:
(a) the amount of an overpayment referred to in subsection (1) is not more than $25,000; and
(b) the CEO is satisfied that:
(i) the overpayment occurred because of an error that did not involve any failure on the part of the person to comply with this Act or the regulations; and
(ii) the repayment of the amount of the overpayment would be unreasonable or would cause undue hardship to that person;
the CEO does not have to serve a demand for repayment of the amount of the overpayment.
(3) If:
(a) the amount of an overpayment referred to in subsection (1) is not more than $25,000; and
(b) the CEO is satisfied that:
(i) the cost of trying to recover the overpayment is so high; and
(ii) the amount likely to be recovered as a result of trying to recover the overpayment is so low;
that taking action to recover the overpayment would not be justified;
the CEO does not have to serve a demand for repayment of the amount of the overpayment.
(4) If, in accordance with subsection (2), the CEO does not serve a demand for repayment of the amount of an overpayment, particulars of the amount must be included in the return under section 60 for the year in which the CEO so refrained.
32 Adjustment of production allocations in certain cases where action taken under section 30 or 31
(1) If:
(a) bountiable fuel ethanol is produced in a particular bounty year; and
(b) a variation of a person’s claim in respect of that ethanol is made under section 30 or 31 after 31 July next following that year; and
(c) the variation was necessary because the amount of bountiable fuel ethanol produced in that year or a part of that year was overstated in a claim, whether by inadvertence or otherwise; and
(d) had the amount of bountiable fuel ethanol been correctly stated in the claim, the total production of bountiable fuel ethanol for the year would have been less than the person’s production allocation for the year;
the person’s production allocation for any subsequent bounty year is the amount that it would have been if the statement of bountiable fuel ethanol in the claim had been correct.
(2) If the overstatement was not an inadvertent one, this section does not imply that the overstatement may not be a ground for prosecuting the person or for cancelling the person’s registration.
33 Forms
If, under this Act, a claim or acknowledgment made by a person in accordance with an approved form is required to be signed and witnessed as required by this section, the form must:
(a) if the person is an individual—be signed personally in the presence of a witness by:
(i) the individual; or
(ii) another individual authorised by the first‑mentioned individual to sign forms under this Act on behalf of the first‑mentioned individual; and
(b) if the person is a body corporate—be:
(i) under the seal of the body corporate; or
(ii) signed by an individual, authorised by the body corporate to sign forms under this Act on behalf of the body corporate, in the presence of a witness; and
(c) if the form is required to be signed by an individual in the presence of a witness—state the name and address of the witness and contain a declaration signed by the witness stating that the form was signed in the presence of the witness.
Part 5—Administration
Division 1—General administrative provisions
34 Accounts
(1) A person is not entitled to bounty unless:
(a) the person keeps, in writing, such accounts and other documents, in the English language, as correctly record and explain:
(i) such particulars relating to the production of bountiable fuel ethanol in respect of which bounty is, or may become, payable as are specified by the CEO in a notice published in the Gazette; and
(ii) such other particulars (if any) in relation to the production of bountiable fuel ethanol as are specified by the CEO by written notice given to the person; and
(b) the person retains those accounts and other documents for a period of 3 years after the day on which a claim under subsection 26(1) for bounty was made in respect of the production of the bountiable fuel ethanol concerned.
(2) For the purposes of this section, accounts and other documents or other records are taken to be kept, in writing, in the English language, if they are kept in a form in which they are readily accessible and readily convertible into writing in the English language.
35 Securities
(1) The CEO may, by written notice given to a person to whom bounty could become payable, require the person to give a specified amount of security for:
(a) compliance by the person with the provisions of this Act and the regulations; or
(b) the purpose of an undertaking given by the person for the purposes of this Act or the regulations.
(2) Security may be given by bond, guarantee or cash deposit, or by all or any of those methods.
(3) If a person is required to give security, the person is not entitled to bounty unless the person gives security in accordance with the requirement.
Division 2—Enforcement provisions
36 Inspection powers
A reference in this Division to an inspection power is a reference to a power to:
(a) inspect any bountiable fuel ethanol; or
(b) inspect any activity in relation to the production of such bountiable fuel ethanol; or
(c) inspect accounts and other documents relating to an activity in respect of the production of bountiable fuel ethanol; or
(d) take extracts from, or make copies of, accounts and other documents referred to in paragraph (c).
37 Appointment of authorised officers
(1) The CEO may, by writing signed by him or her, appoint:
(a) a specified officer; or
(b) the officer for the time being holding, or performing the duties of, a specified office; or
(c) an officer included in a specified class of officers;
to be an authorised officer for the purposes of this Act.
(2) In subsection (1):
officer means an Officer of Customs within the meaning of the Customs Act 1901.
38 Identity cards
(1) The CEO must issue to every authorised officer a card identifying the holder as an authorised officer.
(2) An identity card must:
(a) be in an approved form; and
(b) incorporate a recent photograph of the person.
(3) As soon as practicable after a person ceases to be an authorised officer, a person must return the card to the CEO.
Penalty for a contravention of this subsection: 1 penalty unit.
39 Entry on premises occupied by registered person
(1) For the purpose of this Act, an authorised officer may, at all reasonable times, enter premises occupied by a registered person, other than residential premises, and may, on so entering, exercise inspection powers.
(2) The occupier or person in charge of premises that may be entered under subsection (1) must provide the authorised officer with all reasonable facilities and assistance for the effective exercise of the powers of the officer under this section.
Penalty: 30 penalty units.
(3) An authorised officer is not entitled to exercise any of the powers referred to in subsection (1) if:
(a) the occupier or person in charge of the premises has required the authorised officer to produce proof of his or her identity for inspection by the occupier or person in charge; and
(b) the authorised officer fails to produce his or her identity card.
40 Entry on other premises
(1) An authorised officer may:
(a) with the consent of the occupier of any premises; or
(b) under a warrant issued under section 41 in respect of the premises;
enter the premises and exercise any inspection powers in relation to those premises.
(2) An authorised officer is not entitled to exercise any of the powers referred to in paragraph (1)(a) if:
(a) the occupier or person in charge of the premises has required the authorised officer to produce proof of his or her identity for inspection by the occupier or person in charge; and
(b) the authorised officer fails to produce his or her identity card.
41 Issuing of inspection warrants
(1) If an authorised officer has reasonable grounds for believing that premises are:
(a) premises where bountiable fuel ethanol has been, is being, or is intended to be, produced; or
(b) premises where an activity in relation to the production of bountiable fuel ethanol is taking place or is intended to take place; or
(c) premises where there are kept any accounts or other documents relating to an activity in respect of the production of bountiable fuel ethanol;
the authorised officer may apply to a magistrate for a warrant authorising the authorised officer to:
(d) enter the premises; and
(e) exercise inspection powers in relation to those premises.
(2) A magistrate must issue a warrant on an application under subsection (1) if the magistrate is satisfied, by information on oath or affirmation, that:
(a) there are reasonable grounds for believing that the premises to which the application relates are premises referred to in paragraph (1)(a), (b) or (c); and
(b) those premises are not premises that may be entered under subsection 39(1); and
(c) the occupier of the premises has not given consent for the authorised officer to enter the premises and exercise the inspection powers of an authorised officer in relation to those premises under paragraph 40(1)(a).
(3) A magistrate must not issue a warrant unless an authorised officer has given the magistrate, either orally (on oath or affirmation) or by affidavit, any other information the magistrate may require about the grounds on which the issue of the warrant is being sought.
(4) A warrant issued under this Division must:
(a) describe the premises to which the warrant relates; and
(b) state the inspection powers of an authorised officer; and
(c) state the name of the authorised officer responsible for executing the warrant; and
(d) state the period for which the warrant remains in force, which must not be more than 7 days; and
(e) state whether the warrant may be executed at any time or at particular hours.
(5) Paragraph (4)(d) does not prevent the issue of successive warrants in relation to the same premises.
42 Availability of assistance and use of force in executing a warrant
(1) In executing a warrant:
(a) the authorised officer executing the warrant may obtain such assistance; and
(b) in the case of persons—the authorised officer or a person assisting who is a constable or Customs officer may use such force against persons; and
(c) in the case of things—the authorised officer or person assisting may use such force against things;
as is necessary and reasonable in the circumstances.
(2) In this section:
Customs officer means an officer of Customs within the meaning of the Customs Act 1901.
43 Specific powers available to authorised officers executing warrants
(1) If a warrant in relation to premises is being executed, the authorised officer and persons assisting executing the warrant may, if the warrant is still in force, complete the execution of the warrant after all of them temporarily stop the execution of the warrant and leave the premises:
(a) for not more than one hour; or
(b) for a longer period if the occupier of the premises consents in writing.
(2) If:
(a) the execution of a warrant is stopped by an order of a court; and
(b) the order is later revoked or reversed on an appeal; and
(c) the warrant is still in force;
the execution of the warrant may be completed.
44 Announcement before entry
Before the authorised officer executing a warrant or a person assisting the authorised officer enters premises under paragraph 41(1)(d), the authorised officer or person assisting the authorised officer must:
(a) announce that he or she is authorised by the warrant to enter the premises; and
(b) give any person on the premises an opportunity to allow entry into or onto the premises.
45 Details of warrant to be given to occupier etc.
(1) If a warrant in relation to premises is being executed and the occupier of the premises is present on the premises, the authorised officer executing the warrant must make available a copy of the warrant to the occupier.
(2) The authorised officer must identify himself or herself to the person at the premises.
(3) The copy of the warrant referred to in subsection (1) need not include the signature of the magistrate.
46 Use of equipment to exercise inspection powers
(1) An authorised officer or a person assisting may bring to premises any equipment reasonably necessary for the purpose of exercising the inspection powers of an authorised officer.
(2) The authorised officer or a person assisting may operate equipment already at premises to exercise the inspection powers of an authorised officer if the authorised officer or the person assisting believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.
(3) In this section:
premises means:
(a) premises that may be entered under subsection 39(1); or
(b) premises in relation to which a warrant has been issued under subsection 41(2); or
(c) other premises that an authorised officer has entered, and remains on, with the consent of the occupier.
47 Use of electronic equipment at premises
(1) The authorised officer or a person assisting may operate electronic equipment already at premises in order to exercise the inspection powers of an authorised officer if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.
(2) If the authorised officer or a person assisting believes on reasonable grounds that:
(a) accounts and other documents relating to an activity in respect of the production of bountiable fuel ethanol may be accessible by operating electronic equipment at the premises; and
(b) expert assistance is required to operate the equipment; and
(c) if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with;
he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard, or otherwise.
(3) The authorised officer or a person assisting must give notice to the occupier of the premises of his or her intention to secure equipment and of the fact that the equipment may be secured for up to 24 hours.
(4) The equipment may be secured:
(a) for a period not exceeding 24 hours; or
(b) until the equipment has been operated by the expert;
whichever happens first.
(5) If the authorised officer or a person assisting believes on reasonable grounds that the expert assistance will not be available within 24 hours, he or she may apply to a magistrate for an extension of that period.
(6) The authorised officer or a person assisting must give notice to the occupier of the premises of his or her intention to apply for an extension, and the occupier is entitled to be heard in relation to the application.
(7) The provisions of this Division relating to the issue of warrants apply, with such modifications as are necessary, to the issue of an extension.
(8) In this section:
premises means:
(a) premises that may be entered under subsection 39(1); or
(b) premises in relation to which a warrant has been issued under subsection 41(2); or
(c) other premises that an authorised officer has entered, and remains on, with the consent of the occupier.
48 Compensation for damage to electronic equipment
(1) If:
(a) damage is caused to equipment as a result of it being operated as mentioned in section 46 or 47; and
(b) the damage was caused as a result of:
(i) insufficient care being exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care being exercised by the person operating the equipment;
compensation for the damage is payable to the owner of the equipment.
(2) Compensation is payable out of money appropriated by the Parliament for the purpose.
(3) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises and his or her employees and agents, if they were available at the time, had provided any warning or guidance as to the operation of the equipment that was appropriate in the circumstances.
49 Offence of making false statements in applications for warrants
An authorised officer must not make, in an application for a warrant, a statement that the officer knows to be false or misleading in a material particular.
Penalty: Imprisonment for 2 years.
50 Powers to require persons to answer questions and produce documents
(1) This section applies if an authorised officer believes, on reasonable grounds, that a person is capable of giving information relevant to the operation of this Act in relation to an activity in respect of the production of bountiable fuel ethanol.
(2) An authorised officer may, by written notice given to the person, require that person:
(a) to give such information to the authorised officer:
(i) if the person is an individual—by writing signed by the individual; or
(ii) if the person is a body corporate—by writing signed by an officer authorised to sign on behalf of the body corporate;
within such reasonable period and in such manner as is specified in the notice; or
(b) to produce to the authorised officer such accounts or other documents in relation to an activity in respect of the production of bountiable fuel ethanol as are specified in the notice; or
(c) to attend at a reasonable time and place specified in the notice and there to answer questions in relation to an activity in respect of the production of bountiable fuel ethanol.
(3) A notice under subsection (2) requiring a person to produce an account or other document must set out the effect of section 137.2 of the Criminal Code.
52 Self‑incrimination etc. not ground for refusing to answer a question etc.
(1) A person is not excused from answering a question or producing any accounts or other documents when required to do so under section 50 on the ground that the answer to the question, or the production of the accounts or other documents might:
(a) tend to incriminate the person; or
(b) make the person liable to a penalty.
(2) The answer of the person to a question or the production by the person of an account or other document under section 50, or any information or thing (including any account or other document) obtained as a direct or indirect consequence of the answer or the production, is not admissible in evidence against the person in criminal proceedings other than a prosecution for an offence against section 136.1, 137.1 or 137.2 of the Criminal Code that relates to this Act.
53 Failure to attend or answer a question when required to do so
(1) This section applies if a registered person or a director, servant or agent of a registered person has failed to:
(a) attend; or
(b) answer a question; or
(c) produce any account or other document;
when required to do so under section 50.
(2) Bounty is not payable to the registered person, unless the CEO otherwise directs in writing, until that person has attended, answered the question or produced the account or other document or other record, as the case may be.
54 Power to examine on oath etc.
(1) An authorised officer may examine, on oath or affirmation, a person attending in accordance with a requirement under section 50 and, for that person, may administer an oath or affirmation to the person.
(2) The oath or affirmation to be made by a person for the purposes of subsection (1) is an oath or affirmation that the answers he or she will give to questions asked of him or her will be true.
55 Offences
(1) A person must not fail:
(a) to attend before an authorised officer; or
(b) to take an oath or make an affirmation; or
(c) to answer a question or produce an account or other document;
when so required under this Act.
Penalty: Imprisonment for 6 months.
(2) An offence against subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3), see subsection 13.3(3) of the Criminal Code.
(3A) A person must not refuse:
(a) to attend before an authorised officer; or
(b) to take an oath or make an affirmation; or
(c) to answer a question or produce an account or other document;
when so required under this Act.
Penalty: Imprisonment for 6 months.
(3B) Subsection (3A) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3B), see subsection 13.3(3) of the Criminal Code.
(4) A person must not be convicted of:
(a) both an offence against section 135.2 of the Criminal Code and an offence against or arising out of subsection 30(2) of this Act; or
(b) both an offence against section 135.2 of the Criminal Code and an offence against section 136.1, 137.1 or 137.2 of the Criminal Code;
in respect of the same claim for bounty.
(5) A reference in subsection (4) to a person being convicted of an offence includes a reference to an order being made under section 19B of the Crimes Act 1914 in relation to the person in respect of an offence.
57 Time for prosecutions
In spite of anything in any other law, proceedings for an offence against this Act may be brought within the period of 3 years after the commission of the offence.
58 Recovery of bounty on conviction
(1) If a person is convicted of an offence against subsection 30(2) of this Act or an offence against section 135.2, 136.1, 137.1 or 137.2 of the Criminal Code that relates to this Act, the court may, in addition to imposing a penalty, order the person to refund to the Commonwealth the amount of any bounty wrongfully obtained by the person because of the commission of the offence.
(2) If:
(a) a court makes an order under subsection (1) ordering a person to refund to the Commonwealth the amount of any bounty; and
(b) the court has civil jurisdiction to the extent of the amount;
the order is enforceable in all respects as a final judgment of the court in favour of the Commonwealth.
(3) If:
(a) a court makes an order under subsection (1) ordering a person to refund to the Commonwealth the amount of any bounty; and
(b) the court:
(i) does not have civil jurisdiction; or
(ii) has civil jurisdiction otherwise than to the extent of the amount;
the proper officer of the court must issue to the CEO a certificate in the prescribed form containing the prescribed particulars.
(4) The certificate may, in the prescribed manner and subject to the prescribed conditions (if any), be registered in a court having civil jurisdiction to the extent of the amount ordered to be refunded to the Commonwealth.
(5) On registration under subsection (4), the certificate is enforceable in all respects as a final judgment of the court in favour of the Commonwealth.
(6) The costs of registration of the certificate and other proceedings under this section are, subject to the prescribed conditions (if any), taken to be payable under the certificate.
59 Recovery of repayments
(1) This section applies if a person is liable to repay an amount (the amount) to the Commonwealth under subsection 30(6) or 31(1).
(2) The Commonwealth may recover the amount as a debt due to the Commonwealth.
(3) The amount may be deducted from any other amount that is payable to the person under this Act and if the first‑mentioned amount is so deducted, the other amount is, despite the deduction, taken to have been paid in full to the person.
Part 6—Miscellaneous
60 Return for Parliament
(1) The CEO must, as soon as practicable after the end of the 1994‑95 financial year and of each of the 3 subsequent financial years, give to the Minister a return setting out:
(a) the name and address of each person to whom bounty was paid in that financial year; and
(b) the amount of bounty paid to each person in that financial year; and
(c) such other particulars (if any) as are prescribed.
(2) The Minister must cause a copy of the return to be laid before each House of the Parliament within 15 sitting days of that House after the return is received by the Minister.
61 Application for review
(1) Applications may be made to the AAT for review of:
(a) a decision of the Minister under subsection 24(2) to cancel the registration of a registered person; or
(b) a decision of the CEO under subsection 26(6) refusing to approve payment of bounty; or
(c) a decision of the CEO to demand repayment of an amount under subsection 30(6); or
(d) a decision of the CEO to demand repayment of an amount under subsection 31(1); or
(e) a requirement by the CEO under section 35.
(2) In this section:
decision has the same meaning as in the AAT Act.
62 Appropriation
Payments of bounty must be made out of money appropriated by the Parliament for the purpose.
63 Regulations
The Governor‑General may make regulations prescribing all matters:
(a) permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act;
and in particular, prescribing penalties not exceeding 10 penalty units in respect of offences against the regulations.
Part Part 3 - Bounty (Fuel Ethanol) Act 1994 - Registration and allocation | Zoe