A Bill for an Act to deal with consequential matters arising from the enactment of the Carbon Pollution Reduction Scheme Act 2009, and for other purposes
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Carbon Pollution Reduction Scheme (Consequential Amendments) Act 2009.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
| Commencement information |
| Column 1 | Column 2 | Column 3 |
| Provision(s) | Commencement | Date/Details |
| 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent. | |
| 2. Schedule 1, items 1 to 64A | At the same time as section 3 of the Carbon Pollution Reduction Scheme Act 2009 commences. | |
| 3. Schedule 1, item 64B | At the same time as section 3 of the Carbon Pollution Reduction Scheme Act 2009 commences. However, the provision(s) do not commence at all if Schedule 1 to the National Greenhouse and Energy Reporting Amendment Act 2009 commences before the commencement of section 3 of the Carbon Pollution Reduction Scheme Act 2009. | |
| 4. Schedule 1, items 64C and 65 | At the same time as section 3 of the Carbon Pollution Reduction Scheme Act 2009 commences. | |
| 5. Schedule 1, item 66 | At the same time as section 3 of the Carbon Pollution Reduction Scheme Act 2009 commences. However, the provision(s) do not commence at all if Schedule 1 to the National Greenhouse and Energy Reporting Amendment Act 2009 commences before the commencement of section 3 of the Carbon Pollution Reduction Scheme Act 2009. | |
| 6. Schedule 1, items 67 to 97 | At the same time as section 3 of the Carbon Pollution Reduction Scheme Act 2009 commences. | |
| 7. Schedule 1, Part 2 | 1 July 2011. | 1 July 2011 |
| 8. Schedule 1, Part 3 | The later of: (a) the commencement of section 3 of the Carbon Pollution Reduction Scheme Act 2009; and (b) immediately after the commencement of Schedule 1 to the National Greenhouse and Energy Reporting Amendment Act 2009. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. | |
| 9. Schedule 2 | At the same time as section 3 of the Carbon Pollution Reduction Scheme Act 2009 commences. | |
Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
3 Schedule(s)
(1) Each Act, and each set of regulations, that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
(2) The amendment of any regulation under subsection (1) does not prevent the regulation, as so amended, from being amended or repealed by the Governor‑General.
Schedule 1—General amendments
Part 1—Amendments commencing at the same time as section 3 of the Carbon Pollution Reduction Scheme Act 2009 commences
Division 1—Amendments
Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006
1A Section 5
Insert:
eligible emissions unit has the same meaning as in the Carbon Pollution Reduction Scheme Act 2009.
1B Subsection 6(2) (after paragraph (b) of the cell at table item 33, column headed “Provision of a designated service”)
Insert:
| (ba) an eligible emissions unit; or |
1C Subsection 6(2) (paragraph (d) of the cell at table item 33, column headed “Provision of a designated service”)
After “derivatives”, insert “, eligible emissions units”.
Australian Securities and Investments Commission Act 2001
1 After paragraph 12BAA(7)(k)
Insert:
(l) an Australian emissions unit;
(la) an eligible international emissions unit;
2 Paragraph 12BAB(1)(g)
After “financial product”, insert “(other than an Australian emissions unit or an eligible international emissions unit)”.
3 At the end of subsection 127(2A)
Add:
; (e) the Australian Climate Change Regulatory Authority.
Corporations Act 2001
4 Section 9
Insert:
Australian emissions unit has the same meaning as in the Carbon Pollution Reduction Scheme Act 2009.
5 Section 9
Insert:
eligible international emissions unit has the same meaning as in the Carbon Pollution Reduction Scheme Act 2009.
6 After paragraph 764A(1)(k)
Insert:
(l) an Australian emissions unit;
(la) an eligible international emissions unit;
Financial Management and Accountability Regulations 1997
11 Part 1 of Schedule 1 (after table item 104)
Insert:
| 104A | Australian Climate Change Regulatory Authority, comprising: (a) the Chair and the other members of the Australian Climate Change Regulatory Authority; and (b) the staff mentioned in section 36 of the Australian Climate Change Regulatory Authority Act 2009; and (c) the persons whose services are made available to the Australian Climate Change Regulatory Authority under section 37 of that Act; and (d) the consultants engaged under subsection 38(1) of that Act. See Note B | Chair |
12 Part 1 of Schedule 1 (table item 173)
Repeal the item.
National Greenhouse and Energy Reporting Act 2007
13 Section 7
Insert:
Authority means the Australian Climate Change Regulatory Authority.
14 Section 7 (definition of Greenhouse and Energy Data Officer)
Repeal the definition.
15 Section 7 (definition of greenhouse and energy information)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
15A Section 7
Insert:
official of the Authority has the same meaning as in the Australian Climate Change Regulatory Authority Act 2009.
15B Section 7
Insert:
protected information has the same meaning as in the Australian Climate Change Regulatory Authority Act 2009.
16 Paragraph 9(1)(b)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
17 Paragraph 11(1)(b)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
18 Paragraph 15(1)(a)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
19 Subsections 16(1), (3) and (4)
Omit “Greenhouse and Energy Data Officer” (wherever occurring), substitute “Authority”.
20 Subsections 17(1), (2), (3) and (4)
Omit “Greenhouse and Energy Data Officer” (wherever occurring), substitute “Authority”.
21 Subsections 18(1) and (3)
Omit “Greenhouse and Energy Data Officer” (wherever occurring), substitute “Authority”.
22 Subsection 18(4)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
23 Subsection 18(4)
Omit “his or her”, substitute “the Authority’s”.
24 Subsection 18(5)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
25 Subsection 19(1)
Omit “Greenhouse and Energy Data Officer” (wherever occurring), substitute “Authority”.
Note: The heading to section 19 is altered by omitting “Greenhouse and Energy Data Officer” and substituting “the Authority”.
26 Subsections 19(6) and (9)
Omit “Greenhouse and Energy Data Officer” (wherever occurring), substitute “Authority”.
27 Subsection 20(1)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
28 Subsections 20(2) and (3)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
30 Subsections 20(4) and (5)
Omit “Greenhouse and Energy Data Officer” (wherever occurring), substitute “Authority”.
31 Subsections 21(1), (4) and (6)
Omit “Greenhouse and Energy Data Officer” (wherever occurring), substitute “Authority”.
32 Subsections 21A(1), (2) and (3)
Omit “Greenhouse and Energy Data Officer” (wherever occurring), substitute “Authority”.
33 Paragraphs 22(1)(b) and (2)(b)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
34 After paragraph 23(1)(a)
Insert:
(aa) the information is not protected information obtained by the person in the person’s capacity as an official of the Authority; and
34B Paragraphs 23(2)(a) and (b)
Repeal the paragraphs.
34C At the end of section 23
Add:
Note: See also Part 3 of the Australian Climate Change Regulatory Authority Act 2009 (secrecy obligations of officials of the Authority).
35 Subsections 24(1), (1A), (1B) and (1C)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
36 Subsection 24(1C)
Omit “he or she”, substitute “the Authority”.
37 Subsections 24(2), (3), (5) and (6)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
38 Subsection 25(1)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
39 Subsections 25(2), (3) and (4)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
40 Subsections 26(1), (2), (3), (4) and (5)
Omit “Greenhouse and Energy Data Officer” (wherever occurring), substitute “Authority”.
41 Subsections 27(1), (1A) and (2)
Omit “Greenhouse and Energy Data Officer” (wherever occurring), substitute “Authority”.
42 Subsections 28(1), (2) and (3)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
43 Subsection 31(1)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
44 Subsection 39(1)
Omit “Greenhouse and Energy Data Officer” (wherever occurring), substitute “Authority”.
45 Paragraph 40(1)(c)
Omit “Greenhouse and Energy Data Officer” (wherever occurring), substitute “Authority”.
46 Subsection 42(2)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
47 Subsections 45(1), (3) and (4)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
48 Subsections 46(1) and (2)
Omit “Greenhouse and Energy Data Officer” (wherever occurring), substitute “Authority”.
49 Division 1 of Part 6
Repeal the Division.
50 Division 2 of Part 6 (heading)
Repeal the heading, substitute:
Division 2—Decisions by the Authority
51 Subsection 54(1)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
Note: The heading to section 54 is altered by omitting “Greenhouse and Energy Data Officer” and substituting “Authority”.
52 Paragraph 54(1)(b)
Omit “his or her”, substitute “the Authority’s”.
53 Subsections 54(2), (3), (4) and (5)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
54 Subsection 54(5)
Omit “he or she” (wherever occurring), substitute “the Authority”.
55 Subsection 55(1)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
Note: The heading to section 55 is altered by omitting “Greenhouse and Energy Data Officer” and substituting “Authority”.
56 Paragraph 55(1)(b)
Omit “his or her”, substitute “the Authority’s”.
57 Subsections 55(2) and (3)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
58 Subsections 55(4) and (5)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
59 Subsection 55(5)
Omit “he or she” (wherever occurring), substitute “the Authority”.
60 Section 56
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
61 Subsections 57(1) and (2)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
62 Subsections 58(1) and (2)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
63 Subsections 71(1), (2) and (4)
Omit “Greenhouse and Energy Data Officer” (wherever occurring), substitute “Authority”.
64 Subsection 73(1)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
64A Subsection 73(2)
Omit “Greenhouse and Energy Data Officer” (first occurring), substitute “Authority”.
64B Subparagraph 73(2)(a)(ii)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
64C Subsection 73(5)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
65 Subsections 74(1) and (2)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
66 Subsections 75(1) and (2)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
Ozone Protection and Synthetic Greenhouse Gas Management Act 1989
67 After section 67A
Insert:
67B Disclosure of information to the Australian Climate Change Regulatory Authority
Scope
(1) This section applies to information obtained under this Act or the regulations.
Disclosure
(2) The Minister may disclose the information to the Australian Climate Change Regulatory Authority for the purposes of, or in connection with, the performance of the functions, or the exercise of the powers, of the Australian Climate Change Regulatory Authority.
Other powers of disclosure not limited
(3) This section does not, by implication, limit the Minister’s powers to disclose the information to a person other than the Australian Climate Change Regulatory Authority.
Renewable Energy (Electricity) Act 2000
68 Subsection 5(1)
Insert:
Authority means the Australian Climate Change Regulatory Authority.
69 Subsection 5(1) (definition of Office of the Renewable Energy Regulator)
Repeal the definition.
70 Subsection 5(1)
Insert:
official of the Authority has the same meaning as in the Australian Climate Change Regulatory Authority Act 2009.
71 Subsection 5(1) (definition of protected document)
Repeal the definition.
72 Subsection 5(1) (definition of protected information)
Repeal the definition.
73 Subsection 5(1) (definition of Regulator)
Repeal the definition.
74 Subsection 5(1) (definition of senior employee)
Omit “Office of the Renewable Energy Regulator”, substitute “Authority”.
75 Subsection 5(1) (definition of senior officer)
Repeal the definition, substitute:
senior officer of the Authority means a person who:
(a) is a member of the staff of the Authority; and
(b) either:
(i) is an SES employee or acting SES employee; or
(ii) holds or performs the duties of an Executive Officer (Level 2) position.
76 Subsection 5(1)
Insert:
staff of the Authority has the same meaning as in the Australian Climate Change Regulatory Authority Act 2009.
77 Subsection 30D(5)
Omit “he or she”, substitute “the Authority”.
78 Subsection 107(1)
Omit “an officer or employee of the Office of the Renewable Energy Regulator”, substitute “a member of the staff of the Authority”.
79 Part 12 (heading)
Repeal the heading, substitute:
Part 12—Publication of information
80 Sections 126 to 133
Repeal the sections.
81 Part 14
Repeal the Part.
82 Subsection 156(1)
Omit “Office of the Renewable Energy Regulator”, substitute “Authority”.
Note: The heading to subsection 156(1) is altered by omitting “Office of the Renewable Energy Regulator” and substituting “Authority”.
83 Bulk amendments—references to the Regulator etc.
The Renewable Energy (Electricity) Act 2000 other than the following provisions:
(a) sections 126, 129, 130, 131 and 132;
(b) Part 14;
is amended as follows:
(c) by omitting “the Regulator” (wherever occurring) and substituting “the Authority”;
(d) by omitting “The Regulator” (wherever occurring) and substituting “The Authority”;
(e) by omitting “the Regulator’s” (wherever occurring) and substituting “the Authority’s”.
Note: The headings to sections and subsections of the Renewable Energy (Electricity) Act 2000 other than the following provisions:
(a) Part 14;
(b) subsection 156(1);
are altered as follows:
(c) by omitting “Regulator” (wherever occurring) and substituting “Authority”;
(d) by omitting “Regulator” (wherever occurring) and substituting “Authority”;
(e) by omitting “Regulator’s” (wherever occurring) and substituting “Authority’s”;
(f) by omitting “Regulator’s” (wherever occurring) and substituting “Authority’s”.
Trade Practices Act 1974
84 After paragraph 44AAF(3)(c)
Insert:
(ca) the Australian Climate Change Regulatory Authority;
85 Paragraph 44AAF(3)(d)
Omit “(b) or (c)”, substitute “(b), (c) or (ca)”.
86 After paragraph 155AAA(12)(l)
Insert:
(la) the Australian Climate Change Regulatory Authority;
Division 2—Transitional provisions
87 Transitional—acts of the Greenhouse and Energy Data Officer to be attributed to the Australian Climate Change Regulatory Authority
(1) This item applies to anything done by, or in relation to, the Greenhouse and Energy Data Officer under the National Greenhouse and Energy Reporting Act 2007 before the commencement of this item.
(2) The National Greenhouse and Energy Reporting Act 2007 has effect, after that commencement, as if the thing had been done by, or in relation to, the Australian Climate Change Regulatory Authority.
88 Transitional—acts of the Renewable Energy Regulator to be attributed to the Australian Climate Change Regulatory Authority
(1) This item applies to anything done by, or in relation to, the Renewable Energy Regulator under the Renewable Energy (Electricity) Act 2000 before the commencement of this item.
(2) The Renewable Energy (Electricity) Act 2000 has effect, after that commencement, as if the thing had been done by, or in relation to, the Australian Climate Change Regulatory Authority.
89 Transitional—substitution of the Australian Climate Change Regulatory Authority as a party in certain proceedings
(1) This item applies to proceedings to which the Greenhouse and Energy Data Officer or the Renewable Energy Regulator was a party and that were pending in any court or tribunal immediately before the commencement of this item.
(2) The Australian Climate Change Regulatory Authority is substituted for the Greenhouse and Energy Data Officer or the Renewable Energy Regulator, as the case requires, from that commencement, as a party to those proceedings.
90 Transitional—transfer of records to the Australian Climate Change Regulatory Authority
(1) This item applies to any records or documents that:
(a) were in the possession of the Greenhouse and Energy Data Officer or the Renewable Energy Regulator immediately before the commencement of this item; and
(b) relate to the Greenhouse and Energy Data Officer, the Renewable Energy Regulator or the Office of the Renewable Energy Regulator.
(2) The records and documents are to be transferred to the Australian Climate Change Regulatory Authority after the commencement of this item.
91 Transitional—transfer of Ombudsman investigations
If:
(a) before the commencement of this item, a complaint was made to the Ombudsman, or the Ombudsman began an investigation, under the Ombudsman Act 1976 in relation to action taken by the Greenhouse and Energy Data Officer or the Renewable Energy Regulator; and
(b) immediately before the commencement of this item, the Ombudsman had not finally disposed of the matter in accordance with the Ombudsman Act 1976;
the Ombudsman Act 1976 applies after the commencement of this item as if that action had been taken by the Australian Climate Change Regulatory Authority.
92 Transitional—secrecy of information obtained under the National Greenhouse and Energy Reporting Act 2007
Despite the amendments of section 23 of the National Greenhouse and Energy Reporting Act 2007 made by this Part, that section continues to apply, in relation to information obtained before the commencement of this item, as if those amendments had not been made.
93 Transitional—secrecy of information obtained under the Renewable Energy (Electricity) Act 2000
Despite the repeal of the following provisions of the Renewable Energy (Electricity) Act 2000 by this Part:
(a) the definition of Office of the Renewable Energy Regulator in subsection 5(1);
(b) the definition of protected document in subsection 5(1);
(c) the definition of protected information in subsection 5(1);
(d) the definition of Regulator in subsection 5(1);
(e) subsection 126(1);
(f) sections 127 to 133;
those provisions continue to apply, in relation to:
(g) a protected document obtained or made by a person before the commencement of this item; or
(h) protected information disclosed to, or obtained by, a person before the commencement of this item;
as if:
(i) each reference in sections 129, 130, 131 and 132 of that Act to the Regulator were a reference to the Australian Climate Change Regulatory Authority; and
(j) the reference in section 129 to a person to whom Part 12 of that Act applies were a reference to an official of the Authority; and
(k) those repeals had not happened.
94 Transitional—references in instruments to the Greenhouse and Energy Data Officer or the Renewable Energy Regulator
(1) For the purposes of this item, an eligible instrument is an instrument that:
(a) was in force immediately before the commencement of this item; and
(b) contains a reference to the Greenhouse and Energy Data Officer or the Renewable Energy Regulator.
(2) The Minister may, by legislative instrument, declare that a specified eligible instrument has effect as if each reference in the instrument to the Greenhouse and Energy Data Officer or the Renewable Energy Regulator, as the case may be, were a reference to the Australian Climate Change Regulatory Authority.
95 Transitional—Registry accounts
Scope
(1) This item applies to an account held by a person within the register:
(a) known as the Australian National Registry of Emissions Units; and
(b) that was in existence under the executive power of the Commonwealth immediately before the commencement of this item.
Continuation of account
(2) The account continues in existence as a Registry account under the Carbon Pollution Reduction Scheme Act 2009.
96 Transitional—Commonwealth Registry accounts
Scope
(1) This item applies to an account held by the Commonwealth within the register:
(a) known as the Australian National Registry of Emissions Units; and
(b) that was in existence under the executive power of the Commonwealth immediately before the commencement of this item.
Designation of account
(2) If, immediately before the commencement of this item, the account was described as a Commonwealth holding account, the Carbon Pollution Reduction Scheme Act 2009 has effect as if the account had been designated by the Australian Climate Change Regulatory Authority as a Commonwealth holding account.
(3) If, immediately before the commencement of this item, the account was described as the retirement account for the first commitment period, the Carbon Pollution Reduction Scheme Act 2009 has effect as if the account had been designated by the Australian Climate Change Regulatory Authority as the retirement account for the first commitment period.
(4) If, immediately before the commencement of this item, the account was described as the net source cancellation account for the first commitment period, the Carbon Pollution Reduction Scheme Act 2009 has effect as if the account had been designated by the Australian Climate Change Regulatory Authority as the net source cancellation account for the first commitment period.
(5) If, immediately before the commencement of this item, a Commonwealth Registry account was described as the non‑compliance cancellation account for the first commitment period, the Carbon Pollution Reduction Scheme Act 2009 has effect as if the account had been designated by the Australian Climate Change Regulatory Authority as the non‑compliance cancellation account for the first commitment period.
(6) If, immediately before the commencement of this item, the account was described as the voluntary cancellation account for the first commitment period, the Carbon Pollution Reduction Scheme Act 2009 has effect as if the account had been designated by the Australian Climate Change Regulatory Authority as the voluntary cancellation account for the first commitment period.
(7) If, immediately before the commencement of this item, the account was described as the mandatory cancellation account for the first commitment period, the Carbon Pollution Reduction Scheme Act 2009 has effect as if the account had been designated by the Australian Climate Change Regulatory Authority as the mandatory cancellation account for the first commitment period.
(8) If, immediately before the commencement of this item, a Commonwealth Registry account was described as the tCER replacement (expiry) cancellation account for the first commitment period, the Carbon Pollution Reduction Scheme Act 2009 has effect as if the account had been designated by the Australian Climate Change Regulatory Authority as the tCER replacement (expiry) cancellation account for the first commitment period.
(9) If, immediately before the commencement of this item, the account was described as the lCER replacement (expiry) cancellation account for the first commitment period, the Carbon Pollution Reduction Scheme Act 2009 has effect as if the account had been designated by the Australian Climate Change Regulatory Authority as the lCER replacement (expiry) cancellation account for the first commitment period.
(10) If, immediately before the commencement of this item, the account was described as the lCER replacement (storage reversal) cancellation account for the first commitment period, the Carbon Pollution Reduction Scheme Act 2009 has effect as if the account had been designated by the Australian Climate Change Regulatory Authority as the lCER replacement (storage reversal) cancellation account for the first commitment period.
(11) If, immediately before the commencement of this item, the account was described as the lCER replacement (non‑certification) cancellation account for the first commitment period, the Carbon Pollution Reduction Scheme Act 2009 has effect as if the account had been designated by the Australian Climate Change Regulatory Authority as the lCER replacement (non‑certification) cancellation account for the first commitment period.
97 Transitional—regulations
The Governor‑General may make regulations in relation to transitional matters arising out of the amendments made by this Part.
Part 2—Amendments commencing on 1 July 2011
Division 1—Amendments
National Greenhouse and Energy Reporting Act 2007
98 Section 3
Before “The”, insert “(1)”.
Note: The heading to section 3 is replaced by the heading “Objects”.
99 Section 3
Before “object”, insert “first”.
100 Paragraph 3(a)
Repeal the paragraph.
101 At the end of section 3
Add:
(2) The second object of this Act is to underpin the Carbon Pollution Reduction Scheme Act 2009 by imposing various registration, reporting and record‑keeping requirements.
102 Section 4
Before “This Act”, insert “(1)”.
103 Section 4
After “This Act”, insert “(except to the extent to which it underpins the Carbon Pollution Reduction Scheme Act 2009)”.
104 At the end of section 4
Add:
(2) To the extent to which this Act underpins the Carbon Pollution Reduction Scheme Act 2009, this Act relies on the same legislative powers that support the Carbon Pollution Reduction Scheme Act 2009.
105 Section 5
Before “This Act”, insert “(1)”.
106 Subparagraph 5(a)(i)
Repeal the subparagraph.
106A Paragraph 5(b)
Omit “this section”, substitute “this subsection”.
107 At the end of section 5
Add:
(2) This Act is intended to apply to the exclusion of a law of a State or Territory, or a part of such a law:
(a) that provides for the reporting or disclosure of information related to greenhouse gas emissions; and
(b) that the regulations provide is a law, or part of a law, to which this subsection applies;
so far as the law, or part of the law, would otherwise apply in relation to a person other than:
(c) a local governing body; or
(d) a statutory authority (within the meaning of the Carbon Pollution Reduction Scheme Act 2009) of a State or Territory.
108 After section 5
Insert:
5A Crown to be bound
(1) This Act binds the Crown in each of its capacities.
(2) This Act does not make the Crown liable to a pecuniary penalty or to be prosecuted for an offence.
(3) The protection in subsection (2) does not apply to an authority of the Crown.
109 Section 6
Repeal the section, substitute:
6 Extension to external Territories
This Act extends to every external Territory.
6A Extension to exclusive economic zone and continental shelf
This Act extends to a matter relating to the exercise of Australia’s sovereign rights in the exclusive economic zone or the continental shelf.
6B Extension to Joint Petroleum Development Area
This Act extends to the Joint Petroleum Development Area.
6C Application to foreign ships
This Act does not apply to the extent that its application would be inconsistent with the exercise of rights of foreign ships in:
(a) the territorial sea; or
(b) the exclusive economic zone; or
(c) waters of the continental shelf;
in accordance with the United Nations Convention on the Law of the Sea.
110 Section 7
Insert:
activity includes:
(a) a condition; or
(b) a circumstance; or
(c) a state of affairs;
relating to:
(d) solid waste; or
(e) carbon capture and storage; or
(f) other storage; or
(g) stockpiling; or
(h) any other matter or thing.
110A Section 7
Insert:
approved by the Authority means approved by the Authority, in writing, for the purposes of the provision in which the term occurs.
Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
111 Section 7
Insert:
carbon capture and storage means:
(a) the storage of a greenhouse gas substance in a part of a geological formation; or
(b) the injection of a greenhouse gas substance into a part of a geological formation for the purposes of such storage; or
(c) the capture, compression, processing, offloading, transportation or piped conveyance of a greenhouse gas substance, where the compression, processing, offloading, transportation or piped conveyance is for the purposes of such storage.
An expression used in this definition has the same meaning as in the Offshore Petroleum and Greenhouse Gas Storage Act 2006. For this purpose, assume that each reference in the definition of greenhouse gas substance in section 7 of that Act to a prescribed greenhouse gas were a reference to a greenhouse gas (within the meaning of this Act).
112 Section 7 (definition of carbon dioxide equivalence)
Repeal the definition, substitute:
carbon dioxide equivalence:
(a) of an amount of greenhouse gas—means the amount of the gas multiplied by a value specified in the regulations in relation to that kind of greenhouse gas; or
(b) of an amount of potential greenhouse gas emissions embodied in an amount of an eligible upstream fuel—has the meaning given by section 7D.
112A Section 7
Insert:
carbon pollution reduction scheme has the same meaning as in the Carbon Pollution Reduction Scheme Act 2009.
113 Section 7
Insert:
continental shelf has the same meaning as in the Seas and Submerged Lands Act 1973.
114 Section 7
Insert:
eligible financial year has the same meaning as in the Carbon Pollution Reduction Scheme Act 2009.
115 Section 7
Insert:
eligible upstream fuel has the same meaning as in the Carbon Pollution Reduction Scheme Act 2009.
116 Section 7 (definition of emission)
Repeal the definition, substitute:
emission of greenhouse gas means:
(a) a scope 1 emission of greenhouse gas; or
(b) a scope 2 emission of greenhouse gas.
117 Section 7
Insert:
emissions number has the same meaning as in the Carbon Pollution Reduction Scheme Act 2009.
118 Section 7
Insert:
executive officer of a body corporate means:
(a) a director of the body corporate; or
(b) the chief executive officer (however described) of the body corporate; or
(c) the chief financial officer (however described) of the body corporate; or
(d) the secretary of the body corporate.
119A Section 7
Insert:
foreign country has the same meaning as in the Carbon Pollution Reduction Scheme Act 2009.
119B Section 7
Insert:
foreign person means any of the following:
(a) an individual who is not ordinarily resident in Australia;
(b) a body corporate that:
(i) is incorporated outside Australia; or
(ii) is an authority of a foreign country;
(c) a corporation sole that:
(i) is incorporated outside Australia; or
(ii) is an authority of a foreign country;
(d) a body politic of a foreign country;
(e) a trust, where the trustee, or a majority of the trustees, are covered by any or all of the above paragraphs.
119C Section 7 (definition of greenhouse and energy audit)
Omit “74A”, substitute “74C”.
120 Section 7 (definition of greenhouse gas)
Repeal the definition, substitute:
greenhouse gas has the meaning given by section 7A.
121 Section 7 (paragraph (b) of the definition of greenhouse gas project)
Omit “regulations;”, substitute “regulations.”.
122 Section 7 (definition of greenhouse gas project)
Omit all the words from and including “but” to the end of the definition.
122A Section 7 (definition of group)
Omit “subsection 8(1)”, substitute “section 8”.
123 Section 7
Insert:
import has the same meaning as in the Carbon Pollution Reduction Scheme Act 2009.
124 Section 7 (definition of innocent passage)
Repeal the definition.
125 Section 7
Insert:
Joint Petroleum Development Area has the same meaning as in the Petroleum (Timor Sea Treaty) Act 2003.
125A Section 7 (definition of joint venture)
Repeal the definition.
126 Section 7
Insert:
liable entity has the same meaning as in the Carbon Pollution Reduction Scheme Act 2009.
126A Section 7
Insert:
liability transfer certificate has the same meaning as in the Carbon Pollution Reduction Scheme Act 2009.
127 Section 7
Insert:
local governing body means a local governing body established by or under a law of a State or Territory.
128 Section 7 (definition of member)
Before “has”, insert “, in relation to a group,”.
129 Section 7
Insert:
non‑group entity means a person who is not a member of a controlling corporation’s group.
130 Section 7 (definition of oil or gas extraction activity)
Repeal the definition.
131 Section 7
Insert:
operation, in relation to a facility, includes the subsistence of the facility.
131A Section 7
Insert:
OTN has the same meaning as in the Carbon Pollution Reduction Scheme Act 2009.
132 Section 7 (definition of operational control)
Omit “11”, substitute “11, 11A, 11B or 11C”.
134 Section 7
Insert:
person means any of the following:
(a) an individual;
(b) a body corporate;
(c) a trust;
(d) a corporation sole;
(e) a body politic;
(f) a local governing body.
135 Section 7
Insert:
potential greenhouse gas emissions embodied in an amount of an eligible upstream fuel has the meaning given by section 7C.
136 Section 7
Insert:
provisional emissions number has the same meaning as in the Carbon Pollution Reduction Scheme Act 2009.
136A Section 7
Insert:
quote, in relation to an OTN, has the same meaning as in the Carbon Pollution Reduction Scheme Act 2009.
136B Section 7 (definition of registered corporation)
Omit “Division 3 of Part 2”, substitute “this Act”.
136C Section 7
Insert:
registered person means a person registered under this Act.
137 Section 7
Insert:
scope 1 emission of greenhouse gas has the meaning given by section 10.
138 Section 7
Insert:
scope 2 emission of greenhouse gas has the meaning given by section 10.
139 Section 7
Insert:
supply has the same meaning as in the Carbon Pollution Reduction Scheme Act 2009.
140 Section 7
Insert:
synthetic greenhouse gas has the meaning given by section 7B.
141 Section 7
Insert:
territorial sea has the same meaning as in the Seas and Submerged Lands Act 1973.
142 Section 7
Insert:
trust means a person in the capacity of trustee or, as the case requires, a trust estate.
143 Section 7
Insert:
trustee has the same meaning as in the Income Tax Assessment Act 1997.
144 Section 7
Insert:
trust estate has the same meaning as in the Income Tax Assessment Act 1997.
145 Section 7
Insert:
United Nations Convention on the Law of the Sea means the United Nations Convention on the Law of the Sea done at Montego Bay on 10 December 1982.
Note: The text of the Convention is set out in Australian Treaty Series 1994 No. 31 ([1994] ATS 31). In 2009, the text of an international agreement in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
146 After section 7
Insert:
7A Greenhouse gas
For the purposes of this Act and the Carbon Pollution Reduction Scheme Act 2009, each of the following is a greenhouse gas:
(a) carbon dioxide;
(b) methane;
(c) nitrous oxide;
(d) a synthetic greenhouse gas;
(e) a prescribed gas.
7B Synthetic greenhouse gas
(1) For the purposes of this Act and the Carbon Pollution Reduction Scheme Act 2009, each of the following is a synthetic greenhouse gas:
(a) sulphur hexafluoride;
(b) a hydrofluorocarbon of a kind specified in the table in subsection (2);
(c) a perfluorocarbon of a kind specified in the table in subsection (3).
Table 1—Hydrofluorocarbons
(2) Table 1 is as follows:
| Hydrofluorocarbons |
| Item | Hydrofluorocarbon | Chemical formula |
| 1 | HFC‑23 | CHF3 |
| 2 | HFC‑32 | CH2F2 |
| 3 | HFC‑41 | CH3F |
| 4 | HFC‑43‑10mee | C5H2F10 |
| 5 | HFC‑125 | C2HF5 |
| 6 | HFC‑134 | C2H2F4 (CHF2CHF2) |
| 7 | HFC‑134a | C2H2F4 (CH2FCF3) |
| 8 | HFC‑143 | C2H3F3 (CHF2CH2F) |
| 9 | HFC‑143a | C2H3F3 (CF3CH3) |
| 10 | HFC‑152a | C2H4F2 (CH3CHF2) |
| 11 | HFC‑227ea | C3HF7 |
| 12 | HFC‑236fa | C3H2F6 |
| 13 | HFC‑245ca | C3H3F5 |
Table 2—Perfluorocarbons
(3) Table 2 is as follows:
| Perfluorocarbons |
| Item | Perfluorocarbon | Chemical formula |
| 1 | Perfluoromethane (tetrafluoromethane) | CF4 |
| 2 | Perfluoroethane (hexafluoroethane) | C2F6 |
| 3 | Perfluoropropane | C3F8 |
| 4 | Perfluorobutane | C4F10 |
| 5 | Perfluorocyclobutane | c‑C4F8 |
| 6 | Perfluoropentane | C5F12 |
| 7 | Perfluorohexane | C6F14 |
7C Potential greenhouse gas emissions embodied in an amount of eligible upstream fuel
(1) For the purposes of this Act and the Carbon Pollution Reduction Scheme Act 2009, the potential greenhouse gas emissions embodied in an amount of eligible upstream fuel is:
(a) the amount of the greenhouse gas; or
(b) the amounts of the greenhouse gases;
that would be released into the atmosphere as a result of the combustion of the amount of the fuel.
Default method
(2) The Minister may determine that the amount of a particular greenhouse gas that would be released into the atmosphere as a result of the combustion of an amount of eligible upstream fuel is taken, for the purposes of:
(a) this Act (other than subsections (3) and (4) of this section); and
(b) the Carbon Pollution Reduction Scheme Act 2009;
to be the amount of the fuel multiplied by a value specified in the determination in relation to that kind of fuel.
Prescribed alternative method
(3) However, if:
(a) a report relating to an eligible financial year was given by a person under section 22A; and
(b) the report was given before the end of 4 months after the end of the eligible financial year; and
(c) ascertaining the potential greenhouse emissions embodied in an amount of eligible upstream fuel is relevant to working out a provisional emissions number of the person for the eligible financial year; and
(d) the report contained a statement to the effect that the person has made a choice to use the prescribed alternative method to ascertain the potential greenhouse gas emissions; and
(e) the prescribed alternative method was complied with in ascertaining the potential greenhouse gas emissions;
then, for the purposes of this Act and the Carbon Pollution Reduction Scheme Act 2009:
(f) the potential greenhouse gas emissions are to be ascertained in accordance with the prescribed alternative method; and
(g) a determination under subsection (2) does not apply in ascertaining the potential greenhouse gas emissions.
(4) For the purposes of this section, the prescribed alternative method is a method that:
(a) is for ascertaining the potential greenhouse gas emissions embodied in an amount of eligible upstream fuel; and
(b) is specified in a determination made by the Minister; and
(c) involves testing one or more samples of the fuel.
Combustion
(5) The Minister may determine that, for the purposes of this section, it is to be assumed that the combustion of an amount of eligible upstream fuel takes place in the circumstances specified in the determination in relation to that kind of fuel.
Determination
(6) A determination made under subsection (2), (4) or (5) is a legislative instrument.
7D Carbon dioxide equivalence of potential greenhouse gas emissions embodied in an amount of eligible upstream fuel
Scope
(1) This section applies if the potential greenhouse gas emissions embodied in an amount of eligible upstream fuel consists of:
(a) an amount of a greenhouse gas; or
(b) amounts of one or more greenhouse gases.
Carbon dioxide equivalence
(2) For the purposes of this Act and the Carbon Pollution Reduction Scheme Act 2009, the carbon dioxide equivalence of the potential greenhouse gas emissions is the total of the carbon dioxide equivalence of that amount of greenhouse gas or those amounts of greenhouse gases.
147 Subsection 8(1)
Omit “A controlling”, substitute “For the purposes of this Act and the Carbon Pollution Reduction Scheme Act 2009, a controlling”.
148 Paragraph 8(1)(b)
Omit “(if any);”, substitute “(if any).”.
149 Paragraphs 8(1)(c) and (d)
Repeal the paragraphs.
150 Subsections 8(4), (5) and (6)
Repeal the subsections, substitute:
(4) To avoid doubt, a controlling corporation’s group may consist of the controlling corporation alone.
151 Subsection 9(1)
Omit “A facility is”, substitute “For the purposes of this Act and the Carbon Pollution Reduction Scheme Act 2009, a facility is”.
152 Subsection 9(1)
Omit “the production of” (first occurring).
153 Paragraph 9(1)(b)
Omit “54;”, substitute “54 or 54A.”.
154 Subsection 9(1)
Omit all the words from and including “but” to the end of the subsection.
155 Subsection 9(3)
Repeal the subsection.
156 Subsection 10(1)
After “References”, insert “in this Act or the Carbon Pollution Reduction Scheme Act 2009”.
157 Paragraph 10(1)(a)
Repeal the paragraph, substitute:
(a) scope 1 emission of greenhouse gas;
(aa) scope 2 emission of greenhouse gas;
158 Subsection 10(2)
Omit “paragraph (1)(a) may specify a meaning of emissions”, substitute “paragraph (1)(aa) may specify a meaning of scope 2 emission”.
159 After subsection 10(2)
Insert:
(2A) The regulations must:
(a) declare that specified scope 1 emissions of greenhouse gas are covered by the carbon pollution reduction scheme; and
(b) declare that the remaining scope 1 emissions of greenhouse gas are not covered by the carbon pollution reduction scheme.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.
160 Subsection 10(3)
Omit “emissions”, substitute “scope 1 emissions, scope 2 emissions,”.
161 Subsection 10(3)
After “this Act”, insert “and the Carbon Pollution Reduction Scheme Act 2009”.
162 Paragraph 10(3)(a)
Repeal the paragraph, substitute:
(a) in the case of scope 1 emissions—different methods or criteria for emissions from different sources; and
163 Subsection 11(1)
Omit “A controlling corporation or another member of the corporation’s group”, substitute “For the purposes of this Act and the Carbon Pollution Reduction Scheme Act 2009, a person”.
Note: The heading to section 11 is altered by adding at the end “—basic rule”.
164 Paragraph 11(1)(a)
Omit “it”, substitute “the person”.
165 Paragraph 11(1)(b)
Omit “corporation or member”, substitute “person”.
166 At the end of paragraph 11(1)(b)
Add “or 55A”.
167 Subsection 11(2)
After “apply”, insert “in relation to a facility”.
168 At the end of subsection 11(2)
Add “in relation to the facility”.
169 Subsection 11(3)
After “this Act”, insert “and the Carbon Pollution Reduction Scheme Act 2009”.
170 Subsection 11(3)
Omit “such corporation or member”, substitute “person”.
171 Subsection 11(4)
Repeal the subsection, substitute:
(4) This section has effect subject to sections 11A, 11B and 11C.
172 At the end of Part 1
Add:
11A Operational control—person with greatest authority
Scope
(1) This section applies if the following conditions are satisfied in relation to a period that is included in, or consists of, an eligible financial year:
(a) 2 or more persons could satisfy paragraph 11(1)(a) in relation to a facility throughout the period;
(b) a particular person has the greatest authority to introduce and implement the policies mentioned in subparagraphs 11(1)(a)(i) and (iii) in relation to the facility throughout the period;
(c) no declaration under section 55 or 55A applies in relation to the facility at any time during the period.
Operational control
(2) The person mentioned in paragraph (1)(b) is taken, for the purposes of this Act and the Carbon Pollution Reduction Scheme Act 2009, to have operational control over the facility throughout the period.
11B Operational control—nominated person
Scope
(1) This section applies if the following conditions are satisfied in relation to a period that is included in, or consists of, an eligible financial year:
(a) 2 or more persons could satisfy paragraph 11(1)(a) in relation to a facility throughout the period;
(b) no particular person has the greatest authority to introduce and implement the policies mentioned in subparagraphs 11(1)(a)(i) and (iii) in relation to the facility throughout the period;
(c) no declaration under section 55 or 55A applies in relation to the facility at any time during the period.
Nomination
(2) Those persons must, before the end of 31 August next following the eligible financial year, jointly nominate one of them to be the nominated person in relation to the facility for the period.
Civil penalty: 1,000 penalty units.
(3) A nomination must:
(a) be in writing; and
(b) be in a form approved by the Authority; and
(c) be accompanied by such information as is specified in the regulations.
(4) If:
(a) any of those persons is a foreign person; and
(b) any of those persons is not a foreign person;
a foreign person cannot be nominated.
Operational control
(5) If a nomination is made, the nominated person is taken, for the purposes of this Act and the Carbon Pollution Reduction Scheme Act 2009, to have operational control over the facility throughout the period.
(6) If no nomination is made:
(a) each of the persons mentioned in paragraph (1)(a) is taken, for the purposes of this Act and the Carbon Pollution Reduction Scheme Act 2009, to have operational control over the facility throughout the period; and
(b) if there is a provisional emissions number of:
(i) such a person; or
(ii) if such a person is a member of a controlling corporation’s group—the controlling corporation;
for the eligible financial year in relation to greenhouse gases emitted from the operation of the facility during the period—for the purposes of this Act and the Carbon Pollution Reduction Scheme Act 2009, that provisional emissions number is taken to be the number worked out using the formula set out in subsection (7).
(7) The formula is:
where:
unadjusted provisional emissions number means the number that, apart from paragraph (6)(b), would be the provisional emissions number of the person or the controlling corporation, as the case may be, for the eligible financial year in relation to greenhouse gases emitted from the operation of the facility during the period.
Exception
(8) A person is not required to comply with subsection (2) if the question of who has operational control of the facility is not relevant (whether directly or indirectly) to a requirement under:
(a) this Act; or
(b) the Carbon Pollution Reduction Scheme Act 2009.
11C Operational control—trust with multiple trustees
Scope
(1) This section applies if the following conditions are satisfied in relation to a period that is included in, or consists of, an eligible financial year:
(a) because of section 11, 11A or 11B, a trust has operational control over a facility throughout the period;
(b) throughout the period, there are 2 or more trustees of the trust;
(c) no declaration under section 55 or 55A applies in relation to the facility at any time during the period.
Nomination
(2) Those trustees must, before the end of 31 August next following the eligible financial year, jointly nominate one of them to be the nominated trustee in relation to the facility for the period.
Civil penalty: 1,000 penalty units.
(3) A nomination must:
(a) be in writing; and
(b) be in a form approved by the Authority; and
(c) be accompanied by such information as is specified in the regulations.
(4) If:
(a) any of those trustees is a foreign person; and
(b) any of those trustees is not a foreign person;
a foreign person cannot be nominated.
Operational control
(5) If a nomination is made, the nominated trustee is taken, for the purposes of this Act and the Carbon Pollution Reduction Scheme Act 2009, to have operational control over the facility throughout the period.
(6) If no nomination is made:
(a) each of those trustees is taken, for the purposes of this Act and the Carbon Pollution Reduction Scheme Act 2009, to have operational control over the facility throughout the period; and
(b) if there is a provisional emissions number of such a trustee for the eligible financial year in relation to greenhouse gases emitted from the operation of the facility during the period—for the purposes of this Act and the Carbon Pollution Reduction Scheme Act 2009, that provisional emissions number is taken to be the number worked out using the formula set out in subsection (7).
(7) The formula is:
where:
unadjusted provisional emissions number means the number that, apart from paragraph (6)(b), would be the provisional emissions number of the trustee for the eligible financial year in relation to greenhouse gases emitted from the operation of the facility during the period.
Exception
(8) A trustee is not required to comply with subsection (2) if the question of who has operational control of the facility is not relevant (whether directly or indirectly) to a requirement under:
(a) this Act; or
(b) the Carbon Pollution Reduction Scheme Act 2009.
173 Before section 12
Insert:
Subdivision A—Application by a controlling corporation
173E At the end of Division 1 of Part 2
Add:
Subdivision B—Application by a liable entity
15A Application by a liable entity
(1) If a person is or was a liable entity for an eligible financial year (the current eligible financial year), the person must apply, in accordance with this section, to be registered under this Act.
Civil penalty:
(a) for an individual—2,000 penalty units; or
(b) otherwise—10,000 penalty units.
Note 1: Under Division 137 of the Criminal Code, it may be an offence to provide false or misleading information or documents to the Authority in purported compliance with this Act.
Note 2: Under section 30, a person may be liable for an additional civil penalty for each day that the person fails to apply in accordance with subsection (1) of this section.
(2) However, a person is not required to make an application under subsection (1) if the person is registered under this Act at the end of the current eligible financial year.
(3) An application under subsection (1) must be made by 31 August in the eligible financial year next following the current eligible financial year.
(4) An application under subsection (1) must:
(a) be made to the Authority; and
(b) be in a form approved by the Authority; and
(c) set out the information specified by the regulations for the purposes of this paragraph.
Subdivision C—Application by an OTN holder who is not a liable entity
15B Application by an OTN holder who is not a liable entity
(1) If:
(a) during an eligible financial year (the current eligible financial year), a person supplied an amount of eligible upstream fuel or synthetic greenhouse gas to another person (the recipient); and
(b) the recipient quoted the recipient’s OTN in relation to the supply; and
(c) the recipient is not a liable entity for the current eligible financial year;
the recipient must apply, in accordance with this section, to be registered under this Act.
Civil penalty:
(a) for an individual—2,000 penalty units; or
(b) otherwise—10,000 penalty units.
Note 1: Under Division 137 of the Criminal Code, it may be an offence to provide false or misleading information or documents to the Authority in purported compliance with this Act.
Note 2: Under section 30, a person may be liable for an additional civil penalty for each day that the person fails to apply in accordance with subsection (1) of this section.
(2) However, a person is not required to make an application under subsection (1) if the person is registered under this Act at the end of the current eligible financial year.
(3) An application under subsection (1) must be made by 31 August in the eligible financial year next following the current eligible financial year.
(4) An application under subsection (1) must:
(a) be made to the Authority; and
(b) be in a form approved by the Authority; and
(c) set out the information specified by the regulations for the purposes of this paragraph.
Subdivision D—Application by a fuel supplier who is not a liable entity
15C Application by a fuel supplier who is not a liable entity
(1) If:
(a) during an eligible financial year (the current eligible financial year), a person (the supplier) supplied an amount of eligible upstream fuel to another person (the recipient); and
(b) the recipient quoted the recipient’s OTN in relation to the supply; and
(c) the supplier is not a liable entity for the current eligible financial year;
the supplier must apply, in accordance with this section, to be registered under this Act.
Civil penalty:
(a) for an individual—2,000 penalty units; or
(b) otherwise—10,000 penalty units.
Note 1: Under Division 137 of the Criminal Code, it may be an offence to provide false or misleading information or documents to the Authority in purported compliance with this Act.
Note 2: Under section 30, a person may be liable for an additional civil penalty for each day that the person fails to apply in accordance with subsection (1) of this section.
(2) However, a person is not required to make an application under subsection (1) if:
(a) the person is registered under this Act at the end of the current eligible financial year; or
(b) the person is required to make an application under subsection 15B(1).
(3) An application under subsection (1) must be made by 31 August in the eligible financial year next following the current eligible financial year.
(4) An application under subsection (1) must:
(a) be made to the Authority; and
(b) be in a form approved by the Authority; and
(c) set out the information specified by the regulations for the purposes of this paragraph.
174 Subsection 16(3)
Repeal the subsection, substitute:
(3) The Authority must cause the contents of the Register to be made available on the Authority’s website.
(3A) Subsection (3) does not apply to information ascertained in accordance with the regulations.
174A Paragraph 16(4)(a)
Omit “corporation”, substitute “person”.
174B Paragraph 16(4)(a)
Omit “Division 3”, substitute “this Act”.
174C Subparagraphs 16(4)(b)(iii) and (v)
Omit “corporation”, substitute “person”.
174D Division 3 of Part 2 (heading)
Repeal the heading, substitute:
Division 3—Registration of controlling corporations
174F Section 18
Repeal the section.
174G At the end of Part 2
Add:
Division 4—Registration of other persons
18A Registration of other persons
(1) The Authority must register a person under this Act if the person has applied for registration under section 15A, 15B or 15C.
(2) The Authority must notify the person, in writing, of the Authority’s decision on the application.
(3) The person is registered under this Act when the Authority has entered the name of the person on the Register.
Division 5—Deregistration
18B Deregistration
(1) A registered person may apply to the Authority to be deregistered.
(2) An application must:
(a) be in writing; and
(b) be in a form approved by the Authority; and
(c) set out such information as is specified in the regulations.
(3) The Authority must remove the person’s name from the Register if the Authority is satisfied that:
(a) in a case where the person is the controlling corporation of a group—the group is not likely to meet any of the thresholds under section 13 for:
(i) the financial year in which the application is made; and
(ii) the next 2 financial years; and
(b) the person:
(i) is not a liable entity for the financial year in which the application is made; and
(ii) is not likely to be a liable entity for any of the next 2 financial years; and
(c) the person does not hold an OTN; and
(d) the person does not supply amounts of:
(i) eligible upstream fuel; or
(ii) synthetic greenhouse gas;
to other persons who quote their OTNs in relation to the supply.
(4) The Authority must notify the person, in writing, of the Authority’s decision on the application.
(5) The person ceases to be registered under this Act when the Authority has removed the person’s name from the Register.
175 Part 3 (heading)
Repeal the heading, substitute:
Part 3—Reporting obligations of registered corporations etc.
175A Subsection 19(1)
Omit “registered corporation”, substitute “corporation registered under Division 3”.
176 At the end of subsection 19(1)
Add:
Note 4: Reports under this section and section 22A may be set out in the same document—see subsection 22A(4).
Note 5: Reports under this section and section 22C may be set out in the same document—see subsection 22C(4).
Note 6: Reports under this section and section 22D may be set out in the same document—see subsection 22D(4).
177 Subsections 19(4) and (5)
Repeal the subsections, substitute:
(4) If a person other than the corporation is the holder of a liability transfer certificate in relation to a facility throughout the whole or a part of an eligible financial year, a report under subsection (1) need not relate to the:
(a) greenhouse gas emissions; and
(b) energy production; and
(c) energy consumption;
from the operation of the facility during the whole, or the part, as the case may be, of the eligible financial year.
178 Paragraph 19(6)(c)
Omit “include any”, substitute “set out the”.
179 Paragraphs 22(1)(a) and (b)
After “this Act”, insert “(other than Part 3A, 3B, 3C or 3D)”.
180 Paragraphs 22(2)(a) and (b)
After “this Act”, insert “(other than Part 3A, 3B, 3C or 3D)”.
180A Subsection 22(3)
Omit “7 years”, substitute “5 years”.
181 After Part 3
Insert:
Part 3A—Reporting obligations of liable entities etc.
22A Report to be given to Authority
(1) If a person was a liable entity for an eligible financial year, the person must, in accordance with this section, provide a report to the Authority relating to:
(a) the calculation of the person’s provisional emissions numbers for the eligible financial year; and
(b) if a provisional emissions number of the person for the eligible financial year is attributable to scope 1 emissions of greenhouse gas—those emissions; and
(c) if a provisional emissions number of the person for the eligible financial year is attributable to the import, manufacture or supply of synthetic greenhouse gas—the import, manufacture or supply concerned; and
(d) if a provisional emissions number of the person for the eligible financial year is attributable to potential greenhouse gas emissions embodied in an amount of eligible upstream fuel—those potential greenhouse gas emissions; and
(e) the calculation of the person’s emissions number for the eligible financial year.
Civil penalty:
(a) for an individual—2,000 penalty units; or
(b) otherwise—10,000 penalty units.
Note 1: Under Division 137 of the Criminal Code, it may be an offence to provide false or misleading information or documents to the Authority in purported compliance with this Act.
Note 2: Under section 30, a person may be liable for an additional civil penalty for each day after the end of the period mentioned in paragraph (2)(c) for which the person fails to provide a report in accordance with this section.
(2) A report under this section must:
(a) be given in a manner and form approved by the Authority; and
(b) set out the information specified by the regulations for the purposes of this paragraph; and
(c) be given to the Authority before the end of 4 months after the end of the eligible financial year.
(3) Regulations made for the purposes of paragraph (2)(b) may specify different requirements for different circumstances.
(4) Reports under this section and section 19 may be set out in the same document.
Note: Reports under this section and section 22E may be set out in the same document—see subsection 22E(7).
22B Records to be kept
(1) A person who is or was a liable entity for an eligible financial year must keep records of the person’s activities that:
(a) allow the person to report accurately under section 22A; and
(b) enable the Authority to ascertain whether the person has complied with the person’s obligations under section 22A; and
(c) comply with the requirements of subsection (2) and the regulations made for the purposes of subsection (3).
Civil penalty:
(a) for an individual—2,000 penalty units; or
(b) otherwise—10,000 penalty units.
(2) The person must retain the records for 5 years from the end of the financial year in which the activities take place.
(3) The regulations may specify requirements relating to:
(a) the kinds of records; and
(b) the form of records;
that must be kept under subsection (1).
Part 3B—Reporting obligations of OTN holders who are not liable entities
22C Reporting obligations of OTN holders who are not liable entities
(1) If:
(a) on one or more occasions during an eligible financial year:
(i) a person supplied an amount of eligible upstream fuel or synthetic greenhouse gas to another person (the recipient); and
(ii) the recipient quoted the recipient’s OTN in relation to the supply; and
(b) the recipient is not a liable entity for the eligible financial year;
the recipient must, in accordance with this section, provide a report to the Authority relating to the supply or supplies.
Civil penalty:
(a) for an individual—2,000 penalty units; or
(b) otherwise—10,000 penalty units.
Note 1: Under Division 137 of the Criminal Code, it may be an offence to provide false or misleading information or documents to the Authority in purported compliance with this Act.
Note 2: Under section 30, a person may be liable for an additional civil penalty for each day after the end of the period mentioned in paragraph (2)(c) for which the person fails to provide a report in accordance with this section.
(2) A report under this section must:
(a) be given in a manner and form approved by the Authority; and
(b) set out the information specified by the regulations for the purposes of this paragraph; and
(c) be given to the Authority before the end of 4 months after the end of the eligible financial year.
(3) Regulations made for the purposes of paragraph (2)(b) may specify different requirements for different circumstances.
(4) Reports under this section and section 19 may be set out in the same document.
22CA Records to be kept
(1) A person who is or was required to provide a report under section 22C for an eligible financial year must keep records of the person’s activities that:
(a) allow the person to report accurately under section 22C; and
(b) enable the Authority to ascertain whether the person has complied with the person’s obligations under section 22C; and
(c) comply with the requirements of subsection (2) and the regulations made for the purposes of subsection (3).
Civil penalty:
(a) for an individual—2,000 penalty units; or
(b) otherwise—10,000 penalty units.
(2) The person must retain the records for 5 years from the end of the financial year in which the activities take place.
(3) The regulations may specify requirements relating to:
(a) the kinds of records; and
(b) the form of records;
that must be kept under subsection (1).
Part 3C—Reporting obligations of fuel suppliers who are not liable entities
22D Reporting obligations of fuel suppliers who are not liable entities
(1) If:
(a) on one or more occasions during an eligible financial year:
(i) a person (the supplier) supplied an amount of eligible upstream fuel to another person (the recipient); and
(ii) the recipient quoted the recipient’s OTN in relation to the supply; and
(b) the supplier is not a liable entity for the eligible financial year;
the supplier must, in accordance with this section, provide a report to the Authority relating to the supply or supplies.
Civil penalty:
(a) for an individual—2,000 penalty units; or
(b) otherwise—10,000 penalty units.
Note 1: Under Division 137 of the Criminal Code, it may be an offence to provide false or misleading information or documents to the Authority in purported compliance with this Act.
Note 2: Under section 30, a person may be liable for an additional civil penalty for each day after the end of the period mentioned in paragraph (2)(c) for which the person fails to provide a report in accordance with this section.
(2) A report under this section must:
(a) be given in a manner and form approved by the Authority; and
(b) set out the information specified by the regulations for the purposes of this paragraph; and
(c) be given to the Authority before the end of 4 months after the end of the eligible financial year.
(3) Regulations made for the purposes of paragraph (2)(b) may specify different requirements for different circumstances.
(4) Reports under this section and section 19 may be set out in the same document.
22DA Records to be kept
(1) A person who is or was required to provide a report under section 22D for an eligible financial year must keep records of the person’s activities that:
(a) allow the person to report accurately under section 22D; and
(b) enable the Authority to ascertain whether the person has complied with the person’s obligations under section 22D; and
(c) comply with the requirements of subsection (2) and the regulations made for the purposes of subsection (3).
Civil penalty:
(a) for an individual—2,000 penalty units; or
(b) otherwise—10,000 penalty units.
(2) The person must retain the records for 5 years from the end of the financial year in which the activities take place.
(3) The regulations may specify requirements relating to:
(a) the kinds of records; and
(b) the form of records;
that must be kept under subsection (1).
Part 3D—Reporting obligations of holders of liability transfer certificates
22E Report to be given to Authority
(1) If a person was the holder of a liability transfer certificate in relation to a facility during the whole or a part of an eligible financial year, the person must, in accordance with this section, provide a report to the Authority relating to the:
(a) greenhouse gas emissions; and
(b) energy production; and
(c) energy consumption;
from the operation of the facility during the whole, or the part, as the case may be, of that eligible financial year.
Civil penalty:
(a) for an individual—2,000 penalty units; or
(b) otherwise—10,000 penalty units.
Note 1: Under Division 137 of the Criminal Code, it may be an offence to provide false or misleading information or documents to the Authority in purported compliance with this Act.
Note 2: Under section 30, a person may be liable for an additional civil penalty for each day after the end of the period mentioned in paragraph (2)(d) for which the person fails to provide a report in accordance with this section.
(2) A report under this section must:
(a) be given in a manner and form approved by the Authority; and
(b) be based on:
(i) methods determined by the Minister under subsection 10(3); or
(ii) methods which meet criteria determined by the Minister under that subsection;
where the use of those methods satisfies any conditions specified in the determination under that subsection; and
(c) set out the information specified by the regulations for the purposes of this paragraph; and
(d) be given to the Authority before the end of 4 months after the end of the eligible financial year.
(3) Regulations made for the purposes of paragraph (2)(c) may specify different requirements for different circumstances.
(4) In particular, and without limiting subsection (3), the regulations may specify different requirements for persons who:
(a) do not meet any threshold; or
(b) do not meet specified thresholds;
for an eligible financial year to which a report relates.
(5) Regulations made for the purposes of paragraph (2)(c) may also specify information that a State or Territory has requested the Authority to collect.
(6) The regulations may provide that a person is not required to provide a report under subsection (1) for an eligible financial year in relation to a facility if the facility does not meet a specified threshold for the eligible financial year.
(7) Reports under this section and section 22A may be set out in the same document.
22F Records to be kept
(1) A person who is or was required to provide a report under section 22E for an eligible financial year must keep records of the person’s activities that:
(a) allow the person to report accurately under section 22E; and
(b) enable the Authority to ascertain whether the person has complied with the person’s obligations under section 22E; and
(c) comply with the requirements of subsection (2) and the regulations made for the purposes of subsection (3).
Civil penalty:
(a) for an individual—2,000 penalty units; or
(b) otherwise—10,000 penalty units.
(2) The person must retain the records for 5 years from the end of the financial year in which the activities take place.
(3) The regulations may specify requirements relating to:
(a) the kinds of records; and
(b) the form of records;
that must be kept under subsection (1).
181A Subsection 23(1) (penalty)
Repeal the penalty, substitute:
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
182 Paragraphs 24(1)(a) and (b)
Omit “(within the meaning of the regulations)”.
183 Subsection 24(1)
After “reported”, insert “under Part 3 or 3D”.
184 After subsection 24(1A)
Insert:
(1AA) If a person gives the Authority a report under section 22A in relation to an eligible financial year, the Authority must publish on its website, by 28 February next following the eligible financial year:
(a) the total of the numbers specified in the report as the person’s provisional emissions numbers for the eligible financial year; and
(b) if any of those provisional emissions numbers are attributable to scope 1 emissions of greenhouse gas—the total of those provisional emissions numbers; and
(c) if any of those provisional emissions numbers are attributable to the import, manufacture or supply of synthetic greenhouse gas—the total of those provisional emissions numbers; and
(d) if any of those provisional emissions numbers are attributable to potential greenhouse gas emissions embodied in an amount of eligible upstream fuel—the total of those provisional emissions numbers.
185 After paragraph 24(6)(b)
Insert:
(ba) non‑corporate entity; or
186 Subsection 25(1)
Omit “or” (first occurring).
187 Subsection 25(1)
After “section 20,”, insert “or a person required to provide a report under section 22A, 22C, 22D or 22E”.
187A Subsection 30(2) (civil penalty)
Repeal the civil penalty, substitute:
Civil penalty: 100 penalty units per day.
188 After subsection 30(2)
Insert:
(2A) If, under section 15A, 15B, 15C, 22A, 22C, 22D, 22E or 74B, an act or thing is required to be done within a particular period, or before a particular time, and a person fails to comply with that requirement, the person is liable for a civil penalty for each day that the person fails to comply.
Civil penalty:
(a) for an individual—20 penalty units per day; or
(b) otherwise—100 penalty units per day.
188AA Subsection 31(4)
Omit “must have regard”, substitute “may have regard”.
188AB At the end of subsection 31(4)
Add:
; and (e) the extent to which the person has co‑operated with the authorities; and
(f) if the person is a body corporate:
(i) the level of the employees, officers or agents of the body corporate involved in the contravention; and
(ii) whether the body corporate exercised due diligence to avoid the contravention; and
(iii) whether the body corporate had a corporate culture conducive to compliance.
188AC Division 4 of Part 5 (heading)
Repeal the heading, substitute:
Division 4—Liability of executive officers of bodies corporate
188AD Paragraph 47(1)(a)
Omit “corporation”, substitute “body corporate”.
Note: The heading to section 47 is altered by omitting “chief executive officers of corporations” and substituting “executive officers of bodies corporate”.
188AE Paragraph 47(1)(b)
Omit “chief”.
188AF Paragraphs 47(1)(b) and (c)
Omit “corporation”, substitute “body corporate”.
188AG After subsection 47(1)
Insert:
(1A) For the purposes of subsection (1), the officer is reckless as to whether the contravention would occur if:
(a) the officer is aware of a substantial risk that the contravention would occur; and
(b) having regard to the circumstances known to the officer, it is unjustifiable to take the risk.
(1B) For the purposes of subsection (1), the officer is negligent as to whether the contravention would occur if the officer’s conduct involves:
(a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and
(b) such a high risk that the contravention would occur; and
that the conduct merits the imposition of a pecuniary penalty.
188AH Subsection 47(3)
Omit “corporation”, substitute “body corporate”.
188AJ Subsection 48(1)
Omit “a chief”, substitute “an”.
Note: The heading to section 48 is altered by omitting “a chief” and substituting “an”.
188AK Subsection 48(1)
Omit “corporation” (first occurring), substitute “body corporate”.
188AL Subparagraph 48(1)(a)(i)
Omit “corporation”, substitute “body corporate”.
188AM Subparagraph 48(1)(a)(i)
Omit “corporation’s”, substitute “body corporate’s”.
188AN Subparagraph 48(1)(a)(ii)
Omit “corporation”, substitute “body corporate”.
188AP Subparagraph 48(1)(a)(iii)
Omit “corporation’s”, substitute “body corporate’s”.
188AQ Paragraph 48(1)(b)
Omit “that the corporation was contravening this Act or the regulations”, substitute “of the contravention”.
188A Subsection 54(5)
Omit “corporation, joint venture or partnership”, substitute “person”.
Note: The heading to section 54 is altered by adding at the end “—group”.
189 After section 54
Insert:
54A Authority may declare facility—non‑group entity
(1) The Authority may declare that an activity or series of activities (including ancillary activities) are a facility:
(a) on application by a non‑group entity; or
(b) on the Authority’s own initiative.
(2) An application must:
(a) identify the facility for which a declaration is sought; and
(b) include any other information required by the regulations; and
(c) be given in a manner and form approved by the Authority.
(3) In considering making a declaration that an activity or series of activities are a facility, the Authority must have regard to:
(a) the matters dealt with in regulations made for the purposes of paragraph 9(1)(a); and
(b) the need for each facility to be distinct from, and not overlap with, activities that constitute other facilities.
(4) The Authority must notify, in writing, an applicant under paragraph (1)(a) of a decision under subsection (1) to declare a facility or to refuse the application.
(5) If the Authority makes a declaration under paragraph (1)(b), the Authority must notify, in writing, the person that has, or that the Authority reasonably believes has, operational control of the facility to which the declaration relates.
190 After subsection 55(3)
Insert:
(3A) The Authority must not declare that a controlling corporation or another member of the corporation’s group has operational control of a facility unless the Authority is satisfied that the corporation or member has substantial authority to introduce and implement either or both of the following for the facility:
(a) operating policies;
(b) environmental policies.
(3B) The Authority must not declare that a member of a controlling corporation’s group (other than the controlling corporation) has operational control of a facility on application made by the member unless the controlling corporation has given written consent to the making of the declaration.
191 At the end of Division 2 of Part 6
Add:
55A Authority may declare non‑group entity has operational control
(1) The Authority may declare that a non‑group entity has operational control of a facility:
(a) on application by the non‑group entity; or
(b) on the Authority’s own initiative.
(2) An application must:
(a) identify the facility for which a declaration of operational control is sought; and
(b) include any other information required by the regulations; and
(c) be given in a manner and form approved by the Authority.
(3) In considering making a declaration that a non‑group entity has operational control of a facility, the Authority must have regard to the matters dealt with in paragraph 11(1)(a) and regulations made for the purposes of that paragraph.
(4) The Authority must not declare that a non‑group entity has operational control of a facility unless the Authority is satisfied that the non‑group entity has substantial authority to introduce and implement either or both of the following for the facility:
(a) operating policies;
(b) environmental policies.
(5) The Authority must notify, in writing, an applicant under paragraph (1)(a) of a decision under subsection (1) to declare the non‑group entity to have operational control of the facility or to refuse the application.
(6) If the Authority makes a declaration under paragraph (1)(b), the Authority must notify, in writing, the non‑group entity which the Authority has declared to have operational control of the facility to which the declaration relates.
191A After paragraph 56(a)
Insert:
(aa) not register a person under section 15A;
(ab) not register a person under section 15B;
(ac) not register a person under section 15C;
191B Paragraph 56(b)
Omit “corporation under section 18”, substitute “person under section 18B”.
192 After paragraph 56(g)
Insert:
(ga) refuse an application under section 54A;
(gb) declare a facility under paragraph 54A(1)(b);
193 At the end of section 56
Add:
; (k) refuse an application under section 55A;
(l) declare that a non‑group entity has operational control of a facility under paragraph 55A(1)(b).
193A Subsection 61(3) (penalty)
Repeal the penalty, substitute:
Penalty: Imprisonment for 6 months or 30 penalty units, or both.
193B Subsection 69(2) (penalty)
Repeal the penalty, substitute:
Penalty: 30 penalty units.
194 Before section 75
Insert:
74B Audits of non‑group entities—compliance
(1) This section applies if the Authority has reasonable grounds to suspect that a non‑group entity has contravened, is contravening, or is proposing to contravene, this Act or the regulations.
(2) The Authority may, by written notice given to the non‑group entity, require the non‑group entity to:
(a) appoint as an audit team leader:
(i) a registered greenhouse and energy auditor of the non‑group entity’s choice; or
(ii) if the Authority specifies a registered greenhouse and energy auditor in the notice—that auditor; or
(iii) if the Authority specifies more than one registered greenhouse and energy auditor in the notice—any one of those auditors; and
(b) arrange for the audit team leader to carry out an audit on one or more aspects of the non‑group entity’s compliance with this Act or the regulations; and
(c) arrange for the audit team leader to give the non‑group entity a written report setting out the results of the audit; and
(d) give the Authority a copy of the audit report on or before the day specified in the notice.
(3) The notice must specify:
(a) the type of audit to be carried out; and
(b) the matters to be covered by the audit; and
(c) the form of the audit report and the kinds of details it is to contain.
(4) A non‑group entity must provide the audit team leader and any audit team members with all reasonable facilities and assistance necessary for the effective exercise of the audit team leader’s duties under this Act.
Civil penalty:
(a) for an individual—50 penalty units; or
(b) otherwise—250 penalty units.
(5) If the Authority gives a non‑group entity written notice under subsection (2), the non‑group entity must comply with the requirements of the notice.
Civil penalty:
(a) for an individual—200 penalty units; or
(b) otherwise—1,000 penalty units.
Note: Under section 30, a non‑group entity may be liable for an additional civil penalty for each day after the day mentioned in paragraph (2)(d) for which the non‑group entity fails to provide an audit report in accordance with this section.
74C Audits of non‑group entities—other
(1) The Authority may appoint a registered greenhouse and energy auditor as an audit team leader to carry out an audit of a non‑group entity’s compliance with one or more aspects of this Act or the regulations.
(2) The Authority must give written notice to the non‑group entity of a decision to appoint an audit team leader under subsection (1). The notice must:
(a) specify the audit team leader; and
(b) specify the period within which the audit is to be undertaken; and
(c) specify the type of audit to be carried out; and
(d) specify the matters to be covered by the audit; and
(e) be given to the non‑group entity at a reasonable time before the audit is to be undertaken.
(3) The non‑group entity must provide the audit team leader and any audit team members with all reasonable facilities and assistance necessary for the effective exercise of the audit team leader’s duties under this Act.
Civil penalty:
(a) for an individual—50 penalty units; or
(b) otherwise—250 penalty units.
(4) If a non‑group entity is given a notice under subsection (2), the non‑group entity must arrange for the audit team leader to carry out the audit.
Civil penalty:
(a) for an individual—200 penalty units; or
(b) otherwise—1,000 penalty units.
Ozone Protection and Synthetic Greenhouse Gas Management Act 1989
195 Section 7 (definition of licence period)
Repeal the definition, substitute:
licence period:
(a) in relation to an SGG licence—means a period referred to in section 8AA; or
(b) in relation to any other licence—means a period referred to in section 8A.
196 Section 7 (definition of pre‑charged equipment)
Repeal the definition.
197 Section 7 (definition of pre‑charged equipment licence)
Repeal the definition.
198 Section 7 (definition of SGG or synthetic greenhouse gas)
Omit “or a PFC”, substitute “, a PFC or sulphur hexafluoride”.
199 Section 7
Insert:
sulphur hexafluoride means the substance referred to in Part XI of Schedule 1, whether existing alone or in a mixture.
200 After section 8
Insert:
8AA Licence periods—SGG licences
Scope
(1) This section applies in relation to an SGG licence.
Licence period
(2) For the purposes of this Act, each of the following is a licence period:
(a) the 2‑year period beginning on 1 January 2002;
(b) the 2‑year period beginning on 1 January 2004;
(c) the 2‑year period beginning on 1 January 2006;
(d) the 2‑year period beginning on 1 January 2008;
(e) the 30‑month period beginning on 1 January 2010;
(f) the 2‑year period beginning on 1 July 2012;
(g) each later 2‑year period.
201 Before subsection 8A(1)
Insert:
Scope
(1A) This section applies in relation to a licence (other than an SGG licence).
Note 1: The heading to section 8A is altered by adding at the end “—other licences”.
Note 2: The following heading to subsection 8A(1) is inserted “Licence period”.
202 Subsection 9(1)
After “Schedule 1”, insert “(other than a substance referred to in Part IX, X or XI of that Schedule)”.
Note: The heading to section 9 is altered by inserting “(other than SGGs)” after “substances”.
203 After section 9
Insert:
9A SGGs in manufactured products
For the purposes of Parts III, IV and VII, a substance referred to in Part IX, X or XI of Schedule 1 is to be treated as not being referred to in that Schedule if the substance is in a manufactured product that consists in part of that substance only because the substance was used in the manufacturing process.
204 Subsection 13(6A)
Repeal the subsection.
205 Paragraph 13A(1)(c)
Omit “licence;”, substitute “licence.”.
206 Paragraph 13A(1)(d)
Repeal the paragraph.
207 Subsection 13A(5)
Repeal the subsection.
208 Subsection 16(3)
Omit “licence, an SGG licence or a pre‑charged equipment licence”, substitute “licence or an SGG licence”.
209 Subsection 19A(2)
Omit “or a pre‑charged equipment licence”.
210 Subsection 46(1A)
Repeal the subsection, substitute:
(1A) Subsection (1) does not apply to an SGG.
Note: The heading to section 46 is altered by omitting “and pre‑charged equipment” and substituting “(other than SGGs)”.
211 Subsection 46(1B)
Repeal the subsection.
212 Subsection 46(1BA)
Repeal the subsection.
213 Subsection 46(1C)
Repeal the subsection.
214 Subsection 46(2AA)
Repeal the subsection.
215 Subsection 46(2A)
Omit “or (2AA)”.
216 Subsection 46(2B)
Omit “or (2AA)”.
217 After section 46
Insert:
46A Quarterly reports by manufacturers, importers and exporters of SGGs
Manufacturer
(1) If:
(a) a person manufactures an SGG during:
(i) the quarter beginning on 1 July 2011; or
(ii) a later quarter; and
(b) the manufacture is not in circumstances prescribed by regulations made for the purposes of paragraph 13(1A)(b);
the person must, within 15 days after the end of the quarter, give the Minister a report in accordance with the regulations.
Importer
(2) If:
(a) a person imports an SGG during:
(i) the quarter beginning on 1 July 2011; or
(ii) a later quarter; and
(b) the import is not in circumstances prescribed by regulations made for the purposes of paragraph 13(1A)(b); and
(c) the import is not covered by paragraph 68(1)(d) of the Customs Act 1901;
the person must, within 15 days after the end of the quarter, give the Minister a report in accordance with the regulations.
Note: Paragraph 68(1)(d) of the Customs Act 1901 covers personal or household effects of a passenger, or a member of a crew, of a ship or aircraft.
Exporter
(3) If:
(a) a person exports an SGG during:
(i) the quarter beginning on 1 July 2011; or
(ii) a later quarter; and
(b) the export is not in circumstances prescribed by regulations made for the purposes of paragraph 13(1A)(b);
the person must, within 15 days after the end of the quarter, give the Minister a report in accordance with the regulations.
Offence
(4) A person commits an offence if:
(a) the person is subject to a requirement under subsection (1), (2) or (3); and
(b) the person omits to do an act; and
(c) the omission breaches the requirement.
Penalty: 10 penalty units.
(5) An offence under subsection (4) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Copy of report to be given to the Australian Climate Change Regulatory Authority
(6) If a report under subsection (1), (2) or (3) is given to the Minister, the Minister must:
(a) make a copy of the report; and
(b) give the copy to the Australian Climate Change Regulatory Authority.
218 At the end of paragraph 65D(b)
Add:
(iii) recovery and destruction programs for ODSs and SGGs;
220 At the end of Schedule 1
Add:
Part XI—Sulphur hexafluoride
| Substance |
| Sulphur hexafluoride (SF6) |
221 Paragraph 10(1)(a) of Schedule 4
After “CFC refrigerant”, insert “or an HCFC refrigerant”.
222 Paragraph 10(1)(b) of Schedule 4
Repeal the paragraph, substitute:
(b) the equipment is designed to operate by using a CFC refrigerant or an HCFC refrigerant (whether or not it is also designed to operate using another substance); or
223 At the end of paragraph 10(1)(c) of Schedule 4
Add “or an HCFC”.
Division 2—Application and transitional provisions
224 Application—registration and reports under the National Greenhouse and Energy Reporting Act 2007
(1) Despite the repeal of section 18 of the National Greenhouse and Energy Reporting Act 2007 by this Part, that section continues to apply after the commencement of this item, in relation to an application for deregistration that was made before the commencement of this item, as if that repeal had not happened.
(2) Despite the amendment of paragraph 56(b) of the National Greenhouse and Energy Reporting Act 2007 made by this Part, that paragraph continues to apply after the commencement of this item, in relation to a decision under section 18 of that Act, as if that amendment had not been made.
(3) The amendments of the National Greenhouse and Energy Reporting Act 2007 made by this Part, in so far as they are relevant to determining whether a controlling corporation’s group meets a threshold under section 13 of that Act for a financial year, apply in relation to a threshold for:
(a) the financial year beginning on 1 July 2011; or
(b) a later financial year.
(4) The amendments of the National Greenhouse and Energy Reporting Act 2007 made by this Part, in so far as they relate to reports under section 19 of that Act, apply in relation to reports for:
(a) the financial year beginning on 1 July 2011; or
(b) a later financial year.
224A Application—civil penalty orders under the National Greenhouse and Energy Reporting Act 2007
The amendments of section 31 of the National Greenhouse and Energy Reporting Act 2007 made by this Part apply in relation to proceedings instituted after the commencement of this item.
224B Application—liability of executive officers under the National Greenhouse and Energy Reporting Act 2007
The amendments of sections 47 and 48 of the National Greenhouse and Energy Reporting Act 2007 made by this Part apply in relation to a contravention of a civil penalty provision that occurs after the commencement of this item.
225 Transitional—reports under the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 for pre‑commencement quarters
Despite the amendments of section 46 of the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 made by this Part, that section continues to apply, in relation to a quarter ending before the commencement of this item, as if those amendments had not been made.
226 Transitional—regulations
The Governor‑General may make regulations in relation to transitional matters arising out of the amendments made by this Part.
Part 3—Amendments contingent on the commencement of Schedule 1 to the National Greenhouse and Energy Reporting Amendment Act 2009
National Greenhouse and Energy Reporting Act 2007
227 Subparagraphs 73(2)(a)(ii) and (iii)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
228 Subsection 73A(1)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
229 Subsection 73A(2)
Omit “Greenhouse and Energy Data Officer” (wherever occurring), substitute “Authority”.
230 Subsection 73A(5)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
231 Subsections 74A(1) and (2)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
232 Subsections 75A(1), (2), (3), (4) and (7)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
233 Subsection 75A(7)
Omit “signed”, substitute “written”.
234 Subsection 75A(7)
Omit “Greenhouse and Energy Data Officer’s”, substitute “Authority’s”.
235 Subsection 75A(8)
Omit “Greenhouse and Energy Data Officer”, substitute “Authority”.
Schedule 2—Taxation amendments
A New Tax System (Goods and Services Tax) Act 1999
1 After subsection 9‑10(3A)
Insert:
(3B) For the avoidance of doubt, a supply of:
(a) an *eligible emissions unit; or
(b) a *Kyoto unit;
is a supply of a personal property right or personal property rights.
2 At the end of section 38‑190
Add:
(5) A supply of:
(a) an *eligible emissions unit; or
(b) a *Kyoto unit;
is taken, for the purposes of the table in subsection (1), not to be a supply that is directly connected with *real property.
3 Section 195‑1
Insert:
eligible emissions unit has the same meaning as in the Carbon Pollution Reduction Scheme Act 2009.
4 Section 195‑1
Insert:
Kyoto unit has the same meaning as in the Carbon Pollution Reduction Scheme Act 2009.
5 Section 195‑1 (paragraph (c) of the definition of real property)
Omit “to land.”, substitute “to land;”.
6 Section 195‑1 (at the end of the definition of real property, after paragraph (c))
Add:
but does not include:
(d) an *eligible emissions unit; or
(e) a *Kyoto unit.
Income Tax Assessment Act 1936
7 Subsection 136AB(2)
Omit “section 70‑20”, substitute “sections 70‑20, 420‑20 and 420‑30”.
Income Tax Assessment Act 1997
8 Section 10‑5 (after the table item headed “recoupment”)
Insert:
| registered emissions units | |
| disposal of................................................................................ | 420‑25 |
| disposal for a non‑commercial purpose............................... | 420‑40 |
| difference between opening and closing value of............. | 420‑45 |
9 Section 12‑5 (after the table item headed “regional headquarters (RHQs)”)
Insert:
| registered emissions units | |
| expenditure incurred in becoming the holder of................. | 420‑15 |
| expenditure incurred in ceasing to hold.............................. | 420‑42 |
| excess of opening over closing value of............................. | 420‑45 |
9A Subsection 20‑30(1) (after table item 1.27)
Insert:
| 1.27A | 420‑15 | registered emissions unit |
10 At the end of Subdivision 70‑A
Add:
70‑12 Registered emissions units
A *registered emissions unit is not *trading stock.
11 At the end of section 70‑30 (before the note)
Add:
(6) Subsection (1) does not apply if:
(a) you start holding an item as *trading stock; and
(b) immediately before you started holding the item as trading stock, you *held the item as a *registered emissions unit.
12 Section 70‑110
Before “If you stop”, insert “(1)”.
13 At the end of section 70‑110 (after example 2, before the note)
Add:
(2) This section does not apply if:
(a) you stop holding an item as *trading stock; and
(b) immediately after you stopped holding the item as trading stock, you start to *hold the item as a *registered emissions unit.
14 Section 104‑5 (before table item relating to CGT event K2)
Insert:
| K1 As the result of an incoming international transfer of an emissions unit from your foreign account or your nominee’s foreign account, you start to hold the unit as a registered emissions unit [See section 104‑205] | when you start to hold the unit as a registered emissions unit | market value of unit less its cost base | reduced cost base of unit less its market value |
15 Before section 104‑210
Insert:
104‑205 Incoming international transfer of emissions unit: CGT event K1
(1) CGT event K1 happens if:
(a) either:
(i) an *international emissions unit is transferred from your foreign account (within the meaning of the Carbon Pollution Reduction Scheme Act 2009) to your Registry account (within the meaning of that Act) or your nominee’s Registry account (within the meaning of that Act); or
(ii) an *international emissions unit is transferred from your nominee’s foreign account (within the meaning of the Carbon Pollution Reduction Scheme Act 2009) to your Registry account (within the meaning of that Act) or your nominee’s Registry account (within the meaning of that Act); and
(b) as a result of the transfer, you start to *hold the unit as a *registered emissions unit; and
(c) just before the transfer, the unit was neither your *trading stock nor your *revenue asset.
(2) The time of the event is when you start to *hold the unit as a *registered emissions unit.
(3) You make a capital gain if the unit’s *market value (just before you started to *hold the unit as a *registered emissions unit) is more than its *cost base. You make a capital loss if that market value is less than its *reduced cost base.
16 Section 112‑97 (after table item 18)
Insert:
| 18A | You cease to hold a registered emissions unit as the result of an outgoing international transfer of an emissions unit | First element of cost base and reduced cost base | Section 420‑35 |
17 After section 118‑13
Insert:
118‑15 Registered emissions units
(1) A *capital gain or *capital loss you make from a *registered emissions unit is disregarded.
(2) A *capital gain or *capital loss you make from a right to receive a *free Australian emissions unit is disregarded.
17A Subsection 122‑25(2) (paragraph (d) of the cell at table item 1, column headed “This Subdivision does not apply to:”)
Omit “creation”, substitute “creation; or”.
17B Subsection 122‑25(2) (at the end of the cell at table item 1, column headed “This Subdivision does not apply to:”)
Add:
| (e) an asset that becomes a *registered emissions unit *held by the company just after the *disposal or creation |
17C Subsection 122‑25(2) (paragraph (c) of the cell at table item 2, column headed “This Subdivision does not apply to:”)
Omit “disposed of it)”, substitute “disposed of it); or”.
17D Subsection 122‑25(2) (at the end of the cell at table item 2, column headed “This Subdivision does not apply to:”)
Add:
| (d) an asset that becomes a *registered emissions unit *held by the company just after the *disposal or creation (unless it was a registered emissions unit held by you when you disposed of it) |
17E At the end of subsection 122‑25(3)
Add:
; or (d) a *registered emissions unit.
17F At the end of section 124‑75
Add:
(6) The other asset cannot become a *registered emissions unit *held by you just after you *acquire it.
17G Subsection 126‑50(2)
Omit all the words from and including “be” to the end of the subsection, substitute:
be:
(a) *trading stock of the recipient company just after the time of the trigger event; or
(b) a *registered emissions unit *held by the recipient company just after the time of the trigger event.
17H After subsection 126‑50(3)
Insert:
(3A) If:
(a) the roll‑over asset is an option referred to in Division 134; and
(b) the recipient company *acquires another *CGT asset by exercising the option;
the other asset cannot become a *registered emissions unit *held by the recipient company just after the recipient company acquired it.
18 At the end of Subdivision 230‑H
Add:
230‑481 Registered emissions units
This Division does not apply to a gain or loss that you make from a *registered emissions unit.
19 After Part 3‑45
Insert:
Part 3‑50—Carbon pollution reduction scheme
Division 420—Registered emissions units
Table of Subdivisions
Guide to Division 420
420‑A Registered emissions units
420‑B Acquiring registered emissions units
420‑C Disposing of registered emissions units etc.
420‑D Accounting for registered emissions units you hold at the start or end of the income year
420‑E Exclusivity of Division
Guide to Division 420
420‑1 What this Division is about
This Division deals with amounts you can deduct, and amounts included in your assessable income, because of these situations:
• you acquire a registered emissions unit;
• you hold a registered emissions unit at the start or the end of the income year;
• you dispose of a registered emissions unit.
Table of sections
420‑5 The 4 key features of tax accounting for registered emissions units
420‑5 The 4 key features of tax accounting for registered emissions units
The purpose of income tax accounting for registered emissions units is to produce the same tax treatment, irrespective of your purpose in acquiring or holding the registered emissions units.
There are 4 key features:
(1) You bring your gross expenditure and gross proceeds to account, not your net profits and losses on disposal of a registered emissions unit.
(2) The gross expenditure is deductible.
(3) The gross proceeds are assessable income.
(4) You must bring to account any difference between the value of your registered emissions units held at the start and at the end of the income year. This is done in such a way that:
(a) any increase in value is included in assessable income; and
(b) any decrease in value is a deduction.
Subdivision 420‑A—Registered emissions units
Table of sections
420‑10 Meaning of registered emissions unit
420‑12 Meaning of hold a registered emissions unit
420‑10 Meaning of registered emissions unit
A registered emissions unit is:
(a) an eligible emissions unit (within the meaning of the Carbon Pollution Reduction Scheme Act 2009); or
(b) a Kyoto unit (within the meaning of that Act);
for which there is an entry in a Registry account (within the meaning of that Act).
Note 1: Eligible emissions units are units that can be surrendered to meet an obligation under the Carbon Pollution Reduction Scheme Act 2009.
Note 2: Kyoto units can be entered in Registry accounts under the Carbon Pollution Reduction Scheme Act 2009. Certain types of Kyoto units are eligible emissions units. Other types of Kyoto units are not eligible emissions units.
420‑12 Meaning of hold a registered emissions unit
(1) You hold a *registered emissions unit if you are the registered holder (within the meaning of the Carbon Pollution Reduction Scheme Act 2009) of the unit.
(2) However, if the registered holder (within the meaning of the Carbon Pollution Reduction Scheme Act 2009) of a *registered emissions unit holds the unit as nominee for another entity:
(a) the other entity is taken to hold the unit; and
(b) the registered holder is taken not to hold the unit.
Subdivision 420‑B—Acquiring registered emissions units
Table of sections
420‑15 What you can deduct
420‑20 Non‑arm’s length transactions and transactions with associates
420‑21 Incoming international transfers of emissions units
420‑22 Becoming taxable in Australia on the proceeds of sale of registered emissions units
420‑15 What you can deduct
(1) You can deduct expenditure to the extent that you incur it in becoming the *holder of a *registered emissions unit.
Note: An Australian emissions unit is an example of a registered emissions unit. You can become the holder of an Australian emissions unit as a result of the unit being issued to you under the Carbon Pollution Reduction Scheme Act 2009 or as a result of your acquisition of the unit from another entity.
Timing
(2) You deduct the expenditure in the income year in which you start to *hold the *registered emissions unit.
Free Australian emissions units
(3) You cannot deduct under this section expenditure you incur in becoming the *holder of an *Australian emissions unit issued to you in accordance with:
(a) the emissions‑intensive trade‑exposed assistance program (within the meaning of the Carbon Pollution Reduction Scheme Act 2009); or
(b) Part 9 (coal‑fired electricity generation) of that Act.
(4) You cannot deduct under this section expenditure you incur in becoming the *holder of an *Australian emissions unit issued to you in accordance with Part 10 (reforestation) of the Carbon Pollution Reduction Scheme Act 2009 unless you incur the expenditure in preparing or lodging:
(a) an application for a certificate of reforestation (within the meaning of the Carbon Pollution Reduction Scheme Act 2009); or
(b) a reforestation report (within the meaning of that Act).
(5) You cannot deduct under this section expenditure you incur in becoming the *holder of an *Australian emissions unit issued to you in accordance with Part 11 (destruction of synthetic greenhouse gases) of the Carbon Pollution Reduction Scheme Act 2009 unless you incur the expenditure in preparing or lodging an application for a certificate of eligible synthetic greenhouse gas destruction (within the meaning of that Act).
No deduction if sale proceeds would not be assessable
(6) You cannot deduct under this section expenditure you incur in becoming the *holder of a *registered emissions unit if, assuming that you had sold the unit to someone else immediately after you started to *hold the unit, the proceeds of the sale would not have been included in your assessable income under section 420‑25.
Note: Under the International Tax Agreements Act 1953, for some foreign residents, the proceeds of the sale of a registered emissions unit are not assessable income in Australia.
420‑20 Non‑arm’s length transactions and transactions with associates
(1) If:
(a) an entity becomes the *holder of a *registered emissions unit; and
(b) either:
(i) the entity and the previous holder of the unit did not deal with each other at arm’s length; or
(ii) the previous holder is the entity’s *associate; and
(c) the entity did not pay or give consideration equal to the *market value of the unit for becoming the holder of the unit;
the entity is treated as if:
(d) the entity had incurred expenditure in becoming the holder of the unit; and
(e) the amount of the expenditure were equal to that market value.
(2) This section does not apply if a *registered emissions unit *held by an individual just before the individual’s death:
(a) devolves to the individual’s *legal personal representative; or
(b) *passes to a beneficiary in the individual’s estate.
(3) This section does not apply to the issue of an *Australian emissions unit under the Carbon Pollution Reduction Scheme Act 2009.
Note: In the application of Division 13 of Part III of the Income Tax Assessment Act 1936 (about international transfer‑pricing arrangements), this section is disregarded—see subsection 136AB(2) of the Income Tax Assessment Act 1936.
420‑21 Incoming international transfers of emissions units
Unit held as trading stock or as a revenue asset
(1) If:
(a) either:
(i) an *international emissions unit is transferred from your foreign account (within the meaning of the Carbon Pollution Reduction Scheme Act 2009) to your Registry account (within the meaning of that Act) or your nominee’s Registry account (within the meaning of that Act); or
(ii) an *international emissions unit is transferred from your nominee’s foreign account (within the meaning of the Carbon Pollution Reduction Scheme Act 2009) to your Registry account (within the meaning of that Act) or your nominee’s Registry account (within the meaning of that Act); and
(b) as a result of the transfer, you start to *hold the unit as a *registered emissions unit; and
(c) just before the transfer, the unit was your *trading stock or *revenue asset;
you are treated as if:
(d) just before the transfer, you had sold the unit to someone else for its *cost; and
(e) you had, immediately after the sale, bought it back as a registered emissions unit for the same amount.
Example: An Australian resident company carries on a business of trading in emissions units. The units are trading stock. The company owns 10,000 emission reduction units (a type of international emissions unit) that are registered in New Zealand. 5,000 of those emission reduction units are transferred from the company’s New Zealand registry account to the company’s Australian registry account.
The company is treated as having sold each unit to someone else at its cost just before it became a registered emissions unit. As the unit was previously held as trading stock, the unit ceases to be trading stock (section 70‑12). The cost of the unit just before it became a registered emissions unit is included in the company’s assessable income.
The company is also treated as having bought 5,000 registered emissions units for the same amount. The company is entitled to a deduction for that amount (section 420‑15).
Unit held otherwise than as trading stock or as a revenue asset
(2) If:
(a) either:
(i) an *international emissions unit is transferred from your foreign account (within the meaning of the Carbon Pollution Reduction Scheme Act 2009) to your Registry account (within the meaning of that Act) or your nominee’s Registry account (within the meaning of that Act); or
(ii) an *international emissions unit is transferred from your nominee’s foreign account (within the meaning of the Carbon Pollution Reduction Scheme Act 2009) to your Registry account (within the meaning of that Act) or your nominee’s Registry account (within the meaning of that Act); and
(b) as a result of the transfer, you start to *hold the unit as a *registered emissions unit; and
(c) just before the transfer, the unit was neither your *trading stock nor your *revenue asset;
you are treated as if:
(d) just before the transfer, you had sold the unit to someone else for its *market value just before the transfer; and
(e) you had, immediately after the sale, bought it back as a registered emissions unit for the same amount.
420‑22 Becoming taxable in Australia on the proceeds of sale of registered emissions units
If:
(a) you start to *hold a *registered emissions unit at a particular time; and
(b) assuming that you had sold the unit to someone else immediately after you started to hold the unit, the proceeds of the sale would not have been included in your assessable income under section 420‑25; and
(c) you hold the unit until a later time (the taxable status commencement time), where the following conditions are satisfied:
(i) assuming that you had sold the unit to someone else immediately before the taxable status commencement time, the proceeds of the sale would not have been included in your assessable income under section 420‑25;
(ii) assuming that you had sold the unit to someone else at the taxable status commencement time, the proceeds of the sale would have been included in your assessable income under section 420‑25;
you are treated as if:
(d) immediately after the taxable status commencement time, you had bought the unit from someone else for its *market value; and
(e) you had started to hold the unit immediately after the taxable status commencement time instead of at the time mentioned in paragraph (a).
Note: Under the International Tax Agreements Act 1953, for some foreign residents, the proceeds of the sale of a registered emissions unit are not assessable income in Australia.
Subdivision 420‑C—Disposing of registered emissions units etc.
Table of sections
420‑25 Assessable income on disposal of registered emissions units
420‑30 Non‑arm’s length transactions and transactions with associates
420‑35 Outgoing international transfers of emissions units
420‑40 Disposal of registered emissions units for a purpose other than gaining assessable income
420‑41 Ceasing to be taxable in Australia on the proceeds of sale of registered emissions units
420‑42 Deduction for expenses incurred in ceasing to hold a registered emissions unit
420‑25 Assessable income on disposal of registered emissions units
(1) Your assessable income includes an amount that you are entitled to receive because you cease to *hold a *registered emissions unit.
Timing
(2) The amount is included in your assessable income for the income year in which you cease to *hold the unit.
Source
(3) An amount included in your assessable income under subsection (1) is taken, for the purposes of the *income tax laws, to have a source in Australia.
420‑30 Non‑arm’s length transactions and transactions with associates
If:
(a) an entity (the transferor) ceases to *hold a *registered emissions unit; and
(b) the cessation is because of the transfer of the unit to:
(i) a Registry account (within the meaning of the Carbon Pollution Reduction Scheme Act 2009); or
(ii) a foreign account (within the meaning of that Act);
kept by another entity (the transferee); and
(c) either:
(i) the transferor and the transferee did not deal with each other at arm’s length; or
(ii) the transferee is the transferor’s *associate; and
(d) the transferee did not pay or give consideration equal to the *market value of the unit for the transfer of the unit;
the transferor is treated as if the transferor were entitled to receive an amount equal to that market value because the transferor ceased to be the holder of the unit.
Note: In the application of Division 13 of Part III of the Income Tax Assessment Act 1936 (about international transfer‑pricing arrangements), this section is disregarded—see subsection 136AB(2) of the Income Tax Assessment Act 1936.
420‑35 Outgoing international transfers of emissions units
If:
(a) you stop *holding as a *registered emissions unit an *international emissions unit; and
(b) you do so as a result of the transfer of the unit to:
(i) your foreign account (within the meaning of the Carbon Pollution Reduction Scheme Act 2009); or
(ii) your nominee’s foreign account (within the meaning of the Carbon Pollution Reduction Scheme Act 2009);
you are treated as if:
(c) just before the transfer, you had sold the unit to someone else for its *market value just before the transfer; and
(d) you had, immediately after the sale, bought it back for the same amount.
Example: An Australian resident company carries on a business of trading in emission units. The company owns 10,000 emission reduction units (a type of international emissions unit) that are registered in Australia. 5,000 of those units are transferred from the company’s Australian registry account to the company’s New Zealand registry account.
The company is treated as having sold each unit to someone else at its market value just before it stopped being a registered emissions unit. As the unit was a registered emissions unit, the market value is included in the company’s assessable income (section 420‑25).
The company is also treated as having bought 5,000 emission reduction units for the same amount. As those units are trading stock, the company may be able to deduct that amount under section 8‑1.
420‑40 Disposal of registered emissions units for a purpose other than gaining assessable income
(1) If:
(a) you incur expenditure in:
(i) becoming the *holder of a *registered emissions unit; or
(ii) ceasing to hold a registered emissions unit; and
(b) you have deducted or can deduct the expenditure under section 420‑15 or 420‑42; and
(c) you cease to hold the unit in a particular income year; and
(d) the cessation is neither:
(i) in gaining or producing your assessable income; nor
(ii) in carrying on a *business for the purpose of gaining or producing your assessable income; and
(e) section 420‑30 (non‑arm’s length transactions and transactions with associates) did not apply to you ceasing to hold the unit;
your assessable income of that income year includes an amount equal to the amount you have deducted or can deduct.
Death
(2) If:
(a) the cessation is because of your death; and
(b) the *registered emissions unit devolves to your *legal personal representative;
then:
(c) your legal personal representative is treated as having bought the unit for the amount included in your assessable income under subsection (1); and
(d) if the unit *passes to a beneficiary in your estate:
(i) your legal personal representative is treated as having disposed of the unit for the amount included in your assessable income under subsection (1); and
(ii) the beneficiary is treated as having bought the unit for the amount included in your assessable income under subsection (1).
(3) If:
(a) the cessation is because of your death; and
(b) the *registered emissions unit *passes to a beneficiary in your estate without devolving to your *legal personal representative;
the beneficiary is treated as having bought the unit for the amount included in your assessable income under subsection (1).
Transfer during life—treatment of acquirer
(4) If:
(a) the cessation is because of the transfer of the unit to another entity; and
(b) neither subsection (2) nor (3) applies;
the other entity is treated as having bought the unit for the amount included in your assessable income under subsection (1).
(5) If subsection (4) applies to the transfer of the unit to another entity:
(a) you must inform the other entity that, as a result of subsection (4) applying, the other entity is treated as having bought the unit for a particular amount; and
(b) you must do so:
(i) at, or as soon as practicable after, the time of the transfer; or
(ii) by a later time allowed by the Commissioner.
Source
(6) An amount included in your assessable income under subsection (1) is taken, for the purposes of the *income tax laws, to have a source in Australia.
420‑41 Ceasing to be taxable in Australia on the proceeds of sale of registered emissions units
If:
(a) you start to *hold a *registered emissions unit; and
(b) assuming that you had sold the unit to someone else immediately after you started to hold the unit, the proceeds of sale would have been included in your assessable income under section 420‑25; and
(c) you hold the unit until a later time (the taxable status cessation time), where the following conditions are satisfied:
(i) assuming that you had sold the unit to someone else immediately before the taxable status cessation time, the proceeds of the sale would have been included in your assessable income under section 420‑25;
(ii) assuming that you had sold the unit to someone else at the taxable status cessation time, the proceeds of sale would not have been included in your assessable income under section 420‑25;
you are treated as if:
(d) just before the taxable status cessation time, you had sold the unit to someone else for its *market value; and
(e) you had, at the taxable status cessation time, bought it back for the same amount.
Note: Under the International Tax Agreements Act 1953, for some foreign residents, the proceeds of the sale of a registered emissions unit are not assessable income in Australia.
420‑42 Deduction for expenses incurred in ceasing to hold a registered emissions unit
(1) You can deduct expenditure to the extent that you incur it in ceasing to *hold a *registered emissions unit.
Timing
(2) You deduct the expenditure in the income year in which you cease to *hold the *registered emissions unit.
Subdivision 420‑D—Accounting for registered emissions units you hold at the start or end of the income year
Table of sections
420‑45 You include the value of your registered emissions units in working out your assessable income and deductions
420‑50 Value of registered emissions units at start of income year
420‑51 Valuation methods
420‑52 FIFO cost method of working out the value of units
420‑53 Actual cost method of working out the value of units
420‑54 Market value method of working out the value of units
420‑55 Valuation method for first income year at the end of which you held registered emissions units
420‑57 Valuation method for later income years at the end of which you held registered emissions units
420‑58 Value of registered emissions units at end of income year—emissions‑intensive trade‑exposed assistance program
420‑60 Cost of registered emissions units
420‑45 You include the value of your registered emissions units in working out your assessable income and deductions
(1) You compare:
(a) the *value of all *registered emissions units you *held at the start of the income year; and
(b) the value of all registered emissions units you held at the end of the income year.
Increase in value is included in assessable income
(2) Your assessable income includes any excess of the *value at the end of the income year over the value at the start of the income year.
Decrease in value is a deduction
(3) On the other hand, you can deduct any excess of the *value at the start of the income year over the value at the end of the income year.
Source
(4) An amount included in your assessable income under subsection (2) is taken, for the purposes of the *income tax laws, to have a source in Australia.
Disregard value of unit if sale proceeds would not be assessable
(5) For the purposes of this Subdivision, disregard the value of a *registered emissions unit you held at the end of the income year if, assuming that you had sold the unit to someone else immediately after you started to *hold the unit, the proceeds of the sale would not have been included in your assessable income under section 420‑25.
Note: Under the International Tax Agreements Act 1953, for some foreign residents, the proceeds of the sale of a registered emissions unit are not assessable income in Australia.
420‑50 Value of registered emissions units at start of income year
(1) The value of a *registered emissions unit you held at the start of an income year is the same amount at which it was taken into account under this Subdivision at the end of the last income year.
(2) The value of the unit is a nil amount if the unit was not taken into account under this Subdivision at the end of the last income year.
420‑51 Valuation methods
(1) The value of a *registered emissions unit you *held at the end of an income year is worked out using one of the following methods:
(a) the *FIFO cost method;
(b) the *actual cost method;
(c) the *market value method.
Sections 420‑55 and 420‑57 tell you which method applies.
(2) This section has effect subject to section 420‑58 (emissions‑intensive trade‑exposed assistance program).
420‑52 FIFO cost method of working out the value of units
The FIFO cost method for working out the value of the *registered emissions units you *held at the end of an income year means that the value of the units is the *cost of the registered emissions units, and, for the purposes of the application of this Subdivision to you for the income year:
(a) if any of the registered emissions units are:
(i) *Australian emissions units that have the same *vintage year as the financial year to which the income year relates; or
(ii) Australian emissions units that have a vintage year that is earlier than the financial year to which the income year relates; or
(iii) eligible international emissions units (within the meaning of the Carbon Pollution Reduction Scheme Act 2009);
you must account for those units on a first‑in first‑out basis; and
(b) if:
(i) any of the registered emissions units are Australian emissions units that have the same vintage year; and
(ii) that vintage year that is later than the financial year to which the income year relates;
you must account for those units on a first‑in first‑out basis; and
(c) if any of the registered emissions units are Kyoto units (within the meaning of the Carbon Pollution Reduction Scheme Act 2009) that are not eligible international emissions units (within the meaning of that Act)—you must account for those units on a first‑in first‑out basis.
420‑53 Actual cost method of working out the value of units
The actual cost method for working out the value of the *registered emissions units you *held at the end of the income year means that the value of the units is the *cost of the units, and, for the purposes of the application of this Subdivision to you for the income year, you must not account for any of those units on a first‑in first‑out basis.
420‑54 Market value method of working out the value of units
The market value method for working out the value of the *registered emissions units you *held at the end of the income year means that the value of the units is the *market value of the units at the end of the income year.
420‑55 Valuation method for first income year at the end of which you held registered emissions units
Scope
(1) This section applies if:
(a) you *held one or more *registered emissions units at the end of an income year; and
(b) the income year is the first income year at the end of which you held one or more registered emissions units.
Choice of method
(2) You may choose one of the following methods:
(a) the *FIFO cost method;
(b) the *actual cost method;
(c) the *market value method;
for working out the value of the *registered emissions units you *held at the end of the income year.
FIFO cost method applies if no choice made
(3) If you do not make a choice under subsection (2) for the income year, the value of the *registered emissions units you *held at the end of the income year is worked out using the *FIFO cost method.
Time for making choice
(4) You must make a choice under subsection (2) before you lodge your *income tax return for the income year for which you make the choice.
No revocation of choice
(5) A choice made under subsection (2) cannot be revoked.
Emissions‑intensive trade‑exposed assistance program
(6) This section has effect subject to section 420‑58 (emissions‑intensive trade‑exposed assistance program).
420‑57 Valuation method for later income years at the end of which you held registered emissions units
Scope
(1) This section applies if:
(a) you *held one or more *registered emissions units at the end of an income year (the current income year); and
(b) the current income year is not the first income year at the end of which you held one or more registered emissions units.
Choice of method
(2) You may choose one of the following methods:
(a) the *FIFO cost method;
(b) the *actual cost method;
(c) the *market value method;
for working out the value of the *registered emissions units you *held at the end of the current income year.
Previous method applies if no choice made
(3) If you do not make a choice under subsection (2) for the current income year, the value of the *registered emissions units you *held at the end of the current income year is worked out using the method that applied to the most recent income year at the end of which you held one or more registered emissions units.
Limitation on choice—before 2016‑17 income year
(4) If the current income year is before the 2016‑17 income year, you must not make a choice under subsection (2) for the current income year if you have previously made a choice under that subsection for an earlier income year.
Limitation on choice—2016‑17 income year or a later income year
(5) If the current income year is:
(a) the 2016‑17 income year; or
(b) a later income year;
you must not make a choice under subsection (2) for the current income year unless:
(c) the same method applied for each of the 4 most recent income years at the end of which you *held one or more *registered emissions units; and
(d) the method mentioned in paragraph (c) is different from the method to which your choice for the current income year relates.
Limitation on choice—change from FIFO cost method to actual cost method
(6) You must not choose under subsection (2) the *actual cost method for the current income year if the *FIFO cost method applied for the most recent income year at the end of which you *held one or more *registered emissions units.
Time for making choice
(7) You must make a choice under subsection (2) before you lodge your *income tax return for the income year for which you make the choice.
No revocation of choice
(8) A choice made under subsection (2) cannot be revoked.
Emissions‑intensive trade‑exposed assistance program
(9) This section has effect subject to section 420‑58 (emissions‑intensive trade‑exposed assistance program).
420‑58 Value of registered emissions units at end of income year—emissions‑intensive trade‑exposed assistance program
Scope
(1) This section applies to an *Australian emissions unit with a particular *vintage year if:
(a) it was issued to you in accordance with the emissions‑intensive trade‑exposed assistance program (within the meaning of the Carbon Pollution Reduction Scheme Act 2009); and
(b) you *held it throughout the period:
(i) beginning when it was issued to you; and
(ii) ending at the end of an income year that ended before 15 December in the financial year next following the vintage year.
Value
(2) The value of the unit you held at the end of an income year that ended during that period is a nil amount.
(3) For the purposes of:
(a) subsection 420‑57(3); and
(b) paragraph 420‑57(5)(c);
the method that applied to a previous income year mentioned in that subsection or paragraph, as the case may be, is the method that would have applied if this section had not been enacted.
420‑60 Cost of registered emissions units
Free Australian emissions units
(1) If an *Australian emissions unit was issued to you free of charge under the Carbon Pollution Reduction Scheme Act 2009, the cost of the unit is its *market value immediately after you began to *hold the unit.
(2) Subsection (1) does not affect the operation of section 420‑58.
Other registered emissions units
(3) If a *registered emissions unit was not issued to you free of charge under the Carbon Pollution Reduction Scheme Act 2009, the cost of the unit is the total of the expenditure that you:
(a) incurred in becoming the *holder of the unit; and
(b) can deduct under section 420‑15.
Subdivision 420‑E—Exclusivity of Division
Table of sections
420‑65 Exclusivity of deductions etc.
420‑70 Exclusivity of assessable income etc.
420‑65 Exclusivity of deductions etc.
Expenditure incurred in becoming the holder of a registered emissions unit
(1) You cannot deduct under any provision of this Act outside this Division any expenditure to the extent that you incur it in becoming the *holder of a *registered emissions unit.
(2) To the extent you incur expenditure in becoming the *holder of a *registered emissions unit, the expenditure is not to be taken into account in working out:
(a) an amount you can deduct; or
(b) an amount included in your assessable income;
under any provision of this Act outside this Division.
Free Australian emissions units
(3) Subsections (1) and (2) do not affect the application of a provision of this Act outside this Division to expenditure you incur in becoming the *holder of an *Australian emissions unit issued to you in accordance with:
(a) the emissions‑intensive trade‑exposed assistance program (within the meaning of the Carbon Pollution Reduction Scheme Act 2009); or
(b) Part 9 (coal‑fired electricity generation) of that Act.
(4) Subsections (1) and (2) do not affect the application of a provision of this Act outside this Division to expenditure you incur in becoming the *holder of an *Australian emissions unit issued to you in accordance with Part 10 (reforestation) of the Carbon Pollution Reduction Scheme Act 2009 if you do not incur the expenditure in preparing or lodging:
(a) an application for a certificate of reforestation (within the meaning of the Carbon Pollution Reduction Scheme Act 2009); or
(b) a reforestation report (within the meaning of that Act).
(5) Subsections (1) and (2) do not affect the application of a provision of this Act outside this Division to expenditure you incur in becoming the *holder of an *Australian emissions unit issued to you in accordance with Part 11 (destruction of synthetic greenhouse gases) of the Carbon Pollution Reduction Scheme Act 2009 if you do not incur the expenditure in preparing or lodging an application for a certificate of eligible synthetic greenhouse gas destruction (within the meaning of that Act).
Gifts and deductions
(6) Subsections (1) and (2) do not affect the operation of Division 30 (deductions for gifts and contributions).
Note: If you make a gift or contribution, Division 30 applies in the normal way to determine whether you can deduct the amount of the gift or contribution.
Expenditure incurred in ceasing to hold a registered emissions unit
(7) You cannot deduct under any provision of this Act outside this Division any expenditure to the extent that you incur it in ceasing to *hold a *registered emissions unit.
420‑70 Exclusivity of assessable income etc.
(1) An amount that you are entitled to receive because you ceased to *hold a *registered emissions unit is not to be:
(a) included in your assessable income; or
(b) taken into account in working out your assessable income; or
(c) taken into account in working out an amount you can deduct;
under any provision of this Act outside this Division.
(2) Subsection (1) does not affect the operation of Division 6 so far as that Division provides for the significance of residence or source for the assessability of ordinary and statutory income.
Note: An amount included in your assessable income under this Division may be ordinary or statutory income for the purposes of Division 6.
Free Australian emissions units
(3) An amount is not to be included in your assessable income under any provision of this Act outside this Division because an *Australian emissions unit was issued to you in accordance with:
(a) the emissions‑intensive trade‑exposed assistance program (within the meaning of the Carbon Pollution Reduction Scheme Act 2009); or
(b) Part 9 (coal‑fired electricity generation) of that Act; or
(c) Part 10 (reforestation) of that Act; or
(d) Part 11 (destruction of synthetic greenhouse gases) of that Act.
Note 1: A capital gain or capital loss you make from a registered emissions unit is disregarded (subsection 118‑15(1)).
Note 2: A capital gain or capital loss you make from a right to receive a free Australian emissions unit is disregarded (subsection 118‑15(2)).
20 Paragraph 701‑10(5)(a)
After “*trading stock”, insert “or a *registered emissions unit”.
Note: The heading to subsection 701‑10(5) is altered by adding at the end “or registered emissions unit”.
21 Paragraph 701‑25(2)(a)
Repeal the paragraph, substitute:
(a) either:
(i) the asset is *trading stock of the *head company; or
(ii) the asset is a *registered emissions unit and an asset of the head company; and
22 Subsection 701‑25(3) (note)
After “trading stock”, insert “or registered emissions units”.
23 Subsection 701‑25(4)
Omit “The asset is taken”, substitute “If subparagraph (2)(a)(i) applies, the asset is taken”.
24 At the end of section 701‑25 (after the note)
Add:
Setting value of registered emissions unit at tax‑neutral amount
(5) If subparagraph (2)(a)(ii) applies, the asset is taken to be an asset of the *head company at the end of the income year (but not at the start of the next income year) and the head company’s *value for the asset at that time is taken to be equal to:
(a) if the asset was *held by the head company at the start of the income year—the *value of the asset at the start of the income year; or
(b) otherwise—the expenditure incurred by the head company in becoming the *holder of the asset.
25 Subsection 701‑35(2)
Repeal the subsection, substitute:
Assets to which section applies
(2) This section applies in relation to an asset if:
(a) the asset is *trading stock of the entity just before it becomes a *subsidiary member of the group; or
(b) the asset is:
(i) a *registered emissions unit; and
(ii) an asset of the entity;
just before it becomes a subsidiary member of the group.
26 Subsection 701‑35(3) (note)
After “trading stock”, insert “or registered emissions units”.
27 Subsection 701‑35(4)
Omit “The *value of the”, substitute “If paragraph (2)(a) applies, the *value of the”.
28 At the end of section 701‑35 (after the note)
Add:
Setting value of registered emissions unit at tax‑neutral amount
(5) If paragraph (2)(b) applies, the *value of the *registered emissions unit at the end of the income year that ends, or, if section 701‑30 applies, of the income year that is taken by subsection (3) of that section to end, when the entity becomes a *subsidiary member is taken to be equal to:
(a) if the unit was *held by the joining entity at the start of the income year—the *value of the unit at the start of the income year; or
(b) otherwise—the expenditure incurred by the joining entity in becoming the *holder of the unit.
29 After subsection 701‑55(3)
Insert:
Registered emissions unit provisions
(3A) If Division 420 is to apply in relation to the asset, the expression means that the Division applies as if the asset were a *registered emissions unit at the start of the income year in which the particular time occurs, and its value at that time were equal to the asset’s *tax cost setting amount.
30 After subsection 705‑30(1)
Insert:
Registered emissions units
(1A) If an asset of the joining entity is a *registered emissions unit, the joining entity’s terminating value for the unit is equal to:
(a) if the unit was *held by the joining entity at the start of the income year—the *value of the unit at the start of the income year; or
(b) otherwise—the expenditure incurred by the joining entity in becoming the *holder of the unit.
31 Subsection 705‑40(1)
After “*depreciating asset”, insert “, a *registered emissions unit”.
Note: The heading to section 705‑40 is altered by adding at the end “etc.”.
32 Subsection 705‑40(2)
After “*depreciating assets”, insert “, *registered emissions units”.
33 Paragraph 705‑40(3)(b)
After “*depreciating asset”, insert “, to a *registered emissions unit”.
34 Subsection 705‑57(1)
After “*depreciating assets”, insert “, *registered emissions units”.
35 Paragraph 705‑57(2)(c)
After “*depreciating asset”, insert “, a *registered emissions unit”.
36 Subsection 705‑163(1)
After “*depreciating assets”, insert “, *registered emissions units”.
37 Subsection 705‑240(1)
After “*depreciating assets”, insert “, *registered emissions units”.
38 Subsection 713‑225(4)
Omit “or a *depreciating asset”, substitute “, a *depreciating asset or a *registered emissions unit”.
Note: The heading to subsection 713‑225(4) is altered by omitting “or depreciating asset”, and substituting “, a depreciating asset or a registered emissions unit”.
39 Subsection 715‑660(1) (after table item 2)
Insert:
| 2A | A provision of Subdivision 420‑D that provides for a choice | Valuing *registered emissions units |
40 At the end of section 719‑165
Add:
(3) Subsection 701‑35(5) (setting value of registered emissions unit at tax‑neutral amount) does not apply to the assets of the MEC joining entity if it is an *eligible tier‑1 company at the MEC joining time.
Note: The heading to section 719‑165 is altered by inserting “and registered emissions unit value” after “value”.
40A Subsection 995‑1(1)
Insert:
actual cost method of working out the *value of a *registered emissions unit has the meaning given by section 420‑53.
41 Subsection 995‑1(1)
Insert:
Australian emissions unit has the same meaning as in the Carbon Pollution Reduction Scheme Act 2009.
41B Subsection 995‑1(1) (paragraph (b) of the definition of cost)
Omit “section 70‑55.”, substitute “section 70‑55; and”.
42 Subsection 995‑1(1) (at the end of the definition of cost, after the note)
Add:
(c) cost of a *registered emissions unit has the meaning given by section 420‑60.
42A Subsection 995‑1(1)
Insert:
FIFO cost method of working out the *value of a *registered emissions unit has the meaning given by section 420‑52.
43 Subsection 995‑1(1)
Insert:
free Australian emissions unit has the same meaning as in the Carbon Pollution Reduction Scheme Act 2009.
44 Subsection 995‑1(1) (at the end of the definition of hold)
Add:
; and (c) hold a *registered emissions unit has the meaning given by section 420‑12.
45 Subsection 995‑1(1)
Insert:
international emissions unit means:
(a) a Kyoto unit (within the meaning of the Carbon Pollution Reduction Scheme Act 2009); or
(b) a non‑Kyoto international emissions unit (within the meaning of that Act).
45A Subsection 995‑1(1)
Insert:
market value method of working out the *value of a registered emissions unit has the meaning given by section 420‑54.
46 Subsection 995‑1(1)
Insert:
registered emissions unit has the meaning given by section 420‑10.
47 Subsection 995‑1(1) (definition of trading stock)
After “modified by”, insert “section 70‑12 of this Act and”.
48 Subsection 995‑1(1) (paragraph (b) of the definition of value)
Omit “70‑C.”, substitute “70‑C; and”.
49 Subsection 995‑1(1) (after paragraph (b) of the definition of value)
Insert:
(c) the value of a *registered emissions unit has the meaning given by Subdivision 420‑D; and
50 Subsection 995‑1(1)
Insert:
vintage year of an *Australian emissions unit has the same meaning as in the Carbon Pollution Reduction Scheme Act 2009.
Taxation Administration Act 1953
51 After subsection 45‑120(5) in Schedule 1
Insert:
Gross proceeds on disposal of registered emissions units included in instalment income
(5A) Your instalment income for a period also includes an amount that section 420‑25 of the Income Tax Assessment Act 1997 includes in your assessable income, for the income year that is or includes that period, because you cease to *hold a *registered emissions unit during that period.