Australia: Biofuels reform in NSW: Expansion of the biodiesel and ethanol mandate

Last Updated: 26 October 2016

By: Mark Yum, Partner

In a move to encourage greater competition and transparency in the biofuels market after industry consultation, the Minister for Innovation and Better Regulation, Victor Dominello announced wide reaching reform proposals upon the industry that will impact consumers and fuel retailers.

New requirements for service station operators – the reform package

On 6 April 2016, the Biofuels Amendment Act 2016 received Royal Assent and the current Biofuels Act 2007 (NSW) was amended. The new laws do not yet apply. Presently, it is unknown when the Act will take effect.

On 3 June 2016, NSW Fair Trading opened invitation to the public to make submissions to NSW Fair Trading with respect to a proposed Regulation under the Biofuels Act 2007 which is intended to replace the current Biofuels Regulation 2007. Submissions closed 28 June 2016.

NSW Fair Trading have not confirmed the date the Act will take effect, however it is likely it will be the same date as the proposed new Biofuels Regulation 2016 takes effect.

What is the Biofuels Mandate?

The Biofuels Mandate is also referred to as the "minimum biofuel requirement" and is the minimum percentage of biofuel that must be sold by certain service stations (see below) in comparison to overall sale of fuel products by a particular service station.

If the Biofuels Mandate applies, a service station is required to ensure that:

  1. 6% of all sales of petrol must be of ethanol. For example, this means that if a service station sold 6 litres of E10 (ethanol content of 10%) for every 4 litres of regular unleaded petrol, then it would have met the Biofuels Mandate.
  2. 5% of all sales of diesel must be of biodiesel. This means that if a service station only sells B5 (biodiesel content of 5%), it cannot sell any other type of diesel otherwise it will not meet the Biofuels Mandate. A further example, if a service station sold 5 litres of B20 (biodiesel content of 20%) for every 15 litres of regular diesel, then it would have met the Biofuels Mandate.

The Act requires the service station to assess compliance with the Biofuels Mandate on a quarterly basis.

Who must comply with the Biofuels Mandate?

The amendment Act expanded the categories of service stations who must comply with the Biofuels Mandate. All persons who fall within the definition of volume fuel retailers must comply with the Biofuels Mandate.

A volume fuel retailer is someone who operates or controls:

  1. service station which sells 3 or more types of petrol or diesel fuel and the total volume of petrol and diesel fuel sold exceeds a threshold (the threshold has not yet been set by Parliament); or
  2. 20 or more service stations, none of which are volume fuel service stations.

Previously, the method for determining whether the Biofuels Mandate applied to "Major Retailers"had a more narrow definition than a volume fuel retailer.

Compliance, registration and reporting

The new laws require volume fuel retailers (among other persons) to be registered on an online register of volume fuel retailers maintained by NSW Fair Trading. The registration forms are found on the NSW Fair Trading website.

Volume fuel retailers must also report on a quarterly basis to NSW Fair Trading by lodging with NSW Fair Trading "returns" for the quarter, which must show:

  1. petrol sold (including petrol-ethanol blend);
  2. ethanol sold (in petrol-ethanol blend form);
  3. diesel fuel sold (including biodiesel blend);
  4. biodiesel sold (biodiesel blend); and

any other information required by Regulations. Standard forms for submitting returns can be accessed from the NSW Fair Trading website.

Volume fuel retailers that fail to furnish returns or keep records may be found guilty of an offence under the Act to a maximum penalty of up to $110,000 per offence.

Exemptions may be available

Volume fuel retailers who do not meet the Biofuels Mandate can apply to NSW Fair Trading for an exemption. NSW Fair Trading may grant an exemption to a volume fuel retailer if one or more of the following circumstances exist and an exemption is justified:

  1. it is uneconomic for the volume fuel retailer to comply with the requirement because of the price at
  2. which they are reasonably able to obtain ethanol or biodiesel;
  3. the volume fuel retailer has taken, is taking, or will take all reasonable steps to comply with the Biofuels Mandate;
  4. compliance may result in a risk to public health or safety; or
  5. other extraordinary circumstances demonstrated by the volume fuel retailer.

Repercussions for the service station industry

All stakeholders of the industry are likely to feel the impact of the reforms and compliance as the Biofuels Mandate will be contingent on the habits of consumers. The IPART findings published in late 2015 which Madison Marcus Law Firm commented upon in January 2016 recommended a public awareness campaign of the benefits of ethanol-blend petrol and biodiesel.

It would appear that Parliament have implemented the new laws deliberately to require the market participants (i.e. service station operators) to use other market forces (i.e. price) to change buying habits of consumers in NSW. Volume fuel retailers may have difficulty in complying with the Biofuels Mandate if consumer confidence in ethanol-blended petrol and biodiesel does not increase.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions