Western Australian Numbered Acts Western Australian Numbered Acts (1) Section 4(1)
is repealed and the following subsections are inserted instead —
“
(1) A retailer at a site may —
(a)
purchase motor fuel, for resale at the site, from a supplier other than the
primary supplier for that kind and, where applicable, grade of motor fuel for
that site; and
(b) if,
under paragraph (a) or otherwise, the retailer is lawfully able to
purchase motor fuel for resale at the site from a supplier other than the
primary supplier for that kind and, where applicable, grade of motor fuel for
that site —
(i)
use, for the storage of that motor fuel, any bulk storage
at the site that is suitable; and
(ii)
use, for the dispensing of that motor fuel, any
dispensing equipment on the site that is suitable.
(1a)
Subsection (1) applies subject to this section but, except as stated in
subsection (1b), despite —
(a) any
Act or law affecting the contractual relationship between a landlord and a
tenant; or
(b) any
agreement to the contrary, whether made between the primary supplier and the
retailer or not.
(1b)
Subsection (1)(a) does not apply if a purchase under that paragraph would
be contrary to an agreement that was entered into before
10 February 2001.
(1c) An agreement
resulting from the modification, continuation, or renewal of an agreement
entered into before 10 February 2001 is to be considered, when
applying subsection (1b), to have been entered into on the day on which
it was most recently modified, continued, or renewed, but —
(a) a
modification is not to be taken into consideration if it had no necessary
connection with the duration of the agreement; and
(b) a
modification, continuation, or renewal is not to be taken into consideration
if the retailer was the only party who had a choice about whether the
modification, continuation, or renewal would be made.
(1d) Nothing in this
section limits any right that the retailer may, independently of this section,
have to purchase motor fuel, for resale at the site, from a supplier other
than the primary supplier for that kind and, where applicable, grade of motor
fuel for that site.
”.
(2) Section 4(2)
is repealed and the following subsection is inserted instead —
“
(2) A right conferred on the retailer by subsection (1) is
not exercisable until 7 days after notice in writing of the intention to
exercise it has been given —
(a) if
it is a right conferred by subsection (1)(a), to the retailer’s
primary supplier, if any, for the kind and, where applicable, grade of motor
fuel concerned;
(b) if
it is a right conferred by subsection (1)(b), to the retailer’s
landlord, if the retailer is a tenant, and to the retailer’s
primary supplier, if any, for the kind and, where applicable, grade of motor
fuel concerned.
”.
(3) Section 4(3)(a) is
amended by inserting before “grade” the following —
“ , where applicable, ”.
(4)
Section 4(3)(b)(i) and (ii) are each amended as follows:
(a) by
inserting after “purchases motor fuel” the following —
“ of a particular kind and, where applicable, grade
”;
(b) by
inserting after “other than his primary supplier” the
following —
“
for that kind and, where applicable, grade of motor
fuel
”;
(c) by
deleting “each kind or grade from” and inserting instead the
following —
“ that kind and, where applicable, grade from
”.
(5)
Section 4(3)(b)(ii) is amended by deleting “each kind or grade
as” and inserting instead the following —
“ that kind and, where applicable, grade that
”.
(6)
Section 4(3)(c) is amended by deleting “does not display” and
inserting instead the following —
“
for the kind and, where applicable, grade of fuel
dispensed does not, and any bulk storage on the site that is not underground
and is used to store motor fuel other than motor fuel supplied by the primary
supplier for the kind and, where applicable, grade of fuel stored does not,
display
”.
(7)
Section 4(3)(h) is amended by deleting “petrol and diesel
fuel” and inserting instead the following —
“
different kinds or grades of motor fuel, but may contain a
mixture of different brands of motor fuel
”.
(8)
Section 4(3)(i) is amended by deleting “that”.
(9) At the foot of
section 4(3), the following is inserted —
“ Penalty: $20 000. ”.
(10) After
section 4(3) the following subsection is inserted —
“
(3a) For the purposes of deciding whether a retailer has,
as required by subsection (3)(a), ensured, so far as is practicable, that
motor fuel that the retailer is obliged to purchase from the primary supplier
is available for sale at the site, the lack of availability of storage is not
relevant if more than one kind or, where applicable, grade of motor fuel is
being stored, under subsection (1)(b)(i), in bulk storage provided at the site
for the storage of motor fuel purchased from the primary supplier.
”.
(11) Section 4(4) is
repealed and the following subsection is inserted instead —
“
(4) Subsection (3)(b) does not apply for a particular kind
or grade of motor fuel in any 6 month period if —
(a) the
primary supplier has not, as reasonably requested by the retailer, supplied
the reasonable requirements of the retailer for that kind or grade of motor
fuel in that period; and
(b)
after the failure to supply —
(i)
the retailer has given the primary supplier notice in
writing that it is intended to rely on this subsection if the supply requested
is not made within a further time reasonably specified in the notice; and
(ii)
the primary supplier does not make the supply within that
further time.
”.
(12) After
section 4(4), the following subsection is inserted —
“
(4a) For the purposes of deciding whether a person has, as
required by subsection (3)(g) or (h), ensured, so far as is practicable,
that bulk storage does not contain a particular motor fuel, the lack of
availability of other storage is not relevant.
”.
(13) Section 4(5)
is amended as follows:
(a) by
deleting “Where a term of provision of a franchise agreement” and
inserting instead the following —
“ If a provision of an agreement ”;
(b) in
paragraph (a) —
(i)
by inserting before “or any colour” the
following —
“ of a kind or grade of motor fuel ”; and
(ii)
by inserting after “dispensing equipment” the
following —
“ or on bulk storage that is not underground ”;
(c) in
paragraph (c) —
(i)
by deleting “or” after “landlord”
and inserting instead the following —
“ , if the retailer is a tenant, or a ”; and
(ii)
by inserting after “operated” the
following —
“ , or bulk storage being used, ”;
(d) by
deleting “term or”;
(e) by
deleting “tenant’s” and inserting instead the
following —
“ retailer’s ”.
(14) Section 4(6)
is amended by inserting before “purchased” the
following —
“ of the kind and, where applicable, grade concerned
”.
(15) At the foot of
section 4(6), the following is inserted —
“ Penalty: $20 000. ”.
(16) Section 4(7)
is amended by deleting “who fails to make an entry in a register as
required by this Act or”.
(17) At the foot of
section 4(7), the following is inserted —
“ Penalty for an offence under subsection (7): $20 000.
”.