Commonwealth Numbered Regulations

OZONE PROTECTION AND SYNTHETIC GREENHOUSE GAS MANAGEMENT AMENDMENT REGULATIONS 2004 (NO. 2) 2004 NO. 380 - SCHEDULE 1

(regulation 3)

[1] Part 6A

substitute

Part 6A Disposal and use of scheduled substances

Note 1
The numbers of the Parts in these Regulations correspond to those in the Act.
Note 2
Part 6 is intentionally not used and regulation numbers 81 to 99 (inclusive) are reserved for future use.

Division 6A.1 Preliminary
100 Purpose of Part 6A

For section 45A of the Act, Part 6A imposes controls on:

(a)

the sale, purchase, and other acquisition or disposal, of scheduled substances; and

(b)

the storage, use and handling of scheduled substances;

for fire protection, and refrigeration and air conditioning.

101 Definition for Part 6A

"ANTA-recognised qualification" means a qualification that is recognised by the Australian National Training Authority established under section 5 of the Australian National Training Authority Act 1992 .

Division 6A.2 Refrigeration and air conditioning
Subdivision 6A.2.1 Preliminary
110 Definitions for Division 6A.2

In this Division:

"halon special permit" means a permit granted under regulation 150.

"RAC" equipment (or refrigeration and air conditioning equipment ) means equipment, used for the cooling or heating of anything, that uses a refrigerant.

"RAC equipment manufacturing authorisation" means an authorisation granted under paragraph 140 (1) (b).

"RAC Industry Board" means the body appointed under paragraph 120 (1) (a).

"RAC industry permit" means any of the following:

(a)

a refrigerant handling licence;

(b)

a refrigerant trading authorisation;

(c)

an RAC equipment manufacturing authorisation;

(d)

a halon special permit.

"refrigerant" means any or all of CFC, HCFC, HFC, PFC and halon that is, or has been, used in RAC equipment.

"refrigerant destruction facility" means a facility approved under regulation 114.

"refrigerant handling licence" means a licence granted under Subdivision 6A.2.2.

"refrigerant trading authorisation" means an authorisation granted under paragraph 140 (1) (a).

111 Offence — handling refrigerant

(1)

On or after 1 July 2005, a person must not handle a refrigerant unless he or she:

(a)

holds a refrigerant handling licence; or

(b)

is engaged in a phase of the manufacture of RAC equipment, and is supervised by the holder of an appropriate restricted refrigeration and air conditioning licence mentioned in regulation 133.

Penalty:
10 penalty units.

(2)

For subregulation (1), handle a refrigerant means to do anything with the refrigerant that carries the risk of its emission, including:

(a)

decanting the refrigerant; or

(b)

manufacturing, installing, commissioning, servicing or maintaining RAC equipment; or

(c)

decommissioning or disposing of RAC equipment.

112 Offence — possessing or trading in refrigerant

(1)

In this regulation:

"bulk refrigerant" means refrigerant other than halon, but does not include refrigerant that is contained in RAC equipment.

(2)

On or after 1 July 2005, a person must not acquire, possess, or dispose of bulk refrigerant unless the person is:

(a)

the holder of a refrigerant trading authorisation or an RAC equipment manufacturing authorisation; or

(b)

the operator of a refrigerant destruction facility.

Penalty:
10 penalty units.

(3)

It is a defence to a charge of contravening subregulation (2) that the defendant, as soon as practicable after becoming aware that he or she possessed bulk refrigerant, gave it to:

(a)

the holder of a refrigerant trading authorisation; or

(b)

the operator of a refrigerant destruction facility.

Note
For guidance on the Internet for locating the holders of refrigerant trading authorisations: see www.arctick.org.

(4)

An offence against subregulation (2) is an offence of strict liability.

113 Offence — possessing halon

(1)

On or after 1 January 2005, a person must not possess halon that is, or has been, for use in RAC equipment, unless the person is:

(a)

the holder of a halon special permit; or

(b)

the operator of a refrigerant destruction facility.

Penalty:
10 penalty units.

(2)

It is a defence to a charge of contravening subregulation (1) that the defendant:

(a)

in the case of a defendant who is the holder of an extinguishing agent trading authorisation — acquired the halon for transfer to an extinguishing agent destruction facility; or

(b)

as soon as practicable after becoming aware that he or she possessed halon, gave it to the operator of a refrigerant destruction facility.

(3)

An offence against subregulation (1) is an offence of strict liability.

Note
The use of halon for most purposes was phased out from 1990 under State and Territory legislation. Halon was not normally used for refrigeration or air conditioning.

114 Refrigerant destruction facilities

(1)

The Minister may, on application, give approval in writing for a person to operate a refrigerant destruction facility.

(2)

An application must be in writing and must include:

(a)

the name and address of the applicant; and

(b)

the address of the facility; and

(c)

enough information about the facility to enable the Minister to decide the application.

(3)

The Minister may approve a facility only if he or she is satisfied that the facility is able to operate in a way that is consistent with Australia's obligations under the Montreal Protocol.

Subdivision 6A.2.1A RAC industry permits

Note
Regulation numbers 115 to 119 (inclusive) are intentionally not used.

120 RAC Industry Board

(1)

The Minister may:

(a)

appoint a body that is incorporated under the Corporations Act 2001 , as the RAC Industry Board ; and

(b)

authorise the Board to exercise any or all of the powers and functions mentioned in subregulation (2).

(2)

The powers and functions are to:

(a)

receive applications for RAC industry permits; and

(b)

collect, on behalf of the Commonwealth, the fees that are payable for those applications; and

(c)

grant RAC industry permits; and

(d)

collect information:

(i)

supplied by applicants for industry permits; and

(ii)

supplied in response to any request made by the Board under paragraph 141

(1)

(b); and

(e)

publish the information mentioned in paragraph (d) in a way that does not:

(i)

allow any person to be identified; or

(ii)

disclose confidential information; and

(f)

inspect, with the occupier's permission, premises used for activities conducted under an RAC industry permit.

121 Applications for RAC industry permits — general

(1)

An application for an RAC industry permit must:

(a)

be made to the RAC Industry Board in a form approved by the Minister; and

(b)

include the appropriate fee; and

(c)

include the information needed by the Board to decide the application, including:

(i)

details about the applicant's relevant training and experience; and

(ii)

in the case of an application by an individual — evidence about the applicant's knowledge about this Division, the Act and any standard that is relevant to the work to be carried out under the permit; and

(iii)

evidence that the applicant is a fit and proper person to hold the permit.

(2)

If an applicant has not provided all the information mentioned in paragraph (1) (c) the Board:

(a)

may ask the applicant for the missing information; and

(b)

need not consider the application until the applicant provides the information.

(3)

If, 30 days after an application is made and any information sought under subregulation (2) is provided, the Board has not made a decision about the application, the Board is taken to have refused the application.

122 Decision whether applicant is a fit and proper person

When the RAC Industry Board is deciding whether a person who holds, or is applying for, an RAC industry permit is a fit and proper person to hold the permit, the Board must take into account matters including the following:

(a)

any conviction of the person for an offence against the Act or these Regulations;

(b)

in the case of an individual:

(i)

any conviction of the person for an offence under a law of the Commonwealth, of a State or of a Territory that is punishable by imprisonment for a period of one year or longer; and

(ii)

whether the person is bankrupt;

(c)

in the case of a corporation:

(i)

any conviction of the corporation for an offence under a law of the Commonwealth, of a State or of a Territory that is punishable by a fine of 50 penalty units or more, being an offence committed at a time when a person who is a director, officer or shareholder of the corporation was a director, officer or shareholder of the corporation; and

(ii)

whether the corporation is an externally administered body corporate (within the meaning of the Corporations Act 2001 );

(d)

if any statement by the person in an application was false or misleading in a material particular — whether the person knew that the statement was false or misleading;

(e)

whether the person has contravened a condition of an RAC industry permit;

(f)

whether the person held an RAC industry permit that was cancelled.

123 Powers of Minister

(1)

The Minister may cancel or suspend an RAC industry permit if he or she is satisfied that the holder:

(a)

is no longer a fit and proper person to hold the permit; or

(b)

has contravened a condition to which the permit was subject.

(2)

The Minister cancels or suspends an RAC industry permit by giving the holder a notice:

(a)

stating that the permit has been cancelled or suspended; and

(b)

setting out the reasons for the cancellation or suspension; and

(c)

in the case of a suspension — stating the period of the suspension.

124 Reconsideration of decisions

(1)

Application may be made:

(a)

to the RAC Industry Board for reconsideration of any of the following:

(i)

a refusal of an application for an RAC industry permit;

(ii)

a decision about the period for which a permit is in force;

(iii)

a decision imposing a condition on a permit; or

(b)

to the Minister for reconsideration of a decision to suspend or cancel a permit.

(2)

An application for reconsideration of a decision must:

(a)

be made within 21 days of the day on which the person received notice of the decision; and

(b)

set out the reasons why the person wants the decision reconsidered.

(3)

If the Board or Minister receives an application, the Board or Minister may:

(a)

confirm the decision; or

(b)

vary or reverse the decision.

(4)

If the Board or Minister does not confirm, vary or reverse a decision within 30 days after the application for reconsideration of the decision was received, the Board or Minister is taken to have confirmed the decision.

125 Review of decisions

Application may be made to the Administrative Appeals Tribunal for the review of a decision that was confirmed or varied by the Board or Minister under subregulation 124 (3).

126 Permit not in force if suspended

An RAC industry permit is not in force during any period of suspension.

127 Powers of inspectors

An inspector appointed under section 49 of the Act may exercise the powers given to him or her under Part VIII of the Act, at premises used by the holder of an RAC industry permit for:

(a)

activities permitted by the permit; or

(b)

storage of records relating to activities permitted by the permit.

Subdivision 6A.2.2 Refrigerant handling licences

Note
Regulation numbers 128 and 129 are intentionally not used.

130 Grant of refrigerant handling licences — general

(1)

The application fee for any number of licences under this Subdivision is $100.

(2)

However:

(a)

if the application is for a trainee licence only, the fee is $20; and

(b)

if the application is for 1 licence only, other than a trainee licence, that is to be in force for 12 months or less, the fee is $50.

(3)

A licence granted under this Subdivision is in force:

(a)

from the day on which it is granted, or another day specified by the RAC Industry Board in writing; and

(b)

for a period of no more than:

(i)

24 months; or

(ii)

if it is granted under regulation 132 or 134 — 12 months;

specified, in writing, by the Board.

Note   The holder of an existing State or Territory authorisation, or a certification issued by the National Refrigeration and Air Conditioning Council, is taken to hold an appropriate refrigerant handling licence for up to 24 months after the commencement of this Division: see regulations 136 and 137.

(4)

If the Board grants 1 or more licences to a person it must give the person a document setting out the details of each licence granted.

131 Refrigerant handling licences — qualified persons

(1)

The RAC Industry Board may, on application, grant to a person a licence mentioned in an item in column 2 of Table 131, entitling him or her to engage in the work described in column 3 of the item.

Note 1
Regulation 121 also applies to an application.
Note 2
A person is entitled to apply for any number of licences.

(2)

The Board may grant a licence to an applicant only if it is satisfied that he or she either:

(a)

holds a qualification mentioned in column 4 of the item in of Table 131 that corresponds to the licence mentioned in column 2 of the item; or

(b)

has the knowledge, ability and experience necessary to competently carry out the work covered by the licence.

Table 131 Licences and entitlements

132 Refrigerant handling licences — experienced persons
(1) Despite regulation 131, the RAC Industry Board may grant a refrigerant handling licence of a kind mentioned in Table 131 to an applicant if:

(a)

the application is made before 1 June 2005; and

(b)

the Board is satisfied that, although the applicant needs further training to meet the standard necessary for him or her to work indefinitely in the RAC industry, he or she is qualified to hold a temporary licence by having engaged in, or supervised, work of the kind to be permitted by the licence.

(2)

A licence granted under this regulation ceases to have effect at the start of 1 June 2006.

133 Restricted refrigeration and air conditioning licence

The RAC Industry Board may, on application, grant a refrigerant handling licence (called a restricted refrigeration and air conditioning licence ) to a person, entitling him or her to carry out work:

(a)

at a specified kind of place (for example, an RAC equipment manufacturing plant or an off-shore oil drilling platform); or

(b)

on specified RAC equipment (for example, aviation, maritime or transport refrigeration equipment); or

(c)

both at a specified kind of place and on specified equipment;

if:

(d)

the work to be covered by the licence requires skills or knowledge (or both skills and knowledge) that are outside the scope of those required for a licence mentioned in Table 131; and

(e)

the person provides evidence that he or she is able to carry out the work in a way that is appropriate for the grant of the licence.

134 Refrigeration and air conditioning trainee licence

(1)

The RAC Industry Board may, on application, grant a refrigerant handling licence (called a refrigeration and air conditioning trainee licence ) to a person who is undertaking a course leading to an ANTA-recognised qualification mentioned in column 4 of item 1 or item 2 of Table 131.

(2)

The licence entitles the person to carry out activities authorised by a licence mentioned in column 2 of an item in Table 131 while under the supervision of a holder of that kind of licence.

135 Licence conditions

(1)

A licence granted under this Subdivision is subject to the condition that the licensee:

(a)

carries out the work to which the licence relates in accordance with any standard set out in an item in column 2 of Table 135 that relates to the work; and

(b)

gives any refrigerant recovered from RAC equipment to:

(i)

except for recovered halon — the holder of a refrigerant trading authorisation; or

(ii)

the operator of a refrigerant destruction facility.

(2)

The RAC Industry Board may specify that a licence is subject to a condition and must set out the condition on:

(a)

the licence document; or

(b)

a written notice given by the Board to the licensee.

(3)

The Board may impose a condition on a licence at any time.

(4)

A licensee must not contravene a condition of his or her licence.

Table 135 Standards

136 Transitional — holders of existing State or Territory authorisations

The holder of an authorisation (however described) mentioned in column 1 of an item in Table 136 (an existing State or Territory authorisation ) with the title (if any) mentioned in column 2 of the item is taken to hold the refrigerant handling licence mentioned in column 3 of the item until the earlier of the following:

(a)

the day on which the existing State or Territory authorisation expires;

(b)

1 January 2007.

Table 136 Refrigerant handling licence taken to be held by existing authorisation holders

137 Transitional — NRAC Certification holders

The holder of a certification, issued before the commencement of this regulation by the National Refrigeration and Air Conditioning Council and mentioned in column 2 of an item in Table 137, is taken to hold the refrigerant handling licence mentioned in column 3 of the item until the earlier of the following:

(a)

the day on which the certification expires;

(b)

1 January 2007.

Table 137 Refrigerant handling licence taken to be held by NRAC Certification holders

Subdivision 6A.2.3 Refrigerant trading and RAC equipment manufacturing authorisations

Note
Regulation numbers 138 and 139 are intentionally not used.

140 Grant of authorisations

(1)

The RAC Industry Board may, on application:

(a)

grant a refrigerant trading authorisation to a person, permitting the person to acquire, store or dispose of a refrigerant other than halon; or

(b)

grant an RAC equipment manufacturing authorisation to a corporation, permitting the corporation to acquire refrigerant other than halon for use in the manufacture of RAC equipment.

Note
Regulation 121 also applies to an application.

(2)

The application fee for either or both authorisations is:

(a)

$320; or

(b)

if an authorisation applied for is to be in force for 12 months or less — $160.

(3)

The Board must not grant an authorisation unless it is satisfied that:

(a)

the applicant has business premises that are equipped and operating so as to be able to handle, and prevent avoidable emissions of, a refrigerant; and

(b)

if the application is for a refrigerant trading authorisation — the applicant is able to ensure that a refrigerant is handled only by persons who are licensed to do so; and

(c)

if the application is for an RAC equipment manufacturing authorisation — the applicant is able to ensure that, at all times, persons engaged in a phase of manufacture that could result in the emission of a refrigerant are supervised by the holder of an appropriate licence granted under regulation 133.

Note   An applicant who conducts business from a vehicle is eligible for an authorisation under paragraph (3) (a): see definition of premises in subsection 7 (1) of the Act.

(4)

However, the Board may grant an authorisation to a person that:

(a)

applies before 1 June 2005; and

(b)

during the 3 months immediately before applying for an authorisation, carried out work of a kind that is to be permitted by the authorisation.

(5)

An authorisation is in force:

(a)

from the day on which it is granted, or another day specified by the Board in writing; and

(b)

for a period of no more than:

(i)

24 months; or

(ii)

if it is granted under subregulation (4) — 12 months;

specified, in writing, by the Board.

(6)

If the Board grants an authorisation to a person it must give the person a document setting out the details of the authorisation.

141 Conditions on authorisations

(1)

A refrigerant trading authorisation or RAC equipment manufacturing authorisation is granted subject to the conditions that the holder:

(a)

keeps up-to-date records showing the amounts of refrigerant bought, sold and recovered during each quarter; and

(b)

14 days or less after receiving a request in writing by the RAC Industry Board, sends to the Board copies of the records mentioned in paragraph (a); and

(c)

ensures that each item of the holder's equipment that is necessary to prevent avoidable emissions of refrigerant is operating correctly; and

(d)

has, and maintains, equipment that is adequate for the holder's activities, including 1 or more of each of the following:

(i)

leak detectors;

(ii)

vacuum pumps;

(iii)

recovery units; and

(e)

at least every quarter, checks any refrigerant container at the premises for leaks; and

(f)

puts into effect a risk management plan for the premises; and

(g)

ensures that, at the premises, any refrigerant is handled in accordance with each applicable standard set out in Table 135; and

(h)

ensures that destruction of any refrigerant is carried out only by the operator of a refrigerant destruction facility.

(2)

It is also a condition of a refrigerant trading authorisation that the holder accepts any surrendered refrigerant or scheduled substance that appears to be intended for use in RAC equipment.

(3)

The RAC Industry Board may specify that an authorisation is subject to a condition and must set out the condition on:

(a)

the authorisation document; or

(b)

a written notice given by the Board to the holder.

(4)

A notice for paragraph (3) (b) may be given at any time.

142 Transitional — existing State or Territory authorisation

The holder of an authorisation (however described) mentioned in an item in Table 142 (an existing State or Territory authorisation ) is taken to hold a refrigerant trading authorisation until the earlier of the following:

(a)

day on which the State or Territory authorisation expires;

(b)

1 January 2007.

Table 142 Refrigerant trading authorisations taken to be held by existing State or Territory authorisation holders

Subdivision 6A.2.4 Halon special permit

Note
Regulation numbers 143 to 149 (inclusive) are intentionally not used.

150 Application for halon special permit

(1)

The RAC Industry Board may, on application, grant to a person a permit, in writing, entitling him or her to possess halon that is, or is to be, used in RAC equipment.

Note
Regulation 121 also applies to an application.

(2)

The application fee for a halon special permit is $200.

(3) The Board may grant a halon special permit to a person only if it is satisfied that:

(a)

the applicant, because of his or her training and experience, is able to competently carry out the activities covered by the permit; and

(b)

the applicant's use of the halon is for a purpose that is necessary to protect human life or operate equipment that is critical to the community; and

(c)

there is no alternative to the halon's use that is:

(i)

practicable; and

(ii)

available at a reasonable cost; and

(iii)

safe; and

(iv)

likely to result in less damage to the environment.

(4) A permit granted under this regulation remains in force for 24 months from the date of the grant.

Note
Regulation numbers 151 to 899 (inclusive) are reserved for future use.