Liquid Fuel Emergency Act 1984

The Act operates through several carefully defined categories. Liquid fuel is defined in s 3(1) to mean liquid petroleum, a liquid petroleum product, a liquid petrochemical, methanol or ethanol. Refined liquid petroleum product is a subset that includes fourteen specific products such as aviation gasoline, motor spirit, aviation turbine fuel, lighting kerosine, heating oil, automotive distillate, fuel oil, bitumen, naphtha, and lubricating oil (s 3(1), paragraph (a) of the definition). It also includes methanol, ethanol, and any other liquid petroleum product declared by regulation (paragraphs (b)-(d)).

A relevant fuel industry corporation is a corporation engaged in importing or exporting liquid fuel, recovering petroleum, refining or producing liquid fuel, or selling liquid fuel in Australia, whether or not that is its sole or principal activity (s 3(1)). A relevant person is a person other than a corporation engaged in importing, exporting or selling liquid fuel (s 3(1)). This duality ensures that the Act can reach both corporate and non‑corporate actors through different constitutional heads of power - the corporations power (s 51(xx)) and the trade and commerce power (s 51(i)).

Oil stocks are defined by reference to the Agreement: they are oil stocks under Article 1 of the Annex that can be credited toward Australia’s emergency reserve commitment (s 3(1)). The emergency reserve commitment itself takes its meaning from Article 2 of the Agreement.

The planning period is a subdivision of a period of national liquid fuel emergency, determined by the Minister under s 9(1). Directions under ss 21, 22, 23 and 24 operate by reference to planning periods rather than the entire emergency period. Section 27(2) allows directions to continue across successive emergencies if a new Proclamation immediately follows the previous one.

Bulk customer status is conferred by the Minister under s 10(1). To be a bulk customer, a person or organisation must be identified in a written instrument. That identification remains effective for the duration of the emergency period unless revoked (ss 10(7)-(8)). The Minister can only revoke an identification when satisfied the person has ceased the activities that justified the status (s 10(6)). Essential user status is conferred under s 11(1) for persons or organisations whose activities relate to defence, provision of fuel for ships and aircraft engaged in described trade or commerce, export of liquid fuel, or activities determined by the Minister to be essential to health, safety or welfare of the community (s 11(3)). Bullet customers and essential users play key roles in the allocation directions under ss 21 and 22: a corporation or person has a reasonable excuse for non‑compliance with an allocation direction if the recipient failed to produce the appropriate identifying notices (ss 21(10)-(12), 22(10)-(12)).

The Act directly imposes obligations on two primary classes of entity: relevant fuel industry corporations and relevant persons. A relevant fuel industry corporation is a body corporate falling within one of four enumerated activities - importation or exportation of liquid fuel, recovery of petroleum, refining or production of liquid fuel, or sale of liquid fuel in Australia (s 3(1)). The definition deliberately captures entities regardless of whether those activities are their principal business. Such corporations may be trading corporations or foreign corporations, enabling the constitutional extensions in ss 7 and 8.

A relevant person is any individual or unincorporated entity (other than a corporation) that imports, exports or sells liquid fuel in Australia (s 3(1)). This class is subject to directions under ss 22 and 24 during an emergency, but only in relation to trading or commercial activities that are interstate, international, territorial, or supply to the Commonwealth (s 8). These constitutional limitations are explicitly grafted onto the Act by s 8.

Bulk customers and essential users are directly affected. They receive identification instruments from the Minister and must produce those instruments to suppliers to enforce allocation rights. Without proof of status, a corporation or person has a reasonable excuse for non‑allocation (ss 21(10)-(12), 22(10)-(12)). Essential users also have their activities defined by the Minister (s 11(3)). The Act also affects State and Territory Energy Ministers, who must be consulted before certain decisions (ss 42, 9(4), 11(10)).

Authorised persons are appointed by the Minister under s 29(1) and may be officers of a State, the Australian Capital Territory or the Northern Territory (s 29(2)). They exercise enforcement powers - entry, search, seizure, and information gathering - under Part IV. The Act imposes obligations on owners and occupiers of land, premises, vehicles, ships and aircraft to provide reasonable facilities and assistance to authorised persons (s 33).

The Commonwealth itself is affected. It is bound by the Act in all capacities (s 5(1)), though immune from prosecution (s 5(1A)). The Minister, the Secretary, and their delegates are protected from civil suit for acts done reasonably and in good faith (s 46A). Compensation is payable by the Commonwealth or other persons in certain circumstances (ss 45, 46). The Minister must publish directions and give notices to affected persons.

Duties under Part II (contingency planning). A relevant fuel industry corporation directed by the Minister under s 12(1) must maintain or accumulate reserve supplies of liquid fuel as specified. The direction cannot be given during an emergency (s 12(2)) and serves only to ensure readiness for Part III directions (s 12(3)). The corporation has a civil penalty duty not to contravene such a direction without reasonable excuse (s 12(9)). Section 13 imposes a duty to develop and submit bulk allocation procedures when directed. The Minister may approve those procedures or require amendments (ss 13(5)-(6)). Contravention of a direction under s 13(1) or (6) is also a civil penalty provision (s 13(9)).

Duties under Part III (emergency). During a period of national liquid fuel emergency, the Minister may direct a relevant fuel industry corporation to maintain or accumulate reserves (s 17), transfer liquid fuel (s 18), make fuel available for purchase (s 19), control refinery output (s 20), allocate fuel to bulk customers (s 21), or regulate/prohibit supply (s 23). Relevant persons receive similar allocation and supply directions under ss 22 and 24. All directions under Part III must be for the purpose of dealing with a shortage or likely shortage of relevant liquid fuel (ss 17(2), 18(4), 19(2), 20(2), 21(4), 22(4), 23(3), 24(3)).

Each of these duties is backed by a civil penalty provision (listed in the definition of civil penalty provision in s 3(1)). The corporation or person must not contravene without reasonable excuse.

Duty to provide information and documents. Under s 30(1), an authorised person may require a person to furnish information or produce documents relevant to the exercise of the Minister’s powers or to a suspected contravention. Failure to comply is an offence (s 30(2)). The person is not excused on grounds of self‑incrimination, but the information or document is not admissible in criminal proceedings except for offences under s 30(2) or for false or misleading information (s 30(5)).

Rights of affected persons. A person affected by a reviewable decision (defined in s 44(1) as decisions under ss 10(1), 11(1), 12(1) or (8), 13(6) or s 44(2)) may request internal reconsideration within three days (s 44(2)). The Minister must reconsider within 14 days and provide reasons (ss 44(4)-(5)). Applications for review by the Administrative Review Tribunal may follow (s 44(6)). Compensation rights arise under s 45 for acquisition of property otherwise than on just terms, and under s 46 for loss suffered from compliance with a Part II direction (subject to limits). Relevant fuel industry corporations and persons are protected from contract‑based suits when the breach results from compliance with a Part II or III direction (s 47(1)-(2)). Rights to compensation under s 45 are unaffected (s 47(3)).

The Act creates a dual enforcement regime: civil penalty provisions and criminal offences, together with injunctive relief and forfeiture.

Civil penalty provisions. The Act lists eleven specific subsections as civil penalty provisions (s 3(1) definition): ss 12(9), 13(9), 17(8), 18(6), 19(5), 20(7), 21(9), 22(9), 23(9) and 24(9). The Federal Court may order a person to pay a pecuniary penalty if satisfied of a contravention (s 34(1)). The maximum penalty depends on the provision contravened. For ss 12(9), 17(8) and 20(7) the maximum is 500 penalty units for an individual and 2,500 for a body corporate. For ss 18(6) and 19(5) it is 300 units (individual) or 1,500 (body corporate). For s 13(9) it is 100 (individual) or 500 (body corporate). For ss 21(9), 22(9), 23(9) and 24(9) it is 30 (individual) or 150 (body corporate). In determining the penalty the Court must consider the nature, extent and consequences of the contravention, the circumstances, and the person’s previous conduct (s 34(1A)). Ancillary involvement - aiding, abetting, inducing, being knowingly concerned, conspiring - also constitutes a contravention (s 34(3)). Proceedings may be brought by the Minister within six years (s 35). Criminal proceedings do not lie for a civil penalty contravention alone (s 36).

Criminal offences. Three substantive offences are created. Offences against this Act are defined in s 3(1) to include offences under ss 29(5), 30(2) and 33(2). Section 29(5) makes it an offence for a former authorised person to fail to return an identity card (penalty 1 penalty unit, strict liability). Section 30(2) makes it an offence to refuse or fail to comply with a notice to furnish information or produce documents (penalty 30 penalty units, strict liability for paragraph (b)). Section 33(2) makes it an offence for a person subject to a requirement to provide reasonable facilities and assistance to an authorised person to breach that requirement (penalty 30 penalty units or imprisonment for 6 months, or both). Chapter 2 of the Criminal Code applies to all these offences, except Part 2.5 (corporate criminal responsibility) (s 11A).

Enforcement powers. Authorised persons appointed under s 29 have wide powers under Part IV. They may enter land, premises, vehicles, ships or aircraft, search, break open receptacles, inspect, take samples, and copy documents (s 31(1)). These powers require either consent (with prescribed information under s 32A), a warrant from a magistrate (s 31(4)), or a belief on reasonable grounds of urgency to prevent concealment, loss or destruction of evidence (s 31(6)-(7)). An authorised person may seize articles or things believed to afford evidence of a contravention or offence (s 32(1)), and may retain them for 60 days or pending proceedings. Reasonable force may be used (s 31(10)).

Injunctions. The Court may grant injunctions restraining conduct that contravenes a civil penalty provision or requiring a person to do an act (s 37). Interim injunctions are available without undertakings as to damages when the Minister applies (s 37(7)).

Forfeiture. Where a court orders a penalty, convicts of an offence, or makes a s 19B order under the Crimes Act 1914 in relation to an offence against this Act, the court may order forfeiture of any article used or involved in the contravention or offence (s 38(1)).

The Act is carefully designed to operate alongside other Commonwealth, State and Territory laws, and to displace inconsistent provisions only where necessary.

Competition and consumer law. Section 43 provides that anything done in compliance with a direction under the Act is authorised for the purposes of subparagraph 51(1)(a)(i) of the Competition and Consumer Act 2010. This means that conduct that would otherwise contravene Part IV (restrictive trade practices) of that Act - such as anti‑competitive agreements or concerted practices - is immunised if done in response to a Ministerial direction. This is a critical feature: it allows fuel industry participants to allocate supplies, share information, and coordinate their actions during an emergency without exposure to competition law penalties.

State and Territory laws. The Act is not intended to exclude or limit the operation of State or Territory laws that can operate concurrently (s 51). In particular, s 25(3) explicitly states that the Act is not intended to exclude State or Territory price regulation of refined liquid petroleum products. Directions under ss 21, 22, 23 and 24 must not themselves regulate price (s 25(1)-(2)), leaving that field to the States and Territories. Section 52 provides that a direction under the Act prevails over any inconsistent Commonwealth law (other than the Act itself) or any inconsistent State or Territory law. This supremacy clause gives directions immediate legal force overriding contractual obligations, planning laws, or other regulatory regimes that would otherwise constrain compliance.

Constitutional limitations. The Act contains multiple severability provisions. Section 6 limits the Minister’s power to specified constitutional purposes (defence, implementing the Agreement, Territories, protection of the nation, trade and commerce, and supply to the Commonwealth). Section 7 and s 8 provide additional constitutional foundations for the Act’s operation in relation to corporations and relevant persons, by omitting certain sections in alternative constitutional scenarios. The Act is thus structured to survive constitutional challenges by having separable parts that can stand on different heads of power. Section 7(2) provides that directions to a trading corporation have no effect to the extent they relate to acts otherwise than for the corporation’s trading or commercial activities (unless the direction is support by another head of power).

Compensation and property rights. Section 45 preserves the constitutional guarantee in s 51(xxxi) by providing for just terms compensation if the operation of the Act would result in acquisition of property otherwise than on just terms. Section 46 provides a statutory compensation scheme for loss suffered from compliance with Part II (contingency planning) directions, but only to the extent the loss cannot reasonably be recovered from the market supplied by the person (s 46(2)). Section 47 protects corporations and persons from breach of contract claims where the breach resulted from compliance with a direction - but preserves the right to compensation under s 45.

The Act received Royal Assent on the date of its commencement (s 2). The original Act included the repeal of the Liquid Fuel (Defence Stocks) Act 1949 (s 55). The current text reflects numerous amendments made over decades to align with modern legislative frameworks. The definition of Court in s 3(1) now refers to the Federal Court of Australia, reflecting the abolition of the Federal Court of Australia’s predecessor and the rationalisation of federal jurisdiction. Part IVA (ss 40A-40B) was inserted to give the Secretary power to enter into contracts for the reservation or purchase of oil stocks for the purpose of giving effect to the Agreement; s 40A(2) provides that this does not limit the executive power of the Commonwealth, suggesting it is an additional statutory power.

The Act has been amended to incorporate references to the Legislation Act 2003. Sections 9(2), 10(5), 11(6), 12(7), 13(4), 17(6), 20(6), 21(8), 22(8), 23(8) and 24(8) all disapply subsection 12(2) of the Legislation Act 2003 (retrospective application of legislative instruments) for certain determinations, directions and guidelines. Notes to ss 13, 21, 22, 23 and 24 indicate that disallowance and sunsetting provisions of the Legislation Act do not apply to directions given under those sections, by virtue of regulations made for the purposes of that Act.

The reference in s 6(2)(b)(i) to the National Emergency Declaration Act 2020 is a relatively recent amendment, adding an additional precondition to declaring a national liquid fuel emergency: either that declaration is in force or consultation has occurred. Section 44 was amended to replace references to the Administrative Appeals Tribunal with the Administrative Review Tribunal Act 2024. Section 11A applies Chapter 2 of the Criminal Code to offences, bringing general principles of criminal responsibility into the Act, and the definition of offence against this Act in s 3(1) now incorporates offences against ss 137.1 and 137.2 of the Criminal Code relating to this Act, as well as inchoate offences.

The Act itself does not record or reference any specific litigation. No cases are named in the source text. As a piece of stand‑by legislation - primarily triggered in an emergency scenario - there is limited recorded judicial consideration. The inclusion of extensive constitutional severability provisions (ss 6, 7, 8) suggests that Parliament anticipated potential constitutional challenges, particularly under the corporations and trade and commerce powers. The compensation provisions in ss 45 and 46 also reflect awareness of possible acquisition‑of‑property claims under s 51(xxxi) of the Constitution. Section 45 expressly contemplates that a court of competent jurisdiction may determine compensation for acquisition of property. The review mechanism under s 44, with Tribunal review, provides an avenue for administrative law challenges to decisions such as bulk customer or essential user identification. Practitioners should be aware that any litigation would likely centre on the scope of emergency directions, the reasonableness of compliance, or the constitutional validity of particular applications.

Several provisions contain traps for the unwary.

Very short reconsideration period. A person affected by a reviewable decision has only three days after the decision comes to their notice to request internal reconsideration (s 44(2)). This is extraordinarily tight, especially in the context of an emergency where communications may be disrupted. The Minister may extend the period, but the default is three days. Failure to request reconsideration within time may forfeit any right to later Tribunal review.

Strict liability offences. The offence for failing to return an identity card (s 29(5A)) and for failing to comply with an information notice (s 30(2B)) are strict liability. No fault element needs to be proved. The only defence is that the person was not capable of complying (s 30(2A) for the information notice). There is no explicit defence of reasonable mistake for the identity card offence.

Reasonable excuses for allocation directions. A relevant fuel industry corporation or relevant person subject to an allocation direction under s 21 or s 22 has an express reasonable excuse defence if the recipient failed to produce the required identification notices (ss 21(10)-(12), 22(10)-(12)). However, this is a defence that must be raised by the defendant, and it does not apply to the separate duty not to supply to non‑bulk customers (ss 21(9)(b), 22(9)(b)). Producers intending to rely on this defence must ensure they have documentary proof of the recipient’s failure.

Compensation limits for Part II directions. Compensation for loss from compliance with a Part II direction is limited under s 46(2): only so much of the loss as the person cannot make good from the market they supply. This means that if the corporation can pass on costs to other customers, no compensation is payable. Claims must be lodged within 12 months (s 46(3)). No similar compensation scheme exists for Part III directions - only constitutional just terms under s 45 for acquisition of property, which may be harder to establish.

Directions prevail over inconsistent laws but not price regulation. While s 52 provides that directions prevail over inconsistent Commonwealth, State or Territory laws, s 25 explicitly prohibits directions under ss 21, 22, 23 and 24 from regulating price. A direction that purported to set a maximum price would be invalid, and the State or Territory price regulation would continue to apply (s 25(3)).

Cessation of Part II directions on commencement of Part III directions. If a s 12 direction (contingency planning) is in force when a s 17 direction (emergency reserves) is given, the earlier direction ceases (s 12(12)). A corporation must be alert to the shift and ensure it is complying with the correct regime.

Planning period restrictions. Directions under ss 21, 22, 23 and 24 have effect only for specified planning periods (ss 21(3), 22(3), 23(2), 24(2)). They cannot operate retroactively to the start of the planning period before the direction takes effect. If an emergency terminates early, the planning period also ends (s 9(3)).

Corporations and persons in the liquid fuel supply chain should adopt a proactive compliance posture, even outside a declared emergency.

Contingency planning. A relevant fuel industry corporation that receives a s 12 direction must implement systems to maintain specified reserve supplies at specified places. This may require physical storage, inventory management, and contractual arrangements for replenishment. The direction cannot be varied to increase quantities, but the Minister may allow a lower quantity in temporary circumstances (s 12(8)). Compliance should be documented and regularly reported to the Minister. Separately, corporations falling within a class covered by s 13 guidelines must develop bulk allocation procedures and submit them to the Minister for approval. These procedures should be drafted in accordance with the Minister’s guidelines and updated as necessary. The Minister may direct amendments.

During a national liquid fuel emergency. The primary obligation is to comply with any Part III direction served on the entity. Directions are in writing and come into force when notice is given (e.g., s 17(9)). The entity should immediately assess its operational capacity to meet the direction. If compliance is impossible, the entity should seek to communicate with the Minister and document the reasons - the civil penalty provisions include a defence of reasonable excuse (ss 17(8), 18(6), 19(5), 20(7), 21(9), 22(9), 23(9), 24(9)). However, the term reasonable excuse is not defined, so entities should preserve evidence of all relevant circumstances. For allocation directions under s 21 or s 22, the entity should verify the bulk customer or essential user status of the purchaser by requiring production of the relevant instruments. If the purchaser fails to produce the required notices, the entity should record that failure; it constitutes a reasonable excuse for non‑compliance with the allocation direction but does not excuse supplying non‑bulk customers.

Information requests and inspections. Any person who receives a notice under s 30 must furnish information or produce documents within the specified time. The notice must be in writing and served on the person. The person cannot refuse on grounds of self‑incrimination, but the information is not admissible in criminal proceedings except for certain offences (s 30(5)). If the person is incapable of complying, they should notify the authorised person and provide evidence of that incapacity. Authorised persons may enter premises; occupiers should cooperate and provide reasonable facilities. An owner or occupier may request to see the authorised person’s identity card (s 29A(2)); if the card is not produced, the power cannot be exercised. The occupier may also refuse consent to entry (s 32A(1)), but the authorised person may then seek a warrant.

Record keeping and documentation. Entities should maintain records of all directions received, actions taken, communications with the Minister, and any requests for reconsideration. Given the three‑day limit for s 44 reconsideration, it is essential to monitor all incoming Ministerial decisions and to act immediately if dissatisfied.