ATTACHMENT A

Details of the National Greenhouse and Energy Reporting Amendment Regulation 2012 (No. 2)

1 - Name of regulation

Section 1 provides that the name of the Regulation is the National Greenhouse and Energy Reporting Amendment Regulation 2012 (No. 2).

2 - Commencement

Section 2 provides that the Regulation commences on the day after it is registered.

3 - Amendment of National Greenhouse and Energy Reporting Regulations 2008

Section 3 provides that Schedule 1 to the Regulation amends the NGER Regulations.

SCHEDULE 1 - Amendment

Item [1] - Regulation 1.03

Item [1] inserts a definition within regulation 1.03. The new definition is for 'identifying information for a facility' and refers to the detailed facility information required under paragraphs 4.04A(2)(a) to (h) of the NGER Regulations. The purpose of this item is to allow multiple provisions to reference this new definition (which is also used in the Clean Energy Regulations 2011) for greater consistency and ease of application for businesses.

Item [2] - Regulation 1.03

Item [2] inserts a definition for 'identifying information for a person' within regulation 1.03. The purpose of this item is to allow multiple provisions to reference this new definition (which is also used in the Clean Energy Regulations 2011) for greater consistency and ease of application for businesses.

Item [3] - Regulation 1.03, definition of liquefied aromatic hydrocarbons

Item [3] amends the definition of liquefied aromatic hydrocarbons within regulation 1.03. The amended definition aligns the definition with the corresponding item included at item 10.25 of the Schedule to the Excise Tariff Act 1921.  

Items [4] and [5] - Regulation 1.03, definition of liquid petroleum gas

Items [4] and [5] revise the definition to use the term 'liquefied' petroleum gas in place of 'liquid' petroleum gas. This item aligns the language employed in the regulations with the terminology used by industry.

Item [6] - Subregulation 2.27 (1)

Items [6] to [13] are part of a broader set of amendments to enable the revised process for nomination of operational control set out in the Clean Energy Legislation Amendment Act 2012. Under the new process, nominations of operational control begin on their start date and remain valid until they are cancelled by the Clean Energy Regulator, revoked by a new nomination or reach their end date.

Item [6] removes the references to provisions repealed by the Clean Energy Legislation Amendment Act 2012.

Item [7] - Subregulation 2.27 (2)

Item [7] removes subregulation 2.27(2), which outlines when a nomination 'takes effect'. This subregulation is not required under the amended nomination process as the process requires applications for nomination to include a specific start date and there is no additional requirement to specify when the nomination 'takes effect'.

Item [8] - Regulation 2.28, heading

Item [8] replaces the heading for regulation 2.28 to accurately reflect that nominations remain in place for a period of time and there is no longer a requirement to make multiple nominations during the fixed charge period.

Item [9] - Subregulations 2.28 (1) to (3)

Item [9] sets out the revised information requirements that are to be submitted for a nomination of operational control under the revised process set out in the Clean Energy Legislation Amendment Act 2012. This includes information relating to the nominee and information relating to other persons who also satisfy paragraph 11(1)(a) of the NGER Act for the facility.

This item also inserts a new paragraph which requires a statement setting out that the facility for which the nomination is being made meets all of the eligibility requirements included in subsection 11B(1) of the NGER Act, as amended by the Clean Energy Legislation Amendment Act 2012.

Item [10] - Subregulation 2.28 (4)

Item [10] removes references to provisions repealed by the Clean Energy Legislation Amendment Act 2012.

Items [11] and [12] - Paragraph 2.28 (4) (c) and After paragraph 2.28 (4) (c)

Items [11] and [12] inserts a new paragraph which requires a statement setting out that the facility for which the nomination is being made meets all of the eligibility requirements included in subsection 11C(1) of the NGER Act, as amended by the Clean Energy Legislation Amendment Act 2012.

 

Item [13] - Regulation 2.29

Item [13] removes regulation 2.29. Regulation 2.29 was originally made to streamline the nomination process in the context of multiple nominations being made for a facility in a particular period. This regulation is not required under the revised nomination process because a nomination would now continue until such time as the Clean Energy Regulator cancels it, it is revoked by a new nomination or it reaches its end date.

Item [14] - Subregulation 3.03A (2)

Item [14] streamlines subregulation 3.03A(2) by requiring registration applications to provide 'identifying information for the person' (inserted by item [2]) in place of the existing information requirements. While this item does not alter the intent of the subregulation, it promotes consistency with other provisions included within the NGER Regulations and the Clean Energy Regulations.

Item [15] - Paragraphs 3.05 (1) (a) to (g)

Item [15] streamlines subregulation 3.05(1) by requiring applications for deregistration to provide 'identifying information for the person' in place of the existing information requirements. While this item does not alter the intent of the subregulation, it promotes consistency with other provisions included within the NGER Regulations and the Clean Energy Regulations.

Item [16] - Paragraph 4.06 (1) (c)

Item [16] amends paragraph 4.06(1)(c) to include subdivision 4.4.5 in addition to  subdivisions 4.4.2 and 4.4.3. Regulation 4.06 allows a report submitted under section 22A by a participant in a joint venture to refer to information submitted by another participant in the same joint venture. Previously this provision only related to greenhouse gas emissions from fuel combustion (subdivision 4.4.2) and greenhouse gas emissions from particular sources (subdivision 4.4.3).  This item extends this provision to allow a report submitted under section 22A by a participant to also rely on the energy consumption (subdivision 4.4.5) information included in the report of another participant in the joint venture.

Items [17] and [18] - Paragraph 4.22 (1) (d) and After paragraph 4.22 (1) (d)

Items [17] and [18] inserts a new paragraph to subregulation 4.22(1). The new paragraph requires final reports, other than section 22A reports, to include 'net energy consumption' for each facility included in the report, as worked out under regulation 5.03. The intent is to increase transparency and promote ownership of the 'net energy consumption' figure, which will be published on the Clean Energy Regulator's website, if certain thresholds are triggered.

Item [19] - Regulation 5.03

Item [19] relates to amendments to the NGER Act introduced by the Clean Energy Legislation Amendment Act 2012. These amendments streamline publication of energy consumption data through only requiring the publication of a single figure for energy consumption which represents 'net energy consumption', which is calculated by adjusting the total energy consumption figure for each facility in the corporate group. Previously the Clean Energy Regulator was required to publish both total and adjusted energy consumption figures. The amendments to the NGER Act also extend the adjustments to energy consumption publication to group members, business units, financial control liability transfer certificate holders and reporting transfer certificate holders.

Item [19] extends the net energy consumption calculation included for corporate groups to also be applicable to group members, business units, financial control liability transfer certificate holders and reporting transfer certificate holders. The process for adjusting energy consumption is the same as set out for controlling corporations, with a few minor differences which are noted below:

•                 For a group member the net energy consumption figure is the sum of net energy consumption for each facility for which the group member has operational control;

•                 For business units the net energy consumption figure is the sum of net energy consumption for each facility for which the business unit has administrative responsibility;

•                 For financial control liability transfer certificate holders and reporting transfer certificate holders, net energy consumption only relates to the facility for which the certificate is in place.

Item [20] - Paragraphs 6.02 (1) (a) and (b)

Item [20] streamlines subregulations 6.02(1), (1A) and (1B) by requiring all applications requesting the Clean Energy Regulator to declare a facility to include 'identifying information for the person' making the application, in place of the existing information requirements. While this item does not alter the intent of the subregulation, it promotes consistency with other provisions included within the NGER Regulations and the Clean Energy Regulations.

Item [21] - Subregulations 6.02 (1A) and (1B)

Item [21] retains the existing additional information requirements that controlling corporations need to include in applications for a declaration of a facility. This item is required due to structural changes to regulation 6.02 introduced by item [20].

Item [22] - Paragraphs 6.03 (1) (b) and (c)

Item [22] replaces paragraphs 6.03(1)(b) and (c) with the requirement to provide 'identifying information for the person' making the application. Item [22], in conjunction with item [26], streamlines subregulation 6.03(1) by requiring all applications for a declaration of operational control to include 'identifying information for the person' making the application, in place of the existing information requirements. While this item does not alter the intent of the subregulation, it promotes consistency with other provisions included within the NGER Regulations and the Clean Energy Regulations.

Item [23] - Paragraph 6.03 (1) (e)

Item [23] amends subregulation 6.03(1) and in conjunction with item [26] streamlines subregulations 6.03(1) and (4) by requiring all applications for a declaration of operational control to provide evidence relating to introducing and implementing the policies mentioned in paragraph 11(1)(a) of the NGER Act. Previously the requirement to provide evidence was included in multiple provisions and the information required to be submitted by group members and non-group entities was not consistent. This item promotes consistency and clarity for information provided by all entity types.

Item [24] - Paragraphs 6.03 (1) (g) to (j)

Item [24] streamlines subregulation 6.03(1) by requiring all applications for a declaration of operational control to include 'identifying information for the facility' for which the declaration is sought in place of the existing information requirements. Identifying information for the facility is defined in the NGER Regulations as set out in item [1]. While this item does not alter the intent of the subregulation, it promotes consistency with other provisions included within the NGER Regulations and the Clean Energy Regulations.

Item [25] - Subregulation 6.03 (1), note

Item [25] removes the note under subregulation 6.03(1). This item is required because item [24] replaces multiple paragraphs including the paragraph to which the note relates.

Item [26] - Subregulations 6.03 (2) to (4)

Item [26] removes subsections 6.03(2) to (4) but retains existing paragraph 6.03(3)(b). The intent of this item, along with item [22], is to streamline the information required in applications for a declaration of operational control through requiring the inclusion of 'identifying information for the person' making the application in place of the existing information requirements.

Item [27] - Subregulation 6.04A (3)

Item [27] amends subregulation 6.04A(3) to ensure alignment with the language used in the NGER Act and to clarify that the auditor category requirements only apply to the audit team leader.

Item [28] - Schedule 1, item 44

Item [28] revises item 44 in Schedule 1 to use the term 'liquefied' petroleum gas in place of 'liquid' petroleum gas. This item aligns the terminology in the Principal Regulations with the terminology used by industry.

Item [29] - Schedule 1, item 66

Item [29] amends item 66 in Schedule 1 of the Principal Regulations to broaden its scope to ensure that this item may be used to report steam, compressed air or waste gas energy commodities as energy production where that energy commodity is produced at the facility and consumed at another facility. Previously, the language used for item 66 focused on imports of steam, compressed air or waste gas consumed at the facility. The revised language clarifies that exported steam, compressed air or waste gas which is produced at the facility is also reported.

Attachment B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

National Greenhouse and Energy Reporting Amendment Regulation 2012 (No. 2)

This Regulation is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the National Greenhouse and Energy Reporting Amendment Regulation 2012 (No. 2)

The Regulation amends the National Greenhouse and Energy Reporting Regulations 2008 to support amendments made to the National Greenhouse and Energy Reporting Act 2007 by the Clean Energy Legislation Amendment Act 2012.

These amendments refine the existing reporting framework including the processes for nominating operational control and the requirements for certain persons calculating net energy consumption.

Human rights implications                                                             

The Regulation engages the right to privacy and reputation.

The Regulation provides for the collection of personal information by the Clean Energy Regulator.

While collection of personal information limits the right to privacy, the Regulation is not considered to be incompatible with this right. This is because:

*         the information to be collected is necessary for the identification of nominators under the National Greenhouse and Energy Reporting Act 2007 and the Clean Energy Act 2011; and

*         the Clean Energy Regulator will be subject to the secrecy provisions in the Clean Energy Regulator Act 2011.

Conclusion

The Regulation is compatible with human rights because, to the extent that it may limit those rights, that limitation is reasonable, necessary and proportionate.

 

Greg Combet

Minister for Climate Change and Energy Efficiency