Part 5Enforcement

## Part 1—Preliminary #### 1 Name of Regulations These Regulations are the Fuel Quality Standards Regulations 2001. #### 3 Definitions (1) In these Regulations: > ABN has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999. > ACN has the meaning given by section 9 of the Corporations Act 2001. > Act means the Fuel Quality Standards Act 2000. > blend, for fuel, means to combine fuel with: (a) another kind of fuel; or (b) any other substance. > bulk facility includes a storage depot, distribution terminal or refinery. > Chair means the Chair of the Committee. > Committee means the Fuel Standards Consultative Committee. > contact details, for a person, means: (a) the person’s business or residential address; and (b) the person’s postal address, if it differs from the address described in paragraph (a); and (c) the telephone number (if any) at which the person may be contacted personally; and (e) the person’s e‑mail address (if any). > distributor, of fuel, means a person who supplies fuel between any 2 of an import terminal, a refinery, a blending facility or a retail outlet for fuel. > engage in conduct means: (a) do an act; or (b) omit to do an act. > infringement notice penalty means the penalty mentioned in an infringement notice as payable under the notice. > NATA means the National Association of Testing Authorities, Australia. > vehicle includes railway rolling stock, a prime mover and trailer and a vessel or thing, other than a pipeline, used to transport fuel for supply. (2) For the definition of fuel in subsection 4(1) of the Act: > fuel means any of the following: (a) petrol; (aa) a mixture of petrol and ethanol of which more than 50% is petrol; (b) automotive diesel; (ba) a mixture of automotive diesel and biodiesel (within the meaning of paragraph (g)) of which more than 50% is automotive diesel; (c) liquefied petroleum gas; (d) liquefied natural gas; (e) compressed natural gas; (g) biodiesel (that is, a diesel fuel obtained by esterification of oil derived from plants or animals); (ga) a mixture of biodiesel (within the meaning of paragraph (g)) and automotive diesel of which more than 50% is biodiesel; (h) ethanol; (ha) a mixture of ethanol and petrol of which more than 50% is ethanol; (i) any substance that is used as a substitute for a fuel mentioned in paragraphs (a) to (ha); (j) any substance that is supplied or represented as: (i) a fuel mentioned in paragraphs (a) to (ha); or (ii) a substitute substance under paragraph (i). (3) For the definition of fuel additive in subsection 4(1) of the Act: > fuel additive means a substance that is generally sold or represented as suitable for adding to fuel to affect the properties of the fuel, including the effect of the additive on engine performance, engine emissions or fuel economy. ## Part 2—Regulation of fuel and fuel additives #### 4 Application for approval (1) For subsection 14(1) of the Act, an application for an approval must be in writing and must include the following information: (a) the applicant’s name, contact details and if applicable the ABN and ACN; (b) if the applicant is an agent for another person, the other person’s name, contact details and if applicable the ABN and ACN; (c) a declaration that the information in the application is correct to the best of the applicant’s knowledge; (d) a statement of the reasons why the applicant wants the standard to be varied; (e) an explanation of the variation sought; (f) the period for which the variation is sought; (g) the circumstances in which the specified fuel will be supplied, including where (if possible), why and how much; (h) contact details for any regulated persons whose supply of fuel is intended to be covered by the approval; (i) any information held by the applicant, or publicly available, that could reasonably be considered to be necessary for making a decision whether to grant an approval, including information about the possible effect of the approval, if granted, on: (i) protection of the environment; and (ii) protection of occupational and public health and safety; and (iii) interests of consumers; and (iv) economic and regional development. (2) An application may be withdrawn at any time before the Minister decides whether or not to grant the approval. (3) The Minister may, by written notice, require the applicant to provide, within a reasonable time, specified further information that the Minister reasonably considers is necessary for making a decision on the application. #### 5 Application fee For subsection 14(2) of the Act the fee for an application for an approval is $5 944. #### 6 Exemption from paying application fee (1) An applicant who is not an agency of the Commonwealth or a State or Territory may ask the Minister to exempt the applicant from the payment of the whole or part of the application fee mentioned in regulation 5. (2) A request must set out the reasons for making the request. (3) Within 14 days after the Minister receives the request, the Minister must: (a) decide whether to exempt the applicant from the payment of the whole or part of the application fee; and (b) give to the person who made the request written notice of the decision and reasons for the decision. (3A) If the request is on the basis that payment of the application fee would cause financial hardship to the applicant, the Minister must, in deciding whether to exempt the applicant from the payment of the whole or part of the application fee, have regard to the following: (a) whether the applicant has readily accessible finances to pay the fee; (b) whether the applicant is applying for an approval on behalf of a fuel supplier that has readily accessible finances to pay the fee; (c) whether the applicant is a not‑for‑profit organisation or has income or generates profits, and if so, the amount of that income or those profits; (d) whether the applicant is likely to receive financial benefit if the approval is granted and when this is likely to occur; (e) whether the applicant has incurred significant expense in relation to the application (such as for testing claims); (f) the reasons given by the applicant explaining why the payment of the fee would cause financial hardship to the applicant in the circumstances. (3B) If the request is made for a reason other than that payment of the application fee would cause financial hardship to the applicant, the Minister must, in deciding whether to exempt the applicant from the whole or part of the application fee, have regard to the following: (a) whether granting the approval would give the applicant a commercial advantage; (b) whether the approval is required to address potential issues with the operation of an engine arising from climatic conditions; (c) whether the applicant is a not‑for‑profit organisation; (d) whether the fee would impose an unreasonable cost on industry; (e) any other relevant matters. (4) The notice given under paragraph (3)(b) must include a statement that, subject to the Administrative Appeals Tribunal Act 1975, the person may apply to the Administrative Appeals Tribunal for review of the decision. (5) The person may apply to the Administrative Appeals Tribunal for the review of a decision by the Minister made under paragraph (3)(a). (6) If a request is made under subregulation (1) at the same time as an application is made under regulation 4, the application is taken not to have been made until the Minister has decided whether to exempt the applicant from the payment of the whole or part of the application fee. #### 6A Refund of application fee (1) An application fee must be refunded if: (a) the application is withdrawn within 14 days after being made; and (b) the Minister has not considered the application. (2) If an application is withdrawn more than 14 days after being made, the applicant may request a refund of the application fee. (3) Within 14 days after receiving a request under subregulation (2), the Minister: (a) must decide whether to refund the application fee; and (b) must give to the applicant written notice of the decision and the reasons for the decision. (4) In deciding whether to refund an application fee under subregulation (3), the Minister must have regard to the following: (a) whether the Minister has considered the application; (b) whether the Commonwealth has incurred any financial obligations in relation to the application. (5) The notice given under paragraph (3)(b) must include a statement that, subject to the Administrative Appeals Tribunal Act 1975, the applicant may apply to the Administrative Appeals Tribunal for review of the decision. (6) The applicant may apply to the Administrative Appeals Tribunal for review of a decision by the Minister under paragraph (3)(a) not to refund an application fee. #### 7 Informing people of obligations (1) For subsection 17(1) of the Act: (a) the period within which the holder of an approval must inform a regulated person of a condition or variation of a condition of the approval begins when the condition is imposed or varied and ends on the earlier of: (i) the first time the holder supplies fuel to the regulated person after the holder is told of the condition or variation; or (ii) if the condition applies to fewer than 16 regulated persons—24 hours after the holder is told of the condition or variation; or (iii) if the condition applies to more than 15 but fewer than 31 regulated persons—36 hours after the holder is told of the condition or variation; or (iv) if the condition applies to more than 30 but fewer than 51 regulated persons—48 hours after the holder is told of the condition or variation; or (v) if the condition applies to more than 50 regulated persons—5 working days after the holder is told of the condition or variation; and (b) the period within which the holder must inform a regulated person of the revocation of the approval begins when the holder is told that the approval is revoked and ends at the time mentioned in whichever of subparagraphs (a)(ii) to (v) applies to the holder. (2) For subsection 17(2) of the Act, information must be given: (a) personally; or (b) by leaving it at, or posting it or sending it by electronic means: (i) for an individual—to the last‑known place of residence or business of the person; or (ii) for a body corporate—to its head office, registered office or principal place of business. #### 7A Fuel documentation (1) For sections 19 and 19A of the Act, the prescribed period begins when the fuel is supplied and ends 72 hours after the fuel is supplied. (2) For subregulation (1), fuel is taken to have been supplied: (a) for fuel that is supplied as 1 batch—when it is received by the other person; or (b) for fuel that is supplied in portions—when the first portion is received by the other person. (3) For paragraphs 19(1)(e) and 19A(2)(b) of the Act, the information mentioned in subregulation (4) must be provided by a supplier who: (a) imports fuel; or (b) produces or blends fuel; or (c) is a distributor of fuel. (4) For subregulation (3), the information is: (a) the supplier’s name, contact details and if applicable the ABN and ACN; and (b) if the supplier is an agent for another person, the other person’s name, contact details and if applicable the ABN and ACN; and (c) the delivery docket number provided by the supplier for the fuel supplied; and (d) the kind and grade of the fuel supplied or its product code; and (e) the date and time when the fuel was supplied; and (f) the total quantity of fuel supplied; and (g) the place where the fuel was supplied; and (h) if the fuel does not comply with a fuel standard: (i) particulars of the requirements of the standard that are not met; and (ii) reasons why the requirements are not met; and (i) if a vehicle was used in the supply of the fuel and the vehicle is registered under a law of the Commonwealth, a State or Territory for the registration of vehicles, its registration number; and (j) if a vehicle was used in the supply but the vehicle was not registered as described in paragraph (i), other particulars that uniquely identify the vehicle. ## Part 3—The Committee #### 8 Application of Part 3 For section 29 of the Act, this Part sets out matters relating to members of the Committee. #### 9 Term of appointment The term of appointment for a member must be not more than 3 years. #### 10 Disclosure of interests (1) A member who has a direct or indirect interest in a matter being considered or about to be considered by the Committee must, as soon as possible after the relevant facts have come to the knowledge of the member, disclose the nature of the interest at a meeting of the Committee. (2) A member who makes a disclosure under subregulation (1) must not, unless the Committee or the Minister otherwise determines: (a) be present during any deliberation of the Committee about the matter; or (b) take part in any decision of the Committee about the matter. (3) A member who has a direct or indirect pecuniary interest in the matter to which the disclosure relates must not: (a) be present during any deliberation of the Committee about making a determination under subregulation (2); or (b) take part in making the determination. (4) A member is not taken to have an interest for this regulation only because of a direct or indirect interest that the member has only through being a representative mentioned in subsection 25(2) of the Act. #### 11 Resignation A member may resign by giving written notice to the Minister. #### 12 Termination of appointment The Minister may terminate the appointment of a member: (a) for misbehaviour or physical or mental incapacity; or (b) for incompetence or inefficiency; or (c) who: (i) becomes bankrupt; or (ii) applies to take the benefit of the law for the relief of bankrupt or insolvent debtors; or (iii) compounds with his or her creditors; or (iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or (d) who is convicted of an offence punishable by imprisonment for 1 year or longer; or (e) who does not comply with regulation 10; or (f) who is absent, except on leave of absence, from 3 meetings of the Committee that he or she was expected to attend; or (g) if, because of a change in employment, residence or other circumstance, he or she ceases, in the Minister’s opinion, to be an appropriate representative on the Committee. #### 13 Leave of absence (1) The Minister may grant leave of absence to the Chair. (2) The Chair may grant leave of absence to another member. ## Part 4—The Register #### 14 Publishing notices (1) For subsections 34(2) and 35(3) of the Act, a notice must be published: (a) at an appropriate location on the Internet; and (b) in the Gazette; and (c) in the Government Gazettes of Cocos (Keeling) Islands and Christmas Island; and (d) in a daily newspaper that circulates throughout Australia; and (e) for each State and Territory—in a daily newspaper that circulates throughout the State or Territory; and (f) if practical, in regional newspapers throughout Australia. (2) For paragraph (1)(f), it would not be practical to publish a notice in all relevant regional papers if the relevant impacts of a decision under subsection 35(2) of the Act could affect the whole, or a large proportion, of Australia. ## Part 5—Enforcement ### Division 5.1—Identity cards #### 15 Form of identity cards For paragraph 39(2)(a) of the Act, an identity card must include the following information: (a) the name and title of the person to whom it is issued; (b) a statement that the person is an inspector under the Act; (c) the name, title and signature of the person who issued it; (d) a serial number; (e) the date when it was issued; (f) its expiry date, being not later than 3 years after it was issued. ### Division 5.2—Samples #### 16 Procedures for dealing with samples For subsection 58A(1) of the Act, this Division sets out the procedures for dealing with samples of fuel, fuel additive or evidential material, taken by an inspector under Part 3 of the Act. #### 17 Taking samples (1) An inspector who takes a sample: (a) must: (i) take 2 or more samples that are as uniform as practicable; and (ii) put each sample into a separate container; and (iii) securely seal and label the containers; and (iv) send 1 or more of the containers to an accredited laboratory or accredited person by means that will ensure the safe arrival of its contents; and (b) may keep 1 or more of the containers for any further inspection, examination, measuring or testing. (2) If the occupier, or another person who apparently represents the occupier, of the premises where the samples are taken is present when the samples are taken: (a) the inspector must ask the occupier or other person to inspect the containers to satisfy himself or herself that they have been sealed and labelled properly; and (b) if the samples are of fuel that is in a liquid state at standard temperature and pressure—1 of the containers must be given to the occupier or the other person. (3) If there is no person described in subregulation (2) present and the samples are of fuel that is in a liquid state at standard temperature and pressure, the inspector must: (a) keep 1 of the containers; and (b) if the occupier of the premises asks for the container within 1 week after the sample was taken, give the container to that person. (4) For subsection 58A(3) of the Act, substantial compliance with the procedures mentioned in paragraph (2)(a) is sufficient and the procedure need not be strictly complied with. (5) In this regulation, a reference to standard temperature and pressure is a reference to a temperature of 0 degrees Celsius and a pressure of 100 kilopascals. #### 18 Identification of samples (1) An inspector who takes a sample must: (a) record: (i) enough details to identify it; and (ii) the address of the premises where it was taken; and (b) ask the occupier, or another person who apparently represents the occupier, of the premises to sign the record as soon as possible after the sample is taken. (2) For subsection 58A(3) of the Act, substantial compliance with the procedures mentioned in paragraph (1)(b) is sufficient and the procedure need not be strictly complied with. #### 19 Method of securing samples An inspector who takes a sample must ensure that: (a) the container of the sample is marked so that the sample is clearly identifiable, but in a way that prevents a person testing the sample from identifying the source of the sample; and (b) the container cannot be opened, or the identification of the sample removed, without breaking the seal; and (c) the sample is packed, stored and transported so that: (i) the integrity of the sample is preserved; and (ii) testing of the sample produces the same results as would have been obtained if the sample had been tested immediately after it was taken. #### 20 Payment for samples If a sample is taken from a place where it could be sold legally, the Commonwealth is liable to pay, to the owner of material from which the sample is taken, the market value, at the time the sample was taken, of any part of the sample removed by an inspector. #### 21 Accredited laboratories (1) For subsection 58B(8) of the Act, the following are accredited laboratories: (a) a laboratory in Australia that is accredited by NATA; (b) a laboratory in another country that is accredited by the national laboratory accreditation body operating in the country where the laboratory is located; (c) an organisation of more than 1 laboratory or similar undertaking that uses their joint resources and is accredited by NATA. (2) For paragraph (1)(b), a national accreditation body must: (a) be a member of the International Laboratory Accreditation Corporation; and (b) accept the accreditation standards of that Corporation; and (c) comply with ISO/IEC Guide 58:1993 Calibration and testing laboratory accreditation systems—general requirements for operation and recognition, first edition, published by the International Organization for Standardization, Geneva. #### 22 Accredited persons For subsection 58B(8) of the Act, an accredited person is an individual who is accredited by NATA. #### 23 Authorised persons For subsection 58B(8) of the Act, an authorised person is an individual who is approved by NATA as an authorised representative. ### Division 5.3—Infringement notices #### 23A Other matters to be included in infringement notices For paragraph 65M(1)(p) of the Act, an infringement notice must state that, within 28 days after the notice is given, the person to whom the notice is given may apply to the Secretary to make an arrangement for payment of the infringement notice penalty by instalments. #### 23B Ways of giving infringement notices An infringement notice may be given to a person: (a) personally or by post; or (b) by leaving the notice: (i) at the last‑known place of residence or business of the person who is alleged to have engaged in the conduct to which the infringement notice relates; and (ii) with a person, apparently over the age of 16 years, who appears to live or work at the place. #### 23C Payment by instalments (1) Within 28 days after an infringement notice is given to a person, the person may apply to the Secretary to make an arrangement for payment of the infringement notice penalty by instalments. (2) The Secretary must: (a) decide whether to make, or refuse to make, the arrangement; and (b) give the person written notice of the decision; and (c) if the decision is a refusal—set out in the notice the reasons for refusal. (3) The person must pay the infringement notice penalty: (a) if an arrangement is made—in accordance with the arrangement; or (b) if the decision is a refusal—before the end of the latest of: (i) 28 days after the infringement notice is given; and (ii) if the period in which to pay the penalty has been extended under section 65N of the Act—the extended period; and (iii) 7 days after receiving notice of the refusal. #### 23D Admissions in representations for withdrawal of infringement notice Evidence of an admission made by a person in a representation under section 65P of the Act seeking withdrawal of an infringement notice is inadmissible in criminal or civil proceedings in relation to conduct of the person to which the infringement notice relates. #### 23E Evidence for proceedings (1) In criminal or civil proceedings in relation to conduct to which an infringement notice relates, the following certificates are evidence of the facts stated in the certificate: (a) a certificate signed by an inspector and stating that: (i) the infringement notice was given to a person; and (ii) the infringement notice penalty has not been paid in accordance with this Division; (b) a certificate signed by an inspector and stating that the notice was withdrawn on a day specified in the certificate; (c) a certificate signed by the Secretary and stating that: (i) the period for payment of the infringement notice penalty was not extended under section 65N of the Act; and (ii) the infringement notice penalty has not been paid in accordance with this Division; (d) a certificate signed by the Secretary and stating that: (i) the period for payment of the infringement notice penalty was extended under section 65N of the Act; and (ii) the infringement notice penalty was not paid in accordance with the notice or within the extended period. (2) A certificate that purports to have been signed by an inspector or the Secretary is taken to have been signed by that officer unless the contrary is proved. #### 23F Matters not to be taken into account in determining penalty (1) This regulation applies if a person served with an infringement notice: (a) elects not to pay the infringement notice penalty; and (b) is found by a court to have committed the offence or contravened the civil penalty provision mentioned in the infringement notice. (2) In determining the penalty to be imposed, the court must not take into account the fact that the person chose not to pay the infringement notice penalty. #### 23G Payment of penalty by cheque If a cheque is given to the Commonwealth in payment of all or part of the amount of an infringement notice penalty, the payment is taken not to have been made unless the cheque is honoured on presentation. ## Part 6—Record keeping and reporting obligations #### 24 Record keeping (1) For subsections 66(1) and 66A(2) of the Act, this Part sets out the records that must be kept. (2) A record that must be kept under this Part must: (a) be kept, for each calendar year, for fuel that is supplied in Australia in the year; and (b) be kept at the premises where the fuel is supplied; and (c) be retained for 12 months after the end of the calendar year to which the record relates. #### 25 Records for suppliers who produce or blend fuels A supplier who produces or blends fuel must keep the following records: (a) the kind and grade of fuel produced or blended, or its product code; (b) the quantity of fuel produced or blended; (c) details of any testing done on the fuel, including: (i) the date of each test; and (ii) records by which the fuel tested can be traced to delivery docket numbers for the fuel; and (iii) test methods used; and (iv) the results of the tests; (d) for each supply of fuel, the following details: (i) how the fuel was supplied; (ii) the quantity supplied; (iii) the kind and grade of fuel, or its product code; (iv) to whom it was supplied; (v) delivery docket numbers; (e) records by which the fuel supplied can be traced to delivery docket numbers for the fuel; (f) records by which each receipt of fuel into the supplier’s tanks can be traced to fuel supplied from the tanks; (g) stock reconciliation records (except in relation to fuel for which it is not possible for the supplier to keep separate reconciliation records). #### 26 Records for suppliers who import fuel (1) A supplier who imports fuel into Australia must keep the following records: (a) records of the matters mentioned in paragraphs 25(d) to (g); (b) for each shipment of fuel imported—a record of the matters mentioned in subregulation (2). (2) For paragraph (1)(b), the matters are the following for each kind of fuel imported: (a) the kind and grade of fuel, or its product code; (b) the quantity of fuel; (c) the date when the fuel was imported; (d) the port where the fuel arrived in Australia; (e) the tariff code for the fuel; (f) the importer number for the shipment; (g) the contact details of the manufacturer of the fuel, if known; (h) details of any testing done on the fuel, including: (i) the date of each test; and (ii) records by which the fuel tested can be traced to delivery docket numbers for the fuel; and (iii) test methods used; and (iv) the results of the tests; (i) stock reconciliation records (except in relation to fuel for which it is not possible for the supplier to keep separate reconciliation records). #### 27 Records for suppliers who distribute fuel using their own vehicles or contractors’ vehicles (1) This regulation applies to a supplier who is a distributor of fuel: (a) that the supplier distributes using the supplier’s vehicle; or (b) that a person engaged by the supplier distributes, for the supplier, using the person’s vehicle. (2) A supplier to whom this regulation applies: (a) must keep copies of all documents received or provided under section 19 or 19A of the Act in relation to fuel described in paragraph (1)(a) or (b); and (b) for each instance when a vehicle is loaded with fuel by or for the supplier—must keep a record of the place, date and time the fuel was loaded. #### 28 Records for suppliers who operate service stations or distribute fuel (1) Subject to subregulation (2), a supplier who operates a service station or is a distributor of fuel must keep the following records: (a) copies of all documents received or provided under section 19 or 19A of the Act; (b) stock reconciliation records, including all delivery records received; (c) details of any testing done on the fuel, including: (i) the date of each test; and (ii) records by which the fuel tested can be traced to delivery docket numbers for the fuel; and (iii) test methods used; and (iv) the results of the tests. (2) A supplier who operates a service station or is a distributor need not keep reconciliation records referred to in paragraph (1)(b) in relation to fuel for which it is not possible for the supplier to keep separate reconciliation records. #### 29 Annual statements For subsection 67(4) of the Act, an annual statement must be provided to the Secretary by: (a) delivering it by hand to the Department; or (b) sending it, by pre‑paid post, to the Department’s postal address; or (c) sending it electronically to the Department’s email address for fuel quality matters. ## Part 7—Other matters #### 30 Disclosure of information obtained under the Act For subparagraph 67A(b)(iii) of the Act, the Australian Crime Commission Act 2002 and the Low Aromatic Fuel Act 2013 are prescribed. #### 30A Delegation of Minister’s powers and functions (1) The Minister may, in writing, delegate all or any of his or her functions or powers under these Regulations to the Secretary or to an SES employee, or acting SES employee, in the Department. > Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations. (2) In performing a delegated function or exercising a delegated power, the delegate must comply with any written directions of the Minister. #### 30B Delegation of Secretary’s powers and functions (1) The Secretary may, in writing, delegate all or any of his or her functions or powers under these Regulations to an SES employee, or acting SES employee, in the Department. > Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations. (2) In performing a delegated function or exercising a delegated power, the delegate must comply with any written directions of the Secretary. ## Part 8—Application, saving and transitional provisions #### 31 Amendments made by the Fuel Quality Standards Amendment (Fees) Regulation 2016 The repeal and substitution of regulation 5 of these Regulations by the Fuel Quality Standards Amendment (Fees) Regulation 2016 apply in relation to applications made on or after 1 July 2016 for an approval. #### 32 Amendments made by the Fuel Quality Standards Amendment (Miscellaneous Measures) Regulations 2017 (1) This regulation sets out the application of amendments of these Regulations made by the Fuel Quality Standards Amendment (Miscellaneous Measures) Regulations 2017 (the amending regulations). (2) The amendments of the definition of contact details in subregulation 3(1) apply in relation to: (a) applications for approvals made on or after the commencement of the amending regulations; and (b) supplies of fuel made on or after that commencement. (3) The amendments of subregulation 4(3) apply in relation to requirements made on or after the commencement of the amending regulations. (4) The amendment of paragraph 24(2)(c) applies to records for calendar years starting on or after the commencement of the amending regulations.