Version No. 005
Petroleum Products (Terminal Gate Pricing) Act 2000
No. 71 of 2000
Version incorporating amendments as at 30 May 2007
table of provisions
Section Page
ii
Section Page
1. Purpose 1
2. Commencement 1
3. Definitions 1
4. Declaration of suppliers and classes of petroleum products 4
5. Determination of terminal gate price 4
6. Price of sale or supply 6
7. Availability of price information 7
8. Offence relating to price of sale or supply 8
9. Requirement to supply 8
10. Declared suppliers to produce documents and answer questions 9
11. Application of Fair Trading Act 1999 10
12. Repealed 11
13. Regulations 11
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ENDNOTES 12
1. General Information 12
2. Table of Amendments 13
3. Explanatory Details 14
ii
Version No. 005
Petroleum Products (Terminal Gate Pricing) Act 2000
No. 71 of 2000
Version incorporating amendments as at 30 May 2007
14
Petroleum Products (Terminal Gate Pricing) Act 2000
No. 71 of 2000
The Parliament of Victoria enacts as follows:
1. Purpose
The purpose of this Act is to require the determination of terminal gate prices for petroleum products.
2. Commencement
(1) Subject to sub-section (2), this Act comes into operation on a day to be proclaimed.
(2) If this Act does not come into operation before 1December 2001, it comes into operation on that day.
3. Definitions
In this Act—
"automotive gas" means liquefied petroleum gas used or intended to be used for automotive purposes;
S. 3 def. of "business entity" insertedby No. 88/2004 s.4(b).
"business entity" means a person or body that carries on a business other than a petroleum products business;
"declared supplier" means a declared supplier under section 4;
"Director" means the Director within the meaning of the Fair Trading Act 1999;
S. 3 def. of "distributor" substitutedby No. 88/2004 s.4(a).
"distributor" means a person who carries on a business of purchasing petroleum products for resale or re-supply;
s. 3
S. 3 def. of "GST" amendedby No. 29/2006 s.3(Sch. 1 item 26).
"GST" has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth;
S. 3 def. of "officer" insertedby No. 88/2004 s.4(b).
"officer"—
(a) in relation to a body corporate which is a corporation within the meaning of the Corporations Act, has the same meaning as in section 82A of that Act; and
(b) in relation to a body corporate which is not a corporation within the meaning of that Act, means any person (by whatever name called) who is concerned in or takes part in the management of the body corporate or an employee of the body corporate;
"petroleum product" means motor spirit, diesel or automotive gas;
S. 3 def. of "retailer" substitutedby No. 88/2004 s.4(c).
"retailer" means a person who carries on a business of selling or supplying petroleum products to any of the following—
(a) a person other than a business entity ("the purchaser") who purchases the petroleum products only for—
(i) the purchaser's own consumption; or
(ii) consumption by another person, provided there has been no resale by the purchaser and the re-supply by the purchaser does not involve an exchange of goods or services;
s. 3
(b) a business entity that purchases the petroleum products only for—
(i) consumption by the business; or
(ii) resale to its staff or contractors for consumption by the purchasing staff or contractors;
(c) a cooperative (including a cooperative that is a buying group for its members) that purchases the petroleum products only for resale to its members for consumption by the purchasing members;
"supplier" means any person who carries on a business of—
(a) refining or importing petroleum products for the purposes of sale or supply; or
(b) operating a fuel supply terminal; or
(c) supplying petroleum products by wholesale to distributors or retailers;
"terminal gate price" means a price determined under section 5(1) as varied from time to time under section 5(2).
4. Declaration of suppliers and classes of petroleum products
s. 4
The Governor in Council may, by Order published in the Government Gazette—
(a) declare a supplier to be a declared supplier for the purposes of this Act; and
(b) declare a class of petroleum products to be a declared class of petroleum products for the purposes of this Act.
5. Determination of terminal gate price
S. 5(1) substitutedby No. 88/2004 s.5(1).
(1) A declared supplier must, within 14 days after being declared under section 4(a), determine a price ("the terminal gate price") per litre for the sale or supply of each declared class of petroleum products sold or supplied by the declared supplier to a distributor or retailer.
Penalty: 10 000 penalty units.
(2) Subject to sub-section (3), a declared supplier may at any time vary the terminal gate price of a declared class of petroleum products.
(3) A declared supplier must not vary the terminal gate price of a declared class of petroleum products more than once in any 24 hour period.
Penalty: 10 000 penalty units.
S. 5(4) amendedby No. 88/2004 s.5(2).
(4) Subject to sub-section (4A), a terminal gate price must be determined by adding the following together—
(a) the landed international product price of the petroleum products determined in accordance with sub-section (5); and
(b) the excise and other taxes payable by the supplier in respect of the petroleum products; and
(c) the margin determined in accordance with sub-section (7); and
(d) any GST payable on the total amount determined under paragraphs (a), (b) and (c).
S. 5(4A) insertedby No. 88/2004 s.5(3).
(4A) A terminal gate price must be determined by reference to the volume of the petroleum product as measured by the litres the petroleum product occupies, or would occupy, at a temperature of 15°C.
(5) The landed international product price of petroleum products must be determined in accordance with criteria from time to time determined by the Governor in Council by Order published in the Government Gazette.
s. 5
(6) An Order under sub-section (5) may—
(a) leave any matter to be determined by the Director or any other person; and
(b) apply, adopt or incorporate, wholly or partially or as amended in the Order, the provisions of any document issued or published by any body whether—
(i) as issued or published at the time the Order is made or at any time before then; or
(ii) as amended from time to time.
(7) The margin for petroleum products is an amount determined by the supplier which represents a reasonable return to the supplier on the cost of the establishment and operation of the terminal from which the petroleum products are supplied.
(8) The terminal gate price must not include any amount representing all or any of the following—
(a) a discount;
(b) a rebate;
(c) the cost of transport services;
(d) the cost of delivery services;
(e) the cost of credit services;
(f) the cost of brand fees;
(g) the cost of provision of equipment;
S. 5(8)(h) amendedby No. 88/2004 s.5(4).
(h) any return on assets owned or leased by the declared supplier at a retail site for the sale or supply of petroleum products.
S. 6 amendedby No. 88/2004 s.6.
6. Price of sale or supply
s. 6
The price at which a declared supplier sells or supplies petroleum products of a declared class to a distributor or retailer is to be an amount determined by—
(a) adding to the current terminal gate price for those petroleum products any amount charged by the supplier for—
(i) transport services; and
(ii) delivery services; and
(iii) credit services; and
(iv) brand fees; and
(v) the provision of equipment; and
(b) deducting from the total determined under paragraph (a) any discount or rebate provided by the declared supplier for that sale or supply.
7. Availability of price information
(1) A declared supplier must publish in the prescribed manner the terminal gate price determined by the supplier for petroleum products of a declared class and any variation of that price.
Penalty: 5000 penalty units
S. 7(2) amendedby No. 88/2004 s.7(1).
(2) A declared supplier must make available to any distributor or retailer, on request, details of the charges for any optional services provided or to be provided by the declared supplier to the distributor or retailer who made the request in relation to the sale or supply of a declared class of petroleum products, including transport services, delivery services, credit services, brand fees and provision of equipment.
Penalty: 5000 penalty units.
(3) A declared supplier who is the owner or lessor of a retail site for the sale of petroleum products may from time to time determine an amount representing a return on its asset in that site to be paid by the retailer at that site in addition to the terminal gate price for the sale or supply of petroleum products of a declared class.
s. 7
(4) A declared supplier must make available to a retailer, on request, any current amount determined by the declared supplier under sub-section (3) in respect of that retailer.
Penalty: 5000 penalty units.
S. 7(5) amendedby No. 88/2004 s.7(3).
(5) A declared supplier who sells or supplies a load of petroleum products of a declared class to a distributor or retailer must include in any invoice for that sale or supply details of—
(a) the current terminal gate price applying in respect of that load; and
(b) any discounts or rebates provided by the supplier in respect of that load; and
(c) any charges determined under sub-section (2), applying in respect of that load; and
(d) if an amount is determined under sub-section(3) on a per litre basis, any amount so determined applying to that load.
Penalty: 5000 penalty units.
S. 7(6) insertedby No. 88/2004 s.7(2).
(6) Sub-section (5) does not apply to a sale or supply under a contract entered into before 1November 2000.
8. Offence relating to price of sale or supply
s. 8
(1) A declared supplier must not sell or supply petroleum products of a declared class to a distributor or retailer at a price determined in any manner otherwise than in accordance with section6.
Penalty: 10 000 penalty units.
(2) This section does not apply to a sale or supply under a contract entered into before 1 November 2000.
(3) A provision of any contract for the sale or supply of petroleum products of a declared class which is entered into on or after 1 November 2000 is void to the extent that it is inconsistent with this section.
9. Requirement to supply
(1) Subject to sub-section (2), a declared supplier must not refuse to supply petroleum products of a declared class to a distributor or retailer.
Penalty: 10 000 penalty units.
(2) A declared supplier may refuse to supply petroleum products if—
S. 9(2)(a) substitutedby No. 88/2004 s.8(a).
(a) the regulations exempt the supplier from compliance with sub-section (1) in the case of a shortfall in the availability of the petroleum products; or
(b) the load to be supplied is less than 35000litres; or
(c) it would be unsafe or in contravention of any other Act or law to supply that load; or
S. 9(2)(d) amendedby No. 88/2004 s.8(b).
(d) it is not the practice of the supplier to supply petroleum products of that class at the time requested; or
S. 9(2)(e) insertedby No. 88/2004 s.8(c).
(e) the distributor or retailer is unable to pay for the petroleum products.
S. 10 amendedby No. 88/2004 s.9 (ILA s.39B(1)).
10. Declared suppliers to produce documents and answer questions
s. 10
(1) For the purpose of monitoring compliance with this Act or the regulations, the Director may require a declared supplier at a time and place specified by the Director—
(a) to answer orally or in writing any questions put by the Director relating to the declared supplier's business as a declared supplier;
(b) to supply orally or in writing information required by the Director relating to that business;
(c) to produce to the Director specified documents or documents of a specified class relating to that business.
S. 10(2) insertedby No. 88/2004 s.9.
(2) A person must not, without reasonable excuse, refuse or fail to comply with a requirement of the Director under this section.
Penalty: 60 penalty units.
S. 11 amendedby No. 103/2004 s.82(1) (ILA s.39B(1)).
11. Application of Fair Trading Act 1999
s. 11
S. 11(1) amendedby No. 88/2004 s.10.
(1) Part 10 of the Fair Trading Act 1999 (except section 121) extends and applies (with any necessary modifications) to this Act as if any reference in that Part to the Fair Trading Act 1999 were a reference to this Act.
S. 11(2) insertedby No. 103/2004 s.82(1), amended by No. 17/2007 s.36(Sch. item10.1).
(2) Sections 106HA, 143 and 144 and Division 2 of Part 11 (except section 155) of the Fair Trading Act 1999 extend and apply (with any necessary modifications) to this Act as if any reference in those provisions to the Fair Trading Act 1999 were a reference to this Act.
S. 11(2A) insertedby No. 17/2007 s.36(Sch. item10.2).
(2A) For the purposes of subsection(2), section153 of the Fair Trading Act 1999 applies as if a reference in that section to Part2, 2A, 2B, 3, 4, 5 or 6 of the Fair Trading Act 1999 were a reference to this Act.
S. 11(3) insertedby No. 103/2004 s.82(1).
(3) For the purposes of sub-section (2), section 154 of the Fair Trading Act 1999 applies as if a reference to prescribed proceedings were a reference to—
(a) proceedings for an offence against a provision of this Act (except an offence applied by sub-section (1)); or
S. 11(3)(b) amendedby No. 17/2007 s.36(Sch. item10.3).
(b) proceedings on an application for an injunction under section 149, 149A, 150, 151A or 151B of the Fair Trading Act 1999 (as applied by sub-section (2)) against a person alleged to have contravened a provision of this Act (except an offence applied by sub-section(1)); or
(c) proceedings on an application for an order under section 158, or for damages under section 159, of the Fair Trading Act 1999 (as applied by sub-section(2)).