Second Reading
Resumed from 10 March.
HON ALISON XAMON (North Metropolitan) [11.47 am]: I rise as the lead speaker on behalf of the Greens, and I indicate from the outset that we will be supporting this legislation. The Petroleum Products Pricing Amendment Bill 2019 is designed to address some discrepancies we currently have in the administration of FuelWatch. FuelWatch is an important consumer protection measure administered by the Department of Mines, Industry Regulation and Safety. It was established in 2001 following a parliamentary select committee inquiry and it is supported by the Petroleum Products Pricing Act 1983 and the Petroleum Products Pricing Regulations 2000, made under that act.
One of the things FuelWatch does is what is known as the 24-hour rule. The 24-hour rule requires fuel retailers to notify the Commissioner for Consumer Protection, by 2.00 pm daily, of any intended change in their retail fuel price for the following day, and to lock the pricing for 24 hours, starting at 6.00 am the next day. The notified price then goes onto the FuelWatch website, which motorists can access to make an informed decision about where and when to buy fuel. FuelWatch is not quite statewide, but it covers the metropolitan area and 64 regional locations. According to its website, it covers approximately 80 per cent of regional retail outlets and 100 per cent of metropolitan retail outlets in Western Australia. In places where there is no FuelWatch, this is usually because the local government considers it to be unnecessary—for example, if there is only one fuel retailer within 100 kilometres. However, if in future any of those excluded communities want to be included in FuelWatch, they can.
We need to look at amending this legislation now because of the introduction of Costco into the Western Australian market. Costco is a United States retail chain of enormous warehouses that sell an awful lot of things, at prices that are said to be heavily discounted. Costco has been present in the eastern states for several years, and there is now a Costco in Western Australia at Perth Airport. I understand that a second Costco is planned for the Kwinana area, and a third Costco may be built in the northern suburbs sometime in the near future. The fuel station at Costco at Perth Airport opened last month, and the warehouse part will open this month. Unlike the situation at most shops, people can shop at the Costco fuel station and the Costco warehouse only if they pay an annual fee to become a member. That is a new model for fuel retailing in Western Australia, hence the need for this bill. The aim of the bill is to ensure that Costco stores that sell fuel are subject to the FuelWatch WA scheme, in the same way as other Western Australian fuel retailers. This will ensure that consumers are protected, and also that Costco does not have an unfair advantage over other Western Australian fuel providers.
Sections 22I and 22J of the Petroleum Products Pricing Act provide the heads of power for the regulations that require fuel retailers to display their standard retail prices, and also to notify the Commissioner for Consumer Protection of any changes, and to lock in those prices as per the FuelWatch 24-hour rule. However, under the act as it is currently worded, those sections do not apply if motor fuel is available for retail sale at a particular place in accordance with an existing agreement between the customer and the retailer. That is exactly the model that Costco follows—that is exactly what it does, and that is exactly what the relationship between the retailer and the customer is. Therefore, under the act as it is currently worded, Costco, and other membership schemes such as that, would be exempt from those provisions. In order to address that, the bill seeks to abolish that exemption and replace it with a new and narrower exemption. That means that those sections of the act will apply to any retail sale of fuel unless the fuel retailer is a business that hires out, leases out or sells motor vehicles and the fuel is sold in that context; or the fuel is sold wholesale; or the fuel is for a vehicle that is used solely for business purposes. The regulations may also prescribe other cases in which a retail sale of motor fuel at a particular place is an exempt sale. This change will ensure that these sections of the act will apply to membership schemes like Costco in the same way as they apply to other fuel retailers.
I note that discounts and special offers are not captured by the bill. Proposed new sections 22I and 22J will apply to the standard retail price of fuel. Under the bill, “standard retail price” means the price without any discounts or special offers. Therefore, the discounts and offers that members would be aware of that motorists can currently take advantage of, such as the various frequent flyer, shopping docket or RAC membership card discounts and offers, will not be changed by the bill and will continue to be available for consumers. That is obviously a positive.
With those few words, it makes sense that we deal with this bill as soon as possible. The Greens WA are happy to support the legislation.
Comments and speeches from various members
Clause 2: Commencement —
Hon NICK GOIRAN: Recently, the Standing Committee on Uniform Legislation and Statutes Review in the 124th report made this broad statement with respect to clauses that commence by proclamation. It said —
The Committee’s view on clauses that provide for commencement by proclamation is that they impinge on the Parliament’s sovereignty. Commencement by proclamation is controlled by the Executive, rather than Parliament, and there should be sound reasons for Parliament to permit this. The Committee has said that it is conceivable that a proclamation might never be made and the will of the Parliament, in passing a Bill, would be frustrated. The Committee considers that Parliament should, prima facie, be responsible for setting the date when its laws are to come into effect.
In light of that, why is the rest of the act coming into operation on a date fixed by proclamation rather than when the bill receives royal assent or possibly even the day after that day?
Comments and speeches from various members
Hon ALISON XAMON: I just want to make a few comments on this matter. I was listening very intently to the minister’s response to this amendment. I was predisposed to support the amendment, and apart from hearing hyperbole and language such as “irresponsible”, I am trying to understand the problem with passing these amendments. I note this amendment and the one in clause 4 that was foreshadowed effectively go together. I am trying to ascertain what really would be the problem. Obviously, they would remove the power to make regulations as proposed in section 22H(3) that prescribes what an exempt sale is and would make the legislation commence the day after royal assent, but page 2 of the explanatory memorandum says that the reason for commencement after proclamation is that complimentary amendments need to be made, and that is what the minister has spoken about. When the Greens asked about this at the briefing, we were told that the government was simply trying to futureproof. As I read the amendments before us bring the Greens’ lens to them, they are effectively trying make things more open about what is occurring and to either have things in the legislation or leave them out. That would be more consistent with the position on transparency that the Greens would ordinarily adopt. Without using language such as “irresponsible” and the like, I would like to have a more compelling argument about why the bill should not be amended. If the amendment does not change in practice the way FuelWatch is going to roll out and it increases transparency, what problem is genuinely created?
Comments and speeches from various members
Hon ALANNAH MacTIERNAN: This is not earth-shattering stuff but I do not think, as a matter of principle, that it is good practice for us to be legislating in a way that provides for a period of inconsistency. If anything, the member’s amendment will create a slight delay because we will have to amend the drafting instructions, but so be it; we will do that. Nothing positive is achieved by this amendment. What is achieved is poor practice, and that would result in the regulations being inconsistent with the legislation.
Division
Amendment put and a division taken, the Deputy Chair (Hon Robin Chapple) casting his vote with the noes, with the following result —
Ayes (15)
Noes (14)
Amendment thus passed.
Clause, as amended, put and passed.
Clause 3 put and passed.
Clause 4: Section 22H replaced —
Comments and speeches from various members
Hon ALISON XAMON: As I mentioned when I spoke previously, I had asked about this provision in the briefing and was told at the time effectively what the minister is saying now, that this provision was intended to futureproof. I want to make some comments because I am concerned about the things being said that suggest that the checks and balances are there to address any future concerns that people may have about the scope of regulations that might arise under this proposed power. I am also flagging that this is a debate that is likely to occur on a future bill that we will be debating soon. Therefore, it is important that we try to get some clarity around this.
I am very aware that it is not the role of the Joint Standing Committee on Delegated Legislation to go to the policy of concerns around regulations. It is the role of the delegated legislation committee to ensure that regulations being proposed are not ultra vires. If I have that fundamentally wrong, please by all means correct me, but effectively it is a technical committee. It is not there to look at the substance of or the policy intent behind any regulations that are presented. Listening to the debate, the concern being raised is that people may have concerns about the policy that is being proposed and that it may capture certain organisations or scenarios that perhaps would not have been foreseen by or supported within the current Parliament. The question has been asked: how would a regular member of Parliament be able to ensure that those powers, which have not been explicitly contemplated in the passing of this particular bill, are not being used inappropriately? I am yet to be satisfied that there has been any sort of satisfactory response about how a regular member, who is not on the delegated legislation committee, who may have the matter brought to their attention simply because there is a technical problem with it but otherwise may not necessarily be across whether there is something wrong with the policy, would be able to become aware of this in an easy and meaningful way in order to raise any concerns.
I want to flag this, although I am not saying that I personally will be feverishly looking out for the regulations around FuelWatch and petroleum as a primary issue that I am likely to be champing at the bit about, because I am concerned about the broad scope that is being sought within a statute. I am concerned about it with this bill, but I am also concerned about it within other legislation that may be considered in the future as well.
I voted against the proposed amendment before, because I was persuaded that it is not necessarily good practice to have legislation without the regulations to know exactly what that means. It is useful to have that as a package. In the same instance, it is not necessarily helpful to have the scope of a statute so broad that we cannot meaningfully know what regulations will be created underneath it. As I said before, one thing that the Greens strive for and like is transparency around our legislation, and, at the moment, I have not been convinced that it is necessarily helpful to have the provision as it is currently drafted—that is, proposed section 22H(3) included within this bill—because I also do not accept that the Joint Standing Committee on Delegated Legislation is empowered to or is the place that will pick up any concerns that people may have about the policy of the regulations going into the future.
Comments and speeches from various members
Clause put and passed.
Clauses 5 and 6 put and passed. Title put and passed.
Report
Bill reported, with an amendment, and, by leave, the report adopted.
As to Third Reading — Standing Orders Suspension — Motion
HON ALANNAH MacTIERNAN (North Metropolitan — Minister for Regional Development) [2.36 pm] — without notice: I move —
That so much of standing orders be suspended so as to enable the bill to be read a third time forthwith.
HON NICK GOIRAN (South Metropolitan) [2.36 pm]: I indicate that I support the motion moved by the minister. Although it is not ordinarily my practice to support the suspension of standing orders, in this instance it is important, because we have a situation in which a retailer is not complying with the scheme in Western Australia. That has been the case since 18 February. This is an urgent matter. The opposition supports the quick facilitation of this bill and we call on the government to do likewise in the other place.
The DEPUTY PRESIDENT: An absolute majority is required to pass this motion. Having heard no dissenting voice, I declare the motion carried with the requisite absolute majority.
Question put and passed with an absolute majority.
Third Reading
Bill read a third time, on motion by Hon Alannah MacTiernan (Minister for Regional Development), and returned to the Assembly with an amendment.