Commonwealth Numbered Regulations - Explanatory Statements

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RENEWABLE ENERGY (ELECTRICITY) AMENDMENT REGULATIONS 2003 (NO. 2) 2003 NO. 315

Subsection 161 (1) of the Renewable Energy (Electricity) Act 2000 (the Act) provides that the Governor-General may make regulations prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act. Subsection 161 (2) provides that the draft regulations must be available for public comment for a period not less than 30 days before the regulations are made.⁽¹⁾

The Act provides the legislative framework for the implementation of the Government's mandatory renewable energy target, announced by the Prime Minister on 20 November 1997. The mandatory renewable energy target is designed to increase the amount of electricity in Australia that has been generated from renewable energy sources. By 2010, an additional 9,500 Giga Watt hours (GWh) of electricity will be required to be supplied from renewable energy sources, raising the contribution that renewable energy sources make to Australia's electricity supply to around 12 percent.

The Act requires wholesale purchasers of electricity (liable parties) to surrender 'renewable energy certificates' to the Renewable Energy Regulator, or pay a penalty. Liable parties meet a share of the target, in proportion to their share of the national wholesale electricity market. The Act also establishes the framework for renewable energy generators (eligible parties) to create renewable energy certificates that can then be sold to liable parties to meet their requirements under the Act. An individual liable party determines the number of renewable energy certificates to surrender by multiplying the Renewable Power Percentage (RPP) by the amount of electricity they purchase.

The Renewable Energy (Electricity) Regulations 2001 (the Principal Regulations) provide the administrative framework to implement the Act in relation to power station accreditation, eligibility requirements for fuel sources, and calculation methods for determining the number of renewable energy certificates that can be claimed.

The purpose of the Regulations is to amend the Principal Regulations to:

•       extend the definition of "accredited body" to include a body accredited at 31 July 2003 (Item 1 of Schedule 1 and Item 1 of Schedule 2 refer). An accredited body is a body accredited under the Joint Accreditation System of Australia and New Zealand to give product certification or component certification of solar water heaters;

•       specify the RPP for 2004, which, when used in a set formula calculates the number of renewable energy certificates that liable parties have to surrender to the Renewable Energy Regulator to avoid a penalty (Item 2 of Schedule 1 refers).

Subsection 39 (1) of the Act provides that the RPP for a given year must be specified in the regulations on or prior to 31 March in that year. However, subsection 39 (3) provides that, before the Governor-General makes a regulation under subsection 39 (1), the Minister must take into consideration the required amount of renewable electricity for the year, the estimated amount of electricity to be acquired for the year, and the amount by which the required GWhs of renewable electricity for previous years has exceeded, or has been exceeded by, the amount of renewable source electricity required under the scheme in those years ⁽²⁾; and

•       add new eligible solar water heater models to the eligibility tables in the Principal Regulations, specify eligibility end dates, and remove models where their eligibility has lapsed (Item 3 of Schedule 1 refers).

Further details of the Regulations are set out in Attachment A.

The Regulations would commence on gazettal.

It is intended that eligibility for renewable energy certificates for some solar water heaters be backdated to the date on which certification to Australian Standard 2712:2002 was obtained. This practice prevents manufacturers being disadvantaged by the time required to update the list of eligible solar water heater models in the Regulations. The benefits that they gain from being listed in the Regulations can be accessed for past sales, back to the date of certification against Australian Standard 2712:2002. The Australian Government Solicitor has advised that backdating of the eligible solar water heaters (Item 3 of Schedule 1 refers) to be listed in Schedule 7 of the Regulations would not offend subsection 48 (2) of the Acts Interpretation Act 1901, as the retrospective amendments would not disadvantage anyone other than the Commonwealth (Attachment B refers).

The Minute recommends that Regulations be made in the form proposed.

⁽¹⁾ In accordance with subsection 161 (2) of the Act, the Regulations have been available for public comment for a period of no less than 30 days.

⁽²⁾ In accordance with subsection 39 (3) of the Act, the calculation of the Renewable Power Percentage has given regard to the requirement that I must take into consideration the required amount of renewable electricity for the year, the estimated amount of electricity to be acquired for the year, and the amount by which the required GWhs of renewable source electricity for previous years has exceeded, or has been exceeded by, the amount of renewable electricity required under the scheme in those years.

....................................................

Minister for the Environment and Heritage

Authority: Subsection 161 (1) of the Renewable Energy (Electricity) Act 2000

Attachment A

Details of the Renewable Energy (Electricity) Amendment Regulations 2003 (No. 2)

Regulation 1 - Name of Regulations

This provides that the name of the Regulations is the Renewable Energy (Electricity) Amendment Regulations 2003 (No. 2).

Regulation 2 - Commencement

This provides for Regulations 1 to 3, Schedule 1 and Schedule 2 to commence on gazettal.

Regulation 3 - Amendment of the Renewable Energy (Electricity) Regulations 2001

This Regulation provides for Schedule 1 and Schedule 2 of the amendment Regulations to amend the Renewable Energy (Electricity) Regulations 2001.

Schedule 1 Amendments - Amendments commencing on gazettal

Item 1 of Part 1 - After subregulation 3 (4)

This amendment extends the definition of 'accredited body'. Currently, a device is listed in Part 2 of Schedule 7 if it satisfies the definition of a 'solar water heater', including the requirement that it has been certified by an accredited body to Australian Standard 2712:2002. An accredited body is a body accredited under the Joint Accreditation System of Australia and New Zealand to give product certification of solar water heaters. This definition is now being extended to advise that a body accredited at 31 July 2003 is taken to have been accredited from 1 July 2002. This change is required for a transition period to cover a time when no fully accredited bodies were in existence.

Item 2 of Part 4 - Paragraph 23 (c)

This amendment inserts the Renewable Power Percentage (RPP) for 2004, which is 1.25%. The RPP sets the rate of liability for the liable parties in order to meet the national targets set in the Act.

Item 3 of Schedule 7, Part 2

This amendment consolidates Part 2 of Schedule 7 by:

•       inserting additional solar water heaters that are eligible under the Regulations;

•       revising renewable energy certificate calculations for eligible solar water heaters;

•       deleting solar water heater models which are no longer eligible, as their eligibility has lapsed; and

•       inserting eligibility end dates for solar water heaters that did not provide documentation advising of revised product certification to Australian Standard 2712:2002 by 30 June 2003.

Schedule 2 Amendments - Amendments commencing on gazettal

Item 1 of Part 1 - subregulation 3 (5)

This amendment omits the proposed extended definition of 'accredited body'. The extended definition covers a transition period during which no accredited bodies were in existence. This transition period has now concluded.

Attachment B

>>> "Cole, Kathryn" <Kathryn.Cole@ags.gov.au> 11/18/03 05:33pm >>>

Jill,

I refer to our telephone conversation this morning during which you asked us to confirm that proposed subregulation 3(5) of the Renewable Energy (Electricity) Regulations 2001, which has retrospective effect, does not contravene subsection 48(2) of the Acts Interpretation Act 1901.

Subsection 48(2) provides:

(2)       A regulation, or a provision of regulations, has no effect if, apart from this subsection, it would take effect before the date of notification and as a result:

(a)       the rights of a person (other than the Commonwealth or an authority of the Commonwealth) as at the date of notification would be affected so as to disadvantage that person; or

(b)       liabilities would be imposed on a person (other than the Commonwealth or an authority of the Commonwealth) in respect of anything done or omitted to be done before the date of notification.

As we understand it, the retrospective regulations are required to ensure that the devices which have in the past, and which are presently, listed as solar water heaters in Schedule 7 to the Regulations do in fact satisfy the definition of 'solar water heater'. We are not aware of any persons whose rights would be adversely affected by the proposed retrospective regulation.

Yours sincerely

Kathryn Cole
Counsel
Australian Government Solicitor
T: 02 6253 7065 F: 02 6253 7304
kathryn.cole@ags.gov.au
Find out more about AGS at http://www.ags.gov.au

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