2010-2011-2012-2013

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

LOW AROMATIC FUEL BILL 2012

 

 

 

 

 

 

REVISED EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

(Circulated by authority of the Mr Adam Bandt MP, Member for Melbourne)

 

 

 

THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE SENATE TO THE BILL AS INTRODUCED

 

 

 

LOW AROMATIC FUEL BILL2012

 

OUTLINE

 

Despite the clear success of low aromatic fuel (LAF) in reducing the prevalence of petrol sniffing and the benefit this brings to affected communities, efforts to extend its coverage and restrict availability of regular unleaded petrol (RULP) have been frustrated by recalcitrant retailers that refuse to stop supplying RULP and stock LAF.

 

This Bill is designed to mitigate the negative impacts of petrol sniffing through promoting the supply of LAF and controlling the supply of other fuels in certain areas. Using legislation to mandate LAF has been promoted for a number of years by stakeholders, researchers and the Senate Standing Committee on Community Affairs in their 2009 Report "Grasping the Opportunity of Opal."

 

This Bill aims to enable special measures to be taken to reduce the potential harm to the health of people, including Aboriginal persons and Torres Strait Islanders, living in certain areas from petrol sniffing by:

• Prohibiting the supply of regular unleaded petrol (RULP);
• Promoting and monitoring the use of LAF; and
• Regulating the supply and storage of other fuels - in particular premium unleaded petrol (PULP).

 

The Senate Community Affairs Legislation Committee conducted an Inquiry into the Low Aromatic Fuel Bill 2012 and reported on the inquiry on 26 September 2012.

 

Amendments were introduced and passed in the Senate on 27 November 2012 to address a number of the Senate Committee’s recommendations.

 

Financial Impact Statement

 

This Bill has no financial impact.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Low Aromatic Fuel Bill 2012

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

This Bill is designed to mitigate the negative impacts of petrol sniffing through promoting the supply of low aromatic fuel (LAF) and controlling the supply of other fuels in certain areas. Using legislation to mandate LAF has been promoted for a number of years by stakeholders, researchers and the Senate Standing Committee on Community Affairs in their 2009 Report "Grasping the Opportunity of Opal."

 

This Bill aims to enable special measures to be taken to reduce the potential harm to the health of people, including Aboriginal persons and Torres Strait Islanders, living in certain areas from petrol sniffing, by:

• Prohibiting the supply of regular unleaded petrol (RULP);
• Promoting and monitoring the use of LAF; and
• Regulating the supply and storage of other fuels - in particular premium unleaded petrol (PULP).

 

Human rights implications

This Bill advances the human rights of people, including Aboriginal persons and Torres Strait Islanders, in designated LAF areas from the potential harm of petrol sniffing. In particular, it promotes the right to health under article 12 of the International Covenant on Economic Social and Cultural Rights (ICESCR).

 

Article 12 of the International Convention on Economic Social and Cultural Rights

 

Article 12 recognises "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health." According to General Comment 14, the authoritative interpretation of that right, the right to health embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants of health.

 

Under the General Comment the obligation to fulfil the right to health requires the Australian Government to take positive measures that enable and assist individuals and communities to enjoy the right to health, including giving sufficient recognition to the right to health in the national political and legal systems, preferably by way of legislative implementation.

 

Petrol sniffing causes long-lasting physical and intellectual harm to sniffers. Chronic sniffers can suffer cerebellar ataxia, grand mal epilepsy, encephalopathy, persistent psychosis and chronic disability including mental impairment. Neurological damage from petrol sniffing can be present at the very early stages of abuse. This can include effects on memory, attention, learning, executive function and behavioural inhibition. These physical impacts have been connected to range of social problems including low school attendance and illegal activity.

 

Reducing petrol sniffing and the resultant harm, through legislative and other measures, is an obligation of the Australian Government under article 12 of ICESCR. As such, this Bill supports the rights within that article.

 

Right to be Free from Discrimination - Special Measures

 

Section 9 of the Racial Discrimination Act 1975 makes it unlawful to discriminate on the basis of race and section 10 of that Act provides the right to equality before the law. Section 8 of that Act also provides for an exception in the case of special measures under article 1(4) of the International Convention on the Elimination of Racial Discrimination .

 

Under Article 1(4) of the International Convention on the Elimination of Racial Discrimination :

 

"Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved"

 

Article 2 (2) also obliges governments to take "special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms."

 

The Australian Human Rights Commission has interpreted ICERD to imply that a special measure must meet the following test: 

• provide a benefit to some or all members of a group based on race (including a requirement for consultation and consent)
• have the sole purpose of securing the advancement of the group so they can enjoy human rights and fundamental freedoms equally with others; and
• are necessary for the group to achieve that purpose, and
• stop once their purpose has been achieved and do not set up separate rights permanently for different racial groups (Article 1(4)).

 

Conclusion

This Bill is compatible with human rights because it advances the right to health of people engaging in petrol sniffing. Furthermore, to the extent that areas will be designated with a high number of Aboriginal and Torres Strait Islander residents, the Bill can be considered to be a special measure and meets the criteria as such.

[Mr Adam Bandt MP, Member for Melbourne]

 

 

LOW AROMATIC FUEL BILL 2012

 

Clause 1 - Short Title

 

This is a formal provision specifying the short title.

 

Clause 2 - Commencement

 

This provision provides that the Bill's provisions are to commence on the day it receives Royal Assent.

 

Clause 3 - Guide to this Act

 

This provision provides a guide to the Act.

 

Clause 4 - Object of this Act

 

This provision provides that the object of the Bill is to enable special measures to be taken to reduce potential harm to the health of people, including Aboriginal persons and Torres Strait Islanders, living in certain areas from sniffing fuel.

Clause 5 - Dictionary

This provision defines certain terms used in the Act.

Clause 6 - Act binds Crown

This provision provides that the Act binds the Crown in each of its capacities, but does not make the Crown liable to be prosecuted for an offence.

Clause 7 - Relationship to State and Territory laws

This provision provides that the Act is not intended to exclude the operation of State or Territory laws, to the extent they are capable of operating concurrently with the Act.

Clause 8 - Prohibition on suppling etc. regular unleaded petrol in LAF areas

This provision creates offences for corporations that supply RULP to a person in a LAF area; that transport RULP intending to supply it to another person who is either in a LAF area or who intends to supply it to a third person in a LAF area; or that possess RULP intending to supply it to a person in a LAF area. There are exceptions if the relevant conduct is covered by an exemption under section 17, or if it is to comply with a direction or order under an emergency law.

These offences attract a penalty of 300 penalty units.

Clause 9 - Requirements relating to LAF for LAF and fuel control areas

This provision gives the Minister power to require suppliers in LAF areas and fuel control areas to undertake certain requirements in relation to LAF. This can include communicating information in relation to the supply of LAF or promoting LAF; making and keeping records relating to the supply, transport, possession or storage of LAF and giving the Minister specified information relating to the supply, transport, possession or storage of LAF.

Requirements under this provision are determined by the Minister by legislative instrument and the Minister must be satisfied the determination will further the object of the Act.

Clause 10 - Offence - contravening requirements relating to LAF

This provision creates an offence for a corporation that contravenes a requirement under section 9, unless the conduct is exempt under section 17. The penalty for contravening a requirement is 100 penalty units.

Clause 11 - Requirements relating to fuels generally for LAF and fuel control areas

This provision gives the Minister the power to determine requirements via legislative instrument relating to the supply, transport, possession or storage of any fuel in, or in relation to, a LAF or fuel control area.

Requirements under this provision are determined by the Minister by legislative instrument and the Minister must be satisfied the determination will further the object of the Act. The Minister must also have regard to the wellbeing of people, including Aboriginal persons and Torres Strait Islanders, living in the area, submissions made as part of the consultation process and any other matters the Minister considers relevant.

Clause 12 - Offence - contravening requirements relating to fuels generally

This provision creates an offence for a corporation that contravenes a requirement under section 11, unless the conduct is exempt under section 17 or it is engaged in to comply with a direction or order under an emergency law. The penalty for contravening a requirement is 300 penalty units.

Clause 13 - Consultation before determining requirements relating to fuels generally

This provision specifies the consultation requirements which must be met before the Minister can make a determination under section 11.  This includes consulting certain persons, including Aboriginal persons or Torres Strait Islanders (or their representatives) and bodies; making information available in the area to which the determination relates and giving a reasonable opportunity for people, businesses and organisations to make submissions.

Clauses 14-15 -Minister may designate LAF and fuel control areas

These provisions set out the power of the Minister to designate, by legislative instrument, an area as a LAF or fuel control area. The Minister may only designate an area as a LAF area if he or she is satisfied that doing so is reasonably likely to help reduce potential harm to the health of people, including Aboriginal persons and Torres Strait Islanders, living in that area from sniffing fuel ; and that there are adequate facilities or arrangements for the supply of LAF to and within the area being designated.

These provisions ensure that the Act does not have any unintended consequences in the event of supply disruptions and are in keeping with recommendation 4 of the Senate Community Affairs Legislation Committee Report on their Inquiry into the LAF Bill 2012.

The provisions also provide that the Minister can only designate areas as LAF or fuel control areas if the Minister considers that the appropriate State and Territories have not enacted legislation consistent with this Act, or are unlikely to enact such legislation within a reasonable period.  The inclusion of these clauses acknowledges the need for coordinated action across jurisdictions to reduce the harm of petrol sniffing and is in keeping with recommendation 5 of the Senate Community Affairs Legislation Committee Report on their Inquiry into the LAF Bill 2012.

The Minister must also have regard to:

·        the wellbeing of people, including Aboriginal persons and Torres Strait Islanders, living in the area;

·        whether there is reason to believe people, including Aboriginal persons and Torres Strait Islanders, have been harmed by sniffing fuel;

·        whether people, including Aboriginal persons and Torres Strait Islanders, have expressed that their wellbeing will be improved by designating the area;

·        submissions made as part of the consultation process;

·        the availability of fuels (including LAF); and

·        any other matters the Minister considers relevant.

Clause 16 - Consultation before designating LAF and fuel control areas

This provision outlines the consultation requirements which must be met before the Minister can designate a LAF or fuel control area. This includes consulting certain persons and bodies such as community representatives; Aboriginal persons or Torres Strait Islanders (or their representatives); manufacturers and suppliers of fuel; persons with an interest in or knowledge of human health; and any other person the Minister considers appropriate. Information setting out the proposal to designate the areas must be made available to people living in the area, and businesses and organisations operating in the area, giving them a reasonable opportunity to make submissions.

Including manufacturers and suppliers of fuel in the consultation process addresses recommendation 4 of the Senate Community Affairs Legislation Committee Report on their Inquiry into the LAF Bill 2012.

Clause 17 - Minister may exempt conduct in relation to LAF and fuel control areas

This provision allows the Minister to exempt specified conduct of a corporation in LAF and fuel control areas. Exemptions can relate to any of the requirements under the Act. The Minister must be satisfied that there are special circumstances justifying the exemption and that either the exemption will not adversely affect the wellbeing of people, including Aboriginal persons and Torres Strait Islanders, in an area to which it relates; or the exemption is necessary because of the unavailability, or likely unavailability, of low aromatic fuel.

This exemption clause ensures that the Act does not have any unintended consequences in the event of supply disruptions and is in keeping with recommendation 4 of the Senate Community Affairs Legislation Committee Report on their Inquiry into the LAF Bill 2012.

Clause 18 - Reviewing the operation of the Act

This provision provides that the Minister must review the operation of the Act within five years of commencement, and every five years after that. The reviewer must provide a written report within one year after the time for commencing the review, which will be tabled in both houses of Parliament.

It is anticipated that the review would consider, but not be limited to, the appropriateness of areas designated under the Act.

Clause 18A - Acquisition of property

This provisions provides that the Bill or any instrument made under the Bill will not apply to the extent that it would result in an acquisition of property otherwise than on just terms (within the meaning of paragraph 51 (xxxi) of the Constitution). The intention of this provision is to protect existing agreements for the supply and distribution of fuel that were entered into prior to the enactment of the legislation.

 

Clause 19 - Regulations

This provision provides for the making of regulations.