FEDERAL COURT OF AUSTRALIA

Caltex Australia Petroleum Pty Ltd v Commissioner of Taxation [2019] FCA 1849

ORDERS

THE COURT ORDERS THAT:

1.    The objection decision be set aside.

2.    The objection be allowed in full.

3.    The matter be remitted to the Respondent for re-assessment in accordance with the law.

4.    The respondent pay the costs of the applicant, such costs to be taxed in default of agreement.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DAVIES J:

1    This proceeding is an appeal under Pt IVC of the Taxation Administration Act 1953 (Cth). In issue is whether diesel is a “petroleum based oil” within the meaning of that expression as it appears in the definition of “oils” in s 6 of the Product Stewardship (Oil) Act 2000 (Cth) (“PSO Act”). Section 6(1) of the PSO Act specifies that “the following are oils”:

(a)      petroleum based oils (including lubricant base oils; prepared lubricant additives containing carrier oils; lubricants for engines, gear sets, pumps and bearings; greases; hydraulic fluids; brake fluids; transmission oils; and transformer and heat transfer oils);

(b)      synthetic equivalents of goods covered by paragraph (a);

(c)      any other goods prescribed for the purposes of this definition.

2    The issue is not whether diesel is a “petroleum based oil”. The Commissioner accepts that diesel is a petroleum based oil in the ordinary sense as it is an oil and a hydrocarbon which is extracted from crude oil, which is a petroleum product. In issue is whether, as the Commissioner contends, the words in parentheses in paragraph (a) of the definition of “oils” modify the ordinary meaning so as to exclude petroleum based oils that are used primarily as a fuel.

Legislative context

3    The PSO Act provides for the payment of grants, known as product stewardship (oil) benefits (“PSO benefits”), to eligible recyclers of used oil that they recycle and sell in Australia.

4    The objects of the PSO Act, as set out in s 3 of the PSO Act, are:

(a)    to develop a product stewardship arrangement for used oils; and

(b)    to ensure the environmentally sustainable management, re-refining and reuse of used oil; and

(c)    to support economic recycling options for used oil.

5    To obtain a PSO benefit, it is necessary to obtain registration for an entitlement to a PSO benefit under the Product Grants and Benefits Administration Act 2000 (Cth) and to make a claim in respect of an entitlement: s 8 of the PSO Act.

6    The entitlement for a PSO benefit is prescribed by s 9 of the PSO Act which provides:

You are entitled to a product stewardship (oil) benefit for the sale or consumption of recycled oil that you have recycled in Australia.

The amount of the benefit is worked out in accordance with Item 4 of the Product Stewardship (Oil) Regulations 2000 (Cth): s 10.

7    “Recycled oil” is defined in s 6(1) of the PSO Act and “means”:

(a)    goods produced from used oil; or

(b)     used oil that has been restored to its former state.

8    “Used oil” is defined in s 6(1) of the PSO Act and “means”:

any oil that has been used and that, as a result of such use, is contaminated by physical or chemical impurities.

9    Section 6(1) prescribes that “the following are oils”:

(a)    petroleum based oils (including lubricant base oils; prepared lubricant additives containing carrier oils; lubricants for engines, gear sets, pumps and bearings; greases; hydraulic fluids; brake fluids; transmission oils; and transformer and heat transfer oils);

  (b)    synthetic equivalents of goods covered by paragraph (a);

  (c)    any other goods prescribed for the purposes of this definition.

No goods have been prescribed for the purposes of paragraph (c) of the definition of “oils”.

10    At the same time that the PSO Act was enacted, Item 15 was added to the Schedule to the Excise Tariff Act 1921 (Cth) (“Excise Tariff Act”) which, by s 5 of that Act, imposed an excise levy on petroleum based oils, other than petroleum based oils for use as a fuel. Item 15 was in the following terms:

11    The items listed in Item 15 of the Excise Tariff Act were also made subject to customs duty by amendments to the Customs Tariff Act 1995 (Cth) (“Customs Tariff Act”) enacted at the same time.

12    The Explanatory Memorandum to the PSO Act and consequential amendments to the Excise Tariff Act and Customs Tariff Act stated the purpose of this package of legislation was to establish a product stewardship system for waste oil to encourage greater recycling and reuse of waste oil by entitling eligible claimants to stewardship benefits, the cost of which would be offset by revenue collected through the tariffs imposed on petroleum based oils and their synthetics under the amendments to the Excise Tariff Act and Customs Tariff Act.

13    In 2006, the presentation of Item 15 was amended to the following terms without changing the scope of the products made subject to excise and customs duty with the enactment of the PSO Act (cl 1.115 of the Excise Tariff Amendment (Fuel Tax Reform and Other Measures Bill) 2000 (Cth)):

14    The expression “lubricant/fluid/oil products” as it appears in Item 15 is defined in the Schedule to mean:

(a)    lubricant base oils;

(b)    prepared lubricant additives containing carrier oils;

(c)    lubricants for engines, gear sets, pumps and bearings;

(d)    hydraulic fluids;

(e)    brake fluids;

(f)    transmission oils;

(g)    transformer and heat transfer oils.

Facts

15    The facts were not in dispute.

16    The applicant (“Caltex”) carries on a business of refining and marketing petroleum products in Australia and is registered for entitlement to PSO benefits under the PSO Act. In June 2016, Caltex made a claim for PSO benefits in the amount of $8,397,681.04 relating to the recycling of used (“Slop”) diesel by the refining of the Slop diesel at Caltex’s refineries at Kurnell in New South Wales and Lytton in Queensland into a state suitable to be resold as fuel satisfying the relevant federal fuel standard then in force, namely the Fuel Standard (Automotive Diesel) Determination 2001 (“the Standard”). That claim was disallowed by the Commissioner, who has the general administration of the PSO Act: s 7 of the PSO Act.

17    During the period relating to the claim, Caltex used diesel (other than as a fuel) in four processes before recycling the diesel into fuel grade diesel.

Crude oil ship washing

Caltex brings crude oil and other petroleum products into Australia by ship in large cargo compartments. After the crude oil is pumped out of the ship, it is transported through pipelines into the refineries. As the composition of crude oil is typically of a thicker and heavier consistency than other more refined petroleum products that Caltex also imports, Caltex uses diesel as a cleaning solvent to dissolve and wash the walls of the ships of remaining crude oil.

Pipeline flushing

Caltex also uses diesel to clean or “flush out” the various pipelines after the crude oil and other petroleum products of less refined quality have passed through the pipelines to avoid contamination of high grade petroleum products which move through the pipelines.

Pipeline inspection

During the relevant period Caltex also used diesel as part of an inspection of its pipelines which was undertaken in order to collect mechanical integrity data on certain pipelines connected with the Kurnell refinery.

Cleaning and flushing of pipelines and tanks at the Kurnell refinery

When Caltex ceased operations at the Kurnell refinery in October 2014, it was necessary for the pipelines and tanks forming part of the refinery to be cleaned and “flushed” in order for Caltex to use the terminal as a refinery. Caltex used diesel in this process.

18    In each of these processes, the diesel became contaminated by physical and/or chemical impurities. The Slop diesel did not comply with the Standard and was unable to be used or sold as diesel without undergoing processing and refining. In the period relevant to the claim, that processing and refining was done at Caltex’s Kurnell and Lytton refineries. Once refined, the diesel complied with the Standard and was able to be used or sold as diesel fuel.

Mr Winn’s evidence

19    Mr Malcolm Winn is the Lubricants Technical Manager for Caltex. He swore an affidavit in which he gave an explanation of each of the items listed as “oils” in s 6(1) of the PSO Act. Although he was cross examined on his evidence, he was not challenged on the reliability or accuracy of that evidence. Rather, the cross examination was directed at identifying the different functions of each of the listed items in parentheses in the definition of “oils” in s 6 of the PSO Act (ie lubricant base oils; prepared lubricant additives containing carrier oils; lubricants for engines, gear sets, pumps and bearings; greases; hydraulic fluids; brake fluids; transmission oils; and transformer and heat transfer oils) to support the proposition advanced by the Commissioner that what these items have in common (apart from being petroleum based) is that none of them are used primarily for combustion, and that when used they create waste and are all therefore apt to be recycled. It is unnecessary to go into the detail of the cross examination as Caltex did not cavil with that proposition.

Consideration

20    The Commissioner argued that there are three textual features of the definition of “petroleum based oils” in the definition of “oils” in s 6(1) of the PSO Act which indicate that diesel is not within the meaning of that term. First, the categories of “oils” listed in the brackets enumerate an identifiable sub-genus of petroleum based oils, namely petroleum based oils that are not used primarily for fuel. Secondly, neither diesel nor “oils used as fuels” is mentioned in the parenthetical list and had Parliament intended to include diesel it could readily have done so by express words. The absence of reference to diesel in the parenthetical list was said to be significant in view of the common characteristic of the categories of petroleum based oils listed in the bracket, being petroleum based oils not used primarily for fuel. Thirdly, the verb “including” is used to introduce the categories of petroleum based oils sharing the common characteristic of being petroleum based oils not used primarily for fuel and being petroleum based oils within the ordinary meaning of that term, indicating that the categories of petroleum based oils listed in the brackets were intended to be exhaustive of the petroleum based oils within the scope of that term in the PSO Act. The Commissioner cited YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395; [1964] HCA 12 (“YZ Finance”) as authority in support.

21    The Commissioner submitted further that his construction was supported by the consequential amendments to the Excise Tariff Act and Customs Tariff Act, which, it was argued, together with the PSO Act constitute a statutory scheme and should be construed harmoniously. It was submitted that there are two significant features of that statutory scheme. First, prior to the legislative reforms which introduced the product stewardship scheme in respect of oils, the “petroleum based oils” in Item 15 were not subject to excise duty whereas diesel, by contrast, has always been subject to excise. Secondly, Item 15 of the Schedule to the Excise Tariff Act, which excludes petroleum based oils used primarily for fuel, is instructive as to the meaning of the term “petroleum based oils” in the PSO Act in that Sub-Item 15.1 is identical to the inclusive list of products within the definition of “petroleum based oils” in the PSO Act. Diesel, on the other hand, does not come within Item 15 but is subject to excise by virtue of Item 10. Likewise, the amendment to the Customs Tariff Act adopted the same classification as the excise items in Items 15(A) and 15(C), notably excluding petroleum based oils used as a fuel. It was submitted that it would be anomalous if diesel were treated as an “oil” for the purposes of the PSO Act but not the Excise Tariff Act and the Customs Tariff Act. Further, it was said, the express exclusion from Item 15 of the Schedule of “goods for use as a fuel” was significant as it confirmed the genus of the items included in the parenthetical list of “petroleum based oils”.

22    In support of his construction, the Commissioner also drew on the Explanatory Memorandum to the PSO Act, emphasising that the amendments to the Customs Tariff Act and Excise Tariff Act were described at paras 4.1 and 5.1 respectively of the Explanatory Memorandum as being:

[4.1]    ... consequential to the Product Stewardship (Oil) Bill [2000] to enable     standardisation of the collection of an excise-style levy across relevant     imported and domestically produced materials and products.

…

[5.1]    … consequential to the Product Stewardship (Oil) Bill [2000] o enable     collection of an excise-style levy on relevant domestically produced oils     and their synthetic equivalents.

23    It was submitted that, “significantly”, it was clear from paras 4.3 to 4.5 that the term “oils” used in the Explanatory Memorandum refers to those “oils” covered by the PSO Act. Those paragraphs state:

[4.3]     Under the existing taxation regime, oils are subject to wholesale sales tax, but, with the exception of hydraulic brake fluids of tariff subheading 3819.00.00, are not subject to excise or customs duty.

[4.4]     Excise tariff legislation is being amended to provide for an excise style levy on domestically produced oils and greases. This Bill legislates a customs rate of duty for similar imported oils and greases. The revenue collected through the imposition of excise and customs duties on these goods will fund payments to eligible companies recycling waste oil in environmentally appropriate ways. Payments will be provided under the [PSO Act].

Definition of oils

[4.5]     For the purposes of these provisions, "oils" include:

(a)     petroleum based oils (including lubricant base oils; prepared lubricant additives containing carrier oils; lubricants for engines, gear sets, pumps and bearings; greases; hydraulic fluids; brake fluids, transmissions oils; and transformer and heat transfer oils); and

(b)    their synthetic equivalents.

24    Reference was also made to paras 5.3 and 5.4 which state:

[5.3]     Under the existing taxation regime oils are subject to wholesale sales tax (WST), but not subject to excise. …

[5.4]     Excise legislation is being amended to provide for an excise style levy on lubricating oil. This levy will fund payments to eligible companies recycling waste oil in environmentally appropriate ways. Payments will be provided for by the [PSO Act].

Comparison of key features of new law and current law

25    Finally, the Commissioner argued that his construction accorded with the evident purpose of the PSO Act referred to in the Regulation Impact Statement contained in the Explanatory Memorandum, namely to encourage the recycling of unconsumed used oil that otherwise would be disposed of and present a significant and growing environmental hazard.

26    For the following reasons, the Commissioner’s construction is not accepted.

27    The word “including” in a definitional clause can serve a number of different functions. Ordinarily, where “includes” is used in a statutory definition it may have either or both of two functions: to extend the ordinary meaning of the particular word to bring within the scope of the meaning of that word something that otherwise would not be encompassed by it (Re Gray; Ex parte Marsh (1985) 157 CLR 351, 364–365; [1985] HCA 67 at [18]; Zickar v MGH Plastic Industries Pty Limited (1996) 187 CLR 310; [1996] HCA 31); and/or to avoid possible uncertainty as to whether something may come within the definition by expressly providing for its inclusion (Corporate Affairs Commission (SA) v Australian Central Credit Union (1985) 157 CLR 201, 206–207; [1985] HCA 64 at [5]; BHP Billiton Iron Ore Pty Ltd v National Competition Council (2008) 236 CLR 145, 159; [2008] HCA 45 at [32]). The word “includes” can also provide an exhaustive explanation of the meanings to be attached to the word if the context in which the word appears reveals that intention: YZ Finance, 398–399, 402. See also Pearce DC and Geddes RS, Statutory Interpretation in Australia (8th ed, LexisNexis Butterworths, 2014) at [6.60]–[6.63].

28    In YZ Finance the question was whether the appellant had a right to sue on a promissory note pursuant to s 24(1) of the Money-lenders and Infants Loans Act 1941 (NSW). Whether it had that right depended upon whether the action was a proceeding for the enforcement of a “security” made or taken to secure the payment of the money lent and interest. “Security” was defined in s 24(2) as follows:

In this section ‘security’ includes bill of sale, mortgage, lien, and charge of any real or personal property, and any assignment, conveyance, transfer or dealing with any real or personal property to secure the repayment of any loan.

The majority (McTiernan, Kitto, Taylor and Windeyer JJ, Menzies J dissenting) had regard to the legislative context and held it was consistent with the evident purpose of s 24(1) to read the definition of “security” in s 24(2) as an exhaustive definition of the types of the securities to which s 24(1) applied, where those securities all shared as their common element the right of recourse against specific property.

29    In the present case, there are a number of textual and contextual reasons for concluding that Parliament did not intend the words in parentheses to be exhaustive of the petroleum based oils which are “oils” for the purposes of the PSO Act.

30    First, the items enumerated as “petroleum based oils” include “greases”. Mr Winn’s evidence was that a grease is not an oil. Mr Winn explained as follows at [36]–[38] of his affidavit:

A grease is produced by combining a base oil or lubricant base oil…, a thickening agent and various additives. In the majority of cases the thickening agent is commonly referred to as “soap”. The base oil or lubricant base oil usually makes up about 80-95% of the grease, the thickening agent usually makes up about 5-20% and the remainder is made up of the additives.

Greases are semi-solids. This means that they are neither a liquid nor a solid. Its natural state lies somewhere in between and, in that state, a grease will not move. But if you “push” a grease, it will move. Greases will become softer as the temperature rises, and will become a liquid when the melting point of the thickener is exceeded.

A grease is not an oil. This is because an oil, in its natural state, is a liquid. Liquids will start to move at the slightest pressure, force or stress. A grease on the other hand will not move until the force or stress exceeds a certain amount when they give way. There is a spectrum of greases, ranging from very hard greases to very soft greases, but the key point of difference between a grease and an oil is that at almost zero pressure, a grease does not move whereas an oil will.

(Emphasis added.)

31    Senior counsel for the Commissioner argued that grease nonetheless is apt to be included in the list because grease contains 80% to 95% lubricant base oil and the only reason it is not a liquid is because thickener is added to it. It was further argued that a grease can be a liquid when heated to a sufficient temperature. Significantly though, whereas the other products enumerated in the parentheses are all oils or oil-based fluids, grease is not, or at the least may not normally be, regarded as an oil. The inclusion of greases tends to indicate that the function of the word “including” in this context was not intended to indicate an exhaustive explanation of the meaning of “petroleum based oils” in the context of the PSO Act, but rather to expand the meaning of “petroleum based oils” to include greases or at least to make clear that the expression covers greases.

32    Secondly, the items enumerated as “petroleum based oils” do not cover all possible forms of non-fuel petroleum based oils. Mr Winn gave as an example a lubricant to be used as a “machine tool slideway” lubricant. If the Commissioner’s construction is accepted, this type of lubricant would not be an “oil” for the purposes of the PSO Act. Mr Winn’s evidence also was that products other than lubricants are made from base oils produced from crude oil, such as white oil, crop oil and mould oil. If the Commissioner’s construction is accepted, these types of oils would also not be “oils” for the purposes of the PSO Act. Senior counsel for the Commissioner sought to distinguish these types of oils by arguing that they are oils that are not apt to produce waste because they are wholly consumed by their very use and so, the argument went, are not “oils” in respect of which benefits under the PSO Act are intended to be available. Such an argument, however, gives the expression “petroleum based oils” a substantive operation by using the expression to exclude “oils” which are not apt to be recycled from the scope of the PSO Act. However, it is s 9 of the PSO Act, not the definition of “oils”, which is the operative section for determining entitlement to a benefit under the PSO Act. The definition of “oils” in s 6(1) should not be treated as a substantive provision. The function of a statutory definition was considered in Gibb v Commissioner of Taxation  (1966) 118 CLR 628; [1966] HCA 74 where Barwick CJ, McTiernan and Taylor JJ said at 635 [10]:

The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense – or are to be taken to include certain things which, but for the definition, they would not include. Such clauses are, therefore, no more than an aid to the construction of the statute and do not operate in any other way...

A definition only has the function of indicating that, when the word or the expression appears in the substantive provisions of the Act, it is to be understood in the defined sense.

33    Thirdly, whilst it can be said that the products listed in the parentheses have the “common element” identified by the Commissioner, namely they are oils not primarily used for fuel, the evidence showed that some of the products can be and are used as a fuel. Mr Winn gave evidence that lubricants for engines (motor oils) are commonly used as a fuel to power an engine as the lubricant (or motor oil) burns or combusts. Senior counsel for the Commissioner accepted that any of the products in the parenthetical list could be combusted but argued that fact did not tell against their inclusion within the sub-genus of oils which are not used primarily for fuel. It is not enough, however, to identify some common characteristic. The definition of “oils” must be construed in its legislative context and, significantly, unlike in YZ Finance, the context does not support a construction of “petroleum based oils” as an exhaustive definition. The objects of the PSO Act set out in s 3 make it plain that the purpose of the Act is to encourage and reward the recycling of used oil. As by s 9 of the PSO Act only used oils that are recycled qualify for the payment of benefits, an oil that has been combusted in use and is not recyclable does not qualify. It is thus unnecessary to read the “inclusive” product list as exhaustive of the petroleum based products qualifying for benefit entitlements under the Act to give effect to the purpose of the Act. Furthermore, just as some oils which are not used primarily for fuel can be and are used for fuel, some oils which are used primarily for fuel can have other uses, creating waste oil and becoming apt for recycling. Diesel is such an example. The confined reading for which the Commissioner contends is not consistent with, nor promotes, the object and purpose of the Act.

34    Fourthly, another textual reason for concluding that the word “including” is not intended to define the scope of the expression “petroleum based oils” exhaustively is that the expression “petroleum based oils” also applies to synthetic equivalents of goods covered by paragraph (a). Another item which does not fit neatly into the parenthetical list is brake fluid. Mr Winn’s evidence was that brake fluids were historically made from a petroleum product, though in recent years have been produced from polyglycol ethers and are considered synthetic. In his experience, even where brake fluid is oil based, it is not generally referred to as an oil. Thus, absent the reference to brake fluids in the parenthetical list, there might otherwise be uncertainty as to whether a synthetic equivalent of brake fluid will come within the expression “petroleum based oils” in circumstances where it is evident from the specific inclusion of brake fluid in the list that brake fluid is intended to be covered by the expression “petroleum based oils”.

35    Fifthly, the word “means” is used in other definitions in s 6(1) where it is clear that the definition is intended to be exhaustive: eg the definition of “recycled oil” and “used oil”.

36    Sixthly, contrary to the Commissioner’s submissions, there is no disconformity or inconsistency between the PSO Act and the Excise Tariff Act and Customs Tariff Act if “petroleum based oils” in s 6(1) of the PSO Act are not confined to “petroleum based oils not primarily used for fuel”. Prior to the insertion of Item 15, petroleum products, including lubricants (lubricant based oils), hydraulic oils, and transformer oils were classified to Item 11. The rates of tariff depended on whether the product was for use as fuel or “for other use” or the product was a recycled product on which customs or excise had been paid. With the insertion of Item 15, petroleum products not for use as fuel continued to be classified for tariff purposes but under the new Item 15, which also imposed new rates of tariff on those items, consistent with the intention that benefits payable under the PSO Act be offset by revenue collected through tariffs on petroleum based oils. Significantly, the differentiation between Item 11 (as the relevant Item was at the time the PSO Act was enacted), now Item 10, and Item 15 relates to the use of the petroleum product, not whether the petroleum product is an oil: see Item 11(d) (as it was when the PSO Act was enacted) and Item 10(h).

37    Seventhly, although the PSO Act and the consequential amendments to the Excise Tariff Act and Customs Tariff Act were passed as a package of legislation, they do not constitute a legislative scheme in the sense described in Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 (“Cross”). In considering the operation of the Legal Profession Act 1987 (NSW) and the Civil Liability Act 2002 (NSW), Kiefel J stated at 414 [97]–[98]:

For a scheme to be identified, it must involve two statutes not just having a wider common purpose and some connection, but operating together. If the operation of each statute could be said to depend upon the other, there would be a warrant for construing them together in this way. …

It does not follow from the identification of a broader purpose beyond the more immediate objects of each of the two statutes, nor from the limited connection between them, that they were interdependent in any meaningful way. It is necessary to consider each of the statutes and the means by which they are intended to achieve their respective objectives, in order to determine whether they form part of a single scheme. …

The PSO Act, the Excise Tariff Act, and the Customs Tariff Act do not have co-extensive fields of operation and do not deal with the same subject matter but have different purposes and operate independently of each other. The fact that the benefits payable under the PSO Act are funded through excise and customs duties levied on petroleum products does not mean that the Acts operate together and provides no warrant for Item 15 of the tariff classification to be used to control the meaning of “petroleum based oils” as that expression appears in the PSO Act.

38    Also contrary to the Commissioner’s submission, it is incorrect to say, as the Commissioner did in his written submissions, that “oils” were never subject to excise until the insertion of Item 15 nor is it correct that diesel is not an “oil” for the purposes of the Excise Tariff Act. As earlier stated, before the insertion of Item 15, the tariff rates on the petroleum products within Item 11 were set by reference to the use of the particular petroleum product, not by reference as to whether the product was an “oil” or not. There is no inconsistency with the Excise Tariff Act if diesel is an “oil” for the purposes of the PSO Act.

39    Eighthly, the Commissioner’s reliance on terminology in the Explanatory Memorandum does not advance his case. Statements made in the Explanatory Memorandum cannot displace the text of the statute under construction: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 265–266; [2010] HCA 23 at [33]–[34]; Cross, 405 [70]. Similarly, the Commissioner’s reliance on the Regulation Impact Statement to support his argument that the PSO Act was not intended to apply to recycled diesel cannot displace the provisions of the Act. In the Regulation Impact Statement, the “statement of the problem” was said to be that waste minimisation is a significant issue in Australia and that around 68-71% of virgin lubricant oil was not recovered or reused, and presented a significant and growing environmental hazard. It is unquestionable that the PSO Act was enacted to provide incentives to recycle waste lubricant oil but it is also consistent with the mischief that the Act is intended to remedy that it apply to all waste oil, not just lubricants. There is no evident reason to exclude recycled diesel from the scope of the Act because its primary purpose is for use as a fuel.

40    Ninthly, contrary to the Commissioner’s submissions, an harmonious reading of the PSO Act and the Excise Tariff Act does not require that Item 15 be read synonymously with the inclusive list of products enumerated in the expression “petroleum based oils” in the PSO Act. The express exclusion from Item 15 of the Schedule to the Excise Tariff Act of “goods for use as a fuel” does not confirm the genus of the items included in the parenthetical list of “petroleum based oils” in s 6(1) of the PSO Act. The expression “petroleum based oils” in the PSO Act does not contain the words of limitation appearing in Item 15 nor does the PSO Act define the expression “petroleum based oils” in terms of the excise duty classification. In contrast, s 6(2) of the PSO Act does provide that an expression used in the PSO Act that is also used in the Products Grants and Benefits Administration Act 2000 (Cth) “has the same meaning as in that Act, unless the contrary intention appears”. There is nothing to suggest that the expression “petroleum based oils” in s 6(1) of the PSO Act was intended to be confined to those products listed in Item 15 of the Schedule to the Excise Tariff Act.

41    Finally, neither a liberal nor a generous reading of the expression “petroleum based oils” in s 6(1) of the PSO Act is required for the recycled diesel in this case to constitute “recycled oil” as that term is defined for the purposes of the PSO Act: cf Commissioner of Taxation v Bargwanna [2009] FCA 620; IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30. Diesel is a petroleum based oil within the ordinary signification of that expression and, for the reasons given, both the text and purpose of the PSO Act support the conclusion that Parliament did not intend the words in parentheses to be exhaustive of the petroleum based oils which are “oils” for the purposes of the PSO Act.

Associate:    

Dated:    14 November 2019