Petroleum Retail Marketing Sites Act 1980

1 Short title [see Note 1]

This Act may be cited as the Petroleum Retail Marketing Sites Act 1980.

2 Commencement [see Note 1]

This Act shall come into operation on the day on which it receives the Royal Assent.

3 Interpretation

(1) In this Act, unless the contrary intention appears:

agreement means any agreement, arrangement or understanding:

(a) whether formal or informal or partly formal and partly informal;
(b) whether written or oral or partly written and partly oral; and
(c) whether or not having legal or equitable force and whether or not based on legal or equitable rights.

authorized officer means:

(a) the Secretary of the Department administered by the Minister; or
(b) an officer of that Department appointed by the Secretary of that Department by writing under his hand to be an authorized officer for the purposes of this Act.

child, in relation to a person, includes an adopted child, a step‑child or an ex‑nuptial child of that person.

commencing day means the day on which this Act comes into operation.

contravention, in relation to a provision of this Act, includes a failure to comply with that provision.

corporation means a body corporate that:

(a) is a foreign corporation;
(b) is a trading corporation formed within the limits of the Commonwealth; or
(c) is incorporated in an internal Territory.

Court means the Federal Court of Australia.

director, in relation to a body corporate, includes any person occupying or acting in the position of director of the body corporate, by whatever name called and whether or not validly appointed to occupy or duly authorized to act in the position.

foreign corporation means a foreign corporation within the meaning of paragraph 51 (xx) of the Constitution, and includes a body corporate that is incorporated in an external Territory.

franchise agreement means a franchise agreement, within the meaning of the Petroleum Retail Marketing Franchise Act 1980, to which that Act applies, and franchisee and franchisor shall be construed accordingly.

lease includes a sub‑lease.

month means one of the 12 months of the year.

motor fuel means any fuel to be used in propelling road vehicles, other than diesel fuel or liquefied gas.

parent, in relation to a person, means a person of whom that person is a child.

prescribed corporation means:

(a) a prescribed oil company;
(b) any other corporation that refines petroleum; or
(c) a corporation that is related to a corporation referred to in paragraph (a) or (b).

prescribed oil company means a corporation that:

(a) deals in petroleum products in liquid form; and
(b) is specified in the regulations for the purposes of this definition.

provision, in relation to an agreement, means any matter forming part of the agreement, and includes a covenant.

retail site means premises at which motor fuel is sold by retail.

road vehicle means a vehicle designed solely or principally for transporting persons, goods or animals by road.

share, in relation to a body corporate, means a share in the capital of the body corporate and includes stock.

supply tank, in relation to a road vehicle, means that part of the vehicle in which motor fuel for the propulsion of the vehicle is stored.

trading corporation means a trading corporation within the meaning of paragraph 51(xx) of the Constitution.

(2) For the purposes of this Act, motor fuel shall not be taken to be sold by retail at a retail site unless it is delivered at that site into the supply tanks of road vehicles by a metered pump. (3) For the purposes of this Act, motor fuel shall be taken to be sold at the time when it is delivered in pursuance of the contract of sale. (4) For the purposes of this Act, a corporation that is not a corporation of the kind referred to in paragraph (a), (b) or (c) of the definition of prescribed corporation in subsection (1) shall be taken to be a prescribed corporation in relation to a month if: (a) the corporation acquired refined petroleum at a time or times during the period of 12 months immediately preceding that month; and (b) more than 50% of the total quantity of refined petroleum so acquired was imported into Australia by the corporation or by a related corporation. (5) For the purposes of this Act, a retail site operated by a prescribed corporation during a month shall be taken to be a diesel fuel site during that month (in this subsection referred to as the relevant month) if: (a) in the case of a site operated by that corporation during one or more of the months (in this subsection and in subsection (6) referred to as the relevant period) in the period of 12 months immediately preceding the relevant month: (i) not less than the prescribed total of litres of diesel fuel was sold at the site during the relevant period; and (ii) less than the prescribed total of litres of motor fuel was sold by retail at the site during the relevant period; or (b) at the site: (i) not less than the prescribed number of litres of diesel fuel is sold during the relevant month; and (ii) less than the prescribed number of litres of motor fuel is sold by retail during the relevant month. (6) In subsection (5):

prescribed number means 100,000 or such other number as is prescribed.

prescribed total means the number ascertained by multiplying the number of months in the relevant period by the prescribed number.

4 Related bodies corporate

(1) Where a body corporate: (a) is the holding company of another body corporate; (b) is a subsidiary of another body corporate; or (c) is a subsidiary of the holding company of another body corporate, that first‑mentioned body corporate and that other body corporate shall, for the purposes of this Act, be deemed to be related to each other. (2) For the purposes of this section, a body corporate shall, subject to subsection (4), be deemed to be a subsidiary of another body corporate if: (a) that other body corporate: (i) controls the composition of the board of directors of the first‑mentioned body corporate; (ii) is in a position to cast, or control the casting of, more than one‑half of the maximum number of votes that might be cast at a general meeting of the first‑mentioned body corporate; or (iii) holds more than one‑half of the issued share capital of the first‑mentioned body corporate (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); or (b) the first‑mentioned body corporate is a subsidiary of any body corporate that is that other body corporate’s subsidiary (including a body corporate that is that other body corporate’s subsidiary by another application or other applications of this paragraph). (3) Without limiting by implication the circumstances in which the composition of a body corporate’s board of directors is to be taken to be controlled by another body corporate, the composition of a body corporate’s board of directors shall be taken to be controlled by another body corporate if that other body corporate, by the exercise of some power exercisable by it with or without the consent or concurrence of any other person, can appoint or remove all or a majority of the directors, and for the purposes of this provision that other body corporate shall be deemed to have power to make such an appointment if: (a) a person cannot be appointed as a director without the exercise in his favour by that other body corporate of such a power; or (b) a person’s appointment as a director follows necessarily from his being a director or other officer of that other body corporate. (4) In determining whether a body corporate is a subsidiary of another body corporate: (a) any shares held or power exercisable by that other body corporate in a fiduciary capacity shall be treated as not held or exercisable by it; (b) subject to paragraphs (c) and (d), any shares held or power exercisable: (i) by a nominee for that other body corporate (except where that other body corporate is concerned only in a fiduciary capacity); or (ii) by, or by a nominee for, a subsidiary of that other body corporate, not being a subsidiary that is concerned only in a fiduciary capacity, shall be treated as held or exercisable by that other body corporate; (c) any shares held or power excisable by any person by virtue of the provisions of any debentures of the first‑mentioned body corporate, or of a trust deed for securing any issue of such debentures, shall be disregarded; and (d) any shares held or power exercisable by, or by a nominee for, that other body corporate or its subsidiary (not being held or exercisable as mentioned in paragraph (c)) shall be treated as not held or exercisable by that other body corporate if the ordinary business of that other body corporate or its subsidiary, as the case may be, includes the lending of money and the shares are held or the power is exercisable only by way of security given for the purposes of a transaction entered into in the ordinary course of business in connection with the lending of money, not being a transaction entered into with an associate of the other body corporate or its subsidiary. (5) A reference in this section to the holding company of a body corporate shall be read as a reference to a body corporate of which that other body corporate is a subsidiary. (6) In this section, debenture includes debenture stock, bonds, notes and any other document evidencing or acknowledging indebtedness of a body corporate in respect of money that is or may be deposited with or lent to the body corporate, whether constituting a charge on property of the body corporate or not.

6 Groups of prescribed corporations

Where 2 or more prescribed corporations are related to each other, those corporations shall, for the purposes of this Act, be deemed to be members of a group of prescribed corporations.

7 Operation of retail sites

(1) For the purposes of this Act, a retail site shall, subject to subsections (2) and (3), be taken to be operated by a prescribed corporation during a particular month if: (a) on any day or days during that month, the corporation owns, or is a lessee or licensee in respect of, that site; and (b) on that day or any of those days, motor fuel is, at that site: (i) sold by retail by or on behalf of the corporation; or (ii) sold by retail by a person (as servant or agent of another person) under an agreement to which the corporation is a party, where, under that agreement or any other agreement to which the corporation is a party, the corporation receives or is entitled to receive any payments in respect of any such sale or sales, other than payments in respect of the purchase of that motor fuel by that person from the corporation. (2) Except for the purposes of paragraph 8(2)(b), a retail site shall not be taken to be operated during a particular month by a prescribed corporation if the quantity of motor fuel that was sold by retail at the site during that month: (a) by or on behalf of the corporation; or (b) by a person under an agreement referred to in subparagraph (1)(b)(ii), (otherwise than by way of exempt retail sales) was less than 30,000 litres or such other number of litres as is prescribed. (3) A retail site shall not be taken to be operated by a prescribed corporation during a month if a franchise agreement relating to the site is in effect at anytime during that month. (4) In this section:

authority of the Commonwealth means:

(a) a body, whether incorporated or unincorporated, established for a public purpose by or under a law of the Commonwealth or of a Territory; or
(b) any other body, being:
(i) a body, whether incorporated or unincorporated, established by the Governor‑General or by a Minister; or
(ii) an incorporated company in which the Commonwealth or a body corporate falling within paragraph (a) or subparagraph (i) of this paragraph has a controlling interest.

authority of a State means:

(a) an authority, whether incorporated or unincorporated, established for a public purpose by or under a law of a State; or
(b) a local governing body established under a law of a State.

exempt retail sale means a sale by retail to the Commonwealth or a State or an authority of the Commonwealth or of a State.

State includes the Northern Territory.

8 Temporary operation of retail sites

(1) Except as provided by this section, a prescribed corporation shall not be taken for the purposes of this Act to operate a retail site temporarily during a particular month. (2) A prescribed corporation that operates a retail site during a particular month shall be taken for the purposes of this Act to operate the site temporarily during that month if: (a) before the 3 months immediately preceding that month, neither the corporation nor a related corporation operated the site; (b) the site is or has been, in a statement lodged under section 11 in relation to that month or an earlier month, specified as being temporarily operated; and (c) the site is not, in a statement so lodged in relation to that month, specified as not being temporarily operated. (3) Where a retail site has been rebuilt or restored, a prescribed corporation that operates the site during the month in which the rebuilding or restoration is completed or any subsequent month shall, subject to subsection (4), be taken for the purposes of this Act to operate the site temporarily during that month or that subsequent month, as the case may be. (4) A corporation shall not be taken for the purposes of this Act by virtue of subsection (3) to operate a retail site temporarily during any month occurring more than 3 months after the first month (being a month after the month in which the rebuilding or restoration is completed) during which the corporation operates that site, but nothing in this subsection prevents any fresh application of subsection (3) by reason of any further rebuilding or restoration of the site. (5) Where, during a particular month: (a) a prescribed corporation operates a retail site in relation to which a franchise agreement (being an agreement in relation to which the corporation was the franchisor) was in effect at a time before that month; and (b) the corporation proposes, in good faith and in the normal course of business: (i) to enter, as franchisor, into a fresh franchise agreement in relation to the site; or (ii) to enter into an agreement in pursuance of which motor fuel will be sold by retail at the site by a person (not being an employee of the corporation) acting as agent of the corporation, the corporation shall, subject to subsection (7), be taken for the purposes of this Act to operate the site temporarily during that month. (6) Where, during a particular month, a prescribed corporation operates a retail site and proposes, in good faith and in the normal course of business: (a) to dispose of its whole interest in the site and not acquire or re‑acquire any interest in the site; (b) to grant a lease of the site wholly for purposes other than the retail sale of motor fuel; or (c) to enter as franchisor into a franchise agreement in relation to the site, the corporation shall, subject to subsection (7), be taken for the purposes of this Act to operate the site temporarily during that month. (7) Subsection (5) or (6) does not apply in relation to the operation of a retail site by a prescribed corporation during more than 4 consecutive months, but nothing in this subsection prevents a fresh application of that subsection in relation to the operation of the site by the corporation: (a) in the case of subsection (5): after the corporation has entered into an agreement; or (b) in the case of subsection (6): after the corporation has granted a lease, or entered into an agreement, as the case may be, in pursuance of a proposal by reason of which that subsection last so applied.

9 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.

10 Restrictions on operation of retail sites

(1) A prescribed corporation may, subject to this section, operate a retail site during any month. (2) A prescribed oil company (not being a member of a group of prescribed corporations) shall not operate, during a month, a number of retail sites exceeding the number of retail sites specified in the regulations in relation to that company in relation to that month. (3) A member of a group of prescribed corporations one of which is a prescribed oil company shall not operate a retail site during a month if the total number of retail sites (including that site) that would be operated during that month by the members of that group of corporations would exceed the number of retail sites specified in the regulations in relation to that prescribed oil company in relation to that month. (4) In ascertaining for the purposes of this section the number of retail sites operated during a particular month, any diesel fuel sites operated, or any sites temporarily operated, during that month shall be disregarded.

11 Returns

(1) Where a prescribed oil company, or a member of a group of prescribed corporations one of which is a prescribed oil company, operates a retail site during the month of January in the year 1985 or the month of January in any subsequent year, the prescribed oil company shall, within 30 days after the end of that month, lodge with an authorized officer a statement in accordance with the appropriate form stating, in respect of the site: (a) the name of the corporation (in this subsection referred to as the relevant corporation) that operated the site during that month; (b) particulars of the situation of the site; (c) whether the relevant corporation owned, or was a lessee or licensee in respect of, the site on any day or days during that month; (d) whether motor fuel was sold by retail during that month at the site: (i) by or on behalf of the relevant corporation; or (ii) by a person under an agreement of the kind to which subparagraph 7(1)(b)(ii) applies to which the relevant corporation is a party; (e) whether, during that month, the site was a diesel fuel site or a site temporarily operated and, in the case of a site temporarily operated, the circumstances by reason of which it was to be taken to be temporarily operated; and (f) such other matters as are prescribed. (1A) Where (whether by reason of the operation of subsection 7(2) or (3) otherwise) during a month referred to in subsection (1): (a) no retail sites were operated by a particular prescribed oil company (not being a member of a group of prescribed corporations); or (b) no member of a particular group of prescribed corporations (being a group of which a prescribed oil company is a member) operated any retail sites, the prescribed oil company shall, within 30 days after the end of that month, lodge with an authorized officer a statement in accordance with the appropriate form stating that fact. (2) Where a prescribed oil company, or a member of a group of prescribed corporations one of which is a prescribed oil company, operates a retail site during a month (not being January in any year) after January 1985 and did not operate the site during the month immediately preceding the first‑mentioned month, the prescribed oil company shall, within 30 days after the end of the first‑mentioned month, lodge with an authorized officer a statement in accordance with the appropriate form stating, in respect of the operation of the site during the first‑mentioned month, such of the matters referred to in paragraphs (1)(a) to (f) (inclusive) as are applicable. (3) Where: (a) a statement has been lodged under this section in respect of the operation, during a particular month, of a retail site by a corporation (in this subsection referred to as the relevant corporation), being a prescribed oil company or a member of a group of prescribed corporations one of which is a prescribed oil company; and (b) during a subsequent month the site is not operated by the relevant corporation, the prescribed oil company shall, within 30 days after the end of the first such subsequent month, lodge with an authorized officer a statement in accordance with the appropriate form stating that the site was not operated by the relevant corporation during that first subsequent month. (4) Where: (a) a prescribed oil company, or a member of a group of prescribed corporations one of which is a prescribed oil company, operates a retail site during a month (in this subsection referred to as the relevant month) in circumstances to which neither subsection (1) nor (2) applies; (b) a statement has, or statements have, been lodged under any of the provisions of this section (including this subsection) in respect of the site in relation to a previous month or previous months; and (c) the matters specified in that statement, or the later or latest of those statements, as the case may be, would, if the statement related to the relevant month, be incorrect or insufficient, the prescribed oil company shall, within 30 days after the end of the relevant month, lodge with an authorized officer a statement in accordance with the appropriate form stating, in respect of the operation of the site during the relevant month, such of the matters referred to in paragraphs (1)(a) to (f) (inclusive) as are applicable. (5) A reference in a subsection of this section to the appropriate form shall be read as a reference to such form as is prescribed for the purposes of that subsection or, if no form is so prescribed, such form as the Minister approves for the purposes of that subsection. (6) Where a statement is required by a provision of this section to be lodged within a particular period, the obligation to lodge that statement continues, notwithstanding that that period has expired, until that statement is lodged. (7) A person may: (a) inspect any statement lodged under a provision of this section; or (b) require a copy of, or extract from, any such statement to be given by an authorized officer, on payment for each inspection, or each copy or extract, of such amount (if any) as is prescribed. (8) A corporation shall not: (a) include in a statement lodged in purported compliance with a provision of this section any information that is false in a material particular; or (b) omit from any such statement any information that is required by this section to be included.

12 Injunctions

(1) Where, on the application of the Minister or any other person, the Court is satisfied that a prescribed corporation has engaged, or is proposing to engage, in conduct that constitutes or would constitute a contravention of section 10, the Court may grant an injunction in such terms as the Court determines to be appropriate. (2) Where in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1). (4) The Court may rescind or vary, or suspend the operation of, an injunction granted under subsection (1) or (2). (5) The power of the Court to grant an injunction restraining a corporation from engaging in conduct may be exercised: (a) whether or not it appears to the Court that the corporation intends to engage again, or to continue to engage, in conduct of that kind; (b) whether or not the corporation has previously engaged in conduct of that kind; and (c) whether or not there is an imminent danger of substantial damage to any person if the corporation engages in conduct of that kind.

13 Pecuniary penalties

(1) If the Court is satisfied that a prescribed corporation has contravened a provision of section 10 or 11, the Court may order the corporation to pay to the Commonwealth such pecuniary penalty, not exceeding: (a) in the case of a contravention of subsection 10(2) or (3)—$10,000 for each retail site exceeding the number of retail sites specified in the regulations in accordance with that subsection; (b) in the case of a contravention of subsection 11(1), (1A), (2), (3) or (4)—$5,000; or (c) in the case of a contravention of subsection 11(8)—$10,000, as the Court determines to be appropriate having regard to all relevant matters, including the circumstances in which the contravention took place and whether the corporation has previously been found by the Court in proceedings under this section to have contravened that provision. (1A) Where an act or omission by a prescribed corporation constitutes a contravention of subsection 11(8) and also a contravention of any other subsection of section 11, the corporation may be ordered to pay a penalty in respect of either contravention, but not both. (2) The Minister may institute a proceeding in the Court for recovery on behalf of the Commonwealth of a pecuniary penalty referred to in subsection (1). (3) A proceeding under subsection (2) may be commenced within 6 years after the contravention. (4) Where, in a proceeding under this section: (a) it is established that: (i) a statement has been lodged under section 11 stating that a corporation operated a retail site during a particular month; and (ii) a statement has not been lodged under subsection 11(3) stating that the corporation did not operate the site during a subsequent month; and (b) it is alleged that the corporation operated the site during a month after the month referred to in subparagraph (a)(i), the first‑mentioned statement is prima facie evidence that the corporation operated the site as so alleged. (5) Criminal proceedings do not lie against a person in respect of a contravention of a provision of section 10, 11 or 16. (6) In this section, contravention, in relation to a provision, includes an attempt to contravene that provision.

14 Production of books etc.

(1) Where an authorized officer has reasonable grounds to believe that books in the custody or under the control of a person may be relevant to retail sales of motor fuel made at any premises by any person, the officer may, by notice in writing, require the person to produce, at such time and place as are specified in the notice, such of those books as are so specified. (1A) Where an authorized officer requires a person to produce books under subsection (1): (a) if the books are produced, the authorized officer: (i) may take possession of, and may make copes of, or take extracts from, the books; (ii) may retain possession of the books for such period as is necessary to enable the books to be inspected, and copies of, or extracts from, the books to be made or taken; and (iii) during that period shall permit a person who would be entitled to inspect any one or more of the books if they were not in the possession of the authorized officer to inspect at all reasonable times such of the books as that person would be so entitled to inspect; or (b) if the books are not produced, the authorized officer may require the person: (i) to state, to the best of his knowledge and belief, where the books may be found; and (ii) to identify the person who, to the best of his knowledge and belief, last had custody of the books and to state, to the best of his knowledge and belief, where that last‑mentioned person may be found. (1B) A person shall not be subject to any liability by reason that the person complies with a requirement made, or purporting to have been made, under subsection (1). (2) A person who fails to comply with a requirement made under this section is guilty of an offence punishable, on conviction, by a fine not exceeding $1,000. (2A) Subsection (2) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A), see subsection 13.3(3) of the Criminal Code.

(2B) An offence against subsection (2) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(3) In this section, books includes any record of information, any accounts or accounting records, however compiled, recorded or stored, and any document.

15 Regulations

The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.