Bills Digest No. 118, 2016–17
PDF version [633KB]
Alex St John and Sophie Power
Science, Technology, Environment and Resources Section
22 June 2017
Contents
The Bills Digest at a glance
What do the Bills do?
Why has the Government introduced the
Bills?
What do other people think?
Purpose of the Bills
Structure of the Bills
Background
Graph 1: Australian production and
consumption of oil, 1965–2015
Committee consideration
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions
Petroleum and Other Fuels Reporting
Bill 2017
Objects of the Bill
Reporting scheme coverage
Obligation to report
Collection and publication of
information
Protection of collected information
Enforcement of obligation to report
Petroleum and Other Fuels Reporting
(Consequential Amendments and Transitional Provisions) Bill 2017
Date introduced: 30
March 2017
House: House of
Representatives
Portfolio: Environment
and Energy
Commencement: The
day after Royal assent.
Links: The links to the Bills,
their Explanatory Memoranda and second reading speeches can be found on the
home page for the Petroleum
and Other Fuels Reporting Bill 2017 and the Petroleum
and Other Fuels Reporting (Consequential Amendments and Transitional
Provisions) Bill 2017 or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at June 2017.
The Bills Digest at a glance
What do the Bills do?
The Petroleum and Other Fuels Reporting Bill 2017 (the
Reporting Bill) and the Petroleum and Other Fuels Reporting (Consequential
Amendments and Transitional Provisions) Bill 2017 (the Consequential Amendments
Bill) establish a scheme for the mandatory reporting of fuel information to the
Department of Environment and Energy. The Bills establish an obligation for
certain regulated entities involved in the production, refining, import,
export, stockholding or wholesaling of a range of petroleum fuels to provide
information relating to those activities to the Department, and provides
measures for enforcing compliance with the scheme. The Bills also provide
protection for information gathered under the reporting scheme, and penalties
for the unauthorised use, recording or disclosure of the protected information.
Why has the
Government introduced the Bills?
Australia is a member of the International Energy Agency
and a signatory to its founding treaty. As such, Australia is required to
maintain, and report on, emergency oil reserves equivalent to 90 days’ worth of
net oil imports. However, Australia has been non-compliant with its obligations
for some time, and introducing mandatory reporting of fuel statistics is part
of the Government’s plan to return to compliance. The Government argues the
current method of collecting fuel information (by a voluntary survey), is no
longer of acceptable quality or coverage due to increasing non-participation in
the survey by industry participants.
What do
other people think?
Reaction to the idea of a mandatory petroleum reporting
scheme has been mixed—some petroleum producers believe it will impose an
unnecessary regulatory burden, whilst some downstream petroleum businesses as
well as motoring groups have welcomed the initiative in the interests of
greater transparency in the transport fuels sector.
Purpose of
the Bills
The Petroleum and Other Fuels Reporting Bill 2017 (the
Reporting Bill) establishes a scheme for the compulsory collection of data
related to the production, refining, trade and stockholding of certain
petroleum products; establishes legal protections for data so collected; and
provides measures for enforcing compliance with the mandatory reporting regime.
The Petroleum and Other Fuels Reporting (Consequential
Amendments and Transitional Provisions) Bill 2017 (the Consequential Amendments
Bill) amends the Competition
and Consumer Act 2010 and the Taxation Administration
Act 1953 to provide that the Australian Competition and Consumer Commission
and the Australian Taxation Office may lawfully provide otherwise confidential
information to the Department of the Environment and Energy for the purposes of
administering the petroleum reporting scheme.
Structure
of the Bills
The Reporting Bill has six parts:
- Part
1 deals with preliminary matters, including important definitions of covered
fuels and activities
- Part
2 establishes the duty of regulated entities to provide a report to the
Secretary of the Department of the Environment and Energy regarding certain
covered petroleum activities and products
- Part
3 permits the Secretary of the Department to collect and publish information
regarding covered petroleum products
- Part
4 contains secrecy provisions protecting collected information, and provisions limiting
the recording, use and disclosure of protected information
- Part
5 sets out powers to enforce the scheme’s obligations using the Regulatory Powers
(Standard Provisions) Act 2014 and
- Part
6 deals with miscellaneous matters regarding the treatment of trusts;
delegation of powers; a review of the proposed Act; and the creation of
legislative rules.
The Consequential Amendments Bill has one schedule that
makes consequential amendments to two Acts, and clarifies when and where the
scheme will be applied.
Background
Australia is a member of the International Energy Agency
(IEA), and a signatory to the Agreement on an International Energy Program
that created it.[1]
That agreement was concluded in response to the oil shock of 1973–4, in which
the Organisation of Arab Petroleum Exporting Countries heavily restricted oil
exports in response to geopolitical events, which had significant ramifications
for the global economy.[2]
The agreement (and the IEA) seeks to ameliorate the impacts of further
interruptions to oil supply, and encourage members to work collectively to
ensure security of energy supplies (particularly oil).[3]
A key requirement of IEA membership (and the Agreement
on an International Energy Program) is that countries that are net
importers of oil maintain a stockpile equivalent to 90 days’ worth of imports.[4]
In the time that Australia has been a member, particularly between 1985 and
2000, Australia’s oil production and consumption have been comparable. This
meant Australia was essentially self-sufficient in oil, and exempt from the
requirements to keep a 90-day reserve. However, Australia’s oil production
peaked in 2000, and since then the widening gap between consumption and
production has been met by imports (see graph 1)[5].
Despite this increased reliance on imports, the Government admits that Australia
has not maintained a 90-day stockpile and has been in breach of its obligations
since March 2012;[6]
as at January 2017, Australia had only 48 days’ worth of imports—the only IEA member
country to be in breach of its obligations.[7]
Graph 1: Australian production and consumption of oil, 1965–2015
Source: British Petroleum (BP), BP statistical review of
world energy June 2016, BP, London, 2016.
Australia’s liquid fuel security has been the subject of
considerable discussion over the last few years, particularly in the context of
oil refining capacity in Australia being withdrawn. Motoring lobby group the
National Roads and Motorists’ Association has released several
reports, which it argues highlight Australia’s vulnerability to import
disruptions.[8]
Vulnerability to supply chain disruptions has been demonstrated recently in
Australia although imports were not always to blame; Melbourne Airport has
experienced at least two shortages of jet fuel due to delayed shipments in 2015
and 2016,[9]
and a diesel shortage in Victoria in late 2012 was blamed on storm damage to
the refinery at Geelong.[10]
The Government and some stakeholders have argued that the
current mode of collection of fuel statistics, a voluntary survey, is no longer
adequate as some industry participants do not take part in the survey. In order
to improve the quality and completeness of information on Australia’s fuel
holdings (and hence information on its compliance with IEA obligations), the
Government has proposed that reporting of fuel information be made mandatory.[11]
In the 2013–14 Budget, the Gillard Government announced
that it would provide the then-Department of Resources, Energy and Tourism
(RET) with $5.1 million to study a return to compliance with Australia’s IEA
obligations, and introduce mandatory fuel reporting.[12]
RET launched a consultation process on mandatory data reporting in mid-2013,
inviting submissions from industry.[13]
However, the mandatory data reporting scheme did not appear to have gone any
further at that point—it seems to have been overtaken by the policy push to
reduce the size and scope of government activity in the early days of the Abbott
Government, with a view to ‘reduce burden on industry’.[14]
The Senate Standing Committee on Rural and Regional
Affairs and Transport (the Committee) conducted an inquiry in early 2015 into Australia’s
Transport Energy Resilience and Sustainability, which examined Australia’s
compliance with its IEA obligations.[15]
That report recommended:
- the
Government conduct a comprehensive risk assessment of Australia’s fuel supply,
availability and vulnerability
- that
monthly mandatory fuel reporting be introduced and
- that
the Government should develop a comprehensive Transport Energy Plan.[16]
The Government announced in the 2016–17 Budget that it
would provide $23.8 million to the Department of Industry, Innovation and
Science (then responsible for energy policy) over four years to work towards
returning to compliance with the IEA requirements.[17]
The Government also provided a plan to the Governing Board of the IEA to return
to compliance by 2026, a part of which was establishing a mandatory data
reporting scheme by 1 January 2018.[18]
The Government issued its response to the Committee’s report in November 2016,
outlining relevant parts of the plan to return to compliance.[19]
The Government agreed with two of the committee’s recommendations, relating to
developing a whole-of-government risk assessment of Australia’s fuel supply,
availability and vulnerability, and implementing mandatory petroleum
information reporting. It disagreed with a recommendation to develop a
Transport Energy Plan directed at achieving a secure, affordable and
sustainable transport energy supply, arguing that the 2015 Energy White
Paper fulfilled this role.[20]
The Department of the Environment and Energy released a
consultation paper in September 2016 on the design of a mandatory reporting
scheme, inviting submissions from industry stakeholders.[21]
The consultation received 18 submissions, of which only 10 were published.
Matters raised in the submissions were varied, but recurrent themes included:
- changes
from the existing voluntary reporting scheme for the Australian Petroleum
Statistics should be minimal, with some improvements to the quality and
coverage of the data collected
- costs
to industry and motorists should be minimised and
- expanded
data-sharing across government agencies should be employed to reduce the burden
of compliance.
Support for the scheme was split. Upstream (production)
industry stakeholders Chevron and the Australian Petroleum Production and
Exploration Association complained of increased regulatory burden and a lack of
rigorous justification or cost-benefit analysis.[22]
In contrast, consumers, motoring groups and downstream (wholesale and retail)
industry stakeholders were generally supportive of the move.[23]
After consultation, the Government has continued to
propose a comprehensive mandatory petroleum data reporting scheme, which this
Bill would legislate. The Department of the Environment and Energy is
continuing to undertake consultation on detailed scheme design elements that
will presumably be matters covered by legislative rules if the proposed
mandatory reporting scheme is enacted.[24]
Committee
consideration
As of the time of writing, the Bills have been deferred to
the next meeting of the Senate Standing Committee for the Selection of Bills.[25]
The Senate Standing Committee for the Scrutiny of Bills
considered the Bills in its fifth
scrutiny digest of 2017. In that report, the Committee raised concerns that
the Reporting Bill allows the Secretary to delegate coercive powers (in this
instance, powers to compulsorily monitor compliance with the mandatory fuel
reporting scheme) to an unduly broad range of persons, without regard to their
qualifications or attributes. The Committee requested the Minister’s advice on
this issue, including whether the Reporting Bill could be amended to restrict
the provision of coercive powers to Australian Public Service Employees of
Executive level or higher, and/or to provide stronger legislative guidance as
to the circumstances under which contractors or consultants may be authorised
to monitor compliance with the scheme.[26]
The Minister has responded to the Committee's comments, as
set out in the sixth
scrutiny digest. The Minister advised that he did not see any need to amend
the Bill as requested by the Committee. In particular, he did not consider it
appropriate to limit the appointment of authorised persons to SES or Executive
level employees, given the Department’s existing practices whereby the
Secretary currently delegates some compliance monitoring powers under other
legislation to relatively junior employees. The Minister advised that ‘with
effective training, clear guidance and appropriate direction’, the Department
‘has found that APS level staff are more than capable of effectively exercising
compliance monitoring powers’.[27]
In relation to whether the Bill should provide further guidance on the
circumstances and conditions under which the Secretary may appoint an
authorised person, the Minister considered ‘it more appropriate to leave the
determination of what qualifications or experience is required to the
discretion of the Secretary of the Department’.[28]
The Committee noted the Minister’s advice, but considered
that it would be appropriate if the power to delegate to any APS employee in
the Department or to a consultant or contractor were limited to those with
appropriate training in the use of compliance monitoring powers. The Committee
further requested that the key information provided by the Minister be included
in the Explanatory Memorandum. Finally, the Committee drew its scrutiny
concerns to the attention of Senators and left to the Senate the
appropriateness of allowing for a broad delegation of coercive powers.[29]
The Scrutiny of Bills Committee had no comment on the
Consequential Amendments Bill.[30]
Policy
position of non-government parties/independents
As at the time of writing, no non-government parties or
independents had expressed a position on the Bills. However, the 2015 Senate Rural
and Regional Affairs and Transport Committee report recommending the
introduction of mandatory reporting was a bipartisan report, with the
Australian Greens making additional comments relating to reducing the need for
fossil fuel use in transport.[31]
Position of
major interest groups
There has not yet been commentary by stakeholders relating
to the Bills, however, their positions on mandatory reporting were established
in the consultation process undertaken by the Department of the Environment and
Energy, outlined earlier.
Financial
implications
The Bill makes no special appropriations, nor imposes
taxation, however, it does impose a new duty on the Secretary of the Department
that will require financial resources to administer. The Explanatory Memorandum
states that $1.9 million has been allocated from the 2016–17 Budget to
establish the mandatory fuel reporting scheme, and that ongoing resources for
the administration of the scheme will come from within the Department’s existing
budget allocation.[32]
This Bill would also impose additional reporting
requirements on regulated entities in relation to fuel activities, which would
undoubtedly have some financial impact. However, no Regulation Impact Statement
appears to have been released.
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bills’ compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bills are compatible.[33]
The Parliamentary Joint Committee on Human Rights
considered that the Bills do not raise human rights concerns.[34]
Key issues
and provisions
Petroleum
and Other Fuels Reporting Bill 2017
Objects of
the Bill
Clause 3 sets out the objects of the Reporting Bill
and the proposed mandatory fuel reporting scheme. Those objects include to:
- assist
the Commonwealth to monitor fuel security, to allow the Australian Government
to develop policies to prevent or prepare for interruptions to fuel supply
- assist
the Government to give effect to Australia’s obligations under the Agreement
on an International Energy Program (and any other agreements relating to
energy security) and
- facilitate
the publication of information relating to Australia’s petroleum and other fuel
markets.
Reporting
scheme coverage
The reporting scheme will include essentially all
petroleum products that have a fuel use, as well as some non‑petroleum
fuels. Clause 5 sets out a definition for ‘covered products’ that
includes natural gas, petroleum gas, liquid fuels, greases, lubricants and
bitumen, as well as biofuels and hydrogen. The definition also includes the
ability for other fuels or fuel-related products to be added by legislative
rules.
Clause 5 also provides a definition for ‘covered
activities’, which are essentially any commercial-type dealing relating to
covered products: producing, refining, trade, wholesaling or stockholding.
Other activities may be prescribed by the rules.
Clause 8 provides that the new law will apply to
the offshore areas of the states and territories of Australia. The offshore
areas are those regulated by the Offshore Petroleum and Greenhouse Gas
Storage Act 2006—generally the area between a line three nautical miles seaward
from the territorial
sea baseline, and the edge of the continental
shelf.[35]
This is an important provision, as the vast majority of Australia’s petroleum
is produced in offshore areas such as the North West Shelf and Bass Strait.[36]
No provision seems be made to apply the new law to the Joint Petroleum
Development Area (JPDA) between Australia and Timor-Leste; this is consistent
with current petroleum reporting practice that regards petroleum from the JPDA
as imported.[37]
Obligation
to report
Clause 11 of the Reporting Bill imposes an
obligation on a person, whose identity is to be prescribed by legislative
rules, to make a report to the Secretary of the responsible Department
(currently Environment and Energy), if a regulated entity (generally a
corporation or trust, or an entity of an Australian territory) has undertaken a
covered activity with a covered product. The Explanatory Memorandum says that ‘the
person specified in the Rules will generally be the owner of the covered
product. In most cases, the owner would also be the regulated entity’.[38]
This has the general effect that businesses carrying on production, refining,
wholesaling, imports, exports or stockholding of covered products will be
obligated to make a report on their activities.
The report made under clause 11 must include ‘fuel
information’ in relation to the covered activity or covered product. ‘Fuel
information’ is defined broadly in clause 5 as any raw data, or any value-added
information product, that relates to covered activities or the quantity,
quality or characteristics of covered products; or any relevant metadata. It
also includes contextual information relating to covered products (such as the
location, control and ownership of covered products). However, the detailed
requirements of the report that a person must make under clause 11 are to be
prescribed by legislative rules, and are to be given in a form and manner
approved by the Secretary of the Department.[39]
The rules may specify different requirements for different products, activities
or reporting persons.[40]
The Explanatory Memorandum notes that monthly reporting is
envisioned, with reports expected to fall due 15 days after the end of a
reporting period (expected to be a month),[41]
which is linked to Australia’s requirements to provide information to the IEA
about monthly closing stocks of net imports. The Explanatory Memorandum also
raises the possibility that different products may have different reporting
periods.
Subclause 11(2) imposes a maximum civil penalty of
250 penalty units ($45,000 as of June 2017[42])
for failing to give a report complying with the reporting requirements under clause
11. Clause 13 allows the legislative rules, or the Secretary (by written
determination), to provide exceptions to the obligation to report.
The Explanatory Memorandum highlights that rules could be
used to make general exceptions where the required information may be gathered
efficiently through data-sharing. One example given is information relating to
exports and imports of covered products, which may be efficiently gathered by
using data collected by other agencies, such as the Department of Immigration
and Border Protection and the Australian Bureau of Statistics.[43]
Clause 12 seeks to reinforce the constitutional
grounds for the operation of the obligation to report. Under clause 5, the
scheme’s coverage is restricted to regulated entities that are either:
(a) a constitutional
corporation; or
(b) a trust, all of the trustees of which are constitutional corporations;
or
(c) a body corporate that is incorporated in a Territory; or
(d) a body corporate that is taken to be registered in a Territory under
section 119A of the Corporations Act 2001; or
(e) a trust, if the proper law of the trust and the law of the trust’s
administration are the law of a Territory; or
(f) an entity, the core or routine activities of which are carried out in
or in connection with a Territory.[44]
This definition of ‘regulated entities’ appears to be
using the corporations power and the territories power to support the action of
the scheme. Although it is likely that the majority of entities undertaking
commercial activities with petroleum fuels would be constitutional corporations
and therefore covered by this definition, it would nonetheless be possible for
a non-regulated entity to undertake significant operations (such as trade or
stockholding) of petroleum; an example could be a local or state government
entity, or not-for-profit organisation directly importing significant
quantities of diesel for the purposes of power generation. At present, it would
seem that such cases would be relatively insignificant to the overall picture
of Australian petroleum stocks, but it is possible, at least, that an entity
that was not a constitutional corporation could be in control of a nationally
significant amount of fuel.
Clause 12 invokes a number of additional constitutional heads
of power to support and extend the scheme to persons beyond regulated
entities. The Bill invokes the census and statistics power (subclause 12(3)),
the trade and commerce power (subclause 12(6)), as well as the external affairs
power (subclauses 12(4–5)). As the purpose of the Bill is ostensibly to return
to compliance with the IEA agreement, it would seem that the external affairs
power in particular provides strong constitutional grounds for action. The
other listed powers would also appear to well support the action of the scheme.
Collection
and publication of information
Clause 15 of the Reporting Bill expressly
authorises the Secretary of the Department to collect fuel information, and clause
16 provides that the Secretary may publish statistical and non-statistical
fuel information. However, information that is commercial-in-confidence (see further
below) or likely to identify a person must not be published.
Protection
of collected information
Part 4 establishes legal protection for fuel
information gathered under the mandatory reporting scheme. A concept of
‘protected information’ is established by clause 5, which consists of
fuel information that is personal information or commercial-in-confidence fuel
information that is obtained (or derived from use, recording or disclosure of that
information) under the proposed Act, the Competition and Consumer Act 2010
or the Taxation Administration Act 1953.[45]
‘Personal information’ has the same meaning as in the Privacy
Act 1988,[46]
while the meaning of ‘commercial-in-confidence’ is provided by clause 6:
Information is commercial‑in‑confidence
if the Secretary is satisfied that:
(a) release of the information would cause competitive detriment to a
person; and
(b) the information is not in the public domain; and
(c) the information is not required to be disclosed under another law of
the Commonwealth, a State or a Territory; and
(d) the information is not readily discoverable.[47]
This definition is broadly consistent with the definition
of ‘commercial-in-confidence’ in other Commonwealth legislation, such as
section 15 of the Biosecurity
Act 2015 and section 5 of the Australian
Immunisation Register Act 2015.
Clause 6 gives the Secretary of the Department
discretion to determine whether fuel information is protected information or
not. That is, information is commercial-in-confidence if the Secretary is
satisfied that it meets the criteria in clause 6. The Bill does not prescribe
any formal arrangements for determining whether information is protected or
not, nor does it require the Secretary to make a formal record that he or she
has determined information to be commercial-in-confidence, and therefore
protected. In the absence of any formal determination or record, the status of
information as protected or not is unclear. Although the Explanatory Memorandum
‘envision[s] ... a process for appropriately identifying, labelling, storing
and securing protected information’,[48]
such processes are not required by the proposed Act to be implemented.
This is of particular importance because clause 20
creates an offence for the unauthorised recording, use or disclosure of the
information by persons employed or otherwise engaged by the Department
(‘entrusted persons’).[49]
Such unauthorised recording, use or disclosure would be punishable by up to two
years’ imprisonment—this is similar to provisions in other Commonwealth legislation
dealing with personal or commercial-in-confidence information.[50]
Subclause 20(3) creates a defence against the
commission of the offence if the entrusted person does not know that the
information is commercial-in-confidence. However, unless the Secretary of the
Department has determined (and made clear in writing) that information is
commercial-in-confidence and therefore protected, it may be difficult for an
entrusted person to know that information is commercial-in-confidence. Given
that criminal penalties are attached to this provision, it might seem prudent
to use a more robust process for the clear identification of
commercial-in-confidence material. Despite this, the Bill provides that a defendant
will be required to prove that they did not know the material was
commercial-in-confidence.[51]
However, the Explanatory Memorandum notes that this is ‘because of the
difficulties that would arise if the entrusted person’s state of mind was a
matter for the prosecution in establishing the offence’ and suggests that this
approach consistent with the Attorney-General’s Department’s Guide
to Framing Commonwealth Offences, Infringement Notices and Enforcement powers.[52]
Notably, the Senate Scrutiny of Bills Committee did not raise any concerns in
relation to this proposed provision.
Clauses 21–30 provide a range of circumstances
where the use, recording or disclosure of protected information is permitted,
including:
- by
an entrusted person in the exercise of his or her functions or duties (clause
21)
- in
relation to authorised publication (clause 22)
- to
the Minister or their staff (clause 23)
- to,
or with the consent of, the person to whom the information relates (clauses 25,
27 and 28)
- to
a court or tribunal (clause 29)
- to
a Commonwealth, state or territory department, agency or police force for the
purposes of law enforcement (clause 30) and
- to
the Australian Competition and Consumer Commission; the Australian Taxation
Office; approved agencies of Commonwealth, state and territory governments and
the International Energy Agency (in statistical form only) (clause 24).
Clause 31 permits Australian Border Force officials
to disclose fuel information protected by the Australian Border Force Act
2015 to the Secretary of the Department of the Environment and Energy, or an
entrusted person under this regime, for the purposes of the mandatory fuel
reporting scheme, which would otherwise be an offence under that Act.[53]
Enforcement
of obligation to report
Part 5 of the Bill deals with enforcing the obligation to
report fuel information to the Secretary that was created by clause 11. This
part of the Bill uses the standard provisions for compliance monitoring that
are provided by Part 2 of the Regulatory Powers (Standard Provisions) Act
2014 (the Regulatory Powers Act), and enforcement provisions from
Parts 4 and 5 of that Act.[54]
Clause 33 of the Bill applies the monitoring powers
in Part 2 of the Regulatory Powers Act to information given under clause
11. This means, for example, that duly authorised persons[55]
may enter premises either with a warrant or the consent of the occupier of the
premises, to establish whether the obligation to report in clause 11
is being complied with.[56]
Other monitoring powers under the Regulatory Powers Act include powers
to search the premises and its contents (including documents and electronic
equipment); to examine, take measurements or conduct tests of anything on the
premises; secure electronic equipment for the purpose of expert examination;
and to secure evidence.[57]
As noted earlier, the Senate Standing Committee for the Scrutiny of Bills was
concerned that the Reporting Bill would authorise unduly broad categories of
people to exercise these coercive powers.
Subclause 33(3) extends Part 2 of the Regulatory
Powers Act to each of the offshore areas.
Clause 35 applies the civil penalty provisions in Part
4 of the Regulatory Powers Act to the obligation to report, enabling the
Secretary to apply to a relevant court to obtain a civil penalty order for
failing to comply with the obligation to report. This also means that a body
corporate could be fined up to five times the penalty amount specified in clause
11.[58]
As of June 2017, this amount would be $225,000.
Clause 36 applies the infringement notice
provisions in Part 5 of the Regulatory Powers Act, providing the
Secretary with the ability to issue infringement notices for failure to report
under clause 11. Infringement notices can be used to avoid court
proceedings, where parties who are alleged to have contravened penalty
provisions may discharge liability for the alleged contravention without
admitting guilt or liability, in exchange for a particular penalty amount.[59]
For a body corporate, this amount would be 50 penalty units ($9,000 at June
2017).[60]
For an individual, the amount would be 12 penalty units ($2,160 at June
2017).
Part 6 of the Bill deals with miscellaneous
matters:
- clause
38 imposes liability for offences committed by trusts onto the trustee(s)
- clause
39 allows the Secretary to delegate most of their functions under the
proposed Act to Senior Executive Service (SES) employees or acting SES
employees
- clause
40 requires that a review of the proposed Act must be conducted three years
after the commencement of the Act, and that the Minister must table the report
of that review in the Parliament no later than 15 sitting days after receiving
the report and
- clause
41 provides that the Minister may make legislative rules regarding the
proposed Act.
Petroleum
and Other Fuels Reporting (Consequential Amendments and Transitional
Provisions) Bill 2017
The Consequential Amendments Bill makes
amendments to other legislation to facilitate the operation of the mandatory
reporting scheme, principally by allowing the Australian Competition and
Consumer Commission and the Australian Taxation Office to provide protected
information to the Department of the Environment and Energy for the purposes of
administering the mandatory fuel reporting scheme. These amendments would
enable data-sharing as envisioned in the Reporting Bill. The Consequential
Amendments Bill also clarifies when certain provisions of the Reporting Bill
would come into operation.
Section 95ZP of the Competition and Consumer Act 2010
contains an offence, punishable by up to two years imprisonment, for the
disclosure of protected information by entrusted persons under that Act.
Item 1 of the Consequential Amendments Bill amends
the Competition and Consumer Act 2010, inserting a new section 95ZPA,
which permits persons entrusted with protected information under that Act to
disclose such protected information to the Energy Department (currently the
Department of Environment and Energy), as long as such disclosure is for the
purpose of the mandatory fuel reporting scheme. The Chairperson of the
Australian Competition and Consumer Commission (or his or her delegate[61])
is in charge of authorising (in writing) entrusted persons to disclose
protected information, and for determining conditions for the disclosure of
such information.
Item 2 of the Consequential Amendments Bill amends
the Taxation Administration Act 1953 to insert a new provision to allow
taxation officials to disclose confidential taxpayer information to the
Secretary of the Department for the purposes of the administering the fuel
reporting scheme.[62]
Item 3 provides that the obligation to report fuel
information will apply to covered activities that occur from the later of 1 January
2018 and the day the scheme’s legislative rules commence. Items 4–7 clarify
that certain provisions in the Reporting Bill relating to publication and
disclosure of fuel information apply from the commencement of the new law, even
if the protected fuel information was obtained before (or after) the
commencement of the new law.
[1]. Agreement
on an International Energy Program, done in Paris on 18 November 1974, [1979] ATS 7 (entered into force
for Australia 27 May 1979).
[2]. AF
Alhajji, ‘The 1973 oil
embargo: its history, motives and consequences’, Oil and Gas Journal,
103(17), 2 May 2005, p. 24, ProQuest database.
[3]. International
Energy Agency (IEA), ‘History’,
IEA website.
[4]. Agreement
on an International Energy Program, op. cit., article 2.
[5]. Data
source: British Petroleum (BP), BP
statistical review of world energy June 2016, BP, London, June 2016.
[6]. Department
of the Environment and Energy (DEE), ‘IEA
international energy program treaty’, DEE website.
[7]. IEA,
‘Closing oil stock levels in days of net
imports’, IEA website, 14 June 2017.
[8]. National
Roads and Motorists’ Association (NRMA), ‘Sustainable
transport: Australia’s liquid fuel security’, NRMA website; J Blackburn, Australia’s
liquid fuel security, NRMA, Sydney, 28 February 2013.
[9]. J
Chong, ‘Melbourne
airport hit by fuel shortage’, Australian Aviation, 22 January 2015;
S Clark, ‘Fuel
shortage at Melbourne Airport could force flight delays, diversions’, ABC
News, 25 November 2016.
[10]. Australian
Associated Press (AAP), ‘Victorian
storms disrupt diesel supply’, News.com.au website, 7 December 2012.
[11]. DEE,
Consultation
paper: mandatory reporting of petroleum statistics, Canberra, September
2016, pp. 8–10.
[12]. A
St John, ‘Mining
and resources changes’, Budget review 2013–14, Research paper
series, 2012–13, Parliamentary Library, Canberra, 2013.
[13]. Department
of Resources, Energy and Tourism (RET), ‘Mandatory
petroleum data reporting’, RET website, archived version from
6 September 2013.
[14]. Senate
Standing Committee on Rural and Regional Affairs and Transport, Australia's
transport energy resilience and sustainability, The Senate, Canberra,
June 2015, p. 16.
[15]. Ibid.
[16]. Ibid.,
p. ix.
[17]. Australian
Government, ‘Part
2: expense measures’, Budget measures: budget paper no. 2: 2016–17,
p. 128.
[18]. DEE,
‘IEA
international energy program treaty’, DEE website.
[19]. Australian
Government, Australian
Government response to the Senate Rural and Regional Affairs and Transport
References Committee report: Australia’s transport energy resilience and
sustainability, Canberra, November 2016.
[20]. Ibid;
Department of Industry and Science, Energy
white paper, DIS, Canberra, April 2015.
[21]. DEE,
‘Mandatory
reporting of petroleum statistics: public consultation’, DEE website, 28
October 2016.
[22]. P
Fairclough (Chevron Australia), Submission
to the DEE, Public consultation into the mandatory reporting of
petroleum statistics, 6 December 2016; Australian Petroleum
Production and Exploration Association (APPEA), Submission
to the DEE, Public consultation into the mandatory reporting of
petroleum statistics, October 2016.
[23]. Australian
Institute of Petroleum, Submission
to the DEE, Public consultation into the mandatory reporting of petroleum
statistics, 27 October 2016; M Bradley (CEO, Australian
Automobile Association), Submission
to the DEE, Public consultation into the mandatory reporting of petroleum
statistics, 28 October 2016.
[24]. DEE,
‘Targeted
consultation on biofuels, oils, lubricants, greases, waxes, solvents and
petroleum coke’, DEE website.
[25]. Senate
Standing Committee for the Selection of Bills, Report,
6, 2017, The Senate, 15 June 2017.
[26]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 5, 2017, The Senate, 10 May 2017, pp. 46–48.
[27]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 6, 2017, The Senate, 14 June 2017, p. 134.
[28]. Ibid.,
pp. 135–136.
[29]. Ibid.,
p. 139.
[30]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 5, 2017, op. cit., p. 49.
[31]. Senate
Standing Committee on Rural and Regional Affairs and Transport, Australia's
transport energy resilience and sustainability, The Senate, Canberra,
June 2015; Australian Greens, ‘Additional
comments’, Senate Standing Committee on Rural and Regional Affairs and
Transport, Australia's transport energy resilience and sustainability,
The Senate, Canberra, June 2015.
[32]. Explanatory
Memorandum, Petroleum and Other Fuels Reporting Bill 2017 [and] Petroleum
and Other Fuels Reporting (Consequential Amendments and Transitional
Provisions) Bill 2017, p. 3.
[33]. The
Statement of Compatibility with Human Rights can be found at page 4 of the
Explanatory Memorandum to the Bill.
[34]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 4, 2017, 9 May 2017, p. 74.
[35]. Offshore Petroleum
and Greenhouse Gas Storage Act 2006, sections 5, 6 and 8. For further
information on maritime boundaries, see Geoscience Australia (GA), ‘Maritime
boundary definitions’, GA website.
[36]. See
GA, ‘Oil’, GA website, 2016.
[37]. Department
of Environment and Energy (DEE), Australian
petroleum statistics, issue 247, DEE, Canberra, February 2017, p. 27.
[38]. Explanatory
Memorandum, Petroleum and Other Fuels Reporting Bill 2017 [and] Petroleum
and Other Fuels Reporting (Consequential Amendments and Transitional
Provisions) Bill 2017, p. 11.
[39]. Reporting
Bill, paragraph 11(4)(b) and subclause 11(6).
[40]. Reporting
Bill, subclause 11(5).
[41]. Explanatory
Memorandum, op. cit., p. 18.
[42]. Crimes Act 1914,
section 4AA. The Crimes
Amendment (Penalty Unit) Act 2017 will increase the value of a penalty
unit to $210 from 1 July 2017. From that date the maximum penalty will be
$52,500.
[43]. Explanatory
Memorandum, op. cit., p. 19.
[44]. Reporting
Bill, clause 5.
[45]. Reporting
Bill, clause 5.
[46]. Ibid.,
clause 5. See subsection 6(1) of the Privacy Act 1988,
where ‘personal information’ is defined to mean ‘information or an opinion
about an identified individual, or an individual who is reasonably
identifiable’.
[47]. Reporting
Bill, clause 6.
[48]. Explanatory
Memorandum, op. cit., p. 23.
[49]. The
definition of ‘entrusted persons’ is set out in clause 5 of the Reporting Bill.
[50]. For
example, see Census
and Statistics Act 1905, section 19; Agricultural and
Veterinary Chemicals Code Act 1994, section 162.
[51]. See
note after subsection 20(3).
[52]. Explanatory
Memorandum, op. cit., p. 23. See also Attorney-General's
Department (AGD), A guide to framing Commonwealth offences, AGD,
Canberra, September 2011 edition, pp. 50–52.
[53]. Australian Border
Force Act 2015, section 42.
[54]. Regulatory Powers
(Standard Provisions) Act 2014. For further information on the Regulatory
Powers Act, see C Raymond, Regulatory
Powers (Standardisation Reform) Bill 2016, Bills digest, 42, 2016–17,
Parliamentary Library, Canberra, 22 November 2016.
[55]. Clause
34 provides for the appointment of authorised persons by the Secretary.
[56]. Regulatory
Powers Act, section 18.
[57]. Ibid.,
sections 19–22.
[58]. Ibid.,
paragraph 82(5)(a). As set out at footnote 42, from 1 July 2017 the maximum
penalty will be $262,500.
[59]. Ibid.,
section 107.
[60]. Subsection
104(2) of the Regulatory Powers Act provides that unless provided
otherwise, the infringement notice amount must be the lesser of one-fifth of
the maximum penalty that a court could impose and 12 penalty units for an
individual or 60 penalty units for a body corporate.
[61]. Proposed
subsection 95ZPA(4) empowers the Chairperson to delegate his or her powers
under the proposed section to another member of the Commission or an SES
employee or acting SES employee of the Commission.
[62]. Consequential
Amendments Bill, Schedule 1, item 2; Taxation
Administration Act 1953, Schedule 1, section 355–65.
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