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2008 - 2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
NATIONAL GREENHOUSE AND ENERGY REPORTING
AMENDMENT BILL 2009
REVISED EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Climate Change and Water,
Senator the Honourable Penny Wong)
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY
THE HOUSE OF REPRESENTATIVES
TO THE BILL AS INTRODUCED
NATIONAL GREENHOUSE AND ENERGY REPORTING
AMENDMENT BILL 2008
GENERAL OUTLINE
The National Greenhouse and Energy Reporting Amendment Bill 2009 (the Bill)
makes minor amendments to the National Greenhouse and Energy Reporting Act
2007 (the Act) to better reflect the original policy intent of the Act, and
to better facilitate its administration.
In particular, the Bill will:
. Clarify the definitions of a number of terms relating to greenhouse and
energy audits to be conducted under the Act;
. Require results of greenhouse and energy audits to be included on the
register established under section 16 of the Act;
. Extend the secrecy requirements to also cover audit information;
. Allow for decisions made by the Greenhouse and Energy Data Officer
(GEDO) not to register an auditor under the Act to be reviewed by the
Administrative Appeals Tribunal;
. Give the GEDO authority to audit entities who report under section 20
of the Act;
. Expand the scope of the legislative instrument to be determined under
section 75 of the Act to include requirements for the preparation,
conduct and reporting of audits and allow for these requirements to be
determined by the Minister rather than the GEDO;
. Require potential auditors under the Act to apply to the GEDO for
registration and allow for detailed requirements on auditor
registration to be provided in regulations and a legislative instrument
determined by the GEDO;
. Make a number of administrative amendments consequential to the
substantive amendments outlined above;
. Repeal the requirement for the GEDO to publish corporate level energy
production information;
. Increase flexibility in establishing reporting arrangements under the
NGER system prior to the deadline for reporting from the first NGER
reporting year of 2008-2009 by introducing Reporting Transfer
Certificates (RTC); and
. Allow the voluntary transfer of reporting obligations of a facility
specified under the Act from a controlling corporation where one member
of its group has operational control of the facility to another member
of a different corporate group that has financial control of the
facility. The RTC provisions closely reflects the proposed Category B
Liability Transfer Certificate (LTC) provisions outlined in the Carbon
Pollution Reduction Scheme (CPRS) Bill 2009 to promote consistency in
the terminology, concepts and rules between the existing NGER Act
reporting regime and a future CPRS.
FINANCIAL IMPACT STATEMENT
The Bill will have no financial impact.
NOTES ON INDIVIDUAL CLAUSES
Clause 1 - Short Title
1. This clause is a formal provision specifying the title of the Bill.
Clause 2 - Commencement
2. This clause sets out that the provisions of the Bill will commence or be
taken to commence according to the table entitled 'Commencement
information'.
3. The measures in sections 1 to 3 and anything in this Act not covered
elsewhere in the table are to commence the day on which this Act receives
Royal Assent.
4. The measures in Schedule 1 are to commence on the 28th day after the day
on which this Act receives the Royal Assent.
5. The measures in Schedule 2, Part 1 are to commence the day after this
Act receives the Royal Assent.
6. The measures in Schedule 2, Part 2 are to commence on the later of the
commencement of section 3 of the Carbon Pollution Reduction Scheme Act 2009
and immediately after the commencement of Part 1 of Schedule 2 of this Act.
7. The measures in Schedule 2, Part 3 are to commence at the same time as
Part 2 of Schedule 1 to the Carbon Pollution Reduction Scheme
(Consequential Amendments) Act 2009.
Clause 3 - Schedules
8. This is a formal clause providing that each Act specified in a
Schedule is amended or repealed as set out in the applicable items
in the Schedule concerned, and any other item in a Schedule has
effect according to its terms.
SCHEDULE 1 - AMENDMENTS
Part 1 - Amendments relating to audits
National Greenhouse and Energy Reporting Act 2007
- Section 7
9. This item provides a definition of 'audit information' to allow for
protection of information collected during audits by the secrecy
provisions outlined in section 23 of the Act.
- Section 7
10. This item defines 'audit team leader' as a person appointed to
conduct a greenhouse and energy audit under sections 73 to 74A of
the Act. The audit team leader will lead the audit team and has
responsibility for the overall conduct and sign-off of greenhouse
and energy audits conducted under the Act.
- Section 7
11. This item defines 'audit team member' as a person who assists the
'audit team leader' with audits under sections 73 to 74A of the Act.
The use of audit teams is designed to enable cross-disciplinary
expertise to be utilised in the audit.
- Section 7 (definition of external auditor)
12. This item repeals the definition of 'external auditor' to be
replaced by the new terms 'audit team leader' and 'registered
greenhouse and energy auditor'. This is to address stakeholder
confusion about the use of the term 'external auditor'. Requirements
for auditors, including independence, qualifications and expertise,
will be developed under the new section 75A (see Item 39).
- Section 7
13. This item provides a definition for a 'greenhouse and energy audit'
as a replacement for the term 'external audit'. Many stakeholders
provided feedback that the name 'external audit' was confusing. The
new term directly links the name of the audit to the subject matter
- greenhouse and energy information. The term audit is used as a
generic indicator of the type of activity to be undertaken and does
not have the same meaning as that applied under the Corporations Act
2001.
14. The details of the types of audits to be conducted under the Act
will be contained in the legislative instrument determined under
section 75 of the Act. This will most likely include requirements
for both assurance engagements and other audit / verification
procedures.
- Section 7
15. This item provides a definition for 'registered greenhouse and
energy auditor' in line with later amendments establishing a
registration requirement for individuals to operate as auditors
under the Act. See item 36 for more detail on registration of
auditors.
- At the end of paragraph 16(4)(b)
16. This item allows for regulations to be made for the results of
greenhouse and energy audits to be included on the (corporation)
register established by section 16 of the Act. This will allow for
the GEDO to publish the 'results' of audits. The GEDO currently has
no power to disclose information on the outcomes of audits to the
public.
17. Stakeholders have indicated a significant interest in audit outcomes
to assist them understand the reliability of a corporation's
published greenhouse and energy information. Any decision by the
GEDO to publish such data would have to take a variety of issues
into account including the possibility of publishing inaccurate
information and the potential impacts on audited companies.
- Paragraph 23(1)(a)
18. This item will ensure that the secrecy provisions apply to audit
information by establishing an offence for release of 'audit
information' other than for the purposes of the Act or other
Commonwealth, State or Territory laws.
- Paragraph 23(2)(d)
19. This item replaces the term 'external auditor' with 'audit team
leader'. This is an administrative amendment consequential to the
change in terminology outlined in Items 2 and 4.
- Paragraph 23(2)(d)
20. This item will ensure that the requirement to keep certain
information secret will also apply to any audit team members
appointed by the audit team leader. The audit team leader will also
be responsible for ensuring audit team members are aware of their
obligations under the Act.
- Subsection 30(2)
21. This item is an administrative amendment consequential to the
addition of the new section 73A outlined in Item 24.
- Paragraph 30(2) (paragraph (b) of the civil penalty)
22. This item is an administrative amendment consequential to the
addition of the new section 73A outlined in Item 24.
- Section 56
23. This item in conjunction with Item 14 clarifies that the list of
decisions reviewable by the Administrative Appeals Tribunal is a
list of options rather than a list of activities to be undertaken
together.
- Paragraphs 56(a) to (h)
24. This item in conjunction with Item 13 clarifies that the list of
decisions reviewable by the Administrative Appeals Tribunal is a
list of options rather than a list of activities to be undertaken
together.
- At the end of section 56
25. This item allows decisions by the GEDO not to register an individual
as an auditor under section 75A to be reviewed by the Administrative
Appeals Tribunal. It is intended that other decisions relating to
the registration of auditors will also be reviewable but will be
included in regulations to be developed under this section.
- Subdivision G of Division 4 of Part 6 (heading)
26. This item is an administrative amendment consequential to the change
of terminology from 'external audits' to 'greenhouse and energy
audits' as outlined in Item 5.
- Paragraph 73(2)(a)
27. This item allows for the GEDO to provide a list of possible auditors
to a corporation in a written notice requiring an audit to be
undertaken rather than only being able to specify a single auditor.
This item also makes a number of administrative amendments
consequential to the change of terminology from 'external auditor'
to 'registered greenhouse and energy auditor' as outlined in Items 4
and 6.
- Paragraph 73(2)(b)
28. This item replaces the term 'external auditor' with 'audit team
leader'. This is an administrative amendment consequential to the
change in terminology outlined in Items 2 and 4.
- Paragraph 73(2)(b)
29. This item removes the term 'external' from a reference to audits
conducted under the Act. This item is an administrative amendment
consequential to the change in terminology from 'external audits' to
'greenhouse and energy audits' outlined in Item 5.
- Paragraph 73(2)(c)
30. This item replaces the term 'external auditor' with 'audit team
leader'. This is an administrative amendment consequential to the
change in terminology outlined in Items 2 and 4.
- Before paragraph 73(3)(a)
31. This item requires that any notice provided by the GEDO under this
section specify the type of audit to be undertaken in addition to
the matters to be covered by the audit. The types of audits will be
covered in the legislative instrument to be determined under
section 75 of the Act.
- Subsection 73(4)
32. This item replaces 'external auditor' with 'audit team leader and
any audit team members' to clarify that corporate group members
being audited must provide 'all reasonable facilities and assistance
necessary for the effective exercise' of the duties of the auditor
to all members of the audit team rather than just the audit team
leader.
- Subsection 73(4)
33. This item replaces the term 'external auditor' with 'audit team
leader'. This is an administrative amendment consequential to the
change in terminology outlined in Items 2 and 4.
- After section 73
34. This item creates a new section 73A that replicates section 73 but
allows for audits of entities that have provided information to the
GEDO under section 20 of the Act. The information provided by these
entities relates to the emissions and energy of facilities under the
operational control of registered corporations under the Act. This
amendment will ensure that entities that provide information to the
GEDO via section 20 of the Act will also be subject to audit
provisions.
- Subsection 74(1)
35. This item replaces 'an external auditor' with 'a registered
greenhouse and energy auditor as an audit team leader'. This
amendment is consequential to separating out the concepts of the
'audit team leader' and the 'registered greenhouse and energy
auditor'. In order to conduct audits under the Act individuals will
need to register with the GEDO under the new section 75A (see Item
36). Registered greenhouse and energy auditors will then be
appointed as 'audit team leaders' either by the GEDO or by the
entity being audited. Appointed audit team leaders will be required
to conduct greenhouse and energy audits in accordance with the
requirements outlined in the legislative instrument determined under
section 75 of the Act.
- Subsection 74(1)
36. This item removes the term 'external' from a reference to audits
conducted under the Act. This item is an administrative amendment
consequential to the change in terminology from 'external audits' to
'greenhouse and energy audits' outlined in Item 5.
- Subsection 74(2)
37. This item replaces 'auditor' with the term 'audit team leader'. This
amendment is consequential to the change in terminology outlined in
Items 2 and 4.
- Paragraph 74(2)(a)
38. This item replaces 'external auditor' with the term 'audit team
leader'. This is an administrative amendment consequential to the
change in terminology outlined in Items 2 and 4.
- After paragraph 74(2)(b)
39. This item requires that any notice provided by the GEDO under this
section specify the type of audit that will be undertaken in
addition to the matters to be covered by the audit. The types of
audits will be covered in the legislative instrument to be
determined under section 75 of the Act.
- Subsection 74(2A)
40. This item replaces 'external auditor' with 'audit team leader and
any audit team members' to clarify that corporate group members
being audited must provide 'all reasonable facilities and assistance
necessary for the effective exercise' of the duties of the auditor
to all members of the audit team rather than just the audit team
leader.
- Subsection 74(2A)
41. This item replaces 'external auditor's' with the term 'audit team
leader's'. This is an administrative amendment consequential to the
change in terminology outlined in Items 2 and 4.
- Subsection 74(3)
42. This item replaces 'external auditor' with the term 'audit team
leader'. This is an administrative amendment consequential to the
change in terminology outlined in Items 2 and 4.
- Subsection 74(3)
43. This item removes the term 'external' from a reference to audits
conducted under the Act. This item is an administrative amendment
consequential to the change in terminology from 'external audits' to
'greenhouse and energy audits' outlined in Item 5.
- After section 74
44. Similarly to Item 24, this item creates a new section 74A that
replicates section 74 but allows for audits of entities that have
provided information to the GEDO under section 20 of the Act. The
information provided by these entities relates to the emissions and
energy of facilities under the operational control of registered
corporations under the Act. This amendment will ensure that entities
that provide information to the GEDO via section 20 of the Act will
also be subject to audit provisions.
- Section 75
45. This item replaces the existing section 75 with a new section
similar in purpose to the existing section but with a number of
amendments to clarify its application.
46. The item will allow for the Minister to determine the requirements
for the preparation, conduct and reporting of audits by legislative
instrument under the Act rather than the GEDO.
47. The item replaces the term 'guidelines' with 'requirements' in
relation to the power to determine a legislative instrument for the
preparation, conduct and reporting of audits. This will allow for
more specific and detailed requirements to be determined rather than
only guidelines.
48. The item replaces the term 'external auditor' with 'audit team
leader'. This is an administrative amendment consequential to the
change in terminology outlined in Items 2 and 4.
49. The item clarifies that the legislative instrument to be determined
under the section can include requirements relating to preparing for
audits in addition to requirements for the conduct and reporting of
audits.
50. The item allows for the legislative instrument prepared under this
section to provide for different types of greenhouse and energy
audits to be conducted under the Act. This amendment relates to
Items 21 and 29 that require any notices about audits provided under
sections 73 to 74A to include the type of audit that is to be
conducted in addition to the matters to be covered by the audit.
- At the end of Subdivision G of Division 4 of Part 6
51. This item establishes a new section 75A outlining the requirement
for individuals to register with the GEDO if they wish to undertake
audits under the Act. The item provides for details of the
registration process to be outlined in subordinate legislation.
52. Subsection (1) requires the GEDO to establish a register on which to
keep the information of registered greenhouse and energy auditors.
53. Subsection (2) requires the GEDO to register applicants if they meet
the requirements for qualifications, knowledge, expertise,
competence and independence specified in the regulations and
determined by the GEDO in a legislative instrument created under
subsection (4). It is intended that this will include robust
requirements for independence similar to the requirements for
auditors operating under the Corporations Act 2001.
54. Subsection (3) requires the GEDO not to register applicants if they
do not meet the requirements in the regulations and determined by
the GEDO in a legislative instrument created under subsection (4).
55. Subsection (4) allows for the GEDO to determine by legislative
instrument specific ways of meeting the requirements for
registration as set out in regulations. This may include lists of
appropriate training, qualifications or international experience.
56. Paragraph (5)(a) allows for regulations to specify the form and
content of the register of auditors.
57. Paragraph (5)(b) allows for regulations to specify details for
publishing auditor information, e.g. name, organisation and
expertise. In some cases audits undertaken under the Act will allow
for the auditee to select their own auditor. A public list of
registered auditors will assist with this process.
58. Paragraph (5)(c) allows for regulations to specify details for the
form, content and method of applications for registration.
59. Paragraph (5)(d) allows for regulations to make provision for cost-
recovery through registration fees. Any decision to charge
registration fees will be made following consultation on draft
regulations developed under this section.
60. Paragraph (5)(e) allows for regulations to be made providing for
requirements around maintaining registration, e.g. notification of a
change in circumstances, ongoing professional development
requirements and reporting to the GEDO.
61. Paragraph (5)(f) allows for regulations to be made specifying
requirements for regular quality review of auditors.
62. Paragraph (5)(g) allows for regulations to be made giving the
regulator discretion to suspend registration in certain
circumstances. It is intended that the regulations will provide for
this decision to be reviewable by the Administrative Appeals
Tribunal.
63. Paragraph (5)(h) allows for regulations to be made prescribing
circumstances for deregistration by the GEDO either at his/her
discretion or on application by the auditor. It is intended that the
regulations will also provide for this decision to be reviewable by
the Administrative Appeals Tribunal.
64. Paragraph (5)(i) allows for regulations to be made for inspection of
the performance of auditors on either a targeted or routine basis.
65. Paragraph (5)(j) allows for regulations to be made for other matters
relating to registration of auditors. This may relate to other
administrative or process requirements not covered by the other
paragraphs in this section.
66. Subsection (6) clarifies that any fee to be charged under paragraph
(5)(d) should not amount to a form of taxation.
67. Subsection (7) allows the GEDO to delegate part or all of the
administration of the auditor registration process and decision
making to a third party. Greenhouse and energy auditing is a
relatively new, but growing, industry, with limited certification
options for auditors. Industry stakeholders have indicated, however,
that there will be increased interest in the future for the
provision of third party certification of greenhouse and energy
auditors similar to that already available for other auditing
professions. This subsection allows for the GEDO to delegate the
administration of registered greenhouse and energy auditors to a
third party certification body in the future if appropriate industry
self-regulation becomes available. If those circumstances do
eventuate and a wider delegation is required, specific guidance or
criteria about to whom the wider delegation could apply will be
provided by the GEDO. The GEDO does not currently intend to delegate
the decision making functions to anyone other than SES officers or
acting SES officers.
68. Subsection (8) limits the GEDO's power to delegate the making of the
determination under subsection (4) to other SES employees or acting
SES employees only.
Part 2 - Amendment relating to publishing of information
- Paragraph 24(1)(c)
69. This item repeals paragraph 24(1)(c) of the Act removing the
obligation of the GEDO to publish corporate level totals of energy
production. This will ensure that publicly available energy
production information is not confusing or misleading. Corporate
level energy production totals as specified under the Act are not
useable as they involve double counting of primary and secondary
energy production.
70. This item does not remove requirements under the Act to publicly
disclose greenhouse gas emissions or energy consumption information.
Neither does the amendment change existing requirements for
corporations that trigger thresholds to report all greenhouse gas
emissions, energy consumption and energy production data.
71. Collection of energy production data will remain an important
component of the Act to inform government and will underpin the
Australian Energy Statistics published by the Australian Bureau of
Agricultural and Resource Economics.
SCHEDULE 2 - AMENDMENTS RELATING TO REPORTING TRANSFER CERTIFICATES
Part 1 - General Amendments
Item 1 - Section 7
72. This item defines financial control in accordance with new section 22R,
which specifies the requirements for establishing financial control.
Item 2 - Section 7
73. This item defines interim financial year. The three financial years
following commencement of the Act on 1 July 2008 are defined as interim
financial years for the purposes of enabling the RTC concept. The RTC
concept is a provisional approach that will be in effect for the three
financial years (i.e. 2008-2009 to 2010-2011 NGER reporting years) leading
up to the beginning of the CPRS. RTCs will be cancelled on 30 June 2011 and
corporations with operational and financial control of the RTC facility
will need to arrange to apply for a new "Liability Transfer Certificate"
(LTC) with the ACCRA as outlined in the CPRS Bill 2009.
Item 3 - Section 7
74. This item defines reporting transfer certificate in accordance with new
section 22L, which gives meaning to the certificate which is issued to the
RTC applicant.
Item 4 - Section 7
75. This item defines reporting transfer test in accordance with new
section 22J, which outlines the criteria to be fulfilled in order for
assessment and issuing of an RTC to the applicant.
Item 5 - At the end of section 13
76. This item inserts a new subsection 13(3). The intention of this
subsection is that a facility which has an RTC in place will be disregarded
for the purpose of determining whether the group thresholds in section 13
of the Act have been met.
Item 6 - After subsection 17(3)
77. This item inserts a new subsection 17(3A). This amendment requires the
GEDO to register a corporation if an RTC has been issued to the corporation
and it has not already been registered under Division 3 of the Act.
Holders of an RTC will also need to be registered under the Act, and will
need to come within the definition of 'registered corporation'.
To streamline the registration process and avoid RTC holders from having
to apply separately for registration, the GEDO will register them
automatically when an RTC is granted.
Item 7 - Subsection 18(3)
78. This item repeals subsection 18(3) of the Act and replaces it with a
new subsection 18(3). This subsection currently sets out what an
application for deregistration must contain and what matters the GEDO must
take into account when making a decision to deregister a corporation. The
new subsection will require the GEDO to be satisfied that the corporation
applying for deregistration is not the holder of a RTC.
Item 8 - At the end of subsection 19(1)
79. This item inserts new Note 3A in subsection 19(1) to allow reports
under section 19 and the new section 22G to be set out in the same
document.
Item 9 - Before subsection 19(6)
80. This item inserts a new subsection 19(5A). The effect of this insertion
is that a member of a corporation's group does not have operational control
of a facility for a given day during an interim financial year if another
person holds an RTC for that facility on that day.
Item 10 - At the end of section 22
81. This item inserts a new subsection 22(5). RTC holders have separate
reporting and record keeping obligations under Part 3E. Therefore section
22 does not apply to RTC holders.
Item 11 - Before Part 4
82. This item inserts a new Part 3E - Reporting obligations of holders of
reporting transfer certificates. Several amendments are made in item 11:
. This item adds a new Division 1 - Reporting obligations.
Specific reporting obligations are required for RTC holders. Current
section 19 refers specifically to reporting obligations of controlling
corporations, and its members with operational control of facilities.
RTC holders are also 'registered corporations', but they are not
necessarily a controlling corporation and are provided with an RTC on
the basis that they have financial control.
- This item adds a new section 22G - Report to be given to Greenhouse and
Energy Data Officer.
A corporation holding an RTC for all or part of a financial year
must report to the GEDO the greenhouse gas emissions, energy
production and energy consumption from the operation of that
facility during that time in accordance with 22G. Failure to do so
may be an offence under Division 137 of the Criminal Code and a non-
compliant corporation may be liable for a civil penalty of 2000
penalty units.
Reports required under 22G must be supplied to the GEDO in an
approved manner and form. They must be based on methods determined
by the Minister under 10(3) or by a method which meets criteria
determined by the Minister. Reports under this provision must
include any information specified by the regulations for s22G and
be provided before the end of 4 months after the end of the interim
financial year.
The Regulations may provide different requirements for different
circumstances. These may include the requirement for a corporation
to provide information to the GEDO that has been requested by a
State or Territory for the GEDO to collect.
In relation to a facility, a corporation reporting under 22G(1) for
an interim year that does not meet greenhouse gas emissions of a
carbon dioxide equivalence of 25 kilotonnes or more, and did not
produce 100 terajoules or more of energy, and did not consume 100
terajoules or more of energy, regulations may specify different
reporting requirements for a report to be submitted to the GEDO. It
is not the intention, when a threshold is not met, to remove all
reporting obligations from the RTC holder.
22G(6) allows section 19 and 22G reports to be set out in the same
document.
Where no regulations are in force for the purpose of paragraph 2(c)
then current regulations for the purpose of 19(6)(c) have effect if
they were made for the purpose of 22G(2)(c), the provision in
paragraph 2(c) and the regulations are read in reference to a
facility to which an RTC relates, and those regulations were
otherwise appropriately modified.
- This item adds a new section 22H Records to be kept.
The RTC holder who is or was required to provide a report under
section 22G for an interim financial year must keep records of the
corporation's activities that:
. allow the corporation to report accurately under section 22G;
and
. enable the GEDO to ascertain whether the corporation has
complied with the corporation's obligations under
section 22G.
In line with existing record keeping provisions in the Act, the RTC
holder must retain the records for 7 years from the end of the
financial year in which the activities take place.
. This item adds a new Division 2 - Reporting transfer certificates.
- This item adds a new section 22J Reporting transfer test.
An RTC allows the reporting obligation of a facility to be
transferred to a corporation that has financial control of the
facility which is under the operational control of another member
of a different controlling corporation.
The transferee corporation must be a company registered under Part
2A.2 of the Corporations Act 2001. The corporation must be a
constitutional corporation and not a foreign corporation. The
transferee cannot be within the same controlling corporation's
group as the transferor corporation (operator).
Financial control for the purposes of the Act (refer to Clause
22R), is intended to encompass a corporation that has significant
ability to control a facility through financial means only and
therefore give effect to decisions relating to greenhouse gas
emissions reductions.
The meaning of financial control recognises that more than one
person may have financial control over a facility. For example,
several persons may be participants in a joint venture or
partnership that collectively have financial control of a facility.
In these circumstances, the person with the equal or greatest share
in the economic benefits from a facility will have financial
control for the purposes of the Act.
[pic]
Member Y, which is part of Controlling Corporation A's group, is the
operator of Facility 1. Member F, which is part of Controlling
Corporation B's group, has financial control over Facility 1. Member F
(with consent from Corporation A and Corporation B) applies to the GEDO
for a reporting transfer certificate.
A certificate is issued and Member F takes on all reporting obligations
and liabilities for Facility 1 under the National Greenhouse and Energy
Reporting Act 2007, including reporting in relation to greenhouse gas
emissions, energy production and energy consumption. Facility 1
emissions do not count toward Corporation A's nor Corporation B's
thresholds.
- This item adds a new section 22K - Application for reporting transfer
certificate.
An application to obtain a RTC must be made in writing in a form
approved by the GEDO. An application by a corporate group member
that has financial control of a facility must be accompanied by the
written consent of its controlling corporation to take on the
reporting obligations established by the Act.
Also, for the applicant to acquire an RTC they must obtain the
written consent of the controlling corporation of the transferor
that it has agreed to give the applicant such information as
necessary for the applicant to comply with obligations that will be
imposed on the applicant by the Act in relation to the facility if
the certificate is issued.
The application must also include any information and documents
that are specified in the form approved by the GEDO.
- This item adds a new section 22KA - Further information.
The GEDO may request further information in relation to an
application within a period specified in a notice given by the
GEDO. If the applicant does not meet this request within the time
specified, the GEDO may refuse to consider the application or
refuse to take any action, or any further action, in relation to
the application.
- This item adds a new section 22L - Issue of reporting transfer
certificate.
After considering the application, the GEDO may issue to the
applicant an RTC for a facility on the grounds it has satisfied
certain criteria.
The GEDO must be satisfied the applicant passes the RTC transfer
test (Clause 22J) and it has the capacity and access to the
required information to comply with its obligations under the Act.
The threshold criteria ensures that only facilities that are
expected to meet the facility level threshold are considered for an
RTC. The thresholds for the operation of the facility during an
interim year are:
. emissions of greenhouse gases that have a carbon dioxide
equivalence of 25 kilotonnes or more;
. production of energy of 100 terajoules or more; and
. consumption of energy of 100 terajoules or more.
The GEDO is required to take all reasonable steps to ensure that a
decision is made on an application for a reporting transfer
certificate within 90 days of receiving an application or within 90
days of being given further information. The GEDO must inform an
applicant in writing if it decides to refuse to issue an RTC.
- This item adds a new section 22M - Duration of reporting transfer
certificate.
An RTC comes into force on the day specified in the certificate as
the day on which the certificate is to come into force (the start
day). The start day may be earlier than the day on which the
certificate is issued, so long as it occurs either in the same
financial year as the day on which the certificate is issued, or
the financial year preceding the financial year in which the
certificate is issued.
The start day may only be earlier than the day on which the
certificate is issued if the applicant and the relevant parties
consent to the specification of that start day.
An RTC remains in force until the end of 30 June 2011.
- This item adds a new section 22N - Surrender of reporting transfer
certificate.
If an RTC holder wishes to surrender an RTC it must obtain written
consent from the GEDO to do so. The GEDO must not consent to the
surrender unless:
. where applicable, the controlling corporation(s) that agreed
to the making of the application for the certificate agrees
to the surrender; and
. the GEDO is satisfied that there are special circumstances
that warrant the giving of its consent to the surrender.
- This item adds a new section 22P - Cancellation of reporting transfer
certificate.
The GEDO must, by written notice, cancel an RTC in the following
circumstances:
. if a company ceases to pass the reporting transfer test in
relation to the facility concerned; or
. if the corporation has become an externally-administered body
corporate (within the meaning of the Corporations Act 2001);
or
. if regulations specify one or more other grounds for
cancellation and at least one of those grounds is applicable
to the company.
The cancellation or surrender of an RTC will result in future
obligations and liability returning to the person that would have
had obligations and liability in the absence of the RTC.
- This item adds a new section 22Q - Reporting transfer certificate is
not transferable.
An RTC is not transferable.
- This item adds a new section 22R - Financial control.
This clause outlines the allowable scenarios for the application of
financial control for the purposes of the Act. It is intended to
encompass a corporation that has significant ability to control a
facility through financial means only and therefore give effect to
decisions relating to greenhouse gas emissions reductions. It is
not intended to include an agent or person acting on behalf of a
corporation that has financial or operational control of a facility
who may not have any direct influence on greenhouse gas emissions
reductions.
The meaning of financial control recognises that more than one
person may have financial control over a facility. For example,
several persons may be participants in a joint venture or
partnership that collectively have financial control of a facility.
In these circumstances, the person with the equal or greatest share
in the economic benefits from a facility will have financial
control for the purposes of the Act.
Item 12 - Before subsection 24(1B)
83. This item specifies that the GEDO must publish on a website the scope
1, scope 2 and energy consumption figures from interim financial year
reports submitted by the RTC holder. The GEDO may also publish the methods
and ratings to each measure in accordance with those methods under the
determination under section 10(3).
This amendment is aligned with existing NGER obligations.
Item 13 - Before subsection 24(2)
84. This item specifies that the GEDO is restricted from publishing certain
information where an application has been made under section 25 and has
been accepted by the GEDO.
This amendment is aligned with existing Act obligations.
Item 14 - Subsection 25(1)
85. This item specifies that an RTC holder may apply to request the GEDO
not to publish information if it could be demonstrated that the information
could be capable of revealing trade secrets or have other negative impacts
on matters of commercial value.
Item 15 - Before subsection 30(3)
86. This item imposes a civil penalty of 100 penalty units per day for
failing to comply with s22G requirements. This is analogous with standard
NGER continuing contraventions.
Item 16 - After paragraph 56(d)
87. An application may be made to the Administrative Appeals Tribunal for
the review of a decision of the GEDO to a refusal to issue an RTC, consent
to the surrender of an RTC or cancelling an RTC.
Part 2 - Consequential amendments relating to the Australian Climate Change
Regulatory Authority
Items 17 to 32 (References to the Greenhouse and Energy Data
Officer)
88. These items will only commence on the commencement of section 3 of the
Carbon Pollution Reduction Scheme Act 2009.
Amendments at Items 17 - 32 omit references to the GEDO in provisions to
be inserted by the parliamentary amendments moved in relation to the NGER
Bill 2009, and insert references to the ACCRA. The ACCRA will administer
the CPRS, the reporting regime and the renewable energy requirements. It
will be established by the ACCRA Bill 2009.
Part 3 - Consequential amendments relating to publication of information
Item 33 - Paragraphs 24(1AD)(a) and (b)
89. Item 12 above amends section 24 by inserting subsections 24(1AD) and
24(1AE). These sections address the matters which the Regulator is
required to or may publish in relation to reports by holders of RTCs.
The inserted subsections foreshadow that Regulations will define
'greenhouse gas emissions that are scope 1 emissions' and 'greenhouse gas
emissions that are scope 2 emissions'.
This item amends paragraphs 24(1AD)(a) and (b) by omitting references to
the Regulations for the meaning of scope 1 and scope 2 emissions. The
reason for this amendment is that the combined effect of Items 137-138
and 156-157 of the CPRS (Consequential Amendments) Bill 2009 is that
Regulations will be made under section 10 to define scope 1 and scope 2
emissions of greenhouse gas from 1 July 2011.
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