Biofuel Bill

  • enacted
9 New Part 3A inserted
  • The following Part is inserted after Part 3:

    Part  3A
    Biofuel obligation

    34A Purpose of this Part
    • The purpose of this Part is to ensure that sustainable biofuels are supplied in New Zealand.

    34B Outline of this Part
    • This Part provides—

      • (a) that each year, an obliged person’s fuel must include biofuel:

      • (b) how to calculate the amount of biofuel required:

      • (c) that exported fuels do not count:

      • (d) that the required amount of biofuel may be deferred in the first 2 years of the obligation:

      • (e) that obliged persons have choices about how to treat surpluses and shortfalls of biofuel:

      • (f) that agreements may allow entitle obliged persons to count others’ biofuel towards their obligation:

      • (g) that a civil penalty applies for not having the required biofuel.

    34C Status of examples
    • (1) An example used in this Part is only illustrative of the provision to which it relates and it does not limit the provision.

      (2) If an example and a provision to which it relates are inconsistent, the provision prevails.

    34D Interpretation
    • In this Part, unless the context otherwise requires,—

      actual amount of qualifying biofuel has the meaning given by section 34L(2)

      biofuel percentage means, in relation to any particular year, the percentage set out in Schedule 5

      energy content means gross energy content calculated in petajoules on the basis of volumetric energy values

      export has the same meaning as exportation in section 2(1) of the Customs and Excise Act 1996

      force majeure event has the meaning given by section 34Y

      New Zealand has the same meaning as in section 2(1) of the Customs and Excise Act 1996

      obligation engine fuel has the meaning given by section 34F

      obliged person has the meaning given by section 34E

      petajoules means petajoules expressed as a decimal and rounded to 5 decimal places, with numbers at the midpoint or greater being rounded up and other numbers being rounded down

      qualifying biofuel has the meaning given by section 34G

      required amount of qualifying biofuel has the meaning given by section 34L(1)

      shortfall has the meaning given by section 34Q(3)

      surplus has the meaning given by section 34Q(1)

      Tariff has the same meaning as in section 2(1) of the Tariff Act 1988

      trigger point has the meaning given by section 34H

      year means calendar year, but includes year 1

      year

      • (a) means a calendar year; and

      • (b) includes year 1

      year 1 means the period beginning on the commencement of this Part and ending on 31 December in the same year

      year 2 means the next calendar year after year 1 that starts on 1 January

      year 3 means the next calendar year after year 2 that starts on 1 January.

    34E Definition of obliged person
    • (1) An obliged person is a person who owns obligation engine fuel at the trigger point.

      (2) The Governor-General may, by Order in Council made on the recommendation of the Minister, exempt a person or a class of persons who owns obligation engine fuel at the trigger point from being an obliged person for the purposes of this Part if the Minister is satisfied that the person is a person or is in a class of persons that or class of persons

      • (a) does not sell or use a significant amount of obligation engine fuel in New Zealand; and

      • (b) the Minister considers is not relevant to the purposes of this Part.

    34F Definition of obligation engine fuel
    • (1) Obligation engine fuel means that part of engine fuel specified in Schedule 3 of the Customs and Excise Act 1996 that is,—

      • (a) if no Order in Council is in force under paragraph (b)subsection (1A), diesel or motor spirit; or

      • (b) an engine fuel prescribed by an Order in Council.

      • (b) if an Order in Council is in force under subsection (1A), obligation engine fuel prescribed by that Order in Council.

      (1A) The Governor-General may, by Order in Council made on the recommendation of the Minister, prescribe engine fuel that is obligation engine fuel.

      (2) The part of engine fuel that is obligation engine fuel remains so whether or not it is blended with anything else.

    34G Definition of qualifying biofuel
    • (1) Qualifying biofuel means that part of engine fuel,—

      • (a) if no Order in Council is in force under subsection (2), specified in under the heading Fuels in Part A or B of Schedule 3 of the Customs and Excise Act 1996 that is biodiesel or ethyl alcohol produced from biomass; or

      • (b) if an Order in Council is in force under subsection (2), that is a biofuel prescribed in that Order in Council.

      (2) An Order in Council may The Governor-General may, by Order in Council made on the recommendation of the Minister, prescribe that biofuels of the following types or classes are or are not qualifying biofuels:

      • (a) biofuels of a particular type:

      • (b) biofuels produced from a particular type or source of biomass:

      • (c) biofuels produced from or refined through a particular process:

      • (d) biofuels with specified qualities:

      • (e) biofuels meeting specified environmental or sustainability standards or specifications (for example, specifications providing that qualifying biofuels must be produced from biomass grown without causing undue environmental harm and without unduly impinging on food production):

      • (f) biofuels meeting other specified standards or specifications:

      • (g) biofuels with a particular end use or type of end use.

      (2A) In making a recommendation under this section, the Minister must take into account—

      • (a) the purpose of this Act; and

      • (b) the principles of sustainable biofuels set out in section 34GA(3).

      (3) The part of engine fuel that is qualifying biofuel remains so whether or not it is blended with anything else.

    34GA Minister must recommend Order in Council under section 34G(2) providing qualifying biofuels must be sustainable biofuels
    • (1) The Minister must recommend the making of an Order in Council under section 34G(2) as soon as practicable after this section comes into force.

      (2) The Minister must be satisfied, before making the recommendation, that the Order in Council will—

      • (a) provide that qualifying biofuels are sustainable biofuels; and

      • (b) be consistent with the principles of sustainable biofuels in subsection (3); and

      • (c) appropriately consider the indirect effects of biofuel production.

      (3) The principles of sustainable biofuels are as follows:

      Principle 1: Less greenhouse gas

      Sustainable biofuels emit significantly less greenhouse gas over their life cycle than obligation engine fuel. In relation to this principle, the Order in Council must—

      • (a) specify a methodology for life cycle assessment of greenhouse gas emissions from obligation engine fuels; and

      • (b) specify minimum levels of no less than 35% greenhouse gas emission reductions for qualifying biofuels in comparison to obligation engine fuel.

      Principle 2: Food production

      Sustainable biofuels do not compete with food production and are not grown on land of high value for food production. Without limitation, the following biofuels do not contravene this principle:

      • (a) byproducts of food production described in the Order in Council:

      • (b) ethanol from sugarcane grown in circumstances and in areas described in the Order in Council:

      • (c) rotational oilseed crops grown not more than 12 months in any 24-month period on the same land or as otherwise specified in the Order in Council.

      In relation to this principle, the Order in Council must—

      • (a) specify a methodology for assessing the effects of the production of a biofuel on food production and for assessing whether those effects amount to competition; and

      • (b) specify a mechanism for recognising particular land (including land outside New Zealand) as being land of high value for food production.

      Principle 3: Biodiversity and land with high conservation value

      The production of sustainable biofuels does not reduce indigenous biodiversity or adversely affect land with high conservation value. In relation to this principle, the Order in Council must—

      • (a) specify a mechanism for recognising particular land (including land outside New Zealand) as having high conservation value; and

      • (b) specify a methodology for assessing the effects of the production of a biofuel on indigenous biodiversity and land of high conservation value.

      (4) If the Minister has not recommended an Order in Council referred to in subsection (1) by 30 June 2009, the Minister must report to the House of Representatives about the following:

      • (a) the reasons why the Minister has not recommended that such an Order in Council be made; and

      • (b) any alternative methods to the method set out in this section of ensuring qualifying biofuels are sustainable biofuels; and

      • (c) the time when the Minister intends to make such a recommendation.

    34H Definition of trigger point
    • (1) Trigger point means, in relation to obligation engine fuel or qualifying biofuel,—

      • (a) if no Order in Council is in force under subsection (2), the time when the engine fuel is removed for home consumption under the Customs and Excise Act 1996; or

      • (b) if an Order in Council is in force under subsection (2), the time described by that Order in Council.

      (2) An The Governor-General may, by Order in Council made on the recommendation of the Minister, set out for the purposes of subsection (1)(b) must set out,

      • (a) the time of the trigger point for the engine fuel, which may be, for example, when the engine fuel was imported or when the engine fuel leaves the place where it is blended or produced; and

      • (b) the information required in relation to that engine fuel; and

      • (c) the verification and auditing procedures in relation to that engine fuel; and

      • (d) any other provisions to ensure that engine fuel is only counted as going through the trigger point once.

    34I Governor-General may revise biofuel percentage annually
    • The Governor-General may, by Order in Council made on the recommendation of the Minister, amend Schedule 5 to revise the biofuel percentage for any future years year after the year in which the Order in Council is made.

    34J Consultation and confirmation requirements for Orders in Council under sections 34F to 34Isection 34F, 34G, 34H, or 34I
    • (1) The Minister may only make a recommendation for the making of an Order in Council under sections 34F to 34I must be made on the recommendation of the Minister, who may only make a recommendation section 34F, 34G, 34H, or 34I after consulting with persons the Minister considers are likely to be substantially affected by the recommendation. But failure to comply with this subsection does not affect the validity of an Order in Council.

      (2) An Order in Council under section 34F, 34G, or 34H may only be made in relation to any future years and must,—

      • (a) if made on or before 30 June in any year, expire on the close of 31 December of that year, except so far as it is expressly confirmed by Act of Parliament passed during that year; and

      • (b) if made on or after 1 July in any year, expire on the close of 31 December in the following year, except so far as it is expressly confirmed by Act of Parliament passed before the end of that following year.

      (2) An Order in Council made under section 34F, 34G (except for an Order in Council referred to in section 34GA(1)), or 34H may only be made in relation to any future years.

      (2A) An Order in Council referred to in section 34GA(1) must come into force on the earlier of—

      • (a) 3 months after the date it is made; or

      • (b) 1 January in the next year.

      (2B) An Order in Council made under section 34F, 34G, or 34H must,—

      • (a) if made on or before 30 June in any year, expire on the close of 31 December of that year, except so far as it is expressly confirmed by Act of Parliament passed during that year; and

      • (b) if made on or after 1 July in any year, expire on the close of 31 December in the following year, except so far as it is expressly confirmed by Act of Parliament passed before the end of that following year.

      (3) An Order in Council made under section 34I must be made on or before 30 June in any year, and expires on the close of 31 December of that year, except so far as it is expressly confirmed by Act of Parliament passed during that year.

      (4) If the Order in Council ceases to have effect under the Regulations (Disallowance) Act 1989, neither subsection (2)(2B) nor (3) applies.

    34K Obliged person’s required amount of qualifying biofuel
    • Every year, each obliged person’s actual amount of qualifying biofuel must equal or exceed the person’s required amount of qualifying biofuel.

    34L Calculating required amount of qualifying biofuel and actual amount of qualifying biofuel
    • (1) Each obliged person must calculate the person’s required amount of qualifying biofuel for a year in petajoules as follows:

      • (a) by counting totalling the amount of obligation engine fuel owned by the obliged person at the trigger point at any time during that year; then

      • (b) subtracting the amount of any exported engine fuel as required by section 34O; then

      • (c) multiplying the remaining amount of obligation engine fuel by the biofuel percentage; then

      • (d) adding any amounts of qualifying biofuel that must be added under section 34P or 34Q; then

      • (e) subtracting any amounts of qualifying biofuel that may or must be subtracted because of section 34P or 34Q.

      (2) Each obliged person must calculate the person’s actual amount of qualifying biofuel for a year in petajoules as follows:

      • (a) by counting totalling the amount of qualifying biofuel owned by the obliged person at the trigger point at any time during that year; then

      • (b) subtracting the amount of any exported biofuel as required by section 34O; then

      • (c) adding any amounts of qualifying biofuel that are able to be added because of section 34S or 34T; then

      • (d) subtracting any amount of qualifying biofuel that the obliged person is not entitled to count because of section 34S or 34T.

      Example

      Black Gold Limited is an obliged person. Its amount of obligation engine fuel in 2012 is 100 petajoules of petrol. As well, it has 3.4 2.5 petajoules of qualifying biofuel that year. The biofuel percentage for 2012 is 3.4 2.5%. Black Gold’s actual amount of qualifying biofuel is the same as the required amount of qualifying biofuel, because 3.4 2.5% of 100 petajoules is 3.4 2.5 petajoules.

      If, in a year, Black Gold has 103.4 102.5 petajoules of an engine fuel that is a blend made up of 100 petajoules of petrol and 3.4 2.5 petajoules of qualifying biofuel, Black Gold’s actual amount of qualifying biofuel would also be the same as the required amount of qualifying biofuel.

    34M Required amount of qualifying biofuels may be divided into proportions or amounts by Order in Council
    • (1) The Governor-General may require, by Order in Council made on the recommendation of the Minister, that, for any future years, an obliged person’s required amount of qualifying biofuel must include minimum percentages of 1 or more of the following classes of biofuel:

      • (a) qualifying biofuel of a particular type:

      • (b) qualifying biofuel from a particular type or source of biomass:

      • (c) qualifying biofuel produced from or refined through a particular process.

      (2) In a year to which an Order in Council made under subsection (1) applies, each obliged person must multiply the person’s required amount of qualifying biofuel by each minimum percentage prescribed in the Order in Council to calculate the required amount of that class of qualifying biofuel. Each obliged person’s actual amount of that class of qualifying biofuel must equal or exceed the person’s required amount of that class.

      (3) The Minister may only make a recommendation to make an Order in Council made under subsection (1) after consulting with persons the Minister considers are likely to be substantially affected by the recommendation. But failure to comply with this subsection does not affect the validity of an Order in Council.

      (4) An Order in Council made under subsection (1) must be made on or before 30 June in any year, and expires on the close of 31 December of that year, except so far as it is expressly confirmed by Act of Parliament passed during that year.

      (5) If the Order in Council ceases to have effect under the Regulations (Disallowance) Act 1989, subsection (4) does not apply.

    34N Energy content values
    • (1) Obliged persons may determine the energy content value of particular engine fuel for the purposes of the calculations in petajoules in sections 34L and 34M, but each energy content value must be verified by a statutory declaration by a person accredited for that purpose under regulations.

      (2) If an energy content value is not calculated by an obliged person for any particular engine fuel, or is not verified as described in subsection (1), or is incorrect, the default energy content value prescribed under subsection (3) applies.

      (3) The Governor-General may, by Order in Council made on the recommendation of the Minister, set out default energy content values for engine fuel.

      (4) In relation to energy content values for biofuel, different values may apply in relation to biofuel—

      • (a) of a particular type or class; or

      • (b) from a particular type or source of biomass; or

      • (c) produced from or refined through a particular process.

      (5) Different energy content values may apply for engine fuel in different circumstances (for example, in different seasons).

    34O Exclusion for engine fuel exported from New Zealand
    • (1) Engine fuel owned at the trigger point that is subsequently exported from New Zealand does not count either as obligation engine fuel or as qualifying biofuel.

      (2) The rules in subsection (3) apply depending on when an obliged person comes to know that engine fuel owned by the obliged person at the trigger point in a particular year (the trigger point year) was subsequently exported from New Zealand. (An obliged person comes to know about the export of engine fuel if any person acting under the obliged person’s authority comes to know about the export.)

      (3) If an obliged person comes to know about the export—

      • (a) during the trigger point year, the obliged person must subtract the amount of the exported engine fuel in the annual return for that year:

      • (b) in the first year after the trigger point year, the obliged person must subtract the amount of the exported engine fuel in one of the following:

        • (i) the annual return for the trigger point year if it has not yet been filed; or

        • (ii) the annual return for the first year after the trigger point year:

      • (c) in the second year or third year after the trigger point year, the obliged person must subtract the amount of the exported engine fuel in one of the following:

        • (i) the annual return for the year in which the obliged person comes to know about the export; or

        • (ii) the annual return for the year after the year in which the obliged person comes to know about the export.

      (4) In subsection (3), a reference to subtracting the amount of the exported engine fuel means one of the following:

      • (a) if the exported engine fuel is obligation engine fuel, subtracting the export from the person’s obligation engine fuel as provided in section 34L(1)(b); or

      • (b) if the exported engine fuel is qualifying biofuel, subtracting the export from the person’s qualifying biofuel as provided in section 34L(2)(b).

      (5) An obliged person who fails to comply with subsection (3) commits an offence.

    34P Deferring required amount of qualifying biofuel
    • (1) An obliged person may apply in writing to the Minister for a deferral of the whole or any part of that person’s required amount of qualifying biofuel for either or both of the following years:

      • (a) year 1 until year 2:

      • (b) year 2 (which may include the required amount of qualifying biofuel for year 1) until year 3.

      (2) An application—

      • (a) under subsection (1)(a) may be made at any time from the beginning of year 1 until 1 month after the end of year 1; and

      • (b) under subsection (1)(b) may be made at any time from the beginning of year 2 until 1 month after the end of year 2.

      (3) The Minister may grant or reject an application by notice in the Gazette, and must make reasonable efforts to do so within 2 months of receiving the application.

      (4) If an applicant is granted deferral for year 1 until year 2, the applicant must—

      • (a) add to year 2’s required amount of qualifying biofuel both of the following:

        • (i) the amount deferred from year 1; and

        • (ii) 5% of year 1’s required amount of qualifying biofuel; and

      • (b) subtract from year 1’s required amount of qualifying biofuel the amount deferred.

      (5) If an applicant is granted deferral for year 2 until year 3, the applicant must—

      • (a) add to year 3’s required amount of qualifying biofuel both of the following:

        • (i) the amount deferred from year 2; and

        • (ii) 5% of year 2’s required amount of qualifying biofuel; and

      • (b) subtract from year 2’s required amount of qualifying biofuel the amount deferred.

    34Q Surplus and shortfall
    • (1) If, for a year, an obliged person has an actual amount of qualifying biofuel that is greater than the person’s required amount of qualifying biofuel (a surplus), the amount of that surplus may be subtracted from the required amount of qualifying biofuel in the year after the year with a surplus.

      (2) The amount of the surplus that may be subtracted under subsection (1) is not more than 10% of the required amount of qualifying biofuel in the year with a surplus.

      (3) If, for a year, an obliged person has an actual amount of qualifying biofuel that is less than the person’s required amount of qualifying biofuel (a shortfall), the amount of that shortfall—

      • (a) may be subtracted from that year’s required amount of qualifying biofuel; and, if so,—

      • (b) must be added to the required amount of qualifying biofuel in the year after the year with a shortfall.

      (4) The amount of the shortfall that may be subtracted under subsection (3) is not more than 10% of the required amount of qualifying biofuel in the year with a shortfall.

      Example

      Texas Tea Limited has 3.23 1.9 petajoules of qualifying biofuel in 2012 2011, but the required amount of qualifying biofuel is 3.4 2.0 petajoules. Texas Tea has a shortfall of 0.17 0.1 petajoules, which is 5% of the required amount of qualifying biofuel for that year. Texas Tea decides to subtract that shortfall from its required amount of qualifying biofuel for 2012 2011. That means that—

      • in 2012 2011, Texas Tea can treat its required amount of qualifying biofuel as 3.23 1.9 petajoules; and

      • in 2013 2012, 0.17 0.1 petajoules must be added to Texas Tea’s required amount of qualifying biofuel.

    34R Entitlement agreements: general rules
    • (1) An entitlement agreement must be recorded in writing.

      (2) Both parties to an entitlement agreement must sign a notice of entitlement.

      (3) A notice of entitlement must be in any prescribed form and contain any prescribed information as well as the following information about the qualifying biofuel that is the subject of the entitlement agreement—

      • (a) its particular type:

      • (b) its particular type or source of biomass:

      • (c) the particular process it was produced from or refined through.

      (3) A notice of entitlement must be in any prescribed form and contain any prescribed information that relates to the qualifying biofuel that is the subject of the entitlement agreement, which may include—

      • (a) information to demonstrate the compliance of the biofuel with any Order in Council made under section 34G(2); and

      • (b) information about the extent to which the biofuel is consistent with the principles of sustainable biofuels set out in section 34GA(3); and

      • (c) the type, nature, or class of the biofuel; and

      • (d) the country of origin of the biofuel; and

      • (e) the particular type or source of biomass from which the biofuel was produced; and

      • (f) the particular process the biofuel was produced from or refined through; and

      • (g) the qualities of the biofuel; and

      • (h) any standards or specifications (including environmental or sustainability standards or specifications) that the biofuel meets; and

      • (i) the particular end use or type of end use of the biofuel.

      (3A) For the purposes of this Part, unless the context otherwise requires, qualifying biofuel that an obliged person is entitled to count towards that person's actual amount of qualifying biofuel because of an entitlement agreement must be treated as being that person's qualifying biofuel.

      (4) All entitlement agreements entered into in relation to any year to which an Order in Council made under section 34M(1) applies must specify whether or not they relate to a class of qualifying biofuel specified by that Order in Council.

      (5) A person who signs an entitlement agreement or notice of entitlement knowing that it is false or misleading in a material particular commits an offence.

    34S Entitlement agreements with biofuel owner who is not obliged person
    • (1) A biofuel owner (X) may agree with an obliged person (Y) that Y is entitled to count X’s ownership of an amount of particular qualifying biofuel at the trigger point in a year towards Y’s actual amount of qualifying biofuel for the same year. If so,—

      • (a) X is not entitled to reach any other entitlement agreement in relation to that qualifying biofuel; and

      • (b) Y may add that amount of qualifying biofuel towards Y’s actual amount of qualifying biofuel.

      (2) For the purposes of this section, biofuel owner means a person who owns particular qualifying biofuel and is not an obliged person.

      (3) X must certify in the notice of entitlement that X has sold or intends to sell the particular qualifying biofuel for use in New Zealand, or has used or intends to use the particular qualifying biofuel in New Zealand.

      (4) X must inform Y if X comes to know that the particular qualifying biofuel is exported from New Zealand. (X comes to know about the export of the qualifying biofuel if any person acting under X’s authority comes to know about the export.)

      (5) X commits an offence if X breaches subsection (4).

      (6) If X has informed Y of an export under subsection (4), Y may not count that amount of qualifying biofuel towards Y’s actual amount of qualifying biofuel.

      (7) Y commits an offence if Y breaches subsection (6).

    34T Entitlement agreements with biofuel owner who is obliged person
    • (1) An entitled obliged person (A) may agree with another obliged person (B) that B is entitled to count A’s ownership of or entitlement to count an amount of a particular class of qualifying biofuel in a year towards B’s actual amount of qualifying biofuel for the same year. If so,—

      • (a) A must subtract that amount of qualifying biofuel from A’s actual amount of qualifying biofuel; and

      • (b) B may add that amount of qualifying biofuel towards B’s actual amount of qualifying biofuel.

      (2) For the purposes of this section, an entitled obliged person means an obliged person who—

      • (a) owns qualifying biofuel at the trigger point in that year; or

      • (b) is entitled to count qualifying biofuel towards that person’s actual amount of qualifying biofuel in that year because of an entitlement agreement.

      (3) A must certify in the notice of entitlement that A has sold or intends to sell all A’s qualifying biofuel of that class for use in New Zealand or has used or intends to use the qualifying biofuel in New Zealand.

      (4) A must treat an export of any of A’s qualifying biofuel of that class as if it were an export of qualifying biofuel that is not subject to an entitlement agreement. B is not affected by the export.

      (5) A commits an offence if A breaches subsection (4).

      Example

      Black Gold Limited and Texas Tea Limited are both obliged persons.

      In 2012, Texas Tea decides to enter into an entitlement agreement entitling Black Gold to count 7 2 petajoules of Texas Tea’s qualifying biofuel towards Black Gold’s actual amount of qualifying biofuel for that year. Both parties write down their agreement, and also sign a notice of entitlement. Black Gold’s annual return for 2012 records the entitlement agreement and attaches the entitlement notice.

      Although not intended by Texas Tea, several petajoules of Texas Tea’s qualifying biofuel is exported from New Zealand. Texas Tea must subtract the exported biofuel from its actual amount of qualifying biofuel. The export does not affect Black Gold at all.

    Annual returns

    34U Annual returns
    • (1) Within 4 months after the end of a year, an obliged person must file with the Secretary an annual return, which must contain the information described in subsection (2) and annex any notices of entitlement relating to that year.

      (2) The information to be contained in the annual return is—

      • (a) the obliged person’s calculations under sections 34L and 34M; and

      • (b) any information prescribed in regulations, which may include—

        • (iaa) information to demonstrate the compliance of the obliged person's qualifying biofuel with any Order in Council made under section 34G(2); and

        • (iab) information about the extent to which the obliged person's qualifying biofuel is consistent with the principles of sustainable biofuels set out in section 34GA(3); and

        • (i) the type, nature, or class of the obliged person’s engine fuel; and

        • (ii) the country of origin of the obliged person’s engine fuel; and

        • (iii) the particular type or source of biomass from which the obliged person’s biofuels were produced; and

        • (iv) the particular process from which the obliged person’s biofuels engine fuels were produced from or refined through; and

        • (v) the qualities of the obliged person's engine fuel; and

        • (vi) any standards or specifications (including environmental or sustainability standards or specifications) that the obliged person's engine fuel meets; and

        • (vii) the particular end use or type of end use of the obliged person's engine fuel.

      (3) If a form for the annual return is prescribed, the annual return must be in that form or as near to the form as circumstances allow. Different forms of annual return may be prescribed in respect of different classes of obliged persons.

      (3) If an obliged person comes to know that an annual return that has been filed is incorrect or incomplete in any material particular, the obliged person must file a corrected and complete annual return within 4 months of coming to know about the incorrectness or incompleteness. (An obliged person comes to know about the incorrectness or incompleteness when any person under the obliged person's authority comes to know about the incorrectness or incompleteness.)

      (3A) The situation addressed in section 34O(3) is an exception to subsection (3).

      (4) The annual return must be signed as correct by,—

      • (a) if the obliged person is an individual, that individual:

      • (b) if the obliged person is a company, a director:

      • (c) if the obliged person is not a company or an individual, a person who occupies a position equivalent to that of a director of a company (such as a trustee or a partner).

      (4A) An obliged person must publish (in any form and manner required by regulations), by the date on which that person's annual return is due under subsection (1) or (3), the information required under subsection (2)(b).

      (5) An obliged person who fails to comply with subsection (1), (3), or (4) commits an offence.

      (6) An obliged person or any other person who files an annual return under subsection (1) or (3) or who signs an annual return under subsection (4) knowing that it is false incorrect or incomplete in a material particular commits an offence.

      (7) An offence against subsection (6) committed by any person is to be treated as if it were also committed by an obliged person.

    34V Auditing of annual returns
    • (1) Before an obliged person files an annual return, the obliged person must engage an auditor to audit the annual return.

      (1) An obliged person must ensure that an auditor’s statutory declaration made in accordance with regulations is filed with the obliged person’s annual return.

      (2) The auditor must meet the requirements of section 199 of the Companies Act 1993.

      (3) The auditor must verify, by a statutory declaration attached to the annual return, that all of the prescribed information in the annual return is correct.

      (3) An obliged person who fails to comply with subsection (1) commits an offence.

    Civil penalty

    34W Civil penalty for breaching section 34K
    • (1) On the application of the Secretary, the High Court must order an obliged person to pay a civil penalty, as calculated under subsection (2), to the Crown if the Court is satisfied that the obliged person has breached section 34K.

      (2) The civil penalty for breaching section 34K is calculated as follows:

      (a − b) × c = p

      where—

      a
      is the required amount of qualifying biofuel
      b
      is the actual amount of qualifying biofuel
      c
      is one of the following rates:
      • (a) for year 1, $20 million:

      • (b) for year 2, $20 million:

      • (c) for year 3, $20 million:

      • (d) for year 4, $25 million:

      • (e) for year 5 and for each subsequent year, $30 million

      p
      is the penalty

      (3) However, the Court may reduce the civil penalty (including to zero) to the extent that the Court is satisfied that the obliged person—

      • (a) took all reasonable steps not to breach section 34K; or

      • (b) breached section 34K because of a force majeure event as defined in section 34Y.

      (4) If the obliged person is liable to pay a civil penalty under this section and is also liable to pay a civil penalty under section 34X in relation to the same year, the obliged person need pay only the greater penalty.

      (5) An application for a civil penalty under this section may be made at any time within 2 years after the date on which the annual return should have been filed under section 34U.

      (5) An application for a civil penalty under this section may be made at any time within 3 years after the later of—

      • (a) the date on which the obliged person's annual return should have been filed under section 34U(1) or (3A); or

      • (b) the date on which the obliged person is convicted of an offence under section 34U(5) or (6).

    34X Civil penalty for breaching section 34M(2)
    • (1) On the application of the Secretary, the High Court must order an obliged person to pay a civil penalty, as calculated under subsection (2), to the Crown if the Court is satisfied that the obliged person has breached section 34M(2).

      (2) The civil penalty for breaching section 34M(2) (in relation to each class of qualifying biofuel required) is calculated as follows:

      (a − b) × c = p

      where—

      a
      is the required amount of the class of qualifying biofuel
      b
      is the actual amount of the class of qualifying biofuel
      c
      is one of the following rates:
      • (a) for year 1, $20 million:

      • (b) for year 2, $20 million:

      • (c) for year 3, $20 million:

      • (d) for year 4, $25 million:

      • (e) for year 5 and for each subsequent year, $30 million

      p
      is the penalty

      (3) However, the Court may reduce the civil penalty (including to zero) to the extent that the Court is satisfied that the obliged person—

      • (a) took all reasonable steps not to breach section 34M(2); or

      • (b) breached section 34M(2) because of a force majeure event as defined in section 34Y.

      (4) If an obliged person has breached section 34M(2) in relation to more than 1 class of qualifying biofuel, the person must add together the civil penalties payable for each class and pay the total.

      (5) If the obliged person is liable to pay a civil penalty or total civil penalties under this section and is also liable to pay a civil penalty under section 34W in relation to the same year, the obliged person need pay only the greater amount.

      (6) An application for a civil penalty under this section may be made at any time within 2 years after the date on which the annual return should have been filed under section 34U.

      (6) An application for a civil penalty under this section may be made at any time within 3 years after the later of—

      • (a) the date on which the obliged person's annual return should have been filed under section 34U(1) or (3A); or

      • (b) the date on which the obliged person is convicted of an offence under section 34U(5) or (6).

    34Y Definition of force majeure event
    • For the purposes of sections 34W and 34X, force majeure event means an event beyond the reasonable control of an obliged person that is, or is nearly identical to, one of the following:

      • (a) fire, flood, storm, earthquake, landslide, volcanic eruption, epidemic, or other act of God:

      • (b) explosion or nuclear, biological, or chemical contamination:

      • (c) quarantinable disease (within the meaning given by section 2(1) of the Health Act 1956):

      • (d) sabotage, terrorism, or act of war (whether declared or not).

    34Z Applicable rules, procedure, and standard of proof
    • The proceedings under sections 34W and 34X are civil proceedings to which the usual rules of the High Court, rules of evidence, and procedure for civil proceedings apply (including the standard of proof).

      Compare: 2007 No 7 s 49