Practitioners and duty-holders should be alert to several aspects of the Act that could create unexpected exposure. First, the record-keeping obligations in s 21 apply to all petroleum retailers and wholesalers, not just those who once held a licence. The Act does not contain any exception for small-volume operators or occasional sellers. The definition of “petroleum retailing” is broad: it includes selling petroleum products by retail either alone or in conjunction with any other merchandise, and includes such business carried on as part of or in conjunction with any other business. A convenience store that sells a modest quantity of motor spirit is carrying on petroleum retailing and must therefore make and keep records of purchases of petroleum products. The record must be kept for five years unless the Commissioner authorises earlier destruction. For a small business, this could be an onerous requirement, especially if they are unaware of the obligation due to the Act’s obscure survival beyond its licensing heyday.
Second, the transportation-record obligations in s 22 are triggered by a tank capacity exceeding the prescribed capacity of 3000 litres. This is not a large tank; it is equivalent to about 3000 litres, which is common for small fuel delivery trucks and even some large utes with auxiliary tanks. If a business uses a vehicle-mounted tank exceeding 3000 litres to transport motor spirit or diesel fuel (even for its own use, not for sale), the person on whose behalf the products are transported must complete and give a transportation record to the carrier at or before the commencement of transportation. The carrier must ensure the record is in the vehicle at all times. Failure to do so is an offence carrying 20 penalty units, but more importantly, an inspector who reasonably suspects the tank exceeds 3000 litres may search the vehicle, request production of the record, and if no record is produced or the record is believed false, may require the vehicle to be moved to another place where the products are unloaded and may be seized. Even if no conviction follows, the products could be seized and held, causing disruption.
Third, the Act contains an extraterritorial reach: sales of petroleum products made outside Victoria are deemed to be made in Victoria if the terms of the sale (express or implied) require delivery into or within Victoria, or if they contemplate delivery into or within Victoria (s 2(1B)). This means that a wholesaler based in New South Wales who sells diesel fuel to a Victorian customer and arranges delivery to a depot in Victoria may be carrying on petroleum wholesaling in Victoria for the purposes of the Act, and thus subject to the record-keeping obligations in s 21(2). They must keep records of both sales and purchases of petroleum products that come within this deemed Victorian sale. The definition of “petroleum wholesaling” in s 2(1) is limited to selling motor spirit or diesel fuel for use only in propelling diesel-engined road vehicles, but that limitation may be hard to police.
Fourth, the Act’s penalty provisions attach criminal liability to the inclusion of false or misleading information in records or transportation documents. The penalties are high: 100 penalty units (individual) or 500 penalty units (body corporate) for false records under s 21(4) and s 18(2). This means that an inadvertent error in a transportation record , for example, an incorrect address or quantity , could theoretically constitute an offence if it is false or misleading in a material particular. However, the term “false or misleading in a material particular” imports a mental element; the prosecution would need to prove knowledge or recklessness, depending on the applicable fault element under the Crimes Act 1958 or common law. Nonetheless, the risk is real.
Fifth, the forfeiture provision in s 25 is triggered upon conviction for an offence against s 22 or s 23. This means that even a relatively minor failure (such as not having the transportation record in the vehicle at a particular moment) could result in the loss of the entire load of petroleum products, whose value could be many thousands of dollars. The Act does not require the products to forfeited only if they were the subject of the offence; any petroleum products seized from the person under s 24(3) or under the Business Franchise (Tobacco) Act 1974 are forfeited. There is no proportionality test.
Sixth, the Commissioner has absolute discretion under s 3(2) and (3) to determine membership of a petroleum wholesalers’ group. The term “absolute discretion” may preclude merits review, but not judicial review for legal error. A person who is deemed to be a member of a group and who wishes to be treated as independent must apply for a determination. If the Commissioner refuses, that refusal may have consequences for their record-keeping obligations (if a group is required to keep records jointly, for example, though that is not specified in the current Act). This section is a remnant from the licensing regime and may create confusion.
Seventh, the Act is read and construed as one with the Business Franchise (Tobacco) Act 1974 (s 1(2)). This means that definitions, rules of interpretation, and even some provisions from that Act may apply unless inconsistent. The Tobacco Act, however, has also been substantially amended. Practitioners should check the current version of that Act for any operative definitions.
Eighth, the Act provides for an overpayment recovery mechanism only in relation to s 17 payments (s 17(3)). There is no express provision for recovery of overpaid amounts under any other part of the Act, such as overpaid fees (though the fee provisions are repealed) or penalties wrongly imposed.
Ninth, the Act does not specify who “the Commissioner” is. The definition was repealed in 1997. It appears that the reference is to the Commissioner of State Revenue, but this is not expressly stated. If a record must be in the form and contain particulars required by the Commissioner, but no such form has been published, a person may be unable to comply. The Act may be unworkable without an express identification.