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This is a Bill, not an Act. For current law, see the Acts databases.
CARBON POLLUTION REDUCTION SCHEME BILL 2009
2008-2009
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Carbon Pollution Reduction Scheme Bill
2009
No. , 2009
(Climate Change and Water)
A Bill for an Act to reduce pollution caused by
emissions of carbon dioxide and other greenhouse
gases, and for other purposes
i Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Contents
Part 1--Preliminary
1
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 2
3
Objects ............................................................................................... 3
4
Simplified outline .............................................................................. 4
5
Definitions ......................................................................................... 5
5A
Extended meaning of supply ............................................................ 28
6
When supply occurs ........................................................................ 28
7
Vacancy in the office of an expert advisory committee
member ............................................................................................ 29
8
Electronic notice transmitted to the Authority ................................. 29
9
Crown to be bound .......................................................................... 30
10
Extension to external Territories ..................................................... 30
11
Extension to exclusive economic zone and continental shelf .......... 30
11A
Extension to Joint Petroleum Development Area ............................ 30
12
Application to foreign ships ............................................................ 31
Part 2--National scheme cap and national scheme gateway
32
13
Simplified outline ............................................................................ 32
14
National scheme cap ........................................................................ 32
15
National scheme gateway ................................................................ 35
Part 3--Liable entities
38
Division 1--Introduction
38
16
Simplified outline ............................................................................ 38
Division 2--Direct emitters of greenhouse gases
40
Subdivision A--General rules
40
17
Liable entity--controlling corporation of a group ........................... 40
18
Liable entity--non-group entity ...................................................... 43
19
Liable entity--holder of a liability transfer certificate .................... 47
Subdivision B--Landfill facilities
50
20
Liable entity for landfill emissions--controlling corporation
of a group ........................................................................................ 50
21
Liable entity for landfill emissions--non-group entity .................... 55
22
Liable entity for landfill emissions--holder of a liability
transfer certificate ............................................................................ 60
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 ii
Subdivision BA--Adjustment of provisional emissions number in
relation to a facility in the Joint Petroleum
Development Area or the Greater Sunrise unit
area
65
22A
Joint Petroleum Development Area--adjustment of
provisional emissions number ......................................................... 65
22B
Joint Petroleum Development Area-Greater Sunrise unit
area--adjustment of provisional emissions number ........................ 66
22C
Greater Sunrise unit area--adjustment of provisional
emissions number ............................................................................ 67
Subdivision C--Anti-avoidance
68
23
Anti-avoidance ................................................................................ 68
Subdivision D--Greenhouse gas emitted from the operation of a
facility
69
24
Greenhouse gas emitted from the operation of a facility ................. 69
25
Measurement of greenhouse gas emitted from the operation
of a facility ...................................................................................... 70
Division 3--Importers, manufacturers and suppliers of synthetic
greenhouse gases
71
26
Liable entity--import of synthetic greenhouse gas ......................... 71
27
Liable entity--manufacture of synthetic greenhouse gas ................ 73
28
Liable entity--re-supply of synthetic greenhouse gas to
recipient who does not quote an OTN ............................................. 75
29
Liable entity--supply of synthetic greenhouse gas to a
person who misuses the person's OTN ............................................ 75
30
Anti-avoidance ................................................................................ 76
Division 4--Importers, producers and suppliers of eligible
upstream fuels
78
31
Liable entity--import of liquid petroleum fuel................................ 78
32
Liable entity--production of liquid petroleum fuel ......................... 79
33
Liable entity--supply of untransformed eligible upstream
fuel (other than liquid petroleum fuel) ............................................. 80
33A
Liable entity--re-supply of natural gas previously supplied
out of a prescribed wholesale gas market ........................................ 82
34
Liable entity--application to own use of untransformed
eligible upstream fuel (other than liquid petroleum fuel) ................ 82
35
Liable entity--supply of transformed eligible upstream fuel .......... 83
36
Liable entity--application of transformed eligible upstream
fuel to own use ................................................................................ 85
37
Liable entity--re-supply of eligible upstream fuel .......................... 85
38
Liable entity--application of eligible upstream fuel to OTN
holder's own use .............................................................................. 87
iii Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
39
Liable entity--application of transformed eligible upstream
fuel to OTN holder's own use ......................................................... 88
40
Liable entity--supply of eligible upstream fuel to a person
who misuses the person's OTN ....................................................... 89
Division 5--Obligation transfer numbers
90
Subdivision A--Issue of obligation transfer numbers
90
41
Issue of OTN ................................................................................... 90
42
Application for OTN ....................................................................... 90
43
Further information ......................................................................... 90
44
Issue of OTN as the result of an application .................................... 91
45
Issue of OTN on the Authority's own initiative .............................. 92
46
Surrender of OTN ............................................................................ 92
47
Cancellation of OTN ....................................................................... 93
48
OTN is not transferable ................................................................... 93
49
OTN Register .................................................................................. 93
50
Evidentiary provisions ..................................................................... 94
50A
Notification of change of name or address of OTN holder .............. 94
Subdivision B--Methods of quotation of obligation transfer
numbers
95
51
Quotation of OTN............................................................................ 95
51A
One-off quotation of OTN ............................................................... 96
51B
Standing quotation of OTN ............................................................. 97
51BA
Withdrawal of quotation of OTN if OTN is cancelled or
surrendered ...................................................................................... 98
51C
Withdrawal of standing quotation of OTN by OTN holder ............. 98
51D
Withdrawal of quotation of OTN by agreement .............................. 98
51E
Validation of quotation of OTN ...................................................... 99
51F
Effect of surrender or cancellation of OTN--grace period for
standing quotation ........................................................................... 99
51G
Effect of surrender or cancellation of OTN--grace period for
one-off quotation ........................................................................... 100
Subdivision C--Mandatory quotation of obligation transfer
numbers
101
52
Mandatory quotation of OTN--large user of eligible
upstream fuel ................................................................................. 101
53
Mandatory quotation of OTN--re-supplier of natural gas............. 102
54
Mandatory quotation of OTN--liquid petroleum gas
marketer ......................................................................................... 103
55
Mandatory quotation of OTN--use of certain fuels as a
feedstock ........................................................................................ 104
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 iv
Subdivision D--Voluntary quotation of obligation transfer
numbers
105
56
Voluntary quotation of OTN--large user of eligible
upstream fuel ................................................................................. 105
58
Voluntary quotation of OTN--use of fuel in manufacturing
other products etc. ......................................................................... 107
59
Voluntary quotation of OTN--transformation of fuel ................... 107
60
Voluntary quotation of OTN--export or re-supply of eligible
upstream fuel ................................................................................. 108
63
Voluntary quotation of OTN--re-supply of synthetic
greenhouse gas .............................................................................. 108
64
Voluntary quotation of OTN--export or re-supply of
synthetic greenhouse gas ............................................................... 108
64AA Voluntary quotation of OTN--use of synthetic greenhouse
gas as a feedstock .......................................................................... 109
Subdivision E--General provisions
109
64A
Acknowledgement of one-off quotation of OTN ........................... 109
64B
Acknowledgement of standing quotation of OTN ......................... 110
65
Rejection of quotation of OTN--re-supply of eligible
upstream fuel ................................................................................. 110
66
Rejection of voluntary quotation of OTN ...................................... 112
66A
Unauthorised mandatory quotation of OTN .................................. 112
67
Misuse of OTN .............................................................................. 113
68
Quotation of bogus OTN ............................................................... 114
Division 6--Liability transfer certificates
116
Subdivision A--Transfer of liability to another member of a
controlling corporation's group
116
69
Category A transfer test ................................................................. 116
70
Application for liability transfer certificate ................................... 116
71
Further information ....................................................................... 117
72
Issue of liability transfer certificate ............................................... 117
Subdivision B--Transfer of liability to a person who has financial
control of a facility
118
73
Category B transfer test ................................................................. 118
74
Application for liability transfer certificate ................................... 119
75
Further information ....................................................................... 120
76
Issue of liability transfer certificate ............................................... 120
Subdivision C--Other provisions
122
77
Duration of liability transfer certificate ......................................... 122
78
Surrender of liability transfer certificate ........................................ 123
79
Cancellation of liability transfer certificate ................................... 124
v Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
80
Liability transfer certificate is not transferable .............................. 125
81
Financial control ............................................................................ 125
Part 4--Emissions units
127
Division 1--Introduction
127
82
Simplified outline .......................................................................... 127
Division 2--Australian emissions units
129
Subdivision A--Issue of Australian emissions units
129
83
Issue of Australian emissions units ................................................ 129
84
Identification number .................................................................... 129
85
Vintage year .................................................................................. 129
86
When Australian emissions units may be issued ........................... 129
87
How Australian emissions units are to be issued ........................... 130
88
Circumstances in which Australian emissions units may be
issued ............................................................................................. 130
89
Issue of Australian emissions units for a fixed charge ................... 130
90
Payment of charges for the issue of Australian emissions
units ............................................................................................... 134
91
Imposition of charges for the issue of Australian emissions
units ............................................................................................... 135
92
Issue of Australian emissions units--national scheme cap
number ........................................................................................... 135
93
Australian emissions units--total number ..................................... 135
Subdivision B--Property in, and transfer of, Australian emissions
units
136
94
An Australian emissions unit is personal property ........................ 136
95
Transfer of Australian emissions units .......................................... 136
96
Transmission of Australian emissions units by assignment ........... 137
97
Transmission of Australian emissions units by operation of
law etc. .......................................................................................... 137
98
Transfer of Australian emissions units to another Registry
account held by the transferor........................................................ 139
98A
Equitable interests in relation to an Australian emissions unit ...... 140
Subdivision C--Auctions of Australian emissions units
140
99
Issue of Australian emissions units as the result of an auction ...... 140
100
Secondary market auctions of relinquished Australian
emissions units .............................................................................. 140
101
Secondary market auctions of free Australian emissions units ...... 140
102
Combined auctions of Australian emissions units ......................... 141
103
Policies, procedures and rules for auctioning Australian
emissions units .............................................................................. 141
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 vi
Subdivision D--Special provisions relating to free Australian
emissions units
142
103A
Cancellation of certain unused free Australian emissions
units ............................................................................................... 142
103B
Buy-back of certain free Australian emissions units ...................... 143
Division 3--Kyoto units
145
104
Entries for Kyoto units .................................................................. 145
105
Issue of Australia's assigned amount units .................................... 145
106
Issue of removal units .................................................................... 145
107
Transfer of Kyoto units.................................................................. 146
108
Domestic transfers of Kyoto units ................................................. 147
109
Outgoing international transfers of Kyoto units ............................ 148
110
Incoming international transfers of Kyoto units ............................ 149
111
Compliance by Australia with emissions trading eligibility
requirements under the Kyoto rules ............................................... 150
112
Kyoto rules .................................................................................... 150
113
Carry-over restrictions ................................................................... 151
114
Commitment period reserve .......................................................... 152
115
Cancellation of temporary certified emission reductions or
long-term certified emission reductions......................................... 153
116
Replacement of long-term certified emission reductions ............... 153
116A
Restrictions on transfer of Kyoto units to a Commonwealth
Registry account ............................................................................ 155
116B
A registered Kyoto unit is personal property for certain
purposes ......................................................................................... 155
116C
Transmission of registered Kyoto units by operation of law
etc. ................................................................................................. 155
Division 4--Non-Kyoto international emissions units
158
117
Entries for non-Kyoto international emissions units ...................... 158
118
Transfer of non-Kyoto international emissions units ..................... 158
119
Domestic transfers of non-Kyoto international emissions
units ............................................................................................... 159
120
Outgoing international transfers of non-Kyoto international
emissions units .............................................................................. 160
121
Incoming international transfers of non-Kyoto international
emissions units .............................................................................. 161
122
Surrender restrictions ..................................................................... 161
122A
A registered non-Kyoto international emissions unit is
personal property for certain purposes ........................................... 161
122B
Transmission of registered non-Kyoto international
emissions units by operation of law etc. ........................................ 162
123
Regulations about non-Kyoto international emissions units .......... 163
vii Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Part 5--Emissions number
164
124
Simplified outline .......................................................................... 164
125
Emissions number ......................................................................... 164
126
Assessment of emissions number--incorrect report given by
liable entity .................................................................................... 165
127
Assessment of emissions number--no report given by liable
entity .............................................................................................. 166
Part 6--Surrender of eligible emissions units
168
Division 1--Introduction
168
128
Simplified outline .......................................................................... 168
Division 2--How eligible emissions units are surrendered
170
129
How eligible emissions units are surrendered................................ 170
Division 3--Unit shortfalls
174
130
Unit shortfalls ................................................................................ 174
131
Assessment of unit shortfall .......................................................... 175
Division 4--Obligation to surrender eligible emissions units
177
132
Obligation to surrender eligible emissions units ............................ 177
133
Penalty for unit shortfall ................................................................ 177
134
When penalty becomes due and payable ....................................... 178
135
Late payment penalty .................................................................... 178
136
Recovery of penalties .................................................................... 179
137
Set-off ............................................................................................ 179
138
Liability transfer certificate--statutory guarantee ......................... 180
139
Refund of overpayments ................................................................ 180
141
Benchmark average auction price .................................................. 181
142
Make-good number ....................................................................... 182
143
Excess surrender number ............................................................... 183
Division 5--Extension of surrender deadline
186
143A
Extension of surrender deadline .................................................... 186
Part 7--Australian National Registry of Emissions Units
188
Division 1--Introduction
188
144
Simplified outline .......................................................................... 188
Division 2--Australian National Registry of Emissions Units
189
145
Australian National Registry of Emissions Units .......................... 189
Division 3--Registry accounts
190
146
Registry accounts........................................................................... 190
147
Opening of Registry accounts--general ........................................ 190
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 viii
148
Designation of Commonwealth Registry accounts ........................ 192
149
Opening of new Commonwealth Registry accounts ...................... 192
150
Units in a retirement, cancellation or replacement account ........... 193
151
Totals of Australian emissions units in a Registry account ........... 193
152
Voluntary closure of Registry accounts ......................................... 194
Division 4--Change in name of account holder
195
153
Application to have new name entered on the Registry ................. 195
154
Alteration in the Registry .............................................................. 195
Division 5--Correction and rectification of Registry
196
155
Corrections of clerical errors or obvious defects ........................... 196
157
General power of correction of Registry--Kyoto units ................. 196
158
General power of correction of Registry--non-Kyoto
international emissions units.......................................................... 196
159
Rectification of Registry ................................................................ 197
Division 6--Miscellaneous
199
160
Making a false entry in the Registry .............................................. 199
161
Falsified documents ....................................................................... 199
162
Evidentiary provisions ................................................................... 199
163
Use and disclosure of information obtained from the
Registry ......................................................................................... 200
164
Regulations about the Registry ...................................................... 201
Part 8--Emissions-intensive trade-exposed assistance program
203
Division 1--Introduction
203
165
Aim and objects ............................................................................. 203
166
Simplified outline .......................................................................... 204
Division 2--Formulation of the emissions-intensive
trade-exposed assistance program
205
167
Emissions-intensive trade-exposed assistance program ................. 205
168
Relinquishment requirement .......................................................... 205
169
Reporting requirement ................................................................... 206
170
Record-keeping requirement ......................................................... 206
171
Other matters ................................................................................. 206
172
Ancillary or incidental provisions.................................................. 207
Division 3--Compliance with reporting and record-keeping
requirements under the emissions-intensive
trade-exposed assistance program
208
173
Compliance with reporting and record-keeping requirements ....... 208
ix Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Division 4--Special information-gathering powers
210
173A
Minister may obtain information ................................................... 210
173B
No assistance for 2 eligible financial years if corporation
refuses or fails to comply with request for information ................. 211
173C
Disclosure of information to the Authority .................................... 211
Part 9--Coal-fired electricity generation
212
Division 1--Introduction
212
174
Object ............................................................................................ 212
175
Simplified outline .......................................................................... 212
Division 2--Issue of free Australian emissions units in respect of
generation assets
213
176
Issue of free Australian emissions units in respect of
generation assets ............................................................................ 213
Division 3--Certificate of eligibility for coal-fired generation
assistance
217
177
Application for certificate of eligibility for coal-fired
generation assistance ..................................................................... 217
178
Form of application ....................................................................... 218
179
Further information ....................................................................... 218
180
Issue of certificate of eligibility for coal-fired generation
assistance ....................................................................................... 219
181
Criteria for issuing certificate of eligibility for coal-fired
generation assistance ..................................................................... 220
182
Annual assistance factor ................................................................ 222
Division 4--Windfall gain
225
183
No assistance for 2014-2015 or 2015-2016 if a windfall gain
declaration is in force etc. .............................................................. 225
184
Revocation of Ministerial determination ....................................... 225
185
Submission about windfall gain ..................................................... 227
186
Windfall gain declaration .............................................................. 228
187
Windfall gain test .......................................................................... 230
Division 5--Power system reliability
235
188
No assistance if generation asset does not pass the power
system reliability test ..................................................................... 235
189
Power system reliability test .......................................................... 235
189A
Anticipatory certification--reduction in nameplate rating ........... 237
189B
Anticipatory certification--cessation of registration as a
generator ........................................................................................ 238
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 x
Part 10--Reforestation
240
Division 1--Introduction
240
190
Simplified outline .......................................................................... 240
Division 2--Issue of free Australian emissions units in respect of
reforestation
242
191
Issue of free Australian emissions units in respect of
reforestation ................................................................................... 242
Division 3--Certificate of reforestation
243
192
Application for certificate of reforestation .................................... 243
193
Form of application ....................................................................... 243
194
Further information ....................................................................... 243
195
Issue of certificate of reforestation ................................................ 244
196
Unit entitlement ............................................................................. 246
197
Certificate of reforestation is not transferable ................................ 247
Division 4--Recognised reforestation entities
248
198
Application for recognition as a reforestation entity...................... 248
199
Form of application ....................................................................... 248
200
Further information ....................................................................... 248
201
Recognition as a reforestation entity ............................................. 249
202
Cancellation of recognition ........................................................... 251
203
Surrender of recognition ................................................................ 252
204
Recognition is not transferable ...................................................... 253
Division 5--Eligible reforestation projects
254
Subdivision A--Declaration of eligible reforestation project
254
205
Application for declaration of eligible reforestation project .......... 254
206
Form of application ....................................................................... 254
207
Further information ....................................................................... 254
208
Withdrawal of application ............................................................. 255
209
Declaration of eligible reforestation project .................................. 255
Subdivision B--Voluntary variation of declaration of eligible
reforestation project
258
210
Application for variation of declaration of eligible
reforestation project ....................................................................... 258
211
Withdrawal of application ............................................................. 259
212
Variation of declaration of eligible reforestation project ............... 260
Subdivision C--Unilateral variation of declaration of eligible
reforestation project
262
213
Variation of declaration of eligible reforestation project--
partial cessation of reforestation activity ....................................... 262
xi Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
214
Variation of declaration of eligible reforestation project--
eligibility requirements not met ..................................................... 263
Subdivision D--Voluntary revocation of declaration of eligible
reforestation project
265
215
Voluntary revocation of declaration of eligible reforestation
project--units issued ..................................................................... 265
216
Voluntary revocation of declaration of eligible reforestation
project--no units issued ................................................................ 266
Subdivision E--Unilateral revocation of declaration of eligible
reforestation project
267
217
Unilateral revocation of declaration of eligible reforestation
project--cessation of reforestation activity ................................... 267
218
Unilateral revocation of declaration of eligible reforestation
project--eligibility requirements not met ...................................... 268
219
Unilateral revocation of declaration of eligible reforestation
project--ceasing to hold carbon sequestration right etc. ............... 269
Division 6--Reforestation unit limit
270
220
Reforestation unit limit .................................................................. 270
221
Increase of reforestation unit limit ................................................. 271
222
Decrease of reforestation unit limit ............................................... 271
Division 7--Reforestation reporting periods
273
223
First reforestation reporting period ................................................ 273
224
Subsequent reforestation reporting periods ................................... 274
Division 8--Reforestation reporting requirements
275
225
Reforestation reports ..................................................................... 275
Division 9--Forest maintenance obligation
277
Subdivision A--Forest maintenance obligation
277
226
Forest maintenance obligation ....................................................... 277
Subdivision B--Injunctions
279
227
Injunctions ..................................................................................... 279
228
Interim injunctions......................................................................... 280
229
Discharge etc. of injunctions ......................................................... 280
230
Certain limits on granting injunctions not to apply ........................ 280
231
Other powers of the Federal Court unaffected ............................... 281
Division 10--Relinquishment of Australian emissions units
282
232
Requirement to relinquish--unilateral revocation of
declaration of eligible reforestation project ................................... 282
233
Relinquishment requirement--decrease in reforestation unit
limit for eligible reforestation project ............................................ 283
234
Relinquishment obligation transfer agreement .............................. 284
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 xii
Division 11--Miscellaneous notification requirements
286
235
Notification requirement--ceasing to hold carbon
sequestration right ......................................................................... 286
Division 12--Entries in title registers
287
236
Entries in title registers--general .................................................. 287
237
Entries in title registers--land subject to forest maintenance
obligation ....................................................................................... 287
Division 13--Register of Reforestation Projects
289
238
Register of Reforestation Projects ................................................. 289
239
Entries in the Register ................................................................... 289
Division 14--Carbon sequestration right and forestry right
291
240
Carbon sequestration right ............................................................. 291
241
Forestry right ................................................................................. 294
Division 15--Net total number of Australian emissions units
issued in relation to an eligible reforestation project
297
242
Net total number of Australian emissions units issued in
relation to an eligible reforestation project .................................... 297
Part 11--Destruction of synthetic greenhouse gases
298
Division 1--Introduction
298
244
Simplified outline .......................................................................... 298
Division 2--Issue of free Australian emissions units in respect of
the destruction of synthetic greenhouse gases
299
245
Issue of free Australian emissions units in respect of the
destruction of synthetic greenhouse gases ..................................... 299
Division 3--Certificate of eligible synthetic greenhouse gas
destruction
300
246
Application for certificate of eligible synthetic greenhouse
gas destruction ............................................................................... 300
247
Form of application ....................................................................... 300
248
Further information ....................................................................... 301
249
Issue of certificate of eligible synthetic greenhouse gas
destruction ..................................................................................... 301
250
Criteria for issuing certificate of eligible synthetic
greenhouse gas destruction ............................................................ 302
251
Unit entitlement ............................................................................. 304
252
Certificate of eligible synthetic greenhouse gas destruction is
not transferable .............................................................................. 304
xiii Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Division 4--Recognised synthetic greenhouse gas destruction
customers
306
253
Application for recognition as a synthetic greenhouse gas
destruction customer ...................................................................... 306
254
Form of application ....................................................................... 306
255
Further information ....................................................................... 306
256
Recognition as a synthetic greenhouse gas destruction
customer ........................................................................................ 307
257
Cancellation of recognition ........................................................... 308
258
Surrender of recognition ................................................................ 310
259
Recognition is not transferable ...................................................... 310
Part 12--Publication of information
311
Division 1--Introduction
311
260
Simplified outline .......................................................................... 311
Division 2--Information about liable entities
312
261
Liable Entities Public Information Database ................................. 312
262
Liable entities to be entered in the Information Database .............. 312
263
Emissions number to be entered in the Information Database ....... 313
264
Unit shortfall to be entered in the Information Database ............... 313
265
Unpaid administrative penalty to be entered in the
Information Database .................................................................... 315
266
Number of surrendered eligible emissions units to be entered
in the Information Database........................................................... 316
267
Number of voluntarily cancelled units to be entered in the
Information Database .................................................................... 316
267A
Relinquishment requirement to be entered in the Information
Database ........................................................................................ 317
267B
Unpaid administrative penalty to be entered in the
Information Database .................................................................... 318
267C
Number of relinquished units to be entered in the
Information Database .................................................................... 319
268
Correction and rectification of the Information Database .............. 319
Division 3--Information about holders of Registry accounts
320
269
Information about holders of Registry accounts ............................ 320
Division 4--Information about units
321
270
Information about auction results--last auction ............................ 321
271
Information about auction results--last 6 months ......................... 321
272
Information about issue of Australian emissions units for a
fixed charge ................................................................................... 323
273
Information about issue of free Australian emissions units ........... 324
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 xiv
274
Quarterly reports about issue of free Australian emissions
units ............................................................................................... 325
275
Information about surrender of borrowed and banked eligible
emissions units .............................................................................. 326
276
Kyoto information ......................................................................... 326
277
Information about total emissions numbers and unit
shortfalls ........................................................................................ 327
278
Publication of concise description of the characteristics of
eligible emissions units .................................................................. 327
Division 5--Information about voluntary cancellation of units
held by persons other than liable entities
329
278A
Information about number of voluntarily cancelled
Australian emissions units ............................................................. 329
278B
Information about number of voluntarily cancelled Kyoto
units ............................................................................................... 329
278C
Information about number of voluntarily cancelled
non-Kyoto international emissions units ....................................... 330
Division 6--Information about relinquishment requirements for
persons other than liable entities
331
278D
Information about relinquishment requirements ............................ 331
278E
Information about unpaid administrative penalties ........................ 332
278F
Information about number of relinquished units ............................ 332
Division 7--Information about designated large landfill facilities
334
278G
Publication of list of designated large landfill facilities ................. 334
Part 13--Fraudulent conduct
335
279
Simplified outline .......................................................................... 335
280
Units issued as a result of fraudulent conduct--court may
order relinquishment ...................................................................... 335
Part 14--Voluntary cancellation of emissions units
338
281
Simplified outline .......................................................................... 338
282
Voluntary cancellation of Australian emissions units .................... 338
283
Voluntary cancellation of Kyoto units ........................................... 339
284
Voluntary cancellation of non-Kyoto international emissions
units ............................................................................................... 340
Part 15--Relinquishment of Australian emissions units
342
Division 1--Introduction
342
285
Simplified outline .......................................................................... 342
Division 2--How Australian emissions units are relinquished
343
286
How Australian emissions units are relinquished .......................... 343
xv Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Division 3--Compliance with relinquishment requirements
346
287
Compliance with relinquishment requirements ............................. 346
288
Late payment penalty .................................................................... 348
289
Recovery of penalties .................................................................... 349
290
Set-off ............................................................................................ 349
291
Refund of overpayments ................................................................ 349
Part 16--Notification of significant holding of Australian
emissions units
351
292
Simplified outline .......................................................................... 351
293
Notification of significant holding of Australian emissions
units--controlling corporation of a group ..................................... 351
294
Notification of significant holding of Australian emissions
units--non-group entity ................................................................. 353
Part 17--Information-gathering powers
356
295
Simplified outline .......................................................................... 356
296
Authority may obtain information or documents ........................... 356
297
Copying documents--compensation ............................................. 357
298
Copies of documents ..................................................................... 357
299
Authority may retain documents ................................................... 358
300
Self-incrimination .......................................................................... 358
Part 18--Record-keeping requirements
360
301
Simplified outline .......................................................................... 360
302
Record-keeping requirements--general ........................................ 360
303
Record-keeping requirements--quotation of OTN ........................ 361
304
Record-keeping requirements--rejection of quotation of
OTN ............................................................................................... 362
Part 19--Monitoring powers
363
Division 1--Simplified outline
363
305
Simplified outline .......................................................................... 363
Division 2--Appointment of inspectors and issue of identity
cards
364
306
Appointment of inspectors ............................................................. 364
307
Identity cards ................................................................................. 364
Division 3--Powers of inspectors
366
Subdivision A--Monitoring powers
366
308
Inspector may enter premises by consent or under a warrant ........ 366
309
Monitoring powers of inspectors ................................................... 366
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 xvi
310
Persons assisting inspectors ........................................................... 369
Subdivision B--Powers of inspectors to ask questions and seek
production of documents
369
311
Inspector may ask questions and seek production of
documents ...................................................................................... 369
312
Self-incrimination .......................................................................... 370
Division 4--Obligations and incidental powers of inspectors
371
313
Consent .......................................................................................... 371
314
Announcement before entry under warrant ................................... 371
315
Inspector to be in possession of warrant ........................................ 372
316
Details of warrant etc. to be given to occupier .............................. 372
317
Expert assistance to operate electronic equipment......................... 372
318
Compensation for damage to electronic equipment ....................... 374
Division 5--Occupier's rights and responsibilities
376
319
Occupier entitled to observe execution of warrant ........................ 376
320
Occupier to provide inspector with facilities and assistance .......... 376
Division 6--Monitoring warrants
377
321
Monitoring warrants ...................................................................... 377
Division 7--Powers of magistrates
379
322
Powers of magistrates .................................................................... 379
Part 20--Liability of executive officers of bodies corporate
380
323
Simplified outline .......................................................................... 380
324
Civil penalties for executive officers of bodies corporate .............. 380
325
Reasonable steps to prevent contravention .................................... 381
Part 21--Civil penalty orders
382
326
Simplified outline .......................................................................... 382
326A
References to Court ....................................................................... 382
327
Civil penalty orders ....................................................................... 382
328
Who may apply for a civil penalty order ....................................... 384
329
2 or more proceedings may be heard together ............................... 384
330
Time limit for application for an order .......................................... 384
331
Civil evidence and procedure rules for civil penalty orders ........... 384
332
Civil proceedings after criminal proceedings ................................ 384
333
Criminal proceedings during civil proceedings ............................. 384
334
Criminal proceedings after civil proceedings ................................ 385
335
Evidence given in proceedings for a civil penalty order not
admissible in criminal proceedings................................................ 385
336
Mistake of fact ............................................................................... 385
337
State of mind ................................................................................. 386
xvii Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
338
Continuing contraventions ............................................................. 387
Part 22--Offences relating to administrative penalties
389
339
Simplified outline .......................................................................... 389
340
Scheme to avoid existing liability to pay administrative
penalty ........................................................................................... 389
341
Scheme to avoid future liability to pay administrative penalty ...... 390
Part 23--Enforceable undertakings
393
342
Simplified outline .......................................................................... 393
343
Acceptance of undertakings ........................................................... 393
344
Enforcement of undertakings ......................................................... 393
Part 24--Review of decisions
395
345
Simplified outline .......................................................................... 395
346
Reviewable decisions .................................................................... 395
347
Applications for reconsideration of decisions made by
delegates of the Authority .............................................................. 398
348
Reconsideration by the Authority .................................................. 399
349
Deadline for reconsideration.......................................................... 399
350
Review by the Administrative Appeals Tribunal ........................... 399
351
Stay of proceedings for the recovery of an administrative
penalty ........................................................................................... 400
Part 25--Independent reviews
402
Division 1--Simplified outline
402
352
Simplified outline .......................................................................... 402
Division 2--Periodic reviews
403
353
Periodic reviews to be conducted by an expert advisory
committee ...................................................................................... 403
354
Report of periodic review .............................................................. 406
Division 3--Special reviews
408
355
Special reviews to be conducted by an expert advisory
committee ...................................................................................... 408
356
Report of special review ................................................................ 408
Division 4--Expert advisory committees
410
357
Establishment of expert advisory committees ............................... 410
358
Functions of an expert advisory committee ................................... 410
359
Membership of an expert advisory committee ............................... 410
360
Appointment of expert advisory committee members ................... 410
361
Period for appointment for expert advisory committee
members ........................................................................................ 411
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 xviii
362
Acting expert advisory committee members ................................. 412
363
Procedures ..................................................................................... 413
364
Disclosure of interests to the Minister ........................................... 414
365
Disclosure of interests to expert advisory committee .................... 414
366
Outside employment ...................................................................... 415
367
Remuneration and allowances ....................................................... 415
368
Leave of absence ........................................................................... 415
369
Resignation .................................................................................... 415
370
Termination of appointment .......................................................... 416
371
Other terms and conditions ............................................................ 417
372
Assistance to expert advisory committee ....................................... 417
373
Consultants .................................................................................... 417
Part 26--Miscellaneous
418
374
Miscellaneous functions of the Authority ...................................... 418
374A
Computerised decision-making ..................................................... 418
375
Delegation by the Minister ............................................................ 419
376
Concurrent operation of State and Territory laws .......................... 419
377
Law relating to legal professional privilege not affected ............... 419
378
Arrangements with States and Territories ...................................... 420
379
Liability for damages ..................................................................... 422
380
Executive power of the Commonwealth ........................................ 422
381
Notional payments by the Commonwealth .................................... 422
382
Alternative constitutional basis ...................................................... 423
383
Compensation for acquisition of property ..................................... 426
384
Prescribing matters by reference to other instruments ................... 427
385
Administrative decisions under the regulations ............................. 427
386
Transitional--definitions ............................................................... 428
387
Regulations .................................................................................... 428
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 1
A Bill for an Act to reduce pollution caused by
1
emissions of carbon dioxide and other greenhouse
2
gases, and for other purposes
3
The Parliament of Australia enacts:
4
Part 1--Preliminary
5
6
1 Short title
7
This Act may be cited as the Carbon Pollution Reduction Scheme
8
Act 2009.
9
Part 1 Preliminary
Section 2
2 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
2 Commencement
1
(1) Each provision of this Act specified in column 1 of the table
2
commences, or is taken to have commenced, in accordance with
3
column 2 of the table. Any other statement in column 2 has effect
4
according to its terms.
5
6
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 and
2 and anything in
this Act not
elsewhere covered
by this table
The day on which this Act receives the
Royal Assent.
2. Sections 3 to
387
The 28th day after the day on which this Act
receives the Royal Assent.
However, if:
(a) the Australian Climate Change
Regulatory Authority Act 2009; and
(b) the Carbon Pollution Reduction Scheme
(Charges--Customs) Act 2009; and
(c) the Carbon Pollution Reduction Scheme
(Charges--Excise) Act 2009; and
(d) the Carbon Pollution Reduction Scheme
(Charges--General) Act 2009; and
(e) the Carbon Pollution Reduction Scheme
(Consequential Amendments) Act 2009;
do not receive the Royal Assent on or before
the 28th day after the day on which this Act
receives the Royal Assent, the provision(s)
do not commence at all.
Note:
This table relates only to the provisions of this Act as originally
7
passed by both Houses of the Parliament and assented to. It will not be
8
expanded to deal with provisions inserted in this Act after assent.
9
(2) Column 3 of the table contains additional information that is not
10
part of this Act. Information in this column may be added to or
11
edited in any published version of this Act.
12
Preliminary Part 1
Section 3
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 3
3 Objects
1
(1) This section sets out the objects of this Act.
2
Climate Change Convention and Kyoto Protocol
3
(2) The first object of this Act is to give effect to Australia's
4
obligations under:
5
(a) the Climate Change Convention; and
6
(b) the Kyoto Protocol.
7
Global response to climate change
8
(3) The second object of this Act is to support the development of an
9
effective global response to climate change.
10
National emissions reduction targets
11
(4) The third object of this Act is:
12
(a) if Australia is a party to a comprehensive international
13
agreement that is capable of stabilising atmospheric
14
concentrations of greenhouse gases at around 450 parts per
15
million of carbon dioxide equivalence or lower--to take
16
action directed towards meeting Australia's target of
17
reducing net greenhouse gas emissions to 25% below 2000
18
levels by 2020; and
19
(b) if paragraph (a) does not apply--to take action directed
20
towards meeting Australia's targets of:
21
(i) reducing net greenhouse gas emissions to 60% below
22
2000 levels by 2050; and
23
(ii) reducing net greenhouse gas emissions to between 5%
24
and 15% below 2000 levels by 2020; and
25
(c) to take the action mentioned in paragraph (a) or (b) in a
26
flexible and cost-effective way.
27
(5) The targets mentioned in subsection (4) are to be calculated in
28
accordance with:
29
(a) the Kyoto rules; or
30
(b) an international agreement (if any) that is the successor
31
(whether immediate or otherwise) to the Kyoto Protocol.
32
Part 1 Preliminary
Section 4
4 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
4 Simplified outline
1
The following is a simplified outline of this Act:
2
·
This Act sets up a scheme to reduce pollution caused by
3
emissions of carbon dioxide and other greenhouse gases.
4
·
The scheme begins on 1 July 2011, and operates on a financial
5
year basis.
6
·
The scheme is administered by the Australian Climate Change
7
Regulatory Authority.
8
·
A person who is responsible for greenhouse gas emitted from
9
the operation of a facility must surrender one eligible
10
emissions unit for each tonne of carbon dioxide equivalence of
11
the gas.
12
·
A person who imports, manufactures or supplies synthetic
13
greenhouse gas must surrender one eligible emissions unit for
14
each tonne of carbon dioxide equivalence of the gas.
15
·
A person who imports, produces or supplies eligible upstream
16
fuel must surrender one eligible emissions unit for each tonne
17
of carbon dioxide equivalence of the potential greenhouse gas
18
emissions embodied in the fuel.
19
·
Each of the following units are eligible emissions units:
20
(a) Australian emissions units issued under this Act;
21
(b) certain Kyoto units;
22
(c) certain non-Kyoto international emissions units.
23
·
Most Australian emissions units will be issued as the result of
24
an auction.
25
·
A national scheme cap limits the total number of auctioned
26
Australian emissions units.
27
Preliminary Part 1
Section 5
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 5
·
Some Australian emissions units may be issued free of charge
1
or for a fixed charge.
2
·
Australian emissions units are generally transferable.
3
5 Definitions
4
In this Act:
5
ABN has the same meaning as in the A New Tax System
6
(Australian Business Number) Act 1999.
7
account number, in relation to a Registry account, has the meaning
8
given by subsection 146(3).
9
acknowledge the quotation of an OTN has the meaning given by
10
section 64A or 64B.
11
acquire, in relation to an Australian emissions unit, includes
12
acquire by way of the issue of the unit.
13
alter the Registry, includes:
14
(a) make an entry in the Registry; and
15
(b) remove an entry from the Registry.
16
applicable identification procedure has the meaning ascertained in
17
accordance with the regulations.
18
application to own use, in relation to eligible upstream fuel,
19
includes making the fuel available to another person, where
20
making the fuel available is not a supply of the fuel.
21
appropriate energy market operator, in relation to a generation
22
asset, means:
23
(a) if Australian Energy Market Operator Limited (ACN 072 010
24
327) performs the functions of the energy market operator in
25
the place where the generation asset is located--Australian
26
Energy Market Operator Limited; and
27
(b) if the Independent Market Operator established under the
28
Electricity Industry (Independent Market Operator)
29
Regulations 2004 of Western Australia performs the
30
Part 1 Preliminary
Section 5
6 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
functions of the energy market operator in the place where
1
the generation asset is located--the Independent Market
2
Operator.
3
approved synthetic greenhouse gas destruction facility has the
4
same meaning as in the Ozone Protection and Synthetic
5
Greenhouse Gas Management Regulations 1995.
6
assigned amount unit means an assigned amount unit issued in
7
accordance with the relevant provisions of the Kyoto rules. It is
8
immaterial whether the unit was issued in or out of Australia.
9
associated provisions means the following provisions:
10
(a) the provisions of the regulations;
11
(b) sections 15A, 15B, 15C, 18A, 22A, 22B, 22C, 22CA, 22D,
12
22DA, 22E and 22F of the National Greenhouse and Energy
13
Reporting Act 2007;
14
(c) the remaining provisions of the National Greenhouse and
15
Energy Reporting Act 2007, in so far as those provisions
16
relate to:
17
(i) this Act; or
18
(ii) the regulations; or
19
(iii) the provisions covered by paragraph (b);
20
(d) sections 134.1, 134.2, 135.1, 135.2, 135.4, 136.1, 137.1 and
21
137.2 of the Criminal Code, in so far as those sections relate
22
to:
23
(i) this Act; or
24
(ii) the regulations; or
25
(iii) the provisions of the National Greenhouse and Energy
26
Reporting Act 2007 covered by paragraph (b) or (c).
27
Note:
The provisions covered by paragraph (b) commence on 1 July 2011.
28
auction, when used in relation to an Australian emissions unit,
29
includes a process that involves inviting persons to declare what
30
they would be willing to pay by way of a charge for the acquisition
31
of the unit.
32
Australia, when used in a geographical sense, includes:
33
(a) the external Territories; and
34
Preliminary Part 1
Section 5
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 7
(b) for the purposes of:
1
(i) Part 8 (emissions-intensive trade-exposed assistance
2
program); and
3
(ii) paragraph 353(1)(h) (review of the emissions-intensive
4
trade-exposed assistance program);
5
the exclusive economic zone, the continental shelf and the
6
Joint Petroleum Development Area.
7
Australian emissions unit means a unit issued under section 83.
8
Authority means the Australian Climate Change Regulatory
9
Authority.
10
benchmark average auction price has the meaning given by
11
section 141.
12
black coal has the same meaning as in the National Greenhouse
13
and Energy Reporting Regulations 2008.
14
brown coal has the same meaning as in the National Greenhouse
15
and Energy Reporting Regulations 2008.
16
business day means a day that is not:
17
(a) a Saturday; or
18
(b) a Sunday; or
19
(c) a public holiday in the place concerned.
20
cancellation account means a Commonwealth Registry account
21
designated as a cancellation account.
22
carbon dioxide equivalence:
23
(a) of an amount of greenhouse gas--has the same meaning as in
24
the National Greenhouse and Energy Reporting Act 2007; or
25
(b) of an amount of potential greenhouse gas emissions
26
embodied in an amount of an eligible upstream fuel--has the
27
same meaning as in the National Greenhouse and Energy
28
Reporting Act 2007.
29
Note:
See also section 386 (transitional).
30
carbon pollution reduction scheme means the scheme embodied
31
in this Act and the associated provisions.
32
Part 1 Preliminary
Section 5
8 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
carbon sequestration right has the meaning given by section 240.
1
category A transfer test has the meaning given by section 69.
2
category B transfer test has the meaning given by section 73.
3
certificate of eligibility for coal-fired generation assistance means
4
a certificate issued under section 180.
5
certificate of eligible synthetic greenhouse gas destruction means
6
a certificate issued under section 249.
7
certificate of reforestation means a certificate issued under
8
section 195.
9
certified emission reduction means a certified emission reduction
10
issued outside Australia in accordance with the relevant provisions
11
of the Kyoto rules.
12
civil penalty order means an order under subsection 327(1).
13
civil penalty provision means a provision declared by this Act to
14
be a civil penalty provision.
15
clean development mechanism project means a project that is
16
treated as a clean development mechanism project for the purposes
17
of the relevant provisions of the Kyoto rules.
18
Climate Change Convention means the United Nations
19
Framework Convention on Climate Change done at New York on
20
9 May 1992, as amended and in force for Australia from time to
21
time.
22
Note:
The text of the Convention is set out in Australian Treaty Series 1994
23
No. 2 ([1994] ATS 2). In 2009, the text of a Convention in the
24
Australian Treaty Series was accessible through the Australian
25
Treaties Library on the AustLII website (www.austlii.edu.au).
26
coal-based char has the same meaning as in the National
27
Greenhouse and Energy Reporting Regulations 2008.
28
coke oven coke has the same meaning as in the National
29
Greenhouse and Energy Reporting Regulations 2008.
30
Preliminary Part 1
Section 5
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 9
commitment period means a period that is treated as a commitment
1
period for the purposes of the Kyoto rules.
2
Note:
The first commitment period begins on 1 January 2008 and ends on
3
31 December 2012.
4
commitment period reserve has the meaning given by the
5
regulations.
6
Commonwealth holding account means a Commonwealth
7
Registry account designated as a Commonwealth holding account.
8
Commonwealth place has the same meaning as in the
9
Commonwealth Places (Application of Laws) Act 1970.
10
Commonwealth Registry account means a Registry account kept
11
in the name of the Commonwealth.
12
Commonwealth relinquished units account means the
13
Commonwealth Registry account designated as the
14
Commonwealth relinquished units account.
15
compressed natural gas has the same meaning as in the National
16
Greenhouse and Energy Reporting Regulations 2008.
17
constitutional corporation means a corporation to which
18
paragraph 51(xx) of the constitution applies.
19
continental shelf has the same meaning as in the Seas and
20
Submerged Lands Act 1973.
21
controlling corporation has the same meaning as in the National
22
Greenhouse and Energy Reporting Act 2007.
23
Note:
See also section 386 (transitional).
24
Crown land means land that is the property of:
25
(a) the Commonwealth, a State or a Territory; or
26
(b) a statutory authority of:
27
(i) the Commonwealth; or
28
(ii) a State; or
29
(iii) a Territory.
30
For this purpose, it is immaterial whether the land is:
31
Part 1 Preliminary
Section 5
10 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(c) subject to a lease or licence; or
1
(d) covered by a reservation, proclamation, dedication,
2
condition, permission or authority, made or conferred by the
3
Commonwealth, a State or a Territory; or
4
(e) covered by the making, amendment or repeal of legislation of
5
the Commonwealth, a State or a Territory under which the
6
whole or a part of the land is to be used for a public purpose
7
or public purposes.
8
decision of the Meeting of the Kyoto Parties means a decision of
9
the Meeting of the Kyoto Parties as existing from time to time. It is
10
immaterial whether the decision was made before, at or after the
11
commencement of this section.
12
designated, in relation to a Commonwealth Registry account,
13
means designated under section 148.
14
designated large landfill facility: a landfill facility is a designated
15
large landfill facility in relation to an eligible financial year if the
16
number of tonnes of the carbon dioxide equivalence of the total
17
amount of greenhouse gases emitted from the operation of the
18
landfill facility during the eligible financial year is 25,000 or more.
19
For this purpose, assume that the financial year beginning on 1 July
20
2010 is an eligible financial year.
21
director includes a constituent member of a body corporate
22
incorporated for a public purpose by a law of the Commonwealth,
23
a State or a Territory.
24
electronic communication means a communication by means of
25
guided and/or unguided electromagnetic energy.
26
electronic notice transmitted to the Authority has the meaning
27
given by section 8.
28
eligible emissions unit means:
29
(a) an Australian emissions unit; or
30
(b) an eligible international emissions unit.
31
eligible financial year means:
32
(a) the financial year beginning on 1 July 2011; or
33
Preliminary Part 1
Section 5
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 11
(b) a later financial year.
1
eligible international emissions unit means:
2
(a) a certified emission reduction (other than a temporary
3
certified emission reduction or a long-term certified emission
4
reduction); or
5
(b) an emission reduction unit; or
6
(c) a removal unit; or
7
(d) a prescribed unit issued in accordance with the Kyoto rules;
8
or
9
(e) a non-Kyoto international emissions unit.
10
It is immaterial whether a unit covered by paragraph (d) was issued
11
in or outside Australia.
12
eligible reforestation project has the meaning given by
13
section 209.
14
eligible upstream fuel means any of the following:
15
(a) liquid petroleum fuel;
16
(b) liquid petroleum gas;
17
(c) black coal;
18
(d) brown coal;
19
(e) coking coal;
20
(f) brown coal briquettes;
21
(g) coke oven coke;
22
(h) coal-based char;
23
(i) natural gas that is distributed or transmitted in a pipeline;
24
(j) coal seam methane that is captured for combustion;
25
(k) coal mine waste gas that is captured for combustion;
26
(l) ethane;
27
(m) town gas;
28
(n) liquefied natural gas;
29
(o) compressed natural gas;
30
(p) syngas;
31
(pa) refinery grade propene (propylene);
32
(q) a fuel specified in the regulations.
33
Part 1 Preliminary
Section 5
12 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
For the purposes of this Act, if black coal is treated at a coal
1
washery, the black coal retains its identity as a type of eligible
2
upstream fuel.
3
eligible waste has the meaning given by the regulations.
4
emission of greenhouse gas from the operation of a facility has the
5
meaning given by section 24.
6
emission reduction unit means an emission reduction unit issued
7
in accordance with the relevant provisions of the Kyoto rules. It is
8
immaterial whether the unit was issued in or outside of Australia.
9
emissions-intensive trade-exposed assistance program means the
10
program under subsection 167(1).
11
emissions number has the meaning given by section 125.
12
emissions number publication time of a person for an eligible
13
financial year, means the time when the person's emissions number
14
for the eligible financial year is entered on the Information
15
Database in accordance with subsection 263(2).
16
engage in conduct means:
17
(a) do an act; or
18
(b) omit to perform an act.
19
evidential burden, in relation to a matter, means the burden of
20
adducing or pointing to evidence that suggests a reasonable
21
possibility that the matter exists or does not exist.
22
excess surrender number has the meaning given by section 143.
23
excise duty has the same meaning as in the Excise Act 1901.
24
exclusive economic zone has the same meaning as in the Seas and
25
Submerged Lands Act 1973.
26
executive officer of a body corporate means:
27
(a) a director of the body corporate; or
28
(b) the chief executive officer (however described) of the body
29
corporate; or
30
Preliminary Part 1
Section 5
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 13
(c) the chief financial officer (however described) of the body
1
corporate; or
2
(d) the secretary of the body corporate.
3
exempt hydrocarbon solvent means:
4
(a) excisable goods (within the meaning of the Excise Act 1901)
5
classified to subitem 10.25, 10.26, 10.27 or 10.28 of the
6
Schedule to the Excise Tariff Act 1921; or
7
(b) imported goods (within the meaning of the Excise Act 1901)
8
that would be classified to subitem 10.25, 10.26, 10.27 or
9
10.28 of that Schedule if they were manufactured in
10
Australia;
11
that are:
12
(c) hydrocarbon solvents; and
13
(d) not combusted.
14
expert advisory committee means a committee established under
15
section 357.
16
expert advisory committee member means a member of an expert
17
advisory committee, and includes the Chair of an expert advisory
18
committee.
19
export, in relation to goods or a substance, means:
20
(a) do an act that constitutes exportation of the goods or
21
substance from Australia within the meaning of section 112
22
of the Customs Act 1901; or
23
(b) do an act that would constitute such exportation if the
24
external Territories were part of Australia for the purposes of
25
that Act.
26
externally-administered body corporate has the same meaning as
27
in the Corporations Act 2001.
28
facility has the same meaning as in the National Greenhouse and
29
Energy Reporting Act 2007.
30
Note:
See also section 386 (transitional).
31
Federal Court means the Federal Court of Australia.
32
Part 1 Preliminary
Section 5
14 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
feedstock means a substance that is consumed (otherwise than by
1
way of combustion) in a chemical process to produce another
2
product.
3
financial control has the meaning given by section 81.
4
foreign account:
5
(a) when used in relation to a Kyoto unit--means an account
6
kept within a foreign Kyoto registry; or
7
(b) when used in relation to a non-Kyoto international emissions
8
unit--means an account kept under a law of a foreign
9
country corresponding to this Act.
10
foreign country includes a region where:
11
(a) the region is a colony, territory or protectorate of a foreign
12
country; or
13
(b) the region is part of a foreign country; or
14
(c) the region is under the protection of a foreign country; or
15
(d) a foreign country exercises jurisdiction or control over the
16
region; or
17
(e) a foreign country is responsible for the region's international
18
relations.
19
foreign Kyoto registry means:
20
(a) a registry of a Kyoto party (other than Australia) that is the
21
Kyoto party's national registry for Kyoto units; or
22
(b) the CDM registry established in accordance with paragraph 1
23
of Appendix D to the Annex to Decision 3/CMP.1 of the
24
Meeting of the Kyoto Parties.
25
foreign person has the same meaning as in the National
26
Greenhouse and Energy Reporting Act 2007.
27
forestry right has the meaning given by section 241.
28
forest stand means a stand of forest, where:
29
(a) under the regulations, the stand is taken to have been
30
established by means of direct, human-induced methods; and
31
(b) the stand occupies an area of land of 0.2 hectares or more;
32
and
33
Preliminary Part 1
Section 5
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 15
(c) the stand consists of trees that:
1
(i) have attained, or have the potential to attain, a crown
2
cover of at least 20% of the area occupied by the stand;
3
and
4
(ii) have reached, or have the potential to reach, a height of
5
at least 2 metres; and
6
(d) on 31 December 1989, the area occupied by the stand was
7
clear of trees that:
8
(i) had attained, or had the potential to attain, a crown
9
cover of at least 20% of the area occupied by the stand;
10
and
11
(ii) had reached, or had the potential to reach, a height of at
12
least 2 metres; and
13
(e) the stand meets such other requirements (if any) as are
14
specified in the regulations.
15
free Australian emissions unit means an Australian emissions unit
16
issued free of charge.
17
fuel oil has the same meaning as in the Excise Tariff Act 1921.
18
general law land means land other than:
19
(a) Torrens system land; or
20
(b) Crown land.
21
generation asset means:
22
(a) a generation complex; or
23
(b) a generation complex project.
24
generation complex means:
25
(a) a generation unit; or
26
(b) a set of 2 or more generation units at the same location.
27
generation complex project means a project to construct and
28
commission a new generation complex. For this purpose, it is
29
immaterial whether the project has been completed.
30
generation unit means a generator of electricity, and includes:
31
(a) the boiler (if any); and
32
Part 1 Preliminary
Section 5
16 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(b) any other related equipment essential to the generator's
1
functioning as a generator.
2
Greater Sunrise unit area has the same meaning as in the Offshore
3
Petroleum and Greenhouse Gas Storage Act 2006.
4
greenhouse gas has the same meaning as in the National
5
Greenhouse and Energy Reporting Act 2007.
6
Note:
See also section 386 (transitional).
7
group has the same meaning as in the National Greenhouse and
8
Energy Reporting Act 2007.
9
Note:
See also section 386 (transitional).
10
hold an eligible emissions unit: a person holds an eligible
11
emissions unit if the person is the registered holder of the unit.
12
identification number, in relation to an Australian emissions unit,
13
has the meaning given by section 84.
14
import, in relation to goods or a substance, means:
15
(a) do an act that constitutes importation of the goods or
16
substance into Australia within the meaning of section 50 of
17
the Customs Act 1901; or
18
(b) do an act that would constitute such importation if the
19
external Territories were part of Australia for the purposes of
20
that Act.
21
import duty has the same meaning as in the Customs Act 1901.
22
Information Database means the Liable Entities Public
23
Information Database kept under section 261.
24
insolvent under administration
has the same meaning as in the
25
Corporations Act 2001.
26
inspector means a person appointed as an inspector under
27
section 306.
28
international agreement means an agreement whose parties are:
29
(a) Australia and a foreign country; or
30
(b) Australia and 2 or more foreign countries.
31
Preliminary Part 1
Section 5
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 17
international transaction log means an electronic data system
1
administered by the Secretariat of the Climate Change Convention
2
for the purpose of monitoring and tracking transactions in Kyoto
3
units.
4
issue, in relation to an Australian emissions unit, means issue
5
under section 83.
6
Joint Petroleum Development Area has the same meaning as in
7
the Petroleum (Timor Sea Treaty) Act 2003.
8
joint venture means an unincorporated enterprise carried on by 2
9
or more persons in common otherwise than in partnership.
10
Kyoto Party means a Party to the Kyoto Protocol.
11
Kyoto Protocol means the Kyoto Protocol to the United Nations
12
Framework Convention on Climate Change done at Kyoto on
13
11 December 1997, as amended and in force for Australia from
14
time to time.
15
Note:
The text of the Kyoto Protocol is set out in Australian Treaty Series
16
2008 No. 2 ([2008] ATS 2). In 2009, the text of an international
17
agreement in the Australian Treaty Series was accessible through the
18
Australian Treaties Library on the AustLII website
19
(www.austlii.edu.au).
20
Kyoto rules means:
21
(a) the Kyoto Protocol; or
22
(b) a decision of the Meeting of the Kyoto Parties; or
23
(c) if a standard or other instrument, as existing from time to
24
time, is adopted by the Meeting of the Kyoto Parties for a
25
purpose relating to:
26
(i) the Kyoto Protocol; or
27
(ii) a decision of the Meeting of the Kyoto Parties;
28
the standard or instrument as existing from time to time; or
29
(d) if a standard or other instrument, as existing at a particular
30
time, is adopted by the Meeting of the Kyoto Parties for a
31
purpose relating to:
32
(i) the Kyoto Protocol; or
33
(ii) a decision of the Meeting of the Kyoto Parties;
34
the standard or instrument as existing at that time; or
35
Part 1 Preliminary
Section 5
18 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(e) a prescribed instrument that relates to:
1
(i) the Kyoto Protocol; or
2
(ii) a decision of the Meeting of the Kyoto Parties.
3
It is immaterial whether a standard or instrument covered by
4
paragraph (c), (d) or (e) was made before, at or after the
5
commencement of this section. Regulations made for the purposes
6
of paragraph (e) may prescribe an instrument:
7
(f) as existing at a particular time; or
8
(g) as existing from time to time.
9
Kyoto unit means:
10
(a) an assigned amount unit; or
11
(b) a certified emission reduction; or
12
(c) an emission reduction unit; or
13
(d) a removal unit; or
14
(e) a prescribed unit issued in accordance with the Kyoto rules.
15
It is immaterial whether a unit covered by paragraph (e) was issued
16
in or outside Australia.
17
landfill facility means a facility for the disposal of solid waste as
18
landfill, and includes a facility that is closed for the acceptance of
19
waste.
20
liability transfer certificate means a certificate issued under
21
section 72 or 76.
22
liable entity means a person who, under a provision of this Act, is a
23
liable entity.
24
liquid petroleum fuel means:
25
(a) excisable goods (within the meaning of the Excise Act 1901)
26
classified to item 10 of the Schedule to the Excise Tariff Act
27
1921; or
28
(b) imported goods (within the meaning of the Excise Act 1901)
29
that would be classified to item 10 of that Schedule if they
30
were manufactured in Australia;
31
that do not include an exempt hydrocarbon solvent.
32
Preliminary Part 1
Section 5
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 19
liquid petroleum gas has the same meaning as in the National
1
Greenhouse and Energy Reporting Regulations 2008.
2
liquid petroleum gas marketer means a person who is supplied
3
liquid petroleum gas from:
4
(a) a liquid petroleum gas separation plant bulk storage; or
5
(b) an import terminal bulk storage; or
6
(c) a petroleum refinery bulk storage;
7
for the purpose of re-supply.
8
local governing body means a local governing body established by
9
or under a law of a State or Territory.
10
long-term certified emission reduction means a certified emission
11
reduction that is treated as a long-term certified emission reduction
12
for the purposes of the relevant provisions of the Kyoto rules.
13
lower bound of the national scheme gateway has the meaning
14
given by section 15.
15
make-good number has the meaning given by section 142.
16
management of a forest stand includes the harvesting and
17
re-establishment of the forest stand.
18
mandatory cancellation account means a Commonwealth Registry
19
account designated as the mandatory cancellation account for a
20
particular commitment period.
21
Meeting of the Kyoto Parties means the Meeting of the Parties to
22
the Climate Change Convention serving as the meeting of the
23
Parties to the Kyoto Protocol.
24
member, in relation to a group, has the same meaning as in the
25
National Greenhouse and Energy Reporting Act 2007.
26
Note:
See also section 386 (transitional).
27
Minister, in relation to Norfolk Island, means an executive
28
member within the meaning of the Norfolk Island Act 1979.
29
monitoring powers has the meaning given by section 309.
30
Part 1 Preliminary
Section 5
20 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
monitoring warrant means a warrant issued under section 321.
1
nameplate rating of a generation asset means:
2
(a) in the case of a generation complex--the maximum
3
continuous electrical generation capacity in megawatts of the
4
generation complex, as registered with the appropriate energy
5
market operator; or
6
(b) in the case of a generation complex project--the proposed
7
maximum continuous electrical generation capacity in
8
megawatts of the proposed generation complex, as registered,
9
or proposed to be registered, with the appropriate energy
10
market operator.
11
national scheme cap has the meaning given by section 14.
12
national scheme cap number has the meaning given by section 14.
13
net source cancellation account means a Commonwealth Registry
14
account designated as the net source cancellation account for a
15
particular commitment period.
16
net total number of Australian emissions units issued in relation to
17
an eligible reforestation project in accordance with Part 10 has the
18
meaning given by section 242.
19
non-compliance cancellation account means a Commonwealth
20
Registry account designated as the non-compliance cancellation
21
account for a particular commitment period.
22
Note:
See also section 386 (transitional).
23
non-group entity has the same meaning as in the National
24
Greenhouse and Energy Reporting Act 2007.
25
Note:
See also section 386 (transitional).
26
non-Kyoto international emissions unit means:
27
(a) a prescribed unit issued in accordance with an international
28
agreement (other than the Kyoto Protocol); or
29
(b) a prescribed unit issued outside Australia under a law of a
30
foreign country.
31
It is immaterial whether a unit covered by paragraph (a) was issued
32
in or outside Australia.
33
Preliminary Part 1
Section 5
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 21
obligation transfer number or OTN means an OTN issued under
1
section 44 or 45.
2
officer has the same meaning as in the Corporations Act 2001.
3
official of the Authority has the same meaning as in the Australian
4
Climate Change Regulatory Authority Act 2009.
5
one-off quotation of an OTN has the meaning given by
6
section 51A.
7
open, in relation to a Registry account, means open under
8
section 146.
9
operation, in relation to a facility, has the same meaning as in the
10
National Greenhouse and Energy Reporting Act 2007.
11
Note:
See also section 386 (transitional).
12
operational control has the same meaning as in the National
13
Greenhouse and Energy Reporting Act 2007.
14
Note:
See also section 386 (transitional).
15
OTN: see obligation transfer number.
16
OTN Register means the register kept under section 49.
17
participant, in relation to a joint venture, means any of the persons
18
who carry on the joint venture.
19
penalty unit has the meaning given by section 4AA of the Crimes
20
Act 1914.
21
person means any of the following:
22
(a) an individual;
23
(b) a body corporate;
24
(c) a trust;
25
(d) a corporation sole;
26
(e) a body politic;
27
(f) a local governing body.
28
person assisting an inspector has the meaning given by
29
section 310.
30
Part 1 Preliminary
Section 5
22 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
potential greenhouse gas emissions has the same meaning as in
1
the National Greenhouse and Energy Reporting Act 2007.
2
Note:
See also section 386 (transitional).
3
power system reliability test has the meaning given by section 189.
4
premises includes the following:
5
(a) a structure, building, vehicle, vessel or aircraft;
6
(b) a place (whether or not enclosed or built on);
7
(c) a part of a thing referred to in paragraph (a) or (b).
8
prescribed wholesale gas market has the meaning given by the
9
regulations.
10
principal State Minister, in relation to a State, means:
11
(a) the Premier of the State; or
12
(b) if another Minister of the State is nominated in a written
13
notice given to the Minister administering this Act by the
14
Premier for the purposes of this definition--that other
15
Minister of the State.
16
principal Territory Minister, in relation to a Territory, means:
17
(a) the Chief Minister of the Territory; or
18
(b) if another Minister of the Territory is nominated in a written
19
notice given to the Minister administering this Act by the
20
Chief Minister for the purposes of this definition--that other
21
Minister of the Territory.
22
project area, in relation to a reforestation project, means:
23
(a) if the project relates to a single forest stand--the area of land
24
occupied, or to be occupied, by the forest stand; or
25
(b) if the project relates to 2 or more forest stands--an area of
26
land occupied, or to be occupied, by any of those forest
27
stands.
28
proposed generation complex, in relation to a generation complex
29
project, means the generation complex that is proposed to result
30
from the project. For this purpose, it is immaterial whether the
31
generation complex has been constructed or commissioned.
32
Preliminary Part 1
Section 5
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 23
provisional emissions number:
1
(a) has the meaning given by Part 3; and
2
(b) has a meaning affected by sections 11B and 11C of the
3
National Greenhouse and Energy Reporting Act 2007.
4
quarter means a period of 3 months beginning on 1 January,
5
1 April, 1 July or 1 October.
6
quote, in relation to an OTN, has the meaning given by section 51.
7
recognised:
8
(a) recognised as a reforestation entity means recognised under
9
section 201; and
10
(b) recognised as a synthetic greenhouse gas destruction
11
customer means recognised under section 256.
12
recognised reforestation entity means a person recognised as a
13
reforestation entity.
14
recognised synthetic greenhouse gas destruction customer means
15
a company recognised as a synthetic greenhouse gas destruction
16
customer.
17
recognised transformation: each of the following is a recognised
18
transformation of an eligible upstream fuel to another type of
19
eligible upstream fuel:
20
(a) the transformation of brown coal to brown coal briquettes;
21
(b) the transformation of brown coal briquettes to coal-based
22
char;
23
(c) the transformation of coking coal to coke oven coke;
24
(d) the transformation of natural gas to liquefied natural gas;
25
(e) the transformation of natural gas to compressed natural gas;
26
(f) the transformation of liquefied natural gas to natural gas;
27
(g) the transformation of compressed natural gas to natural gas;
28
(h) the transformation of a type of eligible upstream fuel
29
specified in the regulations to a type of eligible upstream fuel
30
specified in the regulations.
31
refinery grade propene (propylene) has the same meaning as in the
32
National Greenhouse and Energy Reporting Regulations 2008.
33
Part 1 Preliminary
Section 5
24 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
reforestation project means:
1
(a) a project for the establishment, management and maintenance
2
of one or more forest stands; or
3
(b) a project for the management and maintenance of one or
4
more existing forest stands.
5
For this purpose, it is immaterial whether the project has been
6
carried out.
7
reforestation report means a report under section 225.
8
reforestation reporting period has the meaning given by
9
section 223 or 224.
10
reforestation unit limit, in relation to an eligible reforestation
11
project, has the meaning given by section 220, 221 or 222.
12
registered holder, in relation to:
13
(a) an Australian emissions unit; or
14
(b) a Kyoto unit; or
15
(c) a non-Kyoto international emissions unit;
16
means the person in whose Registry account there is an entry for
17
the unit.
18
Register of Reforestation Projects means the register kept under
19
section 238.
20
Registry means the Australian National Registry of Emissions
21
Units continued in existence under section 145.
22
Registry account means an account kept in accordance with
23
section 146.
24
relinquish, in relation to an Australian emissions unit, means
25
relinquish under section 286.
26
relinquishment obligation transfer agreement has the meaning
27
given by section 234.
28
removal unit means a removal unit issued in accordance with the
29
relevant provisions of the Kyoto rules. It is immaterial whether the
30
unit was issued in or out of Australia.
31
Preliminary Part 1
Section 5
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 25
retirement account for a commitment period means a
1
Commonwealth Registry account designated as the retirement
2
account for a particular commitment period.
3
reviewable decision has the meaning given by section 346.
4
scheme, when used in section 23 or 30 or Part 22, means:
5
(a) any agreement, arrangement, understanding, promise or
6
undertaking, whether express or implied and whether or not
7
enforceable, or intended to be enforceable, by legal
8
proceedings; or
9
(b) any scheme, plan, proposal, action, course of action or course
10
of conduct, whether there are 2 or more parties or only one
11
party involved.
12
scope 1 emission of greenhouse gas has the meaning given by the
13
National Greenhouse and Energy Reporting Act 2007.
14
Note:
See also section 386 (transitional).
15
Secretary means the Secretary of the Department.
16
staff of the Authority has the same meaning as in the Australian
17
Climate Change Regulatory Authority Act 2009.
18
standing quotation of an OTN has the meaning given by
19
section 51B.
20
statutory authority of the Commonwealth, a State or a Territory,
21
means an authority or body (including a corporation sole)
22
established by or under a law of the Commonwealth, the State or
23
Territory other than a general law allowing incorporation as a
24
company or body corporate.
25
supply means supply (including re-supply) by way of sale,
26
exchange or gift.
27
Note 1:
See also section 5A (extended meaning of supply).
28
Note 2:
See also section 6 (timing of supply).
29
surrender, in relation to an eligible emissions unit, means
30
surrender under section 129.
31
Part 1 Preliminary
Section 5
26 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
syngas has the same meaning as in the National Greenhouse and
1
Energy Reporting Regulations 2008.
2
synthetic greenhouse gas has the same meaning as in the National
3
Greenhouse and Energy Reporting Act 2007.
4
Note:
See also section 386 (transitional).
5
synthetic greenhouse gas destruction event means an event that
6
consists of the destruction of a particular quantity of a particular
7
kind of synthetic greenhouse gas.
8
temporary certified emission reduction means a certified emission
9
reduction that is treated as a temporary certified emission reduction
10
for the purposes of the relevant provisions of the Kyoto rules.
11
territorial sea has the same meaning as in the Seas and Submerged
12
Lands Act 1973.
13
Torrens system land: land is Torrens system land if the title to the
14
land is registered under a Torrens system of registration.
15
transfer:
16
(a) in relation to an Australian emissions unit--has the meaning
17
given by section 95; or
18
(b) in relation to a Kyoto unit--has the meaning given by
19
section 107; or
20
(c) in relation to a non-Kyoto international emissions unit--has
21
the meaning given by section 118.
22
transferee, in relation to a relinquishment obligation transfer
23
agreement, has the meaning given by section 234.
24
trust means a person in the capacity of trustee or, as the case
25
requires, a trust estate.
26
trustee has the same meaning as in the Income Tax Assessment Act
27
1997.
28
trust estate has the same meaning as in the Income Tax Assessment
29
Act 1997.
30
type:
31
Preliminary Part 1
Section 5
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 27
(a) type of eligible upstream fuel:
1
(i) each substance classified to item 10 of the Schedule to
2
the Excise Tariff Act 1921 (or that would be classified to
3
that item if it was manufactured in Australia) is a type of
4
eligible upstream fuel; and
5
(ii) a substance covered by a particular paragraph of the
6
definition of eligible upstream fuel (other than
7
paragraph (a) of the definition) is a type of eligible
8
upstream fuel; and
9
(b) type of synthetic greenhouse gas:
10
(i) a substance covered by paragraph 7B(1)(a) of the
11
National Greenhouse and Energy Reporting Act 2007 is
12
a type of synthetic greenhouse gas; and
13
(ii) a substance covered by a particular item of table 1 or
14
table 2 in section 7B of that Act is a type of synthetic
15
greenhouse gas.
16
United Nations Convention on the Law of the Sea means the
17
United Nations Convention on the Law of the Sea done at Montego
18
Bay on 10 December 1982.
19
Note:
The text of the Convention is set out in Australian Treaty Series 1994
20
No. 31 ([1994] ATS 31). In 2009, the text of a Convention in the
21
Australian Treaty Series was accessible through the Australian
22
Treaties Library on the AustLII website (www.austlii.edu.au).
23
unit shortfall has the meaning given by section 130.
24
upper bound of the national scheme gateway has the meaning
25
given by section 15.
26
vacancy, in relation to the office of an expert advisory committee
27
member, has a meaning affected by section 7.
28
vintage year, in relation to an Australian emissions unit, has the
29
meaning given by subsection 85(2).
30
voluntary cancellation account means a Commonwealth Registry
31
account designated as the voluntary cancellation account for a
32
particular commitment period.
33
windfall gain declaration means a declaration under section 186.
34
Part 1 Preliminary
Section 5A
28 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
windfall gain test has the meaning given by section 187.
1
5A Extended meaning of supply
2
For the purposes of this Act, if:
3
(a) a person (the supplier) makes eligible upstream fuel available
4
to another person (the recipient) for combustion at a facility;
5
and
6
(b) apart from this section, making the fuel available is not a
7
supply;
8
then:
9
(c) the supplier is taken to supply the fuel to the recipient; and
10
(d) the supply occurs when the fuel is combusted.
11
6 When supply occurs
12
Natural gas distributed or transmitted in a pipeline
13
(1) For the purposes of this Act, if natural gas is distributed or
14
transmitted in a pipeline, the supply of the natural gas occurs:
15
(a) if the regulations provide that the supply occurs when the gas
16
passes a point ascertained in accordance with the
17
regulations--when the gas passes that point; or
18
(b) otherwise:
19
(i) if the supply involves physical delivery--when the gas
20
is physically delivered; or
21
(ii) if the supply does not involve physical delivery--when
22
property in the gas is transferred.
23
Other substances
24
(2) For the purposes of this Act:
25
(a) if the supply of a substance (other than natural gas distributed
26
or transmitted in a pipeline) involves a physical delivery--
27
the supply of the substance occurs when the substance is
28
physically delivered; or
29
(b) if the supply of a substance (other than natural gas distributed
30
or transmitted in a pipeline) does not involve a physical
31
Preliminary Part 1
Section 7
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 29
delivery--the supply of the substance occurs when property
1
in the substance is transferred.
2
Exception
3
(3) This section does not apply to a supply covered by section 5A.
4
7 Vacancy in the office of an expert advisory committee member
5
For the purposes of a reference in:
6
(a) this Act to a vacancy in the office of an expert advisory
7
committee member; or
8
(b) the Acts Interpretation Act 1901 to a vacancy in the
9
membership of a body;
10
for each expert advisory committee, there are taken to be 4 offices
11
of expert advisory committee members in addition to the Chair of
12
the expert advisory committee.
13
8 Electronic notice transmitted to the Authority
14
(1) For the purposes of this Act, a notice is an electronic notice
15
transmitted to the Authority if, and only if:
16
(a) the notice is transmitted to the Authority by means of an
17
electronic communication; and
18
(b) if the Authority requires that the notice be transmitted, in
19
accordance with particular information technology
20
requirements, by means of a particular kind of electronic
21
communication--the Authority's requirement has been met;
22
and
23
(c) the notice complies with regulations made for the purposes of
24
subsection (2).
25
(2) The regulations may make provision for or in relation to the
26
security and authenticity of notices transmitted to the Authority by
27
means of an electronic communication.
28
(3) Regulations made for the purposes of subsection (2) may deal with:
29
(a) encryption; and
30
(b) authentication of identity.
31
Part 1 Preliminary
Section 9
30 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(4) Subsection (3) does not limit subsection (2).
1
(5) For the purposes of this Act, if a notice is transmitted to the
2
Authority by means of an electronic communication, the notice is
3
taken to have been transmitted on the day on which the electronic
4
communication is dispatched.
5
(6) Subsection (5) of this section has effect despite subsections 14(3)
6
and (4) of the Electronic Transactions Act 1999.
7
(7) This section does not, by implication, limit the regulations that may
8
be made under the Electronic Transactions Act 1999.
9
9 Crown to be bound
10
(1) This Act binds the Crown in each of its capacities.
11
(2) This Act does not make the Crown liable to a pecuniary penalty or
12
to be prosecuted for an offence.
13
(3) The protection in subsection (2) does not apply to an authority of
14
the Crown.
15
(4) The protection in subsection (2) does not apply to a penalty under
16
section 133, 135, 287 or 288.
17
10 Extension to external Territories
18
This Act extends to every external Territory.
19
11 Extension to exclusive economic zone and continental shelf
20
This Act extends to a matter relating to the exercise of Australia's
21
sovereign rights in the exclusive economic zone or the continental
22
shelf.
23
11A Extension to Joint Petroleum Development Area
24
This Act extends to the Joint Petroleum Development Area.
25
Note:
See also sections 22A and 22B (adjustment of provisional emissions
26
number).
27
Preliminary Part 1
Section 12
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 31
12 Application to foreign ships
1
This Act does not apply to the extent that its application would be
2
inconsistent with the exercise of rights of foreign ships in:
3
(a) the territorial sea; or
4
(b) the exclusive economic zone; or
5
(c) waters of the continental shelf;
6
in accordance with the United Nations Convention on the Law of
7
the Sea.
8
9
Part 2 National scheme cap and national scheme gateway
Section 13
32 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Part 2--National scheme cap and national scheme
1
gateway
2
3
13 Simplified outline
4
The following is a simplified outline of this Part:
5
·
The regulations may declare that a quantity of greenhouse gas
6
that has a carbon dioxide equivalence of a specified number of
7
tonnes is the national scheme cap for a financial year.
8
·
For the financial year beginning on 1 July 2015 or a later
9
financial year, the national scheme cap must fall within the
10
upper and lower bound of the national scheme gateway (if
11
any) declared by the regulations for the financial year.
12
Note:
The national scheme cap limits:
13
(a) the total number of auctioned Australian emissions units; and
14
(b) the total number of free Australian emissions units issued in
15
accordance with the emissions-intensive trade-exposed assistance
16
program; and
17
(c) the total number of free Australian emissions units issued in
18
accordance with Part 9 (coal-fired electricity generation).
19
14 National scheme cap
20
National scheme cap
21
(1) The regulations may declare that:
22
(a) a quantity of greenhouse gas that has a carbon dioxide
23
equivalence of a specified number of tonnes is the national
24
scheme cap for a specified eligible financial year (other than
25
the eligible financial year starting on 1 July 2011); and
26
(b) that number is the national scheme cap number for that
27
eligible financial year.
28
(2) The Minister must take all reasonable steps to ensure that:
29
(a) regulations declaring the national scheme cap number for the
30
eligible financial year beginning on 1 July 2012; and
31
National scheme cap and national scheme gateway Part 2
Section 14
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 33
(b) regulations declaring the national scheme cap number for
1
each of the next 2 eligible financial years;
2
are made before 1 July 2010.
3
(3) The Minister must take all reasonable steps to ensure that:
4
(a) regulations declaring the national scheme cap number for the
5
eligible financial year beginning on 1 July 2015 are made at
6
least 5 years before the end of the eligible financial year; and
7
(b) regulations declaring the national scheme cap number for a
8
later eligible financial year are made at least 5 years before
9
the end of the later eligible financial year.
10
(4) If:
11
(a) apart from this subsection, at the beginning of the 5-year
12
period ending at the end of an eligible financial year (the
13
current eligible financial year), there is no national scheme
14
cap number for the current eligible financial year; and
15
(b) there was a national scheme cap number for the previous
16
eligible financial year; and
17
(c) the current eligible financial year began on or after 1 July
18
2015;
19
the national scheme cap number for the current eligible financial
20
year is equal to:
21
(d) if 99% of the national scheme cap number for the previous
22
eligible financial year is less than the lower bound of the
23
national scheme gateway for the current eligible financial
24
year--that lower bound; or
25
(e) if 99% of the national scheme cap number for the previous
26
eligible financial year exceeds the upper bound of the
27
national scheme gateway for the current eligible financial
28
year--that upper bound; or
29
(f) if neither paragraph (d) nor (e) applies--99% of the national
30
scheme cap number for the previous eligible financial year
31
(rounded to the nearest whole number, with a number ending
32
in .5 being rounded up).
33
Part 2 National scheme cap and national scheme gateway
Section 14
34 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Regulations
1
(5) In making a recommendation to the Governor-General about
2
regulations to be made for the purposes of this section, the
3
Minister:
4
(a) must have regard to Australia's international obligations
5
under:
6
(i) the Climate Change Convention; and
7
(ii) the Kyoto Protocol; and
8
(b) may have regard to the most recent report given to the
9
Minister by an expert advisory committee under section 354,
10
to the extent to which that report deals with national scheme
11
caps; and
12
(c) may have regard to the following matters:
13
(i) the principle that the stabilisation of atmospheric
14
concentrations of greenhouse gases at around 450 parts
15
per million of carbon dioxide equivalence or lower is in
16
Australia's national interest;
17
(ii) progress towards, and development of, comprehensive
18
global action under which all of the major economies
19
commit to substantially restrain greenhouse gas
20
emissions and all of the advanced economies commit to
21
reductions of greenhouse gas emissions comparable to
22
the reductions to which Australia has committed;
23
(iii) the economic implications associated with various
24
levels of national scheme caps, including implications
25
of the carbon price;
26
(iv) voluntary action to reduce Australia's greenhouse gas
27
emissions;
28
(v) estimates of greenhouse gas emissions that are not
29
covered (directly or indirectly) by the carbon pollution
30
reduction scheme;
31
(vi) such other matters (if any) as the Minister considers
32
relevant.
33
(6) Paragraph (5)(b) does not apply if no report has been given to the
34
Minister under section 354.
35
(7) If:
36
National scheme cap and national scheme gateway Part 2
Section 15
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 35
(a) regulations are made for the purposes of this section; and
1
(b) on a particular day (the tabling day), a copy of the
2
regulations is tabled before a House of the Parliament under
3
section 38 of the Legislative Instruments Act 2003;
4
then, on or as soon as practicable after the tabling day, the Minister
5
must cause to be tabled before that House a written statement
6
setting out the Minister's reasons for making the recommendation
7
to the Governor-General about those regulations.
8
15 National scheme gateway
9
Scope
10
(1) This section applies to:
11
(a) the eligible financial year beginning on 1 July 2015; and
12
(b) each later eligible financial year.
13
Gateway
14
(2) The regulations may declare that:
15
(a) a quantity of greenhouse gas that has a carbon dioxide
16
equivalence of a specified number of tonnes is the upper
17
bound of the national scheme gateway for a specified eligible
18
financial year; and
19
(b) a quantity of greenhouse gas that has a carbon dioxide
20
equivalence of a specified number of tonnes is the lower
21
bound of the national scheme gateway for a specified eligible
22
financial year.
23
National scheme cap
24
(3) The Minister must take all reasonable steps to ensure that the
25
national scheme cap for an eligible financial year:
26
(a) is not more than the upper bound of the national scheme
27
gateway (if any) for the eligible financial year; and
28
(b) is not less than the lower bound of the national scheme
29
gateway (if any) for the eligible financial year.
30
Part 2 National scheme cap and national scheme gateway
Section 15
36 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Regulations
1
(4) In making a recommendation to the Governor-General about
2
regulations to be made for the purposes of this section, the
3
Minister:
4
(a) must have regard to Australia's international obligations
5
under:
6
(i) the Climate Change Convention; and
7
(ii) the Kyoto Protocol; and
8
(b) may have regard to the most recent report given to the
9
Minister by an expert advisory committee under section 354,
10
to the extent to which that report deals with national scheme
11
gateways; and
12
(c) may have regard to the following matters:
13
(i) the principle that the stabilisation of atmospheric
14
concentrations of greenhouse gases at around 450 parts
15
per million of carbon dioxide equivalence or lower is in
16
Australia's national interest;
17
(ii) progress towards, and development of, comprehensive
18
global action under which all of the major economies
19
commit to substantially restrain greenhouse gas
20
emissions and all of the advanced economies commit to
21
reductions of greenhouse gas emissions comparable to
22
the reductions to which Australia has committed;
23
(iii) the economic implications associated with various
24
national scheme gateways, including implications of the
25
carbon price;
26
(iv) voluntary action to reduce Australia's greenhouse gas
27
emissions;
28
(v) estimates of greenhouse gas emissions that are not
29
covered (directly or indirectly) by the carbon pollution
30
reduction scheme;
31
(vi) such other matters (if any) as the Minister considers
32
relevant.
33
(5) Paragraph (4)(b) does not apply if no report has been given to the
34
Minister under section 354.
35
(6) If:
36
National scheme cap and national scheme gateway Part 2
Section 15
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 37
(a) regulations are made for the purposes of this section; and
1
(b) on a particular day (the tabling day), a copy of the
2
regulations is tabled before a House of the Parliament under
3
section 38 of the Legislative Instruments Act 2003;
4
then, on or as soon as practicable after the tabling day, the Minister
5
must cause to be tabled before that House a written statement
6
setting out the Minister's reasons for making the recommendation
7
to the Governor-General about those regulations.
8
9
Part 3 Liable entities
Division 1 Introduction
Section 16
38 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Part 3--Liable entities
1
Division 1--Introduction
2
16 Simplified outline
3
The following is a simplified outline of this Part:
4
·
This Part sets out rules for:
5
(a) identifying the persons who are liable entities for a
6
financial year (liable entities are liable to surrender
7
eligible emissions units); and
8
(b) the provisional emissions numbers of those liable
9
entities (provisional emissions numbers are used to
10
work out the number of eligible emissions units
11
that must be surrendered by a liable entity).
12
·
If a person is responsible for greenhouse gas emitted from the
13
operation of a facility during a financial year:
14
(a) the person is a liable entity for the financial year;
15
and
16
(b) the number of tonnes of carbon dioxide
17
equivalence of the gas is a provisional emissions
18
number of the person for the financial year.
19
·
A person can be responsible for greenhouse gas emitted from
20
the operation of a facility because:
21
(a) the person is a controlling corporation of a group,
22
and a member of the group has operational control
23
of the facility; or
24
(b) the person is not a member of a controlling
25
corporation's group, but has operational control of
26
the facility; or
27
Liable entities Part 3
Introduction Division 1
Section 16
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 39
(c) the person is the holder of a liability transfer
1
certificate in relation to the facility.
2
·
If a person imports, manufactures or supplies synthetic
3
greenhouse gas during a financial year:
4
(a) the person is a liable entity for the financial year;
5
and
6
(b) the number of tonnes of carbon dioxide
7
equivalence of the gas is a provisional emissions
8
number of the person for the financial year.
9
·
If a person imports, produces or supplies eligible upstream
10
fuel during a financial year:
11
(a) the person is a liable entity for the financial year;
12
and
13
(b) the number of tonnes of carbon dioxide
14
equivalence of the potential greenhouse gas
15
emissions embodied in the fuel is a provisional
16
emissions number of the person for the financial
17
year.
18
·
If a person (the supplier) supplies an amount of eligible
19
upstream fuel to another person (the recipient) who quotes the
20
recipient's Obligation Transfer Number (OTN) in relation to
21
the supply, the supply will not count towards the supplier's
22
liability for the financial year.
23
·
If a person (the OTN holder) quotes the person's OTN in
24
relation to the supply of an amount of eligible upstream fuel,
25
the OTN holder may be a liable entity.
26
27
Part 3 Liable entities
Division 2 Direct emitters of greenhouse gases
Section 17
40 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Division 2--Direct emitters of greenhouse gases
1
Subdivision A--General rules
2
17 Liable entity--controlling corporation of a group
3
Scope
4
(1) This section applies if:
5
(a) either:
6
(i) a facility (other than a landfill facility) was under the
7
operational control of one or more members of a
8
controlling corporation's group throughout an eligible
9
financial year; or
10
(ii) a facility (other than a landfill facility) was under the
11
operational control of one or more members of a
12
controlling corporation's group for a number of, but not
13
all, days in an eligible financial year (the control days);
14
and
15
(b) the total amount of greenhouse gases emitted from the
16
operation of the facility:
17
(i) if subparagraph (a)(i) applies--during the eligible
18
financial year; or
19
(ii) if subparagraph (a)(ii) applies--during the control days;
20
has a carbon dioxide equivalence of a particular number of
21
tonnes.
22
Provisional emissions number
23
(2) For the purposes of this Act, that number is a provisional
24
emissions number of the controlling corporation for the eligible
25
financial year.
26
Liable entity
27
(3) For the purposes of this Act, the controlling corporation is a liable
28
entity for the eligible financial year.
29
Liable entities Part 3
Direct emitters of greenhouse gases Division 2
Section 17
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 41
Exemption--small facilities
1
(4) If:
2
(a) the facility was under the operational control of one or more
3
members of the controlling corporation's group throughout
4
the eligible financial year; and
5
(b) during the eligible financial year, the total amount of
6
greenhouse gases emitted from the operation of the facility
7
had a carbon dioxide equivalence of less than 25,000 tonnes;
8
so much of the total amount mentioned in paragraph (b) as would
9
otherwise count for the purposes of subsection (1) does not count
10
for the purposes of subsection (1).
11
Note:
See also section 23 (anti-avoidance).
12
(5) If:
13
(a) the facility was under the operational control of one or more
14
members of the controlling corporation's group for a number
15
of, but not all, days in the eligible financial year (the control
16
days); and
17
(b) during the control days, the total amount of greenhouse gases
18
emitted from the operation of the facility had a carbon
19
dioxide equivalence of less than the amount worked out using
20
the formula:
21
Number of control days
25,000 tonnes
Number of days in the eligible financial year
22
so much of the total amount mentioned in paragraph (b) as would
23
otherwise count for the purposes of subsection (1) does not count
24
for the purposes of subsection (1).
25
Note:
See also section 23 (anti-avoidance).
26
Exemption--liability transfer certificate
27
(6) For the purposes of this section, if, throughout the whole or a part
28
of the eligible financial year, a person was the holder of a liability
29
transfer certificate in relation to the facility, then the facility is
30
taken not to have been under the operational control of a member
31
Part 3 Liable entities
Division 2 Direct emitters of greenhouse gases
Section 17
42 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
of the controlling corporation's group during the whole or the part,
1
as the case may be, of the eligible financial year.
2
OTNs--no double counting
3
(7) If:
4
(a) the facility was under the operational control of one or more
5
members of the controlling corporation's group throughout
6
the eligible financial year; and
7
(b) during the eligible financial year, an amount of greenhouse
8
gas emitted from the operation of the facility was attributable
9
to the combustion of eligible upstream fuel that was obtained
10
by way of the supply of the fuel to a person (who may be a
11
member of the controlling corporation's group); and
12
(c) in a case where the person had operational control of the
13
facility--the person did not quote the person's OTN in
14
relation to the supply of the fuel;
15
the amount mentioned in paragraph (b):
16
(d) does not count for the purposes of subsection (1); and
17
(e) counts for the purposes of paragraph (4)(b).
18
(8) If:
19
(a) the facility was under the operational control of one or more
20
members of the controlling corporation's group for a number
21
of, but not all, days in the eligible financial year (the control
22
days); and
23
(b) during the control days, an amount of greenhouse gas emitted
24
from the operation of the facility was attributable to the
25
combustion of eligible upstream fuel that was obtained by
26
way of the supply of the fuel to a person (who may be a
27
member of the controlling corporation's group); and
28
(c) in a case where the person had operational control of the
29
facility--the person did not quote the person's OTN in
30
relation to the supply of the fuel;
31
the amount mentioned in paragraph (b):
32
(d) does not count for the purposes of subsection (1); and
33
(e) counts for the purposes of paragraph (5)(b).
34
Liable entities Part 3
Direct emitters of greenhouse gases Division 2
Section 18
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 43
Liquid petroleum fuel--no double counting
1
(9) If:
2
(a) the facility was under the operational control of one or more
3
members of the controlling corporation's group throughout
4
the eligible financial year; and
5
(b) during the eligible financial year, an amount of greenhouse
6
gas emitted from the operation of the facility was attributable
7
to the combustion of liquid petroleum fuel; and
8
(c) the potential greenhouse gas emissions embodied in the fuel
9
were counted for the purposes of subsection 31(1) or 32(1);
10
the amount mentioned in paragraph (b):
11
(d) does not count for the purposes of subsection (1); and
12
(e) counts for the purposes of paragraph (4)(b).
13
(10) If:
14
(a) the facility was under the operational control of one or more
15
members of the controlling corporation's group for a number
16
of, but not all, days in the eligible financial year (the control
17
days); and
18
(b) during the control days, an amount of greenhouse gas emitted
19
from the operation of the facility was attributable to the
20
combustion of liquid petroleum fuel; and
21
(c) the potential greenhouse gas emissions embodied in the fuel
22
were counted for the purposes of subsection 31(1) or 32(1);
23
the amount mentioned in paragraph (b):
24
(d) does not count for the purposes of subsection (1); and
25
(e) counts for the purposes of paragraph (5)(b).
26
18 Liable entity--non-group entity
27
Scope
28
(1) This section applies if:
29
(a) either:
30
(i) a facility (other than a landfill facility) was under the
31
operational control of a non-group entity throughout an
32
eligible financial year; or
33
Part 3 Liable entities
Division 2 Direct emitters of greenhouse gases
Section 18
44 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(ii) a facility (other than a landfill facility) was under the
1
operational control of a non-group entity for a number
2
of, but not all, days in an eligible financial year (the
3
control days); and
4
(b) the total amount of greenhouse gases emitted from the
5
operation of the facility:
6
(i) if subparagraph (a)(i) applies--during the eligible
7
financial year; or
8
(ii) if subparagraph (a)(ii) applies--during the control days;
9
has a carbon dioxide equivalence of a particular number of
10
tonnes.
11
Provisional emissions number
12
(2) For the purposes of this Act, that number is a provisional
13
emissions number of the non-group entity for the eligible financial
14
year.
15
Liable entity
16
(3) For the purposes of this Act, the non-group entity is a liable entity
17
for the eligible financial year.
18
Exemption--small facility
19
(4) If:
20
(a) the facility was under the operational control of the
21
non-group entity throughout the eligible financial year; and
22
(b) during the eligible financial year, the total amount of
23
greenhouse gases emitted from the operation of the facility
24
had a carbon dioxide equivalence of less than 25,000 tonnes;
25
so much of the total amount mentioned in paragraph (b) as would
26
otherwise count for the purposes of subsection (1) does not count
27
for the purposes of subsection (1).
28
Note:
See also section 23 (anti-avoidance).
29
(5) If:
30
(a) the facility was under the operational control of the
31
non-group entity for a number of, but not all, days in the
32
eligible financial year (the control days); and
33
Liable entities Part 3
Direct emitters of greenhouse gases Division 2
Section 18
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 45
(b) during the control days, the total amount of greenhouse gases
1
emitted from the operation of the facility had a carbon
2
dioxide equivalence of less than the amount worked out using
3
the formula:
4
Number of control days
25,000 tonnes
Number of days in the eligible financial year
5
so much of the total amount mentioned in paragraph (b) as would
6
otherwise count for the purposes of subsection (1) does not count
7
for the purposes of subsection (1).
8
Note:
See also section 23 (anti-avoidance).
9
Exemption--liability transfer certificate
10
(6) For the purposes of this section, if, throughout the whole or a part
11
of the eligible financial year, a person was the holder of a liability
12
transfer certificate in relation to the facility, then the facility is
13
taken not to have been under the operational control of the
14
non-group entity during the whole or the part, as the case may be,
15
of the eligible financial year.
16
OTNs--no double counting
17
(7) If:
18
(a) the facility was under the operational control of the
19
non-group entity throughout the eligible financial year; and
20
(b) during the eligible financial year, an amount of greenhouse
21
gas emitted from the operation of the facility was attributable
22
to the combustion of eligible upstream fuel that was obtained
23
by way of the supply of the fuel to a person (who may be the
24
non-group entity); and
25
(c) in a case where the person had operational control of the
26
facility--the person did not quote the person's OTN in
27
relation to the supply of the fuel;
28
the amount mentioned in paragraph (b):
29
(d) does not count for the purposes of subsection (1); and
30
(e) counts for the purposes of paragraph (4)(b).
31
(8) If:
32
Part 3 Liable entities
Division 2 Direct emitters of greenhouse gases
Section 18
46 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(a) the facility was under the operational control of the
1
non-group entity for a number of, but not all, days in the
2
eligible financial year (the control days); and
3
(b) during the control days, an amount of greenhouse gas emitted
4
from the operation of the facility was attributable to the
5
combustion of eligible upstream fuel that was obtained by
6
way of the supply of the fuel to a person (who may be the
7
non-group entity); and
8
(c) in a case where the person had operational control of the
9
facility--the person did not quote the person's OTN in
10
relation to the supply of the fuel;
11
the amount mentioned in paragraph (b):
12
(d) does not count for the purposes of subsection (1); and
13
(e) counts for the purposes of paragraph (5)(b).
14
Liquid petroleum fuel--no double counting
15
(9) If:
16
(a) the facility was under the operational control of the
17
non-group entity throughout the eligible financial year; and
18
(b) during the eligible financial year, an amount of greenhouse
19
gas emitted from the operation of the facility was attributable
20
to the combustion of liquid petroleum fuel; and
21
(c) the potential greenhouse gas emissions embodied in the fuel
22
were counted for the purposes of subsection 31(1) or 32(1);
23
the amount mentioned in paragraph (b):
24
(d) does not count for the purposes of subsection (1); and
25
(e) counts for the purposes of paragraph (4)(b).
26
(10) If:
27
(a) the facility was under the operational control of the
28
non-group entity for a number of, but not all, days in the
29
eligible financial year (the control days); and
30
(b) during the control days, an amount of greenhouse gas emitted
31
from the operation of the facility was attributable to the
32
combustion of liquid petroleum fuel; and
33
(c) the potential greenhouse gas emissions embodied in the fuel
34
were counted for the purposes of subsection 31(1) or 32(1);
35
Liable entities Part 3
Direct emitters of greenhouse gases Division 2
Section 19
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 47
the amount mentioned in paragraph (b):
1
(d) does not count for the purposes of subsection (1); and
2
(e) counts for the purposes of paragraph (5)(b).
3
19 Liable entity--holder of a liability transfer certificate
4
Scope
5
(1) This section applies if:
6
(a) either:
7
(i) a person was the holder of a liability transfer certificate
8
in relation to a facility (other than a landfill facility)
9
throughout an eligible financial year; or
10
(ii) a person was the holder of a liability transfer certificate
11
in relation to a facility (other than a landfill facility) for
12
a number of, but not all, days in an eligible financial
13
year (the certificate days); and
14
(b) the total amount of greenhouse gases emitted from the
15
operation of the facility:
16
(i) if subparagraph (a)(i) applies--during the eligible
17
financial year; or
18
(ii) if subparagraph (a)(ii) applies--during the certificate
19
days;
20
has a carbon dioxide equivalence of a particular number of
21
tonnes.
22
Provisional emissions number
23
(2) For the purposes of this Act, that number is a provisional
24
emissions number of the person for the eligible financial year.
25
Liable entity
26
(3) For the purposes of this Act, the person is a liable entity for the
27
eligible financial year.
28
Exemption--small facility
29
(4) If:
30
Part 3 Liable entities
Division 2 Direct emitters of greenhouse gases
Section 19
48 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(a) the person was the holder of the liability transfer certificate
1
throughout the eligible financial year; and
2
(b) during the eligible financial year, the total amount of
3
greenhouse gases emitted from the operation of the facility
4
had a carbon dioxide equivalence of less than 25,000 tonnes;
5
so much of the total amount mentioned in paragraph (b) as would
6
otherwise count for the purposes of subsection (1) does not count
7
for the purposes of subsection (1).
8
Note:
See also section 23 (anti-avoidance).
9
(5) If:
10
(a) the person was the holder of the liability transfer certificate
11
for a number of, but not all, days in the eligible financial year
12
(the certificate days); and
13
(b) during the certificate days, the total amount of greenhouse
14
gases emitted from the operation of the facility had a carbon
15
dioxide equivalence of less than the amount worked out using
16
the formula:
17
Number of certificate days
25,000 tonnes
Number of days in the eligible financial year
18
so much of the total amount mentioned in paragraph (b) as would
19
otherwise count for the purposes of subsection (1) does not count
20
for the purposes of subsection (1).
21
Note:
See also section 23 (anti-avoidance).
22
OTNs--no double counting
23
(6) If:
24
(a) the person was the holder of the liability transfer certificate
25
throughout the eligible financial year; and
26
(b) during the eligible financial year, an amount of greenhouse
27
gas emitted from the operation of the facility was attributable
28
to the combustion of eligible upstream fuel that was obtained
29
by way of the supply of the fuel to a person (the recipient)
30
(who may be the holder); and
31
Liable entities Part 3
Direct emitters of greenhouse gases Division 2
Section 19
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 49
(c) in a case where the person had operational control of the
1
facility--the recipient did not quote the recipient's OTN in
2
relation to the supply of the fuel;
3
the amount mentioned in paragraph (b):
4
(d) does not count for the purposes of subsection (1); and
5
(e) counts for the purposes of paragraph (4)(b).
6
(7) If:
7
(a) the person was the holder of the liability transfer certificate
8
for a number of, but not all, days in the eligible financial year
9
(the certificate days); and
10
(b) during the certificate days, an amount of greenhouse gas
11
emitted from the operation of the facility was attributable to
12
the combustion of eligible upstream fuel that was obtained by
13
way of the supply of the fuel to a person (the recipient) (who
14
may be the holder); and
15
(c) in a case where the person had operational control of the
16
facility--the recipient did not quote the recipient's OTN in
17
relation to the supply of the fuel;
18
the amount mentioned in paragraph (b):
19
(d) does not count for the purposes of subsection (1); and
20
(e) counts for the purposes of paragraph (5)(b).
21
Liquid petroleum fuel--no double counting
22
(8) If:
23
(a) the person was the holder of the liability transfer certificate
24
throughout the eligible financial year; and
25
(b) during the eligible financial year, an amount of greenhouse
26
gas emitted from the operation of the facility was attributable
27
to the combustion of liquid petroleum fuel; and
28
(c) the potential greenhouse gas emissions embodied in the fuel
29
were counted for the purposes of subsection 31(1) or 32(1);
30
the amount mentioned in paragraph (b):
31
(d) does not count for the purposes of subsection (1); and
32
(e) counts for the purposes of paragraph (4)(b).
33
(9) If:
34
Part 3 Liable entities
Division 2 Direct emitters of greenhouse gases
Section 20
50 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(a) the person was the holder of the liability transfer certificate
1
for a number of, but not all, days in the eligible financial year
2
(the certificate days); and
3
(b) during the certificate days, an amount of greenhouse gas
4
emitted from the operation of the facility was attributable to
5
the combustion of liquid petroleum fuel; and
6
(c) the potential greenhouse gas emissions embodied in the fuel
7
were counted for the purposes of subsection 31(1) or 32(1);
8
the amount mentioned in paragraph (b):
9
(d) does not count for the purposes of subsection (1); and
10
(e) counts for the purposes of paragraph (5)(b).
11
Subdivision B--Landfill facilities
12
20 Liable entity for landfill emissions--controlling corporation of a
13
group
14
Scope
15
(1) This section applies if:
16
(a) either:
17
(i) a landfill facility was under the operational control of
18
one or more members of a controlling corporation's
19
group throughout an eligible financial year; or
20
(ii) a landfill facility was under the operational control of
21
one or more members of a controlling corporation's
22
group for a number of, but not all, days in an eligible
23
financial year (the control days); and
24
(b) the total amount of greenhouse gases emitted from the
25
operation of the landfill facility:
26
(i) if subparagraph (a)(i) applies--during the eligible
27
financial year; or
28
(ii) if subparagraph (a)(ii) applies--during the control days;
29
has a carbon dioxide equivalence of a particular number of
30
tonnes.
31
Liable entities Part 3
Direct emitters of greenhouse gases Division 2
Section 20
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 51
Provisional emissions number
1
(2) For the purposes of this Act, that number is a provisional
2
emissions number of the controlling corporation for the eligible
3
financial year.
4
Liable entity
5
(3) For the purposes of this Act, the controlling corporation is a liable
6
entity for the eligible financial year.
7
Exemption--small facilities
8
(4) If:
9
(a) the landfill facility was under the operational control of one
10
or more members of the controlling corporation's group
11
throughout the eligible financial year; and
12
(b) during the eligible financial year, the number of tonnes of the
13
carbon dioxide equivalence of the total amount of greenhouse
14
gases emitted from the operation of the landfill facility is less
15
than the landfill facility's threshold number for the eligible
16
financial year;
17
so much of the total amount mentioned in paragraph (b) as would
18
otherwise count for the purposes of subsection (1) does not count
19
for the purposes of subsection (1).
20
Note 1:
For the landfill facility's threshold number, see subsection (13).
21
Note 2:
See also section 23 (anti-avoidance).
22
(5) If:
23
(a) the landfill facility was under the operational control of one
24
or more members of the controlling corporation's group for a
25
number of, but not all, days in the eligible financial year (the
26
control days); and
27
(b) during the control days, the number of tonnes of the carbon
28
dioxide equivalence of the total amount of greenhouse gases
29
emitted from the operation of the landfill facility is less than
30
the number worked out using the formula:
31
Part 3 Liable entities
Division 2 Direct emitters of greenhouse gases
Section 20
52 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Landfill facility's
Number of control days
threshold number for the
Number of days in the
eligible financial year
eligible financial year
1
so much of the total amount mentioned in paragraph (b) as would
2
otherwise count for the purposes of subsection (1) does not count
3
for the purposes of subsection (1).
4
Note 1:
For the landfill facility's threshold number, see subsection (13).
5
Note 2:
See also section 23 (anti-avoidance).
6
Exemption--closed landfill facilities
7
(6) If:
8
(a) the landfill facility has not accepted any waste during the
9
period beginning at the start of 1 July 2008 and ending at the
10
end of the last day of the eligible financial year; and
11
(b) during the eligible financial year, an amount of greenhouse
12
gases was emitted from the operation of the landfill facility;
13
the amount mentioned in paragraph (b), to the extent to which it is
14
attributable to solid waste, does not count for the purposes of
15
subsection (1).
16
Exemption--liability transfer certificate
17
(7) For the purposes of this section, if, throughout the whole or a part
18
of the eligible financial year, a person was the holder of a liability
19
transfer certificate in relation to the landfill facility, then the
20
landfill facility is taken not to have been under the operational
21
control of a member of the controlling corporation's group during
22
the whole or the part, as the case may be, of the eligible financial
23
year.
24
Exemption for emissions attributable to legacy waste
25
(8) If:
26
(a) during the eligible financial year, an amount of greenhouse
27
gases was emitted from the operation of the landfill facility;
28
and
29
Liable entities Part 3
Direct emitters of greenhouse gases Division 2
Section 20
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 53
(b) waste was accepted by the landfill facility before 1 July
1
2011;
2
so much of the amount mentioned in paragraph (a) as is, under the
3
regulations, taken to be attributable to waste accepted by the
4
facility before 1 July 2011:
5
(c) does not count for the purposes of subsection (1); and
6
(d) counts for the purposes of whichever of subsection (4) or (5)
7
is applicable to the landfill facility.
8
OTNs--no double counting
9
(9) If:
10
(a) the landfill facility was under the operational control of one
11
or more members of the controlling corporation's group
12
throughout the eligible financial year; and
13
(b) during the eligible financial year, an amount of greenhouse
14
gas emitted from the operation of the landfill facility was
15
attributable to the combustion of eligible upstream fuel that
16
was obtained by way of the supply of the fuel to a person
17
(who may be a member of the controlling corporation's
18
group); and
19
(c) in a case where the person had operational control of the
20
landfill facility--the person did not quote the person's OTN
21
in relation to the supply of the fuel;
22
the amount mentioned in paragraph (b):
23
(d) does not count for the purposes of subsection (1); and
24
(e) counts for the purposes of paragraph (4)(b).
25
(10) If:
26
(a) the landfill facility was under the operational control of one
27
or more members of the controlling corporation's group for a
28
number of, but not all, days in the eligible financial year (the
29
control days); and
30
(b) during the control days, an amount of greenhouse gas emitted
31
from the operation of the landfill facility was attributable to
32
the combustion of eligible upstream fuel that was obtained by
33
way of the supply of the fuel to a person (who may be a
34
member of the controlling corporation's group); and
35
Part 3 Liable entities
Division 2 Direct emitters of greenhouse gases
Section 20
54 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(c) in a case where the person had operational control of the
1
landfill facility--the person did not quote the person's OTN
2
in relation to the supply of the fuel;
3
the amount mentioned in paragraph (b):
4
(d) does not count for the purposes of subsection (1); and
5
(e) counts for the purposes of paragraph (5)(b).
6
Liquid petroleum fuel--no double counting
7
(11) If:
8
(a) the landfill facility was under the operational control of one
9
or more members of the controlling corporation's group
10
throughout the eligible financial year; and
11
(b) during the eligible financial year, an amount of greenhouse
12
gas emitted from the operation of the landfill facility was
13
attributable to the combustion of liquid petroleum fuel; and
14
(c) the potential greenhouse gas emissions embodied in the fuel
15
were counted for the purposes of subsection 31(1) or 32(1);
16
the amount mentioned in paragraph (b):
17
(d) does not count for the purposes of subsection (1); and
18
(e) counts for the purposes of paragraph (4)(b).
19
(12) If:
20
(a) the landfill facility was under the operational control of one
21
or more members of the controlling corporation's group for a
22
number of, but not all, days in the eligible financial year (the
23
control days); and
24
(b) during the control days, an amount of greenhouse gas emitted
25
from the operation of the landfill facility was attributable to
26
the combustion of liquid petroleum fuel; and
27
(c) the potential greenhouse gas emissions embodied in the fuel
28
were counted for the purposes of subsection 31(1) or 32(1);
29
the amount mentioned in paragraph (b):
30
(d) does not count for the purposes of subsection (1); and
31
(e) counts for the purposes of paragraph (5)(b).
32
Liable entities Part 3
Direct emitters of greenhouse gases Division 2
Section 21
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 55
Threshold number
1
(13) For the purposes of this section, the landfill facility's threshold
2
number for the eligible financial year is:
3
(a) in a case where:
4
(i) at any time during the eligible financial year, the landfill
5
facility is open for the acceptance of a prescribed class
6
of waste; and
7
(ii) at any time during the eligible financial year, the landfill
8
facility is within the prescribed distance of another
9
landfill facility that is open for the acceptance of the
10
same class of waste; and
11
(iii) the other landfill facility is a designated large landfill
12
facility in relation to the previous eligible financial year;
13
and
14
(iv) if a list has been published by the Authority during the
15
eligible financial year under regulations made for the
16
purposes of section 278G--the other landfill facility is
17
specified in the list;
18
10,000; or
19
(b) in any other case--25,000.
20
(14) For the purposes of subparagraph (13)(a)(ii), distance is to be
21
measured in accordance with the regulations.
22
(15) For the purposes of subparagraph (13)(a)(iii), assume that the
23
financial year beginning on 1 July 2010 is an eligible financial
24
year.
25
21 Liable entity for landfill emissions--non-group entity
26
Scope
27
(1) This section applies if:
28
(a) either:
29
(i) a landfill facility was under the operational control of a
30
non-group entity throughout an eligible financial year;
31
or
32
Part 3 Liable entities
Division 2 Direct emitters of greenhouse gases
Section 21
56 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(ii) a landfill facility was under the operational control of a
1
non-group entity for a number of, but not all, days in an
2
eligible financial year (the control days); and
3
(b) the total amount of greenhouse gases emitted from the
4
operation of the landfill facility:
5
(i) if subparagraph (a)(i) applies--during the eligible
6
financial year; or
7
(ii) if subparagraph (a)(ii) applies--during the control days;
8
has a carbon dioxide equivalence of a particular number of
9
tonnes.
10
Provisional emissions number
11
(2) For the purposes of this Act, that number is a provisional
12
emissions number of the non-group entity for the eligible financial
13
year.
14
Liable entity
15
(3) For the purposes of this Act, the non-group entity is a liable entity
16
for the eligible financial year.
17
Exemption--small facilities
18
(4) If:
19
(a) the landfill facility was under the operational control of the
20
non-group entity throughout the eligible financial year; and
21
(b) during the eligible financial year, the number of tonnes of the
22
carbon dioxide equivalence of the total amount of greenhouse
23
gases emitted from the operation of the landfill facility is less
24
than the landfill facility's threshold number for the eligible
25
financial year;
26
so much of the total amount mentioned in paragraph (b) as would
27
otherwise count for the purposes of subsection (1) does not count
28
for the purposes of subsection (1).
29
Note 1:
For the landfill facility's threshold number, see subsection (13).
30
Note 2:
See also section 23 (anti-avoidance).
31
(5) If:
32
Liable entities Part 3
Direct emitters of greenhouse gases Division 2
Section 21
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 57
(a) the landfill facility was under the operational control of the
1
non-group entity for a number of, but not all, days in the
2
eligible financial year (the control days); and
3
(b) during the control days, the number of tonnes of the carbon
4
dioxide equivalence of the total amount of greenhouse gases
5
emitted from the operation of the landfill facility is less than
6
the number worked out using the formula:
7
Landfill facility's
Number of control days
threshold number for the
Number of days in the
eligible financial year
eligible financial year
8
so much of the total amount mentioned in paragraph (b) as would
9
otherwise count for the purposes of subsection (1) does not count
10
for the purposes of subsection (1).
11
Note 1:
For the landfill facility's threshold number, see subsection (13).
12
Note 2:
See also section 23 (anti-avoidance).
13
Exemption--closed landfill facilities
14
(6) If:
15
(a) the landfill facility has not accepted any waste during the
16
period beginning at the start of 1 July 2008 and ending at the
17
end of the last day of the eligible financial year; and
18
(b) during the eligible financial year, an amount of greenhouse
19
gases was emitted from the operation of the landfill facility;
20
the amount mentioned in paragraph (b), to the extent to which it is
21
attributable to solid waste, does not count for the purposes of
22
subsection (1).
23
Exemption--liability transfer certificate
24
(7) For the purposes of this section, if, throughout the whole or a part
25
of the eligible financial year, a person was the holder of a liability
26
transfer certificate in relation to the landfill facility, then the
27
landfill facility is taken not to have been under the operational
28
control of the non-group entity during the whole or the part, as the
29
case may be, of the eligible financial year.
30
Part 3 Liable entities
Division 2 Direct emitters of greenhouse gases
Section 21
58 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Exemption for emissions attributable to legacy waste
1
(8) If:
2
(a) during the eligible financial year, an amount of greenhouse
3
gases was emitted from the operation of the landfill facility;
4
and
5
(b) waste was accepted by the landfill facility before 1 July
6
2011;
7
so much of the amount mentioned in paragraph (a) as is, under the
8
regulations, taken to be attributable to waste accepted by the
9
facility before 1 July 2011:
10
(c) does not count for the purposes of subsection (1); and
11
(d) counts for the purposes of whichever of subsection (4) or (5)
12
is applicable to the landfill facility.
13
OTNs--no double counting
14
(9) If:
15
(a) the landfill facility was under the operational control of the
16
non-group entity throughout the eligible financial year; and
17
(b) during the eligible financial year, an amount of greenhouse
18
gas emitted from the operation of the landfill facility was
19
attributable to the combustion of eligible upstream fuel that
20
was obtained by way of the supply of the fuel to a person
21
(who may be the non-group entity); and
22
(c) in a case where the person had operational control of the
23
landfill facility--the person did not quote the person's OTN
24
in relation to the supply of the fuel;
25
the amount mentioned in paragraph (b):
26
(d) does not count for the purposes of subsection (1); and
27
(e) counts for the purposes of paragraph (4)(b).
28
(10) If:
29
(a) the landfill facility was under the operational control of the
30
non-group entity for a number of, but not all, days in the
31
eligible financial year (the control days); and
32
(b) during the control days, an amount of greenhouse gas emitted
33
from the operation of the landfill facility was attributable to
34
the combustion of eligible upstream fuel that was obtained by
35
Liable entities Part 3
Direct emitters of greenhouse gases Division 2
Section 21
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 59
way of the supply of the fuel to a person (who may be the
1
non-group entity); and
2
(c) in a case where the person had operational control of the
3
landfill facility--the person did not quote the person's OTN
4
in relation to the supply of the fuel;
5
the amount mentioned in paragraph (b):
6
(d) does not count for the purposes of subsection (1); and
7
(e) counts for the purposes of paragraph (5)(b).
8
Liquid petroleum fuel--no double counting
9
(11) If:
10
(a) the landfill facility was under the operational control of the
11
non-group entity throughout the eligible financial year; and
12
(b) during the eligible financial year, an amount of greenhouse
13
gas emitted from the operation of the landfill facility was
14
attributable to the combustion of liquid petroleum fuel; and
15
(c) the potential greenhouse gas emissions embodied in the fuel
16
were counted for the purposes of subsection 31(1) or 32(1);
17
the amount mentioned in paragraph (b):
18
(d) does not count for the purposes of subsection (1); and
19
(e) counts for the purposes of paragraph (4)(b).
20
(12) If:
21
(a) the landfill facility was under the operational control of the
22
non-group entity for a number of, but not all, days in the
23
eligible financial year (the control days); and
24
(b) during the control days, an amount of greenhouse gas emitted
25
from the operation of the landfill facility was attributable to
26
the combustion of liquid petroleum fuel; and
27
(c) the potential greenhouse gas emissions embodied in the fuel
28
were counted for the purposes of subsection 31(1) or 32(1);
29
the amount mentioned in paragraph (b):
30
(d) does not count for the purposes of subsection (1); and
31
(e) counts for the purposes of paragraph (5)(b).
32
Part 3 Liable entities
Division 2 Direct emitters of greenhouse gases
Section 22
60 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Threshold number
1
(13) For the purposes of this section, the landfill facility's threshold
2
number for the eligible financial year is:
3
(a) in a case where:
4
(i) at any time during the eligible financial year, the landfill
5
facility is open for the acceptance of a prescribed class
6
of waste; and
7
(ii) at any time during the eligible financial year, the landfill
8
facility is within the prescribed distance of another
9
landfill facility that is open for the acceptance of the
10
same class of waste; and
11
(iii) the other landfill facility is a designated large landfill
12
facility in relation to the previous eligible financial year;
13
and
14
(iv) if a list has been published by the Authority during the
15
eligible financial year under regulations made for the
16
purposes of section 278G--the other landfill facility is
17
specified in the list;
18
10,000; or
19
(b) in any other case--25,000.
20
(14) For the purposes of subparagraph (13)(a)(ii), distance is to be
21
measured in accordance with the regulations.
22
(15) For the purposes of subparagraph (13)(a)(iii), assume that the
23
financial year beginning on 1 July 2010 is an eligible financial
24
year.
25
22 Liable entity for landfill emissions--holder of a liability transfer
26
certificate
27
Scope
28
(1) This section applies if:
29
(a) either:
30
(i) a person was the holder of a liability transfer certificate
31
in relation to a landfill facility throughout an eligible
32
financial year; or
33
Liable entities Part 3
Direct emitters of greenhouse gases Division 2
Section 22
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 61
(ii) a person was the holder of a liability transfer certificate
1
in relation to a landfill facility for a number of, but not
2
all, days in an eligible financial year (the certificate
3
days); and
4
(b) the total amount of greenhouse gases emitted from the
5
operation of the landfill facility:
6
(i) if subparagraph (a)(i) applies--during the eligible
7
financial year; or
8
(ii) if subparagraph (a)(ii) applies--during the certificate
9
days;
10
has a carbon dioxide equivalence of a particular number of
11
tonnes.
12
Provisional emissions number
13
(2) For the purposes of this Act, that number is a provisional
14
emissions number of the person for the eligible financial year.
15
Liable entity
16
(3) For the purposes of this Act, the person is a liable entity for the
17
eligible financial year.
18
Exemption--small facility
19
(4) If:
20
(a) the person was the holder of the liability transfer certificate
21
throughout the eligible financial year; and
22
(b) during the eligible financial year, the number of tonnes of the
23
carbon dioxide equivalence of the total amount of greenhouse
24
gases emitted from the operation of the landfill facility is less
25
than the landfill facility's threshold number for the eligible
26
financial year;
27
so much of the total amount mentioned in paragraph (b) as would
28
otherwise count for the purposes of subsection (1) does not count
29
for the purposes of subsection (1).
30
Note 1:
For the landfill facility's threshold number, see subsection (12).
31
Note 2:
See also section 23 (anti-avoidance).
32
(5) If:
33
Part 3 Liable entities
Division 2 Direct emitters of greenhouse gases
Section 22
62 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(a) the person was the holder of the liability transfer certificate
1
for a number of, but not all, days in the eligible financial year
2
(the certificate days); and
3
(b) during the control days, the number of tonnes of the carbon
4
dioxide equivalence of the total amount of greenhouse gases
5
emitted from the operation of the landfill facility is less than
6
the number worked out using the formula:
7
Landfill facility's
Number of certificate days
threshold number for the
Number of days in the
eligible financial year
eligible financial year
8
so much of the total amount mentioned in paragraph (b) as would
9
otherwise count for the purposes of subsection (1) does not count
10
for the purposes of subsection (1).
11
Note 1:
For the landfill facility's threshold number, see subsection (12).
12
Note 2:
See also section 23 (anti-avoidance).
13
Exemption--closed landfill facilities
14
(6) If:
15
(a) the landfill facility has not accepted any waste during the
16
period beginning at the start of 1 July 2008 and ending at the
17
end of the last day of the eligible financial year; and
18
(b) during the eligible financial year, an amount of greenhouse
19
gases was emitted from the operation of the landfill facility;
20
the amount mentioned in paragraph (b), to the extent to which it is
21
attributable to solid waste, does not count for the purposes of
22
subsection (1).
23
Exemption for emissions attributable to legacy waste
24
(7) If:
25
(a) during the eligible financial year, an amount of greenhouse
26
gases was emitted from the operation of the landfill facility;
27
and
28
(b) waste was accepted by the landfill facility before 1 July
29
2011;
30
Liable entities Part 3
Direct emitters of greenhouse gases Division 2
Section 22
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 63
so much of the amount mentioned in paragraph (a) as is, under the
1
regulations, taken to be attributable to waste accepted by the
2
facility before 1 July 2011:
3
(c) does not count for the purposes of subsection (1); and
4
(d) counts for the purposes of whichever of subsection (4) or (5)
5
is applicable to the landfill facility.
6
OTNs--no double counting
7
(8) If:
8
(a) the person was the holder of the liability transfer certificate
9
throughout the eligible financial year; and
10
(b) during the eligible financial year, an amount of greenhouse
11
gas emitted from the operation of the landfill facility was
12
attributable to the combustion of eligible upstream fuel that
13
was obtained by way of the supply of the fuel to a person (the
14
recipient) (who may be the holder); and
15
(c) in a case where the person had operational control of the
16
landfill facility--the recipient did not quote the recipient's
17
OTN in relation to the supply of the fuel;
18
the amount mentioned in paragraph (b):
19
(d) does not count for the purposes of subsection (1); and
20
(e) counts for the purposes of paragraph (4)(b).
21
(9) If:
22
(a) the person was the holder of the liability transfer certificate
23
for a number of, but not all, days in the eligible financial year
24
(the certificate days); and
25
(b) during the certificate days, an amount of greenhouse gas
26
emitted from the operation of the landfill facility was
27
attributable to the combustion of eligible upstream fuel that
28
was obtained by way of the supply of the fuel to a person (the
29
recipient) (who may be the holder); and
30
(c) in a case where the person had operational control of the
31
landfill facility--the recipient did not quote the recipient's
32
OTN in relation to the supply of the fuel;
33
the amount mentioned in paragraph (b):
34
(d) does not count for the purposes of subsection (1); and
35
Part 3 Liable entities
Division 2 Direct emitters of greenhouse gases
Section 22
64 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(e) counts for the purposes of paragraph (5)(b).
1
Liquid petroleum fuel--no double counting
2
(10) If:
3
(a) the person was the holder of the liability transfer certificate
4
throughout the eligible financial year; and
5
(b) during the eligible financial year, an amount of greenhouse
6
gas emitted from the operation of the landfill facility was
7
attributable to the combustion of liquid petroleum fuel; and
8
(c) the potential greenhouse gas emissions embodied in the fuel
9
were counted for the purposes of subsection 31(1) or 32(1);
10
the amount mentioned in paragraph (b):
11
(d) does not count for the purposes of subsection (1); and
12
(e) counts for the purposes of paragraph (4)(b).
13
(11) If:
14
(a) the person was the holder of the liability transfer certificate
15
for a number of, but not all, days in the eligible financial year
16
(the certificate days); and
17
(b) during the certificate days, an amount of greenhouse gas
18
emitted from the operation of the landfill facility was
19
attributable to the combustion of liquid petroleum fuel; and
20
(c) the potential greenhouse gas emissions embodied in the fuel
21
were counted for the purposes of subsection 31(1) or 32(1);
22
the amount mentioned in paragraph (b):
23
(d) does not count for the purposes of subsection (1); and
24
(e) counts for the purposes of paragraph (5)(b).
25
Threshold number
26
(12) For the purposes of this section, the landfill facility's threshold
27
number for the eligible financial year is:
28
(a) in a case where:
29
(i) at any time during the eligible financial year, the landfill
30
facility is open for the acceptance of a prescribed class
31
of waste; and
32
Liable entities Part 3
Direct emitters of greenhouse gases Division 2
Section 22A
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 65
(ii) at any time during the eligible financial year, the landfill
1
facility is within the prescribed distance of another
2
landfill facility that is open for the acceptance of the
3
same class of waste; and
4
(iii) the other landfill facility is a designated large landfill
5
facility in relation to the previous eligible financial year;
6
and
7
(iv) if a list has been published by the Authority during the
8
eligible financial year under regulations made for the
9
purposes of section 278G--the other landfill facility is
10
specified in the list;
11
10,000; or
12
(b) in any other case--25,000.
13
(13) For the purposes of subparagraph (12)(a)(ii), distance is to be
14
measured in accordance with the regulations.
15
(14) For the purposes of subparagraph (12)(a)(iii), assume that the
16
financial year beginning on 1 July 2010 is an eligible financial
17
year.
18
Subdivision BA--Adjustment of provisional emissions number
19
in relation to a facility in the Joint Petroleum
20
Development Area or the Greater Sunrise unit area
21
22A Joint Petroleum Development Area--adjustment of provisional
22
emissions number
23
Scope
24
(1) This section applies if there is a provisional emissions number of a
25
person for an eligible financial year in relation to greenhouse gases
26
emitted from the operation of a facility that is:
27
(a) located in the Joint Petroleum Development Area; and
28
(b) not located in the Greater Sunrise unit area;
29
during a period that is included in, or consists of, the eligible
30
financial year.
31
Part 3 Liable entities
Division 2 Direct emitters of greenhouse gases
Section 22B
66 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Adjustment
1
(2) For the purposes of this Act, that provisional emissions number is
2
taken to be the number worked out using the formula:
3
Prescribed percentage
Unadjusted provisional emissions number
4
where:
5
prescribed percentage means the percentage (not exceeding 100%)
6
specified in the regulations in relation to the facility for the eligible
7
financial year.
8
unadjusted provisional emissions number means the number that,
9
apart from this subsection, would be the provisional emissions
10
number of the person for the eligible financial year in relation to
11
greenhouse gases emitted from the operation of the facility during
12
the period.
13
22B Joint Petroleum Development Area-Greater Sunrise unit
14
area--adjustment of provisional emissions number
15
Scope
16
(1) This section applies if there is a provisional emissions number of a
17
person for an eligible financial year in relation to greenhouse gases
18
emitted from the operation of a facility that is located in both of the
19
following areas:
20
(a) the Joint Petroleum Development Area;
21
(b) the Greater Sunrise unit area;
22
during a period that is included in, or consists of, the eligible
23
financial year.
24
Adjustment
25
(2) For the purposes of this Act, that provisional emissions number is
26
taken to be the number worked out using the formula:
27
Prescribed percentage
Unadjusted provisional emissions number
28
where:
29
Liable entities Part 3
Direct emitters of greenhouse gases Division 2
Section 22C
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 67
prescribed percentage means the percentage (not exceeding 100%)
1
specified in the regulations in relation to the facility for the eligible
2
financial year.
3
unadjusted provisional emissions number means the number that,
4
apart from this subsection, would be the provisional emissions
5
number of the person for the eligible financial year in relation to
6
greenhouse gases emitted from the operation of the facility during
7
the period.
8
22C Greater Sunrise unit area--adjustment of provisional emissions
9
number
10
Scope
11
(1) This section applies if there is a provisional emissions number of a
12
person for an eligible financial year in relation to greenhouse gases
13
emitted from the operation of a facility that is:
14
(a) located in the Greater Sunrise unit area; and
15
(b) not located in the Joint Petroleum Development Area;
16
during a period that is included in, or consists of, the eligible
17
financial year.
18
Adjustment
19
(2) For the purposes of this Act, that provisional emissions number is
20
taken to be the number worked out using the formula:
21
Prescribed percentage
Unadjusted provisional emissions number
22
where:
23
prescribed percentage means the percentage (not exceeding 100%)
24
specified in the regulations in relation to the facility for the eligible
25
financial year.
26
unadjusted provisional emissions number means the number that,
27
apart from this subsection, would be the provisional emissions
28
number of the person for the eligible financial year in relation to
29
greenhouse gases emitted from the operation of the facility during
30
the period.
31
Part 3 Liable entities
Division 2 Direct emitters of greenhouse gases
Section 23
68 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Subdivision C--Anti-avoidance
1
23 Anti-avoidance
2
Scope
3
(1) This section applies if:
4
(a) at any time after 15 December 2008, one or more persons
5
entered into, commenced to carry out, or carried out, a
6
scheme; and
7
(b) it would be concluded that the person, or any of the persons,
8
who entered into, commenced to carry out, or carried out, the
9
scheme did so for the purpose, or for purposes that included
10
the substantial purpose, of:
11
(i) enabling the controlling corporation of a group to obtain
12
the benefit of one or more threshold provisions in
13
relation to a facility for an eligible financial year; or
14
(ii) enabling a non-group entity to obtain the benefit of one
15
or more threshold provisions in relation to a facility for
16
an eligible financial year; or
17
(iii) enabling the holder of a liability transfer certificate to
18
obtain the benefit of one or more threshold provisions in
19
relation to a facility for an eligible financial year.
20
For this purpose, it is immaterial whether the controlling
21
corporation, non-group entity or the holder of the certificate, as the
22
case may be, is the person, or one of the persons, referred to in
23
paragraph (a).
24
Cancellation of benefit of threshold provision
25
(2) The Authority may, by writing, determine that this Act has, and is
26
taken always to have had, effect, as if the controlling corporation,
27
the non-group entity or the holder of the certificate, as the case
28
may be, were not entitled to obtain the benefit of the relevant
29
threshold provision or provisions in relation to the facility for that
30
eligible financial year.
31
Liable entities Part 3
Direct emitters of greenhouse gases Division 2
Section 24
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 69
(3) If the Authority makes a determination under subsection (2), the
1
Authority must publish a copy of the determination on the
2
Authority's website.
3
Threshold provision
4
(4) For the purposes of this section, each of the following is a
5
threshold provision:
6
(a) subsection 17(4);
7
(b) subsection 17(5);
8
(c) subsection 18(4);
9
(d) subsection 18(5);
10
(e) subsection 19(4);
11
(f) subsection 19(5);
12
(g) subsection 20(4);
13
(h) subsection 20(5);
14
(i) subsection 21(4);
15
(j) subsection 21(5);
16
(k) subsection 22(4);
17
(l) subsection 22(5).
18
Subdivision D--Greenhouse gas emitted from the operation of
19
a facility
20
24 Greenhouse gas emitted from the operation of a facility
21
For the purposes of this Act, an emission of greenhouse gas from
22
the operation of a facility is a scope 1 emission of greenhouse gas,
23
where:
24
(a) the greenhouse gas is released into the atmosphere as a direct
25
result of the operation of the facility; and
26
(b) regulations made for the purposes of paragraph 10(2A)(a) of
27
the National Greenhouse and Energy Reporting Act 2007
28
declare that the emission is a scope 1 emission covered by the
29
carbon pollution reduction scheme.
30
Part 3 Liable entities
Division 2 Direct emitters of greenhouse gases
Section 25
70 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
25 Measurement of greenhouse gas emitted from the operation of a
1
facility
2
For the purposes of this Act, greenhouse gas emitted from the
3
operation of a facility is to be measured using:
4
(a) methods determined under subsection 10(3) of the National
5
Greenhouse and Energy Reporting Act 2007; or
6
(b) methods which meet criteria determined under that
7
subsection;
8
where the use of those methods satisfies any conditions specified in
9
the determination under that subsection.
10
11
Liable entities Part 3
Importers, manufacturers and suppliers of synthetic greenhouse gases Division 3
Section 26
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 71
Division 3--Importers, manufacturers and suppliers of
1
synthetic greenhouse gases
2
26 Liable entity--import of synthetic greenhouse gas
3
Scope
4
(1) This section applies if, during an eligible financial year, the total
5
amount of synthetic greenhouse gases imported by a person has a
6
carbon dioxide equivalence of a particular number of tonnes.
7
Provisional emissions number
8
(2) For the purposes of this Act, that number, reduced by the total of
9
any netted-out numbers of the person for the eligible financial year,
10
is a provisional emissions number of the person for the eligible
11
financial year.
12
Note:
For netted-out numbers, see subsections (7) and (9).
13
Liable entity
14
(3) For the purposes of this Act, the person is a liable entity for the
15
eligible financial year.
16
Exemption--small importers
17
(4) If, during the eligible financial year, the total amount of synthetic
18
greenhouse gases imported by the person has a carbon dioxide
19
equivalence of less than 25,000 tonnes, the total amount does not
20
count for the purposes of subsection (1).
21
Note:
See also section 30 (anti-avoidance).
22
Synthetic greenhouse gases in manufactured products
23
(5) For the purposes of this section, disregard a synthetic greenhouse
24
gas if the gas is in a manufactured product that consists in part of
25
that gas only because the gas was used in the manufacturing
26
process.
27
Note:
For example, this subsection would apply to a gas that remained in a
28
foam product after the gas was used in the production of the foam.
29
Part 3 Liable entities
Division 3 Importers, manufacturers and suppliers of synthetic greenhouse gases
Section 26
72 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Synthetic greenhouse gas for use on board ships or aircraft
1
(6) For the purposes of this section, disregard the import of a synthetic
2
greenhouse gas if:
3
(a) the synthetic greenhouse gas is on board a ship or aircraft;
4
and
5
(b) the ship or aircraft has air-conditioning or refrigeration
6
equipment; and
7
(c) the synthetic greenhouse gas is exclusively for use in meeting
8
the reasonable servicing requirements of that equipment
9
during, or in connection with, one or more periods when the
10
ship or aircraft is or will be engaged in a journey between:
11
(i) a place in Australia and a place outside Australia; or
12
(ii) 2 places outside Australia.
13
Netted-out numbers
14
(7) For the purposes of this section, if:
15
(a) during an eligible financial year, the total amount of a
16
particular type of synthetic greenhouse gas imported by the
17
person has a carbon dioxide equivalence of a particular
18
number of tonnes (the import number); and
19
(b) during the eligible financial year, the total amount of the
20
same type of synthetic greenhouse gas exported by the person
21
has a carbon dioxide equivalence of a particular number of
22
tonnes (the export number);
23
the person's netted-out number for that type of synthetic
24
greenhouse gas for the eligible financial year is:
25
(c) if the import number exceeds the export number--the export
26
number; or
27
(d) otherwise--the import number.
28
(8) Paragraph (7)(b) does not apply to synthetic greenhouse gas
29
exported by the person if the synthetic greenhouse gas was
30
supplied in Australia to the person.
31
(9) For the purposes of this section, if:
32
(a) during the eligible financial year, the person supplies an
33
amount of synthetic greenhouse gas to another person; and
34
Liable entities Part 3
Importers, manufacturers and suppliers of synthetic greenhouse gases Division 3
Section 27
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 73
(b) the other person quoted the other person's OTN in relation to
1
the supply; and
2
(c) that amount has a carbon dioxide equivalence of a particular
3
number of tonnes;
4
that number is the person's netted-out number for that supply for
5
the eligible financial year.
6
27 Liable entity--manufacture of synthetic greenhouse gas
7
Scope
8
(1) This section applies if, during an eligible financial year, the total
9
amount of synthetic greenhouse gases manufactured by a person
10
has a carbon dioxide equivalence of a particular number of tonnes.
11
Provisional emissions number
12
(2) For the purposes of this Act, that number, reduced by the total of
13
any netted-out numbers of the person for the eligible financial year,
14
is a provisional emissions number of the person for the eligible
15
financial year.
16
Note:
For netted-out numbers, see subsections (7) and (8).
17
Liable entity
18
(3) For the purposes of this Act, the person is a liable entity for the
19
eligible financial year.
20
Exemption--small manufacturers
21
(4) If, during the eligible financial year, the total amount of synthetic
22
greenhouse gases manufactured by the person has a carbon dioxide
23
equivalence of less than 25,000 tonnes, the total amount does not
24
count for the purposes of subsection (1).
25
Note:
See also section 30 (anti-avoidance).
26
Recycling of synthetic greenhouse gas
27
(5) For the purposes of this section, disregard a process by which a
28
quantity of synthetic greenhouse gas is produced by the recycling
29
Part 3 Liable entities
Division 3 Importers, manufacturers and suppliers of synthetic greenhouse gases
Section 27
74 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
of substances containing synthetic greenhouse gases of that
1
quantity.
2
(6) For the purposes of this section, if a process for the manufacture of
3
a quantity of synthetic greenhouse gas involves, in part, the
4
recycling of substances containing synthetic greenhouse gas of a
5
lesser quantity, the quantity of synthetic greenhouse gas
6
manufactured in the process is taken to be reduced by the quantity
7
of synthetic greenhouse gas in the substances recycled in the
8
process.
9
Netted-out numbers
10
(7) For the purposes of this section, if:
11
(a) during an eligible financial year, the total amount of a
12
particular type of synthetic greenhouse gas manufactured by
13
the person has a carbon dioxide equivalence of a particular
14
number of tonnes (the manufacture number); and
15
(b) during the eligible financial year, the total amount of the
16
same type of synthetic greenhouse gas exported by the person
17
has a carbon dioxide equivalence of a particular number of
18
tonnes (the export number);
19
the person's netted-out number for that type of synthetic
20
greenhouse gas for the eligible financial year is:
21
(c) if the manufacture number exceeds the export number--the
22
export number; or
23
(d) otherwise--the manufacture number.
24
(8) For the purposes of this section, if:
25
(a) during the eligible financial year, the person supplies an
26
amount of synthetic greenhouse gas to another person; and
27
(b) the other person quoted the other person's OTN in relation to
28
the supply; and
29
(c) that amount has a carbon dioxide equivalence of a particular
30
number of tonnes;
31
that number is the person's netted-out number for that supply for
32
the eligible financial year.
33
Liable entities Part 3
Importers, manufacturers and suppliers of synthetic greenhouse gases Division 3
Section 28
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 75
28 Liable entity--re-supply of synthetic greenhouse gas to recipient
1
who does not quote an OTN
2
Scope
3
(1) This section applies if:
4
(a) during an eligible financial year, a person supplies an amount
5
of synthetic greenhouse gas to another person (the OTN
6
holder) who quotes the other person's OTN in relation to the
7
supply; and
8
(b) during that or a later eligible financial year, the OTN holder
9
re-supplies the whole or a part of that amount to a third
10
person; and
11
(c) the third person does not quote the third person's OTN in
12
relation to the re-supply; and
13
(d) the re-supplied amount has a carbon dioxide equivalence of a
14
particular number of tonnes.
15
Provisional emissions number
16
(2) For the purposes of this Act, that number is a provisional
17
emissions number of the OTN holder for the eligible financial year
18
in which the re-supply occurred.
19
Liable entity
20
(3) For the purposes of this Act, the OTN holder is a liable entity for
21
the eligible financial year in which the re-supply occurred.
22
29 Liable entity--supply of synthetic greenhouse gas to a person
23
who misuses the person's OTN
24
Scope
25
(1) This section applies if:
26
(a) during an eligible financial year, a person supplies an amount
27
of synthetic greenhouse gas to another person (the OTN
28
holder) who quotes the other person's OTN in relation to the
29
supply; and
30
Part 3 Liable entities
Division 3 Importers, manufacturers and suppliers of synthetic greenhouse gases
Section 30
76 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(b) the OTN holder was not required or permitted by this Act to
1
quote the OTN holder's OTN; and
2
(c) the supplied amount has a carbon dioxide equivalence of a
3
particular number of tonnes.
4
Provisional emissions number
5
(2) For the purposes of this Act, that number is a provisional
6
emissions number of the OTN holder for the eligible financial
7
year.
8
Liable entity
9
(3) For the purposes of this Act, the OTN holder is a liable entity for
10
the eligible financial year.
11
30 Anti-avoidance
12
Scope
13
(1) This section applies if:
14
(a) at any time after 15 December 2008, one or more persons
15
entered into, commenced to carry out, or carried out, a
16
scheme; and
17
(b) it would be concluded that the person, or any of the persons,
18
who entered into, commenced to carry out, or carried out, the
19
scheme did so for the purpose, or for purposes that included
20
the substantial purpose, of:
21
(i) enabling the importer of one or more synthetic
22
greenhouse gases to obtain the benefit of subsection
23
26(4) for an eligible financial year; or
24
(ii) enabling a manufacturer of one or more synthetic
25
greenhouse gases to obtain the benefit of subsection
26
27(4) for an eligible financial year.
27
For this purpose, it is immaterial whether the importer or
28
manufacturer, as the case may be, is the person, or one of the
29
persons, referred to in paragraph (a).
30
Liable entities Part 3
Importers, manufacturers and suppliers of synthetic greenhouse gases Division 3
Section 30
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 77
Cancellation of benefit of threshold provision
1
(2) The Authority may, by writing, determine that this Act has, and is
2
taken always to have had, effect, as if the importer or
3
manufacturer, as the case may be, were not entitled to obtain the
4
benefit of subsection 26(4) or 27(4), as the case may be, for that
5
eligible financial year.
6
(3) If the Authority makes a determination under subsection (2), the
7
Authority must publish a copy of the determination on the
8
Authority's website.
9
10
Part 3 Liable entities
Division 4 Importers, producers and suppliers of eligible upstream fuels
Section 31
78 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Division 4--Importers, producers and suppliers of eligible
1
upstream fuels
2
31 Liable entity--import of liquid petroleum fuel
3
Scope
4
(1) This section applies if:
5
(a) an amount of liquid petroleum fuel is entered for home
6
consumption during an eligible financial year; and
7
(b) import duty is or was payable by a person on that amount;
8
and
9
(c) the potential greenhouse gas emissions embodied in that
10
amount has a carbon dioxide equivalence of a particular
11
number of tonnes.
12
Provisional emissions number
13
(2) For the purposes of this Act, that number, reduced (but not below
14
zero) by the total of any netted-out numbers of the person for the
15
eligible financial year, is a provisional emissions number of the
16
person for the eligible financial year.
17
Note:
For netted-out numbers, see subsection (4).
18
Liable entity
19
(3) For the purposes of this Act, the person is a liable entity for the
20
eligible financial year.
21
Netted-out numbers
22
(4) If:
23
(a) during the eligible financial year, the person supplies an
24
amount of liquid petroleum fuel to another person (the OTN
25
holder) who quotes the other person's OTN in relation to the
26
supply; and
27
(b) the potential greenhouse gas emissions embodied in the
28
supplied amount have a carbon dioxide equivalence of a
29
particular number of tonnes;
30
Liable entities Part 3
Importers, producers and suppliers of eligible upstream fuels Division 4
Section 32
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 79
the number is a netted-out number of the person for the eligible
1
financial year.
2
Import duty
3
(5) For the purposes of this section, in determining whether import
4
duty is or was payable on an amount of liquid petroleum fuel,
5
disregard:
6
(a) any remission, rebate or refund under section 163 of the
7
Customs Act 1901; or
8
(b) any drawback under regulations made for the purposes of
9
subsection 168(1) of the Customs Act 1901;
10
unless the remission, rebate, refund or drawback is prescribed by
11
regulations made for the purposes of this subsection.
12
32 Liable entity--production of liquid petroleum fuel
13
Scope
14
(1) This section applies if:
15
(a) an amount of liquid petroleum fuel is manufactured or
16
produced in Australia during an eligible financial year; and
17
(b) excise duty is or was payable by a person on that amount;
18
and
19
(c) the potential greenhouse gas emissions embodied in that
20
amount has a carbon dioxide equivalence of a particular
21
number of tonnes.
22
Provisional emissions number
23
(2) For the purposes of this Act, that number, reduced (but not below
24
zero) by the total of any netted-out numbers of the person for the
25
eligible financial year, is a provisional emissions number of the
26
person for the eligible financial year.
27
Note:
For netted-out numbers, see subsection (4).
28
Liable entity
29
(3) For the purposes of this Act, the person is a liable entity for the
30
eligible financial year.
31
Part 3 Liable entities
Division 4 Importers, producers and suppliers of eligible upstream fuels
Section 33
80 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Netted-out numbers
1
(4) If:
2
(a) during the eligible financial year, the person supplies an
3
amount of liquid petroleum fuel to another person (the OTN
4
holder) who quotes the other person's OTN in relation to the
5
supply; and
6
(b) the potential greenhouse gas emissions embodied in the
7
supplied amount have a carbon dioxide equivalence of a
8
particular number of tonnes;
9
the number is a netted-out number of the person for the eligible
10
financial year.
11
Excise duty
12
(5) For the purposes of this section, in determining whether excise
13
duty is or was payable on an amount of liquid petroleum fuel,
14
disregard:
15
(a) any remission, rebate or refund under section 78 of the Excise
16
Act 1901; or
17
(b) any drawback under regulations made for the purposes of
18
section 79 of the Excise Act 1901;
19
unless the remission, rebate, refund or drawback is prescribed by
20
regulations made for the purposes of this subsection.
21
33 Liable entity--supply of untransformed eligible upstream fuel
22
(other than liquid petroleum fuel)
23
Scope
24
(1) This section applies if:
25
(a) during an eligible financial year, a person (the supplier)
26
supplies an amount of eligible upstream fuel to another
27
person; and
28
(b) the fuel is not the result of the carrying out by the supplier of
29
the recognised transformation of another type of eligible
30
upstream fuel; and
31
(c) the fuel is not liquid petroleum fuel; and
32
Liable entities Part 3
Importers, producers and suppliers of eligible upstream fuels Division 4
Section 33
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 81
(d) if the fuel is imported--the supply is the first supply of the
1
fuel after the fuel was entered for home consumption; and
2
(e) if the fuel is not imported--the fuel was not supplied in
3
Australia to the supplier; and
4
(f) the other person did not quote the other person's OTN in
5
relation to the supply mentioned in paragraph (a); and
6
(fa) the supply mentioned in paragraph (a) was not into a
7
prescribed wholesale gas market; and
8
(g) the potential greenhouse gas emissions embodied in the
9
amount mentioned in paragraph (a) have a carbon dioxide
10
equivalence of a particular number of tonnes.
11
Provisional emissions number
12
(2) For the purposes of this Act, that number, reduced (but not below
13
zero) by the total of any netted-out numbers of the supplier for the
14
eligible financial year, is a provisional emissions number of the
15
supplier for the eligible financial year.
16
Note:
For netted-out numbers, see subsection (4).
17
Liable entity
18
(3) For the purposes of this Act, the supplier is a liable entity for the
19
eligible financial year.
20
Netted-out numbers
21
(4) For the purposes of this section, if:
22
(a) during the eligible financial year, the supplier supplied an
23
amount of eligible upstream fuel to another person (the
24
recipient); and
25
(b) after the supply, the recipient exported the fuel; and
26
(c) the fuel has been entered for export (within the meaning of
27
section 113 of the Customs Act 1901); and
28
(d) the supplier has prescribed documentary evidence to show
29
that the fuel was exported; and
30
(e) the potential greenhouse gas emissions embodied in the
31
amount mentioned in paragraph (a) have a carbon dioxide
32
equivalence of a particular number of tonnes;
33
Part 3 Liable entities
Division 4 Importers, producers and suppliers of eligible upstream fuels
Section 33A
82 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
that number is a netted-out number of the supplier for the eligible
1
financial year.
2
33A Liable entity--re-supply of natural gas previously supplied out
3
of a prescribed wholesale gas market
4
Scope
5
(1) This section applies if:
6
(a) during an eligible financial year, a person (the supplier)
7
re-supplies an amount of natural gas to another person; and
8
(b) the gas was supplied to the supplier out of a prescribed
9
wholesale gas market; and
10
(c) the re-supply was not into a prescribed wholesale gas market;
11
and
12
(d) the other person did not quote the other person's OTN in
13
relation to the re-supply; and
14
(e) the potential greenhouse gas emissions embodied in the
15
amount mentioned in paragraph (a) have a carbon dioxide
16
equivalence of a particular number of tonnes.
17
Provisional emissions number
18
(2) For the purposes of this Act, that number is a provisional
19
emissions number of the supplier for the eligible financial year.
20
Liable entity
21
(3) For the purposes of this Act, the supplier is a liable entity for the
22
eligible financial year.
23
34 Liable entity--application to own use of untransformed eligible
24
upstream fuel (other than liquid petroleum fuel)
25
Scope
26
(1) This section applies if:
27
(a) during an eligible financial year, a person applies an amount
28
of eligible upstream fuel to the person's own use; and
29
Liable entities Part 3
Importers, producers and suppliers of eligible upstream fuels Division 4
Section 35
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 83
(b) greenhouse gas was released into the atmosphere as a result
1
of the application to own use; and
2
(c) the fuel is not the result of the carrying out by the person of
3
the recognised transformation of another type of eligible
4
upstream fuel; and
5
(d) the fuel is not liquid petroleum fuel; and
6
(e) if the fuel is imported:
7
(i) the application to own use occurred after the fuel was
8
entered for home consumption; and
9
(ii) no supply of the fuel occurred after the fuel was entered
10
for home consumption; and
11
(f) if the fuel is not imported:
12
(i) the fuel was not supplied in Australia to the person; or
13
(ii) the fuel was supplied to the person out of a prescribed
14
wholesale gas market; and
15
(g) the greenhouse gas mentioned in paragraph (b) does not
16
count for the purposes of subsection 17(1), 18(1), 19(1),
17
20(1), 21(1) or 22(1); and
18
(h) the potential greenhouse gas emissions embodied in the
19
amount mentioned in paragraph (a) have a carbon dioxide
20
equivalence of a particular number of tonnes.
21
Provisional emissions number
22
(2) For the purposes of this Act, that number is a provisional
23
emissions number of the person for the eligible financial year.
24
Liable entity
25
(3) For the purposes of this Act, the person is a liable entity for the
26
eligible financial year.
27
35 Liable entity--supply of transformed eligible upstream fuel
28
Scope
29
(1) This section applies if:
30
Part 3 Liable entities
Division 4 Importers, producers and suppliers of eligible upstream fuels
Section 35
84 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(a) during an eligible financial year, a person (the supplier)
1
supplies an amount of eligible upstream fuel to another
2
person; and
3
(b) the fuel is the result of the carrying out by the supplier of the
4
recognised transformation of another type of eligible
5
upstream fuel; and
6
(c) the other person did not quote the other person's OTN in
7
relation to the supply mentioned in paragraph (a); and
8
(d) the potential greenhouse gas emissions embodied in the
9
amount mentioned in paragraph (a) have a carbon dioxide
10
equivalence of a particular number of tonnes.
11
Provisional emissions number
12
(2) For the purposes of this Act, that number, reduced (but not below
13
zero) by the total of any netted-out numbers of the supplier for the
14
eligible financial year, is a provisional emissions number of the
15
supplier for the eligible financial year.
16
Note:
For netted-out numbers, see subsection (4).
17
Liable entity
18
(3) For the purposes of this Act, the supplier is a liable entity for the
19
eligible financial year.
20
Netted-out numbers
21
(4) For the purposes of this section, if:
22
(a) during the eligible financial year, the supplier supplied an
23
amount of eligible upstream fuel to another person (the
24
recipient); and
25
(b) after the supply, the recipient exported the fuel; and
26
(c) the fuel has been entered for export (within the meaning of
27
section 113 of the Customs Act 1901); and
28
(d) the supplier has prescribed documentary evidence to show
29
that the fuel was exported; and
30
(e) the potential greenhouse gas emissions embodied in the
31
amount mentioned in paragraph (a) have a carbon dioxide
32
equivalence of a particular number of tonnes;
33
Liable entities Part 3
Importers, producers and suppliers of eligible upstream fuels Division 4
Section 36
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 85
that number is a netted-out number of the supplier for the eligible
1
financial year.
2
36 Liable entity--application of transformed eligible upstream fuel
3
to own use
4
Scope
5
(1) This section applies if:
6
(a) during an eligible financial year, a person applies an amount
7
of eligible upstream fuel to the person's own use; and
8
(b) greenhouse gas was released into the atmosphere as a result
9
of the application to own use; and
10
(c) the fuel is the result of the carrying out by the person of the
11
recognised transformation of another type of eligible
12
upstream fuel; and
13
(d) the fuel was not supplied in Australia to the person; and
14
(e) the greenhouse gas mentioned in paragraph (b) does not
15
count for the purposes of subsection 17(1), 18(1), 19(1),
16
20(1), 21(1) or 22(1); and
17
(f) the potential greenhouse gas emissions embodied in the
18
amount mentioned in paragraph (a) have a carbon dioxide
19
equivalence of a particular number of tonnes.
20
Provisional emissions number
21
(2) For the purposes of this Act, that number is a provisional
22
emissions number of the person for the eligible financial year.
23
Liable entity
24
(3) For the purposes of this Act, the person is a liable entity for the
25
eligible financial year.
26
37 Liable entity--re-supply of eligible upstream fuel
27
Scope
28
(1) This section applies if:
29
Part 3 Liable entities
Division 4 Importers, producers and suppliers of eligible upstream fuels
Section 37
86 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(a) during an eligible financial year, a person supplies an amount
1
of eligible upstream fuel to another person (the OTN holder)
2
who quotes the other person's OTN in relation to the supply;
3
and
4
(b) during that or a later eligible financial year, the OTN holder
5
re-supplies the whole or a part of that amount to a third
6
person; and
7
(ba) the re-supply was not into a prescribed wholesale gas market;
8
and
9
(c) the third person does not quote the third person's OTN in
10
relation to the re-supply; and
11
(d) the potential greenhouse gas emissions embodied in the
12
amount re-supplied have a carbon dioxide equivalence of a
13
particular number of tonnes.
14
Provisional emissions number
15
(2) For the purposes of this Act, that number, reduced (but not below
16
zero) by the total of any netted-out numbers of the OTN holder for
17
the eligible financial year in which the re-supply occurs, is a
18
provisional emissions number of the OTN holder for the eligible
19
financial year in which the re-supply occurs.
20
Note:
For netted-out numbers, see subsection (4).
21
Liable entity
22
(3) For the purposes of this Act, the OTN holder is a liable entity for
23
the eligible financial year in which the re-supply occurs.
24
Netted-out numbers
25
(4) For the purposes of this section, if:
26
(a) during the eligible financial year in which the re-supply
27
mentioned in paragraph (1)(b) occurs, the OTN holder
28
supplied an amount of eligible upstream fuel to another
29
person (the recipient); and
30
(b) after the supply to the recipient, the recipient exported the
31
fuel; and
32
Liable entities Part 3
Importers, producers and suppliers of eligible upstream fuels Division 4
Section 38
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 87
(c) the fuel has been entered for export (within the meaning of
1
section 113 of the Customs Act 1901); and
2
(d) the OTN holder has prescribed documentary evidence to
3
show that the fuel was exported; and
4
(e) the potential greenhouse gas emissions embodied in the
5
amount mentioned in paragraph (a) have a carbon dioxide
6
equivalence of a particular number of tonnes;
7
that number is a netted-out number of the OTN holder for the
8
eligible financial year.
9
38 Liable entity--application of eligible upstream fuel to OTN
10
holder's own use
11
Scope
12
(1) This section applies if:
13
(a) during an eligible financial year, a person supplies an amount
14
of eligible upstream fuel to another person (the recipient);
15
and
16
(b) the recipient quoted the recipient's OTN in relation to the
17
supply; and
18
(c) during that or a later eligible financial year, the recipient
19
applied the whole or a part of the amount of the fuel to the
20
recipient's own use; and
21
(d) greenhouse gas was released into the atmosphere as a result
22
of the application to own use; and
23
(e) the greenhouse gas mentioned in paragraph (d) does not
24
count for the purposes of subsection 17(1), 18(1), 19(1),
25
20(1), 21(1) or 22(1); and
26
(f) the potential greenhouse gas emissions embodied in the
27
amount applied to the recipient's own use have a carbon
28
dioxide equivalence of a particular number of tonnes.
29
Provisional emissions number
30
(2) For the purposes of this Act, that number is a provisional
31
emissions number of the recipient for the eligible financial year in
32
which the amount was applied to the recipient's own use.
33
Part 3 Liable entities
Division 4 Importers, producers and suppliers of eligible upstream fuels
Section 39
88 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Liable entity
1
(3) For the purposes of this Act, the recipient is a liable entity for the
2
eligible financial year in which the amount was applied to the
3
recipient's own use.
4
39 Liable entity--application of transformed eligible upstream fuel
5
to OTN holder's own use
6
Scope
7
(1) This section applies if:
8
(a) during an eligible financial year, a person supplies an amount
9
of eligible upstream fuel to another person (the recipient);
10
and
11
(b) the recipient quoted the recipient's OTN in relation to the
12
supply; and
13
(c) during that or a later eligible financial year, the recipient
14
applied the whole or a part of the amount of another type of
15
eligible upstream fuel to the recipient's own use; and
16
(d) greenhouse gas was released into the atmosphere as a result
17
of the application to own use; and
18
(e) the fuel mentioned in paragraph (c) is the result of the
19
carrying out by the recipient of the recognised transformation
20
of the fuel mentioned in paragraph (a); and
21
(f) the greenhouse gas mentioned in paragraph (d) does not
22
count for the purposes of subsection 17(1), 18(1), 19(1),
23
20(1), 21(1) or 22(1); and
24
(g) the potential greenhouse gas emissions embodied in the
25
amount applied to the recipient's own use have a carbon
26
dioxide equivalence of a particular number of tonnes.
27
Provisional emissions number
28
(2) For the purposes of this Act, that number is a provisional
29
emissions number of the recipient for the eligible financial year in
30
which the amount was applied to the recipient's own use.
31
Liable entities Part 3
Importers, producers and suppliers of eligible upstream fuels Division 4
Section 40
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 89
Liable entity
1
(3) For the purposes of this Act, the recipient is a liable entity for the
2
eligible financial year in which the amount was applied to the
3
recipient's own use.
4
40 Liable entity--supply of eligible upstream fuel to a person who
5
misuses the person's OTN
6
Scope
7
(1) This section applies if:
8
(a) during an eligible financial year, a person supplies an amount
9
of eligible upstream fuel to another person (the OTN holder)
10
who quotes the other person's OTN in relation to the supply;
11
and
12
(b) the OTN holder was not required or permitted by this Act to
13
quote the OTN holder's OTN; and
14
(c) the potential greenhouse gas emissions embodied in the
15
supplied amount have a carbon dioxide equivalence of a
16
particular number of tonnes.
17
Provisional emissions number
18
(2) For the purposes of this Act, that number is a provisional
19
emissions number of the OTN holder for the eligible financial
20
year.
21
Liable entity
22
(3) For the purposes of this Act, the OTN holder is a liable entity for
23
the eligible financial year.
24
25
Part 3 Liable entities
Division 5 Obligation transfer numbers
Section 41
90 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Division 5--Obligation transfer numbers
1
Subdivision A--Issue of obligation transfer numbers
2
41 Issue of OTN
3
An OTN may be issued in one of the following ways:
4
(a) as the result of an application (see section 44);
5
(b) on the Authority's own initiative (see section 45).
6
42 Application for OTN
7
(1) A person may apply to the Authority for the issue to the person of
8
an OTN.
9
(2) An application must:
10
(a) be in writing; and
11
(b) be in a form approved, in writing, by the Authority; and
12
(c) be accompanied by:
13
(i) such information as is specified in the regulations; and
14
(ii) such documents (if any) as are specified in the
15
regulations; and
16
(d) be accompanied by the fee (if any) specified in the
17
regulations.
18
(3) The approved form of application may provide for verification by
19
statutory declaration of statements in applications.
20
43 Further information
21
(1) The Authority may, by written notice given to an applicant, require
22
the applicant to give the Authority, within the period specified in
23
the notice, further information in connection with the application.
24
(2) If the applicant breaches the requirement, the Authority may, by
25
written notice given to the applicant:
26
(a) refuse to consider the application; or
27
(b) refuse to take any action, or any further action, in relation to
28
the application.
29
Liable entities Part 3
Obligation transfer numbers Division 5
Section 44
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 91
44 Issue of OTN as the result of an application
1
Scope
2
(1) This section applies if an application under section 42 has been
3
made for an OTN.
4
Issue of OTN
5
(2) After considering the application, the Authority may issue an OTN
6
to the applicant.
7
Criteria for issue of OTN
8
(3) The Authority must not issue the OTN unless:
9
(a) the Authority is satisfied that the applicant is, or is likely to
10
be, required or permitted by this Act to quote the person's
11
OTN in relation to the supply to the person of an amount of:
12
(i) eligible upstream fuel; or
13
(ii) synthetic greenhouse gas; and
14
(b) the Authority has carried out the applicable identification
15
procedure in respect of the applicant.
16
Timing
17
(4) The Authority must take all reasonable steps to ensure that a
18
decision is made on the application:
19
(a) if the Authority requires the applicant to give further
20
information under subsection 43(1) in relation to the
21
application--within 90 days after the applicant gave the
22
Authority the information; or
23
(b) otherwise--within 90 days after the application was made.
24
Refusal
25
(5) If the Authority decides to refuse to issue the OTN, the Authority
26
must give written notice of the decision to the applicant.
27
Part 3 Liable entities
Division 5 Obligation transfer numbers
Section 45
92 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
45 Issue of OTN on the Authority's own initiative
1
Scope
2
(1) This section applies if:
3
(a) the Authority is satisfied that a person is, or is likely to be,
4
required or permitted by this Act to quote the person's OTN
5
in relation to the supply to the person of an amount of:
6
(i) eligible upstream fuel; or
7
(ii) synthetic greenhouse gas; and
8
(b) the Authority has carried out the applicable identification
9
procedure in respect of the person.
10
Issue of OTN
11
(2) The Authority may, by written notice given to the person, issue an
12
OTN to the person.
13
46 Surrender of OTN
14
Scope
15
(1) This section applies if a person is the holder of an OTN.
16
Surrender
17
(2) The person may, with the written consent of the Authority,
18
surrender the OTN.
19
(3) The surrender takes effect when the consent is given by the
20
Authority.
21
(4) The Authority must not give consent to the surrender of the OTN
22
unless the Authority is satisfied that the person is not required, and
23
is unlikely to be required, by this Act to quote the OTN in relation
24
to the supply to the person of an amount of:
25
(a) eligible upstream fuel; or
26
(b) synthetic greenhouse gas.
27
Liable entities Part 3
Obligation transfer numbers Division 5
Section 47
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 93
47 Cancellation of OTN
1
(1) If a person holds an OTN, the Authority may, by written notice
2
given to the person, cancel the OTN.
3
(2) The Authority must not cancel a person's OTN under
4
subsection (1) unless the Authority is satisfied that:
5
(a) the person is not required or permitted, and is unlikely to be
6
required or permitted, by this Act to quote the OTN in
7
relation to the supply to the person of an amount of:
8
(i) eligible upstream fuel; or
9
(ii) synthetic greenhouse gas; or
10
(b) the person has breached this Act or an associated provision.
11
(3) If:
12
(a) a person has ceased to exist; and
13
(b) immediately before the person ceased to exist, the person
14
held an OTN;
15
the Authority must cancel the OTN.
16
48 OTN is not transferable
17
An OTN is not transferable.
18
49 OTN Register
19
(1) The Authority must keep a register, to be known as the OTN
20
Register.
21
(2) The OTN Register is to be maintained by electronic means.
22
(3) The OTN Register is to be made available for inspection on the
23
Authority's website.
24
Entry for an OTN
25
(4) If an OTN is issued to a person, the Authority must make an entry
26
for the OTN in the OTN Register.
27
(5) An entry for a person's OTN must set out:
28
(a) the name of the person; and
29
Part 3 Liable entities
Division 5 Obligation transfer numbers
Section 50
94 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(b) the person's address last known to the Authority.
1
(6) If:
2
(a) there is an entry for a person's OTN in the OTN Register;
3
and
4
(b) the person changes the person's name or address;
5
the Authority may make the appropriate alteration to the entry.
6
Removal of entry for an OTN
7
(7) If an OTN is surrendered or cancelled, the Authority must remove
8
the entry for the OTN from the OTN Register.
9
50 Evidentiary provisions
10
(1) The Authority may supply a copy of or extract from the OTN
11
Register certified by an official of the Authority to be a true copy
12
or true extract, as the case may be.
13
(2) The certified copy or extract is admissible in evidence in all courts
14
and proceedings without further proof or production of the original.
15
(3) The Authority may charge a fee specified in the regulations for
16
supplying a copy or extract under subsection (1).
17
(4) A fee specified under subsection (3) must not be such as to amount
18
to taxation.
19
50A Notification of change of name or address of OTN holder
20
(1) If:
21
(a) there is an entry for a person's OTN in the OTN Register;
22
and
23
(b) either:
24
(i) there is a change in the name of the person; or
25
(ii) there is a change to the person's address as set out in the
26
OTN Register;
27
the person must, within 14 days after the change, notify the
28
Authority, in writing, of the change.
29
Liable entities Part 3
Obligation transfer numbers Division 5
Section 51
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 95
Civil penalty provision
1
(2) Subsection (1) is a civil penalty provision.
2
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
3
provisions.
4
Subdivision B--Methods of quotation of obligation transfer
5
numbers
6
51 Quotation of OTN
7
If a person (the OTN holder) is the holder of an OTN, the OTN
8
holder quotes the OTN to another person (the supplier) in relation
9
to:
10
(a) a particular supply of eligible upstream fuel by the supplier to
11
the OTN holder; or
12
(b) a particular supply of synthetic greenhouse gas by the
13
supplier to the OTN holder;
14
if:
15
(c) both:
16
(i) the OTN holder has made a one-off quotation of the
17
OTN to the supplier in relation to the supply; and
18
(ii) the quotation has not been withdrawn before the supply
19
occurred; or
20
(d) all of the following conditions are satisfied:
21
(i) the OTN holder has made a standing quotation of the
22
OTN to the supplier in relation to a class of supplies;
23
(ii) the supply is included in that class;
24
(iii) the quotation has not been withdrawn before the supply
25
occurred.
26
Note 1:
For one-off quotation, see section 51A.
27
Note 2:
For standing quotation, see section 51B.
28
Part 3 Liable entities
Division 5 Obligation transfer numbers
Section 51A
96 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
51A One-off quotation of OTN
1
One-off quotation
2
(1) If a person (the OTN holder) holds an OTN, the OTN holder
3
makes a one-off quotation of the OTN to another person (the
4
supplier) in relation to:
5
(a) a particular supply of eligible upstream fuel by the supplier to
6
the OTN holder; or
7
(b) a particular supply of synthetic greenhouse gas by the
8
supplier to the OTN holder;
9
if:
10
(c) the OTN holder makes a statement to the supplier in
11
connection with the supply; and
12
(d) the statement is in writing; and
13
(e) the statement sets out:
14
(i) the words "quotation of OTN" followed by the OTN;
15
and
16
(ii) the name of the OTN holder; and
17
(iii) if the OTN holder has an ABN--the ABN; and
18
(iv) a description of the supply; and
19
(v) an indication as to whether the quotation is a mandatory
20
quotation or a voluntary quotation; and
21
(vi) such other information (if any) as is specified in the
22
regulations.
23
Note 1:
For example, if the first person's OTN is 123456, a statement could
24
include the words "quotation of OTN 123456".
25
Note 2:
See also sections 65 and 66 (rejection of quotation of OTN).
26
Note 3:
See also section 66A (unauthorised mandatory quotation of OTN).
27
(2) A statement under subsection (1) may be included in a contract,
28
order or similar document, whether or not in electronic form.
29
Liable entities Part 3
Obligation transfer numbers Division 5
Section 51B
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 97
51B Standing quotation of OTN
1
Standing quotation
2
(1) If a person (the OTN holder) holds an OTN, the OTN holder
3
makes a standing quotation of the OTN to another person (the
4
supplier) in relation to:
5
(a) a particular class of supplies of eligible upstream fuel by the
6
supplier to the OTN holder; or
7
(b) a particular class of supplies of synthetic greenhouse gas by
8
the supplier to the OTN holder;
9
if:
10
(c) the OTN holder makes a statement to the supplier in
11
connection with the class of supplies; and
12
(d) the statement is in writing; and
13
(e) the statement sets out:
14
(i) the words "quotation of OTN" followed by the OTN;
15
and
16
(ii) the name of the OTN holder; and
17
(iii) if the OTN holder has an ABN--the ABN; and
18
(iv) a description of the class of supplies; and
19
(v) an indication as to whether the quotation is a mandatory
20
quotation or a voluntary quotation; and
21
(vi) such other information (if any) as is specified in the
22
regulations.
23
Note 1:
For example, if the first person's OTN is 123456, a statement could
24
include the words "quotation of OTN 123456".
25
Note 2:
See also sections 65 and 66 (rejection of quotation of OTN).
26
Note 3:
See also section 66A (unauthorised mandatory quotation of OTN).
27
(2) A statement under subsection (1) may be included in a contract,
28
order or similar document, whether or not in electronic form.
29
Part 3 Liable entities
Division 5 Obligation transfer numbers
Section 51BA
98 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
51BA Withdrawal of quotation of OTN if OTN is cancelled or
1
surrendered
2
One-off quotation
3
(1) If:
4
(a) a person has made a one-off quotation of the person's OTN
5
to a supplier; and
6
(b) the OTN is cancelled or surrendered;
7
the one-off quotation is taken to have been withdrawn when the
8
cancellation or surrender takes effect.
9
Standing quotation
10
(2) If:
11
(a) a person has made a standing quotation of the person's OTN
12
to a supplier; and
13
(b) the OTN is cancelled or surrendered;
14
the standing quotation is taken to have been withdrawn when the
15
cancellation or surrender takes effect.
16
51C Withdrawal of standing quotation of OTN by OTN holder
17
If:
18
(a) a person (the OTN holder) has made a standing quotation of
19
the OTN holder's OTN to a supplier in relation to a class of
20
supplies; and
21
(b) the OTN holder ceases to be required or permitted by this Act
22
to quote the OTN holder's OTN in relation to those supplies;
23
the OTN holder may, by written notice given to the supplier,
24
withdraw the standing quotation of the OTN.
25
51D Withdrawal of quotation of OTN by agreement
26
If:
27
(a) a person (the OTN holder) has made a standing quotation of
28
the OTN holder's OTN to a supplier; and
29
(b) the supplier agrees to the withdrawal of the standing
30
quotation;
31
Liable entities Part 3
Obligation transfer numbers Division 5
Section 51E
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 99
the OTN holder may, by written notice given to the supplier,
1
withdraw the standing quotation.
2
51E Validation of quotation of OTN
3
(1) If:
4
(a) a person (the OTN holder) has purported to quote a number
5
as the OTN holder's OTN to another person (the supplier) in
6
relation to the supply of:
7
(i) eligible upstream fuel; or
8
(ii) synthetic greenhouse gas; and
9
(b) the purported quotation was due to an honest mistake; and
10
(c) the Authority is satisfied that it would be reasonable to
11
validate the quotation;
12
the Authority may, by writing, determine that this Act (other than
13
this section) has, and is taken always to have had, effect as if the
14
OTN holder had quoted the OTN holder's OTN in relation to the
15
supply.
16
(2) The Authority must give a copy of the determination to:
17
(a) the OTN holder; and
18
(b) the supplier.
19
(3) A determination made under subsection (1) is not a legislative
20
instrument.
21
51F Effect of surrender or cancellation of OTN--grace period for
22
standing quotation
23
Scope
24
(1) This section applies if:
25
(a) a person's OTN is surrendered or cancelled; and
26
(b) immediately before the surrender or cancellation took effect,
27
a standing quotation of the person's OTN was in effect in
28
relation to a class of supplies; and
29
(c) the standing quotation had been acknowledged by the
30
supplier to whom the quotation was made.
31
Part 3 Liable entities
Division 5 Obligation transfer numbers
Section 51G
100 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Grace period
1
(2) This Act has effect, in relation to a supply that:
2
(a) is included in the class of supplies; and
3
(b) occurs during the 7-day period beginning when the surrender
4
or cancellation took effect;
5
as if the person had:
6
(c) held an OTN; and
7
(d) quoted the OTN in relation to the supply;
8
unless, before the time of the supply, the person had notified the
9
supplier of the surrender or cancellation.
10
51G Effect of surrender or cancellation of OTN--grace period for
11
one-off quotation
12
Scope
13
(1) This section applies if:
14
(a) a person's OTN is surrendered or cancelled; and
15
(b) immediately before the surrender or cancellation took effect,
16
a one-off quotation of the person's OTN was in effect in
17
relation to a supply; and
18
(c) the one-off quotation had been acknowledged by the supplier
19
to whom the quotation was made.
20
Grace period
21
(2) If the supply occurs during the 7-day period beginning when the
22
surrender or cancellation took effect, this Act has effect, in relation
23
to the supply, as if the person had:
24
(a) held an OTN; and
25
(b) quoted the OTN in relation to the supply;
26
unless, before the time of the supply, the person had notified the
27
supplier of the surrender or cancellation.
28
Liable entities Part 3
Obligation transfer numbers Division 5
Section 52
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 101
Subdivision C--Mandatory quotation of obligation transfer
1
numbers
2
52 Mandatory quotation of OTN--large user of eligible upstream
3
fuel
4
(1) If:
5
(a) during an eligible financial year, a person supplies an amount
6
of a particular type of eligible upstream fuel (other than
7
liquid petroleum fuel) to another person (the recipient); and
8
(aa) the supply was not out of a prescribed wholesale gas market;
9
and
10
(b) either:
11
(i) a facility was under the operational control of the
12
recipient throughout the previous financial year; or
13
(ii) a facility was under the operational control of the
14
recipient for a number of, but not all, days in the
15
previous financial year (the control days); and
16
(c) the fuel is for use in the facility; and
17
(d) so much of the total amount of greenhouse gases emitted
18
from the operation of the facility:
19
(i) if subparagraph (b)(i) applies--during the previous
20
financial year; or
21
(ii) if subparagraph (b)(ii) applies--during the control days;
22
as is attributable to the combustion of that type of eligible
23
upstream fuel has a carbon dioxide equivalence of at least:
24
(iii) if subparagraph (b)(i) applies--25,000 tonnes; or
25
(iv) if subparagraph (b)(ii) applies--the amount worked out
26
using the formula:
27
Number of control days
25,000 tonnes
Number of days in the
previous eligible financial year
28
the recipient must quote the recipient's OTN in relation to the
29
supply.
30
Part 3 Liable entities
Division 5 Obligation transfer numbers
Section 53
102 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Ancillary contraventions
1
(2) A person must not:
2
(a) aid, abet, counsel or procure a contravention of
3
subsection (1); or
4
(b) induce, whether by threats or promises or otherwise, a
5
contravention of subsection (1); or
6
(c) be in any way, directly or indirectly, knowingly concerned in,
7
or party to, a contravention of subsection (1); or
8
(d) conspire with others to effect a contravention of
9
subsection (1).
10
Civil penalty provisions
11
(3) Subsections (1) and (2) are civil penalty provisions.
12
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
13
provisions.
14
Liability transfer certificate
15
(4) For the purposes of this section, if a person (the certificate holder)
16
was the holder of a liability transfer certificate in relation to a
17
facility on a particular day:
18
(a) the facility is taken to have been under the operational
19
control of the certificate holder on that day; and
20
(b) the facility is taken not to have been under the operational
21
control of any other person on that day.
22
53 Mandatory quotation of OTN--re-supplier of natural gas
23
(1) If:
24
(a) during an eligible financial year, a person supplies an amount
25
of natural gas to another person (the recipient); and
26
(aa) the supply was not out of a prescribed wholesale gas market;
27
and
28
(b) the recipient carries on a business of re-supplying natural gas;
29
the recipient must quote the recipient's OTN in relation to the
30
supply.
31
Liable entities Part 3
Obligation transfer numbers Division 5
Section 54
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 103
Ancillary contraventions
1
(2) A person must not:
2
(a) aid, abet, counsel or procure a contravention of
3
subsection (1); or
4
(b) induce, whether by threats or promises or otherwise, a
5
contravention of subsection (1); or
6
(c) be in any way, directly or indirectly, knowingly concerned in,
7
or party to, a contravention of subsection (1); or
8
(d) conspire with others to effect a contravention of
9
subsection (1).
10
Civil penalty provisions
11
(3) Subsections (1) and (2) are civil penalty provisions.
12
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
13
provisions.
14
54 Mandatory quotation of OTN--liquid petroleum gas marketer
15
(1) If:
16
(a) during an eligible financial year, a person supplies an amount
17
of liquid petroleum gas to another person (the recipient); and
18
(b) the recipient is a liquid petroleum gas marketer;
19
the recipient must quote the recipient's OTN in relation to the
20
supply.
21
Ancillary contraventions
22
(2) A person must not:
23
(a) aid, abet, counsel or procure a contravention of
24
subsection (1); or
25
(b) induce, whether by threats or promises or otherwise, a
26
contravention of subsection (1); or
27
(c) be in any way, directly or indirectly, knowingly concerned in,
28
or party to, a contravention of subsection (1); or
29
(d) conspire with others to effect a contravention of
30
subsection (1).
31
Part 3 Liable entities
Division 5 Obligation transfer numbers
Section 55
104 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Civil penalty provisions
1
(3) Subsections (1) and (2) are civil penalty provisions.
2
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
3
provisions.
4
55 Mandatory quotation of OTN--use of certain fuels as a feedstock
5
(1) If:
6
(a) during an eligible financial year, a person supplies an amount
7
of any of the following types of eligible upstream fuel to
8
another person (the recipient):
9
(i) liquid petroleum gas;
10
(ii) refinery grade propene (propylene);
11
(iii) ethane; and
12
(b) the recipient carries on a business that involves using the fuel
13
as a feedstock;
14
the recipient must quote the recipient's OTN in relation to the
15
supply.
16
Ancillary contraventions
17
(2) A person must not:
18
(a) aid, abet, counsel or procure a contravention of
19
subsection (1); or
20
(b) induce, whether by threats or promises or otherwise, a
21
contravention of subsection (1); or
22
(c) be in any way, directly or indirectly, knowingly concerned in,
23
or party to, a contravention of subsection (1); or
24
(d) conspire with others to effect a contravention of
25
subsection (1).
26
Civil penalty provisions
27
(3) Subsections (1) and (2) are civil penalty provisions.
28
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
29
provisions.
30
Liable entities Part 3
Obligation transfer numbers Division 5
Section 56
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 105
Subdivision D--Voluntary quotation of obligation transfer
1
numbers
2
56 Voluntary quotation of OTN--large user of eligible upstream
3
fuel
4
(1) If:
5
(a) during an eligible financial year, a person supplies an amount
6
of eligible upstream fuel to another person (the recipient);
7
and
8
(aa) the supply was not out of a prescribed wholesale gas market;
9
and
10
(b) at the time of the supply, a facility is under the operational
11
control of the recipient; and
12
(c) so much of the total amount of greenhouse gases emitted
13
from the operation of the facility during the previous eligible
14
financial year as is attributable to the combustion of any one
15
type of eligible upstream fuel has a carbon dioxide
16
equivalence of at least the number of tonnes specified in the
17
regulations;
18
the recipient may quote the recipient's OTN in relation to the
19
supply.
20
(2) If:
21
(a) during an eligible financial year, a person supplies an amount
22
of eligible upstream fuel to another person (the recipient);
23
and
24
(aa) the supply was not out of a prescribed wholesale gas market;
25
and
26
(b) at the time of the supply, a facility is under the operational
27
control of the recipient; and
28
(c) the recipient is an approved person for the purposes of the
29
application of this subsection to the eligible financial year;
30
the recipient may quote the recipient's OTN in relation to the
31
supply.
32
Note:
For approved person, see subsection (6).
33
Part 3 Liable entities
Division 5 Obligation transfer numbers
Section 56
106 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Approved person
1
(3) A person may apply to the Authority to be an approved person for
2
the purposes of the application of subsection (2) to a specified
3
eligible financial year.
4
(4) An application must:
5
(a) be in writing; and
6
(b) be in a form approved, in writing, by the Authority; and
7
(c) be accompanied by such information as is specified in the
8
regulations; and
9
(d) be accompanied by such documents (if any) as are specified
10
in the regulations.
11
(5) The approved form of application may provide for verification by
12
statutory declaration of statements in applications.
13
(6) After considering an application under subsection (3), the
14
Authority may, by written notice given to the applicant, declare
15
that the applicant is an approved person for the purposes of the
16
application of subsection (2) to the eligible financial year specified
17
in the application.
18
(7) The Authority must not declare the applicant is an approved person
19
for the purposes of the application of subsection (2) to an eligible
20
financial year unless the Authority is satisfied that it is likely that
21
so much of the total amount of greenhouse gases emitted from the
22
operation of the facility during the eligible financial year as is
23
attributable to the combustion of eligible upstream fuel will have a
24
carbon dioxide equivalence of least the number of tonnes specified
25
in the regulations.
26
(8) If the Authority decides to refuse to approve the applicant, the
27
Authority must give written notice of the decision to the applicant.
28
Liability transfer certificate
29
(9) For the purposes of this section, if a person (the certificate holder)
30
was the holder of a liability transfer certificate in relation to a
31
facility on a particular day:
32
Liable entities Part 3
Obligation transfer numbers Division 5
Section 58
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 107
(a) the facility is taken to have been under the operational
1
control of the certificate holder on that day; and
2
(b) the facility is taken not to have been under the operational
3
control of any other person on that day.
4
58 Voluntary quotation of OTN--use of fuel in manufacturing other
5
products etc.
6
If:
7
(a) during an eligible financial year, a person supplies an amount
8
of eligible upstream fuel to another person (the recipient);
9
and
10
(aa) the supply was not out of a prescribed wholesale gas market;
11
and
12
(b) the recipient carries on:
13
(i) a business that involves using the fuel (otherwise than
14
by way of combustion) to manufacture a product; or
15
(ii) a business that involves consuming the fuel (otherwise
16
than by way of combustion);
17
the recipient may quote the recipient's OTN in relation to the
18
supply.
19
59 Voluntary quotation of OTN--transformation of fuel
20
If:
21
(a) during an eligible financial year, a person supplies an amount
22
of eligible upstream fuel to another person (the recipient);
23
and
24
(aa) the supply was not out of a prescribed wholesale gas market;
25
and
26
(b) the recipient carries on a business that involves the
27
recognised transformation of the fuel into another type of
28
eligible upstream fuel;
29
the recipient may quote the recipient's OTN in relation to the
30
supply.
31
Part 3 Liable entities
Division 5 Obligation transfer numbers
Section 60
108 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
60 Voluntary quotation of OTN--export or re-supply of eligible
1
upstream fuel
2
If:
3
(a) during an eligible financial year, a person supplies an amount
4
of eligible upstream fuel to another person (the recipient);
5
and
6
(aa) the supply was not out of a prescribed wholesale gas market;
7
and
8
(b) the recipient carries on a business that involves exporting or
9
re-supplying eligible upstream fuel;
10
the recipient may quote the recipient's OTN in relation to the
11
supply.
12
63 Voluntary quotation of OTN--re-supply of synthetic greenhouse
13
gas
14
If:
15
(a) during an eligible financial year, a person supplies an amount
16
of synthetic greenhouse gas to another person (the recipient);
17
and
18
(b) the recipient carries on a business of re-supplying synthetic
19
greenhouse gas; and
20
(c) the amount of synthetic greenhouse gas mentioned in
21
paragraph (a) is to be re-supplied by the recipient during that
22
or a later eligible financial year to a third person who is:
23
(i) permitted by another application of this section to quote
24
the third person's OTN in relation to the re-supply; or
25
(ii) permitted by section 64 to quote the third person's OTN
26
in relation to the re-supply;
27
the recipient may quote the recipient's OTN in relation to the
28
supply mentioned in paragraph (a).
29
64 Voluntary quotation of OTN--export or re-supply of synthetic
30
greenhouse gas
31
If:
32
Liable entities Part 3
Obligation transfer numbers Division 5
Section 64AA
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 109
(a) during an eligible financial year, a person supplies an amount
1
of synthetic greenhouse gas to another person (the recipient);
2
and
3
(b) the recipient carries on a business that involves exporting
4
synthetic greenhouse gas; and
5
(c) the amount of synthetic greenhouse gas mentioned in
6
paragraph (a) is to be exported or re-supplied by the recipient
7
during that or a later eligible financial year;
8
the recipient may quote the recipient's OTN in relation to the
9
supply mentioned in paragraph (a).
10
64AA Voluntary quotation of OTN--use of synthetic greenhouse gas
11
as a feedstock
12
If:
13
(a) during an eligible financial year, a person supplies an amount
14
of synthetic greenhouse gas to another person (the recipient);
15
and
16
(b) the recipient carries on a business that involves using the gas
17
as a feedstock;
18
the recipient may quote the recipient's OTN in relation to the
19
supply.
20
Subdivision E--General provisions
21
64A Acknowledgement of one-off quotation of OTN
22
Scope
23
(1) This section applies if a person (the OTN holder) makes a one-off
24
quotation of the OTN holder's OTN to another person (the
25
supplier) in relation to a particular supply.
26
Acknowledgement of quotation of OTN
27
(2) If the OTN holder is required by this Act to quote the OTN
28
holder's OTN in relation to the supply, the supplier must, by
29
written notice given to the OTN holder, acknowledge the
30
quotation.
31
Part 3 Liable entities
Division 5 Obligation transfer numbers
Section 64B
110 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(3) If the OTN holder is permitted (but not required) by this Act to
1
quote the OTN holder's OTN in relation to the supply, the supplier
2
may, by written notice given to the OTN holder, acknowledge the
3
quotation unless the quotation is rejected under section 66.
4
(4) If the supplier does not acknowledge the quotation, this Act (other
5
than this section) has effect as if the OTN holder had not quoted
6
the OTN holder's OTN in relation to the supply.
7
64B Acknowledgement of standing quotation of OTN
8
Scope
9
(1) This section applies if a person (the OTN holder) makes a standing
10
quotation of the OTN holder's OTN to another person (the
11
supplier) in relation to a particular class of supplies.
12
Acknowledgement of quotation of OTN
13
(2) If the OTN holder is required by this Act to quote the OTN
14
holder's OTN in relation to each supply included in the class of
15
supplies, the supplier must, by written notice given to the OTN
16
holder, acknowledge the quotation.
17
(3) If the OTN holder is permitted (but not required) by this Act to
18
quote the OTN holder's OTN in relation to each supply included in
19
the class of supplies, the supplier may, by written notice given to
20
the OTN holder, acknowledge the quotation.
21
(4) If the supplier does not acknowledge the quotation, this Act (other
22
than this section) has effect as if the OTN holder had not quoted
23
the OTN holder's OTN in relation to each supply included in the
24
class of supplies.
25
65 Rejection of quotation of OTN--re-supply of eligible upstream
26
fuel
27
Scope
28
(1) This section applies if:
29
Liable entities Part 3
Obligation transfer numbers Division 5
Section 65
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 111
(a) during an eligible financial year, a person supplies an amount
1
of eligible upstream fuel to another person (the second
2
person) who does not quote the second person's OTN in
3
relation to the supply; and
4
(b) during that or a later eligible financial year, the second
5
person re-supplies the whole or a part of that amount to a
6
third person; and
7
(c) the third person quotes the third person's OTN in relation to
8
the re-supply; and
9
(d) the third person is permitted, but not required, by this Act to
10
quote the third person's OTN in relation to the re-supply.
11
Rejection of quotation
12
(2) The second person must, in accordance with the regulations, reject
13
the quotation of the third person's OTN to the extent to which it
14
relates to the re-supply.
15
(3) If the quotation of the third person's OTN is rejected, this Act
16
(other than this section and sections 67 and 304) has effect as if the
17
third person had not quoted the third person's OTN in relation to
18
the re-supply.
19
Ancillary contraventions
20
(4) A person must not:
21
(a) aid, abet, counsel or procure a contravention of
22
subsection (2); or
23
(b) induce, whether by threats or promises or otherwise, a
24
contravention of subsection (2); or
25
(c) be in any way, directly or indirectly, knowingly concerned in,
26
or party to, a contravention of subsection (2); or
27
(d) conspire with others to effect a contravention of
28
subsection (2).
29
Civil penalty provisions
30
(5) Subsections (2) and (4) are civil penalty provisions.
31
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
32
provisions.
33
Part 3 Liable entities
Division 5 Obligation transfer numbers
Section 66
112 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
66 Rejection of voluntary quotation of OTN
1
Scope
2
(1) This section applies if:
3
(a) a person (the supplier) supplies an amount of:
4
(i) eligible upstream fuel; or
5
(ii) synthetic greenhouse gas;
6
to another person (the recipient); and
7
(b) the recipient makes a one-off quotation of the recipient's
8
OTN in relation to the supply; and
9
(c) the recipient is not required to quote the recipient's OTN in
10
relation to the supply.
11
Rejection of quotation
12
(2) The supplier may, in accordance with the regulations, reject the
13
quotation of the recipient's OTN in relation to the supply.
14
(3) If the quotation of the recipient's OTN is rejected, this Act (other
15
than this section and sections 67 and 304) has effect as if the
16
recipient had not quoted the recipient's OTN in relation to the
17
supply.
18
66A Unauthorised mandatory quotation of OTN
19
One-off quotation
20
(1) If a person makes a one-off quotation of the person's OTN in
21
relation to a supply, the person must not include in the quotation an
22
indication that the quotation is a mandatory quotation unless the
23
person is or will be required by this Act to quote the person's OTN
24
in relation to the supply.
25
Standing quotation
26
(2) If a person makes a standing quotation of the person's OTN in
27
relation to a class of supplies, the person must not include in the
28
quotation an indication that the quotation is a mandatory quotation
29
unless the person is or will be required by this Act to quote the
30
Liable entities Part 3
Obligation transfer numbers Division 5
Section 67
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 113
person's OTN in relation to each supply included in the class of
1
supplies.
2
Ancillary contraventions
3
(3) A person must not:
4
(a) aid, abet, counsel or procure a contravention of subsection (1)
5
or (2); or
6
(b) induce, whether by threats or promises or otherwise, a
7
contravention of subsection (1) or (2); or
8
(c) be in any way, directly or indirectly, knowingly concerned in,
9
or party to, a contravention of subsection (1) or (2); or
10
(d) conspire with others to effect a contravention of
11
subsection (1) or (2).
12
Civil penalty provisions
13
(4) Subsections (1), (2) and (3) are civil penalty provisions.
14
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
15
provisions.
16
67 Misuse of OTN
17
(1) A person must not quote the person's OTN in relation to the supply
18
of:
19
(a) eligible upstream fuel; or
20
(b) synthetic greenhouse gas;
21
unless the person is required or permitted to do so by this Act.
22
Ancillary contraventions
23
(2) A person must not:
24
(a) aid, abet, counsel or procure a contravention of
25
subsection (1); or
26
(b) induce, whether by threats or promises or otherwise, a
27
contravention of subsection (1); or
28
(c) be in any way, directly or indirectly, knowingly concerned in,
29
or party to, a contravention of subsection (1); or
30
Part 3 Liable entities
Division 5 Obligation transfer numbers
Section 68
114 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(d) conspire with others to effect a contravention of
1
subsection (1).
2
Civil penalty provisions
3
(3) Subsections (1) and (2) are civil penalty provisions.
4
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
5
provisions.
6
Consequences of misuse of OTN
7
(4) If:
8
(a) a person quotes the person's OTN in relation to the supply of:
9
(i) eligible upstream fuel; or
10
(ii) synthetic greenhouse gas; and
11
(b) the quotation breaches subsection (1); and
12
(c) the quotation was not rejected by the person who supplied the
13
fuel or gas;
14
the following provisions have effect:
15
(d) the breach does not affect the validity of any transaction;
16
(e) this Part (other than this section and sections 29 and 40) has
17
effect as if the quotation had been authorised under this Act.
18
Note:
See also sections 29 and 40.
19
68 Quotation of bogus OTN
20
Quotation of bogus OTN
21
(1) A person must not purport to quote a number as the person's OTN
22
in relation to the supply of:
23
(a) eligible upstream fuel; or
24
(b) synthetic greenhouse gas;
25
if the number is not the person's OTN.
26
(2) A person must not:
27
(a) aid, abet, counsel or procure a contravention of
28
subsection (1); or
29
(b) induce, whether by threats or promises or otherwise, a
30
contravention of subsection (1); or
31
Liable entities Part 3
Obligation transfer numbers Division 5
Section 68
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 115
(c) be in any way, directly or indirectly, knowingly concerned in,
1
or party to, a contravention of subsection (1); or
2
(d) conspire with others to effect a contravention of
3
subsection (1).
4
Supply to a person who quotes a bogus OTN
5
(3) A person must not supply:
6
(a) eligible upstream fuel; or
7
(b) synthetic greenhouse gas;
8
to another person (the recipient) if:
9
(c) the recipient purports to quote a number as the recipient's
10
OTN in relation to the supply; and
11
(d) the number is not shown in the OTN Register as the
12
recipient's OTN.
13
(4) A person must not:
14
(a) aid, abet, counsel or procure a contravention of
15
subsection (3); or
16
(b) induce, whether by threats or promises or otherwise, a
17
contravention of subsection (3); or
18
(c) be in any way, directly or indirectly, knowingly concerned in,
19
or party to, a contravention of subsection (3); or
20
(d) conspire with others to effect a contravention of
21
subsection (3).
22
Civil penalty provisions
23
(5) Subsections (1), (2), (3) and (4) are civil penalty provisions.
24
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
25
provisions.
26
27
Part 3 Liable entities
Division 6 Liability transfer certificates
Section 69
116 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Division 6--Liability transfer certificates
1
Subdivision A--Transfer of liability to another member of a
2
controlling corporation's group
3
69 Category A transfer test
4
A company passes the category A transfer test in relation to a
5
facility if:
6
(a) the company is a member of a controlling corporation's
7
group; and
8
(b) the company is registered as a company under Part 2A.2 of
9
the Corporations Act 2001; and
10
(c) the facility is under the operational control of a member of
11
the group (other than the controlling corporation).
12
70 Application for liability transfer certificate
13
Scope
14
(1) This section applies if a company passes the category A transfer
15
test in relation to a facility.
16
Application
17
(2) The company may, with the written consent of the controlling
18
corporation mentioned in section 69, apply to the Authority for the
19
issue to the company of a liability transfer certificate in relation to
20
the facility.
21
Form of application
22
(3) An application must:
23
(a) be in writing; and
24
(b) be in a form approved, in writing, by the Authority; and
25
(c) be accompanied by:
26
(i) the consent of the controlling corporation mentioned in
27
section 69 to the making of the application; and
28
(ii) such information as is specified in the regulations; and
29
Liable entities Part 3
Liability transfer certificates Division 6
Section 71
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 117
(iii) such documents (if any) as are specified in the
1
regulations.
2
(4) The approved form of application may provide for verification by
3
statutory declaration of statements in applications.
4
71 Further information
5
(1) The Authority may, by written notice given to an applicant, require
6
the applicant to give the Authority, within the period specified in
7
the notice, further information in connection with the application.
8
(2) If the applicant breaches the requirement, the Authority may, by
9
written notice given to the applicant:
10
(a) refuse to consider the application; or
11
(b) refuse to take any action, or any further action, in relation to
12
the application.
13
72 Issue of liability transfer certificate
14
Scope
15
(1) This section applies if an application under section 70 has been
16
made for a liability transfer certificate in relation to a facility.
17
Issue of certificate
18
(2) After considering the application, the Authority may issue to the
19
applicant a liability transfer certificate in relation to the facility.
20
Criteria for issue of certificate
21
(3) The Authority must not issue the liability transfer certificate unless
22
the Authority is satisfied that:
23
(a) the applicant passes the category A transfer test in relation to
24
the facility; and
25
(b) the applicant has, and is likely to continue to have:
26
(i) the capacity; and
27
(ii) the access to information; and
28
(iii) the financial resources;
29
Part 3 Liable entities
Division 6 Liability transfer certificates
Section 73
118 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
necessary for it to comply with obligations that will be
1
imposed on the applicant by the following laws:
2
(iv) this Act;
3
(v) the regulations;
4
(vi) the National Greenhouse and Energy Reporting Act
5
2007;
6
if the certificate is issued; and
7
(c) if the regulations specify one or more other requirements--
8
those requirements are met.
9
Timing
10
(4) The Authority must take all reasonable steps to ensure that a
11
decision is made on the application:
12
(a) if the Authority requires the applicant to give further
13
information under subsection 71(1) in relation to the
14
application--within 90 days after the applicant gave the
15
Authority the information; or
16
(b) otherwise--within 90 days after the application was made.
17
Refusal
18
(5) If the Authority decides to refuse to issue the liability transfer
19
certificate, the Authority must give written notice of the decision to
20
the applicant.
21
Subdivision B--Transfer of liability to a person who has
22
financial control of a facility
23
73 Category B transfer test
24
A person (the first person) passes the category B transfer test in
25
relation to a facility if:
26
(a) the facility is under the operational control of another person
27
(the operator); and
28
(b) the first person has financial control over the facility; and
29
(c) the first person is not an individual; and
30
(d) the first person is not a foreign person; and
31
Liable entities Part 3
Liability transfer certificates Division 6
Section 74
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 119
(e) if the first person is a member of a controlling corporation's
1
group--the operator is not a member of the group.
2
Note:
For financial control, see section 81.
3
74 Application for liability transfer certificate
4
Scope
5
(1) This section applies if a person passes the category B transfer test
6
in relation to a facility.
7
Application
8
(2) The person may apply to the Authority for the issue to the person
9
of a liability transfer certificate in relation to the facility.
10
(2A) The person is not entitled to make an application unless the person
11
has the written consent of:
12
(a) if the person who has operational control over the facility:
13
(i) is a member of a controlling corporation's group; and
14
(ii) is not the controlling corporation;
15
the controlling corporation; or
16
(b) otherwise--the person who has operational control over the
17
facility.
18
(3) If the person:
19
(a) is a member of a controlling corporation's group; and
20
(b) is not the controlling corporation of the group;
21
the person is not entitled to make an application unless the person
22
has the written consent of the controlling corporation of the group.
23
Form of application
24
(4) An application must:
25
(a) be in writing; and
26
(b) be in a form approved, in writing, by the Authority; and
27
(c) be accompanied by:
28
Part 3 Liable entities
Division 6 Liability transfer certificates
Section 75
120 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(i) if paragraph (2A)(a) applies--the consent of the
1
controlling corporation mentioned in paragraph (2A)(a)
2
to the making of the application; and
3
(ii) if paragraph (2A)(b) applies--the consent of the person
4
mentioned in paragraph (2A)(b) to the making of the
5
application; and
6
(iii) if subsection (3) applies--the consent of the controlling
7
corporation mentioned in subsection (3) to the making
8
of the application; and
9
(iv) such information as is specified in the regulations; and
10
(v) such documents (if any) as are specified in the
11
regulations.
12
(5) The approved form of application may provide for verification by
13
statutory declaration of statements in applications.
14
75 Further information
15
(1) The Authority may, by written notice given to an applicant, require
16
the applicant to give the Authority, within the period specified in
17
the notice, further information in connection with the application.
18
(2) If the applicant breaches the requirement, the Authority may, by
19
written notice given to the applicant:
20
(a) refuse to consider the application; or
21
(b) refuse to take any action, or any further action, in relation to
22
the application.
23
76 Issue of liability transfer certificate
24
Scope
25
(1) This section applies if an application under section 74 has been
26
made for a liability transfer certificate in relation to a facility.
27
Issue of certificate
28
(2) After considering the application, the Authority may issue to the
29
applicant a liability transfer certificate in relation to the facility.
30
Liable entities Part 3
Liability transfer certificates Division 6
Section 76
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 121
Criteria for issue of certificate
1
(3) The Authority must not issue the liability transfer certificate unless
2
the Authority is satisfied that:
3
(a) the applicant passes the category B transfer test in relation to
4
the facility; and
5
(b) the applicant has, and is likely to continue to have:
6
(i) the capacity; and
7
(ii) the access to information; and
8
(iii) the financial resources;
9
necessary for it to comply with obligations that will be
10
imposed on the applicant by the following laws:
11
(iv) this Act;
12
(v) the regulations;
13
(vi) the National Greenhouse and Energy Reporting Act
14
2007;
15
if the certificate is issued; and
16
(c) if the regulations specify one or more other requirements--
17
those requirements are met.
18
Timing
19
(4) The Authority must take all reasonable steps to ensure that a
20
decision is made on the application:
21
(a) if the Authority requires the applicant to give further
22
information under subsection 75(1) in relation to the
23
application--within 90 days after the applicant gave the
24
Authority the information; or
25
(b) otherwise--within 90 days after the application was made.
26
Refusal
27
(5) If the Authority decides to refuse to issue the liability transfer
28
certificate, the Authority must give written notice of the decision to
29
the applicant.
30
Part 3 Liable entities
Division 6 Liability transfer certificates
Section 77
122 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Subdivision C--Other provisions
1
77 Duration of liability transfer certificate
2
(1) A liability transfer certificate comes into force on the day specified
3
in the certificate as the day on which the certificate is to come into
4
force (the start day).
5
(2) The start day may be earlier than the day on which the certificate is
6
issued, so long as:
7
(a) the start day occurs in the same financial year as the day on
8
which the certificate is issued; and
9
(b) each of the following has consented to the specification of
10
the start day:
11
(i) the applicant;
12
(ii) in the case of a certificate issued under section 72,
13
where a controlling corporation consented under
14
subsection 70(2) to the making of the application for the
15
certificate--the controlling corporation;
16
(iii) in the case of a certificate issued under section 76,
17
where a controlling corporation consented under
18
paragraph 74(2A)(a) to the making of the application for
19
the certificate--the controlling corporation;
20
(iv) in the case of a certificate issued under section 76,
21
where a person consented under paragraph 74(2A)(b) to
22
the making of the application for the certificate--the
23
person;
24
(v) in the case of a certificate issued under section 76,
25
where a controlling corporation consented under
26
subsection 74(3) to the making of the application for the
27
certificate--the controlling corporation.
28
(3) A liability transfer certificate issued remains in force indefinitely.
29
(4) Subsection (3) has effect subject to this Division.
30
Liable entities Part 3
Liability transfer certificates Division 6
Section 78
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 123
78 Surrender of liability transfer certificate
1
Scope
2
(1) This section applies if a person is the holder of a liability transfer
3
certificate in relation to a facility.
4
Surrender
5
(2) The person may, with the written consent of the Authority,
6
surrender the certificate.
7
(3) The surrender takes effect when the consent is given by the
8
Authority.
9
Consent to surrender
10
(4) The Authority must not consent to the surrender of the certificate
11
unless:
12
(a) in the case of a certificate issued under section 72, where a
13
controlling corporation consented under subsection 70(2) to
14
the making of the application for the certificate--the
15
controlling corporation has agreed to the surrender of the
16
certificate; and
17
(b) in the case of a certificate issued under section 76, where a
18
controlling corporation consented under paragraph 74(2A)(a)
19
to the making of the application for the certificate--the
20
controlling corporation has agreed to the surrender of the
21
certificate; and
22
(c) in the case of a certificate issued under section 76, where a
23
person consented under paragraph 74(2A)(b) to the making
24
of the application for the certificate--the person has agreed
25
to the surrender of the certificate; and
26
(d) either:
27
(i) the certificate has been in force for at least 4 years; or
28
(ii) the certificate has been in force for less than 4 years, but
29
the Authority is satisfied that there are special
30
circumstances that warrant the giving of consent to the
31
surrender of the certificate.
32
Part 3 Liable entities
Division 6 Liability transfer certificates
Section 79
124 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
79 Cancellation of liability transfer certificate
1
Scope
2
(1) This section applies if a person is the holder of a liability transfer
3
certificate in relation to a facility.
4
Cancellation
5
(2) The Authority must, by written notice given to the person, cancel
6
the certificate if:
7
(a) in a case where the certificate was issued under section 72 to
8
a company--the Authority is satisfied that:
9
(i) the company does not pass the category A transfer test
10
in relation to the facility; or
11
(ii) if a controlling corporation of a group consented under
12
subsection 70(2) to the making of the application for the
13
certificate--the company is not a member of the group;
14
or
15
(iii) an amount payable by the company under section 133
16
remains unpaid more than 30 days after it became due
17
for payment; or
18
(iv) the company has become an externally-administered
19
body corporate (within the meaning of the Corporations
20
Act 2001); or
21
(v) if the regulations specify one or more other grounds for
22
cancellation--at least one of those grounds is applicable
23
to the company; or
24
(b) in a case where the certificate was issued under section 76 to
25
a person--the Authority is satisfied that:
26
(i) the person does not pass the category B transfer test in
27
relation to the facility concerned; or
28
(ii) an amount payable by the person under section 133
29
remains unpaid more than 30 days after it became due
30
for payment; or
31
(iii) the person has become an externally-administered body
32
corporate (within the meaning of the Corporations Act
33
2001); or
34
Liable entities Part 3
Liability transfer certificates Division 6
Section 80
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 125
(iv) if the regulations specify one or more other grounds for
1
cancellation--at least one of those grounds is applicable
2
to the person.
3
80 Liability transfer certificate is not transferable
4
A liability transfer certificate is not transferable.
5
81 Financial control
6
(1) For the purposes of this Act, if a person (the operator) has
7
operational control over a facility, another person (the second
8
person) has financial control over the facility if:
9
(a) under a contract between:
10
(i) the operator; and
11
(ii) the second person;
12
the operator operates the facility on behalf of the second
13
person; or
14
(b) under a contract between:
15
(i) the operator; and
16
(ii) the second person and one or more other persons;
17
the operator operates the facility on behalf of the second
18
person and those other persons; or
19
(c) the second person is able to control the trading or financial
20
relationships of the operator in relation to the facility; or
21
(ca) the second person has the economic benefits from the
22
facility; or
23
(cb) all of the following conditions are satisfied:
24
(i) the second person is a participant in a joint venture;
25
(ii) there is one other participant in the joint venture;
26
(iii) the second person shares the economic benefits from the
27
facility with the other participant;
28
(iv) the second person's share equals or exceeds the share of
29
the other participant; or
30
(cc) all of the following conditions are satisfied:
31
(i) the second person is a participant in a joint venture;
32
Part 3 Liable entities
Division 6 Liability transfer certificates
Section 81
126 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(ii) there are 2 or more other participants in the joint
1
venture;
2
(iii) the second person shares the economic benefits from the
3
facility with the other participants;
4
(iv) no other participant has a share that exceeds the share of
5
the second person; or
6
(cd) all of the following conditions are satisfied:
7
(i) the second person is a partner in a partnership;
8
(ii) there is one other partner in the partnership;
9
(iii) the second person shares the economic benefits from the
10
facility with the other partner;
11
(iv) the second person's share equals or exceeds the share of
12
the other partner; or
13
(d) all of the following conditions are satisfied:
14
(i) the second person is a partner in a partnership;
15
(ii) there are 2 or more other partners in the partnership;
16
(iii) the second person shares the economic benefits from the
17
facility with the other partners;
18
(iv) no other partner has a share that exceeds the share of the
19
second person; or
20
(e) the second person is able to direct or sell the output of the
21
facility; or
22
(f) under the regulations, the second person is taken to have
23
financial control over the facility.
24
(2) In determining whether the second person has that financial
25
control, regard must be had to the economic and commercial
26
substance of the matters mentioned in subsection (1).
27
28
Emissions units Part 4
Introduction Division 1
Section 82
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 127
Part 4--Emissions units
1
Division 1--Introduction
2
82 Simplified outline
3
The following is a simplified outline of this Part:
4
·
The Authority may issue Australian emissions units.
5
·
Most Australian emissions units will be issued as the result of
6
an auction.
7
·
Some Australian emissions units may be issued free of charge
8
or for a fixed charge.
9
·
The national scheme cap limits:
10
(a) the total number of auctioned Australian emissions
11
units; and
12
(b) the total number of free Australian emissions units
13
issued in accordance with the emissions-intensive
14
trade-exposed assistance program; and
15
(c) the total number of free Australian emissions units
16
issued in accordance with Part 9 (coal-fired
17
electricity generation).
18
·
An Australian emissions unit will have a vintage year that
19
consists of a particular financial year.
20
·
An Australian emissions unit is generally transferable.
21
·
Entries may be made in Registry accounts for:
22
(a) Australian emissions units; and
23
(b) Kyoto units; and
24
Part 4 Emissions units
Division 1 Introduction
Section 82
128 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(c) non-Kyoto international emissions units.
1
2
Emissions units Part 4
Australian emissions units Division 2
Section 83
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 129
Division 2--Australian emissions units
1
Subdivision A--Issue of Australian emissions units
2
83 Issue of Australian emissions units
3
The Authority may, on behalf of the Commonwealth, issue units,
4
to be known as Australian emissions units.
5
84 Identification number
6
An Australian emissions unit is to be identified by a unique
7
number, to be known as the identification number of the unit.
8
85 Vintage year
9
(1) The last 4 digits of an Australian emissions unit's identification
10
number are to be the digits of:
11
(a) the calendar year 2012; or
12
(b) a later calendar year.
13
(2) The vintage year of an Australian emissions unit is the eligible
14
financial year that ends on 30 June in that calendar year.
15
Note:
For example, if the last 4 digits of an Australian emissions unit's
16
identification number are 2012, the vintage year of the unit is the
17
eligible financial year that ends on 30 June 2012.
18
86 When Australian emissions units may be issued
19
The Authority may issue an Australian emissions unit with a
20
particular vintage year at any time before the end of 15 December
21
next following the vintage year.
22
Note:
For example, the Authority may, at any time before the end of
23
15 December 2012, issue an Australian emissions unit with the
24
vintage year beginning on 1 July 2011.
25
Part 4 Emissions units
Division 2 Australian emissions units
Section 87
130 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
87 How Australian emissions units are to be issued
1
(1) The Authority is to issue an Australian emissions unit to a person
2
by making an entry for the unit in a Registry account kept by the
3
person.
4
(2) An entry for an Australian emissions unit in a Registry account is
5
to consist of the identification number of the unit.
6
(3) The Authority must not issue an Australian emissions unit to a
7
person unless the person has a Registry account.
8
88 Circumstances in which Australian emissions units may be issued
9
The Authority must not issue an Australian emissions unit
10
otherwise than:
11
(a) as the result of an auction conducted by the Authority; or
12
(b) in accordance with section 89 (issue of units for a fixed
13
charge); or
14
(c) in accordance with the emissions-intensive trade-exposed
15
assistance program; or
16
(d) in accordance with Part 9 (coal-fired electricity generation);
17
or
18
(e) in accordance with Part 10 (reforestation); or
19
(f) in accordance with Part 11 (destruction of synthetic
20
greenhouse gases).
21
89 Issue of Australian emissions units for a fixed charge
22
Application
23
(1) During the issue period set out in an item in the following table, a
24
person who has a Registry account may apply to the Authority for
25
the issue to the person of a specified number of Australian
26
emissions units:
27
(a) with a vintage year set out in the item; and
28
(b) for the per unit charge set out in the item.
29
30
Emissions units Part 4
Australian emissions units Division 2
Section 89
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 131
Issue of Australian emissions units for a fixed charge
Item
Issue period
Vintage year
Charge per
unit
1
The period:
(a) beginning at the emissions
number publication time of
the person for the eligible
financial year beginning on
1 July 2011; and
(b) ending at the end of
15 December 2012.
the eligible financial
year beginning on
1 July 2011
$10
2
The period:
(a) beginning at the emissions
number publication time of
the person for the eligible
financial year beginning on
1 July 2012; and
(b) ending at the end of
15 December 2013.
the eligible financial
year beginning on
1 July 2012
$40 multiplied
by the
indexation
factor for the
eligible
financial year
beginning on
1 July 2011,
multiplied by
the indexation
factor for the
eligible
financial year
beginning on
1 July 2012
3
The period:
(a) beginning at the emissions
number publication time of
the person for the eligible
financial year beginning on
1 July 2013; and
(b) ending at the end of
15 December 2014.
the eligible financial
year beginning on
1 July 2013
the amount
mentioned in
item 2
multiplied by
the indexation
factor for the
eligible
financial year
beginning on
1 July 2013
4
The period:
(a) beginning at the emissions
number publication time of
the person for the eligible
the eligible financial
year beginning on
1 July 2014
the amount
mentioned in
item 3
multiplied by
Part 4 Emissions units
Division 2 Australian emissions units
Section 89
132 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Issue of Australian emissions units for a fixed charge
Item
Issue period
Vintage year
Charge per
unit
financial year beginning on
1 July 2014; and
(b) ending at the end of
15 December 2015.
the indexation
factor for the
eligible
financial year
beginning on
1 July 2014
5
The period:
(a) beginning at the emissions
number publication time of
the person for the eligible
financial year beginning on
1 July 2015; and
(b) ending at the end of
15 December 2016.
the eligible financial
year beginning on
1 July 2015
the amount
mentioned in
item 4
multiplied by
the indexation
factor for the
eligible
financial year
beginning on
1 July 2015
Note 1:
For emissions number publication time, see section 5.
1
Note 2:
For indexation factor, see subsection (7).
2
Maximum number of units
3
(2) The number of Australian emissions units specified in the
4
application must not exceed the number worked out using the
5
following formula:
6
Total number of eligible emissions units
Person's emissions number
surrendered by the person
for the vintage year
in relation to the vintage year
7
Form of application
8
(3) An application must:
9
(a) be in writing; and
10
(b) be in a form approved, in writing, by the Authority.
11
Emissions units Part 4
Australian emissions units Division 2
Section 89
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 133
Issue of units
1
(4) If, during an issue period set out in an item in the table in
2
subsection (1):
3
(a) a person has applied for a specified number of Australian
4
emissions units with a particular vintage year; and
5
(b) the person has tendered the total amount of the charges
6
payable for the issue of the units;
7
the Authority must, as soon as practicable, issue to the person that
8
number of Australian emissions units with that vintage year.
9
Automatic surrender of units
10
(5) If an Australian emissions unit is issued to a person in accordance
11
with this section:
12
(a) immediately after the issue of the unit, the person is taken to
13
have surrendered the unit; and
14
(b) the person is taken to have done so by electronic notice
15
transmitted to the Authority under subsection 129(1); and
16
(c) the notice is taken to have:
17
(i) specified the unit; and
18
(ii) specified the vintage year of the unit as the eligible
19
financial year to which the surrender relates; and
20
(iii) specified the account number of the person's Registry
21
account in which there is an entry for the unit that is
22
being surrendered.
23
(6) An Australian emissions unit issued to a person in accordance with
24
this section cannot be transferred or relinquished.
25
Indexation factor
26
(7) For the purposes of this section, the indexation factor for an
27
eligible financial year is the number worked out by:
28
(a) dividing the index number for the March quarter immediately
29
preceding that eligible financial year by the index number for
30
the March quarter immediately preceding that
31
first-mentioned March quarter; and
32
(b) adding 0.050 to the number worked out under paragraph (a).
33
Part 4 Emissions units
Division 2 Australian emissions units
Section 90
134 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(8) The indexation factor is to be calculated to 3 decimal places
1
(rounding up if the fourth decimal place is 5 or more).
2
(9) Calculations under paragraph (7)(a) are to be made:
3
(a) using only the index numbers published in terms of the most
4
recently published reference base for the Consumer Price
5
Index; and
6
(b) disregarding index numbers published in substitution for
7
previously published index numbers (except where the
8
substituted numbers are published to take account of changes
9
in the reference base).
10
(10) For the purposes of this section, the index number in relation to a
11
quarter is the All Groups Consumer Price Index number (excluding
12
volatile items), being the weighted average of the 8 capital cities,
13
published by the Australian Statistician in respect of that quarter.
14
Publication of fixed charge
15
(11) Before the start of each of the following eligible financial years:
16
(a) the eligible financial year beginning on 1 July 2012;
17
(b) the eligible financial year beginning on 1 July 2013;
18
(c) the eligible financial year beginning on 1 July 2014;
19
(d) the eligible financial year beginning on 1 July 2015;
20
the Authority must publish on its website the per unit charge
21
applicable under subsection (1) for the issue of an Australian
22
emissions unit with a vintage year of that eligible financial year.
23
90 Payment of charges for the issue of Australian emissions units
24
Scope
25
(1) This section applies if:
26
(a) an amount is payable by a person by way of a charge for the
27
issue to the person of an Australian emissions unit; and
28
(b) the unit is to be issued:
29
(i) as the result of an auction; or
30
(ii) in accordance with section 89 (issue of units for a fixed
31
charge).
32
Emissions units Part 4
Australian emissions units Division 2
Section 91
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 135
Payment of charge
1
(2) The charge is payable to the Authority on behalf of the
2
Commonwealth.
3
(3) The Authority must not issue the unit unless the person pays the
4
charge.
5
91 Imposition of charges for the issue of Australian emissions units
6
If a charge payable for the issue of an Australian emissions unit is
7
taxation within the meaning of section 55 of the Constitution:
8
(a) the charge is not imposed by this Act; and
9
(b) the charge is imposed by whichever of the following Acts is
10
applicable:
11
(i) the Carbon Pollution Reduction Scheme (Charges--
12
Customs) Act 2009;
13
(ii) the Carbon Pollution Reduction Scheme (Charges--
14
Excise) Act 2009;
15
(iii) the Carbon Pollution Reduction Scheme (Charges--
16
General) Act 2009.
17
92 Issue of Australian emissions units--national scheme cap number
18
(1) The Authority must not issue an Australian emissions unit with a
19
particular vintage year starting on or after 1 July 2012 unless there
20
is a national scheme cap number for that vintage year.
21
(2) Subsection (1) has effect despite any other provision of this Act.
22
(3) Subsection (1) does not apply to an Australian emissions unit with
23
a vintage year beginning on 1 July 2011.
24
93 Australian emissions units--total number
25
(1) The Authority must ensure that the sum of:
26
(a) the total number of Australian emissions units with a
27
particular vintage year that are offered at auctions conducted
28
by the Authority; and
29
Part 4 Emissions units
Division 2 Australian emissions units
Section 94
136 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(b) the total number of free Australian emissions units with that
1
vintage year issued in accordance with the
2
emissions-intensive trade-exposed assistance program; and
3
(c) the total number of free Australian emissions units with that
4
vintage year issued in accordance with Part 9 (coal-fired
5
electricity generation);
6
equals the national scheme cap number for that vintage year.
7
(2) If an Australian emissions unit is offered at auction on 2 or more
8
occasions, the unit is only counted for the purposes of
9
paragraph (1)(a) on the first of those occasions.
10
(3) Paragraph (1)(a) does not apply to an auction conducted under
11
section 100 or 101.
12
(4) Subsection (1) does not apply to an Australian emissions unit with
13
a vintage year beginning on 1 July 2011.
14
Subdivision B--Property in, and transfer of, Australian
15
emissions units
16
94 An Australian emissions unit is personal property
17
An Australian emissions unit is personal property and, subject to
18
sections 96 and 97, is transmissible by assignment, by will and by
19
devolution by operation of law.
20
95 Transfer of Australian emissions units
21
For the purposes of this Act, if there is an entry for an Australian
22
emissions unit in a Registry account (the first Registry account)
23
kept by a person (the first person):
24
(a) a transfer of the unit from the first Registry account to a
25
Registry account kept by another person consists of:
26
(i) the removal of the entry for the unit from the first
27
Registry account; and
28
(ii) the making of an entry for the unit in the Registry
29
account kept by the other person; and
30
(b) the transfer of the unit from the first Registry account to
31
another Registry account kept by the first person consists of:
32
Emissions units Part 4
Australian emissions units Division 2
Section 96
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 137
(i) the removal of the entry for the unit from the first
1
Registry account; and
2
(ii) the making of an entry for the unit in the other Registry
3
account kept by the first person.
4
96 Transmission of Australian emissions units by assignment
5
(1) A transmission by assignment of an Australian emissions unit is of
6
no force until:
7
(a) the transferor, by electronic notice transmitted to the
8
Authority, instructs the Authority to transfer the unit from the
9
relevant Registry account kept by the transferor to a Registry
10
account kept by the transferee; and
11
(b) the Authority complies with that instruction.
12
(2) An instruction under paragraph (1)(a) must set out:
13
(a) the account number of the transferor's Registry account; and
14
(b) the account number of the transferee's Registry account.
15
(3) If the Authority receives an instruction under paragraph (1)(a), the
16
Authority must comply with the instruction as soon as practicable
17
after receiving it.
18
(4) The Registry must set out a record of each instruction under
19
paragraph (1)(a).
20
(5) If the transferor is the Commonwealth, the Minister may give an
21
instruction under subsection (1) on behalf of the transferor.
22
97 Transmission of Australian emissions units by operation of law
23
etc.
24
Scope
25
(1) This section applies if an Australian emissions unit is transmitted
26
from a person (the transferor) to another person (the transferee)
27
by any lawful means other than by a transfer under section 96.
28
Part 4 Emissions units
Division 2 Australian emissions units
Section 97
138 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Declaration of transmission
1
(2) The transferee must, within 14 days after the transmission, give the
2
Authority:
3
(a) a declaration of transmission; and
4
(b) such evidence of transmission as is specified in the
5
regulations.
6
(3) A declaration of transmission must be made in accordance with the
7
regulations.
8
(4) If the transferee does not already have a Registry account, the
9
declaration of transmission must be accompanied by a request
10
under section 147 for the Authority to open a Registry account in
11
the name of the transferee.
12
(5) If the Authority is satisfied that special circumstances warrant the
13
extension of the 14-day period mentioned in subsection (2), the
14
Authority may extend that period.
15
Transfer of unit--transferee already has a Registry account
16
(6) If the transferee already has a Registry account, the Authority
17
must, as soon as practicable after receiving the declaration of
18
transmission, transfer the unit from the relevant Registry account
19
kept by the transferor to a Registry account kept by the transferee.
20
Transfer of unit--transferee does not have a Registry account
21
(7) If:
22
(a) the transferee does not already have a Registry account; and
23
(b) in accordance with the request under section 147, the
24
Authority has opened a Registry account in the name of the
25
transferee;
26
the Authority must, as soon as practicable after opening the
27
Registry account, transfer the unit from the relevant Registry
28
account kept by the transferor to the Registry account kept by the
29
transferee.
30
Emissions units Part 4
Australian emissions units Division 2
Section 98
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 139
Record
1
(8) If the Authority transfers the unit under subsection (6) or (7), the
2
Registry must set out a record of the declaration of transmission.
3
When the transferee is the Commonwealth
4
(9) If the transferee is the Commonwealth, the Minister may give:
5
(a) the declaration of transmission; and
6
(b) the evidence mentioned in paragraph (2)(b);
7
on behalf of the transferee.
8
98 Transfer of Australian emissions units to another Registry
9
account held by the transferor
10
Scope
11
(1) This section applies if:
12
(a) a person keeps a Registry account (the first Registry
13
account) in which there is an entry for an Australian
14
emissions unit; and
15
(b) the person, by electronic notice transmitted to the Authority,
16
instructs the Authority to transfer the unit from the first
17
Registry account to another Registry account kept by the
18
person; and
19
(c) the instruction sets out:
20
(i) the account number of the first Registry account; and
21
(ii) the account number of the other Registry account.
22
Compliance with instruction
23
(2) If a person gives the Authority an instruction under
24
paragraph (1)(b), the Authority must comply with the instruction as
25
soon as practicable after receiving it.
26
(3) The Registry must set out a record of the instruction under
27
paragraph (1)(b).
28
Part 4 Emissions units
Division 2 Australian emissions units
Section 98A
140 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
98A Equitable interests in relation to an Australian emissions unit
1
(1) This Act does not affect:
2
(a) the creation of; or
3
(b) any dealings with; or
4
(c) the enforcement of;
5
equitable interests in relation to an Australian emissions unit.
6
(2) Subsection (1) is enacted for the avoidance of doubt.
7
Subdivision C--Auctions of Australian emissions units
8
99 Issue of Australian emissions units as the result of an auction
9
The Authority may issue Australian emissions units as the result of
10
an auction conducted by the Authority.
11
100 Secondary market auctions of relinquished Australian emissions
12
units
13
Scope
14
(1) This section applies if there is an entry for an Australian emissions
15
unit in the Commonwealth relinquished units account.
16
Authority may auction unit
17
(2) The Authority may, on behalf of the Commonwealth, auction the
18
unit.
19
101 Secondary market auctions of free Australian emissions units
20
Scope
21
(1) This section applies if:
22
(a) a free Australian emissions unit has been issued to a person:
23
(i) in accordance with the emissions-intensive
24
trade-exposed assistance program; or
25
(ii) in accordance with Part 9 (coal-fired electricity
26
generation); or
27
Emissions units Part 4
Australian emissions units Division 2
Section 102
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 141
(iii) in accordance with Part 10 (reforestation); or
1
(iv) in accordance with Part 11 (destruction of synthetic
2
greenhouse gases); and
3
(b) the unit has not been transferred; and
4
(c) the unit has a vintage year of an eligible financial year
5
beginning on or after 1 July 2012.
6
Authority may auction unit
7
(2) The Authority may, on behalf of the person, auction the unit.
8
Sunset
9
(3) This section ceases to have effect at the end of 31 December 2013.
10
102 Combined auctions of Australian emissions units
11
The Authority may conduct an auction under section 100 or 101 in
12
combination with an auction referred to in section 99.
13
103 Policies, procedures and rules for auctioning Australian
14
emissions units
15
(1) The Authority may, by legislative instrument, determine the
16
policies, procedures and rules that apply in relation to the
17
auctioning of Australian emissions units by the Authority.
18
(2) A determination under subsection (1) may deal with any or all of
19
the following matters:
20
(a) the types of auction;
21
(b) the timing of auctions;
22
(c) advertising of auctions;
23
(d) participants in auctions;
24
(e) fees for participants in auctions;
25
(f) proxy bidding;
26
(g) representatives of participants in auctions;
27
(h) the minimum number of Australian emissions units to which
28
a bid may relate;
29
(i) variation of bids;
30
Part 4 Emissions units
Division 2 Australian emissions units
Section 103A
142 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(j) the total number of units with a particular vintage year that
1
are to be offered at a particular auction under section 99;
2
(k) limits on the total number of units with a particular vintage
3
year that may be acquired by a person as a result of a
4
particular auction;
5
(l) limits on the total number of units with a particular vintage
6
year that may be acquired by the members of a controlling
7
corporation's group as a result of a particular auction;
8
(m) reserve prices or charges (if any);
9
(n) deposits (if any) to be lodged by participants in auctions;
10
(o) the refund or forfeiture of such deposits;
11
(p) guarantees (if any) to be given in respect of payment
12
obligations that are incurred by participants in auctions;
13
(q) timing and methods of payment of prices or charges.
14
(3) Subsection (2) does not limit subsection (1).
15
(4) A fee specified under paragraph (2)(e) must not be such as to
16
amount to taxation.
17
(5) A determination under subsection (1) may make provision in
18
relation to a matter by conferring a power to make a decision of an
19
administrative character on the Authority.
20
(6) To avoid doubt, a determination under subsection (1) is taken to be
21
a law for the purposes of section 28 of the Financial Management
22
and Accountability Act 1997.
23
Subdivision D--Special provisions relating to free Australian
24
emissions units
25
103A Cancellation of certain unused free Australian emissions units
26
Scope
27
(1) This section applies if:
28
(a) an Australian emissions unit was issued:
29
(i) in accordance with the emissions-intensive
30
trade-exposed assistance program; or
31
Emissions units Part 4
Australian emissions units Division 2
Section 103B
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 143
(ii) in accordance with Part 9 (coal-fired electricity
1
generation); and
2
(b) the unit has a vintage year beginning on 1 July 2011; and
3
(c) there was an entry for the unit in a person's Registry account
4
at the end of 15 December 2012.
5
Cancellation of unit
6
(2) The Authority must cancel the unit.
7
(3) The Authority must remove the entry for the unit from the person's
8
Registry account.
9
(4) The Registry must set out a record of each cancellation under
10
subsection (2).
11
103B Buy-back of certain free Australian emissions units
12
Scope
13
(1) This section applies if a person is the registered holder of one or
14
more Australian emissions units that:
15
(a) were issued:
16
(i) in accordance with the emissions-intensive
17
trade-exposed assistance program; or
18
(ii) in accordance with Part 9 (coal-fired electricity
19
generation); and
20
(b) have a vintage year beginning on 1 July 2011.
21
Buy-back
22
(2) During the period:
23
(a) beginning at the start of 15 July 2011; and
24
(b) ending at the end of 1 December 2012;
25
the person may, by electronic notice transmitted to the Authority,
26
request the Authority to cancel the unit or units in exchange for the
27
payment to the person of the amount (the buy-back amount)
28
worked out using the formula:
29
$10
Factor specified in the regulations
Number of units
30
Part 4 Emissions units
Division 2 Australian emissions units
Section 103B
144 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(3) If the Authority receives a request under subsection (2) from a
1
person in relation to one or more Australian emissions units, the
2
Authority must:
3
(a) on a day ascertained in accordance with the regulations:
4
(i) cancel the unit or units; and
5
(ii) remove the entries for the unit or units from the person's
6
Registry account in which there is an entry for the unit
7
or units; and
8
(b) on or as soon as practicable after that day, on behalf of the
9
Commonwealth, pay the buy-back amount to the person.
10
(4) The Registry must set out a record of each cancellation under
11
subsection (3).
12
(5) The Consolidated Revenue Fund is appropriated for the purposes
13
of making payments under this section.
14
15
Emissions units Part 4
Kyoto units Division 3
Section 104
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 145
Division 3--Kyoto units
1
104 Entries for Kyoto units
2
An entry for a Kyoto unit in a Registry account is to consist of the
3
serial number of the unit.
4
105 Issue of Australia's assigned amount units
5
Object
6
(1) The object of this section is to provide for the issue of Australia's
7
assigned amount units for a commitment period.
8
Issue
9
(2) The Minister may, by written notice given to the Authority, direct
10
the Authority to issue to the Commonwealth, in accordance with
11
the Kyoto rules, a specified number of assigned amount units for a
12
specified commitment period.
13
(3) The Authority must comply with a direction under subsection (2).
14
(4) The Authority is to issue an assigned amount unit by making an
15
entry for the unit in a Commonwealth holding account.
16
(5) This section does not, by implication, affect the validity of the
17
issue of assigned amount units, where the units were issued before
18
the commencement of this section under the executive power of the
19
Commonwealth.
20
106 Issue of removal units
21
Object
22
(1) The object of this section is to provide for the issue of Australia's
23
removal units.
24
Part 4 Emissions units
Division 3 Kyoto units
Section 107
146 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Issue
1
(2) The Minister may, by written notice given to the Authority, direct
2
the Authority to issue to the Commonwealth, in accordance with
3
the Kyoto rules, a specified number of removal units.
4
(3) The Authority must comply with a direction under subsection (2).
5
(4) The Authority is to issue a removal unit by making an entry for the
6
unit in a Commonwealth holding account.
7
(5) This section does not, by implication, affect the validity of the
8
issue of removal units, where the units were issued before the
9
commencement of this section under the executive power of the
10
Commonwealth.
11
107 Transfer of Kyoto units
12
(1) For the purposes of this Act, if there is an entry for a Kyoto unit in
13
a Registry account (the first Registry account) kept by a person
14
(the first person):
15
(a) a transfer of the unit from the first Registry account to a
16
Registry account kept by another person consists of:
17
(i) the removal of the entry for the unit from the first
18
Registry account; and
19
(ii) the making of an entry for the unit in the Registry
20
account kept by the other person; and
21
(b) the transfer of the unit from the first Registry account to
22
another Registry account kept by the first person consists of:
23
(i) the removal of the entry for the unit from the first
24
Registry account; and
25
(ii) the making of an entry for the unit in the other Registry
26
account kept by the first person; and
27
(c) the transfer of the unit from the first Registry account to a
28
foreign account kept by another person consists of:
29
(i) the removal of the entry for the unit from the first
30
Registry account; and
31
(ii) the making of an entry for the unit in the foreign
32
account kept by the other person; and
33
Emissions units Part 4
Kyoto units Division 3
Section 108
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 147
(d) the transfer of the unit from the first Registry account to a
1
foreign account kept by the first person consists of:
2
(i) the removal of the entry for the unit from the first
3
Registry account; and
4
(ii) the making of an entry for the unit in the foreign
5
account kept by the first person.
6
(2) For the purposes of this Act, if there is an entry for a Kyoto unit in
7
a foreign account, a transfer of the unit from the foreign account to
8
a Registry account consists of:
9
(a) the removal of the entry for the unit from the foreign account;
10
and
11
(b) the making of an entry for the unit in the Registry account.
12
108 Domestic transfers of Kyoto units
13
(1) If a person (the first person) is the registered holder of one or more
14
Kyoto units, the person may, by electronic notice transmitted to the
15
Authority, instruct the Authority to transfer the units from the
16
relevant Registry account kept by the person (the first Registry
17
account) to:
18
(a) a Registry account kept by another person; or
19
(b) another Registry account kept by the first person.
20
(2) An instruction under subsection (1) must set out:
21
(a) the account number of the first Registry account; and
22
(b) the account number of the Registry account mentioned in
23
paragraph (1)(a) or (b); and
24
(c) such other information as is specified in the regulations.
25
Compliance with instruction
26
(3) If the Authority receives an instruction under subsection (1):
27
(a) if the Authority is satisfied that giving effect to the
28
instruction would breach:
29
(i) regulations made for the purposes of section 112 (Kyoto
30
rules); or
31
(ii) regulations made for the purposes of section 114
32
(commitment period reserve); or
33
Part 4 Emissions units
Division 3 Kyoto units
Section 109
148 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(iii) regulations made for the purposes of section 116A
1
(Commonwealth Registry accounts);
2
the Authority must, by written notice given to the first
3
person, refuse to give effect to the instruction; and
4
(b) if paragraph (a) does not apply--the Authority must give
5
effect to the instruction as soon as practicable after receiving
6
it.
7
(4) If the Authority gives effect to an instruction under subsection (1),
8
the Registry must set out a record of the instruction.
9
(5) If the first person is the Commonwealth, the Minister may give an
10
instruction under subsection (1) on behalf of the first person.
11
109 Outgoing international transfers of Kyoto units
12
(1) If:
13
(a) there is in force a declaration under section 111 that Australia
14
is in compliance with the emissions trading eligibility
15
requirements under the Kyoto rules; and
16
(b) a person (the first person) is the registered holder of one or
17
more Kyoto units;
18
the person may, by electronic notice transmitted to the Authority,
19
instruct the Authority to transfer the units from the relevant
20
Registry account kept by the person (the first Registry account) to:
21
(c) a foreign account kept by another person; or
22
(d) a foreign account kept by the first person.
23
(2) An instruction under subsection (1) must set out:
24
(a) the account number of the relevant Registry account kept by
25
the first person; and
26
(b) such other information as is specified in the regulations.
27
Compliance with instruction
28
(3) If the Authority receives an instruction under subsection (1):
29
(a) if the Authority is satisfied that giving effect to the
30
instruction would breach:
31
Emissions units Part 4
Kyoto units Division 3
Section 110
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 149
(i) regulations made for the purposes of section 112 (Kyoto
1
rules); or
2
(ii) regulations made for the purposes of section 114
3
(commitment period reserve);
4
the Authority must, by written notice given to the first
5
person, refuse to give effect to the instruction; and
6
(b) if paragraph (a) does not apply--the Authority must take
7
such steps as are required by regulations made for the
8
purposes of section 112.
9
(4) Regulations made for the purposes of section 112 may require the
10
Authority to remove the entry for the unit or units from the relevant
11
Registry account.
12
(5) Subsection (4) does not limit section 112.
13
(6) If the Authority takes steps under paragraph (3)(b) in relation to an
14
instruction, the Registry must set out a record of the instruction.
15
(7) If the first person is the Commonwealth, the Minister may give an
16
instruction under subsection (1) on behalf of the first person.
17
110 Incoming international transfers of Kyoto units
18
(1) If:
19
(a) there is in force a declaration under section 111 that Australia
20
is in compliance with the emissions trading eligibility
21
requirements under the Kyoto rules; and
22
(b) the international transaction log forwards to the Authority an
23
instruction for the transfer of a Kyoto unit from a foreign
24
account; and
25
(c) the Kyoto unit is not specified in the regulations as a unit that
26
cannot be transferred to a Registry account; and
27
(d) making an entry for the Kyoto unit in the relevant Registry
28
account would not breach regulations made for the purposes
29
of section 112 (Kyoto rules); and
30
(e) making an entry for the Kyoto unit in the relevant Registry
31
account would not breach regulations made for the purposes
32
of section 116A (Commonwealth Registry accounts);
33
Part 4 Emissions units
Division 3 Kyoto units
Section 111
150 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
the Authority must make an entry for the Kyoto unit in the relevant
1
Registry account.
2
Note:
For specification by class, see subsection 13(3) of the Legislative
3
Instruments Act 2003.
4
(2) However, the Authority may refuse to make an entry for the Kyoto
5
unit in the relevant Registry account if the Authority has
6
reasonable grounds to suspect that the instruction is fraudulent.
7
111 Compliance by Australia with emissions trading eligibility
8
requirements under the Kyoto rules
9
Declaration
10
(1) If the Minister is satisfied that Australia is in compliance with the
11
eligibility requirements mentioned in paragraph 2 of the Annex to
12
Decision 11/CMP.1 of the Meeting of the Kyoto Parties, the
13
Minister must, by writing, declare that Australia is in compliance
14
with the emissions trading eligibility requirements under the Kyoto
15
rules.
16
Revocation of declaration
17
(2) If:
18
(a) a declaration is in force under subsection (1); and
19
(b) the Minister is not satisfied that Australia is in compliance
20
with the eligibility requirements mentioned in paragraph 2 of
21
the Annex to Decision 11/CMP.1 of the Meeting of the
22
Kyoto Parties;
23
the Minister must, by writing, revoke the declaration.
24
Declaration or revocation is not a legislative instrument
25
(3) An instrument made under subsection (1) or (2) is not a legislative
26
instrument.
27
112 Kyoto rules
28
(1) The regulations may make provision for, or in relation to, giving
29
effect to the Kyoto rules, so far as the Kyoto rules relate to:
30
Emissions units Part 4
Kyoto units Division 3
Section 113
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 151
(a) the transfer of a Kyoto unit from a Registry account to a
1
foreign account; or
2
(b) the transfer of a Kyoto unit from a foreign account to a
3
Registry account; or
4
(c) the transfer of a Kyoto unit from a Registry account to a
5
Commonwealth Registry account; or
6
(d) the issue of a Kyoto unit.
7
(2) Regulations made for the purposes of subsection (1) may:
8
(a) prevent, restrict or limit the transfer of Kyoto units from a
9
Registry account to:
10
(i) a foreign account; or
11
(ii) a voluntary cancellation account; or
12
(b) prevent, restrict or limit the transfer of Kyoto units from a
13
foreign account to a Registry account.
14
(3) Subsection (2) does not limit subsection (1).
15
113 Carry-over restrictions
16
Kyoto units for which carry-over is permitted
17
(1) The regulations may make provision for, or in relation to, the
18
following matters:
19
(a) the identification of:
20
(i) assigned amount units in Registry accounts; or
21
(ii) certified emission reductions (other than temporary
22
certified emission reductions or long-term certified
23
emission reductions) in Registry accounts; or
24
(iii) emission reduction units (other than emission reduction
25
units that have been converted from removal units) in
26
Registry accounts;
27
as Kyoto units for which carry-over is permitted subject to
28
such limits or restrictions (if any) as are specified in the
29
regulations;
30
(b) the procedures for the carry-over of such Kyoto units;
31
(c) requiring the Authority to transfer from the relevant Registry
32
account to a mandatory cancellation account any such Kyoto
33
Part 4 Emissions units
Division 3 Kyoto units
Section 114
152 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
units that have not been carried over in accordance with those
1
procedures;
2
(d) prohibiting the surrender of any or all such Kyoto units
3
during a period ascertained in accordance with the
4
regulations.
5
Kyoto units for which carry-over is not permitted
6
(2) The regulations may make provision for, or in relation to, the
7
following matters:
8
(a) the identification of Kyoto units for which carry-over is not
9
permitted;
10
(b) requiring the Authority to transfer from the relevant Registry
11
account to a mandatory cancellation account any such Kyoto
12
units held in the Registry account at a time ascertained in
13
accordance with the regulations;
14
(c) prohibiting the surrender of any such Kyoto units after a time
15
ascertained in accordance with the regulations.
16
(3) Regulations made for the purposes of paragraph (2)(a) must
17
identify the following units issued in relation to the relevant
18
commitment period as units for which carry-over is not permitted:
19
(a) removal units;
20
(b) temporary certified emission reductions;
21
(c) long-term certified emission reductions;
22
(d) emission reduction units that have been converted from
23
removal units.
24
Kyoto rules
25
(4) Regulations made for the purposes of this section must not be
26
inconsistent with the Kyoto rules.
27
114 Commitment period reserve
28
(1) The regulations may make provision for, or in relation to, the
29
management of Australia's commitment period reserve.
30
Emissions units Part 4
Kyoto units Division 3
Section 115
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 153
(2) Regulations made for the purposes of subsection (1) may prevent,
1
restrict or limit the transfer of Kyoto units from a Registry account
2
to:
3
(a) a foreign account; or
4
(b) a voluntary cancellation account.
5
115 Cancellation of temporary certified emission reductions or
6
long-term certified emission reductions
7
Scope
8
(1) This section applies if:
9
(a) a person is the holder of a Registry account in which there is
10
an entry for a temporary certified emission reduction or a
11
long-term certified emission reduction; and
12
(b) the temporary certified emission reduction or long-term
13
certified emission reduction expires.
14
Transfer to mandatory cancellation account
15
(2) The Authority must, in accordance with the regulations, transfer
16
the temporary certified emission reduction or long-term certified
17
emission reduction to a mandatory cancellation account.
18
116 Replacement of long-term certified emission reductions
19
Scope
20
(1) This section applies if:
21
(a) a person is the holder of a Registry account in which there is
22
an entry for a long-term certified emission reduction; and
23
(b) under the regulations, the person is required to replace the
24
long-term certified emission reduction by a particular time
25
ascertained in accordance with the regulations; and
26
(c) the person breaches that requirement.
27
Part 4 Emissions units
Division 3 Kyoto units
Section 116
154 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Transfer to mandatory cancellation account
1
(2) The Authority must, in accordance with the regulations, transfer
2
the long-term certified emission reduction to a mandatory
3
cancellation account.
4
Replacement of long-term certified emission reduction
5
(3) For the purposes of this section, if a long-term certified emission
6
reduction relates to a clean development mechanism project, the
7
replacement by the person of the long-term certified emission
8
reduction consists of instructing the Authority under section 108 to
9
transfer:
10
(a) an assigned amount unit; or
11
(b) a removal unit; or
12
(c) an emission reduction unit; or
13
(d) a certified emission reduction (other than a temporary
14
certified emission reduction or a long-term certified emission
15
reduction); or
16
(e) a long-term certified emission reduction relating to the
17
project;
18
from a Registry account kept by the person to whichever of the
19
following accounts is taken, under the regulations, to be the
20
appropriate account:
21
(f) the long-term certified emission reduction replacement
22
(storage reversal) account;
23
(g) the long-term certified emission reduction replacement
24
(non-certification) account.
25
Identification of long-term certified emission reductions for which
26
replacement is required
27
(4) Regulations made for the purposes of paragraph (1)(b) may make
28
provision for, or in relation to, the identification of long-term
29
certified emission reductions for which replacement is required.
30
Emissions units Part 4
Kyoto units Division 3
Section 116A
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 155
116A Restrictions on transfer of Kyoto units to a Commonwealth
1
Registry account
2
The regulations may prevent, restrict or limit the transfer of Kyoto
3
units from:
4
(a) a Registry account; or
5
(b) a foreign account;
6
to a Commonwealth Registry account.
7
116B A registered Kyoto unit is personal property for certain
8
purposes
9
Scope
10
(1) This section applies if there is an entry for a Kyoto unit in a
11
Registry account.
12
Personal property
13
(2) For each of the following purposes:
14
(a) the purposes of the Bankruptcy Act 1966;
15
(b) the purposes of Chapter 5 of the Corporations Act 2001;
16
(c) the purposes of the law relating to wills, intestacy and
17
deceased estates;
18
(d) a prescribed purpose;
19
the unit is personal property and, subject to section 116C, is
20
transmissible by will and by devolution by operation of law.
21
116C Transmission of registered Kyoto units by operation of law
22
etc.
23
Scope
24
(1) This section applies if:
25
(a) under section 116B, a Kyoto unit is personal property for a
26
particular purpose; and
27
(b) the unit is transmitted from a person (the transferor) to
28
another person (the transferee) by any lawful means for that
29
purpose.
30
Part 4 Emissions units
Division 3 Kyoto units
Section 116C
156 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Declaration of transmission
1
(2) The transferee must, within 14 days after the transmission, give the
2
Authority:
3
(a) a declaration of transmission; and
4
(b) such evidence of transmission as is specified in the
5
regulations.
6
(3) A declaration of transmission must be made in accordance with the
7
regulations.
8
(4) If the transferee does not already have a Registry account, the
9
declaration of transmission must be accompanied by a request
10
under section 147 for the Authority to open a Registry account in
11
the name of the transferee.
12
(5) If the Authority is satisfied that special circumstances warrant the
13
extension of the 14-day period mentioned in subsection (2), the
14
Authority may extend that period.
15
Transfer of unit--transferee already has a Registry account
16
(6) If the transferee already has a Registry account, the Authority
17
must, as soon as practicable after receiving the declaration of
18
transmission, transfer the unit from the relevant Registry account
19
kept by the transferor to a Registry account kept by the transferee.
20
Transfer of unit--transferee does not have a Registry account
21
(7) If:
22
(a) the transferee does not already have a Registry account; and
23
(b) in accordance with the request under section 147, the
24
Authority has opened a Registry account in the name of the
25
transferee;
26
the Authority must, as soon as practicable after opening the
27
Registry account, transfer the unit from the relevant Registry
28
account kept by the transferor to the Registry account kept by the
29
transferee.
30
Emissions units Part 4
Kyoto units Division 3
Section 116C
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 157
Record
1
(8) If the Authority transfers the unit under subsection (6) or (7), the
2
Registry must set out a record of the declaration of transmission.
3
When the transferee is the Commonwealth
4
(9) If the transferee is the Commonwealth, the Minister may give:
5
(a) the declaration of transmission; and
6
(b) the evidence mentioned in paragraph (2)(b);
7
on behalf of the transferee.
8
9
Part 4 Emissions units
Division 4 Non-Kyoto international emissions units
Section 117
158 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Division 4--Non-Kyoto international emissions units
1
117 Entries for non-Kyoto international emissions units
2
An entry for a non-Kyoto international emissions unit in a Registry
3
account is to consist of the serial number (however described) of
4
the unit.
5
118 Transfer of non-Kyoto international emissions units
6
(1) For the purposes of this Act, if there is an entry for a non-Kyoto
7
international emissions unit in a Registry account (the first
8
Registry account) kept by a person (the first person):
9
(a) a transfer of the unit from the first Registry account to a
10
Registry account kept by another person consists of:
11
(i) the removal of the entry for the unit from the first
12
Registry account; and
13
(ii) the making of an entry for the unit in the Registry
14
account kept by the other person; and
15
(b) the transfer of the unit from the first Registry account to
16
another Registry account kept by the first person consists of:
17
(i) the removal of the entry for the unit from the first
18
Registry account; and
19
(ii) the making of an entry for the unit in the other Registry
20
account kept by the first person; and
21
(c) the transfer of the unit from the first Registry account to a
22
foreign account kept by another person consists of:
23
(i) the removal of the entry for the unit from the first
24
Registry account; and
25
(ii) the making of an entry for the unit in the foreign
26
account kept by the other person; and
27
(d) the transfer of the unit from the first Registry account to a
28
foreign account kept by the first person consists of:
29
(i) the removal of the entry for the unit from the first
30
Registry account; and
31
(ii) the making of an entry for the unit in the foreign
32
account kept by the first person.
33
Emissions units Part 4
Non-Kyoto international emissions units Division 4
Section 119
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 159
(2) For the purposes of this Act, if there is an entry for a non-Kyoto
1
international emissions unit in a foreign account, a transfer of the
2
unit from the foreign account to a Registry account consists of:
3
(a) the removal of the entry for the unit from the foreign account;
4
and
5
(b) the making of an entry for the unit in the Registry account.
6
119 Domestic transfers of non-Kyoto international emissions units
7
(1) If a person (the first person) is the registered holder of one or more
8
non-Kyoto international emissions units, the person may, by
9
electronic notice transmitted to the Authority, instruct the
10
Authority to transfer the units from the relevant Registry account
11
kept by the person (the first Registry account) to:
12
(a) a Registry account kept by another person; or
13
(b) another Registry account kept by the first person.
14
(2) An instruction under subsection (1) must set out:
15
(a) the account number of the first Registry account; and
16
(b) the account number of the Registry account mentioned in
17
paragraph (1)(a) or (b); and
18
(c) such other information as is specified in the regulations.
19
Compliance with instruction
20
(3) If:
21
(a) the Authority receives an instruction under subsection (1);
22
and
23
(b) the conditions (if any) specified in the regulations are
24
satisfied;
25
the Authority must give effect to the instruction as soon as
26
practicable after receiving it.
27
(4) If the Authority gives effect to an instruction under subsection (1),
28
the Registry must set out a record of the instruction.
29
(5) If the first person is the Commonwealth, the Minister may give an
30
instruction under subsection (1) on behalf of the first person.
31
Part 4 Emissions units
Division 4 Non-Kyoto international emissions units
Section 120
160 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
120 Outgoing international transfers of non-Kyoto international
1
emissions units
2
(1) If a person (the first person) is the registered holder of one or more
3
non-Kyoto international emissions units, the person may, by
4
electronic notice transmitted to the Authority, instruct the
5
Authority to transfer the units from the relevant Registry account
6
kept by the person (the first Registry account) to:
7
(a) a foreign account kept by another person; or
8
(b) a foreign account kept by the first person.
9
(2) An instruction under subsection (1) must set out:
10
(a) the account number of the relevant Registry account kept by
11
the first person; and
12
(b) such other information as is specified in the regulations.
13
Compliance with instruction
14
(3) If:
15
(a) the Authority receives an instruction under subsection (1);
16
and
17
(b) the conditions (if any) specified in the regulations are
18
satisfied;
19
the Authority must take such steps as are required by the
20
regulations.
21
(4) Regulations made for the purposes of subsection (3) may require
22
the Authority to remove the entry for the unit or units from the
23
relevant Registry account.
24
(5) Subsection (4) does not limit subsection (3).
25
(6) If the Authority takes steps under subsection (3) in relation to an
26
instruction, the Registry must set out a record of the instruction.
27
(7) If the first person is the Commonwealth, the Minister may give an
28
instruction under subsection (1) on behalf of the first person.
29
Emissions units Part 4
Non-Kyoto international emissions units Division 4
Section 121
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 161
121 Incoming international transfers of non-Kyoto international
1
emissions units
2
(1) If:
3
(a) the Authority receives an instruction for the transfer of a
4
non-Kyoto international emissions unit from a foreign
5
account; and
6
(b) the conditions (if any) specified in the regulations are
7
satisfied;
8
the Authority must make an entry for the non-Kyoto international
9
emissions unit in the relevant Registry account.
10
(2) However, the Authority may refuse to make an entry for the
11
non-Kyoto international emissions unit in the relevant Registry
12
account if the Authority has reasonable grounds to suspect that the
13
instruction is fraudulent.
14
122 Surrender restrictions
15
The regulations may make provision for, or in relation to,
16
prohibiting the surrender of non-Kyoto international emissions
17
units.
18
122A A registered non-Kyoto international emissions unit is
19
personal property for certain purposes
20
Scope
21
(1) This section applies if there is an entry for a non-Kyoto
22
international emissions unit in a Registry account.
23
Personal property
24
(2) For each of the following purposes:
25
(a) the purposes of the Bankruptcy Act 1966;
26
(b) the purposes of Chapter 5 of the Corporations Act 2001;
27
(c) the purposes of the law relating to wills, intestacy and
28
deceased estates;
29
(d) a prescribed purpose;
30
Part 4 Emissions units
Division 4 Non-Kyoto international emissions units
Section 122B
162 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
the unit is personal property and, subject to section 122B, is
1
transmissible by will and by devolution by operation of law.
2
122B Transmission of registered non-Kyoto international emissions
3
units by operation of law etc.
4
Scope
5
(1) This section applies if:
6
(a) under section 122A, a non-Kyoto international emissions unit
7
is personal property for a particular purpose; and
8
(b) the unit is transmitted from a person (the transferor) to
9
another person (the transferee) by any lawful means for that
10
purpose.
11
Declaration of transmission
12
(2) The transferee must, within 14 days after the transmission, give the
13
Authority:
14
(a) a declaration of transmission; and
15
(b) such evidence of transmission as is specified in the
16
regulations.
17
(3) A declaration of transmission must be made in accordance with the
18
regulations.
19
(4) If the transferee does not already have a Registry account, the
20
declaration of transmission must be accompanied by a request
21
under section 147 for the Authority to open a Registry account in
22
the name of the transferee.
23
(5) If the Authority is satisfied that special circumstances warrant the
24
extension of the 14-day period mentioned in subsection (2), the
25
Authority may extend that period.
26
Transfer of unit--transferee already has a Registry account
27
(6) If the transferee already has a Registry account, the Authority
28
must, as soon as practicable after receiving the declaration of
29
transmission, transfer the unit from the relevant Registry account
30
kept by the transferor to a Registry account kept by the transferee.
31
Emissions units Part 4
Non-Kyoto international emissions units Division 4
Section 123
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 163
Transfer of unit--transferee does not have a Registry account
1
(7) If:
2
(a) the transferee does not already have a Registry account; and
3
(b) in accordance with the request under section 147, the
4
Authority has opened a Registry account in the name of the
5
transferee;
6
the Authority must, as soon as practicable after opening the
7
Registry account, transfer the unit from the relevant Registry
8
account kept by the transferor to the Registry account kept by the
9
transferee.
10
Record
11
(8) If the Authority transfers the unit under subsection (6) or (7), the
12
Registry must set out a record of the declaration of transmission.
13
When the transferee is the Commonwealth
14
(9) If the transferee is the Commonwealth, the Minister may give:
15
(a) the declaration of transmission; and
16
(b) the evidence mentioned in paragraph (2)(b);
17
on behalf of the transferee.
18
123 Regulations about non-Kyoto international emissions units
19
The regulations may make further provision in relation to
20
non-Kyoto international emissions units.
21
22
Part 5 Emissions number
Section 124
164 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Part 5--Emissions number
1
2
124 Simplified outline
3
The following is a simplified outline of this Part:
4
·
If a person is a liable entity for a financial year, the person's
5
emissions number for the financial year is the total of the
6
person's provisional emissions numbers for the financial year.
7
·
A person's emissions number will be increased if the person
8
failed to surrender sufficient units for the previous financial
9
year.
10
·
A person's emissions number will be reduced if the person
11
surrendered an excess number of eligible emissions units for
12
the previous financial year.
13
·
The Authority may make an advisory assessment of a person's
14
emissions number for a financial year.
15
Note 1:
If a person is a liable entity for a financial year, the person must
16
surrender a number of eligible emissions units equal to the person's
17
emissions number for the financial year--see section 132.
18
Note 2:
An emissions number is reported under section 22A of the National
19
Greenhouse and Energy Reporting Act 2007.
20
125 Emissions number
21
Scope
22
(1) This section applies if a person is a liable entity for an eligible
23
financial year (the current eligible financial year).
24
Emissions number
25
(2) For the purposes of this Act, the person's emissions number for
26
the current eligible financial year is the sum of:
27
(a) the total of the person's provisional emissions numbers (if
28
any) for the current eligible financial year; and
29
Emissions number Part 5
Section 126
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 165
(b) the person's make-good number (if any) for the previous
1
eligible financial year;
2
reduced (but not below zero) by the person's excess surrender
3
number (if any) for the previous eligible financial year.
4
(3) If the person's emissions number for the current eligible financial
5
year is not a whole number, the emissions number is to be rounded
6
to the nearest whole number (with a number ending in .5 being
7
rounded down).
8
(4) For the purposes of subsection (3), zero is taken to be a whole
9
number.
10
(5) The person's emissions number for the current eligible financial
11
year may be zero.
12
126 Assessment of emissions number--incorrect report given by
13
liable entity
14
Scope
15
(1) This section applies if:
16
(a) a report relating to an eligible financial year was given under
17
section 22A of the National Greenhouse and Energy
18
Reporting Act 2007 by a person who was a liable entity for
19
the eligible financial year; and
20
(b) the report was given before the end of 4 months after the end
21
of the current eligible financial year; and
22
(c) the Authority has reasonable grounds to believe that the
23
number specified in the report as the person's emissions
24
number for the eligible financial year is incorrect.
25
Assessment
26
(2) The Authority may:
27
(a) make an assessment of the person's emissions number for the
28
eligible financial year; and
29
(b) give written notice of the assessment to the person.
30
Part 5 Emissions number
Section 127
166 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(3) A notice of assessment under paragraph (2)(b) must be
1
accompanied by a statement setting out the effect of section 132.
2
Amendment of assessments
3
(4) The Authority may amend an assessment under this section at any
4
time.
5
(5) If the Authority amends an assessment, the Authority must give
6
written notice of the amendment to the person to whom the
7
assessment relates.
8
(6) For the purposes of this Act, an amended assessment is taken to be
9
an assessment under this section.
10
Advisory character of assessment
11
(7) A notice of assessment under this section is an instrument of an
12
advisory character.
13
127 Assessment of emissions number--no report given by liable
14
entity
15
Scope
16
(1) This section applies if:
17
(a) a person has not, before the end of 4 months after the end of
18
an eligible financial year, given a report under section 22A of
19
the National Greenhouse and Energy Reporting Act 2007 in
20
relation to the eligible financial year; and
21
(b) the Authority has reasonable grounds to believe that the
22
person is a liable entity for the eligible financial year.
23
Assessment
24
(2) The Authority may:
25
(a) make an assessment of the person's emissions number for the
26
eligible financial year; and
27
(b) give written notice of the assessment to the person.
28
Emissions number Part 5
Section 127
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 167
(3) A notice of assessment under paragraph (2)(b) must be
1
accompanied by a statement setting out the effect of section 132.
2
Amendment of assessments
3
(4) The Authority may amend an assessment under this section at any
4
time.
5
(5) If the Authority amends an assessment, the Authority must give
6
written notice of the amendment to the person to whom the
7
assessment relates.
8
(6) For the purposes of this Act, an amended assessment is taken to be
9
an assessment under this section.
10
Advisory character of assessment
11
(7) A notice of assessment under this section is an instrument of an
12
advisory character.
13
14
Part 6 Surrender of eligible emissions units
Division 1 Introduction
Section 128
168 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Part 6--Surrender of eligible emissions units
1
Division 1--Introduction
2
128 Simplified outline
3
The following is a simplified outline of this Part:
4
·
If a person is the registered holder of one or more eligible
5
emissions units, the person may, by electronic notice
6
transmitted to the Authority, surrender any or all of those
7
units.
8
·
If a person is a liable entity for a financial year, and the person
9
does not surrender any eligible emissions units by the end of
10
15 December next following the financial year:
11
(a) the person will have a unit shortfall for the
12
financial year; and
13
(b) the number of units in that shortfall is equal to the
14
person's emissions number for the financial year.
15
·
If a person is a liable entity for a financial year, and by the end
16
of 15 December next following the financial year, the number
17
of surrendered eligible emissions units is less than the
18
person's emissions number for the financial year:
19
(a) the person will have a unit shortfall for the
20
financial year; and
21
(b) the number of units in that shortfall is equal to the
22
difference between the emissions number and the
23
number of surrendered units.
24
·
The Authority may make an assessment of a unit shortfall.
25
·
A person who is a liable entity for a financial year must take
26
such action, by way of the surrender of eligible emissions
27
Surrender of eligible emissions units Part 6
Introduction Division 1
Section 128
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 169
units, as is necessary to ensure that at the end of 15 December
1
next following the financial year, the person does not have a
2
unit shortfall for the financial year.
3
·
An administrative penalty is payable if a person has a unit
4
shortfall for a financial year.
5
Note 1:
If a person has a unit shortfall for a financial year, the person will be
6
required to make good the shortfall in the next financial year.
7
Note 2:
If a person surrenders an excess number of eligible emissions units in
8
relation to a financial year, the excess will reduce the person's liability
9
for the next financial year.
10
11
Part 6 Surrender of eligible emissions units
Division 2 How eligible emissions units are surrendered
Section 129
170 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Division 2--How eligible emissions units are surrendered
1
129 How eligible emissions units are surrendered
2
(1) If a person is the registered holder of one or more eligible
3
emissions units, the person may, by electronic notice transmitted to
4
the Authority during an eligible financial year, surrender any or all
5
of those units.
6
Note:
A liable entity may be required to surrender units--see section 132.
7
(2) A notice under subsection (1) must:
8
(a) specify the eligible emissions unit or units that are being
9
surrendered; and
10
(b) specify the eligible financial year to which the surrender
11
relates; and
12
(c) specify the account number or account numbers of the
13
person's Registry account, or the person's Registry accounts,
14
in which there is an entry or entries for the eligible emissions
15
unit or units that are being surrendered.
16
(3) The eligible financial year specified under paragraph (2)(b) must
17
be:
18
(a) the eligible financial year in which the electronic notice was
19
transmitted; or
20
(b) an earlier eligible financial year.
21
(4) An Australian emissions unit must not be surrendered in relation to
22
an eligible financial year unless that eligible financial year is:
23
(a) the vintage year of the unit; or
24
(b) an eligible financial year later than the vintage year of the
25
unit; or
26
(c) the eligible financial year immediately preceding the vintage
27
year of the unit.
28
Note:
See also subsection 130(4) (borrowing limit).
29
(5) A person must not surrender, in relation to an eligible financial
30
year, an Australian emissions unit that has a vintage year that next
31
follows the eligible financial year unless the electronic notice is
32
Surrender of eligible emissions units Part 6
How eligible emissions units are surrendered Division 2
Section 129
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 171
transmitted after the emissions number publication time of the
1
person for the eligible financial year.
2
Note:
For emissions number publication time, see section 5.
3
(5A) If:
4
(a) an Australian emissions unit was issued:
5
(i) in accordance with the emissions-intensive
6
trade-exposed assistance program; or
7
(ii) in accordance with Part 9 (coal-fired electricity
8
generation); and
9
(b) the unit has a vintage year beginning on 1 July 2011;
10
the unit must not be surrendered in relation to an eligible financial
11
year unless that eligible financial year is the vintage year of the
12
unit.
13
(6) A Kyoto unit must not be surrendered if the surrender would
14
breach regulations made for the purposes of section 113
15
(carry-over restrictions).
16
(6A) An eligible international emissions unit must not be surrendered in
17
relation to the eligible financial year beginning on 1 July 2011.
18
(7) An eligible international emissions unit specified in the regulations
19
must not be surrendered in relation to an eligible financial year
20
specified in the regulations. Regulations made for the purposes of
21
this subsection must not specify an eligible financial year that
22
begins before the regulations are registered under the Legislative
23
Instruments Act 2003.
24
Note:
For specification by class, see subsection 13(3) of the Legislative
25
Instruments Act 2003.
26
(7A) In making a recommendation to the Governor-General about
27
regulations to be made for the purposes of subsection (7), the
28
Minister may have regard to:
29
(aa) Australia's international objectives; and
30
(a) Australia's international obligations under:
31
(i) the Climate Change Convention; and
32
(ii) the Kyoto Protocol; and
33
Part 6 Surrender of eligible emissions units
Division 2 How eligible emissions units are surrendered
Section 129
172 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(b) the environmental integrity of the carbon pollution reduction
1
scheme; and
2
(c) such other matters (if any) as the Minister considers relevant.
3
(8) Any of the following:
4
(a) a removal unit issued during the first commitment period;
5
(b) an emission reduction unit:
6
(i) issued during the first commitment period; and
7
(ii) that has been converted from a removal unit;
8
must not be surrendered in relation to:
9
(c) the eligible financial year beginning on 1 July 2013; or
10
(d) a later eligible financial year.
11
(9) A non-Kyoto international emissions unit must not be surrendered
12
if the surrender would breach regulations made for the purposes of
13
section 122 (surrender restrictions).
14
(10) If an Australian emissions unit is surrendered by a person:
15
(a) the unit is cancelled; and
16
(b) the Authority must remove the entry for the unit from the
17
person's Registry account in which there is an entry for the
18
unit.
19
(11) If a Kyoto unit is surrendered by a person:
20
(a) the Authority must remove the entry for the unit from the
21
person's Registry account in which there is an entry for the
22
unit; and
23
(b) the Authority must make an entry for the unit in a
24
Commonwealth holding account.
25
(12) If a non-Kyoto international emissions unit is surrendered by a
26
person:
27
(a) the Authority must take such action in relation to the unit as
28
is specified in the regulations; and
29
(b) the Authority must remove the entry for the unit from the
30
person's Registry account in which there is an entry for the
31
unit.
32
Surrender of eligible emissions units Part 6
How eligible emissions units are surrendered Division 2
Section 129
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 173
(13) The Registry must set out a record of each notice under
1
subsection (1).
2
3
Part 6 Surrender of eligible emissions units
Division 3 Unit shortfalls
Section 130
174 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Division 3--Unit shortfalls
1
130 Unit shortfalls
2
Scope
3
(1) This section applies if:
4
(a) a person is a liable entity for an eligible financial year (the
5
current eligible financial year); and
6
(b) the person's emissions number for the current eligible
7
financial year is 1 or more.
8
No units surrendered
9
(2) If, during the period (the surrender period):
10
(a) beginning at the start of the current eligible financial year;
11
and
12
(b) ending at the end of 15 December in the next eligible
13
financial year;
14
the person has not surrendered any eligible emissions units in
15
relation to the current eligible financial year, then, at the end of the
16
surrender period:
17
(c) the person has a unit shortfall for the current eligible
18
financial year; and
19
(d) the number of units in that shortfall is equal to the person's
20
emissions number for the current eligible financial year.
21
Surrender of insufficient units
22
(3) If, during the period (the surrender period):
23
(a) beginning at the start of the current eligible financial year;
24
and
25
(b) ending at the end of 15 December in the next eligible
26
financial year;
27
the person surrendered one or more eligible emissions units in
28
relation to the current eligible financial year, but the number of
29
surrendered units is less than the person's emissions number for the
30
current eligible financial year, then, at the end of the surrender
31
period:
32
Surrender of eligible emissions units Part 6
Unit shortfalls Division 3
Section 131
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 175
(c) the person has a unit shortfall for the current eligible
1
financial year; and
2
(d) the number of units in that shortfall is worked out using the
3
formula:
4
Emissions number
Number of surrendered units
5
Borrowing limit
6
(4) If:
7
(a) during the surrender period mentioned in subsection (3), the
8
person surrendered, in relation to the current eligible
9
financial year, Australian emissions units (the borrowed
10
units) that have a vintage year that next follows the eligible
11
financial year; and
12
(b) the number of borrowed units exceeds 5% of the person's
13
emissions number for the current eligible financial year;
14
subsection (3) has effect as if, during the surrender period, the
15
person had not surrendered, in relation to the current eligible
16
financial year, the number of borrowed units that equals the excess.
17
131 Assessment of unit shortfall
18
Scope
19
(1) This section applies if the Authority has reasonable grounds to
20
believe that:
21
(a) a person is a liable entity for an eligible financial year (the
22
current eligible financial year); and
23
(b) as at the end of 15 December in the next eligible financial
24
year, the person had a unit shortfall for the current eligible
25
financial year.
26
Assessment
27
(2) If the Authority has reasonable grounds to believe that:
28
(a) the person has made a false or misleading statement to the
29
Authority that is relevant to ascertaining the person's unit
30
shortfall for the current eligible financial year; or
31
Part 6 Surrender of eligible emissions units
Division 3 Unit shortfalls
Section 131
176 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(b) the person has otherwise engaged in fraudulent conduct that
1
is relevant to ascertaining the person's unit shortfall for the
2
current eligible financial year;
3
the Authority may, at any time:
4
(c) make an assessment of the person's unit shortfall for the
5
current eligible financial year; and
6
(d) give written notice of the assessment to the person.
7
(3) If subsection (2) does not apply, the Authority may, at any time
8
within 4 years after the end of the current eligible financial year:
9
(a) make an assessment of the person's unit shortfall for the
10
current eligible financial year; and
11
(b) give written notice of the assessment to the person.
12
(4) In making an assessment under this section, the Authority may rely
13
on a report given under section 22A of the National Greenhouse
14
and Energy Reporting Act 2007 by the person concerned.
15
Amendment of assessments
16
(5) The Authority may amend an assessment under subsection (2) at
17
any time.
18
(6) The Authority may amend an assessment under subsection (3) at
19
any time within 4 years after the end of the current eligible
20
financial year.
21
(7) If the Authority amends an assessment, the Authority must give
22
written notice of the amendment to the person to whom the
23
assessment relates.
24
(8) For the purposes of this Act, an amended assessment is taken to be
25
an assessment under this section.
26
Advisory character of assessment
27
(9) A notice of assessment under this section is an instrument of an
28
advisory character.
29
Surrender of eligible emissions units Part 6
Obligation to surrender eligible emissions units Division 4
Section 132
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 177
Division 4--Obligation to surrender eligible emissions
1
units
2
132 Obligation to surrender eligible emissions units
3
If:
4
(a) a person is a liable entity for an eligible financial year (the
5
current eligible financial year); and
6
(b) the person's emissions number for the current eligible
7
financial year is 1 or more; and
8
(c) there is a national scheme cap number for the current eligible
9
financial year;
10
the person must take such action, by way of the surrender of
11
eligible emissions units, as is necessary to ensure that at the end of
12
15 December in the next eligible financial year, the person does not
13
have a unit shortfall for the current eligible financial year.
14
Note:
For penalty, see section 133.
15
133 Penalty for unit shortfall
16
Penalty
17
(1) If:
18
(a) a person is a liable entity for an eligible financial year (the
19
current eligible financial year); and
20
(b) at the end of 15 December in the next eligible financial year,
21
the person has a unit shortfall for the current eligible
22
financial year;
23
the person is liable to pay to the Commonwealth, by way of
24
penalty, an amount worked out using the formula:
25
Number of units in the
Prescribed amount for
unit shortfall
the current eligible financial year
26
where:
27
prescribed amount for the current eligible financial year means:
28
(a) if the current eligible financial year begins on 1 July 2011--
29
$11; or
30
Part 6 Surrender of eligible emissions units
Division 4 Obligation to surrender eligible emissions units
Section 134
178 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(b) in any other case:
1
(i) if an amount is specified in the regulations for the
2
current eligible financial year--that amount; or
3
(ii) otherwise--an amount equal to 110% of the benchmark
4
average auction price for the previous financial year.
5
Maximum prescribed amount
6
(2) An amount specified in regulations made for the purposes of
7
paragraph (b) of the definition of prescribed amount for the
8
current eligible financial year in subsection (1) in relation to an
9
eligible financial year must not exceed 110% of the benchmark
10
average auction price for the previous financial year.
11
(3) As soon as practicable after the end of each financial year, the
12
Authority must:
13
(a) calculate the benchmark average auction price for the
14
financial year; and
15
(b) publish on its website a notice setting out the results of that
16
calculation.
17
134 When penalty becomes due and payable
18
An amount payable under section 133 by a person in relation to a
19
unit shortfall for an eligible financial year is due and payable at the
20
end of 31 January in the next eligible financial year.
21
135 Late payment penalty
22
(1) If an amount payable by a person under section 133 remains
23
unpaid after the time when it became due for payment, the person
24
is liable to pay, by way of penalty, an amount calculated at the rate
25
of:
26
(a) 20% per annum; or
27
(b) if a lower rate per annum is specified in the regulations--that
28
lower rate per annum;
29
on the amount unpaid, computed from that time.
30
(2) The Authority may remit the whole or a part of an amount payable
31
under subsection (1) if:
32
Surrender of eligible emissions units Part 6
Obligation to surrender eligible emissions units Division 4
Section 136
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 179
(a) the Authority is satisfied that the person did not contribute to
1
the delay in payment and has taken reasonable steps to
2
mitigate the causes of the delay; or
3
(b) the Authority is satisfied:
4
(i) that the person contributed to the delay but has taken
5
reasonable steps to mitigate the causes of the delay; and
6
(ii) having regard to the nature of the reasons that caused
7
the delay, that it would be fair and reasonable to remit
8
some or all of the amount; or
9
(c) the Authority is satisfied that there are special circumstances
10
that make it reasonable to remit some or all of the amount.
11
136 Recovery of penalties
12
An amount payable under section 133 or 135:
13
(a) is a debt due to the Commonwealth; and
14
(b) may be recovered by the Authority, on behalf of the
15
Commonwealth, by action in a court of competent
16
jurisdiction.
17
137 Set-off
18
If:
19
(a) an amount (the first amount) is payable under section 133 or
20
135 by a person; and
21
(b) the following conditions are satisfied in relation to another
22
amount (the second amount):
23
(i) the amount is payable by the Commonwealth to the
24
person;
25
(ii) the amount is of a kind specified in the regulations;
26
the Authority may, on behalf of the Commonwealth, set off the
27
whole or a part of the first amount against the whole or a part of
28
the second amount.
29
Part 6 Surrender of eligible emissions units
Division 4 Obligation to surrender eligible emissions units
Section 138
180 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
138 Liability transfer certificate--statutory guarantee
1
Scope
2
(1) This section applies if:
3
(a) a company was the holder of a liability transfer certificate
4
throughout the whole or a part of an eligible financial year;
5
and
6
(b) a controlling corporation consented under subsection 70(2) or
7
74(3) to the making of the application for the certificate.
8
Guarantee
9
(2) The controlling corporation is taken to have guaranteed the
10
payment by the company of:
11
(a) an amount payable by the company under section 133 in
12
relation to a unit shortfall for the eligible financial year; and
13
(b) an amount payable by the company under section 135
14
because of the late payment of an amount covered by
15
paragraph (a).
16
139 Refund of overpayments
17
Refund
18
(1) If either of the following amounts has been overpaid by a person,
19
the amount overpaid must be refunded by the Commonwealth:
20
(a) an amount payable under section 133;
21
(b) an amount payable under section 135.
22
Note:
For appropriation, see section 28 of the Financial Management and
23
Accountability Act 1997.
24
Interest on overpayment
25
(2) If:
26
(a) an amount overpaid by a person is refunded by the
27
Commonwealth under subsection (1); and
28
(b) the overpayment is attributable, in whole or in part, to an
29
error made by the Authority;
30
Surrender of eligible emissions units Part 6
Obligation to surrender eligible emissions units Division 4
Section 141
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 181
interest calculated in accordance with subsection (3) is payable by
1
the Commonwealth to the person in respect of the amount
2
refunded.
3
(3) Interest payable to a person under subsection (2) in respect of an
4
amount refunded to the person is to be calculated:
5
(a) in respect of the period that:
6
(i) began when the overpaid amount was paid to the
7
Commonwealth; and
8
(ii) ended when the amount was refunded; and
9
(b) at the base interest rate (within the meaning of section 8AAD
10
of the Taxation Administration Act 1953).
11
(4) The Consolidated Revenue Fund is appropriated for the purposes
12
of making payments of interest under subsection (2).
13
141 Benchmark average auction price
14
(1) For the purposes of this Act, the benchmark average auction price
15
for a financial year is whichever is the greater of the following
16
amounts:
17
(a) the amount calculated under subsection (2) in relation to the
18
financial year;
19
(b) the amount calculated under subsection (3) in relation to the
20
financial year.
21
Average auction price--all auctions
22
(2) The amount calculated under this subsection in relation to a
23
financial year is the amount worked out using the formula:
24
Total auction proceeds
Number of units issued
as the result of auctions
25
where:
26
number of units issued as the result of auctions means the total
27
number of Australian emissions units that were issued as the result
28
of auctions conducted by the Authority during the financial year.
29
Part 6 Surrender of eligible emissions units
Division 4 Obligation to surrender eligible emissions units
Section 142
182 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
total auction proceeds means the total amount paid or payable by
1
way of charges for the issue of Australian emissions units that were
2
issued as the result of auctions conducted by the Authority during
3
the financial year.
4
Average auction price--last auction
5
(3) The amount calculated under this subsection in relation to a
6
financial year is the amount worked out using the formula:
7
Proceeds of the last auction
Number of units issued as
a result of the last auction
8
where:
9
number of units issued as a result of the last auction means the
10
number of Australian emissions units that were issued as a result of
11
the last auction conducted by the Authority during the financial
12
year.
13
proceeds of the last auction means the total amount paid or
14
payable by way of charges for the issue of Australian emissions
15
units that were issued as a result of the last auction conducted by
16
the Authority during the financial year.
17
142 Make-good number
18
(1) If:
19
(a) a person is a liable entity for an eligible financial year (the
20
current eligible financial year); and
21
(b) at the end of 15 December in the next eligible financial year,
22
the person has a unit shortfall for the current eligible
23
financial year;
24
then:
25
(c) the number of units in the unit shortfall is the person's
26
make-good number for the current eligible financial year;
27
and
28
(d) the person is a liable entity for the next eligible financial
29
year.
30
Surrender of eligible emissions units Part 6
Obligation to surrender eligible emissions units Division 4
Section 143
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 183
Note:
The make-good number increases the emissions number for the next
1
eligible financial year--see section 125.
2
Liability transfer certificate
3
(2) If:
4
(a) a person was the holder of a liability transfer certificate
5
throughout the whole or a part of an eligible financial year;
6
and
7
(b) the person becomes liable to pay an amount under
8
section 133 in relation to a unit shortfall for the eligible
9
financial year; and
10
(c) a controlling corporation consented under subsection 70(2) or
11
74(3) to the making of the application for the certificate;
12
then:
13
(d) if the controlling corporation that consented under subsection
14
70(2) or 74(3) to the making of the application for the
15
certificate has a make-good number for the eligible financial
16
year--that make-good number is increased by the number of
17
units in the unit shortfall; and
18
(e) if paragraph (d) does not apply--the controlling corporation
19
that consented under subsection 70(2) or 74(3) to the making
20
of the application for the certificate:
21
(i) has a make-good number for the eligible financial year
22
equal to the number of units in the unit shortfall; and
23
(ii) is a liable entity for the next eligible financial year; and
24
(f) despite subsection (1), the person does not have a make-good
25
number for the eligible financial year.
26
Note:
The make-good number increases the emissions number for the next
27
eligible financial year--see section 125.
28
143 Excess surrender number
29
(1) If:
30
(a) a person is a liable entity for an eligible financial year (the
31
current eligible financial year); and
32
(b) the person's emissions number for the current eligible
33
financial year is 1 or more; and
34
Part 6 Surrender of eligible emissions units
Division 4 Obligation to surrender eligible emissions units
Section 143
184 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(c) at the end of 15 December in the next eligible financial year,
1
the person does not have a unit shortfall for the current
2
eligible financial year; and
3
(d) during the period (the surrender period):
4
(i) beginning at the start of the current eligible financial
5
year; and
6
(ii) ending at 15 December in the next eligible financial
7
year;
8
the person surrendered one or more eligible emissions units
9
in relation to the current eligible financial year; and
10
(e) the number of surrendered units exceeds the person's
11
emissions number for the current eligible financial year;
12
the number of surrendered units in the excess is the person's excess
13
surrender number for the current eligible financial year.
14
Note:
The excess surrender number reduces the emissions number for the
15
next eligible financial year--see section 125.
16
Borrowing limit
17
(2) If:
18
(a) during the surrender period mentioned in subsection (1), the
19
person surrendered, in relation to the current eligible
20
financial year, Australian emissions units (the borrowed
21
units) that have a vintage year that next follows the eligible
22
financial year; and
23
(b) the number of borrowed units exceeds 5% of the person's
24
emissions number for the current eligible financial year;
25
subsection (1) has effect as if, during the surrender period, the
26
person had not surrendered, in relation to the current eligible
27
financial year, the number of borrowed units that equals the excess.
28
Free Australian emissions units with a vintage year beginning on
29
1 July 2011
30
(3) If, during the surrender period mentioned in subsection (1), the
31
person surrendered, in relation to the current eligible financial year,
32
free Australian emissions units that have a vintage year beginning
33
on 1 July 2011, subsection (1) has effect as if, during the surrender
34
period, the person had not surrendered those units.
35
Surrender of eligible emissions units Part 6
Obligation to surrender eligible emissions units Division 4
Section 143
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 185
1
Part 6 Surrender of eligible emissions units
Division 5 Extension of surrender deadline
Section 143A
186 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Division 5--Extension of surrender deadline
1
143A Extension of surrender deadline
2
Scope
3
(1) This section applies if the Authority is satisfied that:
4
(a) 2 or more persons were unable to surrender eligible
5
emissions units during the whole or a part of:
6
(i) 15 December in the eligible financial year beginning on
7
1 July 2011; or
8
(ii) 15 December in a later eligible financial year; and
9
(b) the inability to surrender the units was attributable to:
10
(i) a fault or malfunction relating to a computer system
11
under the control of the Authority; or
12
(ii) a fault or malfunction relating to a facility (within the
13
meaning of the Telecommunications Act 1997); or
14
(iii) a fault or malfunction relating to a carriage service
15
(within the meaning of that Act) provided to the public;
16
and
17
(c) it would be reasonable to extend the deadline for the
18
surrender of eligible emissions units beyond the end of that
19
15 December.
20
Extension of surrender deadline
21
(2) The Authority may, by legislative instrument, determine that this
22
Act has effect as if a reference in each of the following provisions
23
to the end of that 15 December were a reference to such later time
24
as is specified in the determination:
25
(aa) paragraph 103A(1)(c);
26
(a) paragraph 130(2)(b);
27
(b) paragraph 130(3)(b);
28
(c) paragraph 131(1)(b);
29
(d) section 132;
30
(e) paragraph 133(1)(b);
31
(f) paragraph 142(1)(b);
32
(g) paragraph 143(1)(c);
33
Surrender of eligible emissions units Part 6
Extension of surrender deadline Division 5
Section 143A
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 187
(h) subparagraph 143(1)(d)(ii);
1
(i) subsection 275(1);
2
(j) subsection 275(2).
3
(3) The Authority must publish a copy of the determination on its
4
website.
5
6
Part 7 Australian National Registry of Emissions Units
Division 1 Introduction
Section 144
188 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Part 7--Australian National Registry of Emissions
1
Units
2
Division 1--Introduction
3
144 Simplified outline
4
The following is a simplified outline of this Part:
5
·
The Australian National Registry of Emissions Units is
6
continued in existence.
7
·
The Authority may open a Registry account in the name of a
8
person.
9
·
A person may request the Authority to close the person's
10
Registry account.
11
·
The Authority is empowered to make corrections to the
12
Registry.
13
·
A person may apply to the Federal Court for the rectification
14
of the Registry.
15
16
Australian National Registry of Emissions Units Part 7
Australian National Registry of Emissions Units Division 2
Section 145
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 189
Division 2--Australian National Registry of Emissions
1
Units
2
145 Australian National Registry of Emissions Units
3
(1) The register:
4
(a) known as the Australian National Registry of Emissions
5
Units; and
6
(b) that was in existence under the executive power of the
7
Commonwealth immediately before the commencement of
8
this section;
9
continues in existence as a register under this Act under the name
10
Australian National Registry of Emissions Units.
11
(2) The Registry is to be kept by the Authority.
12
Note:
In this Act, Registry means the Australian National Registry of
13
Emissions Units--see section 5.
14
(3) The Registry is to be maintained by electronic means.
15
(4) The purposes of the Registry are as follows:
16
(a) to be a registry for Australian emissions units;
17
(b) to be Australia's national registry for Kyoto units.
18
19
Part 7 Australian National Registry of Emissions Units
Division 3 Registry accounts
Section 146
190 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Division 3--Registry accounts
1
146 Registry accounts
2
(1) The Authority may open an account within the Registry in the
3
name of a particular person.
4
(2) An account kept in the name of a person is to be known as a
5
Registry account of the person.
6
(3) Each Registry account is to be identified by a unique number, to be
7
known as the account number of the Registry account.
8
(4) A person may have 2 or more Registry accounts.
9
(5) To avoid doubt, a Registry account cannot be kept in the names of
10
2 or more persons jointly.
11
147 Opening of Registry accounts--general
12
(1) A person may request the Authority to open a Registry account in
13
the name of the person.
14
(2) A request under subsection (1) must:
15
(a) be in writing; and
16
(b) be in a form approved, in writing, by the Authority; and
17
(c) be accompanied by such information as is specified in the
18
regulations; and
19
(d) be accompanied by the fee (if any) specified in a legislative
20
instrument made by the Authority for the purposes of this
21
paragraph.
22
(3) The approved form of request may provide for verification by
23
statutory declaration of statements in requests.
24
(4) A fee specified under paragraph (2)(d) must not be such as to
25
amount to taxation.
26
Australian National Registry of Emissions Units Part 7
Registry accounts Division 3
Section 147
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 191
Further information
1
(5) The Authority may, by written notice given to the person who
2
made the request, require the person to give the Authority, within
3
the period specified in the notice, further information in connection
4
with the request.
5
(6) If the person breaches the requirement, the Authority may, by
6
written notice given to the person:
7
(a) refuse to consider the request; or
8
(b) refuse to take any action, or any further action, in relation to
9
the request.
10
Opening of account
11
(7) After considering the request, the Authority may open a Registry
12
account in the name of the person.
13
Identification procedure
14
(8) The Authority must not open a Registry account in the name of the
15
person unless the Authority has carried out the applicable
16
identification procedure in respect of the person.
17
Timing
18
(9) The Authority must take all reasonable steps to ensure that a
19
decision is made on the request:
20
(a) if the Authority requires the person who made the request to
21
give further information under subsection (5) in relation to
22
the request--within 28 days after the person gave the
23
Authority the information; or
24
(b) otherwise--within 28 days after the application was made.
25
Refusal
26
(10) If the Authority decides to refuse to open a Registry account in the
27
name of the person who made the request, the Authority must give
28
written notice of the decision to the person.
29
Part 7 Australian National Registry of Emissions Units
Division 3 Registry accounts
Section 148
192 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
148 Designation of Commonwealth Registry accounts
1
A Commonwealth Registry account must be designated by the
2
Authority as:
3
(a) a Commonwealth holding account; or
4
(b) the retirement account for a particular commitment period; or
5
(c) the net source cancellation account for a particular
6
commitment period; or
7
(d) the non-compliance cancellation account for a particular
8
commitment period; or
9
(e) the voluntary cancellation account for a particular
10
commitment period; or
11
(f) the mandatory cancellation account for a particular
12
commitment period; or
13
(g) the temporary certified emission reduction replacement
14
(expiry) account for a particular commitment period; or
15
(h) the long-term certified emission reduction replacement
16
(expiry) account for a particular commitment period; or
17
(i) the long-term certified emission reduction replacement
18
(storage reversal) account for a particular commitment
19
period; or
20
(j) the long-term certified emission reduction replacement
21
(non-certification) account for a particular commitment
22
period; or
23
(k) the Commonwealth relinquished units account; or
24
(l) an account with a name specified in the regulations.
25
149 Opening of new Commonwealth Registry accounts
26
(1) The Minister may, by written notice given to the Authority, direct
27
the Authority to:
28
(a) open a Registry account in the name of the Commonwealth;
29
and
30
(b) give that Registry account the designation specified in the
31
direction.
32
(2) The Authority must comply with a direction under subsection (1).
33
Australian National Registry of Emissions Units Part 7
Registry accounts Division 3
Section 150
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 193
150 Units in a retirement, cancellation or replacement account
1
Scope
2
(1) This section applies to a Kyoto unit for which there is an entry in
3
any of the following Commonwealth Registry accounts:
4
(a) the retirement account for a particular commitment period;
5
(b) the net source cancellation account for a particular
6
commitment period;
7
(c) the non-compliance cancellation account for a particular
8
commitment period;
9
(d) the voluntary cancellation account for a particular
10
commitment period;
11
(e) the mandatory cancellation account for a particular
12
commitment period;
13
(f) the temporary certified emission reduction replacement
14
(expiry) account for a particular commitment period;
15
(g) the long-term certified emission reduction replacement
16
(expiry) account for a particular commitment period;
17
(h) the long-term certified emission reduction replacement
18
(storage reversal) account for a particular commitment
19
period;
20
(i) the long-term certified emission reduction replacement
21
(non-certification) account for a particular commitment
22
period.
23
Restriction
24
(2) The unit cannot be transferred or surrendered.
25
(3) Subsection (2) has effect despite any other provision of this Act.
26
151 Totals of Australian emissions units in a Registry account
27
The Registry must set out, for each Registry account, the total of
28
all of the Australian emissions units in the account that have the
29
same vintage year.
30
Part 7 Australian National Registry of Emissions Units
Division 3 Registry accounts
Section 152
194 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
152 Voluntary closure of Registry accounts
1
Scope
2
(1) This section applies if:
3
(a) a person has a Registry account; and
4
(b) there are no entries for any Australian emissions units in the
5
account; and
6
(c) there are no entries for any Kyoto units in the account; and
7
(d) there are no entries for any non-Kyoto international
8
emissions units in the account; and
9
(e) the person, by written notice given to the Authority, requests
10
the Authority to close the account.
11
Compliance with request
12
(2) The Authority must comply with the request as soon as practicable
13
after receiving it.
14
(3) The Registry must set out a record of each closure under
15
subsection (2).
16
17
Australian National Registry of Emissions Units Part 7
Change in name of account holder Division 4
Section 153
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 195
Division 4--Change in name of account holder
1
153 Application to have new name entered on the Registry
2
(1) If:
3
(a) a Registry account is kept in the name of a person; and
4
(b) the name of the person has changed;
5
the person may apply to the Authority to have the new name
6
substituted for the previous name in the Registry in relation to the
7
account.
8
(2) The application must be in writing.
9
154 Alteration in the Registry
10
Scope
11
(1) This section applies if a person applies under section 153 to have
12
the person's new name substituted for the person's previous name
13
in the Registry in relation to a Registry account.
14
Alteration
15
(2) If the Authority is satisfied that the person's name has changed, the
16
Authority must make the necessary alterations in the Registry.
17
18
Part 7 Australian National Registry of Emissions Units
Division 5 Correction and rectification of Registry
Section 155
196 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Division 5--Correction and rectification of Registry
1
155 Corrections of clerical errors or obvious defects
2
The Authority may alter the Registry for the purposes of correcting
3
a clerical error or an obvious defect in the Registry.
4
157 General power of correction of Registry--Kyoto units
5
Power of correction
6
(1) The Authority may make such alterations to the Registry as the
7
Authority considers appropriate for the purposes of ensuring that
8
the relevant provisions of the Kyoto rules are complied with.
9
(2) The Authority may exercise the power conferred by subsection (1):
10
(a) on written application being made to the Authority by a
11
person; or
12
(b) on the Authority's own initiative.
13
Publication of alteration
14
(3) If the Authority makes an alteration to the Registry under
15
subsection (1), the Authority must cause to be published on the
16
Authority's website a notice setting out the details of the alteration.
17
158 General power of correction of Registry--non-Kyoto
18
international emissions units
19
Power of correction
20
(1) The Authority may make such alterations to the Registry as the
21
Authority considers appropriate for the purposes of ensuring that
22
the relevant provisions of an international agreement, to the extent
23
to which it relates to a non-Kyoto international emissions unit, are
24
complied with.
25
(2) The Authority may exercise the power conferred by subsection (1):
26
(a) on written application being made to the Authority by a
27
person; or
28
Australian National Registry of Emissions Units Part 7
Correction and rectification of Registry Division 5
Section 159
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 197
(b) on the Authority's own initiative.
1
Publication of alteration
2
(3) If the Authority makes an alteration to the Registry under
3
subsection (1), the Authority must cause to be published on the
4
Authority's website a notice setting out the details of the alteration.
5
159 Rectification of Registry
6
Application for rectification by aggrieved person
7
(1) If a person is aggrieved by any of the following:
8
(a) the omission of an entry from the Registry;
9
(b) an entry made in the Registry without sufficient cause;
10
(c) an entry wrongly existing in the Registry;
11
(d) an error or defect in an entry in the Registry;
12
(e) an entry wrongly removed from the Registry;
13
the person may apply to the Federal Court for the rectification of
14
the Registry.
15
Application for rectification by the Authority
16
(1A) If the Authority is concerned about any of the following:
17
(a) the omission of an entry from the Registry;
18
(b) an entry made in the Registry without sufficient cause;
19
(c) an entry wrongly existing in the Registry;
20
(d) an error or defect in an entry in the Registry;
21
(e) an entry wrongly removed from the Registry;
22
the Authority may apply to the Federal Court for the rectification
23
of the Registry.
24
Court orders
25
(2) If an application is made under subsection (1) or (1A) to the
26
Federal Court for the rectification of the Registry, the court may
27
make such order as it thinks fit directing the rectification of the
28
Registry.
29
Part 7 Australian National Registry of Emissions Units
Division 5 Correction and rectification of Registry
Section 159
198 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(2A) An order made by the court must not be expressed to take effect
1
before the order is made.
2
(3) In proceedings under this section, the court may decide any
3
question that it is necessary or expedient to decide in connection
4
with the rectification of the Registry.
5
Appearance of Authority
6
(4) Notice of an application under subsection (1) must be given to the
7
Authority, whose representative:
8
(a) may appear and be heard; and
9
(b) must appear if so directed by the court.
10
Copy of order to be given to Authority
11
(5) An office copy of an order made by the court may be given to the
12
Authority.
13
Compliance with order
14
(6) The Authority must, on receipt of the order, rectify the Registry
15
accordingly.
16
17
Australian National Registry of Emissions Units Part 7
Miscellaneous Division 6
Section 160
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 199
Division 6--Miscellaneous
1
160 Making a false entry in the Registry
2
A person commits an offence if:
3
(a) the person:
4
(i) makes an entry in the Registry; or
5
(ii) causes an entry to be made in the Registry; or
6
(iii) concurs in the making of an entry in the Registry; and
7
(b) the person does so knowing that the entry is false.
8
Penalty: Imprisonment for 7 years or 2,000 penalty units, or both.
9
Note:
The same conduct may be an offence against both this section and
10
section 145.4 of the Criminal Code.
11
161 Falsified documents
12
A person commits an offence if:
13
(a) the person produces or tenders in evidence a document; and
14
(b) the document falsely purports to be a copy of or extract from
15
an entry in the Registry.
16
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
17
Note:
The same conduct may be an offence against both this section and
18
section 137.2 of the Criminal Code.
19
162 Evidentiary provisions
20
(1) The Authority may supply a copy of or extract from the Registry
21
certified by the Authority to be a true copy or true extract, as the
22
case may be.
23
(2) The certified copy or extract is admissible in evidence in all courts
24
and proceedings without further proof or production of the original.
25
(3) The Authority may charge a fee specified in the regulations for
26
supplying a certified copy or extract under subsection (1).
27
(4) A fee specified under subsection (3) must not be such as to amount
28
to taxation.
29
Part 7 Australian National Registry of Emissions Units
Division 6 Miscellaneous
Section 163
200 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
163 Use and disclosure of information obtained from the Registry
1
Use
2
(1) A person must not use information to contact or send material to
3
another person if that information:
4
(a) is about the other person; and
5
(b) was obtained from the Registry.
6
Disclosure
7
(2) A person (the first person) must not disclose information that:
8
(a) is about another person; and
9
(b) was obtained from the Registry; and
10
(c) the first person knows is likely to be used to contact or send
11
material to the other person.
12
Exception
13
(3) Subsections (1) and (2) do not apply if the use or disclosure of the
14
information is relevant to:
15
(a) the holding of:
16
(i) Australian emissions units; or
17
(ii) Kyoto units; or
18
(iii) non-Kyoto international emissions units;
19
recorded in the Registry; or
20
(b) the exercise of the rights attaching to those units.
21
(4) A person who wishes to rely on subsection (3) bears an evidential
22
burden in relation to that matter.
23
Note:
For evidential burden, see section 5.
24
Ancillary contraventions
25
(5) A person must not:
26
(a) aid, abet, counsel or procure a contravention of subsection (1)
27
or (2); or
28
(b) induce, whether by threats or promises or otherwise, a
29
contravention of subsection (1) or (2); or
30
Australian National Registry of Emissions Units Part 7
Miscellaneous Division 6
Section 164
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 201
(c) be in any way, directly or indirectly, knowingly concerned in,
1
or party to, a contravention of subsection (1) or (2); or
2
(d) conspire with others to effect a contravention of
3
subsection (1) or (2).
4
Civil penalty provisions
5
(6) Subsections (1), (2) and (5) are civil penalty provisions.
6
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
7
provisions.
8
164 Regulations about the Registry
9
(1) The regulations may make further provision in relation to the
10
Registry.
11
(2) Regulations made for the purposes of subsection (1) may make
12
provision requiring the holder of a Registry account to notify a
13
matter to the Authority.
14
(3) Subsection (2) does not limit subsection (1).
15
Requirement
16
(4) If the holder of a Registry account is subject to a requirement under
17
regulations made for the purposes of subsection (1) or (2), the
18
holder must comply with that requirement.
19
Ancillary contraventions
20
(5) A person must not:
21
(a) aid, abet, counsel or procure a contravention of
22
subsection (4); or
23
(b) induce, whether by threats or promises or otherwise, a
24
contravention of subsection (4); or
25
(c) be in any way, directly or indirectly, knowingly concerned in,
26
or party to, a contravention of subsection (4); or
27
(d) conspire with others to effect a contravention of
28
subsection (4).
29
Part 7 Australian National Registry of Emissions Units
Division 6 Miscellaneous
Section 164
202 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Civil penalty provisions
1
(6) Subsections (4) and (5) are civil penalty provisions.
2
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
3
provisions.
4
5
Emissions-intensive trade-exposed assistance program Part 8
Introduction Division 1
Section 165
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 203
Part 8--Emissions-intensive trade-exposed
1
assistance program
2
Division 1--Introduction
3
165 Aim and objects
4
(1) The aim of this Part is to recognise issues relating to the impact of
5
the carbon pollution reduction scheme on the international
6
competitiveness of activities that are:
7
(a) identified as emissions-intensive trade-exposed activities; and
8
(b) carried on in Australia.
9
(2) The objects of this Part are:
10
(a) to enable the identification of activities as
11
emissions-intensive trade-exposed activities; and
12
(b) to reduce the incentives for such an activity to be located in,
13
or re-located to, foreign countries; and
14
(c) to provide transitional assistance in respect of such an
15
activity if carried on in Australia;
16
until such assistance is no longer warranted, having regard to:
17
(d) whether sufficient measures to reduce emissions of carbon
18
dioxide and other greenhouse gases have been implemented
19
in respect of markets:
20
(i) that are outside Australia; and
21
(ii) that are for goods produced as a result of such an
22
activity (whether carried on in or outside Australia); and
23
(iii) in which persons who carry on such an activity in
24
Australia compete; or
25
(e) whether foreign countries that are responsible for the
26
substantial majority of the world's emissions of carbon
27
dioxide and other greenhouse gases have implemented
28
sufficient measures to reduce those emissions; or
29
(f) any other relevant matters.
30
Part 8 Emissions-intensive trade-exposed assistance program
Division 1 Introduction
Section 166
204 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
166 Simplified outline
1
The following is a simplified outline of this Part:
2
·
The regulations may formulate a program, to be known as the
3
emissions-intensive trade-exposed assistance program, for the
4
issue of free Australian emissions units in respect of activities
5
that:
6
(a) under the program, are taken to be
7
emissions-intensive trade-exposed activities; and
8
(b) are, or are to be, carried on in Australia during a
9
financial year specified in the program.
10
·
The emissions-intensive trade-exposed assistance program
11
may:
12
(a) require a recipient of free Australian emissions
13
units to relinquish units; and
14
(b) impose reporting or record-keeping requirements
15
on a recipient of free Australian emissions units.
16
17
Emissions-intensive trade-exposed assistance program Part 8
Formulation of the emissions-intensive trade-exposed assistance program Division 2
Section 167
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 205
Division 2--Formulation of the emissions-intensive
1
trade-exposed assistance program
2
167 Emissions-intensive trade-exposed assistance program
3
(1) The regulations may formulate a program (to be known as the
4
emissions-intensive trade-exposed assistance program) for the
5
issue of free Australian emissions units in respect of activities that:
6
(a) under the program, are taken to be emissions-intensive
7
trade-exposed activities; and
8
(b) are, or are to be, carried on in Australia during an eligible
9
financial year specified in the program.
10
(2) The emissions-intensive trade-exposed assistance program must
11
provide that free Australian emissions units must not be issued to a
12
person in accordance with the program unless the person:
13
(a) meets such requirements as are specified in the program; and
14
(b) has a Registry account.
15
(3) The Minister must take all reasonable steps to ensure that
16
regulations are made for the purposes of subsection (1) before
17
1 July 2010.
18
168 Relinquishment requirement
19
(1) The emissions-intensive trade-exposed assistance program may
20
provide that, if:
21
(a) a number of free Australian emissions units have been issued
22
to a person in accordance with the program; and
23
(b) any of the following subparagraphs applies:
24
(i) a specified event happens;
25
(ii) a specified circumstance comes into existence;
26
(iii) the Authority is satisfied about a specified matter;
27
the person is required to relinquish a number of Australian
28
emissions units ascertained in accordance with the program.
29
Note:
An administrative penalty is payable under section 287 for
30
non-compliance with a relinquishment requirement under the
31
emissions-intensive trade-exposed assistance program.
32
Part 8 Emissions-intensive trade-exposed assistance program
Division 2 Formulation of the emissions-intensive trade-exposed assistance program
Section 169
206 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(2) The number of Australian emissions units required to be
1
relinquished by the person must not exceed the number of units
2
mentioned in paragraph (1)(a).
3
169 Reporting requirement
4
Scope
5
(1) This section applies to a person if free Australian emissions units
6
have been issued to the person in accordance with the
7
emissions-intensive trade-exposed assistance program.
8
Requirement
9
(2) The emissions-intensive trade-exposed assistance program may
10
make provision for and in relation to requiring the person to give
11
one or more written reports to the Authority.
12
170 Record-keeping requirement
13
Scope
14
(1) This section applies to a person if free Australian emissions units
15
have been issued to the person in accordance with the
16
emissions-intensive trade-exposed assistance program.
17
Requirement
18
(2) The emissions-intensive trade-exposed assistance program may
19
make provision for and in relation to requiring the person to:
20
(a) make records of information specified in the program; and
21
(b) retain such a record, or a copy, for 5 years after the record
22
was made.
23
171 Other matters
24
(1) The emissions-intensive trade-exposed assistance program may
25
make provision for and in relation to the following matters:
26
(a) applications for free Australian emissions units;
27
Emissions-intensive trade-exposed assistance program Part 8
Formulation of the emissions-intensive trade-exposed assistance program Division 2
Section 172
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 207
(b) the approval by the Authority of a form for such an
1
application;
2
(c) information that must accompany such an application;
3
(d) documents that must accompany such an application;
4
(e) the method of calculating the number of free Australian
5
emissions units to be issued to a person in accordance with
6
the program.
7
(2) The emissions-intensive trade-exposed assistance program may
8
provide that an application for free Australian emissions units must
9
be accompanied by a prescribed report.
10
(3) The emissions-intensive trade-exposed assistance program may
11
provide for verification by statutory declaration of statements in
12
applications for free Australian emissions units.
13
172 Ancillary or incidental provisions
14
The emissions-intensive trade-exposed assistance program may
15
contain ancillary or incidental provisions.
16
17
Part 8 Emissions-intensive trade-exposed assistance program
Division 3 Compliance with reporting and record-keeping requirements under the
emissions-intensive trade-exposed assistance program
Section 173
208 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Division 3--Compliance with reporting and
1
record-keeping requirements under the
2
emissions-intensive trade-exposed assistance
3
program
4
173 Compliance with reporting and record-keeping requirements
5
Reporting requirements
6
(1) If a person is subject to a requirement under the
7
emissions-intensive trade-exposed assistance program to give a
8
report to the Authority, the person must comply with that
9
requirement.
10
Record-keeping requirements
11
(2) If a person is subject to a requirement under the
12
emissions-intensive trade-exposed assistance program to:
13
(a) make a record of information; or
14
(b) retain such a record or a copy;
15
the person must comply with that requirement.
16
Ancillary contraventions
17
(3) A person must not:
18
(a) aid, abet, counsel or procure a contravention of subsection (1)
19
or (2); or
20
(b) induce, whether by threats or promises or otherwise, a
21
contravention of subsection (1) or (2); or
22
(c) be in any way, directly or indirectly, knowingly concerned in,
23
or party to, a contravention of subsection (1) or (2); or
24
(d) conspire with others to effect a contravention of
25
subsection (1) or (2).
26
Civil penalty provisions
27
(4) Subsections (1), (2) and (3) are civil penalty provisions.
28
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
29
provisions.
30
Emissions-intensive trade-exposed assistance program Part 8
Compliance with reporting and record-keeping requirements under the emissions-
intensive trade-exposed assistance program Division 3
Section 173
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 209
1
Part 8 Emissions-intensive trade-exposed assistance program
Division 4 Special information-gathering powers
Section 173A
210 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Division 4--Special information-gathering powers
1
173A Minister may obtain information
2
Scope
3
(1) This section applies to a constitutional corporation if:
4
(a) a person (who may be the corporation) has indicated to the
5
Commonwealth that the person believes that an activity may
6
be, or should be, eligible for emissions-intensive
7
trade-exposed assistance; and
8
(b) that activity is not an activity that, under the
9
emissions-intensive trade-exposed assistance program, is
10
taken to be an emissions-intensive trade-exposed activity;
11
and
12
(c) the Minister believes on reasonable grounds that the
13
corporation has information that:
14
(i) relates to the activity; and
15
(ii) is likely to assist the Commonwealth to formulate or
16
vary the policy embodied in the emissions-intensive
17
trade-exposed assistance program.
18
Request for information and report
19
(2) The Minister may, by written notice given to the corporation:
20
(a) request the corporation to give to the Minister, within the
21
period and in the manner and form specified in the notice,
22
any such information; and
23
(b) request that the information be accompanied by a report
24
specified in the notice.
25
(3) A period specified under subsection (2) must not be shorter than 60
26
days after the notice is given.
27
Request for information
28
(4) The Minister may, by written notice given to the corporation,
29
request the corporation to give to the Minister, within the period
30
and in the manner and form specified in the notice, any such
31
information.
32
Emissions-intensive trade-exposed assistance program Part 8
Special information-gathering powers Division 4
Section 173B
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 211
(5) A period specified under subsection (4) must not be shorter than 30
1
days after the notice is given.
2
173B No assistance for 2 eligible financial years if corporation
3
refuses or fails to comply with request for information
4
Scope
5
(1) This section applies if:
6
(a) a constitutional corporation is given a request under
7
subsection 173A(2) or (4) at a particular time; and
8
(b) the corporation refuses or fails to comply with the request.
9
No assistance for 2 eligible financial years
10
(2) No free Australian emissions units that have a vintage year of:
11
(a) the first eligible financial year that begins after that time; or
12
(b) the eligible financial year that next follows the eligible
13
financial year mentioned in paragraph (a);
14
are to be issued to the corporation in accordance with the
15
emissions-intensive trade-exposed assistance program.
16
173C Disclosure of information to the Authority
17
Scope
18
(1) This section applies to information obtained under section 173A.
19
Disclosure
20
(2) The Minister may disclose the information to the Authority for the
21
purposes of, or in connection with, the performance of the
22
functions, or the exercise of the powers, of the Authority.
23
Other powers of disclosure not limited
24
(3) This section does not, by implication, limit the Minister's powers
25
to disclose the information to a person other than the Authority.
26
27
Part 9 Coal-fired electricity generation
Division 1 Introduction
Section 174
212 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Part 9--Coal-fired electricity generation
1
Division 1--Introduction
2
174 Object
3
The object of this Part is to contribute to the maintenance of
4
investor confidence in electricity generation. It does so by
5
providing limited transitional assistance in respect of generation
6
assets, where:
7
(a) money was invested in those assets before the
8
Commonwealth Government announced its support for a
9
scheme to reduce pollution caused by emissions of carbon
10
dioxide and other greenhouse gases; and
11
(b) those assets are likely to suffer a significant decline in value
12
as a result of the introduction of such a scheme.
13
175 Simplified outline
14
·
Free Australian emissions units may be issued in respect of
15
generation assets that meet certain eligibility requirements.
16
·
Free units will be issued during:
17
(a) the financial year beginning on 1 July 2011; and
18
(b) each of the next 4 financial years.
19
·
The number of free units is capped.
20
·
If a windfall gain declaration is in force in relation to a
21
generation asset, the Minister may determine that free units
22
are not to be issued in respect of the generation asset for the
23
financial years beginning on 1 July 2014 or 1 July 2015.
24
·
Free units will not be issued if a generation asset does not pass
25
the power system reliability test for a financial year.
26
27
Coal-fired electricity generation Part 9
Issue of free Australian emissions units in respect of generation assets Division 2
Section 176
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 213
Division 2--Issue of free Australian emissions units in
1
respect of generation assets
2
176 Issue of free Australian emissions units in respect of generation
3
assets
4
Scope
5
(1) This section applies to a generation asset if a certificate of
6
eligibility for coal-fired generation assistance is in force in respect
7
of the generation asset.
8
Issue of free units
9
(2) On each of the following days:
10
(a) 1 September in the eligible financial year beginning on 1 July
11
2011;
12
(b) 1 September in the eligible financial year beginning on 1 July
13
2012;
14
(c) 1 September in the eligible financial year beginning on 1 July
15
2013;
16
(d) 1 September in the eligible financial year beginning on 1 July
17
2014;
18
(e) 1 September in the eligible financial year beginning on 1 July
19
2015;
20
the Authority must issue a number of free Australian emissions
21
units equal to the number worked out using the following formula:
22
Annual assistance factor
specified in the certificate
Generation assistance limit
for that eligible financial year
Total annual assistance factors
for that eligible financial year
23
where:
24
annual assistance factor specified in the certificate means the
25
number specified in the certificate as the annual assistance factor in
26
respect of the generation asset.
27
Note:
The annual assistance factor is worked out under section 182.
28
Part 9 Coal-fired electricity generation
Division 2 Issue of free Australian emissions units in respect of generation assets
Section 176
214 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
generation assistance limit for that eligible financial year means:
1
(a) if that eligible financial year begins on 1 July 2013--the
2
number worked out using the formula in subsection (4); or
3
(b) otherwise--26,140,000.
4
total annual assistance factors for that eligible financial year
5
means the total of the numbers specified as annual assistance
6
factors in certificates of eligibility for coal-fired generation
7
assistance issued, or purportedly issued, by the Authority before
8
1 September in that eligible financial year. For this purpose,
9
disregard a certificate if a decision to issue the certificate was set
10
aside by a court or tribunal before 1 September in that eligible
11
financial year.
12
(3) If the number worked out using the formula in subsection (2) is not
13
a multiple of 100:
14
(a) the number is to be rounded to the nearest multiple of 100;
15
and
16
(b) if the number is a multiple of 50--the number is to be
17
rounded up to the nearest multiple of 100.
18
(4) The formula mentioned in paragraph (a) of the definition of
19
generation assistance limit for that eligible financial year in
20
subsection (2) is as follows:
21
Total number of Australian
emissions units issued in
Total number of
78,420,000
accordance with this Part
withheld units
before 1 September 2013
22
where:
23
total number of withheld units means the Authority's reasonable
24
estimate of the number of free Australian emissions units with a
25
vintage year beginning on 1 July 2011 or 1 July 2012 that were not
26
issued in accordance with this Part because of section 188 (power
27
system reliability).
28
When units are to be issued
29
(5) If 1 September in a later eligible financial year is not a business
30
day, the units are to be issued on the next business day after that
31
1 September.
32
Coal-fired electricity generation Part 9
Issue of free Australian emissions units in respect of generation assets Division 2
Section 176
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 215
Recipient of units
1
(6) Free Australian emissions units issued in accordance with
2
subsection (2) during an eligible financial year (the current eligible
3
financial year) are to be issued to whichever one of the following
4
persons is applicable:
5
(a) if, assuming that:
6
(i) immediately before the end of the previous eligible
7
financial year, the generation asset had been a facility;
8
and
9
(ii) immediately before the end of the previous eligible
10
financial year, the generation asset had been in
11
operation; and
12
(iii) immediately before the end of the previous eligible
13
financial year, greenhouse gases with a carbon dioxide
14
equivalence of 25,000 tonnes had been emitted from the
15
operation of the generation asset; and
16
(iv) the financial year beginning on 1 July 2010 had been an
17
eligible financial year;
18
a controlling corporation of a group would, under section 17,
19
be a liable entity for the previous eligible financial year
20
wholly or partly as a result of those emissions of greenhouse
21
gases--the controlling corporation;
22
(b) if, assuming that:
23
(i) immediately before the end of the previous eligible
24
financial year, the generation asset had been a facility;
25
and
26
(ii) immediately before the end of the previous eligible
27
financial year, the generation asset had been in
28
operation; and
29
(iii) immediately before the end of the previous eligible
30
financial year, greenhouse gases with a carbon dioxide
31
equivalence of 25,000 tonnes had been emitted from the
32
operation of the generation asset; and
33
(iv) the financial year beginning on 1 July 2010 had been an
34
eligible financial year;
35
a non-group entity would, under section 18, be a liable entity
36
for the previous eligible financial year wholly or partly as a
37
Part 9 Coal-fired electricity generation
Division 2 Issue of free Australian emissions units in respect of generation assets
Section 176
216 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
result of those emissions of greenhouse gases--the
1
non-group entity;
2
(c) if, assuming that:
3
(i) immediately before the end of the previous eligible
4
financial year, the generation asset had been a facility;
5
and
6
(ii) immediately before the end of the previous eligible
7
financial year, the generation asset had been in
8
operation; and
9
(iii) immediately before the end of the previous eligible
10
financial year, greenhouse gases with a carbon dioxide
11
equivalence of 25,000 tonnes had been emitted from the
12
operation of the generation asset; and
13
(iv) the financial year beginning on 1 July 2010 had been an
14
eligible financial year;
15
a person would, under section 19, be a liable entity for the
16
previous eligible financial year wholly or partly as a result of
17
those emissions of greenhouse gases--the person.
18
Vintage year
19
(7) Free Australian emissions units issued in accordance with
20
subsection (2) during an eligible financial year are to have a
21
vintage year of the eligible financial year.
22
Registry account
23
(8) The Authority must not issue a free Australian emissions unit to a
24
person in accordance with subsection (2) unless the person has a
25
Registry account.
26
Other provisions
27
(9) This section has effect subject to sections 183, 185 and 188.
28
Note 1:
Sections 183 and 185 deal with windfall gains.
29
Note 2:
Section 188 deals with power system reliability.
30
31
Coal-fired electricity generation Part 9
Certificate of eligibility for coal-fired generation assistance Division 3
Section 177
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 217
Division 3--Certificate of eligibility for coal-fired
1
generation assistance
2
177 Application for certificate of eligibility for coal-fired generation
3
assistance
4
(1) A person may, within 180 days after the commencement of this
5
section, apply for the Authority to issue a certificate of eligibility
6
for coal-fired generation assistance in respect of a generation asset.
7
(2) A person is not entitled to make an application in respect of a
8
generation complex unless the person owns, controls or operates
9
the generation complex.
10
(3) A person is not entitled to make an application in respect of a
11
generation complex project unless the person proposes to own,
12
control or operate the proposed generation complex.
13
(4) Applications must be mutually exclusive so far as their coverage of
14
generation units or proposed generation units is concerned.
15
(5) If the Authority receives 2 or more applications that, when taken
16
together, breach subsection (4):
17
(a) the Authority must not consider any of those applications;
18
and
19
(b) the Authority must, by written notice given to the applicants,
20
reject those applications and inform the applicants that:
21
(i) the applications breach subsection (4); and
22
(ii) if one or more fresh applications are made within 20
23
days after the notice was given and those fresh
24
applications do not breach subsection (4), the Authority
25
will be prepared to consider those fresh applications.
26
(6) The 180 day time limit in subsection (1) does not apply to a fresh
27
application made in response to a notice under subsection (5).
28
(7) This Act (other than subsection (5)) has effect as if an application
29
rejected under subsection (5) had never been made.
30
(8) The Authority may extend the 180 day time limit in subsection (1)
31
for the making of a particular application, so long as:
32
Part 9 Coal-fired electricity generation
Division 3 Certificate of eligibility for coal-fired generation assistance
Section 178
218 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(a) the extended time limit is not later than 210 days after the
1
commencement of this section; and
2
(b) the application, when taken together with any other
3
application or applications received by the Authority, does
4
not breach subsection (4).
5
178 Form of application
6
(1) An application must:
7
(a) be in writing; and
8
(b) be in a form approved, in writing, by the Minister; and
9
(c) be accompanied by such information as is specified in the
10
regulations; and
11
(d) be accompanied by such documents (if any) as are specified
12
in the regulations; and
13
(e) be accompanied by a prescribed report; and
14
(f) if the application does not relate to a generation complex that
15
entered service on or before 1 July 2004--be accompanied
16
by a report that complies with subsection (3).
17
(2) The approved form of application may provide for verification by
18
statutory declaration of statements in applications.
19
(3) A report complies with this subsection if:
20
(a) the report is by a person who has appropriate engineering
21
qualifications; and
22
(b) the report sets out the person's estimate of the emissions
23
intensity of the generation asset; and
24
(c) the person does not have an interest, pecuniary or otherwise,
25
in the outcome of the application.
26
179 Further information
27
(1) The Authority may, by written notice given to an applicant, require
28
the applicant to give the Authority, within the period specified in
29
the notice, further information in connection with the application.
30
(2) If the applicant breaches the requirement, the Authority may, by
31
written notice given to the applicant:
32
Coal-fired electricity generation Part 9
Certificate of eligibility for coal-fired generation assistance Division 3
Section 180
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 219
(a) refuse to consider the application; or
1
(b) refuse to take any action, or any further action, in relation to
2
the application.
3
180 Issue of certificate of eligibility for coal-fired generation
4
assistance
5
Scope
6
(1) This section applies to a generation asset if an application under
7
section 177 has been made in respect of the generation asset.
8
Issue of certificate
9
(2) After considering the application, the Authority may issue a
10
certificate of eligibility for coal-fired generation assistance in
11
respect of the generation asset.
12
Note:
See section 181 (criteria for issuing certificate).
13
(3) A certificate of eligibility for coal-fired generation assistance must
14
state that a specified number is the annual assistance factor in
15
respect of the generation asset.
16
Note:
The annual assistance factor is worked out under section 182.
17
Timing
18
(4) The Authority must take all reasonable steps to ensure that a
19
decision is made on the application:
20
(a) if the Authority requires the applicant to give further
21
information under subsection 179(1) in relation to the
22
application--within 90 days after the applicant gave the
23
Authority the information; or
24
(b) otherwise--within whichever is the later of the following:
25
(i) 90 days after the application was made;
26
(ii) 210 days after the commencement of this section.
27
Refusal
28
(5) If the Authority decides to refuse to issue a certificate of eligibility
29
for coal-fired generation assistance in respect of the generation
30
Part 9 Coal-fired electricity generation
Division 3 Certificate of eligibility for coal-fired generation assistance
Section 181
220 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
asset, the Authority must give written notice of the decision to the
1
applicant.
2
Publication of copy of certificate
3
(6) As soon as practicable after issuing a certificate of eligibility for
4
coal-fired generation assistance in respect of the generation asset,
5
the Authority must publish a copy of the certificate on its website.
6
181 Criteria for issuing certificate of eligibility for coal-fired
7
generation assistance
8
(1) The Authority must not issue a certificate of eligibility for
9
coal-fired generation assistance in respect of a generation asset
10
unless the Authority is satisfied that the generation asset passes the
11
generation asset assistance eligibility test.
12
Generation complexes
13
(2) For the purposes of subsection (1), a generation complex passes the
14
generation asset assistance eligibility test if:
15
(a) each generation unit in the generation complex satisfies at
16
least one of the following conditions:
17
(i) it was in operation at any time during June 2007;
18
(ii) it was not in operation at any time during June 2007, but
19
as at the end of June 2007 there was a plan to return the
20
generation unit to operation before the end of 2007;
21
(iii) it was not in operation at any time during June 2007, but
22
was intended to be returned to operation following a
23
period of being out of service due to restricted access to
24
cooling water; and
25
(b) at least 95% of the electricity generated by the generation
26
complex during the financial year beginning on 1 July 2006
27
was attributable to the combustion of coal; and
28
(c) at any time during the financial year beginning on 1 July
29
2006, the generation complex was connected to a grid with a
30
grid capacity of at least 100 megawatts.
31
Coal-fired electricity generation Part 9
Certificate of eligibility for coal-fired generation assistance Division 3
Section 181
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 221
Generation complex projects
1
(3) For the purposes of subsection (1), a generation complex project
2
passes the generation asset assistance eligibility test if:
3
(a) as at the start of 3 June 2007, the project was in existence but
4
had not been completed; and
5
(b) as at the start of 3 June 2007, the project was fully committed
6
by the project proponent, having regard to the following
7
matters:
8
(i) the project proponent's rights to land for the
9
construction of the project;
10
(ii) whether contracts for the supply and construction of the
11
project's major plant or equipment (including contract
12
provisions for project cancellations) were executed;
13
(iii) the status of all planning and construction approvals and
14
licences necessary for the commencement of
15
construction of the project (including completed and
16
approved environmental impact statements);
17
(iv) the level of commitment to financing arrangements for
18
the project;
19
(v) whether project construction had commenced before
20
3 June 2007;
21
(vi) whether, as at the start of 3 June 2007, a firm date had
22
been set for project construction to commence; and
23
(c) as at the start of 3 June 2007, it was proposed that at least
24
95% of the electricity generated by the project during each
25
financial year of operation would be attributable to the
26
combustion of coal; and
27
(d) as at the start of 3 June 2007, it was proposed that the project
28
would, on completion, be connected to a grid with a grid
29
capacity of at least 100 megawatts.
30
Capacity of grid
31
(4) For the purposes of this section, the capacity of a grid is to be
32
determined in accordance with regulations made for the purposes
33
of subsection 31(3) of the Renewable Energy (Electricity) Act
34
2000.
35
Part 9 Coal-fired electricity generation
Division 3 Certificate of eligibility for coal-fired generation assistance
Section 182
222 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
182 Annual assistance factor
1
(1) The annual assistance factor to be specified in a certificate of
2
eligibility for coal-fired generation assistance in respect of a
3
generation asset is the Authority's reasonable estimate of the
4
number worked out to 3 decimal places using the following
5
formula:
6
Historical energy
Emissions intensity
0.86
7
where:
8
emissions intensity has the meaning given by whichever of
9
subsection (2), (3), (4) or (6) is applicable.
10
historical energy means:
11
(a) if the generation asset is a generation complex that entered
12
service on or before 1 July 2004--the total number of
13
gigawatt hours of electricity generated by the generation
14
complex during the period beginning on 1 July 2004 and
15
ending on 30 June 2007, as measured at all generator
16
terminals of the generation complex; or
17
(b) if the generation asset is a generation complex that entered
18
service after 1 July 2004--21.024 multiplied by the number
19
of megawatts in the nameplate rating of the generation
20
complex as at the day the generation complex entered
21
service; or
22
(c) if the generation asset is a generation complex project--
23
21.024 multiplied by the number of megawatts in the
24
proposed nameplate rating of the proposed generation
25
complex, worked out as at the start of 3 June 2007.
26
Emissions intensity
27
(2) For the purposes of subsection (1), the emissions intensity of a
28
generation complex that entered service on or before 1 July 2004 is
29
the number worked out to 3 decimal places using the formula:
30
Carbon dioxide equivalence of emissions
Gigawatt hours of electricity generated
31
where:
32
Coal-fired electricity generation Part 9
Certificate of eligibility for coal-fired generation assistance Division 3
Section 182
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 223
carbon dioxide equivalence of emissions means the total number
1
of kilotonnes of the carbon dioxide equivalence of the greenhouse
2
gases emitted from the combustion of fuel in the generation
3
complex for the purposes of the generation of electricity during the
4
period beginning on 1 July 2004 and ending on 30 June 2007.
5
gigawatt hours of electricity generated means the total number of
6
gigawatt hours of electricity generated by the generation complex
7
during the period beginning on 1 July 2004 and ending on 30 June
8
2007, as measured at all generator terminals of the generation
9
complex.
10
(3) However, the emissions intensity of a generation complex that
11
entered service on or before 1 July 2004 is taken to be 0.86 if the
12
number worked out to three decimal places using the formula in
13
subsection (2) is less than 0.86.
14
(4) For the purposes of subsection (1), the emissions intensity of a
15
generation asset not covered by subsection (2) is the number that,
16
in the opinion of the Authority, should be treated as the emissions
17
intensity of the generation asset, having regard to the following
18
matters:
19
(a) any documents relating to the design of the generation asset;
20
(b) any contracts for the supply of fuel for combustion in the
21
generation asset for the purposes of the generation of
22
electricity;
23
(c) if the generation asset is a generation complex that has
24
entered service--the number worked out to 3 decimal places
25
using the formula set out in subsection (5);
26
(d) the report mentioned in paragraph 178(1)(f);
27
(e) such other matters (if any) as the Authority considers
28
relevant.
29
(5) The formula mentioned in paragraph (4)(c) is:
30
Carbon dioxide equivalence of emissions
Gigawatt hours of electricity generated
31
where:
32
Part 9 Coal-fired electricity generation
Division 3 Certificate of eligibility for coal-fired generation assistance
Section 182
224 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
carbon dioxide equivalence of emissions means the total number
1
of kilotonnes of the carbon dioxide equivalence of the greenhouse
2
gases emitted from the combustion of fuel in the generation
3
complex for the purposes of the generation of electricity during the
4
period when the generation complex was in service.
5
gigawatt hours of electricity generated means the number of
6
gigawatt hours of electricity generated by the generation complex
7
during the period when the generation complex was in service.
8
(6) However, the emissions intensity of a generation asset not covered
9
by subsection (2) is taken to be 0.86 if the number worked out
10
under subsection (4) is less than 0.86.
11
12
Coal-fired electricity generation Part 9
Windfall gain Division 4
Section 183
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 225
Division 4--Windfall gain
1
183 No assistance for 2014-2015 or 2015-2016 if a windfall gain
2
declaration is in force etc.
3
(1) The Minister may, before 1 August 2014, by writing, determine
4
that no free Australian emissions units that have a vintage year of:
5
(a) the eligible financial year beginning on 1 July 2014; or
6
(b) the eligible financial year beginning on 1 July 2015;
7
are to be issued in accordance with this Part in respect of a
8
specified generation asset.
9
(2) The Minister must not make a determination under subsection (1)
10
in relation to a generation asset unless a windfall gain declaration
11
is in force in respect of the generation asset.
12
(3) A copy of a determination under subsection (1) is to be given to:
13
(a) the Authority; and
14
(b) the person who made a submission under section 185 in
15
relation to the generation asset.
16
(4) The Authority must publish the copy on its website.
17
(5) A determination under subsection (1) is not a legislative
18
instrument.
19
184 Revocation of Ministerial determination
20
(1) This section applies if the Minister has made a determination under
21
subsection 183(1) in relation to a generation asset, and:
22
(a) all of the following conditions are satisfied:
23
(i) the decision to make a windfall gain declaration in
24
relation to the generation asset is set aside by the
25
Administrative Appeals Tribunal;
26
(ii) the Administrative Appeals Tribunal makes a decision
27
in substitution for the decision so set aside;
28
(iii) the substituted decision is a decision not to make a
29
windfall gain declaration in relation to the generation
30
asset; or
31
Part 9 Coal-fired electricity generation
Division 4 Windfall gain
Section 184
226 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(b) all of the following conditions are satisfied:
1
(i) the decision to make a windfall gain declaration in
2
relation to the generation asset is set aside by the
3
Administrative Appeals Tribunal;
4
(ii) the Administrative Appeals Tribunal remits the decision
5
for reconsideration by the Authority;
6
(iii) the Authority reconsiders the decision and decides not
7
to make a windfall gain declaration in relation to the
8
generation asset; or
9
(c) all of the following conditions are satisfied:
10
(i) the decision to make a windfall gain declaration in
11
relation to the generation asset is remitted by the
12
Administrative Appeals Tribunal to the Authority for
13
reconsideration of the decision;
14
(ii) the Authority sets the decision aside and makes a
15
decision in substitution for the decision set aside;
16
(iii) the substituted decision is a decision not to make the
17
windfall gain declaration in relation to the generation
18
asset; or
19
(d) both of the following conditions are satisfied:
20
(i) the decision to make a windfall gain declaration in
21
relation to the generation asset is quashed or set aside by
22
a court;
23
(ii) 60 days pass, and neither the Authority nor the
24
Administrative Appeals Tribunal has made, in
25
substitution for the decision quashed or set aside, a
26
decision to make a windfall gain declaration in relation
27
to the generation asset.
28
Revocation of determination
29
(2) The Minister must revoke the subsection 183(1) determination.
30
Issue of free Australian emissions units
31
(3) If the tenth business day after the day on which the subsection
32
183(1) determination was revoked is later than 1 September 2014,
33
subsection 176(2) has effect, in relation to free Australian
34
emissions units required to be issued in respect of the generation
35
Coal-fired electricity generation Part 9
Windfall gain Division 4
Section 185
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 227
asset for the eligible financial year beginning on 1 July 2014, as if
1
the reference in that subsection to 1 September in the eligible
2
financial year were instead a reference to that tenth business day.
3
(4) If the tenth business day after the day on which the subsection
4
183(1) determination was revoked is later than 1 September 2015,
5
subsection 176(2) has effect, in relation to free Australian
6
emissions units required to be issued in respect of the generation
7
asset for the eligible financial year beginning on 1 July 2015, as if
8
the reference in that subsection to 1 September in the eligible
9
financial year were instead a reference to that tenth business day.
10
185 Submission about windfall gain
11
Scope
12
(1) This section applies to a generation asset if free Australian
13
emissions units with a vintage year beginning on 1 July 2013 were
14
issued to a person in accordance with this Part in respect of the
15
generation asset.
16
Submission
17
(2) The person must, before 30 September 2013, make a written
18
submission to the Authority:
19
(a) stating whether or not the person is of the opinion that the
20
generation asset passes the windfall gain test; and
21
(b) setting out the person's reasons for that opinion.
22
(3) A submission under subsection (2) must:
23
(a) be in a form approved, in writing, by the Authority; and
24
(b) contain such information as is specified in a legislative
25
instrument made by the Authority; and
26
(c) contain such documents (if any) as are specified in a
27
legislative instrument made by the Authority.
28
Part 9 Coal-fired electricity generation
Division 4 Windfall gain
Section 186
228 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Compliance
1
(4) If the person breaches subsection (2) in relation to the generation
2
asset, no free Australian emissions units that have a vintage year
3
of:
4
(a) the eligible financial year beginning on 1 July 2014; or
5
(b) the eligible financial year beginning on 1 July 2015;
6
are to be issued in accordance with this Part in respect of the
7
generation asset.
8
186 Windfall gain declaration
9
Scope
10
(1) This section applies to a generation asset if:
11
(a) a certificate of eligibility for coal-fired generation assistance
12
is in force in respect of the generation asset; and
13
(b) a submission about the generation asset is made under
14
section 185.
15
Windfall gain declaration
16
(2) Before 1 April 2014, the Authority must consider whether the
17
generation asset passes the windfall gain test, and:
18
(a) if the Authority is satisfied that the generation asset passes
19
the windfall gain test--make a written declaration (a windfall
20
gain declaration) that the generation asset passes the
21
windfall gain test; or
22
(b) if the Authority is not satisfied that the generation asset
23
passes the windfall gain test--refuse to make a windfall gain
24
declaration in relation to the generation asset.
25
Note:
For windfall gain test, see section 187.
26
(3) Before making a declaration under subsection (2), the Authority
27
must:
28
(a) publish a draft of the declaration on its website and invite
29
people to make submissions to the Authority on the question
30
of whether the declaration should be made; and
31
Coal-fired electricity generation Part 9
Windfall gain Division 4
Section 186
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 229
(b) consider any submissions that were received within the time
1
limit specified by the Authority when it published the draft
2
declaration; and
3
(c) consult the Australian Energy Regulator; and
4
(d) consult the Australian Energy Market Commission
5
established under the Australian Energy Market Commission
6
Establishment Act 2004 of South Australia; and
7
(da) consult the appropriate energy market operator; and
8
(e) consult such other bodies (if any) as are specified in the
9
regulations.
10
(3A) The time limit mentioned in paragraph (2)(b) must not be shorter
11
than 30 days after the draft declaration is published.
12
(4) In making a decision under this section, the Authority:
13
(a) may make such assumptions and estimates as the Authority
14
considers reasonable; and
15
(b) may have regard to such other matters as the Authority
16
considers relevant.
17
(5) A copy of a windfall gain declaration is to be given to the Minister.
18
(6) The copy must be accompanied by a report setting out the
19
Authority's reasons for making the declaration.
20
(7) A copy of the declaration and a copy of the report are to be
21
published on the Authority's website.
22
(8) The Authority may remove from the version of the report
23
published on its website any material that the Authority considers
24
to be commercial-in-confidence.
25
(9) At least 14 days before the Authority:
26
(a) gives a copy of the report to the Minister; or
27
(b) publishes a copy of the report on the Authority's website;
28
a copy of the report is to be given to the person who made the
29
submission mentioned in paragraph (1)(b).
30
(10) A windfall gain declaration is not a legislative instrument.
31
Part 9 Coal-fired electricity generation
Division 4 Windfall gain
Section 187
230 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
187 Windfall gain test
1
Scope
2
(1) This section applies to a generation asset if a certificate of
3
eligibility for coal-fired generation assistance is in force in respect
4
of the generation asset.
5
Windfall gain test
6
(2) For the purposes of this Act, the generation asset passes the
7
windfall gain test if:
8
(a) it is likely that:
9
(i) there will be a projected long-term net revenue loss in
10
respect of the generation asset; and
11
(ii) the total value of assistance in respect of the generation
12
asset will exceed that projected long-term net revenue
13
loss; or
14
(b) it is likely that there will be a projected long-term net revenue
15
gain in respect of the generation asset.
16
Note 1:
For projected long-term net revenue loss, see subsection (4) or (5).
17
Note 2:
For total value of assistance, see subsection (3).
18
Note 3:
For projected long-term net revenue gain, see subsection (6) or (7).
19
Total value of assistance
20
(3) For the purposes of this section, the total value of assistance in
21
respect of the generation asset is the sum of the net present values
22
of:
23
(a) the market value of free Australian emissions units with the
24
following vintage years:
25
(i) the eligible financial year beginning on 1 July 2011;
26
(ii) the eligible financial year beginning on 1 July 2012;
27
(iii) the eligible financial year beginning on 1 July 2013;
28
issued in accordance with this Part in respect of the
29
generation asset; and
30
(b) the projected market value of free Australian emissions units
31
with a vintage year of:
32
Coal-fired electricity generation Part 9
Windfall gain Division 4
Section 187
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 231
(i) the eligible financial year beginning on 1 July 2014;
1
(ii) the eligible financial year beginning on 1 July 2015;
2
to be issued in accordance with this Part in respect of the
3
generation asset.
4
Projected long-term net revenue loss--generation complexes
5
(4) For the purposes of the application of this section to a generation
6
asset that is a generation complex, if the net present value of the
7
projected net revenue derived from the operation of the generation
8
asset during the 15-year period beginning on 1 July 2011 falls short
9
of the amount that would have been the net present value of the
10
projected net revenue derived from the operation of the generation
11
asset if:
12
(a) this Act had not been enacted; and
13
(b) the Renewable Energy (Electricity) Act 2000, as in force at
14
the start of 3 June 2007, had never been amended;
15
then:
16
(c) there is a projected long-term net revenue loss in respect of
17
the generation asset; and
18
(d) the amount of the projected long-term net revenue loss is
19
equal to the shortfall.
20
Projected long-term net revenue loss--generation complex projects
21
(5) For the purposes of the application of this section to a generation
22
asset that is a generation complex project, if the net present value
23
of the projected net revenue derived from the operation of the
24
proposed generation complex during the 15-year period beginning
25
on 1 July 2011 falls short of the amount that would have been the
26
net present value of the projected net revenue derived from the
27
operation of the proposed generation complex if:
28
(a) this Act had not been enacted; and
29
(b) the Renewable Energy (Electricity) Act 2000, as in force at
30
the start of 3 June 2007, had never been amended;
31
then:
32
(c) there is a projected long-term net revenue loss in respect of
33
the generation asset; and
34
Part 9 Coal-fired electricity generation
Division 4 Windfall gain
Section 187
232 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(d) the amount of the projected long-term net revenue loss is
1
equal to the shortfall.
2
Projected long-term net revenue gain--generation complexes
3
(6) For the purposes of the application of this section to a generation
4
asset that is a generation complex, if the net present value of the
5
projected net revenue derived from the operation of the generation
6
asset during the 15-year period beginning on 1 July 2011 equals or
7
exceeds the amount that would have been the net present value of
8
the projected net revenue derived from the operation of the
9
generation asset if:
10
(a) this Act had not been enacted; and
11
(b) the Renewable Energy (Electricity) Act 2000, as it stood at
12
the start of 3 June 2007, had never been amended;
13
there is a projected long-term net revenue gain in respect of the
14
generation asset.
15
Projected long-term net revenue gain--generation complex
16
projects
17
(7) For the purposes of the application of this section to a generation
18
asset that is a generation complex project, if the net present value
19
of the projected net revenue derived from the operation of the
20
proposed generation complex during the 15-year period beginning
21
on 1 July 2011 equals or exceeds the amount that would have been
22
the net present value of the projected net revenue derived from the
23
operation of the proposed generation complex if:
24
(a) this Act had not been enacted; and
25
(b) the Renewable Energy (Electricity) Act 2000, as it stood at
26
the start of 3 June 2007, had never been amended;
27
there is a projected long-term net revenue gain in respect of the
28
generation asset.
29
Calculation of values and amounts
30
(8) For the purposes of this section, each of the following:
31
(a) net present value;
32
(b) market value;
33
Coal-fired electricity generation Part 9
Windfall gain Division 4
Section 187
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 233
(c) projected market value;
1
(d) net revenue;
2
(e) projected net revenue;
3
is to be calculated in a manner ascertained in accordance with a
4
legislative instrument made by the Authority.
5
(9) In making an instrument under subsection (8) that relates to the
6
calculation of:
7
(a) net revenue; or
8
(b) projected net revenue;
9
the Authority must have regard to:
10
(c) the effect of any contract for the supply of electricity that was
11
entered into before 3 June 2007; and
12
(d) such other matters (if any) as the Authority considers
13
relevant.
14
(10) Before making an instrument under subsection (8), the Authority
15
must:
16
(a) publish a draft of the instrument on its website and invite
17
people to make submissions to the Authority on the question
18
of whether the instrument should be made; and
19
(b) consider any submissions that were received within the time
20
limit specified by the Authority when it published the draft
21
instrument.
22
(11) The time limit must not be shorter than 30 days after the draft
23
instrument is published.
24
(12) The Authority must take all reasonable steps to ensure that:
25
(a) a draft of an instrument under subsection (8) is published
26
under paragraph (10)(a) before 1 April 2013; and
27
(b) an instrument is made under subsection (8) before 1 July
28
2013.
29
Assumptions
30
(13) For the purposes of the application of this section to a generation
31
asset that is a generation complex, it is to be assumed that no
32
Part 9 Coal-fired electricity generation
Division 4 Windfall gain
Section 187
234 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
modifications to the generation complex were undertaken, or
1
proposed to be undertaken, at any time during the period:
2
(a) beginning on 3 June 2007; and
3
(b) ending at the end of 30 June 2026.
4
(14) For the purposes of the application of this section to a generation
5
asset that is a generation complex project, it is to be assumed that
6
no modifications were made to the project after the start of 3 June
7
2007.
8
(15) For the purposes of this section, assume that sections 183, 185 and
9
188 had never been enacted.
10
11
Coal-fired electricity generation Part 9
Power system reliability Division 5
Section 188
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 235
Division 5--Power system reliability
1
188 No assistance if generation asset does not pass the power system
2
reliability test
3
Scope
4
(1) This section applies to a generation asset if:
5
(a) a certificate of eligibility for coal-fired generation assistance
6
is in force in respect of the generation asset; and
7
(b) the generation asset is a generation complex.
8
No assistance if generation complex does not pass the power
9
system reliability test
10
(2) No free Australian emissions units with a vintage year of a
11
particular eligible financial year are to be issued in accordance with
12
this Part in respect of the generation complex if the generation
13
complex does not pass the power system reliability test in relation
14
to the eligible financial year.
15
189 Power system reliability test
16
Scope
17
(1) This section applies to a generation complex if a certificate of
18
eligibility for coal-fired generation assistance is in force in respect
19
of the generation complex.
20
Power system reliability test
21
(2) For the purposes of this Act, the generation complex passes the
22
power system reliability test in relation to an eligible financial year
23
if:
24
(a) the following conditions are satisfied:
25
(i) as at the start of 1 September in the eligible financial
26
year, a person who owns, controls or operates the
27
generation complex is registered as a generator under a
28
law of the Commonwealth, a State or Territory relating
29
to the regulation of energy markets;
30
Part 9 Coal-fired electricity generation
Division 5 Power system reliability
Section 189
236 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(ii) as at the start of 3 June 2007, the nameplate rating in
1
megawatts of the generation complex was registered
2
under such a law;
3
(iii) as at the start of 1 September in the eligible financial
4
year, the nameplate rating in megawatts of the
5
generation complex was not less than the nameplate
6
rating in megawatts of the generation complex that was
7
registered under that law as at the start of 3 June 2007;
8
or
9
(b) the following conditions are satisfied:
10
(i) as at the start of 1 September in the eligible financial
11
year, a person who owns, controls or operates the
12
generation complex is registered as a generator under a
13
law of the Commonwealth, a State or Territory relating
14
to the regulation of energy markets;
15
(ii) the nameplate rating in megawatts of the generation
16
complex was first registered under the law at a time
17
after the start of 3 June 2007 but before 1 September in
18
the eligible financial year;
19
(iii) as at the start of 1 September in the eligible financial
20
year, the nameplate rating in megawatts of the
21
generation complex was not less than the nameplate
22
rating in megawatts that was registered as mentioned in
23
subparagraph (ii); or
24
(c) the following conditions are satisfied:
25
(i) neither paragraph (a) nor (b) applies;
26
(ii) as at the start of 1 September in the eligible financial
27
year, a person who owns, controls or operates the
28
generation complex is registered as a generator under a
29
law of the Commonwealth, a State or Territory relating
30
to the regulation of energy markets;
31
(iii) during the period beginning at the start of 3 June 2007
32
and ending immediately before 1 September in the
33
eligible financial year, there was a reduction in the
34
nameplate rating in megawatts of the generation
35
complex;
36
(iv) the appropriate energy market operator certifies in
37
writing that there is unlikely to be a breach of power
38
Coal-fired electricity generation Part 9
Power system reliability Division 5
Section 189A
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 237
system reliability standards applicable to the energy
1
market concerned at any time within 2 years after the
2
reduction; or
3
(d) the following conditions are satisfied:
4
(i) neither paragraph (a) nor (b) applies;
5
(ii) at a time before 1 September in the eligible financial
6
year, a person who owns, controls or operates the
7
generation complex was registered as a generator under
8
a law of the Commonwealth, a State or Territory
9
relating to the regulation of energy markets;
10
(iii) during the period beginning at the start of 3 June 2007
11
and ending immediately before 1 September in the
12
eligible financial year, the registration ceased to be in
13
force;
14
(iv) the appropriate energy market operator certifies in
15
writing that there is unlikely to be a breach of power
16
system reliability standards applicable to the energy
17
market concerned at any time within 2 years after the
18
cessation.
19
189A Anticipatory certification--reduction in nameplate rating
20
Scope
21
(1) This section applies to a generation complex if a person who owns,
22
controls or operates the generation complex is registered as a
23
generator under a law of the Commonwealth, a State or Territory
24
relating to the regulation of energy markets.
25
Application
26
(2) The person may apply, in writing, to the appropriate energy market
27
operator to certify that if a proposed reduction in the nameplate
28
rating in megawatts of the generation complex were to occur
29
during the period:
30
(a) beginning at the start of 3 June 2007; and
31
(b) ending immediately before 1 September in a specified
32
eligible financial year;
33
Part 9 Coal-fired electricity generation
Division 5 Power system reliability
Section 189B
238 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
there is unlikely to be a breach of power system reliability
1
standards applicable to the energy market concerned at any time
2
within 2 years after the reduction.
3
Certification
4
(3) If an application is made under subsection (2), the appropriate
5
energy market operator may:
6
(a) certify in accordance with the application; or
7
(b) refuse to so certify.
8
(4) If, within 120 days after receiving an application under
9
subsection (2), the appropriate energy market operator has neither:
10
(a) certified in accordance with the application; nor
11
(b) refused to so certify;
12
the appropriate energy market operator is taken, for the purposes of
13
this Act, to have certified in accordance with the application.
14
Consequences of certification
15
(5) If:
16
(a) the appropriate energy market operator certifies in
17
accordance with the application; and
18
(b) the proposed reduction occurs;
19
then, for the purposes of subparagraph 189(2)(c)(iv), the
20
appropriate energy market operator is taken to have certified in
21
writing that there is unlikely to be a breach of power system
22
reliability standards applicable to the energy market concerned at
23
any time within 2 years after the reduction.
24
189B Anticipatory certification--cessation of registration as a
25
generator
26
Scope
27
(1) This section applies to a generation complex if a person who owns,
28
controls or operates the generation complex is registered as a
29
generator under a law of the Commonwealth, a State or Territory
30
relating to the regulation of energy markets.
31
Coal-fired electricity generation Part 9
Power system reliability Division 5
Section 189B
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 239
Application
1
(2) The person may apply, in writing, to the appropriate energy market
2
operator to certify that if a proposed cessation of the registration
3
were to occur during the period:
4
(a) beginning at the start of 3 June 2007; and
5
(b) ending immediately before 1 September in a specified
6
eligible financial year;
7
there is unlikely to be a breach of power system reliability
8
standards applicable to the energy market concerned at any time
9
within 2 years after the cessation.
10
Certification
11
(3) If an application is made under subsection (2), the appropriate
12
energy market operator may:
13
(a) certify in accordance with the application; or
14
(b) refuse to so certify.
15
(4) If, within 120 days after receiving an application under
16
subsection (2), the appropriate energy market operator has neither:
17
(a) certified in accordance with the application; nor
18
(b) refused to so certify;
19
the appropriate energy market operator is taken, for the purposes of
20
this Act, to have certified in accordance with the application.
21
Consequences of certification
22
(5) If:
23
(a) the appropriate energy market operator certifies in
24
accordance with the application; and
25
(b) the proposed cessation occurs;
26
then, for the purposes of subparagraph 189(2)(d)(iv), the
27
appropriate energy market operator is taken to have certified in
28
writing that there is unlikely to be a breach of power system
29
reliability standards applicable to the energy market concerned at
30
any time within 2 years after the cessation.
31
32
Part 10 Reforestation
Division 1 Introduction
Section 190
240 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Part 10--Reforestation
1
Division 1--Introduction
2
190 Simplified outline
3
The following is a simplified outline of this Part:
4
·
Free Australian emissions units may be issued in relation to
5
eligible reforestation projects.
6
·
The number of free units will be worked out by reference to:
7
(a) the net total number of tonnes of greenhouse gases
8
that, under the regulations, is taken to be removed
9
by the forest stand or stands to which the project
10
relates; and
11
(b) the reforestation unit limit determined by the
12
Authority for the project.
13
·
Free units will be issued to the holder of the carbon
14
sequestration right in relation to the project, so long as the
15
holder is recognised as a reforestation entity by the Authority.
16
·
The Authority may declare a reforestation project to be an
17
eligible reforestation project.
18
·
A reforestation report relating to an eligible reforestation
19
project must be given to the Authority for a reforestation
20
reporting period. A reforestation reporting period is a period
21
of not more than 5 years and not less than 12 months.
22
·
Australian emissions units may be required to be relinquished
23
in certain circumstances.
24
·
A forest maintenance obligation may be imposed on the
25
holder of the forestry right in relation to an area or areas of
26
Reforestation Part 10
Introduction Division 1
Section 190
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 241
land if a relinquishment requirement has not been complied
1
with.
2
·
A Registrar of Titles may make entries on land titles for the
3
purposes of drawing the attention of persons to the existence
4
of eligible reforestation projects and forest maintenance
5
obligations.
6
·
There is to be a Register of Reforestation Projects, which is to
7
be made available for inspection on the Authority's website.
8
9
Part 10 Reforestation
Division 2 Issue of free Australian emissions units in respect of reforestation
Section 191
242 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Division 2--Issue of free Australian emissions units in
1
respect of reforestation
2
191 Issue of free Australian emissions units in respect of
3
reforestation
4
Scope
5
(1) This section applies if a certificate of reforestation is in force.
6
Note:
For certificate of reforestation, see section 195.
7
Issue of free units
8
(2) As soon as practicable after the day on which the certificate was
9
issued, the Authority must issue to the holder of the certificate a
10
number of free Australian emissions units equal to the number
11
specified in the certificate as the unit entitlement for that
12
certificate.
13
(2A) Free Australian emissions units issued in accordance with
14
subsection (2) during the eligible financial year beginning on
15
1 July 2011 are to have a vintage year beginning on 1 July 2012.
16
(3) Free Australian emissions units issued in accordance with
17
subsection (2) during an eligible financial year (other than the
18
eligible financial year beginning on 1 July 2011) are to have a
19
vintage year of the eligible financial year.
20
(4) The Authority must not issue a free Australian emissions unit to a
21
person in accordance with subsection (2) unless the person has a
22
Registry account.
23
24
Reforestation Part 10
Certificate of reforestation Division 3
Section 192
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 243
Division 3--Certificate of reforestation
1
192 Application for certificate of reforestation
2
(1) If:
3
(a) a person gives a reforestation report to the Authority; and
4
(b) the reforestation report is in respect of an eligible
5
reforestation project for a reforestation reporting period;
6
the person may apply to the Authority for the issue to the person of
7
a certificate of reforestation in respect of the project for the period.
8
Note 1:
For reforestation report, see section 225.
9
Note 2:
For eligible reforestation project, see section 209.
10
Note 3:
For reforestation reporting period, see section 223 or 224.
11
(2) An application may be set out in the same document as the
12
reforestation report.
13
(3) For the purposes of section 136.1 of the Criminal Code, a
14
statement in the reforestation report is taken to be a statement made
15
in connection with the application.
16
193 Form of application
17
An application must:
18
(a) be in writing; and
19
(b) be in a form approved, in writing, by the Authority.
20
194 Further information
21
(1) The Authority may, by written notice given to an applicant, require
22
the applicant to give the Authority, within the period specified in
23
the notice, further information in connection with the application.
24
(2) If the applicant breaches the requirement, the Authority may, by
25
written notice given to the applicant:
26
(a) refuse to consider the application; or
27
(b) refuse to take any action, or any further action, in relation to
28
the application.
29
Part 10 Reforestation
Division 3 Certificate of reforestation
Section 195
244 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
195 Issue of certificate of reforestation
1
Scope
2
(1) This section applies if an application under section 192 has been
3
made for the issue of a certificate of reforestation in respect of an
4
eligible reforestation project for a reforestation reporting period.
5
Issue of certificate
6
(2) If:
7
(a) the Authority is satisfied that the applicant is a recognised
8
reforestation entity; and
9
(b) the Authority is satisfied that the applicant holds the carbon
10
sequestration right in relation to the project; and
11
(c) the applicant is not subject to a requirement under this Part to
12
relinquish a number of Australian emissions units; and
13
(d) no amount is payable by the applicant under:
14
(i) section 287; or
15
(ii) section 288;
16
in relation to a requirement under this Part to relinquish a
17
number of Australian emissions units; and
18
(e) if any Australian emissions units have previously been issued
19
in accordance with this Part--the number worked out using
20
the formula set out in subsection (3) exceeds 0; and
21
(f) the number worked out using the formula set out in
22
subsection (4) exceeds 0; and
23
(g) if the regulations specify one or more other eligibility
24
requirements--the Authority is satisfied that those
25
requirements are met;
26
the Authority must issue a certificate of reforestation in respect of
27
the eligible reforestation project for the reforestation reporting
28
period.
29
Note 1:
For recognised reforestation entity, see section 201.
30
Note 2:
For carbon sequestration right, see section 240.
31
(3) The formula mentioned in paragraph (2)(e) is:
32
Reforestation Part 10
Certificate of reforestation Division 3
Section 195
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 245
Net total number of
Net total number of tonnes
Australian emissions units
of greenhouse gases removed
issued in relation to the project
in accordance with this Part
1
where:
2
net total number of tonnes of greenhouse gases removed is the
3
net total number of tonnes of greenhouse gases that, under the
4
regulations, is taken to be removed by the forest stand or stands to
5
which the project relates during the period:
6
(a) beginning on the day the section 209 declaration in relation
7
to the project took effect; and
8
(b) ending at the end of the reforestation reporting period.
9
(4) The formula mentioned in paragraph (2)(f) is:
10
Net total number of
Reforestation unit limit
Australian emissions units
for the project
issued in relation to the project
in accordance with this Part
11
Note:
For reforestation unit limit, see section 220.
12
(5) A certificate of reforestation must state that a specified number is
13
the unit entitlement in respect of the certificate.
14
Note:
See section 196 (unit entitlement).
15
Timing
16
(6) The Authority must take all reasonable steps to ensure that a
17
decision is made on the application:
18
(a) if the Authority requires the applicant to give further
19
information under subsection 194(1) in relation to the
20
application--within 90 days after the applicant gave the
21
Authority the information; or
22
(b) otherwise--within 90 days after the application was made.
23
Refusal
24
(7) If the Authority decides to refuse to issue a certificate of
25
reforestation, the Authority must give written notice of the decision
26
to the applicant.
27
Part 10 Reforestation
Division 3 Certificate of reforestation
Section 196
246 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Computer program
1
(8) Regulations made for the purposes of subsection (3) may provide
2
for a number to be worked out wholly or partly using a computer
3
program specified in a legislative instrument made by the
4
Authority under this subsection.
5
196 Unit entitlement
6
(1) The number to be specified in a certificate of reforestation in
7
respect of an eligible reforestation project for a reforestation
8
reporting period as the unit entitlement in respect of the certificate
9
is the lesser of the following numbers:
10
(a) the number worked out using the formula set out in
11
subsection (2);
12
(b) the number worked out using the following formula:
13
Net total number of
Reforestation unit limit
Australian emissions units
for the project
issued in relation to the project
in accordance with this Part
14
Note:
For reforestation unit limit, see section 220.
15
(2) The formula mentioned in paragraph (1)(a) is:
16
Net total number of
Net total number of tonnes
Australian emissions units
of greenhouse gases removed
issued in relation to the project
in accordance with this Part
17
where:
18
net total number of tonnes of greenhouse gases removed is the
19
net total number of tonnes of greenhouse gases that, under the
20
regulations, is taken to be removed by the forest stand or stands to
21
which the project relates during the period:
22
(a) beginning on the day the section 209 declaration in relation
23
to the project took effect; and
24
(b) ending at the end of the reforestation reporting period.
25
(3) If the number worked out using the formula set out in
26
subsection (2) is not a whole number, the number is to be rounded
27
Reforestation Part 10
Certificate of reforestation Division 3
Section 197
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 247
to the nearest whole number (with a number ending in .5 being
1
rounded up).
2
(4) Regulations made for the purposes of subsection (2) may provide
3
for a number to be worked out wholly or partly using a computer
4
program specified in a legislative instrument made by the
5
Authority under this subsection.
6
197 Certificate of reforestation is not transferable
7
A certificate of reforestation is not transferable.
8
9
Part 10 Reforestation
Division 4 Recognised reforestation entities
Section 198
248 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Division 4--Recognised reforestation entities
1
198 Application for recognition as a reforestation entity
2
A person may apply to the Authority for recognition as a
3
reforestation entity.
4
199 Form of application
5
(1) An application must:
6
(a) be in writing; and
7
(b) be in a form approved, in writing, by the Authority; and
8
(c) be accompanied by such information as is specified in the
9
regulations; and
10
(d) be accompanied by such documents (if any) as are specified
11
in the regulations; and
12
(e) be accompanied by the fee (if any) specified in the
13
regulations.
14
(2) The approved form of application may provide for verification by
15
statutory declaration of statements in applications.
16
(3) A fee specified under paragraph (1)(e) must not be such as to
17
amount to taxation.
18
200 Further information
19
(1) The Authority may, by written notice given to an applicant, require
20
the applicant to give the Authority, within the period specified in
21
the notice, further information in connection with the application.
22
(2) If the applicant breaches the requirement, the Authority may, by
23
written notice given to the applicant:
24
(a) refuse to consider the application; or
25
(b) refuse to take any action, or any further action, in relation to
26
the application.
27
Reforestation Part 10
Recognised reforestation entities Division 4
Section 201
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 249
201 Recognition as a reforestation entity
1
Scope
2
(1) This section applies if an application under section 198 has been
3
made for recognition as a reforestation entity.
4
Recognition
5
(2) After considering the application, the Authority may, by written
6
notice given to the applicant, recognise the applicant as a
7
reforestation entity.
8
Criteria for recognition
9
(3) The Authority must not recognise the applicant as a reforestation
10
entity unless:
11
(a) the Authority is satisfied that the applicant is a fit and proper
12
person, having regard to the following:
13
(i) whether the applicant has been convicted of an offence
14
against a law of the Commonwealth, a State or
15
Territory, where the offence relates to dishonest
16
conduct;
17
(ii) whether the applicant has been convicted of an offence
18
against a law of the Commonwealth, a State or
19
Territory, where the offence relates to the conduct of a
20
business;
21
(iii) whether the applicant has been convicted of an offence
22
against section 136.1, 137.1 or 137.2 of the Criminal
23
Code;
24
(iv) whether an order has been made against the applicant
25
under section 76 of the Trade Practices Act 1974;
26
(v) whether the applicant has breached this Act or the
27
associated provisions;
28
(vi) if the applicant is a body corporate--whether an
29
executive officer of the body corporate has been
30
convicted of an offence against a law of the
31
Commonwealth, a State or Territory, where the offence
32
relates to dishonest conduct;
33
Part 10 Reforestation
Division 4 Recognised reforestation entities
Section 201
250 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(vii) if the applicant is a body corporate--whether an
1
executive officer of the body corporate has been
2
convicted of an offence against a law of the
3
Commonwealth, a State or Territory, where the offence
4
relates to the conduct of a business;
5
(viii) if the applicant is a body corporate--whether an
6
executive officer of the body corporate has been
7
convicted of an offence against section 136.1, 137.1 or
8
137.2 of the Criminal Code;
9
(ix) if the applicant is a body corporate--whether an order
10
has been made against an executive officer of the body
11
corporate under section 76 of the Trade Practices Act
12
1974;
13
(x) if the applicant is a body corporate--whether an
14
executive officer of the body corporate has breached
15
this Act or the associated provisions;
16
(xi) such other matters (if any) as the Authority considers
17
relevant; and
18
(b) if the applicant is an individual--the Authority is satisfied
19
that the applicant is not an insolvent under administration;
20
and
21
(c) if the applicant is a body corporate--the Authority is satisfied
22
that the applicant is not an externally-administered body
23
corporate; and
24
(d) if the regulations specify one or more other eligibility
25
requirements--the Authority is satisfied that those
26
requirements are met.
27
(4) Subparagraphs (3)(a)(i) to (x) do not limit subparagraph (3)(a)(xi).
28
Timing
29
(5) The Authority must take all reasonable steps to ensure that a
30
decision is made on the application:
31
(a) if the Authority requires the applicant to give further
32
information under subsection 200(1) in relation to the
33
application--within 90 days after the applicant gave the
34
Authority the information; or
35
(b) otherwise--within 90 days after the application was made.
36
Reforestation Part 10
Recognised reforestation entities Division 4
Section 202
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 251
Refusal
1
(6) If the Authority decides to refuse to recognise the applicant as a
2
reforestation entity, the Authority must give written notice of the
3
decision to the applicant.
4
202 Cancellation of recognition
5
(1) The Authority may cancel the recognition of a person as a
6
reforestation entity if:
7
(a) the Authority is satisfied that the person is not a fit and
8
proper person, having regard to the following:
9
(i) whether the person has been convicted of an offence
10
against a law of the Commonwealth, a State or
11
Territory, where the offence relates to dishonest
12
conduct;
13
(ii) whether the person has been convicted of an offence
14
against a law of the Commonwealth, a State or
15
Territory, where the offence relates to the conduct of a
16
business;
17
(iii) whether the person has been convicted of an offence
18
against section 136.1, 137.1 or 137.2 of the Criminal
19
Code;
20
(iv) whether an order has been made against the person
21
under section 76 of the Trade Practices Act 1974;
22
(v) whether the person has breached this Act or the
23
associated provisions;
24
(vi) if the person is a body corporate--whether an executive
25
officer of the body corporate has been convicted of an
26
offence against a law of the Commonwealth, a State or
27
Territory, where the offence relates to dishonest
28
conduct;
29
(vii) if the person is a body corporate--whether an executive
30
officer of the body corporate has been convicted of an
31
offence against a law of the Commonwealth, a State or
32
Territory, where the offence relates to the conduct of a
33
business;
34
(viii) if the person is a body corporate--whether an executive
35
officer of the body corporate has been convicted of an
36
Part 10 Reforestation
Division 4 Recognised reforestation entities
Section 203
252 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
offence against section 136.1, 137.1 or 137.2 of the
1
Criminal Code;
2
(ix) if the person is a body corporate--whether an order has
3
been made against an executive officer of the body
4
corporate under section 76 of the Trade Practices Act
5
1974;
6
(x) if the person is a body corporate--whether an executive
7
officer of the body corporate has breached this Act or
8
the associated provisions;
9
(xi) such other matters (if any) as the Authority considers
10
relevant; or
11
(b) if the person is an individual--the Authority is satisfied that
12
the person is an insolvent under administration; or
13
(c) if the person is a body corporate--the Authority is satisfied
14
that the person is an externally-administered body corporate;
15
or
16
(d) if the regulations specify one or more other grounds for
17
cancellation--the Authority is satisfied that at least one of
18
those grounds is applicable to the person.
19
(2) Subparagraphs (1)(a)(i) to (x) do not limit subparagraph (1)(a)(xi).
20
203 Surrender of recognition
21
Scope
22
(1) This section applies if a person is recognised as a reforestation
23
entity.
24
Surrender
25
(2) The person may, by written notice given to the Authority,
26
surrender the person's recognition.
27
(3) The surrender takes effect on the day the notice is received by the
28
Authority or, if a later day is specified in the notice, on that later
29
day.
30
Reforestation Part 10
Recognised reforestation entities Division 4
Section 204
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 253
204 Recognition is not transferable
1
If a person is recognised as a reforestation entity, the person's
2
recognition is not transferable.
3
4
Part 10 Reforestation
Division 5 Eligible reforestation projects
Section 205
254 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Division 5--Eligible reforestation projects
1
Subdivision A--Declaration of eligible reforestation project
2
205 Application for declaration of eligible reforestation project
3
A person may apply to the Authority for the declaration of a
4
reforestation project as an eligible reforestation project.
5
206 Form of application
6
(1) An application must:
7
(a) be in writing; and
8
(b) be in a form approved, in writing, by the Authority; and
9
(c) be accompanied by such information as is specified in the
10
regulations; and
11
(d) be accompanied by such other documents (if any) as are
12
specified in the regulations; and
13
(e) be accompanied by the fee (if any) specified in the
14
regulations.
15
(2) The approved form of application may provide for verification by
16
statutory declaration of statements in applications.
17
(3) A fee specified under paragraph (1)(e) must not be such as to
18
amount to taxation.
19
207 Further information
20
(1) The Authority may, by written notice given to an applicant, require
21
the applicant to give the Authority, within the period specified in
22
the notice, further information in connection with the application.
23
(2) If the applicant breaches the requirement, the Authority may, by
24
written notice given to the applicant:
25
(a) refuse to consider the application; or
26
(b) refuse to take any action, or any further action, in relation to
27
the application.
28
Reforestation Part 10
Eligible reforestation projects Division 5
Section 208
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 255
208 Withdrawal of application
1
(1) An applicant may withdraw the application at any time before the
2
Authority makes a decision on the application.
3
(2) This Act does not prevent the applicant from making a fresh
4
application.
5
(3) If:
6
(a) the applicant withdraws the application; and
7
(b) the applicant has paid a fee in relation to the application;
8
the Authority must, on behalf of the Commonwealth, refund the
9
application fee.
10
209 Declaration of eligible reforestation project
11
Scope
12
(1) This section applies if an application under section 205 has been
13
made for a declaration of a reforestation project as an eligible
14
reforestation project.
15
Declaration
16
(2) After considering the application, the Authority may, by writing,
17
declare that the reforestation project is an eligible reforestation
18
project for the purposes of this Act.
19
(3) A declaration under subsection (2) must:
20
(a) identify, in accordance with the regulations, the project area
21
or project areas; and
22
(b) identify such other attributes of the project as are specified in
23
the regulations.
24
Criteria for declaration
25
(4) The Authority must not declare that the reforestation project is an
26
eligible reforestation project unless the Authority is satisfied that:
27
(a) the project area, or each project area, meets the requirements
28
set out in subsection (5); and
29
Part 10 Reforestation
Division 5 Eligible reforestation projects
Section 209
256 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(b) if the project area is, or the project areas are, Torrens system
1
land--the project area is, or the project areas are, held under
2
a single title; and
3
(c) the applicant is a recognised reforestation entity; and
4
(d) the applicant holds the carbon sequestration right in relation
5
to the project; and
6
(e) each of the following has consented, in writing, to the
7
making of the application:
8
(i) if the applicant does not hold an estate in fee simple in
9
the project area or project areas--the person who holds
10
an estate in fee simple in the project area or project
11
areas;
12
(ii) if the applicant does not hold the forestry right in
13
relation to the project--the person who holds the
14
forestry right in relation to the project;
15
(iii) any mortgagee of the project area or project areas
16
registered in accordance with a law of a State or
17
Territory; and
18
(f) if:
19
(i) the project area is, or the project areas are, Crown land
20
in a State or Territory; and
21
(ii) the applicant is not the State or Territory;
22
the principal State Minister of the State, or the principal
23
Territory Minister of the Territory, as the case requires, has
24
certified in writing that:
25
(iii) the applicant holds the carbon sequestration right in
26
relation to the project; and
27
(iv) the State or Territory will not deal with the project area
28
or project areas, and will not consent to any other
29
person dealing with the project area or project areas, in a
30
way that is inconsistent with the carbon sequestration
31
right; and
32
(g) the project meets the eligibility requirements (if any)
33
specified in the regulations.
34
(5) The requirements mentioned in paragraph (4)(a) are:
35
(a) the project area is, or the project areas are, Torrens system
36
land; or
37
Reforestation Part 10
Eligible reforestation projects Division 5
Section 209
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 257
(b) the following conditions are satisfied in relation to the project
1
area or project areas:
2
(i) the project area is not, or the project areas are not,
3
general law land;
4
(ii) the project area is not, or the project areas are not,
5
specified in the regulations.
6
Note:
For specification by class, see subsection 13(3) of the Legislative
7
Instruments Act 2003.
8
Timing
9
(6) The Authority must take all reasonable steps to ensure that a
10
decision is made on the application:
11
(a) if the Authority requires the applicant to give further
12
information under subsection 207(1) in relation to the
13
application--within 90 days after the applicant gave the
14
Authority the information; or
15
(b) otherwise--within 90 days after the application was made.
16
When a declaration takes effect
17
(7) A declaration under subsection (2) takes effect:
18
(a) immediately after it is made; or
19
(b) if:
20
(i) an earlier day is specified in the declaration; and
21
(ii) the applicant has consented to the specification of the
22
earlier day;
23
on the day specified.
24
(8) The specified day must not be a day that is earlier than the later of:
25
(a) 1 July 2010; or
26
(b) the first day of the 5-year period ending when the application
27
for the declaration was made.
28
Notification of declaration
29
(9) As soon as practicable after making a declaration under
30
subsection (2), the Authority must give a copy of the declaration to
31
the applicant.
32
Part 10 Reforestation
Division 5 Eligible reforestation projects
Section 210
258 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Refusal
1
(10) If the Authority decides to refuse to declare the reforestation
2
project as an eligible reforestation project, the Authority must give
3
written notice of the decision to the applicant.
4
Declaration is not legislative instrument
5
(11) A declaration made under subsection (2) is not a legislative
6
instrument.
7
Subdivision B--Voluntary variation of declaration of eligible
8
reforestation project
9
210 Application for variation of declaration of eligible reforestation
10
project
11
Scope
12
(1) This section applies if:
13
(a) a reforestation report is given to the Authority; and
14
(b) the reforestation report is in respect of an eligible
15
reforestation project to which a declaration under section 209
16
relates.
17
Note:
For reforestation report, see section 225.
18
Application for variation of declaration
19
(2) A person may apply to the Authority for the variation of the
20
declaration so far as the declaration identifies the project area or
21
project areas.
22
Form of application
23
(3) An application must:
24
(a) be in writing; and
25
(b) be in a form approved, in writing, by the Authority; and
26
(c) be accompanied by such information as is specified in the
27
regulations; and
28
Reforestation Part 10
Eligible reforestation projects Division 5
Section 211
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 259
(d) be accompanied by such other documents (if any) as are
1
specified in the regulations; and
2
(e) be accompanied by the fee (if any) specified in the
3
regulations.
4
(4) The approved form of application may provide for verification by
5
statutory declaration of statements in applications.
6
(5) A fee specified under paragraph (3)(e) must not be such as to
7
amount to taxation.
8
Further information
9
(6) The Authority may, by written notice given to an applicant, require
10
the applicant to give the Authority, within the period specified in
11
the notice, further information in connection with the application.
12
(7) If the applicant breaches the requirement, the Authority may, by
13
written notice given to the applicant:
14
(a) refuse to consider the application; or
15
(b) refuse to take any action, or any further action, in relation to
16
the application.
17
211 Withdrawal of application
18
(1) An applicant may withdraw the application at any time before the
19
Authority makes a decision on the application.
20
(2) This Act does not prevent the applicant from making a fresh
21
application.
22
(3) If:
23
(a) the applicant withdraws the application; and
24
(b) the applicant has paid a fee in relation to the application;
25
the Authority must, on behalf of the Commonwealth, refund the
26
application fee.
27
Part 10 Reforestation
Division 5 Eligible reforestation projects
Section 212
260 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
212 Variation of declaration of eligible reforestation project
1
Scope
2
(1) This section applies if an application under section 210 has been
3
made for the variation of a declaration of a reforestation project as
4
an eligible reforestation project.
5
Declaration
6
(2) After considering the application, the Authority may, by writing,
7
vary the declaration in accordance with the application.
8
Criteria for declaration
9
(3) The Authority must not vary the declaration of the reforestation
10
project unless the Authority is satisfied that:
11
(a) the varied project area, or each varied project area, meets the
12
requirements set out in subsection (4); and
13
(b) if the varied project area is, or the varied project areas are,
14
Torrens system land--the varied project area is, or the varied
15
project areas are, held under a single title; and
16
(c) the applicant is a recognised reforestation entity; and
17
(d) the applicant holds the carbon sequestration right in relation
18
to the varied project; and
19
(e) each of the following has consented, in writing, to the
20
making of the application:
21
(i) if the applicant does not hold an estate in fee simple in
22
the varied project area or varied project areas--the
23
person who holds an estate in fee simple in the varied
24
project area or varied project areas;
25
(ii) if the applicant does not hold the forestry right in
26
relation to the varied project--the person who holds the
27
forestry right in relation to the varied project;
28
(iii) any mortgagee of the varied project area or varied
29
project areas registered in accordance with a law of a
30
State or Territory; and
31
(f) if:
32
Reforestation Part 10
Eligible reforestation projects Division 5
Section 212
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 261
(i) the varied project area is, or the varied project areas are,
1
Crown land in a State or Territory; and
2
(ii) the applicant is not the State or Territory;
3
the principal State Minister of the State, or the principal
4
Territory Minister of the Territory, as the case requires, has
5
certified in writing that:
6
(iii) the applicant holds the carbon sequestration right in
7
relation to the varied project; and
8
(iv) the State or Territory will not deal with the varied
9
project area or varied project areas, and will not consent
10
to any other person dealing with the varied project area
11
or varied project areas, in a way that is inconsistent with
12
the carbon sequestration right; and
13
(g) the varied project meets the eligibility requirements (if any)
14
specified in the regulations.
15
(4) The requirements mentioned in paragraph (3)(a) are:
16
(a) the varied project area is, or the varied project areas are,
17
Torrens system land; or
18
(b) the following conditions are satisfied in relation to the varied
19
project area or varied project areas:
20
(i) the varied project area is not, or the varied project areas
21
are not, general law land;
22
(ii) the varied project area is not, or the varied project areas
23
are not, specified in the regulations.
24
Note:
For specification by class, see subsection 13(3) of the Legislative
25
Instruments Act 2003.
26
Timing
27
(5) The Authority must take all reasonable steps to ensure that a
28
decision is made on the application:
29
(a) if the Authority requires the applicant to give further
30
information under subsection 210(6) in relation to the
31
application--within 90 days after the applicant gave the
32
Authority the information; or
33
(b) otherwise--within 90 days after the application was made.
34
Part 10 Reforestation
Division 5 Eligible reforestation projects
Section 213
262 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
When a variation takes effect
1
(6) A variation under subsection (2) takes effect immediately after it is
2
made.
3
Notification of variation
4
(7) As soon as practicable after varying a declaration under
5
subsection (2), the Authority must give a copy of the variation to
6
the applicant.
7
Refusal
8
(8) If the Authority decides to refuse to make the variation, the
9
Authority must give written notice of the decision to the applicant.
10
References to eligible reforestation project
11
(9) If a declaration of an eligible reforestation project is varied under
12
this section, a reference in this Act to the eligible reforestation
13
project is a reference to the eligible reforestation project as varied.
14
Variation is not legislative instrument
15
(10) A variation under subsection (2) is not a legislative instrument.
16
Subdivision C--Unilateral variation of declaration of eligible
17
reforestation project
18
213 Variation of declaration of eligible reforestation project--
19
partial cessation of reforestation activity
20
Scope
21
(1) This section applies if:
22
(a) a declaration is in force under section 209 in relation to a
23
reforestation project; and
24
(b) a part of an area of land identified in the declaration as the
25
project area or a project area has remained clear of a forest
26
stand for a continuous period of at least 5 years that began at
27
a time when the declaration was in force.
28
Reforestation Part 10
Eligible reforestation projects Division 5
Section 214
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 263
Variation of declaration
1
(2) The Authority must, by writing, vary the declaration by excluding
2
that part from the area of land identified in the declaration as the
3
relevant project area.
4
Notification of variation
5
(3) As soon as practicable after varying the declaration, the Authority
6
must give a copy of the variation to the person who holds the
7
carbon sequestration right in relation to the project.
8
References to eligible reforestation project
9
(4) If a declaration of an eligible reforestation project is varied under
10
this section, a reference in this Act to the eligible reforestation
11
project is a reference to the eligible reforestation project as varied.
12
Variation is not legislative instrument
13
(5) A variation under subsection (2) is not a legislative instrument.
14
214 Variation of declaration of eligible reforestation project--
15
eligibility requirements not met
16
Scope
17
(1) This section applies if:
18
(a) a declaration is in force under section 209 in relation to a
19
reforestation project; and
20
(b) the Authority is satisfied that a project that is being, or is to
21
be, carried out in a part of an area of land identified in the
22
declaration as the project area or a project area:
23
(i) is not a reforestation project; or
24
(ii) does not meet any or all of the eligibility requirements
25
specified in regulations made for the purposes of
26
paragraph 209(4)(g).
27
Part 10 Reforestation
Division 5 Eligible reforestation projects
Section 214
264 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Variation of declaration
1
(2) The Authority may, by writing, vary the declaration by excluding
2
that part from the area of land identified in the declaration as the
3
relevant project area.
4
Consultation
5
(3) Before varying the declaration, the Authority must give the person
6
who holds the carbon sequestration right in relation to the project a
7
written notice:
8
(a) informing the person of the proposed variation; and
9
(b) inviting the person to make a submission to the Authority
10
within 90 days after the notice was given, about the proposed
11
variation.
12
(4) In deciding whether to vary the declaration, the Authority must
13
have regard to:
14
(a) a submission made in response to an invitation under
15
subsection (3); and
16
(b) such other matters (if any) as the Authority considers
17
relevant.
18
Notification of variation
19
(5) As soon as practicable after varying the declaration, the Authority
20
must give a copy of the variation to the person who holds the
21
carbon sequestration right in relation to the project.
22
References to eligible reforestation project
23
(6) If a declaration of an eligible reforestation project is varied under
24
this section, a reference in this Act to the eligible reforestation
25
project is a reference to the eligible reforestation project as varied.
26
Variation is not legislative instrument
27
(7) A variation under subsection (2) is not a legislative instrument.
28
Reforestation Part 10
Eligible reforestation projects Division 5
Section 215
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 265
Subdivision D--Voluntary revocation of declaration of eligible
1
reforestation project
2
215 Voluntary revocation of declaration of eligible reforestation
3
project--units issued
4
Scope
5
(1) This section applies if:
6
(a) a declaration is in force under section 209 in relation to a
7
reforestation project; and
8
(b) one or more Australian emissions units have been issued in
9
relation to the project in accordance with this Part; and
10
(c) the person who holds the carbon sequestration right in
11
relation to the project applies to the Authority for the
12
revocation of the declaration; and
13
(d) before the application was made, the applicant voluntarily
14
relinquished a number of Australian emissions units in order
15
to satisfy a condition for revocation of the declaration; and
16
(e) the number of relinquished units equals the net total number
17
of Australian emissions units issued in relation to the project
18
in accordance with this Part.
19
Revocation
20
(2) The Authority must, by writing, revoke the declaration.
21
Application
22
(3) An application under paragraph (1)(c) must:
23
(a) be in writing; and
24
(b) be in a form approved, in writing, by the Authority.
25
Notification of revocation
26
(4) As soon as practicable after revoking the declaration, the Authority
27
must give a copy of the revocation to the person who holds the
28
carbon sequestration right in relation to the project.
29
Part 10 Reforestation
Division 5 Eligible reforestation projects
Section 216
266 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Revocation is not legislative instrument
1
(5) A revocation under subsection (2) is not a legislative instrument.
2
216 Voluntary revocation of declaration of eligible reforestation
3
project--no units issued
4
Scope
5
(1) This section applies if:
6
(a) a declaration is in force under section 209 in relation to a
7
reforestation project; and
8
(b) no Australian emissions units have been issued in relation to
9
the project in accordance with this Part; and
10
(c) the person who holds the carbon sequestration right in
11
relation to the project applies to the Authority for the
12
revocation of the declaration.
13
Revocation
14
(2) The Authority must, by writing, revoke the declaration.
15
Application
16
(3) An application under paragraph (1)(c) must:
17
(a) be in writing; and
18
(b) be in a form approved, in writing, by the Authority.
19
Notification of revocation
20
(4) As soon as practicable after revoking the declaration, the Authority
21
must give a copy of the revocation to the person who holds the
22
carbon sequestration right in relation to the project.
23
Revocation is not legislative instrument
24
(5) A revocation under subsection (2) is not a legislative instrument.
25
Reforestation Part 10
Eligible reforestation projects Division 5
Section 217
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 267
Subdivision E--Unilateral revocation of declaration of eligible
1
reforestation project
2
217 Unilateral revocation of declaration of eligible reforestation
3
project--cessation of reforestation activity
4
Scope
5
(1) This section applies if:
6
(a) a declaration is in force under section 209 in relation to a
7
reforestation project; and
8
(b) if there is a single area of land identified in the declaration as
9
the project area--the whole of the area of land has remained
10
clear of a forest stand for a continuous period of at least 5
11
years that began at a time when the declaration was in force;
12
and
13
(c) if there are 2 or more areas of land identified in the
14
declaration as the project areas--the whole of each of those
15
areas has remained clear of a forest stand for a continuous
16
period of at least 5 years that began at a time when the
17
declaration was in force.
18
Revocation of declaration
19
(2) The Authority must, by writing, revoke the declaration.
20
Notification of revocation
21
(3) As soon as practicable after revoking the declaration, the Authority
22
must give a copy of the revocation to the person who holds the
23
carbon sequestration right in relation to the project.
24
Revocation is not legislative instrument
25
(4) A revocation under subsection (2) is not a legislative instrument.
26
Part 10 Reforestation
Division 5 Eligible reforestation projects
Section 218
268 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
218 Unilateral revocation of declaration of eligible reforestation
1
project--eligibility requirements not met
2
Scope
3
(1) This section applies if:
4
(a) a declaration is in force under section 209 in relation to a
5
reforestation project; and
6
(b) the Authority is satisfied that a project that is being, or is to
7
be, carried out in an area identified in the declaration as the
8
project area or a project area:
9
(i) is not a reforestation project; or
10
(ii) does not meet any or all of the eligibility requirements
11
specified in regulations made for the purposes of
12
paragraph 209(4)(g).
13
Revocation of declaration
14
(2) The Authority may, by writing, revoke the declaration.
15
Consultation
16
(3) Before revoking the declaration, the Authority must give the
17
person who holds the carbon sequestration right in relation to the
18
project a written notice:
19
(a) informing the person of the proposed revocation; and
20
(b) inviting the person to make a submission to the Authority,
21
within 90 days after the notice was given, about the proposed
22
revocation.
23
(4) In deciding whether to revoke the declaration, the Authority must
24
have regard to:
25
(a) a submission made in response to an invitation under
26
subsection (3); and
27
(b) such other matters (if any) as the Authority considers
28
relevant.
29
Reforestation Part 10
Eligible reforestation projects Division 5
Section 219
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 269
Notification of revocation
1
(5) As soon as practicable after revoking the declaration, the Authority
2
must give a copy of the revocation to the person who holds the
3
carbon sequestration right in relation to the project.
4
Revocation is not legislative instrument
5
(6) A revocation under subsection (2) is not a legislative instrument.
6
219 Unilateral revocation of declaration of eligible reforestation
7
project--ceasing to hold carbon sequestration right etc.
8
Scope
9
(1) This section applies if:
10
(a) a declaration is in force under section 209 in relation to a
11
reforestation project; and
12
(b) a person ceases to hold the carbon sequestration right in
13
relation to the project; and
14
(c) a relinquishment obligation transfer agreement was not in
15
force in relation to the cessation within 90 days after the
16
cessation occurred.
17
Revocation of declaration
18
(2) The Authority must, by writing, revoke the declaration.
19
Notification of revocation
20
(3) As soon as practicable after revoking the declaration, the Authority
21
must give a copy of the revocation to:
22
(a) the person who holds the carbon sequestration right in
23
relation to the project; and
24
(b) the person mentioned in paragraph (1)(b).
25
Revocation is not legislative instrument
26
(4) A revocation under subsection (2) is not a legislative instrument.
27
28
Part 10 Reforestation
Division 6 Reforestation unit limit
Section 220
270 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Division 6--Reforestation unit limit
1
220 Reforestation unit limit
2
Scope
3
(1) This section applies if, under section 209, the Authority has
4
declared a reforestation project to be an eligible reforestation
5
project.
6
Declaration of reforestation unit limit
7
(2) As soon as practicable after making the declaration, the Authority
8
must, by written notice given to the applicant for the declaration,
9
declare that a specified number is the reforestation unit limit for
10
the project.
11
(3) The number to be specified is the number that, under the
12
regulations, is taken to be the projected net greenhouse gases
13
removal number for the project, reduced (but not below zero) by
14
the sum of the following numbers:
15
(a) the number that, under the regulations, is taken to be the
16
non-CPRS greenhouse gases removal sales number for the
17
project;
18
(b) the number that, under the regulations, is taken to be 2008
19
carbon stock baseline number for the project.
20
(4) A notice under subsection (2) must be accompanied by a statement
21
explaining how the reforestation unit limit for the project is
22
calculated.
23
Declaration is not legislative instrument
24
(5) A declaration made under subsection (2) is not a legislative
25
instrument.
26
Computer program
27
(6) Regulations made for the purposes of subsection (3) may provide
28
for a number to be worked out wholly or partly using a computer
29
Reforestation Part 10
Reforestation unit limit Division 6
Section 221
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 271
program specified in a legislative instrument made by the
1
Authority under this subsection.
2
221 Increase of reforestation unit limit
3
Scope
4
(1) This section applies if, at a particular time:
5
(a) there is a reforestation unit limit for an eligible reforestation
6
project; and
7
(b) the number that would have been worked out at that time
8
under section 220 would exceed the reforestation unit limit.
9
Increase of reforestation unit limit
10
(2) The Authority may, by written notice given to the person who
11
holds the carbon sequestration right in relation to the project,
12
increase the reforestation unit limit by an amount equal to the
13
excess.
14
(3) A notice under subsection (2) must be accompanied by a statement
15
explaining how the increase is calculated.
16
References to reforestation unit limit
17
(4) If a reforestation unit limit is increased under this section, a
18
reference in this Act to the reforestation unit limit is a reference to
19
the reforestation unit limit as increased.
20
Notice is not legislative instrument
21
(5) A notice given under subsection (2) is not a legislative instrument.
22
222 Decrease of reforestation unit limit
23
Scope
24
(1) This section applies if, at a particular time:
25
(a) there is a reforestation unit limit for an eligible reforestation
26
project; and
27
Part 10 Reforestation
Division 6 Reforestation unit limit
Section 222
272 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(b) the number that would have been worked out at that time
1
under section 220 would fall short of the reforestation unit
2
limit.
3
Decrease of reforestation unit limit
4
(2) The Authority may, by written notice given to the person who
5
holds the carbon sequestration right in relation to the project,
6
decrease the reforestation unit limit by an amount equal to the
7
shortfall.
8
(3) A notice under subsection (2) must be accompanied by a statement
9
explaining how the decrease is calculated.
10
References to reforestation unit limit
11
(4) If a reforestation unit limit is decreased under this section, a
12
reference in this Act to the reforestation unit limit is a reference to
13
the reforestation unit limit as decreased.
14
Notice is not legislative instrument
15
(5) A notice given under subsection (2) is not a legislative instrument.
16
17
Reforestation Part 10
Reforestation reporting periods Division 7
Section 223
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 273
Division 7--Reforestation reporting periods
1
223 First reforestation reporting period
2
(1) For the purposes of this Act, the first reforestation reporting
3
period for an eligible reforestation project is:
4
(a) the 5-year period that begins on the day the section 209
5
declaration in relation to the project takes effect; or
6
(b) if another period is nominated under subsection (2)--the
7
nominated period.
8
Nominated period
9
(2) A person may, by written notice given to the Authority, nominate a
10
specified period as the first reforestation reporting period for an
11
eligible reforestation project.
12
(3) The person is not entitled to nominate a period under
13
subsection (2) unless:
14
(a) the person holds the carbon sequestration right in relation to
15
the project immediately before the end of the period; and
16
(b) the period is:
17
(i) at least 12 months; and
18
(ii) less than 5 years; and
19
(c) the period begins on the day that the section 209 declaration
20
in relation to the project takes effect; and
21
(d) if that declaration takes effect on a day that is earlier than the
22
day the declaration is made--the period ends on or after the
23
day the declaration is made; and
24
(e) the notice under subsection (2) is given to the Authority
25
within 40 days after the end of the period; and
26
(f) a period has not previously been nominated under
27
subsection (2) in relation to the project.
28
(4) A notice under subsection (2) may be set out in the same document
29
as the reforestation report for the first reforestation reporting
30
period.
31
Part 10 Reforestation
Division 7 Reforestation reporting periods
Section 224
274 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
224 Subsequent reforestation reporting periods
1
(1) For the purposes of this Act, a reforestation reporting period for
2
an eligible reforestation project (other than the first reforestation
3
reporting period for the project) is:
4
(a) the 5-year period that begins immediately after the end of the
5
previous reforestation reporting period for the project; or
6
(b) if:
7
(i) another period is nominated under subsection (2); and
8
(ii) the nominated period begins immediately after the end
9
of the preceding reforestation reporting period;
10
the nominated period.
11
Nominated period
12
(2) A person may, by written notice given to the Authority, nominate a
13
period as a reforestation reporting period for an eligible
14
reforestation project.
15
(3) The person is not entitled to nominate a period under
16
subsection (2) unless:
17
(a) the person holds the carbon sequestration right in relation to
18
the project immediately before the end of the period; and
19
(b) the period is:
20
(i) at least 12 months; and
21
(ii) less than 5 years; and
22
(c) the notice under subsection (2) is given to the Authority
23
within 40 days after the end of the period; and
24
(d) a period beginning immediately after the end of the preceding
25
reforestation reporting period has not previously been
26
nominated under subsection (2) in relation to the project.
27
(4) A notice under subsection (2) may be set out in the same document
28
as the reforestation report for the reforestation reporting period.
29
30
Reforestation Part 10
Reforestation reporting requirements Division 8
Section 225
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 275
Division 8--Reforestation reporting requirements
1
225 Reforestation reports
2
Scope
3
(1) This section applies if a person holds the carbon sequestration right
4
in relation to an eligible reforestation project immediately before
5
the end of a reforestation reporting period for the project.
6
Report
7
(2) The person must, in accordance with this section, give the
8
Authority a written report (the reforestation report) about the
9
project for the period.
10
(3) The reforestation report must:
11
(a) be given in the manner and form prescribed by the
12
regulations; and
13
(b) set out the information specified in the regulations; and
14
(c) be given to the Authority within 40 days after the end of the
15
reforestation reporting period.
16
(4) Information specified in regulations made for the purposes of
17
paragraph (3)(b) may relate to a matter arising before, during or
18
after the reforestation reporting period.
19
Ancillary contraventions
20
(5) A person must not:
21
(a) aid, abet, counsel or procure a contravention of
22
subsection (2); or
23
(b) induce, whether by threats or promises or otherwise, a
24
contravention of subsection (2); or
25
(c) be in any way, directly or indirectly, knowingly concerned in,
26
or party to, a contravention of subsection (2); or
27
(d) conspire with others to effect a contravention of
28
subsection (2).
29
Part 10 Reforestation
Division 8 Reforestation reporting requirements
Section 225
276 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Civil penalty provisions
1
(6) Subsections (2) and (5) are civil penalty provisions.
2
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
3
provisions.
4
5
Reforestation Part 10
Forest maintenance obligation Division 9
Section 226
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 277
Division 9--Forest maintenance obligation
1
Subdivision A--Forest maintenance obligation
2
226 Forest maintenance obligation
3
Scope
4
(1) This section applies to one or more areas of land if:
5
(a) a notice was given under section 232 or 233 in relation to a
6
project that is or was an eligible reforestation project; and
7
(b) the area was, or the areas were, identified in the relevant
8
section 209 declaration as the project area or project areas for
9
the eligible reforestation project; and
10
(c) the notice required a person to relinquish a particular number
11
of Australian emissions units; and
12
(d) the person did not comply with the requirement within 90
13
days after the notice was given.
14
Obligation
15
(2) At all times after the end of that 90-day period, the person who
16
holds the forestry right in relation to the area or areas of land must:
17
(a) if one or more forest stands are already in existence on the
18
area or areas of land--ensure that one or more of those forest
19
stands are maintained such that it is reasonable to expect that,
20
when the maintained forest stands reach maturity, the number
21
that, under the regulations, is taken to be the net total number
22
of tonnes of greenhouse gases removed by the maintained
23
forest stands will equal or exceed the net total number of
24
Australian emissions units issued in relation to the project in
25
accordance with this Part; or
26
(b) if no forest stands are already in existence on the area or
27
areas of land:
28
(i) establish one or more forest stands on the area or areas
29
of land; and
30
(ii) ensure that those forest stands are maintained such that
31
it is reasonable to expect that, when the forest stands
32
reach maturity, the number that, under the regulations,
33
Part 10 Reforestation
Division 9 Forest maintenance obligation
Section 226
278 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
is taken to be the net total number of tonnes of
1
greenhouse gases removed by the forest stands will
2
equal or exceed the net total number of Australian
3
emissions units issued in relation to the project in
4
accordance with this Part.
5
Direction about manner in which obligation is to be performed
6
(3) If a person is subject to an obligation under subsection (2), the
7
Authority may give the person a written direction relating to the
8
manner in which the obligation is to be performed.
9
(4) A person must comply with a direction under subsection (3).
10
Ancillary contraventions
11
(5) A person must not:
12
(a) aid, abet, counsel or procure a contravention of subsection (2)
13
or (4); or
14
(b) induce, whether by threats or promises or otherwise, a
15
contravention of subsection (2) or (4); or
16
(c) be in any way, directly or indirectly, knowingly concerned in,
17
or party to, a contravention of subsection (2) or (4); or
18
(d) conspire with others to effect a contravention of
19
subsection (2) or (4).
20
Civil penalty provisions
21
(6) Subsections (2), (4) and (5) are civil penalty provisions.
22
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
23
provisions.
24
Cessation of obligation
25
(7) The obligation imposed by subsection (2) ceases at whichever of
26
the following times happens first:
27
(a) when the penalty payable under section 287 in respect of the
28
non-compliance with the requirement referred to in
29
paragraph (1)(c) (including any late payment penalty payable
30
under section 288 in relation to the section 287 penalty) is
31
paid in full;
32
Reforestation Part 10
Forest maintenance obligation Division 9
Section 227
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 279
(b) at the end of 130 years after the first occasion on which an
1
Australian emissions unit was issued in relation to the project
2
in accordance with this Part.
3
Forestry right
4
(8) For the purposes of the application of this section to one or more
5
areas of land, if there is an eligible reforestation project in relation
6
to the area or areas of land, the person who holds the forestry right
7
in relation to the project is taken to hold the forestry right in
8
relation to the area or areas of land.
9
(9) For the purposes of the application of this section to one or more
10
areas of land, if:
11
(a) there is no eligible reforestation project in relation to the area
12
or areas of land; and
13
(b) if it were assumed that an eligible reforestation project were
14
in existence in relation to the area or areas of land, a person
15
would hold the forestry right in relation to the project;
16
the person is taken to hold the forestry right in relation to the area
17
or areas of land.
18
Computer program
19
(10) Regulations made for the purposes of subsection (2) may provide
20
for a number to be worked out wholly or partly using a computer
21
program specified in a legislative instrument made by the
22
Authority under this subsection.
23
Subdivision B--Injunctions
24
227 Injunctions
25
Performance injunctions
26
(1) If:
27
(a) a person has refused or failed, or is refusing or failing, or is
28
proposing to refuse or fail, to do an act or thing; and
29
(b) the refusal or failure was, is or would be a contravention of
30
subsection 226(2) or (4);
31
Part 10 Reforestation
Division 9 Forest maintenance obligation
Section 228
280 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
the Federal Court may, on the application of the Authority, grant
1
an injunction requiring the person to do that act or thing.
2
Restraining injunctions
3
(2) If a person has engaged, is engaging or is proposing to engage, in
4
any conduct in contravention of subsection 226(2) or (4), the
5
Federal Court may, on the application of the Authority, grant an
6
injunction:
7
(a) restraining the person from engaging in the conduct; and
8
(b) if, in the Court's opinion, it is desirable to do so--requiring
9
the person to do something.
10
228 Interim injunctions
11
Grant of interim injunction
12
(1) If an application is made to the Federal Court for an injunction
13
under section 227, the Court may, before considering the
14
application, grant an interim injunction restraining a person from
15
engaging in conduct of a kind referred to in that section.
16
No undertakings as to damages
17
(2) The Federal Court is not to require the Authority, as a condition of
18
granting an interim injunction, to give any undertakings as to
19
damages.
20
229 Discharge etc. of injunctions
21
The Federal Court may discharge or vary an injunction granted
22
under this Subdivision.
23
230 Certain limits on granting injunctions not to apply
24
Restraining injunctions
25
(1) The power of the Federal Court under this Subdivision to grant an
26
injunction restraining a person from engaging in conduct of a
27
particular kind may be exercised:
28
Reforestation Part 10
Forest maintenance obligation Division 9
Section 231
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 281
(a) if the Court is satisfied that the person has engaged in
1
conduct of that kind--whether or not it appears to the Court
2
that the person intends to engage again, or to continue to
3
engage, in conduct of that kind; or
4
(b) if it appears to the Court that, if an injunction is not granted,
5
it is likely that the person will engage in conduct of that
6
kind--whether or not the person has previously engaged in
7
conduct of that kind.
8
Performance injunctions
9
(2) The power of the Federal Court to grant an injunction requiring a
10
person to do an act or thing may be exercised:
11
(a) if the Court is satisfied that the person has refused or failed to
12
do that act or thing--whether or not it appears to the Court
13
that the person intends to refuse or fail again, or to continue
14
to refuse or fail, to do that act or thing; or
15
(b) if it appears to the Court that, if an injunction is not granted,
16
it is likely that the person will refuse or fail to do that act or
17
thing--whether or not the person has previously refused or
18
failed to do that act or thing.
19
231 Other powers of the Federal Court unaffected
20
The powers conferred on the Federal Court under this Subdivision
21
are in addition to, and not instead of, any other powers of the
22
Court, whether conferred by this Act or otherwise.
23
24
Part 10 Reforestation
Division 10 Relinquishment of Australian emissions units
Section 232
282 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Division 10--Relinquishment of Australian emissions units
1
232 Requirement to relinquish--unilateral revocation of declaration
2
of eligible reforestation project
3
Scope
4
(1) This section applies to a person if:
5
(a) the person holds the carbon sequestration right in relation to
6
an eligible reforestation project; and
7
(b) one or more Australian emissions units have been issued in
8
relation to the project in accordance with this Part; and
9
(c) the declaration of the eligible reforestation project is revoked
10
under section 217, 218 or 219.
11
Requirement
12
(2) The Authority must, by written notice given to the person, require
13
the person to relinquish a specified number of Australian emissions
14
units.
15
(3) The specified number must equal the net total number of
16
Australian emissions units issued in relation to the project in
17
accordance with this Part.
18
(4) The person must comply with the requirement within 90 days after
19
the notice was given.
20
Note:
An administrative penalty is payable under section 287 for
21
non-compliance with a relinquishment requirement.
22
Sunset
23
(5) Despite subsection (2), the Authority must not give a notice under
24
that subsection later than 130 years after the first occasion on
25
which an Australian emissions unit was issued in relation to the
26
project in accordance with this Part.
27
Reforestation Part 10
Relinquishment of Australian emissions units Division 10
Section 233
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 283
233 Relinquishment requirement--decrease in reforestation unit
1
limit for eligible reforestation project
2
Scope
3
(1) This section applies to a person if:
4
(a) the person holds the carbon sequestration right in relation to
5
an eligible reforestation project; and
6
(b) one or more Australian emissions units have been issued in
7
relation to the project in accordance with this Part; and
8
(c) after the issue of the units, the reforestation unit limit for the
9
project is decreased under section 222; and
10
(d) the net total number of Australian emissions units issued in
11
relation to the project in accordance with this Part exceeds
12
the decreased limit.
13
Requirement
14
(2) The Authority must, by written notice given to the person, require
15
the person to relinquish a specified number of Australian emissions
16
units.
17
(3) The specified number of units must equal the excess mentioned in
18
paragraph (1)(d).
19
(4) The person must comply with the requirement within 90 days after
20
the notice was given.
21
Note:
An administrative penalty is payable under section 287 for
22
non-compliance with a relinquishment requirement.
23
Sunset
24
(5) Despite subsection (2), the Authority must not give a notice under
25
that subsection later than 130 years after the first occasion on
26
which an Australian emissions unit was issued in relation to the
27
project in accordance with this Part.
28
Part 10 Reforestation
Division 10 Relinquishment of Australian emissions units
Section 234
284 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
234 Relinquishment obligation transfer agreement
1
Scope
2
(1) This section applies if a person (the transferor) ceases to hold the
3
carbon sequestration right in relation to an eligible reforestation
4
project.
5
Agreement
6
(2) For the purposes of this Act, a relinquishment obligation transfer
7
agreement in relation to the cessation is an agreement, where:
8
(a) the agreement is between:
9
(i) the transferor (or, if the transferor has died, the
10
transferor's legal personal representative); and
11
(ii) another person (the transferee); and
12
(b) the transferee will, as a result of the cessation, hold the
13
carbon sequestration right in relation to the project; and
14
(c) the transferee is a recognised reforestation entity; and
15
(d) the agreement states that the transferee accepts responsibility
16
for complying with any requirements to relinquish Australian
17
emissions units that may be imposed on the transferee under
18
this Part in relation to the project; and
19
(e) the Authority has given written approval to the agreement;
20
and
21
(f) if the Authority, in accordance with the regulations, requires
22
the transferee to give security to the Commonwealth in
23
relation to the fulfilment by the transferee of any
24
requirements to relinquish Australian emissions units that
25
may be imposed on the transferee under this Part in relation
26
to the project--the transferee has given that security; and
27
(g) such other conditions (if any) as are specified in the
28
regulations are satisfied.
29
Duration of agreement
30
(3) A relinquishment obligation transfer agreement remains in force
31
until the transferee ceases to hold the carbon sequestration right in
32
relation to the project.
33
Reforestation Part 10
Relinquishment of Australian emissions units Division 10
Section 234
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 285
(4) For the purposes of this Act, if a relinquishment obligation transfer
1
agreement is in force in relation to the cessation, the agreement is
2
taken to relate to the project.
3
4
Part 10 Reforestation
Division 11 Miscellaneous notification requirements
Section 235
286 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Division 11--Miscellaneous notification requirements
1
235 Notification requirement--ceasing to hold carbon sequestration
2
right
3
Scope
4
(1) This section applies to a person if both of the following conditions
5
are satisfied:
6
(a) the person ceases to hold the carbon sequestration right in
7
relation to an eligible reforestation project;
8
(b) one or more Australian emissions units have been issued in
9
relation to the project in accordance with this Part.
10
Notification
11
(2) The person (or, if the person has died, the person's legal personal
12
representative) must, within 90 days after the cessation occurs,
13
notify the Authority, in writing, of the cessation.
14
Ancillary contraventions
15
(3) A person must not:
16
(a) aid, abet, counsel or procure a contravention of
17
subsection (2); or
18
(b) induce, whether by threats or promises or otherwise, a
19
contravention of subsection (2); or
20
(c) be in any way, directly or indirectly, knowingly concerned in,
21
or party to, a contravention of subsection (2); or
22
(d) conspire with others to effect a contravention of
23
subsection (2).
24
Civil penalty provisions
25
(4) Subsections (2) and (3) are civil penalty provisions.
26
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
27
provisions.
28
29
Reforestation Part 10
Entries in title registers Division 12
Section 236
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 287
Division 12--Entries in title registers
1
236 Entries in title registers--general
2
Scope
3
(1) This section applies if there is an eligible reforestation project.
4
Entries
5
(2) The relevant land registration official may make such entries or
6
notations in or on registers or other documents kept by the official
7
(in electronic form or otherwise) as the official thinks appropriate
8
for the purposes of drawing the attention of persons to:
9
(a) the existence of the eligible reforestation project; and
10
(b) the fact that requirements may arise under this Act in relation
11
to the project; and
12
(c) such other matters (if any) relating to this Act as the official
13
considers appropriate.
14
(3) For the purposes of this section, the relevant land registration
15
official is the Registrar of Titles or other proper officer of the State
16
or Territory in which the project area, or any of the project areas, is
17
situated.
18
237 Entries in title registers--land subject to forest maintenance
19
obligation
20
Scope
21
(1) This section applies to one or more areas of land if an obligation is
22
imposed by subsection 226(2) in relation to those areas of land.
23
Entries
24
(2) The relevant land registration official may make such entries or
25
notations in or on registers or other documents kept by the official
26
(in electronic form or otherwise) as the official thinks appropriate
27
for the purposes of drawing the attention of persons to the
28
obligation.
29
Part 10 Reforestation
Division 12 Entries in title registers
Section 237
288 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(3) For the purposes of this section, the relevant land registration
1
official is the Registrar of Titles or other proper officer of the State
2
or Territory in which those areas of land are situated.
3
4
Reforestation Part 10
Register of Reforestation Projects Division 13
Section 238
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 289
Division 13--Register of Reforestation Projects
1
238 Register of Reforestation Projects
2
(1) The Authority must keep a register, to be known as the Register of
3
Reforestation Projects.
4
(2) The Register of Reforestation Projects is to be maintained by
5
electronic means.
6
(3) The Register of Reforestation Projects is to be made available for
7
inspection on the Authority's website.
8
239 Entries in the Register
9
(1) The Register of Reforestation Projects must set out, for each
10
eligible reforestation project:
11
(a) the relevant declaration under section 209; and
12
(b) the reforestation unit limit for the project; and
13
(c) the project area or project areas; and
14
(d) the name of the person who is the holder of the carbon
15
sequestration right in relation to the project; and
16
(e) if any Australian emissions units have been issued in relation
17
to the project in accordance with this Part:
18
(i) the total number of units so issued; and
19
(ii) the name of the person, or each of the persons, to whom
20
those units have been issued; and
21
(f) if any Australian emissions units have been relinquished in
22
order to comply with a requirement under this Part in relation
23
to the project--the total number of units so relinquished; and
24
(g) if an obligation is imposed by subsection 226(2) in relation to
25
the project area or project areas:
26
(i) a statement to that effect; and
27
(ii) the net total number of Australian emissions units issued
28
in relation to the project in accordance with this Part;
29
and
30
(h) such other information (if any) relating to the project as the
31
Authority considers appropriate.
32
Part 10 Reforestation
Division 13 Register of Reforestation Projects
Section 239
290 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(2) If an obligation is imposed by subsection 226(2) in relation to one
1
or more areas of land that were formerly a project area or project
2
areas of an eligible reforestation project, the Register of
3
Reforestation Projects must:
4
(a) set out a statement to that effect; and
5
(b) identify the area or areas of land; and
6
(c) set out the net total number of Australian emissions units
7
issued in relation to the project in accordance with this Part.
8
9
Reforestation Part 10
Carbon sequestration right and forestry right Division 14
Section 240
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 291
Division 14--Carbon sequestration right and forestry right
1
240 Carbon sequestration right
2
Torrens system land
3
(1) For the purposes of this Act, if:
4
(a) there is a reforestation project; and
5
(b) the project area is, or the project areas are, Torrens system
6
land; and
7
(c) a person holds a legal estate or interest in the project area or
8
project areas; and
9
(d) the estate or interest is registered under a Torrens system of
10
registration; and
11
(e) as a result of holding the estate or interest, the person has the
12
exclusive legal right to obtain the benefit (whether present or
13
future) of sequestration of carbon dioxide by trees to which
14
the project relates;
15
the estate or interest is the carbon sequestration right held by the
16
person in relation to the project.
17
(2) For the purposes of this Act, if:
18
(a) there is a reforestation project; and
19
(b) the project area is, or the project areas are, Torrens system
20
land; and
21
(c) a person has the exclusive legal right to obtain the benefit
22
(whether present or future) of sequestration of carbon dioxide
23
by trees to which the project relates; and
24
(d) the right is registered under a Torrens system of registration;
25
and
26
(e) under a law of a State or Territory, the right is, or is taken to
27
be, an estate or interest in land;
28
the exclusive right is the carbon sequestration right held by the
29
person in relation to the project.
30
(3) For the purposes of this Act, if:
31
(a) there is a reforestation project; and
32
Part 10 Reforestation
Division 14 Carbon sequestration right and forestry right
Section 240
292 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(b) the project area is, or the project areas are, Torrens system
1
land; and
2
(c) a person has the exclusive legal right to obtain the benefit
3
(whether present or future) of sequestration of carbon dioxide
4
by trees to which the project relates; and
5
(d) either:
6
(i) the right is registered under a Torrens system of
7
registration; or
8
(ii) the project area is, or the project areas are, Torrens
9
system land, and the right is noted on the relevant
10
certificate of title; and
11
(e) under a law of a State or Territory, the right runs with the
12
relevant land;
13
the exclusive right is the carbon sequestration right held by the
14
person in relation to the project.
15
Crown land that is not Torrens system land
16
(4) For the purposes of this Act, if:
17
(a) there is a reforestation project; and
18
(b) the project area is, or the project areas are, Crown land in a
19
State or Territory; and
20
(c) the project area is not, or the project areas are not, Torrens
21
system land; and
22
(d) a person (other than the State or Territory) holds a legal
23
estate or interest in the project area or project areas; and
24
(e) as a result of holding the estate or interest, the person has the
25
exclusive legal right to obtain the benefit (whether present or
26
future) of sequestration of carbon dioxide by trees to which
27
the project relates;
28
the estate or interest is the carbon sequestration right held by the
29
person in relation to the project.
30
(5) For the purposes of this Act, if:
31
(a) there is a reforestation project; and
32
(b) the project area is, or the project areas are, Crown land in a
33
State or Territory; and
34
Reforestation Part 10
Carbon sequestration right and forestry right Division 14
Section 240
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 293
(c) the project area is not, or the project areas are not, Torrens
1
system land; and
2
(d) a person (other than the State or Territory) has the exclusive
3
legal right to obtain the benefit (whether present or future) of
4
sequestration of carbon dioxide by trees to which the project
5
relates; and
6
(e) under a law of the State or Territory, the right is, or is taken
7
to be, an estate or interest in land;
8
the exclusive right is the carbon sequestration right held by the
9
person in relation to the project.
10
(6) For the purposes of this Act, if:
11
(a) there is a reforestation project; and
12
(b) the project area is, or the project areas are, Crown land in a
13
State or Territory; and
14
(c) the project area is not, or the project areas are not, Torrens
15
system land; and
16
(d) a person (other than the State or Territory) has the exclusive
17
legal right to obtain the benefit (whether present or future) of
18
sequestration of carbon dioxide by trees to which the project
19
relates; and
20
(e) under a law of the State or Territory, the right runs with the
21
relevant land; and
22
(f) it is not the case that under a law of the State or Territory, the
23
right is, or is taken to be, an estate or interest in land;
24
the exclusive right is the carbon sequestration right held by the
25
person in relation to the project.
26
(7) For the purposes of this Act, if:
27
(a) there is a reforestation project; and
28
(b) the project area is, or the project areas are, Crown land in a
29
State or Territory; and
30
(c) the project area is not, or the project areas are not, Torrens
31
system land; and
32
(d) as a result of the project area or project areas being Crown
33
land:
34
(i) the State or Territory; or
35
(ii) a statutory authority of the State or Territory;
36
Part 10 Reforestation
Division 14 Carbon sequestration right and forestry right
Section 241
294 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
has the exclusive legal right to obtain the benefit (whether
1
present or future) of sequestration of carbon dioxide by trees
2
to which the project relates;
3
the exclusive right is the carbon sequestration right held by the
4
State, Territory or statutory authority, as the case may be, in
5
relation to the project.
6
Right to obtain the benefit of sequestration
7
(8) For the purposes of this section, in determining whether a person
8
has the exclusive legal right to obtain the benefit (whether present
9
or future) of sequestration of carbon dioxide by trees to which a
10
reforestation project relates, it is immaterial whether that right
11
extends to sequestration of carbon dioxide by the soil in which the
12
trees are growing.
13
241 Forestry right
14
Torrens system land
15
(1) For the purposes of this Act, if:
16
(a) there is a reforestation project; and
17
(b) the project area is, or the project areas are, Torrens system
18
land; and
19
(c) a person holds a legal estate or interest in the project area or
20
project areas; and
21
(d) the estate or interest is registered under a Torrens system of
22
registration; and
23
(e) as a result of holding the estate or interest, the person has the
24
exclusive legal right to establish, manage and maintain a
25
forest on the project area or project areas;
26
the estate or interest is the forestry right held by the person in
27
relation to the project.
28
(2) For the purposes of this Act, if:
29
(a) there is a reforestation project; and
30
(b) the project area is, or the project areas are, Torrens system
31
land; and
32
Reforestation Part 10
Carbon sequestration right and forestry right Division 14
Section 241
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 295
(c) a person has the exclusive legal right to establish, manage
1
and maintain a forest on the project area or project areas; and
2
(d) the right is registered under a Torrens system of registration;
3
and
4
(e) under a law of a State or Territory, the right is, or is taken to
5
be, an estate or interest in land;
6
the exclusive right is the forestry right held by the person in
7
relation to the project.
8
Crown land that is not Torrens system land
9
(3) For the purposes of this Act, if:
10
(a) there is a reforestation project; and
11
(b) the project area is, or the project areas are, Crown land in a
12
State or Territory; and
13
(c) the project area is not, or the project areas are not, Torrens
14
system land; and
15
(d) a person (other than the State or Territory) holds a legal
16
estate or interest in the project area or project areas; and
17
(e) as a result of holding the estate or interest, the person has the
18
exclusive legal right to establish, manage and maintain a
19
forest on the project area or project areas;
20
the estate or interest is the forestry right held by the person in
21
relation to the project.
22
(4) For the purposes of this Act, if:
23
(a) there is a reforestation project; and
24
(b) the project area is, or the project areas are, Crown land in a
25
State or Territory; and
26
(c) the project area is not, or the project areas are not, Torrens
27
system land; and
28
(d) a person (other than the State or Territory) has the exclusive
29
legal right to establish, manage and maintain a forest on the
30
project area or project areas; and
31
(e) under a law of the State or Territory, the right is, or is taken
32
to be, an estate or interest in land;
33
the exclusive right is the forestry right held by the person in
34
relation to the project.
35
Part 10 Reforestation
Division 14 Carbon sequestration right and forestry right
Section 241
296 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(5) For the purposes of this Act, if:
1
(a) there is a reforestation project; and
2
(b) the project area is, or the project areas are, Crown land in a
3
State or Territory; and
4
(c) the project area is not, or the project areas are not, Torrens
5
system land; and
6
(d) as a result of the project area or project areas being Crown
7
land:
8
(i) the State or Territory; or
9
(ii) a statutory authority of the State or Territory;
10
has the exclusive legal right to establish, manage and
11
maintain a forest on the project area or project areas;
12
the exclusive right is the forestry right held by the State, Territory
13
or statutory authority, as the case may be, in relation to the project.
14
15
Reforestation Part 10
Net total number of Australian emissions units issued in relation to an eligible
reforestation project Division 15
Section 242
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 297
Division 15--Net total number of Australian emissions
1
units issued in relation to an eligible reforestation
2
project
3
242 Net total number of Australian emissions units issued in relation
4
to an eligible reforestation project
5
For the purposes of this Act, the net total number of Australian
6
emissions units issued in relation to an eligible reforestation project
7
in accordance with this Part is the number worked out using the
8
following formula:
9
Total number of
Total number of
Australian emissions units
Australian emissions units
relinquished in order to comply
issued in relation to the project
with a requirement
in accordance with this Part
under this
Part in relation to the project
10
11
Part 11 Destruction of synthetic greenhouse gases
Division 1 Introduction
Section 244
298 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Part 11--Destruction of synthetic greenhouse gases
1
Division 1--Introduction
2
244 Simplified outline
3
The following is a simplified outline of this Part:
4
·
Free Australian emissions units may be issued in respect of
5
the destruction of synthetic greenhouse gases.
6
·
The synthetic greenhouse gas must be destroyed at an
7
approved synthetic greenhouse gas destruction facility.
8
·
Free units may be issued to:
9
(a) a recognised synthetic greenhouse gas destruction
10
customer; or
11
(b) the operator of an approved synthetic greenhouse
12
gas destruction facility.
13
14
Destruction of synthetic greenhouse gases Part 11
Issue of free Australian emissions units in respect of the destruction of synthetic
greenhouse gases Division 2
Section 245
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 299
Division 2--Issue of free Australian emissions units in
1
respect of the destruction of synthetic greenhouse
2
gases
3
245 Issue of free Australian emissions units in respect of the
4
destruction of synthetic greenhouse gases
5
Scope
6
(1) This section applies if a certificate of eligible synthetic greenhouse
7
gas destruction is in force in respect of an eligible financial year.
8
Issue of free units
9
(2) As soon as practicable after the day on which the certificate was
10
issued, the Authority must issue to the holder of the certificate a
11
number of free Australian emissions units equal to the number
12
specified in the certificate as the unit entitlement for that
13
certificate.
14
(3) Free Australian emissions units issued in accordance with
15
subsection (2) during an eligible financial year are to have a
16
vintage year of the eligible financial year.
17
(4) The Authority must not issue a free Australian emissions unit to a
18
person in accordance with subsection (2) unless the person has a
19
Registry account.
20
21
Part 11 Destruction of synthetic greenhouse gases
Division 3 Certificate of eligible synthetic greenhouse gas destruction
Section 246
300 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Division 3--Certificate of eligible synthetic greenhouse gas
1
destruction
2
246 Application for certificate of eligible synthetic greenhouse gas
3
destruction
4
(1) A person may, within 4 months after the end of an eligible
5
financial year, apply to the Authority for the issue to the person of
6
a certificate of eligible synthetic greenhouse gas destruction in
7
respect of the eligible financial year.
8
(2) A person is not entitled to make an application unless the person is:
9
(a) a recognised synthetic greenhouse gas destruction customer;
10
or
11
(b) the operator of an approved synthetic greenhouse gas
12
destruction facility.
13
(3) An application must state:
14
(a) that the application is made in the applicant's capacity as a
15
recognised synthetic greenhouse gas destruction customer; or
16
(b) that the application is made in the applicant's capacity as the
17
operator of an approved synthetic greenhouse gas destruction
18
facility.
19
(4) An application must specify one or more synthetic greenhouse gas
20
destruction events that occurred during the eligible financial year.
21
247 Form of application
22
(1) An application must:
23
(a) be in writing; and
24
(b) be in a form approved, in writing, by the Authority; and
25
(c) be accompanied by such information as is specified in the
26
regulations; and
27
(d) be accompanied by such documents (if any) as are specified
28
in the regulations.
29
(2) The approved form of application may provide for verification by
30
statutory declaration of statements in applications.
31
Destruction of synthetic greenhouse gases Part 11
Certificate of eligible synthetic greenhouse gas destruction Division 3
Section 248
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 301
248 Further information
1
(1) The Authority may, by written notice given to an applicant, require
2
the applicant to give the Authority, within the period specified in
3
the notice, further information in connection with the application.
4
(2) If the applicant breaches the requirement, the Authority may, by
5
written notice given to the applicant:
6
(a) refuse to consider the application; or
7
(b) refuse to take any action, or any further action, in relation to
8
the application.
9
249 Issue of certificate of eligible synthetic greenhouse gas
10
destruction
11
Scope
12
(1) This section applies if an application under section 246 has been
13
made for the issue of a certificate of eligible synthetic greenhouse
14
gas destruction in respect of an eligible financial year.
15
Issue of certificate
16
(2) After considering the application, the Authority may issue a
17
certificate of eligible synthetic greenhouse gas destruction in
18
respect of the eligible financial year.
19
Note:
See section 250 (criteria for issuing certificate).
20
(3) A certificate of eligible synthetic greenhouse gas destruction must
21
state that a specified number is the unit entitlement in respect of
22
the certificate.
23
Note:
See section 251 (unit entitlement).
24
Timing
25
(4) The Authority must take all reasonable steps to ensure that a
26
decision is made on the application:
27
(a) if the Authority requires the applicant to give further
28
information under subsection 248(1) in relation to the
29
Part 11 Destruction of synthetic greenhouse gases
Division 3 Certificate of eligible synthetic greenhouse gas destruction
Section 250
302 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
application--within 90 days after the applicant gave the
1
Authority the information; or
2
(b) otherwise--within 90 days after the application was made.
3
Refusal
4
(5) If the Authority decides to refuse to issue a certificate of eligible
5
synthetic greenhouse gas destruction, the Authority must give
6
written notice of the decision to the applicant.
7
250 Criteria for issuing certificate of eligible synthetic greenhouse
8
gas destruction
9
Scope
10
(1) This section applies if an application under section 246 has been
11
made for the issue of a certificate of eligible synthetic greenhouse
12
gas destruction in respect of an eligible financial year.
13
Recognised synthetic greenhouse gas destruction customer
14
(2) If the application is made in the applicant's capacity as a
15
recognised synthetic greenhouse gas destruction customer, the
16
Authority must not issue the certificate unless:
17
(a) the Authority is satisfied that the following conditions are
18
satisfied in relation to each synthetic greenhouse gas
19
destruction event specified in the application:
20
(i) the event occurred during the eligible financial year;
21
(ii) the applicant was a recognised synthetic greenhouse gas
22
destruction customer at the time of the occurrence of the
23
event;
24
(iii) the synthetic greenhouse gas was destroyed at an
25
approved synthetic greenhouse gas destruction facility
26
under a contract between the applicant and the operator
27
of the facility;
28
(iv) the applicant incurred expenditure under the contract in
29
respect of the destruction of the synthetic greenhouse
30
gas;
31
Destruction of synthetic greenhouse gases Part 11
Certificate of eligible synthetic greenhouse gas destruction Division 3
Section 250
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 303
(v) the approved synthetic greenhouse gas destruction
1
facility was authorised under the Ozone Protection and
2
Synthetic Greenhouse Gas Management Regulations
3
1995 to carry out the destruction of the synthetic
4
greenhouse gas;
5
(vi) the destruction of the synthetic greenhouse gas
6
complied with the Ozone Protection and Synthetic
7
Greenhouse Gas Management Regulations 1995;
8
(vii) the synthetic greenhouse gas was eligible waste; and
9
(b) the total quantity of synthetic greenhouse gas covered by the
10
synthetic greenhouse gas destruction events specified in the
11
application exceeds the quantity specified in the regulations.
12
Operator of an approved synthetic greenhouse gas destruction
13
facility
14
(3) If the application was made in the applicant's capacity as the
15
operator of an approved synthetic greenhouse gas destruction
16
facility, the Authority must not issue the certificate unless:
17
(a) the Authority is satisfied that the following conditions are
18
satisfied in relation to each synthetic greenhouse gas
19
destruction event specified in the application:
20
(i) the event occurred during the eligible financial year;
21
(ii) the synthetic greenhouse gas was destroyed at an
22
approved synthetic greenhouse gas destruction facility
23
operated by the applicant;
24
(iii) the destruction of the synthetic greenhouse gas was not
25
carried out under a contract between the applicant and
26
another person;
27
(iv) the applicant was not entitled to receive any
28
consideration for carrying out the destruction of the
29
synthetic greenhouse gas;
30
(v) the approved synthetic greenhouse gas destruction
31
facility was authorised under the Ozone Protection and
32
Synthetic Greenhouse Gas Management Regulations
33
1995 to carry out the destruction of the synthetic
34
greenhouse gas;
35
Part 11 Destruction of synthetic greenhouse gases
Division 3 Certificate of eligible synthetic greenhouse gas destruction
Section 251
304 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(vi) the destruction of the synthetic greenhouse gas
1
complied with the Ozone Protection and Synthetic
2
Greenhouse Gas Management Regulations 1995;
3
(vii) the synthetic greenhouse gas was eligible waste; and
4
(b) the total quantity of synthetic greenhouse gas covered by the
5
synthetic greenhouse gas destruction events specified in the
6
application exceeds the quantity specified in the regulations.
7
251 Unit entitlement
8
(1) The number to be specified in a certificate of eligible synthetic
9
greenhouse gas destruction as the unit entitlement in respect of the
10
certificate is to be worked out as follows:
11
(a) calculate the provisional number for each synthetic
12
greenhouse gas destruction event specified in the application
13
for the certificate;
14
(b) the number to be specified as the unit entitlement is the sum
15
of those provisional numbers.
16
Provisional number--synthetic greenhouse gas destruction event
17
(2) For the purposes of this section, the provisional number of a
18
synthetic greenhouse gas destruction event is the number
19
(calculated to zero decimal places) worked out using the following
20
formula:
21
Number of tonnes in the
carbon dioxide equivalence of
Destruction efficiency factor
the synthetic greenhouse gas
submitted for destruction
22
where:
23
destruction efficiency factor means the factor specified in the
24
regulations in relation to the approved synthetic greenhouse gas
25
destruction facility concerned.
26
252 Certificate of eligible synthetic greenhouse gas destruction is not
27
transferable
28
A certificate of eligible synthetic greenhouse gas destruction is not
29
transferable.
30
Destruction of synthetic greenhouse gases Part 11
Certificate of eligible synthetic greenhouse gas destruction Division 3
Section 252
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 305
1
Part 11 Destruction of synthetic greenhouse gases
Division 4 Recognised synthetic greenhouse gas destruction customers
Section 253
306 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Division 4--Recognised synthetic greenhouse gas
1
destruction customers
2
253 Application for recognition as a synthetic greenhouse gas
3
destruction customer
4
A company may apply to the Authority for recognition as a
5
synthetic greenhouse gas destruction customer.
6
254 Form of application
7
(1) An application must:
8
(a) be in writing; and
9
(b) be in a form approved, in writing, by the Authority; and
10
(c) be accompanied by such information as is specified in the
11
regulations; and
12
(d) be accompanied by such documents (if any) as are specified
13
in the regulations; and
14
(e) be accompanied by the fee (if any) specified in the
15
regulations.
16
(2) The approved form of application may provide for verification by
17
statutory declaration of statements in applications.
18
(3) A fee specified under paragraph (1)(e) must not be such as to
19
amount to taxation.
20
255 Further information
21
(1) The Authority may, by written notice given to an applicant, require
22
the applicant to give the Authority, within the period specified in
23
the notice, further information in connection with the application.
24
(2) If the applicant breaches the requirement, the Authority may, by
25
written notice given to the applicant:
26
(a) refuse to consider the application; or
27
(b) refuse to take any action, or any further action, in relation to
28
the application.
29
Destruction of synthetic greenhouse gases Part 11
Recognised synthetic greenhouse gas destruction customers Division 4
Section 256
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 307
256 Recognition as a synthetic greenhouse gas destruction customer
1
Scope
2
(1) This section applies if an application under section 253 has been
3
made for recognition as a synthetic greenhouse gas destruction
4
customer.
5
Recognition
6
(2) After considering the application, the Authority may, by written
7
notice given to the applicant, recognise the applicant as a synthetic
8
greenhouse gas destruction customer.
9
Criteria for recognition
10
(3) The Authority must not recognise the applicant as a recognised
11
synthetic greenhouse gas destruction customer unless:
12
(a) the Authority is satisfied that the applicant is a fit and proper
13
person, having regard to the following:
14
(i) whether the applicant has been convicted of an offence
15
against a law of the Commonwealth, a State or
16
Territory, where the offence relates to dishonest
17
conduct;
18
(ii) whether the applicant has been convicted of an offence
19
against a law of the Commonwealth, a State or
20
Territory, where the offence relates to the conduct of a
21
business;
22
(iii) whether the applicant has been convicted of an offence
23
against section 136.1, 137.1 or 137.2 of the Criminal
24
Code;
25
(iv) whether an executive officer of the applicant has been
26
convicted of an offence against a law of the
27
Commonwealth, a State or Territory, where the offence
28
relates to dishonest conduct;
29
(v) whether an executive officer of the applicant has been
30
convicted of an offence against a law of the
31
Commonwealth, a State or Territory, where the offence
32
relates to the conduct of a business;
33
Part 11 Destruction of synthetic greenhouse gases
Division 4 Recognised synthetic greenhouse gas destruction customers
Section 257
308 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(vi) whether an executive officer of the applicant has been
1
convicted of an offence against section 136.1, 137.1 or
2
137.2 of the Criminal Code;
3
(vii) whether the applicant has breached this Act or the
4
associated provisions;
5
(viii) whether an executive officer of the applicant has
6
breached this Act or the associated provisions;
7
(ix) such other matters (if any) as the Authority considers
8
relevant; and
9
(b) the Authority is satisfied that the applicant is not an
10
externally-administered body corporate; and
11
(c) if the regulations specify one or more other eligibility
12
requirements--the Authority is satisfied that those
13
requirements are met.
14
(4) Subparagraphs (3)(a)(i) to (viii) do not limit
15
subparagraph (3)(a)(ix).
16
Timing
17
(5) The Authority must take all reasonable steps to ensure that a
18
decision is made on the application:
19
(a) if the Authority requires the applicant to give further
20
information under subsection 255(1) in relation to the
21
application--within 90 days after the applicant gave the
22
Authority the information; or
23
(b) otherwise--within 90 days after the application was made.
24
Refusal
25
(6) If the Authority decides to refuse to recognise the applicant as a
26
synthetic greenhouse gas destruction customer, the Authority must
27
give written notice of the decision to the applicant.
28
257 Cancellation of recognition
29
(1) The Authority may cancel the recognition of a company as a
30
synthetic greenhouse gas destruction customer if:
31
(a) the Authority is satisfied that the company is not a fit and
32
proper person, having regard to the following:
33
Destruction of synthetic greenhouse gases Part 11
Recognised synthetic greenhouse gas destruction customers Division 4
Section 257
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 309
(i) whether the company has been convicted of an offence
1
against a law of the Commonwealth, a State or
2
Territory, where the offence relates to dishonest
3
conduct;
4
(ii) whether the company has been convicted of an offence
5
against a law of the Commonwealth, a State or
6
Territory, where the offence relates to the conduct of a
7
business;
8
(iii) whether the company has been convicted of an offence
9
against section 136.1, 137.1 or 137.2 of the Criminal
10
Code;
11
(iv) whether an executive officer of the company has been
12
convicted of an offence against a law of the
13
Commonwealth, a State or Territory, where the offence
14
relates to dishonest conduct;
15
(v) whether an executive officer of the company has been
16
convicted of an offence against a law of the
17
Commonwealth, a State or Territory, where the offence
18
relates to the conduct of a business;
19
(vi) whether an executive officer of the company has been
20
convicted of an offence against section 136.1, 137.1 or
21
137.2 of the Criminal Code;
22
(vii) whether the company has breached this Act or the
23
associated provisions;
24
(viii) whether an executive officer of the company has
25
breached this Act or the associated provisions;
26
(ix) such other matters (if any) as the Authority considers
27
relevant; or
28
(b) the Authority is satisfied that the company is an
29
externally-administered body corporate; or
30
(c) if the regulations specify one or more other grounds for
31
cancellation--the Authority is satisfied that at least one of
32
those grounds is applicable to the company.
33
(2) Subparagraphs (1)(a)(i) to (viii) do not limit
34
subparagraph (1)(a)(ix).
35
Part 11 Destruction of synthetic greenhouse gases
Division 4 Recognised synthetic greenhouse gas destruction customers
Section 258
310 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
258 Surrender of recognition
1
Scope
2
(1) This section applies if a company is recognised as a synthetic
3
greenhouse gas destruction customer.
4
Surrender
5
(2) The company may, by written notice given to the Authority,
6
surrender the company's recognition.
7
(3) The surrender takes effect on the day the notice is received by the
8
Authority or, if a later day is specified in the notice, on that later
9
day.
10
259 Recognition is not transferable
11
If a company is recognised as a synthetic greenhouse gas
12
destruction customer, the company's recognition is not
13
transferable.
14
15
Publication of information Part 12
Introduction Division 1
Section 260
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 311
Part 12--Publication of information
1
Division 1--Introduction
2
260 Simplified outline
3
The following is a simplified outline of this Part:
4
·
The Authority must keep a Liable Entities Public Information
5
Database.
6
·
Certain information about liable entities must be entered in the
7
Information Database.
8
·
The Authority must publish certain other information about
9
the operation of this Act.
10
11
Part 12 Publication of information
Division 2 Information about liable entities
Section 261
312 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Division 2--Information about liable entities
1
261 Liable Entities Public Information Database
2
(1) The Authority must keep a database, to be known as the Liable
3
Entities Public Information Database.
4
Note:
In this Act, Information Database means the Liable Entities Public
5
Information Database--see section 5.
6
(2) The Information Database is to be maintained by electronic means.
7
(3) The Information Database is to be made available for inspection on
8
the Authority's website.
9
262 Liable entities to be entered in the Information Database
10
Making of entry
11
(1) If the Authority has reasonable grounds to believe that a person is,
12
or is likely to be, a liable entity for an eligible financial year, the
13
Authority must make an entry for the person in the Information
14
Database in relation to the eligible financial year.
15
(1A) If the Authority makes the entry, the Authority must give written
16
notice of the entry to the person.
17
Removal of entry
18
(2) If:
19
(a) there is an entry for a person in the Information Database in
20
relation to an eligible financial year; and
21
(b) the Authority has reasonable grounds to believe that the
22
person is not a liable entity for that eligible financial year;
23
the Authority must remove the entry from the Information
24
Database.
25
(3) If the Authority removes the entry, the Authority must give written
26
notice of the removal to the person.
27
Publication of information Part 12
Information about liable entities Division 2
Section 263
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 313
263 Emissions number to be entered in the Information Database
1
Scope
2
(1) This section applies if there is an entry for a person in the
3
Information Database in relation to an eligible financial year.
4
Emissions number
5
(2) As soon as practicable after receiving a report under section 22A of
6
the National Greenhouse and Energy Reporting Act 2007 that
7
specifies a number as the person's emissions number for the
8
eligible financial year, the Authority must enter that number in the
9
Information Database.
10
(3) As soon as practicable after making an assessment under
11
section 126 or 127 of the person's emissions number for the
12
eligible financial year, the Authority must enter details of the
13
assessment in the Information Database.
14
(4) As soon as practicable after amending an assessment under
15
section 126 or 127 of the person's emissions number for the
16
eligible financial year, the Authority must enter details of the
17
amended assessment in the Information Database.
18
264 Unit shortfall to be entered in the Information Database
19
Scope
20
(1) This section applies if there is an entry for a person in the
21
Information Database in relation to an eligible financial year.
22
Unit shortfall
23
(2) If:
24
(a) the Authority is of the opinion that the person has a unit
25
shortfall for the eligible financial year; and
26
(b) the Authority has not made an assessment under section 131
27
of the person's unit shortfall for the eligible financial year;
28
the Authority must enter in the Information Database:
29
Part 12 Publication of information
Division 2 Information about liable entities
Section 264
314 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(c) the number that represents the Authority's reasonable
1
estimate of the number of units in the person's unit shortfall
2
for the eligible financial year; and
3
(d) the number obtained by dividing the number mentioned in
4
paragraph (c) by the number that represents the Authority's
5
reasonable estimate of the person's emissions number for the
6
eligible financial year; and
7
(e) the amount that represents the Authority's reasonable
8
estimate of the penalty payable by the person under
9
section 133 in relation to the unit shortfall.
10
(3) If the Authority makes an assessment under section 131 of the
11
person's unit shortfall for the eligible financial year, the Authority
12
must enter in the Information Database:
13
(a) details of the assessment; and
14
(b) the number obtained by dividing the number of units in the
15
unit shortfall specified in the assessment by the number that
16
represents the Authority's reasonable estimate of the person's
17
emissions number for the current eligible financial year; and
18
(c) the amount that represents the Authority's reasonable
19
estimate of the penalty payable by the person under
20
section 133 in relation to the unit shortfall.
21
(4) In making an estimate under this section, the Authority may rely on
22
a report given under section 22A of the National Greenhouse and
23
Energy Reporting Act 2007 by the person.
24
(5) If:
25
(a) an assessment has been made under section 131 of the
26
person's unit shortfall for the eligible financial year; and
27
(b) any of the following subparagraphs applies:
28
(i) a decision to make, to amend, or to refuse to amend, the
29
assessment is being reconsidered by the Authority under
30
section 348;
31
(ii) a decision to make, to amend, or to refuse to amend, the
32
assessment has been affirmed or varied by the Authority
33
under section 348, and the decision as so affirmed or
34
varied is the subject of an application for review by the
35
Administrative Appeals Tribunal;
36
Publication of information Part 12
Information about liable entities Division 2
Section 265
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 315
(iii) a decision to make, to amend, or to refuse to amend, the
1
assessment is the subject of an application for review by
2
the Administrative Appeals Tribunal;
3
the Authority must:
4
(c) make an appropriate annotation in the Information Database;
5
and
6
(d) if subparagraph (b)(i) applies--when the Authority notifies
7
the applicant for reconsideration of the Authority's decision
8
on the reconsideration, the Authority must make an
9
appropriate annotation in the Information Database; and
10
(e) if subparagraph (b)(ii) or (iii) applies--when the review by
11
the Administrative Appeals Tribunal (including any court
12
proceedings arising out of the review) has been finalised, the
13
Authority must make an appropriate annotation in the
14
Information Database.
15
265 Unpaid administrative penalty to be entered in the Information
16
Database
17
Scope
18
(1) This section applies if:
19
(a) there is an entry for a person in the Information Database in
20
relation to an eligible financial year; and
21
(b) the person has a unit shortfall for the eligible financial year;
22
and
23
(c) an amount (the penalty amount) payable by the person under
24
section 133 in relation to the unit shortfall remains unpaid
25
after the time when the penalty amount became due for
26
payment.
27
Penalty amount
28
(2) The Authority must enter in the Information Database details of the
29
unpaid penalty amount.
30
Part 12 Publication of information
Division 2 Information about liable entities
Section 266
316 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
266 Number of surrendered eligible emissions units to be entered in
1
the Information Database
2
Scope
3
(1) This section applies if there is an entry for a person in the
4
Information Database in relation to an eligible financial year.
5
Eligible emissions units surrendered
6
(2) As soon as practicable after receiving a notice under section 129
7
that surrenders, in relation to the eligible financial year, one or
8
more eligible emissions units held by the person, the Authority
9
must enter in the Information Database:
10
(a) the total number of eligible emissions units surrendered; and
11
(b) the total number of each of the following types of eligible
12
emissions units surrendered:
13
(i) Australian emissions units;
14
(ii) certified emission reductions;
15
(iii) emission reduction units;
16
(iv) removal units;
17
(v) prescribed units issued in accordance with the Kyoto
18
rules;
19
(vi) non-Kyoto international emissions units.
20
267 Number of voluntarily cancelled units to be entered in the
21
Information Database
22
Scope
23
(1) This section applies if there is an entry for a person in the
24
Information Database in relation to an eligible financial year.
25
Australian emissions units
26
(2) As soon as practicable after one or more Australian emissions units
27
held by the person are cancelled under section 282, the Authority
28
must enter in the Information Database the total number of
29
Australian emissions units cancelled.
30
Publication of information Part 12
Information about liable entities Division 2
Section 267A
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 317
Kyoto units
1
(3) As soon as practicable after one or more Kyoto units held by the
2
person are transferred under section 283 to a voluntary cancellation
3
account, the Authority must enter in the Information Database the
4
total number of Kyoto units transferred.
5
Non-Kyoto international emissions units
6
(4) As soon as practicable after one or more non-Kyoto international
7
emissions units held by the person are cancelled under section 284,
8
the Authority must enter in the Information Database the total
9
number of non-Kyoto international emissions units cancelled.
10
267A Relinquishment requirement to be entered in the Information
11
Database
12
Scope
13
(1) This section applies if there is an entry for a person in the
14
Information Database in relation to an eligible financial year.
15
Relinquishment requirement
16
(2) If, under this Act or the emissions-intensive trade-exposed
17
assistance program, the person is required, during the eligible
18
financial year, to relinquish a particular number of Australian
19
emissions units, the Authority must enter in the Information
20
Database details of the relinquishment requirement.
21
(3) If any of the following paragraphs applies:
22
(a) the decision to require the person to relinquish a specified
23
number of Australian emissions units is being reconsidered
24
by the Authority under section 348;
25
(b) the decision to require the person to relinquish a specified
26
number of Australian emissions units has been affirmed or
27
varied by the Authority under section 348, and the decision
28
as so affirmed or varied is the subject of an application for
29
review by the Administrative Appeals Tribunal;
30
(c) the decision to require the person to relinquish a specified
31
number of Australian emissions units is the subject of an
32
Part 12 Publication of information
Division 2 Information about liable entities
Section 267B
318 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
application for review by the Administrative Appeals
1
Tribunal;
2
the Authority must:
3
(d) make an appropriate annotation in the Information Database;
4
and
5
(e) if paragraph (a) applies--when the Authority notifies the
6
applicant for reconsideration of the Authority's decision on
7
the reconsideration, the Authority must make an appropriate
8
annotation in the Information Database; and
9
(f) if paragraph (b) or (c) applies--when the review by the
10
Administrative Appeals Tribunal (including any court
11
proceedings arising out of the review) has been finalised, the
12
Authority must make an appropriate annotation in the
13
Information Database.
14
267B Unpaid administrative penalty to be entered in the
15
Information Database
16
Scope
17
(1) This section applies if:
18
(a) there is an entry for a person in the Information Database in
19
relation to an eligible financial year; and
20
(b) the person is required, under this Act or the
21
emissions-intensive trade-exposed assistance program, to
22
relinquish a particular number of Australian emissions units;
23
and
24
(c) during the eligible financial year, an amount (the penalty
25
amount) payable by the person under section 287 in relation
26
to non-compliance with the relinquishment requirement
27
remains unpaid after the time when the penalty amount
28
became due for payment.
29
Penalty amount
30
(2) The Authority must enter in the Information Database details of the
31
unpaid penalty amount.
32
Publication of information Part 12
Information about liable entities Division 2
Section 267C
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 319
267C Number of relinquished units to be entered in the Information
1
Database
2
Scope
3
(1) This section applies if:
4
(a) there is an entry for a person in the Information Database in
5
relation to an eligible financial year; and
6
(b) under this Act or the emissions-intensive trade-exposed
7
assistance program, the person is required to relinquish a
8
particular number of Australian emissions units; and
9
(c) during the eligible financial year, the person relinquishes one
10
or more Australian emissions units in order to comply with
11
the requirement.
12
Australian emissions units relinquished
13
(2) As soon as practicable after receiving the notice of relinquishment,
14
the Authority must enter in the Information Database the total
15
number of Australian emissions units relinquished.
16
268 Correction and rectification of the Information Database
17
Corrections of clerical errors or obvious defects
18
(1) The Authority may alter the Information Database for the purposes
19
of correcting a clerical error or an obvious defect in the
20
Information Database.
21
General power of correction
22
(2) The Authority may make such entries in the Information Database
23
as the Authority considers appropriate for the purposes of ensuring
24
that the Information Database is accurate.
25
(3) The Authority may exercise the power conferred by subsection (2):
26
(a) on written application being made to the Authority by a
27
person; or
28
(b) on the Authority's own initiative.
29
30
Part 12 Publication of information
Division 3 Information about holders of Registry accounts
Section 269
320 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Division 3--Information about holders of Registry
1
accounts
2
269 Information about holders of Registry accounts
3
The Authority must:
4
(a) publish on its website:
5
(i) the name of each person who has a Registry account;
6
and
7
(ii) the person's address last known to the Authority; and
8
(b) keep that information up-to-date.
9
10
Publication of information Part 12
Information about units Division 4
Section 270
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 321
Division 4--Information about units
1
270 Information about auction results--last auction
2
Within 7 business days after conducting an auction of Australian
3
emissions units with a particular vintage year, the Authority must:
4
(a) prepare a statement setting out:
5
(i) each per unit charge that was payable for the issue of
6
those Australian emissions units; and
7
(ii) for each such per unit charge--the total number of
8
Australian emissions units that were issued for the per
9
unit charge; and
10
(b) publish the statement on its website.
11
271 Information about auction results--last 6 months
12
6 months ending on 31 May
13
(1) Within 7 business days after the end of:
14
(a) May 2012; and
15
(b) May 2013; and
16
(c) May 2014;
17
the Authority must publish on its website the amount worked out to
18
2 decimal places (rounding up if the third decimal place is 5 or
19
more) using the formula:
20
Total auction proceeds
Number of units issued
as the result of auctions
21
where:
22
number of units issued as the result of auctions means the total
23
number of Australian emissions units that were issued as the result
24
of auctions conducted by the Authority during the 6-month period
25
ending at the end of that May.
26
total auction proceeds means the total amount paid or payable by
27
way of charges for the issue of Australian emissions units that were
28
Part 12 Publication of information
Division 4 Information about units
Section 271
322 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
issued as the result of auctions conducted by the Authority during
1
the 6-month period ending at the end of that May.
2
6 months ending on 30 November
3
(2) Within 7 business days after the end of:
4
(a) November 2012; and
5
(b) November 2013;
6
the Authority must publish on its website the amount worked out to
7
2 decimal places (rounding up if the third decimal place is 5 or
8
more) using the formula:
9
Total auction proceeds
Number of units issued
as the result of auctions
10
where:
11
number of units issued as the result of auctions means the total
12
number of Australian emissions units that were issued as the result
13
of auctions conducted by the Authority during the 6-month period
14
ending at the end of that November.
15
total auction proceeds means the total amount paid or payable by
16
way of charges for the issue of Australian emissions units that were
17
issued as the result of auctions conducted by the Authority during
18
the 6-month period ending at the end of that November.
19
Vintage years
20
(3) For the purposes of this section, if:
21
(a) an Australian emissions unit is issued as the result of an
22
auction conducted by the Authority before 1 July 2012; and
23
(b) the vintage year of the unit begins on or after 1 July 2013;
24
disregard the issue of the unit.
25
(4) For the purposes of this section, if:
26
(a) an Australian emissions unit is issued as the result of an
27
auction conducted by the Authority during an eligible
28
financial year beginning on or after 1 July 2012; and
29
(b) the vintage year of the unit is not that eligible financial year;
30
Publication of information Part 12
Information about units Division 4
Section 272
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 323
disregard the issue of the unit.
1
272 Information about issue of Australian emissions units for a fixed
2
charge
3
2011-2012
4
(1) As soon as practicable after 15 December 2012, the Authority must
5
publish on its website the total number of Australian emissions
6
units issued in accordance with section 89 with a vintage year
7
beginning on 1 July 2011.
8
2012-2013
9
(2) As soon as practicable after 15 December 2013, the Authority must
10
publish on its website the total number of Australian emissions
11
units issued in accordance with section 89 with a vintage year
12
beginning on 1 July 2012.
13
2013-2014
14
(3) As soon as practicable after 15 December 2014, the Authority must
15
publish on its website the total number of Australian emissions
16
units issued in accordance with section 89 with a vintage year
17
beginning on 1 July 2013.
18
2014-2015
19
(4) As soon as practicable after 15 December 2015, the Authority must
20
publish on its website the total number of Australian emissions
21
units issued in accordance with section 89 with a vintage year
22
beginning on 1 July 2014.
23
2015-2016
24
(5) As soon as practicable after 15 December 2016, the Authority must
25
publish on its website the total number of Australian emissions
26
units issued in accordance with section 89 with a vintage year
27
beginning on 1 July 2015.
28
Part 12 Publication of information
Division 4 Information about units
Section 273
324 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
273 Information about issue of free Australian emissions units
1
Emissions-intensive trade-exposed assistance program
2
(1) As soon as practicable after free Australian emissions units are
3
issued to a person in accordance with the emissions-intensive
4
trade-exposed assistance program, the Authority must publish on
5
its website:
6
(a) the name of the person; and
7
(b) the total number of free Australian emissions units issued to
8
the person; and
9
(c) the vintage year of the free Australian emissions units issued
10
to the person; and
11
(d) each activity that:
12
(i) under the emissions-intensive trade-exposed assistance
13
program, is taken to be an emissions-intensive
14
trade-exposed activity; and
15
(ii) is an activity in respect of which the free Australian
16
emissions units were issued to the person.
17
Coal-fired electricity generation
18
(2) As soon as practicable after free Australian emissions units are
19
issued to a person in accordance with Part 9 (coal-fired electricity
20
generation), the Authority must publish on its website:
21
(a) the name of the person; and
22
(b) the total number of free Australian emissions units issued to
23
the person; and
24
(c) the vintage year of the free Australian emissions units issued
25
to the person.
26
Reforestation
27
(3) As soon as practicable after free Australian emissions units are
28
issued to a person in accordance with Part 10 (reforestation), the
29
Authority must publish on its website:
30
(a) the name of the person; and
31
(b) the total number of free Australian emissions units issued to
32
the person; and
33
Publication of information Part 12
Information about units Division 4
Section 274
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 325
(c) the vintage year of the free Australian emissions units issued
1
to the person.
2
Destruction of synthetic greenhouse gases
3
(4) As soon as practicable after free Australian emissions units are
4
issued to a person in accordance with Part 11 (destruction of
5
synthetic greenhouse gases), the Authority must publish on its
6
website:
7
(a) the name of the person; and
8
(b) the total number of free Australian emissions units issued to
9
the person; and
10
(c) the vintage year of the free Australian emissions units issued
11
to the person.
12
274 Quarterly reports about issue of free Australian emissions units
13
As soon as practicable after the end of each quarter, the Authority
14
must publish the following information on its website:
15
(a) the total number of free Australian emissions units with a
16
particular vintage year issued during the quarter in
17
accordance with the emissions-intensive trade-exposed
18
assistance program;
19
(b) for each activity that, under the emissions-intensive
20
trade-exposed assistance program, is taken to be an
21
emissions-intensive trade-exposed activity--the total number
22
of free Australian emissions units with a particular vintage
23
year issued during the quarter in respect of that activity in
24
accordance with that program;
25
(c) if, at the end of the quarter, there were one or more pending
26
applications for free Australian emissions under the
27
emissions-intensive trade-exposed assistance program--the
28
total number of free Australian emissions units to which
29
those pending applications relate;
30
(d) the total number of free Australian emissions units with a
31
particular vintage year issued during the quarter in
32
accordance with Part 9 (coal-fired electricity generation);
33
Part 12 Publication of information
Division 4 Information about units
Section 275
326 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(e) the total number of free Australian emissions units with a
1
particular vintage year issued during the quarter in
2
accordance with Part 10 (reforestation);
3
(f) the total number of free Australian emissions units with a
4
particular vintage year issued during the quarter in
5
accordance with Part 11 (destruction of synthetic greenhouse
6
gases).
7
275 Information about surrender of borrowed and banked eligible
8
emissions units
9
Borrowed units
10
(1) As soon as practicable after the end of 15 December following an
11
eligible financial year, the Authority must publish on its website
12
the total number of Australian emissions units that:
13
(a) were surrendered in relation to the eligible financial year; and
14
(b) had a vintage year later than the eligible financial year.
15
Banked units
16
(2) As soon as practicable after the end of 15 December following an
17
eligible financial year, the Authority must publish on its website
18
the total number of Australian emissions units that:
19
(a) were surrendered in relation to the eligible financial year; and
20
(b) had a vintage year earlier than the eligible financial year.
21
276 Kyoto information
22
(1) The regulations may make provision for, or in relation to, requiring
23
the Authority to publish on its website information that a provision
24
of the Kyoto rules requires Australia's national registry to make
25
publicly available.
26
(2) The regulations may require the Authority to:
27
(a) publish on its website the total number of specified Kyoto
28
units for which there are entries in Registry accounts; and
29
(b) keep that information up-to-date.
30
(3) The Authority must:
31
Publication of information Part 12
Information about units Division 4
Section 277
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 327
(a) publish on its website:
1
(i) the total number of certified emission reductions (other
2
than temporary certified emission reductions or
3
long-term certified emission reductions) for which there
4
are entries in Registry accounts; and
5
(ii) the total number of emissions reduction units (other than
6
emission reduction units converted from removal units)
7
for which there are entries in Registry accounts; and
8
(b) keep that information up-to-date.
9
277 Information about total emissions numbers and unit shortfalls
10
As soon as practicable after 15 January following an eligible
11
financial year, the Authority must:
12
(a) calculate:
13
(i) the total of the numbers that, in the Authority's opinion,
14
are the emissions numbers of liable entities for the
15
eligible financial year; and
16
(ii) the total of the numbers that, in the Authority's opinion,
17
are the unit shortfalls of liable entities in relation to the
18
eligible financial year; and
19
(b) publish the results on its website.
20
278 Publication of concise description of the characteristics of
21
eligible emissions units
22
Scope
23
(1) This section applies to the period beginning 24 hours before the
24
Authority starts to conduct the first auction of Australian emissions
25
units.
26
Statement
27
(2) At all times during that period, the Authority must make available
28
on its website a statement setting out a concise description of the
29
characteristics of:
30
(a) Australian emissions units; and
31
(b) each other type of eligible emissions unit.
32
Part 12 Publication of information
Division 4 Information about units
Section 278
328 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
1
Publication of information Part 12
Information about voluntary cancellation of units held by persons other than liable
entities Division 5
Section 278A
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 329
Division 5--Information about voluntary cancellation of
1
units held by persons other than liable entities
2
278A Information about number of voluntarily cancelled Australian
3
emissions units
4
Scope
5
(1) This section applies if there is no entry for a person in the
6
Information Database in relation to an eligible financial year.
7
Australian emissions units
8
(2) As soon as practicable after one or more Australian emissions units
9
held by the person are cancelled under section 282, the Authority
10
must publish on its website:
11
(a) the name of the person; and
12
(b) the total number of Australian emissions units cancelled.
13
278B Information about number of voluntarily cancelled Kyoto
14
units
15
Scope
16
(1) This section applies if there is no entry for a person in the
17
Information Database in relation to an eligible financial year.
18
Kyoto units
19
(2) As soon as practicable after one or more Kyoto units held by the
20
person are transferred under section 283 to a voluntary cancellation
21
account, the Authority must publish on its website:
22
(a) the name of the person; and
23
(b) the total number of Kyoto units transferred.
24
Part 12 Publication of information
Division 5 Information about voluntary cancellation of units held by persons other than
liable entities
Section 278C
330 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
278C Information about number of voluntarily cancelled non-Kyoto
1
international emissions units
2
Scope
3
(1) This section applies if there is no entry for a person in the
4
Information Database in relation to an eligible financial year.
5
Non-Kyoto international emissions units
6
(2) As soon as practicable after one or more non-Kyoto international
7
emissions units held by the person are cancelled under section 284,
8
the Authority must publish on its website:
9
(a) the name of the person; and
10
(b) the total number of non-Kyoto international emissions units
11
cancelled.
12
13
Publication of information Part 12
Information about relinquishment requirements for persons other than liable entities
Division 6
Section 278D
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 331
Division 6--Information about relinquishment
1
requirements for persons other than liable
2
entities
3
278D Information about relinquishment requirements
4
Scope
5
(1) This section applies if:
6
(a) under this Act or the emissions-intensive trade-exposed
7
assistance program, a person is required, during an eligible
8
financial year, to relinquish a particular number of Australian
9
emissions units; and
10
(b) there is no entry for the person in the Information Database in
11
relation to the eligible financial year.
12
Relinquishment requirement
13
(2) The Authority must publish on its website:
14
(a) the name of the person; and
15
(b) details of the relinquishment requirement.
16
(3) If any of the following paragraphs applies:
17
(a) the decision to require the person to relinquish a specified
18
number of Australian emissions units is being reconsidered
19
by the Authority under section 348;
20
(b) the decision to require the person to relinquish a specified
21
number of Australian emissions units has been affirmed or
22
varied by the Authority under section 348, and the decision
23
as so affirmed or varied is the subject of an application for
24
review by the Administrative Appeals Tribunal;
25
(c) the decision to require the person to relinquish a specified
26
number of Australian emissions units is the subject of an
27
application for review by the Administrative Appeals
28
Tribunal;
29
the Authority must:
30
(d) publish an appropriate annotation on its website; and
31
Part 12 Publication of information
Division 6 Information about relinquishment requirements for persons other than liable
entities
Section 278E
332 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(e) if paragraph (a) applies--when the Authority notifies the
1
applicant for reconsideration of the Authority's decision on
2
the reconsideration, the Authority must publish an
3
appropriate annotation on its website; and
4
(f) if paragraph (b) or (c) applies--when the review by the
5
Administrative Appeals Tribunal (including any court
6
proceedings arising out of the review) has been finalised, the
7
Authority must publish an appropriate annotation on its
8
website.
9
278E Information about unpaid administrative penalties
10
Scope
11
(1) This section applies if:
12
(a) under this Act or the emissions-intensive trade-exposed
13
assistance program, a person is required to relinquish a
14
particular number of Australian emissions units; and
15
(b) during an eligible financial year, an amount (the penalty
16
amount) payable by the person under section 287 in relation
17
to non-compliance with the relinquishment requirement
18
remains unpaid after the time when the penalty amount
19
became due for payment; and
20
(c) there is no entry for the person in the Information Database in
21
relation to the eligible financial year.
22
Penalty amount
23
(2) The Authority must publish on its website:
24
(a) the name of the person; and
25
(b) details of the unpaid penalty amount.
26
278F Information about number of relinquished units
27
Scope
28
(1) This section applies if:
29
Publication of information Part 12
Information about relinquishment requirements for persons other than liable entities
Division 6
Section 278F
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 333
(a) under this Act or the emissions-intensive trade-exposed
1
assistance program, a person is required to relinquish a
2
particular number of Australian emissions units; and
3
(b) during an eligible financial year, the person relinquishes one
4
or more Australian emissions units in order to comply with
5
the requirement; and
6
(c) there is no entry for the person in the Information Database in
7
relation to the eligible financial year.
8
Australian emissions units relinquished
9
(2) As soon as practicable after receiving the relinquishment notice,
10
the Authority must publish on its website:
11
(a) the name of the person; and
12
(b) the total number of Australian emissions units relinquished.
13
14
Part 12 Publication of information
Division 7 Information about designated large landfill facilities
Section 278G
334 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Division 7--Information about designated large landfill
1
facilities
2
278G Publication of list of designated large landfill facilities
3
(1) The regulations may require the Authority to publish on its
4
website, during each eligible financial year, a list of the landfill
5
facilities that, in the Authority's opinion, were designated large
6
landfill facilities in relation to the previous eligible financial year.
7
(2) The regulations may provide that the list is to be published on or
8
before such day as is ascertained in accordance with the
9
regulations.
10
(3) For the purposes of subsection (1), assume that the financial year
11
beginning on 1 July 2010 is an eligible financial year.
12
13
Fraudulent conduct Part 13
Section 279
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 335
Part 13--Fraudulent conduct
1
2
279 Simplified outline
3
The following is a simplified outline of this Part:
4
·
If a person is convicted of an offence relating to fraudulent
5
conduct, and the issue of Australian emissions units is
6
attributable to the commission of the offence, a court may
7
order the person to relinquish a specified number of Australian
8
emissions units.
9
280 Units issued as a result of fraudulent conduct--court may order
10
relinquishment
11
Scope
12
(1) This section applies if:
13
(a) one or more Australian emissions units were issued to a
14
person on a particular occasion; and
15
(b) the person has been convicted of an offence against:
16
(i) section 134.1 of the Criminal Code; or
17
(ii) section 134.2 of the Criminal Code; or
18
(iii) section 135.1 of the Criminal Code; or
19
(iv) section 135.2 of the Criminal Code; or
20
(v) section 135.4 of the Criminal Code; or
21
(vi) section 136.1 of the Criminal Code; or
22
(vii) section 137.1 of the Criminal Code; or
23
(viii) section 137.2 of the Criminal Code; and
24
(c) the offence was committed after 15 December 2008; and
25
(d) an appropriate court is satisfied that the issue of any or all of
26
the units was directly or indirectly attributable to the
27
commission of the offence.
28
Note:
For appropriate court, see subsection (7).
29
Part 13 Fraudulent conduct
Section 280
336 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Relinquishment
1
(2) The court may, on application made by the Director of Public
2
Prosecutions or the Authority, order the person:
3
(a) to relinquish a specified number of Australian emissions
4
units not exceeding the number of Australian emissions units
5
issued as mentioned in paragraph (1)(a); and
6
(b) to do so by a specified time.
7
Compliance
8
(3) The person must comply with an order under subsection (2).
9
Note:
An administrative penalty is payable under section 287 for
10
non-compliance with a relinquishment requirement.
11
(4) The person does not comply with an order under subsection (2)
12
unless the notice of relinquishment specifies the order.
13
(5) To avoid doubt, the person is required to comply with an order
14
under subsection (2) even if:
15
(a) the person is not the registered holder of any Australian
16
emissions units; or
17
(b) the person is not the registered holder of the number of
18
Australian emissions units required to be relinquished.
19
Conviction
20
(6) It is immaterial whether the conviction occurred before, at or after
21
the commencement of this section.
22
Copy of order
23
(6A) A copy of an order under subsection (2) is to be given to the
24
Authority.
25
Appropriate court
26
(7) For the purposes of this section, each of the following courts is an
27
appropriate court:
28
(a) the court that convicted the person of the offence;
29
(b) the Federal Court;
30
Fraudulent conduct Part 13
Section 280
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 337
(c) the Supreme Court of a State or Territory.
1
2
Part 14 Voluntary cancellation of emissions units
Section 281
338 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Part 14--Voluntary cancellation of emissions units
1
2
281 Simplified outline
3
The following is a simplified outline of this Part:
4
·
If a person is the registered holder of one or more Australian
5
emissions units, the person may request the Authority to
6
cancel any or all of those units.
7
·
If a person is the registered holder of one or more Kyoto units,
8
the person may request the Authority to transfer to a voluntary
9
cancellation account any or all of those units.
10
·
If a person is the registered holder of one or more non-Kyoto
11
international emissions units, the person may request the
12
Authority to cancel any or all of those units.
13
282 Voluntary cancellation of Australian emissions units
14
(1) If a person is the registered holder of one or more Australian
15
emissions units, the person may, by electronic notice transmitted to
16
the Authority, request the Authority to cancel any or all of those
17
units.
18
(2) A notice under subsection (1) must:
19
(a) specify the Australian emissions unit or units that are to be
20
cancelled; and
21
(b) specify the account number or account numbers of the
22
person's Registry account, or the person's Registry accounts,
23
in which there is an entry or entries for the Australian
24
emissions unit or units that are to be cancelled.
25
(2A) A person is not entitled to request the Authority to cancel an
26
Australian emissions unit that has a vintage year beginning on
27
1 July 2011.
28
(3) If the Authority receives a notice under subsection (1) in relation to
29
an Australian emissions unit:
30
Voluntary cancellation of emissions units Part 14
Section 283
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 339
(a) the unit is cancelled; and
1
(b) the Authority must remove the entry for the unit from the
2
person's Registry account in which there is an entry for the
3
unit; and
4
(c) the Minister must, by written notice given to the Authority,
5
direct the Authority to transfer a Kyoto unit from the
6
Commonwealth holding account to a voluntary cancellation
7
account before the end of the true-up period for the relevant
8
commitment period; and
9
(d) the Authority must comply with a direction under
10
paragraph (c).
11
(4) The Registry must set out a record of each notice under
12
subsection (1).
13
Note:
See section 150 (units in a retirement, cancellation or replacement
14
account cannot be surrendered).
15
283 Voluntary cancellation of Kyoto units
16
(1) If a person is the registered holder of one or more Kyoto units, the
17
person may, by electronic notice transmitted to the Authority,
18
request the Authority to transfer to a voluntary cancellation
19
account any or all of those units.
20
(2) A notice under subsection (1) must:
21
(a) specify the Kyoto unit or units that are to be transferred to the
22
voluntary cancellation account; and
23
(b) specify the account number or account numbers of the
24
person's Registry account, or the person's Registry accounts,
25
in which there is an entry or entries for the Kyoto unit or
26
units that are to be transferred to the voluntary cancellation
27
account.
28
(3) If:
29
(a) a person requests that a Kyoto unit be transferred to a
30
voluntary cancellation account; and
31
(b) the Authority is satisfied that the transfer of the unit from the
32
person's Registry account to the voluntary cancellation
33
account would not breach regulations made for the purposes
34
of section 112 (Kyoto rules); and
35
Part 14 Voluntary cancellation of emissions units
Section 284
340 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(c) the Authority is satisfied that the transfer of the unit from the
1
person's Registry account to the voluntary cancellation
2
account would not breach regulations made for the purposes
3
of section 114 (commitment period reserve);
4
the Authority must comply with the request as soon as practicable
5
after receiving it.
6
(4) The Registry must set out a record of each notice under
7
subsection (1).
8
Note:
See section 150 (units in a retirement, cancellation or replacement
9
account cannot be surrendered).
10
284 Voluntary cancellation of non-Kyoto international emissions
11
units
12
(1) If a person is the registered holder of one or more non-Kyoto
13
international emissions units, the person may, by electronic notice
14
transmitted to the Authority, request the Authority to cancel any or
15
all of those units.
16
(2) A notice under subsection (1) must:
17
(a) specify the non-Kyoto international emissions unit or units
18
that are to be cancelled; and
19
(b) specify the account number or account numbers of the
20
person's Registry account, or the person's Registry accounts,
21
in which there is an entry or entries for the Australian
22
emissions unit or units that are to be cancelled.
23
(3) If the Authority receives a notice under subsection (1) in relation to
24
a non-Kyoto international emissions unit:
25
(a) if the regulations require the Authority to cancel the unit--
26
the Authority must cancel the unit; and
27
(b) if the regulations require the Authority to take specified
28
action in relation to the unit--the Authority must take that
29
action; and
30
(c) the Authority must remove the entry for the unit from the
31
person's Registry account in which there is an entry for the
32
unit.
33
Voluntary cancellation of emissions units Part 14
Section 284
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 341
(4) The Registry must set out a record of each notice under
1
subsection (1).
2
3
Part 15 Relinquishment of Australian emissions units
Division 1 Introduction
Section 285
342 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Part 15--Relinquishment of Australian emissions
1
units
2
Division 1--Introduction
3
285 Simplified outline
4
The following is a simplified outline of this Part:
5
·
If a person is the registered holder of one or more Australian
6
emissions units, the person may, by electronic notice
7
transmitted to the Authority, relinquish any or all of those
8
units.
9
·
An administrative penalty is payable for non-compliance with
10
a relinquishment requirement under this Act or the
11
emissions-intensive trade-exposed assistance program.
12
Note 1:
A person may voluntarily relinquish Australian emissions units in
13
order to satisfy a condition for revocation of a section 209 declaration
14
in relation to a reforestation project.
15
Note 2:
A person may be required to relinquish Australian emissions units
16
under Part 10 (reforestation), section 280 (fraudulent conduct) or the
17
emissions-intensive trade-exposed assistance program.
18
19
Relinquishment of Australian emissions units Part 15
How Australian emissions units are relinquished Division 2
Section 286
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 343
Division 2--How Australian emissions units are
1
relinquished
2
286 How Australian emissions units are relinquished
3
(1) If a person is the registered holder of one or more Australian
4
emissions units, the person may, by electronic notice transmitted to
5
the Authority, relinquish any or all of those units.
6
(2) A notice under subsection (1) must:
7
(a) specify the Australian emissions unit or units that are being
8
relinquished; and
9
(b) if the Australian emissions unit or units are being
10
relinquished in order to comply with a requirement under the
11
emissions-intensive trade-exposed assistance program--
12
specify the requirement to which the relinquishment relates;
13
and
14
(c) if the Australian emissions unit or units are being
15
relinquished in order to comply with a requirement under
16
Part 10 (reforestation)--specify the requirement to which the
17
relinquishment relates; and
18
(d) if the Australian emissions unit or units are being voluntarily
19
relinquished in order to satisfy a condition for revocation of a
20
section 209 declaration in relation to a reforestation project--
21
set out a statement to that effect; and
22
(e) if the Australian emissions unit or units are being
23
relinquished in order to comply with an order under
24
subsection 280(2) (fraudulent conduct)--specify the order to
25
which the relinquishment relates; and
26
(f) specify the account number or account numbers of the
27
person's Registry account, or the person's Registry accounts,
28
in which there is an entry or entries for the Australian
29
emissions unit or units that are being relinquished.
30
(2A) If:
31
(a) an Australian emissions unit is relinquished; and
32
(b) the unit has the vintage year beginning on 1 July 2011;
33
then:
34
Part 15 Relinquishment of Australian emissions units
Division 2 How Australian emissions units are relinquished
Section 286
344 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(c) the unit is cancelled; and
1
(d) the Authority must remove the entry for the unit from the
2
person's Registry account in which there is an entry for the
3
unit.
4
(3) If:
5
(a) an Australian emissions unit is relinquished by a person in
6
order to comply with an order under subsection 280(2); and
7
(b) the order was made because the person was convicted by a
8
court of an offence that relates to:
9
(i) Part 10 (reforestation); or
10
(ii) Part 11 (destruction of synthetic greenhouse gases);
11
then:
12
(c) the unit is cancelled; and
13
(d) the Authority must remove the entry for the unit from the
14
person's Registry account in which there is an entry for the
15
unit.
16
(4) If:
17
(a) an Australian emissions unit is relinquished by a person in
18
order to comply with an order under subsection 280(2); and
19
(b) the order was made because the person has been convicted by
20
a court of an offence that does not relate to:
21
(i) Part 10 (reforestation); or
22
(ii) Part 11 (destruction of synthetic greenhouse gases); and
23
(ba) subsection (2A) does not apply to the relinquishment of the
24
unit;
25
then:
26
(c) the Authority must transfer the unit from the person's
27
Registry account in which there is an entry for the unit to the
28
Commonwealth relinquished units account; and
29
(d) when the unit is transferred to the Commonwealth
30
relinquished units account, property in the unit is transferred
31
to the Commonwealth.
32
(5) If:
33
Relinquishment of Australian emissions units Part 15
How Australian emissions units are relinquished Division 2
Section 286
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 345
(a) an Australian emissions unit is relinquished by a person in
1
order to comply with a requirement under the
2
emissions-intensive trade-exposed assistance program; and
3
(b) subsection (2A) does not apply to the relinquishment of the
4
unit;
5
then:
6
(c) the Authority must transfer the unit from the person's
7
Registry account in which there is an entry for the unit to the
8
Commonwealth relinquished units account; and
9
(d) when the unit is transferred to the Commonwealth
10
relinquished units account, property in the unit is transferred
11
to the Commonwealth.
12
(6) If:
13
(a) an Australian emissions unit is relinquished by a person in
14
order to comply with a requirement under Part 10
15
(reforestation); or
16
(b) an Australian emissions unit is voluntarily relinquished in
17
order to satisfy a condition for revocation of a section 209
18
declaration in relation to a reforestation project;
19
then:
20
(c) the unit is cancelled; and
21
(d) the Authority must remove the entry for the unit from the
22
person's Registry account in which there is an entry for the
23
unit.
24
(7) The Registry must set out a record of each notice under
25
subsection (1).
26
27
Part 15 Relinquishment of Australian emissions units
Division 3 Compliance with relinquishment requirements
Section 287
346 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Division 3--Compliance with relinquishment requirements
1
287 Compliance with relinquishment requirements
2
Scope
3
(1) This section applies if, under this Act or the emissions-intensive
4
trade-exposed assistance program:
5
(a) a person is required to relinquish a particular number of
6
Australian emissions units; and
7
(b) the person is required to do so by a particular time (the
8
compliance deadline).
9
No units relinquished
10
(2) If, by the compliance deadline, the person has not relinquished any
11
Australian emissions units in order to comply with the requirement,
12
the person is liable to pay to the Commonwealth, by way of
13
penalty, an amount worked out using the formula:
14
Prescribed amount
Number of units
for the financial year
required to be relinquished
in which the compliance
deadline occurs
15
where:
16
prescribed amount for the financial year in which the compliance
17
deadline occurs means:
18
(a) if the requirement arose under the emissions-intensive
19
trade-exposed assistance program before 31 July 2012--$10;
20
or
21
(b) if:
22
(i) the requirement arose before 1 July 2012; and
23
(ii) paragraph (a) does not apply;
24
$20; or
25
(c) in any other case:
26
(i) if an amount is specified in the regulations for the
27
financial year in which the compliance deadline
28
occurs--that amount; or
29
Relinquishment of Australian emissions units Part 15
Compliance with relinquishment requirements Division 3
Section 287
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 347
(ii) otherwise--an amount equal to 200% of the benchmark
1
average auction price for the previous financial year.
2
Relinquishment of insufficient units
3
(3) If, by the compliance deadline:
4
(a) the person has relinquished one or more Australian emissions
5
units in order to comply with the requirement; and
6
(b) the number of relinquished units is less than the number of
7
units required to be relinquished;
8
the person is liable to pay to the Commonwealth, by way of
9
penalty, an amount worked out using the formula:
10
Prescribed amount for
Number of units
Number of
the financial year in
required to be
relinquished units
which the compliance
relinquished
deadline occurs
11
where:
12
prescribed amount for the financial year in which the compliance
13
deadline occurs means:
14
(a) if the requirement arose under the emissions-intensive
15
trade-exposed assistance program before 31 July 2012--$10;
16
or
17
(b) if:
18
(i) the requirement arose before 1 July 2012; and
19
(ii) paragraph (a) does not apply;
20
$20; or
21
(c) in any other case:
22
(i) if an amount is specified in the regulations for the
23
financial year in which the compliance deadline
24
occurs--that amount; or
25
(ii) otherwise--an amount equal to 200% of the benchmark
26
average auction price for the previous financial year.
27
When penalty becomes due and payable
28
(4) An amount payable under this section is due and payable at the end
29
of 30 days after the compliance deadline.
30
Part 15 Relinquishment of Australian emissions units
Division 3 Compliance with relinquishment requirements
Section 288
348 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Compliance
1
(5) For the purposes of this section, a person relinquishes Australian
2
emissions units in order to comply with a particular requirement
3
under this Act or the emissions-intensive trade-exposed assistance
4
program if, and only if, the notice of relinquishment specifies the
5
requirement.
6
(6) To avoid doubt, a person may be liable to pay a penalty under this
7
section even if:
8
(a) the person is not the registered holder of any Australian
9
emissions units; or
10
(b) the person is not the registered holder of the number of
11
Australian emissions units required to be relinquished.
12
288 Late payment penalty
13
(1) If an amount payable by a person under section 287 remains
14
unpaid after the time when it became due for payment, the person
15
is liable to pay, by way of penalty, an amount calculated at the rate
16
of:
17
(a) 20% per annum; or
18
(b) if a lower rate per annum is specified in the regulations--that
19
lower rate per annum;
20
on the amount unpaid, computed from that time.
21
(2) The Authority may remit the whole or a part of an amount payable
22
under subsection (1) if:
23
(a) the Authority is satisfied that the person did not contribute to
24
the delay in payment and has taken reasonable steps to
25
mitigate the causes of the delay; or
26
(b) the Authority is satisfied:
27
(i) that the person contributed to the delay but has taken
28
reasonable steps to mitigate the causes of the delay; and
29
(ii) having regard to the nature of the reasons that caused
30
the delay, that it would be fair and reasonable to remit
31
some or all of the amount; or
32
(c) the Authority is satisfied that there are special circumstances
33
that make it reasonable to remit some or all of the amount.
34
Relinquishment of Australian emissions units Part 15
Compliance with relinquishment requirements Division 3
Section 289
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 349
289 Recovery of penalties
1
An amount payable under section 287 or 288:
2
(a) is a debt due to the Commonwealth; and
3
(b) may be recovered by the Authority, on behalf of the
4
Commonwealth, by action in a court of competent
5
jurisdiction.
6
290 Set-off
7
If:
8
(a) an amount (the first amount) is payable under section 287 or
9
288 by a person; and
10
(b) the following conditions are satisfied in relation to another
11
amount (the second amount):
12
(i) the amount is payable by the Commonwealth to the
13
person;
14
(ii) the amount is of a kind specified in the regulations;
15
the Authority may, on behalf of the Commonwealth, set off the
16
whole or a part of the first amount against the whole or a part of
17
the second amount.
18
291 Refund of overpayments
19
Refund
20
(1) If either of the following amounts has been overpaid by a person,
21
the amount overpaid must be refunded by the Commonwealth:
22
(a) an amount payable under section 287;
23
(b) an amount payable under section 288.
24
Note:
For appropriation, see section 28 of the Financial Management and
25
Accountability Act 1997.
26
Interest on overpayment
27
(2) If:
28
(a) an amount overpaid by a person is refunded by the
29
Commonwealth under subsection (1); and
30
Part 15 Relinquishment of Australian emissions units
Division 3 Compliance with relinquishment requirements
Section 291
350 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(b) the overpayment is attributable, in whole or in part, to an
1
error made by the Authority;
2
interest calculated in accordance with subsection (3) is payable by
3
the Commonwealth to the person in respect of the amount
4
refunded.
5
(3) Interest payable to a person under subsection (2) in respect of an
6
amount refunded to the person is to be calculated:
7
(a) in respect of the period that:
8
(i) began when the overpaid amount was paid to the
9
Commonwealth; and
10
(ii) ended when the amount was refunded; and
11
(b) at the base interest rate (within the meaning of section 8AAD
12
of the Taxation Administration Act 1953).
13
(4) The Consolidated Revenue Fund is appropriated for the purposes
14
of making payments of interest under subsection (2).
15
16
Notification of significant holding of Australian emissions units Part 16
Section 292
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 351
Part 16--Notification of significant holding of
1
Australian emissions units
2
3
292 Simplified outline
4
The following is a simplified outline of this Part:
5
·
The controlling corporation of a group must notify the
6
Authority if the group has a significant holding of Australian
7
emissions units.
8
·
A non-group entity must notify the Authority if the non-group
9
entity has a significant holding of Australian emissions units.
10
293 Notification of significant holding of Australian emissions
11
units--controlling corporation of a group
12
Scope
13
(1) This section applies to a controlling corporation if any of the
14
following events occurs:
15
(a) the controlling corporation's group begins to have a
16
significant holding of Australian emissions units with a
17
particular vintage year;
18
(b) the controlling corporation's group ceases to have a
19
significant holding of Australian emissions units with a
20
particular vintage year.
21
Note:
For significant holding, see subsection (7).
22
Notice
23
(2) The controlling corporation must, within 5 business days after
24
becoming aware of the event, give the Authority a written notice:
25
(a) informing the Authority of the event; and
26
(b) setting out the additional information mentioned in
27
subsection (3).
28
Part 16 Notification of significant holding of Australian emissions units
Section 293
352 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(3) The additional information to be set out in the notice is as follows:
1
(a) the name and address of the controlling corporation;
2
(b) for each member of the controlling corporation's group that,
3
immediately after the event, holds one or more Australian
4
emissions units with the vintage year:
5
(i) the name and address of the member; and
6
(ii) details of the member's holding of those Australian
7
emissions units;
8
(c) the total number of Australian emissions units with the
9
vintage year held by the members of the controlling
10
corporation's group immediately after the event;
11
(d) the percentage worked out using the following formula:
12
Total number of
Australian emissions units with the vintage year
held by the members of
the controlling corporation's group
immediately after the event
100
National scheme cap number for the vintage year
13
(e) such other information (if any) as is specified in the
14
regulations.
15
Ancillary contraventions
16
(4) A person must not:
17
(a) aid, abet, counsel or procure a contravention of
18
subsection (2); or
19
(b) induce, whether by threats or promises or otherwise, a
20
contravention of subsection (2); or
21
(c) be in any way, directly or indirectly, knowingly concerned in,
22
or party to, a contravention of subsection (2); or
23
(d) conspire with others to effect a contravention of
24
subsection (2).
25
Civil penalty provisions
26
(5) Subsections (2) and (4) are civil penalty provisions.
27
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
28
provisions.
29
Notification of significant holding of Australian emissions units Part 16
Section 294
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 353
Authority to publish notice
1
(6) If the Authority receives a notice under subsection (2), the
2
Authority must publish the notice on its website.
3
Significant holding
4
(7) For the purposes of this section, the controlling corporation's group
5
has a significant holding of Australian emissions units with a
6
particular vintage year if the percentage worked out using the
7
following formula is 5% or more:
8
Total number of
Australian emissions units with the vintage year
held by the members of
the controlling corporation's group
100
National scheme cap number for the vintage year
9
Exception
10
(8) Paragraphs (1)(a) and (b) do not apply to an Australian emissions
11
unit with a vintage year beginning on 1 July 2011.
12
294 Notification of significant holding of Australian emissions
13
units--non-group entity
14
Scope
15
(1) This section applies to a non-group entity if any of the following
16
events occurs:
17
(a) the non-group entity begins to have a significant holding of
18
Australian emissions units with a particular vintage year;
19
(b) the non-group entity ceases to have a significant holding of
20
Australian emissions units with a particular vintage year.
21
Note:
For significant holding, see subsection (7).
22
Notice
23
(2) The non-group entity must, within 5 business days after becoming
24
aware of the event, give the Authority a written notice:
25
(a) informing the Authority of the event; and
26
Part 16 Notification of significant holding of Australian emissions units
Section 294
354 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(b) setting out the additional information mentioned in
1
subsection (3).
2
(3) The additional information to be set out in the notice is as follows:
3
(a) the name and address of the non-group entity;
4
(b) the total number of Australian emissions units with the
5
vintage year held by the non-group entity immediately after
6
the event;
7
(c) the percentage worked out using the following formula:
8
Total number of
Australian emissions units with the vintage year
held by the non-group entity
immediately after the event
100
National scheme cap number for the vintage year
9
(d) such other information (if any) as is specified in the
10
regulations.
11
Ancillary contraventions
12
(4) A person must not:
13
(a) aid, abet, counsel or procure a contravention of
14
subsection (2); or
15
(b) induce, whether by threats or promises or otherwise, a
16
contravention of subsection (2); or
17
(c) be in any way, directly or indirectly, knowingly concerned in,
18
or party to, a contravention of subsection (2); or
19
(d) conspire with others to effect a contravention of
20
subsection (2).
21
Civil penalty provisions
22
(5) Subsections (2) and (4) are civil penalty provisions.
23
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
24
provisions.
25
Authority to publish notice
26
(6) If the Authority receives a notice under subsection (2), the
27
Authority must publish the notice on its website.
28
Notification of significant holding of Australian emissions units Part 16
Section 294
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 355
Significant holding
1
(7) For the purposes of this section, the non-group entity has a
2
significant holding of Australian emissions units with a particular
3
vintage year if the percentage worked out using the following
4
formula is 5% or more:
5
Total number of
Australian emissions units with the vintage year
held by the non-group entity
100
National scheme cap number for the vintage year
6
Exception
7
(8) Paragraphs (1)(a) and (b) do not apply to an Australian emissions
8
unit with a vintage year beginning on 1 July 2011.
9
10
Part 17 Information-gathering powers
Section 295
356 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Part 17--Information-gathering powers
1
2
295 Simplified outline
3
The following is a simplified outline of this Part:
4
·
The Authority may obtain information or documents.
5
296 Authority may obtain information or documents
6
Scope
7
(1) This section applies to a person if the Authority believes on
8
reasonable grounds that the person has information or a document
9
that is relevant to the operation of this Act or the associated
10
provisions.
11
Requirement
12
(2) The Authority may, by written notice given to the person, require
13
the person:
14
(a) to give to the Authority, within the period and in the manner
15
and form specified in the notice, any such information; or
16
(b) to produce to the Authority, within the period and in the
17
manner specified in the notice, any such documents; or
18
(c) to make copies of any such documents and to produce to the
19
Authority, within the period and in the manner specified in
20
the notice, those copies.
21
(3) A period specified under subsection (2) must not be shorter than 14
22
days after the notice is given.
23
Compliance
24
(4) A person must comply with a requirement under subsection (2) to
25
the extent that the person is capable of doing so.
26
Information-gathering powers Part 17
Section 297
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 357
Ancillary contraventions
1
(5) A person must not:
2
(a) aid, abet, counsel or procure a contravention of
3
subsection (4); or
4
(b) induce, whether by threats or promises or otherwise, a
5
contravention of subsection (4); or
6
(c) be in any way, directly or indirectly, knowingly concerned in,
7
or party to, a contravention of subsection (4); or
8
(d) conspire with others to effect a contravention of
9
subsection (4).
10
Civil penalty provisions
11
(6) Subsections (4) and (5) are civil penalty provisions.
12
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
13
provisions.
14
No limitation
15
(7) This section is not limited by:
16
(a) any other provision of this Act; or
17
(b) any provision of the National Greenhouse and Energy
18
Reporting Act 2007;
19
that relates to the powers of the Authority to obtain information or
20
documents.
21
297 Copying documents--compensation
22
A person is entitled to be paid by the Authority, on behalf of the
23
Commonwealth, reasonable compensation for complying with a
24
requirement covered by paragraph 296(2)(c).
25
298 Copies of documents
26
(1) The Authority may:
27
(a) inspect a document or copy produced under subsection
28
296(2); and
29
(b) make and retain copies of, or take and retain extracts from,
30
such a document.
31
Part 17 Information-gathering powers
Section 299
358 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(2) The Authority may retain possession of a copy of a document
1
produced in accordance with a requirement covered by paragraph
2
296(2)(c).
3
299 Authority may retain documents
4
(1) The Authority may take, and retain for as long as is necessary,
5
possession of a document produced under subsection 296(2).
6
(2) The person otherwise entitled to possession of the document is
7
entitled to be supplied, as soon as practicable, with a copy certified
8
by the Authority to be a true copy.
9
(3) The certified copy must be received in all courts and tribunals as
10
evidence as if it were the original.
11
(4) Until a certified copy is supplied, the Authority must, at such times
12
and places as the Authority thinks appropriate, permit the person
13
otherwise entitled to possession of the document, or a person
14
authorised by that person, to inspect and make copies of, or take
15
extracts from, the document.
16
300 Self-incrimination
17
(1) A person is not excused from giving information or producing a
18
document under section 296 on the ground that the information or
19
the production of the document might tend to incriminate the
20
person or expose the person to a penalty.
21
(2) However, in the case of an individual:
22
(a) the information given or the document produced; or
23
(b) giving the information or producing the document; or
24
(c) any information, document or thing obtained as a direct or
25
indirect consequence of giving the information or producing
26
the document;
27
is not admissible in evidence against the individual:
28
(d) in civil proceedings for the recovery of a penalty (other than
29
proceedings for the recovery of a penalty under section 133,
30
135, 287 or 288); or
31
Information-gathering powers Part 17
Section 300
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 359
(e) in criminal proceedings (other than proceedings for an
1
offence against section 137.1 or 137.2 of the Criminal Code
2
that relates to this Part).
3
4
Part 18 Record-keeping requirements
Section 301
360 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Part 18--Record-keeping requirements
1
2
301 Simplified outline
3
The following is a simplified outline of this Part:
4
·
The regulations may require a person to:
5
(a) make a record of information; and
6
(b) retain the record.
7
·
Records must be kept of the quotation of OTNs.
8
302 Record-keeping requirements--general
9
(1) The regulations may require a person to:
10
(a) make a record of specified information, where the
11
information is relevant to this Act; and
12
(b) retain:
13
(i) the record; or
14
(ii) a copy of the record;
15
for 5 years after the making of the record.
16
(2) If a person is subject to a requirement under regulations made for
17
the purposes of subsection (1), the person must comply with that
18
requirement.
19
Ancillary contraventions
20
(3) A person must not:
21
(a) aid, abet, counsel or procure a contravention of
22
subsection (2); or
23
(b) induce, whether by threats or promises or otherwise, a
24
contravention of subsection (2); or
25
(c) be in any way, directly or indirectly, knowingly concerned in,
26
or party to, a contravention of subsection (2); or
27
Record-keeping requirements Part 18
Section 303
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 361
(d) conspire with others to effect a contravention of
1
subsection (2).
2
Civil penalty provisions
3
(4) Subsections (2) and (3) are civil penalty provisions.
4
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
5
provisions.
6
Other provisions do not limit this section
7
(5) This section is not limited by:
8
(a) any other provision of this Act; or
9
(b) a provision of the National Greenhouse and Energy
10
Reporting Act 2007;
11
that relates to the keeping or retention of records.
12
303 Record-keeping requirements--quotation of OTN
13
Scope
14
(1) This section applies if:
15
(a) a person (the supplier) supplies an amount of:
16
(i) eligible upstream fuel; or
17
(ii) synthetic greenhouse gas;
18
to another person (the recipient); and
19
(b) the recipient quotes the recipient's OTN in relation to the
20
supply; and
21
(c) the supplier does not, under section 65, reject the quotation of
22
the recipient's OTN in relation to the supply.
23
Record-keeping requirements
24
(2) The supplier must retain:
25
(a) the statement by which the quotation was made; or
26
(b) a copy of that statement;
27
for 5 years after the quotation occurred.
28
(3) The recipient must:
29
Part 18 Record-keeping requirements
Section 304
362 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(a) make a copy of the statement by which the quotation was
1
made; and
2
(b) retain that copy for 5 years after the quotation occurred.
3
Civil penalty
4
(4) Subsections (2) and (3) are civil penalty provisions.
5
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
6
provisions.
7
304 Record-keeping requirements--rejection of quotation of OTN
8
Scope
9
(1) This section applies if:
10
(a) a person (the supplier) supplies an amount of:
11
(i) eligible upstream fuel; or
12
(ii) synthetic greenhouse gas;
13
to another person (the recipient); and
14
(b) the recipient quotes the recipient's OTN in relation to the
15
supply; and
16
(c) under section 65, the supplier rejects the quotation of the
17
recipient's OTN in relation to the supply.
18
Record-keeping requirements
19
(2) The supplier must:
20
(a) make a record of the rejection; and
21
(b) retain:
22
(i) the record; or
23
(ii) a copy of the record;
24
for 5 years after the making of the record.
25
Civil penalty
26
(3) Subsection (2) is a civil penalty provision.
27
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
28
provisions.
29
30
Monitoring powers Part 19
Simplified outline Division 1
Section 305
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 363
Part 19--Monitoring powers
1
Division 1--Simplified outline
2
305 Simplified outline
3
The following is a simplified outline of this Part:
4
·
An inspector may enter premises for the purpose of:
5
(a) determining whether this Act or the associated
6
provisions have been complied with; or
7
(b) substantiating information provided under this Act
8
or the associated provisions.
9
·
Entry must be with the consent of the occupier of the premises
10
or under a monitoring warrant.
11
·
An inspector who enters premises may exercise monitoring
12
powers. The inspector may be assisted by other persons if that
13
assistance is necessary and reasonable.
14
·
The occupier of the premises has certain rights and
15
responsibilities.
16
17
Part 19 Monitoring powers
Division 2 Appointment of inspectors and issue of identity cards
Section 306
364 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Division 2--Appointment of inspectors and issue of
1
identity cards
2
306 Appointment of inspectors
3
(1) The Authority may, in writing, appoint:
4
(a) a member of the staff of the Authority who:
5
(i) is an SES employee or acting SES employee; or
6
(ii) holds or performs the duties of an APS Executive Level
7
1 or 2 position or an equivalent position; or
8
(b) a member or special member of the Australian Federal
9
Police;
10
as an inspector for the purposes of this Act.
11
(2) The Authority must not appoint a person as an inspector unless the
12
Authority is satisfied that the person has suitable qualifications and
13
experience to properly exercise the powers of an inspector.
14
(3) An inspector must, in exercising powers as an inspector, comply
15
with any directions of the Authority.
16
(4) If a direction is given under subsection (3) in writing, the direction
17
is not a legislative instrument.
18
307 Identity cards
19
(1) The Authority must issue an identity card to an inspector.
20
Form of identity card
21
(2) The identity card must:
22
(a) be in the form prescribed by the regulations; and
23
(b) contain a recent photograph of the inspector.
24
Offence
25
(3) A person commits an offence if:
26
(a) the person has been issued with an identity card; and
27
(b) the person ceases to be an inspector; and
28
Monitoring powers Part 19
Appointment of inspectors and issue of identity cards Division 2
Section 307
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 365
(c) the person does not, as soon as practicable after so ceasing,
1
return the identity card to the Authority.
2
Penalty: 1 penalty unit.
3
(4) An offence against subsection (3) is an offence of strict liability.
4
Note:
For strict liability, see section 6.1 of the Criminal Code.
5
Defence--card lost or destroyed
6
(5) Subsection (3) does not apply if the identity card was lost or
7
destroyed.
8
Note:
A defendant bears an evidential burden in relation to the matter in this
9
subsection: see subsection 13.3(3) of the Criminal Code.
10
Inspector must carry card
11
(6) An inspector must carry his or her identity card at all times when
12
exercising powers as an inspector.
13
14
Part 19 Monitoring powers
Division 3 Powers of inspectors
Section 308
366 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Division 3--Powers of inspectors
1
Subdivision A--Monitoring powers
2
308 Inspector may enter premises by consent or under a warrant
3
(1) For the purpose of:
4
(a) determining whether this Act or the associated provisions
5
have been, or are being, complied with; or
6
(b) substantiating information provided under this Act or the
7
associated provisions;
8
an inspector may:
9
(c) enter any premises; and
10
(d) exercise the monitoring powers set out in section 309.
11
(2) However, an inspector is not authorised to enter the premises
12
unless:
13
(a) the occupier of the premises has consented to the entry and
14
the inspector has shown his or her identity card if required by
15
the occupier; or
16
(b) the entry is made under a monitoring warrant.
17
Note:
If entry to the premises is with the occupier's consent, the inspector
18
must leave the premises if the consent ceases to have effect: see
19
section 313.
20
309 Monitoring powers of inspectors
21
(1) The following are the monitoring powers that an inspector may
22
exercise in relation to premises under section 308:
23
(a) the power to search the premises and any thing on the
24
premises;
25
(b) the power to examine any activity conducted on the premises;
26
(c) the power to inspect, examine, take measurements of or
27
conduct tests on any thing on the premises;
28
(d) the power to make any still or moving image or any
29
recording of the premises or any thing on the premises;
30
(e) the power to inspect any document on the premises;
31
Monitoring powers Part 19
Powers of inspectors Division 3
Section 309
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 367
(f) the power to take extracts from, or make copies of, any such
1
document;
2
(g) the power to take onto the premises such equipment and
3
materials as the inspector requires for the purpose of
4
exercising powers in relation to the premises;
5
(h) the powers set out in subsections (2), (3) and (5).
6
Operating electronic equipment
7
(2) The monitoring powers include the power to operate electronic
8
equipment on the premises to see whether:
9
(a) the equipment; or
10
(b) a disk, tape or other storage device that:
11
(i) is on the premises; and
12
(ii) can be used with the equipment or is associated with it;
13
contains information that is relevant to:
14
(c) determining whether this Act or the associated provisions
15
have been, or are being, complied with; or
16
(d) substantiating information provided under this Act or the
17
associated provisions.
18
(3) The monitoring powers include the following powers in relation to
19
information described in subsection (2) found in the exercise of the
20
power under that subsection:
21
(a) the power to operate electronic equipment on the premises to
22
put the information in documentary form and remove the
23
documents so produced from the premises;
24
(b) the power to operate electronic equipment on the premises to
25
transfer the information to a disk, tape or other storage device
26
that:
27
(i) is brought to the premises for the exercise of the power;
28
or
29
(ii) is on the premises and the use of which for that purpose
30
has been agreed in writing by the occupier of the
31
premises;
32
and remove the disk, tape or other storage device from the
33
premises.
34
Part 19 Monitoring powers
Division 3 Powers of inspectors
Section 309
368 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(4) An inspector may operate electronic equipment as mentioned in
1
subsection (2) or (3) only if he or she believes on reasonable
2
grounds that the operation of the equipment can be carried out
3
without damage to the equipment.
4
Securing things if entry to premises is under a monitoring warrant
5
(5) If entry to the premises is under a monitoring warrant, the
6
monitoring powers include the power to secure a thing for a period
7
not exceeding 24 hours if:
8
(a) the thing is found during the exercise of monitoring powers
9
on the premises; and
10
(b) an inspector believes on reasonable grounds that:
11
(i) the thing affords evidence of the commission of an
12
offence against this Act or of an offence against the
13
Crimes Act 1914 or the Criminal Code that relates to
14
this Act; and
15
(ii) it is necessary to secure the thing in order to prevent it
16
from being concealed, lost or destroyed before a warrant
17
to seize the thing is obtained; and
18
(iii) the circumstances are serious and urgent.
19
(6) If an inspector believes on reasonable grounds that the thing needs
20
to be secured for more than 24 hours, he or she may apply to a
21
magistrate for an extension of that period.
22
(7) The inspector must give notice to the occupier of the premises, or
23
another person who apparently represents the occupier, of his or
24
her intention to apply for an extension. The occupier or other
25
person is entitled to be heard in relation to that application.
26
(8) The provisions of this Part relating to the issue of monitoring
27
warrants apply, with such modifications as are necessary, to the
28
issue of an extension.
29
(9) The 24 hour period may be extended more than once.
30
Monitoring powers Part 19
Powers of inspectors Division 3
Section 310
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 369
310 Persons assisting inspectors
1
Inspectors may be assisted by other persons
2
(1) An inspector may, in entering premises under section 308 and in
3
exercising monitoring powers in relation to the premises, be
4
assisted by other persons if that assistance is necessary and
5
reasonable. A person giving such assistance is a person assisting
6
the inspector.
7
Powers of a person assisting the inspector
8
(2) A person assisting the inspector may:
9
(a) enter the premises; and
10
(b) exercise monitoring powers in relation to the premises, but
11
only in accordance with a direction given to the person by the
12
inspector.
13
(3) A power exercised by a person assisting the inspector as mentioned
14
in subsection (2) is taken for all purposes to have been exercised by
15
the inspector.
16
(4) If a direction is given under paragraph (2)(b) in writing, the
17
direction is not a legislative instrument.
18
Subdivision B--Powers of inspectors to ask questions and seek
19
production of documents
20
311 Inspector may ask questions and seek production of documents
21
Entry with consent
22
(1) If an inspector is authorised to enter premises because the occupier
23
of the premises consented to the entry, the inspector may ask the
24
occupier to:
25
(a) answer any questions relating to the operation of this Act or
26
the associated provisions that are put by the inspector; and
27
(b) produce any document relating to the operation of this Act or
28
the associated provisions that is requested by the inspector.
29
Part 19 Monitoring powers
Division 3 Powers of inspectors
Section 312
370 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Entry under a monitoring warrant
1
(2) If an inspector is authorised to enter premises by a monitoring
2
warrant, the inspector may require any person on the premises to:
3
(a) answer any questions relating to the operation of this Act or
4
the associated provisions that are put by the inspector; and
5
(b) produce any document relating to the operation of this Act or
6
the associated provisions that is requested by the inspector.
7
Offence
8
(3) A person commits an offence if:
9
(a) the person is subject to a requirement under subsection (2);
10
and
11
(b) the person fails to comply with the requirement.
12
Penalty: Imprisonment for 6 months or 30 penalty units, or both.
13
312 Self-incrimination
14
(1) A person is not excused from giving an answer or producing a
15
document under section 311 on the ground that the answer or the
16
production of the document might tend to incriminate the person or
17
expose the person to a penalty.
18
(2) However, in the case of an individual:
19
(a) the answer given or the document produced; or
20
(b) giving the answer or producing the document; or
21
(c) any information, document or thing obtained as a direct or
22
indirect consequence of giving the answer or producing the
23
document;
24
is not admissible in evidence against the individual:
25
(d) in civil proceedings for the recovery of a penalty (other than
26
proceedings for the recovery of a penalty under section 133,
27
135, 287 or 288); or
28
(e) in criminal proceedings (other than proceedings for an
29
offence against section 137.1 or 137.2 of the Criminal Code
30
that relates to this Part).
31
32
Monitoring powers Part 19
Obligations and incidental powers of inspectors Division 4
Section 313
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 371
Division 4--Obligations and incidental powers of
1
inspectors
2
313 Consent
3
(1) An inspector must, before obtaining the consent of an occupier of
4
premises for the purposes of paragraph 308(2)(a), inform the
5
occupier that the occupier may refuse consent.
6
(2) A consent has no effect unless the consent is voluntary.
7
(3) A consent may be expressed to be limited to entry during a
8
particular period. If so, the consent has effect for that period unless
9
the consent is withdrawn before the end of that period.
10
(4) A consent that is not limited as mentioned in subsection (3) has
11
effect until the consent is withdrawn.
12
(5) If an inspector entered premises because of the consent of the
13
occupier of the premises, the inspector, and any person assisting
14
the inspector, must leave the premises if the consent ceases to have
15
effect.
16
314 Announcement before entry under warrant
17
(1) An inspector must, before entering premises under a monitoring
18
warrant:
19
(a) announce that he or she is authorised to enter the premises;
20
and
21
(b) show his or her identity card to the occupier of the premises,
22
or to another person who apparently represents the occupier,
23
if the occupier or other person is present at the premises; and
24
(c) give any person at the premises an opportunity to allow entry
25
to the premises.
26
(2) However, an inspector is not required to comply with
27
subsection (1) if he or she believes on reasonable grounds that
28
immediate entry to the premises is required:
29
(a) to ensure the safety of a person; or
30
Part 19 Monitoring powers
Division 4 Obligations and incidental powers of inspectors
Section 315
372 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(b) to ensure that the effective execution of the warrant is not
1
frustrated.
2
(3) If:
3
(a) an inspector does not comply with subsection (1) because of
4
subsection (2); and
5
(b) the occupier of the premises, or another person who
6
apparently represents the occupier, is present at the premises;
7
the inspector must, as soon as practicable after entering the
8
premises, show his or her identity card to the occupier or other
9
person.
10
315 Inspector to be in possession of warrant
11
If a monitoring warrant is being executed in relation to premises,
12
an inspector executing the warrant must be in possession of the
13
warrant or a copy of the warrant.
14
316 Details of warrant etc. to be given to occupier
15
If:
16
(a) a monitoring warrant is being executed in relation to
17
premises; and
18
(b) the occupier of the premises, or another person who
19
apparently represents the occupier, is present at the premises;
20
an inspector executing the warrant must, as soon as practicable:
21
(c) make a copy of the warrant available to the occupier or other
22
person (which need not include the signature of the
23
magistrate who issued it); and
24
(d) inform the occupier or other person of the rights and
25
responsibilities of the occupier or other person under
26
Division 5.
27
317 Expert assistance to operate electronic equipment
28
(1) This section applies to premises to which a monitoring warrant
29
relates.
30
Monitoring powers Part 19
Obligations and incidental powers of inspectors Division 4
Section 317
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 373
Securing equipment
1
(2) If an inspector believes on reasonable grounds that:
2
(a) there is on the premises information that is relevant to:
3
(i) determining whether this Act or the associated
4
provisions have been, or are being, complied with; or
5
(ii) substantiating information provided under this Act or
6
the associated provisions;
7
and that may be accessible by operating electronic equipment
8
on the premises; and
9
(b) expert assistance is required to operate the equipment; and
10
(c) if he or she does not take action under this subsection, the
11
information may be destroyed, altered or otherwise interfered
12
with;
13
he or she may do whatever is necessary to secure the equipment,
14
whether by locking it up, placing a guard or other means.
15
(3) The inspector must give notice to the occupier of the premises, or
16
another person who apparently represents the occupier, of his or
17
her intention to secure the equipment and of the fact that the
18
equipment may be secured for up to 24 hours.
19
Period equipment may be secured
20
(4) The equipment may be secured:
21
(a) until the 24 hour period ends; or
22
(b) until the equipment has been operated by the expert;
23
whichever happens first.
24
Extensions
25
(5) If an inspector believes on reasonable grounds that the equipment
26
needs to be secured for more than 24 hours, he or she may apply to
27
a magistrate for an extension of that period.
28
(6) The inspector must give notice to the occupier of the premises, or
29
another person who apparently represents the occupier, of his or
30
her intention to apply for an extension. The occupier or other
31
person is entitled to be heard in relation to that application.
32
Part 19 Monitoring powers
Division 4 Obligations and incidental powers of inspectors
Section 318
374 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(7) The provisions of this Part relating to the issue of monitoring
1
warrants apply, with such modifications as are necessary, to the
2
issue of an extension.
3
(8) The 24 hour period may be extended more than once.
4
318 Compensation for damage to electronic equipment
5
(1) This section applies if:
6
(a) as a result of electronic equipment being operated as
7
mentioned in this Part:
8
(i) damage is caused to the equipment; or
9
(ii) the data recorded on the equipment is damaged; or
10
(iii) programs associated with the use of the equipment, or
11
with the use of the data, are damaged or corrupted; and
12
(b) the damage or corruption occurs because:
13
(i) insufficient care was exercised in selecting the person
14
who was to operate the equipment; or
15
(ii) insufficient care was exercised by the person operating
16
the equipment.
17
(2) The Commonwealth must pay the owner of the equipment, or the
18
user of the data or programs, such reasonable compensation for the
19
damage or corruption as the Commonwealth and the owner or user
20
agree on.
21
(3) However, if the owner or user and the Commonwealth fail to
22
agree, the owner or user may institute proceedings in the Federal
23
Court for such reasonable amount of compensation as the Court
24
determines.
25
(4) In determining the amount of compensation payable, regard is to
26
be had to whether the occupier of the premises, or the occupier's
27
employees and agents, if they were available at the time, provided
28
any appropriate warning or guidance on the operation of the
29
equipment.
30
(5) In this section:
31
damage, in relation to data, includes damage by erasure of data or
32
addition of other data.
33
Monitoring powers Part 19
Obligations and incidental powers of inspectors Division 4
Section 318
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 375
1
Part 19 Monitoring powers
Division 5 Occupier's rights and responsibilities
Section 319
376 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Division 5--Occupier's rights and responsibilities
1
319 Occupier entitled to observe execution of warrant
2
(1) If:
3
(a) a monitoring warrant is being executed in relation to
4
premises; and
5
(b) the occupier of the premises, or another person who
6
apparently represents the occupier, is present at the premises;
7
the occupier or other person is entitled to observe the execution of
8
the warrant.
9
(2) The right to observe the execution of the warrant ceases if the
10
occupier or other person impedes that execution.
11
(3) This section does not prevent the execution of the warrant in 2 or
12
more areas of the premises at the same time.
13
320 Occupier to provide inspector with facilities and assistance
14
(1) The occupier of premises to which a monitoring warrant relates, or
15
another person who apparently represents the occupier, must
16
provide:
17
(a) an inspector executing the warrant; and
18
(b) any person assisting the inspector;
19
with all reasonable facilities and assistance for the effective
20
exercise of their powers.
21
(2) A person commits an offence if:
22
(a) the person is subject to subsection (1); and
23
(b) the person fails to comply with that subsection.
24
Penalty: 30 penalty units.
25
26
Monitoring powers Part 19
Monitoring warrants Division 6
Section 321
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 377
Division 6--Monitoring warrants
1
321 Monitoring warrants
2
Application for warrant
3
(1) An inspector may apply to a magistrate for a warrant under this
4
section in relation to premises.
5
Issue of warrant
6
(2) The magistrate may issue the warrant if the magistrate is satisfied,
7
by information on oath or affirmation, that it is reasonably
8
necessary that one or more inspectors should have access to the
9
premises for the purpose of:
10
(a) determining whether this Act or the associated provisions
11
have been, or are being, complied with; or
12
(b) substantiating information provided under this Act or the
13
associated provisions.
14
(3) However, the magistrate must not issue the warrant unless the
15
inspector or some other person has given to the magistrate, either
16
orally or by affidavit, such further information (if any) as the
17
magistrate requires concerning the grounds on which the issue of
18
the warrant is being sought.
19
Content of warrant
20
(4) The warrant must:
21
(a) describe the premises to which the warrant relates; and
22
(b) state that the warrant is issued under this section; and
23
(c) state that the warrant is issued for the purpose of:
24
(i) determining whether this Act or the associated
25
provisions have been, or are being, complied with; or
26
(ii) substantiating information provided under this Act or
27
the associated provisions; and
28
(d) authorise one or more inspectors (whether or not named in
29
the warrant) from time to time while the warrant remains in
30
force:
31
Part 19 Monitoring powers
Division 6 Monitoring warrants
Section 321
378 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(i) to enter the premises; and
1
(ii) to exercise the powers set out in Divisions 3 and 4 in
2
relation to the premises; and
3
(e) state whether the entry is authorised to be made at any time
4
of the day or during specified hours of the day; and
5
(f) specify the day (not more than 6 months after the issue of the
6
warrant) on which the warrant ceases to be in force.
7
8
Monitoring powers Part 19
Powers of magistrates Division 7
Section 322
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 379
Division 7--Powers of magistrates
1
322 Powers of magistrates
2
Powers conferred personally
3
(1) A power conferred on a magistrate by this Part is conferred on the
4
magistrate:
5
(a) in a personal capacity; and
6
(b) not as a court or a member of a court.
7
Powers need not be accepted
8
(2) The magistrate need not accept the power conferred.
9
Protection and immunity
10
(3) A magistrate exercising a power conferred by this Part has the
11
same protection and immunity as if he or she were exercising the
12
power:
13
(a) as the court of which the magistrate is a member; or
14
(b) as a member of the court of which the magistrate is a
15
member.
16
17
Part 20 Liability of executive officers of bodies corporate
Section 323
380 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Part 20--Liability of executive officers of bodies
1
corporate
2
3
323 Simplified outline
4
The following is a simplified outline of this Part:
5
·
If a body corporate contravenes a civil penalty provision, and
6
an executive officer of the body corporate was involved in the
7
contravention, the officer will contravene a civil penalty
8
provision.
9
324 Civil penalties for executive officers of bodies corporate
10
(1) If:
11
(a) a body corporate contravenes a civil penalty provision; and
12
(b) an executive officer of the body corporate knew that, or was
13
reckless or negligent as to whether, the contravention would
14
occur; and
15
(c) the officer was in a position to influence the conduct of the
16
body corporate in relation to the contravention; and
17
(d) the officer failed to take all reasonable steps to prevent the
18
contravention;
19
the officer contravenes this subsection.
20
(2) For the purposes of subsection (1), the officer is reckless as to
21
whether the contravention would occur if:
22
(a) the officer is aware of a substantial risk that the contravention
23
would occur; and
24
(b) having regard to the circumstances known to the officer, it is
25
unjustifiable to take the risk.
26
(3) For the purposes of subsection (1), the officer is negligent as to
27
whether the contravention would occur if the officer's conduct
28
involves:
29
(a) such a great falling short of the standard of care that a
30
reasonable person would exercise in the circumstances; and
31
Liability of executive officers of bodies corporate Part 20
Section 325
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 381
(b) such a high risk that the contravention would occur;
1
that the conduct merits the imposition of a pecuniary penalty.
2
Civil penalty provision
3
(4) Subsection (1) is a civil penalty provision.
4
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
5
provisions.
6
325 Reasonable steps to prevent contravention
7
(1) For the purposes of section 324, in determining whether an
8
executive officer of a body corporate failed to take all reasonable
9
steps to prevent a contravention, the Federal Court may have
10
regard to all relevant matters, including:
11
(a) what action (if any) the officer took directed towards
12
ensuring the following (to the extent that the action is
13
relevant to the contravention):
14
(i) that the body corporate arranges regular professional
15
assessments of the body corporate's compliance with
16
civil penalty provisions;
17
(ii) that the body corporate implements any appropriate
18
recommendations arising from such an assessment;
19
(iii) that the body corporate's employees, agents and
20
contractors have a reasonable knowledge and
21
understanding of the requirements to comply with civil
22
penalty provisions in so far as those requirements affect
23
the employees, agents or contractors concerned; and
24
(b) what action (if any) the officer took when he or she became
25
aware of the contravention.
26
(2) This section does not limit section 324.
27
28
Part 21 Civil penalty orders
Section 326
382 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Part 21--Civil penalty orders
1
2
326 Simplified outline
3
The following is a simplified outline of this Part:
4
·
Pecuniary penalties are payable for contraventions of civil
5
penalty provisions.
6
326A References to Court
7
In this Part:
8
Court means:
9
(a) the Federal Court of Australia; or
10
(b) a court of a State or Territory that has jurisdiction in relation
11
to matters arising under this Act.
12
327 Civil penalty orders
13
(1) If a Court is satisfied that a person has contravened a civil penalty
14
provision, the Court may order the person to pay the
15
Commonwealth a pecuniary penalty.
16
(2) An order under subsection (1) is to be known as a civil penalty
17
order.
18
Determining amount of pecuniary penalty
19
(3) In determining the pecuniary penalty, the Court may have regard to
20
all relevant matters, including:
21
(a) the nature and extent of the contravention; and
22
(b) the nature and extent of any loss or damage suffered as a
23
result of the contravention; and
24
(c) the circumstances in which the contravention took place; and
25
(d) whether the person has previously been found by a court in
26
proceedings under this Act to have engaged in any similar
27
conduct; and
28
Civil penalty orders Part 21
Section 327
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 383
(e) the extent to which the person has co-operated with the
1
authorities; and
2
(f) if the person is a body corporate:
3
(i) the level of the employees, officers or agents of the
4
body corporate involved in the contravention; and
5
(ii) whether the body corporate exercised due diligence to
6
avoid the contravention; and
7
(iii) whether the body corporate had a corporate culture
8
conducive to compliance.
9
(4) The pecuniary penalty payable under subsection (1) by a body
10
corporate must not exceed:
11
(a) in the case of a contravention of subsection 68(1) or (2)--the
12
amount worked out under subsection (5); or
13
(b) in the case of a contravention of subsection 50A(1) or 68(3)
14
or (4)--500 penalty units for each contravention; or
15
(c) in the case of a contravention of subsection 163(1), (2) or
16
(5)--500 penalty units for each contravention; or
17
(d) otherwise--10,000 penalty units for each contravention.
18
(5) For the purposes of paragraph (4)(a), the amount is whichever is
19
the greater of the following amounts:
20
(a) if the court can determine the total value of the benefits that:
21
(i) have been obtained by one or more persons; and
22
(ii) are reasonably attributable to the contravention;
23
3 times that total value;
24
(b) in any case--10,000 penalty units.
25
(6) The pecuniary penalty payable under subsection (1) by a person
26
other than a body corporate must not exceed:
27
(a) in the case of a contravention of subsection 68(3) or (4)--100
28
penalty units for each contravention; or
29
(b) in the case of a contravention of subsection 50A(1) or 163(1),
30
(2) or (5)--100 penalty units for each contravention; or
31
(c) otherwise--2,000 penalty units for each contravention.
32
Part 21 Civil penalty orders
Section 328
384 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Civil enforcement of penalty
1
(7) A pecuniary penalty is a civil debt payable to the Commonwealth.
2
The Commonwealth may enforce the civil penalty order as if it
3
were an order made in civil proceedings against the person to
4
recover a debt due by the person. The debt arising from the order is
5
taken to be a judgment debt.
6
328 Who may apply for a civil penalty order
7
(1) Only the Authority may apply for a civil penalty order.
8
(2) Subsection (1) does not exclude the operation of the Director of
9
Public Prosecutions Act 1983.
10
329 2 or more proceedings may be heard together
11
The Court may direct that 2 or more proceedings for civil penalty
12
orders are to be heard together.
13
330 Time limit for application for an order
14
Proceedings for a civil penalty order may be started no later than 6
15
years after the contravention.
16
331 Civil evidence and procedure rules for civil penalty orders
17
The Court must apply the rules of evidence and procedure for civil
18
matters when hearing proceedings for a civil penalty order.
19
332 Civil proceedings after criminal proceedings
20
The Court must not make a civil penalty order against a person for
21
a contravention of a civil penalty provision if the person has been
22
convicted of an offence constituted by conduct that is substantially
23
the same as the conduct constituting the contravention.
24
333 Criminal proceedings during civil proceedings
25
(1) Proceedings for a civil penalty order against a person for a
26
contravention of a civil penalty provision are stayed if:
27
Civil penalty orders Part 21
Section 334
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 385
(a) criminal proceedings are started or have already been started
1
against the person for an offence; and
2
(b) the offence is constituted by conduct that is substantially the
3
same as the conduct alleged to constitute the contravention.
4
(2) The proceedings for the order may be resumed if the person is not
5
convicted of the offence. Otherwise, the proceedings for the order
6
are dismissed.
7
334 Criminal proceedings after civil proceedings
8
Criminal proceedings may be started against a person for conduct
9
that is substantially the same as conduct constituting a
10
contravention of a civil penalty provision regardless of whether a
11
civil penalty order has been made against the person.
12
335 Evidence given in proceedings for a civil penalty order not
13
admissible in criminal proceedings
14
Evidence of information given, or evidence of production of
15
documents, by an individual is not admissible in criminal
16
proceedings against the individual if:
17
(a) the individual previously gave the evidence or produced the
18
documents in proceedings for a civil penalty order against the
19
individual for a contravention of a civil penalty provision
20
(whether or not the order was made); and
21
(b) the conduct alleged to constitute the offence is substantially
22
the same as the conduct that was claimed to constitute the
23
contravention.
24
However, this does not apply to a criminal proceeding in respect of
25
the falsity of the evidence given by the individual in the
26
proceedings for the civil penalty order.
27
336 Mistake of fact
28
(1) A person is not liable to have a civil penalty order made against the
29
person for a contravention of a civil penalty provision if:
30
(a) at or before the time of the conduct constituting the
31
contravention, the person:
32
Part 21 Civil penalty orders
Section 337
386 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(i) considered whether or not facts existed; and
1
(ii) was under a mistaken but reasonable belief about those
2
facts; and
3
(b) had those facts existed, the conduct would not have
4
constituted a contravention of the civil penalty provision.
5
(2) For the purposes of subsection (1), a person may be regarded as
6
having considered whether or not facts existed if:
7
(a) the person had considered, on a previous occasion, whether
8
those facts existed in the circumstances surrounding that
9
occasion; and
10
(b) the person honestly and reasonably believed that the
11
circumstances surrounding the present occasion were the
12
same, or substantially the same, as those surrounding the
13
previous occasion.
14
(3) A person who wishes to rely on subsection (1) or (2) in
15
proceedings for a civil penalty order bears an evidential burden in
16
relation to that matter.
17
337 State of mind
18
Scope
19
(1) This section applies to proceedings for a civil penalty order against
20
a person for a contravention of any of the following civil penalty
21
provisions:
22
(aa) subsection 50A(1);
23
(a) subsection 52(1);
24
(b) subsection 53(1);
25
(c) subsection 54(1);
26
(d) subsection 55(1);
27
(e) subsection 65(2);
28
(ea) subsection 66A(1);
29
(ea) subsection 66A(2);
30
(f) subsection 67(1);
31
(g) subsection 68(1);
32
(h) subsection 68(2);
33
Civil penalty orders Part 21
Section 338
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 387
(i) subsection 163(1);
1
(j) subsection 163(2);
2
(k) subsection 164(4);
3
(l) subsection 173(1);
4
(m) subsection 173(2);
5
(n) subsection 225(2);
6
(o) subsection 226(2);
7
(p) subsection 226(4);
8
(q) subsection 235(2);
9
(r) subsection 293(2);
10
(s) subsection 294(2);
11
(t) subsection 296(4);
12
(u) subsection 302(2);
13
(v) subsection 303(2);
14
(w) subsection 303(3);
15
(x) subsection 304(2).
16
State of mind
17
(2) In the proceedings, it is not necessary to prove:
18
(a) the person's intention; or
19
(b) the person's knowledge; or
20
(c) the person's recklessness; or
21
(d) the person's negligence; or
22
(e) any other state of mind of the person.
23
(3) Subsection (2) does not affect the operation of section 336.
24
338 Continuing contraventions
25
(1) If an act or thing is required, under a civil penalty provision of this
26
Act, to be done within a particular period, or before a particular
27
time, then the obligation to do that act or thing continues (even if
28
the period has expired or the time has passed) until the act or thing
29
is done.
30
(2) A person who contravenes any of the following civil remedy
31
provisions:
32
Part 21 Civil penalty orders
Section 338
388 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(aa) subsection 50A(1);
1
(a) subsection 164(4), so far as that subsection relates to a
2
requirement mentioned in subsection 164(2);
3
(b) subsection 173(1);
4
(c) subsection 225(2);
5
(d) subsection 235(2);
6
(e) subsection 293(2);
7
(f) subsection 294(2);
8
(g) subsection 296(4);
9
commits a separate contravention of that provision in respect of
10
each day (including a day of the making of a relevant civil penalty
11
order or any subsequent day) during which the contravention
12
continues.
13
(3) The pecuniary penalty payable under subsection 327(1) for such a
14
separate contravention in respect of a particular day must not
15
exceed:
16
(a) in the case of a contravention of subsection 296(4)--10% of
17
the maximum pecuniary penalty that could have been
18
imposed for the contravention if subsection (2) had not been
19
enacted; or
20
(b) otherwise--5% of the maximum pecuniary penalty that could
21
have been imposed for the contravention if subsection (2) had
22
not been enacted.
23
24
Offences relating to administrative penalties Part 22
Section 339
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 389
Part 22--Offences relating to administrative
1
penalties
2
3
339 Simplified outline
4
The following is a simplified outline of this Part:
5
·
A person must not enter into a scheme with the intention of
6
securing or achieving the result that a body corporate or trust
7
will be unable to pay an administrative penalty payable under
8
this Act.
9
340 Scheme to avoid existing liability to pay administrative penalty
10
Intention
11
(1) A person commits an offence if:
12
(a) a penalty is due and payable by a body corporate or trust
13
under section 133 or 287; and
14
(b) at or after the time when the penalty became due and
15
payable, the person entered into a scheme; and
16
(c) the person entered into the scheme with the intention of
17
securing or achieving the result, either generally or for a
18
limited period, that the body corporate or trust:
19
(i) will be unable; or
20
(ii) will be likely to be unable; or
21
(iii) will continue to be unable; or
22
(iv) will be likely to continue to be unable;
23
having regard to the other debts of the body corporate or
24
trust, to pay the penalty.
25
Penalty: Imprisonment for 10 years or 10,000 penalty units, or
26
both.
27
(2) For the purposes of subsection (1), it is immaterial whether the
28
body corporate or the trustee of the trust is:
29
(a) the person mentioned in subsection (1); or
30
Part 22 Offences relating to administrative penalties
Section 341
390 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(b) a party to the scheme.
1
Knowledge or belief
2
(3) A person commits an offence if:
3
(a) a penalty is due and payable by a body corporate or trust
4
under section 133 or 287; and
5
(b) at or after the time when the penalty became due and
6
payable, the person entered into a scheme; and
7
(c) the person entered into the scheme with the knowledge or
8
belief that the scheme will, or will be likely to, secure or
9
achieve the result, either generally or for a limited period,
10
that the body corporate or trust:
11
(i) will be unable; or
12
(ii) will be likely to be unable; or
13
(iii) will continue to be unable; or
14
(iv) will be likely to continue to be unable;
15
having regard to the other debts of the body corporate or
16
trust, to pay the penalty.
17
Penalty: Imprisonment for 10 years or 10,000 penalty units, or
18
both.
19
(4) For the purposes of subsection (3), it is immaterial whether the
20
body corporate or the trustee of the trust is:
21
(a) the person mentioned in subsection (3); or
22
(b) a party to the scheme.
23
341 Scheme to avoid future liability to pay administrative penalty
24
Intention
25
(1) A person commits an offence if:
26
(a) a penalty is due and payable by a body corporate or trust
27
under section 133 or 287; and
28
(b) before the penalty became due and payable, the person
29
entered into a scheme; and
30
(c) the person entered into the scheme with the intention of
31
securing or achieving the result, either generally or for a
32
Offences relating to administrative penalties Part 22
Section 341
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 391
limited period, that, in the event that the body corporate or
1
trust were to become liable to pay the penalty, the body
2
corporate or trust:
3
(i) will be unable; or
4
(ii) will be likely to be unable; or
5
(iii) will continue to be unable; or
6
(iv) will be likely to continue to be unable;
7
having regard to the other debts of the body corporate or
8
trust, to pay the penalty.
9
Penalty: Imprisonment for 10 years or 10,000 penalty units, or
10
both.
11
(2) For the purposes of subsection (1), it is immaterial whether the
12
body corporate or the trustee of the trust is:
13
(a) the person mentioned in subsection (1); or
14
(b) a party to the scheme.
15
Knowledge or belief
16
(3) A person commits an offence if:
17
(a) a penalty is due and payable by a body corporate or trust
18
under section 133 or 287; and
19
(b) before the penalty became due and payable, the person
20
entered into a scheme; and
21
(c) the person entered into the scheme with the knowledge or
22
belief that the scheme will, or will be likely to, secure or
23
achieve the result, either generally or for a limited period,
24
that, in the event that the body corporate or trust were to
25
become liable to pay the penalty, the body corporate or trust:
26
(i) will be unable; or
27
(ii) will be likely to be unable; or
28
(iii) will continue to be unable; or
29
(iv) will be likely to continue to be unable;
30
having regard to the other debts of the body corporate or
31
trust, to pay the penalty.
32
Penalty: Imprisonment for 10 years or 10,000 penalty units, or
33
both.
34
Part 22 Offences relating to administrative penalties
Section 341
392 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(4) For the purposes of subsection (3), it is immaterial whether the
1
body corporate or the trustee of the trust is:
2
(a) the person mentioned in subsection (3); or
3
(b) a party to the scheme.
4
5
Enforceable undertakings Part 23
Section 342
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 393
Part 23--Enforceable undertakings
1
2
342 Simplified outline
3
The following is a simplified outline of this Part:
4
·
A person may give the Authority an enforceable undertaking
5
about compliance with this Act or the associated provisions.
6
343 Acceptance of undertakings
7
(1) The Authority may accept any of the following undertakings:
8
(a) a written undertaking given by a person that the person will,
9
in order to comply with this Act or the associated provisions,
10
take specified action;
11
(b) a written undertaking given by a person that the person will,
12
in order to comply with this Act or the associated provisions,
13
refrain from taking specified action;
14
(c) a written undertaking given by a person that the person will
15
take specified action directed towards ensuring that the
16
person does not contravene this Act or the associated
17
provisions, or is unlikely to contravene this Act or the
18
associated provisions, in the future.
19
(2) The undertaking must be expressed to be an undertaking under this
20
section.
21
(3) The person may withdraw or vary the undertaking at any time, but
22
only with the consent of the Authority.
23
(4) The Authority may, by written notice given to the person, cancel
24
the undertaking.
25
(5) The Authority must publish the undertaking on its website.
26
344 Enforcement of undertakings
27
(1) If:
28
(a) a person has given an undertaking under section 343; and
29
Part 23 Enforceable undertakings
Section 344
394 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(b) the undertaking has not been withdrawn or cancelled; and
1
(c) the Authority considers that the person has breached the
2
undertaking;
3
the Authority may apply to the Federal Court for an order under
4
subsection (2).
5
(2) If the Federal Court is satisfied that the person has breached the
6
undertaking, the court may make any or all of the following orders:
7
(a) an order directing the person to comply with the undertaking;
8
(b) an order directing the person to pay to the Authority, on
9
behalf of the Commonwealth, an amount up to the amount of
10
any financial benefit that the person has obtained directly or
11
indirectly and that is reasonably attributable to the breach;
12
(c) any order that the court considers appropriate directing the
13
person to compensate any other person who has suffered loss
14
or damage as a result of the breach;
15
(d) any other order that the court considers appropriate.
16
17
Review of decisions Part 24
Section 345
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 395
Part 24--Review of decisions
1
2
345 Simplified outline
3
The following is a simplified outline of this Part:
4
·
Certain decisions of delegates of the Authority may be
5
reviewed by the Administrative Appeals Tribunal following a
6
process of internal reconsideration by the Authority.
7
·
Certain decisions of the Authority may be reviewed by the
8
Administrative Appeals Tribunal.
9
346 Reviewable decisions
10
For the purposes of this Act, each of the following decisions of the
11
Authority is a reviewable decision:
12
13
Reviewable decisions
Item
Decision
1
A decision to make a determination under subsection 23(2).
2
A decision to make a determination under subsection 30(2).
3
A decision to refuse to issue an OTN under section 44.
4
A decision to refuse to give consent to the surrender of an OTN under
section 46.
5
A decision to cancel an OTN under section 47.
6
A decision to refuse to declare that a person is an approved person for the
purposes of the application of subsection 56(2) in relation to an eligible
financial year.
7
A decision to refuse to issue a liability transfer certificate under section 72
or 76.
8
A decision to refuse to give consent to the surrender of a liability transfer
certificate under section 78.
9
A decision to cancel a liability transfer certificate under section 79.
10
A decision under subsection 97(5) to refuse to extend a period.
Part 24 Review of decisions
Section 346
396 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Reviewable decisions
Item
Decision
11
A prescribed decision under a subsection 103(1) determination.
12
A decision to make an assessment under section 126.
13
A decision under subsection 126(4) to amend an assessment under
section 126.
14
A decision under subsection 126(4) to refuse to amend an assessment under
section 126.
15
A decision to make an assessment under section 127.
16
A decision under subsection 127(4) to amend an assessment under
section 127.
17
A decision under subsection 127(4) to refuse to amend an assessment under
section 127.
18
A decision to make an assessment under section 131.
19
A decision under subsection 131(5) or (6) to amend an assessment under
section 131.
20
A decision under subsection 131(5) or (6) to refuse to amend an assessment
under section 131.
21
A decision under subsection 135(2) to refuse to remit the whole or a part of
an amount.
22
A decision under section 147 to refuse to open a Registry account.
23
A decision under section 155 to alter the Registry.
24
A decision to refuse to alter the Registry under section 155.
25
A decision under section 157 or 158 to make an alteration to the Registry.
26
A decision to refuse to make an alteration to the Registry under section 157
or 158.
27
A prescribed decision under the emissions-intensive trade-exposed
assistance program.
28
A decision under subsection 180(3) to state that a specified number is the
annual assistance factor in respect of a generation asset.
29
A decision to refuse to issue a certificate of eligibility for coal-fired
electricity generation assistance under section 180.
30
A decision to make a windfall gain declaration under section 186.
31
A decision under subsection 195(5) to state that a specified number is the
unit entitlement in respect of a certificate of reforestation.
Review of decisions Part 24
Section 346
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 397
Reviewable decisions
Item
Decision
32
A decision to refuse to issue a certificate of reforestation under section 195.
33
A decision to refuse to recognise a person as a reforestation entity under
section 201.
34
A decision under section 202 to cancel a person's recognition as a
reforestation entity.
35
A decision to refuse to declare that a reforestation project is an eligible
reforestation project under section 209.
36
A decision under section 212, 213 or 214 to vary an eligible reforestation
project declaration.
37
A decision under section 212 to refuse to vary an eligible reforestation
project declaration.
38
A decision under section 215, 216, 217, 218 or 219 to revoke an eligible
reforestation project declaration.
39
A decision under subsection 220(2) to declare that a specified number is the
reforestation unit limit for a project.
40
A decision under section 221 to refuse to increase the reforestation unit limit
for a project.
41
A decision under section 222 to decrease the reforestation unit limit for a
project.
42
A decision to give a direction under subsection 226(3).
43
A decision under section 232 or 233 to require a person to relinquish a
specified number of Australian emissions units.
44
A decision to refuse to approve a relinquishment obligation transfer
agreement under section 234.
45
A decision to refuse to issue a certificate of eligible synthetic greenhouse
gas destruction under section 249.
46
A decision under subsection 249(3) to state that a specified number is the
unit entitlement in respect of a certificate of eligible synthetic greenhouse
gas destruction.
47
A decision to refuse to recognise a company as a synthetic greenhouse gas
destruction customer under section 256.
48
A decision to cancel a company's recognition as a synthetic greenhouse gas
destruction customer under section 257.
49
A decision under section 262 to refuse to remove an entry for a person in the
Part 24 Review of decisions
Section 347
398 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Reviewable decisions
Item
Decision
Information Database.
50
A decision under subsection 288(2) to refuse to remit the whole or a part of
an amount.
347 Applications for reconsideration of decisions made by delegates
1
of the Authority
2
Scope
3
(1) This section applies to a reviewable decision if the decision is
4
made by a delegate of the Authority.
5
Application
6
(2) A person affected by a reviewable decision who is dissatisfied with
7
the decision may apply to the Authority for the Authority to
8
reconsider the decision.
9
(3) The application must:
10
(a) be in a form approved in writing by the Authority; and
11
(b) set out the reasons for the application; and
12
(c) be accompanied by the fee (if any) specified in a legislative
13
instrument made by the Authority.
14
(4) The application must be made within:
15
(a) 28 days after the applicant is informed of the decision; or
16
(b) if, either before or after the end of that period of 28 days, the
17
Authority extends the period within which the application
18
may be made--the extended period.
19
(5) An approved form of an application may provide for verification
20
by statutory declaration of statements in applications.
21
(6) A fee specified under paragraph (3)(c) must not be such as to
22
amount to taxation.
23
Review of decisions Part 24
Section 348
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 399
348 Reconsideration by the Authority
1
(1) Upon receiving such an application, the Authority must:
2
(a) reconsider the decision; and
3
(b) affirm, vary or revoke the decision.
4
(2) The Authority's decision on reconsideration of a decision has
5
effect as if it had been made under the provision under which the
6
original decision was made.
7
(3) The Authority must give to the applicant a written notice stating its
8
decision on the reconsideration.
9
(4) Within 28 days after making its decision on the reconsideration,
10
the Authority must give the applicant a written statement of its
11
reasons for its decision.
12
349 Deadline for reconsideration
13
(1) The Authority must make its decision on reconsideration of a
14
decision within 90 days after receiving an application for
15
reconsideration.
16
(2) The Authority is taken, for the purposes of this Part, to have made
17
a decision affirming the original decision if it has not informed the
18
applicant of its decision on the reconsideration before the end of
19
the period of 90 days.
20
350 Review by the Administrative Appeals Tribunal
21
(1) Applications may be made to the Administrative Appeals Tribunal
22
to review a reviewable decision if the Authority has affirmed or
23
varied the decision under section 348.
24
(2) Applications may be made to the Administrative Appeals Tribunal
25
to review a reviewable decision if the decision was not made by a
26
delegate of the Authority.
27
Part 24 Review of decisions
Section 351
400 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
351 Stay of proceedings for the recovery of an administrative
1
penalty
2
Scope
3
(1) This section applies if:
4
(a) proceedings for the recovery of an amount under section 133
5
or 135 are before a court; and
6
(b) in the proceedings, it is alleged that a person had a unit
7
shortfall for an eligible financial year; and
8
(c) the Authority has made an assessment under section 131 of
9
the unit shortfall; and
10
(d) any of the following subparagraphs applies:
11
(i) a decision to make, to amend, or to refuse to amend, the
12
assessment is being reconsidered by the Authority under
13
section 348;
14
(ii) a decision to make, to amend, or to refuse to amend, the
15
assessment has been affirmed or varied by the Authority
16
under section 348, and the decision as so affirmed or
17
varied is the subject of an application for review by the
18
Administrative Appeals Tribunal;
19
(iii) a decision to make, to amend, or to refuse to amend, the
20
assessment is the subject of an application for review by
21
the Administrative Appeals Tribunal.
22
Stay of proceedings
23
(2) The court may stay the proceedings until:
24
(a) if subparagraph (1)(d)(i) applies--the Authority notifies the
25
applicant for reconsideration of the Authority's decision on
26
the reconsideration; or
27
(b) if subparagraph (1)(d)(ii) or (iii) applies--the review by the
28
Administrative Appeals Tribunal (including any court
29
proceedings arising out of the review) has been finalised.
30
(3) This section does not limit the power of:
31
(a) a court; or
32
(b) a Judge; or
33
(c) a magistrate;
34
Review of decisions Part 24
Section 351
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 401
under any other law to order a stay of proceedings.
1
2
Part 25 Independent reviews
Division 1 Simplified outline
Section 352
402 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Part 25--Independent reviews
1
Division 1--Simplified outline
2
352 Simplified outline
3
The following is a simplified outline of this Part:
4
·
An expert advisory committee must conduct periodic reviews
5
of certain matters relating to the carbon pollution reduction
6
scheme.
7
·
The first review must be completed before the end of 30 June
8
2014.
9
·
Subsequent reviews will be conducted at 5-yearly intervals.
10
·
In addition to periodic reviews, an expert advisory committee
11
is to conduct a review of matters that:
12
(a) are specified by the Minister; and
13
(b) relate to the carbon pollution reduction scheme.
14
·
Members of expert advisory committees are to be appointed
15
by the Minister.
16
17
Independent reviews Part 25
Periodic reviews Division 2
Section 353
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 403
Division 2--Periodic reviews
1
353 Periodic reviews to be conducted by an expert advisory
2
committee
3
(1) Reviews of the following matters are to be conducted by an expert
4
advisory committee:
5
(a) the effectiveness and efficiency of the carbon pollution
6
reduction scheme, including:
7
(i) the effectiveness of reporting requirements imposed on
8
liable entities; and
9
(ii) the effectiveness of the coverage of emissions, and
10
potential emissions, of greenhouse gases; and
11
(iii) administrative costs incurred by liable entities in
12
complying with the scheme;
13
(b) whether national targets relating to emissions of greenhouse
14
gases should be changed or extended;
15
(c) the regulations that should be made for the purposes of
16
section 14 (national scheme cap);
17
(d) the regulations that should be made for the purposes of
18
section 15 (national scheme gateway);
19
(e) policies and procedures that should be applied by the
20
Authority in relation to the auctioning of Australian
21
emissions units;
22
(ea) the provisions that should apply in relation to the issue of
23
Australian emissions units for a fixed charge (to act as a price
24
cap);
25
(f) the extent to which units other than Australian emissions
26
units should be able to be surrendered;
27
(g) the extent to which a liable entity should be able to meet an
28
obligation under section 132 in relation to an eligible
29
financial year by surrendering an Australian emissions unit
30
with a vintage year that is later than the eligible financial
31
year;
32
(h) the emissions-intensive trade-exposed assistance program,
33
including:
34
(i) whether additional activities should be identified as
35
emissions-intensive trade-exposed activities, having
36
Part 25 Independent reviews
Division 2 Periodic reviews
Section 353
404 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
regard to changes in the coverage of the carbon
1
pollution reduction scheme, commodity price
2
movements and any other relevant matters;
3
(ii) whether the assistance provided under the
4
emissions-intensive trade-exposed assistance program is
5
an appropriate means of giving effect to the aim and
6
objects of Part 8;
7
(iii) whether the emissions-intensive trade-exposed
8
assistance program supports the competitiveness of
9
emissions-intensive trade-exposed activities carried on
10
in Australia;
11
(iv) the extent to which persons carrying out
12
emissions-intensive trade-exposed activities in Australia
13
are making progress towards world best practice energy
14
and emissions efficiency for the industry sector to which
15
those activities relate;
16
(v) the extent to which the carbon pollution reduction
17
scheme has resulted in an increase in the cost of
18
electricity, and the extent to which the increased cost
19
has been passed through to persons carrying on
20
emissions-intensive trade-exposed activities in
21
Australia;
22
(vi) the extent to which persons carrying out
23
emissions-intensive trade-exposed activities in Australia
24
have been able to pass on cost increases resulting from
25
the carbon pollution reduction scheme;
26
(vii) whether the emissions-intensive trade-exposed
27
assistance program is conferring windfall gains on
28
persons carrying out emissions-intensive trade-exposed
29
activities in Australia;
30
(viii) whether the sufficient measures mentioned in paragraph
31
165(2)(d) have been, or are likely to be, implemented as
32
mentioned in that paragraph and, if so, how assistance
33
under the emissions-intensive trade-exposed assistance
34
program may be terminated;
35
(ix) whether the sufficient measures mentioned in paragraph
36
165(2)(e) have been, or are likely to be, implemented
37
and, if so, how assistance under the emissions-intensive
38
trade-exposed assistance program may be terminated;
39
Independent reviews Part 25
Periodic reviews Division 2
Section 353
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 405
(x) whether any changes should be made to the
1
emissions-intensive trade-exposed assistance program
2
as a result of consideration of a matter mentioned in any
3
of the above subparagraphs and, if so, the timing of
4
those changes having regard to the general principle that
5
industry should be given at least 5 years notice of
6
material changes to the provision of assistance under the
7
program;
8
(i) the arrangements for the governance and administration of
9
the carbon pollution reduction scheme, including:
10
(i) the functions and powers of the Authority; and
11
(ii) the Minister's power to give directions to the Authority;
12
and
13
(iii) the other powers of the Minister;
14
(j) such other matters (if any) that:
15
(i) are specified in a written instrument given by the
16
Minister to the Chair of the expert advisory committee;
17
and
18
(ii) relate to the carbon pollution reduction scheme.
19
Note:
Expert advisory committees are established under section 357.
20
Timing of reviews
21
(2) The first review must be completed before the end of 30 June
22
2014.
23
(3) Each subsequent review must be completed within 5 years after the
24
last day on which a copy of a statement setting out the
25
Commonwealth Government's response to the recommendations of
26
the previous review was tabled in a House of the Parliament under
27
paragraph 354(6)(b).
28
(4) For the purposes of subsections (2) and (3), a review is completed
29
when the report of the review is given to the Minister under
30
section 354.
31
Consultation
32
(5) In conducting a review, an expert advisory committee must make
33
provision for public consultation.
34
Part 25 Independent reviews
Division 2 Periodic reviews
Section 354
406 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Relevant matters
1
(6) In conducting a review, an expert advisory committee must have
2
regard to:
3
(a) any policies of the Commonwealth Government notified to
4
the expert advisory committee by the Minister; and
5
(b) such other matters as the expert advisory committee
6
considers relevant.
7
Instrument
8
(7) An instrument given under paragraph (1)(j) is not a legislative
9
instrument.
10
354 Report of periodic review
11
(1) An expert advisory committee must:
12
(a) prepare a report of a review under section 353; and
13
(b) give the report to the Minister.
14
(2) The Minister must cause copies of the report to be tabled in each
15
House of the Parliament within 15 sitting days of that House after
16
receiving the report.
17
Recommendations
18
(3) The report may set out recommendations to the Commonwealth
19
Government.
20
(4) In formulating a recommendation that the Commonwealth
21
Government should take particular action, the expert advisory
22
committee must assess the costs and benefits of that action.
23
(5) Subsection (4) does not prevent the expert advisory committee
24
from taking other matters into account in formulating a
25
recommendation.
26
Government response to recommendations
27
(6) If a report sets out one or more recommendations to the
28
Commonwealth Government:
29
Independent reviews Part 25
Periodic reviews Division 2
Section 354
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 407
(a) as soon as practicable after receiving the report, the Minister
1
must cause to be prepared a statement setting out the
2
Commonwealth Government's response to the
3
recommendations; and
4
(b) within 6 months after receiving the report, the Minister must
5
cause copies of the statement to be tabled in each House of
6
the Parliament.
7
(7) The Commonwealth Government's response to the
8
recommendations may have regard to the views of the following:
9
(a) the Authority;
10
(b) such other persons as the Minister considers relevant.
11
12
Part 25 Independent reviews
Division 3 Special reviews
Section 355
408 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Division 3--Special reviews
1
355 Special reviews to be conducted by an expert advisory
2
committee
3
(1) An expert advisory committee is to conduct a review of such
4
matters that:
5
(a) are specified in a written instrument given by the Minister to
6
the Chair of the expert advisory committee; and
7
(b) relate to the carbon pollution reduction scheme.
8
Note:
Expert advisory committees are established under section 357.
9
Consultation
10
(2) In conducting a review, an expert advisory committee must make
11
provision for public consultation.
12
Relevant matters
13
(3) In conducting a review, an expert advisory committee must have
14
regard to:
15
(a) any policies of the Commonwealth Government notified to
16
the expert advisory committee by the Minister; and
17
(b) such other matters as the expert advisory committee
18
considers relevant.
19
Instrument
20
(4) An instrument given under paragraph (1)(a) is not a legislative
21
instrument.
22
356 Report of special review
23
(1) An expert advisory committee must:
24
(a) prepare a report of a review under section 355; and
25
(b) give the report to the Minister.
26
(2) The Minister must cause copies of the report to be tabled in each
27
House of the Parliament within 15 sitting days of that House after
28
receiving the report.
29
Independent reviews Part 25
Special reviews Division 3
Section 356
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 409
Recommendations
1
(3) The report may set out recommendations to the Commonwealth
2
Government.
3
(4) In formulating a recommendation that the Commonwealth
4
Government should take particular action, the expert advisory
5
committee must assess the costs and benefits of that action.
6
(5) Subsection (4) does not prevent the expert advisory committee
7
from taking other matters into account in formulating a
8
recommendation.
9
Government response to recommendations
10
(6) If a report sets out one or more recommendations to the
11
Commonwealth Government:
12
(a) as soon as practicable after receiving the report, the Minister
13
must cause to be prepared a statement setting out the
14
Commonwealth Government's response to the
15
recommendations; and
16
(b) within 6 months after receiving the report, the Minister must
17
cause copies of the statement to be tabled in each House of
18
the Parliament.
19
(7) The Commonwealth Government's response to the
20
recommendations may have regard to the views of the following:
21
(a) the Authority;
22
(b) such other persons as the Minister considers relevant.
23
24
Part 25 Independent reviews
Division 4 Expert advisory committees
Section 357
410 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Division 4--Expert advisory committees
1
357
Establishment of
expert advisory committees
2
(1) The Minister may, by writing, establish committees, to be known
3
as expert advisory committees.
4
Note:
For variation and revocation, see subsection 33(3) of the Acts
5
Interpretation Act 1901.
6
(2) An instrument made under subsection (1) is not a legislative
7
instrument.
8
358 Functions of an expert advisory committee
9
An expert advisory committee has the functions that are conferred
10
on it by this Part.
11
359 Membership of an expert advisory committee
12
An expert advisory committee consists of the following members:
13
(a) a Chair;
14
(b) at least 2, but not more than 4, other members.
15
360 Appointment of expert advisory committee members
16
(1) Each expert advisory committee member is to be appointed by the
17
Minister by written instrument.
18
Note:
The expert advisory committee member is eligible for reappointment:
19
see subsection 33(4A) of the Acts Interpretation Act 1901.
20
(2) A person is not eligible for appointment as an expert advisory
21
committee member unless the Minister is satisfied that the person
22
has:
23
(a) substantial experience or knowledge; and
24
(b) significant standing;
25
in at least one of the following fields:
26
(c) economics;
27
(d) law;
28
(e) Australian industry;
29
Independent reviews Part 25
Expert advisory committees Division 4
Section 361
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 411
(f) climate science;
1
(g) energy measurement and reporting;
2
(h) greenhouse gas emissions measurement and reporting;
3
(i) greenhouse gas abatement;
4
(j) financial markets;
5
(k) trading of environmental instruments.
6
(3) The Minister must ensure that:
7
(a) the Chair of an expert advisory committee is not a person
8
covered by subsection (4); and
9
(b) a majority of the other expert advisory committee members
10
are not persons covered by subsection (4).
11
(4) This subsection applies to the following persons:
12
(a) an employee of the Commonwealth;
13
(b) an employee of an authority of the Commonwealth;
14
(c) a person who holds a full-time office under a law of the
15
Commonwealth.
16
(5) A person is not eligible for appointment as an expert advisory
17
committee member if the person is a director, officer or employee
18
of another person who is a liable entity for the eligible financial
19
year in which the appointment is made.
20
(6) An expert advisory committee member holds office on a part-time
21
basis.
22
361 Period for appointment for expert advisory committee members
23
An expert advisory committee member holds office for the period
24
specified in the instrument of appointment. The period must not
25
exceed 5 years.
26
Note:
For re-appointment, see subsection 33(4A) of the Acts Interpretation
27
Act 1901.
28
Part 25 Independent reviews
Division 4 Expert advisory committees
Section 362
412 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
362 Acting expert advisory committee members
1
Acting Chair of expert advisory committee
2
(1) The Minister may appoint an expert advisory committee member
3
to act as the Chair of an expert advisory committee:
4
(a) during a vacancy in the office of the expert advisory
5
committee Chair (whether or not an appointment has
6
previously been made to the office); or
7
(b) during any period, or during all periods, when the Chair of an
8
expert advisory committee:
9
(i) is absent from duty or from Australia; or
10
(ii) is, for any reason, unable to perform the duties of the
11
office.
12
Acting expert advisory committee member (other than the Chair)
13
(2) The Minister may appoint a person to act as an expert advisory
14
committee member (other than the Chair of an expert advisory
15
committee):
16
(a) during a vacancy in the office of an expert advisory
17
committee member (other than the Chair of an expert
18
advisory committee), whether or not an appointment has
19
previously been made to the office; or
20
(b) during any period, or during all periods, when an expert
21
advisory committee member (other than the Chair of an
22
expert advisory committee):
23
(i) is absent from duty or Australia; or
24
(ii) is, for any reason, unable to perform the duties of the
25
office.
26
Eligibility
27
(3) A person is not eligible for appointment to act as:
28
(a) the Chair of an expert advisory committee; or
29
(b) an expert advisory committee member (other than the Chair
30
of an expert advisory committee);
31
unless the person is eligible for appointment as an expert advisory
32
committee member.
33
Independent reviews Part 25
Expert advisory committees Division 4
Section 363
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 413
Note:
See subsection 360(2).
1
Validation
2
(4) Anything done by or in relation to a person purporting to act under
3
an appointment is not invalid merely because:
4
(a) the occasion for the appointment had not arisen; or
5
(b) there was a defect or irregularity in connection with the
6
appointment; or
7
(c) the appointment ceased to have effect; or
8
(d) the occasion to act had not arisen or had ceased.
9
Note:
See sections 20 and 33A of the Acts Interpretation Act 1901.
10
363 Procedures
11
(1) The regulations may prescribe the procedures to be followed at or
12
in relation to meetings of an expert advisory committee, including
13
matters relating to the following:
14
(a) the convening of meetings of the expert advisory committee;
15
(b) the number of expert advisory committee members who are
16
to constitute a quorum;
17
(c) the selection of an expert advisory committee member to
18
preside at meetings of the expert advisory committee in the
19
absence of the Chair of the expert advisory committee;
20
(d) the manner in which questions arising at a meeting of the
21
expert advisory committee are to be decided.
22
(2) A resolution is taken to have been passed at a meeting of an expert
23
advisory committee if:
24
(a) without meeting, a majority of expert advisory committee
25
members indicate agreement with the resolution in
26
accordance with the method determined by the expert
27
advisory committee under subsection (3); and
28
(b) all expert advisory committee members were informed of the
29
proposed resolution, or reasonable efforts had been made to
30
inform all expert advisory committee members of the
31
proposed resolution.
32
(3) Subsection (2) applies only if the expert advisory committee:
33
Part 25 Independent reviews
Division 4 Expert advisory committees
Section 364
414 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(a) determines that it applies; and
1
(b) determines the method by which expert advisory committee
2
members are to indicate agreement with resolutions.
3
364 Disclosure of interests to the Minister
4
An expert advisory committee member must give written notice to
5
the Minister of all interests, pecuniary or otherwise, that the
6
member has or acquires and that conflict or could conflict with the
7
proper performance of the member's functions.
8
365 Disclosure of interests to expert advisory committee
9
(1) An expert advisory committee member who has an interest,
10
pecuniary or otherwise, in a matter being considered or about to be
11
considered by the expert advisory committee must disclose the
12
nature of the interest to a meeting of the expert advisory
13
committee.
14
(2) The disclosure must be made as soon as possible after the relevant
15
facts have come to the expert advisory committee member's
16
knowledge.
17
(3) The disclosure must be recorded in the minutes of the meeting of
18
the expert advisory committee.
19
(4) Unless the expert advisory committee otherwise determines, the
20
expert advisory committee member:
21
(a) must not be present during any deliberation by the expert
22
advisory committee on the matter; and
23
(b) must not take part in any decision of the expert advisory
24
committee with respect to the matter.
25
(5) For the purposes of making a determination under subsection (4),
26
the expert advisory committee member:
27
(a) must not be present during any deliberation of the expert
28
advisory committee for the purpose of making the
29
determination; and
30
(b) must not take part in making the determination.
31
Independent reviews Part 25
Expert advisory committees Division 4
Section 366
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 415
(6) A determination under subsection (4) must be recorded in the
1
minutes of the meeting of the expert advisory committee.
2
366 Outside employment
3
An expert advisory committee member must not engage in any
4
paid employment that conflicts or may conflict with the proper
5
performance of his or her duties.
6
367 Remuneration and allowances
7
(1) An expert advisory committee member is to be paid the
8
remuneration that is determined by the Remuneration Tribunal. If
9
no determination of that remuneration by the Tribunal is in
10
operation, the member is to be paid the remuneration that is
11
prescribed.
12
(2) An expert advisory committee member is to be paid the allowances
13
that are prescribed.
14
(3) This section has effect subject to the Remuneration Tribunal Act
15
1973.
16
368 Leave of absence
17
(1) The Minister may grant leave of absence to the Chair of an expert
18
advisory committee on the terms and conditions that the Minister
19
determines.
20
(2) The Chair of an expert advisory committee may grant leave of
21
absence to an expert advisory committee member on the terms and
22
conditions that the Chair determines.
23
369 Resignation
24
(1) An expert advisory committee member may resign his or her
25
appointment by giving the Minister a written resignation.
26
(2) The resignation takes effect on the day it is received by the
27
Minister or, if a later day is specified in the resignation, on that
28
later day.
29
Part 25 Independent reviews
Division 4 Expert advisory committees
Section 370
416 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
370 Termination of appointment
1
(1) The Minister may terminate the appointment of an expert advisory
2
committee member for misbehaviour or physical or mental
3
incapacity.
4
(2) The Minister may terminate the appointment of an expert advisory
5
committee member if:
6
(a) the member:
7
(i) becomes bankrupt; or
8
(ii) applies to take the benefit of any law for the relief of
9
bankrupt or insolvent debtors; or
10
(iii) compounds with his or her creditors; or
11
(iv) makes an assignment of remuneration for the benefit of
12
his or her creditors; or
13
(b) the member is absent, except on leave of absence, for 3
14
consecutive meetings of the expert advisory committee of
15
which he or she is a member; or
16
(c) the member engages in paid employment that conflicts or
17
may conflict with the proper performance of his or her duties
18
(see section 366); or
19
(d) the member fails, without reasonable excuse, to comply with
20
section 364 or 365.
21
(3) The Minister may terminate the appointment of the Chair of an
22
expert advisory committee if the Chair is:
23
(a) an employee of the Commonwealth; or
24
(b) an employee of an authority of the Commonwealth; or
25
(c) a person who holds a full-time office under a law of the
26
Commonwealth.
27
(4) The Minister may terminate the appointment of an expert advisory
28
committee member if the member is a director, officer or employee
29
of another person who is, or is likely to be, a liable entity for the
30
eligible financial year in which the termination occurs.
31
Independent reviews Part 25
Expert advisory committees Division 4
Section 371
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 417
371 Other terms and conditions
1
An expert advisory committee member holds office on the terms
2
and conditions (if any) in relation to matters not covered by this
3
Act that are determined by the Minister.
4
372 Assistance to expert advisory committee
5
(1) Any or all of the following:
6
(a) the Authority;
7
(b) the Department;
8
(c) any other Department, agency or authority of the
9
Commonwealth;
10
may assist an expert advisory committee in the performance of its
11
functions.
12
(2) The assistance may include the following:
13
(a) the provision of information;
14
(b) the provision of advice;
15
(c) the making available of resources and facilities (including
16
secretariat services and clerical assistance).
17
373 Consultants
18
(1) The Chair of an expert advisory committee may, on behalf of the
19
Commonwealth, engage persons having suitable qualifications and
20
experience as consultants to the committee.
21
(2) The consultants are to be engaged on the terms and conditions that
22
the Chair determines in writing.
23
24
Part 26 Miscellaneous
Section 374
418 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Part 26--Miscellaneous
1
2
374 Miscellaneous functions of the Authority
3
The Authority has the following functions:
4
(a) to monitor compliance with this Act and the associated
5
provisions;
6
(b) to promote compliance with this Act and the associated
7
provisions;
8
(c) to conduct and/or co-ordinate education programs about:
9
(i) this Act and the associated provisions; and
10
(ii) emissions trading schemes;
11
(d) to advise the Minister on matters relating to:
12
(i) this Act and the associated provisions; and
13
(ii) emissions trading schemes;
14
(e) to advise and assist persons in relation to their obligations
15
under this Act and the associated provisions;
16
(f) to advise and assist the representatives of persons in relation
17
to compliance by persons with this Act and the associated
18
provisions;
19
(g) to liaise with regulatory and other relevant bodies, whether in
20
Australia or elsewhere, about co-operative arrangements for
21
matters relating to:
22
(i) this Act and the associated provisions; and
23
(ii) emissions trading schemes;
24
(h) to collect, analyse, interpret and disseminate statistical
25
information relating to the operation of this Act and the
26
associated provisions.
27
374A Computerised decision-making
28
(1) The Authority may, by legislative instrument, arrange for the use,
29
under the Authority's control, of computer programs for any
30
purposes for which the Authority may, or must, under this Act or
31
the regulations:
32
(a) make a decision; or
33
Miscellaneous Part 26
Section 375
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 419
(b) exercise any power or comply with any obligation; or
1
(c) do anything else related to making a decision or exercising a
2
power or complying with an obligation.
3
(2) For the purposes of this Act and the regulations, the Authority is
4
taken to have:
5
(a) made a decision; or
6
(b) exercised a power or complied with an obligation; or
7
(c) done something else related to the making of a decision or
8
the exercise of a power or the compliance with an obligation;
9
that was made, exercised, complied with or done by the operation
10
of a computer program under such an arrangement.
11
375 Delegation by the Minister
12
(1) The Minister may, by writing, delegate any or all of his or her
13
functions or powers under this Act or the regulations to:
14
(a) the Secretary; or
15
(b) an SES employee, or acting SES employee, in the
16
Department.
17
Note:
The expressions SES employee and acting SES employee are defined
18
in section 17AA of the Acts Interpretation Act 1901.
19
(2) In exercising powers under a delegation, the delegate must comply
20
with any directions of the Minister.
21
(3) Subsection (1) does not apply to a power to make, vary or revoke a
22
legislative instrument.
23
376 Concurrent operation of State and Territory laws
24
This Act is not intended to exclude or limit the operation of a law
25
of a State or Territory that is capable of operating concurrently
26
with this Act.
27
377 Law relating to legal professional privilege not affected
28
The Act does not affect the law relating to legal professional
29
privilege.
30
Part 26 Miscellaneous
Section 378
420 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
378 Arrangements with States and Territories
1
States
2
(1) The Minister may make arrangements with a Minister of a State
3
with respect to the administration of this Act, including:
4
(a) arrangements for the performance of the functions of a
5
magistrate under this Act by a magistrate of that State; and
6
(b) arrangements for the exercise of the powers conferred by
7
section 236 on relevant land registration officials (within the
8
meaning of that section) of that State; and
9
(c) arrangements for the exercise of the powers conferred by
10
section 237 on relevant land registration officials (within the
11
meaning of that section) of that State.
12
(2) The Minister may arrange with a Minister of a State with whom an
13
arrangement is in force under subsection (1) for the variation or
14
revocation of the arrangement.
15
Australian Capital Territory
16
(3) The Minister may make arrangements with a Minister of the
17
Australian Capital Territory with respect to the administration of
18
this Act, including:
19
(a) arrangements for the performance of the functions of a
20
magistrate under this Act by a magistrate of the Australian
21
Capital Territory; or
22
(b) arrangements for the exercise of the powers conferred by
23
section 236 on relevant land registration officials (within the
24
meaning of that section) of the Australian Capital Territory;
25
and
26
(c) arrangements for the exercise of the powers conferred by
27
section 237 on relevant land registration officials (within the
28
meaning of that section) of the Australian Capital Territory.
29
(4) The Minister may arrange with a Minister of the Australian Capital
30
Territory for the variation or revocation of an arrangement in force
31
under subsection (3).
32
Miscellaneous Part 26
Section 378
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 421
Northern Territory
1
(5) The Minister may make arrangements with a Minister of the
2
Northern Territory with respect to the administration of this Act,
3
including:
4
(a) arrangements for the performance of the functions of a
5
magistrate under this Act by a magistrate of the Northern
6
Territory; and
7
(b) arrangements for the exercise of the powers conferred by
8
section 236 on relevant land registration officials (within the
9
meaning of that section) of the Northern Territory; and
10
(c) arrangements for the exercise of the powers conferred by
11
section 237 on relevant land registration officials (within the
12
meaning of that section) of the Northern Territory.
13
(6) The Minister may arrange with a Minister of the Northern Territory
14
for the variation or revocation of an arrangement in force under
15
subsection (5).
16
Norfolk Island
17
(7) The Minister may make arrangements with a Minister of Norfolk
18
Island with respect to the administration of this Act, including:
19
(a) arrangements for the performance of the functions of a
20
magistrate under this Act by a magistrate of Norfolk Island;
21
and
22
(b) arrangements for the exercise of the powers conferred by
23
section 236 on relevant land registration officials (within the
24
meaning of that section) of Norfolk Island; and
25
(c) arrangements for the exercise of the powers conferred by
26
section 237 on relevant land registration officials (within the
27
meaning of that section) of Norfolk Island.
28
(8) The Minister may arrange with a Minister of Norfolk Island for the
29
variation or revocation of an arrangement in force under
30
subsection (7).
31
Part 26 Miscellaneous
Section 379
422 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
Gazettal
1
(9) A copy of each instrument by which an arrangement under this
2
section is made, varied or revoked is to be published in the Gazette.
3
Legislative Instruments Act
4
(10) An instrument by which an arrangement under this section is made,
5
varied or revoked is not a legislative instrument.
6
379 Liability for damages
7
None of the following:
8
(a) the Minister;
9
(b) a delegate of the Minister;
10
(c) the Authority;
11
(d) an official of the Authority;
12
(e) a delegate of the Authority;
13
(f) a member of an expert advisory committee;
14
is liable to an action or other proceeding for damages for, or in
15
relation to, an act or matter in good faith done or omitted to be
16
done:
17
(g) in the performance or purported performance of any function;
18
or
19
(h) in the exercise or purported exercise of any power;
20
conferred by this Act or the associated provisions.
21
380 Executive power of the Commonwealth
22
This Act does not, by implication, limit the executive power of the
23
Commonwealth.
24
381 Notional payments by the Commonwealth
25
(1) The purpose of this section is to ensure that amounts payable under
26
this Act are notionally payable by the Commonwealth (or parts of
27
the Commonwealth).
28
Miscellaneous Part 26
Section 382
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 423
(2) The Minister responsible for administering the Financial
1
Management and Accountability Act 1997 may give written
2
directions for the purposes of this section, including directions
3
relating to the transfer of amounts within, or between, accounts
4
operated by the Commonwealth.
5
382 Alternative constitutional basis
6
(1) Without limiting its effect apart from this section, this Act and the
7
associated provisions also have effect as provided by this section.
8
Limited types of liable entities
9
(2) This Act and the associated provisions also have the effect they
10
would have if:
11
(a) subsections (3) to (6) had not been enacted; and
12
(b) each reference in this Act and the associated provisions to a
13
liable entity were, by express provision, confined to a liable
14
entity who is:
15
(i) a constitutional corporation; or
16
(ii) the Commonwealth; or
17
(iii) an authority of the Commonwealth.
18
Limited types of facilities
19
(3) This Act and the associated provisions also have the effect they
20
would have if subsection (2) had not been enacted and each
21
reference in this Act and the associated provisions to a facility
22
were, by express provision, confined to a facility:
23
(a) in a Territory; or
24
(b) outside Australia; or
25
(c) in a Commonwealth place; or
26
(d) over which the Commonwealth, or an authority of the
27
Commonwealth, has operational control; or
28
(e) operated in the course of, or in relation to, any of the
29
following:
30
(i) trade or commerce between Australia and places outside
31
Australia;
32
(ii) trade or commerce among the States;
33
Part 26 Miscellaneous
Section 382
424 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(iii) trade or commerce within a Territory, between a State
1
or Territory or between 2 Territories.
2
Limited types of supply or re-supply
3
(4) This Act and the associated provisions also have the effect they
4
would have if subsection (2) had not been enacted and each
5
reference in this Act and the associated provisions to supply or
6
re-supply were, by express provision, confined to supply or
7
re-supply:
8
(a) in a Territory; or
9
(b) outside Australia; or
10
(c) in a Commonwealth place; or
11
(d) by the Commonwealth or an authority of the Commonwealth;
12
or
13
(e) in the course of, or in relation to, any of the following:
14
(i) trade or commerce between Australia and places outside
15
Australia;
16
(ii) trade or commerce among the States;
17
(iii) trade or commerce within a Territory, between a State
18
or Territory or between 2 Territories.
19
Limited types of application to own use
20
(5) This Act and the associated provisions also have the effect they
21
would have if subsection (2) had not been enacted and each
22
reference in this Act and the associated provisions to application to
23
own use were, by express provision, confined to application to own
24
use:
25
(a) in a Territory; or
26
(b) outside Australia; or
27
(c) in a Commonwealth place; or
28
(d) by the Commonwealth or an authority of the Commonwealth;
29
or
30
(e) in the course of, or in relation to, any of the following:
31
(i) trade or commerce between Australia and places outside
32
Australia;
33
(ii) trade or commerce among the States;
34
Miscellaneous Part 26
Section 382
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 425
(iii) trade or commerce within a Territory, between a State
1
or Territory or between 2 Territories.
2
Limited types of manufacture or production
3
(6) This Act and the associated provisions also have the effect they
4
would have if subsection (2) had not been enacted and each
5
reference in this Act and the associated provisions to manufacture
6
or production were, by express provision, confined to manufacture
7
or production:
8
(a) in a Territory; or
9
(b) outside Australia; or
10
(c) in a Commonwealth place; or
11
(d) by the Commonwealth or an authority of the Commonwealth;
12
or
13
(e) in the course of, or in relation to, any of the following:
14
(i) trade or commerce between Australia and places outside
15
Australia;
16
(ii) trade or commerce among the States;
17
(iii) trade or commerce within a Territory, between a State
18
or Territory or between 2 Territories.
19
Emissions-intensive trade-exposed assistance program
20
(7) This Act and the associated provisions also have the effect they
21
would have if the reference in subsection 167(1) to the issue of free
22
Australian emissions units were, by express provision, confined to
23
the issue of free Australian emissions units to a person who is:
24
(a) a constitutional corporation; or
25
(b) the Commonwealth; or
26
(c) an authority of the Commonwealth.
27
Coal-fired electricity generation
28
(8) This Act and the associated provisions also have the effect they
29
would have if this Act provided that a person is not entitled to
30
make an application under section 177 for a certificate of eligibility
31
for coal-fired generation assistance unless the person is:
32
(a) a constitutional corporation; or
33
Part 26 Miscellaneous
Section 383
426 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
(b) the Commonwealth; or
1
(c) an authority of the Commonwealth.
2
Reforestation
3
(9) This Act and the associated provisions also have the effect they
4
would have if each reference in this Act to a carbon sequestration
5
right in relation to a reforestation project were, by express
6
provision, confined to:
7
(a) a carbon sequestration right held by:
8
(i) a constitutional corporation; or
9
(ii) the Commonwealth; or
10
(iii) an authority of the Commonwealth; or
11
(b) a carbon sequestration right in relation to a reforestation
12
project, where the project area is, or the project areas are:
13
(i) in a Territory; or
14
(ii) in a Commonwealth place.
15
Destruction of synthetic greenhouse gases
16
(10) This Act and the associated provisions also have the effect they
17
would have if this Act provided that a person is not entitled to
18
make an application under section 246 for a certificate of eligible
19
synthetic greenhouse gas destruction unless the person is:
20
(a) a constitutional corporation; or
21
(b) the Commonwealth; or
22
(c) an authority of the Commonwealth.
23
383 Compensation for acquisition of property
24
(1) If the operation of this Act or the regulations would result in an
25
acquisition of property from a person otherwise than on just terms,
26
the Commonwealth is liable to pay a reasonable amount of
27
compensation to the person.
28
(2) If the Commonwealth and the person do not agree on the amount
29
of the compensation, the person may institute proceedings in a
30
court of competent jurisdiction for the recovery from the
31
Miscellaneous Part 26
Section 384
Carbon Pollution Reduction Scheme Bill 2009 No. , 2009 427
Commonwealth of such reasonable amount of compensation as the
1
court determines.
2
(3) In this section:
3
acquisition of property has the same meaning as in paragraph
4
51(xxxi) of the Constitution.
5
just terms has the same meaning as in paragraph 51(xxxi) of the
6
Constitution.
7
384 Prescribing matters by reference to other instruments
8
(1) The regulations may make provision in relation to a matter by
9
applying, adopting or incorporating, with or without modification,
10
a matter contained in an instrument or writing:
11
(a) as in force or existing at a particular time; or
12
(b) as in force or existing from time to time.
13
(2) Subsection (1) has effect despite anything in subsection 14(2) of
14
the Legislative Instruments Act 2003.
15
(3) If the regulations make provision in relation to a matter by
16
applying, adopting or incorporating, with or without modification,
17
a matter contained in an instrument or writing, the Authority must
18
ensure that the text of the matter applied, adopted or incorporated
19
is published on its website.
20
(4) Subsection (3) does not apply if the publication would infringe
21
copyright.
22
385 Administrative decisions under the regulations
23
The regulations may make provision in relation to a matter by
24
conferring a power to make a decision of an administrative
25
character on the Authority.
26
Part 26 Miscellaneous
Section 386
428 Carbon Pollution Reduction Scheme Bill 2009 No. , 2009
386 Transitional--definitions
1
Scope
2
(1) This section applies to a definition in section 5 if that definition
3
defines an expression to have the same meaning as in the National
4
Greenhouse and Energy Reporting Act 2007.
5
Transitional
6
(2) The definition has effect as if the amendments of the National
7
Greenhouse and Energy Reporting Act 2007 made by Part 2 of
8
Schedule 1 to the Carbon Pollution Reduction Scheme
9
(Consequential Amendments) Act 2009 had commenced at the
10
same time as section 3 of this Act.
11
387 Regulations
12
The Governor-General may make regulations prescribing matters:
13
(a) required or permitted by this Act to be prescribed; or
14
(b) necessary or convenient to be prescribed for carrying out or
15
giving effect to this Act.
16