Commonwealth: Fuel Security Act 2021 (Cth)

Fuel Security Act 2021 No. 65, 2021 Compilation No. 2 Compilation date: 14 October 2024 Includes amendments: Act No. 38, 2024 About this compilation This compilation This is a compilation of the Fuel Security Act 2021 that shows the text of the law as amended and in force on 14 October 2024 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Part 1—Preliminary 1 Short title 2 Commencement 3 Objects 4 Simplified outline of this Act 5 Definitions Part 2—Minimum stockholding obligation Division 1—Introduction to this Part 6 Simplified outline of this Part Division 2—Minimum stockholding obligation 7 Minimum stockholding obligation 8 Additional responsibility of Australian controlling corporation Division 3—Entities subject to the minimum stockholding obligation 9 Entities subject to the minimum stockholding obligation 10 Triggering the minimum stockholding obligation 11 Ceasing to be subject to minimum stockholding obligation 12 Exemptions Division 4—Designated quantity of MSO product 13 Designated quantity of MSO product 14 Target number of days for stockholding 15 Notice of quantity of MSO product 16 Entity's advice about expected designated quantity 17 Application to temporarily reduce quantity of stocks of MSO product 18 Secretary's decision on temporary reduction application Division 5—Holding stocks of an MSO product 19 When an entity holds stocks of an MSO product 20 Excluded stocks 21 Stocks that are stored in Australia 22 Holder of stocks: entity owns stocks and no other entity is the holder 23 Holder of stocks: entity entitled to take ownership of stocks and no other entity is the holder 24 Holder of stocks: stocks held, reserved or quarantined for entity and no other entity is the holder 25 Taking feedstocks at refinery into account 26 Rules in relation to legally enforceable arrangements Division 6—Suspension of minimum stockholding obligation 27 Suspension by Minister 28 Application for suspension by Secretary 29 Secretary's decision on suspension application Division 7—Other duties 30 Notice of MSO activity in relation to MSO product 31 Notice of intention to cease all MSO activities in relation to MSO product 32 Secretary's decision about cessation of all MSO activities in relation to MSO product 33 Compliance audits 34 Other audits 35 Conduct of audits 36 MSO compliance plan Division 8—Assumption or division of minimum stockholding obligation 37 Determination of assumption or division of minimum stockholding obligation Part 3—Fuel security services payment Division 1—Introduction to this Part 38 Simplified outline of this Part Division 2—Fuel security services payment 39 Application for fuel security services payment 40 Decision on application 41 Commitment period 42 Payability of fuel security services payment 43 Amount of fuel security services payment 44 Determination of margin sufficient to ensure refineries do not make a loss 45 Payment of fuel security services payment 46 Publication of information Division 3—Reporting and notification obligations 47 Reporting during commitment period 48 Notification of events during commitment period 49 False or misleading information Division 4—Repayment obligations 50 Repayment if committed refinery ceases refining FSSP fuel 51 Rules in relation to repayment obligation 52 Secretary may extend period of cessation 53 Secretary must notify person of amount repayable under section 50 54 Repayment in other circumstances 55 Secretary must notify person of amount repayable under section 54 Division 5—Other matters 56 Defeasibility of statutory rights 57 Uniformity 58 Appropriation Part 4—Compliance and enforcement 59 Simplified outline of this Part 60 Monitoring powers 61 Investigation powers 62 Civil penalty provisions 63 Requirement for person to assist with applications for civil penalty orders 64 Determining pecuniary penalty for contravention of minimum stockholding obligation 65 Civil penalties for contravention of minimum stockholding obligation 66 Infringement notices 67 Penalties in infringement notices 68 Secretary may publicise certain contraventions 69 Enforceable undertakings 70 Injunctions Part 5—Other matters Division 1—Introduction to this Part 71 Simplified outline of this Part Division 2—Review of decisions 72 Reviewable decisions 73 Notice of reasons and review rights 74 Applications for reconsideration of decisions made by delegates 75 Reconsideration by responsible person 76 Deadline for reconsideration 77 Review by the Administrative Review Tribunal Division 3—Other matters 78 Further information about applications, notices and advice 79 Treatment of trusts 80 Appointment of authorised persons 81 Approved forms 82 Delegation by Minister 83 Delegation by Secretary 84 Rules Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act to make arrangements in relation to fuel security, and for related purposes Part 1—Preliminary 1 Short title This Act is the Fuel Security Act 2021. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provisions Commencement Date/Details 1. The whole of this Act The day after this Act receives the Royal Assent. 30 June 2021 Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Objects (1) The objects of this Act are the following: (a) to improve security and confidence in Australia's fuel supplies; (b) to support sovereign capability to maintain fuel supplies; (c) to contribute to meeting Australia's obligations under the International Energy Agreement; (d) to assist in preventing disruptions in fuel supplies. (2) The objects are to be achieved by: (a) requiring the holding of minimum quantities of stocks of certain fuels in Australia; and (b) making payments for production of refined fuels to support the contribution made by refineries in Australia to the security of Australia's fuel supplies. 4 Simplified outline of this Act This Act contains 2 measures designed to improve fuel security: (a) the minimum stockholding obligation; and (b) a bounty called fuel security services payment. Entities that undertake certain activities (broadly, refining or importing certain fuels) may become subject to the minimum stockholding obligation. This is an obligation for an entity to hold a minimum quantity of stocks of those fuels. Refiners of certain fuels may, on application to the Minister, become entitled to fuel security services payment. This is a quarterly payment based on the quantity of those fuels refined in the quarter. Recipients commit to repaying the payment if the refinery ceases refining FSSP fuels before the end of a specified period. 5 Definitions In this Act: advice window: see subsection 16(4). affected entity, in relation to an audit under Division 7 of Part 2, means each of the following: (a) the entity that is to be, or is being, audited; (b) if that entity has an Australian controlling corporation—the Australian controlling corporation; (c) any entity in possession of stocks of an MSO product that are held (within the meaning of Division 5 of Part 2): (i) by the entity that is to be, or is being, audited; or (ii) if the entity that is to be, or is being, audited is the Australian controlling corporation of a subsidiary that is subject to the minimum stockholding obligation—by the subsidiary. approved form, in relation to a provision, means the form approved by the Secretary for that provision under section 81. audit team leader means a registered greenhouse and energy auditor appointed under section 33 or 34. audit team member, in relation to an audit, means a person assisting the audit team leader to carry out the audit. Australia, when used in a geographical sense, does not include the external Territories. Australian controlling corporation: see paragraph 8(2)(a). Australian port means a port in Australia. civil penalty provision has the same meaning as in the Regulatory Powers Act. commitment period of a person, in relation to a committed refinery, means the period specified in: (a) the notice given to the person in relation to the refinery under subsection 40(3); or (b) if the person has been given a notice in relation to the refinery under subsection 41(3)—the most recent such notice. committed refinery: see paragraph 40(3)(a). constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies. designated: a quantity of stocks of an MSO product is designated for an entity on an obligation day in accordance with section 13. feedstock: see subsection 25(3). FSSP is short for fuel security services payment. FSSP fuel means any of the following fuels that also meets any requirements prescribed by the rules for the fuel: (a) gasoline; (b) diesel; (c) kerosene; (d) a covered product within the meaning of the Petroleum and Other Fuels Reporting Act 2017 that is prescribed by the rules for the purposes of this paragraph. hold: see section 19. import: an entity imports an MSO product that was produced overseas if the entity: (a) does an act that constitutes the importation of the product into Australia for home consumption; or (b) does another act related to the importation of the product into Australia prescribed by the rules. International Energy Agreement means the Agreement on an International Energy Program done at Paris on 18 November 1974, as in force for Australia from time to time. Note: The Agreement is in Australian Treaty Series 1979 No. 7 ([1979] ATS 7) and could in 2021 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au). margin: see subsection 43(6). MSO is short for minimum stockholding obligation. Note: Section 7 sets out the substance of the minimum stockholding obligation. MSO activity, in relation to an MSO product, means: (a) refining the product; or (b) importing the product; or (c) a covered activity within the meaning of the Petroleum and Other Fuels Reporting Act 2017 that is prescribed by the rules for the purposes of this paragraph in relation to the product. MSO product means any of the following products that also meets any requirements prescribed by the rules for the product: (a) gasoline; (b) diesel; (c) kerosene; (d) a covered product within the meaning of the Petroleum and Other Fuels Reporting Act 2017 that is prescribed by the rules for the purposes of this paragraph. notice window: see subsection 15(5). obligation day means a day prescribed by the rules. offence against this Act includes an offence against Chapter 7 of the Criminal Code that relates to this Act. quarter means a period of 3 months ending on 31 March, 30 June, 30 September or 31 December. registered greenhouse and energy auditor means an individual who is registered in the register of greenhouse and energy auditors kept under section 75A of the National Greenhouse and Energy Reporting Act 2007. regulated entity means: (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. Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014. responsible person: see subsections 72(1) and (2). reviewable decision: see subsections 72(1) and (2). rules means rules made under section 84. Secretary means the Secretary of the Department. stored in Australia: see section 21. subject to the minimum stockholding obligation: see section 9. subsidiary has the meaning given by section 46 of the Corporations Act 2001. temporary reduction period: see subsection 18(3). Part 2—Minimum stockholding obligation Division 1—Introduction to this Part 6 Simplified outline of this Part If a regulated entity undertakes an MSO activity in relation to an MSO product (broadly, if the entity refines or imports certain fuels), the entity may become subject to the minimum stockholding obligation. This is an obligation for the entity to hold a minimum quantity of stocks of the MSO product. If the entity has an Australian controlling corporation, that corporation must also ensure that the entity meets the minimum stockholding obligation. The Secretary will trigger the obligation if the entity's activity in relation to the product exceeds a threshold prescribed by the rules. Once triggered, the entity generally continues to be subject to the obligation until the Secretary is satisfied that it has ceased to undertake all MSO activities in relation to the product. An entity that undertakes an MSO activity in relation to more than one MSO product may be subject to the minimum stockholding obligation for each product. The rules may prescribe cases where an entity is exempt from the obligation. The requirement to meet the obligation may also be suspended in some circumstances. The Secretary notifies entities from time to time of the quantity of stocks of the MSO product they are required to hold. The Secretary determines the quantity in accordance with the rules. The rules in turn must provide for quantities to be determined by reference to a target number of days decided by the Minister. In deciding the target, the Minister must have regard to the emergency reserve commitment within the meaning of Article 2 of the International Energy Agreement (among other matters). Entities must advise the Secretary in relation to their quantity, and may apply to the Secretary for their quantity to be temporarily reduced. An entity will be treated as holding stocks of an MSO product in defined circumstances. Generally, stocks must be in Australia, but entities do not necessarily need to own or have direct custody of them. A range of enforcement mechanisms are available to the Secretary if entities do not meet the obligation, including civil penalties and injunctions. Division 2—Minimum stockholding obligation 7 Minimum stockholding obligation An entity that is subject to the minimum stockholding obligation in relation to an MSO product on an obligation day must hold at least the quantity of stocks of the product designated for the entity on that day. Civil penalty: The number of penalty units worked out in accordance with subsection 64(1). 8 Additional responsibility of Australian controlling corporation (1) If an entity that is subject to the minimum stockholding obligation in relation to an MSO product on an obligation day has an Australian controlling corporation, the Australian controlling corporation must ensure that the entity complies with section 7 in relation to the product on the obligation day. Civil penalty: The number of penalty units worked out in accordance with subsection 64(2). (2) An entity has an Australian controlling corporation if: (a) the entity is a subsidiary of a corporation (the Australian controlling corporation of the entity) that is: (i) a constitutional corporation incorporated in Australia; and (ii) not a subsidiary of another body corporate incorporated in Australia; and (b) the entity is not a subsidiary of another body corporate that: (i) meets the requirement in subparagraph 46(a)(i) or (ii) of the Corporations Act 2001 in relation to the entity; and (ii) is not a subsidiary of the Australian controlling corporation. Note: Subsidiary has the meaning given by section 46 of the Corporations Act 2001 (see section 5 of this Act). Division 3—Entities subject to the minimum stockholding obligation 9 Entities subject to the minimum stockholding obligation Main case (1) An entity is subject to the minimum stockholding obligation in relation to an MSO product if: (a) the minimum stockholding obligation has been triggered for the entity in relation to the product under section 10; and (b) the entity has not ceased to be subject to the minimum stockholding obligation in relation to the product under section 11. Obligation assumed or divided (2) An entity is also subject to the minimum stockholding obligation in relation to an MSO product if: (a) a determination is made under section 37 that: (i) the entity has assumed another entity's minimum stockholding obligation in relation to the product; or (ii) another entity's minimum stockholding obligation in relation to the product has been divided with the entity; and (b) the entity has not ceased to be subject to the minimum stockholding obligation in relation to the product under section 11. 10 Triggering the minimum stockholding obligation (1) The Secretary may, by written notice given to an entity, trigger the minimum stockholding obligation for the entity in relation to an MSO product if: (a) the entity is a regulated entity; and (b) in a period prescribed by the rules: (i) the entity undertakes an MSO activity in relation to the product; and (ii) in doing so the entity exceeds the volume prescribed by the rules (in megalitres) for undertaking the activity in relation to the product. Note: A decision to trigger the obligation is a reviewable decision and reasons and notice of review rights must be given (see sections 72 and 73). (2) The notice must specify the quantity (in megalitres) of stocks of the product the entity must hold on the obligation days for which the notice is in force. Note: A decision to specify a particular quantity of the product is a reviewable decision and reasons and notice of review rights must be given (see sections 72 and 73). (3) The Secretary must determine the quantity in accordance with the rules. Note: See also subsection 14(4). (4) The notice is in force for obligation days that occur in the period: (a) starting on the day specified in the notice as the day the notice comes into force (which must not be earlier than the day the notice is given); and (b) ending on the day before another notice given to the entity in relation to the product under section 15 comes into force. Note: A notice under this section ceases to be in force during any temporary reduction period for the entity in relation to the product, and comes back into force when that period ends (see subsections 18(3) and (4)). 11 Ceasing to be subject to minimum stockholding obligation Main case (1) An entity ceases to be subject to the minimum stockholding obligation in relation to an MSO product if the Secretary is satisfied under subsection 32(1) that the entity has permanently or indefinitely ceased undertaking all MSO activities in relation to the product. Obligation assumed (2) An entity ceases to be subject to the minimum stockholding obligation in relation to an MSO product if a determination is made under section 37 that another entity has assumed the entity's minimum stockholding obligation in relation to the product. 12 Exemptions Despite section 9, an entity is not subject to the minimum stockholding obligation in relation to an MSO product if, under the rules, the entity is exempt in relation to the product. Division 4—Designated quantity of MSO product 13 Designated quantity of MSO product Main case (1) For the purposes of section 7, the quantity of stocks of an MSO product designated for an entity on an obligation day is the quantity specified in the notice in force for the obligation day that was given to the entity in relation to the product under section 10, 15 or 18. Obligation assumed or divided (2) The quantity of stocks of a product for an entity under subsection (1) is increased or decreased in accordance with the effect specified in any determination made under section 37. (3) The reference in subsection (1) to a notice given to an entity in relation to a product under section 10, 15 or 18 includes a reference to a notice taken to have been given to the entity in accordance with a determination made under section 37. 14 Target number of days for stockholding (1) The Minister must, by notifiable instrument, declare a target number of days for the purposes of the minimum stockholding obligation. (2) The target number of days may be different for different MSO activities and MSO products. (3) In declaring the target number of days, the Minister must have regard to: (a) the emergency reserve commitment within the meaning of Article 2 of the International Energy Agreement; and (b) the objects of this Act; and (c) any other matter the Minister considers relevant. (4) Any rules made for the purposes of subsections 10(3), 15(3) and 16(3) must provide for the target number of days declared under subsection (1) of this section to be taken into account in determining the quantity or expected quantity of stocks of an MSO product. 15 Notice of quantity of MSO product (1) If, at the start of a notice window, an entity is subject to the minimum stockholding obligation in relation to an MSO product, the Secretary must, before the end of the notice window, give the entity a written notice in accordance with this section. (2) The notice must specify the quantity (in megalitres) of stocks of the product the entity must hold on the obligation days for which the notice is in force. Note: A decision to specify a particular quantity of the product is a reviewable decision and reasons and notice of review rights must be given (see sections 72 and 73). (3) The Secretary must determine the quantity in accordance with the rules. Note: See also subsection 14(4). (4) The notice is in force for obligation days that occur in the period: (a) starting on the day specified in the notice as the day the notice comes into force (which must be at least 3 months after the day the notice is given); and (b) ending on the day before another notice given to the entity in relation to the product under this section comes into force. Note: A notice under this section ceases to be in force during any temporary reduction period for the entity in relation to the product, and comes back into force when that period ends (see subsections 18(3) and (4)). (5) A notice window is a period prescribed by the rules. 16 Entity's advice about expected designated quantity (1) If, at the start of an advice window, an entity is subject to the minimum stockholding obligation in relation to an MSO product, the entity must, before the end of the advice window, give the Secretary written advice (in the approved form, if any) of: (a) the quantity (in megalitres) of stocks of the product the entity expects to be notified of under section 15 before the end of the next notice window; and (b) any matters that might affect the entity's capacity to hold that quantity of stocks of the product. (2) The entity must do so regardless of whether the entity intends to cease undertaking MSO activities in relation to the product. (3) The entity must determine the expected quantity in accordance with the rules (if any). Note: See also subsection 14(4). (4) An advice window is a period prescribed by the rules ending at the start of a notice window. 17 Application to temporarily reduce quantity of stocks of MSO product (1) An entity that is subject to the minimum stockholding obligation in relation to an MSO product may apply in writing to the Secretary to temporarily reduce the quantity of stocks of the product the entity must hold on obligation days. (2) The application must: (a) specify the reduced quantity being applied for; and (b) set out the entity's reasons for applying for the reduced quantity; and (c) meet any other requirements prescribed by the rules. 18 Secretary's decision on temporary reduction application (1) If an entity makes an application in accordance with section 17, and gives any further information as required under section 78, the Secretary must decide whether to: (a) grant the application by reducing the quantity as applied for or by less than applied for; or (b) refuse the application. (2) If the Secretary decides to grant the application, the Secretary must, by written notice given to the entity, specify the reduced quantity of stocks of the product the entity must hold on the obligation days for which the notice is in force. (3) The notice is in force for obligation days that occur during the period specified in the notice (the temporary reduction period). The temporary reduction period may start before the notice is given. (4) During the temporary reduction period, a notice that would otherwise be in force for the entity in relation to the product under section 10 or 15 ceases to be in force. Any such notice comes back into force at the end of the temporary reduction period. (5) If the Secretary decides to reduce the quantity by less than applied for, or to refuse the application, the Secretary must give the entity written notice of the decision. Note: A decision to refuse the application, or to grant it by reducing the quantity by less than applied for, is a reviewable decision and reasons and notice of review rights must be given (see sections 72 and 73). (6) The Secretary's decision under this section must be in accordance with any rules made for the purposes of this subsection. Division 5—Holding stocks of an MSO product 19 When an entity holds stocks of an MSO product An entity holds stocks of an MSO product if: (a) the entity is the holder of the stocks under section 22, 23, 24 or 25; and (b) the stocks are not excluded under section 20. 20 Excluded stocks (1) Stocks of an MSO product are excluded for the purposes of paragraph 19(b) if the stocks are: (a) being kept: (i) for the exclusive use of the Australian Defence Force or the armed forces of a foreign country; or (ii) wholly or principally for private or domestic use, except in the circumstances (if any) prescribed by the rules; or (b) being stored: (i) in a service station, retail store, personal vehicle, road tanker or rail tank car; or (ii) in a seagoing ship for the purpose of powering the ship; or (iii) in a pipeline, except in the circumstances (if any) prescribed by the rules. (2) Stocks of an MSO product are also excluded for the purposes of paragraph 19(b) if the stocks do not meet standards (if any) prescribed by the rules. 21 Stocks that are stored in Australia Stocks of an MSO product are stored in Australia if the stocks are stored: (a) on land in Australia; or (b) on a vessel: (i) that is in an Australian port; or (ii) that is moored waiting to enter an Australian port; or (iii) that is travelling directly from an Australian port to another Australian port; or (iv) in circumstances prescribed by the rules. 22 Holder of stocks: entity owns stocks and no other entity is the holder (1) For the purposes of paragraph 19(a) and subject to subsection (2), an entity is the holder of stocks of an MSO product under this section if: (a) the entity owns the stocks; and (b) the stocks are being stored in Australia by the entity or another entity; and (c) no other entity is the holder of the stocks under section 23 or 24. (2) If more than one entity would be the holder of the same stocks of an MSO product under subsection (1): (a) which of those entities is the holder of the stocks; or (b) the share of those stocks each entity is the holder of; must be determined in accordance with a method prescribed by the rules. (3) Without limiting methods that may be prescribed for the purposes of subsection (2), a method may provide for the entities to agree on which of them is the holder of the stocks, or the share of the stocks each entity is the holder of. 23 Holder of stocks: entity entitled to take ownership of stocks and no other entity is the holder For the purposes of paragraph 19(a), an entity (entity 1) is the holder of stocks of an MSO product under this section if: (a) another entity (entity 2) owns the stocks; and (b) the stocks are being stored in Australia by entity 2 or another entity; and (c) a legally enforceable arrangement, that meets any requirements prescribed by the rules, is in force between entity 1 and entity 2 under which entity 1 is to take ownership of the stocks; and (d) no other entity is the holder of the stocks under section 24. 24 Holder of stocks: stocks held, reserved or quarantined for entity and no other entity is the holder For the purposes of paragraph 19(a), an entity (entity 1) is the holder of stocks of an MSO product if: (a) another entity (entity 2) owns the stocks; and (b) the stocks are being stored in Australia by entity 1, entity 2 or another entity; and (c) a legally enforceable arrangement, that meets any requirements prescribed by the rules, is in force between entity 1 and entity 2 under which the stocks are held, reserved or quarantined (however described) by entity 2 for entity 1, for a specified period; and (d) during the period, entity 1 gives reports in relation to the stocks under the Petroleum and Other Fuels Reporting Act 2017, in relation to the covered activity of holding stocks of a covered product (whether or not entity 2 also gives such reports); and (e) the period has not ended. 25 Taking feedstocks at refinery into account (1) For the purposes of section 7 (minimum stockholding obligation), stocks of feedstock are treated as if they were stocks of an MSO product, of a quantity determined in accordance with the rules, if: (a) the feedstock is used, by an entity that is subject to the minimum stockholding obligation in relation to the product, to refine the product at a refinery in Australia; and (b) the stocks are being stored at the refinery; and (c) any other requirements prescribed by the rules are met. (2) For the purposes of paragraph 19(a), the holder of those stocks is: (a) the entity mentioned in paragraph (1)(a); or (b) if another entity would be the holder of the stocks under section 24, if that section applied in relation to stocks of feedstock—that other entity. (3) Any of the following is feedstock: (a) crude oil that meets any requirements prescribed by the rules; (b) any other refinery feedstock prescribed by the rules; (c) any unfinished refinery product prescribed by the rules. 26 Rules in relation to legally enforceable arrangements Without limiting requirements that may be prescribed for the purposes of paragraph 23(c) or 24(c), requirements may relate to any or all of the following: (a) the nature of arrangements; (b) the parties able to enter arrangements, including accreditation or other requirements for the purposes of satisfying the Secretary that parties are fit and proper persons to be party to such arrangements; (c) conditions on arrangements, including the condition that arrangements be registered with the Secretary. Division 6—Suspension of minimum stockholding obligation 27 Suspension by Minister (1) The Minister may, by legislative instrument, suspend section 7 (minimum stockholding obligation) in relation to a specified MSO product, for a specified period, if the Minister is satisfied that: (a) the suspension is necessary to prevent or alleviate disruption or likely disruption to supply of the product; and (b) any other requirements prescribed by the rules are satisfied. (2) During the specified period, entities are not required to comply with section 7 in relation to the specified MSO product. Note: Even though it is not required to comply with section 7, an entity remains subject to the minimum stockholding obligation in relation to the product within the meaning of section 9, and sections 15 and 16 continue to apply in relation to the entity, during a suspension. (3) The specified period must not exceed 6 months. However, the Minister may make another instrument or instruments under subsection (1) suspending section 7 in relation to the product for consecutive periods, each not exceeding 6 months. (4) Without limiting subsection (1), the Minister must consider exercising the power in that subsection if requested to consider exercising the power by an Energy Minister (within the meaning of the Liquid Fuel Emergency Act 1984). 28 Application for suspension by Secretary (1) An entity that is subject to the minimum stockholding obligation in relation to an MSO product may apply in writing to the Secretary to suspend section 7 for the entity in relation to the product. (2) The application must meet any requirements, and include any information, prescribed by the rules. 29 Secretary's decision on suspension application (1) If an entity makes an application in accordance with section 28, and gives any further information as required under section 78, the Secretary must decide whether to: (a) grant the application: (i) under subsection (2) in relation to the entity; or (ii) under subsection (3) in relation to a class of entities; or (b) refuse the application. (2) The Secretary may, by written notice given to the entity, suspend section 7 for the entity in relation to the product, for a specified period, in accordance with the rules. Note: A decision to suspend section 7 for a particular period is a reviewable decision and reasons and notice of review rights must be given (see sections 72 and 73). (3) The Secretary may, on the Secretary's own initiative, by notifiable instrument, suspend section 7 for a specified class of entities that includes the applicant, in relation to the product, for a specified period, in accordance with the rules. (4) Without limiting what may be prescribed by rules for the purposes of subsections (2) and (3), the rules may prescribe any or all of the following: (a) matters to which the Secretary may have regard or must take into account in deciding whether to grant an application or suspend section 7 for a class of entities that includes the applicant; (b) circumstances in which the Secretary may or must grant an application; (c) circumstances in which the Secretary may suspend section 7 for a class of entities. (5) During the specified period, the entity to which the notice applies, or each entity in the class of entities to which the instrument applies, is not required to comply with section 7 in relation to the product. Note: Even though they are not required to comply with section 7, entities remain subject to the minimum stockholding obligation in relation to the product within the meaning of section 9, and sections 15 and 16 continue to apply in relation to the entities, during a suspension. (6) The specified period must not exceed 3 months. However, the Secretary may: (a) for a notice given to an entity under subsection (2)—grant a subsequent application or applications to suspend section 7 for the entity in relation to the product for consecutive periods, each not exceeding 3 months; or (b) for an instrument made under subsection (3)—make another instrument or instruments suspending section 7 for the class of entities in relation to the product for consecutive periods, each not exceeding 3 months. (7) If the Secretary decides to suspend section 7 for a class of entities for a specified period, the Secretary must give the applicant and the other entities in the class written notice of the decision. Note: A decision to suspend section 7 for a class of entities for a particular period is a reviewable decision and reasons and notice of review rights must be given (see sections 72 and 73). (8) If the Secretary decides to refuse the application, the Secretary must give the entity written notice of the decision. Note: A decision to refuse the application is a reviewable decision and reasons and notice of review rights must be given (see sections 72 and 73). Division 7—Other duties 30 Notice of MSO activity in relation to MSO product (1) A regulated entity must give the Secretary a written notice in accordance with subsection (2) in the following situations: (a) the entity is not subject to the minimum stockholding obligation and intends to undertake an MSO activity that may result in paragraph 10(1)(b) applying to the entity in relation to an MSO product (section 10 deals with triggering the minimum stockholding obligation); (b) the entity is subject to the minimum stockholding obligation in relation to an MSO product and intends: (i) to undertake another MSO activity in relation to the product; or (ii) to cease undertaking an MSO activity in relation to the product in circumstances in which section 31 (notice of intention to cease all MSO activities in relation to MSO product) does not apply; (c) a situation prescribed by the rules. Civil penalty: 50 penalty units. (2) The notice must: (a) set out details of the situation to which the notice relates; and (b) set out any matters that might affect the entity's capacity to meet the minimum stockholding obligation in relation to an MSO product; and (c) be in accordance with any other requirements prescribed by the rules; and (d) be given to the Secretary within the period (if any) prescribed by the rules for the situation. Note: The Secretary may require further information in relation to the notice (see section 78). 31 Notice of intention to cease all MSO activities in relation to MSO product (1) An entity that is subject to the minimum stockholding obligation in relation to an MSO product must give the Secretary written notice in accordance with subsection (2) if the entity intends to permanently or indefinitely cease undertaking all MSO activities in relation to the MSO product. Civil penalty: 50 penalty units. (2) The notice must meet any requirements, and include any information, prescribed by the rules. Note: The Secretary may require further information in relation to the notice (see section 78). 32 Secretary's decision about cessation of all MSO activities in relation to MSO product (1) If an entity gives a notice in accordance with section 31, and any further information as required under section 78, the Secretary must decide whether or not the Secretary is satisfied that the entity has permanently or indefinitely ceased undertaking all MSO activities in relation to the product. (2) The Secretary must take all reasonable steps to make the decision within 30 days of being given the notice and must make the decision within 45 days of being given the notice. (3) The Secretary must give the entity written notice of: (a) the Secretary's decision under subsection (1); and (b) if the Secretary is satisfied as mentioned in that subsection—the date that the Secretary is satisfied that the entity permanently or indefinitely ceased undertaking all MSO activities in relation to the product, which can be earlier than the day the notice is given. Note: A decision that the Secretary is not satisfied as mentioned in subsection (1) is a reviewable decision and reasons and notice of review rights must be given (see sections 72 and 73). (4) The Secretary is taken to have decided that the Secretary is not satisfied as mentioned in subsection (1) if the Secretary has not notified the entity of a decision before the end of the 45 days mentioned in subsection (2). 33 Compliance audits (1) This section applies if the Secretary has reasonable grounds to suspect that an entity has contravened, is contravening, or is proposing to contravene, section 7 (minimum stockholding obligation). (2) The Secretary may, by written notice given to the entity, require the entity to: (a) appoint as an audit team leader: (i) a registered greenhouse and energy auditor of its choice; or (ii) if the Secretary specifies a registered greenhouse and energy auditor in the notice—that auditor; or (iii) if the Secretary specifies more than one registered greenhouse and energy auditor in the notice—any one of those auditors; and (b) arrange for the audit team leader to carry out an audit on one or more aspects of the entity's compliance with section 7; and (c) arrange for the audit team leader to give the entity a written report setting out the results of the audit; and (d) give the Secretary a copy of the audit report on or before the day specified in the notice. (3) The notice must specify the: (a) type of audit to be carried out; and (b) matters to be covered by the audit; and (c) form of the audit report and the kinds of details it is to contain. (4) An affected entity in relation to an audit must provide the audit team leader and any audit team members with all reasonable facilities and assistance necessary for the effective exercise of the audit team leader's duties under this Division or rules made for the purposes of this Division. Civil penalty: 250 penalty units. (5) If the Secretary gives an entity written notice under subsection (2), the entity must comply with the requirements of the notice. Note: Under section 93 of the Regulatory Powers Act, an entity may be liable for an additional civil penalty for each day, after the day mentioned in paragraph (2)(d) of this section, for which the entity fails to provide an audit report in accordance with this section. Civil penalty: 1,000 penalty units. 34 Other audits (1) The Secretary may appoint a registered greenhouse and energy auditor as an audit team leader to carry out an audit of compliance with one or more aspects of this Act or the rules by: (a) an entity that is subject to the minimum stockholding obligation; or (b) if an entity that is subject to the minimum stockholding obligation has an Australian controlling corporation—the Australian controlling corporation. (2) The Secretary must give the entity that is to be audited written notice of a decision to appoint an audit team leader under subsection (1). The notice must: (a) specify the audit team leader; and (b) specify the period within which the audit is to be undertaken; and (c) specify the type of audit to be carried out; and (d) specify the matters to be covered by the audit; and (e) be given to the entity at a reasonable time before the audit is to be undertaken. (3) An affected entity in relation to an audit must provide the audit team leader and any audit team members with all reasonable facilities and assistance necessary for the effective exercise of the audit team leader's duties under this Division or rules made for the purposes of this Division. Civil penalty: 250 penalty units. (4) If an entity is given a notice under subsection (2), the entity must arrange for the audit team leader to carry out the audit. Civil penalty: 250 penalty units. 35 Conduct of audits (1) The rules may prescribe requirements to be met by registered greenhouse and energy auditors in relation to any or all of the following: (a) preparing for and carrying out audits under this Division; (b) preparing audit reports in relation to audits under this Division; (c) using and disclosing information obtained in the course of the activities mentioned in paragraphs (a) and (b). (2) The rules may prescribe different requirements for: (a) different types of audits; and (b) different types of audit reports. (3) A registered greenhouse and energy auditor must comply with requirements prescribed under subsection (1). 36 MSO compliance plan (1) An entity that is subject to the minimum stockholding obligation must prepare, and keep up to date, a written plan that deals with: (a) the matters prescribed by the rules; and (b) any other matters as requested by the Secretary under subsection (2). Civil penalty: 50 penalty units. (2) The Secretary may, in writing, request the entity to ensure that its plan deals with any matters specified in the request. Note: A decision to request an entity to ensure that its plan deals with specified matters is a reviewable decision and reasons and notice of review rights must be given (see sections 72 and 73). (3) The entity must make the plan available to the Secretary from time to time as requested by the Secretary or required by the rules. Civil penalty: 50 penalty units. Division 8—Assumption or division of minimum stockholding obligation 37 Determination of assumption or division of minimum stockholding obligation (1) The Secretary may, in writing, make a determination that the Secretary is satisfied that an entity's (the divesting entity's) minimum stockholding obligation in relation to an MSO product is being assumed by, or divided with, another entity or entities (the receiving entity or receiving entities). Note: A decision to make a determination is a reviewable decision and reasons and notice of review rights must be given (see sections 72 and 73). (2) The Secretary may make the determination: (a) on application by a divesting entity or receiving entity; or (b) on the Secretary's own initiative. (3) Before making a determination, the Secretary must invite submissions from the entities and take any such submissions into account. (4) The Secretary must give the determination to the entities. (5) The determination must specify the effect the determination is to have on any notices in force under section 10, 15 or 18. Note: A decision about the effect of the determination on the notices is a reviewable decision and reasons and notice of review rights must be given (see sections 72 and 73). (6) If the Secretary decides to refuse an entity's application to make a determination under this section, the Secretary must give the entity written notice of the decision. Note: A decision to refuse an application is a reviewable decision and reasons and notice of review rights must be given (see sections 72 and 73). (7) A determination under this section, including the effect specified for the purposes of subsection (5), must be in accordance with any rules made for the purposes of this subsection. (8) Without limiting what may be prescribed by rules made for the purposes of subsection (7), the rules may make provision for a determination to specify as an effect: (a) that a notice is taken to have been given to more than one entity, or to a different entity; or (b) that a notice is taken to specify a different quantity. Part 3—Fuel security services payment Division 1—Introduction to this Part 38 Simplified outline of this Part Refiners of certain fuels may apply to the Minister for fuel security services payment, which is a form of bounty. Generally, fuel security services payment is paid quarterly, based on the quantity of fuels (known as FSSP fuels) refined in the quarter. The rate is set in rules made by the Minister. The payment is paid for quarters that end in a period known as the recipient's commitment period. Recipients of fuel security services payment commit to repaying any amounts received if the refinery ceases refining FSSP fuels before the end of the recipient's commitment period. Division 2—Fuel security services payment 39 Application for fuel security services payment (1) A person may apply in writing to the Minister for fuel security services payment in relation to a refinery in Australia at which the person refines FSSP fuel. (2) The application must include the person's consent to the imposition of repayment obligations under section 50. (3) The application must: (a) be in the approved form (if any); and (b) meet any other requirements, and include any information, prescribed by the rules. (4) Rules made for the purposes of paragraph (3)(b) may make provision for or in relation to empowering the Minister to require the person to give security to the Commonwealth in relation to the fulfilment by the person of any requirement to repay fuel security services payment under section 50. 40 Decision on application (1) If a person makes an application in accordance with section 39, and gives any further information as required under section 78, the Minister must decide whether to grant or refuse the application. (2) The Minister must, by written notice given to the person, grant the application if: (a) the person is a constitutional corporation; and (b) the person refines FSSP fuel at a refinery in Australia; and (c) the refining meets the requirements (if any) prescribed by the rules; and (d) any other requirements prescribed by the rules are met in relation to the application. (3) The notice must specify: (a) the refinery (the committed refinery); and (b) the person's commitment period in relation to the committed refinery. Note: A decision about the duration of a person's commitment period is a reviewable decision and reasons and notice of review rights must be given (see sections 72 and 73). (4) If the Minister decides to refuse the application, the Minister must give the person written notice of the decision. Note: A decision to refuse an application is a reviewable decision and reasons and notice of review rights must be given (see sections 72 and 73). (5) The Minister must take all reasonable steps to ensure that a decision is made on the application: (a) if the Minister required further information under subsection 78(1) in connection with the application—within 60 days after the person gave the Minister the information; or (b) otherwise—within 60 days after the application was made. 41 Commitment period (1) In determining the commitment period to be specified in a notice given to a person under subsection 40(3), the Minister: (a) must do so in accordance with any requirements prescribed by the rules; and (b) must not determine a period that ends before 30 June 2027. (2) The Minister may, in accordance with a written application made by the person, vary or terminate the person's commitment period by written notice given to the person. (3) A variation or termination must not be inconsistent with any requirements prescribed by the rules, but (subject to the rules) may have the effect that the period as varied or terminated ends before 30 June 2027. (4) If the Minister decides to refuse the application, the Minister must give the person written notice of the decision. Note: A decision to refuse an application is a reviewable decision and reasons and notice of review rights must be given (see sections 72 and 73). 42 Payability of fuel security services payment (1) Subject to this Part and the rules, fuel security services payment is payable to a person for each quarter that ends in the person's commitment period. (2) However, fuel security services payment is not payable to a person for a quarter: (a) if there is no time in the quarter at which the person refines any FSSP fuel at the committed refinery; or (b) if the amount of the payment would be nil; or (c) in any circumstances relating to a matter mentioned in subsection 40(2) that are prescribed by the rules. 43 Amount of fuel security services payment (1) The amount of fuel security services payment payable to a person for a quarter is the amount worked out in accordance with the following method statement. Method statement Step 1. For each FSSP fuel refined by the person at the committed refinery in the quarter: (a) work out the number of litres refined; and (b) multiply that number of litres by the number of cents per litre prescribed, or worked out using a method prescribed, by the rules for that FSSP fuel. Step 2. Add up the amounts worked out under step 1 for each FSSP fuel. (2) The number of cents per litre for an FSSP fuel prescribed, or worked out using a method prescribed, by the rules: (a) must not be a number higher than 1.8; and (b) may be 0. (3) The rules may make provision in relation to determining the number of litres of FSSP fuel refined by a person at a committed refinery. (4) The Minister may, by notifiable instrument, make guidelines in relation to the prescribing of, or the prescribing of a method for working out, a number of cents per litre for an FSSP fuel. The Minister must take any guidelines into account in making rules for the purposes of subsection (1). (5) In making rules for the purposes of subsections (1) and (3) and guidelines under subsection (4), the Minister must have regard to: (a) in relation to fuel security services payment payable for quarters ending on or before 30 June 2030—the determination made by the Minister under subsection 44(1); and (b) the principle that (subject to paragraph (2)(a)) the amount of fuel security services payment paid to a person for quarters ending in the person's commitment period should be guided by the margin that is sufficient to ensure that refineries operating in Australia over the person's commitment period do not make a loss. (6) For the purposes of paragraph (5)(b) and section 44, the margin sufficient to ensure that refineries operating in Australia do not make a loss is the excess of the sale price of FSSP fuels and fuel oils refined by the refineries over the costs of feedstock and transport in relation to FSSP fuels, expressed in cents per litre. (7) For the purposes of subsection (6), the following matters are relevant to working out the margin sufficient to ensure that refineries operating in Australia do not make a loss over a period: (a) government payments and benefits other than fuel security services payment in relation to the period; (b) costs of operating the refinery incurred in relation to the period; (c) capital expenditure in relation to the period; (d) any other matters the Minister considers relevant. The Minister may rely on estimates or other indicators of a matter if the Minister considers it appropriate to do so. 44 Determination of margin sufficient to ensure refineries do not make a loss (1) The Minister must, in writing, determine the number of cents per litre that, at the time the determination is made, the Minister estimates is likely to be the margin sufficient to ensure that refineries operating in Australia over the period starting on the day this Act commences and ending on 30 June 2027 do not make a loss. (2) The Minister must make the determination before the end of the period of one month starting on the day this Act commences. (3) The Minister must give a copy of the determination to any applicant under section 39 (application for fuel security services payment). (4) A determination: (a) cannot be varied; and (b) cannot be revoked before 1 July 2030. (5) A determination made under subsection (1) is not a legislative instrument. 45 Payment of fuel security services payment Fuel security services payment that is payable to a person is to be paid to the person by the Secretary in accordance with any rules prescribed for the purposes of this section. 46 Publication of information The Secretary must publish on the Department's website: (a) the total amount of fuel security services payment paid for quarters ending in each financial year; and (b) any other information required by the rules. Division 3—Reporting and notification obligations 47 Reporting during commitment period (1) During a person's commitment period, the person must give the Secretary reports in accordance with this section. Civil penalty: 250 penalty units. (2) Each report must: (a) include the information prescribed by the rules; and (b) be in the approved form (if any); and (c) be given within the period prescribed by the rules. (3) Without limiting information that may be prescribed for the purposes of paragraph (2)(a), the rules may prescribe information for the purposes of enabling the Secretary to be satisfied that the person meets the criteria under subsection 40(2) at the time a report is given to the Secretary under this section. 48 Notification of events during commitment period (1) During a person's commitment period in relation to a committed refinery, the person must notify the Secretary, in accordance with subsections (2) and (3), if any of the following events occur or are expected by the person to occur: (a) any change to the person's legal identity; (b) any change of ownership of the committed refinery; (c) the committed refinery permanently ceases refining one or more FSSP fuels; (d) the committed refinery voluntarily ceases refining one or more FSSP fuels for a period of more than 24 hours; (e) the committed refinery involuntarily ceases refining one or more FSSP fuels for a period of more than 24 hours; (f) an event prescribed by the rules. Civil penalty: 250 penalty units. (2) The notice must: (a) set out details of the event to which the notice relates; and (b) be in the approved form (if any); and (c) be in accordance with any other requirements prescribed by the rules. (3) The notice must be given to the Secretary as soon as practicable after the event occurs, or the person forms the expectation that the event will occur, but no later than: (a) for an event covered by paragraph (1)(a), (b) or (c)—7 days after the event occurs or the person forms the expectation that the event will occur; and (b) for an event covered by paragraph (1)(d) or (e)—24 hours after the event occurs or the person forms the expectation that the event will occur; and (c) for an event covered by paragraph (1)(f)—the time prescribed by the rules for the event. 49 False or misleading information A person must not, in an application made under section 39, a report given under section 47 or a notice given under section 48, provide information that: (a) either: (i) is false or misleading in a material particular relevant to the payment of fuel security services payment; or (ii) omits a matter or thing without which the information is misleading in a material particular relevant to the payment of fuel security services payment; and (b) results in the person being paid an amount of fuel security services payment that the person was not entitled to be paid. Civil penalty: 300 penalty units. Division 4—Repayment obligations 50 Repayment if committed refinery ceases refining FSSP fuel Repayment (1) A person is required to repay the Commonwealth the amount worked out under subsection (2) if: (a) a committed refinery ceases to refine all FSSP fuels; and (b) the cessation continues for 120 days; and (c) the start of the 120 days occurs during the person's commitment period in relation to the committed refinery. Note 1: The person's application for fuel security services payment under section 39 included the person's consent to the imposition of repayment obligations under this section. Note 2: Repayment obligations under this section may be affected by rules made under section 51. (2) For the purposes of subsection (1), the amount is: (a) the total amount of fuel security services payment paid to the person for quarters ending in the person's commitment period; or (b) in the circumstances (if any) prescribed by rules made for the purposes of section 51—an amount worked out in accordance with those rules that is less than the total amount. (3) Subsection (1) applies regardless of whether the person owns or operates the committed refinery at the time it ceases to refine FSSP fuel. When amount is due and payable (4) An amount repayable by a person under this section is due and payable on the day that is 60 days after the end of the later of: (a) the 120 days referred to in paragraph (1)(b); or (b) if the Secretary has extended the 120‑day period under section 52—that period as extended. Amount is a debt due to the Commonwealth (5) An amount repayable by a person under this section is a debt due to the Commonwealth that may be recovered by the Secretary, on behalf of the Commonwealth, in: (a) the Federal Court of Australia; or (b) the Federal Circuit and Family Court of Australia (Division 2); or (c) a court of a State or Territory that has jurisdiction in relation to the matter. (6) The Secretary may, on behalf of the Commonwealth: (a) write off a debt or class of debts arising under this section, if the Secretary is satisfied that it is appropriate to do so; or (b) waive the right of the Commonwealth to recover a debt or class of debts arising under this section, in accordance with any requirements prescribed by the rules; or (c) make arrangements to allow an amount of a debt that is payable by a person to the Commonwealth under this section to be paid in instalments, in accordance with any requirements prescribed by the rules. 51 Rules in relation to repayment obligation (1) Subsection 50(1) does not apply in the circumstances (if any) prescribed by the rules. (2) The rules may prescribe circumstances, and a method for working out the amount in those circumstances, for the purposes of paragraph 50(2)(b). (3) Rules made for the purposes of subsection (1) or (2) may prescribe circumstances by reference to decisions of the Minister. (4) Rules prescribing circumstances as mentioned in subsection (1) or (2) cannot be repealed, or amended in a way that removes or limits a prescribed circumstance, without the agreement of each person whose commitment period started while the rules were in force. (5) Rules prescribing a method for working out an amount as mentioned in subsection (2) cannot be repealed, or amended in a way that results in an increased amount being worked out, without the agreement of each person whose commitment period started while the rules were in force. (6) Subsections (4) and (5) do not apply to a repeal by operation of section 42 (disallowance) of the Legislation Act 2003. 52 Secretary may extend period of cessation (1) The Secretary may, on written application by a person, by written notice given to the person, extend the period mentioned in paragraph 50(1)(b) in circumstances prescribed by the rules. (2) If the Secretary decides to refuse the person's application, the Secretary must give the person written notice of the decision. Note: A decision to refuse to extend the period is a reviewable decision and reasons and notice of review rights must be given (see sections 72 and 73). 53 Secretary must notify person of amount repayable under section 50 (1) If a person is required to repay an amount under section 50, the Secretary must, by written notice given to the person, notify the person of: (a) the fact that the person must repay the amount; and (b) the amount worked out in accordance with subsection 50(2); and (c) the day the amount is due and payable under subsection 50(4). (2) The Secretary must give the notice within 30 days after the end of the later of: (a) the 120 days referred to in paragraph 50(1)(b); or (b) if the Secretary has extended the 120‑day period under section 52—that period as extended. 54 Repayment in other circumstan