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Clean Energy Act 2011
No. 131, 2011
No longer in force
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Administered by
Department of the Treasury
Superseded version
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C2011A00131
18 November 2011
-
30 June 2012
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Part 1—Preliminary
1 Short title
2 Commencement
3 Objects
4 Simplified outline
5 Definitions
6 When supply of natural gas occurs
7 Electronic notice transmitted to the Regulator
8 Crown to be bound
9 Extension to external Territories
10 Extension to exclusive economic zone and continental shelf
11 Extension to Joint Petroleum Development Area
12 Application to foreign ships
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Part 2—Carbon pollution cap
13 Simplified outline
14 Carbon pollution cap
15 Disallowance of regulations
16 When regulations must be tabled
17 Default carbon pollution cap for 2015-16
18 Default carbon pollution cap for a later flexible charge year
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Part 3—Liable entities
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Division 1—Introduction
19 Simplified outline
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Division 2—Direct emitters of greenhouse gases
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Subdivision A—General rules
20 Liable entity—person who has operational control of a facility
21 Liable entity—participant in designated joint venture
22 Liable entity—holder of a liability transfer certificate
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Subdivision B—Landfill facilities
23 Liable entity for landfill emissions—person who has operational control of a landfill facility
24 Liable entity for landfill emissions—participant in designated joint venture
25 Liable entity for landfill emissions—holder of a liability transfer certificate
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Subdivision C—Adjustment of provisional emissions number in relation to a facility in the Joint Petroleum Development Area or the Greater Sunrise unit area
26 Joint Petroleum Development Area—adjustment of provisional emissions number
27 Joint Petroleum Development Area/Greater Sunrise unit area—adjustment of provisional emissions number
28 Greater Sunrise unit area—adjustment of provisional emissions number
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Subdivision D—Anti-avoidance
29 Anti-avoidance
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Subdivision E—Covered emissions from the operation of a facility
30 Covered emissions from the operation of a facility
31 Measurement of covered emissions from the operation of a facility
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Subdivision F—Emissions from the operation of a landfill facility
32 Legacy emissions from the operation of a landfill facility
32A Exempt landfill emissions
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Division 3—Natural gas
33 Liable entity—supply of natural gas
35 Liable entity—supply of natural gas to a person who quotes the person’s OTN
36 Liable entity—supply of natural gas to a person who misuses the person’s OTN
36A Extended meaning of use
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Division 4—Obligation transfer numbers
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Subdivision A—Issue of obligation transfer numbers
37 Issue of OTN
38 Application for OTN
39 Further information
40 Issue of OTN as the result of an application
41 Issue of OTN on the Regulator’s own initiative
42 Surrender of OTN
43 Cancellation of OTN
43A Publication of list of OTNs that have been cancelled or surrendered
44 OTN is not transferable
45 OTN Register
46 Evidentiary provisions
47 Notification of change of name or address of OTN holder or natural gas supplier
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Subdivision B—Method of quotation of obligation transfer numbers
48 Quotation of OTN
49 Effect of withdrawal of quotation of OTN
50 Withdrawal of quotation of OTN if OTN is cancelled or surrendered
51 Withdrawal of quotation of OTN by OTN holder
52 Withdrawal of quotation of OTN by agreement
53 Validation of quotation of OTN
54 Effect of surrender or cancellation of OTN—grace period for quotation in relation to a single supply
55 Effect of surrender or cancellation of OTN—grace period for quotation in relation to a class of supplies
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Subdivision C—Quotation of obligation transfer numbers
55A Large gas consuming facility
55B Quotation of OTN—large gas consuming facility
56 Quotation of OTN—large user of natural gas
57 Quotation of OTN—use of natural gas as a feedstock
58 Quotation of OTN—use of natural gas in manufacturing compressed natural gas, liquefied natural gas or liquid petroleum gas
58A Extended meaning of use
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Subdivision D—General provisions
59 Acceptance of quotation of OTN in relation to a single supply
60 Acceptance of quotation of OTN in relation to a class of supplies
62 False or misleading declaration
63 Misuse of OTN
64 Quotation of bogus OTN
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Division 5—Designated joint ventures
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Subdivision A—Mandatory designated joint venture
65 Mandatory designated joint venture
66 Notification
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Subdivision B—Declared designated joint venture
67 Joint venture declaration test
67A Relevant operator
68 Application for declaration
69 Further information
70 Making of declaration
71 Duration of declaration
71A Notification
72 Revocation of declaration
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Subdivision C—Participating percentage determination
73 Provisional application for participating percentage determination
74 Application for participating percentage determination
75 Further information
76 Participating percentage determination made in response to an application
77 Participating percentage determination made on the Regulator’s own initiative
78 Criteria for making participating percentage determination
78A Duration of determinations
79 Replacement determinations
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Division 6—Liability transfer certificates
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Subdivision A—Transfer of liability to another member of a corporate group
80 Corporate group transfer test
81 Application for liability transfer certificate
82 Further information
83 Issue of liability transfer certificate
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Subdivision B—Transfer of liability to a person who has financial control of a facility
84 Financial control transfer test
85 Application for liability transfer certificate
86 Further information
87 Issue of liability transfer certificate
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Subdivision C—Other provisions
88 Duration of liability transfer certificate
89 Surrender of liability transfer certificate
90 Cancellation of liability transfer certificate
91 Liability transfer certificate is not transferable
92 Financial control
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Division 7—Opt-in Scheme
92A Opt-in Scheme
92B Reduction of provisional emissions number
92C Reporting requirement
92D Record-keeping requirement
92E Other matters
92F Ancillary or incidental provisions
92G Commissioner of Taxation and Chief Executive Officer of Customs to be notified of declaration
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Part 4—Carbon units
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Division 1—Introduction
93 Simplified outline
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Division 2—Issue of carbon units
94 Issue of carbon units
95 Identification number
96 Vintage year
97 When carbon units may be issued
98 How carbon units are to be issued
99 Circumstances in which carbon units may be issued
100 Issue of carbon units for a fixed charge
100A Extension of issue period
101 Limit on issue of carbon units
102 Carbon units—total number
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Division 3—Property in, and transfer of, carbon units
103 A carbon unit is personal property
103A Ownership of carbon unit
104 Transfer of carbon units
105 Transmission of carbon units by assignment
106 Transmission of carbon units by operation of law etc.
107 Transfer of carbon units to another Registry account held by the transferor
108 Outgoing international transfers of carbon units
109 Incoming international transfers of carbon units
109A Registration of equitable interests in relation to a carbon unit
110 Equitable interests in relation to a carbon unit
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Division 4—Auctions of carbon units
111 Issue of carbon units as the result of an auction
112 Secondary market auctions of relinquished carbon units
113 Policies, procedures and rules for auctioning carbon units
114 Benchmark average auction charge
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Division 5—Special provisions relating to free carbon units
115 Cancellation of certain unused free carbon units
116 Buy-back of certain free carbon units
116A Extension of buy-back period
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Part 5—Emissions number
117 Simplified outline
118 Emissions number
119 Assessment of emissions number—incorrect report given by liable entity
120 Assessment of emissions number—no report given by liable entity
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Part 6—Surrender of eligible emissions units
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Division 1—Introduction
121 Simplified outline
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Division 2—How eligible emissions units are surrendered
122 How eligible emissions units are surrendered
123 Surrender restrictions
124 Charge on surrender of eligible international emissions units
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Division 3—Unit shortfalls
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Subdivision A—Fixed charge years
125 Provisional unit shortfall
126 Interim emissions number
127 Adjustment of total interim emissions numbers
128 Final unit shortfall
129 Estimation error unit shortfall
130 Remission of unit shortfall charge imposed on estimation error unit shortfall
131 Surplus and estimation error adjustment number
132 Refund—surplus surrender
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Subdivision B—Flexible charge years
133 Unit shortfall
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Division 4—Unit shortfall charge
134 When unit shortfall charge becomes due and payable
134A Remission of unit shortfall charge—voluntary disclosure by liable entity of incorrect emissions number
135 Late payment penalty
136 Recovery of unit shortfall charge and late payment penalty
137 Set-off
138 Liability transfer certificate—statutory guarantee
140 Refund of overpayments
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Division 5—Assessment of unit shortfall and unit shortfall charge
141 Assessment of unit shortfall and unit shortfall charge
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Division 6—Extension of surrender deadline
142 Extension of surrender deadline
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Part 7—Jobs and Competitiveness Program
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Division 1—Introduction
143 Aim and objects
144 Simplified outline
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Division 2—Formulation of the Jobs and Competitiveness Program
145 Jobs and Competitiveness Program
146 Relinquishment requirement
147 Reporting requirement
148 Record-keeping requirement
149 Other matters
150 Ancillary or incidental provisions
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Division 3—Compliance with reporting and record-keeping requirements under the Jobs and Competitiveness Program
151 Compliance with reporting and record-keeping requirements
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Division 4—Special information-gathering powers
152 Minister may obtain information
153 No assistance for 2 eligible financial years if corporation refuses or fails to comply with request for information
154 Disclosure of information to the Regulator
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Division 5—Productivity Commission inquiries
155 Productivity Commission inquiries
156 Matters to which the Productivity Commission must have regard
157 Report of inquiry
158 No limit on Productivity Minister’s powers
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Part 8—Coal-fired electricity generation
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Division 1—Introduction
159 Object
160 Simplified outline
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Division 2—Issue of free carbon units in respect of generation complexes
161 Issue of free carbon units in respect of generation complexes
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Division 3—Certificate of eligibility for coal-fired generation assistance
162 Application for certificate of eligibility for coal-fired generation assistance
163 Form of application
164 Further information
165 Issue of certificate of eligibility for coal-fired generation assistance
166 Criteria for issuing certificate of eligibility for coal-fired generation assistance
167 Annual assistance factor
168 Emissions intensity
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Division 4—Power system reliability
169 No assistance if generation complex does not pass the power system reliability test
170 Power system reliability test
171 Replacement capacity
172 Nomination of generation units
173 Validity of nomination
174 Anticipatory certification—reduction in nameplate rating
175 Anticipatory certification—cessation of registration as a generator
176 Intermediary registered as a generator
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Division 5—Clean Energy Investment Plans
177 No assistance unless Clean Energy Investment Plan given
178 Clean Energy Investment Plan
179 Copy of Clean Energy Investment Plan to be given to the Regulator
180 Publication of Clean Energy Investment Plan
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Division 6—Closure contracts
181 Restrictions on assistance if closure contract has been entered into
181A Exemptions from power system reliability test and Clean Energy Investment Plan
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Part 9—Publication of information
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Division 1—Introduction
182 Simplified outline
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Division 2—Information about liable entities
183 Liable Entities Public Information Database
184 Liable entities to be entered in the Information Database
185 Emissions number to be entered in the Information Database
186 Estimate of total of emissions numbers to be entered in the Information Database
187 Unit shortfall to be entered in the Information Database
188 Unpaid unit shortfall charge to be entered in the Information Database
189 Number of surrendered eligible emissions units to be entered in the Information Database
190 Relinquishment requirement to be entered in the Information Database
191 Unpaid administrative penalty to be entered in the Information Database
192 Number of relinquished units to be entered in the Information Database
193 Correction and rectification of the Information Database
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Division 3—Information about holders of Registry accounts
194 Information about holders of Registry accounts
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Division 4—Information about units
195 Information about auction results—general
196 Information about auction results—last 6 months
197 Information about issue of carbon units for a fixed charge
198 Information about issue of free carbon units
199 Quarterly reports about issue of free carbon units
200 Information about surrender of borrowed and banked eligible emissions units
201 Information about total emissions numbers and unit shortfalls
202 Publication of concise description of the characteristics of carbon units
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Division 5—Information about relinquishment requirements for persons other than liable entities
203 Information about relinquishment requirements
204 Information about unpaid administrative penalties
205 Information about number of relinquished units
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Division 6—Information about designated large landfill facilities
206 Publication of list of designated large landfill facilities
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Part 10—Fraudulent conduct
207 Simplified outline
208 Units issued as a result of fraudulent conduct—court may order relinquishment
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Part 11—Relinquishment of carbon units
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Division 1—Introduction
209 Simplified outline
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Division 2—How carbon units are relinquished
210 How carbon units are relinquished
211 Deemed relinquishment
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Division 3—Compliance with relinquishment requirements
212 Compliance with relinquishment requirements
213 Late payment penalty
214 Recovery of penalties
215 Set-off
216 Refund of overpayments
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Part 12—Notification of significant holding of carbon units
217 Simplified outline
218 Notification of significant holding of carbon units—controlling corporation of a group
219 Notification of significant holding of carbon units—non-group entity
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Part 13—Information-gathering powers
220 Simplified outline
221 Regulator may obtain information or documents
222 Copying documents—compensation
223 Copies of documents
224 Regulator may retain documents
225 Self-incrimination
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Part 14—Record-keeping requirements
226 Simplified outline
227 Record-keeping requirements—general
228 Record-keeping requirements—quotation of OTN
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Part 15—Monitoring powers
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Division 1—Simplified outline
229 Simplified outline
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Division 2—Appointment of inspectors and issue of identity cards
230 Appointment of inspectors
231 Identity cards
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Division 3—Powers of inspectors
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Subdivision A—Monitoring powers
232 Inspector may enter premises by consent or under a warrant
233 Monitoring powers of inspectors
234 Persons assisting inspectors
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Subdivision B—Powers of inspectors to ask questions and seek production of documents
235 Inspector may ask questions and seek production of documents
236 Self-incrimination
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Division 4—Obligations and incidental powers of inspectors
237 Consent
238 Announcement before entry under warrant
239 Inspector to be in possession of warrant
240 Details of warrant etc. to be given to occupier
241 Expert assistance to operate electronic equipment
242 Compensation for damage to electronic equipment
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Division 5—Occupier’s rights and responsibilities
243 Occupier entitled to observe execution of warrant
244 Occupier to provide inspector with facilities and assistance
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Division 6—Monitoring warrants
245 Monitoring warrants
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Division 7—Powers of magistrates
246 Powers of magistrates
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Part 16—Liability of executive officers of bodies corporate
247 Simplified outline
248 Civil penalties for executive officers of bodies corporate
249 Reasonable steps to prevent contravention
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Part 17—Civil penalty orders
250 Simplified outline
251 References to Court
252 Civil penalty orders
253 Who may apply for a civil penalty order
254 Two or more proceedings may be heard together
255 Time limit for application for an order
256 Civil evidence and procedure rules for civil penalty orders
257 Civil proceedings after criminal proceedings
258 Criminal proceedings during civil proceedings
259 Criminal proceedings after civil proceedings
260 Evidence given in proceedings for a civil penalty order not admissible in criminal proceedings
261 Mistake of fact
262 State of mind
263 Continuing contraventions
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Part 18—Infringement notices
264 Simplified outline
265 When an infringement notice can be given
266 Matters to be included in an infringement notice
267 Amount of penalty
268 Withdrawal of an infringement notice
269 What happens if the penalty is paid
270 Effect of this Part on civil penalty proceedings
271 Regulations
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Part 19—Offences relating to unit shortfall charge and administrative penalties
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Division 1—Introduction
272 Simplified outline
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Division 2—Offences relating to unit shortfall charge
273 Scheme to avoid existing liability to pay unit shortfall charge
274 Scheme to avoid future liability to pay unit shortfall charge
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Division 3—Offences relating to administrative penalties
275 Scheme to avoid existing liability to pay administrative penalty
276 Scheme to avoid future liability to pay administrative penalty
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Part 20—Enforceable undertakings
277 Simplified outline
278 Acceptance of undertakings
279 Enforcement of undertakings
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Part 21—Review of decisions
280 Simplified outline
281 Reviewable decisions
282 Applications for reconsideration of decisions made by delegates of the Regulator
283 Reconsideration by the Regulator
284 Deadline for reconsideration
285 Review by the Administrative Appeals Tribunal
286 Stay of proceedings for the recovery of unit shortfall charge or late payment penalty
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Part 22—Reviews by the Climate Change Authority
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Division 1—Simplified outline
287 Simplified outline
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Division 2—Periodic reviews of this Act and the associated provisions
288 Periodic reviews of this Act and the associated provisions to be conducted by the Climate Change Authority
289 Periodic reviews of the level of carbon pollution caps etc.
290 Updated review of the level of the carbon pollution cap for 2020-21
291 Periodic reviews of progress in achieving Australia’s emission reduction targets and national carbon budget
292 Report of review
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Division 3—Other reviews
293 Reviews of this Act and the associated provisions to be conducted by the Climate Change Authority at the request of the Minister or the Parliament
294 Report of review
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Part 23—Miscellaneous
295 Miscellaneous functions of the Regulator
296 Computerised decision-making
297 Regulator’s power to require further information
297A Actions may be taken by an agent of a person
298 Delegation by the Minister
299 Delegation by a State Minister or a Territory Minister
300 Delegation by the Secretary
301 Concurrent operation of State and Territory laws
302 Law relating to legal professional privilege not affected
303 Arrangements with States and Territories
303A Contracts and arrangements to protect energy security
303B Loans to owners etc. of emissions-intensive coal-fired generation complexes
304 Liability for damages
305 Executive power of the Commonwealth
306 Notional payments by the Commonwealth
307 Alternative constitutional basis
308 Compensation for acquisition of property
309 Prescribing matters by reference to other instruments
310 Administrative decisions under the regulations
311 Transitional—definitions
312 Regulations
