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This is a Bill, not an Act. For current law, see the Acts databases.
CARBON POLLUTION REDUCTION SCHEME BILL 2010
2008-2009-2010
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Carbon Pollution Reduction Scheme Bill
2010
No. , 2010
(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 2010 No. , 2010
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 ............................................................ 31
6 When
supply
occurs
.........................................................................
31
7
Vacancy in the office of an expert advisory committee
member ............................................................................................ 32
7A
Vacancy in the office of a Domestic Offsets Integrity
Committee member ......................................................................... 33
8
Electronic notice transmitted to the Authority ................................. 33
9
Crown to be bound ........................................................................... 34
10
Extension to external Territories ...................................................... 34
11
Extension to exclusive economic zone and continental shelf .......... 34
11A
Extension to Joint Petroleum Development Area ............................ 34
12 Application
to
foreign ships ............................................................. 34
Part 2--National scheme cap and national scheme gateway
36
13 Simplified
outline
............................................................................
36
14
National scheme cap ........................................................................ 36
15
National scheme gateway ................................................................ 39
Part 3--Liable entities
42
Division 1--Introduction
42
16 Simplified
outline
............................................................................
42
Division 2--Direct emitters of greenhouse gases
44
Subdivision A--General rules
44
17 Liable
entity--controlling
corporation of a group ........................... 44
18 Liable
entity--non-group entity ...................................................... 47
19
Liable entity--holder of a liability transfer certificate .................... 51
Subdivision B--Landfill facilities
54
20
Liable entity for landfill emissions--controlling corporation
of a group ......................................................................................... 54
21
Liable entity for landfill emissions--non-group entity .................... 59
22
Liable entity for landfill emissions--holder of a liability
transfer certificate ............................................................................ 64
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 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
69
22A Joint
Petroleum
Development Area--adjustment of
provisional emissions number.......................................................... 69
22B
Joint Petroleum Development Area-Greater Sunrise unit
area--adjustment of provisional emissions number ........................ 70
22C
Greater Sunrise unit area--adjustment of provisional
emissions number ............................................................................ 71
Subdivision C--Anti-avoidance
72
23 Anti-avoidance
.................................................................................
72
Subdivision D--Greenhouse gas emitted from the operation of a
facility
73
24
Greenhouse gas emitted from the operation of a facility ................. 73
25
Measurement of greenhouse gas emitted from the operation
of a facility ....................................................................................... 75
Division 3--Importers, manufacturers and suppliers of synthetic
greenhouse gases
76
26 Liable
entity--import
of
synthetic greenhouse gas ......................... 76
27
Liable entity--manufacture of synthetic greenhouse gas ................ 77
27A
Reduction of total provisional emissions numbers--
netted-out numbers .......................................................................... 78
28 Liable
entity--re-supply
of
synthetic greenhouse gas to
recipient who does not quote an OTN ............................................. 81
29
Liable entity--supply of synthetic greenhouse gas to a
person who misuses the person's OTN ............................................ 81
30 Anti-avoidance
.................................................................................
82
Division 4--Importers, producers and suppliers of eligible
upstream fuels
84
31 Liable
entity--import
of
liquid petroleum fuel ................................ 84
32
Liable entity--production of liquid petroleum fuel ......................... 85
32A
Reduction of total provisional emissions numbers under
section 31 or 32--netted-out numbers ............................................. 86
33
Liable entity--supply of untransformed eligible upstream
fuel (other than liquid petroleum fuel) ............................................. 88
33A
Liable entity--re-supply of natural gas previously supplied
out of a prescribed wholesale gas market ........................................ 89
34
Liable entity--application to own use of untransformed
eligible upstream fuel (other than liquid petroleum fuel) ................ 89
35
Liable entity--supply of transformed eligible upstream fuel .......... 90
iii Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
36
Liable entity--application of transformed eligible upstream
fuel to own use ................................................................................. 91
37 Liable
entity--re-supply
of
eligible upstream fuel .......................... 92
37A
Exclusion of exported eligible upstream fuel .................................. 93
38
Liable entity--application of eligible upstream fuel to OTN
holder's own use .............................................................................. 95
39
Liable entity--application of transformed eligible upstream
fuel to OTN holder's own use .......................................................... 96
40
Liable entity--supply of eligible upstream fuel to a person
who misuses the person's OTN ....................................................... 97
Division 5--Obligation transfer numbers
98
Subdivision A--Issue of obligation transfer numbers
98
41
Issue of OTN .................................................................................... 98
42 Application
for
OTN
........................................................................
98
43 Further
information
..........................................................................
98
44
Issue of OTN as the result of an application .................................... 99
45
Issue of OTN on the Authority's own initiative ............................. 100
46 Surrender
of
OTN
..........................................................................
100
47
Cancellation of OTN ...................................................................... 101
48
OTN is not transferable .................................................................. 101
49 OTN
Register
.................................................................................
101
50 Evidentiary
provisions
...................................................................
102
50A
Notification of change of name or address of OTN holder ............ 102
Subdivision B--Methods of quotation of obligation transfer
numbers
103
51 Quotation
of
OTN
..........................................................................
103
51A One-off
quotation of OTN ............................................................. 104
51B Standing
quotation of OTN ............................................................ 105
51BA
Withdrawal of quotation of OTN if OTN is cancelled or
surrendered .................................................................................... 106
51C
Withdrawal of standing quotation of OTN by OTN holder ........... 106
51D
Withdrawal of quotation of OTN by agreement ............................ 106
51E Validation
of
quotation of OTN ..................................................... 107
51F
Effect of surrender or cancellation of OTN--grace period for
standing quotation .......................................................................... 107
51G
Effect of surrender or cancellation of OTN--grace period for
one-off quotation ........................................................................... 108
Subdivision C--Mandatory quotation of obligation transfer
numbers
109
52
Mandatory quotation of OTN--large user of eligible
upstream fuel ................................................................................. 109
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 iv
53
Mandatory quotation of OTN--re-supplier of natural gas ............. 110
54
Mandatory quotation of OTN--liquid petroleum gas
marketer ......................................................................................... 111
55
Mandatory quotation of OTN--use of certain fuels as a
feedstock ........................................................................................ 112
Subdivision D--Voluntary quotation of obligation transfer
numbers
113
56
Voluntary quotation of OTN--large user of eligible
upstream fuel ................................................................................. 113
58
Voluntary quotation of OTN--use of fuel in manufacturing
other products etc. .......................................................................... 115
59
Voluntary quotation of OTN--transformation of fuel ................... 115
60
Voluntary quotation of OTN--export or re-supply of eligible
upstream fuel ................................................................................. 116
63
Voluntary quotation of OTN--re-supply of synthetic
greenhouse gas ............................................................................... 116
64
Voluntary quotation of OTN--export or re-supply of
synthetic greenhouse gas ............................................................... 116
64AA
Voluntary quotation of OTN--use of synthetic greenhouse
gas as a feedstock ........................................................................... 117
Subdivision E--General provisions
117
64A
Acknowledgement of one-off quotation of OTN ........................... 117
64B
Acknowledgement of standing quotation of OTN ......................... 118
65
Rejection of quotation of OTN--re-supply of eligible
upstream fuel ................................................................................. 118
66 Rejection
of
voluntary quotation of OTN ...................................... 120
66A Unauthorised
mandatory quotation of OTN .................................. 120
67
Misuse of OTN .............................................................................. 121
68 Quotation
of
bogus OTN ............................................................... 122
Division 6--Liability transfer certificates
124
Subdivision A--Transfer of liability to another member of a
controlling corporation's group
124
69 Category
A
transfer test ................................................................. 124
70 Application
for
liability
transfer certificate ................................... 124
71 Further
information
........................................................................
125
72
Issue of liability transfer certificate ............................................... 125
Subdivision B--Transfer of liability to a person who has financial
control of a facility
126
73
Category B transfer test ................................................................. 126
74 Application
for
liability
transfer certificate ................................... 127
75 Further
information
........................................................................
128
v Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
76
Issue of liability transfer certificate ............................................... 128
Subdivision C--Other provisions
130
77
Duration of liability transfer certificate ......................................... 130
78
Surrender of liability transfer certificate ........................................ 131
79
Cancellation of liability transfer certificate ................................... 132
80
Liability transfer certificate is not transferable .............................. 133
81 Financial
control
............................................................................
133
Part 4--Emissions units
135
Division 1--Introduction
135
82 Simplified
outline
..........................................................................
135
Division 2--Australian emissions units
137
Subdivision A--Issue of Australian emissions units
137
83
Issue of Australian emissions units ................................................ 137
84 Identification
number
.....................................................................
137
85 Vintage
year
...................................................................................
137
86 When
Australian
emissions
units may be issued ........................... 137
87
How Australian emissions units are to be issued ........................... 138
88
Circumstances in which Australian emissions units may be
issued ............................................................................................. 138
89
Issue of Australian emissions units for a fixed charge ................... 138
90
Payment of charges for the issue of Australian emissions
units ............................................................................................... 142
91
Imposition of charges for the issue of Australian emissions
units ............................................................................................... 143
92
Issue of Australian emissions units--national scheme cap
number ........................................................................................... 143
93 Australian
emissions
units--total number ..................................... 143
Subdivision B--Property in, and transfer of, Australian emissions
units
144
94
An Australian emissions unit is personal property ........................ 144
95 Transfer
of
Australian emissions units........................................... 144
96 Transmission
of
Australian
emissions units by assignment ........... 145
97 Transmission
of
Australian
emissions units by operation of
law etc. ........................................................................................... 146
98
Transfer of Australian emissions units to another Registry
account held by the transferor ........................................................ 147
98A
Equitable interests in relation to an Australian emissions unit ...... 148
Subdivision C--Auctions of Australian emissions units
148
99
Issue of Australian emissions units as the result of an auction ...... 148
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 vi
100
Secondary market auctions of relinquished Australian
emissions units ............................................................................... 149
101
Secondary market auctions of free Australian emissions units ...... 149
102
Combined auctions of Australian emissions units ......................... 150
103 Policies,
procedures
and
rules for auctioning Australian
emissions units ............................................................................... 150
Subdivision D--Special provisions relating to free Australian
emissions units
151
103A
Cancellation of certain unused free Australian emissions
units ............................................................................................... 151
103B
Buy-back of certain free Australian emissions units ...................... 152
Division 3--Kyoto units
154
104
Entries for Kyoto units ................................................................... 154
105
Issue of Australia's assigned amount units .................................... 154
106
Issue of removal units .................................................................... 154
107 Transfer
of
Kyoto units .................................................................. 155
108 Domestic
transfers
of Kyoto units ................................................. 156
109
Outgoing international transfers of Kyoto units............................. 157
110
Incoming international transfers of Kyoto units ............................ 158
111
Compliance by Australia with emissions trading eligibility
requirements under the Kyoto rules ............................................... 159
112 Kyoto
rules.....................................................................................
159
113 Carry-over
restrictions ................................................................... 160
114 Commitment
period
reserve ........................................................... 161
115
Cancellation of temporary certified emission reductions or
long-term certified emission reductions ......................................... 162
116
Replacement of long-term certified emission reductions ............... 162
116A
Restrictions on transfer of Kyoto units to a Commonwealth
Registry account ............................................................................ 164
116B
A registered Kyoto unit is personal property for certain
purposes ......................................................................................... 164
116BA Equitable interests in relation to a Kyoto unit ................................ 164
116C
Transmission of registered Kyoto units by operation of law
etc. .................................................................................................. 165
Division 4--Non-Kyoto international emissions units
167
117
Entries for non-Kyoto international emissions units ...................... 167
118
Transfer of non-Kyoto international emissions units ..................... 167
119
Domestic transfers of non-Kyoto international emissions
units ............................................................................................... 168
120
Outgoing international transfers of non-Kyoto international
emissions units ............................................................................... 169
vii Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
121
Incoming international transfers of non-Kyoto international
emissions units ............................................................................... 170
122 Surrender
restrictions ..................................................................... 170
122A
A registered non-Kyoto international emissions unit is
personal property for certain purposes ........................................... 170
122AA Equitable interests in relation to a non-Kyoto international
emissions unit ................................................................................ 171
122B
Transmission of registered non-Kyoto international
emissions units by operation of law etc. ........................................ 171
123
Regulations about non-Kyoto international emissions units .......... 173
Part 5--Emissions number
174
124 Simplified
outline
..........................................................................
174
125 Emissions
number
..........................................................................
174
126
Assessment of emissions number--incorrect report given by
liable entity .................................................................................... 175
127
Assessment of emissions number--no report given by liable
entity .............................................................................................. 176
Part 6--Surrender of eligible emissions units
178
Division 1--Introduction
178
128 Simplified
outline
..........................................................................
178
Division 2--How eligible emissions units are surrendered
180
129
How eligible emissions units are surrendered ................................ 180
Division 3--Unit shortfalls
184
130 Unit
shortfalls
................................................................................
184
131
Assessment of unit shortfall ........................................................... 185
Division 4--Obligation to surrender eligible emissions units
188
132
Obligation to surrender eligible emissions units ............................ 188
133
Penalty for unit shortfall ................................................................ 188
134
When penalty becomes due and payable ....................................... 189
135 Late
payment
penalty
.....................................................................
189
136 Recovery
of
penalties ..................................................................... 190
137 Set-off
............................................................................................
190
138
Liability transfer certificate--statutory guarantee ......................... 191
139 Refund
of
overpayments ................................................................ 191
141 Benchmark
average
auction price .................................................. 192
142 Make-good
number ........................................................................ 193
143 Excess
surrender number ............................................................... 194
Division 5--Extension of surrender deadline
197
143A Extension
of
surrender deadline ..................................................... 197
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 viii
Part 7--Australian National Registry of Emissions Units
199
Division 1--Introduction
199
144 Simplified
outline
..........................................................................
199
Division 2--Australian National Registry of Emissions Units
200
145 Australian
National
Registry of Emissions Units .......................... 200
Division 3--Registry accounts
201
146 Registry
accounts
...........................................................................
201
147
Opening of Registry accounts--general ........................................ 201
148
Designation of Commonwealth Registry accounts ........................ 202
149
Opening of new Commonwealth Registry accounts ...................... 203
150
Units in a retirement, cancellation or replacement account ........... 203
151
Totals of Australian emissions units in a Registry account ........... 204
152
Voluntary closure of Registry accounts ......................................... 204
Division 4--Change in name of account holder
206
153
Application to have new name entered on the Registry ................. 206
154
Alteration in the Registry ............................................................... 206
Division 5--Correction and rectification of Registry
207
155
Corrections of clerical errors or obvious defects ........................... 207
157
General power of correction of Registry--Kyoto units ................. 207
158
General power of correction of Registry--non-Kyoto
international emissions units .......................................................... 207
159 Rectification
of Registry ................................................................ 208
Division 6--Miscellaneous
210
160
Making a false entry in the Registry .............................................. 210
161 Falsified
documents
.......................................................................
210
162 Evidentiary
provisions
...................................................................
210
163
Use and disclosure of information obtained from the
Registry .......................................................................................... 211
164 Regulations
about
the Registry ...................................................... 212
Part 8--Emissions-intensive trade-exposed assistance program
214
Division 1--Introduction
214
165
Aim and objects ............................................................................. 214
166 Simplified
outline
..........................................................................
215
Division 2--Formulation of the emissions-intensive
trade-exposed assistance program
216
167 Emissions-intensive
trade-exposed assistance program ................. 216
168 Relinquishment
requirement .......................................................... 216
169 Reporting
requirement
...................................................................
217
ix Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
170 Record-keeping
requirement .......................................................... 217
171 Other
matters
.................................................................................
218
172
Ancillary or incidental provisions .................................................. 218
Division 3--Compliance with reporting and record-keeping
requirements under the emissions-intensive
trade-exposed assistance program
219
173
Compliance with reporting and record-keeping requirements ....... 219
Division 4--Special information-gathering powers
221
173A
Minister may obtain information ................................................... 221
173B
No assistance for 2 eligible financial years if corporation
refuses or fails to comply with request for information ................. 222
173C
Disclosure of information to the Authority .................................... 222
Part 8A--Coal mining
224
Division 1--Introduction
224
173D Object
.............................................................................................
224
173E Simplified
outline
..........................................................................
224
Division 2--Issue of free Australian emissions units in respect of
coal mining
225
173F
Issue of free Australian emissions units in respect of coal
mining ............................................................................................ 225
Division 3--Certificate of entitlement to coal mining assistance
226
173G
Application for certificate of entitlement to coal mining
assistance ....................................................................................... 226
173H
Form of application ........................................................................ 226
173J Further
information
........................................................................
227
173K
Issue of certificate of entitlement to coal mining assistance .......... 227
173L Unit
entitlement
.............................................................................
229
173M
Certificate of entitlement to coal mining assistance is not
transferable .................................................................................... 231
Division 4--Eligible coal mining area
232
173N
Application for declaration of eligible coal mining area ................ 232
173P
Form of application ........................................................................ 232
173Q Further
information
........................................................................
232
173R Declaration
of
eligible coal mining area ........................................ 233
Division 5--Miscellaneous
236
173S Base
period
fugitive
emissions number ......................................... 236
173T
Base period saleable coal number .................................................. 236
173TA Capped base period saleable coal number ..................................... 236
173U
Adjusted base period fugitive emissions intensity number ............ 236
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 x
173V
Adjusted base period fugitive emissions number ........................... 237
173W
Coal mining control test ................................................................. 237
173X Submerged
land
.............................................................................
239
Part 9--Coal-fired electricity generation
240
Division 1--Introduction
240
174 Object
.............................................................................................
240
175 Simplified
outline
..........................................................................
240
Division 2--Issue of free Australian emissions units in respect of
generation assets
242
176
Issue of free Australian emissions units in respect of
generation assets ............................................................................ 242
Division 3--Certificate of eligibility for coal-fired generation
assistance
247
177
Application for certificate of eligibility for coal-fired
generation assistance ...................................................................... 247
178
Form of application ........................................................................ 248
179 Further
information
........................................................................
248
180
Issue of certificate of eligibility for coal-fired generation
assistance ....................................................................................... 249
181
Criteria for issuing certificate of eligibility for coal-fired
generation assistance ...................................................................... 250
182 Annual
assistance factor ................................................................ 252
Division 4--Windfall gain
255
183
Reduced assistance for 2018-2019, 2019-2020 and
2020-2021 if a windfall gain declaration is in force etc. ................ 255
184 Revocation
of
Ministerial determination ....................................... 255
184A
Revocation of Ministerial determination--issue of free
Australian emissions units ............................................................. 257
185 Submission
about
windfall gain ..................................................... 258
186 Windfall
gain
declaration ............................................................... 259
187
Windfall gain test ........................................................................... 261
Division 5--Power system reliability
266
188
No assistance if generation asset does not pass the power
system reliability test ..................................................................... 266
189
Power system reliability test .......................................................... 266
189AA Replacement
capacity
....................................................................
269
189AB Nomination
of
generation units ..................................................... 272
189AC Validity of nomination ................................................................... 275
189A
Anticipatory
certification--reduction in nameplate rating ........... 275
xi Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
189B
Anticipatory certification--cessation of registration as a
generator ........................................................................................ 276
189C Intermediary
registered as a generator ........................................... 277
189D Financial
year
beginning on 1 July 2010 ....................................... 278
Part 10--Reforestation
279
Division 1--Introduction
279
190 Simplified
outline
..........................................................................
279
Division 2--Issue of free Australian emissions units in respect of
reforestation
281
191
Issue of free Australian emissions units in respect of
reforestation ................................................................................... 281
Division 3--Certificate of reforestation
282
192 Application
for
certificate of reforestation ..................................... 282
193
Form of application ........................................................................ 282
194 Further
information
........................................................................
283
195
Issue of certificate of reforestation ................................................ 283
196 Unit
entitlement
.............................................................................
286
197
Certificate of reforestation is not transferable ................................ 287
Division 3A--Project managers
288
197A
Project manager for a reforestation project .................................... 288
197B
Scheme obligation transfer agreement ........................................... 288
197C
Holder of carbon sequestration right may elect to assume
scheme obligations ......................................................................... 291
Division 4--Recognised reforestation entities
292
198 Application
for
recognition
as a reforestation entity ...................... 292
199
Form of application ........................................................................ 292
200 Further
information
........................................................................
292
201
Recognition as a reforestation entity .............................................. 293
202 Cancellation
of
recognition ............................................................ 295
203 Surrender
of
recognition ................................................................ 296
204 Recognition
is
not
transferable ...................................................... 297
Division 5--Eligible reforestation projects
298
Subdivision A--Declaration of eligible reforestation project
298
205
Application for declaration of eligible reforestation project .......... 298
206
Form of application ........................................................................ 298
207 Further
information
........................................................................
298
208 Withdrawal
of
application ............................................................. 299
209 Declaration
of
eligible
reforestation project .................................. 299
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 xii
Subdivision B--Voluntary variation of declaration of eligible
reforestation project
302
210
Application for variation of declaration of eligible
reforestation project ....................................................................... 302
211 Withdrawal
of
application ............................................................. 303
212
Variation of declaration of eligible reforestation project ............... 304
Subdivision C--Unilateral variation of declaration of eligible
reforestation project
307
213
Variation of declaration of eligible reforestation project--
partial cessation of reforestation activity in a part of a project
area ................................................................................................. 307
213A
Variation of declaration of eligible reforestation project that
has 2 or more project areas--cessation of reforestation
activity in the whole of a project area ............................................ 308
214
Variation of declaration of eligible reforestation project--
eligibility requirements not met in a part of a project area ............ 309
214A
Variation of declaration of eligible reforestation project that
has 2 or more project areas--eligibility requirements not met
in the whole of a project area ......................................................... 311
214B
Variation of declaration of eligible reforestation project--
ceasing to hold carbon sequestration right in relation to part
of a project area ............................................................................. 312
214C
Variation of declaration of eligible reforestation project that
has 2 or more project areas--ceasing to hold carbon
sequestration right in relation to the whole of a project area ......... 313
Subdivision D--Voluntary revocation of declaration of eligible
reforestation project
314
215
Voluntary revocation of declaration of eligible reforestation
project--units issued ...................................................................... 314
216
Voluntary revocation of declaration of eligible reforestation
project--no units issued ................................................................. 316
Subdivision E--Unilateral revocation of declaration of eligible
reforestation project
317
217
Unilateral revocation of declaration of eligible reforestation
project--cessation of reforestation activity ................................... 317
218
Unilateral revocation of declaration of eligible reforestation
project--eligibility requirements not met ...................................... 318
218A
Unilateral revocation of declaration of eligible reforestation
project--project manager ceases to be a recognised
reforestation entity ......................................................................... 319
219
Unilateral revocation of declaration of eligible reforestation
project--ceasing to hold carbon sequestration right etc. ............... 320
xiii Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
219A
Unilateral revocation of declaration of eligible reforestation
project--project manager ceases to have control of
reforestation project ....................................................................... 321
Division 6--Reforestation unit limit
323
220 Reforestation unit limit .................................................................. 323
221
Increase of reforestation unit limit ................................................. 324
222
Decrease of reforestation unit limit ................................................ 325
Division 6A--Restructure of reforestation projects
326
222A
Restructure of reforestation projects--making of declaration
relating to receiving project ........................................................... 326
222B
Restructure of reforestation projects--variation of
declaration relating to receiving project ......................................... 328
Division 7--Reforestation reporting periods
332
223 First
reforestation
reporting period ................................................ 332
224 Subsequent
reforestation reporting periods .................................... 333
Division 8--Reforestation reporting requirements
334
225 Reforestation
reports
......................................................................
334
Division 9--Forest maintenance obligation
336
Subdivision A--Forest maintenance obligation
336
226 Forest
maintenance obligation ....................................................... 336
226A
Variation or revocation of declaration of forest maintenance
obligation ....................................................................................... 339
226B
Revocation of declaration of forest maintenance obligation--
voluntary relinquishment of Australian emissions units ................ 341
Subdivision AA--Forest restoration order
341
226C Forest
restoration order .................................................................. 341
226D
Variation or revocation of forest restoration order ........................ 344
Subdivision B--Injunctions
345
227 Injunctions
.....................................................................................
345
228 Interim
injunctions
.........................................................................
345
229 Discharge
etc.
of injunctions.......................................................... 346
230
Certain limits on granting injunctions not to apply ........................ 346
231
Other powers of the Federal Court unaffected ............................... 347
Division 10--Relinquishment of Australian emissions units
348
232
Requirement to relinquish--unilateral revocation of
declaration of eligible reforestation project ................................... 348
233
Relinquishment requirement--decrease in reforestation unit
limit for eligible reforestation project ............................................ 349
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 xiv
Division 11--Miscellaneous notification requirements
351
235
Notification requirement--ceasing to hold carbon
sequestration right .......................................................................... 351
235A
Regulations may impose notification requirements ....................... 351
Division 12--Entries in title registers
353
236
Entries in title registers--general ................................................... 353
237
Entries in title registers--land subject to forest maintenance
obligation ....................................................................................... 353
Division 13--Register of Reforestation Projects
355
238
Register of Reforestation Projects ................................................. 355
239
Entries in the Register .................................................................... 355
Division 14--Carbon sequestration right and forestry right
357
Subdivision A--Carbon sequestration right
357
239A
Carbon sequestration right in relation to a reforestation
project ............................................................................................ 357
240
Carbon sequestration right in relation to an area of land ............... 357
Subdivision B--Forestry right
360
241 Forestry
right
.................................................................................
360
Division 14A--Eligible interest in an area of land
362
241A
Eligible interest in an area of land--Torrens system land ............. 362
241B
Eligible interest in an area of land--Crown land that is not
Torrens system land ....................................................................... 363
Division 15--Net total number of Australian emissions units
issued in relation to an eligible reforestation project
364
242
Net total number of Australian emissions units issued in
relation to an eligible reforestation project .................................... 364
Division 16--Transition of reforestation projects from
non-CPRS reforestation schemes
365
243
Request for determination .............................................................. 365
243A
Form of request .............................................................................. 365
243B Further
information ........................................................................ 365
243C Determination
................................................................................
366
Part 11--Destruction of synthetic greenhouse gases
368
Division 1--Introduction
368
244 Simplified
outline
..........................................................................
368
xv Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Division 2--Issue of free Australian emissions units in respect of
the destruction of synthetic greenhouse gases
369
245
Issue of free Australian emissions units in respect of the
destruction of synthetic greenhouse gases ..................................... 369
Division 3--Certificate of eligible synthetic greenhouse gas
destruction
370
246
Application for certificate of eligible synthetic greenhouse
gas destruction ............................................................................... 370
247
Form of application ........................................................................ 370
248 Further
information
........................................................................
371
249
Issue of certificate of eligible synthetic greenhouse gas
destruction ..................................................................................... 371
250
Criteria for issuing certificate of eligible synthetic
greenhouse gas destruction ............................................................ 372
251 Unit
entitlement
.............................................................................
374
252
Certificate of eligible synthetic greenhouse gas destruction is
not transferable .............................................................................. 374
Division 4--Recognised synthetic greenhouse gas destruction
customers
376
253 Application
for
recognition
as a synthetic greenhouse gas
destruction customer ...................................................................... 376
254
Form of application ........................................................................ 376
255 Further
information
........................................................................
376
256
Recognition as a synthetic greenhouse gas destruction
customer ......................................................................................... 377
257 Cancellation
of
recognition ............................................................ 378
258 Surrender
of
recognition ................................................................ 380
259 Recognition
is
not
transferable ...................................................... 380
Part 11A--Domestic offsets program
381
Division 1--Introduction
381
259A Simplified
outline
..........................................................................
381
Division 2--Formulation of the domestic offsets program
382
259B
Formulation of the domestic offsets program ................................ 382
259C Reporting
requirement ................................................................... 384
259D Record-keeping
requirement .......................................................... 385
259E Relinquishment
requirement .......................................................... 385
259F Other
matters
.................................................................................
387
259G
Ancillary or incidental provisions .................................................. 388
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 xvi
Division 3--Compliance with reporting and record-keeping
requirements under the domestic offsets program
389
259H
Compliance with reporting and record-keeping requirements ....... 389
Division 4--Domestic offsets project methodology
determinations
390
259J
Domestic offsets project methodology determinations .................. 390
259K
Domestic offsets project methodology principles .......................... 391
Division 5--Recognised offsets entities
394
259L Application
for
recognition
as an offsets entity ............................. 394
259M
Form of application ........................................................................ 394
259N Further
information
........................................................................
394
259P Recognition
as
an
offsets entity ..................................................... 395
259Q Cancellation
of
recognition ............................................................ 397
259R Surrender
of
recognition ................................................................ 398
259S Recognition
is
not
transferable ...................................................... 399
Part 12--Publication of information
400
Division 1--Introduction
400
260 Simplified
outline
..........................................................................
400
Division 2--Information about liable entities
401
261
Liable Entities Public Information Database ................................. 401
262
Liable entities to be entered in the Information Database .............. 401
263
Emissions number to be entered in the Information Database ....... 402
264
Unit shortfall to be entered in the Information Database ............... 402
265
Unpaid administrative penalty to be entered in the
Information Database ..................................................................... 404
266
Number of surrendered eligible emissions units to be entered
in the Information Database ........................................................... 405
267
Number of voluntarily cancelled units to be entered in the
Information Database ..................................................................... 405
267A
Relinquishment requirement to be entered in the Information
Database ......................................................................................... 406
267B
Unpaid administrative penalty to be entered in the
Information Database ..................................................................... 407
267C
Number of relinquished units to be entered in the
Information Database ..................................................................... 408
268
Correction and rectification of the Information Database .............. 408
Division 3--Information about holders of Registry accounts
409
269
Information about holders of Registry accounts ............................ 409
xvii Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Division 4--Information about units
410
270
Information about auction results--last auction ............................ 410
271
Information about auction results--last 6 months ......................... 410
272
Information about issue of Australian emissions units for a
fixed charge ................................................................................... 412
273
Information about issue of free Australian emissions units ........... 413
274
Quarterly reports about issue of free Australian emissions
units ............................................................................................... 415
275
Information about surrender of borrowed and banked eligible
emissions units ............................................................................... 416
276 Kyoto
information
.........................................................................
416
277
Information about total emissions numbers and unit
shortfalls ........................................................................................ 417
277A
Publication of concise description of the characteristics of
Australian emissions units ............................................................. 417
278
Publication of concise description of the characteristics of
eligible international emissions units ............................................. 417
Division 5--Information about voluntary cancellation of units
held by persons other than liable entities
419
278A
Information about number of voluntarily cancelled
Australian emissions units ............................................................. 419
278B
Information about number of voluntarily cancelled Kyoto
units ............................................................................................... 419
278C
Information about number of voluntarily cancelled
non-Kyoto international emissions units ........................................ 420
Division 6--Information about relinquishment requirements for
persons other than liable entities
421
278D
Information about relinquishment requirements ............................ 421
278E
Information about unpaid administrative penalties ........................ 422
278F
Information about number of relinquished units ............................ 422
Division 7--Information about designated large landfill facilities
424
278G
Publication of list of designated large landfill facilities ................. 424
Division 8--Information about eligible domestic offsets projects
425
278H
Information about eligible domestic offsets projects ..................... 425
Part 13--Fraudulent conduct
426
279 Simplified
outline
..........................................................................
426
280
Units issued as a result of fraudulent conduct--court may
order relinquishment ...................................................................... 426
Part 14--Voluntary cancellation of emissions units
429
281 Simplified
outline
..........................................................................
429
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 xviii
282
Voluntary cancellation of Australian emissions units .................... 429
283 Voluntary
cancellation of Kyoto units ........................................... 430
284
Voluntary cancellation of non-Kyoto international emissions
units ............................................................................................... 431
Part 15--Relinquishment of Australian emissions units
433
Division 1--Introduction
433
285 Simplified
outline
..........................................................................
433
Division 2--How Australian emissions units are relinquished
434
286 How
Australian
emissions
units are relinquished .......................... 434
Division 3--Compliance with relinquishment requirements
438
287 Compliance
with
relinquishment requirements ............................. 438
288 Late
payment
penalty
.....................................................................
440
289 Recovery
of
penalties ..................................................................... 441
290 Set-off
............................................................................................
441
291 Refund
of
overpayments ................................................................ 441
Part 16--Notification of significant holding of Australian
emissions units
443
292 Simplified
outline
..........................................................................
443
293
Notification of significant holding of Australian emissions
units--controlling corporation of a group ..................................... 443
294
Notification of significant holding of Australian emissions
units--non-group entity ................................................................. 445
Part 17--Information-gathering powers
448
295 Simplified
outline
..........................................................................
448
296
Authority may obtain information or documents ........................... 448
297 Copying
documents--compensation ............................................. 449
298 Copies
of
documents ...................................................................... 449
299 Authority
may
retain documents .................................................... 450
300 Self-incrimination
..........................................................................
450
Part 18--Record-keeping requirements
452
301 Simplified
outline
..........................................................................
452
302 Record-keeping
requirements--general ........................................ 452
303 Record-keeping
requirements--quotation of OTN ........................ 453
304
Record-keeping requirements--rejection of quotation of
OTN ............................................................................................... 454
304A
Record-keeping requirements--preparation of reforestation
report .............................................................................................. 455
xix Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Part 19--Monitoring powers
456
Division 1--Simplified outline
456
305 Simplified
outline
..........................................................................
456
Division 2--Appointment of inspectors and issue of identity
cards
457
306 Appointment
of
inspectors ............................................................. 457
307 Identity
cards
.................................................................................
457
Division 3--Powers of inspectors
459
Subdivision A--Monitoring powers
459
308
Inspector may enter premises by consent or under a warrant ........ 459
309 Monitoring
powers
of inspectors ................................................... 459
310 Persons
assisting
inspectors ........................................................... 462
Subdivision B--Powers of inspectors to ask questions and seek
production of documents
462
311
Inspector may ask questions and seek production of
documents ...................................................................................... 462
312 Self-incrimination
..........................................................................
463
Division 4--Obligations and incidental powers of inspectors
464
313 Consent
..........................................................................................
464
314
Announcement before entry under warrant ................................... 464
315
Inspector to be in possession of warrant ........................................ 465
316
Details of warrant etc. to be given to occupier............................... 465
317
Expert assistance to operate electronic equipment ......................... 465
318
Compensation for damage to electronic equipment ....................... 467
Division 5--Occupier's rights and responsibilities
469
319
Occupier entitled to observe execution of warrant ........................ 469
320
Occupier to provide inspector with facilities and assistance .......... 469
Division 6--Monitoring warrants
470
321 Monitoring
warrants
......................................................................
470
Division 7--Powers of magistrates
472
322 Powers
of
magistrates
....................................................................
472
Part 20--Liability of executive officers of bodies corporate
473
323 Simplified
outline
..........................................................................
473
324
Civil penalties for executive officers of bodies corporate .............. 473
325
Reasonable steps to prevent contravention .................................... 474
Part 21--Civil penalty orders
475
326 Simplified
outline
..........................................................................
475
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 xx
326A References
to Court ....................................................................... 475
327
Civil penalty orders ........................................................................ 475
328
Who may apply for a civil penalty order ....................................... 477
329
2 or more proceedings may be heard together ............................... 477
330
Time limit for application for an order .......................................... 477
331
Civil evidence and procedure rules for civil penalty orders ........... 477
332
Civil proceedings after criminal proceedings ................................ 477
333 Criminal
proceedings
during civil proceedings ............................. 477
334 Criminal
proceedings
after civil proceedings ................................ 478
335
Evidence given in proceedings for a civil penalty order not
admissible in criminal proceedings ................................................ 478
336
Mistake of fact ............................................................................... 478
337
State of mind .................................................................................. 479
338 Continuing
contraventions ............................................................. 480
Part 22--Offences relating to administrative penalties
482
339 Simplified
outline
..........................................................................
482
340
Scheme to avoid existing liability to pay administrative
penalty ........................................................................................... 482
341
Scheme to avoid future liability to pay administrative penalty ...... 483
Part 23--Enforceable undertakings
486
342 Simplified
outline
..........................................................................
486
343 Acceptance
of
undertakings ........................................................... 486
344 Enforcement
of
undertakings ......................................................... 486
Part 24--Review of decisions
488
345 Simplified
outline
..........................................................................
488
346 Reviewable
decisions ..................................................................... 488
347
Applications for reconsideration of decisions made by
delegates of the Authority .............................................................. 492
348 Reconsideration
by the Authority .................................................. 493
349
Deadline for reconsideration .......................................................... 493
350
Review by the Administrative Appeals Tribunal ........................... 493
351
Stay of proceedings for the recovery of an administrative
penalty ........................................................................................... 494
Part 25--Independent reviews
496
Division 1--Simplified outline
496
352 Simplified
outline
..........................................................................
496
Division 2--Periodic reviews
497
353
Periodic reviews to be conducted by an expert advisory
committee ...................................................................................... 497
xxi Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
354
Report of periodic review .............................................................. 500
Division 3--Special reviews
502
355
Special reviews to be conducted by an expert advisory
committee--matters specified by Minister .................................... 502
355A
Special review of carbon pollution reduction scheme to be
conducted by an expert advisory committee .................................. 502
356
Report of special review ................................................................ 503
Division 4--Expert advisory committees
505
357 Establishment
of
expert advisory committees ................................ 505
358
Functions of an expert advisory committee ................................... 505
359
Membership of an expert advisory committee ............................... 505
360
Appointment of expert advisory committee members ................... 505
361
Period for appointment for expert advisory committee
members ......................................................................................... 506
362 Acting
expert
advisory committee members ................................. 507
363 Procedures
.....................................................................................
508
364
Disclosure of interests to the Minister ........................................... 509
365
Disclosure of interests to expert advisory committee .................... 509
366
Outside employment ...................................................................... 510
367 Remuneration
and
allowances ....................................................... 510
368
Leave of absence ............................................................................ 510
369 Resignation
....................................................................................
510
370 Termination
of
appointment .......................................................... 511
371 Other
terms
and
conditions ............................................................ 512
372
Assistance to expert advisory committee ....................................... 512
373 Consultants
....................................................................................
512
Part 25A--Domestic Offsets Integrity Committee
513
Division 1--Establishment and functions of the Domestic Offsets
Integrity Committee
513
373A
Establishment of the Domestic Offsets Integrity Committee ......... 513
373B
Functions of the Domestic Offsets Integrity Committee ............... 513
373C
Consultation by the Domestic Offsets Integrity Committee .......... 513
Division 2--Membership of the Domestic Offsets Integrity
Committee
515
373D
Membership of the Domestic Offsets Integrity Committee ........... 515
373E
Appointment of Domestic Offsets Integrity Committee
members ......................................................................................... 515
373F
Period for appointment for Domestic Offsets Integrity
Committee members ...................................................................... 516
373G Acting
Domestic
Offsets
Integrity Committee members ............... 516
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 xxii
373H Procedures
.....................................................................................
518
373J
Disclosure of interests to the Minister ........................................... 519
373K
Disclosure of interests to Domestic Offsets Integrity
Committee ..................................................................................... 519
373L
Outside employment ...................................................................... 520
373M Remuneration
and
allowances ....................................................... 520
373N
Leave of absence ............................................................................ 520
373P Resignation
....................................................................................
521
373Q Termination
of
appointment .......................................................... 521
373R Other
terms
and
conditions ............................................................ 522
373S Assistance
to
Domestic
Offsets Integrity Committee .................... 522
373T Consultants
....................................................................................
522
Part 26--Miscellaneous
523
374 Miscellaneous
functions of the Authority ...................................... 523
374A Computerised
decision-making ..................................................... 523
374B
Authority's power to require further information .......................... 524
375
Delegation by the Minister ............................................................ 525
375A
Delegation by a State Minister or a Territory Minister .................. 525
375B
Delegation by the Secretary ........................................................... 525
376
Concurrent operation of State and Territory laws .......................... 526
377
Law relating to legal professional privilege not affected ............... 526
378
Arrangements with States and Territories ...................................... 526
379 Liability
for
damages ..................................................................... 528
380
Executive power of the Commonwealth ........................................ 529
381
Notional payments by the Commonwealth .................................... 529
382 Alternative
constitutional basis ...................................................... 529
383
Compensation for acquisition of property ..................................... 533
384
Prescribing matters by reference to other instruments ................... 534
385 Administrative
decisions
under the regulations ............................. 534
386 Transitional--definitions ............................................................... 535
387 Regulations
....................................................................................
535
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 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 2010.
9
Part 1 Preliminary
Section 2
2 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 this Act receives the Royal Assent.
2. Sections 3 to
387
The 28th day after this Act receives the
Royal Assent.
However, if:
(a) the Australian Climate Change
Regulatory Authority Act 2010; and
(b) the Carbon Pollution Reduction Scheme
(Charges--Customs) Act 2010; and
(c) the Carbon Pollution Reduction Scheme
(Charges--Excise) Act 2010; and
(d) the Carbon Pollution Reduction Scheme
(Charges--General) Act 2010; and
(e) the Carbon Pollution Reduction Scheme
(Consequential Amendments) Act 2010;
do not receive the Royal Assent on or before
the 28th day after 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 2010 No. , 2010 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 2010 No. , 2010
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 2010 No. , 2010 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
adjusted base period fugitive emissions intensity number has the
14
meaning given by section 173U.
15
adjusted base period fugitive emissions number has the meaning
16
given by section 173V.
17
alter the Registry, includes:
18
(a) make an entry in the Registry; and
19
(b) remove an entry from the Registry.
20
applicable domestic offsets methodology determination, in
21
relation to an offsets project, means the domestic offsets
22
methodology determination that is applicable to the project.
23
applicable identification procedure has the meaning ascertained in
24
accordance with the regulations.
25
application to own use, in relation to eligible upstream fuel,
26
includes making the fuel available to another person, where
27
making the fuel available is not a supply of the fuel.
28
Part 1 Preliminary
Section 5
6 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
appropriate energy market operator, in relation to a generation
1
asset, means:
2
(a) if Australian Energy Market Operator Limited (ACN 072 010
3
327) performs the functions of the energy market operator in
4
the place where the generation asset is located--Australian
5
Energy Market Operator Limited; and
6
(b) if the Independent Market Operator established under the
7
Electricity Industry (Independent Market Operator)
8
Regulations 2004 of Western Australia performs the
9
functions of the energy market operator in the place where
10
the generation asset is located--the Independent Market
11
Operator.
12
approved synthetic greenhouse gas destruction facility has the
13
same meaning as in the Ozone Protection and Synthetic
14
Greenhouse Gas Management Regulations 1995.
15
assigned amount unit means an assigned amount unit issued in
16
accordance with the relevant provisions of the Kyoto rules. It is
17
immaterial whether the unit was issued in or out of Australia.
18
associated provisions means the following provisions:
19
(a) the provisions of the regulations;
20
(b) sections 15A, 15B, 15C, 18A, 22A, 22B, 22C, 22CA, 22D,
21
22DA, 22E and 22F of the National Greenhouse and Energy
22
Reporting Act 2007;
23
(c) the remaining provisions of the National Greenhouse and
24
Energy Reporting Act 2007, in so far as those provisions
25
relate to:
26
(i) this Act; or
27
(ii) the regulations; or
28
(iii) the provisions covered by paragraph (b);
29
(d) sections 134.1, 134.2, 135.1, 135.2, 135.4, 136.1, 137.1 and
30
137.2 of the Criminal Code, in so far as those sections relate
31
to:
32
(i) this Act; or
33
(ii) the regulations; or
34
(iii) the provisions of the National Greenhouse and Energy
35
Reporting Act 2007 covered by paragraph (b) or (c).
36
Preliminary Part 1
Section 5
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 7
Note:
The provisions covered by paragraph (b) commence on 1 July 2011.
1
auction, when used in relation to an Australian emissions unit,
2
includes a process that involves inviting persons to declare what
3
they would be willing to pay by way of a charge for the acquisition
4
of the unit.
5
Australia, when used in a geographical sense, includes:
6
(a) the external Territories; and
7
(b) for the purposes of:
8
(i) Part 8 (emissions-intensive trade-exposed assistance
9
program); and
10
(ii) paragraph 353(1)(h) (review of the emissions-intensive
11
trade-exposed assistance program);
12
the exclusive economic zone, the continental shelf and the
13
Joint Petroleum Development Area.
14
Australian emissions unit means a unit issued under section 83.
15
Authority means the Australian Climate Change Regulatory
16
Authority.
17
base period fugitive emissions number has the meaning given by
18
section 173S.
19
base period saleable coal number has the meaning given by
20
section 173T.
21
benchmark average auction price has the meaning given by
22
section 141.
23
black coal has the same meaning as in the National Greenhouse
24
and Energy Reporting Regulations 2008.
25
brown coal has the same meaning as in the National Greenhouse
26
and Energy Reporting Regulations 2008.
27
business day means a day that is not:
28
(a) a Saturday; or
29
(b) a Sunday; or
30
(c) a public holiday in the place concerned.
31
Part 1 Preliminary
Section 5
8 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
cancellation account means a Commonwealth Registry account
1
designated as a cancellation account.
2
capped base period saleable coal number has the meaning given
3
by section 173TA.
4
carbon dioxide equivalence:
5
(a) of an amount of greenhouse gas--has the same meaning as in
6
the National Greenhouse and Energy Reporting Act 2007; or
7
(b) of an amount of potential greenhouse gas emissions
8
embodied in an amount of an eligible upstream fuel--has the
9
same meaning as in the National Greenhouse and Energy
10
Reporting Act 2007.
11
Note:
See also section 386 (transitional).
12
carbon pollution reduction scheme means the scheme embodied
13
in this Act and the associated provisions.
14
carbon sequestration right:
15
(a) when used in relation to a reforestation project--has the
16
meaning given by section 239A; or
17
(b) when used in relation to an area of land--has the meaning
18
given by section 240.
19
category A transfer test has the meaning given by section 69.
20
category B transfer test has the meaning given by section 73.
21
certificate of eligibility for coal-fired generation assistance means
22
a certificate issued under section 180.
23
certificate of eligible synthetic greenhouse gas destruction means
24
a certificate issued under section 249.
25
certificate of entitlement to coal mining assistance means a
26
certificate issued under section 173K.
27
certificate of reforestation means a certificate issued under
28
section 195.
29
Preliminary Part 1
Section 5
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 9
certified emission reduction means a certified emission reduction
1
issued outside Australia in accordance with the relevant provisions
2
of the Kyoto rules.
3
civil penalty order means an order under subsection 327(1).
4
civil penalty provision means a provision declared by this Act to
5
be a civil penalty provision.
6
clean development mechanism project means a project that is
7
treated as a clean development mechanism project for the purposes
8
of the relevant provisions of the Kyoto rules.
9
Climate Change Convention means the United Nations
10
Framework Convention on Climate Change done at New York on
11
9 May 1992, as amended and in force for Australia from time to
12
time.
13
Note:
The text of the Convention is set out in Australian Treaty Series 1994
14
No. 2 ([1994] ATS 2). In 2010, the text of a Convention in the
15
Australian Treaty Series was accessible through the Australian
16
Treaties Library on the AustLII website (www.austlii.edu.au).
17
coal-based char has the same meaning as in the National
18
Greenhouse and Energy Reporting Regulations 2008.
19
coal mining control test has the meaning given by section 173W.
20
coal mining title means:
21
(a) a lease that:
22
(i) permits the lessee to extract coal from the whole or a
23
part of the area of land covered by the lease; and
24
(ii) is granted by or under a law of the Commonwealth, a
25
State or a Territory; or
26
(b) a licence that:
27
(i) permits the licensee to extract coal from the whole or a
28
part of the area of land covered by the licence; and
29
(ii) is issued by or under a law of the Commonwealth, a
30
State or a Territory; or
31
(c) an authority that:
32
Part 1 Preliminary
Section 5
10 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(i) permits the holder of the authority to extract coal from
1
the whole or a part of the area of land covered by the
2
authority; and
3
(ii) is given by or under a law of the Commonwealth, a
4
State or a Territory.
5
For the purposes of this definition, land includes submerged land.
6
coke oven coke has the same meaning as in the National
7
Greenhouse and Energy Reporting Regulations 2008.
8
commitment period means a period that is treated as a commitment
9
period for the purposes of the Kyoto rules.
10
Note:
The first commitment period begins on 1 January 2008 and ends on
11
31 December 2012.
12
commitment period reserve has the meaning given by the
13
regulations.
14
Commonwealth holding account means a Commonwealth
15
Registry account designated as a Commonwealth holding account.
16
Commonwealth place has the same meaning as in the
17
Commonwealth Places (Application of Laws) Act 1970.
18
Commonwealth Registry account means a Registry account kept
19
in the name of the Commonwealth.
20
Commonwealth relinquished units account means the
21
Commonwealth Registry account designated as the
22
Commonwealth relinquished units account.
23
compressed natural gas has the same meaning as in the National
24
Greenhouse and Energy Reporting Regulations 2008.
25
constitutional corporation means a corporation to which
26
paragraph 51(xx) of the constitution applies.
27
continental shelf has the same meaning as in the Seas and
28
Submerged Lands Act 1973.
29
control: a person has control of a reforestation project if:
30
Preliminary Part 1
Section 5
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 11
(a) the person is the holder of the forestry right in relation to the
1
project area or each of the project areas; or
2
(b) under a contract, or an arrangement, of a kind specified in the
3
regulations, the person is entitled or required to establish,
4
manage and maintain:
5
(i) a forest on the project area; or
6
(ii) a forest on each of the project areas.
7
controlling corporation has the same meaning as in the National
8
Greenhouse and Energy Reporting Act 2007.
9
Note:
See also section 386 (transitional).
10
Crown land means land that is the property of:
11
(a) the Commonwealth, a State or a Territory; or
12
(b) a statutory authority of:
13
(i) the Commonwealth; or
14
(ii) a State; or
15
(iii)
a
Territory.
16
For this purpose, it is immaterial whether the land is:
17
(c) subject to a lease or licence; or
18
(d) covered by a reservation, proclamation, dedication,
19
condition, permission or authority, made or conferred by the
20
Commonwealth, a State or a Territory; or
21
(e) covered by the making, amendment or repeal of legislation of
22
the Commonwealth, a State or a Territory under which the
23
whole or a part of the land is to be used for a public purpose
24
or public purposes.
25
Crown lands Minister:
26
(a) in relation to a State--means the Minister of the State who,
27
under the regulations, is taken to be the Crown lands Minister
28
of the State; or
29
(b) in relation to the Northern Territory--means the Minister of
30
the Northern Territory who, under the regulations, is taken to
31
be the Crown lands Minister of the Northern Territory; or
32
(c) in relation to the Australian Capital Territory--means the
33
Minister of the Australian Capital Territory who, under the
34
Part 1 Preliminary
Section 5
12 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
regulations, is taken to be the Crown lands Minister of the
1
Australian Capital Territory; or
2
(d) in relation to a Territory other than the Northern Territory or
3
the Australian Capital Territory--means the person who,
4
under the regulations, is taken to be the Crown lands Minister
5
of the Territory.
6
decision of the Meeting of the Kyoto Parties means a decision of
7
the Meeting of the Kyoto Parties as existing from time to time. It is
8
immaterial whether the decision was made before, at or after the
9
commencement of this section.
10
designated, in relation to a Commonwealth Registry account,
11
means designated under section 148.
12
designated large landfill facility: a landfill facility is a designated
13
large landfill facility in relation to an eligible financial year if the
14
number of tonnes of the carbon dioxide equivalence of the total
15
amount of greenhouse gases emitted from the operation of the
16
landfill facility during the eligible financial year is 25,000 or more.
17
For this purpose, assume that the financial year beginning on 1 July
18
2010 is an eligible financial year.
19
director includes a constituent member of a body corporate
20
incorporated for a public purpose by a law of the Commonwealth,
21
a State or a Territory.
22
Domestic Offsets Integrity Committee means the committee
23
established by section 373A.
24
Domestic Offsets Integrity Committee member means a member
25
of the Domestic Offsets Integrity Committee, and includes the
26
Chair of the Domestic Offsets Integrity Committee.
27
domestic offsets program means the program under subsection
28
259B(1).
29
domestic offsets project methodology determination means a
30
determination under subsection 259J(1).
31
domestic offsets project methodology principles has the meaning
32
given by section 259K.
33
Preliminary Part 1
Section 5
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 13
domestic offsets reporting period has the meaning given by
1
subsection 259C(2).
2
electronic communication means a communication by means of
3
guided and/or unguided electromagnetic energy.
4
electronic notice transmitted to the Authority has the meaning
5
given by section 8.
6
eligible coal mining area has the meaning given by section 173R.
7
eligible domestic offsets project means an offsets project that,
8
under the domestic offsets program, has been declared by the
9
Authority to be an eligible domestic offsets project.
10
eligible emissions unit means:
11
(a) an Australian emissions unit; or
12
(b) an eligible international emissions unit.
13
eligible financial year means:
14
(a) the financial year beginning on 1 July 2011; or
15
(b) a later financial year.
16
eligible interest, in relation to an area of land, has the meaning
17
given by section 241A or 241B.
18
eligible international emissions unit means:
19
(a) a certified emission reduction (other than a temporary
20
certified emission reduction or a long-term certified emission
21
reduction); or
22
(b) an emission reduction unit; or
23
(c) a removal unit; or
24
(d) a prescribed unit issued in accordance with the Kyoto rules;
25
or
26
(e) a non-Kyoto international emissions unit.
27
It is immaterial whether a unit covered by paragraph (d) was issued
28
in or outside Australia.
29
eligible reforestation project has the meaning given by
30
section 209.
31
Part 1 Preliminary
Section 5
14 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
eligible upstream fuel means any of the following:
1
(a) liquid petroleum fuel;
2
(b) liquid petroleum gas;
3
(c)
black
coal;
4
(d)
brown
coal;
5
(e)
coking
coal;
6
(f) brown coal briquettes;
7
(g)
coke
oven
coke;
8
(h)
coal-based
char;
9
(i) natural gas that is distributed or transmitted in a pipeline;
10
(j) coal seam methane that is captured for combustion;
11
(k) coal mine waste gas that is captured for combustion;
12
(l)
ethane;
13
(m)
town
gas;
14
(n) liquefied natural gas;
15
(o)
compressed
natural
gas;
16
(p)
syngas;
17
(pa) refinery grade propene (propylene);
18
(q) a fuel specified in the regulations.
19
For the purposes of this Act, if black coal is treated at a coal
20
washery, the black coal retains its identity as a type of eligible
21
upstream fuel.
22
eligible waste has the meaning given by the regulations.
23
emission of greenhouse gas from the operation of a facility has the
24
meaning given by section 24.
25
emission reduction unit means an emission reduction unit issued
26
in accordance with the relevant provisions of the Kyoto rules. It is
27
immaterial whether the unit was issued in or outside of Australia.
28
emissions-intensive trade-exposed assistance program means the
29
program under subsection 167(1).
30
emissions number has the meaning given by section 125.
31
emissions number publication time of a person for an eligible
32
financial year, means the time when the person's emissions number
33
Preliminary Part 1
Section 5
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 15
for the eligible financial year is entered on the Information
1
Database in accordance with subsection 263(2).
2
engage in conduct means:
3
(a) do an act; or
4
(b) omit to perform an act.
5
evidential burden, in relation to a matter, means the burden of
6
adducing or pointing to evidence that suggests a reasonable
7
possibility that the matter exists or does not exist.
8
excess surrender number has the meaning given by section 143.
9
excise duty has the same meaning as in the Excise Act 1901.
10
exclusive economic zone has the same meaning as in the Seas and
11
Submerged Lands Act 1973.
12
executive officer of a body corporate means:
13
(a) a director of the body corporate; or
14
(b) the chief executive officer (however described) of the body
15
corporate; or
16
(c) the chief financial officer (however described) of the body
17
corporate; or
18
(d) the secretary of the body corporate.
19
exempt hydrocarbon solvent means:
20
(a) excisable goods (within the meaning of the Excise Act 1901)
21
classified to subitem 10.25, 10.26, 10.27 or 10.28 of the
22
Schedule to the Excise Tariff Act 1921; or
23
(b) imported goods (within the meaning of the Excise Act 1901)
24
that would be classified to subitem 10.25, 10.26, 10.27 or
25
10.28 of that Schedule if they were manufactured in
26
Australia;
27
that are:
28
(c) hydrocarbon solvents; and
29
(d)
not
combusted.
30
expert advisory committee means a committee established under
31
section 357.
32
Part 1 Preliminary
Section 5
16 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
expert advisory committee member means a member of an expert
1
advisory committee, and includes the Chair of an expert advisory
2
committee.
3
export, in relation to goods or a substance, means:
4
(a) do an act that constitutes exportation of the goods or
5
substance from Australia within the meaning of section 112
6
of the Customs Act 1901; or
7
(b) do an act that would constitute such exportation if the
8
external Territories were part of Australia for the purposes of
9
that Act.
10
externally-administered body corporate has the same meaning as
11
in the Corporations Act 2001.
12
facility has the same meaning as in the National Greenhouse and
13
Energy Reporting Act 2007.
14
Note:
See also section 386 (transitional).
15
Federal Court means the Federal Court of Australia.
16
feedstock means a substance that is consumed (otherwise than by
17
way of combustion) in a chemical process to produce another
18
product.
19
financial control has the meaning given by section 81.
20
foreign account:
21
(a) when used in relation to a Kyoto unit--means an account
22
kept within a foreign Kyoto registry; or
23
(b) when used in relation to a non-Kyoto international emissions
24
unit--means an account kept under a law of a foreign
25
country corresponding to this Act.
26
foreign country includes a region where:
27
(a) the region is a colony, territory or protectorate of a foreign
28
country; or
29
(b) the region is part of a foreign country; or
30
(c) the region is under the protection of a foreign country; or
31
(d) a foreign country exercises jurisdiction or control over the
32
region; or
33
Preliminary Part 1
Section 5
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 17
(e) a foreign country is responsible for the region's international
1
relations.
2
foreign Kyoto registry means:
3
(a) a registry of a Kyoto party (other than Australia) that is the
4
Kyoto party's national registry for Kyoto units; or
5
(b) the CDM registry established in accordance with paragraph 1
6
of Appendix D to the Annex to Decision 3/CMP.1 of the
7
Meeting of the Kyoto Parties.
8
foreign person has the same meaning as in the National
9
Greenhouse and Energy Reporting Act 2007.
10
forest maintenance obligation has the meaning given by
11
section 226.
12
forest restoration order means an order under section 226C.
13
forestry right has the meaning given by section 241.
14
forest stand means a stand of forest, where:
15
(a) under the regulations, the stand is taken to have been
16
established by means of direct, human-induced methods; and
17
(b) the stand occupies an area of land of 0.2 hectares or more;
18
and
19
(c) the stand consists of trees that:
20
(i) have attained, or have the potential to attain, a crown
21
cover of at least 20% of the area occupied by the stand;
22
and
23
(ii) have reached, or have the potential to reach, a height of
24
at least 2 metres; and
25
(d)
either:
26
(i) on 31 December 1989, the area occupied by the stand
27
was clear of trees that had attained (or had the potential
28
to attain) a crown cover of at least 20% of the area
29
occupied by the stand and that had reached (or had the
30
potential to reach) a height of at least 2 metres; or
31
(ii) the area occupied by the stand was lawfully cleared of
32
trees during the period beginning at the start of
33
Part 1 Preliminary
Section 5
18 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
1 January 1990 and ending at the end of 31 December
1
2008; and
2
(e) the stand meets such other requirements (if any) as are
3
specified in the regulations.
4
The regulations may provide that, for the purposes of this
5
definition, trees and crown cover have the respective meanings
6
given by the regulations.
7
free Australian emissions unit means an Australian emissions unit
8
issued free of charge.
9
fuel oil has the same meaning as in the Excise Tariff Act 1921.
10
fugitive emissions has the meaning given by the regulations.
11
general law land means land other than:
12
(a) Torrens system land; or
13
(b)
Crown
land.
14
generation asset means:
15
(a) a generation complex; or
16
(b) a generation complex project.
17
generation complex means:
18
(a) a generation unit; or
19
(b) a set of 2 or more generation units at the same location.
20
generation complex project means a project to construct and
21
commission a new generation complex. For this purpose, it is
22
immaterial whether the project has been completed.
23
generation unit means a generator of electricity, and includes:
24
(a) the boiler (if any); and
25
(b) any other related equipment essential to the generator's
26
functioning as a generator.
27
Greater Sunrise unit area has the same meaning as in the Offshore
28
Petroleum and Greenhouse Gas Storage Act 2006.
29
greenhouse gas has the same meaning as in the National
30
Greenhouse and Energy Reporting Act 2007.
31
Preliminary Part 1
Section 5
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 19
Note:
See also section 386 (transitional).
1
group has the same meaning as in the National Greenhouse and
2
Energy Reporting Act 2007.
3
Note:
See also section 386 (transitional).
4
hold an eligible emissions unit: a person holds an eligible
5
emissions unit if the person is the registered holder of the unit.
6
identification number, in relation to an Australian emissions unit,
7
has the meaning given by section 84.
8
import, in relation to goods or a substance, means:
9
(a) do an act that constitutes importation of the goods or
10
substance into Australia within the meaning of section 50 of
11
the Customs Act 1901; or
12
(b) do an act that would constitute such importation if the
13
external Territories were part of Australia for the purposes of
14
that Act.
15
import duty has the same meaning as in the Customs Act 1901.
16
Information Database means the Liable Entities Public
17
Information Database kept under section 261.
18
insolvent under administration
has the same meaning as in the
19
Corporations Act 2001.
20
inspector means a person appointed as an inspector under
21
section 306.
22
international agreement means an agreement whose parties are:
23
(a) Australia and a foreign country; or
24
(b) Australia and 2 or more foreign countries.
25
international transaction log means an electronic data system
26
administered by the Secretariat of the Climate Change Convention
27
for the purpose of monitoring and tracking transactions in Kyoto
28
units.
29
issue, in relation to an Australian emissions unit, means issue
30
under section 83.
31
Part 1 Preliminary
Section 5
20 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Joint Petroleum Development Area has the same meaning as in
1
the Petroleum (Timor Sea Treaty) Act 2003.
2
joint venture means an unincorporated enterprise carried on by 2
3
or more persons in common otherwise than in partnership.
4
Kyoto Party means a Party to the Kyoto Protocol.
5
Kyoto Protocol means the Kyoto Protocol to the United Nations
6
Framework Convention on Climate Change done at Kyoto on
7
11 December 1997, as amended and in force for Australia from
8
time to time.
9
Note:
The text of the Kyoto Protocol is set out in Australian Treaty Series
10
2008 No. 2 ([2008] ATS 2). In 2010, the text of an international
11
agreement in the Australian Treaty Series was accessible through the
12
Australian Treaties Library on the AustLII website
13
(www.austlii.edu.au).
14
Kyoto rules means:
15
(a) the Kyoto Protocol; or
16
(b) a decision of the Meeting of the Kyoto Parties; or
17
(c) if a standard or other instrument, as existing from time to
18
time, is adopted by the Meeting of the Kyoto Parties for a
19
purpose relating to:
20
(i) the Kyoto Protocol; or
21
(ii) a decision of the Meeting of the Kyoto Parties;
22
the standard or instrument as existing from time to time; or
23
(d) if a standard or other instrument, as existing at a particular
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 at that time; or
29
(e) a prescribed instrument that relates to:
30
(i) the Kyoto Protocol; or
31
(ii) a decision of the Meeting of the Kyoto Parties.
32
It is immaterial whether a standard or instrument covered by
33
paragraph (c), (d) or (e) was made before, at or after the
34
Preliminary Part 1
Section 5
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 21
commencement of this section. Regulations made for the purposes
1
of paragraph (e) may prescribe an instrument:
2
(f) as existing at a particular time; or
3
(g) as existing from time to time.
4
Kyoto unit means:
5
(a) an assigned amount unit; or
6
(b) a certified emission reduction; or
7
(c) an emission reduction unit; or
8
(d) a removal unit; or
9
(e) a prescribed unit issued in accordance with the Kyoto rules.
10
It is immaterial whether a unit covered by paragraph (e) was issued
11
in or outside Australia.
12
landfill facility means a facility for the disposal of solid waste as
13
landfill, and includes a facility that is closed for the acceptance of
14
waste.
15
liability transfer certificate means a certificate issued under
16
section 72 or 76.
17
liable entity means a person who, under a provision of this Act, is a
18
liable entity.
19
liquid petroleum fuel means:
20
(a) excisable goods (within the meaning of the Excise Act 1901)
21
classified to item 10 of the Schedule to the Excise Tariff Act
22
1921; or
23
(b) imported goods (within the meaning of the Excise Act 1901)
24
that would be classified to item 10 of that Schedule if they
25
were manufactured in Australia;
26
that do not include an exempt hydrocarbon solvent.
27
liquid petroleum gas has the same meaning as in the National
28
Greenhouse and Energy Reporting Regulations 2008.
29
liquid petroleum gas marketer means a person who is supplied
30
liquid petroleum gas from:
31
(a) a liquid petroleum gas separation plant bulk storage; or
32
(b) an import terminal bulk storage; or
33
Part 1 Preliminary
Section 5
22 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(c) a petroleum refinery bulk storage;
1
for the purpose of re-supply.
2
local governing body means a local governing body established by
3
or under a law of a State or Territory.
4
long-term certified emission reduction means a certified emission
5
reduction that is treated as a long-term certified emission reduction
6
for the purposes of the relevant provisions of the Kyoto rules.
7
lower bound of the national scheme gateway has the meaning
8
given by section 15.
9
make-good number has the meaning given by section 142.
10
management of a forest stand includes the harvesting and
11
re-establishment of the forest stand.
12
mandatory cancellation account means a Commonwealth Registry
13
account designated as the mandatory cancellation account for a
14
particular commitment period.
15
Meeting of the Kyoto Parties means the Meeting of the Parties to
16
the Climate Change Convention serving as the meeting of the
17
Parties to the Kyoto Protocol.
18
member, in relation to a group, has the same meaning as in the
19
National Greenhouse and Energy Reporting Act 2007.
20
Note:
See also section 386 (transitional).
21
Minister, in relation to Norfolk Island, means an executive
22
member within the meaning of the Norfolk Island Act 1979.
23
monitoring powers has the meaning given by section 309.
24
monitoring warrant means a warrant issued under section 321.
25
nameplate rating of a generation asset means:
26
(a) in the case of a generation complex--the maximum
27
continuous electrical generation capacity in megawatts of the
28
generation complex, as registered with the appropriate energy
29
market operator; or
30
Preliminary Part 1
Section 5
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 23
(b) in the case of a generation complex project--the proposed
1
maximum continuous electrical generation capacity in
2
megawatts of the proposed generation complex, as registered,
3
or proposed to be registered, with the appropriate energy
4
market operator.
5
national scheme cap has the meaning given by section 14.
6
national scheme cap number has the meaning given by section 14.
7
native forest has the meaning given by the regulations.
8
net source cancellation account means a Commonwealth Registry
9
account designated as the net source cancellation account for a
10
particular commitment period.
11
net total number of Australian emissions units issued in relation to
12
an eligible reforestation project in accordance with Part 10 has the
13
meaning given by section 242.
14
non-compliance cancellation account means a Commonwealth
15
Registry account designated as the non-compliance cancellation
16
account for a particular commitment period.
17
Note:
See also section 386 (transitional).
18
non-group entity has the same meaning as in the National
19
Greenhouse and Energy Reporting Act 2007.
20
Note:
See also section 386 (transitional).
21
non-Kyoto international emissions unit means:
22
(a) a prescribed unit issued in accordance with an international
23
agreement (other than the Kyoto Protocol); or
24
(b) a prescribed unit issued outside Australia under a law of a
25
foreign country.
26
It is immaterial whether a unit covered by paragraph (a) was issued
27
in or outside Australia.
28
obligation transfer number or OTN means an OTN issued under
29
section 44 or 45.
30
officer has the same meaning as in the Corporations Act 2001.
31
Part 1 Preliminary
Section 5
24 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
official of the Authority has the same meaning as in the Australian
1
Climate Change Regulatory Authority Act 2010.
2
offsets project means:
3
(a) a project to remove one or more greenhouse gases from the
4
atmosphere; or
5
(b) a project to reduce emissions of one or more greenhouse
6
gases.
7
For this purpose, it is immaterial whether the project has been
8
carried out.
9
one-off quotation of an OTN has the meaning given by
10
section 51A.
11
open, in relation to a Registry account, means open under
12
section 146.
13
operation, in relation to a facility, has the same meaning as in the
14
National Greenhouse and Energy Reporting Act 2007.
15
Note:
See also section 386 (transitional).
16
operational control has the same meaning as in the National
17
Greenhouse and Energy Reporting Act 2007.
18
Note:
See also section 386 (transitional).
19
OTN: see obligation transfer number.
20
OTN Register means the register kept under section 49.
21
participant, in relation to a joint venture, means any of the persons
22
who carry on the joint venture.
23
penalty unit has the meaning given by section 4AA of the Crimes
24
Act 1914.
25
permitted forest activity has the meaning given by section 226.
26
person means any of the following:
27
(a)
an
individual;
28
(b) a body corporate;
29
(c)
a
trust;
30
Preliminary Part 1
Section 5
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 25
(d) a corporation sole;
1
(e) a body politic;
2
(f) a local governing body.
3
person assisting an inspector has the meaning given by
4
section 310.
5
potential greenhouse gas emissions has the same meaning as in
6
the National Greenhouse and Energy Reporting Act 2007.
7
Note:
See also section 386 (transitional).
8
power system reliability test has the meaning given by section 189.
9
premises includes the following:
10
(a) a structure, building, vehicle, vessel or aircraft;
11
(b) a place (whether or not enclosed or built on);
12
(c) a part of a thing referred to in paragraph (a) or (b).
13
prescribed non-CPRS reforestation scheme has the meaning given
14
by the regulations.
15
prescribed wholesale gas market has the meaning given by the
16
regulations.
17
project area, in relation to a reforestation project, means:
18
(a) if the project relates to a single forest stand--the area of land
19
occupied, or to be occupied, by the forest stand; or
20
(b) if the project relates to 2 or more forest stands--an area of
21
land occupied, or to be occupied, by any of those forest
22
stands.
23
project manager, in relation to a reforestation project, has the
24
meaning given by section 197A.
25
proposed generation complex, in relation to a generation complex
26
project, means the generation complex that is proposed to result
27
from the project. For this purpose, it is immaterial whether the
28
generation complex has been constructed or commissioned.
29
provisional emissions number:
30
(a) has the meaning given by Part 3; and
31
Part 1 Preliminary
Section 5
26 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(b) has a meaning affected by sections 11B and 11C of the
1
National Greenhouse and Energy Reporting Act 2007.
2
quarter means a period of 3 months beginning on 1 January,
3
1 April, 1 July or 1 October.
4
quote, in relation to an OTN, has the meaning given by section 51.
5
recognised:
6
(a)
recognised as a reforestation entity means recognised under
7
section 201; and
8
(b)
recognised as a synthetic greenhouse gas destruction
9
customer means recognised under section 256; and
10
(c)
recognised as an offsets entity means recognised under
11
section 259P.
12
recognised offsets entity means a person recognised as an offsets
13
entity.
14
recognised reforestation entity means a person recognised as a
15
reforestation entity.
16
recognised synthetic greenhouse gas destruction customer means
17
a company recognised as a synthetic greenhouse gas destruction
18
customer.
19
recognised transformation: each of the following is a recognised
20
transformation of an eligible upstream fuel to another type of
21
eligible upstream fuel:
22
(a) the transformation of brown coal to brown coal briquettes;
23
(b) the transformation of brown coal briquettes to coal-based
24
char;
25
(c) the transformation of coking coal to coke oven coke;
26
(d) the transformation of natural gas to liquefied natural gas;
27
(e) the transformation of natural gas to compressed natural gas;
28
(f) the transformation of liquefied natural gas to natural gas;
29
(g) the transformation of compressed natural gas to natural gas;
30
(h) the transformation of a type of eligible upstream fuel
31
specified in the regulations to a type of eligible upstream fuel
32
specified in the regulations.
33
Preliminary Part 1
Section 5
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 27
refinery grade propene (propylene) has the same meaning as in the
1
National Greenhouse and Energy Reporting Regulations 2008.
2
reforestation project means:
3
(a) a project for the establishment, management and maintenance
4
of one or more forest stands; or
5
(b) a project for the management and maintenance of one or
6
more existing forest stands.
7
For this purpose, it is immaterial whether the project has been
8
carried out.
9
reforestation report means a report under section 225.
10
reforestation reporting period has the meaning given by
11
section 223 or 224.
12
reforestation unit limit, in relation to an eligible reforestation
13
project, has the meaning given by section 220, 221 or 222.
14
registered holder, in relation to:
15
(a) an Australian emissions unit; or
16
(b) a Kyoto unit; or
17
(c) a non-Kyoto international emissions unit;
18
means the person in whose Registry account there is an entry for
19
the unit.
20
Register of Reforestation Projects means the register kept under
21
section 238.
22
Registry means the Australian National Registry of Emissions
23
Units continued in existence under section 145.
24
Registry account means an account kept in accordance with
25
section 146.
26
regulatory approval, in relation to a reforestation project, means an
27
approval, licence or permit (however described) that:
28
(a) relates to, or to an element of, the project; and
29
(b) is required under a law of the Commonwealth, a State or
30
Territory that relates to:
31
(i) land use or development; or
32
Part 1 Preliminary
Section 5
28 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(ii)
the
environment.
1
relinquish, in relation to an Australian emissions unit, means
2
relinquish under section 286.
3
removal unit means a removal unit issued in accordance with the
4
relevant provisions of the Kyoto rules. It is immaterial whether the
5
unit was issued in or out of Australia.
6
retirement account for a commitment period means a
7
Commonwealth Registry account designated as the retirement
8
account for a particular commitment period.
9
reviewable decision has the meaning given by section 346.
10
saleable coal has the meaning given by the regulations.
11
scheme, when used in section 23 or 30 or Part 22, means:
12
(a) any agreement, arrangement, understanding, promise or
13
undertaking, whether express or implied and whether or not
14
enforceable, or intended to be enforceable, by legal
15
proceedings; or
16
(b) any scheme, plan, proposal, action, course of action or course
17
of conduct, whether there are 2 or more parties or only one
18
party involved.
19
scheme obligation transfer agreement has the meaning given by
20
section 197B.
21
scope 1 emission of greenhouse gas has the meaning given by the
22
National Greenhouse and Energy Reporting Act 2007.
23
Note:
See also section 386 (transitional).
24
Secretary means the Secretary of the Department.
25
staff of the Authority has the same meaning as in the Australian
26
Climate Change Regulatory Authority Act 2010.
27
standing quotation of an OTN has the meaning given by
28
section 51B.
29
statutory authority of the Commonwealth, a State or a Territory,
30
means an authority or body (including a corporation sole)
31
Preliminary Part 1
Section 5
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 29
established by or under a law of the Commonwealth, the State or
1
Territory other than a general law allowing incorporation as a
2
company or body corporate.
3
supply means supply (including re-supply) by way of sale,
4
exchange or gift.
5
Note 1:
See also section 5A (extended meaning of supply).
6
Note 2:
See also section 6 (timing of supply).
7
surrender, in relation to an eligible emissions unit, means
8
surrender under section 129.
9
syngas has the same meaning as in the National Greenhouse and
10
Energy Reporting Regulations 2008.
11
synthetic greenhouse gas has the same meaning as in the National
12
Greenhouse and Energy Reporting Act 2007.
13
Note:
See also section 386 (transitional).
14
synthetic greenhouse gas destruction event means an event that
15
consists of the destruction of a particular quantity of a particular
16
kind of synthetic greenhouse gas.
17
temporary certified emission reduction means a certified emission
18
reduction that is treated as a temporary certified emission reduction
19
for the purposes of the relevant provisions of the Kyoto rules.
20
territorial sea has the same meaning as in the Seas and Submerged
21
Lands Act 1973.
22
Torrens system land: land is Torrens system land if the title to the
23
land is registered under a Torrens system of registration.
24
transfer:
25
(a) in relation to an Australian emissions unit--has the meaning
26
given by section 95; or
27
(b) in relation to a Kyoto unit--has the meaning given by
28
section 107; or
29
(c) in relation to a non-Kyoto international emissions unit--has
30
the meaning given by section 118.
31
Part 1 Preliminary
Section 5
30 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
transferee, in relation to a scheme obligation transfer agreement,
1
has the meaning given by section 197B.
2
trust means a person in the capacity of trustee or, as the case
3
requires, a trust estate.
4
trustee has the same meaning as in the Income Tax Assessment Act
5
1997.
6
trust estate has the same meaning as in the Income Tax Assessment
7
Act 1997.
8
type:
9
(a)
type of eligible upstream fuel:
10
(i) each substance classified to item 10 of the Schedule to
11
the Excise Tariff Act 1921 (or that would be classified to
12
that item if it was manufactured in Australia) is a type of
13
eligible upstream fuel; and
14
(ii) a substance covered by a particular paragraph of the
15
definition of eligible upstream fuel (other than
16
paragraph (a) of the definition) is a type of eligible
17
upstream fuel; and
18
(b)
type of synthetic greenhouse gas:
19
(i) a substance covered by paragraph 7B(1)(a) of the
20
National Greenhouse and Energy Reporting Act 2007 is
21
a type of synthetic greenhouse gas; and
22
(ii) a substance covered by a particular item of table 1 or
23
table 2 in section 7B of that Act is a type of synthetic
24
greenhouse gas.
25
United Nations Convention on the Law of the Sea means the
26
United Nations Convention on the Law of the Sea done at Montego
27
Bay on 10 December 1982.
28
Note:
The text of the Convention is set out in Australian Treaty Series 1994
29
No. 31 ([1994] ATS 31). In 2010, the text of a Convention in the
30
Australian Treaty Series was accessible through the Australian
31
Treaties Library on the AustLII website (www.austlii.edu.au).
32
unit shortfall has the meaning given by section 130.
33
Preliminary Part 1
Section 5A
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 31
upper bound of the national scheme gateway has the meaning
1
given by section 15.
2
vacancy:
3
(a) in relation to the office of an expert advisory committee
4
member--has a meaning affected by section 7; or
5
(b) in relation to the office of a Domestic Offsets Integrity
6
Committee member--has a meaning affected by section 7A.
7
vintage year, in relation to an Australian emissions unit, has the
8
meaning given by subsection 85(2).
9
voluntary cancellation account means a Commonwealth Registry
10
account designated as the voluntary cancellation account for a
11
particular commitment period.
12
windfall gain declaration means a declaration under section 186.
13
windfall gain test has the meaning given by section 187.
14
5A Extended meaning of supply
15
For the purposes of this Act, if:
16
(a) a person (the supplier) makes eligible upstream fuel available
17
to another person (the recipient) for combustion at a facility;
18
and
19
(b) apart from this section, making the fuel available is not a
20
supply;
21
then:
22
(c) the supplier is taken to supply the fuel to the recipient; and
23
(d) the supply occurs when the fuel is combusted.
24
6 When supply occurs
25
Natural gas distributed or transmitted in a pipeline
26
(1) For the purposes of this Act, if natural gas is distributed or
27
transmitted in a pipeline, the supply of the natural gas occurs:
28
Part 1 Preliminary
Section 7
32 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(a) if the regulations provide that the supply occurs when the gas
1
passes a point ascertained in accordance with the
2
regulations--when the gas passes that point; or
3
(b)
otherwise:
4
(i) if the supply involves physical delivery--when the gas
5
is physically delivered; or
6
(ii) if the supply does not involve physical delivery--when
7
property in the gas is transferred.
8
Other substances
9
(2) For the purposes of this Act:
10
(a) if the supply of a substance (other than natural gas distributed
11
or transmitted in a pipeline) involves a physical delivery--
12
the supply of the substance occurs when the substance is
13
physically delivered; or
14
(b) if the supply of a substance (other than natural gas distributed
15
or transmitted in a pipeline) does not involve a physical
16
delivery--the supply of the substance occurs when property
17
in the substance is transferred.
18
Exception
19
(3) This section does not apply to a supply covered by section 5A.
20
7 Vacancy in the office of an expert advisory committee member
21
For the purposes of a reference in:
22
(a) this Act to a vacancy in the office of an expert advisory
23
committee member; or
24
(b)
the
Acts Interpretation Act 1901 to a vacancy in the
25
membership of a body;
26
for each expert advisory committee, there are taken to be 4 offices
27
of expert advisory committee members in addition to the Chair of
28
the expert advisory committee.
29
Preliminary Part 1
Section 7A
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 33
7A Vacancy in the office of a Domestic Offsets Integrity Committee
1
member
2
For the purposes of a reference in:
3
(a) this Act to a vacancy in the office of a Domestic Offsets
4
Integrity Committee member; or
5
(b)
the
Acts Interpretation Act 1901 to a vacancy in the
6
membership of a body;
7
there are taken to be 4 offices of member of the Domestic Offsets
8
Integrity Committee in addition to the Chair of the Domestic
9
Offsets Integrity Committee.
10
8 Electronic notice transmitted to the Authority
11
(1) For the purposes of this Act, a notice is an electronic notice
12
transmitted to the Authority if, and only if:
13
(a) the notice is transmitted to the Authority by means of an
14
electronic communication; and
15
(b) if the Authority requires that the notice be transmitted, in
16
accordance with particular information technology
17
requirements, by means of a particular kind of electronic
18
communication--the Authority's requirement has been met;
19
and
20
(c) the notice complies with regulations made for the purposes of
21
subsection (2).
22
(2) The regulations may make provision for or in relation to the
23
security and authenticity of notices transmitted to the Authority by
24
means of an electronic communication.
25
(3) Regulations made for the purposes of subsection (2) may deal with:
26
(a)
encryption;
and
27
(b) authentication of identity.
28
(4) Subsection (3) does not limit subsection (2).
29
(5) For the purposes of this Act, if a notice is transmitted to the
30
Authority by means of an electronic communication, the notice is
31
taken to have been transmitted on the day on which the electronic
32
communication is dispatched.
33
Part 1 Preliminary
Section 9
34 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(6) Subsection (5) of this section has effect despite subsections 14(3)
1
and (4) of the Electronic Transactions Act 1999.
2
(7) This section does not, by implication, limit the regulations that may
3
be made under the Electronic Transactions Act 1999.
4
9 Crown to be bound
5
(1) This Act binds the Crown in each of its capacities.
6
(2) This Act does not make the Crown liable to a pecuniary penalty or
7
to be prosecuted for an offence.
8
(3) The protection in subsection (2) does not apply to an authority of
9
the Crown.
10
(4) The protection in subsection (2) does not apply to a penalty under
11
section 133, 135, 287 or 288.
12
10 Extension to external Territories
13
This Act extends to every external Territory.
14
11 Extension to exclusive economic zone and continental shelf
15
This Act extends to a matter relating to the exercise of Australia's
16
sovereign rights in the exclusive economic zone or the continental
17
shelf.
18
11A Extension to Joint Petroleum Development Area
19
This Act extends to the Joint Petroleum Development Area.
20
Note:
See also sections 22A and 22B (adjustment of provisional emissions
21
number).
22
12 Application to foreign ships
23
This Act does not apply to the extent that its application would be
24
inconsistent with the exercise of rights of foreign ships in:
25
(a) the territorial sea; or
26
(b) the exclusive economic zone; or
27
Preliminary Part 1
Section 12
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 35
(c) waters of the continental shelf;
1
in accordance with the United Nations Convention on the Law of
2
the Sea.
3
4
Part 2 National scheme cap and national scheme gateway
Section 13
36 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
(ba) the total number of free Australian emissions units issued in
18
accordance with Part 8A (coal mining); and
19
(c) the total number of free Australian emissions units issued in
20
accordance with Part 9 (coal-fired electricity generation).
21
14 National scheme cap
22
National scheme cap
23
(1) The regulations may declare that:
24
(a) a quantity of greenhouse gas that has a carbon dioxide
25
equivalence of a specified number of tonnes is the national
26
scheme cap for a specified eligible financial year (other than
27
the eligible financial year starting on 1 July 2011); and
28
(b) that number is the national scheme cap number for that
29
eligible financial year.
30
(2) The Minister must take all reasonable steps to ensure that:
31
National scheme cap and national scheme gateway Part 2
Section 14
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 37
(a) regulations declaring the national scheme cap number for the
1
eligible financial year beginning on 1 July 2012; and
2
(b) regulations declaring the national scheme cap number for
3
each of the next 3 eligible financial years;
4
are made not later than 31 December 2011.
5
(3) The Minister must take all reasonable steps to ensure that:
6
(a) regulations declaring the national scheme cap number for the
7
eligible financial year beginning on 1 July 2016 are made at
8
least 5 years before the end of the eligible financial year; and
9
(b) regulations declaring the national scheme cap number for a
10
later eligible financial year are made at least 5 years before
11
the end of the later eligible financial year.
12
(4)
If:
13
(a) apart from this subsection, at the beginning of the 5-year
14
period ending at the end of an eligible financial year (the
15
current eligible financial year), there is no national scheme
16
cap number for the current eligible financial year; and
17
(b) there was a national scheme cap number for the previous
18
eligible financial year; and
19
(c) the current eligible financial year began on or after 1 July
20
2016;
21
the national scheme cap number for the current eligible financial
22
year is equal to:
23
(d) if 99% of the national scheme cap number for the previous
24
eligible financial year is less than the lower bound of the
25
national scheme gateway for the current eligible financial
26
year--that lower bound; or
27
(e) if 99% of the national scheme cap number for the previous
28
eligible financial year exceeds the upper bound of the
29
national scheme gateway for the current eligible financial
30
year--that upper bound; or
31
(f) if neither paragraph (d) nor (e) applies--99% of the national
32
scheme cap number for the previous eligible financial year
33
(rounded to the nearest whole number, with a number ending
34
in .5 being rounded up).
35
Part 2 National scheme cap and national scheme gateway
Section 14
38 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 39
(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 2016; 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
40 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 41
(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
42 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 43
(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
44 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 45
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
46 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 47
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
48 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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 2010 No. , 2010 49
(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
Part 3 Liable entities
Division 2 Direct emitters of greenhouse gases
Section 18
50 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(8)
If:
1
(a) the facility was under the operational control of the
2
non-group entity for a number of, but not all, days in the
3
eligible financial year (the control days); and
4
(b) during the control days, an amount of greenhouse gas emitted
5
from the operation of the facility was attributable to the
6
combustion of eligible upstream fuel that was obtained by
7
way of the supply of the fuel to a person (who may be the
8
non-group entity); and
9
(c) in a case where the person had operational control of the
10
facility--the person did not quote the person's OTN in
11
relation to the supply of the fuel;
12
the amount mentioned in paragraph (b):
13
(d) does not count for the purposes of subsection (1); and
14
(e) counts for the purposes of paragraph (5)(b).
15
Liquid petroleum fuel--no double counting
16
(9)
If:
17
(a) the facility was under the operational control of the
18
non-group entity throughout the eligible financial year; and
19
(b) during the eligible financial year, an amount of greenhouse
20
gas emitted from the operation of the facility was attributable
21
to the combustion of liquid petroleum fuel; and
22
(c) the potential greenhouse gas emissions embodied in the fuel
23
were counted for the purposes of subsection 31(1) or 32(1);
24
the amount mentioned in paragraph (b):
25
(d) does not count for the purposes of subsection (1); and
26
(e) counts for the purposes of paragraph (4)(b).
27
(10)
If:
28
(a) the facility was under the operational control of the
29
non-group entity for a number of, but not all, days in the
30
eligible financial year (the control days); and
31
(b) during the control days, an amount of greenhouse gas emitted
32
from the operation of the facility was attributable to the
33
combustion of liquid petroleum fuel; and
34
Liable entities Part 3
Direct emitters of greenhouse gases Division 2
Section 19
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 51
(c) the potential greenhouse gas emissions embodied in the fuel
1
were counted for the purposes of subsection 31(1) or 32(1);
2
the amount mentioned in paragraph (b):
3
(d) does not count for the purposes of subsection (1); and
4
(e) counts for the purposes of paragraph (5)(b).
5
19 Liable entity--holder of a liability transfer certificate
6
Scope
7
(1) This section applies if:
8
(a)
either:
9
(i) a person was the holder of a liability transfer certificate
10
in relation to a facility (other than a landfill facility)
11
throughout an eligible financial year; or
12
(ii) a person was the holder of a liability transfer certificate
13
in relation to a facility (other than a landfill facility) for
14
a number of, but not all, days in an eligible financial
15
year (the certificate days); and
16
(b) the total amount of greenhouse gases emitted from the
17
operation of the facility:
18
(i) if subparagraph (a)(i) applies--during the eligible
19
financial year; or
20
(ii) if subparagraph (a)(ii) applies--during the certificate
21
days;
22
has a carbon dioxide equivalence of a particular number of
23
tonnes.
24
Provisional emissions number
25
(2) For the purposes of this Act, that number is a provisional
26
emissions number of the person for the eligible financial year.
27
Liable entity
28
(3) For the purposes of this Act, the person is a liable entity for the
29
eligible financial year.
30
Part 3 Liable entities
Division 2 Direct emitters of greenhouse gases
Section 19
52 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Exemption--small facility
1
(4)
If:
2
(a) the person was the holder of the liability transfer certificate
3
throughout the eligible financial year; and
4
(b) during the eligible financial year, the total amount of
5
greenhouse gases emitted from the operation of the facility
6
had a carbon dioxide equivalence of less than 25,000 tonnes;
7
so much of the total amount mentioned in paragraph (b) as would
8
otherwise count for the purposes of subsection (1) does not count
9
for the purposes of subsection (1).
10
Note:
See also section 23 (anti-avoidance).
11
(5)
If:
12
(a) the person was the holder of the liability transfer certificate
13
for a number of, but not all, days in the eligible financial year
14
(the certificate days); and
15
(b) during the certificate days, the total amount of greenhouse
16
gases emitted from the operation of the facility had a carbon
17
dioxide equivalence of less than the amount worked out using
18
the formula:
19
Number of certificate days
25,000 tonnes
Number of days in the eligible financial year
×
20
so much of the total amount mentioned in paragraph (b) as would
21
otherwise count for the purposes of subsection (1) does not count
22
for the purposes of subsection (1).
23
Note:
See also section 23 (anti-avoidance).
24
OTNs--no double counting
25
(6)
If:
26
(a) the person was the holder of the liability transfer certificate
27
throughout the eligible financial year; and
28
(b) during the eligible financial year, an amount of greenhouse
29
gas emitted from the operation of the facility was attributable
30
to the combustion of eligible upstream fuel that was obtained
31
Liable entities Part 3
Direct emitters of greenhouse gases Division 2
Section 19
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 53
by way of the supply of the fuel to a person (the recipient)
1
(who may be the holder); and
2
(c) in a case where the person had operational control of the
3
facility--the recipient did not quote the recipient's OTN in
4
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 (4)(b).
8
(7)
If:
9
(a) the person was the holder of the liability transfer certificate
10
for a number of, but not all, days in the eligible financial year
11
(the certificate days); and
12
(b) during the certificate days, an amount of greenhouse gas
13
emitted from the operation of the facility was attributable to
14
the combustion of eligible upstream fuel that was obtained by
15
way of the supply of the fuel to a person (the recipient) (who
16
may be the holder); and
17
(c) in a case where the person had operational control of the
18
facility--the recipient did not quote the recipient's OTN in
19
relation to the supply of the fuel;
20
the amount mentioned in paragraph (b):
21
(d) does not count for the purposes of subsection (1); and
22
(e) counts for the purposes of paragraph (5)(b).
23
Liquid petroleum fuel--no double counting
24
(8)
If:
25
(a) the person was the holder of the liability transfer certificate
26
throughout the eligible financial year; and
27
(b) during the eligible financial year, an amount of greenhouse
28
gas emitted from the operation of the facility was attributable
29
to the combustion of liquid petroleum fuel; and
30
(c) the potential greenhouse gas emissions embodied in the fuel
31
were counted for the purposes of subsection 31(1) or 32(1);
32
the amount mentioned in paragraph (b):
33
(d) does not count for the purposes of subsection (1); and
34
(e) counts for the purposes of paragraph (4)(b).
35
Part 3 Liable entities
Division 2 Direct emitters of greenhouse gases
Section 20
54 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(9)
If:
1
(a) the person was the holder of the liability transfer certificate
2
for a number of, but not all, days in the eligible financial year
3
(the certificate days); and
4
(b) during the certificate days, an amount of greenhouse gas
5
emitted from the operation of the facility was attributable to
6
the combustion of liquid petroleum fuel; and
7
(c) the potential greenhouse gas emissions embodied in the fuel
8
were counted for the purposes of subsection 31(1) or 32(1);
9
the amount mentioned in paragraph (b):
10
(d) does not count for the purposes of subsection (1); and
11
(e) counts for the purposes of paragraph (5)(b).
12
Subdivision B--Landfill facilities
13
20 Liable entity for landfill emissions--controlling corporation of a
14
group
15
Scope
16
(1) This section applies if:
17
(a)
either:
18
(i) a landfill facility was under the operational control of
19
one or more members of a controlling corporation's
20
group throughout an eligible financial year; or
21
(ii) a landfill facility was under the operational control of
22
one or more members of a controlling corporation's
23
group for a number of, but not all, days in an eligible
24
financial year (the control days); and
25
(b) the total amount of greenhouse gases emitted from the
26
operation of the landfill facility:
27
(i) if subparagraph (a)(i) applies--during the eligible
28
financial year; or
29
(ii) if subparagraph (a)(ii) applies--during the control days;
30
has a carbon dioxide equivalence of a particular number of
31
tonnes.
32
Liable entities Part 3
Direct emitters of greenhouse gases Division 2
Section 20
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 55
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
56 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 57
(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
58 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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 2010 No. , 2010 59
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
60 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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 2010 No. , 2010 61
(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
62 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 63
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
64 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 65
(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
66 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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 2010 No. , 2010 67
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
68 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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 2010 No. , 2010 69
(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
70 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 71
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
72 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 73
(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
(1) 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 24
74 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Exclusion of agricultural emissions
1
(2) For the purposes of this Act, an emission of a greenhouse gas from
2
the operation of a facility does not include any of the following
3
emissions:
4
(a) an emission of methane from the digestive tract of livestock;
5
(b) an emission of:
6
(i)
methane;
or
7
(ii)
nitrous
oxide;
8
from the decomposition of:
9
(iii) livestock urine; or
10
(iv)
livestock
dung;
11
(c) an emission of methane from:
12
(i) rice fields; or
13
(ii)
rice
plants;
14
(d) an emission of:
15
(i)
methane;
or
16
(ii)
nitrous
oxide;
17
from the burning of:
18
(iii)
savannas;
or
19
(iv)
grasslands;
20
(e) an emission of:
21
(i)
methane;
or
22
(ii)
nitrous
oxide;
23
from the burning of:
24
(iii) crop stubble in fields; or
25
(iv) crop residues in fields; or
26
(v) sugar cane before harvest;
27
(f) an emission of:
28
(i) carbon dioxide; or
29
(ii)
methane;
or
30
(iii)
nitrous
oxide;
31
from
soil.
32
(3) Paragraph (2)(f) does not apply to an emission that is attributable
33
to the operation of a landfill facility.
34
Liable entities Part 3
Direct emitters of greenhouse gases Division 2
Section 25
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 75
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
Part 3 Liable entities
Division 3 Importers, manufacturers and suppliers of synthetic greenhouse gases
Section 26
76 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 is a provisional
9
emissions number of the person for the eligible financial year.
10
Note:
See also section 27A, which deals with the reduction of total
11
provisional emissions numbers.
12
Liable entity
13
(3) For the purposes of this Act, the person is a liable entity for the
14
eligible financial year.
15
Exemption--small importers
16
(4) If, during the eligible financial year, the total amount of synthetic
17
greenhouse gases imported by the person has a carbon dioxide
18
equivalence of less than 25,000 tonnes, the total amount does not
19
count for the purposes of subsection (1).
20
Note:
See also section 30 (anti-avoidance).
21
Synthetic greenhouse gases in manufactured products
22
(5) For the purposes of this section, disregard a synthetic greenhouse
23
gas if the gas is in a manufactured product that consists in part of
24
that gas only because the gas was used in the manufacturing
25
process.
26
Note:
For example, this subsection would apply to a gas that remained in a
27
foam product after the gas was used in the production of the foam.
28
Liable entities Part 3
Importers, manufacturers and suppliers of synthetic greenhouse gases Division 3
Section 27
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 77
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
27 Liable entity--manufacture of synthetic greenhouse gas
14
Scope
15
(1) This section applies if, during an eligible financial year, the total
16
amount of synthetic greenhouse gases manufactured by a person
17
has a carbon dioxide equivalence of a particular number of tonnes.
18
Provisional emissions number
19
(2) For the purposes of this Act, that number is a provisional
20
emissions number of the person for the eligible financial year.
21
Note:
See also section 27A, which deals with the reduction of total
22
provisional emissions numbers.
23
Liable entity
24
(3) For the purposes of this Act, the person is a liable entity for the
25
eligible financial year.
26
Exemption--small manufacturers
27
(4) If, during the eligible financial year, the total amount of synthetic
28
greenhouse gases manufactured by the person has a carbon dioxide
29
Part 3 Liable entities
Division 3 Importers, manufacturers and suppliers of synthetic greenhouse gases
Section 27A
78 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
equivalence of less than 25,000 tonnes, the total amount does not
1
count for the purposes of subsection (1).
2
Note:
See also section 30 (anti-avoidance).
3
Recycling of synthetic greenhouse gas
4
(5) For the purposes of this section, disregard a process by which a
5
quantity of synthetic greenhouse gas is produced by the recycling
6
of substances containing synthetic greenhouse gases of that
7
quantity.
8
(6) For the purposes of this section, if a process for the manufacture of
9
a quantity of synthetic greenhouse gas involves, in part, the
10
recycling of substances containing synthetic greenhouse gas of a
11
lesser quantity, the quantity of synthetic greenhouse gas
12
manufactured in the process is taken to be reduced by the quantity
13
of synthetic greenhouse gas in the substances recycled in the
14
process.
15
27A Reduction of total provisional emissions numbers--netted-out
16
numbers
17
Reduction of provisional emissions numbers
18
(1)
If:
19
(a) under section 26 or 27, or both, a person has one or more
20
provisional emissions numbers for an eligible financial year;
21
and
22
(b) the person has one or more netted-out numbers for the
23
eligible financial year;
24
the total of those provisional emissions numbers is to be reduced
25
(but not below zero) by the total of those netted-out numbers.
26
Netted-out numbers
27
(2) For the purposes of this section, if:
28
(a) during an eligible financial year, the total amount of a
29
particular type of synthetic greenhouse gas imported or
30
manufactured, or both, by a person has a carbon dioxide
31
Liable entities Part 3
Importers, manufacturers and suppliers of synthetic greenhouse gases Division 3
Section 27A
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 79
equivalence of a particular number of tonnes (the
1
import/manufacture number); and
2
(b) during the eligible financial year, the total amount of the
3
same type of synthetic greenhouse gas exported by the person
4
has a carbon dioxide equivalence of a particular number of
5
tonnes (the export number);
6
then:
7
(c) if the import/manufacture number exceeds the export
8
number--the export number is a netted-out number of the
9
person for the eligible financial year; or
10
(d) otherwise--the import/manufacture number is a netted-out
11
number of the person for the eligible financial year.
12
(3) Paragraph (2)(b) does not apply to synthetic greenhouse gas
13
exported by the person if the synthetic greenhouse gas was
14
supplied in Australia to the person.
15
(4) For the purposes of this section, if:
16
(a) during an eligible financial year, a person (the first person)
17
imported or manufactured an amount of synthetic greenhouse
18
gas; and
19
(b) as a result of the import or manufacture, the first person has,
20
under section 26 or 27, a provisional emissions number for
21
the eligible financial year; and
22
(c) after the import or manufacture, the first person supplies an
23
amount of the synthetic greenhouse gas to another person
24
who quotes the other person's OTN in relation to the supply;
25
and
26
(d) the amount mentioned in paragraph (c) is the whole or a part
27
of the amount mentioned in paragraph (a); and
28
(e) the amount mentioned in paragraph (c) has a carbon dioxide
29
equivalence of a particular number of tonnes;
30
that number is a netted-out number of the first person for the
31
eligible financial year in which the supply mentioned in
32
paragraph (c) occurs.
33
Part 3 Liable entities
Division 3 Importers, manufacturers and suppliers of synthetic greenhouse gases
Section 27A
80 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Synthetic greenhouse gases in manufactured products
1
(5) For the purposes of this section, disregard the import of a synthetic
2
greenhouse gas if the gas is in a manufactured product that consists
3
in part of that gas only because the gas was used in the
4
manufacturing process.
5
Note:
For example, this subsection would apply to a gas that remained in a
6
foam product after the gas was used in the production of the foam.
7
Synthetic greenhouse gas for use on board ships or aircraft
8
(6) For the purposes of this section, disregard the import of a synthetic
9
greenhouse gas if:
10
(a) the synthetic greenhouse gas is on board a ship or aircraft;
11
and
12
(b) the ship or aircraft has air-conditioning or refrigeration
13
equipment; and
14
(c) the synthetic greenhouse gas is exclusively for use in meeting
15
the reasonable servicing requirements of that equipment
16
during, or in connection with, one or more periods when the
17
ship or aircraft is or will be engaged in a journey between:
18
(i) a place in Australia and a place outside Australia; or
19
(ii) 2 places outside Australia.
20
Recycling of synthetic greenhouse gas
21
(7) For the purposes of the application of this section to the
22
manufacture of synthetic greenhouse gas, disregard a process by
23
which a quantity of synthetic greenhouse gas is produced by the
24
recycling of substances containing synthetic greenhouse gases of
25
that quantity.
26
(8) For the purposes of the application of this section to the
27
manufacture of synthetic greenhouse gas, if a process for the
28
manufacture of a quantity of synthetic greenhouse gas involves, in
29
part, the recycling of substances containing synthetic greenhouse
30
gas of a lesser quantity, the quantity of synthetic greenhouse gas
31
manufactured in the process is taken to be reduced by the quantity
32
of synthetic greenhouse gas in the substances recycled in the
33
process.
34
Liable entities Part 3
Importers, manufacturers and suppliers of synthetic greenhouse gases Division 3
Section 28
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 81
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
82 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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 2010 No. , 2010 83
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
84 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 is a provisional
14
emissions number of the person for the eligible financial year.
15
Note:
See also section 32A, which deals with the reduction of total
16
provisional emissions numbers.
17
Liable entity
18
(3) For the purposes of this Act, the person is a liable entity for the
19
eligible financial year.
20
Import duty
21
(4) For the purposes of this section, in determining whether import
22
duty is or was payable on an amount of liquid petroleum fuel,
23
disregard:
24
(a) any remission, rebate or refund under section 163 of the
25
Customs Act 1901; or
26
(b) any drawback under regulations made for the purposes of
27
subsection 168(1) of the Customs Act 1901;
28
unless the remission, rebate, refund or drawback is prescribed by
29
regulations made for the purposes of this subsection.
30
Liable entities Part 3
Importers, producers and suppliers of eligible upstream fuels Division 4
Section 32
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 85
32 Liable entity--production of liquid petroleum fuel
1
Scope
2
(1) This section applies if:
3
(a) an amount of liquid petroleum fuel is manufactured or
4
produced in Australia during an eligible financial year; and
5
(b) excise duty is or was payable by a person on that amount;
6
and
7
(c) the potential greenhouse gas emissions embodied in that
8
amount has a carbon dioxide equivalence of a particular
9
number of tonnes.
10
Provisional emissions number
11
(2) For the purposes of this Act, that number is a provisional
12
emissions number of the person for the eligible financial year.
13
Note:
See also section 32A, which deals with the reduction of total
14
provisional emissions numbers.
15
Liable entity
16
(3) For the purposes of this Act, the person is a liable entity for the
17
eligible financial year.
18
Excise duty
19
(4) For the purposes of this section, in determining whether excise
20
duty is or was payable on an amount of liquid petroleum fuel,
21
disregard:
22
(a) any remission, rebate or refund under section 78 of the Excise
23
Act 1901; or
24
(b) any drawback under regulations made for the purposes of
25
section 79 of the Excise Act 1901;
26
unless the remission, rebate, refund or drawback is prescribed by
27
regulations made for the purposes of this subsection.
28
Part 3 Liable entities
Division 4 Importers, producers and suppliers of eligible upstream fuels
Section 32A
86 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
32A Reduction of total provisional emissions numbers under
1
section 31 or 32--netted-out numbers
2
Reduction of provisional emissions numbers
3
(1)
If:
4
(a) under section 31 or 32, or both, a person has one or more
5
provisional emissions numbers for an eligible financial year;
6
and
7
(b) the person has one or more netted-out numbers for the
8
eligible financial year;
9
the total of those provisional emissions numbers is to be reduced
10
(but not below zero) by the total of those netted-out numbers.
11
Netted-out numbers
12
(2) For the purposes of this section, if:
13
(a) an amount of liquid petroleum fuel is entered for home
14
consumption during an eligible financial year; and
15
(b) import duty is or was payable by a person (the first person)
16
on that amount; and
17
(c) as a result, the first person has, under section 31, a
18
provisional emissions number for the eligible financial year;
19
and
20
(d) after the import of the liquid petroleum fuel, the first person
21
supplies an amount of the liquid petroleum fuel to another
22
person who quotes the other person's OTN in relation to the
23
supply; and
24
(e) the amount mentioned in paragraph (d) is the whole or a part
25
of the amount mentioned in paragraph (a); and
26
(f) the potential greenhouse gas emissions embodied in the
27
amount mentioned in paragraph (d) have a carbon dioxide
28
equivalence of a particular number of tonnes;
29
the number is a netted-out number of the first person for the
30
eligible financial year in which the supply mentioned in
31
paragraph (d) occurs.
32
(3) For the purposes of this section, if:
33
Liable entities Part 3
Importers, producers and suppliers of eligible upstream fuels Division 4
Section 32A
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 87
(a) an amount of liquid petroleum fuel is manufactured or
1
produced in Australia during an eligible financial year; and
2
(b) excise duty is or was payable by a person (the first person)
3
on that amount; and
4
(c) as a result, the first person has, under section 32, a
5
provisional emissions number for the eligible financial year;
6
and
7
(d) after the manufacture or production, the first person supplies
8
an amount of the liquid petroleum fuel to another person who
9
quotes the other person's OTN in relation to the supply; and
10
(e) the amount mentioned in paragraph (d) is the whole or a part
11
of the amount mentioned in paragraph (a); and
12
(f) the potential greenhouse gas emissions embodied in the
13
amount mentioned in paragraph (d) have a carbon dioxide
14
equivalence of a particular number of tonnes;
15
the number is a netted-out number of the first person for the
16
eligible financial year in which the supply mentioned in
17
paragraph (d) occurs.
18
Import duty
19
(4) For the purposes of this section, in determining whether import
20
duty is or was payable on an amount of liquid petroleum fuel,
21
disregard:
22
(a) any remission, rebate or refund under section 163 of the
23
Customs Act 1901; or
24
(b) any drawback under regulations made for the purposes of
25
subsection 168(1) of the Customs Act 1901;
26
unless the remission, rebate, refund or drawback is prescribed by
27
regulations made for the purposes of subsection 31(4).
28
Excise duty
29
(5) For the purposes of this section, in determining whether excise
30
duty is or was payable on an amount of liquid petroleum fuel,
31
disregard:
32
(a) any remission, rebate or refund under section 78 of the Excise
33
Act 1901; or
34
Part 3 Liable entities
Division 4 Importers, producers and suppliers of eligible upstream fuels
Section 33
88 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(b) any drawback under regulations made for the purposes of
1
section 79 of the Excise Act 1901;
2
unless the remission, rebate, refund or drawback is prescribed by
3
regulations made for the purposes of subsection 32(4).
4
33 Liable entity--supply of untransformed eligible upstream fuel
5
(other than liquid petroleum fuel)
6
Scope
7
(1) This section applies if:
8
(a) during an eligible financial year, a person (the supplier)
9
supplies an amount of eligible upstream fuel to another
10
person; and
11
(b) the fuel is not the result of the carrying out by the supplier of
12
the recognised transformation of another type of eligible
13
upstream fuel; and
14
(c) the fuel is not liquid petroleum fuel; and
15
(d) if the fuel is imported--the supply is the first supply of the
16
fuel after the fuel was entered for home consumption; and
17
(e) if the fuel is not imported--the fuel was not supplied in
18
Australia to the supplier; and
19
(f) the other person did not quote the other person's OTN in
20
relation to the supply mentioned in paragraph (a); and
21
(fa) the supply mentioned in paragraph (a) was not into a
22
prescribed wholesale gas market; and
23
(g) the potential greenhouse gas emissions embodied in the
24
amount mentioned in paragraph (a) have a carbon dioxide
25
equivalence of a particular number of tonnes.
26
Provisional emissions number
27
(2) For the purposes of this Act, that number is a provisional
28
emissions number of the supplier for the eligible financial year.
29
Note:
See also section 37A, which deals with the exclusion of exported fuel.
30
Liable entities Part 3
Importers, producers and suppliers of eligible upstream fuels Division 4
Section 33A
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 89
Liable entity
1
(3) For the purposes of this Act, the supplier is a liable entity for the
2
eligible financial year.
3
33A Liable entity--re-supply of natural gas previously supplied out
4
of a prescribed wholesale gas market
5
Scope
6
(1) This section applies if:
7
(a) during an eligible financial year, a person (the supplier)
8
re-supplies an amount of natural gas to another person; and
9
(b) the gas was supplied to the supplier out of a prescribed
10
wholesale gas market; and
11
(c) the re-supply was not into a prescribed wholesale gas market;
12
and
13
(d) the other person did not quote the other person's OTN in
14
relation to the re-supply; and
15
(e) the potential greenhouse gas emissions embodied in the
16
amount mentioned in paragraph (a) have a carbon dioxide
17
equivalence of a particular number of tonnes.
18
Provisional emissions number
19
(2) For the purposes of this Act, that number is a provisional
20
emissions number of the supplier for the eligible financial year.
21
Liable entity
22
(3) For the purposes of this Act, the supplier is a liable entity for the
23
eligible financial year.
24
34 Liable entity--application to own use of untransformed eligible
25
upstream fuel (other than liquid petroleum fuel)
26
Scope
27
(1) This section applies if:
28
Part 3 Liable entities
Division 4 Importers, producers and suppliers of eligible upstream fuels
Section 35
90 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(a) during an eligible financial year, a person applies an amount
1
of eligible upstream fuel to the person's own use; and
2
(b) greenhouse gas was released into the atmosphere as a result
3
of the application to own use; and
4
(c) the fuel is not the result of the carrying out by the person of
5
the recognised transformation of another type of eligible
6
upstream fuel; and
7
(d) the fuel is not liquid petroleum fuel; and
8
(e) if the fuel is imported:
9
(i) the application to own use occurred after the fuel was
10
entered for home consumption; and
11
(ii) no supply of the fuel occurred after the fuel was entered
12
for home consumption; and
13
(f) if the fuel is not imported:
14
(i) the fuel was not supplied in Australia to the person; or
15
(ii) the fuel was supplied to the person out of a prescribed
16
wholesale gas market; and
17
(g) the greenhouse gas mentioned in paragraph (b) does not
18
count for the purposes of subsection 17(1), 18(1), 19(1),
19
20(1), 21(1) or 22(1); and
20
(h) the potential greenhouse gas emissions embodied in the
21
amount mentioned in paragraph (a) have a carbon dioxide
22
equivalence of a particular number of tonnes.
23
Provisional emissions number
24
(2) For the purposes of this Act, that number is a provisional
25
emissions number of the person for the eligible financial year.
26
Liable entity
27
(3) For the purposes of this Act, the person is a liable entity for the
28
eligible financial year.
29
35 Liable entity--supply of transformed eligible upstream fuel
30
Scope
31
(1) This section applies if:
32
Liable entities Part 3
Importers, producers and suppliers of eligible upstream fuels Division 4
Section 36
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 91
(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
(ca) the supply mentioned in paragraph (a) was not into a
9
prescribed wholesale gas market; and
10
(d) the potential greenhouse gas emissions embodied in the
11
amount mentioned in paragraph (a) have a carbon dioxide
12
equivalence of a particular number of tonnes.
13
Provisional emissions number
14
(2) For the purposes of this Act, that number is a provisional
15
emissions number of the supplier for the eligible financial year.
16
Note:
See also section 37A, which deals with the exclusion of exported fuel.
17
Liable entity
18
(3) For the purposes of this Act, the supplier is a liable entity for the
19
eligible financial year.
20
36 Liable entity--application of transformed eligible upstream fuel
21
to own use
22
Scope
23
(1) This section applies if:
24
(a) during an eligible financial year, a person applies an amount
25
of eligible upstream fuel to the person's own use; and
26
(b) greenhouse gas was released into the atmosphere as a result
27
of the application to own use; and
28
(c) the fuel is the result of the carrying out by the person of the
29
recognised transformation of another type of eligible
30
upstream fuel; and
31
(d) the fuel was not supplied in Australia to the person; and
32
Part 3 Liable entities
Division 4 Importers, producers and suppliers of eligible upstream fuels
Section 37
92 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(e) the greenhouse gas mentioned in paragraph (b) does not
1
count for the purposes of subsection 17(1), 18(1), 19(1),
2
20(1), 21(1) or 22(1); and
3
(f) the potential greenhouse gas emissions embodied in the
4
amount mentioned in paragraph (a) have a carbon dioxide
5
equivalence of a particular number of tonnes.
6
Provisional emissions number
7
(2) For the purposes of this Act, that number is a provisional
8
emissions number of the person for the eligible financial year.
9
Liable entity
10
(3) For the purposes of this Act, the person is a liable entity for the
11
eligible financial year.
12
37 Liable entity--re-supply of eligible upstream fuel
13
Scope
14
(1) This section applies if:
15
(a) during an eligible financial year, a person supplies an amount
16
of eligible upstream fuel to another person (the OTN holder)
17
who quotes the other person's OTN in relation to the supply;
18
and
19
(b) during that or a later eligible financial year, the OTN holder
20
re-supplies the whole or a part of that amount to a third
21
person; and
22
(ba) the re-supply was not into a prescribed wholesale gas market;
23
and
24
(c) the third person does not quote the third person's OTN in
25
relation to the re-supply; and
26
(d) the potential greenhouse gas emissions embodied in the
27
amount re-supplied have a carbon dioxide equivalence of a
28
particular number of tonnes.
29
Liable entities Part 3
Importers, producers and suppliers of eligible upstream fuels Division 4
Section 37A
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 93
Provisional emissions number
1
(2) For the purposes of this Act, that number is a provisional
2
emissions number of the OTN holder for the eligible financial year
3
in which the re-supply occurs.
4
Note:
See also section 37A, which deals with the exclusion of exported fuel.
5
Liable entity
6
(3) For the purposes of this Act, the OTN holder is a liable entity for
7
the eligible financial year in which the re-supply occurs.
8
37A Exclusion of exported eligible upstream fuel
9
Object
10
(1) The object of this section is to ensure that there is no liability under
11
the carbon pollution reduction scheme for exported eligible
12
upstream fuel.
13
Reduction of provisional emissions numbers--section 33 or 35
14
(2)
If:
15
(a) under section 33 or 35, or both, a person (the supplier) has
16
one or more provisional emissions numbers for an eligible
17
financial year; and
18
(b) the supplier has one or more netted-out numbers for the
19
eligible financial year;
20
the total of those provisional emissions numbers is to be reduced
21
(but not below zero) by the total of those netted-out numbers.
22
(3) For the purposes of subsection (2), if:
23
(a) during an eligible financial year, the supplier supplied an
24
amount of eligible upstream fuel to another person (the
25
recipient); and
26
(b) as a result of the supply, the supplier has, under section 33 or
27
35, a provisional emissions number for the eligible financial
28
year; and
29
(c) after the supply, the supplier or recipient exported the fuel;
30
and
31
Part 3 Liable entities
Division 4 Importers, producers and suppliers of eligible upstream fuels
Section 37A
94 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(d) the fuel has been entered for export (within the meaning of
1
section 113 of the Customs Act 1901); and
2
(e) the supplier has prescribed documentary evidence to show
3
that the fuel was exported; and
4
(f) 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
the number mentioned in paragraph (f) is a netted-out number of
8
the supplier for the eligible financial year.
9
Reduction of provisional emissions numbers--section 37
10
(4)
If:
11
(a) under section 37, a person (the OTN holder) has one or more
12
provisional emissions numbers for an eligible financial year;
13
and
14
(b) the OTN holder has one or more netted-out numbers for the
15
eligible financial year;
16
the total of those provisional emissions numbers is to be reduced
17
(but not below zero) by the total of those netted-out numbers.
18
(5) For the purposes of subsection (4), if:
19
(a) during an eligible financial year, the OTN holder re-supplied
20
an amount of eligible upstream fuel to another person (the
21
recipient); and
22
(b) as a result of the re-supply, the OTN holder has, under
23
section 37, a provisional emissions number for the eligible
24
financial year; and
25
(c) after the re-supply, the OTN holder or the recipient exported
26
the fuel; and
27
(d) the fuel has been entered for export (within the meaning of
28
section 113 of the Customs Act 1901); and
29
(e) the OTN holder has prescribed documentary evidence to
30
show that the fuel was exported; and
31
(f) the potential greenhouse gas emissions embodied in the
32
amount mentioned in paragraph (a) have a carbon dioxide
33
equivalence of a particular number of tonnes;
34
Liable entities Part 3
Importers, producers and suppliers of eligible upstream fuels Division 4
Section 38
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 95
the number mentioned in paragraph (f) is a netted-out number of
1
the OTN holder for the eligible financial year.
2
38 Liable entity--application of eligible upstream fuel to OTN
3
holder's own use
4
Scope
5
(1) This section applies if:
6
(a) during an eligible financial year, a person supplies an amount
7
of eligible upstream fuel to another person (the recipient);
8
and
9
(b) the recipient quoted the recipient's OTN in relation to the
10
supply; and
11
(c) during that or a later eligible financial year, the recipient
12
applied the whole or a part of the amount of the fuel to the
13
recipient's own use; and
14
(d) greenhouse gas was released into the atmosphere as a result
15
of the application to own use; and
16
(e) the greenhouse gas mentioned in paragraph (d) does not
17
count for the purposes of subsection 17(1), 18(1), 19(1),
18
20(1), 21(1) or 22(1); and
19
(f) the potential greenhouse gas emissions embodied in the
20
amount applied to the recipient's own use have a carbon
21
dioxide equivalence of a particular number of tonnes.
22
Provisional emissions number
23
(2) For the purposes of this Act, that number is a provisional
24
emissions number of the recipient for the eligible financial year in
25
which the amount was applied to the recipient's own use.
26
Liable entity
27
(3) For the purposes of this Act, the recipient is a liable entity for the
28
eligible financial year in which the amount was applied to the
29
recipient's own use.
30
Part 3 Liable entities
Division 4 Importers, producers and suppliers of eligible upstream fuels
Section 39
96 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
39 Liable entity--application of transformed eligible upstream fuel
1
to OTN holder's own use
2
Scope
3
(1) This section applies if:
4
(a) during an eligible financial year, a person supplies an amount
5
of eligible upstream fuel to another person (the recipient);
6
and
7
(b) the recipient quoted the recipient's OTN in relation to the
8
supply; and
9
(c) during that or a later eligible financial year, the recipient
10
applied the whole or a part of the amount of another type of
11
eligible upstream fuel to the recipient's own use; and
12
(d) greenhouse gas was released into the atmosphere as a result
13
of the application to own use; and
14
(e) the fuel mentioned in paragraph (c) is the result of the
15
carrying out by the recipient of the recognised transformation
16
of the fuel mentioned in paragraph (a); and
17
(f) the greenhouse gas mentioned in paragraph (d) does not
18
count for the purposes of subsection 17(1), 18(1), 19(1),
19
20(1), 21(1) or 22(1); and
20
(g) the potential greenhouse gas emissions embodied in the
21
amount applied to the recipient's own use have a carbon
22
dioxide equivalence of a particular number of tonnes.
23
Provisional emissions number
24
(2) For the purposes of this Act, that number is a provisional
25
emissions number of the recipient for the eligible financial year in
26
which the amount was applied to the recipient's own use.
27
Liable entity
28
(3) For the purposes of this Act, the recipient is a liable entity for the
29
eligible financial year in which the amount was applied to the
30
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 2010 No. , 2010 97
40 Liable entity--supply of eligible upstream fuel to a person who
1
misuses the person's OTN
2
Scope
3
(1) This section applies if:
4
(a) during an eligible financial year, a person supplies an amount
5
of eligible upstream fuel to another person (the OTN holder)
6
who quotes the other person's OTN in relation to the supply;
7
and
8
(b) the OTN holder was not required or permitted by this Act to
9
quote the OTN holder's OTN; and
10
(c) the potential greenhouse gas emissions embodied in the
11
supplied amount have a carbon dioxide equivalence of a
12
particular number of tonnes.
13
Provisional emissions number
14
(2) For the purposes of this Act, that number is a provisional
15
emissions number of the OTN holder for the eligible financial
16
year.
17
Liable entity
18
(3) For the purposes of this Act, the OTN holder is a liable entity for
19
the eligible financial year.
20
21
Part 3 Liable entities
Division 5 Obligation transfer numbers
Section 41
98 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 99
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
100 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 101
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
102 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(b) the person's address last known to the Authority; and
1
(c) if the person has an ABN--the person's ABN.
2
(6)
If:
3
(a) there is an entry for a person's OTN in the OTN Register;
4
and
5
(b) the person changes the person's name or address;
6
the Authority may make the appropriate alteration to the entry.
7
Removal of entry for an OTN
8
(7) If an OTN is surrendered or cancelled, the Authority must remove
9
the entry for the OTN from the OTN Register.
10
50 Evidentiary provisions
11
(1) The Authority may supply a copy of or extract from the OTN
12
Register certified by an official of the Authority to be a true copy
13
or true extract, as the case may be.
14
(2) The certified copy or extract is admissible in evidence in all courts
15
and proceedings without further proof or production of the original.
16
(3) The Authority may charge a fee specified in the regulations for
17
supplying a copy or extract under subsection (1).
18
(4) A fee specified under subsection (3) must not be such as to amount
19
to taxation.
20
50A Notification of change of name or address of OTN holder
21
(1)
If:
22
(a) there is an entry for a person's OTN in the OTN Register;
23
and
24
(b)
either:
25
(i) there is a change in the name of the person; or
26
(ii) there is a change to the person's address as set out in the
27
OTN Register;
28
the person must, within 14 days after the change, notify the
29
Authority, in writing, of the change.
30
Liable entities Part 3
Obligation transfer numbers Division 5
Section 51
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 103
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
104 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 105
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
106 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 107
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
108 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 109
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
110 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 111
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
112 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 113
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
114 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 115
(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
116 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 117
(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
118 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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 2010 No. , 2010 119
(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
120 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 121
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
122 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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 2010 No. , 2010 123
(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
124 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 125
(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
126 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 127
(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
128 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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 2010 No. , 2010 129
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
130 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 131
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
132 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
(ia) if a controlling corporation of a group consented under
29
subsection 74(3) to the making of the application for the
30
certificate--the person is not a member of the group; or
31
(ii) an amount payable by the person under section 133
32
remains unpaid more than 30 days after it became due
33
for payment; or
34
Liable entities Part 3
Liability transfer certificates Division 6
Section 80
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 133
(iii) the person has become an externally-administered body
1
corporate (within the meaning of the Corporations Act
2
2001); or
3
(iv) if the regulations specify one or more other grounds for
4
cancellation--at least one of those grounds is applicable
5
to the person.
6
80 Liability transfer certificate is not transferable
7
A liability transfer certificate is not transferable.
8
81 Financial control
9
(1) For the purposes of this Act, if a person (the operator) has
10
operational control over a facility, another person (the second
11
person) has financial control over the facility if:
12
(a) under a contract between:
13
(i) the operator; and
14
(ii) the second person;
15
the operator operates the facility on behalf of the second
16
person; or
17
(b) under a contract between:
18
(i) the operator; and
19
(ii) the second person and one or more other persons;
20
the operator operates the facility on behalf of the second
21
person and those other persons; or
22
(c) the second person is able to control the trading or financial
23
relationships of the operator in relation to the facility; or
24
(ca) the second person has the economic benefits from the
25
facility; or
26
(cb) all of the following conditions are satisfied:
27
(i) the second person is a participant in a joint venture;
28
(ii) there is one other participant in the joint venture;
29
(iii) the second person shares the economic benefits from the
30
facility with the other participant;
31
(iv) the second person's share equals or exceeds the share of
32
the other participant; or
33
Part 3 Liable entities
Division 6 Liability transfer certificates
Section 81
134 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(cc) all of the following conditions are satisfied:
1
(i) the second person is a participant in a joint venture;
2
(ii) there are 2 or more other participants in the joint
3
venture;
4
(iii) the second person shares the economic benefits from the
5
facility with the other participants;
6
(iv) no other participant has a share that exceeds the share of
7
the second person; or
8
(cd) all of the following conditions are satisfied:
9
(i) the second person is a partner in a partnership;
10
(ii) there is one other partner in the partnership;
11
(iii) the second person shares the economic benefits from the
12
facility with the other partner;
13
(iv) the second person's share equals or exceeds the share of
14
the other partner; or
15
(d) all of the following conditions are satisfied:
16
(i) the second person is a partner in a partnership;
17
(ii) there are 2 or more other partners in the partnership;
18
(iii) the second person shares the economic benefits from the
19
facility with the other partners;
20
(iv) no other partner has a share that exceeds the share of the
21
second person; or
22
(e) the second person is able to direct or sell the output of the
23
facility; or
24
(f) under the regulations, the second person is taken to have
25
financial control over the facility.
26
(2) In determining whether the second person has that financial
27
control, regard must be had to the economic and commercial
28
substance of the matters mentioned in subsection (1).
29
30
Emissions units Part 4
Introduction Division 1
Section 82
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 135
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
(ba)
the total number of free Australian emissions units
16
issued in accordance with Part 8A (coal mining);
17
and
18
(c)
the total number of free Australian emissions units
19
issued in accordance with Part 9 (coal-fired
20
electricity generation).
21
·
An Australian emissions unit will have a vintage year that
22
consists of a particular financial year.
23
·
An Australian emissions unit is generally transferable.
24
·
Entries may be made in Registry accounts for:
25
Part 4 Emissions units
Division 1 Introduction
Section 82
136 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(a)
Australian emissions units; and
1
(b)
Kyoto units; and
2
(c)
non-Kyoto international emissions units.
3
4
Emissions units Part 4
Australian emissions units Division 2
Section 83
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 137
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
138 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
(ca) in accordance with Part 8A (coal mining); or
17
(d) in accordance with Part 9 (coal-fired electricity generation);
18
or
19
(e) in accordance with Part 10 (reforestation); or
20
(f) in accordance with Part 11 (destruction of synthetic
21
greenhouse gases); or
22
(g) in accordance with the domestic offsets program.
23
89 Issue of Australian emissions units for a fixed charge
24
Application
25
(1) During the issue period set out in an item in the following table, a
26
person who has a Registry account may apply to the Authority for
27
the issue to the person of a specified number of Australian
28
emissions units:
29
(a) with a vintage year set out in the item; and
30
(b) for the per unit charge set out in the item.
31
Emissions units Part 4
Australian emissions units Division 2
Section 89
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 139
1
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 eligible financial
year beginning on
1 July 2014
the amount
mentioned in
item 3
Part 4 Emissions units
Division 2 Australian emissions units
Section 89
140 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Issue of Australian emissions units for a fixed charge
Item
Issue period
Vintage year
Charge per
unit
the person for the eligible
financial year beginning on
1 July 2014; and
(b) ending at the end of
15 December 2015.
multiplied by
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 2010 No. , 2010 141
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
142 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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 2010 No. , 2010 143
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 2010;
13
(ii)
the
Carbon Pollution Reduction Scheme (Charges--
14
Excise) Act 2010;
15
(iii)
the
Carbon Pollution Reduction Scheme (Charges--
16
General) Act 2010.
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
144 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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
(ba) the total number of free Australian emissions units with that
4
vintage year issued in accordance with Part 8A (coal mining);
5
and
6
(c) the total number of free Australian emissions units with that
7
vintage year issued in accordance with Part 9 (coal-fired
8
electricity generation);
9
equals the national scheme cap number for that vintage year.
10
(2) If an Australian emissions unit is offered at auction on 2 or more
11
occasions, the unit is only counted for the purposes of
12
paragraph (1)(a) on the first of those occasions.
13
(3) Paragraph (1)(a) does not apply to an auction conducted under
14
section 100 or 101.
15
(4) Subsection (1) does not apply to an Australian emissions unit with
16
a vintage year beginning on 1 July 2011.
17
Subdivision B--Property in, and transfer of, Australian
18
emissions units
19
94 An Australian emissions unit is personal property
20
An Australian emissions unit is personal property and, subject to
21
sections 96 and 97, is transmissible by assignment, by will and by
22
devolution by operation of law.
23
95 Transfer of Australian emissions units
24
For the purposes of this Act, if there is an entry for an Australian
25
emissions unit in a Registry account (the first Registry account)
26
kept by a person (the first person):
27
(a)
a
transfer of the unit from the first Registry account to a
28
Registry 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
Emissions units Part 4
Australian emissions units Division 2
Section 96
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 145
(ii) the making of an entry for the unit in the Registry
1
account kept by the other person; and
2
(b)
the
transfer of the unit from the first Registry account to
3
another Registry account kept by the first person consists of:
4
(i) the removal of the entry for the unit from the first
5
Registry account; and
6
(ii) the making of an entry for the unit in the other Registry
7
account kept by the first person.
8
96 Transmission of Australian emissions units by assignment
9
(1) A transmission by assignment of an Australian emissions unit is of
10
no force until:
11
(a) the transferor, by electronic notice transmitted to the
12
Authority, instructs the Authority to transfer the unit from the
13
relevant Registry account kept by the transferor to a Registry
14
account kept by the transferee; and
15
(b) the Authority complies with that instruction.
16
(2) An instruction under paragraph (1)(a) must set out:
17
(a) the account number of the transferor's Registry account; and
18
(b) the account number of the transferee's Registry account.
19
(3) If the Authority receives an instruction under paragraph (1)(a), the
20
Authority must comply with the instruction as soon as practicable
21
after receiving it.
22
(4) The Registry must set out a record of each instruction under
23
paragraph (1)(a).
24
(5) If the transferor is the Commonwealth, the Minister may give an
25
instruction under subsection (1) on behalf of the transferor.
26
Part 4 Emissions units
Division 2 Australian emissions units
Section 97
146 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
97 Transmission of Australian emissions units by operation of law
1
etc.
2
Scope
3
(1) This section applies if an Australian emissions unit is transmitted
4
from a person (the transferor) to another person (the transferee)
5
by any lawful means other than by a transfer under section 96.
6
Declaration of transmission
7
(2) The transferee must, within 90 days after the transmission, give the
8
Authority:
9
(a) a declaration of transmission; and
10
(b) such evidence of transmission as is specified in the
11
regulations.
12
(3) A declaration of transmission must be made in accordance with the
13
regulations.
14
(4) If the transferee does not already have a Registry account, the
15
declaration of transmission must be accompanied by a request
16
under section 147 for the Authority to open a Registry account in
17
the name of the transferee.
18
(5) If the Authority is satisfied that special circumstances warrant the
19
extension of the 90-day period mentioned in subsection (2), the
20
Authority may extend that period.
21
Transfer of unit--transferee already has a Registry account
22
(6) If the transferee already has a Registry account, the Authority
23
must, as soon as practicable after receiving the declaration of
24
transmission, transfer the unit from the relevant Registry account
25
kept by the transferor to a Registry account kept by the transferee.
26
Transfer of unit--transferee does not have a Registry account
27
(7)
If:
28
(a) the transferee does not already have a Registry account; and
29
Emissions units Part 4
Australian emissions units Division 2
Section 98
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 147
(b) in accordance with the request under section 147, the
1
Authority has opened a Registry account in the name of the
2
transferee;
3
the Authority must, as soon as practicable after opening the
4
Registry account, transfer the unit from the relevant Registry
5
account kept by the transferor to the Registry account kept by the
6
transferee.
7
Record
8
(8) If the Authority transfers the unit under subsection (6) or (7), the
9
Registry must set out a record of the declaration of transmission.
10
When the transferee is the Commonwealth
11
(9) If the transferee is the Commonwealth, the Minister may give:
12
(a) the declaration of transmission; and
13
(b) the evidence mentioned in paragraph (2)(b);
14
on behalf of the transferee.
15
98 Transfer of Australian emissions units to another Registry
16
account held by the transferor
17
Scope
18
(1) This section applies if:
19
(a) a person keeps a Registry account (the first Registry
20
account) in which there is an entry for an Australian
21
emissions unit; and
22
(b) the person, by electronic notice transmitted to the Authority,
23
instructs the Authority to transfer the unit from the first
24
Registry account to another Registry account kept by the
25
person; and
26
(c) the instruction sets out:
27
(i) the account number of the first Registry account; and
28
(ii) the account number of the other Registry account.
29
Part 4 Emissions units
Division 2 Australian emissions units
Section 98A
148 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Compliance with instruction
1
(2) If a person gives the Authority an instruction under
2
paragraph (1)(b), the Authority must comply with the instruction as
3
soon as practicable after receiving it.
4
(3) The Registry must set out a record of the instruction under
5
paragraph (1)(b).
6
98A Equitable interests in relation to an Australian emissions unit
7
(1) This Act does not affect:
8
(a) the creation of; or
9
(b) any dealings with; or
10
(c) the enforcement of;
11
equitable interests in relation to an Australian emissions unit.
12
(2) Subsection (1) is enacted for the avoidance of doubt.
13
Subdivision C--Auctions of Australian emissions units
14
99 Issue of Australian emissions units as the result of an auction
15
(1) The Authority may issue Australian emissions units as the result of
16
an auction conducted by the Authority.
17
(2)
If:
18
(a) an amount is payable by a person to the Commonwealth by
19
way of a charge for the issue to the person of an Australian
20
emissions unit; and
21
(b) the unit is to be issued as the result of an auction; and
22
(c)
either:
23
(i) the charge is taxation; or
24
(ii) the charge would, apart from the constitutional
25
requirement that taxation must not be arbitrary, be
26
taxation;
27
the Authority must not perform any of its functions, or exercise any
28
of its powers, in a way that would result in the charge being
29
arbitrary, in contravention of the constitutional requirement that
30
taxation must not be arbitrary.
31
Emissions units Part 4
Australian emissions units Division 2
Section 100
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 149
(3) For the purposes of subsection (2), taxation has the same meaning
1
as in section 55 of the Constitution.
2
100 Secondary market auctions of relinquished Australian emissions
3
units
4
Scope
5
(1) This section applies if there is an entry for an Australian emissions
6
unit in the Commonwealth relinquished units account.
7
Authority may auction unit
8
(2) The Authority may, on behalf of the Commonwealth, auction the
9
unit.
10
101 Secondary market auctions of free Australian emissions units
11
Scope
12
(1) This section applies if:
13
(a) a free Australian emissions unit has been issued to a person:
14
(i) in accordance with the emissions-intensive
15
trade-exposed assistance program; or
16
(ia) in accordance with Part 8A (coal mining); or
17
(ii) in accordance with Part 9 (coal-fired electricity
18
generation); or
19
(iii) in accordance with Part 10 (reforestation); or
20
(iv) in accordance with Part 11 (destruction of synthetic
21
greenhouse gases); or
22
(v) in accordance with the domestic offsets program; and
23
(b) the unit has not been transferred; and
24
(c) the unit has a vintage year of an eligible financial year
25
beginning on or after 1 July 2012.
26
Authority may auction unit
27
(2) The Authority may, on behalf of the person, auction the unit.
28
Part 4 Emissions units
Division 2 Australian emissions units
Section 102
150 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Sunset
1
(3) This section ceases to have effect at the end of 31 December 2013.
2
102 Combined auctions of Australian emissions units
3
The Authority may conduct an auction under section 100 or 101 in
4
combination with an auction referred to in section 99.
5
103 Policies, procedures and rules for auctioning Australian
6
emissions units
7
(1) The Minister may, by legislative instrument, determine the
8
policies, procedures and rules that apply in relation to the
9
auctioning of Australian emissions units by the Authority.
10
(2) A determination under subsection (1) may deal with any or all of
11
the following matters:
12
(a) the types of auction;
13
(b) the timing of auctions;
14
(c) advertising of auctions;
15
(d) participants in auctions;
16
(e) fees for participants in auctions;
17
(f)
proxy
bidding;
18
(g) representatives of participants in auctions;
19
(h) the minimum number of Australian emissions units to which
20
a bid may relate;
21
(i) variation of bids;
22
(j) the total number of units with a particular vintage year that
23
are to be offered at a particular auction under section 99;
24
(k) limits on the total number of units with a particular vintage
25
year that may be acquired by a person as a result of a
26
particular auction;
27
(l) limits on the total number of units with a particular vintage
28
year that may be acquired by the members of a controlling
29
corporation's group as a result of a particular auction;
30
(m) reserve prices or charges (if any);
31
(n) deposits (if any) to be lodged by participants in auctions;
32
Emissions units Part 4
Australian emissions units Division 2
Section 103A
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 151
(o) the refund or forfeiture of such deposits;
1
(p) guarantees (if any) to be given in respect of payment
2
obligations that are incurred by participants in auctions;
3
(q) timing and methods of payment of prices or charges.
4
(3) Subsection (2) does not limit subsection (1).
5
(4) A fee specified under paragraph (2)(e) must not be such as to
6
amount to taxation.
7
(5) A determination under subsection (1) may make provision in
8
relation to a matter by conferring a power to make a decision of an
9
administrative character on the Authority.
10
(6) To avoid doubt, a determination under subsection (1) is taken to be
11
a law for the purposes of section 28 of the Financial Management
12
and Accountability Act 1997.
13
Subdivision D--Special provisions relating to free Australian
14
emissions units
15
103A Cancellation of certain unused free Australian emissions units
16
Scope
17
(1) This section applies if:
18
(a) an Australian emissions unit was issued:
19
(i) in accordance with the emissions-intensive
20
trade-exposed assistance program; or
21
(ia) in accordance with Part 8A (coal mining); or
22
(ii) in accordance with Part 9 (coal-fired electricity
23
generation); and
24
(b) the unit has a vintage year beginning on 1 July 2011; and
25
(c) there was an entry for the unit in a person's Registry account
26
at the end of 15 December 2012.
27
Cancellation of unit
28
(2) The Authority must cancel the unit.
29
Part 4 Emissions units
Division 2 Australian emissions units
Section 103B
152 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(3) The Authority must remove the entry for the unit from the person's
1
Registry account.
2
(4) The Registry must set out a record of each cancellation under
3
subsection (2).
4
103B Buy-back of certain free Australian emissions units
5
Scope
6
(1) This section applies if a person is the registered holder of one or
7
more Australian emissions units that:
8
(a)
were
issued:
9
(i) in accordance with the emissions-intensive
10
trade-exposed assistance program; or
11
(ia) in accordance with Part 8A (coal mining); or
12
(ii) in accordance with Part 9 (coal-fired electricity
13
generation); and
14
(b) have a vintage year beginning on 1 July 2011.
15
Buy-back
16
(2) During the period:
17
(a) beginning at the start of 15 July 2011; and
18
(b) ending at the end of 1 December 2012;
19
the person may, by electronic notice transmitted to the Authority,
20
request the Authority to cancel the unit or units in exchange for the
21
payment to the person of the amount (the buy-back amount)
22
worked out using the formula:
23
$10
Factor specified in the regulations
Number of units
×
×
24
(3) If the Authority receives a request under subsection (2) from a
25
person in relation to one or more Australian emissions units, the
26
Authority must:
27
(a) on a day ascertained in accordance with the regulations:
28
(i) cancel the unit or units; and
29
(ii) remove the entries for the unit or units from the person's
30
Registry account in which there is an entry for the unit
31
or units; and
32
Emissions units Part 4
Australian emissions units Division 2
Section 103B
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 153
(b) on or as soon as practicable after that day, on behalf of the
1
Commonwealth, pay the buy-back amount to the person.
2
(4) The Registry must set out a record of each cancellation under
3
subsection (3).
4
(5) The Consolidated Revenue Fund is appropriated for the purposes
5
of making payments under this section.
6
7
Part 4 Emissions units
Division 3 Kyoto units
Section 104
154 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
Emissions units Part 4
Kyoto units Division 3
Section 107
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 155
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
Part 4 Emissions units
Division 3 Kyoto units
Section 108
156 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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
Emissions units Part 4
Kyoto units Division 3
Section 109
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 157
(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
Part 4 Emissions units
Division 3 Kyoto units
Section 110
158 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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
Emissions units Part 4
Kyoto units Division 3
Section 111
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 159
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
Part 4 Emissions units
Division 3 Kyoto units
Section 113
160 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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
Emissions units Part 4
Kyoto units Division 3
Section 114
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 161
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
Part 4 Emissions units
Division 3 Kyoto units
Section 115
162 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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
Emissions units Part 4
Kyoto units Division 3
Section 116
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 163
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
Part 4 Emissions units
Division 3 Kyoto units
Section 116A
164 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
116BA Equitable interests in relation to a Kyoto unit
22
(1) This Act does not affect:
23
(a) the creation of; or
24
(b) any dealings with; or
25
(c) the enforcement of;
26
equitable interests in relation to a Kyoto unit.
27
(2) Subsection (1) is enacted for the avoidance of doubt.
28
Emissions units Part 4
Kyoto units Division 3
Section 116C
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 165
116C Transmission of registered Kyoto units by operation of law
1
etc.
2
Scope
3
(1) This section applies if:
4
(a) under section 116B, a Kyoto unit is personal property for a
5
particular purpose; and
6
(b) the unit is transmitted from a person (the transferor) to
7
another person (the transferee) by any lawful means for that
8
purpose.
9
Declaration of transmission
10
(2) The transferee must, within 90 days after the transmission, give the
11
Authority:
12
(a) a declaration of transmission; and
13
(b) such evidence of transmission as is specified in the
14
regulations.
15
(3) A declaration of transmission must be made in accordance with the
16
regulations.
17
(4) If the transferee does not already have a Registry account, the
18
declaration of transmission must be accompanied by a request
19
under section 147 for the Authority to open a Registry account in
20
the name of the transferee.
21
(5) If the Authority is satisfied that special circumstances warrant the
22
extension of the 90-day period mentioned in subsection (2), the
23
Authority may extend that period.
24
Transfer of unit--transferee already has a Registry account
25
(6) If the transferee already has a Registry account, the Authority
26
must, as soon as practicable after receiving the declaration of
27
transmission, transfer the unit from the relevant Registry account
28
kept by the transferor to a Registry account kept by the transferee.
29
Part 4 Emissions units
Division 3 Kyoto units
Section 116C
166 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
19
Emissions units Part 4
Non-Kyoto international emissions units Division 4
Section 117
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 167
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
Part 4 Emissions units
Division 4 Non-Kyoto international emissions units
Section 119
168 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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
Emissions units Part 4
Non-Kyoto international emissions units Division 4
Section 120
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 169
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
Part 4 Emissions units
Division 4 Non-Kyoto international emissions units
Section 121
170 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
Emissions units Part 4
Non-Kyoto international emissions units Division 4
Section 122AA
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 171
the unit is personal property and, subject to section 122B, is
1
transmissible by will and by devolution by operation of law.
2
122AA Equitable interests in relation to a non-Kyoto international
3
emissions unit
4
(1) This Act does not affect:
5
(a) the creation of; or
6
(b) any dealings with; or
7
(c) the enforcement of;
8
equitable interests in relation to a non-Kyoto international
9
emissions unit.
10
(2) Subsection (1) is enacted for the avoidance of doubt.
11
122B Transmission of registered non-Kyoto international emissions
12
units by operation of law etc.
13
Scope
14
(1) This section applies if:
15
(a) under section 122A, a non-Kyoto international emissions unit
16
is personal property for a particular purpose; and
17
(b) the unit is transmitted from a person (the transferor) to
18
another person (the transferee) by any lawful means for that
19
purpose.
20
Declaration of transmission
21
(2) The transferee must, within 90 days after the transmission, give the
22
Authority:
23
(a) a declaration of transmission; and
24
(b) such evidence of transmission as is specified in the
25
regulations.
26
(3) A declaration of transmission must be made in accordance with the
27
regulations.
28
(4) If the transferee does not already have a Registry account, the
29
declaration of transmission must be accompanied by a request
30
Part 4 Emissions units
Division 4 Non-Kyoto international emissions units
Section 122B
172 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
under section 147 for the Authority to open a Registry account in
1
the name of the transferee.
2
(5) If the Authority is satisfied that special circumstances warrant the
3
extension of the 90-day period mentioned in subsection (2), the
4
Authority may extend that period.
5
Transfer of unit--transferee already has a Registry account
6
(6) If the transferee already has a Registry account, the Authority
7
must, as soon as practicable after receiving the declaration of
8
transmission, transfer the unit from the relevant Registry account
9
kept by the transferor to a Registry account kept by the transferee.
10
Transfer of unit--transferee does not have a Registry account
11
(7)
If:
12
(a) the transferee does not already have a Registry account; and
13
(b) in accordance with the request under section 147, the
14
Authority has opened a Registry account in the name of the
15
transferee;
16
the Authority must, as soon as practicable after opening the
17
Registry account, transfer the unit from the relevant Registry
18
account kept by the transferor to the Registry account kept by the
19
transferee.
20
Record
21
(8) If the Authority transfers the unit under subsection (6) or (7), the
22
Registry must set out a record of the declaration of transmission.
23
When the transferee is the Commonwealth
24
(9) If the transferee is the Commonwealth, the Minister may give:
25
(a) the declaration of transmission; and
26
(b) the evidence mentioned in paragraph (2)(b);
27
on behalf of the transferee.
28
Emissions units Part 4
Non-Kyoto international emissions units Division 4
Section 123
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 173
123 Regulations about non-Kyoto international emissions units
1
The regulations may make further provision in relation to
2
non-Kyoto international emissions units.
3
4
Part 5 Emissions number
Section 124
174 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 175
(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
176 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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 2010 No. , 2010 177
(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
178 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 179
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
180 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 181
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
(5AA) An Australian emissions unit must not be surrendered in relation to
4
the eligible financial year beginning on 1 July 2011 unless the unit
5
has a vintage year of that eligible financial year.
6
(5A)
If:
7
(a) an Australian emissions unit was issued:
8
(i) in accordance with the emissions-intensive
9
trade-exposed assistance program; or
10
(ia) in accordance with Part 8A (coal mining); or
11
(ii) in accordance with Part 9 (coal-fired electricity
12
generation); and
13
(b) the unit has a vintage year beginning on 1 July 2011;
14
the unit must not be surrendered in relation to an eligible financial
15
year unless that eligible financial year is the vintage year of the
16
unit.
17
(6) A Kyoto unit must not be surrendered if the surrender would
18
breach regulations made for the purposes of section 113
19
(carry-over restrictions).
20
(6A) An eligible international emissions unit must not be surrendered in
21
relation to the eligible financial year beginning on 1 July 2011.
22
(7) An eligible international emissions unit specified in the regulations
23
must not be surrendered in relation to an eligible financial year
24
specified in the regulations. Regulations made for the purposes of
25
this subsection must not specify an eligible financial year that
26
begins before the regulations are registered under the Legislative
27
Instruments Act 2003.
28
Note:
For specification by class, see subsection 13(3) of the Legislative
29
Instruments Act 2003.
30
(7A) In making a recommendation to the Governor-General about
31
regulations to be made for the purposes of subsection (7), the
32
Minister may have regard to:
33
(aa) Australia's international objectives; and
34
Part 6 Surrender of eligible emissions units
Division 2 How eligible emissions units are surrendered
Section 129
182 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(a) Australia's international obligations under:
1
(i) the Climate Change Convention; and
2
(ii) the Kyoto Protocol; and
3
(b) the environmental integrity of the carbon pollution reduction
4
scheme; and
5
(c) such other matters (if any) as the Minister considers relevant.
6
(8) Any of the following:
7
(a) a removal unit issued during the first commitment period;
8
(b) an emission reduction unit:
9
(i) issued during the first commitment period; and
10
(ii) that has been converted from a removal unit;
11
must not be surrendered in relation to:
12
(c) the eligible financial year beginning on 1 July 2013; or
13
(d) a later eligible financial year.
14
(9) A non-Kyoto international emissions unit must not be surrendered
15
if the surrender would breach regulations made for the purposes of
16
section 122 (surrender restrictions).
17
(10) If an Australian emissions unit is surrendered by a person:
18
(a) the unit is cancelled; and
19
(b) the Authority must remove the entry for the unit from the
20
person's Registry account in which there is an entry for the
21
unit.
22
(11) If a Kyoto unit is surrendered by a person:
23
(a) the Authority must remove the entry for the unit from the
24
person's Registry account in which there is an entry for the
25
unit; and
26
(b) the Authority must make an entry for the unit in a
27
Commonwealth holding account.
28
(12) If a non-Kyoto international emissions unit is surrendered by a
29
person:
30
(a) the Authority must take such action in relation to the unit as
31
is specified in the regulations; and
32
Surrender of eligible emissions units Part 6
How eligible emissions units are surrendered Division 2
Section 129
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 183
(b) the Authority must remove the entry for the unit from the
1
person's Registry account in which there is an entry for the
2
unit.
3
(13) The Registry must set out a record of each notice under
4
subsection (1).
5
6
Part 6 Surrender of eligible emissions units
Division 3 Unit shortfalls
Section 130
184 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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; and
8
(c) if the current eligible financial year begins on or after 1 July
9
2012--there is a national scheme cap number for the current
10
eligible financial year.
11
No units surrendered
12
(2) If, during the period (the surrender period):
13
(a) beginning at the start of the current eligible financial year;
14
and
15
(b) ending at the end of 15 December in the next eligible
16
financial year;
17
the person has not surrendered any eligible emissions units in
18
relation to the current eligible financial year, then, at the end of the
19
surrender period:
20
(c) the person has a unit shortfall for the current eligible
21
financial year; and
22
(d) the number of units in that shortfall is equal to the person's
23
emissions number for the current eligible financial year.
24
Surrender of insufficient units
25
(3) If, during the period (the surrender period):
26
(a) beginning at the start of the current eligible financial year;
27
and
28
(b) ending at the end of 15 December in the next eligible
29
financial year;
30
the person surrendered one or more eligible emissions units in
31
relation to the current eligible financial year, but the number of
32
Surrender of eligible emissions units Part 6
Unit shortfalls Division 3
Section 131
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 185
surrendered units is less than the person's emissions number for the
1
current eligible financial year, then, at the end of the surrender
2
period:
3
(c) the person has a unit shortfall for the current eligible
4
financial year; and
5
(d) the number of units in that shortfall is worked out using the
6
formula:
7
Emissions number
Number of surrendered units
-
8
Borrowing limit
9
(4)
If:
10
(a) during the surrender period mentioned in subsection (3), the
11
person surrendered, in relation to the current eligible
12
financial year, Australian emissions units (the borrowed
13
units) that have a vintage year that next follows the eligible
14
financial year; and
15
(b) the number of borrowed units exceeds 5% of the person's
16
emissions number for the current eligible financial year;
17
subsection (3) has effect as if, during the surrender period, the
18
person had not surrendered, in relation to the current eligible
19
financial year, the number of borrowed units that equals the excess.
20
131 Assessment of unit shortfall
21
Scope
22
(1) This section applies if the Authority has reasonable grounds to
23
believe that:
24
(a) a person is a liable entity for an eligible financial year (the
25
current eligible financial year); and
26
(b) as at the end of 15 December in the next eligible financial
27
year, the person had a unit shortfall for the current eligible
28
financial year.
29
Assessment
30
(2) If the Authority has reasonable grounds to believe that:
31
Part 6 Surrender of eligible emissions units
Division 3 Unit shortfalls
Section 131
186 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(a) the person has made a false or misleading statement to the
1
Authority that is relevant to ascertaining the person's unit
2
shortfall for the current eligible financial year; or
3
(b) the person has otherwise engaged in fraudulent conduct that
4
is relevant to ascertaining the person's unit shortfall for the
5
current eligible financial year;
6
the Authority may, at any time:
7
(c) make an assessment of the person's unit shortfall for the
8
current eligible financial year; and
9
(d) give written notice of the assessment to the person.
10
(3) If subsection (2) does not apply, the Authority may, at any time
11
within 4 years after the end of the current eligible financial year:
12
(a) make an assessment of the person's unit shortfall for the
13
current eligible financial year; and
14
(b) give written notice of the assessment to the person.
15
(4) In making an assessment under this section, the Authority may rely
16
on a report given under section 22A of the National Greenhouse
17
and Energy Reporting Act 2007 by the person concerned.
18
Amendment of assessments
19
(5) The Authority may amend an assessment under subsection (2) at
20
any time.
21
(6) The Authority may amend an assessment under subsection (3) at
22
any time within 4 years after the end of the current eligible
23
financial year.
24
(7) If the Authority amends an assessment, the Authority must give
25
written notice of the amendment to the person to whom the
26
assessment relates.
27
(8) For the purposes of this Act, an amended assessment is taken to be
28
an assessment under this section.
29
Advisory character of assessment
30
(9) A notice of assessment under this section is an instrument of an
31
advisory character.
32
Surrender of eligible emissions units Part 6
Unit shortfalls Division 3
Section 131
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 187
1
Part 6 Surrender of eligible emissions units
Division 4 Obligation to surrender eligible emissions units
Section 132
188 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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) if the current eligible financial year begins on or after 1 July
9
2012--there is a national scheme cap number for the current
10
eligible financial year;
11
the person must take such action, by way of the surrender of
12
eligible emissions units, as is necessary to ensure that at the end of
13
15 December in the next eligible financial year, the person does not
14
have a unit shortfall for the current eligible financial year.
15
Note:
For penalty, see section 133.
16
133 Penalty for unit shortfall
17
Penalty
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
the person is liable to pay to the Commonwealth, by way of
25
penalty, an amount worked out using the formula:
26
Number of units in the
Prescribed amount for
unit shortfall
the current eligible financial year
×
27
where:
28
prescribed amount for the current eligible financial year means:
29
(a) if the current eligible financial year begins on 1 July 2011--
30
$11; or
31
Surrender of eligible emissions units Part 6
Obligation to surrender eligible emissions units Division 4
Section 134
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 189
(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
Part 6 Surrender of eligible emissions units
Division 4 Obligation to surrender eligible emissions units
Section 136
190 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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
Surrender of eligible emissions units Part 6
Obligation to surrender eligible emissions units Division 4
Section 138
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 191
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
Part 6 Surrender of eligible emissions units
Division 4 Obligation to surrender eligible emissions units
Section 141
192 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
Surrender of eligible emissions units Part 6
Obligation to surrender eligible emissions units Division 4
Section 142
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 193
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
Part 6 Surrender of eligible emissions units
Division 4 Obligation to surrender eligible emissions units
Section 143
194 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
Surrender of eligible emissions units Part 6
Obligation to surrender eligible emissions units Division 4
Section 143
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 195
(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
Australian emissions units with a vintage year beginning on 1 July
29
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
Australian emissions units that have a vintage year beginning on
33
1 July 2011, subsection (1) has effect as if, during the surrender
34
period, the person had not surrendered those units.
35
Part 6 Surrender of eligible emissions units
Division 4 Obligation to surrender eligible emissions units
Section 143
196 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
1
Surrender of eligible emissions units Part 6
Extension of surrender deadline Division 5
Section 143A
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 197
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
Part 6 Surrender of eligible emissions units
Division 5 Extension of surrender deadline
Section 143A
198 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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
Australian National Registry of Emissions Units Part 7
Introduction Division 1
Section 144
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 199
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
Part 7 Australian National Registry of Emissions Units
Division 2 Australian National Registry of Emissions Units
Section 145
200 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
Australian National Registry of Emissions Units Part 7
Registry accounts Division 3
Section 146
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 201
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
147 Opening of Registry accounts--general
10
(1) A person may request the Authority to open a Registry account in
11
the name of the person.
12
(2) A request under subsection (1) must:
13
(a) be in writing; and
14
(b) be in a form approved, in writing, by the Authority; and
15
(c) be accompanied by such information as is specified in the
16
regulations; and
17
(d) be accompanied by the fee (if any) specified in a legislative
18
instrument made by the Authority for the purposes of this
19
paragraph.
20
(3) The approved form of request may provide for verification by
21
statutory declaration of statements in requests.
22
(4) A fee specified under paragraph (2)(d) must not be such as to
23
amount to taxation.
24
Further information
25
(5) The Authority may, by written notice given to the person who
26
made the request, require the person to give the Authority, within
27
the period specified in the notice, further information in connection
28
with the request.
29
Part 7 Australian National Registry of Emissions Units
Division 3 Registry accounts
Section 148
202 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(6) If the person breaches the requirement, the Authority may, by
1
written notice given to the person:
2
(a) refuse to consider the request; or
3
(b) refuse to take any action, or any further action, in relation to
4
the request.
5
Opening of account
6
(7) After considering the request, the Authority may open a Registry
7
account in the name of the person.
8
Identification procedure
9
(8) The Authority must not open a Registry account in the name of the
10
person unless the Authority has carried out the applicable
11
identification procedure in respect of the person.
12
Timing
13
(9) The Authority must take all reasonable steps to ensure that a
14
decision is made on the request:
15
(a) if the Authority requires the person who made the request to
16
give further information under subsection (5) in relation to
17
the request--within 28 days after the person gave the
18
Authority the information; or
19
(b) otherwise--within 28 days after the application was made.
20
Refusal
21
(10) If the Authority decides to refuse to open a Registry account in the
22
name of the person who made the request, the Authority must give
23
written notice of the decision to the person.
24
148 Designation of Commonwealth Registry accounts
25
A Commonwealth Registry account must be designated by the
26
Authority as:
27
(a) a Commonwealth holding account; or
28
(b) the retirement account for a particular commitment period; or
29
Australian National Registry of Emissions Units Part 7
Registry accounts Division 3
Section 149
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 203
(c) the net source cancellation account for a particular
1
commitment period; or
2
(d) the non-compliance cancellation account for a particular
3
commitment period; or
4
(e) the voluntary cancellation account for a particular
5
commitment period; or
6
(f) the mandatory cancellation account for a particular
7
commitment period; or
8
(g) the temporary certified emission reduction replacement
9
(expiry) account for a particular commitment period; or
10
(h) the long-term certified emission reduction replacement
11
(expiry) account for a particular commitment period; or
12
(i) the long-term certified emission reduction replacement
13
(storage reversal) account for a particular commitment
14
period; or
15
(j) the long-term certified emission reduction replacement
16
(non-certification) account for a particular commitment
17
period; or
18
(k) the Commonwealth relinquished units account; or
19
(l) an account with a name specified in the regulations.
20
149 Opening of new Commonwealth Registry accounts
21
(1) The Minister may, by written notice given to the Authority, direct
22
the Authority to:
23
(a) open a Registry account in the name of the Commonwealth;
24
and
25
(b) give that Registry account the designation specified in the
26
direction.
27
(2) The Authority must comply with a direction under subsection (1).
28
150 Units in a retirement, cancellation or replacement account
29
Scope
30
(1) This section applies to a Kyoto unit for which there is an entry in
31
any of the following Commonwealth Registry accounts:
32
Part 7 Australian National Registry of Emissions Units
Division 3 Registry accounts
Section 151
204 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(a) the retirement account for a particular commitment period;
1
(b) the net source cancellation account for a particular
2
commitment period;
3
(c) the non-compliance cancellation account for a particular
4
commitment period;
5
(d) the voluntary cancellation account for a particular
6
commitment period;
7
(e) the mandatory cancellation account for a particular
8
commitment period;
9
(f) the temporary certified emission reduction replacement
10
(expiry) account for a particular commitment period;
11
(g) the long-term certified emission reduction replacement
12
(expiry) account for a particular commitment period;
13
(h) the long-term certified emission reduction replacement
14
(storage reversal) account for a particular commitment
15
period;
16
(i) the long-term certified emission reduction replacement
17
(non-certification) account for a particular commitment
18
period.
19
Restriction
20
(2) The unit cannot be transferred or surrendered.
21
(3) Subsection (2) has effect despite any other provision of this Act.
22
151 Totals of Australian emissions units in a Registry account
23
The Registry must set out, for each Registry account, the total of
24
all of the Australian emissions units in the account that have the
25
same vintage year.
26
152 Voluntary closure of Registry accounts
27
Scope
28
(1) This section applies if:
29
(a) a person has a Registry account; and
30
Australian National Registry of Emissions Units Part 7
Registry accounts Division 3
Section 152
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 205
(b) there are no entries for any Australian emissions units in the
1
account; and
2
(c) there are no entries for any Kyoto units in the account; and
3
(d) there are no entries for any non-Kyoto international
4
emissions units in the account; and
5
(e) the person, by written notice given to the Authority, requests
6
the Authority to close the account.
7
Compliance with request
8
(2) The Authority must comply with the request as soon as practicable
9
after receiving it.
10
(3) The Registry must set out a record of each closure under
11
subsection (2).
12
13
Part 7 Australian National Registry of Emissions Units
Division 4 Change in name of account holder
Section 153
206 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
Australian National Registry of Emissions Units Part 7
Correction and rectification of Registry Division 5
Section 155
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 207
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
Part 7 Australian National Registry of Emissions Units
Division 5 Correction and rectification of Registry
Section 159
208 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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
Australian National Registry of Emissions Units Part 7
Correction and rectification of Registry Division 5
Section 159
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 209
(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
Part 7 Australian National Registry of Emissions Units
Division 6 Miscellaneous
Section 160
210 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
Australian National Registry of Emissions Units Part 7
Miscellaneous Division 6
Section 163
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 211
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
Part 7 Australian National Registry of Emissions Units
Division 6 Miscellaneous
Section 164
212 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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
Australian National Registry of Emissions Units Part 7
Miscellaneous Division 6
Section 164
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 213
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
Part 8 Emissions-intensive trade-exposed assistance program
Division 1 Introduction
Section 165
214 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
Emissions-intensive trade-exposed assistance program Part 8
Introduction Division 1
Section 166
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 215
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
Part 8 Emissions-intensive trade-exposed assistance program
Division 2 Formulation of the emissions-intensive trade-exposed assistance program
Section 167
216 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
(2A) Before 30 June 2016, the emissions-intensive trade-exposed
16
assistance program must not provide that the extraction of coal is
17
an activity that, under the program, is taken to be an
18
emissions-intensive trade-exposed activity.
19
(3) The Minister must take all reasonable steps to ensure that
20
regulations are made for the purposes of subsection (1) before
21
1 July 2010.
22
168 Relinquishment requirement
23
(1) The emissions-intensive trade-exposed assistance program may
24
provide that, if:
25
(a) a number of free Australian emissions units have been issued
26
to a person in accordance with the program; and
27
(b) any of the following subparagraphs applies:
28
(i) a specified event happens;
29
(ii) a specified circumstance comes into existence;
30
(iii) the Authority is satisfied about a specified matter;
31
Emissions-intensive trade-exposed assistance program Part 8
Formulation of the emissions-intensive trade-exposed assistance program Division 2
Section 169
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 217
the person is required to relinquish a number of Australian
1
emissions units ascertained in accordance with the program.
2
Note:
An administrative penalty is payable under section 287 for
3
non-compliance with a relinquishment requirement under the
4
emissions-intensive trade-exposed assistance program.
5
(2) The number of Australian emissions units required to be
6
relinquished by the person must not exceed the number of units
7
mentioned in paragraph (1)(a).
8
169 Reporting requirement
9
Scope
10
(1) This section applies to a person if free Australian emissions units
11
have been issued to the person in accordance with the
12
emissions-intensive trade-exposed assistance program.
13
Requirement
14
(2) The emissions-intensive trade-exposed assistance program may
15
make provision for and in relation to requiring the person to give
16
one or more written reports to the Authority.
17
170 Record-keeping requirement
18
Scope
19
(1) This section applies to a person if free Australian emissions units
20
have been issued to the person in accordance with the
21
emissions-intensive trade-exposed assistance program.
22
Requirement
23
(2) The emissions-intensive trade-exposed assistance program may
24
make provision for and in relation to requiring the person to:
25
(a) make records of information specified in the program; and
26
(b) retain such a record, or a copy, for 5 years after the record
27
was made.
28
Part 8 Emissions-intensive trade-exposed assistance program
Division 2 Formulation of the emissions-intensive trade-exposed assistance program
Section 171
218 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
171 Other matters
1
(1) The emissions-intensive trade-exposed assistance program may
2
make provision for and in relation to the following matters:
3
(a) applications for free Australian emissions units;
4
(b) the approval by the Authority of a form for such an
5
application;
6
(c) information that must accompany such an application;
7
(d) documents that must accompany such an application;
8
(e) the method of calculating the number of free Australian
9
emissions units to be issued to a person in accordance with
10
the program.
11
(2) The emissions-intensive trade-exposed assistance program may
12
provide that an application for free Australian emissions units must
13
be accompanied by a prescribed report.
14
(3) The emissions-intensive trade-exposed assistance program may
15
provide for verification by statutory declaration of statements in
16
applications for free Australian emissions units.
17
172 Ancillary or incidental provisions
18
The emissions-intensive trade-exposed assistance program may
19
contain ancillary or incidental provisions.
20
21
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 2010 No. , 2010 219
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
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
220 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
1
Emissions-intensive trade-exposed assistance program Part 8
Special information-gathering powers Division 4
Section 173A
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 221
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
Part 8 Emissions-intensive trade-exposed assistance program
Division 4 Special information-gathering powers
Section 173B
222 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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
(aa) the corporation is capable of complying with the request; and
9
(b) the corporation refuses or fails to comply with the request;
10
and
11
(c) the Minister notifies the Authority, in writing, that the
12
Minister considers that the non-compliance is significant.
13
No assistance for 2 eligible financial years
14
(2) No free Australian emissions units that have a vintage year of:
15
(a) the first eligible financial year that begins after that time; or
16
(b) the eligible financial year that next follows the eligible
17
financial year mentioned in paragraph (a);
18
are to be issued to the corporation in accordance with the
19
emissions-intensive trade-exposed assistance program.
20
173C Disclosure of information to the Authority
21
Scope
22
(1) This section applies to information obtained under section 173A.
23
Disclosure
24
(2) The Minister may disclose the information to the Authority for the
25
purposes of, or in connection with, the performance of the
26
functions, or the exercise of the powers, of the Authority.
27
Emissions-intensive trade-exposed assistance program Part 8
Special information-gathering powers Division 4
Section 173C
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 223
Other powers of disclosure not limited
1
(3) This section does not, by implication, limit the Minister's powers
2
to disclose the information to a person other than the Authority.
3
4
Part 8A Coal mining
Division 1 Introduction
Section 173D
224 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Part 8A--Coal mining
1
Division 1--Introduction
2
173D Object
3
The object of this Part is to provide limited transitional assistance
4
in respect of coal mining that has significant fugitive emissions of
5
greenhouse gases.
6
173E Simplified outline
7
The following is a simplified outline of this Act:
8
·
Free Australian emissions units may be issued in respect of
9
coal mining that meets certain eligibility requirements.
10
·
Free units will be issued during:
11
(a)
the financial year beginning on 1 July 2011; and
12
(b)
each of the next 4 financial years.
13
·
The number of free units is capped.
14
15
Coal mining Part 8A
Issue of free Australian emissions units in respect of coal mining Division 2
Section 173F
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 225
Division 2--Issue of free Australian emissions units in
1
respect of coal mining
2
173F Issue of free Australian emissions units in respect of coal
3
mining
4
Scope
5
(1) This section applies if a certificate of entitlement to coal mining
6
assistance is in force in respect of an eligible coal mining area for
7
an eligible financial year.
8
Note: For
eligible coal mining area, see section 173R.
9
Issue of free units
10
(2) As soon as practicable after the day on which the certificate was
11
issued, the Authority must issue to the holder of the certificate a
12
number of free Australian emissions units equal to the number
13
specified in the certificate as the unit entitlement for that
14
certificate.
15
(3) Free Australian emissions units issued in accordance with
16
subsection (2) during an eligible financial year are to have a
17
vintage year of the eligible financial year.
18
(4) The Authority must not issue a free Australian emissions unit to a
19
person in accordance with subsection (2) unless the person has a
20
Registry account.
21
22
Part 8A Coal mining
Division 3 Certificate of entitlement to coal mining assistance
Section 173G
226 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Division 3--Certificate of entitlement to coal mining
1
assistance
2
173G Application for certificate of entitlement to coal mining
3
assistance
4
(1) During the first 4 months of:
5
(a) the eligible financial year beginning on 1 July 2011; or
6
(b) the eligible financial year beginning on 1 July 2012; or
7
(c) the eligible financial year beginning on 1 July 2013; or
8
(d) the eligible financial year beginning on 1 July 2014; or
9
(e) the eligible financial year beginning on 1 July 2015;
10
a person may apply to the Authority for the issue to the person of a
11
certificate of entitlement to coal mining assistance in respect of an
12
eligible coal mining area for the eligible financial year.
13
Note: For
eligible coal mining area, see section 173R.
14
(2) An application must state that coal mining operations carried out in
15
the eligible coal mining area are not likely to permanently cease
16
during the eligible financial year.
17
(3) An application must specify the number of tonnes of saleable coal
18
produced from coal mining operations carried out in the eligible
19
coal mining area during the previous financial year.
20
173H Form of application
21
(1) An application must:
22
(a) be in writing; and
23
(b) be in a form approved, in writing, by the Authority; and
24
(c) be accompanied by such information as is specified in the
25
regulations; and
26
(d) be accompanied by such documents (if any) as are specified
27
in the regulations; and
28
(e) be accompanied by a prescribed report.
29
(2) The approved form of application may provide for verification by
30
statutory declaration of statements in applications.
31
Coal mining Part 8A
Certificate of entitlement to coal mining assistance Division 3
Section 173J
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 227
173J 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
173K Issue of certificate of entitlement to coal mining assistance
10
Scope
11
(1) This section applies if an application under section 173G has been
12
made for the issue of a certificate of entitlement to coal mining
13
assistance in respect of an eligible coal mining area for an eligible
14
financial year (the current eligible financial year).
15
Issue of certificate
16
(2) The Authority must issue a certificate of entitlement to coal mining
17
assistance in respect of the eligible coal mining area for the current
18
eligible financial year if:
19
(a) the applicant passes the coal mining control test in relation to
20
the eligible coal mining area for the previous financial year;
21
and
22
(b) throughout the previous financial year, there was a coal
23
mining title over the area of land; and
24
(c) during the whole or a part of the previous financial year, coal
25
mining operations were carried out in the whole or a part of
26
the area of land; and
27
(d)
if:
28
(i) during a period that is included in, or consists of, the
29
previous financial year, coal mining operations carried
30
out in the eligible coal mining area were a facility; and
31
(ii) a nomination is or will be required under subsection
32
11B(2) or 11C(2) of the National Greenhouse and
33
Part 8A Coal mining
Division 3 Certificate of entitlement to coal mining assistance
Section 173K
228 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Energy Reporting Act 2007 in relation to the facility for
1
that period;
2
such a nomination has been made.
3
Note: For
coal mining control test, see section 173W.
4
(3) A certificate of entitlement to coal mining assistance must state
5
that a specified number is the unit entitlement in respect of the
6
certificate.
7
Note:
See section 173L (unit entitlement).
8
Transitional
9
(4)
If:
10
(a) during a period that is included in, or consists of, the previous
11
financial year, coal mining operations carried out in the
12
eligible coal mining area were a facility; and
13
(b) the current eligible financial year is the eligible financial year
14
beginning on 1 July 2011;
15
sections 11B and 11C of the National Greenhouse and Energy
16
Reporting Act 2007 have effect, in relation to the facility, as if:
17
(c) those sections had commenced on 1 July 2010; and
18
(d) the financial year beginning on 1 July 2010 had been an
19
eligible financial year.
20
Note:
Sections 11B and 11C of the National Greenhouse and Energy
21
Reporting Act 2007 deal with operational control of facilities.
22
Timing
23
(5) The Authority must take all reasonable steps to ensure that a
24
decision is made on the application:
25
(a) if the Authority requires the applicant to give further
26
information under subsection 173J(1) in relation to the
27
application--within 90 days after the applicant gave the
28
Authority the information; or
29
(b) otherwise--within 90 days after the application was made.
30
Coal mining Part 8A
Certificate of entitlement to coal mining assistance Division 3
Section 173L
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 229
Refusal
1
(6) If the Authority decides to refuse to issue a certificate of
2
entitlement to coal mining assistance, the Authority must give
3
written notice of the decision to the applicant.
4
Publication of copy of certificate
5
(7) As soon as practicable after issuing a certificate of entitlement to
6
coal mining assistance, the Authority must publish a copy of the
7
certificate on its website.
8
173L Unit entitlement
9
(1) The number to be specified in a certificate of entitlement to coal
10
mining assistance in respect of an eligible coal mining area for an
11
eligible financial year (the current eligible financial year) as the
12
unit entitlement in respect of the certificate is the number worked
13
out using the following formula:
14
Assistance factor
Total base period
0.6
for the eligible
fugitive emissions numbers
coal mining area
×
×
15
where:
16
assistance factor for the eligible coal mining area has the
17
meaning given by subsection (2).
18
total base period fugitive emissions numbers means whichever is
19
the lesser of the following:
20
(a) the total of the base period fugitive emissions numbers
21
specified in section 173R declarations made, or purportedly
22
made, by the Authority before the start of the current eligible
23
financial year;
24
(b)
16,200,000.
25
For the purposes of paragraph (a), disregard a section 173R
26
declaration if a decision to make the declaration was set aside by a
27
court or tribunal before the start of the current eligible financial
28
year.
29
Part 8A Coal mining
Division 3 Certificate of entitlement to coal mining assistance
Section 173L
230 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(2) For the purposes of subsection (1), the assistance factor for the
1
eligible coal mining area is the amount worked out using the
2
following formula:
3
Adjusted base period
Relevant saleable coal number
fugitive emissions intensity number
for the eligible coal mining area
for the eligible coal mining area
Total adjusted base period
fugitive emissions numb
×
ers
4
where:
5
adjusted base period fugitive emissions intensity number for the
6
eligible coal mining area means the adjusted base period fugitive
7
emissions intensity number specified in the section 173R
8
declaration relating to the eligible coal mining area.
9
relevant saleable coal number for the eligible coal mining area
10
means whichever is the lesser of the following:
11
(a) the capped base period saleable coal number specified in the
12
section 173R declaration relating to the eligible coal mining
13
area;
14
(b) the Authority's reasonable estimate of the total number of
15
tonnes of saleable coal produced from coal mining operations
16
carried out in the eligible coal mining area during the
17
previous financial year.
18
total adjusted base period fugitive emissions numbers means the
19
total of the adjusted base period fugitive emissions numbers
20
specified in section 173R declarations made, or purportedly made,
21
by the Authority before the start of the current eligible financial
22
year. For this purpose, disregard a section 173R declaration if a
23
decision to make the declaration was set aside by a court or
24
tribunal before the start of the current eligible financial year.
25
(3) If the number worked out using the formula in subsection (1) is not
26
a whole number, the number is to be rounded to the nearest whole
27
number (with a number ending in .5 being rounded up).
28
Coal mining Part 8A
Certificate of entitlement to coal mining assistance Division 3
Section 173M
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 231
173M Certificate of entitlement to coal mining assistance is not
1
transferable
2
A certificate of entitlement to coal mining assistance is not
3
transferable.
4
5
Part 8A
Coal mining
Division 4
Eligible coal mining area
Section 173N
232 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Division 4--Eligible coal mining area
1
173N Application for declaration of eligible coal mining area
2
A person may, within 180 days after the commencement of this
3
section, apply to the Authority for the declaration of an area of land
4
as an eligible coal mining area.
5
173P 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 documents (if any) as are specified
12
in the regulations; and
13
(e) be accompanied by a prescribed report.
14
(2) The approved form of application may provide for verification by
15
statutory declaration of statements in applications.
16
173Q Further information
17
(1) The Authority may, by written notice given to an applicant, require
18
the applicant to give the Authority, within the period specified in
19
the notice, further information in connection with the application.
20
(2) If the applicant breaches the requirement, the Authority may, by
21
written notice given to the applicant:
22
(a) refuse to consider the application; or
23
(b) refuse to take any action, or any further action, in relation to
24
the application.
25
Coal mining Part 8A
Eligible coal mining area Division 4
Section 173R
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 233
173R Declaration of eligible coal mining area
1
Scope
2
(1) This section applies if an application under section 173N has been
3
made for a declaration of an area of land as an eligible coal mining
4
area.
5
Declaration
6
(2) After considering the application, the Authority may, by writing,
7
declare that the area of land is an eligible coal mining area for the
8
purposes of this Act.
9
(3) A declaration under subsection (2) must:
10
(a) identify, in accordance with the regulations, the area of land;
11
and
12
(b) state that a specified number is the base period fugitive
13
emissions number in relation to the area of land; and
14
(c) state that a specified number is the base period saleable coal
15
number in relation to the area of land; and
16
(d) state that a specified number is the capped base period
17
saleable coal number in relation to the area of land; and
18
(e) state that a specified number is the adjusted base period
19
fugitive emissions intensity number in relation to the area of
20
land; and
21
(f) state that a specified number is the adjusted base period
22
fugitive emissions number in relation to the area of land.
23
Note 1:
The base period fugitive emissions number is worked out under
24
section 173S.
25
Note 2:
The base period saleable coal number is worked out under
26
section 173T.
27
Note 3:
The capped base period saleable coal number is worked out under
28
section 173TA.
29
Note 4:
The adjusted base period fugitive emissions intensity number is
30
worked out under section 173U.
31
Note 5:
The adjusted base period fugitive emissions number is worked out
32
under section 173V.
33
Part 8A
Coal mining
Division 4
Eligible coal mining area
Section 173R
234 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Criteria for declaration
1
(4) The Authority must not declare that the area of land is an eligible
2
coal mining area unless the Authority is satisfied that:
3
(a) during the whole or a part of the 2-year period beginning on
4
1 July 2007, coal mining operations were carried out in the
5
whole or a part of the area of land; and
6
(b) the applicant passes the coal mining control test in relation to
7
the area of land for the financial year beginning on 1 July
8
2008; and
9
(c) such other conditions (if any) as are specified in the
10
regulations are satisfied.
11
Note: For
coal mining control test, see section 173W.
12
Timing
13
(5) The Authority must take all reasonable steps to ensure that a
14
decision is made on the application:
15
(a) if the Authority requires the applicant to give further
16
information under subsection 173Q(1) in relation to the
17
application--within 90 days after the applicant gave the
18
Authority the information; or
19
(b) otherwise--within 90 days after the application was made.
20
When a declaration takes effect
21
(6) A declaration under subsection (2) takes effect immediately after it
22
is made.
23
Notification of declaration
24
(7) As soon as practicable after making a declaration under
25
subsection (2), the Authority must give a copy of the declaration to
26
the applicant.
27
Publication of copy of declaration
28
(8) As soon as practicable after making a declaration under
29
subsection (2), the Authority must publish a copy of the declaration
30
on its website.
31
Coal mining Part 8A
Eligible coal mining area Division 4
Section 173R
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 235
Refusal
1
(9) If the Authority decides to refuse to declare the area of land as an
2
eligible coal mining area, the Authority must give written notice of
3
the decision to the applicant.
4
Declaration is not legislative instrument
5
(10) A declaration made under subsection (2) is not a legislative
6
instrument.
7
8
Part 8A
Coal mining
Division 5
Miscellaneous
Section 173S
236 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Division 5--Miscellaneous
1
173S Base period fugitive emissions number
2
For the purposes of this Act, the base period fugitive emissions
3
number in relation to an area of land is the Authority's reasonable
4
estimate of the total number of tonnes of the carbon dioxide
5
equivalence of fugitive emissions emitted from coal mining
6
operations carried out in the area of land during the financial year
7
beginning on 1 July 2008, calculated using the method ascertained
8
in accordance with the regulations.
9
173T Base period saleable coal number
10
For the purposes of this Act, the base period saleable coal number
11
in relation to an area of land is the Authority's reasonable estimate
12
of the total number of tonnes of saleable coal produced from coal
13
mining operations carried out in the area of land during the
14
financial year beginning on 1 July 2008.
15
173TA Capped base period saleable coal number
16
For the purposes of this Act, the capped base period saleable coal
17
number in relation to an area of land is whichever is the greater of
18
the following:
19
(a) the Authority's reasonable estimate of the total number of
20
tonnes of saleable coal produced from coal mining operations
21
carried out in the area of land during the financial year
22
beginning on 1 July 2007;
23
(b) the Authority's reasonable estimate of the total number of
24
tonnes of saleable coal produced from coal mining operations
25
carried out in the area of land during the financial year
26
beginning on 1 July 2008.
27
173U Adjusted base period fugitive emissions intensity number
28
For the purposes of this Act, the adjusted base period fugitive
29
emissions intensity number in relation to an area of land is the
30
number worked out to 3 decimal places (rounding up if the 4th
31
decimal place is 5 or more) using the following formula:
32
Coal mining Part 8A
Miscellaneous Division 5
Section 173V
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 237
Base period fugitive emissions number
for the area of land
0.1
Base period saleable coal number
for the area of land
-
1
Note 1:
The base period fugitive emissions number is worked out under
2
section 173S.
3
Note 2:
The base period saleable coal number is worked out under
4
section 173T.
5
173V Adjusted base period fugitive emissions number
6
(1) For the purposes of this Act, the adjusted base period fugitive
7
emissions number in relation to an area of land is the number
8
worked out using the following formula:
9
Adjusted base period fugitive
Capped base period saleable coal number
emissions intensity number
for the area of land
for the area of land
×
10
11
Note 1:
The adjusted base period fugitive emissions intensity number is
12
worked out under section 173U.
13
Note 2:
The capped base period saleable coal number is worked out under
14
section 173TA.
15
(2) If the number worked out using the formula in subsection (1) is not
16
a whole number, the number is to be rounded to the nearest whole
17
number (with a number ending in .5 being rounded up).
18
173W Coal mining control test
19
For the purposes of this Act, a person passes the coal mining
20
control test in relation to an area of land for a financial year if:
21
(a) if, assuming that:
22
(i) at the last time in the financial year when coal mining
23
operations were carried out in the area of land, those
24
coal mining operations had been a facility; and
25
(ii) at the last time in the financial year when coal mining
26
operations were carried out in the area of land,
27
greenhouse gases with a carbon dioxide equivalence of
28
Part 8A
Coal mining
Division 5
Miscellaneous
Section 173W
238 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
25,000 tonnes had been emitted from those coal mining
1
operations; and
2
(iii) the financial year had been an eligible financial year;
3
a controlling corporation of a group would, under section 17,
4
be a liable entity for the financial year wholly or partly as a
5
result of those emissions of greenhouse gases--the person is
6
the controlling corporation; or
7
(b) if, assuming that:
8
(i) at the last time in the financial year when coal mining
9
operations were carried out in the area of land, those
10
coal mining operations had been a facility; and
11
(ii) at the last time in the financial year when coal mining
12
operations were carried out in the area of land,
13
greenhouse gases with a carbon dioxide equivalence of
14
25,000 tonnes had been emitted from those coal mining
15
operations; and
16
(iii) the financial year had been an eligible financial year;
17
a non-group entity would, under section 18, be a liable entity
18
for the financial year wholly or partly as a result of those
19
emissions of greenhouse gases--the person is the non-group
20
entity; or
21
(c) if, assuming that:
22
(i) at the last time in the financial year when coal mining
23
operations were carried out in the area of land, those
24
coal mining operations had been a facility; and
25
(ii) at the last time in the financial year when coal mining
26
operations were carried out in the area of land,
27
greenhouse gases with a carbon dioxide equivalence of
28
25,000 tonnes had been emitted from those coal mining
29
operations; and
30
(iii) the financial year had been an eligible financial year;
31
the holder of a liability transfer certificate would, under
32
section 19, be a liable entity for the financial year wholly or
33
partly as a result of those emissions of greenhouse gases--the
34
person is the holder of the liability transfer certificate.
35
Coal mining Part 8A
Miscellaneous Division 5
Section 173X
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 239
173X Submerged land
1
For the purposes of this Part, land includes submerged land.
2
3
Part 9
Coal-fired electricity generation
Division 1
Introduction
Section 174
240 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 9 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 the number
22
of free units to be issued in respect of the generation asset for
23
the financial years beginning on 1 July 2018, 1 July 2019 and
24
1 July 2020 is to be halved.
25
·
Free units will not be issued if a generation asset does not pass
26
the power system reliability test for a financial year.
27
Coal-fired electricity generation Part 9
Introduction Division 1
Section 175
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 241
1
Part 9
Coal-fired electricity generation
Division 2
Issue of free Australian emissions units in respect of generation assets
Section 176
242 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
(f) 1 September in the eligible financial year beginning on 1 July
21
2016;
22
(g) 1 September in the eligible financial year beginning on 1 July
23
2017;
24
(h) 1 September in the eligible financial year beginning on 1 July
25
2018;
26
(i) 1 September in the eligible financial year beginning on 1 July
27
2019;
28
(j) 1 September in the eligible financial year beginning on 1 July
29
2020;
30
the Authority must issue a number of free Australian emissions
31
units equal to the number worked out using the following formula:
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 2010 No. , 2010 243
Annual assistance factor
specified in the certificate
Generation assistance limit
for that eligible financial year
Total annual assistance factors
for that eligible financial year
×
1
where:
2
annual assistance factor specified in the certificate means the
3
number specified in the certificate as the annual assistance factor in
4
respect of the generation asset.
5
Note:
The annual assistance factor is worked out under section 182.
6
generation assistance limit for that eligible financial year means:
7
(aa) if that eligible financial year begins on 1 July 2011--
8
26,140,000; or
9
(ab) if that eligible financial year begins on 1 July 2012--
10
26,140,000; or
11
(a) if that eligible financial year begins on 1 July 2013--the
12
number worked out using the formula in subsection (4); or
13
(b) if that eligible financial year begins on 1 July 2014--
14
26,140,000; or
15
(c) if that eligible financial year begins on 1 July 2015--
16
26,140,000; or
17
(d) if that eligible financial year begins on 1 July 2016--
18
19,600,000; or
19
(e) if that eligible financial year begins on 1 July 2017--
20
19,600,000; or
21
(f) if that eligible financial year begins on 1 July 2018--
22
19,600,000; or
23
(g) if that eligible financial year begins on 1 July 2019--
24
19,600,000; or
25
(h) if that eligible financial year begins on 1 July 2020--
26
19,600,000.
27
total annual assistance factors for that eligible financial year
28
means the total of the numbers specified as annual assistance
29
factors in certificates of eligibility for coal-fired generation
30
assistance issued, or purportedly issued, by the Authority before
31
1 September in that eligible financial year. For this purpose,
32
Part 9
Coal-fired electricity generation
Division 2
Issue of free Australian emissions units in respect of generation assets
Section 176
244 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
disregard a certificate if a decision to issue the certificate was set
1
aside by a court or tribunal before 1 September in that eligible
2
financial year.
3
(3) If the number worked out using the formula in subsection (2) is not
4
a multiple of 100:
5
(a) the number is to be rounded to the nearest multiple of 100;
6
and
7
(b) if the number is a multiple of 50--the number is to be
8
rounded up to the nearest multiple of 100.
9
(4) The formula mentioned in paragraph (a) of the definition of
10
generation assistance limit for that eligible financial year in
11
subsection (2) is as follows:
12
Total number of Australian
emissions units issued in
Total number of
78,420,000
accordance with this Part
withheld units
before 1 September 2013
-
-
13
where:
14
total number of withheld units means the Authority's reasonable
15
estimate of the number of free Australian emissions units with a
16
vintage year beginning on 1 July 2011 or 1 July 2012 that were not
17
issued in accordance with this Part because of section 188 (power
18
system reliability).
19
When units are to be issued
20
(5) If 1 September in a later eligible financial year is not a business
21
day, the units are to be issued on the next business day after that
22
1 September.
23
Recipient of units
24
(6) Free Australian emissions units issued in accordance with
25
subsection (2) during an eligible financial year (the current eligible
26
financial year) are to be issued to whichever one of the following
27
persons is applicable:
28
(a) if, assuming that:
29
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 2010 No. , 2010 245
(i) immediately before the end of the previous eligible
1
financial year, the generation asset had been a facility;
2
and
3
(ii) immediately before the end of the previous eligible
4
financial year, the generation asset had been in
5
operation; and
6
(iii) immediately before the end of the previous eligible
7
financial year, greenhouse gases with a carbon dioxide
8
equivalence of 25,000 tonnes had been emitted from the
9
operation of the generation asset; and
10
(iv) the financial year beginning on 1 July 2010 had been an
11
eligible financial year;
12
a controlling corporation of a group would, under section 17,
13
be a liable entity for the previous eligible financial year
14
wholly or partly as a result of those emissions of greenhouse
15
gases--the controlling corporation;
16
(b) if, assuming that:
17
(i) immediately before the end of the previous eligible
18
financial year, the generation asset had been a facility;
19
and
20
(ii) immediately before the end of the previous eligible
21
financial year, the generation asset had been in
22
operation; and
23
(iii) immediately before the end of the previous eligible
24
financial year, greenhouse gases with a carbon dioxide
25
equivalence of 25,000 tonnes had been emitted from the
26
operation of the generation asset; and
27
(iv) the financial year beginning on 1 July 2010 had been an
28
eligible financial year;
29
a non-group entity would, under section 18, be a liable entity
30
for the previous eligible financial year wholly or partly as a
31
result of those emissions of greenhouse gases--the
32
non-group entity;
33
(c) if, assuming that:
34
(i) immediately before the end of the previous eligible
35
financial year, the generation asset had been a facility;
36
and
37
Part 9
Coal-fired electricity generation
Division 2
Issue of free Australian emissions units in respect of generation assets
Section 176
246 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(ii) immediately before the end of the previous eligible
1
financial year, the generation asset had been in
2
operation; and
3
(iii) immediately before the end of the previous eligible
4
financial year, greenhouse gases with a carbon dioxide
5
equivalence of 25,000 tonnes had been emitted from the
6
operation of the generation asset; and
7
(iv) the financial year beginning on 1 July 2010 had been an
8
eligible financial year;
9
a person would, under section 19, be a liable entity for the
10
previous eligible financial year wholly or partly as a result of
11
those emissions of greenhouse gases--the person.
12
Vintage year
13
(7) Free Australian emissions units issued in accordance with
14
subsection (2) during an eligible financial year are to have a
15
vintage year of the eligible financial year.
16
Registry account
17
(8) 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
Other provisions
21
(9) This section has effect subject to sections 183, 185 and 188.
22
Note 1:
Sections 183 and 185 deal with windfall gains.
23
Note 2:
Section 188 deals with power system reliability.
24
25
Coal-fired electricity generation Part 9
Certificate of eligibility for coal-fired generation assistance Division 3
Section 177
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 247
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
248 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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 2010 No. , 2010 249
(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
250 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 251
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
252 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 253
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
254 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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, as
8
measured at all generator terminals of the generation complex.
9
(6)
However,
the
emissions intensity of a generation asset not covered
10
by subsection (2) is taken to be 0.86 if the number worked out
11
under subsection (4) is less than 0.86.
12
13
Coal-fired electricity generation Part 9
Windfall gain Division 4
Section 183
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 255
Division 4--Windfall gain
1
183 Reduced assistance for 2018-2019, 2019-2020 and 2020-2021 if a
2
windfall gain declaration is in force etc.
3
(1) The Minister may, before 1 August 2018, by writing, determine
4
that the number of free Australian emissions units that:
5
(a) have a vintage year of:
6
(i) the eligible financial year beginning on 1 July 2018; or
7
(ii) the eligible financial year beginning on 1 July 2019; or
8
(iii) the eligible financial year beginning on 1 July 2020; and
9
(b) are to be issued in accordance with section 176 in respect of a
10
specified generation asset;
11
is to be reduced by 50%.
12
(2) The Minister must not make a determination under subsection (1)
13
in relation to a generation asset unless a windfall gain declaration
14
is in force in respect of the generation asset.
15
(3) A copy of a determination under subsection (1) is to be given to:
16
(a) the Authority; and
17
(b) the person who made a submission under section 185 in
18
relation to the generation asset.
19
(4) The Authority must publish the copy on its website.
20
(5) A determination under subsection (1) is not a legislative
21
instrument.
22
184 Revocation of Ministerial determination
23
(1) This section applies if the Minister has made, or purportedly made,
24
a determination under subsection 183(1) in relation to a generation
25
asset, and:
26
(a) all of the following conditions are satisfied:
27
(i) the decision to make a windfall gain declaration in
28
relation to the generation asset is set aside by the
29
Administrative Appeals Tribunal;
30
Part 9
Coal-fired electricity generation
Division 4
Windfall gain
Section 184
256 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(ii) the Administrative Appeals Tribunal makes a decision
1
in substitution for the decision so set aside;
2
(iii) the substituted decision is a decision not to make a
3
windfall gain declaration in relation to the generation
4
asset; or
5
(b) all of the following conditions are satisfied:
6
(i) the decision to make a windfall gain declaration in
7
relation to the generation asset is set aside by the
8
Administrative Appeals Tribunal;
9
(ii) the Administrative Appeals Tribunal remits the decision
10
for reconsideration by the Authority;
11
(iii) the Authority reconsiders the decision and decides not
12
to make a windfall gain declaration in relation to the
13
generation asset; or
14
(c) all of the following conditions are satisfied:
15
(i) the decision to make a windfall gain declaration in
16
relation to the generation asset is remitted by the
17
Administrative Appeals Tribunal to the Authority for
18
reconsideration of the decision;
19
(ii) the Authority sets the decision aside and makes a
20
decision in substitution for the decision set aside;
21
(iii) the substituted decision is a decision not to make the
22
windfall gain declaration in relation to the generation
23
asset; or
24
(d) both of the following conditions are satisfied:
25
(i) the decision to make a windfall gain declaration in
26
relation to the generation asset is quashed or set aside by
27
a court;
28
(ii) 60 days pass, and neither the Authority nor the
29
Administrative Appeals Tribunal has made, in
30
substitution for the decision quashed or set aside, a
31
decision to make a windfall gain declaration in relation
32
to the generation asset.
33
Coal-fired electricity generation Part 9
Windfall gain Division 4
Section 184A
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 257
Revocation of determination
1
(2) The Minister must declare, in writing, that this Act has effect as if
2
the determination made, or purportedly made, under subsection
3
183(1) is revoked.
4
(3) A declaration under subsection (2) is not a legislative instrument.
5
184A Revocation of Ministerial determination--issue of free
6
Australian emissions units
7
Scope
8
(1) This section applies if:
9
(a) the Minister has made, or purportedly made, a determination
10
under subsection 183(1) in relation to a generation asset; and
11
(b) as a result of the subsection 183(1) determination, a reduced
12
number of free Australian emissions units have been issued
13
to a person on a particular day in respect of the generation
14
asset; and
15
(c) after the issue of those units, the Minister has made a
16
declaration under subsection 184(2) in relation to the
17
subsection 183(1) determination.
18
Issue of free Australian emissions units
19
(2) On the 10th business day after the day on which the subsection
20
184(2) declaration was made, the Authority must issue to the
21
person, in respect of the generation asset, a number of free
22
Australian emissions units that is equal to the reduced number
23
mentioned in paragraph (1)(b).
24
(3) Free Australian emissions units issued in an eligible financial year
25
in accordance with subsection (2) are to have a vintage year of the
26
eligible financial year.
27
Registry account
28
(4) The Authority must not issue a free Australian emissions unit to
29
the person in accordance with subsection (2) unless the person has
30
a Registry account.
31
Part 9
Coal-fired electricity generation
Division 4
Windfall gain
Section 185
258 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Other provisions
1
(5) Subsection (2) has effect subject to sections 185 and 188.
2
Note 1:
Section 185 deals with windfall gains.
3
Note 2:
Section 188 deals with power system reliability.
4
No double entitlement
5
(6) If free Australian emissions units have been, or are to be, issued to
6
the person in accordance with subsection (2) of this section,
7
subsection 176(2) has effect, in relation to the requirement to issue
8
free Australian emissions units on the day mentioned in
9
paragraph (1)(b) of this section in respect of the generation asset,
10
as if:
11
(a) the subsection 184(2) declaration had never been made; and
12
(b) the relevant conditions set out in paragraph 184(1)(a), (b), (c)
13
or (d) had never been satisfied; and
14
(c) in the case of a subsection 183(1) determination that was
15
purportedly made--the determination had been validly made.
16
185 Submission about windfall gain
17
Scope
18
(1) This section applies to a generation asset if free Australian
19
emissions units with a vintage year beginning on 1 July 2017 were
20
issued to a person in accordance with this Part in respect of the
21
generation asset.
22
Submission
23
(2) The person must, before 30 September 2017, make a written
24
submission to the Authority:
25
(a) stating whether or not the person is of the opinion that the
26
generation asset passes the windfall gain test; and
27
(b) setting out the person's reasons for that opinion.
28
(3) A submission under subsection (2) must:
29
(a) be in a form approved, in writing, by the Authority; and
30
Coal-fired electricity generation Part 9
Windfall gain Division 4
Section 186
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 259
(b) contain such information as is specified in a legislative
1
instrument made by the Authority; and
2
(c) contain such documents (if any) as are specified in a
3
legislative instrument made by the Authority.
4
Compliance
5
(4) If the person breaches subsection (2) in relation to the generation
6
asset, no free Australian emissions units that have a vintage year
7
of:
8
(a) the eligible financial year beginning on 1 July 2018; or
9
(b) the eligible financial year beginning on 1 July 2019; or
10
(c) the eligible financial year beginning on 1 July 2020;
11
are to be issued in accordance with this Part in respect of the
12
generation asset.
13
186 Windfall gain declaration
14
Scope
15
(1) This section applies to a generation asset if:
16
(a) a certificate of eligibility for coal-fired generation assistance
17
is in force in respect of the generation asset; and
18
(b) a submission about the generation asset is made under
19
section 185.
20
Windfall gain declaration
21
(2) Before 1 April 2018, the Authority must consider whether the
22
generation asset passes the windfall gain test, and:
23
(a) if the Authority is satisfied that the generation asset passes
24
the windfall gain test--make a written declaration (a windfall
25
gain declaration) that the generation asset passes the
26
windfall gain test; or
27
(b) if the Authority is not satisfied that the generation asset
28
passes the windfall gain test--refuse to make a windfall gain
29
declaration in relation to the generation asset.
30
Note: For
windfall gain test, see section 187.
31
Part 9
Coal-fired electricity generation
Division 4
Windfall gain
Section 186
260 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(3) Before making a declaration under subsection (2), the Authority
1
must:
2
(a) publish a draft of the declaration on its website and invite
3
people to make submissions to the Authority on the question
4
of whether the declaration should be made; and
5
(b) consider any submissions that were received within the time
6
limit specified by the Authority when it published the draft
7
declaration; and
8
(c) consult the Australian Energy Regulator; and
9
(d) consult the Australian Energy Market Commission
10
established under the Australian Energy Market Commission
11
Establishment Act 2004 of South Australia; and
12
(da) consult the appropriate energy market operator; and
13
(e) consult such other bodies (if any) as are specified in the
14
regulations.
15
(3A) The time limit mentioned in paragraph (2)(b) must not be shorter
16
than 30 days after the draft declaration is published.
17
(4) In making a decision under this section, the Authority:
18
(a) may make such assumptions and estimates as the Authority
19
considers reasonable; and
20
(b) may have regard to such other matters as the Authority
21
considers relevant.
22
(5) A copy of a windfall gain declaration is to be given to the Minister.
23
(6) The copy must be accompanied by a report setting out the
24
Authority's reasons for making the declaration.
25
(7) A copy of the declaration and a copy of the report are to be
26
published on the Authority's website.
27
(8) The Authority may remove from the version of the report
28
published on its website any material that the Authority considers
29
to be commercial-in-confidence.
30
(9) At least 14 days before the Authority:
31
(a) gives a copy of the report to the Minister; or
32
(b) publishes a copy of the report on the Authority's website;
33
Coal-fired electricity generation Part 9
Windfall gain Division 4
Section 187
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 261
a copy of the report is to be given to the person who made the
1
submission mentioned in paragraph (1)(b).
2
(10) A windfall gain declaration is not a legislative instrument.
3
187 Windfall gain test
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
Windfall gain test
9
(2) For the purposes of this Act, the generation asset passes the
10
windfall gain test if:
11
(a) it is likely that:
12
(i) there will be a projected long-term net revenue loss in
13
respect of the generation asset; and
14
(ii) the total value of assistance in respect of the generation
15
asset will exceed that projected long-term net revenue
16
loss; or
17
(b) it is likely that there will be a projected long-term net revenue
18
gain in respect of the generation asset.
19
Note 1:
For projected long-term net revenue loss, see subsection (4) or (5).
20
Note 2:
For total value of assistance, see subsection (3).
21
Note 3:
For projected long-term net revenue gain, see subsection (6) or (7).
22
Total value of assistance
23
(3) For the purposes of this section, the total value of assistance in
24
respect of the generation asset is the sum of the net present values
25
of:
26
(a) the market value of free Australian emissions units with the
27
following vintage years:
28
(i) the eligible financial year beginning on 1 July 2011;
29
(ii) the eligible financial year beginning on 1 July 2012;
30
(iii) the eligible financial year beginning on 1 July 2013;
31
Part 9
Coal-fired electricity generation
Division 4
Windfall gain
Section 187
262 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(iv) the eligible financial year beginning on 1 July 2014;
1
(v) the eligible financial year beginning on 1 July 2015;
2
(vi) the eligible financial year beginning on 1 July 2016;
3
(vii) the eligible financial year beginning on 1 July 2017;
4
issued in accordance with this Part in respect of the
5
generation asset; and
6
(b) the projected market value of free Australian emissions units
7
with the following vintage years:
8
(i) the eligible financial year beginning on 1 July 2018;
9
(ii) the eligible financial year beginning on 1 July 2019;
10
(iii) the eligible financial year beginning on 1 July 2020;
11
to be issued in accordance with this Part in respect of the
12
generation asset.
13
Projected long-term net revenue loss--generation complexes
14
(4) For the purposes of the application of this section to a generation
15
asset that is a generation complex, if the net present value of the
16
projected net revenue derived from the operation of the generation
17
asset during the 15-year period beginning on 1 July 2011 falls short
18
of the amount that would have been the net present value of the
19
projected net revenue derived from the operation of the generation
20
asset if:
21
(a) this Act had not been enacted; and
22
(b)
the
Renewable Energy (Electricity) Act 2000, as in force at
23
the start of 3 June 2007, had never been amended;
24
then:
25
(c) there is a projected long-term net revenue loss in respect of
26
the generation asset; and
27
(d) the amount of the projected long-term net revenue loss is
28
equal to the shortfall.
29
Projected long-term net revenue loss--generation complex projects
30
(5) For the purposes of the application of this section to a generation
31
asset that is a generation complex project, if the net present value
32
of the projected net revenue derived from the operation of the
33
proposed generation complex during the 15-year period beginning
34
Coal-fired electricity generation Part 9
Windfall gain Division 4
Section 187
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 263
on 1 July 2011 falls short of the amount that would have been the
1
net present value of the projected net revenue derived from the
2
operation of the proposed generation complex if:
3
(a) this Act had not been enacted; and
4
(b)
the
Renewable Energy (Electricity) Act 2000, as in force at
5
the start of 3 June 2007, had never been amended;
6
then:
7
(c) there is a projected long-term net revenue loss in respect of
8
the generation asset; and
9
(d) the amount of the projected long-term net revenue loss is
10
equal to the shortfall.
11
Projected long-term net revenue gain--generation complexes
12
(6) For the purposes of the application of this section to a generation
13
asset that is a generation complex, if the net present value of the
14
projected net revenue derived from the operation of the generation
15
asset during the 15-year period beginning on 1 July 2011 equals or
16
exceeds the amount that would have been the net present value of
17
the projected net revenue derived from the operation of the
18
generation asset if:
19
(a) this Act had not been enacted; and
20
(b)
the
Renewable Energy (Electricity) Act 2000, as it stood at
21
the start of 3 June 2007, had never been amended;
22
there is a projected long-term net revenue gain in respect of the
23
generation asset.
24
Projected long-term net revenue gain--generation complex
25
projects
26
(7) For the purposes of the application of this section to a generation
27
asset that is a generation complex project, if the net present value
28
of the projected net revenue derived from the operation of the
29
proposed generation complex during the 15-year period beginning
30
on 1 July 2011 equals or exceeds the amount that would have been
31
the net present value of the projected net revenue derived from the
32
operation of the proposed generation complex if:
33
(a) this Act had not been enacted; and
34
Part 9
Coal-fired electricity generation
Division 4
Windfall gain
Section 187
264 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(b)
the
Renewable Energy (Electricity) Act 2000, as it stood at
1
the start of 3 June 2007, had never been amended;
2
there is a projected long-term net revenue gain in respect of the
3
generation asset.
4
Calculation of values and amounts
5
(8) For the purposes of this section, each of the following:
6
(a) net present value;
7
(b)
market
value;
8
(c)
projected
market
value;
9
(d)
net
revenue;
10
(e) projected net revenue;
11
is to be calculated in a manner ascertained in accordance with a
12
legislative instrument made by the Authority.
13
(9) In making an instrument under subsection (8) that relates to the
14
calculation of:
15
(a) net revenue; or
16
(b) projected net revenue;
17
the Authority must have regard to:
18
(c) the effect of any contract for the supply of electricity that was
19
entered into before 3 June 2007; and
20
(d) such other matters (if any) as the Authority considers
21
relevant.
22
(10) Before making an instrument under subsection (8), the Authority
23
must:
24
(a) publish a draft of the instrument on its website and invite
25
people to make submissions to the Authority on the question
26
of whether the instrument should be made; and
27
(b) consider any submissions that were received within the time
28
limit specified by the Authority when it published the draft
29
instrument.
30
(11) The time limit must not be shorter than 30 days after the draft
31
instrument is published.
32
(12) The Authority must take all reasonable steps to ensure that:
33
Coal-fired electricity generation Part 9
Windfall gain Division 4
Section 187
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 265
(a) a draft of an instrument under subsection (8) is published
1
under paragraph (10)(a) before 1 January 2017; and
2
(b) an instrument is made under subsection (8) before 1 April
3
2017.
4
Assumptions
5
(13) For the purposes of the application of this section to a generation
6
asset that is a generation complex, it is to be assumed that no
7
modifications to the generation complex were undertaken, or
8
proposed to be undertaken, at any time during the period:
9
(a) beginning on 3 June 2007; and
10
(b) ending at the end of 30 June 2026.
11
(14) For the purposes of the application of this section to a generation
12
asset that is a generation complex project, it is to be assumed that
13
no modifications were made to the project after the start of 3 June
14
2007.
15
(15) For the purposes of this section, assume that sections 183, 185 and
16
188 had never been enacted.
17
18
Part 9
Coal-fired electricity generation
Division 5
Power system reliability
Section 188
266 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
(the current eligible financial year) if:
24
(a) the following conditions are satisfied:
25
(i) as at the start of 1 April in the previous eligible financial
26
year, a person who owns, controls or operates the
27
generation complex is registered as a generator in
28
respect of the generation complex under a law of the
29
Coal-fired electricity generation Part 9
Power system reliability Division 5
Section 189
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 267
Commonwealth, a State or Territory relating to the
1
regulation of energy markets;
2
(ii) as at the start of 3 June 2007, the nameplate rating in
3
megawatts of the generation complex was registered
4
under such a law;
5
(iii) as at the start of 1 April in the previous eligible financial
6
year, the nameplate rating in megawatts of the
7
generation complex was not less than the nameplate
8
rating in megawatts of the generation complex that was
9
registered under that law as at the start of 3 June 2007;
10
or
11
(b) the following conditions are satisfied:
12
(i) as at the start of 1 April in the previous eligible financial
13
year, a person who owns, controls or operates the
14
generation complex is registered as a generator in
15
respect of the generation complex under a law of the
16
Commonwealth, a State or Territory relating to the
17
regulation of energy markets;
18
(ii) the nameplate rating in megawatts of the generation
19
complex was first registered under the law at a time
20
after the start of 3 June 2007 but before 1 April in the
21
previous eligible financial year;
22
(iii) as at the start of 1 April in the previous eligible financial
23
year, the nameplate rating in megawatts of the
24
generation complex was not less than the nameplate
25
rating in megawatts that was registered as mentioned in
26
subparagraph (ii); or
27
(c) the following conditions are satisfied:
28
(i) neither paragraph (a) nor (b) applies;
29
(ii) as at the start of 1 April in the previous eligible financial
30
year, a person who owns, controls or operates the
31
generation complex is registered as a generator in
32
respect of the generation complex under a law of the
33
Commonwealth, a State or Territory relating to the
34
regulation of energy markets;
35
(iii) during the period beginning at the start of 3 June 2007
36
and ending immediately before 1 April in the previous
37
eligible financial year, there was a reduction in the
38
Part 9
Coal-fired electricity generation
Division 5
Power system reliability
Section 189
268 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
nameplate rating in megawatts of the generation
1
complex;
2
(iv) the appropriate energy market operator certifies in
3
writing that there is unlikely to be a breach of relevant
4
power system reliability standards applicable to the
5
energy market concerned at any time within 2 years
6
after the reduction; or
7
(d) the following conditions are satisfied:
8
(i) neither paragraph (a) nor (b) applies;
9
(ii) at a time before 1 April in the previous eligible financial
10
year, a person who owns, controls or operates the
11
generation complex was registered as a generator in
12
respect of the generation complex under a law of the
13
Commonwealth, a State or Territory relating to the
14
regulation of energy markets;
15
(iii) during the period beginning at the start of 3 June 2007
16
and ending immediately before 1 April in the previous
17
eligible financial year, the registration ceased to be in
18
force;
19
(iv) the appropriate energy market operator certifies in
20
writing that there is unlikely to be a breach of relevant
21
power system reliability standards applicable to the
22
energy market concerned at any time within 2 years
23
after the cessation; or
24
(e) the conditions set out in section 189AA are satisfied; or
25
(f) the following conditions are satisfied:
26
(i) the generation complex passed the power system
27
reliability test in relation to an earlier eligible financial
28
year because of paragraph (e);
29
(ii) the generation complex did so partly because, during the
30
period mentioned in subparagraph 189AA(3)(a)(ii),
31
there was a reduction in the nameplate rating in
32
megawatts of the generation complex;
33
(iii) during the period beginning immediately after the end
34
of the period mentioned in subparagraph
35
189AA(3)(a)(ii) and ending immediately before 1 April
36
in the eligible financial year that preceded the current
37
eligible financial year, there was no reduction in the
38
Coal-fired electricity generation Part 9
Power system reliability Division 5
Section 189AA
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 269
nameplate rating in megawatts of the generation
1
complex; or
2
(g) the following conditions are satisfied:
3
(i) the generation complex passed the power system
4
reliability test in relation to an earlier eligible financial
5
year because of paragraph (e);
6
(ii) the generation complex did so partly because of
7
paragraph 189AA(3)(b).
8
189AA Replacement capacity
9
(1) This section sets out the conditions mentioned in paragraph
10
189(2)(e) that apply for the purposes of ascertaining whether the
11
generation complex passes the power system reliability test in
12
relation to an eligible financial year.
13
(2) The first condition is that neither paragraph 189(2)(a) nor (b)
14
applies.
15
(3) The 2nd condition is that either:
16
(a)
both:
17
(i) as at the start of 1 April in the previous eligible financial
18
year, a person (the first person) who owns, controls or
19
operates the generation complex is registered as a
20
generator in respect of the generation complex under a
21
law of the Commonwealth, a State or Territory relating
22
to the regulation of energy markets; and
23
(ii) during the period beginning at the start of 3 June 2007
24
and ending immediately before 1 April in the previous
25
eligible financial year, there was a reduction in the
26
nameplate rating in megawatts of the generation
27
complex; or
28
(b)
both:
29
(i) at a time before 1 April in the previous eligible financial
30
year, a person (the first person) who owns, controls or
31
operates the generation complex was registered as a
32
generator in respect of the generation complex under a
33
law of the Commonwealth, a State or Territory relating
34
to the regulation of energy markets; and
35
Part 9
Coal-fired electricity generation
Division 5
Power system reliability
Section 189AA
270 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(ii) during the period beginning at the start of 3 June 2007
1
and ending immediately before 1 April in the previous
2
eligible financial year, the registration ceased to be in
3
force.
4
(4) The 3rd condition is that, as at the start of 1 April in the previous
5
eligible financial year, the first person is registered, under a law of
6
the Commonwealth, a State or Territory relating to the regulation
7
of energy markets, as a generator in respect of one or more
8
generation units that:
9
(a) before the start of that 1 April, have been nominated by the
10
first person under section 189AB for the purposes of the
11
application of this section to the generation complex; and
12
(b) are not included in the generation complex; and
13
(c) are connected to the same interconnected electricity system
14
as the generation complex; and
15
(d) if the market relating to the interconnected electricity system
16
is divided into regions--are located in the same region as the
17
generation complex; and
18
(e) entered service on or before 1 December in the previous
19
eligible financial year; and
20
(f) were not taken into account under paragraph (5)(b) for the
21
purposes of ascertaining whether the generation complex
22
passed the power system reliability test in relation to an
23
earlier eligible financial year.
24
(5) The 4th condition is that the sum of:
25
(a) the nameplate rating in megawatts of the generation complex
26
that was registered under a law of the Commonwealth, a
27
State or Territory relating to the regulation of energy markets
28
as at the start of 1 April in the previous eligible financial
29
year; and
30
(b) the nameplate rating or ratings in megawatts of the
31
generation units covered by subsection (4) that was registered
32
under such a law as at the start of 1 April in the previous
33
eligible financial year; and
34
(c)
if:
35
Coal-fired electricity generation Part 9
Power system reliability Division 5
Section 189AA
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 271
(i) the generation complex passed the power system
1
reliability test in relation to an earlier eligible financial
2
year because of paragraph 189(2)(e); and
3
(ii) the generation complex did so in relation to whichever
4
is the most recent of those earlier eligible financial years
5
partly because there were relevant excess megawatts;
6
those relevant excess megawatts;
7
equals or exceeds whichever is the least of the following:
8
(d) whichever of the following is applicable:
9
(i) if, as at the start of 3 June 2007, the nameplate rating in
10
megawatts of the generation complex was registered
11
under such a law--the nameplate rating in megawatts as
12
so registered;
13
(ii) if the nameplate rating in megawatts of the generation
14
complex was first registered under such a law at a time
15
after the start of 3 June 2007 but before 1 April in the
16
previous eligible financial year--the nameplate rating in
17
megawatts so registered;
18
(e) if the generation complex has passed the power system
19
reliability test in relation to one or more earlier eligible
20
financial years because of paragraph 189(2)(c)--the reduced
21
nameplate rating in megawatts of the generation complex that
22
was applicable under subparagraph 189(2)(c)(iii) for the
23
purposes of ascertaining whether the generation complex
24
passed the power system reliability test in relation to
25
whichever is the most recent of those earlier eligible financial
26
years;
27
(f) if the generation complex passed the power system reliability
28
test in relation to one or more earlier eligible financial years
29
because of paragraph 189(2)(e)--the nameplate rating in
30
megawatts that was applicable under paragraph (a) of this
31
subsection for the purposes of ascertaining whether the
32
generation complex passed the power system reliability test
33
in relation to whichever is the most recent of those earlier
34
eligible financial years.
35
The excess (if any) is to be known as the relevant excess
36
megawatts.
37
Part 9
Coal-fired electricity generation
Division 5
Power system reliability
Section 189AB
272 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(6) The 5th condition is that the requirements (if any) set out in the
1
regulations are met.
2
(7) For the purposes of this section, the nameplate rating of a
3
generation unit is the maximum continuous electrical generation
4
capacity in megawatts of the generation unit, as registered with the
5
appropriate energy market operator.
6
(8) For the purposes of this section, a generation unit that comprises,
7
or is included in, a generation complex enters service when the
8
unit is first dispatched to deliver electricity by the appropriate
9
energy market operator.
10
189AB Nomination of generation units
11
Scope
12
(1) This section applies to a generation unit if:
13
(a) a person (the first person) who owns, controls or operates the
14
generation unit is registered as a generator in respect of the
15
generation unit under a law of the Commonwealth, a State or
16
Territory relating to the regulation of energy markets; and
17
(b) the generation unit was first registered under the law on or
18
after 1 January 2010; and
19
(c) when the generation unit was first registered under the law,
20
the first person was registered in respect of the generation
21
unit under the law; and
22
(d) if a project to construct and commission the generation unit
23
was in existence as at the start of 1 January 2010--the project
24
was not fully committed by the project proponent as at the
25
start of 1 January 2010, having regard to the following
26
matters:
27
(i) the project proponent's rights to land for the
28
construction of the project;
29
(ii) whether contracts for the supply and construction of the
30
project's major plant or equipment (including contract
31
provisions for project cancellations) were executed;
32
(iii) the status of all planning and construction approvals and
33
licences necessary for the commencement of
34
Coal-fired electricity generation Part 9
Power system reliability Division 5
Section 189AB
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 273
construction of the project (including completed and
1
approved environmental impact statements);
2
(iv) the level of commitment to financing arrangements for
3
the project;
4
(v) whether project construction had commenced before
5
1 January 2010;
6
(vi) whether, as at the start of 1 January 2010, a firm date
7
had been set for project construction to commence; and
8
(e) the generation unit has output that:
9
(i) is readily predictable; and
10
(ii) is not significantly dependent on factors beyond the
11
control of the operator; and
12
(f) the likely emissions intensity of the generation unit during
13
the 2-year period beginning when the generation unit enters
14
service does not exceed 0.80; and
15
(g) the requirements (if any) set out in the regulations are met.
16
Nomination of generation unit
17
(2) The first person may, by written notice given to the Authority,
18
nominate the generation unit for the purposes of the application of
19
section 189AA to a specified generation complex.
20
(3) A nomination must be accompanied by a report that complies with
21
subsection (4).
22
(4) A report complies with this subsection if:
23
(a) the report is by a person who has appropriate engineering
24
qualifications; and
25
(b) the report sets out the person's estimate of the likely
26
emissions intensity of the generation unit during the 2-year
27
period beginning when the generation unit enters service; and
28
(c) the person does not have an interest, pecuniary or otherwise,
29
in the outcome of the nomination.
30
(5) A nomination cannot be withdrawn.
31
(6) The first person is not entitled to nominate the generation unit if
32
the generation unit has already been nominated under this section
33
(whether by the first person or by another person).
34
Part 9
Coal-fired electricity generation
Division 5
Power system reliability
Section 189AB
274 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Emissions intensity
1
(7) For the purposes of subsection (1), the likely emissions intensity of
2
a generation unit during the 2-year period beginning when the
3
generation unit enters service is the number that, in the opinion of
4
the Authority, should be treated as the likely emissions intensity of
5
the generation unit during that 2-year period, having regard to the
6
following matters:
7
(a) any documents relating to the design of the generation unit;
8
(b) if the generation unit has entered service--the number
9
worked out using the formula set out in subsection (8);
10
(c) the report mentioned in subsection (3);
11
(d) such other matters (if any) as the Authority considers
12
relevant.
13
(8) The formula mentioned in paragraph (7)(b) is:
14
Carbon dioxide equivalence of emissions
Gigawatt hours of electricity generated
15
where:
16
carbon dioxide equivalence of emissions means the total number
17
of kilotonnes of the carbon dioxide equivalence of the greenhouse
18
gases emitted from the combustion of fuel in the generation unit
19
for the purposes of the generation of electricity during the period
20
when the generation unit was in service.
21
gigawatt hours of electricity generated means the number of
22
gigawatt hours of electricity generated by the generation unit
23
during the period when the generation complex was in service, as
24
measured at all generator terminals of the generation unit.
25
When generation unit enters service
26
(9) For the purposes of this section, a generation unit enters service
27
when the unit is first dispatched to deliver electricity by the
28
appropriate energy market operator.
29
Coal-fired electricity generation Part 9
Power system reliability Division 5
Section 189AC
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 275
189AC Validity of nomination
1
Scope
2
(1) This section applies if a person makes, or purports to make, a
3
nomination under subsection 189AB(2).
4
Requirement
5
(2) The Authority must, within 60 days after receiving the nomination
6
or purported nomination, take all reasonable steps to inform the
7
person whether or not the Authority is satisfied that the nomination
8
or purported nomination is valid.
9
189A Anticipatory certification--reduction in nameplate rating
10
Scope
11
(1) This section applies to a generation complex if a person who owns,
12
controls or operates the generation complex is registered as a
13
generator in respect of the generation complex under a law of the
14
Commonwealth, a State or Territory relating to the regulation of
15
energy markets.
16
Application
17
(2) The person may apply, in writing, to the appropriate energy market
18
operator to certify that if a proposed reduction in the nameplate
19
rating in megawatts of the generation complex were to occur
20
during the period:
21
(a) beginning at the start of 3 June 2007; and
22
(b) ending immediately before 1 April in a specified eligible
23
financial year;
24
there is unlikely to be a breach of relevant power system reliability
25
standards applicable to the energy market concerned at any time
26
within 2 years after the reduction.
27
Certification
28
(3) If an application is made under subsection (2), the appropriate
29
energy market operator may:
30
Part 9
Coal-fired electricity generation
Division 5
Power system reliability
Section 189B
276 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(a) certify in accordance with the application; or
1
(b) refuse to so certify.
2
(4) If, within 120 days after receiving an application under
3
subsection (2), the appropriate energy market operator has neither:
4
(a) certified in accordance with the application; nor
5
(b) refused to so certify;
6
the appropriate energy market operator is taken, for the purposes of
7
this Act, to have certified in accordance with the application.
8
Consequences of certification
9
(5)
If:
10
(a) the appropriate energy market operator certifies in
11
accordance with the application; and
12
(b) the proposed reduction occurs;
13
then, for the purposes of subparagraph 189(2)(c)(iv), the
14
appropriate energy market operator is taken to have certified in
15
writing that there is unlikely to be a breach of relevant power
16
system reliability standards applicable to the energy market
17
concerned at any time within 2 years after the reduction.
18
189B Anticipatory certification--cessation of registration as a
19
generator
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 in respect of the generation complex under a law of the
24
Commonwealth, a State or Territory relating to the regulation of
25
energy markets.
26
Application
27
(2) The person may apply, in writing, to the appropriate energy market
28
operator to certify that if a proposed cessation of the registration
29
were to occur during the period:
30
(a) beginning at the start of 3 June 2007; and
31
Coal-fired electricity generation Part 9
Power system reliability Division 5
Section 189C
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 277
(b) ending immediately before 1 April in a specified eligible
1
financial year;
2
there is unlikely to be a breach of relevant power system reliability
3
standards applicable to the energy market concerned at any time
4
within 2 years after the cessation.
5
Certification
6
(3) If an application is made under subsection (2), the appropriate
7
energy market operator may:
8
(a) certify in accordance with the application; or
9
(b) refuse to so certify.
10
(4) If, within 120 days after receiving an application under
11
subsection (2), the appropriate energy market operator has neither:
12
(a) certified in accordance with the application; nor
13
(b) refused to so certify;
14
the appropriate energy market operator is taken, for the purposes of
15
this Act, to have certified in accordance with the application.
16
Consequences of certification
17
(5)
If:
18
(a) the appropriate energy market operator certifies in
19
accordance with the application; and
20
(b) the proposed cessation occurs;
21
then, for the purposes of subparagraph 189(2)(d)(iv), the
22
appropriate energy market operator is taken to have certified in
23
writing that there is unlikely to be a breach of relevant power
24
system reliability standards applicable to the energy market
25
concerned at any time within 2 years after the cessation.
26
189C Intermediary registered as a generator
27
If:
28
(a) a person (the first person) owns, controls or operates a
29
generation complex; and
30
(b) under a law of the Commonwealth, a State or Territory
31
relating to the regulation of energy markets, the first person is
32
Part 9
Coal-fired electricity generation
Division 5
Power system reliability
Section 189D
278 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
exempt from the requirement under that law to be registered
1
as a generator in respect of the generation complex; and
2
(c) the first person is exempt because another person (the
3
intermediary) is registered under that law as a generator in
4
respect of the generation complex;
5
the intermediary is taken, for the purposes of this Division, to be a
6
person who controls the generation complex.
7
189D Financial year beginning on 1 July 2010
8
For the purposes of this Division (other than section 188), assume
9
that the financial year beginning on 1 July 2010 is an eligible
10
financial year.
11
12
Reforestation Part 10
Introduction Division 1
Section 190
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 279
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
project manager (who may be the holder) is recognised as a
16
reforestation entity by the Authority.
17
·
The Authority may declare a reforestation project to be an
18
eligible reforestation project.
19
·
A reforestation report relating to an eligible reforestation
20
project must be given to the Authority for a reforestation
21
reporting period. A reforestation reporting period is a period
22
of not more than 5 years and not less than 12 months.
23
·
Australian emissions units may be required to be relinquished
24
in certain circumstances.
25
Part 10
Reforestation
Division 1
Introduction
Section 190
280 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
·
A forest maintenance obligation may be imposed in relation to
1
an area or areas of land if a relinquishment requirement has
2
not been complied with.
3
·
A Registrar of Titles may make entries on land titles for the
4
purposes of drawing the attention of persons to the existence
5
of eligible reforestation projects and forest maintenance
6
obligations.
7
·
There is to be a Register of Reforestation Projects, which is to
8
be made available for inspection on the Authority's website.
9
10
Reforestation Part 10
Issue of free Australian emissions units in respect of reforestation Division 2
Section 191
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 281
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
Part 10
Reforestation
Division 3
Certificate of reforestation
Section 192
282 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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:
7
(c) if the person holds the carbon sequestration right in relation
8
to the project--the person; or
9
(d) otherwise--the person who holds the carbon sequestration
10
right in relation to the project;
11
of a certificate of reforestation in respect of the project for the
12
period.
13
Note 1:
For reforestation report, see section 225.
14
Note 2:
For eligible reforestation project, see section 209.
15
Note 3:
For reforestation reporting period, see section 223 or 224.
16
Note 4:
For carbon sequestration right, see section 239A.
17
(2) An application may be set out in the same document as the
18
reforestation report.
19
(3) For the purposes of section 136.1 of the Criminal Code, a
20
statement in the reforestation report is taken to be a statement made
21
in connection with the application.
22
193 Form of application
23
(1) 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 the fee (if any) specified in the
27
regulations.
28
(2) A fee specified under paragraph (1)(c) must not be such as to
29
amount to taxation.
30
Reforestation Part 10
Certificate of reforestation Division 3
Section 194
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 283
194 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
195 Issue of certificate of reforestation
10
Scope
11
(1) This section applies if an application under section 192 has been
12
made for the issue of a certificate of reforestation in respect of an
13
eligible reforestation project for a reforestation reporting period.
14
Issue of certificate
15
(2)
If:
16
(a) the applicant is a recognised reforestation entity; and
17
(b) the Authority is satisfied that the applicant is the project
18
manager for the project; and
19
(c) the applicant is not subject to a requirement under this Part to
20
relinquish a number of Australian emissions units; and
21
(d) no amount is payable by the applicant under:
22
(i) section 287; or
23
(ii)
section
288;
24
in relation to a requirement under this Part to relinquish a
25
number of Australian emissions units; and
26
(e) if any Australian emissions units have previously been issued
27
in accordance with this Part--the number worked out using
28
the formula set out in subsection (3) exceeds 0; and
29
(f) the number worked out using the formula set out in
30
subsection (4) exceeds 0; and
31
Part 10
Reforestation
Division 3
Certificate of reforestation
Section 195
284 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(fa) the number that, under the regulations, is taken to be the
1
carbon stock number for the project is greater than the
2
number that, under the regulations, is taken to be the 2008
3
carbon stock number for the project; and
4
(g) if the regulations specify one or more other eligibility
5
requirements--the Authority is satisfied that those
6
requirements are met;
7
the Authority must issue a certificate of reforestation in respect of
8
the eligible reforestation project for the reforestation reporting
9
period.
10
Note: For
recognised reforestation entity, see section 201.
11
(3) The formula mentioned in paragraph (2)(e) is:
12
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
-
13
where:
14
net total number of tonnes of greenhouse gases removed is the
15
net total number of tonnes of greenhouse gases that, under the
16
regulations, is taken to be removed by the forest stand or stands to
17
which the project relates during the period:
18
(a) beginning on the day the section 209 declaration in relation
19
to the project took effect; and
20
(b) ending at the end of the reforestation reporting period.
21
(3A) For the purposes of subsection (3), if:
22
(a) a forest stand is situated wholly or partly on Torrens system
23
land; and
24
(b) the Authority is not satisfied that appropriate entries or
25
notations have been made under section 236 in relation to the
26
land by the relevant land registration official referred to in
27
that section;
28
disregard the forest stand.
29
(4) The formula mentioned in paragraph (2)(f) is:
30
Reforestation Part 10
Certificate of reforestation Division 3
Section 195
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 285
Net total number of
Reforestation unit limit
Australian emissions units
for the project
issued in relation to the project
in accordance with this Part
-
1
Note:
For reforestation unit limit, see section 220.
2
(5) A certificate of reforestation must state that a specified number is
3
the unit entitlement in respect of the certificate.
4
Note:
See section 196 (unit entitlement).
5
Timing
6
(6) The Authority must take all reasonable steps to ensure that a
7
decision is made on the application:
8
(a) if the Authority requires the applicant to give further
9
information under subsection 194(1) in relation to the
10
application--within 90 days after the applicant gave the
11
Authority the information; or
12
(b) otherwise--within 90 days after the application was made.
13
Copy of certificate to be given to project manager if project
14
manager does not hold the carbon sequestration right
15
(6A)
If:
16
(a) the Authority issues a certificate of reforestation to the person
17
who holds the carbon sequestration right in relation to the
18
project; and
19
(b) that person is not the project manager for the project;
20
the Authority must give a copy of the certificate to the project
21
manager for the project.
22
Refusal
23
(7) If the Authority decides to refuse to issue a certificate of
24
reforestation, the Authority must give written notice of the decision
25
to the applicant.
26
Part 10
Reforestation
Division 3
Certificate of reforestation
Section 196
286 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
196 Unit entitlement
1
(1) The number to be specified in a certificate of reforestation in
2
respect of an eligible reforestation project for a reforestation
3
reporting period as the unit entitlement in respect of the certificate
4
is the lesser of the following numbers:
5
(a) the number worked out using the formula set out in
6
subsection (2);
7
(b) the number worked out using the following formula:
8
Net total number of
Reforestation unit limit
Australian emissions units
for the project
issued in relation to the project
in accordance with this Part
-
9
Note:
For reforestation unit limit, see section 220.
10
(2) The formula mentioned in paragraph (1)(a) is:
11
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
-
12
where:
13
net total number of tonnes of greenhouse gases removed is the
14
net total number of tonnes of greenhouse gases that, under the
15
regulations, is taken to be removed by the forest stand or stands to
16
which the project relates during the period:
17
(a) beginning on the day the section 209 declaration in relation
18
to the project took effect; and
19
(b) ending at the end of the reforestation reporting period.
20
(3) If the number worked out using the formula set out in
21
subsection (2) is not a whole number, the number is to be rounded
22
to the nearest whole number (with a number ending in .5 being
23
rounded up).
24
(3A) For the purposes of subsection (2), if:
25
(a) a forest stand became part of an eligible reforestation project
26
as the result of a variation of a section 209 declaration; and
27
Reforestation Part 10
Certificate of reforestation Division 3
Section 197
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 287
(b) the variation took effect after the day the section 209
1
declaration took effect;
2
then, for the purposes of the application of that subsection to the
3
eligible reforestation project, disregard anything that occurred in
4
relation to the forest stand before the day on which the variation
5
took effect.
6
197 Certificate of reforestation is not transferable
7
A certificate of reforestation is not transferable.
8
9
Part 10
Reforestation
Division 3A
Project managers
Section 197A
288 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Division 3A--Project managers
1
197A Project manager for a reforestation project
2
(1) For the purposes of this Act, the project manager for a
3
reforestation project is:
4
(a) if a scheme obligation transfer agreement is in force in
5
relation to the project--the person who, under that
6
agreement, accepts responsibility for complying with any
7
requirements that may be imposed by or under this Act or the
8
associated provisions on the person in the person's capacity
9
as project manager for the project; or
10
(b) otherwise--the person who holds the carbon sequestration
11
right in relation to the project.
12
(2) To avoid doubt, the continuity of a person's status as the project
13
manager for a reforestation project is not affected by:
14
(a) a transfer of the carbon sequestration right in relation to the
15
project; or
16
(b) if the project is an eligible reforestation project--the
17
variation of the section 209 declaration of the eligible
18
reforestation project.
19
(3) To avoid doubt, if:
20
(a) a person becomes subject to a requirement to relinquish
21
Australian emissions units in the person's capacity as project
22
manager for an eligible reforestation project; and
23
(b) before that requirement was met, the person ceased to be the
24
project manager for the project;
25
the cessation does not affect the continuity of the requirement.
26
197B Scheme obligation transfer agreement
27
(1) For the purposes of this Act, a scheme obligation transfer
28
agreement in relation to a reforestation project is an agreement,
29
where:
30
(a) the agreement is between:
31
Reforestation Part 10
Project managers Division 3A
Section 197B
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 289
(i) the person who, immediately before the agreement was
1
entered into, was the project manager for the project;
2
and
3
(ii) another person (the transferee); and
4
(b) the agreement states that the transferee accepts responsibility
5
for complying with any requirements that may be imposed by
6
or under this Act or the associated provisions on the
7
transferee in the transferee's capacity as project manager for
8
the project; and
9
(c) the Authority has given written approval to the agreement;
10
and
11
(d) if the Authority, in accordance with the regulations, requires
12
the transferee to give security to the Commonwealth in
13
relation to the fulfilment by the transferee of any
14
requirements to relinquish Australian emissions units that
15
may be imposed on the transferee under this Part in relation
16
to the project--the transferee has given that security; and
17
(e) the holder of the carbon sequestration right in relation to the
18
project:
19
(i) has consented, in writing, to the making of the
20
agreement; or
21
(ii) is a party to the agreement; and
22
(f) such other conditions (if any) as are specified in the
23
regulations are satisfied.
24
Criteria for approval of agreement
25
(2) The Authority must not, under paragraph (1)(c), give approval to
26
an agreement that relates to a reforestation project unless:
27
(a) the transferee is a recognised reforestation entity; and
28
(b) if the transferee neither holds, nor is likely to hold, the carbon
29
sequestration right in relation to the project:
30
(i) the transferee is not an individual; and
31
(ii) the Authority is satisfied that the transferee has, or is
32
likely to have, control of the project; and
33
(c) the Authority is satisfied that the transferee has, and is likely
34
to continue to have:
35
(i) the capacity; and
36
Part 10
Reforestation
Division 3A
Project managers
Section 197B
290 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(ii) the financial resources;
1
necessary for the transferee to comply with any requirements
2
that may be imposed by or under this Act or the associated
3
provisions on the transferee in the transferee's capacity as
4
project manager for the project; and
5
(d)
if:
6
(i) the project is or was an eligible reforestation project;
7
and
8
(ii) a notice was given under section 232 or 233 in relation
9
to the reforestation project; and
10
(iii) the notice required a person to relinquish a particular
11
number of Australian emissions units; and
12
(iv) the person did not comply with the requirement within
13
90 days after the notice was given;
14
the penalty payable under section 287 in respect of the
15
non-compliance with the requirement (including any late
16
payment penalty payable under section 288 in relation to the
17
section 287 penalty) has been paid in full.
18
Duration of agreement
19
(3) A scheme obligation transfer agreement:
20
(a) comes into force:
21
(i) at the time when the agreement is approved by the
22
Authority under paragraph (1)(c); or
23
(ii) at such later time as is specified by the Authority in the
24
instrument of approval; and
25
(b) remains in force until whichever of the following happens
26
first:
27
(i) the agreement is cancelled under section 197C;
28
(ii) another scheme obligation transfer agreement comes
29
into force, and the other agreement is expressed to
30
replace the first-mentioned agreement;
31
(iii) the transferee ceases to exist.
32
(4) To avoid doubt, if:
33
(a) a scheme obligation transfer agreement is in force in relation
34
to a reforestation project; and
35
Reforestation Part 10
Project managers Division 3A
Section 197C
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 291
(b) the carbon sequestration right in relation to the project is
1
transferred;
2
the transfer does not affect the continuity of the agreement.
3
(5) To avoid doubt, if:
4
(a) a scheme obligation transfer agreement is in force in relation
5
to an eligible reforestation project; and
6
(b) the relevant section 209 declaration is varied;
7
the variation does not affect the continuity of the agreement.
8
Agreement is not a legislative instrument
9
(6) A scheme obligation transfer agreement is not a legislative
10
instrument.
11
197C Holder of carbon sequestration right may elect to assume
12
scheme obligations
13
If:
14
(a) a scheme obligation transfer agreement is in force in relation
15
to a reforestation project; and
16
(b) the person who holds the carbon sequestration right in
17
relation to the project is a recognised reforestation entity;
18
then:
19
(c) the holder may, by written notice given to the Authority,
20
elect to accept responsibility for complying with any
21
requirements that may be imposed by or under this Act or the
22
associated provisions on the holder in the holder's capacity as
23
project manager for the project; and
24
(d) if the holder does so--the agreement is cancelled.
25
26
Part 10
Reforestation
Division 4
Recognised reforestation entities
Section 198
292 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Division 4--Recognised reforestation entities
1
198 Application for recognition as a reforestation entity
2
(1) A person may apply to the Authority for recognition as a
3
reforestation entity.
4
(2) A person is not entitled to make an application before:
5
(a) 1 July 2011; or
6
(b) if an earlier day is specified in the regulations--that earlier
7
day.
8
199 Form of application
9
(1) 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 such information as is specified in the
13
regulations; and
14
(d) be accompanied by such documents (if any) as are specified
15
in the regulations; and
16
(e) be accompanied by the fee (if any) specified in the
17
regulations.
18
(2) The approved form of application may provide for verification by
19
statutory declaration of statements in applications.
20
(3) A fee specified under paragraph (1)(e) must not be such as to
21
amount to taxation.
22
200 Further information
23
(1) The Authority may, by written notice given to an applicant, require
24
the applicant to give the Authority, within the period specified in
25
the notice, further information in connection with the application.
26
(2) If the applicant breaches the requirement, the Authority may, by
27
written notice given to the applicant:
28
(a) refuse to consider the application; or
29
Reforestation Part 10
Recognised reforestation entities Division 4
Section 201
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 293
(b) refuse to take any action, or any further action, in relation to
1
the application.
2
201 Recognition as a reforestation entity
3
Scope
4
(1) This section applies if an application under section 198 has been
5
made for recognition as a reforestation entity.
6
Recognition
7
(2) After considering the application, the Authority may, by written
8
notice given to the applicant, recognise the applicant as a
9
reforestation entity.
10
Criteria for recognition
11
(3) The Authority must not recognise the applicant as a reforestation
12
entity unless:
13
(a) the Authority is satisfied that the applicant is a fit and proper
14
person, having regard to the following:
15
(i) whether the applicant has been convicted of an offence
16
against a law of the Commonwealth, a State or
17
Territory, where the offence relates to dishonest
18
conduct;
19
(ii) whether the applicant has been convicted of an offence
20
against a law of the Commonwealth, a State or
21
Territory, where the offence relates to the conduct of a
22
business;
23
(iii) whether the applicant has been convicted of an offence
24
against section 136.1, 137.1 or 137.2 of the Criminal
25
Code;
26
(iv) whether an order has been made against the applicant
27
under section 76 of the Trade Practices Act 1974;
28
(v) whether the applicant has breached this Act or the
29
associated provisions;
30
(vi) if the applicant is a body corporate--whether an
31
executive officer of the body corporate has been
32
convicted of an offence against a law of the
33
Part 10
Reforestation
Division 4
Recognised reforestation entities
Section 201
294 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Commonwealth, a State or Territory, where the offence
1
relates to dishonest conduct;
2
(vii) if the applicant is a body corporate--whether an
3
executive officer of the body corporate has been
4
convicted of an offence against a law of the
5
Commonwealth, a State or Territory, where the offence
6
relates to the conduct of a business;
7
(viii) if the applicant is a body corporate--whether an
8
executive officer of the body corporate has been
9
convicted of an offence against section 136.1, 137.1 or
10
137.2 of the Criminal Code;
11
(ix) if the applicant is a body corporate--whether an order
12
has been made against an executive officer of the body
13
corporate under section 76 of the Trade Practices Act
14
1974;
15
(x) if the applicant is a body corporate--whether an
16
executive officer of the body corporate has breached
17
this Act or the associated provisions;
18
(xi) such other matters (if any) as the Authority considers
19
relevant; and
20
(b) if the applicant is an individual--the Authority is satisfied
21
that the applicant is not an insolvent under administration;
22
and
23
(c) if the applicant is a body corporate--the Authority is satisfied
24
that the applicant is not an externally-administered body
25
corporate; and
26
(d) if the regulations specify one or more other eligibility
27
requirements--the Authority is satisfied that those
28
requirements are met.
29
(4) Subparagraphs (3)(a)(i) to (x) do not limit subparagraph (3)(a)(xi).
30
Timing
31
(5) The Authority must take all reasonable steps to ensure that a
32
decision is made on the application:
33
(a) if the Authority requires the applicant to give further
34
information under subsection 200(1) in relation to the
35
Reforestation Part 10
Recognised reforestation entities Division 4
Section 202
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 295
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
(6) If the Authority decides to refuse to recognise the applicant as a
5
reforestation entity, the Authority must give written notice of the
6
decision to the applicant.
7
202 Cancellation of recognition
8
(1) The Authority may cancel the recognition of a person as a
9
reforestation entity if:
10
(a) the Authority is satisfied that the person is not a fit and
11
proper person, having regard to the following:
12
(i) whether the person has been convicted of an offence
13
against a law of the Commonwealth, a State or
14
Territory, where the offence relates to dishonest
15
conduct;
16
(ii) whether the person has been convicted of an offence
17
against a law of the Commonwealth, a State or
18
Territory, where the offence relates to the conduct of a
19
business;
20
(iii) whether the person has been convicted of an offence
21
against section 136.1, 137.1 or 137.2 of the Criminal
22
Code;
23
(iv) whether an order has been made against the person
24
under section 76 of the Trade Practices Act 1974;
25
(v) whether the person has breached this Act or the
26
associated provisions;
27
(vi) if the person is a body corporate--whether an executive
28
officer of the body corporate has been convicted of an
29
offence against a law of the Commonwealth, a State or
30
Territory, where the offence relates to dishonest
31
conduct;
32
(vii) if the person is a body corporate--whether an executive
33
officer of the body corporate has been convicted of an
34
offence against a law of the Commonwealth, a State or
35
Part 10
Reforestation
Division 4
Recognised reforestation entities
Section 203
296 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Territory, where the offence relates to the conduct of a
1
business;
2
(viii) if the person is a body corporate--whether an executive
3
officer of the body corporate has been convicted of an
4
offence against section 136.1, 137.1 or 137.2 of the
5
Criminal Code;
6
(ix) if the person is a body corporate--whether an order has
7
been made against an executive officer of the body
8
corporate under section 76 of the Trade Practices Act
9
1974;
10
(x) if the person is a body corporate--whether an executive
11
officer of the body corporate has breached this Act or
12
the associated provisions;
13
(xi) such other matters (if any) as the Authority considers
14
relevant; or
15
(b) if the person is an individual--the Authority is satisfied that
16
the person is an insolvent under administration; or
17
(c) if the person is a body corporate--the Authority is satisfied
18
that the person is an externally-administered body corporate;
19
or
20
(d) if the regulations specify one or more other grounds for
21
cancellation--the Authority is satisfied that at least one of
22
those grounds is applicable to the person.
23
(2) Subparagraphs (1)(a)(i) to (x) do not limit subparagraph (1)(a)(xi).
24
203 Surrender of recognition
25
Scope
26
(1) This section applies if a person is recognised as a reforestation
27
entity.
28
Surrender
29
(2) The person may, by written notice given to the Authority,
30
surrender the person's recognition.
31
Reforestation Part 10
Recognised reforestation entities Division 4
Section 204
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 297
(3) The surrender takes effect on the day the notice is received by the
1
Authority or, if a later day is specified in the notice, on that later
2
day.
3
204 Recognition is not transferable
4
If a person is recognised as a reforestation entity, the person's
5
recognition is not transferable.
6
7
Part 10
Reforestation
Division 5
Eligible reforestation projects
Section 205
298 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Division 5--Eligible reforestation projects
1
Subdivision A--Declaration of eligible reforestation project
2
205 Application for declaration of eligible reforestation project
3
(1) A person may apply to the Authority for the declaration of a
4
reforestation project as an eligible reforestation project.
5
(2) A person is not entitled to make an application before:
6
(a) 1 July 2011; or
7
(b) if an earlier day is specified in the regulations--that earlier
8
day.
9
206 Form of application
10
(1) An application must:
11
(a) be in writing; and
12
(b) be in a form approved, in writing, by the Authority; and
13
(c) be accompanied by such information as is specified in the
14
regulations; and
15
(d) be accompanied by such other documents (if any) as are
16
specified in the regulations; and
17
(e) be accompanied by the fee (if any) specified in the
18
regulations.
19
(2) The approved form of application may provide for verification by
20
statutory declaration of statements in applications.
21
(3) A fee specified under paragraph (1)(e) must not be such as to
22
amount to taxation.
23
207 Further information
24
(1) The Authority may, by written notice given to an applicant, require
25
the applicant to give the Authority, within the period specified in
26
the notice, further information in connection with the application.
27
(2) If the applicant breaches the requirement, the Authority may, by
28
written notice given to the applicant:
29
Reforestation Part 10
Eligible reforestation projects Division 5
Section 208
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 299
(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
208 Withdrawal of application
4
(1) An applicant may withdraw the application at any time before the
5
Authority makes a decision on the application.
6
(2) This Act does not prevent the applicant from making a fresh
7
application.
8
(3)
If:
9
(a) the applicant withdraws the application; and
10
(b) the applicant has paid a fee in relation to the application;
11
the Authority must, on behalf of the Commonwealth, refund the
12
application fee.
13
209 Declaration of eligible reforestation project
14
Scope
15
(1) This section applies if an application under section 205 has been
16
made for a declaration of a reforestation project as an eligible
17
reforestation project.
18
Declaration
19
(2) After considering the application, the Authority may, by writing,
20
declare that the reforestation project is an eligible reforestation
21
project for the purposes of this Act.
22
(3) A declaration under subsection (2) must:
23
(a) identify, in accordance with the regulations, the project area
24
or project areas; and
25
(b) identify such other attributes of the project as are specified in
26
the regulations.
27
Part 10
Reforestation
Division 5
Eligible reforestation projects
Section 209
300 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Criteria for declaration
1
(4) The Authority must not declare that the reforestation project is an
2
eligible reforestation project unless the Authority is satisfied that:
3
(a) the project area, or each project area, meets the requirements
4
set out in subsection (5); and
5
(c) the project manager for the project is a recognised
6
reforestation entity; and
7
(d) the applicant is the project manager for the project; and
8
(da) a single person (who may be the applicant) holds the carbon
9
sequestration right in relation to the project; and
10
(db) if the applicant does not hold the carbon sequestration right
11
in relation to the project--the holder of the carbon
12
sequestration right in relation to the project has consented, in
13
writing, to the making of the application; and
14
(e) each of the following has consented, in writing, to the
15
making of the application:
16
(i) each person (other than the applicant) who holds an
17
eligible interest in the project area or any of the project
18
areas;
19
(ii) a person specified in the regulations; and
20
(f)
if:
21
(i) the project area is, or the project areas are, Crown land
22
in a State or Territory; and
23
(ia) the project area is not, or the project areas are not,
24
Torrens system land; and
25
(ii) the applicant is not the State or Territory;
26
the Crown lands Minister of the State or Territory has
27
certified in writing that:
28
(iii) the person identified in the application as the holder of
29
the carbon sequestration right in relation to the project
30
holds that right; and
31
(iv) the State or Territory will not deal with the project area
32
or project areas, and will not consent to any other
33
person dealing with the project area or project areas, in a
34
way that is inconsistent with the carbon sequestration
35
right; and
36
Reforestation Part 10
Eligible reforestation projects Division 5
Section 209
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 301
(fa) all regulatory approvals have been obtained for the project;
1
and
2
(g) the project meets the eligibility requirements (if any)
3
specified in the regulations.
4
(5) The requirements mentioned in paragraph (4)(a) are:
5
(a) the project area is Torrens system land; or
6
(b) the following conditions are satisfied in relation to the project
7
area:
8
(i) the project area is not general law land;
9
(ii) the project area is not specified in the regulations.
10
Note:
For specification by class, see subsection 13(3) of the Legislative
11
Instruments Act 2003.
12
(5A) A consent under paragraph (4)(e) must be in a form approved, in
13
writing, by the Authority.
14
Timing
15
(6) The Authority must take all reasonable steps to ensure that a
16
decision is made on the application:
17
(a) if the Authority requires the applicant to give further
18
information under subsection 207(1) in relation to the
19
application--within 90 days after the applicant gave the
20
Authority the information; or
21
(b) otherwise--within 90 days after the application was made.
22
When a declaration takes effect
23
(7) A declaration under subsection (2) takes effect:
24
(a) immediately after it is made; or
25
(b)
if:
26
(i) an earlier day is specified in the declaration; and
27
(ii) the applicant has consented to the specification of the
28
earlier day;
29
on the day specified.
30
(8) The specified day must not be a day that is earlier than the later of:
31
(a) 1 July 2010; or
32
Part 10
Reforestation
Division 5
Eligible reforestation projects
Section 210
302 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(b) the first day of the 5-year period ending when the application
1
for the declaration was made.
2
Notification of declaration
3
(9) As soon as practicable after making a declaration under
4
subsection (2), the Authority must give a copy of the declaration
5
to:
6
(a) the applicant; and
7
(b) if the applicant does not hold the carbon sequestration right
8
in relation to the project--the person who holds the carbon
9
sequestration right in relation to the project.
10
Refusal
11
(10) If the Authority decides to refuse to declare the reforestation
12
project as an eligible reforestation project, the Authority must give
13
written notice of the decision to the applicant.
14
Declaration is not legislative instrument
15
(11) A declaration made under subsection (2) is not a legislative
16
instrument.
17
Subdivision B--Voluntary variation of declaration of eligible
18
reforestation project
19
210 Application for variation of declaration of eligible reforestation
20
project
21
Scope
22
(1) This section applies if:
23
(a) a reforestation report is given to the Authority; and
24
(b) the reforestation report is in respect of an eligible
25
reforestation project to which a declaration under section 209
26
relates.
27
Note:
For reforestation report, see section 225.
28
Reforestation Part 10
Eligible reforestation projects Division 5
Section 211
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 303
Application for variation of declaration
1
(2) A person may apply to the Authority for the variation of the
2
declaration so far as the declaration identifies the project area or
3
project areas.
4
Form of application
5
(3) 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 other documents (if any) as are
11
specified in the regulations; and
12
(e) be accompanied by the fee (if any) specified in the
13
regulations.
14
(4) The approved form of application may provide for verification by
15
statutory declaration of statements in applications.
16
(5) A fee specified under paragraph (3)(e) must not be such as to
17
amount to taxation.
18
Further information
19
(6) 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
(7) 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
211 Withdrawal of application
28
(1) An applicant may withdraw the application at any time before the
29
Authority makes a decision on the application.
30
Part 10
Reforestation
Division 5
Eligible reforestation projects
Section 212
304 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(2) This Act does not prevent the applicant from making a fresh
1
application.
2
(3)
If:
3
(a) the applicant withdraws the application; and
4
(b) the applicant has paid a fee in relation to the application;
5
the Authority must, on behalf of the Commonwealth, refund the
6
application fee.
7
212 Variation of declaration of eligible reforestation project
8
Scope
9
(1) This section applies if an application under section 210 has been
10
made for the variation of a declaration of a reforestation project as
11
an eligible reforestation project.
12
Declaration
13
(2) After considering the application, the Authority may, by writing,
14
vary the declaration in accordance with the application.
15
Criteria for declaration
16
(3) The Authority must not vary the declaration of the reforestation
17
project unless the Authority is satisfied that:
18
(a) the varied project area, or each varied project area, meets the
19
requirements set out in subsection (4); and
20
(c) the project manager for the project is a recognised
21
reforestation entity; and
22
(d) the applicant is the project manager for the varied project;
23
and
24
(da) a single person (who may be the applicant) holds the carbon
25
sequestration right in relation to the varied project; and
26
(db) if the applicant does not hold the carbon sequestration right
27
in relation to the varied project--the holder of the carbon
28
sequestration right in relation to the varied project has
29
consented, in writing, to the making of the application; and
30
(e) each of the following has consented, in writing, to the
31
making of the application:
32
Reforestation Part 10
Eligible reforestation projects Division 5
Section 212
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 305
(i) each person (other than the applicant) who holds an
1
eligible interest in the varied project area or any of the
2
varied project areas;
3
(ii) a person specified in the regulations; and
4
(f)
if:
5
(i) the varied project area is, or the varied project areas are,
6
Crown land in a State or Territory; and
7
(ia) the varied project area is not, or the varied project areas
8
are not, Torrens system land; and
9
(ii) the applicant is not the State or Territory;
10
the Crown lands Minister of the State or Territory has
11
certified in writing that:
12
(iii) the person identified in the application as the holder of
13
the carbon sequestration right in relation to the varied
14
project holds that right; and
15
(iv) the State or Territory will not deal with the varied
16
project area or varied project areas, and will not consent
17
to any other person dealing with the varied project area
18
or varied project areas, in a way that is inconsistent with
19
the carbon sequestration right; and
20
(fa) all regulatory approvals have been obtained for the varied
21
project; and
22
(g) the varied project meets the eligibility requirements (if any)
23
specified in the regulations.
24
(4) The requirements mentioned in paragraph (3)(a) are:
25
(a) the varied project area is Torrens system land; or
26
(b) the following conditions are satisfied in relation to the varied
27
project area:
28
(i) the varied project area is not general law land;
29
(ii) the varied project area is not specified in the regulations.
30
Note:
For specification by class, see subsection 13(3) of the Legislative
31
Instruments Act 2003.
32
(4A) A consent under paragraph (3)(e) must be in a form approved, in
33
writing, by the Authority.
34
Part 10
Reforestation
Division 5
Eligible reforestation projects
Section 212
306 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Timing
1
(5) The Authority must take all reasonable steps to ensure that a
2
decision is made on the application:
3
(a) if the Authority requires the applicant to give further
4
information under subsection 210(6) in relation to the
5
application--within 90 days after the applicant gave the
6
Authority the information; or
7
(b) otherwise--within 90 days after the application was made.
8
When a variation takes effect
9
(6) A variation under subsection (2) takes effect:
10
(a) immediately after it is made; or
11
(b)
if:
12
(i) an earlier day is specified in the variation; and
13
(ii) the applicant has consented to the specification of the
14
earlier day; and
15
(iii) the earlier day is the first day of a reforestation reporting
16
period for the eligible reforestation project;
17
on the day specified.
18
(6A) The specified day must not be a day that is earlier than the first day
19
of the 5-year period ending when the application for the variation
20
was made.
21
Notification of variation
22
(7) As soon as practicable after varying a declaration under
23
subsection (2), the Authority must give a copy of the variation to:
24
(a) the applicant; and
25
(b) if the applicant does not hold the carbon sequestration right
26
in relation to the varied project--the person who holds the
27
carbon sequestration right in relation to the varied project.
28
Refusal
29
(8) If the Authority decides to refuse to make the variation, the
30
Authority must give written notice of the decision to the applicant.
31
Reforestation Part 10
Eligible reforestation projects Division 5
Section 213
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 307
References to eligible reforestation project
1
(9) If a declaration of an eligible reforestation project is varied under
2
this section, a reference in this Act to the eligible reforestation
3
project is a reference to the eligible reforestation project as varied.
4
Variation is not legislative instrument
5
(10) A variation under subsection (2) is not a legislative instrument.
6
Subdivision C--Unilateral variation of declaration of eligible
7
reforestation project
8
213 Variation of declaration of eligible reforestation project--
9
partial cessation of reforestation activity in a part of a
10
project area
11
Scope
12
(1) This section applies if:
13
(a) a declaration is in force under section 209 in relation to a
14
reforestation project; and
15
(b) a part of an area of land identified in the declaration as the
16
project area or a project area has remained clear of a forest
17
stand for a continuous period of at least 5 years that began at
18
a time when the declaration was in force.
19
Variation of declaration
20
(2) The Authority must, by writing, vary the declaration by excluding
21
that part from the area of land identified in the declaration as the
22
relevant project area.
23
Notification of variation
24
(3) As soon as practicable after varying the declaration, the Authority
25
must give a copy of the variation to:
26
(a) the project manager for the varied project; and
27
(b) if the project manager for the varied project does not hold the
28
carbon sequestration right in relation to the varied project--
29
Part 10
Reforestation
Division 5
Eligible reforestation projects
Section 213A
308 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
the person who holds the carbon sequestration right in
1
relation to the varied project.
2
References to eligible reforestation project
3
(4) If a declaration of an eligible reforestation project is varied under
4
this section, a reference in this Act to the eligible reforestation
5
project is a reference to the eligible reforestation project as varied.
6
Variation is not legislative instrument
7
(5) A variation under subsection (2) is not a legislative instrument.
8
213A Variation of declaration of eligible reforestation project that
9
has 2 or more project areas--cessation of reforestation
10
activity in the whole of a project area
11
Scope
12
(1) This section applies if:
13
(a) a declaration is in force under section 209 in relation to a
14
reforestation project; and
15
(b) the project has 2 or more project areas; and
16
(c) the whole of an area of land identified in the declaration as a
17
project area has remained clear of a forest stand for a
18
continuous period of at least 5 years that began at a time
19
when the declaration was in force; and
20
(d) subsection 217(1) does not apply to the project.
21
Variation of declaration
22
(2) The Authority must, by writing, vary the declaration by excluding
23
that area from the areas of land identified in the declaration as the
24
project areas.
25
Notification of variation
26
(3) As soon as practicable after varying the declaration, the Authority
27
must give a copy of the variation to:
28
(a) the project manager for the project; and
29
Reforestation Part 10
Eligible reforestation projects Division 5
Section 214
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 309
(b) if the project manager for the project does not hold the
1
carbon sequestration right in relation to the project--the
2
person who holds the carbon sequestration right in relation to
3
the project.
4
References to eligible reforestation project
5
(4) If a declaration of an eligible reforestation project is varied under
6
this section, a reference in this Act to the eligible reforestation
7
project is a reference to the eligible reforestation project as varied.
8
Variation is not legislative instrument
9
(5) A variation under subsection (2) is not a legislative instrument.
10
214 Variation of declaration of eligible reforestation project--
11
eligibility requirements not met in a part of a project area
12
Scope
13
(1) This section applies if:
14
(a) a declaration is in force under section 209 in relation to a
15
reforestation project; and
16
(b) the Authority is satisfied that a project that is being, or is to
17
be, carried out in a part of an area of land identified in the
18
declaration as the project area or a project area:
19
(i) is not a reforestation project; or
20
(ii) does not meet any or all of the eligibility requirements
21
specified in regulations made for the purposes of
22
paragraph 209(4)(g); or
23
(iii) does not meet the requirements set out in subsection
24
209(5).
25
Variation of declaration
26
(2) The Authority may, by writing, vary the declaration by excluding
27
that part from the area of land identified in the declaration as the
28
relevant project area.
29
Part 10
Reforestation
Division 5
Eligible reforestation projects
Section 214
310 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Consultation
1
(3) Before varying the declaration, the Authority must give the person
2
who holds the carbon sequestration right in relation to the project a
3
written notice:
4
(a) informing the person of the proposed variation; and
5
(b) inviting the person to make a submission to the Authority
6
within 90 days after the notice was given, about the proposed
7
variation.
8
(4) In deciding whether to vary the declaration, the Authority must
9
have regard to:
10
(a) a submission made in response to an invitation under
11
subsection (3); and
12
(b) such other matters (if any) as the Authority considers
13
relevant.
14
Notification of variation
15
(5) As soon as practicable after varying the declaration, the Authority
16
must give a copy of the variation to:
17
(a) the project manager for the project; and
18
(b) if the project manager for the project does not hold the
19
carbon sequestration right in relation to the project--the
20
person who holds the carbon sequestration right in relation to
21
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 214A
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 311
214A Variation of declaration of eligible reforestation project that
1
has 2 or more project areas--eligibility requirements not
2
met in the whole of a project area
3
Scope
4
(1) This section applies if:
5
(a) a declaration is in force under section 209 in relation to a
6
reforestation project; and
7
(b) the project has 2 or more project areas; and
8
(c) the Authority is satisfied that a project that is being, or is to
9
be, carried out in a part of an area of land identified in the
10
declaration as a project area:
11
(i) is not a reforestation project; or
12
(ii) does not meet any or all of the eligibility requirements
13
specified in regulations made for the purposes of
14
paragraph 209(4)(g); or
15
(iii) does not meet the requirements set out in subsection
16
209(5); and
17
(d) subsection 218(1) does not apply in relation to the project.
18
Variation of declaration
19
(2) The Authority must, by writing, vary the declaration by excluding
20
that area from the areas of land identified in the declaration as the
21
project areas.
22
Consultation
23
(3) Before varying the declaration, the Authority must give the project
24
manager for the project a written notice:
25
(a) informing the project manager of the proposed variation; and
26
(b) inviting the project manager to make a submission to the
27
Authority within 90 days after the notice was given, about the
28
proposed variation.
29
(4) In deciding whether to vary the declaration, the Authority must
30
have regard to:
31
Part 10
Reforestation
Division 5
Eligible reforestation projects
Section 214B
312 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(a) a submission made in response to an invitation under
1
subsection (3); and
2
(b) such other matters (if any) as the Authority considers
3
relevant.
4
Notification of variation
5
(5) As soon as practicable after varying the declaration, the Authority
6
must give a copy of the variation to:
7
(a) the project manager for the project; and
8
(b) if the project manager for the project does not hold the
9
carbon sequestration right in relation to the project--the
10
person who holds the carbon sequestration right in relation to
11
the project.
12
References to eligible reforestation project
13
(6) If a declaration of an eligible reforestation project is varied under
14
this section, a reference in this Act to the eligible reforestation
15
project is a reference to the eligible reforestation project as varied.
16
Variation is not legislative instrument
17
(7) A variation under subsection (2) is not a legislative instrument.
18
214B Variation of declaration of eligible reforestation project--
19
ceasing to hold carbon sequestration right in relation to
20
part of a project area
21
Scope
22
(1) This section applies if:
23
(a) a declaration is in force under section 209 in relation to a
24
reforestation project; and
25
(b) a person ceases to hold the carbon sequestration right in
26
relation to a part of an area of land identified in the
27
declaration as the project area or a project area.
28
Reforestation Part 10
Eligible reforestation projects Division 5
Section 214C
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 313
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:
7
(a) the project manager for the project; and
8
(b) if the project manager for the project does not hold the
9
carbon sequestration right in relation to the project--the
10
person who holds the carbon sequestration right in relation to
11
the project.
12
References to eligible reforestation project
13
(4) If a declaration of an eligible reforestation project is varied under
14
this section, a reference in this Act to the eligible reforestation
15
project is a reference to the eligible reforestation project as varied.
16
Variation is not legislative instrument
17
(5) A variation under subsection (2) is not a legislative instrument.
18
214C Variation of declaration of eligible reforestation project that
19
has 2 or more project areas--ceasing to hold carbon
20
sequestration right in relation to the whole of a project
21
area
22
Scope
23
(1) This section applies if:
24
(a) a declaration is in force under section 209 in relation to a
25
reforestation project; and
26
(b) the project has 2 or more project areas; and
27
(c) a person ceases to hold the carbon sequestration right in
28
relation to the whole of an area of land identified in the
29
declaration as a project area; and
30
Part 10
Reforestation
Division 5
Eligible reforestation projects
Section 215
314 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(d) the person has not ceased to hold the carbon sequestration
1
right in relation to any of the remaining areas of land.
2
Variation of declaration
3
(2) The Authority must, by writing, vary the declaration by excluding
4
that area from the areas of land identified in the declaration as the
5
project areas.
6
Notification of variation
7
(3) As soon as practicable after varying the declaration, the Authority
8
must give a copy of the variation to:
9
(a) the project manager for the project; and
10
(b) if the project manager for the project does not hold the
11
carbon sequestration right in relation to the project--the
12
person who holds the carbon sequestration right in relation to
13
the project.
14
References to eligible reforestation project
15
(4) If a declaration of an eligible reforestation project is varied under
16
this section, a reference in this Act to the eligible reforestation
17
project is a reference to the eligible reforestation project as varied.
18
Variation is not legislative instrument
19
(5) A variation under subsection (2) is not a legislative instrument.
20
Subdivision D--Voluntary revocation of declaration of eligible
21
reforestation project
22
215 Voluntary revocation of declaration of eligible reforestation
23
project--units issued
24
Scope
25
(1) This section applies if:
26
(a) a declaration is in force under section 209 in relation to a
27
reforestation project; and
28
Reforestation Part 10
Eligible reforestation projects Division 5
Section 215
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 315
(b) one or more Australian emissions units have been issued in
1
relation to the project in accordance with this Part; and
2
(c) the person who is the project manager for the project applies
3
to the Authority for the revocation of the declaration; and
4
(d) before the application was made, the applicant voluntarily
5
relinquished a number of Australian emissions units in order
6
to satisfy a condition for revocation of the declaration; and
7
(e) the number of relinquished units equals the net total number
8
of Australian emissions units issued in relation to the project
9
in accordance with this Part.
10
Revocation
11
(2) The Authority must, by writing, revoke the declaration.
12
Application
13
(3) An application under paragraph (1)(c) must:
14
(a) be in writing; and
15
(b) be in a form approved, in writing, by the Authority.
16
Notification of revocation
17
(4) As soon as practicable after revoking the declaration, the Authority
18
must give a copy of the revocation to:
19
(a) the project manager for the project; and
20
(b) if the project manager for the project does not hold the
21
carbon sequestration right in relation to the project--the
22
person who holds the carbon sequestration right in relation to
23
the project.
24
Revocation is not legislative instrument
25
(5) A revocation under subsection (2) is not a legislative instrument.
26
Part 10
Reforestation
Division 5
Eligible reforestation projects
Section 216
316 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
216 Voluntary revocation of declaration of eligible reforestation
1
project--no units issued
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) no Australian emissions units have been issued in relation to
7
the project in accordance with this Part; and
8
(c) the person who is the project manager for the project applies
9
to the Authority for the revocation of the declaration.
10
Revocation
11
(2) The Authority must, by writing, revoke the declaration.
12
Application
13
(3) An application under paragraph (1)(c) must:
14
(a) be in writing; and
15
(b) be in a form approved, in writing, by the Authority.
16
Notification of revocation
17
(4) As soon as practicable after revoking the declaration, the Authority
18
must give a copy of the revocation to:
19
(a) the project manager for the project; and
20
(b) if the project manager for the project does not hold the
21
carbon sequestration right in relation to the project--the
22
person who holds the carbon sequestration right in relation to
23
the project.
24
Revocation is not legislative instrument
25
(5) A revocation under subsection (2) is not a legislative instrument.
26
Reforestation Part 10
Eligible reforestation projects Division 5
Section 217
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 317
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:
23
(a) the project manager for the project; and
24
(b) if the project manager for the project does not hold the
25
carbon sequestration right in relation to the project--the
26
person who holds the carbon sequestration right in relation to
27
the project.
28
Revocation is not legislative instrument
29
(4) A revocation under subsection (2) is not a legislative instrument.
30
Part 10
Reforestation
Division 5
Eligible reforestation projects
Section 218
318 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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); or
13
(iii) does not meet the requirements set out in subsection
14
209(5).
15
Revocation of declaration
16
(2) The Authority may, by writing, revoke the declaration.
17
Consultation
18
(3) Before revoking the declaration, the Authority must give the
19
person who holds the carbon sequestration right in relation to the
20
project a written notice:
21
(a) informing the person of the proposed revocation; and
22
(b) inviting the person to make a submission to the Authority,
23
within 90 days after the notice was given, about the proposed
24
revocation.
25
(4) In deciding whether to revoke the declaration, the Authority must
26
have regard to:
27
(a) a submission made in response to an invitation under
28
subsection (3); and
29
(b) such other matters (if any) as the Authority considers
30
relevant.
31
Reforestation Part 10
Eligible reforestation projects Division 5
Section 218A
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 319
Notification of revocation
1
(5) As soon as practicable after revoking the declaration, the Authority
2
must give a copy of the revocation to:
3
(a) the project manager for the project; and
4
(b) if the project manager for the project does not hold the
5
carbon sequestration right in relation to the project--the
6
person who holds the carbon sequestration right in relation to
7
the project.
8
Revocation is not legislative instrument
9
(6) A revocation under subsection (2) is not a legislative instrument.
10
218A Unilateral revocation of declaration of eligible reforestation
11
project--project manager ceases to be a recognised
12
reforestation entity
13
Scope
14
(1) This section applies if:
15
(a) a declaration is in force under section 209 in relation to a
16
reforestation project; and
17
(b) the project manager for the project ceases to be a recognised
18
reforestation entity; and
19
(c) if the project manager holds the carbon sequestration right in
20
relation to the project--90 days pass after the cessation, and
21
the person who, at the end of that 90-day period, is the
22
project manager for the project is not a recognised
23
reforestation entity; and
24
(d) if the project manager does not hold the carbon sequestration
25
right in relation to the project--90 days pass after the
26
Authority notifies the holder of the carbon sequestration right
27
of the cessation, and the person who, at the end of that
28
90-day period, is the project manager for the project is not a
29
recognised reforestation entity.
30
Revocation of declaration
31
(2) The Authority may, by writing, revoke the declaration.
32
Part 10
Reforestation
Division 5
Eligible reforestation projects
Section 219
320 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Notification of revocation
1
(3) As soon as practicable after revoking the declaration, the Authority
2
must give a copy of the revocation to:
3
(a) the project manager for the project; and
4
(b) if the project manager for the project does not hold the
5
carbon sequestration right in relation to the project--the
6
person who holds the carbon sequestration right in relation to
7
the project.
8
Revocation is not legislative instrument
9
(4) A revocation under subsection (2) is not a legislative instrument.
10
219 Unilateral revocation of declaration of eligible reforestation
11
project--ceasing to hold carbon sequestration right etc.
12
Scope
13
(1) This section applies if:
14
(a) a declaration is in force under section 209 in relation to a
15
reforestation project; and
16
(b) a person ceases to hold the carbon sequestration right in
17
relation to the project; and
18
(ba) immediately before the cessation, the person was the project
19
manager for the project; and
20
(c) a scheme obligation transfer agreement was not in force in
21
relation to the project within 90 days after the cessation
22
occurred.
23
Revocation of declaration
24
(2) The Authority must, by writing, revoke the declaration.
25
Notification of revocation
26
(3) As soon as practicable after revoking the declaration, the Authority
27
must give a copy of the revocation to:
28
(a) the person who holds the carbon sequestration right in
29
relation to the project; and
30
Reforestation Part 10
Eligible reforestation projects Division 5
Section 219A
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 321
(b) the person mentioned in paragraph (1)(b).
1
Revocation is not legislative instrument
2
(4) A revocation under subsection (2) is not a legislative instrument.
3
219A Unilateral revocation of declaration of eligible reforestation
4
project--project manager ceases to have control of
5
reforestation project
6
Scope
7
(1) This section applies if:
8
(a) a declaration is in force under section 209 in relation to a
9
reforestation project; and
10
(b) a scheme obligation transfer agreement is in force in relation
11
to the project; and
12
(c) the project manager does not hold the carbon sequestration
13
right in relation to the project; and
14
(d) the project manager for the project ceases to have control of
15
the reforestation project; and
16
(e) 90 days pass after the Authority notifies the holder of the
17
carbon sequestration right of the cessation, and the agreement
18
is still in force.
19
Revocation of declaration
20
(2) The Authority must, by writing, revoke the declaration.
21
Notification of revocation
22
(3) As soon as practicable after revoking the declaration, the Authority
23
must give a copy of the revocation to:
24
(a) the project manager for the project; and
25
(b) the person who holds the carbon sequestration right in
26
relation to the project.
27
Revocation is not legislative instrument
28
(4) A revocation under subsection (2) is not a legislative instrument.
29
Part 10
Reforestation
Division 5
Eligible reforestation projects
Section 219A
322 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
1
Reforestation Part 10
Reforestation unit limit Division 6
Section 220
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 323
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 the 2008
19
carbon stock number for the project.
20
(4) A notice under subsection (2) must be accompanied by a statement
21
setting out:
22
(a) the number that, under the regulations, is taken to be the
23
projected net greenhouse gases removal number for the
24
project; and
25
(b) the number that, under the regulations, is taken to be the
26
non-CPRS greenhouse gases removal sales number for the
27
project; and
28
(c) the number that, under the regulations, is taken to be the 2008
29
carbon stock number for the project.
30
Part 10
Reforestation
Division 6
Reforestation unit limit
Section 221
324 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Declaration is not legislative instrument
1
(5) A declaration made under subsection (2) is not a legislative
2
instrument.
3
221 Increase of reforestation unit limit
4
Scope
5
(1) This section applies if, at a particular time:
6
(a) there is a reforestation unit limit for an eligible reforestation
7
project; and
8
(b) the number that would have been worked out at that time
9
under section 220 would exceed the reforestation unit limit.
10
Increase of reforestation unit limit
11
(2) The Authority may, by written notice given to the person who is
12
the project manager for the project, increase the reforestation unit
13
limit by an amount equal to the excess.
14
(3) A notice under subsection (2) must be accompanied by a statement
15
setting out:
16
(a) the number that, under the regulations, is taken to be the
17
projected net greenhouse gases removal number for the
18
project; and
19
(b) the number that, under the regulations, is taken to be the
20
non-CPRS greenhouse gases removal sales number for the
21
project; and
22
(c) the number that, under the regulations, is taken to be the 2008
23
carbon stock number for the project.
24
References to reforestation unit limit
25
(4) If a reforestation unit limit is increased under this section, a
26
reference in this Act to the reforestation unit limit is a reference to
27
the reforestation unit limit as increased.
28
Notice is not legislative instrument
29
(5) A notice given under subsection (2) is not a legislative instrument.
30
Reforestation Part 10
Reforestation unit limit Division 6
Section 222
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 325
222 Decrease of reforestation unit limit
1
Scope
2
(1) This section applies if, at a particular time:
3
(a) there is a reforestation unit limit for an eligible reforestation
4
project; and
5
(b) the number that would have been worked out at that time
6
under section 220 would fall short of the reforestation unit
7
limit.
8
Decrease of reforestation unit limit
9
(2) The Authority may, by written notice given to the person who is
10
the project manager for the project, decrease the reforestation unit
11
limit by an amount equal to the shortfall.
12
(3) A notice under subsection (2) must be accompanied by a statement
13
setting out:
14
(a) the number that, under the regulations, is taken to be the
15
projected net greenhouse gases removal number for the
16
project; and
17
(b) the number that, under the regulations, is taken to be the
18
non-CPRS greenhouse gases removal sales number for the
19
project; and
20
(c) the number that, under the regulations, is taken to be the 2008
21
carbon stock number for the project.
22
References to reforestation unit limit
23
(4) If a reforestation unit limit is decreased under this section, a
24
reference in this Act to the reforestation unit limit is a reference to
25
the reforestation unit limit as decreased.
26
Notice is not legislative instrument
27
(5) A notice given under subsection (2) is not a legislative instrument.
28
29
Part 10
Reforestation
Division 6A
Restructure of reforestation projects
Section 222A
326 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Division 6A--Restructure of reforestation projects
1
222A Restructure of reforestation projects--making of declaration
2
relating to receiving project
3
Scope
4
(1) This section applies if:
5
(a) a declaration is in force under section 209 in relation to a
6
reforestation project (the original reforestation project); and
7
(b) a person ceases to hold the carbon sequestration right in
8
relation to the whole or a part of an area of land identified in
9
the declaration as a project area; and
10
(c)
either:
11
(i) in a case where the person ceases to hold the carbon
12
sequestration right in relation to a part of an area of land
13
identified in the declaration as a project area--the
14
declaration is varied under section 214B by excluding
15
that part from the area of land identified in the
16
declaration as the relevant project area; or
17
(ii) in a case where the person ceases to hold the carbon
18
sequestration right in relation to the whole of an area of
19
land identified in the declaration as a project area--the
20
declaration is varied under section 214C by excluding
21
that area from the areas of land identified in the
22
declaration as the project areas; and
23
(d) within 90 days after the cessation:
24
(i) there is another reforestation project for which that area
25
is a project area; and
26
(ii) a scheme obligation transfer agreement has come into
27
force in relation to the other reforestation project; and
28
(e) the project manager for the other reforestation project makes
29
an application under section 205 for the declaration of the
30
other project as an eligible reforestation project; and
31
(f) after considering the application, the Authority makes a
32
declaration under subsection 209(2) that the other
33
reforestation project is an eligible reforestation project for the
34
purposes of this Act.
35
Reforestation Part 10
Restructure of reforestation projects Division 6A
Section 222A
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 327
Determination in relation to the other reforestation project
1
(2) As soon as practicable after making the declaration mentioned in
2
paragraph (1)(f), the Authority must, by written notice given to the
3
applicant for the declaration, determine that:
4
(a) whenever it is necessary to calculate an amount in relation to
5
the other reforestation project using the formula in subsection
6
195(3), that subsection has effect, in relation to the other
7
reforestation project, as if the net total number of tonnes of
8
greenhouse gases removed were increased by the number
9
specified in the determination; and
10
(b) whenever it is necessary to calculate an amount in relation to
11
the other reforestation project using the formula in subsection
12
196(2), that subsection has effect, in relation to the other
13
reforestation project, as if the net total number of tonnes of
14
greenhouse gases removed were increased by the number
15
specified in the determination; and
16
(c) whenever it is necessary to work out the net total number of
17
Australian emissions units issued in relation to the other
18
reforestation project, this Part has effect, in relation to the
19
other reforestation project, as if the net total number of
20
Australian emissions units issued in relation to the project in
21
accordance with this Part were increased by the number
22
specified in the determination.
23
(3) In making a determination under subsection (2), the Authority must
24
comply with the regulations.
25
Determination relating to original reforestation project
26
(4) As soon as practicable after making the declaration mentioned in
27
paragraph (1)(f), the Authority must, by written notice given to the
28
project manager for the original reforestation project, determine
29
that:
30
(a) whenever it is necessary to calculate an amount in relation to
31
the original reforestation project using the formula in
32
subsection 195(3), that subsection has effect, in relation to
33
the original reforestation project, as if the net total number of
34
tonnes of greenhouse gases removed were decreased by the
35
number specified in the determination; and
36
Part 10
Reforestation
Division 6A
Restructure of reforestation projects
Section 222B
328 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(b) whenever it is necessary to calculate an amount in relation to
1
the original reforestation project using the formula in
2
subsection 196(2), that subsection has effect, in relation to
3
the original reforestation project, as if the net total number of
4
tonnes of greenhouse gases removed were decreased by the
5
number specified in the determination; and
6
(c) whenever it is necessary to work out the net total number of
7
Australian emissions units issued in relation to the original
8
reforestation project, this Part has effect, in relation to the
9
original reforestation project, as if the net total number of
10
Australian emissions units issued in relation to the project in
11
accordance with this Part were decreased by the number
12
specified in the determination.
13
(5) In making a determination under subsection (4), the Authority must
14
comply with the regulations.
15
First reforestation reporting period
16
(6) Despite section 223, the first reforestation reporting period for the
17
other reforestation project is the same as the reforestation reporting
18
period for the original reforestation project in which the cessation
19
mentioned in paragraph (1)(b) occurred.
20
Determination is not a legislative instrument
21
(7) A determination made under subsection (2) or (4) is not a
22
legislative instrument.
23
222B Restructure of reforestation projects--variation of declaration
24
relating to receiving project
25
Scope
26
(1) This section applies if:
27
(a) a declaration is in force under section 209 in relation to a
28
reforestation project (the original reforestation project); and
29
(b) a person ceases to hold the carbon sequestration right in
30
relation to the whole or a part of an area of land identified in
31
the declaration as a project area; and
32
Reforestation Part 10
Restructure of reforestation projects Division 6A
Section 222B
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 329
(c)
either:
1
(i) in a case where the person ceases to hold the carbon
2
sequestration right in relation to a part of an area of land
3
identified in the declaration as a project area--the
4
declaration is varied under section 214B by excluding
5
that part from the area of land identified in the
6
declaration as the relevant project area; or
7
(ii) in a case where the person ceases to hold the carbon
8
sequestration right in relation to the whole of an area of
9
land identified in the declaration as a project area--the
10
declaration is varied under section 214C by excluding
11
that area from the areas of land identified in the
12
declaration as the project areas; and
13
(d) within 90 days after the cessation:
14
(i) there is another reforestation project for which that area
15
is a project area; and
16
(ii) a scheme obligation transfer agreement has come into
17
force in relation to the other reforestation project; and
18
(e) the project manager for the other reforestation project makes
19
an application under section 212 for the variation of the
20
section 209 declaration of the other project; and
21
(f) after considering the application, the Authority varies the
22
section 209 declaration of the other project; and
23
(g) as a result of the variation, that area becomes a project area of
24
the other project.
25
Determination in relation to the other reforestation project
26
(2) As soon as practicable after varying the declaration mentioned in
27
paragraph (1)(f), the Authority must, by written notice given to the
28
project manager for the other project, determine that:
29
(a) whenever it is necessary to calculate an amount in relation to
30
the other reforestation project using the formula in subsection
31
195(3), that subsection has effect, in relation to the other
32
reforestation project, as if the net total number of tonnes of
33
greenhouse gases removed were increased by the number
34
specified in the determination; and
35
(b) whenever it is necessary to calculate an amount in relation to
36
the other reforestation project using the formula in subsection
37
Part 10
Reforestation
Division 6A
Restructure of reforestation projects
Section 222B
330 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
196(2), that subsection has effect, in relation to the other
1
reforestation project, as if the net total number of tonnes of
2
greenhouse gases removed were increased by the number
3
specified in the determination; and
4
(c) whenever it is necessary to work out the net total number of
5
Australian emissions units issued in relation to the other
6
reforestation project, this Part has effect, in relation to the
7
other reforestation project, as if the net total number of
8
Australian emissions units issued in relation to the project in
9
accordance with this Part were increased by the number
10
specified in the determination.
11
(3) In making a determination under subsection (2), the Authority must
12
comply with the regulations.
13
Determination relating to original reforestation project
14
(4) As soon as practicable after the making of the variation mentioned
15
in subparagraph (1)(c)(i) or (ii), the Authority must, by written
16
notice given to the project manager for the original project,
17
determine that:
18
(a) whenever it is necessary to calculate an amount in relation to
19
the original reforestation project using the formula in
20
subsection 195(3), that subsection has effect, in relation to
21
the original reforestation project, as if the net total number of
22
tonnes of greenhouse gases removed were decreased by the
23
number specified in the determination; and
24
(b) whenever it is necessary to calculate an amount in relation to
25
the original reforestation project using the formula in
26
subsection 196(2), that subsection has effect, in relation to
27
the original reforestation project, as if the net total number of
28
tonnes of greenhouse gases removed were decreased by the
29
number specified in the determination; and
30
(c) whenever it is necessary to work out the net total number of
31
Australian emissions units issued in relation to the original
32
reforestation project, this Part has effect, in relation to the
33
original reforestation project, as if the net total number of
34
Australian emissions units issued in relation to the project in
35
accordance with this Part were decreased by the number
36
specified in the determination.
37
Reforestation Part 10
Restructure of reforestation projects Division 6A
Section 222B
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 331
(5) In making a determination under subsection (4), the Authority must
1
comply with the regulations.
2
Determination is not a legislative instrument
3
(6) A determination made under subsection (2) or (4) is not a
4
legislative instrument.
5
6
Part 10
Reforestation
Division 7
Reforestation reporting periods
Section 223
332 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
Note:
See also section 222A.
9
Nominated period
10
(2) A person may, by written notice given to the Authority, nominate a
11
specified period as the first reforestation reporting period for an
12
eligible reforestation project.
13
(3) The person is not entitled to nominate a period under
14
subsection (2) unless:
15
(a) the person is the project manager for the project immediately
16
before the end of the period; and
17
(b) the period is:
18
(i) at least 12 months; and
19
(ii) not more than 5 years; and
20
(c) the period begins on the day that the section 209 declaration
21
in relation to the project takes effect; and
22
(d) if that declaration takes effect on a day that is earlier than the
23
day the declaration is made--the period ends on or after the
24
day the declaration is made; and
25
(e) the notice under subsection (2) is given to the Authority
26
within 40 days after the end of the period; and
27
(f) a period has not previously been nominated under
28
subsection (2) in relation to the project.
29
(4) A notice under subsection (2) may be set out in the same document
30
as the reforestation report for the first reforestation reporting
31
period.
32
Reforestation Part 10
Reforestation reporting periods Division 7
Section 224
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 333
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 is the project manager for the project immediately
18
before the end of the period; and
19
(b) the period is:
20
(i) at least 12 months; and
21
(ii) not more 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
Part 10
Reforestation
Division 8
Reforestation reporting requirements
Section 225
334 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Division 8--Reforestation reporting requirements
1
225 Reforestation reports
2
Scope
3
(1) This section applies if a person is the project manager for an
4
eligible reforestation project immediately before the end of a
5
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
(ba) be accompanied by such documents (if any) as are specified
15
in the regulations; and
16
(c) be given to the Authority within 40 days after the end of the
17
reforestation reporting period.
18
(4) Information specified in regulations made for the purposes of
19
paragraph (3)(b) may relate to a matter arising before, during or
20
after the reforestation reporting period.
21
(4A) A document specified in regulations made for the purposes of
22
paragraph (3)(ba) may relate to a matter arising before, during or
23
after the reforestation reporting period.
24
Ancillary contraventions
25
(5) A person must not:
26
(a) aid, abet, counsel or procure a contravention of
27
subsection (2); or
28
(b) induce, whether by threats or promises or otherwise, a
29
contravention of subsection (2); or
30
Reforestation Part 10
Reforestation reporting requirements Division 8
Section 225
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 335
(c) be in any way, directly or indirectly, knowingly concerned in,
1
or party to, a contravention of subsection (2); or
2
(d) conspire with others to effect a contravention of
3
subsection (2).
4
Civil penalty provisions
5
(6) Subsections (2) and (5) are civil penalty provisions.
6
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
7
provisions.
8
9
Part 10
Reforestation
Division 9
Forest maintenance obligation
Section 226
336 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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) the following conditions are satisfied:
6
(i) a notice was given under section 232 or 233 in relation
7
to a project that is or was an eligible reforestation
8
project;
9
(ii) the area was, or the areas were, identified in the relevant
10
section 209 declaration as the project area or project
11
areas for the eligible reforestation project;
12
(iii) the notice required a person to relinquish a particular
13
number of Australian emissions units;
14
(iv) the person did not comply with the requirement within
15
90 days after the notice was given; or
16
(b) the following conditions are satisfied:
17
(i) a notice was given under section 232 or 233 in relation
18
to a project that is or was an eligible reforestation
19
project;
20
(ii) the area was, or the areas were, identified in the relevant
21
section 209 declaration as the project area or project
22
areas for the eligible reforestation project;
23
(iii) the notice required a person to relinquish a particular
24
number of Australian emissions units;
25
(iv) the Authority is satisfied that it is likely that the person
26
will not comply with the requirement within 90 days
27
after the notice was given; or
28
(c) the Authority is satisfied that:
29
(i) it is likely that a notice will be given under section 232
30
or 233 in relation to an eligible reforestation project;
31
and
32
Reforestation Part 10
Forest maintenance obligation Division 9
Section 226
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 337
(ii) the area is, or the areas are, identified in the relevant
1
section 209 declaration as the project area or project
2
areas for the eligible reforestation project; and
3
(iii) the notice is likely to require a person to relinquish a
4
particular number of Australian emissions units; and
5
(iv) it is likely that the person will not comply with the
6
requirement within 90 days after the notice is given.
7
Declaration
8
(2) The Authority may, by writing, declare that:
9
(a) the area or areas of land are subject to a forest maintenance
10
obligation; and
11
(b) an activity (if any) specified in the declaration is a permitted
12
forest activity in relation to the area or areas of land for the
13
purposes of this Act.
14
Note:
For specification by class, see subsection 46(3) of the Acts
15
Interpretation Act 1901.
16
(3) An activity may be specified under paragraph (2)(b) by reference
17
to:
18
(a) the area or areas of land on which the activity may be carried
19
out; or
20
(b) the manner in which the activity may be carried out; or
21
(c) the time or times at which the activity may be carried out; or
22
(d) the period or periods during which the activity may be
23
carried out; or
24
(e) the person or persons who may carry out the activity.
25
(4) Subsection (3) does not limit the ways in which an activity may be
26
specified under paragraph (2)(b).
27
(5) If the Authority makes a declaration under subsection (2), the
28
Authority must take all reasonable steps to ensure that a copy of
29
the declaration is given to:
30
(a) the project manager for the project; and
31
(b) if the project manager for the project does not hold the
32
carbon sequestration right for the project--the person who
33
holds the carbon sequestration right for the project; and
34
Part 10
Reforestation
Division 9
Forest maintenance obligation
Section 226
338 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(c) each person who holds an eligible interest in the area, or any
1
of the areas, of land; and
2
(d) a person specified in the regulations; and
3
(e) the relevant land registration official (within the meaning of
4
section 237).
5
(6) A failure to comply with subsection (5) does not affect the validity
6
of a declaration under subsection (2).
7
Obligation
8
(7) If the area or areas of land are subject to a forest maintenance
9
obligation, a person must not engage in conduct that has, or is
10
likely to have, the result that:
11
(a) there is no forest stand on the area, or any of the areas, of
12
land; or
13
(b) the number that, under the regulations, is taken to be the
14
number of tonnes of greenhouse gases removed by the forest
15
stand or stands on the area, or any of the areas, of land is less
16
than the number that, under the regulations, is taken to be the
17
number of tonnes of greenhouse gases removed by the forest
18
stand or stands immediately before the area or areas of land
19
became subject to the forest maintenance obligation;
20
unless the conduct is a permitted forest activity in relation to the
21
area or areas of land.
22
Ancillary contraventions
23
(8) A person must not:
24
(a) aid, abet, counsel or procure a contravention of
25
subsection (7); or
26
(b) induce, whether by threats or promises or otherwise, a
27
contravention of subsection (7); or
28
(c) be in any way, directly or indirectly, knowingly concerned in,
29
or party to, a contravention of subsection (7); or
30
(d) conspire with others to effect a contravention of
31
subsection (7).
32
Reforestation Part 10
Forest maintenance obligation Division 9
Section 226A
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 339
Civil penalty provisions
1
(9) Subsections (7) and (8) are civil penalty provisions.
2
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
3
provisions.
4
Duration of declaration
5
(10) A declaration under subsection (2):
6
(a) comes into force when a copy of the declaration is given to
7
the project manager for the project under subsection (5); and
8
(b) unless sooner revoked, ceases to be in force at whichever of
9
the following times happens first:
10
(i) when the penalty payable under section 287 in respect
11
of the non-compliance with the requirement referred to
12
in subparagraph (1)(a)(iv) or (b)(iv) (including any late
13
payment penalty payable under section 288 in relation
14
to the section 287 penalty) is paid in full;
15
(ii) if the relevant section 209 declaration has never been
16
varied--at the end of 100 years after the first occasion
17
on which an Australian emissions unit was issued in
18
relation to the project in accordance with this Part;
19
(iii) if the relevant section 209 declaration has been varied--
20
at the end of 100 years after the last occasion on which
21
the declaration was varied.
22
Declaration is not a legislative instrument
23
(11) A declaration made under subsection (2) is not a legislative
24
instrument.
25
226A Variation or revocation of declaration of forest maintenance
26
obligation
27
Scope
28
(1) This section applies if a declaration is in force under subsection
29
226(2) in relation to an area or areas of land.
30
Part 10
Reforestation
Division 9
Forest maintenance obligation
Section 226A
340 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Variation or revocation
1
(2) The Authority may, by writing, vary or revoke the declaration.
2
(3) The Authority may do so:
3
(a) on the Authority's own initiative; or
4
(b) on application made to the Authority by a person.
5
Application
6
(4) An application under paragraph (3)(b) 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 the fee (if any) specified in the
10
regulations.
11
(5) A fee specified under paragraph (4)(c) must not be such as to
12
amount to taxation.
13
Notification
14
(6) If the Authority varies or revokes the declaration, the Authority
15
must give a copy of the variation or revocation to:
16
(a) the project manager for the project; and
17
(b) if the project manager for the project does not hold the
18
carbon sequestration right for the project--the person who
19
holds the carbon sequestration right for the project; and
20
(c) each person who holds an eligible interest in the area, or any
21
of the areas, of land; and
22
(d) a person specified in the regulations; and
23
(e) the relevant land registration official (within the meaning of
24
section 237).
25
(7) A failure to comply with subsection (6) does not affect the validity
26
of a variation or revocation.
27
Variation or revocation is not a legislative instrument
28
(8) A variation or revocation of the declaration is not a legislative
29
instrument.
30
Reforestation Part 10
Forest maintenance obligation Division 9
Section 226B
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 341
226B Revocation of declaration of forest maintenance obligation--
1
voluntary relinquishment of Australian emissions units
2
Scope
3
(1) This section applies if:
4
(a) an area or areas of land are subject to a forest management
5
obligation; and
6
(b) in the case of a single area--the area is not a project area of
7
an eligible reforestation project; and
8
(c) in the case of 2 or more areas--none of the areas is a project
9
area of an eligible reforestation project; and
10
(d) a person applies to the Authority for the revocation of the
11
relevant subsection 226(2) declaration; and
12
(e) before the application was made, the applicant voluntarily
13
relinquished a number of Australian emissions units in order
14
to satisfy a condition for revocation of the declaration; and
15
(f) the number of relinquished units equals the net total number
16
of Australian emissions units issued in relation to the project
17
in accordance with this Part.
18
Revocation
19
(2) The Authority must revoke the declaration.
20
Application
21
(3) An application under paragraph (1)(d) must:
22
(a) be in writing; and
23
(b) be in a form approved, in writing, by the Authority.
24
Subdivision AA--Forest restoration order
25
226C Forest restoration order
26
Scope
27
(1) This section applies to one or more areas of land if:
28
Part 10
Reforestation
Division 9
Forest maintenance obligation
Section 226C
342 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(a) the area or areas of land are subject to a forest maintenance
1
obligation; and
2
(b) a person has contravened, or is contravening, subsection
3
226(7) in relation to the area, or any of the areas, of land.
4
Order
5
(2) The Authority may, by written notice given to the person, order the
6
person to:
7
(a) if one or more forest stands are in existence on the area or
8
areas of land--ensure that those forest stands are managed
9
and maintained in accordance with the requirements set out
10
in the order; or
11
(b) if no forest stands are in existence on the area or areas of
12
land:
13
(i) establish one or more forest stands on the area or areas
14
of land in accordance with the requirements set out in
15
the order; and
16
(ii) ensure that those forest stands are managed and
17
maintained in accordance with the requirements set out
18
in the order.
19
(3) An order under subsection (2) is to be known as a forest
20
restoration order.
21
(4) The Authority must not make a forest restoration order that is
22
inconsistent with section 226.
23
Notification of order
24
(5) If the Authority makes a forest restoration order, the Authority
25
must take all reasonable steps to ensure that a copy of the order is
26
given to:
27
(a) the project manager for the project; and
28
(b) if the project manager for the project does not hold the
29
carbon sequestration right for the project--the person who
30
holds the carbon sequestration right for the project; and
31
(c) each person who holds an eligible interest in the area, or any
32
of the areas, of land; and
33
(d) a person specified in the regulations; and
34
Reforestation Part 10
Forest maintenance obligation Division 9
Section 226C
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 343
(e) the relevant land registration official (within the meaning of
1
section 237).
2
(6) A failure to comply with subsection (5) does not affect the validity
3
of a forest restoration order.
4
Duration of order
5
(7) Unless sooner revoked, a forest restoration order ceases to be in
6
force when the subsection 226(2) declaration that relates to the
7
forest maintenance obligation mentioned in paragraph (1)(a) of this
8
section ceases to be in force.
9
Compliance with order
10
(8) A person must comply with a forest restoration order to the extent
11
to which the person is capable of doing so.
12
Ancillary contraventions
13
(9) A person must not:
14
(a) aid, abet, counsel or procure a contravention of
15
subsection (8); or
16
(b) induce, whether by threats or promises or otherwise, a
17
contravention of subsection (8); or
18
(c) be in any way, directly or indirectly, knowingly concerned in,
19
or party to, a contravention of subsection (8); or
20
(d) conspire with others to effect a contravention of
21
subsection (8).
22
Civil penalty provisions
23
(10) Subsections (8) and (9) are civil penalty provisions.
24
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
25
provisions.
26
Order is not a legislative instrument
27
(11) A forest restoration order is not a legislative instrument.
28
Part 10
Reforestation
Division 9
Forest maintenance obligation
Section 226D
344 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
226D Variation or revocation of forest restoration order
1
Scope
2
(1) This section applies if a forest restoration order is in force in
3
relation to an area or areas of land.
4
Variation or revocation
5
(2) The Authority may, by writing, vary or revoke the order.
6
(3) The Authority may do so:
7
(a) on the Authority's own initiative; or
8
(b) on application made to the Authority by a person.
9
Application
10
(4) An application under paragraph (3)(b) must:
11
(a) be in writing; and
12
(b) be in a form approved, in writing, by the Authority; and
13
(c) be accompanied by the fee (if any) specified in the
14
regulations.
15
(5) A fee specified under paragraph (4)(c) must not be such as to
16
amount to taxation.
17
Notification
18
(6) If the Authority varies or revokes the order, the Authority must
19
give a copy of the variation or revocation to:
20
(a) the project manager for the project; and
21
(b) if the project manager for the project does not hold the
22
carbon sequestration right for the project--the person who
23
holds the carbon sequestration right for the project; and
24
(c) each person who holds an eligible interest in the area, or any
25
of the areas, of land; and
26
(d) a person specified in the regulations; and
27
(e) the relevant land registration official (within the meaning of
28
section 237).
29
Reforestation Part 10
Forest maintenance obligation Division 9
Section 227
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 345
(7) A failure to comply with subsection (6) does not affect the validity
1
of a variation or revocation.
2
Variation or revocation is not a legislative instrument
3
(8) A variation or revocation of the order is not a legislative
4
instrument.
5
Subdivision B--Injunctions
6
227 Injunctions
7
Performance injunctions
8
(1)
If:
9
(a) a person has refused or failed, or is refusing or failing, or is
10
proposing to refuse or fail, to do an act or thing; and
11
(b) the refusal or failure was, is or would be a contravention of
12
subsection 226(7) or 226C(8);
13
the Federal Court may, on the application of the Authority, grant
14
an injunction requiring the person to do that act or thing.
15
Restraining injunctions
16
(2) If a person has engaged, is engaging or is proposing to engage, in
17
any conduct in contravention of subsection 226(7) or 226C(8), the
18
Federal Court may, on the application of the Authority, grant an
19
injunction:
20
(a) restraining the person from engaging in the conduct; and
21
(b) if, in the Court's opinion, it is desirable to do so--requiring
22
the person to do something.
23
228 Interim injunctions
24
Grant of interim injunction
25
(1) If an application is made to the Federal Court for an injunction
26
under section 227, the Court may, before considering the
27
application, grant an interim injunction restraining a person from
28
engaging in conduct of a kind referred to in that section.
29
Part 10
Reforestation
Division 9
Forest maintenance obligation
Section 229
346 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
No undertakings as to damages
1
(2) The Federal Court is not to require the Authority, as a condition of
2
granting an interim injunction, to give any undertakings as to
3
damages.
4
229 Discharge etc. of injunctions
5
The Federal Court may discharge or vary an injunction granted
6
under this Subdivision.
7
230 Certain limits on granting injunctions not to apply
8
Restraining injunctions
9
(1) The power of the Federal Court under this Subdivision to grant an
10
injunction restraining a person from engaging in conduct of a
11
particular kind may be exercised:
12
(a) if the Court is satisfied that the person has engaged in
13
conduct of that kind--whether or not it appears to the Court
14
that the person intends to engage again, or to continue to
15
engage, in conduct of that kind; or
16
(b) if it appears to the Court that, if an injunction is not granted,
17
it is likely that the person will engage in conduct of that
18
kind--whether or not the person has previously engaged in
19
conduct of that kind.
20
Performance injunctions
21
(2) The power of the Federal Court to grant an injunction requiring a
22
person to do an act or thing may be exercised:
23
(a) if the Court is satisfied that the person has refused or failed to
24
do that act or thing--whether or not it appears to the Court
25
that the person intends to refuse or fail again, or to continue
26
to refuse or fail, to do that act or thing; or
27
(b) if it appears to the Court that, if an injunction is not granted,
28
it is likely that the person will refuse or fail to do that act or
29
thing--whether or not the person has previously refused or
30
failed to do that act or thing.
31
Reforestation Part 10
Forest maintenance obligation Division 9
Section 231
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 347
231 Other powers of the Federal Court unaffected
1
The powers conferred on the Federal Court under this Subdivision
2
are in addition to, and not instead of, any other powers of the
3
Court, whether conferred by this Act or otherwise.
4
5
Part 10
Reforestation
Division 10
Relinquishment of Australian emissions units
Section 232
348 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 is the project manager for an eligible reforestation
6
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, 218A, 219 or 219A.
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:
25
(a) if the relevant section 209 declaration had never been
26
varied--100 years after the first occasion on which an
27
Australian emissions unit was issued in relation to the project
28
in accordance with this Part; or
29
Reforestation Part 10
Relinquishment of Australian emissions units Division 10
Section 233
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 349
(b) if the relevant section 209 declaration had been varied--at
1
the end of 100 years after the last occasion on which the
2
declaration was varied.
3
233 Relinquishment requirement--decrease in reforestation unit
4
limit for eligible reforestation project
5
Scope
6
(1) This section applies to a person if:
7
(a) the person is the project manager for an eligible reforestation
8
project; and
9
(b) one or more Australian emissions units have been issued in
10
relation to the project in accordance with this Part; and
11
(c) after the issue of the units, the reforestation unit limit for the
12
project is decreased under section 222; and
13
(d) the net total number of Australian emissions units issued in
14
relation to the project in accordance with this Part exceeds
15
the decreased limit.
16
Requirement
17
(2) The Authority must, by written notice given to the person, require
18
the person to relinquish a specified number of Australian emissions
19
units.
20
(3) The specified number of units must equal the excess mentioned in
21
paragraph (1)(d).
22
(4) The person must comply with the requirement within 90 days after
23
the notice was given.
24
Note:
An administrative penalty is payable under section 287 for
25
non-compliance with a relinquishment requirement.
26
Sunset
27
(5) Despite subsection (2), the Authority must not give a notice under
28
that subsection later than:
29
(a) if the relevant section 209 declaration has never been
30
varied--100 years after the first occasion on which an
31
Part 10
Reforestation
Division 10
Relinquishment of Australian emissions units
Section 233
350 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Australian emissions unit was issued in relation to the project
1
in accordance with this Part; or
2
(b) if the relevant section 209 declaration has been varied--at the
3
end of 100 years after the last occasion on which the
4
declaration was varied.
5
6
Reforestation Part 10
Miscellaneous notification requirements Division 11
Section 235
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 351
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 the person ceases to hold the
5
carbon sequestration right in relation to an eligible reforestation
6
project.
7
Notification
8
(2) The person (or, if the person has died, the person's legal personal
9
representative) must, within 90 days after the cessation occurs,
10
notify the Authority, in writing, of the cessation.
11
Ancillary contraventions
12
(3) 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
(4) Subsections (2) and (3) are civil penalty provisions.
23
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
24
provisions.
25
235A Regulations may impose notification requirements
26
(1) The regulations may make provision requiring the project manager
27
of an eligible reforestation project to notify a matter to the
28
Authority.
29
Part 10
Reforestation
Division 11
Miscellaneous notification requirements
Section 235A
352 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(2) A matter specified in regulations made for the purposes of
1
subsection (1) must be relevant to the operation of this Part.
2
Requirement
3
(3) If the project manager of an eligible reforestation project is subject
4
to a requirement under regulations made for the purposes of
5
subsection (1), the project manager must comply with that
6
requirement.
7
Ancillary contraventions
8
(4) A person must not:
9
(a) aid, abet, counsel or procure a contravention of
10
subsection (3); or
11
(b) induce, whether by threats or promises or otherwise, a
12
contravention of subsection (3); or
13
(c) be in any way, directly or indirectly, knowingly concerned in,
14
or party to, a contravention of subsection (3); or
15
(d) conspire with others to effect a contravention of
16
subsection (3).
17
Civil penalty provisions
18
(5) Subsections (3) and (4) are civil penalty provisions.
19
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
20
provisions.
21
22
Reforestation Part 10
Entries in title registers Division 12
Section 236
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 353
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 those areas of
22
land are subject to a forest maintenance obligation.
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
354 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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 2010 No. , 2010 355
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
(da) the name of the person who is the project manager for the
17
project; and
18
(e) if any Australian emissions units have been issued in relation
19
to the project in accordance with this Part:
20
(i) the total number of units so issued; and
21
(ii) the name of the person, or each of the persons, to whom
22
those units have been issued; and
23
(f) if any Australian emissions units have been relinquished in
24
order to comply with a requirement under this Part in relation
25
to the project--the total number of units so relinquished; and
26
(g) if the project area or project areas are subject to a forest
27
maintenance obligation:
28
(i) a statement to that effect; and
29
(ii) the net total number of Australian emissions units issued
30
in relation to the project in accordance with this Part;
31
and
32
Part 10
Reforestation
Division 13
Register of Reforestation Projects
Section 239
356 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(ga)
if:
1
(i) the project manager for the project has requested the
2
Authority that particular information about the project
3
be set out in the Register of Reforestation Projects; and
4
(ii) the request has not been withdrawn; and
5
(iii) the requested information is of a kind specified in the
6
regulations;
7
the requested information; and
8
(h) such other information (if any) relating to the project as the
9
Authority considers appropriate.
10
(2) If one or more areas of land that were formerly a project area or
11
project areas of an eligible reforestation project are subject to a
12
forest maintenance obligation, the Register of Reforestation
13
Projects must:
14
(a) set out a statement to that effect; and
15
(b) identify the area or areas of land; and
16
(c) set out the net total number of Australian emissions units
17
issued in relation to the project in accordance with this Part.
18
19
Reforestation Part 10
Carbon sequestration right and forestry right Division 14
Section 239A
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 357
Division 14--Carbon sequestration right and forestry right
1
Subdivision A--Carbon sequestration right
2
239A Carbon sequestration right in relation to a reforestation
3
project
4
For the purposes of this Act, a person holds the carbon
5
sequestration right in relation to a reforestation project if the
6
person holds the carbon sequestration right in relation to the project
7
area or each of the project areas.
8
240 Carbon sequestration right in relation to an area of land
9
Torrens system land
10
(1) For the purposes of this Act, if:
11
(a) an area of land is Torrens system land; and
12
(b) a person holds a legal estate or interest in the area of land;
13
and
14
(c) the estate or interest is registered under a Torrens system of
15
registration; and
16
(d) as a result of holding the estate or interest, the person has the
17
exclusive legal right to obtain the benefit (whether present or
18
future) of sequestration of carbon dioxide by trees on the area
19
of land;
20
the estate or interest is the carbon sequestration right held by the
21
person in relation to the area of land.
22
(2) For the purposes of this Act, if:
23
(a) an area of land is Torrens system land; and
24
(b) a person has the exclusive legal right to obtain the benefit
25
(whether present or future) of sequestration of carbon dioxide
26
by trees on the area of land; and
27
(c) the right is registered under a Torrens system of registration;
28
and
29
(d) under a law of a State or Territory, the right is, or is taken to
30
be, an estate or interest in land;
31
Part 10
Reforestation
Division 14
Carbon sequestration right and forestry right
Section 240
358 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
the exclusive right is the carbon sequestration right held by the
1
person in relation to the area of land.
2
(3) For the purposes of this Act, if:
3
(a) an area of land is Torrens system land; and
4
(b) a person has the exclusive legal right to obtain the benefit
5
(whether present or future) of sequestration of carbon dioxide
6
by trees on the area of land; and
7
(c)
either:
8
(i) the right is registered under a Torrens system of
9
registration; or
10
(ii) the area of land is Torrens system land, and the right is
11
noted on the relevant certificate of title; and
12
(d) under a law of a State or Territory, the right runs with the
13
relevant land;
14
the exclusive right is the carbon sequestration right held by the
15
person in relation to the area of land.
16
Crown land that is not Torrens system land
17
(4) For the purposes of this Act, if:
18
(a) an area of land is Crown land in a State or Territory; and
19
(b) the area of land is not Torrens system land; and
20
(c) a person (other than the State or Territory) holds a legal
21
estate or interest in the area of land; and
22
(d) as a result of holding the estate or interest, the person has the
23
exclusive legal right to obtain the benefit (whether present or
24
future) of sequestration of carbon dioxide by trees on the area
25
of land;
26
the estate or interest is the carbon sequestration right held by the
27
person in relation to the area of land.
28
(5) For the purposes of this Act, if:
29
(a) an area of land is Crown land in a State or Territory; and
30
(b) the area of land is not Torrens system land; and
31
(c) a person (other than the State or Territory) has the exclusive
32
legal right to obtain the benefit (whether present or future) of
33
Reforestation Part 10
Carbon sequestration right and forestry right Division 14
Section 240
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 359
sequestration of carbon dioxide by trees on the area of land;
1
and
2
(d) under a law of the State or Territory, the right is, or is taken
3
to be, an estate or interest in land;
4
the exclusive right is the carbon sequestration right held by the
5
person in relation to the area of land.
6
(6) For the purposes of this Act, if:
7
(a) an area of land is Crown land in a State or Territory; and
8
(b) an area of land is not Torrens system land; and
9
(c) a person (other than the State or Territory) has the exclusive
10
legal right to obtain the benefit (whether present or future) of
11
sequestration of carbon dioxide by trees on the area of land;
12
and
13
(d) under a law of the State or Territory, the right runs with the
14
relevant land; and
15
(e) it is not the case that under a law of the State or Territory, the
16
right is, or is taken to be, an estate or interest in land;
17
the exclusive right is the carbon sequestration right held by the
18
person in relation to the area of land.
19
(7) For the purposes of this Act, if:
20
(a) an area of land is Crown land in a State or Territory; and
21
(b) the area of land is not Torrens system land; and
22
(c) as a result of the area of land being Crown land:
23
(i) the State or Territory; or
24
(ii) a statutory authority of the State or Territory;
25
has the exclusive legal right to obtain the benefit (whether
26
present or future) of sequestration of carbon dioxide by trees
27
on the area of land;
28
the exclusive right is the carbon sequestration right held by the
29
State, Territory or statutory authority, as the case may be, in
30
relation to the area of land.
31
Right to obtain the benefit of sequestration
32
(8) For the purposes of this section, in determining whether a person
33
has the exclusive legal right to obtain the benefit (whether present
34
Part 10
Reforestation
Division 14
Carbon sequestration right and forestry right
Section 241
360 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
or future) of sequestration of carbon dioxide by trees on an area of
1
land, it is immaterial whether that right extends to sequestration of
2
carbon dioxide by the soil in which the trees are growing.
3
Subdivision B--Forestry right
4
241 Forestry right
5
Torrens system land
6
(1) For the purposes of this Act, if:
7
(a) an area of land is Torrens system land; and
8
(b) a person holds a legal estate or interest in the area of land;
9
and
10
(c) the estate or interest is registered under a Torrens system of
11
registration; and
12
(d) as a result of holding the estate or interest, the person has the
13
exclusive legal right to establish, manage and maintain a
14
forest on the area of land;
15
the estate or interest is the forestry right held by the person in
16
relation to the area of land.
17
(2) For the purposes of this Act, if:
18
(a) an area of land is Torrens system land; and
19
(b) a person has the exclusive legal right to establish, manage
20
and maintain a forest on the area of land; and
21
(c) the right is registered under a Torrens system of registration;
22
and
23
(d) under a law of a State or Territory, the right is, or is taken to
24
be, an estate or interest in land;
25
the exclusive right is the forestry right held by the person in
26
relation to the area of land.
27
Crown land that is not Torrens system land
28
(3) For the purposes of this Act, if:
29
(a) an area of land is Crown land in a State or Territory; and
30
(b) the area of land is not Torrens system land; and
31
Reforestation Part 10
Carbon sequestration right and forestry right Division 14
Section 241
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 361
(c) a person (other than the State or Territory) holds a legal
1
estate or interest in the area of land; and
2
(d) as a result of holding the estate or interest, the person has the
3
exclusive legal right to establish, manage and maintain a
4
forest on the area of land;
5
the estate or interest is the forestry right held by the person in
6
relation to the area of land.
7
(4) For the purposes of this Act, if:
8
(a) an area of land is Crown land in a State or Territory; and
9
(b) the area of land is not Torrens system land; and
10
(c) a person (other than the State or Territory) has the exclusive
11
legal right to establish, manage and maintain a forest on the
12
area of land; and
13
(d) under a law of the State or Territory, the right is, or is taken
14
to be, an estate or interest in land;
15
the exclusive right is the forestry right held by the person in
16
relation to the area of land.
17
(5) For the purposes of this Act, if:
18
(a) an area of land is Crown land in a State or Territory; and
19
(b) the area of land is not Torrens system land; and
20
(c) as a result of the area of land being Crown land:
21
(i) the State or Territory; or
22
(ii) a statutory authority of the State or Territory;
23
has the exclusive legal right to establish, manage and
24
maintain a forest on the area of land;
25
the exclusive right is the forestry right held by the State, Territory
26
or statutory authority, as the case may be, in relation to the area of
27
land.
28
29
Part 10
Reforestation
Division 14A
Eligible interest in an area of land
Section 241A
362 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Division 14A--Eligible interest in an area of land
1
241A Eligible interest in an area of land--Torrens system land
2
Scope
3
(1) This section applies to an area of land if the area is Torrens system
4
land.
5
Eligible interest
6
(2) For the purposes of this Act, if a person holds a forestry right in
7
relation to the whole or a part of the area of land, the forestry right
8
is an eligible interest held by the person in the area of land.
9
(3) For the purposes of this Act, if:
10
(a) a person holds an estate in fee simple, or any other legal
11
estate or interest, in the whole or a part of the area of land;
12
and
13
(b) the estate or interest is registered under a Torrens system of
14
registration;
15
the estate or interest is an eligible interest held by the person in the
16
area of land.
17
(4) For the purposes of this Act, if:
18
(a) under subsection (2) or (3), a person holds an eligible interest
19
in an area of land; and
20
(b)
another
person:
21
(i) is a mortgagee of the eligible interest, where the
22
mortgage is registered under a Torrens system of
23
registration; or
24
(ii) a chargee of the eligible interest, where the charge is
25
registered under a Torrens system of registration;
26
the mortgage or charge is an eligible interest held by the other
27
person in the area of land.
28
Reforestation Part 10
Eligible interest in an area of land Division 14A
Section 241B
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 363
241B Eligible interest in an area of land--Crown land that is not
1
Torrens system land
2
Scope
3
(1) This section applies to an area of land in a State or Territory if the
4
area of land:
5
(a) is Crown land; and
6
(b) is not Torrens system land.
7
Eligible interest
8
(2) For the purposes of this Act, the Crown lands Minister of the State
9
or Territory holds an eligible interest in the area of land.
10
(3) For the purposes of this Act, if a person holds a forestry right in
11
relation to the whole or a part of the area of land, the forestry right
12
is an eligible interest held by the person in the area of land.
13
(4) For the purposes of this Act, if a person (other than the State or
14
Territory) holds a legal estate or interest in the whole or a part of
15
the area of land, the estate or interest is an eligible interest held by
16
the person in the area of land.
17
(5) For the purposes of this Act, if:
18
(a) under subsection (3) or (4), a person holds an eligible interest
19
in an area of land; and
20
(b)
another
person:
21
(i) is a mortgagee of the eligible interest; or
22
(ii) is a chargee of the eligible interest;
23
the mortgage or charge is an eligible interest held by the other
24
person in the area of land.
25
26
Part 10
Reforestation
Division 15
Net total number of Australian emissions units issued in relation to an
eligible reforestation project
Section 242
364 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
Reforestation Part 10
Transition of reforestation projects from non-CPRS reforestation schemes Division 16
Section 243
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 365
Division 16--Transition of reforestation projects from
1
non-CPRS reforestation schemes
2
243 Request for determination
3
(1) If a person applies under section 205 for a declaration of a
4
reforestation project as an eligible reforestation project, the
5
application may be accompanied by a request for a determination
6
under section 243C in relation to the project.
7
(2) A person is not entitled to make a request after the end of the
8
2-year period beginning at the commencement of this section.
9
(3) A request may be set out in the same document as the application
10
under section 205.
11
243A Form of request
12
(1) A request must:
13
(a) be in writing; and
14
(b) be in a form approved, in writing, by the Authority; and
15
(c) be accompanied by such information as is specified in the
16
regulations; and
17
(d) be accompanied by such documents (if any) as are specified
18
in the regulations.
19
(2) The approved form of request may provide for verification by
20
statutory declaration of statements in requests.
21
243B Further information
22
(1) The Authority may, by written notice given to a person who has
23
made a request under section 243, require the person to give the
24
Authority, within the period specified in the notice, further
25
information in connection with the request.
26
(2) If the person breaches the requirement, the Authority may, by
27
written notice given to the person:
28
(a) refuse to consider the request; or
29
Part 10
Reforestation
Division 16
Transition of reforestation projects from non-CPRS reforestation schemes
Section 243C
366 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(b) refuse to take any action, or any further action, in relation to
1
the request.
2
243C Determination
3
Scope
4
(1) This section applies if:
5
(a) a request under section 243 has been made for a
6
determination under this section in relation to a reforestation
7
project; and
8
(b) under section 209, the Authority has declared the
9
reforestation project to be an eligible reforestation project.
10
Determination
11
(2) As soon as practicable after making the declaration, the Authority
12
must consider the request and may, by written notice given to the
13
person who made the request, determine that this Act has effect, in
14
relation to the project, as if:
15
(a) the net total number of Australian emissions units mentioned
16
in subsection 232(3) were increased by the number specified
17
in the determination; and
18
(b) the net total number of Australian emissions units mentioned
19
in paragraph 233(1)(d) were increased by the number
20
specified in the determination.
21
(3) The Authority must not make a determination under subsection (2)
22
unless the Authority is satisfied that the project area is or was, or
23
the project areas are or were, covered by a prescribed non-CPRS
24
reforestation scheme.
25
(4) In making a determination under subsection (2), the Authority must
26
comply with the regulations.
27
Refusal
28
(5) If the Authority refuses to make a determination under
29
subsection (2), the Authority must give notice of the refusal to the
30
person who made the request for the determination.
31
Reforestation Part 10
Transition of reforestation projects from non-CPRS reforestation schemes Division 16
Section 243C
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 367
Determination is not legislative instrument
1
(6) A determination made under subsection (2) is not a legislative
2
instrument.
3
4
Part 11
Destruction of synthetic greenhouse gases
Division 1
Introduction
Section 244
368 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 369
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
370 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 371
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
372 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 373
(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
374 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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 2010 No. , 2010 375
1
Part 11
Destruction of synthetic greenhouse gases
Division 4
Recognised synthetic greenhouse gas destruction customers
Section 253
376 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 377
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
378 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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 2010 No. , 2010 379
(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
380 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
Domestic offsets program Part 11A
Introduction Division 1
Section 259A
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 381
Part 11A--Domestic offsets program
1
Division 1--Introduction
2
259A Simplified outline
3
The following is a simplified outline of this Part:
4
·
The regulations may formulate a program (to be known as the
5
domestic offsets program) for the issue of free Australian
6
emissions units in respect of eligible domestic offsets projects.
7
·
Free units will be issued to the project proponent of the
8
eligible domestic offsets project, so long as the project
9
proponent is recognised as an offsets entity by the Authority.
10
·
Eligible domestic offsets projects must be:
11
(a)
covered by a domestic offsets project methodology
12
determination; and
13
(b)
carried on in Australia.
14
·
A domestic offsets project methodology determination must
15
not be inconsistent with the domestic offsets project
16
methodology principles.
17
18
Part 11A
Domestic offsets program
Division 2
Formulation of the domestic offsets program
Section 259B
382 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Division 2--Formulation of the domestic offsets program
1
259B Formulation of the domestic offsets program
2
(1) The regulations may formulate a program (to be known as the
3
domestic offsets program) for the issue of free Australian
4
emissions units in respect of offsets projects that, under the
5
program, have been declared by the Authority to be eligible
6
domestic offsets projects.
7
Issue of free Australian emissions units
8
(2) The domestic offsets program must provide that free Australian
9
emissions units must not be issued to a person in accordance with
10
the program unless the person:
11
(a) meets such requirements as are specified in the program; and
12
(b) is a recognised offsets entity; and
13
(c) has a Registry account.
14
(3) The domestic offsets program must provide that the method of
15
calculating the number of free Australian emissions units to be
16
issued to a person in accordance with the program in respect of an
17
eligible domestic offsets project is to be ascertained in accordance
18
with the applicable domestic offsets project methodology
19
determination.
20
Criteria for declaration of eligible domestic offsets project
21
(4) The domestic offsets program must provide that the Authority must
22
not declare that an offsets project is an eligible domestic offsets
23
project unless the Authority is satisfied that:
24
(a)
the
project:
25
(i) is, or is to be, carried on in Australia; and
26
(ii) is covered by a domestic offsets project methodology
27
determination; and
28
(iii) meets such requirements as are set out in the applicable
29
domestic offsets project methodology determination in
30
accordance with paragraph 259J(1)(b); and
31
Domestic offsets program Part 11A
Formulation of the domestic offsets program Division 2
Section 259B
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 383
(iv) meets such other requirements (if any) as are specified
1
in the program; and
2
(v) does not involve the clearing or harvesting of native
3
forest; and
4
(vi) does not involve using material obtained as a result of
5
the clearing or harvesting of native forest; and
6
(b) the person who, under the domestic offsets program, is taken
7
to be the project proponent of the project is a recognised
8
offsets entity.
9
Note:
Domestic offsets project methodology determinations are made under
10
section 259J.
11
(5) The domestic offsets program must provide that the Authority must
12
not declare that an offsets project is an eligible domestic offsets
13
project unless an application for the declaration is made on or after
14
1 July 2011.
15
Duration of declaration etc.
16
(6) The domestic offsets program must provide that a declaration of an
17
offsets project as an eligible domestic offsets project 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 for the declaration has consented to the
22
specification of the earlier day; and
23
(iii) the earlier day is not before 1 July 2011;
24
on the day specified.
25
(7) The domestic offsets program must provide that a declaration of an
26
offsets project as an eligible domestic offsets project remains in
27
force until the end of the period ascertained in accordance with the
28
program, unless revoked sooner by the Authority.
29
(8) The domestic offsets program may provide that, if a declaration
30
(the renewal declaration) of an offsets project as an eligible
31
domestic offsets project is made by way of the renewal of the
32
previous declaration of the project, the renewal declaration takes
33
effect immediately after the expiry of the previous declaration.
34
Part 11A
Domestic offsets program
Division 2
Formulation of the domestic offsets program
Section 259C
384 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Revocation of declaration
1
(9) The domestic offsets program must provide that a declaration of an
2
offsets project as an eligible domestic offsets project may be
3
revoked by the Authority if the Authority is satisfied that:
4
(a)
the
project:
5
(i) is not being, or will not be, carried on in Australia; or
6
(ii) is not covered by a domestic offsets project
7
methodology determination; or
8
(iii) does not meet any or all of the requirements set out in
9
the applicable domestic offsets project methodology
10
determination in accordance with paragraph 259J(1)(b);
11
or
12
(iv) does not meet any or all of the requirements specified in
13
the program; or
14
(b) the person who, under the domestic offsets program, is taken
15
to be the project proponent of the project is not a recognised
16
offsets entity.
17
Declaration is not legislative instrument etc.
18
(10) A declaration of an offsets project as an eligible domestic offsets
19
project is not a legislative instrument.
20
(11) A revocation of such a declaration is not a legislative instrument.
21
259C Reporting requirement
22
Scope
23
(1) This section applies if, under the domestic offsets program, a
24
person is taken to be the project proponent of an eligible domestic
25
offsets project.
26
Requirement
27
(2) The domestic offsets program may make provision for and in
28
relation to requiring the person to give a written report to the
29
Authority in relation to the project in respect of a period (a
30
Domestic offsets program Part 11A
Formulation of the domestic offsets program Division 2
Section 259D
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 385
domestic offsets reporting period) ascertained in accordance with
1
the program.
2
(3) A domestic offsets reporting period:
3
(a) may be a recurring period (for example, a financial year); and
4
(b) must not be shorter than 12 months.
5
(4) The domestic offsets program must provide that a report given by
6
the person as mentioned in subsection (2) must be accompanied by
7
a prescribed audit report prepared by another person ascertained in
8
accordance with the program.
9
259D Record-keeping requirement
10
Scope
11
(1) This section applies if, under the domestic offsets program, a
12
person is taken to be the project proponent of an eligible domestic
13
offsets project.
14
Requirement
15
(2) The domestic offsets program may make provision for and in
16
relation to requiring the person to:
17
(a) make records of information specified in the program; and
18
(b) retain such a record, or a copy, for 5 years after the record
19
was made.
20
259E Relinquishment requirement
21
(1) The domestic offsets program may provide that, if:
22
(a) a number of free Australian emissions units have been issued
23
in respect of an eligible domestic offsets project in
24
accordance with the program; and
25
(b) the application for the declaration of the project as an eligible
26
domestic offsets project contained information that was false
27
or misleading in a material particular; and
28
(c) the issue of any or all of the units was directly or indirectly
29
attributable to the false or misleading information;
30
Part 11A
Domestic offsets program
Division 2
Formulation of the domestic offsets program
Section 259E
386 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
the person who, under the program, is taken to be the project
1
proponent of the project is required to relinquish a number of
2
Australian emissions units ascertained in accordance with the
3
program. The number of Australian emissions units required to be
4
relinquished must not exceed the number of Australian emissions
5
units the issue of which was directly or indirectly attributable to the
6
false or misleading information.
7
Note:
An administrative penalty is payable under section 287 for
8
non-compliance with a relinquishment requirement under the domestic
9
offsets program.
10
(2) The domestic offsets program may provide that, if:
11
(a) a number of free Australian emissions units have been issued
12
in respect of an eligible domestic offsets project in
13
accordance with the program; and
14
(b) the person who, under the program, is taken to be the project
15
proponent of the project has given the Authority a report as
16
mentioned in subsection 259C(2); and
17
(c) the report contains information that is false or misleading in a
18
material particular; and
19
(d) the issue of any or all of the units was directly or indirectly
20
attributable to the false or misleading information;
21
the person is required to relinquish a number of Australian
22
emissions units ascertained in accordance with the program. The
23
number of Australian emissions units required to be relinquished
24
must not exceed the number of Australian emissions units the issue
25
of which was directly or indirectly attributable to the false or
26
misleading information.
27
Note:
An administrative penalty is payable under section 287 for
28
non-compliance with a relinquishment requirement under the domestic
29
offsets program.
30
(3) The domestic offsets program may provide that, if:
31
(a) a number of free Australian emissions units have been issued
32
in respect of an eligible domestic offsets project in
33
accordance with the program; and
34
(b) the project involves the removal of one or more greenhouse
35
gases from the atmosphere; and
36
(c) there has been a complete or partial reversal of that removal;
37
Domestic offsets program Part 11A
Formulation of the domestic offsets program Division 2
Section 259F
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 387
the person who, under the program, is taken to be the project
1
proponent of the project is required to relinquish a number of
2
Australian emissions units ascertained in accordance with the
3
program. The number of Australian emissions units required to be
4
relinquished must not exceed the total number of Australian
5
emissions units that, under the domestic offsets program, is taken
6
to be the number of units attributable to that removal.
7
Note:
An administrative penalty is payable under section 287 for
8
non-compliance with a relinquishment requirement under the domestic
9
offsets program.
10
(4) The domestic offsets program may provide that, if:
11
(a) a number of free Australian emissions units have been issued
12
in respect of an eligible domestic offsets project in
13
accordance with the program; and
14
(b)
if:
15
(i) the project is a project to reduce emissions of one or
16
more greenhouse gases; and
17
(ii) the reduction involves storage; and
18
(c) there has been a complete or partial reversal of that storage;
19
the person who, under the program, is taken to be the project
20
proponent of the project is required to relinquish a number of
21
Australian emissions units ascertained in accordance with the
22
program. The number of Australian emissions units required to be
23
relinquished must not exceed the total number of Australian
24
emissions units that, under the domestic offsets program, is taken
25
to be the number of units attributable to that reduction.
26
Note:
An administrative penalty is payable under section 287 for
27
non-compliance with a relinquishment requirement under the domestic
28
offsets program.
29
259F Other matters
30
Declaration of eligible domestic offsets project
31
(1) The domestic offsets program may make provision for and in
32
relation to the following matters:
33
(a) applications for offsets projects to be declared to be eligible
34
domestic offsets projects;
35
Part 11A
Domestic offsets program
Division 2
Formulation of the domestic offsets program
Section 259G
388 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(b) the approval by the Authority of a form for such an
1
application;
2
(c) the fee (if any) that must accompany such an application;
3
(d) information that must accompany such an application;
4
(e) documents that must accompany such an application.
5
(2) The domestic offsets program may provide for verification by
6
statutory declaration of statements in applications for offsets
7
projects to be declared to be eligible domestic offsets projects.
8
(3) The domestic offsets program may provide that an application for
9
an offsets project to be declared to be an eligible domestic offsets
10
project must be accompanied by a prescribed report.
11
Applications for free Australian emissions units
12
(4) The domestic offsets program may make provision for and in
13
relation to the following matters:
14
(a) applications for free Australian emissions units;
15
(b) the approval by the Authority of a form for such an
16
application;
17
(c) information that must accompany such an application;
18
(d) documents that must accompany such an application.
19
(5) The domestic offsets program may provide for verification by
20
statutory declaration of statements in applications for free
21
Australian emissions units.
22
259G Ancillary or incidental provisions
23
The domestic offsets program may contain ancillary or incidental
24
provisions.
25
26
Domestic offsets program Part 11A
Compliance with reporting and record-keeping requirements under the domestic offsets
program Division 3
Section 259H
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 389
Division 3--Compliance with reporting and
1
record-keeping requirements under the domestic
2
offsets program
3
259H Compliance with reporting and record-keeping requirements
4
Reporting requirements
5
(1) If a person is subject to a requirement under the domestic offsets
6
program to give a report to the Authority, the person must comply
7
with that requirement.
8
Record-keeping requirements
9
(2) If a person is subject to a requirement under the domestic offsets
10
program to:
11
(a) make a record of information; or
12
(b) retain such a record or a copy;
13
the person must comply with that requirement.
14
Ancillary contraventions
15
(3) A person must not:
16
(a) aid, abet, counsel or procure a contravention of subsection (1)
17
or (2); or
18
(b) induce, whether by threats or promises or otherwise, a
19
contravention of subsection (1) or (2); or
20
(c) be in any way, directly or indirectly, knowingly concerned in,
21
or party to, a contravention of subsection (1) or (2); or
22
(d) conspire with others to effect a contravention of
23
subsection (1) or (2).
24
Civil penalty provisions
25
(4) Subsections (1), (2) and (3) are civil penalty provisions.
26
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
27
provisions.
28
29
Part 11A
Domestic offsets program
Division 4
Domestic offsets project methodology determinations
Section 259J
390 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Division 4--Domestic offsets project methodology
1
determinations
2
259J Domestic offsets project methodology determinations
3
(1) The Minister may, by legislative instrument, make a determination,
4
to be known as a domestic offsets project methodology
5
determination, that:
6
(a) is expressed to apply to a specified kind of offsets project;
7
and
8
(b) sets out requirements that must be met for such a project to
9
be an eligible domestic offsets project; and
10
(c) provides that, if such a project is an eligible domestic offsets
11
project, the number of free Australian emissions units to be
12
issued to a person in accordance with the domestic offsets
13
program in respect of the project for a domestic offsets
14
reporting period must equal:
15
(i) if the project relates to the removal of one or more
16
greenhouse gases--the net total number of tonnes of
17
greenhouse gases that, under the determination, is taken
18
to be removed as a result of the project during the
19
domestic offsets reporting period; or
20
(ii) if the project relates to the reduction of emissions of one
21
or more greenhouse gases--the net total number of
22
tonnes of greenhouse gases that, under the
23
determination, is taken to be reduced as a result of the
24
project during the domestic offsets reporting period.
25
(2) The Minister must not make or amend a domestic offsets project
26
methodology determination unless the Minister does so in
27
accordance with advice given to the Minister by the Domestic
28
Offsets Integrity Committee.
29
Note:
The Domestic Offsets Integrity Committee is established by
30
section 373A.
31
(3) To avoid doubt, the Minister may revoke a domestic offsets project
32
methodology determination without obtaining advice from the
33
Domestic Offsets Integrity Committee.
34
Domestic offsets program Part 11A
Domestic offsets project methodology determinations Division 4
Section 259K
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 391
(4) A domestic offsets project methodology determination must not be
1
inconsistent with the domestic offsets project methodology
2
principles.
3
259K Domestic offsets project methodology principles
4
(1) For the purposes of the application of this Act to an offsets project,
5
the domestic offsets project methodology principles are as follows:
6
(a) if the project is a project to remove one or more greenhouse
7
gases from the atmosphere--the removal can be used to meet
8
Australia's climate change targets under:
9
(i) the Kyoto Protocol; or
10
(ii) an international agreement (if any) that is the successor
11
(whether immediate or otherwise) to the Kyoto
12
Protocol;
13
(b) if the project is a project to reduce emissions of one or more
14
greenhouse gases--the reduction can be used to meet
15
Australia's climate change targets under:
16
(i) the Kyoto Protocol; or
17
(ii) an international agreement (if any) that is the successor
18
(whether immediate or otherwise) to the Kyoto
19
Protocol;
20
(c) the project meets the integrity requirements set out in
21
subsection (2);
22
(d) if the project is a project to reduce emissions of one or more
23
greenhouse gases--the project is not a project to reduce an
24
emission that, under regulations made for the purposes of
25
paragraph 10(2A)(a) of the National Greenhouse and Energy
26
Reporting Act 2007, is a scope 1 emission covered by the
27
carbon pollution reduction scheme;
28
(e) the project is not a reforestation project that has resulted, or
29
has the potential to result, in the issue of free Australian
30
emissions units in accordance with Part 10;
31
(f) the project does not involve:
32
(i) the destruction of one or more synthetic greenhouse
33
gases; or
34
(ii) the reduction of emissions of one or more synthetic
35
greenhouse gases.
36
Part 11A
Domestic offsets program
Division 4
Domestic offsets project methodology determinations
Section 259K
392 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Integrity requirements
1
(2) The integrity requirements mentioned in paragraph (1)(c) are as
2
follows:
3
(a) if the project is a project to remove one or more greenhouse
4
gases from the atmosphere--the removal is:
5
(i)
measurable;
and
6
(ii) capable of being verified;
7
(b) if the project is a project to reduce emissions of one or more
8
greenhouse gases--the reduction is:
9
(i)
measurable;
and
10
(ii) capable of being verified;
11
(c) the project would not have been proposed or carried out in
12
the absence of the issue of free Australian emissions units in
13
accordance with the domestic offsets program;
14
(d) if the project is a project to remove one or more greenhouse
15
gases from the atmosphere--the removal is not likely to be
16
reversed in whole or in part;
17
(e)
if:
18
(i) the project is a project to reduce emissions of one or
19
more greenhouse gases; and
20
(ii) the reduction involves storage;
21
the storage is not likely to be reversed in whole or in part;
22
(f) if the project is a project to remove one or more greenhouse
23
gases from the atmosphere--the removal is not offset by
24
emissions of one or more greenhouse gases outside the
25
project;
26
(g) if the project is a project to reduce emissions of one or more
27
greenhouse gases--the reduction is not offset by emissions of
28
one or more greenhouse gases outside the project;
29
(h) such other requirements (if any) as are specified in the
30
regulations.
31
Landfill facilities
32
(3) Paragraph (1)(d) does not apply to a project to reduce the following
33
emissions:
34
Domestic offsets program Part 11A
Domestic offsets project methodology determinations Division 4
Section 259K
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 393
(a) emissions that, under subsection 20(6) or (8), do not count
1
for the purposes of subsection 20(1) (which deals with
2
landfill facilities);
3
(b) emissions that, under subsection 21(6) or (8), do not count
4
for the purposes of subsection 21(1) (which deals with
5
landfill facilities);
6
(c) emissions that, under subsection 22(6) or (7), do not count
7
for the purposes of subsection 22(1) (which deals with
8
landfill facilities).
9
10
Part 11A
Domestic offsets program
Division 5
Recognised offsets entities
Section 259L
394 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Division 5--Recognised offsets entities
1
259L Application for recognition as an offsets entity
2
(1) A person may apply to the Authority for recognition as an offsets
3
entity.
4
(2) A person is not entitled to make an application before 1 July 2011.
5
259M 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 documents (if any) as are specified
12
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
259N 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
Domestic offsets program Part 11A
Recognised offsets entities Division 5
Section 259P
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 395
259P Recognition as an offsets entity
1
Scope
2
(1) This section applies if an application under section 259L has been
3
made for recognition as an offsets entity.
4
Recognition
5
(2) After considering the application, the Authority may, by written
6
notice given to the applicant, recognise the applicant as an offsets
7
entity.
8
Criteria for recognition
9
(3) The Authority must not recognise the applicant as an offsets entity
10
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 11A
Domestic offsets program
Division 5
Recognised offsets entities
Section 259P
396 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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 259N(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
Domestic offsets program Part 11A
Recognised offsets entities Division 5
Section 259Q
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 397
Refusal
1
(6) If the Authority decides to refuse to recognise the applicant as an
2
offsets entity, the Authority must give written notice of the
3
decision to the applicant.
4
259Q Cancellation of recognition
5
(1) The Authority may cancel the recognition of a person as an offsets
6
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 11A
Domestic offsets program
Division 5
Recognised offsets entities
Section 259R
398 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
259R Surrender of recognition
21
Scope
22
(1) This section applies if a person is recognised as an offsets entity.
23
Surrender
24
(2) The person may, by written notice given to the Authority,
25
surrender the person's recognition.
26
(3) The surrender takes effect on the day the notice is received by the
27
Authority or, if a later day is specified in the notice, on that later
28
day.
29
Domestic offsets program Part 11A
Recognised offsets entities Division 5
Section 259S
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 399
259S Recognition is not transferable
1
If a person is recognised as an offsets entity, the person's
2
recognition is not transferable.
3
4
Part 12
Publication of information
Division 1
Introduction
Section 260
400 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
Publication of information Part 12
Information about liable entities Division 2
Section 261
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 401
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
Part 12
Publication of information
Division 2
Information about liable entities
Section 263
402 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
Publication of information Part 12
Information about liable entities Division 2
Section 264
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 403
(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
Part 12
Publication of information
Division 2
Information about liable entities
Section 265
404 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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
Publication of information Part 12
Information about liable entities Division 2
Section 266
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 405
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
Part 12
Publication of information
Division 2
Information about liable entities
Section 267A
406 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
Publication of information Part 12
Information about liable entities Division 2
Section 267B
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 407
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
Part 12
Publication of information
Division 2
Information about liable entities
Section 267C
408 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
Publication of information Part 12
Information about holders of Registry accounts Division 3
Section 269
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 409
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
Part 12
Publication of information
Division 4
Information about units
Section 270
410 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
Publication of information Part 12
Information about units Division 4
Section 271
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 411
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
Part 12
Publication of information
Division 4
Information about units
Section 272
412 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
Publication of information Part 12
Information about units Division 4
Section 273
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 413
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 mining
18
(1A) As soon as practicable after free Australian emissions units are
19
issued to a person in accordance with Part 8A (coal mining), the
20
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
Coal-fired electricity generation
27
(2) As soon as practicable after free Australian emissions units are
28
issued to a person in accordance with Part 9 (coal-fired electricity
29
generation), the 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
Part 12
Publication of information
Division 4
Information about units
Section 273
414 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(c) the vintage year of the free Australian emissions units issued
1
to the person.
2
Reforestation
3
(3) As soon as practicable after free Australian emissions units are
4
issued to a person in accordance with Part 10 (reforestation), the
5
Authority must publish on 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.
11
Destruction of synthetic greenhouse gases
12
(4) As soon as practicable after free Australian emissions units are
13
issued to a person in accordance with Part 11 (destruction of
14
synthetic greenhouse gases), the Authority must publish on its
15
website:
16
(a) the name of the person; and
17
(b) the total number of free Australian emissions units issued to
18
the person; and
19
(c) the vintage year of the free Australian emissions units issued
20
to the person.
21
Domestic offsets program
22
(5) A soon as practicable after free Australian emissions units are
23
issued to a person in accordance with the domestic offsets
24
program, the Authority must publish on its website:
25
(a) the name of the person; and
26
(b) the total number of free Australian emissions units issued to
27
the person; and
28
(c) the vintage year of the free Australian emissions units issued
29
to the person.
30
Publication of information Part 12
Information about units Division 4
Section 274
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 415
274 Quarterly reports about issue of free Australian emissions units
1
As soon as practicable after the end of each quarter, the Authority
2
must publish the following information on its website:
3
(a) the total number of free Australian emissions units with a
4
particular vintage year issued during the quarter in
5
accordance with the emissions-intensive trade-exposed
6
assistance program;
7
(aa) the total number of free Australian emissions units with a
8
particular vintage year issued during the quarter in
9
accordance with Part 8A (coal mining);
10
(b) for each activity that, under the emissions-intensive
11
trade-exposed assistance program, is taken to be an
12
emissions-intensive trade-exposed activity--the total number
13
of free Australian emissions units with a particular vintage
14
year issued during the quarter in respect of that activity in
15
accordance with that program;
16
(c) if, at the end of the quarter, there were one or more pending
17
applications for free Australian emissions under the
18
emissions-intensive trade-exposed assistance program--the
19
total number of free Australian emissions units to which
20
those pending applications relate;
21
(d) the total number of free Australian emissions units with a
22
particular vintage year issued during the quarter in
23
accordance with Part 9 (coal-fired electricity generation);
24
(e) the total number of free Australian emissions units with a
25
particular vintage year issued during the quarter in
26
accordance with Part 10 (reforestation);
27
(f) the total number of free Australian emissions units with a
28
particular vintage year issued during the quarter in
29
accordance with Part 11 (destruction of synthetic greenhouse
30
gases);
31
(g) the total number of free Australian emissions units with a
32
particular vintage year issued during the quarter in
33
accordance with the domestic offsets program.
34
Part 12
Publication of information
Division 4
Information about units
Section 275
416 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
275 Information about surrender of borrowed and banked eligible
1
emissions units
2
Borrowed units
3
(1) As soon as practicable after the end of 15 December following an
4
eligible financial year, the Authority must publish on its website
5
the total number of Australian emissions units that:
6
(a) were surrendered in relation to the eligible financial year; and
7
(b) had a vintage year later than the eligible financial year.
8
Banked units
9
(2) As soon as practicable after the end of 15 December following an
10
eligible financial year, the Authority must publish on its website
11
the total number of Australian emissions units that:
12
(a) were surrendered in relation to the eligible financial year; and
13
(b) had a vintage year earlier than the eligible financial year.
14
276 Kyoto information
15
(1) The regulations may make provision for, or in relation to, requiring
16
the Authority to publish on its website information that a provision
17
of the Kyoto rules requires Australia's national registry to make
18
publicly available.
19
(2) The regulations may require the Authority to:
20
(a) publish on its website the total number of specified Kyoto
21
units for which there are entries in Registry accounts; and
22
(b) keep that information up-to-date.
23
(3) The Authority must:
24
(a) publish on its website:
25
(i) the total number of certified emission reductions (other
26
than temporary certified emission reductions or
27
long-term certified emission reductions) for which there
28
are entries in Registry accounts; and
29
(ii) the total number of emissions reduction units (other than
30
emission reduction units converted from removal units)
31
for which there are entries in Registry accounts; and
32
Publication of information Part 12
Information about units Division 4
Section 277
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 417
(b) keep that information up-to-date.
1
277 Information about total emissions numbers and unit shortfalls
2
As soon as practicable after 15 January following an eligible
3
financial year, the Authority must:
4
(a)
calculate:
5
(i) the total of the numbers that, in the Authority's opinion,
6
are the emissions numbers of liable entities for the
7
eligible financial year; and
8
(ii) the total of the numbers that, in the Authority's opinion,
9
are the unit shortfalls of liable entities in relation to the
10
eligible financial year; and
11
(b) publish the results on its website.
12
277A Publication of concise description of the characteristics of
13
Australian emissions units
14
The Authority must:
15
(a) before 31 December 2010, publish on its website a statement
16
setting out a concise description of the characteristics of
17
Australian emissions units; and
18
(b) keep that statement up-to-date.
19
278 Publication of concise description of the characteristics of
20
eligible international emissions units
21
Kyoto units
22
(1) The Authority must:
23
(a) within 30 days after the commencement of this section,
24
publish on its website a statement setting out a concise
25
description of the characteristics of each of the following
26
types of eligible international emissions units:
27
(i) certified emission reductions (other than a temporary
28
certified emission reduction or a long-term certified
29
emission reduction);
30
(ii) emission reduction units;
31
Part 12
Publication of information
Division 4
Information about units
Section 278
418 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(iii) removal units; and
1
(b) keep that statement up-to-date.
2
(2) The Authority must:
3
(a) within 30 days after the commencement of regulations made
4
for the purposes of paragraph (d) of the definition of eligible
5
international emissions unit in section 5, publish on its
6
website a statement setting out a concise description of the
7
characteristics of units prescribed by those regulations; and
8
(b) keep that statement up-to-date.
9
Non-Kyoto units
10
(3) The Authority must:
11
(a) within 30 days after the commencement of regulations made
12
for the purposes of paragraph (a) of the definition of
13
non-Kyoto international emissions unit in section 5, publish
14
on its website a statement setting out a concise description of
15
the characteristics of units prescribed by those regulations;
16
and
17
(b) keep that statement up-to-date.
18
(4) The Authority must:
19
(a) within 30 days after the commencement of regulations made
20
for the purposes of paragraph (b) of the definition of
21
non-Kyoto international emissions unit in section 5, publish
22
on its website a statement setting out a concise description of
23
the characteristics of units prescribed by those regulations;
24
and
25
(b) keep that statement up-to-date.
26
27
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 2010 No. , 2010 419
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
420 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 421
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
422 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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 2010 No. , 2010 423
(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
424 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
(1A) The list must set out the location of each landfill facility on the list.
8
(2) The regulations may provide that the list is to be published on or
9
before such day as is ascertained in accordance with the
10
regulations.
11
(3) For the purposes of subsection (1), assume that the financial year
12
beginning on 1 July 2010 is an eligible financial year.
13
14
Publication of information Part 12
Information about eligible domestic offsets projects Division 8
Section 278H
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 425
Division 8--Information about eligible domestic offsets
1
projects
2
278H Information about eligible domestic offsets projects
3
For each eligible domestic offsets project, the Authority must
4
publish on its website:
5
(a) a description of the project; and
6
(b) the location of the project; and
7
(c) the name of the person who applied to the Authority for the
8
declaration of the project as an eligible domestic offsets
9
project; and
10
(d) the name of the person who, under the domestic offsets
11
program, is taken to be the project proponent of the project;
12
and
13
(e) if any Australian emissions units have been issued in relation
14
to the project in accordance with the domestic offsets
15
program:
16
(i) the total number of units so issued; and
17
(ii) the name of the person, or each of the persons, to whom
18
those units have been issued; and
19
(f) the name of the applicable domestic offsets methodology
20
determination; and
21
(g) such other information (if any) relating to the project as the
22
Authority considers appropriate.
23
24
Part 13
Fraudulent conduct
Section 279
426 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
Fraudulent conduct Part 13
Section 280
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 427
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
Part 13
Fraudulent conduct
Section 280
428 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(c) the Supreme Court of a State or Territory.
1
2
Voluntary cancellation of emissions units Part 14
Section 281
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 429
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
Part 14
Voluntary cancellation of emissions units
Section 283
430 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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
Voluntary cancellation of emissions units Part 14
Section 284
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 431
(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
Part 14
Voluntary cancellation of emissions units
Section 284
432 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(4) The Registry must set out a record of each notice under
1
subsection (1).
2
3
Relinquishment of Australian emissions units Part 15
Introduction Division 1
Section 285
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 433
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), the
17
emissions-intensive trade-exposed assistance program or the domestic
18
offsets program.
19
20
Part 15
Relinquishment of Australian emissions units
Division 2
How Australian emissions units are relinquished
Section 286
434 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
(da) if the Australian emissions unit or units are being voluntarily
23
relinquished in order to satisfy a condition for revocation of a
24
subsection 226(2) declaration--set out a statement to that
25
effect; and
26
(db) if the Australian emissions unit or units are being
27
relinquished in order to comply with a requirement under the
28
domestic offsets program--specify the requirement to which
29
the relinquishment relates; and
30
(e) if the Australian emissions unit or units are being
31
relinquished in order to comply with an order under
32
subsection 280(2) (fraudulent conduct)--specify the order to
33
which the relinquishment relates; and
34
Relinquishment of Australian emissions units Part 15
How Australian emissions units are relinquished Division 2
Section 286
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 435
(f) specify the account number or account numbers of the
1
person's Registry account, or the person's Registry accounts,
2
in which there is an entry or entries for the Australian
3
emissions unit or units that are being relinquished.
4
(2A)
If:
5
(a) an Australian emissions unit is relinquished; and
6
(b) the unit has the vintage year beginning on 1 July 2011;
7
then:
8
(c) the unit is cancelled; and
9
(d) the Authority must remove the entry for the unit from the
10
person's Registry account in which there is an entry for the
11
unit.
12
(3)
If:
13
(a) an Australian emissions unit is relinquished by a person in
14
order to comply with an order under subsection 280(2); and
15
(b) the order was made because the person was convicted by a
16
court of an offence that relates to:
17
(i) Part 10 (reforestation); or
18
(ii) Part 11 (destruction of synthetic greenhouse gases); or
19
(iii) Part 11A (domestic offsets program);
20
then:
21
(c) the unit is cancelled; and
22
(d) the Authority must remove the entry for the unit from the
23
person's Registry account in which there is an entry for the
24
unit.
25
(4)
If:
26
(a) an Australian emissions unit is relinquished by a person in
27
order to comply with an order under subsection 280(2); and
28
(b) the order was made because the person has been convicted by
29
a court of an offence that does not relate to:
30
(i) Part 10 (reforestation); or
31
(ii) Part 11 (destruction of synthetic greenhouse gases); or
32
(iii) Part 11A (domestic offsets program); and
33
(ba) subsection (2A) does not apply to the relinquishment of the
34
unit;
35
Part 15
Relinquishment of Australian emissions units
Division 2
How Australian emissions units are relinquished
Section 286
436 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
then:
1
(c) the Authority must transfer the unit from the person's
2
Registry account in which there is an entry for the unit to the
3
Commonwealth relinquished units account; and
4
(d) when the unit is transferred to the Commonwealth
5
relinquished units account, property in the unit is transferred
6
to the Commonwealth.
7
(5)
If:
8
(a) an Australian emissions unit is relinquished by a person in
9
order to comply with a requirement under the
10
emissions-intensive trade-exposed assistance program; and
11
(b) subsection (2A) does not apply to the relinquishment of the
12
unit;
13
then:
14
(c) the Authority must transfer the unit from the person's
15
Registry account in which there is an entry for the unit to the
16
Commonwealth relinquished units account; and
17
(d) when the unit is transferred to the Commonwealth
18
relinquished units account, property in the unit is transferred
19
to the Commonwealth.
20
(6)
If:
21
(a) an Australian emissions unit is relinquished by a person in
22
order to comply with a requirement under Part 10
23
(reforestation); or
24
(b) an Australian emissions unit is voluntarily relinquished in
25
order to satisfy a condition for revocation of a section 209
26
declaration in relation to a reforestation project; or
27
(ba) an Australian emissions unit is voluntarily relinquished in
28
order to satisfy a condition for revocation of a subsection
29
226(2) declaration; or
30
(bb) an Australian emissions unit is relinquished by a person in
31
order to comply with a requirement under the domestic
32
offsets program;
33
then:
34
(c) the unit is cancelled; and
35
Relinquishment of Australian emissions units Part 15
How Australian emissions units are relinquished Division 2
Section 286
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 437
(d) the Authority must remove the entry for the unit from the
1
person's Registry account in which there is an entry for the
2
unit.
3
(7) The Registry must set out a record of each notice under
4
subsection (1).
5
6
Part 15
Relinquishment of Australian emissions units
Division 3
Compliance with relinquishment requirements
Section 287
438 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 439
(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
440 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 441
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
442 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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 2010 No. , 2010 443
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
444 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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 2010 No. , 2010 445
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
446 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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 2010 No. , 2010 447
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
448 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 449
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
450 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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 2010 No. , 2010 451
(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
452 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 453
(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
454 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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
Record-keeping requirements Part 18
Section 304A
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 455
304A Record-keeping requirements--preparation of reforestation
1
report
2
Scope
3
(1) This section applies if a person:
4
(a) made a record of particular information; and
5
(b) used the information to prepare a reforestation report.
6
Record-keeping requirements
7
(2) The regulations may require the person to retain:
8
(a) the record; or
9
(b) a copy of the record;
10
for 5 years after the reforestation report was given to the Authority.
11
(3) If a person is subject to a requirement under regulations made for
12
the purposes of subsection (2), the person must comply with that
13
requirement.
14
Ancillary contraventions
15
(4) A person must not:
16
(a) aid, abet, counsel or procure a contravention of
17
subsection (3); or
18
(b) induce, whether by threats or promises or otherwise, a
19
contravention of subsection (3); or
20
(c) be in any way, directly or indirectly, knowingly concerned in,
21
or party to, a contravention of subsection (3); or
22
(d) conspire with others to effect a contravention of
23
subsection (3).
24
Civil penalty provisions
25
(5) Subsections (3) and (4) are civil penalty provisions.
26
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
27
provisions.
28
29
Part 19
Monitoring powers
Division 1
Simplified outline
Section 305
456 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
Monitoring powers Part 19
Appointment of inspectors and issue of identity cards Division 2
Section 306
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 457
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
Part 19
Monitoring powers
Division 2
Appointment of inspectors and issue of identity cards
Section 307
458 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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
Monitoring powers Part 19
Powers of inspectors Division 3
Section 308
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 459
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
Part 19
Monitoring powers
Division 3
Powers of inspectors
Section 309
460 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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
Monitoring powers Part 19
Powers of inspectors Division 3
Section 309
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 461
(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
Part 19
Monitoring powers
Division 3
Powers of inspectors
Section 310
462 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
Monitoring powers Part 19
Powers of inspectors Division 3
Section 312
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 463
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
Part 19
Monitoring powers
Division 4
Obligations and incidental powers of inspectors
Section 313
464 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
Monitoring powers Part 19
Obligations and incidental powers of inspectors Division 4
Section 315
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 465
(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
Part 19
Monitoring powers
Division 4
Obligations and incidental powers of inspectors
Section 317
466 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
Monitoring powers Part 19
Obligations and incidental powers of inspectors Division 4
Section 318
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 467
(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
Part 19
Monitoring powers
Division 4
Obligations and incidental powers of inspectors
Section 318
468 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
1
Monitoring powers Part 19
Occupier's rights and responsibilities Division 5
Section 319
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 469
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
Part 19
Monitoring powers
Division 6
Monitoring warrants
Section 321
470 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
Monitoring powers Part 19
Monitoring warrants Division 6
Section 321
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 471
(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
Part 19
Monitoring powers
Division 7
Powers of magistrates
Section 322
472 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
Liability of executive officers of bodies corporate Part 20
Section 323
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 473
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
Part 20
Liability of executive officers of bodies corporate
Section 325
474 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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, a court may have regard to all
10
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
Civil penalty orders Part 21
Section 326
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 475
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
Part 21
Civil penalty orders
Section 327
476 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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
Civil penalty orders Part 21
Section 328
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 477
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
Part 21
Civil penalty orders
Section 334
478 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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
Civil penalty orders Part 21
Section 337
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 479
(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
Part 21
Civil penalty orders
Section 338
480 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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(7);
7
(p)
subsection
226C(8);
8
(q)
subsection
235(2);
9
(qa)
subsection
235A(3);
10
(qb)
subsection
259H(1);
11
(qc)
subsection
259H(2);
12
(r)
subsection
293(2);
13
(s)
subsection
294(2);
14
(t)
subsection
296(4);
15
(u)
subsection
302(2);
16
(v)
subsection
303(2);
17
(w)
subsection
303(3);
18
(x)
subsection
304(2);
19
(y)
subsection
304A(3).
20
State of mind
21
(2) In the proceedings, it is not necessary to prove:
22
(a) the person's intention; or
23
(b) the person's knowledge; or
24
(c) the person's recklessness; or
25
(d) the person's negligence; or
26
(e) any other state of mind of the person.
27
(3) Subsection (2) does not affect the operation of section 336.
28
338 Continuing contraventions
29
(1) If an act or thing is required, under a civil penalty provision of this
30
Act, to be done within a particular period, or before a particular
31
time, then the obligation to do that act or thing continues (even if
32
Civil penalty orders Part 21
Section 338
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 481
the period has expired or the time has passed) until the act or thing
1
is done.
2
(2) A person who contravenes any of the following civil remedy
3
provisions:
4
(aa)
subsection
50A(1);
5
(a) subsection 164(4), so far as that subsection relates to a
6
requirement mentioned in subsection 164(2);
7
(b)
subsection
173(1);
8
(c)
subsection
225(2);
9
(d)
subsection
235(2);
10
(da)
subsection
235A(3);
11
(db)
subsection
259H(1);
12
(e)
subsection
293(2);
13
(f)
subsection
294(2);
14
(g)
subsection
296(4);
15
commits a separate contravention of that provision in respect of
16
each day (including a day of the making of a relevant civil penalty
17
order or any subsequent day) during which the contravention
18
continues.
19
(3) The pecuniary penalty payable under subsection 327(1) for such a
20
separate contravention in respect of a particular day must not
21
exceed:
22
(a) in the case of a contravention of subsection 296(4)--10% of
23
the maximum pecuniary penalty that could have been
24
imposed for the contravention if subsection (2) had not been
25
enacted; or
26
(b) otherwise--5% of the maximum pecuniary penalty that could
27
have been imposed for the contravention if subsection (2) had
28
not been enacted.
29
30
Part 22
Offences relating to administrative penalties
Section 339
482 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
Offences relating to administrative penalties Part 22
Section 341
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 483
(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
Part 22
Offences relating to administrative penalties
Section 341
484 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
Offences relating to administrative penalties Part 22
Section 341
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 485
(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
Part 23
Enforceable undertakings
Section 342
486 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
Enforceable undertakings Part 23
Section 344
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 487
(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
Part 24
Review of decisions
Section 345
488 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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.
Review of decisions Part 24
Section 346
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 489
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.
27A
A decision to refuse to issue a certificate of entitlement to coal mining
assistance under section 173K.
27B
A decision under subsection 173K(4) to state that a specified number is the
unit entitlement in respect of a certificate of entitlement to coal mining
assistance.
27C
A decision to refuse to make a declaration under section 173R.
27D
A decision under subsection 173R(3) to state that a specified number is the
base period fugitive emissions number in relation to an area of land.
Part 24
Review of decisions
Section 346
490 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Reviewable decisions
Item Decision
27E
A decision under subsection 173R(3) to state that a specified number is the
base period saleable coal number in relation to an area of land.
27F
A decision under subsection 173R(3) to state that a specified number is the
capped base period saleable coal number in relation to an area of land.
27G
A decision under subsection 173R(3) to state that a specified number is the
adjusted base period fugitive emissions intensity number in relation to an
area of land.
27H
A decision under subsection 173R(3) to state that a specified number is the
adjusted base period fugitive emissions number in relation to an area of
land.
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.
32
A decision to refuse to issue a certificate of reforestation under section 195.
32A
A decision to refuse to approve a scheme obligation transfer agreement
under section 197B.
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, 213A, 214, 214A, 214B or 214C 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, 218A, 219 or 219A 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.
Review of decisions Part 24
Section 346
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 491
Reviewable decisions
Item Decision
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.
41A
A decision to make a determination under section 222A or 222B.
42
A decision to make a declaration under subsection 226(2).
42A
A decision under section 226A to vary a forest maintenance obligation
declaration.
42B
A decision under section 226A to refuse to vary a forest maintenance
obligation declaration.
42C
A decision under section 226A to refuse to revoke a forest maintenance
obligation declaration.
42D
A decision under section 226C to make a forest restoration order.
42E
A decision under section 226D to vary a forest restoration order.
42F
A decision under section 226D to refuse to vary a forest restoration order.
42G
A decision under section 226D to refuse to revoke a forest restoration order.
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 make a determination under subsection 243C(2).
44A
A decision to refuse to make a determination under subsection 243C(2).
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.
48A
A prescribed decision under the domestic offsets program.
48B
A decision to refuse to recognise a person as an offsets entity under
section 259P.
48C
A decision to cancel a person's recognition as an offsets entity under
section 259Q.
Part 24
Review of decisions
Section 347
492 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Reviewable decisions
Item Decision
49
A decision under section 262 to refuse to remove an entry for a person in the
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 2010 No. , 2010 493
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
494 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 495
under any other law to order a stay of proceedings.
1
2
Part 25
Independent reviews
Division 1
Simplified outline
Section 352
496 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 497
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
498 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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 2010 No. , 2010 499
(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
(ha) the effectiveness and efficiency of:
9
(i) the domestic offsets program; and
10
(ii) any domestic offsets project methodology
11
determinations;
12
(i) the arrangements for the governance and administration of
13
the carbon pollution reduction scheme, including:
14
(i) the functions and powers of the Authority; and
15
(ia) the functions of the Domestic Offsets Integrity
16
Committee; and
17
(ii) the Minister's power to give directions to the Authority;
18
and
19
(iii) the other powers of the Minister;
20
(j) such other matters (if any) that:
21
(i) are specified in a written instrument given by the
22
Minister to the Chair of the expert advisory committee;
23
and
24
(ii) relate to the carbon pollution reduction scheme.
25
Note:
Expert advisory committees are established under section 357.
26
Timing of reviews
27
(2) The first review must be completed before the end of 30 June
28
2014.
29
(3) Each subsequent review must be completed within 5 years after the
30
last day on which a copy of a statement setting out the
31
Commonwealth Government's response to the recommendations of
32
the previous review was tabled in a House of the Parliament under
33
paragraph 354(6)(b).
34
Part 25
Independent reviews
Division 2
Periodic reviews
Section 354
500 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(4) For the purposes of subsections (2) and (3), a review is completed
1
when the report of the review is given to the Minister under
2
section 354.
3
Consultation
4
(5) In conducting a review, an expert advisory committee must make
5
provision for public consultation.
6
Relevant matters
7
(6) In conducting a review, an expert advisory committee must have
8
regard to:
9
(a) any policies of the Commonwealth Government notified to
10
the expert advisory committee by the Minister; and
11
(b) such other matters as the expert advisory committee
12
considers relevant.
13
Instrument
14
(7) An instrument given under paragraph (1)(j) is not a legislative
15
instrument.
16
354 Report of periodic review
17
(1) An expert advisory committee must:
18
(a) prepare a report of a review under section 353; and
19
(b) give the report to the Minister.
20
(2) The Minister must cause copies of the report to be tabled in each
21
House of the Parliament within 15 sitting days of that House after
22
receiving the report.
23
Recommendations
24
(3) The report may set out recommendations to the Commonwealth
25
Government.
26
(4) In formulating a recommendation that the Commonwealth
27
Government should take particular action, the expert advisory
28
committee must assess the costs and benefits of that action.
29
Independent reviews Part 25
Periodic reviews Division 2
Section 354
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 501
(5) Subsection (4) does not prevent the expert advisory committee
1
from taking other matters into account in formulating a
2
recommendation.
3
Government response to recommendations
4
(6) If a report sets out one or more recommendations to the
5
Commonwealth Government:
6
(a) as soon as practicable after receiving the report, the Minister
7
must cause to be prepared a statement setting out the
8
Commonwealth Government's response to the
9
recommendations; and
10
(b) within 6 months after receiving the report, the Minister must
11
cause copies of the statement to be tabled in each House of
12
the Parliament.
13
(7) The Commonwealth Government's response to the
14
recommendations may have regard to the views of the following:
15
(a)
the
Authority;
16
(b) such other persons as the Minister considers relevant.
17
18
Part 25
Independent reviews
Division 3
Special reviews
Section 355
502 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Division 3--Special reviews
1
355 Special reviews to be conducted by an expert advisory
2
committee--matters specified by Minister
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
355A Special review of carbon pollution reduction scheme to be
23
conducted by an expert advisory committee
24
Scope
25
(1) This section applies if:
26
(a) after the commencement of this section, a new multilateral
27
international agreement is signed on behalf of Australia; and
28
Independent reviews Part 25
Special reviews Division 3
Section 356
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 503
(b) the agreement relates to climate change; and
1
(c)
either:
2
(i) the agreement imposes obligations on Australia to take
3
action to reduce greenhouse gas emissions; or
4
(ii) the agreement is specified in an instrument made by the
5
Minister for the purposes of this subparagraph.
6
Special review of carbon pollution reduction scheme
7
(2) As soon as practicable after the agreement is so signed, an expert
8
advisory committee is to conduct a review of the implications of
9
the agreement for the carbon pollution reduction scheme.
10
Note:
Expert advisory committees are established under section 357.
11
Consultation
12
(3) In conducting a review, an expert advisory committee must make
13
provision for public consultation.
14
Relevant matters
15
(4) In conducting a review, an expert advisory committee must have
16
regard to:
17
(a) any policies of the Commonwealth Government notified to
18
the expert advisory committee by the Minister; and
19
(b) such other matters as the expert advisory committee
20
considers relevant.
21
356 Report of special review
22
(1) An expert advisory committee must:
23
(a) prepare a report of a review under section 355 or 355A; and
24
(b) give the report to the Minister.
25
(2) The Minister must cause copies of the report to be tabled in each
26
House of the Parliament within 15 sitting days of that House after
27
receiving the report.
28
Part 25
Independent reviews
Division 3
Special reviews
Section 356
504 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
Independent reviews Part 25
Expert advisory committees Division 4
Section 357
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 505
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
Part 25
Independent reviews
Division 4
Expert advisory committees
Section 361
506 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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
Independent reviews Part 25
Expert advisory committees Division 4
Section 362
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 507
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
Part 25
Independent reviews
Division 4
Expert advisory committees
Section 363
508 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
Independent reviews Part 25
Expert advisory committees Division 4
Section 364
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 509
(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
Part 25
Independent reviews
Division 4
Expert advisory committees
Section 366
510 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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
Independent reviews Part 25
Expert advisory committees Division 4
Section 370
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 511
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
Part 25
Independent reviews
Division 4
Expert advisory committees
Section 371
512 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
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
Domestic Offsets Integrity Committee Part 25A
Establishment and functions of the Domestic Offsets Integrity Committee Division 1
Section 373A
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 513
Part 25A--Domestic Offsets Integrity Committee
1
Division 1--Establishment and functions of the Domestic
2
Offsets Integrity Committee
3
373A Establishment of the Domestic Offsets Integrity Committee
4
The Domestic Offsets Integrity Committee is established.
5
373B Functions of the Domestic Offsets Integrity Committee
6
(1) The Domestic Offsets Integrity Committee has the following
7
functions:
8
(a) to advise the Minister about matters relating to the making or
9
amendment of domestic offsets project methodology
10
determinations;
11
(b) to advise the Secretary about matters that:
12
(i) relate to offsets projects; and
13
(ii) are referred to the Committee by the Secretary;
14
(c) to do anything incidental to or conducive to the performance
15
of the above functions.
16
(2) In advising the Minister to make or amend a domestic offsets
17
project methodology determination, the Domestic Offsets Integrity
18
Committee must:
19
(a) assess the costs and benefits of making or amending the
20
determination; and
21
(b) have regard to such other matters as the Domestic Offsets
22
Integrity Committee considers relevant.
23
373C Consultation by the Domestic Offsets Integrity Committee
24
Domestic offsets project methodology determination
25
(1) The Domestic Offsets Integrity Committee must not advise the
26
Minister to make or amend a domestic offsets project methodology
27
determination unless the Committee has first:
28
(a) published on the Department's website:
29
Part 25A
Domestic Offsets Integrity Committee
Division 1
Establishment and functions of the Domestic Offsets Integrity Committee
Section 373C
514 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(i) a draft of the determination or amendment; and
1
(ii) a notice inviting the public to make a submission to the
2
Committee on the draft by a specified time limit; and
3
(b) considered any submissions that were received within that
4
time limit.
5
(2) The time limit must not be shorter than 60 days.
6
Work program and priorities
7
(3) At least once each financial year, the Domestic Offsets Integrity
8
Committee must:
9
(a) publish on the Department's website a statement setting out
10
the Committee's draft work program and priorities; and
11
(b) invite the public to make a submission to the Committee on
12
the draft by a specified time limit.
13
(4) The time limit must not be shorter than 60 days.
14
15
Domestic Offsets Integrity Committee Part 25A
Membership of the Domestic Offsets Integrity Committee Division 2
Section 373D
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 515
Division 2--Membership of the Domestic Offsets Integrity
1
Committee
2
373D Membership of the Domestic Offsets Integrity Committee
3
The Domestic Offsets Integrity Committee consists of the
4
following members:
5
(a)
a
Chair;
6
(b) at least 4, and not more than 5, other members.
7
373E Appointment of Domestic Offsets Integrity Committee
8
members
9
(1) Each Domestic Offsets Integrity Committee member is to be
10
appointed by the Minister by written instrument.
11
Note:
The Domestic Offsets Integrity Committee member is eligible for
12
reappointment: see subsection 33(4A) of the Acts Interpretation Act
13
1901.
14
(2) A person is not eligible for appointment as a Domestic Offsets
15
Integrity Committee member unless the Minister is satisfied that
16
the person has:
17
(a) substantial experience or knowledge; and
18
(b)
significant
standing;
19
in at least one field of expertise that is relevant to the functions of
20
the Domestic Offsets Integrity Committee.
21
(3) The Minister must ensure that:
22
(a) the Chair of the Domestic Offsets Integrity Committee is not
23
a person covered by subsection (4); and
24
(b) a majority of the other Domestic Offsets Integrity Committee
25
members are not persons covered by subsection (4).
26
(4) This subsection applies to the following persons:
27
(a) an employee of the Commonwealth;
28
(b) an employee of an authority of the Commonwealth;
29
(c) a person who holds a full-time office under a law of the
30
Commonwealth.
31
Part 25A
Domestic Offsets Integrity Committee
Division 2
Membership of the Domestic Offsets Integrity Committee
Section 373F
516 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(5) The Minister must ensure that one Domestic Offsets Integrity
1
Committee member:
2
(a) is an SES employee in the Department; or
3
(b) holds an Executive Officer (Level 2) position in the
4
Department.
5
(6) The Minister must ensure that one Domestic Offsets Integrity
6
Committee member is an officer of the Commonwealth Scientific
7
and Industrial Research Organisation nominated by the Chief
8
Executive of the Commonwealth Scientific and Industrial Research
9
Organisation.
10
(7) A Domestic Offsets Integrity Committee member holds office on a
11
part-time basis.
12
373F Period for appointment for Domestic Offsets Integrity
13
Committee members
14
A Domestic Offsets Integrity Committee member holds office for
15
the period specified in the instrument of appointment. The period
16
must not exceed 5 years.
17
Note:
For re-appointment, see subsection 33(4A) of the Acts Interpretation
18
Act 1901.
19
373G Acting Domestic Offsets Integrity Committee members
20
Acting Chair of Domestic Offsets Integrity Committee
21
(1) The Minister may appoint a Domestic Offsets Integrity Committee
22
member to act as the Chair of the Domestic Offsets Integrity
23
Committee:
24
(a) during a vacancy in the office of the Domestic Offsets
25
Integrity Committee Chair (whether or not an appointment
26
has previously been made to the office); or
27
(b) during any period, or during all periods, when the Chair of
28
the Domestic Offsets Integrity Committee:
29
(i) is absent from duty or from Australia; or
30
(ii) is, for any reason, unable to perform the duties of the
31
office.
32
Domestic Offsets Integrity Committee Part 25A
Membership of the Domestic Offsets Integrity Committee Division 2
Section 373G
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 517
Acting Domestic Offsets Integrity Committee member (other than
1
the Chair)
2
(2) The Minister may appoint a person to act as a Domestic Offsets
3
Integrity Committee member (other than the Chair of the Domestic
4
Offsets Integrity Committee):
5
(a) during a vacancy in the office of a Domestic Offsets Integrity
6
Committee member (other than the Chair of the Domestic
7
Offsets Integrity Committee), whether or not an appointment
8
has previously been made to the office; or
9
(b) during any period, or during all periods, when a Domestic
10
Offsets Integrity Committee member (other than the Chair of
11
the Domestic Offsets Integrity Committee):
12
(i) is absent from duty or Australia; or
13
(ii) is, for any reason, unable to perform the duties of the
14
office.
15
Eligibility
16
(3) A person is not eligible for appointment to act as:
17
(a) the Chair of the Domestic Offsets Integrity Committee; or
18
(b) a Domestic Offsets Integrity Committee member (other than
19
the Chair of the Domestic Offsets Integrity Committee);
20
unless the person is eligible for appointment as a Domestic Offsets
21
Integrity Committee member.
22
Note:
See subsection 373E(2).
23
Validation
24
(4) Anything done by or in relation to a person purporting to act under
25
an appointment is not invalid merely because:
26
(a) the occasion for the appointment had not arisen; or
27
(b) there was a defect or irregularity in connection with the
28
appointment; or
29
(c) the appointment ceased to have effect; or
30
(d) the occasion to act had not arisen or had ceased.
31
Note:
See sections 20 and 33A of the Acts Interpretation Act 1901.
32
Part 25A
Domestic Offsets Integrity Committee
Division 2
Membership of the Domestic Offsets Integrity Committee
Section 373H
518 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
373H Procedures
1
(1) The regulations may prescribe the procedures to be followed at or
2
in relation to meetings of the Domestic Offsets Integrity
3
Committee, including matters relating to the following:
4
(a) the convening of meetings of the Domestic Offsets Integrity
5
Committee;
6
(b) the number of Domestic Offsets Integrity Committee
7
members who are to constitute a quorum;
8
(c) the selection of a Domestic Offsets Integrity Committee
9
member to preside at meetings of the Domestic Offsets
10
Integrity Committee in the absence of the Chair of the
11
Domestic Offsets Integrity Committee;
12
(d) the manner in which questions arising at a meeting of the
13
Domestic Offsets Integrity Committee are to be decided.
14
(2) A resolution is taken to have been passed at a meeting of the
15
Domestic Offsets Integrity Committee if:
16
(a) without meeting, a majority of Domestic Offsets Integrity
17
Committee members indicate agreement with the resolution
18
in accordance with the method determined by the Domestic
19
Offsets Integrity Committee under subsection (3); and
20
(b) all Domestic Offsets Integrity Committee members were
21
informed of the proposed resolution, or reasonable efforts
22
had been made to inform all Domestic Offsets Integrity
23
Committee members of the proposed resolution.
24
(3) Subsection (2) applies only if the Domestic Offsets Integrity
25
Committee:
26
(a) determines that it applies; and
27
(b) determines the method by which Domestic Offsets Integrity
28
Committee members are to indicate agreement with
29
resolutions.
30
(4) If a Domestic Offsets Integrity Committee member is an APS
31
employee in the Department, the member:
32
(a) is not entitled to vote for a resolution at a meeting of the
33
Domestic Offsets Integrity Committee; and
34
Domestic Offsets Integrity Committee Part 25A
Membership of the Domestic Offsets Integrity Committee Division 2
Section 373J
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 519
(b) is not entitled to indicate agreement with a resolution as
1
mentioned in paragraph (2)(a); and
2
(c) is not to be counted for the purposes of determining whether
3
a majority of Domestic Offsets Integrity Committee
4
members:
5
(i) have voted for a resolution at a meeting of the Domestic
6
Offsets Integrity Committee; or
7
(ii) have indicated agreement with a resolution as
8
mentioned in paragraph (2)(a).
9
373J Disclosure of interests to the Minister
10
A Domestic Offsets Integrity Committee member must give
11
written notice to the Minister of all interests, pecuniary or
12
otherwise, that the member has or acquires and that conflict or
13
could conflict with the proper performance of the member's
14
functions.
15
373K Disclosure of interests to Domestic Offsets Integrity
16
Committee
17
(1) A Domestic Offsets Integrity Committee member who has an
18
interest, pecuniary or otherwise, in a matter being considered or
19
about to be considered by the Domestic Offsets Integrity
20
Committee must disclose the nature of the interest to a meeting of
21
the Domestic Offsets Integrity Committee.
22
(2) The disclosure must be made as soon as possible after the relevant
23
facts have come to the Domestic Offsets Integrity Committee
24
member's knowledge.
25
(3) The disclosure must be recorded in the minutes of the meeting of
26
the Domestic Offsets Integrity Committee.
27
(4) Unless the Domestic Offsets Integrity Committee otherwise
28
determines, the Domestic Offsets Integrity Committee member:
29
(a) must not be present during any deliberation by the Domestic
30
Offsets Integrity Committee on the matter; and
31
(b) must not take part in any decision of the Domestic Offsets
32
Integrity Committee with respect to the matter.
33
Part 25A
Domestic Offsets Integrity Committee
Division 2
Membership of the Domestic Offsets Integrity Committee
Section 373L
520 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(5) For the purposes of making a determination under subsection (4),
1
the Domestic Offsets Integrity Committee member:
2
(a) must not be present during any deliberation of the Domestic
3
Offsets Integrity Committee for the purpose of making the
4
determination; and
5
(b) must not take part in making the determination.
6
(6) A determination under subsection (4) must be recorded in the
7
minutes of the meeting of the Domestic Offsets Integrity
8
Committee.
9
373L Outside employment
10
A Domestic Offsets Integrity Committee member must not engage
11
in any paid employment that conflicts or may conflict with the
12
proper performance of his or her duties.
13
373M Remuneration and allowances
14
(1) A Domestic Offsets Integrity Committee member is to be paid the
15
remuneration that is determined by the Remuneration Tribunal. If
16
no determination of that remuneration by the Tribunal is in
17
operation, the member is to be paid the remuneration that is
18
prescribed.
19
(2) A Domestic Offsets Integrity Committee member is to be paid the
20
allowances that are prescribed.
21
(3) This section has effect subject to the Remuneration Tribunal Act
22
1973.
23
373N Leave of absence
24
(1) The Minister may grant leave of absence to the Chair of the
25
Domestic Offsets Integrity Committee on the terms and conditions
26
that the Minister determines.
27
(2) The Chair of the Domestic Offsets Integrity Committee may grant
28
leave of absence to a Domestic Offsets Integrity Committee
29
member on the terms and conditions that the Chair determines.
30
Domestic Offsets Integrity Committee Part 25A
Membership of the Domestic Offsets Integrity Committee Division 2
Section 373P
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 521
373P Resignation
1
(1) A Domestic Offsets Integrity Committee member may resign his or
2
her appointment by giving the Minister a written resignation.
3
(2) The resignation takes effect on the day it is received by the
4
Minister or, if a later day is specified in the resignation, on that
5
later day.
6
373Q Termination of appointment
7
(1) The Minister may terminate the appointment of a Domestic Offsets
8
Integrity Committee member for misbehaviour or physical or
9
mental incapacity.
10
(2) The Minister may terminate the appointment of a Domestic Offsets
11
Integrity Committee member if:
12
(a)
the
member:
13
(i) becomes bankrupt; or
14
(ii) applies to take the benefit of any law for the relief of
15
bankrupt or insolvent debtors; or
16
(iii) compounds with his or her creditors; or
17
(iv) makes an assignment of remuneration for the benefit of
18
his or her creditors; or
19
(b) the member is absent, except on leave of absence, for 3
20
consecutive meetings of the Domestic Offsets Integrity
21
Committee; or
22
(c) the member engages in paid employment that conflicts or
23
may conflict with the proper performance of his or her duties
24
(see section 373L); or
25
(d) the member fails, without reasonable excuse, to comply with
26
section 373J or 373K.
27
(3) The Minister may terminate the appointment of the Chair of the
28
Domestic Offsets Integrity Committee if the Chair is:
29
(a) an employee of the Commonwealth; or
30
(b) an employee of an authority of the Commonwealth; or
31
(c) a person who holds a full-time office under a law of the
32
Commonwealth.
33
Part 25A
Domestic Offsets Integrity Committee
Division 2
Membership of the Domestic Offsets Integrity Committee
Section 373R
522 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(4) The Minister may terminate the appointment of a Domestic Offsets
1
Integrity Committee member if the member is a director, officer or
2
employee of another person who is, or is likely to be, a liable entity
3
for the eligible financial year in which the termination occurs.
4
373R Other terms and conditions
5
A Domestic Offsets Integrity Committee member holds office on
6
the terms and conditions (if any) in relation to matters not covered
7
by this Act that are determined by the Minister.
8
373S Assistance to Domestic Offsets Integrity Committee
9
(1) Any or all of the following:
10
(a)
the
Authority;
11
(b)
the
Department;
12
(c) any other Department, agency or authority of the
13
Commonwealth;
14
may assist the Domestic Offsets Integrity Committee in the
15
performance of its functions.
16
(2) The assistance may include the following:
17
(a) the provision of information;
18
(b) the provision of advice;
19
(c) the making available of resources and facilities (including
20
secretariat services and clerical assistance).
21
373T Consultants
22
(1) The Chair of the Domestic Offsets Integrity Committee may, on
23
behalf of the Commonwealth, engage persons having suitable
24
qualifications and experience as consultants to the Committee.
25
(2) The consultants are to be engaged on the terms and conditions that
26
the Chair determines in writing.
27
28
Miscellaneous Part 26
Section 374
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 523
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
Part 26
Miscellaneous
Section 374B
524 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(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
374B Authority's power to require further information
12
Applications
13
(1)
If:
14
(a) a person makes an application to the Authority under this
15
Act; and
16
(b) the Authority exercises a power, under another provision of
17
this Act, to require the applicant to give the Authority further
18
information in connection with the application;
19
the Authority:
20
(c) must ensure that the further information is relevant to the
21
matter to which the application relates; and
22
(d) must ensure that the power is exercised in a reasonable way.
23
Requests
24
(2)
If:
25
(a) a person makes a request to the Authority under this Act; and
26
(b) the Authority exercises a power, under another provision of
27
this Act, to require the person to give the Authority further
28
information in connection with the request;
29
the Authority:
30
(c) must ensure that the further information is relevant to the
31
matter to which the request relates; and
32
Miscellaneous Part 26
Section 375
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 525
(d) must ensure that the power is exercised in a reasonable way.
1
375 Delegation by the Minister
2
(1) The Minister may, by writing, delegate any or all of his or her
3
functions or powers under this Act or the regulations to:
4
(a) the Secretary; or
5
(b) an SES employee, or acting SES employee, in the
6
Department.
7
Note: The
expressions
SES employee and acting SES employee are defined
8
in section 17AA of the Acts Interpretation Act 1901.
9
(2) In exercising powers under a delegation, the delegate must comply
10
with any directions of the Minister.
11
(3) Subsection (1) does not apply to a power to make, vary or revoke a
12
legislative instrument.
13
375A Delegation by a State Minister or a Territory Minister
14
(1) A Minister of a State or Territory may, by writing, delegate any or
15
all of his or her functions or powers under this Act to a person
16
who:
17
(a) is an officer or employee of the State or Territory, as the case
18
may be; and
19
(b) holds or performs the duties of an office or position that is
20
equivalent to a position occupied by an SES employee in the
21
Australian Public Service.
22
(2) In exercising powers under a delegation, the delegate must comply
23
with any directions of the Minister of the State or the Minister of
24
the Territory, as the case may be.
25
375B Delegation by the Secretary
26
(1) The Secretary may, by writing, delegate any or all of his or her
27
functions or powers under this Act to an SES employee, or acting
28
SES employee, in the Department.
29
Note: The
expressions
SES employee and acting SES employee are defined
30
in section 17AA of the Acts Interpretation Act 1901.
31
Part 26
Miscellaneous
Section 376
526 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(2) In exercising powers under a delegation, the delegate must comply
1
with any directions of the Secretary.
2
376 Concurrent operation of State and Territory laws
3
This Act is not intended to exclude or limit the operation of a law
4
of a State or Territory that is capable of operating concurrently
5
with this Act.
6
377 Law relating to legal professional privilege not affected
7
The Act does not affect the law relating to legal professional
8
privilege.
9
378 Arrangements with States and Territories
10
States
11
(1) The Minister may make arrangements with a Minister of a State
12
with respect to the administration of this Act, including:
13
(a) arrangements for the performance of the functions of a
14
magistrate under this Act by a magistrate of that State; and
15
(b) arrangements for the exercise of the powers conferred by
16
section 236 on relevant land registration officials (within the
17
meaning of that section) of that State; and
18
(c) arrangements for the exercise of the powers conferred by
19
section 237 on relevant land registration officials (within the
20
meaning of that section) of that State.
21
(2) The Minister may arrange with a Minister of a State with whom an
22
arrangement is in force under subsection (1) for the variation or
23
revocation of the arrangement.
24
Australian Capital Territory
25
(3) The Minister may make arrangements with a Minister of the
26
Australian Capital Territory with respect to the administration of
27
this Act, including:
28
Miscellaneous Part 26
Section 378
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 527
(a) arrangements for the performance of the functions of a
1
magistrate under this Act by a magistrate of the Australian
2
Capital Territory; or
3
(b) arrangements for the exercise of the powers conferred by
4
section 236 on relevant land registration officials (within the
5
meaning of that section) of the Australian Capital Territory;
6
and
7
(c) arrangements for the exercise of the powers conferred by
8
section 237 on relevant land registration officials (within the
9
meaning of that section) of the Australian Capital Territory.
10
(4) The Minister may arrange with a Minister of the Australian Capital
11
Territory for the variation or revocation of an arrangement in force
12
under subsection (3).
13
Northern Territory
14
(5) The Minister may make arrangements with a Minister of the
15
Northern Territory with respect to the administration of this Act,
16
including:
17
(a) arrangements for the performance of the functions of a
18
magistrate under this Act by a magistrate of the Northern
19
Territory; and
20
(b) arrangements for the exercise of the powers conferred by
21
section 236 on relevant land registration officials (within the
22
meaning of that section) of the Northern Territory; and
23
(c) arrangements for the exercise of the powers conferred by
24
section 237 on relevant land registration officials (within the
25
meaning of that section) of the Northern Territory.
26
(6) The Minister may arrange with a Minister of the Northern Territory
27
for the variation or revocation of an arrangement in force under
28
subsection (5).
29
Norfolk Island
30
(7) The Minister may make arrangements with a Minister of Norfolk
31
Island with respect to the administration of this Act, including:
32
Part 26
Miscellaneous
Section 379
528 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
(a) arrangements for the performance of the functions of a
1
magistrate under this Act by a magistrate of Norfolk Island;
2
and
3
(b) arrangements for the exercise of the powers conferred by
4
section 236 on relevant land registration officials (within the
5
meaning of that section) of Norfolk Island; and
6
(c) arrangements for the exercise of the powers conferred by
7
section 237 on relevant land registration officials (within the
8
meaning of that section) of Norfolk Island.
9
(8) The Minister may arrange with a Minister of Norfolk Island for the
10
variation or revocation of an arrangement in force under
11
subsection (7).
12
Gazettal
13
(9) A copy of each instrument by which an arrangement under this
14
section is made, varied or revoked is to be published in the Gazette.
15
Legislative Instruments Act
16
(10) An instrument by which an arrangement under this section is made,
17
varied or revoked is not a legislative instrument.
18
379 Liability for damages
19
None of the following:
20
(a)
the
Minister;
21
(b) a delegate of the Minister;
22
(c)
the
Authority;
23
(d) an official of the Authority;
24
(e) a delegate of the Authority;
25
(f) a member of an expert advisory committee;
26
(fa) a Domestic Offsets Integrity Committee member;
27
is liable to an action or other proceeding for damages for, or in
28
relation to, an act or matter in good faith done or omitted to be
29
done:
30
(g) in the performance or purported performance of any function;
31
or
32
Miscellaneous Part 26
Section 380
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 529
(h) in the exercise or purported exercise of any power;
1
conferred by this Act or the associated provisions.
2
380 Executive power of the Commonwealth
3
This Act does not, by implication, limit the executive power of the
4
Commonwealth.
5
381 Notional payments by the Commonwealth
6
(1) The purpose of this section is to ensure that amounts payable under
7
this Act are notionally payable by the Commonwealth (or parts of
8
the Commonwealth).
9
(2) The Minister responsible for administering the Financial
10
Management and Accountability Act 1997 may give written
11
directions for the purposes of this section, including directions
12
relating to the transfer of amounts within, or between, accounts
13
operated by the Commonwealth.
14
382 Alternative constitutional basis
15
(1) Without limiting its effect apart from this section, this Act and the
16
associated provisions also have effect as provided by this section.
17
Limited types of liable entities
18
(2) This Act and the associated provisions also have the effect they
19
would have if:
20
(a) subsections (3) to (6) had not been enacted; and
21
(b) each reference in this Act and the associated provisions to a
22
liable entity were, by express provision, confined to a liable
23
entity who is:
24
(i) a constitutional corporation; or
25
(ii) the Commonwealth; or
26
(iii) an authority of the Commonwealth.
27
Part 26
Miscellaneous
Section 382
530 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Limited types of facilities
1
(3) This Act and the associated provisions also have the effect they
2
would have if subsection (2) had not been enacted and each
3
reference in this Act and the associated provisions to a facility
4
were, by express provision, confined to a facility:
5
(a) in a Territory; or
6
(b) outside Australia; or
7
(c) in a Commonwealth place; or
8
(d) over which the Commonwealth, or an authority of the
9
Commonwealth, has operational control; or
10
(e) operated in the course of, or in relation to, any of the
11
following:
12
(i) trade or commerce between Australia and places outside
13
Australia;
14
(ii) trade or commerce among the States;
15
(iii) trade or commerce within a Territory, between a State
16
or Territory or between 2 Territories.
17
Limited types of supply or re-supply
18
(4) This Act and the associated provisions also have the effect they
19
would have if subsection (2) had not been enacted and each
20
reference in this Act and the associated provisions to supply or
21
re-supply were, by express provision, confined to supply or
22
re-supply:
23
(a) in a Territory; or
24
(b) outside Australia; or
25
(c) in a Commonwealth place; or
26
(d) by the Commonwealth or an authority of the Commonwealth;
27
or
28
(e) in the course of, or in relation to, any of the following:
29
(i) trade or commerce between Australia and places outside
30
Australia;
31
(ii) trade or commerce among the States;
32
(iii) trade or commerce within a Territory, between a State
33
or Territory or between 2 Territories.
34
Miscellaneous Part 26
Section 382
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 531
Limited types of application to own use
1
(5) This Act and the associated provisions also have the effect they
2
would have if subsection (2) had not been enacted and each
3
reference in this Act and the associated provisions to application to
4
own use were, by express provision, confined to application to own
5
use:
6
(a) in a Territory; or
7
(b) outside Australia; or
8
(c) in a Commonwealth place; or
9
(d) by the Commonwealth or an authority of the Commonwealth;
10
or
11
(e) in the course of, or in relation to, any of the following:
12
(i) trade or commerce between Australia and places outside
13
Australia;
14
(ii) trade or commerce among the States;
15
(iii) trade or commerce within a Territory, between a State
16
or Territory or between 2 Territories.
17
Limited types of manufacture or production
18
(6) This Act and the associated provisions also have the effect they
19
would have if subsection (2) had not been enacted and each
20
reference in this Act and the associated provisions to manufacture
21
or production were, by express provision, confined to manufacture
22
or production:
23
(a) in a Territory; or
24
(b) outside Australia; or
25
(c) in a Commonwealth place; or
26
(d) by the Commonwealth or an authority of the Commonwealth;
27
or
28
(e) in the course of, or in relation to, any of the following:
29
(i) trade or commerce between Australia and places outside
30
Australia;
31
(ii) trade or commerce among the States;
32
(iii) trade or commerce within a Territory, between a State
33
or Territory or between 2 Territories.
34
Part 26
Miscellaneous
Section 382
532 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
Emissions-intensive trade-exposed assistance program
1
(7) This Act and the associated provisions also have the effect they
2
would have if the reference in subsection 167(1) to the issue of free
3
Australian emissions units were, by express provision, confined to
4
the issue of free Australian emissions units to a person who is:
5
(a) a constitutional corporation; or
6
(b) the Commonwealth; or
7
(c) an authority of the Commonwealth.
8
Coal mining
9
(7A) This Act and the associated provisions also have the effect they
10
would have if this Act provided that a person is not entitled to
11
make an application under section 173G or 173N unless the person
12
is:
13
(a) a constitutional corporation; or
14
(b) the Commonwealth; or
15
(c) an authority of the Commonwealth.
16
Coal-fired electricity generation
17
(8) This Act and the associated provisions also have the effect they
18
would have if this Act provided that a person is not entitled to
19
make an application under section 177 for a certificate of eligibility
20
for coal-fired generation assistance unless the person is:
21
(a) a constitutional corporation; or
22
(b) the Commonwealth; or
23
(c) an authority of the Commonwealth.
24
Reforestation
25
(9) This Act and the associated provisions also have the effect they
26
would have if each reference in this Act to a reforestation project
27
were, by express provision, confined to:
28
(a) a reforestation project, where the project manager for the
29
project is:
30
(i) a constitutional corporation; or
31
(ii) the Commonwealth; or
32
Miscellaneous Part 26
Section 383
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 533
(iii) an authority of the Commonwealth; or
1
(b) a reforestation project, where the project area is, or the
2
project areas are:
3
(i) in a Territory; or
4
(ii) in a Commonwealth place.
5
(9A) This Act and the associated provisions also have the effect they
6
would have if each reference in sections 226 and 226C to a person
7
were, by express provision, confined to:
8
(a) a constitutional corporation; or
9
(b) the Commonwealth; or
10
(c) an authority of the Commonwealth.
11
Destruction of synthetic greenhouse gases
12
(10) This Act and the associated provisions also have the effect they
13
would have if this Act provided that a person is not entitled to
14
make an application under section 246 for a certificate of eligible
15
synthetic greenhouse gas destruction unless the person is:
16
(a) a constitutional corporation; or
17
(b) the Commonwealth; or
18
(c) an authority of the Commonwealth.
19
Domestic offsets program
20
(11) This Act and the associated provisions also have the effect they
21
would have if the reference in subsection 259B(1) to the issue of
22
free Australian emissions units were, by express provision,
23
confined to the issue of free Australian emissions units to a person
24
who is:
25
(a) a constitutional corporation; or
26
(b) the Commonwealth; or
27
(c) an authority of the Commonwealth.
28
383 Compensation for acquisition of property
29
(1) If the operation of this Act or the regulations would result in an
30
acquisition of property from a person otherwise than on just terms,
31
Part 26
Miscellaneous
Section 384
534 Carbon Pollution Reduction Scheme Bill 2010 No. , 2010
the Commonwealth is liable to pay a reasonable amount of
1
compensation to the person.
2
(2) If the Commonwealth and the person do not agree on the amount
3
of the compensation, the person may institute proceedings in a
4
court of competent jurisdiction for the recovery from the
5
Commonwealth of such reasonable amount of compensation as the
6
court determines.
7
(3) In this section:
8
acquisition of property has the same meaning as in paragraph
9
51(xxxi) of the Constitution.
10
just terms has the same meaning as in paragraph 51(xxxi) of the
11
Constitution.
12
384 Prescribing matters by reference to other instruments
13
(1) The regulations may make provision in relation to a matter by
14
applying, adopting or incorporating, with or without modification,
15
a matter contained in an instrument or writing:
16
(a) as in force or existing at a particular time; or
17
(b) as in force or existing from time to time.
18
(2) Subsection (1) has effect despite anything in subsection 14(2) of
19
the Legislative Instruments Act 2003.
20
(3) If the regulations make provision in relation to a matter by
21
applying, adopting or incorporating, with or without modification,
22
a matter contained in an instrument or writing, the Authority must
23
ensure that the text of the matter applied, adopted or incorporated
24
is published on its website.
25
(4) Subsection (3) does not apply if the publication would infringe
26
copyright.
27
385 Administrative decisions under the regulations
28
The regulations may make provision in relation to a matter by
29
conferring a power to make a decision of an administrative
30
character on the Authority.
31
Miscellaneous Part 26
Section 386
Carbon Pollution Reduction Scheme Bill 2010 No. , 2010 535
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 2010 had commenced at the
10
same time as section 3 of this Act.
11
(3) However, to the extent to which the definition is relevant to the
12
interpretation of Part 8A (coal mining) of this Act, the definition
13
has effect as if:
14
(a)
the
National Greenhouse and Energy Reporting Act 2007 had
15
commenced on 1 July 2007; and
16
(b) the amendments of that Act made by Part 2 of Schedule 1 to
17
the Carbon Pollution Reduction Scheme (Consequential
18
Amendments) Act 2010 had commenced immediately after
19
the start of 1 July 2007.
20
387 Regulations
21
The Governor-General may make regulations prescribing matters:
22
(a) required or permitted by this Act to be prescribed; or
23
(b) necessary or convenient to be prescribed for carrying out or
24
giving effect to this Act.
25